Hand Back the Teeth

State arbitrator strips police Ombudsman of powers given the office with last year’s ordinance.

In a stunning rebuke to the Spokane City Council and a citizen-based reform movement, a state arbitrator has ordered the city to completely rescind the ordinance it adopted a year ago conferring new powers of independence to Spokane’s Office of Police Ombudsman (OPO).

The ruling by arbitrator Michael Beck was issued Monday and made public this afternoon by city public affairs office Marlene Feist.

The gist of Beck’s ruling is that the details of the ordinance passed unanimously last June 22nd constitute “a substantial change in the OPO’s authority with respect to discipline and as such, constitutes a mandatory subject of bargaining.” Because the powers added to the OPO last year were not negotiated with the guild, Beck ruled, the ordinance violated state law and, thus, is null and void.

Beck’s ruling is not only breathtaking in its ramifications, but in the ways in which he arrived at it.

For starters, his decision included a lengthy preface in which he candidly criticized the decision to defer the controversy to arbitration. That decision was made last September by David Gedrose, the Unfair Labor Practice Manager for the state’s Public Employment Relations Commission (PERC).

“The problem with PERC’s deferral in this case,” Beck wrote, “is that whether or not the Employer’s conduct is protected or prohibited by the Collective Bargaining Agreement depends upon whether or not the changes here can be considered mandatory subjects of bargaining or permissive subjects of bargaining. This determination is appropriately one that should be made by PERC pursuant to the resolution of the complaint filed in this matter charging an unfair labor practice by the City of Spokane.”

Notwithstanding his reservations about being asked to rule on the case, Beck went ahead and decided the issue he said should have been directly resolved by the PERC.

The logic at the heart of Beck’s ruling will clearly salt the wounds of many, if not most, Spokane citizens who’ve been frustrated in recent years by a seeming lack of accountability, particularly in high-profile cases of alleged police misconduct.

When the city created the OPO three years ago, it did so in the face of bitter criticism that the office’s role had been privately negotiated with the police guild and that, consequently, the office had so little power that it was a farce.

That controversy rolled on for nearly two years before the council adopted Ordinance C-34609 last June. The new ordinance, among other things, gave the OPO the authority to initiate investigations on citizen complaints, and required OPO “closing reports” on each citizen complaint. The ordinance was carefully drafted to avoid giving the OPO a role in disciplining officers—something that proponents of the new ordinance conceded would cross the line into the realm of issues that would have to be collectively bargained with the guild. (The guild has consistently opposed giving the OPO independent investigative powers.)

This is how Beck saw the controversy and explained the key point in his ruling:

“It is true, as the Employer [City of Spokane] points out here, that subsection J [of the 2010 ordinance] provides:

The OPO shall not have a role in any disciplinary matter. All disciplinary decisions will be made by the chief (or designee.)

“It is clear, however, that the OPO does have a role in disciplinary matters all through the process under the changes accomplished by Ordinance C-34609 and even has a role in disciplinary matters after a final decision by the mayor. While it is true that OPO does not get to make the disciplinary decision, the changes made by the ordinance make it so that OPO can put substantial pressure on the chief of police and/or the mayor due to its expanded role in the investigatory process and the expansion of its right to communicate with the public.”

Spokane attorney and former Center for Justice lawyer Breean Beggs was disappointed by Beck’s reasoning and the conclusion it led to.

“That was the guild’s argument,” Beggs said, “and he bought it hook, line, and sinker.”

Beggs also commented on the central paradox. He and others who’d worked on the language for the ordinance knew it was important, under the state’s collective bargaining law, to not insert the Ombudsman into the SPD disciplinary process. But they also wanted to make the OPO both meaningful and credible by giving the office a measure of independence from the police department. Yet, by the logic of Beck’s decision, a credible OPO would put public pressure on the police department to discipline officers for police misconduct, and, thus,  it would be having an effect on discipline even without the Ombudsman being directly involved in the process of officer discipline.

“It’s a backhanded compliment in a way,” Beggs said, “because he (Beck) is saying if you share the truth of what goes on with the public, the public will demand more accountability and that demand will change the [SPD] disciplinary process.”

Beggs sees at least a couple plausible next steps to secure the reforms that Beck’s decision negates, at least for the immediate future. One is a change in the state law to clarify that independent police oversight cannot be construed as involvement in officer discipline, another is to have the language of the 2010 ordinance formerly incorporated into the next bargaining agreement with the police guild.

Beck’s finding that the 2010 ordinance is unlawful likely means that the 2008 ordinance will now be in effect. Beggs says he sees room, even under the 2008 ordinance, for the OPO to conduct independent investigations and even file its own reports. Beggs added that he thinks it will be hard for the Spokane public to accept turning back the clock, especially now that Ombudsman Tim Burns has begun to conduct independent interviews and file independent closing reports.

In a short statement with the release of the report, the city’s Marlene Feist said the city’s lawyers were evaluating what the city needed to do to comply with the decision.

“The elected officials will have to decide what they want to do on the policy side,” she wrote.

—CFJ