The Mayor Wades In
Published on June 30, 2009
Mary Verner walked into a tension-packed Spokane City Council meeting on June 29th to fight for her police ombudsman pick.
By 9:30 last night there was only one person whose opinion mattered as to whether Timothy Burns would be the City of Spokane’s first police ombudsman. That person was Timothy Burns.
Although the former police officer and now neighborhood preservation manager for Visalia, California, was not on hand to disclose his reaction to being chosen by Spokane Mayor Mary Verner for the new job, he did have a message for the city. It was delivered, up front, by the mayor’s top assistant, City Administrator Ted Danek. This was the message: Timothy Burns really loves Spokane. But he wants a severance package before he will agree to accept the job for which Verner has chosen him.
Two hours later, Burns had the council’s approval for the post on the condition that he accept a creative severance package that Danek said he’d put together with the help of Assistant City Attorney Mike Piccolo. The proposal is that rather than be offered a lump sum payment if the city decides not to renew his Ombudsman contract after three years, Burns will be offered nearly $17,000 in moving 
expenses and another city job for which he is qualified. The job would be his for at least two years following onto his three year term as Ombudsman.
Danek said he thought, based on his conversations with Burns, that he would accept the offer. The City Administrator also admitted to being somewhat embarrassed by the timing of Burns’s new demand and said the city would accept it as a lesson learned for future such hirings. Again, whether the creative proposal is enough to persuade Burns to accept the position is now up to Burns.
That would have been enough of a meeting for one night except the people who’d come to testify against Burns’s appointment had other ideas. Whether those ideas would be shared with the council was up to Council President Joe Shogan who, from the start, tried to limit the discussion to the narrow issue of whether or not Burns should be approved for the position.
“All we’re considering right now in this resolution is whether or not to appoint Timothy Burns as the Ombudsman, that’s all were talking about,” Shogan announced. If people wanted to talk about the creation of the ombudsman and the powers given the office in the ombudsman ordinance, he said, they would invited to make those remarks at the end of the council meeting during the general open forum, “because all we’re addressing right now is whether we’re appointing Timothy Burns to this office.”
But before Shogan could invite the first person to the podium, councilman Bob Apple appealed to him not to bar testimony on the resolution from those who’d come to testify about “terms and conditions and the public’s perceptions.”
Shogan replied that he didn’t want to budge “because the ordinance creating the ombudsman is not at issue right now.”
The immediate problem with that constraint was Sandy Williams, the woman who was first in line to testify. Williams is an activist, writer and film maker who serves as the executive director of Spokane’s Odyssey Youth Center. She simply began speaking from her heart and paused only to express her hope, to Shogan, that what she had to say would fall within his “parameters.”
“Probably not,” Shogan joked.
But with that, the tension in the room relaxed at least enough for Williams to begin to speak her piece and to open the door for those behind her to address the same basic issue.
“I’ve been here since I was twelve,” she said, “and I’ve been hearing it for a very long time. The same thing, over and over and over again. And I sat with a group of concerned citizens where we talked to the mayor a couple weeks ago, asking for the same thing. And what we were told was, be a little bit more patient, it’s going to take a little more time, can’t you wait a little bit longer, and can’t you just trust us? One more time. Just trust us. And so when I left that meeting what I was thinking was, how come you can’t trust us for a change? Just one time. Why can’t you trust what I’m saying, because what I’m saying is I’m intelligent enough to know the difference between an honest mistake and criminal behavior. I’m intelligent enough to know that when people cover up and they lie and don’t tell the truth, that that doesn’t make anybody safer. And I’m intelligent enough to know that I’m not the enemy. And the people of Spokane are not the enemy, it’s the bad folks who are doing bad things that are the enemy. And I think that the city and the mayor and the chief of police and the city council want to know who those folks are as much as I do. So, if you approve an ombudsman position, who has no investigative authority, and who has to rely on the police department to do the investigation, that’s the same old stuff. That’s the same old stuff, and if it was working before, we wouldn’t be here.”
