The Spokane City Council approved significant changes to four proposed ordinances Monday (11/24) as it sought to avoid possible Constitutional challenges to new measures primarily intended to crack down on aggressive panhandling in the city’s central business district. A fifth proposed ordinance was dropped altogether.

Bonne Beavers, the Center for Justice attorney who led CFJ’s discussions with the council and its staff, said that while she still has some concerns about how the new ordinances will now be enforced, “overall, it’s a big improvement.” Beavers’s 11/19 letter to the city can be read here.

Assistant City Attorney Mike Piccolo, who serves as the council’s primary legal adviser, said the changes to the proposed ordinances were crafted after hearing public testimony at last Monday’s council meeting and after reviewing a subsequent round of “input” from Beavers, city prosecutor Jim Bledsoe, and Gonzaga University law professor George Critchlow last Friday.

“I think we got some pretty good input back and forth,” Piccolo said, “so I feel pretty comfortable that these amendments do resolve many of the problems that were presented last week.”

Monday’s final hearing was messy in that public comment was re-opened only as to the new proposed changes. The ungainly process invited confusion and led to a number of tense exchanges as Council President Joe Shogan worked to corral testimony to the specific wording changes of each of the four adopted ordinance. Nevertheless, the public comment directed at the changes themselves was mostly positive, and much of it came from street musicians and others who would be affected by the new laws.

“I’m a street musician and I want to thank the city for stepping up to the culture of Spokane and actually coming into the Twenty-first century as I would call it,” said Rick Bocook, a.k.a. “Harpman Hatter,” a harmonica player who frequently performs on downtown sidewalks.

Bocook managed to engage the council on several issues, one of which was his efforts to get clarification from city lawyers on what constitutes a public sidewalk (from the curb to the nearest structure) and how certain downtown merchants don’t understand the law and respect the rights of street musicians.

“This means that, as a street performer, I should be able to go to the line of the building without being harassed by a business owner,” Bocook explained. “This is something that I just think should be out here, in the open. We should know this stuff because it’s difficult to get answers about these things because people don’t always know the answer.”

Bocook mentioned two downtown businesses on Main Avenue which, he said, mistakenly assert that they own or control the sidewalk outside their stores.

“I don’t want to get harassed when I’m playing music,” he said.

Shogan invited Bocook to contact the City Attorney’s office if he or others were accosted by over-aggressive business owners trying to remove them from city sidewalks.

“Okay,” Bocook replied, “I can accept that, but I just wanted to make sure I brought these issues up.”

On the specifics of the draft ordinances, here are the highlights of what the council changed and enacted.

*With the “Pedestrian Interference” ordinance (C34337) the council made it a misdemeanor to “aggressively solicit,” “intimidate,” or “intentionally” interfere with pedestrians or motorists. CFJ and others objected to the previous language which would have made it a crime to “knowingly” interfere. The concern was that the statute could then be used to prosecute people who were merely causing people to walk around themselves or their equipment, without intending to cause interference.

*With the “Sitting or Lying on a Sidewalk in a Retail Zone” ordinance (C34338), the council made it a misdemeanor to “sit or lie down” or sit upon a chair or other object in the downtown retail area. The revised language broadens exceptions for people enduring physical or mental distress.

*With the “Street Performers” ordinance (C34339), the council made it a misdemeanor for a broad category of street level sales people (including peddlers and musicians) to “actively” solicit money without a business license. CFJ’s criticism of the draft ordinance was that it appeared to violate First Amendment free speech protections by discriminating on the basis of speech content. The final ordinance included a new paragraph:

“A person who engages in constitutionally protected expressive activities in the public right-of-way shall not be required to obtain a business license unless the person engages in business activities. Constitutionally protected expressive activities conducted in the public-right-of-way shall include, but is not limited to, street performers. For the purposes of this section, a street performer means an individual, including street musicians, who performs any form of artistic expression. The voluntary contribution of money by members of the public to the individual in association with the expressive activity shall not result in the requirement of obtaining a business license. A person who engages in constitutionally protected expressive activities in the public right-of-way must still comply with all other regulations regarding conduct in the public right-of-way.”

*With the “Regulation of Solicitation” ordinance (C34340) the council made it a misdemeanor to solicit on public roadways, or in proximity to a number of publicly used facilities, including ATM machines, building entrances, and gas pumps. In response to CFJ’s and others’ feedback, the ordinance was changed to drop a prohibition on “coercion,” (which, the City now agrees, is duplicative and unnecessary given other parts of the enacted package). The language of the ordinance also bars solicitation, without a license, in a roadway or in a manner that obstructs traffic.

*Finally, the Council simply withdrew a draft ordinance (C34341) that would have made it a misdemeanor to solicit money from people in vehicles. CFJ had criticized the language of the draft ordinance as targeting people requesting help while allowing signs holding other messages, such as political endorsements or advertising. CFJ also pointed out that the desired effect could be accomplished in the new solicitation ordinance (above) with its requirements for permits to solicit in roadways.

The votes to approve the four amended ordinances and drop the fifth ordinance were all unanimous.

Still, council member Richard Rush, brought a sobering context to the discussion of the ordinances–a discussion that took place at the end of a long and unusually contentious meeting that began with stark presentations on how local food banks and other social services were being stressed by the downturn in the nation’s economy.

“Just want to remark that it’s a pretty sad day when a legislative body like this one has to legislate civility,” he said. “And I would like to just to remind everybody that we are part of the same community. The fact that we are having to pass this and having to tip-toe up to the edge of Constitutionally protected behavior, that we are tip-toeing up to inconveniencing our homeless in this city, does not serve any of us well. But this is something we need to do. I would just appeal to the community to do so voluntarily.”

While relieved and encouraged by the changes from the earlier language, Beavers is now mostly concerned about how the language in the new ordinance aimed at street musicians will be interpreted. While the new ordinance attempts to draw a line between “passive” requests for money (i.e. a hat or guitar case on a sidewalk) and active soliciting, Beavers’s worry is with the reference to “business activities” in the ordinance. Because that term has such broad application in the Spokane Municipal Code, she thinks it may open the door for more zealous enforcement of open hat street musicians than the city council actually intends.

Kittitas County stretches from the eastern crest of the Cascades to the sagebrush benches and basalt cliffs near Vantage on the Columbia River. A century ago, coal mining was on the rise as railroads and coal companies dug into seams along the flanks of the Cle Elum River Valley in the upper county. Now the energy being sought is that in the wind that whistles down the length of the county west to east, especially in the spring. And with the wind turbines has come some pretty fierce blow back not only from valley residents but the county commissioners as well.

Today the turbines won, with the Washington Supreme Court issuing a unanimous opinion that solidly reinforces the power of the state’s Energy Facilities Site Evaluation Council (EFSEC) to control where and how large energy producing operations can be built in Washington state.

The wind farm at issue in today’s decision is not the one (the Wild Horse project) that began to sprout on the ridges above the Columbia River near Vantage three years ago. It is the Horizon Wind Energy project that is slated to be built in the middle of the county between Ellensburg and Cle Elum along state highway 97. Horizon has been battling local citizens and county officials over the plans for the past five years and, in the process, has cut the number of turbines planned from 121 to 64. It has also agreed to site them further from homes and cabins than originally planned. The project is scheduled for completion next year and is expected to produce upwards of 100 megawatts.

The battle over the Horizon project has been an especially bitter one, with opponents not only questioning EFSEC’s authority to overrule the Kittitas County Commissioners’ objections, but also alleging that EFSEC members, including the chairman, violated the state’s appearance of fairness requirements.

“The stakes in this case are high, pitting the jurisdiction of a multidepartment state council against county jurisdiction over siting energy facilities. The winner gets control over the siting of energy facilities.”–Justice Susan Owen, for the unanimous court.

In September 2007, Washington Governor Chris Gregoire upheld EFSEC’s decision to site the Horizon turbines over county objections. But with a new voter initiative requiring that the state secure 15 percent of electricity from renewable sources by 2020, Gregoire explained that it was necessary to build the renewable infrastructure even when it “may impose burdens on some.”

In the 58-page decision released this morning, Justice Susan Owens recounted the legislative purpose for establishing EFSEC as a means to avoid costly duplication in the siting process “and ensuring that decisions are made timely and without unnecessary delay.” Her opinion also addressed objections to the Supreme Court taking jurisdiction for a direct review of the Governor’s decision, rather than waiting for the case to works it way up the ladder.

“Such public interests are present in this case requiring prompt review,” she wrote. “Petitioners question the state’s authority to site energy facilities under EFSLA (Energy Facilities Site Location Act) which has been in effect for over thirty years. A delay in finally determining such authority will result in uncertainty for all existing and pending siting projects. Such uncertainty could lead to delay in the construction and operation of energy facilities and ultimately restrict the availability of energy at a reasonable cost in the state. The superior court [in certifying the case for direct review by the high court] also determined that the parties would likely seek review in this court regardless of the determination. Again, we agree. The stakes in this case are high, pitting the jurisdiction of a multidepartment state council against county jurisdiction over siting energy facilities. The winner gets control over the siting of energy facilities. Whoever lost in superior court would have great motivation to seek review in this court in order to preserve its jurisdiction.”

By Tim Connor

The event that framed the last chapter of Bob Chambers’s life began to unfold shortly after 11 o’clock at night on Wednesday, February 23rd, 2005. At the time, he was living at the Lyons Crest Apartments on Spokane’s north side. He thought he heard gunshots, but his ex-wife, who lived in the same apartment complex, was not only sure she’d heard gunshots, she was sure they’d been fired just down the stairs from her apartment. She picked up the phone and called her ex-husband.

“So I went over there,” he recalled. “He [the shooter] was out in the parking lot, walking around with his gun up in the air, like he was playing Starsky and Hutch. I was standing right in front of him. I wasn’t from here to that plant from him [15 feet or so] with his gun straight up in the air. Now, I’m smart enough and quick enough that if that gun even starts getting lower, it’s either I was going after him, or you’d be watching somebody who could make Jim Thorpe look like somebody who couldn’t run. One or the other.”

By that time, Chambers was on the phone with the emergency 911 operator, describing the shooter to the operator. Fortunately for Chambers, the man with the gun started ducking behind cars “looking very paranoid. I’m sure in his mind there was somebody out there to get him.”

