Lifting the Fog on Police Oversight
Published on September 29, 2008
Spokane looks to be chained to an ombudsman ordinance that gives far more power to the police guild than the public may realize.
Before the first citizen to testify before the Spokane City Council last Monday was even through with her remarks, Council President Joe Shogan laid down his marker: “First of all and just real quick, the desire is to get a working ombudsman in place. Because that is done, it doesn’t mean that everything in here is going to be set in concrete forever. Once we get operating and there’s input and review, certain issues that come up, even if they require collective bargaining, can go to that process. The guild’s contract comes up for renewal next year. That would be a perfect time to address issues that come up during the year once we’re in
operation, that would require negotiating. The danger is if we try to get too perfect an ordinance right now, we won’t have anything. And to kick this now, really, quite frankly, back to the guild for renegotiating, we won’t have it.”
A simpler way of expressing Shogan’s position is that it is better to adopt a heavily lopsided ordinance giving the guild the straightjacket it wants to strap on a new Office of Police Ombudsman, than to not have the position at all. The line of argument is that once the office exists, it can be modified, down the road, to make it more like what the public actually wants the office to be. The best opportunities to make the changes, Shogan’s reasoning goes, is when the city and the guild are due to re-negotiate collective bargaining agreements.
Whether one agrees with Shogan or not, it’s fair to say that his position is more honest than the ordinance itself. Beginning with the use of the word “independent” three times in the opening two paragraphs, the ordinance is laced with misleading language intended to give the public the impression that the new office would be independent when, really, all the independence has been drained out of it from the get go.
This, for example, is text from that last of the 17 bullet points in the ordinance’s “Functions and Duties” section:
“The Police Ombudsman may adopt, promulgate, amend and rescind rules and procedures required for the discharge of the Police Ombudsman’s duties, including policies and procedures for receiving and processing complaints, monitoring investigations, and reporting findings, conclusions and recommendations.”
Sounds pretty good, like the ombudsman is free to set the rules.
But it’s the opposite that is true.
Bullet #2 in the same section requires that the Office of Police Ombudsman (OPO) “foward all compaints to the Police Department’s Internal Affairs unit.” It also stipulates that the “OPO will not conduct independent disciplinary investigations but may participate in interviews” conducted by SPD Internal Affairs. Bullet #5 stipulates that regardless of where complaints originate, only the police chief or a designiee of the police chief can determine if “the allegations warrant investigation” by Internal Afffairs.
Bullet #6: Stipulates that the OPO “may attend and observe interviews” by Internal Affairs investigators but can only ask questions “after the completion of questioning by the Department.”
Bullet #7: Stipulates that the “OPO will not participate in criminal investigations of Department employees.”
Bullet #8: Stipulates that when Internal Affairs completes an investigation it will forward a copy of the case file to the OPO for review.
Bullet #9: “(T)he OPO may conclude that additional investigation is needed on issues deemed material to the outcome” of the Internal Affairs investigation. If a dispute were to arise between Internal Affairs and OPO over the need for additional investigation, “the Chief (or designee) will determine whether additional investigation will be undertaken.” If the OPO disagrees with the Chief, “the matter will be resolved by the Mayor, whose decision will be final. Once the matter has been referred to and resolved by the Mayor, the investigation will be completed consistent with the determination by the Mayor.”
Bullet #9 is the longest of the ordinances key clauses and the above clause might seem, to some, to open the door for the OPO to actually do some independent investigating.
But then, by the language of the rest of the section, that door seems to close.
“After completion of the additional investigation, or the conclusion that no further investigation will be undertaken, the OPO will then certify whether or not, in the opinion of the OPO, the internal investigation was thorough and objective. This determination will be made within five business days. Once the above finding is entered in the investigation, the OPO will not be involved further in the disciplinary process in that case.”
Bullet #10: “The OPO shall not have a role in any disciplinary matter.”
Bullet #13: Stipulates that any “complaining party” who is unsatisfied by the Internal Affairs investigation “may contact the Office of Police Ombudsman to discuss the matter further. However, unless persuasive and probative new information is provided, the investigation will remain closed.”
Given all of the above constraints, here’s a simple question people could and should ask of the proposed ordinance that the city council will resume taking testimony on Monday night: “If a citizen has a complaint about his or her handling by the police department can he or she go to the Office of Police Ombudsman and expect an independent investigation by the OPO?”
The answer is clearly no. The authority of the OPO to go off on its own to investigation citizen complaints just does not exist.
Thus, even if Spokane could get a superbly qualified person to be its community Ombudsman, it should be clear to anyone that this person would be fighting, from day one, to have any credibility with the public.
And even this involves a big “if” given the way the appointment process in the revised ordinance is skewed toward the police guild. Of the five members of the selection committee two of the first four members have to be appointed by the guild and the Spokane Police Officers and Captains Association. These two members would join selections from the Mayor and City Council to select the fifth member, thus police representatives would have an effective veto over who gets the fifth seat. This five person committee would then recommend three qualified candidates to the Mayor, who would be required to select one of the three.
There are other weaknesses of the ordinance when you break it down compared to similar ordinances in Boise and Seattle, and the recommendations that consultant Sam Pailca made to the City of Spokane a year and a half ago.
In all honesty, things at this stage look pretty bleak. The Mayor and the Council President both seem content to muddle through this challenge, get what they can get from the guild, and move on. It’s hard to see how this will accomplish the goal of improving public confidence in the police department, which is where this discussion started nearly two years ago now. Ironically, the police have just as much at stake here as does the public and the guild’s overzealous efforts to try to protect its members may very well have the opposite effect, if the guild is seen as having used its power to thwart meaningful independent oversight.
Additional Resources
•Legal memorandum analyzing proposed ordinance vis-a-vis the collective bargaining rights of Spokane police officers.
•CFJ’s Take on an alternative ordinance in line with consultant Sam Pailca’s recommendations to the City.
•Comprehensive comparison of the Pailca recommendations, the Boise ordinance, the Seattle ordinance, and the proposed Spokane ordinance.
•Boise ordinance
•Excerpts from Seattle municipal code, re: Office of Professional Responsibility.