How Spokane’s legal department painted the city into an absurd and dangerous corner in the debate over civilian police oversight.
Before he left town for a few days in late May, Breean Beggs said he thought that an ordinance giving Spokane’s police Ombudsman some actual independence from the police department would pass the city council when it came to a vote the following Monday. But he had one caveat. The measure would pass, he predicted, unless the city’s lawyers charged into the fray to stop it.
As we now know, they did. And they succeeded, stalling the measure for at least another month. As I reported last Tuesday, it didn’t go down easy.
The Inlander’s Kevin Taylor describes last Monday’s council meeting as “nothing short of amazing.” I agree. And it clearly hinged on city legal’s hidden intervention. You can see that, in hindsight, in Councilman Jon Snyder’s wonkish backpedaling. It was all the more riveting because Snyder personally knows David Edwards, the Community Building’s supervisor, who was one of several citizens who provided emotional testimony about their frustration with Spokane police and the lack of effective police accountability.
“All the testimony was extremely compelling,” Snyder said. “Mr. Edwards testimony, in particular, really reaches me because I’ve known him for a while, and trusted him with the safety of my children. He taught my son soccer. I’ve known him for a number of years and the humiliation that he experienced and related tonight is unconscionable and I feel deeply for him, for having to reveal that in a public setting.”
But then Snyder quickly shifted stories. Edwards had his problem. But Snyder’s problem was that he couldn’t yet see how to reconcile independent police oversight with the state’s collective bargaining and public records laws. After the meeting, as he was fending off angry citizens in the Chase Gallery behind the council chamber, Snyder confirmed Beggs’s fear, that the city attorneys had issued a confidential memo to discourage the council from passing the proposed new ordinance.
In gross terms, here’s the public frustration: it has now been more than 1,100 days since the city, with some fanfare, endorsed consultant Sam Pailca’s recommendation that Spokane create an independent Ombudsman office to receive and investigate complaints against police officers.
We still don’t have it.
The council’s complaint–that it still doesn’t quite know how to accomplish this goal–is exasperating to say the least. It should also be obvious to anyone who reads a newspaper that Mayor Mary Verner has been a stoic obstacle. She well understands that Tim Burns’s office is little more than a public relations gesture. Yet, she has been content to keep it that way unless and until citizen demands for real accountability make it politically uncomfortable for her to stand in the way of reform.
In the meantime, the council’s and Mayor’s conspicuous lack of leadership has created a vacuum, and the city’s lawyers–whose apparent main purpose is to defend the myriad misadventures of Spokane police officers–have happily filled it. Their position, in a nutshell, is that Spokane cannot legally have the independent police ombudsman it wants because what it wants is illegal or, at best, vulnerable to an unfair labor practices complaint by the city’s police unions.
What I want to do is peel one piece of this apart, just so you can see, first hand, the madness of what is at work here.
In the interests of sparing you a 6,000 word treatise, I’m going to put aside the first of Jon Snyder’s two complications, the notion that an independent ombudsman would violate the state’s collective bargaining rules. Our lawyers strongly disagree and believe a recent ruling from the Public Employment Relations Commission (PERC) board directly supports our arguments.
What I want to focus on is this notion that there’s a conflict between the proposed ordinance and the state’s public records act (PRA.)
To me, this argument is so transparently nonsensical that it’s hard to know where to begin. But let’s begin with the March 5, 2010 critique by City Legal of the pending reform ordinance to give the Ombudsman clear reporting authority.
In order to address concerns that the required Ombudsman reports would suddenly expose the names of police officers and witnesses, the draft was purposely written to remind the city council that there is authority under state law to “redact” (meaning remove, or black out) the names of officers, witnesses, and other information that could be construed as personal identifiers.
Yes, the Ombudsman would have powers to do independent reports, but he/she could still use the exemptions in state law that are there to protect confidentiality considered necessary for effective law enforcement.
So, how did City Attorney Howard Delaney and his legal staff respond to this little olive branch?
They trimmed it into a poison dart. Their March 5th critique goes so far as to suggest that the proposed ordinance is trying to create “illusory” new city restrictions on the disclosure of information that would be rejected by state courts because the state public records law would trump the new ordinance.
“Regardless of what a City ordinance may provide in terms of public disclosure and redaction of personal information, the Washington State Public Disclosure Act (PDA) will prevail.”
Delaney and Co. are right on. But who the heck suggested otherwise?
(One comical irony here is that the Center has litigated this very issue against the City of Spokane. Some of you may recall that city attorneys withheld records from Camas Magazine because the records were covered by an illegal confidentiality agreement the city had signed at the insistence of Cowles family lawyers. The Center prevailed in the case, using the very argument offered up in the city’s March 5th memo.)
Of course, the state law prevails. The purpose of the proposed language was to remind the city that it could use the exemptions in state law to withhold the names of police officers and others from disclosure in reports created or handled by the Ombudsman.
So, why was it necessary to confuse the city council with this red herring? The power the police department already has to shield identifying information is the same power the Ombudsman would have to shield identifying information. The law applies equally to both of them as city agencies involved in law enforcement. There’s simply nothing to argue about here, and nothing to be confused about.
