Thank you to Mary and The Fig Tree crew for writing this beautiful article about our women’s leadership retreats.
See the article here on page 7: http://www.thefigtree.org/april16/Apr16FT.pdf
See the article here on page 7: http://www.thefigtree.org/april16/Apr16FT.pdf
By Julie Schaffer
“Fair Chance Hiring,” also known as “Ban the Box,” is finally getting some much deserved airtime in Spokane. This is welcome news to the 1 in 4 individuals who have a criminal record and who desperately want to tell potential employers why they are the best pick for the job, an opportunity many of them do not get because of the box on the application that asks about criminal history. Research shows that people who check the box rarely move forward in the hiring process, regardless of whether or not they qualify for the job, how long ago their conviction was, what it was for, or what they’ve done since that time. To prevent this arbitrary rejection, and to ensure that employers are not missing out on undiscovered talent, 21 states and over 100 jurisdictions have mandated that employers delay asking about criminal history until later in the hiring process – ideally until after the applicant pool has been narrowed based on qualifications and after face-to-face interviews. Under such policies, employers can still do background checks, they can still ask applicants about their criminal history, and they can still hire the best fit for the job.
Most policies apply to public employers (like City of Spokane’s current policy), but more and more jurisdictions are mandating that private employers comply as well. Why? Because it’s the right thing to do (we used to allow businesses to disqualify people of color and women), it increases public safety by dramatically reducing the chance that someone will commit another crime, reduces reliance on public benefits, increases the tax base and helps the local economy, ensures that employers aren’t missing out on highly qualified employees, reduces costs related to incarceration, reduces racial disparity in hiring (people of color are disproportionately represented in the criminal justice system and therefore suffer more from “the box,” and it allows people who have served their time to return to our community and help us make it thrive.
We are pleased that our city councilmembers are currently exploring whether to require private employers in Spokane to delay background checks until after the initial application stage, something the City has been doing (without incident) for the past year. City Council hosted a Fair Chance Hiring Forum on March 8 to educate themselves and the community more about this issue. Councilmembers Stuckart and Beggs organized the forum, along with Smart Justice Spokane member orgs CFJ, PJALs and I Did the Time. District Court Judge Richard Leland graciously moderated with humor and a genuine interest in how this relates to the cycle of crime he sees every day on the bench. Approximately 100 people showed up (during the Gonzaga WCC championship game!), and it played live on City Cable 5 (Forum Video). A WSU PhD student presented research showing that employment dramatically reduces crime, CFJ presented the common elements of fair chance hiring laws, and formerly incarcerated individuals courageously shared their personal stories of healing, change, education, and then heartbreaking rejection by ‘the box.” The evening ended with a diverse panel of business people who have voluntarily removed the box with great results, the City’s Chief Civil Service Examiner who is implementing the City’s Fair Chance Hiring policy, GSI’s new CEO Todd Mielke, and the leader of I Did the Time Layne Pavey. The discussion was rich and honest, and I believe it demonstrated that there is enough common ground and shared love for this community to create fair hiring in Spokane.
To learn more, visit www.nelp.org/campaign/ensuring-fair-chance-to-work, and watch the Forum Video. And please spread the word and tell council members what you think (their emails are below). Our leaders need to hear that the people in this community support Fair Chance Hiring!
Ben Stuckart – firstname.lastname@example.org
Amber Waldref – email@example.com
Mike Fagan – firstname.lastname@example.org
Candace Mumm – email@example.com
Karen Stratton – firstname.lastname@example.org
Lori Kinnear – email@example.com
Breean Beggs – firstname.lastname@example.org
By Jeffry Finer / Special to The Spokesman-Review
Working downtown, I would see him from time to time walking, loping really – he walked fast and bounced from step to step – but I never so much as said hello. I did not know he was a musician, or that he had mental illness, that he sometimes heard things the rest of us didn’t. I knew he had the longest golden hair of anyone on the Spokane street scene. And he sang quietly to himself. He smiled but did not seem to want attention. He moved along in his own world. He’d be surprised what his name has come to mean. And how often city leaders and media cite his life and death.
For Spokane, his name evokes strong reactions.
Some see Otto’s death on a personal level. He was beloved by his family (mother, sister and cousins were closest). He was respected and liked at work (at the nonprofit Skils’kin, where he was a janitor). Friends said he was careless with generosity and would give you his only coat if he saw you were cold. Everyone knew him to be gentle.
Most of Spokane, of course, knows about his death in 2006 after two days on life support. We watched local media play and replay his videotaped beating and restraint by a half-dozen local police officers. We know about the City Hall cover-up, the federal criminal case and Officer Karl Thompson’s conviction.
For some of us, the “system worked.” For others, the aftermath of Otto’s death was a system failure that ruined a good cop.
If you voted in February 2013 for Proposition 1, and 70 percent of Spokane voters did, you remember Otto as the poster child for passage of a strongly worded demand for an independent police ombudsman. And unless you’ve been living under a rock, you know the office of the ombudsman is in tatters.
Spokane tries to move on.
Officer Thompson has served his time and just this month has been released. The Use of Force Commission met for a year, issued two dozen specific recommendations and dissolved. Some recommendations have taken hold; others, such as changes to Spokane’s “police culture,” have not.
Local civil rights advocates press on – working hard to see that we get the independent ombudsman we overwhelmingly voted for, moving “smart justice” reforms ahead to fix our broken criminal justice system, and pushing the city to hire a new chief of police who is committed to implement the changes our community needs. Other law enforcement issues have come under scrutiny, such as the understaffed jail, its lack of nurses and timely medical services. Just more budget-driven problems facing us and every city and county in America.
Overall? We have yet to heal our relationship with our own peace officers. They have yet to heal their relationship with us.
On the day Officer Thompson was taken into custody, the Friday after the verdict finding him guilty of excessive force and lying in a federal investigation, I sat in the gallery behind Assistant Chief Craig Meidl. He and some four dozen men and women – off-duty police officers sworn to uphold the law – snapped to salute as federal marshals led Officer Thompson away. Otto’s middle-age cousins seated with me were stunned into silence. We looked for help but the court had left and its staff seemed powerless.
In 30 years, I’ve never felt such repressed tension in a courtroom. The marshals, wisely I think, took Thompson away uncuffed and the officers gradually left the courtroom. My apology to the Zehm cousins for the salute brought a cold stare from two officers. At the elevator, another officer blamed the sole reporter present for causing Thompson’s conviction.
It is said that no one should be judged solely by their worst day; and in that sense Officer Thompson’s supporters may have been feeling a conflicted affinity for him. But it remains troubling that the department has failed to account to the public for the embrace by 50 of its officers of a convicted felon. Troubling that there has been no apology and no consequences.
A lot needs doing to restore our faith and trust in our police. Their work requires such trust as surely as we require faithful police. The Center for Justice, where I work with a team of lawyers and community activists, coordinates with citizens, police and local officials to make our city safer and fairer for everyone.
Sometimes the struggle goes on quietly in meetings, or noisily in the media. But a certain spirit of gentleness inspires us at times to keep a memory of Otto Zehm alive. Not only as saber-rattling social change warriors but as neighbors, colleagues, friends and people who remember Otto Zehm.
Health care staff at Boston Medical Center, in the winter of 2010, found themselves faced with a problem that appeared to be propagating itself: patients living in sub-standard housing and suffering from chronic diseases would come in to receive treatment only to afterwards return to the same conditions, such as lack of heat, that initially provoked the issue.
It is evident how this could quickly become a self-perpetuating cycle:
Although regulations in Boston were set up to prevent those suffering from chronic conditions from having utilities turned off, they required paperwork to be filled out by the doctors themselves. Utilizing the resources provided by a medical-legal partnership (MLP), workers at Boston Medical Center were able to ensure that patients were receiving the legal protection they were entitled to under the law. Medical staff, though, found themselves overwhelmed with the paperwork from the massive amounts of individuals in need of a certification to keep their utilities from being turned off. Working as a team, medical and legal professionals were able to encourage regulation changes that lessened the paperwork required to guarantee legal protections for those dealing with certain medical issues. Because of the efforts of this MLP, 10,000 individuals with asthma and 400 with sickle cell are now less likely to need to visit a health care professional as a result of complications from their conditions and the burden on health care providers has been lessened.
Problems similar to those faced by Boston Medical Center occur regularly. Health care and legal professionals employ different perspectives on patient-client issues. Health care professionals concern themselves with the medical side of the problem (e.g. helping the patient recover), whereas legal workers deal with the “justice” side of the issue (e.g. mold in an apartment building in violation of city code). While both are working with aspects of the issue, they have not seen it as one broad issue, or even if they have, they have not been able to find a means to successfully, holistically combat the problem.
The problem facing health care and legal workers is like a puzzle. However, instead of being all together in the same box, the pieces are distributed to different individuals who have no interaction with one another. The lawyer has his or her group of pieces and can assemble a good portion of the puzzle to provide part of a solution, yet the lawyer has no clue as to what the doctor’s portion of the pieces look like and vice-versa. Thus, as much as these individuals may attempt to finish the puzzle and solve the problem, they cannot succeed because they are both lacking critical components. MLPs represent an effort to bring together all of the puzzle pieces.