“The 911 operator asked me, okay, what’s he doing now? I said he’s walking up to his apartment. I gave him the apartment number. He [the 911 operator] said, ‘okay, step out into the light.’ Okay. So I stepped out of the stairwell to where I could be seen. He says, ‘now watch the driveway.’ Well, by then I could see the SWAT team moving up the drive way and a cop car. I watched the cop car move to within 20 to 25 of the building.”

According to Chambers, the next instruction he got from the 911 operator was to hold his phone up in the air, so that the police officers could see that it was not a gun. This he did and his ex-wife came out and took the phone from him, and then she stayed on the line with the operator.

By this time there were two other men on hand to meet the police, including the apartment complex manager.

“So, they told us to get on the ground. I understood that. Unknown situation. Self-preservation. So I got on the ground, spread eagle.”

Now that he’s gone, it’s even harder to tell the difference between the digitally recorded voice of Robert Chambers and the cinematic voice of John Wayne. Because that’s who Bob Chambers sounded like on August 13th of this year, when he sat at the table on his porch in a busy north Spokane neighborhood and told his story. He knew what he’d been through and what he was facing. In defiance of the lung cancer, he smoked, and used his cigarette lighter for punctuation. In defiance of his medical death sentence he often spoke leaning forward, and when he could recall something that brightened his spirits, he would smile, and sometimes even laugh, wistfully, at himself. But the story is mostly hard and he knew that, and it was the main reason he wanted to share it.

The other two men were told to go stand under a tree, along the side of the apartment building. Not so for Bob Chambers. Without being given an explanation, or even being asked a question, he was handcuffed and put into the back seat of the patrol car, “directly under the shooter’s window.” The police were not sure where the man with the gun had disappeared. But Chambers knew, and even while handcuffed in the back of the car, he said he was shouting to the policeman whose car was being used as the shield on where to direct his spotlight.

Other people were shouting. While his ex-wife was yelling at the 911 operator that the police were taking the wrong man into custody, Chambers’s 31-year-old daughter Jenice, who lived nearby and who’d been summoned by her mom, began screaming the same message at the police.

To no avail. As the standoff went on, Chambers was acutely aware that if the man with the gun decided to start shooting at the police, that he was in the car that the police were using as a shield. What clearly added to his frustration is that while in the patrol he could hear the police dispatcher telling the officers on the scene that they were holding the wrong man.

“I was taught to train men,” Chambers said, alluding to his experience as a special forces team leader and military policeman, “I was taught to train men to stay alive. I was never taught to be a bulls eye. And that’s exactly how I felt, like a bulls eye. If he’d stuck that gun out the window and fired at that car, I was the first thing in that car. I know where those bullets would have gone.”

After some twenty minutes–but for what seemed like an eternity to Bob Chambers–the confused standoff ended, and the real suspect interviewed, though not arrested.

On one level, the only immediate casualty of the confusion was evidence. The gunman had used his time back in the apartment to clean his gun, destroying the signs that it had been recently fired. Remarkably, he was never charged.

The tragedy was inside Bob Chambers. The night he was shoved into the SPD patrol car he was just two weeks away from his 55th birthday. Probably an ordinary man could have brushed himself off and walked away that night, angry and maybe a little indignant, but able to move on in a day or two. But the hard truth about Bob Chambers is that perhaps the strongest thread in his life, the one that connected him from childhood to the present, had been snapped.

Bob Chambers was born in Colfax, Washington but his boyhood memories are of Simi Valley, California. His father, Robert, was a construction worker for Hollywood film companies and, as it turned out, two of the family’s neighbors were film stars James Arness and Walter Brennan. But it was not a happy childhood.

Chambers memory of his father is of an abusive patriarch who bullied his mom, his three sisters, and him. At age 11, he ran away. The police found him camped out on the corner of Haight and Ashbury in San Francisco. They took him home but on the car ride back to Simi Valley he got to tell his story to the young California Highway Patrol officer transporting him.

“I watched him pin my dad up against the wall,” he remembers. “I was just in awe. Somebody had the gonads to stand up to my dad. The cop told him he would see me every day going to school and ‘if I see one mark on him I’ll be back.’ So seeing that badge on his chest was seeing one of those knights in shining armor.”

He remembers the young officer telling him, “‘this should never happen. I will do my best to make sure it doesn’t happen again.’ And that’s what stayed in my head.”

It may be too simplistic to say that his experience with an overbearing father molded him into a tough guy, but Chambers remembers that his mother and others were concerned that he was headed down the same path as his father. When he came of age, he enlisted in the army and became a special forces officer and served in Vietnam. As open and candid as he was about all other aspects of his life, being a special forces leader in Vietnam was not a subject he was willing to talk about. Much of the work, he said, was classified. It is something missing from his obituary. During his time in the army he was also a military policeman.

Which is not to say he had never wound up on the wrong side of the law, or at least law men. In his mid-twenties, after returning from Vietnam, Chambers drew the attention of a Los Angeles police officer. He does not know exactly why, but it appeared to have something to do with the karate association bumper sticker on his car.

“I think he said something like, ‘oh, you’re a big bad guy,’ and he smacked me in face and knocked the cigarette out of my mouth. If he’d asked me to take it out, I would have said ‘no problem.’ But when he slapped it, I re-lit another one. He kept doing it, and it was like, ‘one more time.’”

On the third slap, Chambers says he grabbed the officer’s arm and “snapped it.”

“Luckily for me,” he said, “I had more witnesses than Carter had pills that he hit me three times after I warned him.” He was not charged.

Not long after that incident, he and his wife and a young daughter moved to Washington state, where his mother had relocated in 1970. He admits to being indecisive about what he wanted to do after leaving the service, that he roamed from job to job, making use of the construction and maintenance skills he’d picked up from his father. He concedes he drank too much at times, was rebellious, and went through several marriages and divorces.

“I wasn’t sure what I wanted. It was something. I just couldn’t find it.”

But the niche he found and the occupation that gave him the most satisfaction was managing apartment buildings. Among other things, it was a job that allowed him to make use of his training as a military police officer.

“The first place I managed was a place called the Courtview, and it’s actually now the parking for the Fifth and Browne Medical Building. The main parking lot is where the apartment sat. Cockroach infested. Drug infested. Prostitutes. The owner offered me the job, and he says, ‘do you think you can clean this up?’ I didn’t have any worries. I had a 357. I said, ‘can I do it my way?’ I walked the halls and kicked in doors. I walked them out the door. Threw them out. Told them never to come back. After, say, sixty days, we had families moving in, people with kids. The place had been run down so much, but we turned it into a place that people could live, that they could afford. People were proud to walk in the door, say this is what I can afford and not feel bad about it.”

But here, Chambers had some help.

“I had the police there all the time. Constantly. Made some very good friends.”

Two of the officers he met in cleaning up the Courtview, he said, became so close to him that his children called them uncles.

“They would come to my house,” he recalls about the friends he made on the Spokane police force. “They would sit and have coffee. They would greet you on the street. We would go out to dinner. So they were always over. They were family. So I had a rapport. And being a military policeman. I know that the rules and regulations between military and civilian policeman are a lot different, but I had always loved it [being a policeman].”

Eventually, Chambers became what he termed the “troubleshooter” for a successful Spokane property management firm, moving from one problem apartment complex to another to replicate what he’d done at the Courtview. It was a job made easier by his rapport with Spokane police whom, he says, were grateful for his work. And he was very grateful for theirs.

Part of what made Robert Chambers’s last years so difficult is that he was a strong supporter of Spokane law enforcement in more than spirit. He also became a community policing volunteer. He first enlisted with the City’s C.O.P.S. program and then, years later, joined the Spokane County Sheriff’s SCOPE community policing program. Just three months before the incident at the Lyons Crest apartments, he had graduated from a citizen’s police academy class.

By this time, Chambers was also on disability, afflicted with scleroderma, an uncommon chronic autoimmune disease that, in his case, caused him to have dangerously brittle bones. It was one of the reasons his ex-wife and daughter were so agitated when he was physically accosted by Spokane police after making the 911 call.

What Bob Chambers wanted people to know about the man who unhesitatingly responded to his ex-wife’s plea for help that night at the Lyons Crest, is that he had been battling his disability and bouts of depression with what he thought was some success. He was very happily married, and still able to enjoy life.

That changed immediately. He felt it the next morning, as soon as tried to explain what had happened to his wife, Nancy, who had already gone to sleep by the time her husband got the phone call.

“It just kept making me madder,” he recalled. “It was one of these, just annoying things. So I thought ‘you know what? I’m going to call internal affairs. I want to know why I didn’t get, if nothing else, an apology, a semi-understandable reason. Tell me what I did so I’d know, one, never to do it again, or warn somebody else never to do it.’”

He did call and said he reached an SPD detective, to whom he explained what, from his point of view, had happened.

“He said let me get back to you. But I never heard from him.”

After a week, he says, he called back, and this time reached a lieutenant.

“I explained it to him. He says ‘I understand. What is it you want?’ I said, ‘an apology.’”

The reply: “‘That’s not going to happen.’ Point blank. In a calm, cool voice. He said, ‘But let me check into it.’ Then I get another phone call, I still don’t remember who he was, he asked me the exact same thing. I said ‘I feel I deserve an apology.’”

“Well, we responded. You responded bass-ackwards,” he says the officer told him.

“You left me in harm’s way, period,” Chambers said he told him. “All’s I want is an apology.”

The answer, Chambers said, was the same: “That’s not going to happen.”

But he wouldn’t let go.

On March 9th, two weeks after the incident, Chambers, with help from his wife, put together and sent a letter to then-Police Chief Roger Bragdon.

“I have never had anything but the utmost respect for our police force and the job they do,” he wrote, noting his volunteer work with the C.O.P.S. program and the “Citizens Academy” classwork. “However, this type of total disregard and disrespect is intolerable. It was not until the suspect came out of the apartment and the police discussed the situation with him that I was released. At that time, the only thing that the police had to say to me was to ask for my name, DOB, and phone number. Nothing happened to the suspect (he was never even handcuffed) as the police said they couldn’t prove he did anything wrong. Well, what’s wrong with this picture?”

Because he persisted, Bob Chambers received the one thing he’d been told he’d never get. It was a written apology, dated March 23, 2005, from Spokane Deputy Police Chief Jim Nicks. While defending the action of placing him in handcuffs and putting him in the patrol car as “appropriate,” Nicks’s letter conceded that “leaving you in a patrol car that possibly places you in harm’s way is not consistent with the mission of this police department.”

