Inside the Ombudsfarce

Why Spokane’s half-baked office for police oversight is only making matters worse.

Among my first assignments as a young investigative reporter  was to examine a growing file of complaints about police brutality in Spokane. It took several weeks to complete and involved a lot of shoe leather work, finding and talking to witnesses. You can read my story here.

In retrospect, and in light of the deepening crisis of public confidence in the Spokane Police Department, it’s telling that I had more power as a journalist to investigate police violence in Spokane, and report on it, than Tim Burns does. The significance of this is that Tim Burns is the city’s police Ombudsman, the person hired to run the Office of Police Ombudsman created a year and a half ago to receive complaints from citizens about police conduct.

I use the term “receive complaints” purposefully because, as the Inlander’s Kevin Taylor has helped to point out, Tim Burns is really not an “Ombudsman” in the dictionary sense of the word. By common definition, an ombudsman investigates citizen allegations of wrongdoing. But Burns’s powers are largely ceremonial. The powers of the office, such as they are, were carefully hog-tied in private negotiations between the city and Spokane’s police unions before the ordinance surfaced to be publicly debated and voted on.

Under terms of the 2008 ordinance, if you or your neighbor were to take a complaint to Tim Burns his only avenue is to take the complaint to the Spokane Police Department’s internal affairs (IA) office. (Some of you are by now thinking that the city code on this can’t really be this cynical. But you’re welcome to read it for yourself here.)

SPD IA then makes a decision as to whether the complaint warrants investigation. If SPD thinks it does, then IA does the investigation and allows the Ombudsman to sit in on the interviews.

Dave and I are both 53 but one way you can tell us apart is that I’m white and Dave’s black. And the fact that Dave is black is the only reason he and I and others suspect that he was pulled over by Spokane police (on his way home, ironically, from attending the Martin Luther King, Jr., Day unity march) in January.

Under the ordinance, there are no powers granted to the OPO to investigate outside the bounds of the SPD IA investigation.

“Upon completion of each administrative investigation, IA will forward a complete copy of the case file to the OPO for review. The OPO will determine whether the investigation was thorough and objective.”

By the plain terms of the ordinance, the power of the Spokane Ombudsman is limited to withholding his or her stamp of approval on the SPD investigation, and he/she can appeal to the police chief and, ultimately, to the mayor for additions or improvements to the report. But that’s it. Oh, and the Ombudsman can conduct a followup session with a dissatisfied complainant to “discuss the matter further.” [SMC 4.32.030 (M)]

One of the ways this issue strikes close to home is through Dave Edwards. Dave is the building maintenance supervisor at the Community Building where I work. There’s a lot that contributes to the joie de vivre in the Community Building but Dave’s spirit, his signature sense of humor, and his countless hours of volunteer work for Spokane’s homeless and hungry are at the core of it.

Dave and I are both 53 but one way you can tell us apart is that I’m white and Dave’s black. And the fact that Dave is black is the only reason he and I and others suspect that he was pulled over by Spokane police (on his way home, ironically, from attending the Martin Luther King, Jr., Day unity march) in January. He was cited for failing to make a left turn signal (Dave denies that he failed to signal) and a tense encounter followed in which, Dave says, the police used gratuitous profanity and drew their guns on him. Dave described the episode to the Inlander and Kevin Taylor wrote about it in his March 24th feature story, “Watch Man,” about Tim Burns.

Edwards’s arrest became relevant to the Ombudsman controversy because he filed a complaint with Burns about the incident.

Of course, like anybody who hadn’t bothered to read the fine print on the Ombudsman ordinance, Dave Edwards had little way of knowing how little power Burns actually had to investigate the complaint.

As is always the case in these disputes, there’s a lot of he said/she said (the lead arresting officer was a woman) that we can dig into. We’re not going to do that, here, because a) I consider Dave a friend and thus I have a bias and b) it’s not necessary in order to make the points I want to make about how absurd the present situation is. So, I’m going to stick with facts that are not in dispute, and rely largely upon Tim Burns and my other reporting to give this story the depth and meaning it deserves.

In an interview Burns graciously granted and allowed me to record Monday morning (May 17th), he confirmed that by late January his summary of Edwards’s grievance was filed with the Spokane Police Department’s Internal Affairs office.

Eventually, a Spokane police sergeant showed up, alone, at Edwards’s house to do the followup interview. There is a dispute as to whether the visit was unannounced, and it is a charged dispute because Edwards is still angry that his young son was there to witness an armed police officer visiting the home. He did not want to do the interview at his home, but he reluctantly agreed to it rather than sending the officer away.

I was surprised at this for another reason. The way I had read (and still read) the existing Ombudsman ordinance, Tim Burns should have at least been notified about the effort by SPD to interview Edwards and been given the option to attend the interview.

I’ll come back to this.

By this time, according to Burns, Edwards’s grievance was being investigated by internal affairs as a certified complaint. Here it’s at least noteworthy that the investigation had been assigned to a patrol sergeant who is not an internal affairs officer, and this was the sergeant who showed up on Dave Edwards’s porch.

The ordinance requires that the investigation of complaints be routed to the Ombudsman when they’re completed so he can have the chance to certify whether the investigation was “thorough and objective.” [SMC 4.32.030 (H)]

Burns says he originally didn’t certify the investigation into Edwards’s complaint, and that he requested additional data analysis. Once that analysis was done, he says, he did certify the SPD investigation.

