Myth-Busted

In a pivotal ruling with clear implications for Spokane, the state’s Public Employment Relations Commission clarifies the limited reach of labor agreements when it comes to independent oversight of police misconduct.

By Tim Connor

In resisting public calls over the past year to give independent investigatory authority to Spokane’s new Office of Police Ombudsman, Spokane city officials repeatedly stiff-armed critics with the argument that to do so could violate state law.

That argument has now been deflated.

Last week, the Washington Public Employment Relations Commission (PERC) rejected a complaint filed by the Seattle Police Officers’ Guild against the City of Seattle in which the Guild targeted a citizen review panel’s access to internal police documents as part of the panel’s investigations of alleged police misconduct.

While the specific issue before the PERC was different than the one that has proven so divisive in Spokane (independent access to police records versus independent investigative authority by an ombudsman), the basis of the PERC’s ruling gets directly to the broader legal issue underlying both controversies.

Says the Center’s Chief Catalyst Breean Beggs: “This published decision provides timely guidance to the Spokane City Council members who have wanted to achieve the public’s goals of independent investigative authority but have been stymied by labor law questions.”

The larger issue in the PERC’s ruling is framed by this question: when a city empowers an independent entity to review complaints against police officers, does this automatically require that the terms and methods of the independent oversight be negotiated with police unions?

The answer in the new ruling from the PERC is that it does not. Unless powers given to an oversight body can be shown to have a direct effect on police officers’ working conditions, the PERC reasons, then it is outside the scope of required union negotiations stipulated in Washington’s Collective Bargaining Act, RCW 41.56. The PERC found that mere review without the power to discipline did not affect the daily working conditions of police officers and was outside the collective bargaining requirement.

The Seattle ruling is important for Spokane because of how prominent and contentious the issue was last fall as the Spokane City Council moved to adopt an ombudsman ordinance that lacked independent investigative authority.

The ruling from the PERC last week clarifies that the critics (including attorneys for the Center for Justice) were actually on very sound footing when they challenged city officials about their repeated assertion that state law would prohibit passing an ordinance giving the police ombudsman investigative authority.

Expectations had clearly been raised that Spokane would get an ombudsman’s office with robust independence. In April 2007, then-Mayor Dennis Hession and Police Chief Anne Kirkpatrick both publicly embraced a new report and recommendations by consultant Sam Pailca that, if implemented, would have given the new ombudsman independent investigative authority. But when hearings on the ordinance took place last fall, a new wall had been erected. Under new mayor, Mary Verner, city negotiators reached closed-door agreement with Spokane’s police unions that stripped independent investigative authority from the ombudsman office.

This pivotal concession to police union negotiators was unpacked by City Council President Joe Shogan, council member Nancy McLaughlin and City Attorney Howard Delaney at a tension-filled September 29th city council meeting.

“The ombudsman is not doing investigations,” Shogan told the audience as he opened the floor to public testimony.

“Who runs this city?” George McGrath, a former southside council candidate asked moments later from the podium in front of the council.  “The police guild? Or do you people?”

McGrath’s exasperated question clearly rankled Shogan who, himself, is an attorney.

“The requirement to negotiate working conditions is state law,” Shogan shot back. “The state legislature governs that and not the city council. And we have to abide by state law.”

He then took the unusual step of calling City Attorney Delaney to the podium and asking him to elaborate. Delaney avoided giving a legal opinion, but he was pressed by McLaughlin to explain why McGrath was “talking to the wrong group of elected officials.”

Delaney replied that for the council to confer investigative authority to the ombudsman would result in “an allegation of an unfair labor practice which would go to the state level” challenging the council’s authority.

The ordinance later passed without expressly authorizing independent investigations, leading to another heated hearing this year.  In June, a citizen coalition led by Liz Moore and the Peace and Justice Action League  of Spokane (PJALS) tried to persuade the council to postpone the appointment of new Ombudsman Tim Burns until the ordinance had been changed to expressly allow for independent investigative authority.

