By a narrow vote, Cincinnati City Council last week directed its attorneys to file an objection to a federal magistrate's recommendation that the city be found in material breach of the collaborative agreement on police reform.
Chief Magistrate Michael Merz found Jan. 26 that leaders in the police department had derided and denied access to the court-appointed monitors charged with making sure the improvements laid out in the agreement are implemented (see "Time to Pay," issue of Feb. 2). Merz recommended that Judge Susan Dlott turn the collaborative agreement into a court order.
Four council members — Christopher Smitherman, Laketa Cole, Jim Tarbell and Vice Mayor Alicia Reece — said the city fully admitted to wrongdoing and should accept the consequences. Why does the city want to set itself up to lose yet another court case, they wondered.
"We're gonna show this judge, we're going to put our foot down," Reece said. "And then 24 hours later we look like fools because the judge put her foot down."
Even so, five members of council and Mayor Charlie Luken sought to spare the city a court order. Councilmen Chris Monzel and Sam Malone led the effort, arguing that the issues cited by Merz are minor and that a court order might open the city to fines and attorneys' fees.
They also wrote in a Feb. 2 memo that they were concerned about the future of the collaborative agreement.
"The agreement was set forth on the premise that any conflicts could be worked out amongst the parties involved," the memo said. "Despite some rough times during the collaborative process, they said the parties were willing to come together to find solutions."
Cole argued that the very reason the agreement was set up to include the possibility of a court order was because the parties couldn't always find common ground.
"Judge Merz was also correct to recommend conversion of the agreement into a consent decree because that was the very remedy the city agreed to in the case of a material breach," Cole said in a Feb. 2 memo.
Councilman David Pepper said that previous reports from the monitor, including one released in October, found the city in compliance with nearly every standard set forth in the collaborative. He also rejected fears that the city's objection could further agitate Dlott, who will decide whether or not to implement the court order recommended by Merz.
Luken questioned the standards for "material breach."
"When I was called the worst kinds of names by parties to the collaborative, that wasn't a breach," he said.
Neither was the complete withdrawal of the Black United Front, he added.
After council voted 5-4 to object, Smitherman introduced a symbolic resolution that reaffirmed the city's commitment to the goals of the Memorandum of Agreement with the U.S. Department of Justice and the collaborative agreement. With Cole out sick, council deadlocked 4-4 on whether or not to vote immediately on resolution. It went to a committee instead.
"That would've helped us," Smitherman said quietly as council adjourned.
It's not the first time city leaders have chafed under the collaborative agreement.
In October 2004 Luken wrote then-Attorney General John Ashcroft asking that the city be released from the agreement. Though that went nowhere, Luken reiterated those sentiments Feb. 2 in his State of the City address at Withrow High School.
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