According to the Journal of Health Care for the Poor and Undeserved: “Medical-legal partnerships (MLPs) seek to eliminate barriers to healthcare and improve the health of vulnerable and underserved populations by integrating legal assistance into the medical setting. These partnerships resolve various legal needs related to health (including medical insurance, Social Security benefits, housing, employment, and family problems) by affording medical patients the benefits and protections of legal services.”
Basically, MLPs represent a partnership of legal and medical professionals. These organizations provide legal aid to patients suffering from chronic diseases. According to the National Center for Medical-Legal Partnership, MLPs have four different avenues through which they further their goal:
Today there are more than 275 MLPs stretched across thirty-eight states in the U.S., the majority existing in suburban areas. They are legal aid, changes to health and legal organizations and modification of regulations. These groups place “lawyers and paralegals alongside health care teams to detect, address and prevent health-harming social conditions for people and communities.” MLPs increase medical professionals’ awareness of the consequences of the legal structure on the individual’s health care while opening up the eyes of lawyers to the potential benefits of addressing problems before they become major issues
There have been several positive results of this partnership between medical and legal professionals. Among other benefits, the National Center for Medical-Legal Partnership noted that individuals suffering from chronic diseases are “admitted to the hospital less frequently,” patients more regularly ingest prescribed medication and health care costs have been reduced for the patient and the health care provider. The results of a study examining the impacts of rural MLPs revealed an over three hundred percent return on investment of the Medical-Legal Partnership of Southern Illinois over the course of three years.
MLPs present a viable solution to very real problems facing individuals today. Ellen Lawton, director of the National Center for Medical-Legal Partnership at George Washington University, summed up the importance of a partnership between legal and health care professionals such as the one that exists in MLPs saying that, “As we focus on how to build healthier communities over the next 50 years, we must remember that health does not exist in a vacuum separate from wealth, from the laws we write, from the systems we create to protect our citizens, or from the injustices that exist in each of these things. We must aim for health and justice in all practices and in all policies, knowing that more often than not, they are the same thing.” In order to tackle this self-perpetuating problem, it must be approached not as two separate problems, one for lawyers and one for health professionals, but rather as one single issue. MLPs represent the partnering of individuals working in separate fields towards the same ends.
Certainly one of our big pushes this year has been to get Proposition 1—the city charter amendment requiring true independence for the City’s Office of Police Ombudsman—implemented.
A vital part of our team on police accountability has been extern and Gonzaga University law student Katherine Freeman-Otte. Katie joined us in June and quickly dove into just about everything we do, from casework to public policy research. But she brings a special interest and passion to her work on police oversight, and gained valuable experience in 2012 when she was intern at the City’s Office of Police Ombudsman (OPO.)
Her passion and her sense of humor come through in this audio interview with CFJ Communications Director Tim Connor that was recorded in mid-November, shortly after the city council voted unanimously to reject a new contract with the Spokane Police Guild. To the extent that the Center played a pivotal role in persuading the council to reject the agreement (because it does not, in our view, comply with Proposition 1), Katie was instrumental in the analysis that informed our advocacy. She also testified before the Spokane City Council on October 7th and garnered praise for how she turned Mayor David Condon’s adage about Spokane as a “city of choice” into a pointed critique of his failure to implement Prop. 1.
And to think it was only a few months ago that she quoted a line from the movie “Wayne’s World” in her successful extern application interview with our Barry Pfundt.
On Proposition 1: “One thing we’ve talked about a lot, and I still can’t wrap my head around it—if the voters passed, and are specifically asking for independent investigative powers, which are the traditional duties of an ombudsman, why won’t the executive office, the mayor, implement that for the citizens of Spokane? It just boggles my mind.”
On what she learned from being detained several years ago by a police officer in Yakima: “At any second they (the police) have the ability to take away your liberty. At any second. To me it was just a realization of how much power that actually is and how it truly impacts an individual’s life.”
On what the role of a police ombudsman should be: “An ombudsman is supposed to be able to go around and investigate non-disciplinary actions on his own and report his findings. If we don’t shed light and allow someone to report on complaints that the citizens have, that bridge between the community and the police, those relationships aren’t ever going to be repaired.”
By Tim Connor
Nine months ago this week, Spokane voters were filling out their ballots on Proposition 1, an initiative advanced by the Spokane city council to amend the city charter.
On the face of it, Prop. 1 is about robust civilian oversight of the police. In its details it re-commissions the Office of Police Ombudsman (OPO) and empowers the office to “independently investigate any matter” necessary to address complaints and concerns about the conduct of Spokane police. Prop. 1 is now formally inscribed as Article 16 of the city charter. This is supposed to matter, given that the charter is, in essence, Spokane’s constitution.
Prop. 1 is also a potent symbol of public frustration. It was a reaction to a police department that had lost public confidence. It was also a rebuke to two successive mayors who’d shown themselves to be unwilling or inept to deliver on their own promises. Voters approved Prop. 1 by nearly 70% last February.
Prop. 1 has been the law of the City for more than 250 days. It’s just not being implemented. Although the Spokane Police Guild has done its part over the past five years to resist the independent investigations that Prop. 1 requires, the Guild’s role in the latest and most serious debacle is less than you might think. Instead, the facts point to a failure of city government that is largely self-inflicted. It’s also becoming clearer, by the day, that the person who owns this fiasco is Mayor David Condon.
Condon successfully seized the issue of police accountability in his fall 2011 campaign against former Mayor Mary Verner. But a close review shows that his actions as mayor have actually undermined the community’s goals for civilian oversight of the police. The best example of this arrived a month ago, when Condon signed off on a new “tentative agreement” (TA) with the Spokane Police Guild that simply omitted independent investigative authority for the Office of Police Ombudsman (OPO). When the mayor publicly released the TA on November 1st he also released a legal opinion that underscored a crucial point. Given the tortured history of Spokane’s effort to gain independent investigative authority for its police ombudsman it was imperative that the mayor negotiate for it with the Guild. The record is now clear that he didn’t.
David Condon wasn’t the first mayor to brazenly ignore public calls for independent police oversight in Spokane. That act belonged to his predecessor, Mary Verner, who joined hands with the Spokane Police Guild in 2008 to cut a very bad deal, one that lives on to this day.
The idea to create a police ombudsman position arose in community discussions in the wake of the Otto Zehm tragedy. The formal impetus was a report provided to the City in April 2007 by Sam Pailca, a well-credentialed consultant. Her recommendations—centered on the creation police ombudsman office—were well-received at City Hall. Pailca interviewed police guild members for her report but didn’t address how to engage the guild leadership in implementing her recommendations.
Whether the City is legally required to negotiate the role and powers of the ombudsman with the Spokane Police Guild is a matter of debate. While the Center for Justice has long argued that the City has the managerial prerogative under state law to put in place a vigorously independent system of civilian oversight if it chooses, the Guild disagrees. Because of the potential effects independent oversight could have on officer discipline, the Guild considers it a “mandatory” subject for collective bargaining, and Spokane’s legal department leans toward the Guild.
Before that issue could even be publicly debated, however, Mayor Verner rendered the argument moot in April 2008. She and her management team met privately with representatives of the Guild and emerged with a deal that waived whatever managerial discretion the City has by statute to enact independent oversight. The “tentative agreement” created an Office of Policeman Ombudsman (OPO). But it did so in a way that completely perverted the meaning of the term “ombudsman.”
Although Pailca’s proposal wouldn’t have given the ombudsman disciplinary authority, it did insert the ombudsman deeply into the SPD’s internal affairs (IA) process. But Verner’s deal with the Guild deleted a key provision from Pailca’s proposal. It removed the ombudsman’s authority to independently investigate and publicly report if the ombudsman wasn’t satisfied with how an internal affairs investigation was handled. Thus, under the 2008 agreement Verner brought to the city council, Spokane’s ombudsman was essentially going to be a ride-along monitor to oversee the police department’s internal investigations. Independent investigative authority was out, and so was any power the OPO might have to publicly explain its objections to specific SPD investigations into citizen complaints. Moreover, the selection process would give the City’s police unions a way to control the candidates who could even be considered for the job.
“I don’t care why it didn’t happen. 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.”–Liz Moore, director of the Peace & Justice Action League of Spokane, November 2, 2013, responding to the disclosure that Mayor Condon chose not to negotiate with the police guild for independent investigative authority for the Office of Police Ombudsman.
Verner’s shackled version of the ombudsman was met with public scorn. It wasn’t just the deep dark questions raised by Otto Zehm’s gruesome death at the hands of police in March 2006. There were other highly-publicized uses of force–including Shonto Pete’s shooting by an off duty officer, a July 4, 2007 protest march in Riverfront Park that resulted in several violent arrests, and later that same month, the botched tasering and suicide of Josh Levy, a 28-year-old man with a history of mental illness–that fueled questions about the attitudes, tactics and integrity of the police.
Questions about the incidents were underscored by the statistics indicating that when it comes to complaints of excessive force against Spokane police, exoneration of the officers by the department’s internal affairs (IA) branch is all but certain. According to SPD statistics, from 2007 to 2011 there were 62 citizen complaints about excessive force by Spokane officers. According to SPD-IA, none of the complaints were valid.
Despite repeated assurances from the city council that the 2008 agreement with the Guild was a temporary measure that would be re-negotiated with the Guild to add independence to the office, the 2008 agreement has survived denunciations, demonstrations, resolutions, and at least one ordinance. It is still being enforced even though it is squarely at odds with the city charter. It is the police guild’s headlock on police oversight in Spokane.