Once again, both Shogan and McLaughlin responded to the public testimony by repeating the argument that the public pressure was being misdirected at them.

“State law mandates that an ombudsman involves a change in working conditions and that has to be bargained with the union,” Shogan said from the council dais to one of the public critics. “Now, you can say you don’t like that, but to blame it on us is unfair.”

But the ruling from the PERC last week clarifies that the critics (including attorneys for the Center for Justice) were actually on very sound footing when they challenged the Mayor and the Spokane City Council over the issue.

For starters, the pertinent state law (RCW 41.56) does not require that cities like Spokane negotiate with police unions before creating independent oversight mechanisms like an ombudsman. As the PERC pointed out in its ruling last week, the real question is whether a change in city policy touches on one of the subject areas that, under the law, requires “mandatory” collective bargaining.

In deciding whether an issue is mandatory or whether it is a “permissive” change that is exempt from collective bargaining, the PERC says it is guided by a 1989 Supreme Court case involving the City of Richland and its firefighters union.

“The Supreme Court held in Richland that ‘the scope of mandatory bargaining is limited to matters of direct concern to employees’ and that ‘managerial decisions that only remotely affect personnel matters’ and decisions that are predominantly managerial prerogatives, are classified as non-mandatory subjects,’” the PERC decision notes. “The ‘scope’ of bargaining is therefore a question of law and fact for the Commission to determine on a case by case basis.”

The Seattle case was initiated in 2006 after the Seattle City Council agreed with members of civilian police oversight body–the Office of Professional Accountability Review Board (OPARB)–that it was being stymied in doing its job because it was only being provided heavily redacted reports (with portions blacked or whited out) on police incidents that it was charged with reviewing. The council then changed the city code to allow the OPARB to review un-redacted reports. The Seattle Police Officers Guild filed an unfair labor practices complaint, arguing that state law required such changes to be bargained for with the guild.

In January of 2008 a hearing examiner agreed with the Guild, but the City of Seattle appealed to the PERC. With its ruling last week, the PERC reversed and overruled the hearing examiner. The key to the commission’s decision is its reasoning that the city’s decision to allow the OPARB access to uncensored records is within the city’s prerogatives under state law. Because the OPARB was established without the authority to discipline Seattle officers, the PERC reasoned its activities were never intended to affect police officer “working conditions” and the change to allow the OPARB access to uncensored files did not change that essential fact. The PERC said it agreed with the City of Seattle’s argument that even with access to un-redacted police records the OPARB remained an entity that is “all bark and no bite.”

Thus, without the “bite” of having disciplinary power over police officers, the OPARB’s work falls within the discretionary managerial functions of the city.

“The Examiner’s conclusions that providing the OPARB with un-redacted files will impact the terms and conditions of employment are based upon the union’s speculation of what could occur, not what actually has occurred,” the PERC decision noted. “Under the facts of this case, the union’s speculation does not transform the subject matter of the May 2006 amendment [allowing the OPARB access to the uncensored records] into a mandatory subject of bargaining because the OPARB’s authority is still limited by the ordinance.”

By the PERC’s reasoning, the same rule of thumb should apply to any challenge that giving a police ombudsman in Spokane independent investigative authority would require mandatory bargaining with the unions.

Why? Because even with investigative independence, the Spokane ombudsman would still be “all bark and no bite” in terms of having no disciplinary power over officers. And this is exactly what Sam Pailca’s recommendations in April 2007 proposed. Here it is no coincidence that Pailca, at the time she submitted her report, was actively serving as the Director of the Seattle Police Department’s Office of Professional Accountability.

“It is no accident that some of the best run police departments have independent oversight that includes investigative authority,” Beggs says. “The authority to investigate doesn’t interfere with important labor rights as longs as all disciplinary authority remains with the Police Chief and is subject to the normal grievance procedures.  Last week’s PERC decision confirms that the Spokane City Council now has the power to further improve its police department with a fully empowered Office of Police Oversight.”

–CFJ