Thought not directly apologizing for subduing Chambers and putting him in the car, Nicks’s letter at least offered a partial explanation for what “appears” to have been a “tactical error.”

“The sergeant on scene that night was on the other side of the apartment and unaware of your situation. When he learned of your concerns and the situation in which you were placed, he agreed that you are owed an apology. That sergeant will be addressing tactical aspects in responding to gun calls with training for the officers.”

“In this instance,” Nicks’s letter concluded, “it appears that we made some procedural and tactical errors. Fortunately, this incident was resolved without injury to any party. Please accept our sincere apology for the manner in which you were treated. We have learned from this incident and thank you for bringing it to our attention. Through debriefing and training, we are able to improve the service we provide to the citizens of Spokane.”

It is not that Bob Chambers didn’t grasp how extraordinary the apology was. To some extent, he even marveled at it. As the days passed, however, it became increasingly clear that it wasn’t enough to put things right.

“That was a bittersweet victory, for lack of a better phrase,” he said about the letter. “Because I got an apology. But that three letter word was still not there–why?”

As in why was he subdued, handcuffed and put in the patrol car to begin with.
The more he thought through what had happened that night at the Lyons Court, the more he realized that he would do it again. And, yet, the outcome had left him humiliated and devastated.

“I just felt betrayed,” he said.

For years he had not only admired law enforcement officers, he had incorporated his rapport with, and loyalty to, the police into his identity. But that sense, he said, was “severed, at that precise minute” that he was put in the patrol car.

“It just took what I had thought all those years, and just turned it.”

And he couldn’t turn it off.

“I’d been having dreams and the only thing I could pick out was this,” he said, striking his cigarette lighter against the table top. “Just a click. I couldn’t figure it out for love or money.”

So he began to see a mental health counselor.

“The therapist and I finally figured that the click is the night the officer put me in the car, closed that door. That click is that door shutting. That click is the button that was pressed to put that great big stone wall of China up and never let anybody else through it again. I went so far…” Here he stopped to take a deep breath and collect himself. “I don’t like to use the word, but I became afraid. I became afraid to step out my door, thinking that this happened and I didn’t do anything. Is it going to happen again?”

It also deeply eroded his self-confidence in a way that made him more vulnerable to some of the demons that had haunted him since childhood as the only son of an abusive father. By his own admission, he found himself withdrawing from Nancy and other members of his family. The tenderness of his relationship with Nancy, including their daily outings together, had been an oasis in a life that was hard to begin with. But now he couldn’t even bring himself to leave his chair at home, and by his withdrawal he felt the oasis drying up, and he experienced the guilt and shame that came with it.

“If I would have been in good health my hope was to pull out of it. We weren’t making a lot of progress in therapy because it was just something that was..like I had the Hope diamond and somebody stole it from me. How do you regain something like love that you lost?”

It was in this state of despair that he reached out to try to find a lawyer. He’d never heard of the Center for Justice. A man on the phone at a legal assistance organization in Seattle referred him, and on May 25, 2007 he walked in the door and began sharing his story with the Center’s lawyers.

There was an air of dignity and authenticity about Bob Chambers that struck a chord with the CFJ legal team. The lawyers also concluded he had a case, for violation of his Fourth Amendment rights that should have protected him from unreasonable seizure, and they filed a complaint on his behalf in federal court last February.

In May, while being examined for injured ribs, doctors found a large mass in his lungs. A biopsy confirmed it was cancer and further examination revealed it had metastasized.

By that time, Bob Chambers had developed a close friendship with CFJ attorney Terri Sloyer who was handling his case along with senior litigator Jeffry Finer.

“He told me it was the quickest, most painful decision he’d ever made in less than five minutes,” Sloyer recalls.

The decision was whether to attempt chemotherapy, with the warning that the cancer was so far advanced that the chemo, alone, would likely kill him.

“He said he looked over at his sister and said, ‘let’s go home.’”

He was told he only had a few months to live.

By that time, the suit against the City was in mediation. The CFJ lawyers had been seeking less than $100,000 to begin with and the devastating news about the late-stage, terminal cancer was bad news for the case as well.

“Damages are calculated based on what your likely life span would be and what sort of income you would have over the course of that time,” Sloyer explains. “That was already slightly compromised for us in this case because of his disability. Your life is worth more, quite frankly, if you’re gainfully employed, and healthy, and you look like you’re going to live to be eighty.”

“The challenge we were faced with,” she continued, “is that we knew he was dying very quickly and there was no way this was going to trial before he died. So any small amount of damages we could have gotten, had we gone all the way to trial, we would have been doing it posthumously.”

So Chambers and his CFJ lawyers decided to leverage the claim. They decided they would drop case altogether for the chance that Bob Chambers might get a better answer to the question that had haunted him since the incident.

“Why?”

He wanted to know why the officer had singled him out to be handcuffed and put in the car. To try to get at that answer, he wanted a chance to look the officer who had handcuffed him in the eye and ask him to explain.

It wasn’t easy. The relationship between the Center’s attorneys and the lawyer the city had assigned to the case was contentious at best. After first being told by the city’s designated attorney that Police Chief Anne Kirkpatrick would likely order the officer to have the meeting, Sloyer said she received the message that the chief had adamantly nixed the idea and offered, instead, to meet with Chambers herself. But Chambers had no use for a meeting with the Police Chief.

Sloyer, in reply, did the only thing she could do. She pleaded with the lawyer and explained how important the meeting with the police officer would be to her dying client. The hero that stepped up to end the impasse was none other than the officer himself, who agreed to meet with Chambers on his own time, out of uniform.

The meeting was on Chambers’s porch on August 5th, just the two men, and the two lawyers.

From Sloyer’s vantage point, there were two pivotal moments in the exchange.

“One was when Bob got to the question, ‘so the question I have is why? Why me? Immediately, [the City's lawyer] says ‘we’re not here to have a dialogue. He’s here to listen. He’s not going to talk.’ And I looked at her and I said, ‘he’s committed to dismissal of this lawsuit.’ That’s all I got out of my mouth, and [the officer] said to her, ‘I’ll answer his question.’ If he hadn’t said that, she and I probably would have sat there and argued for the next fifteen minutes, or they may have gotten up and walked off. But that spoke volumes to me about who [the officer] is. ‘I’ll answer his question.’”

The officer’s answer, Sloyer said, led to the second climactic moment.

“He said we are trained that at the end of our shift ourselves and our partner should go home. And then he said, ‘so, when there is a quickly evolving situation and we can’t really figure out who’s the good guys and who’s the bad guys, we don’t think it’s too much to take ten minutes out of the life of a person and then, afterwards, say gee, here you go.’ He saw it as a mere inconvenience. To which Bob then was able to say, ‘that ten minutes changed my life.’”

This exchange was actually the moment that Sloyer had been working for all along. It’s just that she had worked all the harder for it once she learned how little time Robert Craig Chambers had left to him. More than the prospect of money from a jury, she well understood the hole in Bob Chambers’s spirit that the unanswered question from 2/23/05 had created. Money wasn’t going to fill it. Maybe an answer would.

When it was clear the meeting was going to happen, Sloyer thought it would be a good idea to walk through it in advance.

“I didn’t want him to leave disappointed. I asked him, ‘what does this meeting look like for you?’”

He was able to do that for her, to talk deeply and emotionally about how the episode changed him. But the actual conversation with the officer was not quite the same, and Sloyer choked back tears in explaining why.

“He wanted to have this conversation and he wanted to be honest. But he saw himself as a man in a particular way. And so when he talked to [the officer] he wasn’t able to let down his guard as I had hoped. When he and I had talked the day before he became very emotional about ‘the click.’ And because he was a very dignified man he wasn’t able to do that [with the officer]. And I wanted the officer to see that, I wanted him to get the true impact of what this had done to Robert. And it was more clinical for Robert than that. Understandably. I mean he’s sitting there dying, and he was vulnerable.”

Bob Chambers account of the meeting differed only slightly from Terri Sloyer’s. He acknowledged there were things he felt that he didn’t share, for fear, he said, that it would disrupt the meeting and bring an end to it.

He described his emotional response to the officer’s statement about how his job was to make sure that he and his partner went home at the end of the day.

“Of course it is,” he said, describing what was running through his mind at the time, “but it’s also your job to protect me. You did not do that. You could have gone home with your partner that night. I could have been in the morgue.”

This is how Bob Chambers described the meeting:

“I looked in his eyes, and I kept direct eye contact with him. I mean, I don’t think there was much blinking between the two of us. There was none of this disgust in his eyes. There was none of this, ‘I really don’t want to be here’ in his eyes. And when he said he wanted to talk, he was just sitting here like this, saying, ‘okay, I want to talk.’ You know, and then the bulldog [referring to the city's lawyer] said, we’re here to listen. Go away lady, you bother me. But I did feel, I’ll use the word sincerity because that’s at the time, looking in his eyes, that he felt responsible for however much of it happened. He made that decision, no one else. To frisk me. To put me in there. And not move me. That was his decision and no one else’s. So without coming right out and telling me why..I wasn’t expecting an apology, I knew that wasn’t going to happen, even standing in front of the President, it wouldn’t have happened, because the lawyer would not have allowed it. They’d already admitted it, but they didn’t want to admit any farther than what had already been written. So, he got up and shook my hand and left. I was happy in only the sense that somebody, there’s a man out there that felt somewhat responsible, who was at least man enough to walk up to me, look me in the face, even without saying it, I know he was saying it, in his mind. At least that’s the way I want to look at it.”

The interview had clearly tired him, and as it was drawing to a close he was still certain the conflict would follow him to his last day.

“They need to be held accountable,” he said. “To them it was a minor matter. To me it was life-changing.”

As he was leaving the house, the officer approached Terri Sloyer, looked in her eyes, and said he hoped that the meeting provided some closure.

Bob Chambers died six weeks later, on September 24th. In the days following, Terri Sloyer tried to work through her sorrow and find a silver lining. In some ways, the Spokane community has been engaged in a low level civil war about how to reform its police department in the wake of several high profile violent arrests involving death and injuries. It’s a subject that Sloyer has poured herself into, to the point that she has become a veritable expert on police practices and different projects, around the country, to improve practices and oversight.

