Getting Beyond No

As the Spokane City Council reaches, yet again, to bring independence to police oversight, Breean Beggs sizes up the obstacles and offers some new ideas.


Spokane attorney Breean Beggs

By Tim Connor

Next Monday, December 17th, the Spokane City Council is scheduled to revisit one of the most bitter and intractable issues it faces as the City tries to rebuild public trust in its police: civilian oversight of the Spokane Police Department.

This time, Spokane city council members Steve Salvatori and Mike Allen are co-sponsoring a resolution and ordinance that would allow Spokane voters to amend the City’s charter, declaring as a matter of City policy that the Spokane Office of Police Ombudsman (OPO) should have broad independence from the agency it is supposed to oversee.

That a charter amendment is even being considered is, in itself, a signal of deep frustration over a long-running case of dysfunction within city government. The City created its Office of Police Ombudsman in 2008, but did so only after then-Mayor Mary Verner and her assistants privately pre-negotiated the terms of the ombudsman ordinance with the Spokane Police Guild. A public ombudsman is, by definition, an “impartial and independent” investigator of citizen complaints. But the agreement between the Verner Administration and the guild limited the ombudsman’s role to merely monitoring the SPD’s internal investigations into citizen complaints. It didn’t allow for the ombudsman to independently investigate  such complaints and issue independent reports, either about the ombudsman’s investigation or the SPD’s. The Center for Justice and other citizens organizations have worked, ever since, to lift those restrictions, so the ombudsman can actually do what people rightly expect an ombudsman to do.

We’ve not succeeded. Not yet anyway.

 

“It is a sad state of affairs when a union can control what the citizens desire, or the elected officials who are brought to this table to represent its citizens do not find the will to even back up what its citizens want.”–Spokane City Councilman Mike Allen, at a council meeting in mid-November.

 

After the city council unanimously adopted a reform ordinance to allow independent investigations in 2010, the Spokane Police Guild filed formal complaints. The guild then prevailed in arbitration after the City—for reasons it has never bothered to explain—failed to present an opening statement, present any exhibits, or even call a single witness during the arbitration hearing.

In response to the arbitrator’s ruling, the City attempted an appeal to the board of the state Public Employees Relations commission (PERC) but the appeal was denied when a PERC official pointed out, in blistering detail, that the City had certified the controversy as a contract dispute to gain access to arbitration, but then proceeded to raise only legal issues that were outside the scope of arbitration. Subsequently, the city council voted in October of last year to repeal the ordinance rather than appeal the adverse decision in the state courts. (See the timeline on Spokane’s steps and mis-steps on police accountability at the end of this article.)

Outside the dark cone of attorney-client privilege that cloaks this controversy from public view, no one has had a better vantage point than former CFJ lawyer and executive director Breean Beggs.

With the Salvatori/Allen proposal set for a hearing next week, I thought this would be a good time to sit down with Breean and have him walk through the tortured history of this controversy and look at the choices the City faces now.

As Breean notes in our interview, it would be a mistake to conclude that the City’s failure to attain credible, independent oversight of the police is due to any combination of bad luck, incompetence, or the skill of the lawyers representing the Spokane Police Guild. It’s also failed because those pushing the reforms have had to buck the City’s own lawyers who, as Breean notes, have demonstrated little enthusiasm for independent oversight of the SPD.

Breean talking to reporters about the Otto Zehm settlement last May.

“If the mayor and a unanimous City Council say they want independent investigatory authority in the Ombudsman’s office,” Beggs says, “you would want the lawyers on that project who are going to figure out how to do it. That’s what you want. Not the lawyers that are going to tell you it can’t be done. And thus far I haven’t seen a lot of evidence that the lawyers who really want to make it happen are in the lead on this. Now, it’s difficult to judge from afar and you get two lawyers in a room and you get two opinions, maybe three opinions. So I can’t judge too much. But I have never had the feeling from City Legal that they are trying to make this happen against all obstacles and all odds. And that’s what the citizens really want, is somebody to do that. The only way that’s going to happen is for the mayor and or the council give those marching orders, and until they do we’re probably in the same situation we’ve been in.”

As the controversy has deepened and festered, a central disagreement is whether the City has managerial rights under state labor law to create an independent ombudsman, or whether establishing such an office outside the police department constitutes a “mandatory” subject of bargaining requiring negotiation with the Spokane Police Guild.

