Breaking News

Press Release: Coalition of Conservation Groups, Industry, and Municipal Government Challenge Hatchery Permit for Impacts of PCBs to the Spokane River

For Immediate Release: January 19, 2016

Media Contacts:

Jerry White, Jr, Spokane Riverkeeper (509) 464-7614

Rick Eichstaedt, Center for Justice (509) 464-7607

Mike Petersen, The Lands Council (509) 838-4912

Adrienne Cronebaugh, Kootenai Environmental Alliance (208) 667-9093

Coalition of Conservation Groups, Industry, and Municipal Government Challenge Hatchery Permit for Impacts of PCBs to the Spokane River

Challenge seeks a permit that requires PCB testing and participating in regional PCB task force

SPOKANE, WA–Last week, a coalition of conservation groups consisting of the Spokane Riverkeeper, The Lands Council, the Kootenai Environmental Alliance, and the Lake Spokane Association, along with the Inland Empire Paper Company and the City of Coeur d’Alene filed a challenge to the Washington State Pollution Control Hearings Board of a pollution discharge permit issued by the Washington Department of Ecology for the operation of a fish hatchery on the Little Spokane River.

The appeal raises concerns about the permit’s failure to adequately address impacts of the hatchery to water quality in the Spokane River, particularly impacts from toxic polychlorinated biphenyls (PCBs).  While hatcheries do not produce PCBs, a 2006 report raised concerns about the presence of PCBs in hatchery fish food, its impact on PCB levels in fish tissue, water quality impacts in the hatchery water discharge, and impacts to PCB levels in the Spokane River.

The appeal seeks measures that would require the hatchery to conduct the same type of monitoring and to participate in the Spokane River Regional Toxics Task Force (SRRTTF) in the same manner as other PCB dischargers, including Inland Empire Paper Company and the City of Coeur d’Alene.

“The Department of Ecology and the Environmental Protection Agency requires the cities and industries on the Spokane River to vigorously monitor their discharges for PCBs and to participate in a regional toxics task force,” said Jerry White, Jr., Spokane Riverkeeper.  “We don’t want to shut down the hatchery,” said White. “We just want to make sure that all dischargers follow the same rules.”

“What we are after is parity,” said Mike Petersen, director of The Lands Council.  “The other dischargers are spending a significant amount of money and time monitoring impacts and participating in the Toxics Task Force.  It is not unreasonable to expect that the Fish and Wildlife do the same.”

“Communities on both side of the state are taking the problem of PCBs in the Spokane River seriously,” Adrienne Cronebaugh, director of the Kootenai Environmental Alliance based in Coeur d’Alene, Idaho.  “That means every potential source of PCBs needs to take action to reduce and, if possible, eliminate PCBs.”

Once widely used in everything from electrical insulators to underwater paint, PCBs are now considered a long-lived pollutant associated with increased risk of cancer, reduction of immune function and impairment of the neurological development of fetuses.  The family of chemicals, polychlorinated biphenyls, lasts for years in the environment. PCBs can concentrate in fat, and are passed along through the food chain when one animal eats another.  PCBs are toxic in extremely small quantities.  Current regulations prohibit PCB dischargers in quantities measured in the parts per quadrillion.

The Spokane Hatchery operated by the Washington Department of Fish and Wildlife was built in 1934 and is one of the State’s original hatcheries. It is one of the major Rainbow Trout facilities in the state. The facility also raises German Brown Trout, Eastern Brook Trout, Cutthroat Trout, Tiger Trout, and Kokanee Salmon.

The Pollution Control Hearings Board hears appeals from orders and decisions made by the Department of Ecology. The Board consists of three members, who are appointed by the governor and confirmed by the State Senate for staggered six-year terms.

Are you renting and the wind damaged your home? Know your rights!

Do you rent your home and was it damaged in last night’s windstorm? If so, it is important that you know your rights to have your home repaired.

Under Washington law, your landlord must keep your home weather tight, structurally sound, and generally fit to live in, including maintenance of plumbing, electrical, heating, and appliances. The landlord is responsible for repairing all damage to the home, unless it is caused by the tenant or a tenant’s guest. Generally the home must be kept in a condition equal to or better than it was at the beginning of the tenancy. If your rental home is damaged or poorly maintained, here is what you can do:

  • You MUST notify the landlord and/or manager IN WRITING of all damage to your home. (A phone call is not enough! Keep a copy of the letter or email and when it was sent/delivered. If possible, have someone not in the household witness this.)
  • Do not stop paying rent! (If you withhold rent, you will get evicted from your home, instead of getting it repaired.)
  • After receiving your notice, the landlord must begin taking steps to make repairs as soon as possible:
    o Within 24 hours for heat, hot and cold water, electricity, or hazardous conditions
    o Within 72 hours for refrigerator, range and oven, or plumbing
    o Within 10 days for all other conditions
  • If the landlord does not make repairs in a timely manner you can:
    o Move out after giving written notice (Give written notice to your landlord and move out immediately thereafter. You are entitled to a refund of prepaid rent and should get your deposit back, in accordance with the rules governing deposits.)
    o File a lawsuit using the Residential Landlord Tenant Act or common law doctrine of Warranty of Habitability. (arbitration and mediation are also options)
    o Make repairs yourself or hire someone else to, and then deduct the cost of repairs from your rent. If you choose this option, you must CAREFULLY AND CORRECTLY follow the law. (A link with more information is available below.)
    o Rent Escrow (We do not recommend doing this without the help of an attorney.)
  • (The landlord is generally not responsible for damage to personal property – things like your TV, bike, car, cloths, etc.)
  • The landlord cannot enter your home without your permission and must give you 48 hours advanced notice in writing, except in the case of an emergency or if you landlord has a court order. But, be reasonable, there can be penalties if the landlord or the tenant abuse rules governing right of entry.

More information about repairs and other tenant rights can be found at, under Housing, Tenant’s Rights  The website, maintained by our colleagues at the Northwest Justice Project, also has other “Disaster Recovery & Relief” information for consumers and homeowners.

If you are low-income, you can also call 1-888-201-1014 between 9:15 am and 12:15 am. (Warning, it can be hard to get through but keep trying.) If you’re over 60, you can call 1-888-387-7111.

This information is not intended as legal advice, but merely to share basic information about Washington law.  If you have specific legal questions, please contact an attorney.

Train bridge safety

Half of surveyed oil train bridges are deteriorating, report says

Waterkeeper Alliance surveyed 250 bridges used by trains carrying volatile crude oil; there are more than 100K in the US

The pier on the upriver side of a railroad bridge over the Spokane River in Washington has missing cribwork and fill, according to the report.

A pier of a railroad bridge over the Spokane River in Washington has missing cribwork and fill, according to a report by three environmental groups.
Waterkeeper Alliance  – photo courtesy of Dancing Crow Media

A survey of 250 oil train bridges across America found that almost half showed signs of considerable deterioration, including missing or crumbling concrete, partially washed-away footings, rotted pilings and badly corroded steel beams, according to a report released Tuesday (PDF).

Determining whether the problems found by three environmental groups pose a threat to public safety is almost impossible, however, because the Federal Railroad Administration (FRA) rarely inspects the nation’s estimated 100,000 rail bridges, including some built more than 100 years ago. Instead the agency leaves that responsibility to the railroads, which don’t make their inspection records public.

“Because the federal government has shirked its responsibility to regulate the safety of oil trains and the bridges they cross, we are shining a light on the need for immediate, independent inspections of all rail bridges that carry explosive oil trains,” said Marc Yaggi, the executive director of the Waterkeeper Alliance, one of the groups that produced the report.

The Waterkeeper Alliance, which is dedicated to protecting watersheds around the world, was assisted in the report by two other groups also concerned about oil trains, Riverkeeper and ForestEthics.

The report, “Deadly Crossing: Neglected Bridges and Exploding Oil Trains,” cited Department of Transportation statistics showing that bridge failures caused 58 train accidents from 1982 to 2008.

“The magnitude of the threat of an oil train derailment caused by a failing bridge to the surrounding communities, waterways and drinking water means that, even if rare, an accident could be catastrophic,” the report said.

Ed Greenberg, a spokesman for the Association of American Railroads, who was unable to review the still unreleased report, said rail bridges in use today are capable of safely supporting oil trains, which can be more than a mile in length pulling more than 100 tankers loaded with 3 million gallons of crude oil.

“Railroad bridges are among the safest segments of the nation’s infrastructure,” he said. “Some bridges are painted. Others are not. Some are more weathered than others. But outward appearance does not indicate a bridge’s safety. Inspectors scrutinize a bridge to assess its structural integrity, which is a thoughtful and thorough engineering process, with no relationship to whether the bridge is aesthetically pleasing.”

No bridge collapse appears to have been involved in any of the 10 fiery oil train derailments that have occurred in North America in the past 29 months.

Greenberg noted that the environmental groups’ report involves “observations by noncertified bridge inspectors,” adding that the industry “follows an aggressive 24/7 safety-first process should a bridge inspector or train crew raise a concern about a particular bridge. That structure is immediately taken out of service until a qualified railroad bridge engineer examines the structure to determine its condition.” If a safety problem is confirmed, “a process is in place to get crews to the structure to address the situation.”

But there is no public documentation of this process, so the railroads aren’t accountable to state and local officials. The FRA says Congress hasn’t given it the authorization or resources to independently inspect rail bridges or to force the railroads to be more transparent.

Sarah Feinberg, the head of the FRA, has begun a campaign to get them to be more voluntarily transparent. Her efforts came after Milwaukee officials and U.S. Sen. Tammy Baldwin, D-Wis., tried unsuccessfully to get Canadian Pacific to turn over inspection reports on a 99-year-old steel bridge there, dubbed Old Rusty by locals. Concern was raised by news reports this spring that showed corrosion had eaten away the base of some of the bridge’s support beams.