When the agreement Mayor Verner reached with the Guild was solidified with an ordinance in October 2008, Liz Moore, the director of the Peace & Justice Action League of Spokane (PJALS) spoke for many when she termed the situation an “Ombudsfarce.” The public backlash was swift and led to the council adopting a unanimous resolution in 2009, calling upon the mayor to secure independent investigative authority for the ombudsman in a new collective bargaining agreement with the Guild.
The council’s 2009 resolution had zero effect. When the new guild contract emerged in November 2009, the notorious 2008 agreement was absorbed, verbatim, as Article 27 of the 2009-2011 contract. The council approved the contract anyway.
The public backlash was quick and severe. As the Justice Department pursued criminal investigations of Spokane police officers involved in the Otto Zehm death and coverup, PJALS and other citizen organizations, including the Center for Justice, responded by mobilizing public support for a new ordinance to require independent investigations into citizen complaints. Under the weight of public pressure the Spokane city council passed the new ordinance on June 28, 2010, and Mayor Verner signed it the next day.
Three weeks later, the Guild filed a grievance against the City of Spokane, alleging that the new ordinance violated Article 27 of its collective bargaining agreement.
In its legal defense of the 2010 Ombudsman ordinance, the City of Spokane had the choice of defending the ordinance as a matter of law before the state’s Public Employment Relations Commission (PERC), or as a matter of contract interpretation through arbitration. The City chose the latter. It then clearly perplexed the state arbitrator, Michael Beck, when Beck convened a hearing in Spokane on April 5, 2011.
As Beck dryly noted in his July 11, 2011 ruling, “the hearing in this matter took only about one hour and 20 minutes.” The Guild presented an opening statement, presented 16 exhibits, and called the hearing’s only witness. On the other hand, Beck noted, the City offered no exhibits and rested its case “without providing an opening statement or calling any witnesses.”
It was only after the hearing that the City advanced its main argument, which is that it was entitled to managerial discretion under state law and had acted within the scope of those rights. In his ruling, Beck admitted this presented a problem for him. To address the question of whether the City acted within its legal authority was a statutory issue that falls to the jurisdiction of the state’s Public Employment Relations Commission (PERC). It wasn’t an issue that belonged in arbitration.
“In any event,” Beck explained, “the parties have engaged me to resolve their dispute and I shall do so.”
Beck then ruled in the Guild’s favor, overturning the 2010 ordinance, and immediately reinstating the 2008 Verner agreement contained in the 2010-2011 contract.
Under pressure from the Center for Justice and others, the City then turned to PERC to complain that Beck over-stepped his authority, the result was a fiery reply from David Gedrose, the PERC’s Unfair Labor Practices Manager. Gedrose not only rejected the City’s request for PERC intervention, but chastised the City for its conduct. He pointed out that the City was the party that actually certified the matter for arbitration by signaling it would defend it as a contract dispute. Then, after failing even to present a case during the arbitration hearing, Gedrose noted, the City sprung a “surprise statutory defense.”
In his letter to Keller Allen, the outside attorney the City hired to manage its defense, Gedrose wrote: “An employer who adopts such a course of action cannot legitimately cry foul and ask that the arbitration award be nullified based upon circumstances it alone generated.”
Within days after receiving Gedrose’s letter, attacking the City’s competence and good faith, the city council that had voted unanimously to approve the 2010 ordinance empowering ombudsman, now voted 5-2 to repeal it. The council still wanted to deliver independence to the OPO, but it now saw only one realistic path to doing that: by bargaining for it with the Spokane Police Guild as the city entered negotiations for a new collective bargaining agreement.
Among those watching from the wings of this fiasco was David Condon. After getting clobbered by Verner in the August 2011 primary election by a near 2-to-1 margin, Condon’s campaign began to take off when he picked up the issue of police accountability, including Verner’s handling of the Otto Zehm case.
“I agree with you completely that we must have police oversight that has teeth in it,” Condon wrote in an October 31st email to PJALS’s Liz Moore. “Furthermore, I have made this one of the key elements of my campaign for mayor. I think it is unfortunate that our current mayor did not secure this in the last round of negotiations with the police department. When the police ombudsman law was challenged, the City did not even present any evidence.”
At the same time, though, Condon declined to sign a pledge to reject a new labor contract with the Guild unless it included independent investigations for the ombudsman.
“I want to explore all the possible avenues to hold the police accountable,” he explained to Moore, “including a coroner’s jury inquest and the possibility that state law needs to change to bring about the result we desire.”
In short, Condon was indicating he wanted to propose his own plan for police oversight, and not be bound by the ombudsman model that the public and the city council clearly supported. But what also became clear after he became mayor is that Condon was feeling his way on the issue, trying not to get scorched by public opinion.
The collapse of Mary Verner’s popularity because of her indifference to police reform was not lost on any of the City’s elected officials. On February 6, 2012, the city council unanimously adopted a resolution giving its support to an ambitious 13-point plan for police reform. Among the goals was to amend the ombudsman ordinance to “restore independent investigative authority for the OPO.”
Condon quickly follow suit. The very next week he released his own 13-point “immediate police action plan” that included, as one of his goals: “Implement independent investigative authority for civilian oversight of the police.”
One hopeful sign was that both Spokane’s police unions—the Spokane Police Guild representing the rank and file, and the Lieutenants and Captains Association—made a rare public appearance to signal their support for the City’s goals. Still, the Guild’s then-president, Ernie Wuthrich, reminded the City on February 6th that it would have to negotiate for much of what it wanted.
Said Wuthrich: “The guild wants to thank the council members for recognizing that many of the steps presented in your resolution may affect the working conditions of represented employees and would need to be negotiated with the affected unions.”
Condon gave no indication that he didn’t expect to negotiate any of the items on his list with the police guild. But what soon became clear is that he did not share either the council’s approach to oversight, or the council’s sense of urgency.
On August 14, 2012, the mayor announced, out of the blue, that he was not going to retain Tim Burns as the City’s police ombudsman.
“We’re in the process of re-engineering that position,” said Theresa Sanders, the mayor’s top assistant.
There was an immediate backlash, including swift complaints from Rick Eichstaedt, the Center’s executive director, and the city council’s president, Ben Stuckart. In the face of the public criticism the mayor quickly retreated, announcing he would extend Burns’s contract at least to the end of the year.
The bungling of Burns’s contract focused new questions on just where Condon was headed on police oversight. These questions multiplied again when the mayor—in introducing Frank Straub as the new police chief on August 22, 2012—said Straub would lead a process that would result in “deliberations” on a new proposal for police oversight by the spring of 2013.
The City, by this point, was already several months into negotiations with the Spokane Police Guild on a new contract that could lock the City in for at least another two years. So if the new mayor wasn’t even going to start “deliberations” on a police oversight plan until the spring of 2013, it begged the ominous question of just what was on the bargaining table with the Guild now.
This very question came up during a City Hall meeting between Center for Justice staff members and City Attorney Nancy Isserlis on October 8, 2012. Isserlis replied that she didn’t know what was in the City’s bargaining proposal with the Guild and that she would have to check with Erin Jacobson, the assistant city attorney who is Spokane’s lead negotiator in dealings with the Guild. In December 2012 I reported that this October 8, 2012 meeting with Isserlis had not gone “particularly well.” Certainly one reason the meeting went sour was our surprise at hearing the City Attorney say she didn’t know what the City was negotiating with the police guild.
A month later, the Center for Justice returned to City Hall, this time with our allies from PJALS and the Spokane chapter of the League of Women Voters. We held a press conference in the Chase Gallery to release our prescription for a new ombudsman ordinance, specifically to add independent investigations and change the ombudsman selection process.
While the press was still gathered, Mayor Condon arrived to respond directly to what we’d presented.
“This is exactly what I’m talking about,” he eagerly told the reporters. “I think the feedback from the Center for Justice is phenomenal.”
You can view the mayor’s remarks at the end of this broadcast report by KXLY’s Colleen O’Brien.
Among others watching the September 12, 2012 press conference in City Hall was Steve Salvatori. Salvatori was new to the city council in 2012 but, along with councilman Mike Allen, he was eager to move on police oversight. Although Salvatori would take the lead on putting together what became Proposition 1, Allen’s role was also key.
What Allen brought was institutional memory. In late 2007, he had been appointed to serve out the remaining two years of Mary Verner’s council term, after Verner won the 2007 mayoral election. Thus, Allen was on the council in 2008-2009 and he well-remembered the promises from the council that the 2008 “tentative agreement” would only be temporary, that the council would work with the mayor to secure independent investigations for the OPO. Allen still visibly bristles at suggestions to the contrary. As frustrated as anyone by the failure to deliver the long-promised investigative teeth for the City’s police watchdog, Allen joined Salvatori in working closely with the Center’s lawyers to develop a new city charter provision that could be put before Spokane voters.
“I’ve seen the iteration of the ombudsman three different times now. 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.”–Councilman Mike Allen at a November 2012 council meeting.
The pathway to the ballot was a new ordinance, one that the council adopted unanimously last December 17th. One reason this matters, now, is that in the political jostling following the release of the 2013 “tentative agreement” last month there is the suggestion from the Condon team that it’s just not clear that Proposition 1 is about independent investigative authority for the OPO.
Except it is clear.
