In an eleventh hour bid to salvage the independence of its police ombudsman, the Spokane City Council reaches out to yet another lawyer.
If there is such thing as a legislative emergency room, the Spokane City Council visited it last night. Again.
Five weeks after the council first took up and deferred action on an ordinance that would rescind investigative and reporting powers for Spokane’s Office of Police Ombudsman, the council voted to postpone, for another two weeks, a vote on the measure.
The twist this time is that the council announced it has already taken steps to pull in yet another outside attorney—this time Seattle labor lawyer Rachelle Wills—for a very quick review of the City’s options in the face of an arbitrator’s July 11th ruling, ordering the City to repeal its 2010 police ombudsman ordinance. The City had contracted with another outside attorney, Spokane’s Keller Allen, in the preparation and handling of the ill-fated arbitration.
The revelations about Wills—an associate with the Seattle firm of Littler Mendelson who advises and represents employers in employment and labor disputes—came after the council got another earful from Spokane citizens. The barrage of criticism came well into the night, as the action item for the Ombudsman came more than three hours deep into the agenda. But when the measure did finally come up, all ten speakers implored the council not to vote to repeal the 2010 ordinance.
“We asked the City to defend [the 2010 ordinance],” said Marianne Torres. “And then we learned that the City made a complete hash of that defense, such a total hash that the level of incompetence required is difficult to believe. The bad choices were real and obvious, the reasons for them and the process by which they were made far less so.”
Torres was one of the signers to a letter sent to the council, earlier in the day Monday, roundly chastising the City for “making a mess of its defense” of the 2010 ordinance. The Center for Justice was one of the signers of that letter, along with the Peace & Justice Action League of Spokane and VOICES. All three public interest organizations have worked for the past several years on police oversight issues and have regularly encouraged the City to support a credibly independent Office of Police Ombudsman.
“If you repeal the ordinance, in my judgment, you may as well eliminate the position of the ombudsman,” said Buell Hollister, another longtime Spokane activist. “Because if you’re going to make it ineffective, then maybe you can take that $200,000 and put it into the sewage treatment system.”
“You really need to have this investigative power,” added another veteran Spokane activist, David Bilsland, “because if we don’t have it, then with the conditions of the present police department we’re going to run into trouble. I can tell you that talking to the people that I talk to on the street, they are scared stiff because the police run over the top of them.”
“I know they’ve got the hardest job in the world,” Bilsland added, “but doggone it, they can’t run all over the top of people. The only way we can check them is if we have an ombudsman that can investigate what went on. And to let the police guild run the city, quite frankly I’m a little offended by that.”
The person the embattled council seemed most eager to hear from last night was former Center for Justice lead attorney Breean Beggs. Beggs was the last in line to speak. When he spoke, he reminded the council of a brief window of cooperation last summer when members of the Spokane council reached outside of City Hall to get legal advice [from him] on how the City could strengthen the 2008 ordinance that created the Office of Police Ombudsman (OPO). That ordinance—the terms for which were privately worked out in private negotiations between the Mayor’s office and the City’s police unions—quickly became a public embarrassment for the cities elected leaders.
Beggs reminded the council of the discussions he participated in, inside City Hall, that not only significantly strengthened the ordinance, but which were tailored in anticipation of a challenge from the Spokane Police Guild.
“And the number one thing we were worried about,” Beggs reminded the council, “was an unfair labor practice complaint at the PERC. [Public Employment Relations Commission.] So we built the ordinance, in 2010, to defend against that. That’s the ordinance we built. And city legal put all kinds of things from their specialized knowledge in PERC that would make it bulletproof at PERC. You passed it unanimously. The mayor passed it. And then the Guild, as expected, appealed to PERC. And somewhere along the way, though, we lost that transparency and the ‘let’s sit down and work and strategize this thing together’ because somebody made a decision to not do an unfair labor practice defense which the ordinance was built for, but an arbitration [defense] just on the contract language.”
In plainer language, what Beggs was saying is that the ordinance was drafted so it could be defended on its legal merits before the PERC board. Yet, when answering the challenge from the Guild, the City chose not to go to PERC, but to cast the issue as a contract dispute, and ask PERC to defer it to arbitration. PERC agreed to do so, but in the September 1st letter from David Gedrose, PERC’s Unfair Labor Practices Manager, Gedrose said PERC would not have granted the City’s request for arbitration if it had known, in advance, that the City intended to contest the Guild’s complaint primarily as a legal matter, rather than as a contractual dispute.
The City not only lost when the case went to arbitration but, as we reported on September 8th, the City received a stinging rebuke from Gedrose when it then tried to take the issue back to PERC.
Notwithstanding the arbitrator’s decision, and the strong push-back from PERC, Beggs noted, the City still has not had the unfair labor practice issue decided on the legal merits of the question.
“And that question is this,” Beggs continued, “can city management have oversight so long as there is no connection to discipline? And the answer from the PERC in 2009 [in a case involving the Seattle Police Guild] was yes. And there’s no reason that I can see that if that issue is decided we won’t win. But it has to be the right decision-maker. Not an arbitrator who admitted he wasn’t qualified and didn’t have the authority to do it.”
Beggs’s passing reference to the period in June 2010 when the council welcomed his advice was a subtle reminder of how that dialogue got shut down. As we reported last October, Assistant City Attorney Rocky Treppiedi launched an attack on Beggs, arguing that it was wrong for Beggs to be having conversations with elected city officials about police oversight while he represented the estate of Otto Zehm, the 32-year-old janitor killed by Spokane police in March 2006. Treppiedi threatened to file a bar complaint against Beggs if he didn’t stop meeting with the elected officials.
As Beggs was speaking last night, Council President Joe Shogan was moving about the council dais, in intense conversation with Councilman Richard Rush and Mike Piccolo, the Assistant City Attorney who regularly advises the council.
Under prodding questioning from Councilman Jon Snyder, Piccolo disclosed that—with the council’s consent—he’d already been in contact with Rachelle Wills. Piccolo also explained that the City was working against a 90 day clock that began running when arbitrator Michael Beck issued his opinion in July.
It was Councilman Richard Rush who introduced the motion to postpone the repeal vote for two weeks, to give Wills a chance to conduct an expedited review of the City’s options in light of the looming deadline.
Rush was also the only member of the council to take a measure of responsibility for the fix the City finds itself in.
“Of course, hindsight is twenty/twenty,” Rush said, “and going into it, I guess, I will just confess that personally I didn’t appreciate the distinction between a statutory basis for an appeal, and an appeal [to arbitration] based on a contract dispute. It’s clear given the Gedrose letter [from PERC] that we should have done a statutory appeal but here we are. I’ll also confess that there have been missteps all along the line to adopting this Ombudsman ordinance.”
Beggs, in his testimony, encouraged the City to look at quickly taking the dispute to a Superior Court judge to try to get a ruling on the legality of the 2010 ordinance. He and others who testified last night also encouraged the council not to abandon its appeal rights while the City is in negotiation with the police guild on a new contract, as it is now.
The council’s direction to Wills will be to look at the Superior Court option and others including, according to Rush, the prospect of repealing the ordinance as a first step in a formal appeal to the PERC board.
Piccolo reported that he’d already met with Wills last Friday. If the decision is made to appeal to Superior Court, he told the council, there would be no need to repeal the ordinance before a judge heard the appeal.
Among the first questions awaiting Wills, Piccolo said, would be this one: “Is there any possibility of success” in going to Superior Court, “or are we just wasting our time?”
—Tim Connor