A rail bridge over the Normanskill, a tributary of the Hudson River in New York.

A rail bridge over Normans Kill, a tributary of the Hudson River in New York, shows extensive cracking and major deterioration of concrete, including large chunks of concrete missing from the bridge’s footings, according to the report.
Waterkeeper Alliance

In September, Feinberg wrote a letter to hundreds of railroads, including Canadian Pacific, imploring them to be more open and cooperative, saying, “When a local leader or elected official asks a railroad about the safety status of a railroad bridge, they deserve a timely and transparent response.”

After receiving the letter, Canadian Pacific agreed to discuss local officials’ technical questions behind closed doors. But the railroad still rejected their requests to see the inspection reports. The FRA looked at the bridge and inspection reports and then declared it safe, without elaborating. By then, the railroad had already announced it would be repairing the bridge, including fortifying some of its corroded steel beams with concrete.

Canadian Pacific did not respond to a request for comment by time of publication.

Last week Feinberg took the additional step of warning the railroads that complaints about rail bridges are pouring into the offices of members of Congress who have then contacted the railroads and “are coming away unconvinced.” If that continues, she warned, “Congress will ask us to step in more aggressively.”

Matthew Lehner, the FRA’s associate administrator for communications, said the agency won’t comment on the Waterkeeper report until it is released. He said an earlier statement by Feinberg summed up her stance on rail bridges. In that statement, she said the FRA “has started re-evaluating the current bridge management program to identity what more can be done with its current, limited resources.”

“We are committed to working with and engaging more local communities, elected officials and the industry to develop a strategy that will raise the bar on rail bridge safety to meet the nation’s current and future transportation needs. The public has put its trust in the FRA to take smart and prudent action to keep them safe, and we will continue working to earn that trust every day.”

The FRA receives complaints about the condition of railroad bridges almost daily, said an FRA official speaking on condition of anonymity in order to comment freely, and in most cases the problems turn out to be cosmetic rather than structural. However, the official said there’s no formal procedure for adjudicating public concerns about rail bridges and no central record kept of complaints.

In January 2014, John Wathen, the “keeper” of Hurricane Creek in Alabama, posted a video of an oil train crossing a 116-year-old wooden bridge in Tuscaloosa. Some of the trestles supporting the oil train, 40 feet above public parks on either side of the Black Warrior River, were resting on posts that were rotted or had makeshift repairs of corrugated pipe and concrete.

The railroad and the FRA insisted the bridge was safe, but a year after Wathen posted his video and began calling attention to the condition of the bridge, the railroad that leases and operates it announced it would do $2.5 million in repairs. It replaced many but not all the rotted pilings. Whether the bridge is safe is unclear because there are no federal engineering standards for rail bridges and even industry standards are silent about the number of defective pilings a rail bridge may have and still be safe.

In their new report, the environmental groups call for a “publicly available national inventory of bridges, a protocol for following up on citizen complaints and concerns and an enforceable set of standards to guide agency action and ensure the safety of railroad bridges.”

The report calls on Congress to “give the FRA the legal and financial tools it requires to run a robust rail bridge safety program.” If Congress fails to act, the report urges the administration to make changes “within the existing system — or outside of it at the state and local level.”

A crack and graffiti grace the north retaining wall of a railroad bridge crossing the Puyallup River, which drains into the Puget Sound in Washington.

A large crack in a retaining wall of a railroad bridge crossing the Puyallup River, which drains into Puget Sound in Washington. The concrete footings in the water also showed signs of erosion, including large gaps, according to the report.
Waterkeepers Alliance

Currently, states and localities are hampered in their dealings with railroads by a system that places most of the regulatory authority over railroads in the hands of the federal government.

That frustration is what led the Waterkeeper Alliance and Riverkeeper to deploy their legion of river, bay and creek “keepers” in kayaks and patrol boats to inspect rail bridges in watersheds across America. Over the summer, 21 “keepers” inspected 250 bridges within the watersheds of rivers like the Columbia, Snake, Hudson, Allegheny and James. They found and documented what they believed to be structural concerns with 114 of the bridges.

Pat Calvert, the “keeper” of the upper James River in Virginia, was one of them. Two years ago, before he knew about the dangers of oil trains, he was focusing instead on the threat of chemical and coal ash spills to the James. But on April 30, 2014, a CSX oil train derailed and set fire to the river a few blocks from his Lynchburg, Virginia, office.

A year and a half later, he still wonders how he missed the risk rising under his nose. He didn’t realize the mile-long oil trains rolling along the riverbank might pose a public safety hazard.

“I didn’t feel so bad when I learned most all emergency planning officials up and down that rail line also did not know [about the risk] and had not been contacted by CSX,” Calvert said. “We were in some ways being duped by the industries that are involved in this.”

