Sparks fly as council delays vote another week.
After two hearings on successive Monday nights, the Spokane City Council’s long-awaited vote on a new Office of Police Ombudsman will apparently happen next week. In the meantime, some things are clearer about the new measure. And some things less.
In the clarity category, it can now safely be reported that the council understands that the office will not have any power to conduct independent investigations. This much was clear from a testy exchange between stalwart council watcher and former south side city council candidate George McGrath and Council President Joe Shogan.
The exchange began when McGrath questioned the council about proposed amendments and
raised a contradiction he thought he’d heard between the use of the word “independent” in describing the ombudsman function and the actual text of the ordinance that specifies police department’s internal affairs office would investigate complaints filed with the ombudsman office, not the ombudsman.
“The ombudsman is not doing investigations,” Shogan declared.
Shogan’s clarification steered McGrath toward his main objection, which was the council members’ admitted use of a draft ordinance that included shaded areas to identify language they were told they could not change because it had been resolved between city officials and the police guild during contract negotiations.
“The area that bothers me a lot on this is you’re speaking about these gray areas. Now, who runs this city? The police guild? Or do you people? It really bothers me.”
At that point Shogan interrupted him to explain the council’s position.
“The requirement to negotiate working conditions is state law,” Shogan said. “The state legislature governs that, not the city council. And we have to abide by state law.”
That didn’t satisfy McGrath.
“Who determines what these working conditions are?” he persisted. “The police guild? I mean this has bothered me since the inception of this thing. You people have sat up here and said ‘we can’t do that because of the police guild, we can’t do that because of the police guild, this has to be negotiated by the police guild.’ And I am very offended by that because I do not believe the police guild should be running this town.”
McGrath tried to move to another criticism but, at that point, Shogan interrupted again and called City Attorney Howard Delaney forward to explain “what working conditions are, as defined by state law?”
Said the City Attorney: “Here’s the way this particular ordinance is working vis-a-vis state law and working conditions. We negotiated and settled a contract with the Spokane Police Guild. This ordinance is now being brought forward during the term of an existing contract. So, when you want to change working conditions, for instance, those things that may affect employee discipline, okay, [on] which this ordinance, you know, has an impact, in the middle of a contract, you have to re-open negotiations to get a tentative agreement to move this ordinance forward. If you simply wanted to wait until 2010, until the end of the current contract, and negotiate this before the start of the next contract, and wait, then you can address all of these issues in straight negotiations. The problem is this ordinance is being brought forward in mid-contract.”
Councilwoman Nancy McLaughlin then invited Delaney to comment upon her question that McGrath, by bringing his complaint to the city council, instead of the state legislature, was “talking to the wrong group of elected officials.”
“Essentially if you were to change their working conditions mid-contract,” Delaney replied, “there would be an allegation of an unfair labor practice which would go to the state level [arguing] the city council doesn’t have the authority to do these things.”
Once he was allowed to resume speaking, McGrath persisted, briefly, in voicing his displeasure about the guild’s influence in deciding what an ombudsman would do, and then moved to his next criticism, which was the selection process. Under the draft ordinance’s terms, the ombudsman would be selected by a five member committee, two members of which would be appointed by police representatives, another two by the mayor, and the fifth by selection from the first four.
“I just don’t understand the fairness of this at all,” McGrath concluded.
“Thank you, Mister McGrath,” Shogan said as McGrath left the podium. “I don’t think the police department is run by the guild. I don’t think the police department dictates what we do.”
“I do!” McGrath shouted as he settled back into his seat.
“Well you’re done Mister McGrath, for now,” Shogan shot back. “If you want to make comments from the audience, you can get up and make them out in the hallway.”
Shogan then defended the fairness of the selection process, while continuing to chastise McGrath for being “unfair” in prejudging “the character of all five of those people.”
McGrath was followed to the podium by another former city council candidate, Donna McKereghan. First, McKereghan reiterated testimony she gave last Monday, supporting the ordinance but also taking the position (shared by lawyers at the Center for Justice) that an ombudsman with the power to do independent investigations of complaints would not violate the police guild’s contract because the ombudsman’s work would not be part of the disciplinary process.
“Howard [Delaney] made a comment that made it very clear,” McKereghan said. “He said you cannot have an ordinance that might have an impact on discipline. And yet throughout your ordinance you’re trying to say, ‘this person is not disciplinary.’ Well, it’s either going to have an impact on discipline, in which case you do have to negotiate. Or it doesn’t have an impact on discipline, which is what you have in your ordinance, in which case you don’t have to negotiate.”