Edwards says he was unaware that Burns had certified the investigation when, early last week, he received a May 10th letter from Police Chief Anne Kirkpatrick informing him that the actions of the arresting officers “were appropriate given the facts available to them at the time of the incident.”

“Discipline is out of my parameters as you know,” Burns told me Monday morning. “So when I certify the investigation, I’m done. Then it goes back to internal affairs and it is sent up to Chief Kirkpatrick through [assistant] Chief (Jim) Nicks for her review. And that’s typically the first time that Chief Kirkpatrick will get involved at all. What she draws from conclusions (sic) from reading the report are hers. And I have no say, and I have no knowledge of where she goes.”

The above paragraph tells you almost everything you need to know about how anemic the existing Ombudsman office is. In fairness to Burns, he’s not responsible for creating the absurd restrictions on his powers. But it’s also true (as Taylor noted in his article) that Burns allowed himself to be used as a political pawn last fall when he stood in the council chambers while Council President Joe Shogan read a statement from Burns saying, in part, that “while I would like to have those tools [to investigate complaints independent of the SPD] at some time in the future, my sense is that the timing is not appropriate.”

This bit of political stagecraft ignored how the city had already engaged in a bait and switch trick with the public by first endorsing a consultant’s recommendation to create the OPO with independent investigative powers, but then agreeing to toss those powers overboard to mollify the police unions.

In any event, Burns was willingly participating in an effort to quell the push to add independent investigative powers to his office.

That was last October. In the course of our interview, Monday, I asked Burns if he was present when the two officers who stopped Edwards were interviewed by SPD.

“No, I was not,” he replied, “and that’s a problem.”

It’s a problem because Burns agrees that the current ordinance is clear that he should be given the opportunity to sit in on interviews with officers as complaints are investigated.

Still, I was surprised to learn that we disagree on how to read the ordinance as it applies to other witnesses, including the very people, like Dave Edwards, who file a complaint. Here’s the relevant section of the city code   SMC 4.32.030 (F):

“Internal affairs will notify the OPO of all administrative interviews on all complaints of a serious matter (complaints that could lead to suspension, demotion, or discharge) and all complaints originating at the OPO. The OPO may attend and observe interviews and will be given the opportunity to ask questions after the completion of questioning by the department.”

I read this to mean that when internal affairs conducts any interview as part of its investigation of a citizen complaint that Burns should at least be invited and be able to ask his questions.

But when I raised this with Burns in our interview Monday, he took issue with it. Here’s part of how that went, from the transcript:

Q. “You think it’s ambiguous as to whether you needed to be notified..

A. “Right.”

Q. “And given an opportunity to be there?”

A. “Right. As it relates to the complainant and any potential witnesses, yes. I would say the ordinance is silent and I would recommend that things get changed either through an administrative policy or through a text amendment, to clearly define that.”

Q. “So you think it’s even ambiguous on witnesses then?”

A. “Yes.”

Q. “As to whether you need to be notified?”

A. “Yes.”

Q. “Do you think you should be notified?”

A. “Oh sure, yeah, I do but hindsight is 20-20, of course.”

Q. “So, we may have a difference on how we read the ordinance but.

A. “Yeah, clearly, and I’ve looked at it several times.”

Q. “But you agree it would be better if it could be read my way?”

A. “Oh yeah. Well of course. Absolutely.”

I share these details because it’s important to know how the current ordinance is actually working, not in the glowing claims of “independence” broadcast in city media releases, but in real life, including the Edwards case. Here, I thought Burns had and was exercising the right to be present when the SPD interviewed witnesses in cases he [Burns] referred to the SPD for investigation. But now I know otherwise.

These may seem like small points, but they’re not. What I learned in following up on Dave’s complaint to Tim Burns is that this laughably watered-down ordinance is even less than it seems to be, and I’d already written it off as a farce.

Ultimately, what people like Dave Edwards care about is not whether Tim Burns or I are right in how we read the existing ordinance. What Dave and others care about is whether the City of Spokane is really committed to police accountability, or whether city leaders are just content with what amounts to a dishonest public relations gimmick.

Meanwhile, the larger story plays itself out, in part, through the Otto Zehm saga where, in case you’ve missed it, the U.S. Department of Justice alleges that the City of Spokane tolerates and perhaps even encourages coordinated efforts to cover up wrongdoing by police officers implicated in police brutality and other unprofessional behavior.

Again, it isn’t just the Center for Justice or the Peace and Justice Action League of Spokane, making these charges. It’s the U.S. Department of Justice. For this and other reasons, citizens in Spokane are increasingly angry and cynical and are understandably frustrated that Mayor Verner and others in City Hall are still in a defensive crouch, just sort of hoping that Tim Burns, the Ombudsman in name only, can at least buy them some time.

But time’s been up for a while. Monday night (May 24th) the Spokane City Council will take up Ordinance C-34953, a measure intended to begin to insert some of the independent powers for the Ombudsman office that were bargained away both in 2008 and 2009 in negotiations with the police guilds. It’s a step in the right direction and a considerable improvement over the existing ordinance.

I don’t think, for a moment, that passing the new ordinance will get us even near to where we need to go. As Dave Edwards would be the first to tell you, we’ve actually lost ground in public confidence, even as we’ve tried, unsuccessfully thus far, to put a credible Ombudsman’s office in place. But onward we go, if only because the only alternative is to just give up.

–Tim Connor