Oil trains are a relatively recent phenomenon, arising from the surge in oil produced in North Dakota through hydraulic fracturing. The number of tankers transporting crude, much of it from North Dakota, rose from 9,500 in 2008 to almost 500,000 last year.

Jerry White Jr. is the “keeper” along the Spokane River in eastern Washington. Spokane is a chokepoint in the flow of crude oil from Canada and North Dakota to refineries on the West Coast.

White surveyed two rail bridges across the Spokane River and elevated tracks running over the streets of Spokane. Videographers Rosie Ennis and Joseph Comine documented White’s findings. All three were shocked by what they saw, they said.

“On the city bridges, you’ve got rebar exposed under the concrete,” said White. “On the bridges over the river, you’ve got footings that have actually begun to wash out so that the bridges have begun to settle and crack.”

Comine said he’s angry and frustrated that residents of Spokane aren’t able to independently assess the risk from oil trains because the railroads shroud their operations and maintenance activities in secrecy, including prosecuting trespassers.

“It’s really a case where large industry has crafted law and policy around keeping the community shut out of what’s being transported through it,” he said. “Before, I never even paid attention to trains … But, wow, I really pay attention to them now.”

Breaking: BNSF’s motion to dismiss our Clean Water Act case is DENIED

The coal dust case against BNSF for Clean Water Act Violations that we filed with our allies (The Sierra Club, Puget Soundkeeper, Columbia Riverkeeper,  RE Sources for Sustainable Communities, Natural Resources Defense Council (NRDC), and Friends of the Columbia Gorge) in July has been given the green light by the courts.

coaltrainsliceThe U.S. District Court for the Eastern District of Washington denied a motion to dismiss, allowing the Clean Water Act case to proceed against BNSF Railway Company (BNSF) for coal contamination of U.S. waterways. The Sierra Club, Puget Soundkeeper, Columbia Riverkeeper, Spokane Riverkeeper, RE Sources for Sustainable Communities, Natural Resources Defense Council (NRDC), and Friends of the Columbia Gorge, filed the lawsuit on July 24, 2013, after finding substantial amounts of coal in and along several Washington waterways near BNSF rail lines. A similar case is also pending before the Western District of Washington in Seattle.

According to sworn testimony by BNSF Vice President of Transportation, Gregory Fox, “BNSF estimates that up to 500 pounds of coal dust may be lost from the top of each car.” The company currently sends four uncovered coal trains through the state every day, each with an average of 120 rail cars. Based on the company’s figures, BNSF’s trains lose an estimated 240,000 pounds of coal dust along its route daily.

“This victory is the first step in holding BNSF accountable for their continual pollution of our waterways,” said Cesia Kearns of the Sierra Club. “The court’s decision to move the case forward is a step in the right direction to stop coal—and its toxic associates, lead, arsenic, and mercury—from further poisoning our fish, our water, and our families. We take these threats seriously, and after today’s court decision we hope BNSF finally will too.”

The conservation groups point to BNSF’s long history of violating the Clean Water Act, which plainly states that dumping of any kind into a U.S. waterway without what is known as a National Pollutant Discharge Elimination System (NPDES) permit, is a violation of federal law. Each violation of the Clean Water Act carries a fine of $37,500, and the plaintiffs assert that every rail car that loses coal is considered a unique violation – a hefty number when considering four trains a day, at 120 cars each travel through Washington.

“BNSF should focus on cleaning up its act instead of facing substantial fines for polluting America’s rivers,” said Morgan Wyenn, attorney with NRDC. “We’re committed to holding BNSF accountable for its violations of the Clean Water Act and protecting our waterways from toxic coal dust.”

The implications of the case are monumental, as the Northwest has become ground zero in the fight to stop three proposed coal export terminals in Washington and Oregon. If built, Washington communities like Spokane would see an increase of 42 additional uncovered coal trains per day. Residents already experiencing the results of four uncovered daily coal trains say that they hope that this lawsuit will teach BNSF a lesson in corporate responsibility.

“BNSF’s plans to increase its daily coal train traffic by more than ten times the current amount is a testament to how important it is that they swiftly and responsibly find a solution to their coal pollution problems before further damaging our precious waterways, like the Spokane River,” said Bart Mihailovich, director of Spokane Riverkeeper. “If they want to continue to be in the risky business of shipping coal, they need to assume responsibility for all of the costs that go along with it. Washingtonians are fed up with subsidizing their dangerous operations with the health of our families and communities.”

“We hope that BNSF will start taking their coal dust pollution problem seriously instead of looking for loopholes,” said Brett VandenHeuvel, Executive Director of Columbia Riverkeeper, an organization that works to reduce toxic pollution and protect salmon in the Columbia River. “It’s time to put an end to illegal pollution and work to restore our waterways.”

BNSF is the second largest coal shipper in the nation, shipping coal through 28 states and near countless bodies of water. The original Clean Water suit was filed against BNSF in Washington’s Western District on June 5, 3013.