Shogan let her finish but bristled and slammed his gavel three times when several people in the audience applauded. He then announced that he would have people removed from the hall if it happened again. Five minutes later he did give the order to a police officer to remove former southside city council candidate George McGrath from the audience for an audible crack McGrath made while Shogan was trying to defend the city’s decision-making on the ombudsman ordinance to veteran Spokane activist Marianne Torres.
Torres and others who testified said they preferred that Spokane use the model of the Boise ombudsman ordinance, but Shogan suggested that was unrealistic because of the differences in labor laws between Idaho and Washington. And he told Torres her criticism of the Spokane ordinance was off base. This is how their impromptu debate unfolded:
“I understand there are issues with the police guild here,” said Torres.
“So how do you propose that this could be done without input of the police guild when state law requires their input?”
“I totally support having the input of the police guild,” Torres replied, correcting him. “I think the police guild ought not to have the final word on it. This is a job that requires citizen oversight, in my opinion, and that requires that the citizens have the power to make some changes and you don’t have that when all the power is in the guild.”
“I would submit since we’re bound by state law and you don’t like the state law, that your remedy should be to change the state law,” Shogan said.
“That’s usually the suggestion,” Torres replied, “when entities don’t want to change internally.”
“Maam, that’s not fair,” Shogan replied. “State law mandates that an ombudsman involves a change in working conditions and that has to be bargained with the union.” Shogan said. “Now, you can say you don’t like that, but to blame it on us is unfair.”
Shogan wasn’t the only one on the council to complain that Washington state law makes a truly independent ombudsman all but impossible for Spokane. Council member Nancy McGlaughlin made the same argument later in the meeting when she asked the audience if they would be willing to wait five or ten years (the time she thought it would take to change state law) to get an ombudsman ordinance for Spokane that gave independent investigative powers to the office.
But the proposition that an independent ombudsman is next to impossible does not square with the testimony that City Attorney Howard Delaney gave last fall prior to the adoption of the Spokane ordinance. At that time Delaney said the problem was more one of timing than of the state law on collective bargaining.
“Here’s the way this particular ordinance is working vis-a-vis state law and working conditions,” Delaney said then. “We negotiated and settled a contract with the Spokane Police Guild. This ordinance is now being brought forward during the term of an existing contract. So, when you want to change working conditions, for instance, those things that may affect employee discipline, okay, [on] which this ordinance, you know, has an impact, in the middle of a contract, you have to re-open negotiations to get a tentative agreement to move this ordinance forward. If you simply wanted to wait until 2010, until the end of the current contract, and negotiate this before the start of the next contract, and wait, then you can address all of these issues in straight negotiations. The problem is this ordinance is being brought forward in mid-contract.”
(The Center for Justice has consistently argued that an ombudsman with independent investigation authority would fit within existing state law and bargaining agreements so long as the ombudsman has no disciplinary powers that would directly effect working conditions.)
Moreover, during the council discussion last night, Councilman Bob Apple twice frankly acknowledged that the city council was well within its rights, if it chose, to direct the Mayor and the city administration to negotiate a new contract with the police guild that includes an independent ombudsman with “teeth.”
One irony of the meeting is that while both Shogan and McLaughlin insisted that state law was a barrier to the reforms the public was demanding, Shogan ruled McLaughlin out of order when she attempted to poll the audience on whether those testifying against Burns’s contract would prefer not to fill the office until state law was changed.
But the highlight of the meeting was the Mayor’s appearance, walking down the aisle from the back of the room at the end of the public testimony segment, to say her piece.
She began by lamenting how the testimony had gotten “pretty far afield” from the business of taking testimony on her selection.
“I know that Mayor,” said Shogan. “But by charter I run the meetings.”
Verner continued. While her main message was to implore the council not to delay in approving Burns for the position, she also said that she needed to address “inaccuracies” from the public testimony, both in terms of how her views were characterized and how the city’s conduct was characterized.
But she only addressed the purported inaccuracies in the most general sense, by simply reading portions of the ombudsman ordinance, without either specifying what testimony was inaccurate, or what the accurate version was. Among other things, this left up in the air the charge from the activists who’d met with her earlier this month that she refused to commit to pursuing increased independence for the ombudsman position when new police guild negotiations begin later this year.