In the preamble of “whereas” statements leading into Ordinance 34941, the council notes that it has “continuously called” for negotiations with the Guild “in order to provide the police ombudsman with independent investigative authority,” and now finds “independent investigative authority is of such importance to the community that the citizens should be given the opportunity to vote to amend the City Charter to include such provisions.”
To be sure, a second piece was added to Prop. 1 to set up a new citizen commission to work with and oversee the police ombudsman. (This, too, was part of Sam Pailca’s original recommendations back in 2007). But the core of Prop. 1—and the very reason it was necessary—was to secure independent investigative authority for the OPO.
After voters overwhelmingly approved Proposition 1, it became the mayor’s duty to come back to the Spokane City Council with a new labor contract with the Spokane Police Guild that complied with the new city charter requirements. Instead, the mayor and his team returned with a contract that—to borrow the Spokesman-Review’s phrase—“appears dead on arrival.”
Roughly speaking, the “dead on arrival” conclusion is what the Center’s lawyers and interns recognized when we first saw the contract a month ago. As we then reported the new “TA” is strikingly similar to earlier agreements between the City and the Spokane Police Guild. The language in those agreements—now imported into the new TA—is toxic to the major reform of Proposition 1. In simplest terms—and as everyone can see now that the agreement is no longer secret—there is simply nothing in the new pact about the power of the ombudsman to conduct independent investigations as the city charter now requires.
The sum of our analysis is that the tentative agreement is a travesty. —Center for Justice Executive Director Rick Eichstaedt in an October 16 letter to Mayor David Condon and Council President Ben Stuckart.
The Center’s lawyers have some important disagreements with the lawyers representing the police guild. But we do agree on this much: silence in the TA on independent investigations only serves to keep in place the prohibition on independent investigations.
There is also a cynical feature to the TA. The second sentence of the section (Article 27) on “Civilian Oversight” says this:
“The City and the Guild agree that the OPO and the Police Ombudsman Commission as set forth in Article 27 complies with and satisfies all of the requirements of the City Charter in effect on March 1, 2013.”
This is a breath-taking assertion. One of our lawyers joked that it was as though the City and the Guild emerged from behind closed doors after two years to announce that they now agree the sky is green.
Because the mayor signed off on the tentative agreement with the Guild, one of two things must be true.
(a) The mayor believes the new labor agreement allows for independent investigations, or,
(b) The mayor is interpreting Proposition 1 differently than everyone else, except the Guild.
The answer is (b).
The mayor and the Guild have a different understanding of Proposition 1 than the rest of us. Neither believe the new charter amendment invests the Office of Police Ombudsman with authority to conduct independent investigations.
After we first read the TA early last month, I tried to determine which choice the mayor had made.
First, I posed this question, via email:
“Is the mayor confident that the tentative agreement with the Guild allows the Ombudsman to conduct independent investigations of complaints, beyond the role that the Ombudsman plays in the oversight of SPD internal affairs investigations?”
The City’s Communications Director, Brian Coddington, sent me this answer:
“We are comfortable that the tentative agreement gets us to where the community wants. Unfortunately, I can’t comment on any of the specifics.”
Coddington wouldn’t comment on the specifics because the TA was still being withheld from the public, until the Guild members voted to approve it.
Two weeks later, on October 21st, the mayor and the police chief were slated to appear at a morning conference at City Hall. I went and asked the question differently. Could the mayor assure voters that by the time a labor contract was approved and Prop. 1 implemented, the OPO would be able to conduct the independent investigations as Prop. 1 requires?
As I reported, the mayor gave a long answer, but he wouldn’t answer the question. So I asked it again. And he still chose not to answer the question directly. As best I could tell, what he and the chief were saying is that the question of what independent oversight would look like under the new TA and new city charter had yet to be worked out. The chief then announced that he was inviting stakeholders, including the Center for Justice, to participate in a series of meetings to sort it out in the form of a new ordinance.
“Nothing is simple,” the chief said.
The next opportunity to pursue this question was last Friday morning, (November 1st) when the mayor and chief again met with the media, this time to officially release the TA. By then, the Center had obtained a confidential city document indicating Condon’s negotiating team never actually negotiated with the Guild for independent investigations by the ombudsman.
If, as the document suggests, Condon’s team never actually negotiated with the Guild for independent investigations this would be a remarkable twist. So did they, or didn’t they?
That was my next question for Mayor Condon.
“When voters approved Proposition 1 last February,” I asked him, “did you instruct your negotiators to go in and specifically request that the Ombudsman be allowed to conduct independent investigations outside the IA (internal affairs) process?”
Condon spoke, but he didn’t answer my question.
“The issue you’re asking is in Proposition 1, the definition of independence,” he said. “How do we, what is that independence? There is [sic] many latitudes to that, right?”
You can hear my exchanges with the mayor here.
When the press conference was over I headed for the city attorney’s office. Because the TA was now public, I reasoned, I should be able to ask Assistant City Attorney Erin Jacobson, the city’s lead negotiator, the same question. After Prop. 1 passed overwhelmingly, was she instructed to bargain for independent investigative authority for the ombudsman?
Jacobson politely deferred all questions back to Brian Coddington, the mayor’s spokesperson. Here’s part of the subsequent email exchange, with Coddington’s responses in blue.
1) In negotiations with the Spokane Police Guild did the City ever specifically request that the new collective agreement (the TA) include language that allows the Office of Police Ombudsman to conduct independent investigations into citizen complaints?
The City’s negotiations team was directed to negotiate exactly what it did, which provides complete independence in the form of the citizen Commission. The Ombudsman, through the Commission, can now require IA to initiate investigations that might previously not have been initiated and to conduct further investigation on issues that might previously have been closed. The Ombudsman can participate in these investigations and ask unlimited questions.
The negotiations team was also directed to, and did, negotiate only those components of civilian oversight that are mandatory subjects of bargaining. To the extent that the “independent investigations” inquired about refer to issues that are completely separate and apart from officer discipline (such as an audit of all TASER usage for the purpose of recommending procedural or training changes), that authority is also consistent with the TA, but would not need to be explicitly called out in the TA.
2) After Proposition 1 passed in February of 2013, did the Mayor instruct Erin (and other members of the City’s negotiating team) to specifically bargain for independent investigative authority for the Office of Police Ombudsman? In other words, was independent investigative authority for the OPO a clear request/offer to the Guild in negotiations with the Guild following the passage of Proposition 1?
This direction did not change following Prop 1 because it was already on the table in negotiations long before Prop 1 was ever contemplated. Again, “independent investigations” is not defined in Prop 1, and our view is that the TA does provide additional independence that does not exist in the current contract. To the extent that any additional independent investigative authority is needed to satisfy City Council’s vision of Prop 1, it is up to the Council and its working group to include that in the ordinance.
There’s lots going on in these long answers. But when you boil it all down, the answer to question #1 is negative, the City did not at any time negotiate for independent investigative authority for the ombudsman.
The answer to question #2 is also negative, the instructions to Erin Jacobson and other negotiators did not change after voters overwhelmingly approved Proposition 1. Both answers square with what the confidential document provided to the Center had previously indicated—the City’s negotiators never actually proposed to the Guild that the TA include language that would give the Guild’s blessing to independent investigations for the police ombudsman.
Immediately after the Friday press conference I asked Council President Ben Stuckart if he knew whether the mayor had ever instructed his negotiators to bargain for independent investigative authority for the ombudsman.
“I haven’t gotten the answer to that question either,” Stuckart told me.
Stuckart then reminded me that he and councilmember Mike Allen had written to Mayor Condon last May, asking that “one or two” council members be permitted to sit in on negotiating sessions with the police guild. The mayor declined their request.
There are at least a couple messages that need to be carefully unpacked from Brian Coddington’s answers to my questions on November 1st.
First, there’s this: “The City’s negotiations team was directed to negotiate exactly what it did, which provides complete independence in the form of the citizen Commission.”
This is the revisionist version of Proposition 1 that Mayor Condon is now trying to sell Spokane voters—that what voters really wanted is to expand the OPO’s independence by adding the OPO Commission, a five member board that would oversee the work of the OPO and replace the mayor as the final arbiter in any disputes between the OPO and the chief of police about whether SPD internal affairs has adequately investigated a complaint.
Why Condon and his team thought this would fly is hard to figure. As you can hear in the audio strip inserted in this story, the mayor clearly floundered in trying to answer this at his November 1st press conference releasing the new TA.
“How do we, what is that independence?” he asked aloud, clearly flustered. “There is [sic] many latitudes to that, right?
The reality is the city council and voters have been very clear about what independence for the OPO should look like. Moreover, the mayor’s Use of Force Commission squarely addressed the issue when it presented its report to the mayor in February. The commission’s call for investing the OPO “with the authority and discretion to open and conduct independent investigations concerning the operations, actions, or omissions of the SPD” could hardly have been more explicit.
For the record, the mayor and chief accepted the commission’s recommendation by reporting the City is complying with Proposition 1.
In any event, the mayor’s effort to redefine Prop. 1 was shot from the sky right away, not just by the Center for Justice but by Spokane’s newspapers, including a biting editorial in the Spokesman-Review on November 5th, recommending the TA be rejected by the council and pointedly reminding Condon that the community’s patience is wearing thin.