“This milestone in our case sends a clear message to BNSF and the coal companies that communities along the rail line value clean water and corporate accountability over the profits of big business,” said Crina Hoyer, executive director of RE Sources for Sustainable Communities.


The plaintiffs are represented by the Law Offices of Charles M. Tebbutt, P.C. of Eugene, OR, Andrea Rodgers Harris of Seattle, WA, Jessica Yarnall Loarie of the Sierra Club Law Program, and David Pettit and Morgan Wyenn of the Natural Resources Defense Council.


Are We Clear Yet?

Use of Force Commission emphasizes independent authority for Police Ombudsman.

Use of Force Commission Chairman Earl Martin with commission member Susan Hammond.

Use of Force Commission Chairman Earl Martin with commission member Susan Hammond.

In the midst of a deepening power struggle over civilian oversight of the Spokane Police Department, the Mayor’s Use of Force Commission is emphasizing the importance of independent investigatory authority for the city’s Office of Police Ombudsman. The Commission’s message is contained in an October 15th letter to the Mayor. It was obtained earlier this week via a Center for Justice public records request.

The Center for Justice shared the letter Thursday morning with U.S. Department of Justice officials who are initiating a review of Spokane police issues, including the role of the police Ombudsman.

“This is a welcome note of clarity from the Commission and it really underscores the message that Spokane voters sent earlier this year with Proposition 1,” says Center for Justice Executive Director Rick Eichstaedt. “It also directly disputes the suggestion, advanced by the mayor, that the Office of Police Ombudsman can be credible and effective without being empowered to independently investigate citizen complaints.”

The Commission’s letter flows from its first review of how the City and the Police Department are implementing the more than two dozen recommendations that the Commission presented to the mayor in February. The letter highlights three issues, and two of the three have to do with issues swirling around civilian oversight of the SPD.
Nine months ago, in February, the Commission recommended the City: “Invest the Office of Police Ombudsman with the authority and discretion to open and conduct independent investigations concerning the operations, actions or omissions of the SPD.”

In its October 15th letter, the Commission writes: “The Commission reiterates its position that an empowered and independent Spokane Office of Police Ombudsman would enhance trust between the SPD and the citizens it serves, provide support to conscientious and competent police officers, and improve the operations of the SPD.”

The Commission also used its letter to reiterate its earlier recommendation that the City “bring greater transparency to the City’s negotiations” with the City’s police unions. This relates directly to police oversight because the Spokane Police Guild has thus far succeeded in using closed-door contract negotiations with the City to put restrictions on the power of the OPO.

The powers of the Ombudsman directly relate to the broiling political dispute over whether Mayor Condon has been making a good faith effort to implement Proposition 1, which is now Article 16 of the City Charter. On November 11th, the Spokane City Council took the unusual step of suspending its rules so it could vote, immediately, to reject a new “tentative agreement” the mayor had negotiated with the Spokane Police Guild on a new collective bargaining agreement. In simple terms, the council didn’t accept Mayor Condon’s assertion that the “tentative agreement” complied with the Proposition 1 requirement to empower the OPO with independent investigatory authority.

In retrospect, it’s noteworthy that in his August 21st  response to the Use of Force Commission’s recommendation for independent investigatory authority for the OPO, the Mayor informed the Commission that its recommendation would be implemented via “Proposition 1, as approved by Spokane voters.”

The issue of the Ombudsman’s independence was a primary topic Thursday morning when Eichstaedt and members of the Center’s staff met with representatives of the U.S. Department of Justice’s Office of Community Oriented Policing Services (COPS), and contractors working with COPS. The meeting was at the invitation of the Justice Department which is initiating a review of Spokane police performance in the areas of Use of Force Incidents, Use of Force Investigations, Departmental Culture, and Civilian Oversight.

–Tim Connor for the Center for Justice

Not Buying It

Spokane City Council delivers a reverberating reality check to the mayor on police oversight.

By Tim Connor

In stunning fashion, the Spokane City Council suspended the rules during its afternoon briefing session today so it could unanimously reject a new contract with the Spokane Police Guild.

Council President Ben Stuckart guiding the stunning vote, Monday afternoon, to reject a "tentative agreement" with the Spokane Police Guild.

Council President Ben Stuckart guiding the stunning vote, Monday afternoon, to reject a “tentative agreement” with the Spokane Police Guild.

The move was at least as much a rebuke to Mayor David Condon as it was to the Guild, with whom Condon’s bargaining team has been negotiating for nearly two years. Conversely, it came as a pleasant surprise to citizen organizers and activists who’d planned to come to the council’s evening session Monday  to plead with council members to reject the highly controversial “tentative agreement.”

In a sense, the council beat them to it.

There was no immediate word from the Guild. But Mayor Condon responded shortly before 6 p.m., expressing his disappointment and criticism of the council.

“We had hoped the City Council would embrace the important next step toward independent oversight at a cost the citizens could afford,” Condon said through his spokesman. “We had negotiated an approach that provided independent oversight and allowed us to use the investigative information as part of discipline. Now we start over.”

