In a March 5th memo to Mayor Verner and the Spokane City Council, the city’s legal staff strongly recommends that the City not take up a proposed ordinance that would add significantly strengthen the independence of the Office of Police Ombudsman.

The memo was provided to the Peace and Justice Action League of Spokane (PJALS) last Friday after PJALS requested the analysis so it could share the city’s views at a public workshop on police oversight that it hosted Saturday morning in north Spokane. In summary, City Legal believes that Spokane has no alternative but to bargain with police unions over the role and scope of powers that an ombudsman or any other police oversight body would have.

The proposed proposed ordinance, released February 2nd by a coalition of organizations led by PJALS, was prepared in close consultation with Center for Justice attorneys who believe that it complies with the requirements of state law. A second legal analysis prepared by an attorney volunteer for PJALS reached the same conclusion.

Both opinions were primarily rooted in a Public Employee Relations Commission ruling last October, in which the PERC sided with the City of Seattle against the Seattle Police Officers Guild, after the guild charged the city with an unfair labor practice. In the Seattle case, the PERC ruled that a citizen panel overseeing the department’s investigation of citizen complaints could not be denied copies of uncensored files because the panel had no disciplinary authority over police officers and thus had no power to affect “working conditions” for officers.

Likewise, PJALS, the Center for Justice and other members of a citizen coalition working on bolstering independent police oversight in Spokane, have argued that giving the city’s police ombudsman independent investigative authority is within the city’s management prerogatives because the Ombudsman has no role in officer discipline, and thus can’t affect working conditions.

The city’s lawyers disagree. In their memo, they say pursuing the course laid out in the proposed ordinance “could easily backfire on the City” because it would be a “nuanced argument based on a not-particularly-relevenat recent PERC case”–meaning the Seattle case.

The city legal position is that the city was obligated to collectively bargain with the police unions to create the Office of Police Ombudsman and because it has already agreed to bargain for the powers of that office with the union, “the City would have an uphill battle convincing PERC that, while we believed we should negotiate with the Guild on the issue in 2009, we are free to change it by legislative fiat–in direct contravention of the Collective Bargaining Agreement.”

The opinion also challenges the notion that documents created by the OPO’s investigation of specific cases could be exempted from disclosure under the state public records law.

“In conclusion,” the city lawyers wrote, “it is our recommendation that the City Council not make any changes to the ordinance creating the OPO at this time. The OPO is scheduled to submit his annual report to the City Council next month. Subsequent to the submission of the report, the City Council is to review the OPO program. The contract will be re-opened in 2011, at which time the above-discussed issues can be revisited in the collective bargaining setting.”

The memo to the council is from City Attorney Howard Delaney, Senior Assistant Attorney Pat Dalton, and assistant city attorneys Erin Jacobson and Mike Piccolo.

PJALS and CFJ attorneys have not yet prepared a response to City Legal’s critique.

–CFJ