But McKereghan’s saved her strongest words for those who’ve criticized the ordinance.
“I think they [the police] have every good reason to be concerned about oversight,” she said. “The attorneys, the other folks who are saying that this doesn’t have to be negotiated have really made an unfair issue of this to the public. Because, I agree, it doesn’t have to be negotiated. Moving on. We chose to do it. We’ve got a good ordinance to start. I think that’s where we need to go. Because these are good people and most of our force are good officers, and all of this negative presumption is part of the problem in getting us to move forward to where we have a good positive working relationship with our police department.”
The third and last person to testify was the Center’s Breean Beggs. But before Beggs spoke, councilman Bob Apple asked Delaney to talk about what would happen if “we abrogate our negotiated agreement” with the police guild. Delaney said he had discussed that with the guild’s lawyer on Friday and was confident it would result in an unfair labor practices claim by the guild. When asked by Apple how that would affect the timeline for implementing the ordinance, Delaney said, “probably, ultimately you’d be better off from a timing stand, to pull this off the table and just go back to the next negotiation point at 2010.”
“I just want to ask you when we get to negotiations,” said Beggs, “that you take into account all all the requests from citizens for actual independent investigation and oversight. Because as I understand Mister Apple’s question to Mister Delaney [it] really spells it out, which is that because the guild can file an unfair labor practice, even if independent investigation really isn’t part of working conditions, it will be held up in court. My understanding is you’ve taken the position that ‘let’s get started without that.’ But I just want to bring to folks attention that there will be a negotiation that an independent person who has no influence over the chief for discipline is not working conditions. And what citizens want is a window into bad situations and how they can be improved.”
“One of the best examples,” Beggs continued, “was in the Otto Zehm case. When it came out in the paper that the Fire Department has used a non-rebreather mask, the Fire Department within weeks of that being publicized put together a task force to investigate it and make recommendations. Now, they did not fault anyone for what happened. But they made darn sure that, from now on, no Fire Department officials will put an oxygen mask on someone without oxygen.”
The point, said Beggs, is that the investigation led to changes in policy that improved department practices.
“If we don’t get that eventually in this town,” Beggs concluded, “all we’re going to be left with is civil lawsuits, which is a waste of a lot of money and time.”
Although the council didn’t vote on the ordinance Monday night, they did discuss and take votes on mostly minor changes to the ordinance. At least one of those discussions introduced some new uncertainty that may further weaken the ability of the office to offer independent advice.
The discussion came when Councilman Richard Rush was trying to better describe, up front in the ordinance, what the Office of Police Ombudsman would do. Rush wanted to bring language from page 4, where it states that the OPO “may recommend..changes in departmental policies to improve the quality of police investigations and practices,” up to the first page, so the public could more readily understand what the office would be about. In his proposed language for the first page, Rush wanted the to describe the OPO as provided recommendations on “best practices” to the police department and police academy.
“I’m hesitant to go where this may lead,” Shogan said, “because I have a problem with the ombudsman recommending best practices.”
Rush’s motion failed in light of Shogan’s opposition, throwing into question just what the council intends with the existing language on page 4 about giving the OPO the duty to make recommendations about police practices.
Rush, for his part, later announced that he was not yet sure how he would vote on the ordinance and said he shared the concern George McGrath raised about the fairness of the selection process.
With the ordinance requiring that the council select one of the candidates chosen by the five member selection committee, Rush said he was concerned that it “removes political accountability piece for the Mayor and puts it on an unaccountable committee.”
“I don’t see how the selection of this committee or the formation of this committee has anything to do with working conditions,” Rush said.
At the outset of the hearing, councilwoman McLaughlin proposed deleting from the ordinance a requirement that the ombudsman selected be a resident of the City of Spokane, so as to open the door for a wide search for the best possible candidate. The council voted to accept that change.
Terri Sloyer, the CFJ attorney who has worked continuously on the police oversight issue for nearly three years, said afterwards that while she has several concerns about the ordinance, her biggest concern is still whether anyone with the qualifications and integrity needed for the job would be interested in applying for the Spokane position as it the ordinance currently defines and restricts it.
“Can we find a credible individual who believes in true professional, independent oversight?” Sloyer asked. “Who is that person? Can we even find anybody under these conditions, where you just get to watch?”
Beggs agreed: “The biggest concern about where it stands right now is that the selection process is weighted to the police department. And so even if contract negotiations re-open next year and we pass the ordinance we really want, we’re still going to have the ombudsperson who is selected by a skewed selection process.”