Condon’s response also illustrates why the council and community groups have become so frustrated with him.

As Liz Moore of the Peace & Justice Action League of Spokane (PJALS) reminded the council this evening, the council and the public have been clear for several years about wanting to empower the City’s Office of Police Ombudsman (OPO) with independent investigative authority. Resistance from the mayor’s office (beginning with Condon’s predecessor, Mary Verner) is what ultimately resulted in the council sending Proposition 1 to the ballot in February, with its main purpose to amend the city charter to require the OPO to perform independent investigations. Prop. 1 passed by nearly 70% of the vote and is now part of the city charter.

As his statement today indicates, Condon has his own interpretation of Proposition 1—and believes it would be acceptable for the OPO to work within the lines and limitations of the SPD’s internal affairs process. When the “tentative agreement” with the Guild became public a couple weeks ago, Spokane voters could see for themselves that the independent investigations they thought they’d secured at the ballot box last February were not included in the agreement the mayor had signed off on. The result was strong political blow-back that seemed to catch Condon by surprise and led to evasive and nearly incomprehensible answers at recent press events.

The gulf between what Condon had delivered with the new “TA” and what Proposition 1 requires fueled a political crisis even before the agreement was made public eleven days ago. Already there were closed door meetings to try to craft an implementing ordinance that could somehow bridge the gap. But it was a bigger gap than the council first realized, and efforts to span it with new ordinance language were reigned in late last week by a lawyer for the Guild, Hillary McClure. McClure’s position is very understandable and is reported in a lengthy, investigative  story we published over the weekend. After having negotiated with the City for 22 months, why would the Guild agree to re-negotiate key elements of the agreement almost as soon as its members had voted to approve it?

When Moore got her three minutes to talk this evening, she reminded the council of its consistent support for independent investigations and ripped Condon and the new agreement for failing to deliver it.

Liz Moore testifying Monday night.

Liz Moore testifying Monday night.

“I want to particularly salute, and appreciate and thank you for asserting the reality of what independent investigations and oversight has to mean in our community and for asserting it even in the face of Mayor Condon’s claim to the media and the community that it could mean lots of different things,” Moore said. “And in spite of those claims you all have asserted the reality that we know which is that independent investigation means independent investigation. It doesn’t mean anything less than that. It doesn’t mean anything different than that.”

The move to suspend the rules this afternoon came after the city council adjourned its regular, Monday afternoon briefing session to go into executive session, something state law allows when labor negotiations are being discussed. The session that was expected to last thirty minutes instead lasted most of an hour.

Shortly after the public session resumed in the council chambers, Stuckart invited Councilman Jon Snyder to offer a motion to reject the tentative agreement.

Most of the council members made brief statements before the vote.

Steve Salvatori, whose leadership brought Proposition 1 to the ballot, said his decision to vote to reject the new agreement was sealed when he learned the Guild was unwilling to give any assurances that they would not bring a legal challenge against an ordinance that tried to bridge differences between the “tentative agreement” and Proposition 1.

That message—that the Guild would not be signing off on anything different than the “tentative agreement”—was apparently delivered with some clarity during the executive session this afternoon.

And that news clearly unsettled Nancy McLaughlin who was laboring not just to understand what had happened, but about how she could address in open session something she’d just learned in a closed session.

On a second try, she said she was “struggling” with how close the Guild and the City were and she posed a question to Assistant City Attorney Erin Jacobson, who was Condon’s lead negotiator.

“There’s a part of me that says maybe we’re jumping the gun by a week, if we’re jumping the gun by a week,” she said. “If we could get a change in a couple of those areas we talked about. Any thoughts?”

Jacobson replied: “So assuming the primary issue you’re talking about is that which councilman Salvatori addressed, which is at the end of this process, if we’re able to deal with additional language issues, will the Guild sign something saying ‘we now approve this ordinance,’ or sign a new tentative agreement or sign a supplemental agreement, or something to that effect? And the answer is no.”

“Additional time will probably give us some more language that we like in a draft ordinance on some of the other issues that we discussed,” Jacobson continued, “but I don’t think there’s any end in which the Guild signs a new agreement.”

The City had originally planned to go out for three public hearings–the first was scheduled for this coming Wednesday night–but those sessions are now canceled because of the death, this afternoon, of the agreement that the public was supposed to be commenting upon.

The last person to speak before the vote was Stuckart, who spoke first to Jacobson. He thanked her for her work, and added: “I don’t believe that you were given the proper direction on what independent investigative authority is.  I think that’s where we’re stuck.”

He added: “I hope what will happen is negotiations will reopen and we don’t just go to arbitration. Because we came so close if we’d just negotiated that step into the TA (tentative agreement). In my opinion, once we vote yes on that TA, we’d be stuck with that for another three to four years. And we’d be playing around the edges and a possible PERC (Public Employment Relations Commission) violation if we passed any ordinance.”

