One and Done

After only a year in effect, the City Council votes to repeal the ordinance that gave Spokane’s police ombudsman independent investigative authority.

 

By Kevin Taylor, special to the Center for Justice

The Spokane City Council voted 5-2 on Monday night to repeal the 2010 ordinance that gave Tim Burns, the City’s first police ombudsman, the authority to conduct independent investigations into allegations of police misconduct. Without independence the office was able to only monitor police internal investigations.

Up on the dais Monday, the council was watching the last grains of sand run out on its chance to appeal a July 11 state labor arbitrator’s order to rescind the ordinance. Had the council voted differently, an appeal of the arbitrator’s ruling would have been filed in Superior Court first thing this morning — the last day it could happen.

The repeal completed a swift crumpling of the council’s unanimous passage of the ordinance (C-34760), little more than a year ago, granting the ombudsman greater authority.

 

Two items on the agenda, one to hire outside counsel (Seattle labor lawyer Rachelle Wills) for the appeal and the other to pay the legal bill, were prepped and ready to go.

The council faced a stark, if rhyming, choice on the fate of the 2010 ordinance — appeal or repeal. The arguments shook out thusly:

Appeal, and there would be a chance to win on the merits—that the courts might agree the added ombudsman powers do not affect officer discipline and, thus, are a management prerogative that doesn’t need to be collectively bargained with the police union. Plus, even if the court disagreed, the City could then proceed to the Legislature by demonstrating it had exhausted other avenues.

Repeal, and the council would abide by the arbitrator’s order, save perhaps two years and tens of thousands of dollars in court, and could cut back to the nub of things by negotiating directly with the Spokane Police Guild in recently opened negotiations for a new police union contract.

I’m not pleased we are spending more money on attorneys, but spending $200,000 a year on the ombudsman program without the authority to do a proper job is even worse.–Councilwoman Nancy McLaughlin.

Monday’s vote, coincidentally, fell on the eve of a federal criminal trial into the actions of Spokane Police Officer Karl Thompson during a 2006 baton and Taser encounter with Otto Zehm that left the unarmed janitor in a coma. He died two days later. Zehm’s death was a catalyst for civilian oversight of police in Spokane, and led to the creation of the city’s Office of the Police Ombudsman in 2008.

The council chambers were hardly as full as it has been in the past on this topic, and the citizen testimony was hardly as intense. The issue, after all, has been thrashed out for four years.

Some testimonies were almost cryptic:

“Appeal it,” said Mike Rowles.

“Ditto,” said Buell Hollister, up next.

During council discussion, Steve Corker said it would be difficult to have any meaningful negotiation with the guild while pursuing court action against it. Bob Apple added that even a victory in court would merely give the council another shot to argue before the state Public Employment Relations Commission (PERC), and the length of time in court could mean missing the window to negotiate with the guild on the new contract, which would be in effect four years.

“You can see the timeline,” he said.

Conservative Nancy McLaughlin, however, formed an unlikely alliance with progressive Richard Rush to support appeal.

“I’m not pleased we are spending more money on attorneys,” she said, “but spending $200,000 a year on the ombudsman program,” without the authority to do a proper job is even worse.

“What’s going to get us there quicker?” asked Jon Snyder. “If we negotiate with the Guild and we don’t get what we want, clearly this council is united — we do not want another contract if it does not include increased ombudsman authority. If we don’t get that, we don’t have to approve the contract.”

Council President Joe Shogan ended discussion with his usual, brusque, “Prepare to vote.”

And, whoosh, just like a magician snapping a table cloth away and leaving the dishes and goblets undisturbed, the added ombudsman authority was gone.

First, the vote to appeal: Whisk! The wall-mounted voting scoreboard lit up with a row of five red lights (against) and only McLaughlin and Rush voting in favor.

Next the vote to repeal the 2010 ordinance: Whisk! The scoreboard lit up again, this time five green lights in favor. Again, Rush and McLaughlin voted opposite the majority.

The repeal completed a swift crumpling of the council’s unanimous passage of the ordinance (C-34760), little more than a year ago, granting the ombudsman greater authority. By August 2010, the Spokane Police Guild, which represents rank-and-file officers, filed an unfair labor practice with PERC, as expected, arguing the new ombudsman powers affected.

After that it appears the wheels fell off. At the state labor hearing April 5, the Council and its outside attorney, Spokane labor lawyer Keller Allen, chose to go before an arbitrator instead of the full PERC review. This weakened the council’s carefully crafted arguments that were intended for the full commission.

“If we negotiate with the Guild and we don’t get what we want, clearly this council is united — we do not want another contract if it does not include increased ombudsman authority. If we don’t get that, we don’t have to approve the contract.”–Councilman Jon Snyder.

The run-up to this decision remains both murky and crucial.

Assistant City Attorney Mike Piccolo, who advises the City Council, said after Monday’s meeting, “The City Council would have made that decision [to go to arbitration instead of to the PERC board to defend the unfair labor practice claim.] They were advised on the different legal strategies.”

Councilwoman Amber Waldref said attorney-client privilege prohibited her from saying whether the council accepted the advice of counsel, or directed the action.

Out in the lobby after the vote, Peace and Justice Action League of Spokane director Liz Moore said, “I feel like we’ve been in a little time warp. In October 2009, this body passed a unanimous resolution urging the mayor to accomplish exactly this thing in her bargaining with the guild … it didn’t go anywhere. There is no track record showing negotiating with the guild is a better bet than pursuing the legal remedy through the courts.”

Moore was told that the guild has apparently told Mayor Mary Verner that it will not negotiate ombudsman authority if the City appealed.

“Well then it goes back to the guild and their power. We need to stop their power moves controlling the policies of the City,” Moore said. “It’s really too bad. All the energy that went into that 2010 ordinance … they [City Council] voted for it knowing there would be an appeal.”

Breean Beggs, former lead attorney for Center for Justice, helped craft the framework for the 2010 ordinance based on a 2009 PERC decision that upheld Seattle’s authority to increase police oversight without contract negotiation.

Spokane Police Ombudsman Tim Burns

After the repeal vote, he disagreed with council fears that it would lose on appeal.

“The 2010 ordinance was bulletproof,” Beggs said. It did not fundamentally change any authorities in the 2008 ombudsman ordinance, he added, but made them mandatory instead of optional.

Now the path seems to be negotiating with a union that has so far resisted an independent watchdog. And, Moore added, it comes when the City faces a fourth straight year of multi-million dollar shortfalls in the general fund budget.

“As Nancy (McLaughlin) pointed out it’s not like the City has anything to trade at the bargaining table.”

Taking the issue into the campaigns for mayor and city council may be one way to get leverage, Moore and Beggs say. Already, Mayor Mary Verner has seen some erosion in her base. Last week, Democratic Party activist Tom Keefe announced he would vote for Verner’s opponent, David Condon, because of dissatisfaction over her handling of police oversight issues — mainly stemming from the Zehm death.

“Both times that the world shifted for police oversight came from citizens telling their stories,” Beggs said. He cited a Whitworth student play exploring police misconduct during the early discussions about creating an ombudsman. The play was seen by city leaders and it made an impression.

“Shortly after that, 2008 ombudsman passed. I would say very much connected to that, based on my conversations with elected officials,” Beggs said. “The 2010 ammendment passed when people who had been beaten by police came and told their stories to city council.”

Monday, he added, “Perhaps council forgot some of that.”

— CFJ

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