This case was unusual because of who Robert Chambers was, and because of the intimate person-to-person work she had to do in several directions to try to help bring him as much peace as he could find to his torment.

“We all stuck in there,” she said. “For better or for worse. Whatever you want to say about them, and it’s easy when they’re being pissy to call them names and what not. But when I take a step back, here’s the deal, we’re all doing the best that we can. We’re all in different places in our evolution about how we understand the world, based on our experience. But we all hung in there. Bob hung in there with me. I hung in there with [the city's assigned attorney]. The officer came to the table, you know. In the end it was really about relationships, which is what we say we’re committed to.”

The stories about beached whales and dolphins, many of them dead or dying with bleeding around the brain and ears, come from all over the world.

Some typical examples:
In July 2000, scientists investigating the deaths of seven whales on beaches in the Bahamas earlier that year (at a time when the U.S. Navy had been conducting sonar operations) determined all had inner ear damage.
In May 2003, nearly a dozen dead harbor porpoises were found along Olympic Peninsula beaches following sonar testing by a U.S. guided missile destroyer.
In February of this year, five rarely-observed Cuvier’s beaked whales perished on beaches on or near the west coast of Scotland. The deeply diving beaked whales, who look like over-sized bottle-nose dolphins, are especially vulnerable to sonar injury and death.

The science in many specific cases is hampered by a lack of clear forensic proof connecting cause to effect. Nevertheless, the accumulation of evidence is persuasive enough, overall, that international bodies including the European Parliament and the Scientific Committee of the International Whaling Commission have adopted findings or resolutions that naval sonar is a significant danger to whales and other marine mammals. Even the U.S. Navy concedes that the use of anti-submarine sonar can badly injure marine mammals.

The main question before the U.S. Supreme Court in Winter et al. v. the Natural Resources Defense Council, et al. was whether the public interest is better served in protecting whales and dolphins, or in protecting the U.S. Navy’s expressed need to conduct realistic anti-submarine warfare exercises, even in areas of the ocean where inflicting harm on hundreds of marine animals appears to be inevitable. At least that’s how a narrow Supreme Court majority (Chief Justice Roberts, joined by Justices Thomas, Scalia, Kennedy, and Alito) viewed the case in the decision, authored by the Chief Justice, delivered November 12th. Among the plaintiffs represented by NRDC in the Winter case was the Ocean Futures Society whose founder and president, Jean-Michel Cousteau, is the son of famed ocean explorer and film maker Jacques Cousteau.

The Winter decision may surprise those who think that the protection of whales and dolphins has become sacrosanct in our culture and laws. The Marine Mammal Protection Act of 1972 (MMPA) is a broad prohibition on the hunting and harassing of marine mammals. As with other laws, however, there is a national security exemption under the MMPA by which the Secretary of Defense “may exempt any action or category of actions” if they are considered “necessary for national defense.”

Bold national security exemptions, such as the one in the MMPA, are not necessarily unqualified trump cards, however. Over the past 35 years, Congress and the courts have increasingly brought the military services into the fold of environmental regulation. Since the early 1970s, the Natural Resources Defense Council, the lead plaintiff in the Winter case, has been at the forefront of using the National Environmental Protection Act of 1969 (NEPA) and other laws to confront a variety of military activities that inflict harm on the environment. Washingtonians may recall that one of NRDC’s early victories under NEPA was to force the Energy Research and Development Administration (now the Department of Energy) to produce a lengthy environmental impact statement to address how it managed the enormous stews of extremely toxic and radioactive wastes from plutonium production activities at the Hanford site in Washington. The lawsuit was one of the first of its kind that helped clarify the answer to the important question as to whether the nation’s nuclear weapons factories are exempt, carte blanche, from federal and state environmental laws. They’re not.

In some ways, NEPA is a boring and unremarkable law. It does not clearly prohibit any particular environmental insult, whether it is dumping toxic waste into reservoirs or firing artillery shells into habitat for endangered species. What it is supposed to do is force governmental decision-makers to carefully evaluate the environmental consequences of major new actions or policies before proceeding with them. Because it allows citizens a good opportunity to drill down into the facts and trade-offs of major decisions, NEPA commonly forces a public dialogue that either leads to the abandonment of a proposed major action or leads directly to significant changes that eliminate or reduce harm to the environment. A boring law for sure. But it’s difficult to understate NEPA’s value, not just to environmentalists but to taxpayers because of the cost-savings involved by halting, or substantially modifying, poorly devised and expensive government projects.

In the Winter case, a straightforward reading of NEPA and how it’s been applied for a generation should have forced the Navy to produce an environmental impact statement and a defensible record of decision before it started the exercises involving the use of the dangerous sonar in the SOCAL zone off the coast of Southern California. The EIS should have thoroughly analyzed and accounted for the expected harm to marine life and how that harm could be prevented or mitigated. It should have. But it didn’t. And that’s why environmentalists and taxpayers should both be unsettled by the way the Roberts majority ruled. On the other hand, people who believe that national security should always trump, by a wide margin, public concerns about environmental damage and degradation, will be encouraged by the decision.

There are some peculiar aspects to the Winter case that are best accounted for in the time line of the key facts and events. But, from the top, it’s worth reiterating that the application of NEPA to military training exercises is not new.

*In December 2006, the Navy announced it intended to comply with NEPA and prepare an EIS to account for the environmental consequences of its naval training exercises in the SOCAL complex. By agreeing to do an EIS, the Navy was at least tacitly conceding that its use of the SOCAL complex was a major federal action with the potential for significant environmental consequences. The Navy expects to complete the EIS in January 2009.

*Two months later, in February 2007, the Navy decided it wanted to go ahead with 14 exercises it wished to conduct prior to the completion of the SOCAL EIS. It submitted what is known as an environmental assessment (EA). This was unusual because an EA is the tool agencies ordinarily use to determine whether or not a full EIS is required under NEPA. If the EA correctly determines that there would be no significant environmental consequences of a proposed action, then there’s no need to do an EIS. But, of course, a broad EIS was already under way for the SOCAL Naval exercises.

*The 14 training exercises involve so-called “mid-frequency active” (MFA) sonar that, according to military experts, is a crucial tool for detecting the presence of diesel-electric submarines. Despite the fact that the Navy’s EA concluded that more than 500 marine mammals would be injured by MFA sonar (injuries including permanent hearing loss) and nearly 170,000 “disturbed” in ways that might include temporary hearing loss, the Navy’s EA nevertheless determined that the 14 SOCAL exercises would have no significant impact on the environment. The same day it issued the EA asserting there would no significant environmental consequences, the Navy started its exercises in the SOCAL range.

In short, and to put it mildly, the Navy was playing games with the law.

*On March 22, 2007, NRDC filed suit in Federal District Court in California seeking an injunction to stop the exercises. The District Court found that NRDC was likely to prevail on a NEPA claim and on August 7, 2007 it issued an injunction barring the Navy from using MFA sonar in the eleven remaining exercises.

*The Navy appealed the in injunction and on August 31, 2007 the Federal Ninth Circuit Court of Appeals lifted the injunction pending disposition of the Navy’s appeal. This allowed the Navy to go forward with two more SOCAL training exercises.

*On November 13, 2007, the Court of Appeals upheld the injunction against the exercises, finding that NRDC had shown “a strong likelihood of success on the merits” and that the injunction was appropriate. However, the Court of Appeals also sent the case back to the District Court to devise mitigation measures that would allow the Navy to conduct the remaining exercises planned before completion of the EIS.

*The District Court issued a conditional injunction and, on January 14, 2008, allowed the exercises to resume, under six conditions, while denying the Navy’s request to continue training without conditions on the use of MFA sonar.

*Obviously feeling stymied by the courts, the Navy then immediately turned to the White House Council on Environmental Quality (CEQ) on January 15th, and instantly and successfully enlisted this advisory body within the executive branch to batter the court into submission with respect to two of the six conditions the court imposed.

As is often the case with the Bush Administration and the law, a degree of black comedy is regularly available if one can harden the heart against the actual human (or, in this case, whale-deafening) consequences of how executive powers are configured and exercised in response to inconvenient laws and obstructive judges.

Perhaps the Navy’s unprecedented appeal to CEQ was an act of genius. But there is this irony. Just two months earlier CEQ, operating within its mandate to improve and coordinate the federal government’s compliance with NEPA, had published, “Collaboration in NEPA, A Handbook for NEPA Practitioners,” in which it eloquently and reasonably stressed to agency decision-makers the benefit of a collaborative approach to complying with the law. The handbook encouraged equanimity in dealing with the public and overcoming entrenched agency cultures, noting that “the time savings an agency might achieve by foregoing a collaborative process are often illusory.”

Reporting on the CEQ handbook’s release last November, the independent publication Defense Environment Alert observed: “This last benefit, [the time savings] could be significant for the military, which in recent years has seen a number of lawsuits filed–some successful–over alleged NEPA violations. Among these are various challenges to the Navy’s use of sonar in training, including one key case in which legal scholars are warning that Navy arguments in the case would have the court create a first-time judicial exemption under NEPA for national security issues, which could in turn lead to exemptions from NEPA compliance for a slew of other military activities.”

Notwithstanding the conciliatory tone of its recently published handbook, CEQ didn’t hesitate in backing up the Navy’s push to quickly overturn the District Court’s conditions so that the Navy could continue the exercises without submitting to timely environmental review. With dubious authority, the CEQ cited “emergency circumstances” to authorize the Navy to implement “alternative arrangements” to NEPA compliance. With CEQ’s backing, the Navy filed an emergency motion with the Court of Appeals. In response, the Appeals Court sent the hot potato back to the District Court for analysis of CEQ’s action, and as it did this, the District Court again lifted the injunction, allowing the Navy to conduct yet another exercise at SOCAL.

On February 4, 2008, the District Court reaffirmed its ruling against the Navy and on February 29th, the Court of Appeals upheld it.

These were the decisions that reached the Supreme Court for oral argument in October and which were overturned by the November 12th majority opinion authored by Chief Justice Roberts.

Roberts’s opinion has its own ear-rattling thump to it. It relies on CEQ’s “emergency circumstances” finding to push aside all the careful fact-gathering and deliberation procedures that CEQ, itself, was emphasizing in its November 2007 handbook. The opinion even sets aside a very reasonable point that the Roberts opinion and a dissenting opinion by Justice Breyer (joined in part by Justice Stevens) makes, which is that the District Court should have evaluated and

Beaked whale

accounted for the effect of the four court conditions that the Navy did not specifically contest in challenging the court’s authority.