Stuckart later sent out a press statement about the vote. Here is the full text of the mayor’s statement in response to the vote.

All the testimony at the evening session was in support of the council’s rejection of the TA.

But long-time Spokane activist David Brookbank also criticized the council for conducting such an important vote during its afternoon briefing session, instead of during the more visible evening session.

“The point is,” Brookbank said, “we have very few opportunities to look in on how our government actually works.”

Brookbank actually attended the afternoon briefing and noted that McLaughlin had censored herself when she started talking about what had happened during the executive session.

“It reminds people that there is this process that has been mutilated and mishandled and people have been deceived about for a long time,” he said.  “There’s a whole lot of stuff that happens outside the view of the public.”

Brookbank was followed by Ann Murphy, the president of the Spokane chapter of the League of Women Voters. She, too, applauded the council’s vote to reject the “tentative agreement.”

“The League continues to support independent investigatory powers for Spokane’s ombudsman,” Murphy said, in closing.



Condon’s “Travesty”

In a breath-taking revelation, the Mayor’s spokesman confirms the City didn’t even negotiate with the police guild for independent investigations into citizen complaints.

Despite public assurances that he was working to implement the Proposition 1 reforms added to the Spokane city charter nine months ago, Mayor David Condon did not instruct his negotiators to bargain for the central Prop. 1 reform as they worked on a new labor agreement with the Spokane Police Guild. This is the main revelation in a lengthy investigative report by CFJ Communications Director Tim Connor published earlier today.

Spokane Mayor David Condon.

Spokane Mayor David Condon.

The article, entitled “Erasing Prop. 1,” finds that instead of working to implement the will of Spokane voters (who approved Proposition 1 by nearly 70 percent of the vote in a special election last February) the mayor has actually undermined the goal of implementing the charter amendment.

“The Office of Police Ombudsman is supposed to be the public’s watchdog on the police department,” says Connor. “The overwhelming message from voters last winter is that they’d exhausted their patience waiting for the mayor, the city attorney, and the city council to bolster the powers of the office to ensure it could independently investigate citizen complaints. That’s what Prop. 1 is all about. Realistically, the only route to get that done was to bargain for it with the Guild. The mayor just chose not to do that. And the result is the utter chaos that you see now.”

Connor reports that the Center’s lawyers and interns were stunned when CFJ confidentially obtained a copy of the 2013 “tentative agreement” (TA) that Condon had signed with Guild leadership in early October. The new “TA” was substantially the same as the agreement that Condon’s predecessor, Mary Verner, had privately negotiated with the Guild in April 2008, which was converted to city ordinance later that year. Despite the fact that Proposition 1 amended the city charter to get free of the restrictions in the 2008 ordinance, the ordinance is still on the books, and the Office of Police Ombudsman (OPO) is still not authorized to conduct independent investigations into citizen complaints. What the Center’s staff saw in the new agreement is that independent investigative authority for the OPO had simply been omitted.

In an October 16th letter, written two weeks before the City formally released the new proposed contract with the Guild, the Center’s executive director, Rick Eichstaedt, wrote to Condon and City Council President Ben Stuckart strongly objecting to the TA.

“The sum of our analysis,” Eichstaedt wrote, “is that the tentative agreement is a travesty.”
Connor first reported on Condon’s peculiar approach to police oversight a year ago, noting that even though the mayor had issued an “immediate police action plan” that ostensibly included securing investigative authority for the OPO, he didn’t seem to be in a hurry to formalize it, even though the City had been in negotiations with the Spokane Police Guild for several months by that time. Moreover, when CFJ staff members met with City Attorney Nancy Isserlis in October 2012 they were taken aback to learn from Isserlis that she professed not to know what the City was negotiating with the Guild, despite the fact that one of her assistant city attorneys, Erin Jacobson, had been negotiating with the Guild for several months.

Connor’s new report traces the history of the six year struggle to secure independence for the police ombudsman, and explains why the goal has proven so elusive.

“What it boils down to,” says Connor, “is that the mayor is responsible for securing the new charter requirements. That’s his job. His choices were to either bargain with the Guild for independent investigations for the OPO or, in the alternative, to squarely notify the Guild that the City wished to remove the 2008 language from the contract so it could reserve its managerial prerogative under state law to implement what Proposition 1 requires. He chose to do neither.”

“I don’t care why it didn’t happen,” PJALS Liz Moore told Connor when she learned on November 2nd that the mayor chose not to bargain for the independent investigatory authority that Proposition 1 requires. “It’s just unacceptable that it didn’t happen. We needed this result. The mayor didn’t get the job done, and he had twenty two months to do it.”





Justice Night

First Tuesday, 5-6 p.m., 35 W. Main Ave.

Justice Night is the Center for Justice’s monthly effort to reach out to low income people and families who need legal assistance. From 5-6 p.m. in the Community Building lobby (35 W. Main Avenue) we provide an opportunity to visit one-on-one with a volunteer attorney to address a variety of legal issues. Please note we don’t offer assistance on criminal matters at this time.



