An Eye for the Watchdog?

City Council considers ordinance to give police Ombudsman independent authority to investigate and report.

By Tim Connor

One way or another, the next chapter in Spokane’s rambling and, at times, darkly humorous struggle to create credible civilian oversight for its police department will be written May 24th, when the city council takes up a new ordinance.

The new measure, introduced by Councilman Bob Apple at the behest of a coalition of citizen organizations (including the Center for Justice) would explicitly assign independent investigative and reporting authority to the Office of Police Ombudsman (OPO), currently held by former California police officer Tim Burns.

“Right now we have someone who is called an Ombudsman but who’s really part of an Ombudsfarce,” says Peace and Justice Action League of Spokane (PJALS) director Liz Moore. “He does not have the power to launch or conduct real investigations of police conduct. What we want is what our community deserves, and that’s a structure that has served Boise, Idaho, well for over ten years. This ordinance is the next critical step in that direction.”

The newly proposed ordinance would fill weaknesses in the OPO’s authority that citizen activists and a clear majority of Spokane city council members have said they support. Specifically, it would give the office independent investigative and reporting authority so that the Ombudsman could, at his or her discretion, independently look into critical incidents* (i.e. those involving the use of deadly force) and citizen complaints and issue public reports about his or her findings.

Under the existing Ombudsman ordinance adopted by the city in October 2008, the office lacks the authority to investigate citizen complaints or use of deadly force incidents independent of investigations initiated and supervised by the police department’s internal affairs (IA) office. Moreover, the Office of Police Ombudsman (OPO) currently lacks even the authority to issue independent reports about citizen complaints the office receives. That would change under the new ordinance. For example, where the existing city rules give power to the Spokane Police Department to decide what complaints made to the Ombudsman actually get investigated by the SPD, the new ordinance would require the Ombudsman to issue reports on all complaints, even those the SPD chooses not to investigate.

“In demanding independent police oversight, community members are looking for a straightforward opinion from the Ombudsman on what worked, what went wrong and how things can be improved each time the police kill or seriously injure someone in Spokane,” says Center for Justice lawyer Breean Beggs. “The Ombudsman is in a unique position to give us that analysis and it can be done without infringing on employee rights because the ordinance looks forward to improvements and does not use the Ombudsman’s conclusions in any disciplinary process.”

In addition to the Center for Justice, the coalition supporting the new ordinance includes:

The Peace & Justice Action League of Spokane
Eastern Washington Voters
VOICES
Coalition of Responsible Disabled (CORD)
Odyssey Youth Center
SHAWL Society
National Alliance on Mental Illness (NAMI)
Movimiento Estudiantil Chicana/o de Aztlan (MEChA) of Eastern Washington University
Progressive Democrats of America
National Association for the Advancement of Colored People (NAACP).

Since the proposed ordinance was registered with the City Clerk on April 27th, Beggs and others acting on behalf of the coalition have been working to outline possible amendments to the measure that would address issues and concerns raised by supportive city council members. On Wednesday, Councilman Apple circulated to the City Clerk and his fellow council members a revised version of the proposed ordinance that incorporates these changes.

Although the public push for effective civilian oversight over the SPD has been engaged for at least thirty years in Spokane, the issue gathered a large dose of urgency following the death of Otto Zehm at the hands of Spokane police officers in March 2006. The U.S. Justice Department is actively prosecuting a Spokane police officer involved in Zehm’s arrest and the Center for Justice is representing the Zehm family in a civil lawsuit against several police officers and the city itself.

In April 2007, Sam Pailca, a consultant hired by the city to review civilian police oversight recommended, among other things, that the city create a police ombudsman office that would oversee the SPD’s internal affairs investigations of police misconduct. Pailca also clearly recommended that, in order to have public credibility, the ombudsman should also have the power, when necessary, to conduct independent investigations and issue his/her own reports.

But when the city created its Office of Professional Ombudsman in 2008, city leaders acknowledged at the time that the measure was watered down in negotiations with the city’s police unions. The unions have threatened to take legal action against the city on the theory that empowering an ombudsman or other independent entity with independent investigative authority would be a change in working conditions covered by a collective bargaining agreement.

Lawyers for the coalition dispute this and argue that a ruling last fall by the state’s Public Employment Relations Commission (PERC) supports their view that independent oversight of police is something that fall within a city’s managerial discretion, so long as the oversight doesn’t effect daily working conditions, such as officer discipline.

“While fault finding is appropriate for the courts and union-management proceedings,” says Beggs, “the Office of Police Oversight is intended to quickly move the entire community forward into solutions to the challenges facing law enforcement.  Until we get those independent reports from each complaint and critical incident, the public won’t have the knowledge and tools to support that process.”

Although the city council addressed the independence issue last fall by passing a resolution requesting the mayor to bargain for independent authority for the ombudsman, the city now reports that it was unable to secure such an agreement with the unions. A recent memo from the City Attorney’s office both acknowledges that the current ordinance doesn’t authorize independent investigations by the Ombudsman, and takes issue with the citizen coalition’s attorneys’ views that the proposed new ordinance should withstand union legal challenges.

*Critical incidents include hostage, barricade, or sniper situations, high-risk apprehension, high-risk warrant service, personal protection, and special assignments.