Ferguson in the balance: Councilmembers set to vote on consent decree

Feb 8, 2016

It’s not hyperbole to say that Tuesday’s vote on a proposed consent decree with the federal government is the biggest decision in Ferguson’s history.

The 131-page document casts a huge structural and financial shadow of a municipality still reeling from the shooting death of Michael Brown. If the Ferguson City Council votes to accept the agreement, it could deliver monumental changes to the city’s police department and government – at a hefty price tag.

But if the council rejects it, the city will almost certainly face a costly lawsuit from the Department of Justice.

This sort of momentous choice has brought out profoundly different viewpoints from Ferguson residents. Some, such as Marc DeSantis, contend the decree could fix inequities within the 20,000-person city, which has faced unending scrutiny since Brown’s shooting death.

“We have an opportunity here to set the standard that other municipalities are judged against – an opportunity to have the finest police department and the finest judicial system in the country. We should not even consider rejecting this proposal,” DeSantis said.

But the cost that DeSantis mentioned points to a real possibility that the council could reject the decree, especially since the potential expense could add financial hardships on to a city already dealing with a stark budgetary situation.

“It’s really boiling down to unfortunately a business decision. I hate to say it that way. But it really is, guys,” said Ferguson resident Tom James. “We’ve only got so much money.”

Hop in that water, and pray that it works

Among other things, the consent decree would dictate how Ferguson’s police department uses force – and would launch a process for reviewing and investigating those incidents. It would also overhaul the city’s municipal codes and require more training for police officers. And it would require the city to pay for a monitor to track compliance. 

Ferguson Councilman Wesley Bell was part of a city delegation that helped work out aspects of the consent decree.
Credit Carolina Hidalgo I St. Louis Public Radio

If at least four members of the Ferguson City Council agree to the decree on Tuesday, it will go to a federal judge for review.

Councilman Wesley Bell was part of a delegation from Ferguson that helped negotiate the terms of the consent decree. He emphasized that Ferguson has either implemented or is implementing changes to the city’s court and police department, adding “For us, it’s about doing what’s right and waiting for a decree or an agreement to do it.”

“When we work with the Department of Justice, we look at it as a partnership,” Bell said. “And to us, it was more of ‘How can we get this city moving forward and how do we not just implement community policing.’ But we want to have the gold standard of community policing that will reverberate throughout the region. So that’s our goal.”

When Bell talks about the decree “reverberating throughout the region,” he’s alluding to both a promise and a pitfall. Since the decree would only affect Ferguson, it wouldn’t apply the weight of the federal government to deliver wholesale changes to other St. Louis County police departments. And that provides no guarantee that the people the Justice Department is ostensibly seeking to protect would face less aggressive ticketing or racial profiling.

But Bell said the decree’s narrowness is not necessarily a reason to reject it. He said other cities could possibly change their ways if the decree positively transforms Ferguson.

“We have the, in my opinion, the gift and the curse of being Ferguson,” said Bell, adding he wanted to hear from the public before deciding how he’s going to vote. “The curse would be that anything related to St. Louis County would be attributed to Ferguson. If something happens in one of the wonderful surrounding cities such as Dellwood, they’re going to say ‘city near Ferguson.’ That’s going to be the storyline. But now at the same time, there’s a gift there. Because there’s an opportunity to push for much-needed reforms and set the example for what reform and change can look like.

“I don’t want to put it off on other cities and say, ‘Hey, we know these are regional issues. We know these are national issues. So why us?’” Bell added. “Let’s look at it differently and say, ‘Let’s embrace the opportunity to push reforms and changes that no other city is doing to the degree that we’re doing in the region.’”

Some Ferguson residents also argue that rejecting the decree would be just as costly as signing it – and would lead to more turmoil within Ferguson. Dan Webb, an attorney hired by the city to negotiate the decree, said on Saturday it would cost roughly $4 million to $8 million to fight the Department of Justice in court. Since the federal government effectively possesses unlimited resources, Ferguson may be at a disadvantage in the courtroom.

And some like Ferguson resident Cassandra Butler feel Tuesday’s vote goes beyond raw costs.

“If you weren’t concerned about the revenues we were making when we were doing wrong, you have to be less concerned about the money to make amends and do right,” Butler said.

Dying of thirst

Yet the potential cost of complying with the decree is not a false concern for Ferguson officials. 

“Whether that’s through taxes or whether that’s through some sort of service cuts, there will have to be a plan that we can adopt to make this consent decree feasible,” said Ferguson Mayor James Knowles III last Tuesday. “There’s no use in signing a consent decree that you can’t live up to. And so all of that’s what’s the staff and the council’s working on right now. We want to make sure that is done before any vote or any signature is on any documents.”

