The question of whether Spokane can ever have a credible, independent police ombudsman may come down to a fairly simple legal argument. Let’s have it.
As Liz Moore, Kiondra Bullock, Terri Anderson and other community leaders have expressed recently, the people of Spokane have been solidly in favor of independent oversight of the Spokane police department for a generation now. And yet, for all the familiar reasons, the city’s political leaders just can’t quite bring themselves to deliver it. Instead, as we’ve seen over the past year and a half, they’ve thrown one blandly disingenuous argument after another as to why the public just can’t have what it wants.
In this latest round–as city leaders are beginning to respond to the Groundhog Day press event that Moore, Bullock and Anderson organized–we should first pause and thank the messenger. Jonathan Brunt’s article in Sunday’s newspaper was as balanced and insightful as they come and Brunt did a fine job of teasing out the important threads in this debate.
Second, let’s squarely acknowledge that the Center not only supports the proposed new ordinance, but it is our legal analysis that helps frame it. Frankly, we’ve put our legal cards on the table. We’re trying to show why it is clear (to us, anyway) that City Hall can deliver an independent police ombudsman with the powers and independence that the city’s own consultant, Sam Pailca, recommended in April of 2007.
For the sake of brevity, I’m not going to recount the almost comical political car chase Spokane’s leaders took off on once they had Pailca’s report. But we now have an ombudsman, Tim Burns, who (as we saw last fall) actively campaigns against giving his office independent investigatory authority. (This, by the way, is a painful lesson in that the city got just what it asked for, an ombudsman who’s now defiantly content to let the police do the investigating.)
The Spokane ombudsman can take complaints. But he’s required to turn them over to the internal affairs office of the Spokane Police Department for investigation. If (and only if) the SPD-IA office agrees to investigate, then our ombudsman can tag along on the SPD investigation and give a yes or no answer on whether he thinks it is adequate.
Under such constraints, even using the word “ombudsman”–which is traditionally defined as a person who independently investigates a citizen complaint–is misleading, and that’s the most charitable description available. As time goes on, more and more people in Spokane will understand that the ombudsman is really just a monitor on SPD investigations. That’s not going to help public trust.
Given the political currents in Spokane on this issue, city leaders want the public to believe that actual independent oversight can only be had through collective bargaining with the police guilds and that, without the guilds’ consent, their hands are shackled.
“State law mandates that an ombudsman involves a change in working conditions and that has to be bargained with the union,” Council President Joe Shogan proclaimed during public testimony last June. “Now, you can say you don’t like that, but to blame it on us is unfair.”
That’s interesting. What would the case law on that be? Neither Shogan nor anybody else in City Hall has answered that question.
So it was both welcome and reasonable that S-R reporter Jonathan Brunt would ask city officials how they viewed the contention, written into the preamble of the draft ordinance, that giving the ombudsman independent investigative authority is consistent with Washington law.
Mayor Mary Verner demurred, telling Brunt that the proposed ordinance needed a thorough legal tire kicking. But here’s what Brunt reported from the City Attorney:
“City Attorney Howard Delaney said Thursday that based on his early analysis of the Public Employee Relations Commission’s decisions, the city likely still would need to negotiate with the guild to increase the ombudsman’s powers.”
Okay. Let’s take deep breath. With all due respect to Delaney, some of us are a little impatient with an off-the-cuff, “early analysis” on a question that’s been pending in the public square for well over a year now. Is it too much to ask for a robust legal analysis that would actually be tied to specific PERC rulings and case law and deal, specifically, with independent investigative authority?
It’s easier for our elected leaders to blame state law for tying them to their chairs. It’s just that in this case it’s beginning to look like a self-serving hostage situation, like a Saturday Night Live skit, with the city’s lawyers pretending to wrap their clients in legal rope.
We focused on this controversy last October when the PERC ruled in the case of Seattle Police Officers’ Guild vs. City of Seattle that a hearing examiner got it wrong when the examiner ruled for the guild in a grievance involving independent oversight of the Seattle Police Department. In May 2006, Seattle changed its police oversight ordinance to allow for a three member civilian review panel–the Office of Police Accountability Review Board–to have access to unredacted (uncensored) police files regarding officer conduct and discipline. The guild fought it and filed an unfair labor practice with the hearing examiner.
In reversing the hearing examiner’s finding against Seattle, the PERC focused on a couple key issues that are precisely relevant to the Spokane controversy.
(1) Under state law, the PERC said, only issues of “wages, hours and working conditions” are subject to mandatory collective bargaining. There is a whole other category of issues that, while they can be included in bargaining agreements, actually belong in a category where each party has the discretion to bargain or not bargain over the issues. Here the PERC cited the Washington Supreme Court’s 1989 ruling in a case involving the City of Richland: “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.”
(2) In the Seattle ruling, the PERC found that the OPARB was disconnected from the realm of “wages, hours and working conditions” because it was clear, by ordinance that “the OPARB has never had the authority to impose discipline or recommend that any officer be disciplined.” Thus, the OPARB’s access to unredacted reports is the City of Seattle’s prerogative because its work is outside the scope of mandatory collective bargaining.
While the Seattle case and the Spokane controversy are different in some of the details, the underlying similarities are what stand out. Even with the independent authority that would be granted under the proposed ordinance, the Office of Police Ombudsman in Spokane would not have any authority to impose discipline. Disciplinary power is the threshold that the PERC identified as the point at which civilian oversight would cross into mandatory bargaining issues.
So this is where the controversy lives. This is undoubtedly a political hot potato in Spokane and, yes, it’s easier for our elected leaders to blame state law for tying them to their chairs. It’s just that in this case it’s beginning to look like a self-serving hostage situation, like a Saturday Night Live skit, with the city’s lawyers pretending to wrap their clients in legal rope.
Is it too much to ask to get a fully baked legal opinion?
The least the Mayor and the council can do is demand that Delaney complete a formal analysis and share it with the council and the public. Then we can have a real debate over whether the council should pass an ordinance which, if enacted, would finally begin to deliver on the independent police oversight Spokane citizens have sought for decades.
–Tim Connor
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