If the decision to distract the public by over-hyping the commission was Condon’s Plan A to defend the new TA, then Plan B was to assert that the long-awaited agreement with the Guild was not the end of a five year process, but something like the beginning of a new one.
Wrote Coddington: “To the extent that any additional independent investigative authority is needed to satisfy City Council’s vision of Prop 1, it is up to the Council and its working group to include that in the ordinance.”
This is an extraordinary statement. What the mayor’s spokesperson is saying is, in effect, ‘if the council has a different idea of what the mayor thinks Prop. 1 means then it’s up to the council to put that in an ordinance to implement Proposition 1.’
Of course, the council had been trying to do just that, days earlier, when the mayor’s team effectively stopped the council in its tracks. The council had unanimously approved a resolution last May that included a draft ordinance for implementing Proposition 1. The only reason the council didn’t move to finalize that ordinance in May is that it was under pressure to stall. The council was waiting for the mayor and the Guild to reach agreement on the long-overdue labor contract. So instead of passing the ordinance as an ordinance, the council passed a non-binding resolution to guide the mayor in his negotiations with the Guild. By mid-September, Salvatori, Allen, and others were out of patience. Salvatori put the ordinance on the council’s agenda for October 7th.
The push-back began almost immediately, with the council hearing that if it voted to approve the ordinance the Guild would file a grievance and withdraw from the new TA.
Coddington’s email confirms what is obvious on the face of the new TA—the council’s resolution about what it wanted was basically ignored. For example, the council was clear it wanted to change the way the ombudsman was selected, to remove the police unions’ heavy hand in the screening process. Yet the selection process laid out in the new TA is identical to that Mary Verner signed off on in the 2008 TA.
Still, the glaring problem was, and is, the gaping chasm on independent investigations. The council was being assured the TA complied with Proposition 1.
No one really could say for sure, and what ensued was an unsightly scramble by city officials to try to save the TA by pulling in the Center for Justice, Spokane lawyer and former CFJ director Breean Beggs, and representatives of the Guild. The hope was to come up with language in a new ordinance that could bridge the chasm between the TA and Proposition 1. It was also the hope, to have at least a draft of what that language would look like to present to the press and public along with the TA.
That didn’t happen, and all the mayor and the police chief had in hand when they met the press on November 1st was the TA.
When I asked about this, the mayor acknowledged he was “disappointed” that he didn’t have a “final draft” of an implementing ordinance but that he was “excited” about the process moving forward to marry the TA with Prop. 1.
“Frankly,” he said later, “my patience is wearing thin, obviously, with the public’s and it’s due time that we continue this process that allows us to get to citizen oversight in a way that is consistent with state law, with Proposition 1 and also an ordinance that is compliant with that.”
When the mayor stepped aside, police chief Frank Straub spoke.
“The Mayor’s frustrated, I’m frustrated, the Guild’s frustrated, the Center for Justice is frustrated, the people are frustrated.”The chief then asked for patience.
“One of the things that we have to do is put out not just a charter amendment but an ordinance that is consistent with Washington state law and brings in the collective opinion of all those parties and ultimately this community. So, to rush to judgment, to rush to create something because it feels good that it’s out there is an error. It’s an error that will eventually get overturned and then we’ll be back to square one, yet again.”
To which he added: “Why don’t we just take our time and get it right?”
Lost in the late October scramble to bridge the chasm between Proposition 1 and the new TA with the Guild was a stark fact that should have surprised no one. The lawyers for the Spokane Police Guild believe they’ve captured the Spokane police ombudsman fair and square, and they’re not about to let him go.
“While I was born in the morning, it wasn’t this morning.”
This is what Guild attorney Chris Vick wrote to the City’s Erin Jacobson in June 2010 after Jacobson shared with Vick the terms of the 2010 Ombudsman ordinance that the city council was then considering. Vick listed numerous items that violated the contract because they were “mandatory” subjects of bargaining, adding, “in any event, the Guild demands to bargain the effects of any change reflected in the proposed ordinance.”
The position of the Guild’s lawyers hasn’t changed in three years. By most accounts the reason Mayor Condon didn’t release a new draft ordinance that might bridge the chasm between the new TA and Proposition 1 is that a Guild lawyer in Seattle had finally gotten wind of what was going on in Spokane, and hit the brakes.
That lawyer appears to be Hillary McClure who works in the Seattle office of Aitchison & Vick, along with aforementioned attorney Chris Vick, a lawyer who’s well known for his work representing police unions in both Spokane and Seattle. (The single witness at the 2011 arbitration hearing on the 2010 ordinance was Chris Vick). McClure did not respond to requests for an interview, but her views are well-expressed in an email she sent to Jacobson on October 31st, the day before mayor Condon released the TA.
In the email to Jacobson, McClure reminds the City that the TA wasn’t some open-ended exercise. To the notion that the language in the TA about the ombudsman selection process, could now be changed in an ordinance implementing Proposition 1, McClure put her foot down.
“The selection committee was purposefully designed in its current form so that the OPO selection committee would be made up of a group of people who would work to find a candidate who could be fair to the involved parties,” she wrote. “I saw an email from the Chief that said ‘no one objects to the Chair of the OPO Commission being the 5th person.’ This is not accurate, it should be clear that the Guild does object.”
McClure also voiced her displeasure with what seemed to be happening in the scrum to try to backfill what the TA had left out.
“As you are aware,” McClure wrote, “our TA included an agreement that ‘All proposals by either the City or the Guild that are not addressed in the below or attached TA’s are withdrawn.’ There are issues raised in the Ordinance that appear to me to fall under the category of proposals that the City had on the table but that were not included in the TA. As a result we are in the difficult position that it feels like as soon as we made the agreement, the City is asking for things that the City had removed from the table to get the TA done.”
McClure re-emphasized that, in the Guild’s view, just because the City chose to leave something out of the TA, doesn’t mean it has the right, going forward, to just slap it into an ordinance. In this, she includes the ombudsman’s investigative authority.
“It was my understanding at the negotiations table that the City believed it was fulfilling the City Charter (the Ordinance, Prop 1, Section 129 and 130) with the terms of the TA,” she wrote. “I have heard that there is an assertion being made that there is some investigative authority that was granted to the OPO that is separate from what was agreed to by the parties. I strongly disagree.”
The way Spokane city government is now organized under the strong mayor system, there is a limit to what the city council can do to achieve the police accountability reforms Spokane voters demand. The council could pass ordinances and, as with Prop. 1, it could enable popular changes to the city charter.
What it could not do is negotiate directly with the Spokane Police Guild. That job belonged solely to the mayor.
There were only two paths by which Mayor Condon and his negotiating team could reconcile the Proposition 1 city charter requirements with the City’s legal and ethical obligations to the Spokane Police Guild.
The first path is obvious. The mayor could have bargained directly with the Guild for the elements of Prop. 1. If, for example, his team agreed with the Guild that the OPO’s functions were a mandatory subject of bargaining, the City could offer financial compensation in exchange for the Guild accepting independent investigative authority for the OPO.
The other route—as the Center for Justice had suggested—was to inform the Guild that the City would seek to recover the managerial rights that Mayor Verner had forfeited in 2008. To the extent the Guild disagrees that the City can unilaterally implement police oversight, then it would have been free to file an unfair labor practices complaint with PERC. Such a legal challenge would at least result in the issue getting adjudicated one way or the other. If PERC and the courts sided with the Guild then the City would have the clear option (and more of a case) to go to the state legislature arguing that Washington labor law was infringing upon the will of the voters in Spokane.
In evaluating the Mayor’s conduct, it’s important to recognize that he chose neither path. He neither negotiated with the Guild, nor did he inform them that he was moving to reserve the City’s managerial rights.
The final piece of Brian Coddington’s November 1st reply (on the mayor’s behalf) that needs to be highlighted is this one:
“The negotiations team was also directed to, and did, negotiate only those components of civilian oversight that are mandatory subjects of bargaining. To the extent that the ‘independent investigations’ inquired about refer to issues that are completely separate and apart from officer discipline (such as an audit of all TASER usage for the purpose of recommending procedural or training changes), that authority is also consistent with the TA, but would not need to be explicitly called out in the TA. (emphasis added.)
What Coddington is saying here is that the mayor actually accepts that the City has managerial rights it can use to empower the ombudsman. Readers will have to decide for themselves whether this answer is honest and credible.
Whether his answer is honest and credible, it is not helpful.
The reason it’s useless is actually found throughout a legal opinion that the mayor shared on the same day he released the TA. The opinion comes for Otto Klein a state labor law expert at the Summit Law Group. Klein’s Oct. 4 memo was used to knock the legs out from beneath the ordinance that Steve Salvatori brought to the council for a vote on October 7.
Klein emphasizes that the City has a duty under state labor law to bargain in good faith with the Guild. In the main, his memo is very pessimistic as to whether the City can escape any duty to bargain with the Guild for significant functions of the ombudsman, most notably independent investigations.
Klein notes, among other things, that the City is not working with a clean slate (or clean hands, for that matter) when it comes to asserting its managerial discretion. The 2011 Beck decision is still there, he notes, and “under generally accepted arbitration law, once an issue has been resolved in arbitration, that resolution is final and binding on the parties, and is a precedent for purposes of their future relations.”
