The Empty Boxes

When it comes to police accountability in Spokane, the devils still live in the details.

By Tim Connor

Just to be fair about this, last Friday’s press conference with Mayor David and Police Chief Frank Straub was not the weirdest City Hall press conference ever. To win that prize, it would have had to surpass the surreality of Mary Verner’s September 2011 event where, instead of actually allowing the press to ask questions, then-Mayor Verner handed out a list of “frequently asked questions” with carefully prepared answers to them. That one kind of felt like a visit to the Vatican, only with a lady Pope.

Mayor Condon with Police Chief Frank Straub at the February 15th press conference at City Hall.

Mayor Condon with Police Chief Frank Straub at the February 15th press conference at City Hall.

Part of what was strange last Friday is that between the Mayor and the Chief they tried to cover way too much. Condon, understandably, wanted to talk up the progress the City was making on police reforms recommended by the Mayor’s Use of Force Commission, police ombudsman Tim Burns, and the Mayor’s own advisory team. Yet, by far, the big news of the day was the announcement that the federal Justice Department would be conducting a cooperative but very intense independent investigation of the SPD, an inquiry that arose from Mayor Verner’s request in late 2011 for a “pattern or practice” investigation by the Justice Department’s Civil Rights Division. But that announcement was put on ice while the Mayor went through his check list. In journalism we call this “burying the lead.”

And still, there was something conspicuous missing from Condon’s progress presentation.

The Mayor was trying to communicate that he heartily endorsed and was working toward implementing all of the Use of Force Commission’s recommendations, to date. Yet the chart he was directing our attention to said something a bit different. The chart had two columns. One listing each of the Commission’s draft recommendations, and one listing “Action.”

All of the 26 recommendations indicated completion or in progress except for item 21, which is actually two recommendations. They are:

A) All City employees and those acting on behalf of the City should be required to cooperate fully and truthfully with the Office of the Police Ombudsman. and,

B) Subject to legal privilege, the Office of the Police Ombudsman should be given full, unrestricted, and complete access to any and all City information, files, evidence, or other material which the Ombudsman deems necessary to the performance of his/her duties.

The action box next to these recommendations was simply empty.

Why? asked the Spokesman-Review’s gifted police reporter Tom Clouse.

To which Condon replied: “Well the issue there is, um, the public has told us what that’s going to be. Now, the implementation, the legal issues there, we are now vigorously looking at that, but, I mean, I sure as heck wasn’t comfortable with saying ‘completed.’ So, uh, mission not complete there but I think the direction is there, at the charter level it’s there, but now it’s the implementation, the policy.”

Clouse, who’s nothing if not persistent, followed up, to note that with other items being worked on, the work in progress was noted in the “action” box.

The Mayor, who’s as quick-witted as they come, shot back:

“Right. Anybody got a pen?” And with that everybody in the room had a good laugh.

“Isn’t it blank because it has to be negotiated with the (police) guild?” I asked, as the laughter subsided.

“Yes,” interjected Police Chief Frank Straub. “In part. We also have to write the ordinance that goes with the charter amendment.”

What Straub was acknowledging is that Proposition 1 had passed three days earlier, amending the City Charter to make independence for the police ombudsman a mandatory requirement of city policy. But the details of that have yet to be flushed out in an implementing ordinance.

Yet, the full answer is a bit more complicated. The reason the items—and especially item A—have to be negotiated with the police guild is that, under Washington law, requiring police officers to cooperate with an external investigator is a change in working conditions. Thus, it’s a mandatory subject of bargaining with the police unions.

 

Our approach on empowering Spokane’s police ombudsman has been to take it one step at a time. Given the bitter resistance we’ve faced over the years from the city attorneys’ office, the Mayor’s office, and the city council (especially under former Council President Joe Shogan), the first goal was to do what Prop. 1 does: give the police ombudsman independence from the police department. But what happened, of course, is that the Mayor’s Use of Force Commission didn’t concern itself with incremental reforms. To its credit, the commission threw its long pass into the end zone, so to speak.I wouldn’t be writing this postscript to last Friday’s dramatic press event, except that this is a detail that really matters. The credibility of the police ombudsman office hangs in the balance.