Still, wrote Chief Justice Roberts, “even if plaintiffs have shown irreparable injury from the Navy’s training exercises any such injury is outweighed by the public interest and the Navy’s interest in effective, realistic training of its sailors.”

The most troubling aspect of the opinion is how it dramatically shifts (toward the military) the tipping point in the balance between environmental protection and competing national defense activities.

“For the plaintiffs,” wrote Chief Justice Roberts, “the most serious possible injury would be harm to an unknown number of marine mammals that they study and observe. In contrast, forcing the Navy to deploy an inadequately trained antisubmarine force jeopardizes the safety of the fleet. Active sonar is the only reliable technology for detecting and tracking enemy diesel-electric submarines and the President–the Commander in Chief–has determined that training with active sonar is ‘essential to national security.’

“The public interest in conducting training exercises with active sonar under realistic conditions plainly outweighs the interests advanced by the plaintiffs. Of course, military interests do not always trump other considerations, and we have not held that they do, In this case, however, the proper determination of where the public interest lies does not strike us as a close question.”

One doesn’t have to be an animal rights advocate to cringe at the anthropocentric logic of the Court majority’s opinion. The public empathy for marine mammals registered in the Marine Mammal Protection Act is, of course, easily pierced by invoking the law’s national security exemption. So what is left for the Court to consider is injury not to whales and dolphins but to people who like to see whales and dolphins and/or study them. It may shock a conscience just to absorb the literal meaning of this. It simply means that any expected or observed cruelty inflicted on animals is moot so long as it doesn’t detract to a measurable extent from the interest that humans have in activities like whale-watching. Another way of putting it is that Mother Nature doesn’t get a seat at the defense table.

But there’s another facet of the same issue that crops up repeatedly in cases pitting the military against the environmental and public health advocates. How do we know whether a proposed military activity is so critically important to national security that it should be allowed to trump other legitimate public concerns or objectives? The answer, of course, is that such determinations are highly subjective and, worse, tend to be shielded by secrecy even when the “national security” argument turns out to be a political cover for a project that is driven more by domestic politics than bona fide threats from foreign enemies.

One example Washingtonians may recall is the head-snapping 1988 flip-flop of Joseph Salgado, a top Energy Department official under President Reagan. Within months after insisting the Hanford N Reactor’s plutonium was essential for national security, Salgado suddenly reported that American actually had a robust plutonium surplus, and that the safety-suspect reactor [it lacked a containment vessel and leached highly radioactive strontium-90 into the Columbia River] wasn’t needed. His reversal infuriated thousands on the Hanford payroll, many of whom considered themselves national security experts when it came to predicting the dire consequences that awaited the nation if we stopped making plutonium at N reactor.

In the Winter case, the Navy did submit testimony from service commanders that the use of MFA sonar to detect enemy submarines is a “highly perishable skill” and that “if effective sonar training were not possible–the training value of the other elements would also be degraded.”

These testimonials were enough for the Supreme Court majority: “We accept these officers’ assertions that the use of MFA sonar under realistic conditions is of the utmost importance to the Navy and the Nation.” With this sentence the Supreme Court seems to have put the nation’s interest in uninterrupted MFA sonar training at SOCAL right up there with capturing Osama bin Laden, or denying the Iranians the bomb.

To which a normal skeptical citizen might ask: really? Moreover, it’s also a reasonable question to ask whether the emergency was being inflated for the mere purpose of weakening NEPA. After all, by its own calendar, the Navy would have completed its SOCAL EIS in January 2009 and would have shortly been back in the water with its training exercises. True, the exercises would possibly have been modified to better protect marine mammals. But that’s just the sort of outcome Congress intended when it passed the law.

Equally troubling is the way the CEQ became complicit in the Navy’s attempt to bull its way back out to sea. As Justice Ruth Bader Ginsburg pointed out in her dissent, CEQ was willing to make “a hasty decision on a one-sided record” even though it “lacks the statutory authority to absolve an agency of its statutory duty to prepare an EIS.”

The NEPA EIS process doesn’t always get citizens into the black box of national security decision-making in a way that effects the outcome of proposed government actions with demonstrably bad environmental risks or direct consequences. But it’s the best process we’ve come up with so far for injecting something like democracy into decisions that can have serious consequences for generations to come. It’s not transparent and it’s not perfect. But it’s the best we’ve got and it’s fragile.

That’s why Justice Ginsburg’s dissent (joined by Justice Souter) in the Winter case is so valuable. It is a systematic disassembly of the Navy’s bullish behavior, and a clear reminder of how the NEPA process could have worked in this case, were it not for the Navy’s refusal to comply with the law in a timely and reasonable fashion.

“If the Navy had completed the EIS before taking action, as NEPA instructs,” she wrote, “the parties and the public could have benefited from the environmental analysis–and the Navy’s training could have proceeded without interruption. Instead, the Navy acted first, and thus thwarted the very purpose an EIS is intended to serve. To justify its course, the Navy sought dispensation not from Congress, but from an executive council [CEQ] that lacks authority to countermand or revise NEPA requirements.”

Consequently, she added, “the Navy’s actions undermined NEPA and took an extraordinary course.”

Coming at the end of the Bush years, the zealous legal cannon fire directed against NRDC, NEPA, and the court itself by the Navy and the CEQ will presumably not be repeated under the Obama Administration. But Supreme Court rulings last longer than Presidents and with the crack the Winter decision puts in the nation’s keystone environmental law, the court’s verdict is not just bad news for dolphins and whales.

–Tim Connor

In the prime of his last career, Ron Hall preferred to have his meetings on golf courses. It wasn’t just because likes golf (he does). And it wasn’t because he likes to socialize (although he really does like to socialize). Rather, it was because building good golf courses is not as easy as it might look. As the person responsible for moving the dirt necessary to make a vision become a reality, bringing architects and clients into the midst of the challenge was just the best way to explain the options.

Hall’s soft voice and down-to-earth manner belie at least a couple important things about him. The first is the appetite for problem-solving that made him such a good golf course builder. The second is a deep passion for community and the environment that stem from his childhood in the Adirondack mountains in New York state.

As fate would have it, you wrap those things together, bring Hall’s radar-like curiosity in reach of the problem and, lo and behold, the Spokane River and the people trying to protect and restore it have an inspiring new friend who’s given us a new way to look at things. It’s the pilot project of a new Google Earth-launched, interactive virtual tour of the river and the sources and forces that affect its aesthetics and ecological health.

“I think part of the river thing that interests me,” he explains, “is the human impact on it. With the golf course work, we were coming in and messing with Mother Nature. Okay? And the more you mess with it, my uncle Willy used to say, the more you mess it up. But he used a different four letter word, and that was construction site talk.”

One way to appreciate Ron Hall’s work is to simply take a walk on it. The culmination of a successful run in the golf course construction business brought him and his wife, Lisa, to Spokane in 1991 when their company won the contract to build the city’s William G. Robinson-designed golf course, The Creek at Qualchan. Because of unforeseen regulatory restrictions on what you could do with the layout between a state highway and the spectacular cliffs, the golf course that Hall wound up building was different from the one Robinson originally designed. Yet it was done on time, and on budget.

“Qualchan is one of my favorites just because of the personal story that went with it and the fact that I believe if you can play there, you can play anywhere.”

Qualchan was also one of the jobs that simultaneously tested his analytical and communication skills, and led him increasingly toward computer-based applications.

The 16th hole at Qualchan

“What ended up happening with me is that I did so much construction work that I figured out some things that nobody else figured out,” Hall says. “And a lot of it was because I not only did the construction work, I had to do the layout work. So I figured out how to do things with a minimal amount of dirt moving.”

He began by using a computer spreadsheet program to compile precise topographical measurements of the land as it existed, so that he could examine and project a “balance” in the excavation and contouring required to execute the design. Hall, who has a masters degree from the University of Pennsylvania’s Wharton School of Economics, excelled at this part of his craft. But that still left the communications challenge of explaining how to adjust original plans in ways that would make more sense economically and aesthetically given actual conditions at the site. He did this, at first, by making creative use of things like large pvc stakes with elevation markers on them to illustrate problems and proposed adjustments.

“So then the computers come along,” Hall says, “and I thought maybe let’s try doing it with 3D.”

This wasn’t just any “light bulb” moment of insight. It became a part of a big change in his life.

“That’s where the whole exodus started,” Hall says. “I had to learn more about where I was on the face of the earth. And I had to learn more about computers.”

Something else was happening at the same time. Hall and his wife were settling into Spokane and deciding, after being happily mobile for twenty years, to adopt a child (a daughter, Shaelyn, from China) and buy a house. And it’s not just any house, but a painstakingly renovated and expanded farm house in the poetically gnarly canyons and pines southwest of Spokane. Because one of Hall’s passions is composing computerized models of buildings you can actually view a 3D mock up of the house, and several other structures on the farm.

Hall has an Ivy League education (he has degrees from Princeton and Cornell as well as his MBA from Wharton) but he’s always preferred the close social knitting of rural communities, and of the neighborhoods and networks he began to notice in Spokane.

“The more we (he and Lisa) were around Spokane,” Hall says, “the more we liked the fact that it was a bunch of small town things around a large city.”

Hall was impressed not only by the hospitality he enjoyed from Spokane’s golfing community but the network of aviation buffs in the Felts Field community and, more recently, the network of community-minded social and environmental organizations nested in the new Saranac Building and the adjacent Community Building where the Center for Justice is located. (Click here to view Ron’s model of the Saranac Building.)

Added to this, there was one other serendipitous fact about where Ron Hall was beginning to call home: just a few miles away at Eastern Washington University were solid programs in geography, urban planning and computer science that he could bring together into an interdisciplinary master’s degree. Hall has been educated in some of the nation’s finest schools, and he gives Eastern high praise.

“What became apparent to me were the social applications of the tool I was working with,” he says. “I was looking at it specifically in a construction and communication setting and I realized in the exposure I was getting at Eastern to GIS that there was tremendous social potential.”

That potential fits nicely with Hall’s social philosophy.

“What’s interesting to me,” he says, “is I’ve always felt, within reason, the more people you get involved in that type of process, that if you could orchestrate it properly, you’d come up with a better result.”