Beggs and the Center’s lawyers have long insisted that the City has the right to empower the office to conduct independent investigations, so long as the ombudsman is not directly involved in disciplinary decisions affecting police officers. The City’s lawyers don’t agree and laid out their reasoning in a March 2010 memo to the mayor and council. At the time, City Attorney Howard Delaney and his staff indicated the legal question about the City’s rights was moot because the City voluntarily waived its rights when it entered into agreements with the police guild in 2008 and 2009. In the memo, Delaney et al. wrote that the nearest opportunity to revisit the question would come at the end of 2011, when the collective bargaining agreement with the Spokane Police Guild expired and the two sides would be “free” to revisit the issue.

And that is where we are now.

The 2009-2011 collective bargaining agreement with the guild has expired but continues in effect until the two sides reach agreement on a new contract. The status of those negotiations is cloaked in secrecy and it’s not clear what the City’s bargaining position is and what it is seeking from the guild in the way of police oversight. Neither is it clear what, if anything, the guild is seeking in exchange for agreeing not to oppose investigatory and reporting powers for the ombudsman. Despite our repeated efforts, current City Attorney Nancy Isserlis has thus far declined to say whether she believes the City—absent a contract constraint—is free to invoke its managerial rights to empower an independent ombudsman, or whether the City is required, as a matter of law, to negotiate the issue with the police guild.

The answer to this question may have a direct bearing on how and whether citizens can enforce a charter amendment such as the one Salvatori and Allen are proposing. If an independent police ombudsman is within the City’s managerial rights under state law, then a charter amendment will require the city to establish and empower the office accordingly. On the other hand, if either the law or a pre-existing contract with the guild require the City to collectively bargain the issue, then the charter amendment may be little more than window-dressing and a bitter reminder of how thoroughly the public will has been thwarted.

It’s a complicated issue. But not an abstract one. At issue is whether public policy on this key reform is going to be determined by voters, by the city council, by the city attorney’s office, or by the Spokane Police Guild.

When the subject of whether a charter amendment would be enforceable came up at a city council session on November 19th, Assistant City Attorney Mike Piccolo indicated that the amendment, in his view, would not be binding on either the city’s negotiators or the council itself. That brought an emotional response from Mike Allen, who was obviously frustrated by Piccolo’s answer.

“I’ve seen the iteration of the Ombudsman three different times now,” Allen said. “And every time the citizens are the ones that don’t get represented in this equation. And it’s always a filing of a union grievance, or there are these other things that are going out there. This is the citizens opportunity to weigh in and be heard on this process. It is a sad state of affairs when a union can control what the citizens desire, or the elected officials who are brought to this table to represent its citizens do not find the will to even back up what its citizens want.”

The audio of Allen’s exchange with Piccolo is inserted into the interview with Breean and discussed beginning at 16:30 in the podcast.

Civilian Oversight of the Spokane Police Department, a Chronology

 

August 1992: In response to growing citizen concern about excessive force allegations and other alleged police abuses, the Spokane City Council approves Resolution 92-67, creating a Citizens Review Panel (CRP).

April 1995: In response to an Unfair Labor Practice Complaint filed by the Spokane Police Guild, a state hearing examiner concluded the CRP violated the state’s Public Employee Collective Bargaining law because of the CRP’s direct involvement in officer discipline. Officer discipline is a working condition and thus, by statute, is a mandatory subject for collective bargaining. The CRP was subsequently disbanded, and re-formed as a Citizens Review Commission that did not have the power to recommend officer discipline.

April 2007: City consultant Sam Pailca provides the Mayor and Council her report, Recommendations for Police Oversight, a New and Balanced Approach. The report is favorably received by Mayor Dennis Hession, Police Chief Anne Kirkpatrick and the Spokane City Council. In the report, Pailca recommends doing away with the Citizens Review Commission and replacing it with an office of police ombudsman. As a second step, Pailca recommends adding a Citizens Advisory Board to oversee and provide advice to the ombudsman.

April 2008: Under new Mayor Mary Verner, the City Administration enters into a “Tentative Agreement” with the Spokane Police Guild to replace the Civilian Review Commission with an Office of Police Ombudsman. The agreement defines the terms of what will shortly become the City’s Office of Police Ombudsman ordinance, C-34302). Among other things, the agreement gives the police unions considerable involvement in selecting the ombudsman and restricts the activities of the Ombudsman to reviewing the adequacy of police Internal Affairs investigations of complaints against officers. The agreement does not allow the Ombudsman to independently investigate citizen complaints, nor does it allow for the Ombudsman to file reports about his/her findings regarding citizen complaints. The agreement contains a paragraph (paragraph q) that stipulates: “this agreement shall become a new article within the collective bargaining agreement upon ratification by both signatory parties.” Significantly, the “Tentative Agreement”–while reiterating the Guild’s rights to collective bargaining–is entirely silent on the City’s managerial discretion. By agreement of both parties, the “Tentative Agreement” is added to the collective bargaining agreement with the Guild, as Article 27.

