Down in Flames

In a scorching letter, a state labor relations official not only rejects the City’s challenge to an arbitrator’s July 11th ruling on Spokane’s police ombudsman, but questions whether the City sought arbitration in good faith.

By Tim Connor

A top official with the state’s Public Employment Relations Commission (PERC) suggests the City of Spokane was not being honest with the commission when it sought arbitration earlier this year to defend its police ombudsman ordinance.

To say the September 1st letter, written by PERC’s Unfair Labor Practice Manager, David Gedrose, is a setback for the city would be putting it mildly. In the letter, Gedrose not only lectures the city about its conduct in the case, but pointedly questions whether the City was forthright in how it presented the issue to the Commission. At the time, the City was trying to defend the ordinance against a complaint filed with PERC by the Spokane Police Guild.

Gedrose’s letter was prompted by the Spokane City Council’s resolution on August 22nd to ask PERC to clarify “whether or not the arbitrator in this matter had jurisdiction to hear” the argument about whether the City’s police ombudsman ordinance, as amended last summer, complied with state law. The private attorney the City hired to defend the ordinance, Keller Allen, sent a letter to Gedrose the next day, seeking the clarification from PERC.

(The Center for Justice, in a September 1st letter to the commission, said there was still an opportunity under the Commission’s rules for PERC to make the decision.)

Reached by telephone at his office Wednesday afternoon, Allen declined to answer questions about Gedrose’s numerous criticisms of the City’s conduct in the dispute.

“I represent the City,” Allen said, “and I’m not taking questions on that [the letter.]

On its face, Gedrose’s letter to Allen slaps an abrupt ending to Spokane’s effort to rescue the intensely debated ordinance the city council passed unanimously in late June 2010. The measure strengthened the City’s Office of Police Ombudsman (OPO) to give the office independent investigative and reporting powers that were missing when the city created the office in 2008.  The Spokane Police Guild has consistently objected to giving the office such authority and, shortly after the City passed the beefed up ordinance last summer, the guild filed a grievance and an unfair labor practice complaint with PERC.

The City hired Allen, a labor law specialist to defend the ordinance. Last September, at the City’s request, PERC assigned the complaint to an arbitrator. The arbitrator, Michael Beck, published his opinion on July 11th, finding in favor of the police union and ordering the City to repeal its ordinance.

Gedrose’s letter is striking for the force with which he slams the door on the City’s challenge to Beck’s decision. But even more remarkable is his repeated suggestion that the City acted with unclean hands last September when it sought arbitration to resolve the dispute with the guild.

“While labor law is complicated,” says Center for Justice staff attorney Bonne Beavers, “this boils down to whether it’s a contract dispute with the union, or whether the 2010 amendments to the ombudsman ordinance violated state law. If it was about whether the contract was violated, arbitration was the place to be. If it was about the state law, then it needed to stay with the commission. That crucial choice was squarely in the City’s hands.”

According to Gedrose’s account, the City sought arbitration by asserting that the issue was contractual and waived any procedural objections. Then, at the arbitration hearing, it mounted no defense, offered no statement, no witnesses, and no exhibits. Afterwards, the City asserted, for the first time, that rather than a contractual issue, the issue was whether the changes were legal under state law.

“If that’s your argument,” says Beavers. “You shouldn’t choose arbitration. And that’s what got the City hammered.”

The gist of Gedrose’s criticism is that the City knew (or clearly should have known) up front that the argument it ultimately offered in defense of the ordinance would have disqualified it from seeking arbitration under PERC rules. To get around that restriction and get the dispute heard by an arbitrator, Gedrose reports, the City not only chose, but certified, that it would defend the ordinance as a “waiver by contract” issue. In other words, the City said it would defend the complaint as a contract dispute–not as a legal interpretation of its managerial prerogatives under the state’s collective bargaining law.

Moreover, Gedrose notes, the City confirmed to PERC in advance of the hearing that there were no “procedural” issues that would preclude arbitration. When the time came to make that argument at the April 5, 2011 hearing, Gedrose acidly notes, “the [City] did not present a case-in-chief, offering no witness testimony or exhibits.”

Then after the hearing, Gedrose continued, the City submitted a brief “which alleged that the dispute was statutory and concerned the scope of bargaining.”

Gedrose strongly suggests that this was bad faith. Had the City revealed this argument to begin with, he notes, “the case would not have been deferred to arbitration” by PERC.

In one section of the letter, Gedrose lectures the City that when an employer, of its own volition, chooses to cast the issue as a contract dispute so as to gain access to arbitration “and then mounts a surprise statutory defense assumes the risk that an arbitrator will rule on the evidence and argument presented and find against the employer,” Gedrose wrote. “An employer who adopts such a course of action cannot legitimately cry foul and ask that the arbitration award be nullified based upon circumstances it alone generated.”

As for remedy the City sought with Allen’s August 23rd letter—the rejection of the arbitrator’s finding for the guild and a new hearing before PERC on the unfair labor practice—Gedrose rejected the idea with another strong dose of criticism.