“While I understand the great man theory,” he added with hint of a grin, “I lend myself more to the great society.”

As he was settling into Spokane, Hall developed more than a passing interest in the Spokane River and its watershed. After all, the notoriously untamed creek that runs through the golf course he was building joins the river just a few miles downstream. What he noticed about the Spokane River is that, despite its problems, it wasn’t yet being strangled by over development.

“You have to go a long ways in this country,” he says, “before you’ll find the natural features that the Spokane River has.”

But the thing that really pulled him in to begin studying the river was a May 2004 newspaper story by veteran Spokesman-Review investigative reporter Karen Dorn Steele. The article reported on the hundreds of continuing instances in which raw sewage in the city’s combined sanitary/stormwater disposal system overflowed into either the river or Hangman Creek.

“With the golf course work, we were coming in and messing with Mother Nature. Okay? And the more you mess with it, my uncle Willy used to say, the more you mess it up. But he used a different four letter word, and that was construction site talk.”

In engineering golf courses on waterways, Hall says, he’s used to learning about and dealing with fifty or one hundred year “events” like floods that have to be accounted for in design and construction.

“So when they say these combined sewer overflows only happen during a major event,” he says, “I was thinking a fifty or hundred year event. So when I saw the next line that there were like four hundred of them last year, my reaction was ‘these aren’t events, this is a regular occurrence.’ That really stunned me.”

His response to Dorn-Steele’s article led him to two central conclusions about the Spokane River.

The first is that the value of the river is, as he puts it, “in the river, not on the bank.” “The way I look at it is the actual quality of the water in the river, if that is improved to the point where people could swim in it safely, eat the fish out of it safely, and we could brag about that, that to me would drive property values more than any kind of thing that’s on the bank. The value of the river is in the river, it’s not on the bank.”

The second conclusion is one he took as a personal challenge: the importance of motivating and helping people get involved in efforts to restore the river.

And that was the inspiration that prompted him to approach the Center for Justice to work with him on the Google Earth Demonstration Project that debuts this week. You will need Google Earth to view the project, and you can download it for free here. After downloading Google Earth, click here to access the Spokane River Google Earth Demo.

Notwithstanding the wonders now available on a computer screen, Hall would be the first to remind anyone that the best way to appreciate the Spokane River is to see it for yourself.

“In July we hosted a reunion for these people across the United States that we went to China with [when he and Lisa adopted their daughter] and they were shocked,” he says. “They left the Davenport Hotel where they were staying and we could have walked down to the river, below the falls. We took a three to four hour raft trip that took us down through Riverside State Park, the Bowl and Pitcher, and it was a stunning natural setting. But the first thing the river guide gives us is a lesson on urban rafting, like if you fall out, don’t stand up because you might get hit by a grocery cart. And don’t drink the water. So you’re sitting down there, in the midst of this beauty and nature, but one of the things you’ve got to be mindful about is man’s impact on the river, because of what we put into it. By the same token, it is gorgeous.”

The Spokane River Google Earth demonstration project is just a start. Hall and the Center will gather suggestions and constructive criticism on the program and plan to add to it and upgrade its features and the media presentations.

As for what Ron Hall does next he says he’s really jazzed by the “social capital” he sees in Spokane’s green community.

“If I talk to you a year from now,” he says, “I’ll probably have some other idea. For me, at fifty four years old, the other thing that happened in this process that was very personal was watching what happened in these buildings (the Saranac and the Community Building), the not-for-profit work and the advocacy and how you start putting people together in networks.”

“On a strictly technical level,” he adds, “I’ve already come up with a piece of software that I’m interested in, that has to do with building management. Actually, it’s more like green construction, because if we can make buildings more green, it will be easier to make the river green again.”

Green as in clean.

–Tim Connor

Among the worst days in Karmen Hassinger’s life was the one, three years ago, when she got called to a meeting at work. This was in 2005, a year which, for her, should have been a good one. A well-trained and valued worker, she’d just gotten a promotion to be the assistant manager at the Nurturey Child Care Center just north of downtown Spokane.

What she didn’t see, and could not have seen coming, was the javelin headed her way from Olympia. It was a letter telling the owner of the Nurturey that Karmen Hassinger wasn’t who everybody at the Nurturey

Karmen and her daughter Karlee, at the Nurturey Child Care Center in north Spokane.

thought she was. In her five years as a child and adult care provider in Colville and Spokane she had, by that time, passed three background checks. But there it was, in black and white. The state’s Department of Early Learning (DEL) had decreed that Karmen Hassinger was a threat to children. The upshot of the letter was that if the Nurturey didn’t act to remove Karmen, the day care would lose its license.

“I remember the day they told me that,” she recalls. “And I just started crying. I just couldn’t believe it.”

Even as the shock of the letter began to wear off, Karmen says, she was still “totally stumped.” Of the two questions on the table then, the more important one was what was going to happen to her and her job.

“This is my life,” Karmen says, “this is all I know. Taking care of people. And if I can’t do that, then what am I going to do with myself?

Fortunately, for both Karmen and the Nurturey, they found what was at least a temporary solution. Under state rules, they learned, she could continue in her administrative position at Nurturey provided she received a waiver from the day care owner, and the owner could assure the state that Karmen Hassinger, trusted worker and mother of three, would have no contact with the children under Nurturey’s care.

There were, however, several things that Karmen didn’t know.

Incredibly, the action that triggered the letter from DEL was an anonymous complaint made to the state’s Child Protective Services (CPS) nine years earlier. This was when Karmen was only 17 and living with her husband and their infant son. She would never know who made the complaint. Moreover, she’d never even been told what the accusation was. She also didn’t know that the reprieve of the waiver from Nuturey’s owner was tenuous at best. She was actually under the mistaken impression that the waiver was transferrable. It wasn’t. If she were to lose her job at Nurturey or choose to work for another state-licensed day care facility, she would need a new waiver from her new employer. It was the professional equivalent of having a scarlet letter on her resumé. But, for the time being, the crisis in 2005 seemed to pass. Life went on.

There were, however, a few grimly disturbing facts about what had happened to her.

The first is that the original anonymous allegation, according to the state’s own files, appears to have been completely bogus. While she remembers being told by her husband that a CPS worker had come to the door while she was away. Karmen does not remember the case worker actually entering the home to make observations. But when attorneys for the Center for Justice began looking into Karmen’s case, years later, they found a social worker’s notes in the file. The notes did not substantiate the complaint. There was no evidence of drugs or alcohol abuse, their infant was being properly cared for, and the home, according to the notes in the CPS file “was pretty well cleaned.”

Notwithstanding the social worker’s inability to substantiate the claims made against Karmen and her husband, the original anonymous complaint to CPS nevertheless stayed in Karmen’s file. It stayed there without either her knowing about it, or having any opportunity to rebut it. What’s worse, is that in the parlance of the state’s enhanced child care provider review system, under the new Department Early Learning (DEL), it became what is known as a “founded finding.” As in a founded finding that Karmen was a perpetrator of child abuse or neglect as described in RCW 26.44.125.

It turned out that the State of Washington had actually accumulated quite a bit of evidence that, in addition to being an exemplary worker, Karmen Hassinger is also an exemplary mother. It’s just that this evidence, in the state’s hands, counted for nothing.

Two other facts about Karmen Hassinger are that she’s never had a lot of money and has not lived what many people might regard as a conventional life.

She got married at age 16, divorced twice before she was 25, and has three children, two boys and a girl, by three fathers.

Suffice to say that her family life has been complicated by the demands and difficulties of a complex and, at times, troubled child custody routine. There were domestic incidents that prompted Karmen, herself, to notify CPS. Her second husband was eventually diagnosed with a mental health disorder and painfully debilitating diabetes. To help care for him and the daughter with whom the two shared custody (a court had earlier denied her request for sole custody) Karmen moved back in with her troubled second husband in 2006. The interactions were complicated but all were in conformance with a parenting plan worked out after a court review in 2003.

On a mid-January night in 2007, Karmen and the father of her third child wanted to have an evening out by themselves in Spokane. While they were away from their home on the West Plains, there was an argument between her ex-husband and their daughter, Karlee, during which Karlee reported, by telephone, that she was slapped. That ended Karmen’s evening on the town in Spokane. Karlee had stopped crying and she and the other children were fine when their mother returned. It seemed to be nothing more than a lesson learned.

A few days later, though, Karmen’s ex-husband reported to a mental health counselor that he had slapped Karlee during their argument. By law, the counselor was required to report this to CPS. The report triggered an investigation that covered not just the incident in January, but earlier events involving the ex-husband.

With that Karmen’s life and the lives of her unconventional family exploded.

Immediately, the state seized her three children and put them in emergency foster care. If there was any silver lining in that tragedy, it was that Karmen Hassinger was entitled to a public defender in the proceeding that would decide whether the state could continue to keep her children from her.

One of those who testified during the proceeding was Andraya McGregor, a family preservation therapist, who made clear, based upon observations she had been gathering via weekly visits with the family, that the state was making a big mistake.

“She [Karmen] has been extremely resourceful and resilient in her current situation, only to be handed one trial after another,” McGregor wrote. “This family has been failed by the system. Ms. Hassinger is fully capable of parenting and supervising her children. She has shown that she as great follow-through and determination in providing her children with that they need. She has complied with all requests from Family Preservation Services and the Division of Children and Family Services.”

Based in part on McGregor’s finding and recommendation, Karmen Hassinger got her family back.

“They had the kids for a month,” Karmen remembers. “And then as soon as I got my kids back, is when they took my job away.”

While she was fighting to get her children back, the state’s Department of Social and Health Services (DSHS) had reached a separate conclusion: that Karmen was guilty of child neglect. The upshot of this was that while she could have her children, she could not have her job. Moreover, DSHS ordered that none of the fathers of her children could have contact with them.

“That was a struggle,” Karmen says. “None of the fathers were allowed in the home. So, here I was, a single mother with three kids, and I have to get them back to where they were before all this happened. And struggling to find a new job. It was very hard for everybody. Very hard.”

The state had revoked the waiver it had issued to the Nurturey Day Care Center in 2005. If the Nurturey continued to employ Karmen in any capacity now, it would lose its license. Karmen was now officially blacklisted. Notwithstanding an impeccable work record, the background checks, and the continuing training and education she had successfully completed, she was prohibited from working with children, period. Her prospects for getting her life back were bleak.