Again, what Beck ruled is that independent investigative authority for the ombudsman is a mandatory subject of bargaining. While the Center for Justice and others continue to question the legitimacy of Beck ruling on a statutory question that should have been resolved by PERC or a court, it’s also true that the 2011 council had a chance to appeal Beck’s decision to superior court, and chose not to. If the Guild challenges a unilateral decision by the City to implement independent investigations by the OPO, Klein warns that PERC might impose an “extraordinary remedy”—meaning unusually heavy sanctions against the city.
“I believe,” writes Klein, “the agency (PERC) will view the City as a pattern (or ‘recidivist’) offender on the issue of civilian oversight, and thus will want to take strong affirmative action to ensure that the City understands its bargaining obligations in this area.”
To be fair to the Salvatori ordinance, independent investigations could only have proceeded with clearance from the city attorney. And to be fair to the council as a whole, the Beck decision and the rebuke from PERC were not lost on them. They voted to repeal the 2010 ordinance and tried to focus the mayor’s attention on bargaining with the Guild.
In short, Klein’s memo says, if you want independent investigations for the ombudsman, then treat it as a mandatory subject of bargaining and negotiate it with the Guild.
Yet, what Coddington reported on November is that the Mayor decided not to negotiate for it, but to silently reserve it as within the City’s managerial discretion. (Indeed, it is so quietly reserved that it is not even listed in Article 3 of the agreement which is where the parties list the City’s management rights under the contract. It’s just not there.) It is so quietly reserved that when Guild lawyer Hillary McClure sensed just a whiff of it in the flurry of discussions last month, she called it out and objected to it in her October 31st email.
The point is, it’s hard to argue with Otto Klein’s memo on this point. The City does have an obligation to bargain in good faith, and it should be obvious to anyone that if the City were to make such a major change as to try to recover its managerial discretion in a new collective bargaining agreement, that this would need to be “explicitly” spelled out, not secured by stealth or omission, as Coddington now suggests it was.
The bottom line is that the new TA with the Guild is worthless in securing the major reform of Prop. 1. The Guild didn’t agree to independent investigations, and the “managerial discretion” supposedly reserved for the City is just the slim fuse for a legal bomb that, as the Klein memo cautions, would likely explode in the City’s face.
This is David Condon’s signature on this fiasco. The man who was able to unseat Mary Verner by criticizing her performance on police reform appears only to have made matters worse, and it’s not clear, now, that the Proposition 1 reforms can ever be put in place.
“I don’t care why it didn’t happen,” PJALS Liz Moore says about the long-awaited labor agreement that omits the heart of Proposition 1. “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.”
With a key vote to implement Proposition 1 only days away, Spokane officials announced this morning that the City administration has reached a “tentative agreement” with the Spokane Police Guild for a new collective bargaining agreement. The two sides have been negotiating a new contract for nearly two years.
The disclosure was made during a very brief “on the record” opening to a meeting called at City Hall by councilman Steve Salvatori. Salvatori is the prime sponsor of Proposition 1 which Spokane voters overwhelmingly approved last winter. Proposition 1 produced new Article 16 to the Spokane City Charter which, effective February 26, 2013, requires the Spokane Office of Police Ombudsman to operate independently of the Spokane Police Department. Salvatori is also the driving force behind the ordinance needed to implement Proposition 1.
That ordinance is scheduled for a public hearing and a vote by the council on Monday, October 7th and, by appearances, it is the scheduled vote on the ordinance that helped spur the Guild and City into their new proposed collective bargaining agreement. The agreement has been signed with the guild leadership, but it will have to be approved by a vote of the Spokane Police Guild before it is made public, and before the city council can be asked to vote to approve it, or reject it.
The problem now is there is a vigorous argument about whether this “tentative agreement” with the Guild even comes close to squaring with what voters said they wanted for independent oversight of the Spokane police when they passed Proposition 1 in February. In the view of the Center for Justice, the new agreement conflicts with the central reform of Proposition 1–the right of the Office of Police Ombudsman (OPO) to conduct independent investigations into complaints lodged with the OPO, and issue reports about those investigations. Up until now, the collective bargaining agreement with the police guild has limited the OPO’s role to a silent partner in the SPD’s internal affairs investigations, a limitation that has been widely criticized by the public and mocked by the city’s news media.
In response to questions presented to him in writing at the meeting this morning, Salvatori released the Center for Justice from a confidentiality agreement he and the Center entered into last week. The agreement involved the confidential exchange of city documents, including the text of Article 27 to the new proposed collective bargaining agreement with the Spokane Police Guild. Article 27 is that part of the collective bargaining agreement that governs civilian oversight of the Spokane Police Department.
While the Center is still bound by its confidentiality agreement not to publish the documents, we can report that the Center’s lawyers reviewed the documents and provided detailed feedback to Salvatori.
The Center’s conclusions, according to Executive Director Rick Eichstaedt, is that Article 27 is in conflict with Proposition 1, especially in how it treats the ombudsman’s investigative powers.
“I think all of us involved in the review for Steve were shocked when we read it,” says Eichstaedt. “Although the City and the Guild say this new agreement complies with Proposition 1, we just don’t see it. Indeed, Article 27 repeats word-for-word language from previous agreements that has been used to prohibit the Office of Police Ombudsman from conducting independent investigations. Nowhere does the Guild explicitly acknowledge that the Office of Police Ombudsman has new powers to conduct its own investigations in response to citizens complaints and to file independent closing reports at the conclusion of those investigations.”
Liz Moore, the Director of Spokane’s Peace & Justice Action League was informed today of the Center’s analysis and reacted with umbrage.
“My god, how long have we been at this?” she asked. “The Use of Force Commission, the City Council, and Spokane voters have spoken clearly over the past five years that we want the Ombudsman to be independent and conduct independent investigations. For the City to now say it’s just going to continue with a process that he himself (Ombudsman Tim Burns) sees as a biased process, violates the will of the voters and now the city charter as well.”
As Eichstaedt notes, part of what’s new to Article 27 of the pact with the Guild is a statement in which the City and the Guild agree that Article 27 complies with Proposition 1. Not only does the Center strongly disagree, but amidst the tight secrecy around the Guild negotiations there are several clear signs of tension and stress. Not only has the City been criticized by the mayor’s Use of Force Commission for the lack of transparency around its negotiations with the Guild, but when Salvatori arrived at the meeting this morning he was clearly shaken by being “chewed out,” as he put it by other city officials.
Among those Salvatori had invited to the meeting (in addition to Eichstaedt, CFJ Attorney Julie Schaffer and CFJ Communications Director and police accountability advocate Tim Connor) were City Assistant Attorney Erin Jacobson, Earl “Marty” Martin, the chair of the Mayor’s Use of Force Commission, attorney and former CFJ executive director Breean Beggs, and Ombudsman Tim Burns. But it was Jacobson who insisted that the bulk of the meeting be “off the record.” Connor then excused himself, saying given his journalistic responsibilities at the Center it would be inappropriate to participate in an off-the-record session with public officials.
The depth of the confidentiality is almost certain to create more problems as the process moves forward. According to several sources, there is now serious consideration being given to deferring a vote on Salvatori’s ordinance so as not to jeopardize the “tentative agreement” with the police guild.
In the past, Ombudsman Tim Burns has been vocal about how council policy decisions affect his job. In recent months, for example, he’s talked openly about his increasing frustration that the long-running negotiations with the police guild have effectively jammed implementation of Proposition 1. But in an interview after today’s meeting, he said he did not plan on testifying on Monday when the council is scheduled to take up Salvatori’s ordinance and its relationship to the new “tentative agreement” with the Guild.
“My intentions are to remain silent at this point,” he said, “because of information given to me confidentially and considering where things are now between the City and the police guild I think I have a moral, ethical and legal duty to remain silent.”
Still, Burns was blunt in adding that he can’t and won’t support an ordinance or a guild agreement that would prevent his office from doing independent investigations.
“It’s clear what the will of the people is,” he said, in reference to Proposition 1. Burns added that he expected that Spokane voters would continue to make clear what they want and that he’s “cautiously optimistic” the Proposition 1 will get implemented as voters intended.
Salvatori acknowledged that the timing of his ordinance-before the City had reached an agreement with the police guild–had created heartburn inside City Hall.
“There is a preference to not have anything potentially rock the boat,” he wrote in response to one of questions, adding that the mayor had not voiced opposition to the actual substance of the ordinance.
I specifically asked Salvatori if we could report that he had sought the Center’s views on whether Article 27 conflicts with Proposition 1.
“Yes I did,” he replied via email. “Not just for advice on whether it conflicts, but also advice on whether that process (as outlined in Article 27) is as good, or perhaps even better for our citizens.”
“I stand by my decision and take full responsibility for reaching out to folks who I have relied on for advice on this topic…I felt and still feel it was the right thing to do.”
This afternoon, I asked the Mayor’s communication’s director, Brian Coddington to respond, on the mayor’s behalf, to a single question: “Is the mayor confident that the tentative agreement with the Guild allows the Ombudsman to conduct independent investigations of complaints, beyond the role that the Ombudsman plays in the oversight of SPD internal affairs investigations?”
To which he replied: “We are comfortable that the tentative agreement gets us to where the community wants. Unfortunately, I can’t comment on specifics (sic) any of the specifics.”
–Tim Connor, for the Center for Justice
It was nearly fifteen years ago that Suellen Pritchard arrived at the Center for Justice in distress. While there’s never really a good time to be in distress, her timing was serendipitous, to say the least.