October 2008: The “Tentative Agreement” is presented to the Spokane City Council and results in a City ordinance (C-34302), passed October 6, 2008, that codifies the agreement with the Guild. While public testimony is invited on the ordinance, because its terms have been pre-negotiated with the police guild, the council insists it can vote only up or down on the ordinance. Although the council votes to approve the ordinance, several council members express concerns about its terms and public express their intent to seek changes to it when the collective bargaining agreement with the Police Guild is up for renewal.

October 12, 2009: The state’s Public Employee Relations Commission issues its ruling in Seattle Police Officer’s Guild v. City of Seattle. The case stems from the passage of an amendment to the Seattle municipal code that gives powers to the City’s civilian Office of Police Accountability Review Board to have access to un-redacted police files. The Seattle Guild argued that the release of un-redacted files to the OPARB could conceivably effect employee discipline. Because employee discipline is a working condition, and thus a mandatory subject of bargaining, the Guild argued that the amendment was subject to mandatory bargaining. The City argued that the amendment did not change the role of the OPARB, and that the board was still prohibited from playing any role in officer discipline. A hearing examiner agreed with the Guild, but the PERC overruled the examiner. PERC agreed with the City’s argument that the new amendment regarding OPARB access to un-redacted documents did not change the role of the OPARB, “that OPARB still does not have the ability to discipline employees, and that it remains an entity that is ‘all bark and no bite.’” Moreover: “The [hearing] Examiner’s conclusions that providing the OPARB with un-redacted files will impact the terms and conditions of employment are based upon the union’s speculation of what could occur, not what actually has occurred.”

October 19, 2009: With the City initiating negotiations with the Spokane Police Guild on a new collective bargaining agreement, the Spokane City Council passes Resolution 2009-0079, requesting that “the Mayor and the City administration bargain with the Spokane Police Guild..to grant explicit independent investigatory authority to the Office of the Police Ombudsman.”

November 22, 2009: The Spokesman-Review reports  that the changes requested by the Council in Resolution 2009-0079 were “discussed” but not included in a new, two-year contract with the Spokane Police Guild. Thus, the Ombudsman ordinance passed in 2008 remains unchanged and the Ombudsman office still lacks power to conduct independent investigations.

January 2010: The disclosure that the City did not achieve any of the city council-backed reforms to the Ombudsman office in its new collective bargaining agreement with the Guild only amplifies public demands for a new Ombudsman ordinance. Working with the Center for Justice, the Peace & Justice Action League of Spokane (PJALS) submits a new ordinance that would explicitly grant independent investigative authority, and independent reporting authority to the OPO.

March 5, 2010: In response to the PJALS ordinance, City Attorney Howard Delaney and three assistant city attorneys prepare a memo for the Mayor and the city council. The memo confirms that the 2008 ordinance that tightly restricts the powers of the OPO were negotiated with the city police unions and were carried over into the current collective bargaining agreement with the Guild. As a legal matter, Delaney writes: “The City would have an uphill battle convincing PERC that, while we believed we should negotiate with the Guild on the issue in 2009, we are free to change it by legislative fiat—in direct contravention of the Collective Bargaining Agreement—in 2010.” Later in the memo, he writes: “At a minimum, the parties are bound by that agreement until the end of the contract term in 2011, when the City or the Guild are free to raise the issue again.”

June 28, 2010: The Spokane City Council unanimously passes Ordinance C-34609 to permit the OPO to conduct independent investigations into complaints and to require that the OPO issue independent “closing reports” in response to citizen complaints against Spokane police officers. The Mayor signed the ordinance the next day. While adding authority and responsibilities to the office, the new ordinance retained language that clearly prohibits the Ombudsman from having any involvement in disciplinary decisions affecting Spokane police officers.

August 20, 2010: The Spokane Police Guild files an Unfair Labor Practices complaint against the City with the state’s Public Employment Relations Commission (PERC). The Guild had earlier (July 21st) filed a contract grievance with the City alleging violation of Article 27 of the Guild contract, the contract provision containing the “Tentative Agreement” the City and Guild agreed to in 2008. Although the new ordinance retains the clear prohibition against the Ombudsman playing any role in the SPD disciplinary process, the basis of the Guild’s complaint is that, with the new ordinance, “the City made a unilateral change in its disciplinary procedures” and failed to provide the Guild with an opportunity to “bargain the change, or the effects of the change.”