Now I need to step back and address the politics and the law.

For what I hope are understandable reasons, the Center has not tried to advance police oversight reforms to the Mayor or council that, as a matter of law, would require mandatory negotiations with the police guild. Tactically, we decided in 2008 that to do so would allow our opponents inside City Hall to reject, out of hand, our proposed reforms. Instead, we have tried with our allies to advance ideas (like Prop. 1 and the ordinance that we proposed last November) that the City can implement unilaterally under the managerial discretion it enjoys under state labor law.

Our approach is one step at a time. Given the bitter resistance we’ve faced over the years from the city attorneys’ office, the Mayor’s office, and the city council (especially under former Council President Joe Shogan), the first goal was to do what Prop. 1 does: give the police ombudsman independence from the police department.

But what happened, of course, is that the Mayor’s Use of Force Commission didn’t concern itself with incremental reforms. To its credit, the commission threw its long pass into the end zone, so to speak.

Along the way, the commission clearly borrowed a page from Boise, Idaho, where police ombudsman Pierce Murphy has long been empowered to conduct independent interviews with anybody in city government whom he feels a need to talk to in order to complete his investigations. It is a condition of employment in Boise that if the police ombudsman wants to interview you, you consent to the interview or risk losing your job. The Spokane Use of Force Commission studied the Boise model and invited Murphy to testify at its June 7, 2012 meeting.

In short, what happened is the Use of Force Commission—as part of its remarkable and distinguished work—flew right over the Center for Justice and our allies. Why? Because they could. The commission was told to make recommendations irrespective of costs and politics. And that’s what it did.

Of course, we agree with the Commission. I don’t know how many times I’ve been taken aside by citizens working with us who’ve reminded me about how important it is to get this piece—the reform where the ombudsman can wield either subpoena power, or the equivalent of subpoena power (e.g. the language of the Boise ordinance). Their point is that the ombudsman needs this power to in order to conduct credible investigations. To which we say, you bet.

The question has been how best to get there from here. Under state law, there’s no question that such a requirement will have to be bargained for with the police unions. It’s what is known as a “mandatory subject of (collective) bargaining.”  The police guild is within its rights to ask for wage or other compensation in exchange for its member officers agreeing to cooperate in a new layer of police oversight. That’s just the reality of Washington state labor law. (It’s not the case in Idaho).

So, it will be interesting to see how this turns out and what, if anything the public will know about it.

In its draft report, the Use of Force Commission came down surprisingly hard on the lack of “transparency” in the City’s negotiations with its police unions, citing it as a reason the public perceives that the unions “are having a negative influence on the department’s operations, its reputation, and its credibility within the community.”

“At a minimum,” the commission recommended, “the Commission encourages City representatives to meet with the community to vet important issues that will be part of any negotiations prior to the commencement of collective bargaining and to hold public sessions after the negotiations to directly engage with the community regarding outcomes.”

And then this: “Related to this recommendation, the Commission believes that neither collective bargaining unit (the Spokane Police Guild and the police Lieutenant and Captains Association) should use the bargaining process to extract additional compensation when confronted with the need to make work place condition changes that do not materially change their members’ job responsibilities.”

Hard to argue against that. But here’s where we are, nonetheless: In this critical window of opportunity for police reform, the City and the Spokane Police Guild have been in negotiations for well over a year now on a new contract. And, as the Mayor said at his press conference on Friday, he can’t even say whether or not the commission’s recommendations regarding the specific investigative powers of the ombudsman are on the table.

Ultimately, it comes down to this: Will the Mayor bring the council a new contract with the guild that includes all the Use of Force Commissions recommendations on police oversight? And, if he doesn’t, will the city council approve it anyway?

Time will tell.

Tim Connor’s commentaries don’t necessarily reflect the views of the Center for Justice.

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