Among those outraged by how the State of Washington was thrashing Karmen Hassinger was her public defender, who contacted Center for Justice attorney Bonne Beavers to see if CFJ could assist. The Center agreed to take up Karmen’s cause. And once Beavers and fellow CFJ attorney Terri Sloyer began digging into the case, they were increasingly appalled at what they discovered both about the evidence and how the state was using its rules to emotionally and economically strangle a good woman living a tough life.

The first thing the two CFJ attorneys and intern Liz Regalado found were holes and errors in the investigation into the 2007 incident that resulted in Karmen losing both her children and her job. While Karmen’s ailing second husband had made mistakes, the accusations about his conduct and the purported dangers he posed to the children were wildly overblown. This mattered because the state’s claims of child neglect against Karmen were based not upon anything she had done to the children, but upon the charge that she had ignored the dangers that her second husband allegedly posed to the children.

For her part, Karmen couldn’t help but feel as though the state’s investigators were punishing her not for any danger to the children, but for her unconventional family.

“I know a lot of people wouldn’t be able to live with their ex [husband] and their boyfriend at the same time,” she says. “I mean, you hardly hear of that. But we were a family. We were getting along. We were making it work. And her [Karlee's] dad was really sick then. He’s doing better now. They got him an insulin pump. So he’s doing a lot better. But at that time he wasn’t and we all all worked together as a family, and we got along.”

On this issue, at least, Karmen and the Center’s legal team had somewhere they could go. They could appeal the 2007 DSHS findings to an administrative law judge. There they could set the record straight with evidence and witnesses. Sloyer and Beavers and Regalado were preparing to exonerate Karmen Hassinger through the administrative hearing process when, in so many words, they were told by state officials that if Karmen Hassinger prevailed in the appeal, it simply wouldn’t matter to the state.

Here’s how Sloyer puts it: “So, here’s what the Department of Early Learning says, ‘that’s fine, you to go trial on that, but even if you prevail she will still have the 1996 finding, and we will not issue another waiver.’ And here’s what they kept saying: ‘it doesn’t matter. Even if you prevail that’s two incidents.’ And we said, ‘it’s not two incidents because she [Karmen] would have prevailed.’ And they would say, ‘but we know what the allegations were so we’re not going to grant a waiver.’”

To the CFJ legal team, what the State of Washington was saying is that it was determined to end Karmen Hassinger’s life as she knew it, no matter what.

There were only two things to be done.

The first is that Karmen, with CFJ’s help, would make her case in an appeal before an administrative law judge (ALJ). The appeal went to a hearing. Karmen Hassinger was exonerated.

The ALJ’s decision at least prompted the state to back up a half step. The state officials informed the CFJ legal team that they would now be willing to re-instate the waiver to Nurturey that the state had granted two years earlier. The Center’s response: no way.

“One,” says Sloyer, “the waiver is tenuous because she’s not going to be at the Nurturey forever, and she has trained her whole adult life in child care, this is what she does. We don’t want to put her in a position where if she’s looking for new employment she’s got to say to the new employer, ‘oh, by the way, you’re going to have to get a waiver.’ And, second, our firm belief was that, in 1996, when she didn’t get notice to be able to challenge the finding, that this is Constitutionally inadequate. You cannot do this to a person.”

The next step for the Center was to approach the assistant attorney general representing DSHS with a lengthy January 25, 2008 letter, laying out the evidence and history of Karmen’s grief at the hands of the state, and teeing up the federal Constitutional issues of due process. Implicit in the letter was the threat of federal civil rights lawsuit against the state.

In response, the state settled. The 1996 “founded finding” was deleted.

“I always say that if it wasn’t for the Center for Justice this couldn’t have happened,” Karmen says. “They gave me my life back. I couldn’t have done it by myself. I don’t even know the first step in the legal world. It would have been too hard. I want to be a nurse some day and I wouldn’t have been able to do that with this hanging over my head.”

Even so, it was hardly no harm, no foul. Karlee and her older brother, Karmen says, were still receiving counseling as recently as this fall to help cope with the trauma inflicted on them last year when the children were taken from their mother and their fathers.

“We’re still struggling to get our lives back on track to this day,” she says.

“It wasn’t fair,” she says when asked what she thinks this means for others. “It just reminds me of when people tell me if it can happen to you, it can happen to anybody. If it can happen to me, it can happen to anybody.”

And, in fact, it has happened to someone else, another woman with children of her own, who became a Center for Justice client after she was referred to CFJ by her private attorney.

The woman did not want her real name used for this story. So we’ll identify her by the fictitious name of Grace Jones.

In 1993 Grace Jones was recently divorced and had only recently moved to western Washington with her young son and daughter. She landed in a mid-sized town north of Seattle where she began working as a kindergarten aide and substitute teacher. Jones’s daughter is autistic and was then prone to violent outbursts that often included hitting and throwing objects. One October evening, looking into Jones’s home through a window, some neighbors thought they witnessed Jones throwing books at her daughter.

One of the neighbors called CPS and CPS investigated. Jones’s account of the incident differs from what the neighbor reported.

“At the time of the stated incident,” she wrote in an April 26, 2006 letter to the DSHS Office of Administrative Hearings, “[my daughter] was out of control and scratching and kicking, biting, and head butting, as well as throwing items at me. I tried a physical restraint, but was hurt and it was not possible to contain her. I was blocking and throwing the items (books) away from me as [she] threw them, I was not throwing directly at her. The persons witnessing the incident were a yard away and looking through a darkened window, as our window was darkened also. They did not see the events, [her] out of control behavior before they thought they saw me throwing books at [her].”

The caseworker who investigated the complaint found no evidence that Grace Jones’s daughter had been injured in the episode.

This is a literal passage from the CPS report at the time: “The child has significant delays and problems [sic] behavior which can be frustrating to all involved with her. Mothers [sic] under a tremendous number of stressors [sic] at the time but has good skills and understanding of child’s behaviors and needs.”

Despite the fact that the CPS caseworker, herself, termed the episode an “isolated incident,” the incident was still entered into the agency’s books as a “founded finding” of child abuse. As with Karen Hassinger’s “founded finding,” Grace Jones wasn’t informed about it and had no opportunity to contest it.

Thirteen years passed. There were never any other allegations of abuse or neglect reported to CPS or investigated by the agency.

Jones moved to another Puget Sound community to take a teaching position and she eventually moved to Spokane where she took another school district job. She passed background checks with each new teaching position and even received a contract from the DSHS Division of Developmental Disability to provide services to her daughter.

In the summer of 2006, to earn some extra money and evaluate a possible career shift, Grace Jones applied for two day care jobs in Spokane. And that’s when she first learned that the state, in its files, had her on the DSHS black list as a child abuser.

“I was astonished,” she says. “I couldn’t believe it and I wanted to try to clear my name.” To help her fight back she first contacted and was represented by private attorney Lisa Dickenson. After nearly two years of trying to help Jones get a hearing to clear her name, Dickenson referred Jones’s case to the Center for Justice.

What the Center’s lawyers immediately recognized in Grace Jones’s case is that she was being unfairly victimized by the same state rule and practice that had nearly broken Karmen Hassinger and her family.

The problem, in a nutshell, is that prior to 1998 there simply was no opportunity, by rule, for a person tagged by DSHS with a “founded finding” of abuse or neglect to get a hearing where he or she could even contest the finding. In October 1998, the rule was changed by law so that, since that time, “a person named as an alleged perpetrator..in a founded report of child abuse or neglect has the right to seek review and amendment of the finding.”

Not so for Karmen Hassinger and Grace Jones though. Because the “founded findings” against them were entered pre-1998, they simply had no right to an administrative appeal.

As she sought to clear her name, Jones endured her own expensive ordeal at the hands of the state. In addition to the attorney fees for her private lawyer, she was also barred from working in day care without a waiver, something that effectively made her unemployable for three years worth of the summer work she was seeking.

When Jones got the news in April 2006 that she was barred from working in licensed child care facilities in Washington, she swiftly sought an administrative hearing. That hearing took place two months later and, on August 17, 2006, Administrative Law Judge Richard Roberts ruled in her favor. Roberts found the anomaly in the law–that while the 1998 change in the law gave hearing rights to persons in Jones’s situation, those rights did not exist prior to 1998.

“However,” he wrote, “this does not resolve the matter.”

Whether Jones actually posed “a risk to a child’s safety and well-being remains in issue of material fact.” In other words, Judge Roberts ruled that a hearing was necessary before Jones could be barred.

Rather than go to a hearing on the evidence, though, the Department of Early Learning appealed Judge Roberts’s decision directly to the agency’s Board of Appeals, and in November 2006, the Board of Appeals reversed Roberts’s ruling finding, among other things, that because the pre-1998 state rules applied at the time of the initial “finding,” in 1993, Jones was simply out of luck. She was not entitled to a hearing on the facts.

Jones didn’t give up. With the help of Lisa Dickenson, her private attorney, she filed suit against DSHS and the Department of Early Learning in state court.

On September 12, 2007, Spokane County Superior Court Judge Neal Rielly, in a short and eloquent ruling, found that the agency had not only failed to meet the burden of evidence needed to bar her from employment, but “she hasn’t even been given an opportunity to contest the finding of child abuse.”

“[Jones] was and is entitled to due process. She was not given any notice or opportunity to be heard. Her due process rights have been violated.”

Judge Rielly had concluded that the State of Washington had violated Grace Jones’s rights under the U.S. Constitution. He remanded her case back to the DEL administrative hearings process “for a full fact-finding” on the 1993 finding of child abuse.

Because of the mounting expenses of her legal challenge, the case was transferred to the Center for Justice after Judge Rielly’s ruling. By that time, of course, the CFJ team was more than familiar with the problem, having seen the tragedy that was visited upon Karmen Hassinger.

Remarkably, after fighting for two years to deny Grace Jones an opportunity to clear her name, the Department of Early Learning simply abandoned the case after Judge Rielly’s ruling. When Center for Justice lawyers filed a new motion for summary judgment earlier this year to clear Jones, the Department of Early Learning simply didn’t respond. The fight was over. With the help of attorney Lisa Dickenson and the CFJ legal team, Grace Jones had gotten her good name back. But not before she had endured considerable legal expenses and three summers of lost work.

“I don’t know what I would have done without the Center for Justice,” Jones says. “But I wouldn’t wish this kind of experience on anybody.”

