An arbitrator’s ill-reasoned decision threatens to rob Spokane of a hard-fought and vital reform.
Editor’s note: I’m pleased to report that, since we published this piece, I’ve learned I was mistaken in positing that Spokane has no recourse to the arbitrator’s ruling. That would be the case if, but only if, his ruling was on a contractual matter for which an arbitrator can have jurisdiction. But it’s not the case when the arbitrator makes a decision beyond his purview, which is clearly the case here. Whether the City fathers (and mothers) will actually contest the arbitrator’s ruling is another matter. See “Your Move,” published on July 27th. tjc 8-06-11
By Tim Connor
Image via Wikimedia
Thirteen months ago—after decades of boiling citizen frustration—the Spokane City Council finally created a workable and credible model for civilian oversight of the city’s police department. Specifically, the council voted unanimously to give the city’s Office of Police Ombudsman (OPO) the minimum powers the office needs to do its job.
Last week those powers were erased by an arbitrator, Michael Beck. Beck resolved a grievance by the Spokane Police Guild by declaring that the June 2010 ordinance giving the OPO investigative and reporting power was illegal.
There are several problems with Beck’s ruling. I’ll focus on two.
The first is that Beck should not have been the one to decide the issue. That’s not just my opinion. It’s actually Michael Beck’s opinion as well.
In the introduction to his ruling, Beck notes that last September, the state board that received the Guild’s grievance—the so-called Public Employment Relations Commission (PERC)—chose not to hear the grievance directly but to defer it to arbitration. In this case, the issue squarely before the PERC is whether the powers given the OPO by ordinance last year were powers that were within the city’s managerial discretion to assign to the OPO, or whether the change was a “mandatory” subject of collective bargaining.
The state’s rules speak directly to who should decide that question.
This is from WAC 391-45-550, “Collective bargaining—Policy”: “The commission deems the determination as to whether a particular subject is mandatory or nonmandatory to be a question of law and fact to be determined by the commission, and which is not subject to waiver by the parties by their action or inaction.” (emphasis added.)
“The problem with PERC’s deferral in this case,” Beck noted in his ruling, “is that whether or not the Employer’s conduct is protected or prohibited by the Collective Bargaining Agreement depends on whether or not the changes here can be considered mandatory subjects or permissive [nonmandatory] 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.”
In short, even Beck agrees it shouldn’t have been his call; that the decision on this pivotal question should have been made by the state board created to hear and resolve such controversies.
To forfeit the independence instilled in the Spokane police ombudsman by the 2010 ordinance would be a disastrous setback to the ombudsman’s office, and to any hope of rebuilding public confidence in the Spokane Police Department. We’ve simply reached a point in this long, bitter saga where we can’t go backwards.
That’s bad enough. But it gets worse.
If this decision had been made by PERC, then the city would at least have had recourse to appeal an adverse finding in Superior Court. There is no such recourse to an arbitrator’s decision. It’s a done deal.
And that leads to the bigger problem, because what Beck has done with his ruling makes a mockery not just of the collective bargaining process, but of our democracy. The subtextual message to the people of Spokane from his unchallengeable decision is that we live in a police state, and we should just resign ourselves to that.
Allow me to back up a bit, to put this in context.
As Bill Morlin and Karen Dorn Steele chronicled in a June 2005 Spokesman-Review story the citizen crusade for police accountability in Spokane goes back at least thirty years. The closest we came to it, until last year, was in 1992 under former Mayor Sheri Barnard. A Citizens Review Panel (CRP) with independent authority was created to look into citizens complaints, reach independent findings and, if warranted, make recommendations to the police chief on officer discipline.
As Beck notes in his July 11th ruling, the guild in 1992 challenged the CRP’s powers and a PERC hearing examiner ruled in favor of the guild.
From 1992 onward, as Morlin and Steele reported, citizen oversight of the police in Spokane became something of a running joke. The snickering continued after the passage of the 2008 ordinance creating the OPO because, as numerous critics pointed out, the measure deprived the OPO of the very functions—independent investigatory powers and the powers to file reports independently of the police department—that would give the office any credibility or utility for the public.
It took a determined push from a coalition of citizen organizations to persuade obdurate city leaders to enact the 2010 ordinance. Those new provisions were carefully written to avoid the pitfall that doomed the 1992 measure. While many of us would certainly prefer an ombudsman who can directly influence officer discipline, the law in Washington is that officer discipline constitutes a working condition that is a mandatory subject of collective bargaining. Moreover, the Spokane Police Guild has shown no interest in reaching an agreement with the city that would give any room to the OPO to act and report independently.
The restrictions in the collective bargaining law and the guild’s intransigence framed the dilemma. What the drafters of the 2010 ordinance saw as the solution was to give the police ombudsman the power to investigate and prepare independent reports for the public but to exclude the OPO from having any role in officer discipline—to leave discipline in the hands of SPD internal affairs and the chief. Thus, language was included in the 2010 ordinance that clearly specified that the ombudsman would have no role in officer discipline.
That should have settled it.
But Beck didn’t see it that way.
He saw it this way:
“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.”
In other words, Beck is saying that even though the ombudsman has no direct role in officer discipline, his work on behalf of the public could result in public reports and speech that might conflict with the findings of SPD’s internal affairs investigations. And that could have the effect of putting public pressure on the chief or the mayor to discipline officers who’d been exonerated by internal affairs.
It’s a chilling and nonsensical argument. By Beck’s logic, newspaper columnists like Doug Clark, or activists like former CFJ lawyer Breean Beggs, become involved in the officer disciplinary process any time they write an article or speak out publicly to question or criticize the police because with their public writings and comments they “can put substantial pressure on the chief of police and/or mayor” via their speech.
More importantly, Beck’s decision effectively tells Spokane citizens that they cannot have the accountability on police oversight that they demand. And it’s not an unusual demand. The push for credible oversight of law enforcement in Spokane is part of a national movement. One promising consequence of the 2010 ordinance is that it allowed the Spokane OPO to conform to the code of ethics promulgated by the National Association for Civilian Oversight of Law Enforcement (NACOLE). The NACOLE code requires high standards of independence and a commitment to “transparently providing regular reports and analysis of your activities.”
If Spokane’s OPO cannot prepare and disseminate reports about the cases the office investigates then it simply can’t meet the NACOLE standards for what a credible and ethical police ombudsman’s office should be.
To forfeit the independence instilled in the Spokane police ombudsman by the 2010 ordinance would be a disastrous setback to the OPO, and to any hope of rebuilding public confidence in the Spokane Police Department. We’ve simply reached a point in this long, bitter saga where we can’t go backwards. The mayor and city council must clearly understand this even if the police guild remains stubbornly blind to how reform would benefit its members.
I don’t yet know what the next steps will be in light of Beck’s ruling. But the movement to bring credible, independent oversight to the SPD is not going to end here. As much as Spokane citizens respect the commitment and courage of our law enforcement officers, it is not for the men and women in uniform to have the last word on how and whether we can hold them accountable.
tjc