September 3, 2010: The PERC responds to the Guild complaint by sending the City of Spokane a deferral inquiry, asking whether the City will defend the Guild’s complaint as a legal dispute (i.e. scope of bargaining issue)before the PERC or whether the issue is a contract dispute that is appropriate to defer to an arbitrator.

September 23, 2010: The City provides its answer, and chooses to defend the Guild’s complaint as a contractual dispute. It certifies that the issue is appropriate for arbitration. PERC assigns the controversy to arbitration the following week.

April 5, 2011: Arbitrator Michael Beck conducts the hearing. The parties do not provide him with a stipulated statement of the issue to be determined in the case. The Spokane Police Guild and its attorney, Michael Vick, presented an opening statement, called on witness (Vick himself) and provided 16 exhibits. As Beck noted in his report, “the City rested without providing an opening statement or calling any witnesses.”

June 6, 2011: The City files a post-hearing brief with the arbitrator raising, for the first time, the legal issue of whether the passage of ordinance C-34609 violated RCW 41.56, the state’s Public Employees Collective Bargaining Act. In the brief, the City argues that all of the changes represented in the ordinance are within the City’s managerial discretion to implement without bargaining with the union. It further argues that its managerial discretion to implement such “permissive” the changes is covered by Article 3 of the collective bargaining agreement with the Guild.

June 6, 2011: In its post-hearing brief, the Guild continues to argue that the City has violated the collective bargaining agreement. As arbitrator Michael Beck later reports: “The Union does not specifically address the question of whether these changes constitute mandatory or permissive subjects of bargaining.”

July 11, 2011: Arbitrator Michael Beck issues his opinion in favor of the Spokane Police Guild. His decision comes with an important disclaimer: “The problem with PERC’s deferral [to arbitration] in this case is that whether or not the Employer’s conduct is protected or prohibited by the Collective Bargaining Agreement depends upon whether or not the changes here can be considered mandatory subjects of bargaining or permissive subjects of bargaining. This determination is appropriately one that should be made by PERC pursuant to the resolution of the complaint filed in this matter charging an unfair labor practice by the City of Spokane.” Nevertheless, Beck writes that he will render a judgment because the parties “have engaged me to resolve their dispute.” He rules for the Guild, finding, among other things: “While it is true that OPO does not get to make disciplinary decision (sic), the changes made by the ordinance make it so that OPO can put substantial pressure on the chief of police and/or the mayor due to its expanded role in the investigatory process and the expansion of its right to communicate with the public.”

August 22, 2011: In the face of overwhelming public testimony to appeal Beck’s decision, the Spokane City Council votes to appeal the decision to the PERC.

September 1, 2011: PERC’s Unfair Labor Practice Manager, David Gedrose, promptly denies the City’s appeal. In a ten page letter he sharply criticizes the City for misleading PERC when City requested arbitration of the dispute with the Guild. The City, Gedrose writes, “did not raise its newly adopted statutory defense until after the arbitration hearing was over, and so offered the Arbitrator no evidence to consider, only argument. The Employer’s defense, raised for the first time after April 5, 2011, asserted that rather than a contractual issue, the issue was statutory under Chapter 41.56 RCW, and that Article 18 of the contract protected the Employer’s conduct. Had the Employer’s answer to the unfair labor practice complaint stated that the issue was whether the Ordinance violated Chapter 41.56 RCW, then case would not have been deferred to arbitration.”

October 10, 2011: Faced with the choice between appealing the arbitrator’s decision to Superior Court, or repealing the 2010 ordinance, the Spokane City Council votes 5-2 to repeal the ordinance. With the vote, the council reverts to the October 6, 2008 Ombudsman ordinance, thereby stripping the office of the investigative and reporting authority added by the 2010 ordinance.

December 31, 2011: The 2009-2011 collective bargaining agreement between the City and the Spokane Police Guild expires.

January/February 2012: With the election of a new mayor and city council, both the mayor and council issue statements declaring that a top priority is to restore independent investigative and reporting authority for the OPO.

November 1, 2012: Frustrated by the Mayor and council’s inaction since February, the Center for Justice, Peace & Justice Action League of Spokane, and the Spokane Chapter of the League of Women Voters, hold a City Hall press conference to deliver a proposed new ordinance. The proposed ordinance would add independent investigative and reporting authority to the OPO, create a citizen commission to oversee and advise the OPO, and change the selection process for the ombudsman.

November/December 2012: City council members Steve Salvatori and Mike Allen sponsor a proposed resolution and ordinance that would allow Spokane citizens to vote on a City charter amendment that would require an independent police ombudsman and create a new citizen commission to work with the ombudsman.

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