“These are powerful traumatic examples of why we [Center for Justice] do government accountability,” says Terri Sloyer about the Hassinger and Jones cases. “This is horrible overreaching by the government that impacts the lives of lower and middle class Americans. The government comes in and makes a ruling that deeply affects your life and you didn’t even know that the decision existed. It is sort of Kafkaesque.”

What’s especially frustrating about the Department of Early Learnings conduct in the two cases, says Sloyer, is that several years ago the exact same problem arose and was recognized by a lawyer working within the bureaucracy of the state’s Adult Protective Services (APS). Workers were complaining that they were not given a fair opportunity to contest agency findings of neglect or abuse that would cause them to become barred for work in APS-licensed care facilities for adults.

According to Sloyer the APS lawyer saw the due process flaw and worked with top decision-makers in APS to change the agency rules so that a person in the positions that Karmen Hassinger and Grace Jones found themselves in would be notified and entitled to a review hearing before the agency could bar them from future work. Despite appeals in writing from CFJ lawyers, the Department of Early Learning has yet to address the issue the same way APS has addressed it. Thus, there still could be any number of people with similarly flawed pre-1998 DEL “findings” against them, says Sloyer, who don’t know about it and won’t find out about it until they apply for work at a DEL-licensed day care.

What’s complicated things even further, Sloyer points out, is that just within the past year the registries of DEL and APS have been merged. What that means is that people who (prior to 1998) had “findings” registered against them in what are now DEL files, won’t just be barred from working in DEL-licensed facilities. They’ll also be barred from working in APS-licensed care centers.

“What is particularly troubling,” says CFJ’s Bonne Beavers, “is that in many if not most of these cases, the accused has no lawyer. There is no right to a lawyer at government expense in administrative cases for persons who cannot afford one and neither Ms. Jones nor Ms. Hassinger could have afforded counsel to bring suit and appeal on their behalf.”

“How many other people are out there who have tried to work in day care or, now, in APS care, who have one of these findings against them that they never got to challenge?” asks Terri Sloyer. “If they don’t know somebody who knows of a lawyer that they can afford, or know about us [CFJ], then they’re out of luck, and this is on their record for the rest of their lives.”

In what is either a “historic” step toward independent police oversight, or a major coup for Spokane’s police guild, the Spokane City Council voted unanimously Monday night to adopt a controversial ordinance creating a new Office of Police Ombudsman. While the vote will create the office, the ordinance adopted was essentially pre-determined in private negotiations between city officials and the Spokane police guild. Among other weaknesses cited by critics, it does not confer any authority for the new office to actually conduct investigations independent of the Spokane Police Department’s internal affairs unit.

“The choice here,” said city councilman Richard Rush, “is not whether we are getting the best process, or the best ordinance to create the Office of Police Ombudsman. It’s whether we’re going to start now, and start up the learning curve, and have an effective office, or whether we’re going to start later and then get up on the learning curve. And for that reason, I’ve come to the conclusion that it’s best to start now.”

Rush, who a week ago had expressed reservations about parts of the ordinance, said he decided to support it after a long meeting with City Attorney Howard Delaney. With Delaney “educating me a little bit about this process,” Rush said, “I’ve come to appreciate the fact that we just either don’t have an ombudsman, or we do have an ombudsman” under the terms reached between the city and the guild earlier this year.

As he was each of the two previous council meetings, Delaney was on hand to explain the ordinance and how its terms were negotiated.

Literally within seconds after the council took up the measure Monday night, city councilman Mike Allen announced he had a “little heartburn” over the ombudsman selection process in the ordinance, and asked Delaney to respond to the question about whether the selection process was an issue governed by the city’s collective bargaining agreement with the police guild. Delaney’s answer provided the most insight, to date, on how the city negotiated the terms of the ordinance with the police union.

The City Attorney first conceded that there was nothing in the collective bargaining agreement “that compels us” to negotiate with the guild over the ombudsman selection process.

“But let me give it to you like this,” Delaney continued. “If I go to a bargaining unit in the middle of a contract period and I want to negotiate three things, a, b, and c, they have no obligation to negotiate those within the contract. So, let’s say that they’re willing to talk about that and they say, okay, we want to negotiate a, b, and c, and we’re willing to discuss that but we also have concerns about x, y, and z. And so, we’re willing to discuss from a bargaining unit perspective a, b, and c, which you’re interested in, but you’ve got to be willing to talk about x, y, and z, with us also. That’s how this provision [the selection process] came to be part of the negotiations, is [sic] it was the x, y, z portion in that the guild said we will discuss the other things that are subject to collective bargaining but we want to also discuss these. Hence, you can’t get to a, b, and c, from our perspective, that’s the city’s, unless we’re also willing to discuss x, y, and z, the things they[the guild] were interested in making part of that negotiation.”

What Delaney referred to as “a, b, and c” is obviously the very existence of the proposed ombudsman office–even one without the independent investigative authority that city consultant Sam Pailca recommended last year.

But just to get the guild to consider any ombudsman position at all, Delaney explained to Allen, the city agreed to a convoluted selection process. As outlined in the new ordinance, the selection process gives representatives of the Spokane Police Officers Guild and the Lieutenants and Captains Association what some would construe as effective veto power over who the ombudsman gets to be. Specifically, the ordinance would set up a five member selection committee. Two of the first four appointments to that committee would have to be members approved by police organizations, and then the first four would have to decide on who the fifth member would be.

The five member selection committee would then recommend three candidates for the position to the Mayor who would be obliged to nominate one of the three for confirmation to the City Council.

It was this process that Rush had balked at last week, and which Allen was raising concerns about Monday night. Allen, while still expressing discomfort with the selection process, said he would nevertheless support the ordinance after Delaney and Council President Joe Shogan, a lawyer, offered their opinions that if the council rejected the Mayor’s proposed choice, the process could be repeated with the selection committee sending an additional slate of acceptable candidates to the Mayor’s office.

“You know,” Allen said, “it’s not a perfect ordinance, but given some of the clarifications I have [gotten] tonight, I will support the ordinance.”

Councilman Steve Corker called the passage of the ordinance “a very important first step, and a program we’ll be very proud of in the years ahead and be very thankful that we took the first step tonight.”

Councilwoman Nancy McLaughlin also said she felt better about the final ordinance after amendments she proposed last week–one of which stripped term limits from the office, and another of which made clear that candidates could be sought with a national search–were adopted.

Both Shogan and Corker complimented the Center for Justice for providing a review and critique of the ordinance. But here it must be noted that none of the Center’s suggestions for selecting the police ombudsman or bolstering the independence of the office were included in the ordinance adopted by the council.

Moments after the vote was taken, Council President Shogan deemed it a “historic” moment for Spokane.

“This has been a long, hard process,” he said. “Now we have the very difficult task of finding somebody who would be the best possible male or female first police ombudsman in the City of Spokane. This is going to be a very difficult job and whoever holds the job the first time is going to set a tone and very well may determine the success or failure of this Office of Police Ombudsman. We will be monitoring, as all citizens will be, the operation of the office with a view toward making suggestions to making it better, through this year. There’s another negotiation with the guild coming up, for a contract, which will be an opportunity within the next year to make suggestions involving negotiations, should they occur.”

One tip-off that Friday’s overflowing meeting in east Spokane would be different is that the Environmental Protection Agency (EPA) opened the session with a short prep session by an agency facilitator. Noting the “very stressful situation” that most of the dozens of officials, attorneys, and engineers present found themselves in because of recent Spokane River

EPA's Christine Psyk talking to reporters after Friday's stressful meeting.

developments, he explained that part of his role was “to provide a safe and respectful environment for the exchange of information.”

It took nearly 15 minutes for everybody in the standing room only hall to identify themselves but once that was out of the way, Christine Psyk (pronounced “Pike”), wearing a bright red coat with her hand made name tag on it, stood at a podium in the front of the room and, on behalf of the U.S. Government, did a most unusual thing. Psyk, the EPA associate regional director for EPA’s Office of Water and Watersheds, acknowledged her agency made a mistake, and she apologized.

“So what happened?” Psyk said. “Why the change? The newspaper headlines said that ‘EPA made a mistake.’ What was the mistake that they were referring to?”

Psyk then patiently walked back through the labyrinth of stakeholder and river discharger meetings over the past four years. In her account, the decision that set the stage for the mistake was the one in which EPA separated its work on permitting Idaho discharges to the Spokane River, from the process convened by the Washington Department of Ecology to work on solving Washington’s water quality problems in general and the dissolved oxygen problem in Lake Spokane (Long Lake) in particular.

The reasoning, she said, went like this. Because the river could handle phosphorous and other nutrients causing decreases in dissolved oxygen (DO) up to a 0.2 mg/L diminution in DO, EPA thought it could permit the three Idaho river dischargers because modeling “showed the effect was approximately 0.15 mg/L.”

The blunder, such as it was, that Psyk was owning up to on behalf of EPA was to interpret that number as being inconsequential.

“Concurrently,” she explained, “this enabled Washington in their draft TMDL [the state's mandatory plan to come into compliance with water quality standards for DO] to allow pollution sources in the State of Washington to decrease dissolved oxygen concentrations by the amount allowed under Washington’s water quality standard, which is 0.2 mg/L.”

In other words, if the Idaho pollution could be counted at zero because it wouldn’t, by itself, cause water quality violations sixty miles downstream in Lake Spokane, then Washington dischargers could use the full 0.2 mg/L allotment on their side of the state line to put the maximum allowable load of nutrient pollution into the river.

If the logic in that is dizzying by the standards of common sense, it should be, because it doesn’t make any sense. And that is what Psyk squarely acknowledged Friday, that the critics led by the Sierra Club and the Center for Justice had it right.

“Many people may think that comments they make to the government are not heard,” Psyk said. “This is not true. Public comments can really make a difference in what happens and does not happen in our environment. After a thorough review of public comment and extensive internal deliberation we concluded that, from a legal perspective, we had erred in our interpretation of the Washington water quality standards by not considering the Idaho and Washington sources cumulatively in determining the effluent limits for the Idaho dischargers.”

Yet, the heartburn in the room wasn’t limited to the Idaho dischargers who, obviously, were less than pleased by EPA’s reversal. Actually counting Idaho’s pollution as it enters Washington will not only affect how the Idaho dischargers get permitted,