The ominous development in this controversy is that the city’s legal department, apparently with the Mayor’s blessing, has asserted itself into the city’s policy-making machinery to try to discourage an outcome that it has no business discouraging. It’s not the first time the city’s lawyers have improperly tried to run the city, and it probably won’t be the last. But it probably couldn’t have happened at a worse time for the city’s putative leaders, given that the criminal trial in the Otto Zehm case is about to get underway.
The story doesn’t end here. Instead, it lurches into darker comedy. In the “Inside the Ombudsfarce” piece I wrote on May 18th, I left an important scene out of the story, because it wasn’t quite ripe.
It came right at the end of my May 17th interview with Ombudsman Tim Burns when I asked him if I could have a copy of the report that he sent to the police department. This was the report he took about David Edwards’s complaint against the two Spokane police officers. The purpose of my request was simply to audit what Burns reported to the police department, to see if his account squared with what David Edwards says he shared with him.
“Sure, as long as it doesn’t have any officers names on here,” Burns told me, holding up the report to examine it.
My response? Be my guest. I wasn’t expecting to get the officer’s names because I knew Burns had a right to withhold them. But then Burns said he should be cautious and route my request over to the city, to clear it with the lawyers. Which he did.
Well, gosh, what would your guess be? Apples to apples you might guess that the supposedly out of control sunshine machine in the public records act would now play in my favor and I’d actually get the complete, unedited report. The city’s lawyers would look at Burns’s report, read the statute referenced in their sky-is-falling March 5th memo, shake their heads in dismay, and give me the whole thing, names and all–just as they suggested would be the dastardly result of the Ombudsman’s office writing its own investigation reports under the proposed new ordinance.
Well, guess again. They withheld the report. The whole damn thing.
That’s right. As if there wasn’t enough information in public domain to show what a comical farce the current Ombudsman ordinance is, the city’s lawyers decided they have the right to withhold even the complaints the OPO receives. And this is the answer I got even after David Edwards had provided me with a written confidentiality waiver, a waiver specifically requested by Tim Burns.
Then, on Friday, came the latest news. It’s not just my request. The city is now denying David’s own public records request for a copy of the complaint report that Tim Burns created and sent to the police department. Right. Even the guy making the complaint can’t see the complaint, even to check it for accuracy.
You may have coffee coming out your nose, by now, but I’m not quite done. There’s more.
The legal basis for the denial was the exemption, in the state’s public records act, for law enforcement records. The use of this exemption was backed by a citation to the state Supreme Court case, Cowles v. State Patrol, that interprets this particular section of the statute.
Cowles v. State Patrol is on point because it stems from a 1983 dispute between the Spokesman-Review and the Spokane Police Department. The paper sought to obtain the names of Spokane police officers listed in complaint reports on file with the SPD internal affairs division and other law enforcement agencies. That the report itself should be disclosed was not at issue and, in fact, it had already been provided to the newspaper. What the newspaper was fighting for were the names that had been deleted or blacked out in the report. And that’s what the Supreme Court said that the city didn’t have to provide.
“Although the non-disclosure of officers’ names is not necessary for the protection of their right to privacy,” the Supreme Court found, “it is ‘essential to effective law enforcement.’ We hold that the officers’ names are exempt from disclosure…”
The names. Cowles v. State Patrol was, and is, all about the names.
At a minimum, Tim Burns’s redacted report about David Edwards’s complaint is a public record that should have been turned over the same afternoon I asked for it. Instead, the same city legal department that fights a new Ombudsman ordinance by arguing it might result in too much information being released, is currently violating the law by withholding from me and David Edwards the report that Tim Burns took about Edwards’s complaint. I gather their immune to the irony in this.
[Not to put too fine a point on it, but the other important thing to note here is that agencies have broad (though not unlimited) discretion to decide whether or not to invoke the exemptions allowed under the public records act. For example, if a an agency finds that attorney-client privilege applies to a given record, it has the discretion to release the record by simply waiving the privilege. Likewise, it can choose to release notes and draft documents even though it has a right under the state law to withhold them if it so chooses. Here, it's significant that the state Supreme Court, in Cowles v. State Patrol, did not make the ruling on the basis of the officers' rights to privacy, but the government's own interest in "effective law enforcement."]
The ominous development in this controversy is that the city’s legal department, apparently with the Mayor’s blessing, has asserted itself into the city’s policy-making machinery to try to discourage an outcome that it has no business discouraging. It’s not the first time the city’s lawyers have improperly tried to run the city, and it probably won’t be the last. But it probably couldn’t have happened at a worse time for the city’s putative leaders, given that the criminal trial in the Otto Zehm case is about to get underway.
The results of this are now plain to see. Last Monday we saw it in a city council largely stunned by the public testimony for reform, but unwilling to buck the objections of city attorneys to actually deliver upon it. Three years after Sam Pailca’s report was embraced, and the city still couldn’t move forward to enact the rather modest pieces of Pailca’s recommendations. Again, I’m not excusing the council or the Mayor for their lack of leadership on this issue. But last Monday’s eyesore happened because, rather than working with the council to give them a path forward, the city’s lawyers succeeded in painting council members into a corner.
It really makes you wonder who they think their client is, or if they even think they’re beholden to one.
–Tim Connor