“Such a result,” he wrote, “would unfairly reward the Employer for its unexplained silence at the arbitration hearing, the reversal of its defense through a post-hearing brief, and its extensive delay in raising this objection.”

Gedrose’s letter will come as an especially bitter pill for Spokane public interest organizations, including the Center for Justice. For three years, the Center’s lawyers, advocates and public interest allies fought an intensely bitter public and behind the scenes battle, first to create the Office of Police Ombudsman and then to empower the office with independence in the face of stiff opposition from the police guild, the City’s attorneys, and the City’s elected leaders.

In the run up to the June 2010 vote on the ordinance to strengthen the police ombudsman office, the Center argued that, legally, the City was not stymied by the Spokane Police Guild’s opposition. The Center pointed to an October 2009 ruling by PERC, in a case arising from Seattle, that affirmed that cities possess, by law, managerial rights to conduct police oversight activities so long as those activities do not interfere or directly influence officer disciplinary proceedings.

The difference is that in the Seattle case, Seattle defended its ordinance as a matter of law before a PERC hearing examiner and, on appeal, to the PERC board. Whereas in the Spokane case the City—for reasons no one has yet explained—sought arbitration. In Gedrose’s view, the city sought arbitration under false pretenses, both by not disclosing the statutory argument the city intended to make, and by certifying that it would, instead, raise a contractual argument before the arbitrator. Consequently, Gedrose pointedly explained, the City was in no position to be coming back to PERC asking for what amounts to a do-over. To now accede to the City’s request to get a legal ruling on the merits, Gedrose wrote, “would effectively destroy” the process by which PERC defers issues to arbitration.

“The Commission, unions, and arbitrators,” he explained, “could never have assurance that employers requesting [arbitration] would not use the process as a delaying tactic and/or an opportunity for a second ruling, rather than for the intended purpose of timely resolving [contract disputes] in one hearing.”

Granting the City of Spokane a new hearing before PERC “would unfairly reward the Employer for its unexplained silence at the arbitration hearing, the reversal of its defense through a post-hearing brief, and its extensive delay in raising this objection.”—David Gedrose, PERC Unfair Labor Practice Manager.

The account of the city’s decision-making presented in Gedrose’s letter left Spokane attorney Breean Beggs, the former Center for Justice executive director who worked tirelessly to win city council support for the 2010 ordinance, shaking his head at the City’s misguided legal strategy.

“According to David Gedrose, if the City wanted to make the argument to PERC that this was a legal question, as opposed to a contract dispute, it should not have asked for arbitration,” Beggs said. “Lawyers who regularly practice before the PERC would know that.”

Beggs says he still believes there’s a chance the City can get a court to rule on the central legal question as to whether it had the right, by law, to empower the ombudsman office over the police guild’s objections. But he agrees that Gedrose’s letter on behalf of PERC is genuinely bad news for the City and and a wrenching setback to Spokane citizens’ efforts for police accountability.

Gedrose’s letter also begs important questions about who was making the key decisions on the City’s behalf, including the decision to go to arbitration, rather than argue the legality of the ordinance before PERC.  I sent Allen the following questions via email:

1)   What is your response to Mr. Gedrose’s letter, generally?
2)   Are there any particular facts presented in his letter that you dispute?
3)   Why did you not present an opening statement, or call a witness during the April 5, 2011 arbitration hearing?
4)   Did you, in fact, submit the post-hearing brief described on page 5 of his letter?
5)   Were you instructed by your client to submit the post-hearing brief, or was it your idea?
6)   Do you agree with Mr. Gedrose’s analysis that the argument presented in the post-hearing brief was out of bounds for the arbitration that the City, itself, requested? Specifically, do you take issue with what he wrote on page 5 of his letter: “The Employer’s defense, raised [in the post-hearing brief] for the first time after April 5, 2011, asserted that rather than a contractual  issue, the issue was statutory under Chapter 41.56 RCW, and that Article 18 of the contracted protected the Employer’s conduct. Had the Employer’s answer to the unfair labor practice complaint stated that the issue was whether the Ordinance violated Chapter 41.56 RCW, the case would not have been deferred to arbitration.”

To which he responded: “Thanks for your email.  I appreciate your understanding that I am unable to comment on pending litigation absent direction otherwise from the City Council.”

Gedrose’s letter will inevitably raise deeper questions in Spokane where (as the boisterous city council meeting on  August 22nd demonstrated) there is already audible public mistrust in the council, mayor, and city attorney’s commitment to police accountability.

Did the city simply use extremely bad judgment in seeking arbitration for an argument that, on its face, was not an issue that belonged in arbitration? Or did the City, by indifference or with purpose, sabotage its own case?

Beyond the legal questions, Beggs says he is also bothered by how much he and the public still don’t know about how the City worked with its attorneys to defend the ordinance.

“For me,” he said, “I’m completely comfortable with elected officials making decisions that I disagree with, as long as I know who made the decision. I don’t begrudge them making hard decisions, I just want to know who made them and I think the public deserves to know too.”

–CFJ