As Suellen describes in this audio interview with Tim Connor, the new, non-profit law firm had just moved into offices at the Minnesota Building on West First Avenue and was feeling its way toward a mission in the community. There was a lot of ambition and energy, but as CFJ founder Jim Sheehan happily concedes there was no blueprint, as such, for what was about to take shape.
What did take shape has some discernible organs and limbs (e.g. the Spokane Riverkeeper, and government accountability programs) but the signature component is our Community Advocacy program which Suellen helped create in 2005.
As she explains in the interview, the Center’s then-director, Breean Beggs, sought to reconfigure the organization’s work to better respond to the problems and needs of people who were coming through the door seeking help. How?
“My response to that question,” Suellen says, “was ‘I would like to start a social service agency to help people do all the things the Center had initially helped me do when I was a client. They helped me clean up my credit, they helped me get my driver’s license back, they helped me through a very long divorce out of an abusive relationship. They helped me holistically put my life back together. Everything that I needed done with my life they, one-by-one, they gradually did all that. And, in that whole process, I was able to get out of poverty and actually buy my own house in a very good neighborhood, put my family back together. I got my driver’s license back. The Center hired me and I got a very good job. That’s what I wanted this whole program to look like.”
Here are some additional excerpts from the interview:
They say that the (driver re-licensing) program was started before me with another woman out of Coeur d’Alene but I remember distinctly being the guinea pig (laughs) of the driver’s re-licensing program. And, if you know what I mean, it took me literally ten years to pay off my fines, twenty-five dollars a month, at a time. But I did it. I went down there every month, and I never missed a payment.
I think we figured my great-grandmother raised seventeen kids altogether. Plus she was a mid-wife in Syracuse, Kansas, and my grandmother, just to give you an idea of how much resilience she had was blinded by her mother putting her on a coal stove. She was born premie and the year she was born premie, most babies born the year before my grandmother was born, they passed, they lost them because they couldn’t figure out how to keep them warm enough. Well, my great-grandmother wrapped her up in a basket; wrapped her up and put her on the door of the coal stove and it baked her eyes. And she was blinded. When I was in junior high, my mom took my grandmother to Kansas City, to the KU medical center and they did complete cornea transplants on my grandmother. And she was able to read out of the phone book after that. She worked in a nursing home taking care of old people from the time she was twenty-three until she was eighty years old. And she was amazing. I remember we would go see her every time we would go visit and I would hear them yelling, ’Sny-der!’ That was her last name (laughs). And my grandmother would go ‘shh, you stop that hollering.’ But she was so good to them. She was an amazing woman. And my mother, she was very amazing too, and it just kind of trickled down the line. (laughs) You know, we’re very resilient. Stuff happens, on a daily basis you know, but you just keep going.
For some reason I think I have to fix everything. Everything. You know? And people tell me, ‘but Suellen, that’s not your problem.’ But it’s not my nature, to not. To not try. You know, maybe it’s not my problem but if I can fix it, or if I can give somebody an avenue to go down, to help them fix it, then I’m there.
By Tim Connor, for the Center for Justice
If Barry Pfundt and Dr. Darin Neven are making their first strides in a boldly innovative collaboration, it’s not because they travel in the same professional circles.
Pfundt is an attorney. Dr. Neven is an emergency room doctor at Sacred Heart hospital. To explain how their paths have begun to cross it helps to start with the tall, plain-spoken doctor and see, from his vantage point, how the world beats a path to his door, at least when he’s at work.
“A lot of people come to the emergency room who don’t have medical problems,” he says. “They have social problems, or social ills. But they come to the E.R. because it’s open and we can’t turn anyone away.”
Call it a well-intentioned law with unintended consequences. What Dr. Neven and his peers are on the receiving end of is a mandate of the federal Emergency Medical Treatment and Active Labor Act (EMTALA).
The 1986 law requires nearly all hospitals to serve anyone who comes to their emergency rooms in distress. To those who followed the inflamed debate over the Affordable Care Act (a.k.a. “Obamacare”), EMTALA’s mandate came up in a very interesting way. High-profile critics opposed to health care reform insisted the U.S. already has universal access to health care by all citizens—through the emergency rooms of American hospitals.
Notwithstanding the rich argument about whether emergency rooms are really the best way for Americans to enter the health care system, there is a relentless truth that Dr. Neven and his colleagues experience in the real world on a daily basis. Because of the requirement to treat, emergency rooms have become the gateway for all kinds of underlying problems that make people sick.
“You know, they want help,” says Dr. Neven. “And we are very good in America at providing instant medical help if you have a real medical problem. But we’re really not well-equipped at all for the overwhelming social ills of poverty, inadequate housing, and injustice that people are being afflicted with.”
“Honestly,” he adds, “I feel like we need to convert the emergency room, which is really used as this place of refuge, into a place for emergency social services.”
“I’d like to see people get the legal resources they need, when they need them. It’s better to help these people with these problems, because it’s going to cost us more in the long run if we don’t, and it’s the right thing to do.”–Dr. Darin Neven.
Dr. Neven’s diagnosis comes from years of experience on the ramparts of American health care.
Barry Pfundt’s interest in the sort of problems that challenge Dr. Neven comes from just being Barry Pfundt, a fisherman, turned sailor, turned Congressional aide, turned lawyer who never quite turns off his brain.
Always in search of the next big idea, Pfundt’s epiphany as to how lawyers can bring value to community health challenges came a couple years ago, at an Access to Justice conference. He was listening to a Seattle lawyer, Scott Crain as Crain was presenting on his involvement in what is now called the Washington Medical-Legal Partnership. Created as a pilot project in late 2008, the purpose of the partnership is to enlist lawyers and paralegals in removing obstacles to medical care, especially for patients who are economically vulnerable.
“He blew my mind,” Pfundt says about his reaction to Crain’s talk.
A short description can’t really do justice to the medical-legal partnership model. It isn’t just about lawyers cutting through red tape to solve insurance hassles. It’s also about using attorneys to help attack the underlying causes of chronic diseases, like asthma, that are rooted in economic stress and substandard living conditions.
“If a kid is getting sick because he lives in substandard housing, you could give him an inhaler to treat the asthma,” Pfundt explains, “or, you could help move him to a safe house where he isn’t being exposed to mold or other hazards.” Pfundt says that with safe housing, “we are not just treating symptoms, we are eliminating the root cause of the illness. And that’s something a doctor can’t always do.”
Once he absorbed Scott Crain’s presentation, there were lots of reasons for Pfundt to think the approach would be a great fit in Spokane. He kept an eye out for a chance to advance the effort. That opportunity came his way a year ago when the Center hired him to fill an open staff attorney position.
He soon engaged Rick Eichstaedt, the Center’s executive director, in conversations about how the Center could be a leader, partner and catalyst in helping doctors deliver better health care.
“It was really Barry’s enthusiasm that lit the fire in my thinking,” says Eichstaedt.
The result is the Center’s Health & Justice Initiative, which has been underway for months as Pfundt and Eichstaedt have explored potential partnerships and opportunities where the Center can make its contributions.
“We see this as an opportunity to fill in an important gap to address issues of health with our tool, which is the law.” —CFJ Executive Director Rick Eichstaedt.
Through the Center for Justice’s intake system and outreach efforts, a relatively small advocacy organization with a team of lawyers at its core gathers large amounts of information about the problems that afflict poor and disadvantaged people in the Spokane area. On any given day at the Center for Justice, advocates, paralegals, interns, and attorneys approach problem solving on a variety of levels. Litigation grabs headlines. But most of the work is shoe-leather advocacy that leverages the law to negotiate solutions in individual cases or pushes public policy changes that can remove systemic barriers, and thus help whole groups of people.
What Pfundt recognized early on is that the Center’s non-traditional approach to addressing legal problems makes it an ideal platform from which lawyers and advocates could team up with health care providers in medical-legal partnerships such as the one Crain and his peers have created in Seattle.
“For doctors there can be initial barriers but the end result has the potential of being really liberating,” says Pfundt. “Because this goes back to the Hippocratic Oath, the core values of their profession, to prevent disease and heal people – not just treat illness. And so the law becomes another tool for doctors to achieve that goal.”
As Pfundt started digging into the prospects of a medical-legal partnership in Spokane, he found no shortage of exasperating problems to work on. But he also quickly discovered some invaluable allies like Dr. Neven. Another essential players has been the Spokane County Medical Society (SCMS). Lee Taylor is the Society’s Director of Strategic Initiatives and Pfundt found him to be a deeply engaged partner whose thirst for innovation matches his own.
The medical society’s mission is to promote community health and wellness. Part of Taylor’s job is to foster two young SCMS programs—Project Access and Consistent Care Washington—whose purpose is not just to improve access to health but provide better care at lower cost.
“A lot of the people that we’re identifying as frequent users of the hospital system are homeless, they’re very sick, they’re substance abusers, and they have behavioral health issues,” says Taylor. “What we’re trying to do is get them connected to the services that will help them get stabilized in all of those areas.”
One of Pfundt’s and Eichstaedt’s major challenges is explaining to public and private decision-makers how legal advocacy can help with health access and cost challenges. But they didn’t have to explain it to Taylor.
“We know generally that a lot of the folks who are in this population of very complex and vulnerable people have a broad variety of legal challenges,” says Taylor. “We need the expertise that Barry and others can bring from the legal community to try to figure out how to address those challenges in the most expedient way.”