For the Record

City releases “Tentative Agreement” with the Spokane Police Guild.

By Tim Connor
Spokane Mayor David Condon appeared with Spokane Police Chief Frank Straub this morning to officially release the long-awaited “tentative agreement” (TA) with the Spokane Police Guild. If ratified by the council, the agreement will replace a controversial collective bargaining agreement with the guild that has been in effect since January of 2009 and has, among other things, been used to stifle independent civilian oversight of the Spokane Police Department.

Mayor Condon releasing the TA this morning.

Mayor Condon releasing the TA this morning.

Today’s press event did not add all that much to the public record.  I highly recommend a fine piece of reporting by The Inlander’s Heidi Groover that was posted very early Friday morning.

In short, what Groover’s story explains is that the plan this week was for the City to release the TA (which was approved by the Guild membership late last week) along with an ordinance that filled in some of the gaping holes in the TA with regard to civilian oversight of the police. But those plans had to be shelved for lack of a consensus, and it was clear that among those who objected were representatives of the police guild.

I’m continuing to develop this story with additional document analysis and interviews and will have much more to report over the weekend. You can read Mike Prager’s story in the Spokesman-Review here.

As you’ll eventually see (and hear) one of the questions I pushed at the press conference today is whether, after Spokane voters roundly approved Proposition 1, Mayor David Condon instructed his negotiators to bargain with the Guild for independent investigatory authority for the Office of Police Ombudsman. I think this is a key  question, and perhaps the question that frames this entire fiasco. I now have the answer to that question and I’ll report it in my next story.

As importantly, part of what we’re now learning is that the Mayor’s interpretation of independent oversight is quite different than you might have expected if you’re one of those who voted for Proposition 1 last winter.

In the meantime, here are some new documents to take a look at.

Tentative Agreement

Legal Analysis provided by a city legal consultant on October 3rd.

The latest draft of the working group ordinance (to be clear there is no consensus on this draft)
Also, City Council President Ben Stuckart announced earlier that three public meetings are scheduled to take public comment on the TA and any draft ordinance that becomes available in the meantime.

•Wednesday November 13th, City Council Chambers 6 to 8 p.m.

•Wednesday November 20th at West Central Community Center, 6 to 8 p.m.

•Wednesday December 4 at the Northeast Community Center, 6 to 8 p.m.


Not Mincing Words

In a bitingly direct report, the Spokane Regional Criminal Justice Commission makes a clarion call for reform.

In an extraordinary development for “Smart Justice Spokane” and other advocates for reform, the Spokane Regional Criminal Justice Commission is calling for sweeping changes in its eagerly awaited draft report.  The report was published on the Commission’s website late this afternoon.

Entitled “A Blueprint for Reform,” the 58-page document combines what is, in places, a blistering critique of the county’s court system with a five year timeline for change. The Commission sides with “Smart Justice Spokane” on several key issues, including the need to shift away from incarceration to more effective means of punishment and rehabilitation for offenders.

Commission members (from left) Jim McDevitt, James Murphy, Phillip Wetzel

Commission members (from left) Jim McDevitt, James Murphy, Phillip Wetzel.

“The Commission supports some rather significant changes to current criminal justice operations,” the report notes. “We maintain that a new governance structure must be created to allow for overall management of the criminal justice system in our area. We must recognize that technology must be embraced, and that system-wide performance measures (or ‘report cards’) are needed. Research has repeatedly demonstrated that jail and intensive supervision do not reduce recidivism, and shifting away from an over-reliance on jail and towards community-based alternatives is critical to move us into a 21st century justice model.”

The Commission reserves its harshest system for Spokane County’s district court system and, in the same breath, offers praise for the City of Spokane’s municipal courts.

“It is clear that the Municipal Court, and all city agencies, have been innovative, cooperative and effective,” the draft report found. “This cannot be said about the District Court. All city agencies are vehemently opposed to consolidation with the District Court. The District Court was found to lack cohesion and was unwilling to embrace plainly needed reform, and unconcerned with the costs of jail sentences and detention before trials and probation hearings.”

The members of the Spokane Regional Criminal Justice System are Attorney Phillip “Dutch” Wetzel, retired Superior Court Judge James Murphy, who chairs the commission, and former U.S. Attorney for the Eastern District of Washington James McDevitt. The Commission was appointed last November and, since then, have conducted 37 public meetings, encompassing more than 140 hours to receive testimony.

The Commission will conduct a public meeting on their draft report next Wednesday evening, November 6th, at the Gonzaga University Law School.

Among those acknowledged for their contributions in the report are Smart Justice Spokane and, in particular, CFJ staff attorney Julie Schaffer and her mother, volunteer CFJ lawyer Mary Lou Johnson “who attended nearly every hearing, and who were more than willing to bring their knowledge and experience in to assist this Commission.”

Read the Commission’s Draft Report.

—Tim Connor, for the Center for Justice.