Ferguson is already dealing with a substantial budgetary deficit. And some residents like Bill Tucker have argued that the city would go bankrupt if it signs onto the decree.

“Washington is demanding that we bend our necks and implement far more changes – far more costly changes – in a shorter amount of time than any other city in this situation,” Tucker said. “Even with two tax increases, the people in Ferguson will not be able to pay the demands of our dictators in Washington.”

(Tucker is alluding to two tax hike proposals that will go before Ferguson voters later this spring.)

At Saturday’s public forum, the city’s finance director provided a spreadsheet about the agreement’s cost. On the low end, the decree could cost $2.15 million for the first year and about $1.8 million for each subsequent year it is in effect. (The decree could hypothetically go away after two years, but it will most likely continue on for five years.) 

"There's no use in signing a consent decree that you can't live up to. And so all of that's what’s the staff and the council's working on right now." - Ferguson Mayor James Knowles III last Tuesday.

At the high end, the agreement could cost the city about $3.7 million in the first year and more than $3 million for each subsequent year. (Click here to see the spreadsheet.)

Some proponents of the decree say that the city may be inflating the potential costs of the agreement. And there’s no way now to know the exact cost until the decree gets carried out. But Bell said his colleagues are taking the fiscal impact very seriously.

“I was on the negotiating committee, so I put in a lot of hours. So I want to see this decree happen,” Bell said. “But at the same time, I have a fiduciary duty as an elected official that I can’t agree to something that is going to bankrupt the city. Now I’m not saying it is. But I’m saying if that’s the information that our finance experts tell us – and we’ll get second, third opinions as need be – then that’s another problem.

But Bell also talked about what could happen if the city plunges itself into expensive litigation and doesn’t succeed: “If the city is bankrupted and gone through a costly legal battle, how are the other cities going to view the Department of Justice? Are they going to say, ‘Yeah, let’s go in and negotiate with them because this will be a good thing?’ Or are they going to say, 'We don’t want any part of them’ and ‘We’ve seen what you’ve done?’”

“We’re Ferguson. And to me, I’m kind of proud of that,” Bell added. “To me it’s a badge of honor that ‘Hey, we’re here. We’re in this fire. And we’re going to fight our way out.’ These are regional issues. These are national issues. And you’re right. There is a legitimate point to say ‘Why us? It’s not fair.’ But you know what? I learned a long time ago life isn’t fair. But to me it’s fair that we get an opportunity to lead with change and reform.”

Could Ferguson disappear?

Throughout the public forums, a number of opponents have raised the possibility that Ferguson could disincorporate as a result of the consent decree. But there’s no process in state law that would allow for a charter city like Ferguson to dissolve. 

Ferguson residents Francesca Griffin and Mauraye Love, 9, listen as council members address audience questions.
Credit Carolina Hidalgo I St. Louis Public Radio

That doesn’t mean the city’s dissolution is impossible. For one thing, state lawmakers could change the disincorporation process to include charter cities. And while cautioning that he is not a municipal attorney, St. Louis County Board of Elections Democratic director Eric Fey said it might actually be possible for a charter city to place an amendment up for a public vote that lays out a disincorporation procedure.

(It’s also possible that Ferguson could face a disincorporation election if it runs afoul of a recently enacted municipal governance overhaul widely known as Senate Bill 5.)

Fey added that the charter amendment could be different than the disincorporation process in state law, which requires the signatures of 50 percent of voters within a city to trigger a dissolution election.

“It’s clear, as you well know, that the fourth class cities and villages – they have to go that petition route,” Fey said. “But a charter, as you just alluded to, could potentially build in some alternative process in their charter that doesn’t necessarily involve petitioning the residents. But again, that’s very hypothetical.”

Another unknown is whether Ferguson officials could place two questions on the ballot: One that set up a disincorporation procedure in its charter and another that dissolved the town.

“A rule of thumb that I use here: Political subdivisions as a whole can do pretty much whatever they want until somebody challenges them in court,” Fey said. “I could certainly see a scenario in which a city, it doesn’t necessarily have to be Ferguson, if they have a charter go for a charter amendment and simultaneously have a vote on disincorporation. And in their enabling ordinance that puts one or the other on the ballot, one doesn’t become effective without the other – things like that.

“That is definitely possible. Now, I think it’s ripe for challenges in court probably,” he added. “But how those turn out, I have no idea.”

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