Although medical-legal partnerships can take a variety of forms, the early work funded at CFJ with grant money secured through SCMS was directed, in large part, to resolving legal obstacles to housing for low-income patients. This work, in turn, helped lay the groundwork for a so-called “Hot Spotters Group” that is now underway with seed money provided by Providence Health & Service’s Community Benefit Fund.
“If a kid is getting sick because he lives in substandard housing, you could give him an inhaler to treat the asthma or you could help move him to a safe house where he isn’t being exposed to mold or other hazards. We are not just treating symptoms, we are eliminating the root cause of the illness. And that’s something a doctor can’t always do.”–Attorney Barry Pfundt
The Spokane “Hot Spotters” are modeled and named after a project conceived by a Camden, New Jersey coalition of health care providers. The Group’s purpose is to focus on high risk and low income patients with a history of frequent emergency room visits and higher than average use of medical resources. What makes Hot Spotters different in Spokane is the legal assistance component that Pfundt and the Center bring to the mix. A key facet of Hot Spotters is to efficiently diagnose and coordinate care. This means being able to move reliable information about a patient’s condition and needs across several disciplines. One clear obstacle to this is a 1996 federal law, the Health Insurance Portability and Accountability Act (HIPAA). While many of HIPAA’s provisions exist to protect patient privacy, the law’s privacy provisions can be a major obstacle to coordinating patient care. And that’s where a lawyer can help, not just to ensure the law is followed, but also to guide the way for sharing the necessary information.
The community buy-in on “Hot Spotters” is impressive. In addition to Pfundt, Taylor, and Dr. Neven, the leadership team includes the City’s assistant fire chief, Brian Schaeffer, Joe Beckett the Mental Health Care Coordinator for the Spokane County Regional Support Network, Sarah Bates, who directs operations for both Consistent Care Washington and Project Access, and Sheila Morley, the City of Spokane’s Housing & Human Services Program Coordinator.
For Pfundt, “Hot Spotters” is anything but an abstraction. He’s literally walked alongside the patients “Hot Spotters” identifies to get them to services, court hearings, etc. It’s familiar terrain for him through his work with the Center’s low-income clientele.
Along the way he is developing what he calls “the business case” for how he and other legal and social work specialists can bring value to health care providers at the same time they are improving the circumstances of patients.
One of many examples Pfundt cites is a project initiated a decade ago through the Colorado Coalition for the Homeless. By investing federal grant money in housing services for a hundred chronically homeless people in the Denver area, the coalition was able to document an extraordinary decline in medical costs for those who were no longer homeless. The avoided emergency room savings alone averaged more than $30,000 per person. The way the American health care system works, these are costs that health care providers either have to absorb or pass on to other patients. It wasn’t just avoided emergency room visits. The program also documented a dramatic reduction in publicly funded de-tox and jail costs as well, easing the burden on local taxpayers.
So although “Hotspotters” is a grant funded program, Pfundt’s hope—indeed his and Eichstaedt’s vision for the Center’s Health and Justice Initiative—is that the legal work involved in such projects will, in time, more than pay for itself within the business models of health care providers. Part of the reason he’s optimistic, Pfundt says, is that provisions of the new Affordable Care Act will actually increase incentives for health care providers to invest in systemic solutions to costly public health problems.
Viewed at the community level, the need for new and innovative programs to address community health problems could hardly be clearer. The best evidence for this is the eye-opening “Odds Against Tomorrow” report produced last year by the Spokane Regional Health District under the primary authorship of epidemiologist Adrian Dominguez.
In an introductory letter to “Odds Against Tomorrow,” health district Health Officer Dr. Joel McCullough wrote:
“America’s public debate on ‘health’ has mostly centered on access to and the affordability of health care, even though a large body of evidence tells us that in most cases whether or not a person gets sick has little do with seeing a doctor. A far greater determinant is the relationship between how we live our lives and the economic, social, and physical environments that surround us; some of these certainly we can influence on our own, but many are outside our individual control.”
As he was working amongst his peers at CFJ to develop the rationale for what became the Health & Justice Initiative, Pfundt cited “a stark example” from the pages of “Odds Against Tomorrow”—life expectancy in Spokane’s East Central Neighborhood is eleven years less than it is if you live in the affluent Southgate Neighborhood just a few miles away.
The are, undeniably, a myriad complexities behind such stunning disparities. But what’s clear is that the movement to address community health on a deeper, more innovative level has arrived, and that the Center wants to be a major partner in that effort.
“Right now we’re trying to figure out where is our proper fit and what direction we want to take,” says Eichstaedt, “and Barry has done a good job in laying the groundwork. We’re identifying opportunities and beginning the strategic plan of how we get there working with other partners.”
From his vantage point at the Sacred Heart emergency room, Dr. Neven is delighted to have the help.
“I’d like to see people get the legal resources they need, when they need them,” Dr. Neven says. “It’s better to help these people with these problems, because it’s going to cost us more in the long run if we don’t, and it’s the right thing to do.”
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 posthearing 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, the 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.??January 2012, The 2009-2011 collective bargaining agreement between the City and the Spokane Police Guild expires at the end of 2011. The expired agreement–which contains language that bars the Office of Police Ombudsman from conducting independent investigations–will remain in effect until the two sides reach agreement on a new contract.
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.
May 21, 2012, The Spokane City Council approves a settlement in the federal civil rights case stemming from the death of Otto Zehm at the hands of Spokane police in early 2006. The settlement includes mandatory training for Spokane police officers in how to recognize and respond to persons afflicted with mental illness.
November 1, 2012, Frustrated by the City’s lack of progress in reforming police oversight, the Center for Justice, the Peace & Justice Action League of Spokane, and the Spokane Chapter of the League of Women Voters hold a press event at City Hall to present a new proposed ordinance to the Mayor and the Council.
December 17, 2012, With leadership from new city council members Steve Salvatori and Michael Allen, the Spokane City Council unanimously approve an ordinance calling for a ballot measure that will amend the Spokane City Charter to require a truly independent Office of Police Ombudsman (OPO) and create a new commission to oversee and advance the OPO’s work. The ballot measure gets registered as Proposition 1.
December 21, 2012, The Mayor’s Use of Force Commission delivers its final report to Mayor Condon and releases the report at City Hall. Among its findings and recommendations is a strong call for independence for the Office of Police Ombudsman. The report includes the recommendation that all city employees and those acting on behalf of the city be required to cooperate with the OPO during OPO investigations. The report also chides the City and the Spokane Police Guild for a lack of transparency in labor negotiations that effect the terms of independent oversight of the police department.
May 20, 2013, With Proposition 1 still being held hostage to ongoing contract negotiations between the City and the Spokane Police Guild, the Spokane City Council unanimously passes a resolution containing an advisory ordinance. The purpose of the advisory ordinance–which would implement Proposition 1–is to guide the City’s negotiations with the police guild.
July 3, 2013, With no end in sight to contract negotiations between the City and the Spokane Police Guild, the Center for Justice and the Peace & Justice Action League of Spokane call upon the Mayor to publicly disclose the status of the negotiations and to take proactive steps to protect Proposition 1 in the event the negotiations reach impasse and go to arbitration.
October 4, 2013, Just days after Spokane City Councilman files the May 20, 2013 resolution as an ordinance to go ahead with implementing Proposition 1, City officials quietly announce they’ve reached agreement with the Spokane Police Guild on a new collective bargaining agreement. The news of the new “tentative agreement” coincides with a new push from the Condon Administration to defer consideration of the Salvatori ordinance. A review of the still confidential “tentative agreement” by the Center for Justice quickly results in a scathing critique from the Center’s legal staff. “I think all of us involved in the review were shocked when we read it,” said CFJ Executive Director Rick Eichstaedt. “Although the City and the Guild say this new agreement complies with Proposition 1, we just don’t see it.” When asked if Mayor Condon was confident the new agreement would allow for independent investigations by the Office of Police Ombudsman, the Mayor’s spokesperson, Brian Coddington, responds “we are comfortable that the tentative agreement gets us to where the community wants. Unfortunately, I can’t comment on..any of the specifics.”
October 7, 2013, Rather than deferring Salvatori’s ordinance to implement Proposition 1, the city council instead votes to gut the ordinance and pass only the part of the measure pertaining to the appointment of a new Police Ombudsman Commission. Council President Ben Stuckart announces a new series of hearings that will take place once the “tentative agreement” with the Spokane Police Guild becomes public, to take public comment on whether the agreement and an implementing legislation is consistent with Proposition 1. The “tentative agreement” is finally released on November 1st.
November 9, 2013, The Center for Justice publishes “Erasing Prop.1, How Mayor David Condon is deleting the voice of Spokane voters on police oversight” on its website. The lengthy investigative report discloses, among other things, that the City’s negotiators had not even been instructed to bargain for independent investigative authority in the “tentative agreement” with the Spokane Police Guild.
November 11, 2013, In an unusual step, and with unusual speed, the Spokane City Council suspends its rules at its mid-afternoon briefing and votes unanimously to reject the new “tentative agreement” with the Spokane Police Guild. Explained Council President Ben Stuckart: “Today it became clear to the entire City Council that developing an ordinance based on the language in the negotiated TA would not meet the needs of independent oversight.”