For the record, a fact sheet put out by the city Friday afternoon supports the account of the mayor’s visitors: “Both the City Council and the Mayor have committed to the current structure of the Ombudsman Office.”
The only thing that was clear in her rebuttal was the general proposition, from her viewpoint, that the ombudsman as currently constructed would be independent because he would not report to the police chief. This even though the office plainly does not have the power to conduct investigations independent of police internal affairs officers.
“The ombudsman is not an employee of the Spokane police department,” she said. “The ombudsman shall work independently from the Spokane police department. it’s in the ordinance. It’s in the job description. It’s in our expectations.”
The mayor then abruptly shifted to “share the story with you of another man, a man completely unrelated to the Spokane police department, completely unrelated to this ombudsman program. This person’s name is Randy.”
She described Randy as a typical man, a mechanic, born in the fifties to a low income family who became a volunteer firefighter. From there, she said, he became committed to public service and became a police officer.
“He loved his community,” she said, “and through his policing work he got to see the dirty underbelly of his community. It wasn’t often pleasant. In the carrying out of his duties as a police officer and seeing people in his community at their worst, he also began to see the worst of his own police department.”
His kidney was badly injured in a drug-related raid, she said, “but the real injury she said, “was to his belief in his own police department and the criminal justice system” because of how those arrested in the incident were not prosecuted because they belonged to prominent families. He left the police department and went to work at a sheriff’s office “where the story repeated itself and he was disillusioned with the integrity of the sheriff’s office.”
After then working for the state patrol and as a private trucker, she said, “the cruel irony, after those years of police service, Randy died at the age of 54 as a result of a rare cancer in that kidney that he was kicked in years ago, when he was serving on the police department.”
“I know this,” she said. “He was my brother and he died in 2008. So tonight while I’m here in this council chamber and I’m listening to skepticism of a former police officer working as the City of Spokane’s ombudsman, I would submit to you that it is not necessarily the case that a former police officer is not capable of being objective and serving in this capacity.”
She finished by praising Burns as had Danek, earlier, when he told the council that Burns had a “stellar record.”
“Please do not consider delaying this any further,” Verner said. “We need to get on with this program, we need to have an ombudsman. Tim Burns is a good one. We have a great opportunity to fill this position with a fine individual with utmost integrity. I think he will do us proud.”
With the exception of McGlaughlin, who said during the meeting she was still considering voting against the resolution because of public testimony, all five of the remaining council members (Al French was absent) endorsed Verner’s position on Burns even though each indicated they would have preferred a more independent office.
Councilman Bob Apple, who’s drawn attention recently for criticizing the city’s attitude in the Otto Zehm case, was frank in disagreeing with public calls to “fix” the ordinance before filling the position. He insisted that even in its watered down form–compared to the Boise ordinance–the Spokane ordinance was an improvement on the existing lack of independent oversight. He particularly pointed to the section of the ordinance [apart from specific incident investigations] where the ombudsman is charged with preparing regular reports on police practices and procedures.
“I would like to see more teeth,” Apple said. “But I’m not willing to give up the program for the lack of teeth. And I will strongly advise the Mayor to negotiate with the guild as the contract comes up this fall to require teeth be there. Certainly, as Ms. McGlaughlin said earlier, it’s a monetary issue. When we make demands on a bargaining unit, they often make demands back worth dollars. There is a trade-off and it depends on how big a demand there is from us for that trade-off. This council can make a requirement that it must be included in the labor contract. We haven’t done that. I hope the Mayor realizes that, to me, it is very critical.”
Shogan spoke last and took square aim at the critics.
“To say the OPO is powerless is simply not correct,” he said. He then repeated his earlier statements that the changes sought were unlawful.
“It’s been twenty years since the idea of an ombudsman has come to this city,” Shogan said. “Twenty years. It’s been three years of hard, intense negotiation to get this far with the police guild. State law has to be involved with this process. To wish the state law was different isn’t going to cut it now. If you want to work for that, go ahead. But it will mean, oh I don’t know, two or three years of maybe getting the state law changed. The perfect is the enemy of the good and, in this place, a perfect ombudsman ain’t going to happen any time soon. It’s not going to happen.”
–Tim Connor