Erasing Prop. 1

By Tim Connor (Nov. 9, 2013)

In February of 2013, Spokane voters were filling out their ballots on Proposition 1, an initiative advanced by the Spokane city council to amend the city charter.

On the face of it, Prop. 1 is about robust civilian oversight of the police. In its details it re-commissions the Office of Police Ombudsman (OPO) and empowers the office to “independently investigate any matter” necessary to address complaints and concerns about the conduct of Spokane police. Prop. 1 is now formally inscribed as Article 16  of the city charter. This is supposed to matter, given that the charter is, in essence, Spokane’s constitution.

Prop. 1 is also a potent symbol of public frustration. It was a reaction to a police department that had lost public confidence. It was also a rebuke to two successive mayors who’d shown themselves to be unwilling or inept to deliver on their own promises. Voters approved Prop. 1 by nearly 70% last February.

Mayor David Condon defending his police oversight plans at a City Hall press conference last month.
Mayor David Condon defending his police oversight plans at a City Hall press conference in October 2013.

Prop. 1 has been the law of the City for more than 250 days. It’s just not being implemented. Although the Spokane Police Guild has done its part over the past five years to resist the independent investigations that Prop. 1 requires, the Guild’s role in the latest and most serious debacle is less than you might think. Instead, the facts point to a failure of city government that is largely self-inflicted. It’s also becoming clearer, by the day, that the person who owns this fiasco is Mayor David Condon.

Condon successfully seized the issue of police accountability in his fall 2011 campaign against former Mayor Mary Verner. But a close review shows that his actions as mayor have actually undermined the community’s goals for civilian oversight of the police. The best example of this arrived a month ago, when Condon signed off on a new “tentative agreement” (TA)  with the Spokane Police Guild that simply omitted independent investigative authority for the Office of Police Ombudsman (OPO). When the mayor publicly released the TA on November 1st he also released a legal opinion that underscored a crucial point. Given the tortured history of Spokane’s effort to gain independent investigative authority for its police ombudsman it was imperative that the mayor negotiate for it with the Guild. The record is now clear that he didn’t.

As the embargo was lifted on the details of the mayor’s 2013 “tentative agreement” with the police guild there came a jaw-dropping disclosure. Even after Proposition 1 passed, the mayor’s lead negotiator was not instructed to bargain for independent investigative powers for the City’s police ombudsman. So she didn’t.


The Guild’s Headlock

David Condon wasn’t the first mayor to brazenly ignore public calls for independent police oversight in Spokane. That act belonged to his predecessor, Mary Verner, who joined hands with the Spokane Police Guild in 2008 to cut a very bad deal, one that lives on to this day.

The idea to create a police ombudsman position arose in community discussions in the wake of the Otto Zehm tragedy. The formal impetus was a report provided to the City in April 2007 by Sam Pailca, a well-credentialed consultant. Her recommendations—centered on the creation police ombudsman office—were well-received at City Hall. Pailca interviewed police guild members for her report but didn’t address how to engage the guild leadership in implementing her recommendations.

Whether the City is legally required to negotiate the role and powers of the ombudsman with the Spokane Police Guild is a matter of debate. While the Center for Justice has long argued that the City has the managerial prerogative under state law to put in place a vigorously independent system of civilian oversight if it chooses, the Guild disagrees. Because of the potential effects independent oversight could have on officer discipline, the Guild considers it a “mandatory” subject for collective bargaining, and Spokane’s legal department leans toward the Guild.

Before that issue could even be publicly debated, however, Mayor Verner rendered the argument moot in April 2008. She and her management team met privately with representatives of the Guild and emerged with a deal that waived whatever managerial discretion the City has by statute to enact independent oversight. The “tentative agreement” created an Office of Policeman Ombudsman (OPO). But it did so in a way that completely perverted the meaning of the term “ombudsman.”

Although Pailca’s proposal wouldn’t have given the ombudsman disciplinary authority, it did insert the ombudsman deeply into the SPD’s internal affairs (IA) process. But Verner’s deal with the Guild deleted a key provision from Pailca’s proposal. It removed the ombudsman’s authority to independently investigate and publicly report if the ombudsman wasn’t satisfied with how an internal affairs investigation was handled. Thus, under the 2008 agreement Verner brought to the city council, Spokane’s ombudsman was essentially going to be a ride-along monitor to oversee the police department’s internal investigations. Independent investigative authority was out, and so was any power the OPO might have to publicly explain its objections to specific SPD investigations into citizen complaints.  Moreover, the selection process would give the City’s police unions a way to control the candidates who could even be considered for the job.

 

Liz Moore
Liz Moore

“I don’t care why it didn’t happen. It’s just unacceptable that it didn’t happen. We needed this result. The mayor didn’t get the job done, and he had twenty two months to do it.”–Liz Moore, director of the Peace & Justice Action League of Spokane, November 2, 2013, responding to the disclosure that Mayor Condon chose not to negotiate with the police guild for independent investigative authority for the Office of Police Ombudsman.

Verner’s shackled version of the ombudsman was met with public scorn. It wasn’t just the deep dark questions raised by Otto Zehm’s gruesome death at the hands of police in March 2006. There were other highly-publicized uses of force–including Shonto Pete’s shooting by an off duty officer, a July 4, 2007 protest march in Riverfront Park that resulted in several violent arrests, and later that same month, the botched tasering and suicide of Josh Levy, a 28-year-old man with a history of mental illness–that fueled questions about the attitudes, tactics and integrity of the police.

Questions about the incidents were underscored by the statistics indicating that when it comes to complaints of excessive force against Spokane police, exoneration of the officers by the department’s internal affairs (IA) branch is all but certain. According to SPD statistics, from 2007 to 2011 there were 62 citizen complaints about excessive force by Spokane officers. According to SPD-IA, none of the complaints were valid.

Despite repeated assurances from the city council that the 2008 agreement with the Guild was a temporary measure that would be re-negotiated with the Guild to add independence to the office, the 2008 agreement has survived denunciations, demonstrations, resolutions, and at least one ordinance. It is still being enforced even though it is squarely at odds with the city charter.  It is the police guild’s headlock on police oversight in Spokane.

In his run for Mayor, David Condon gained ground on Mary Verner after he made police oversight a centerpiece of his campaign. But his plan for police oversight never surfaced, and his actions have actually undermined the implementation of what voters sought with Proposition 1.


The 2010 Revolt

When the agreement Mayor Verner reached with the Guild was solidified with an ordinance in October 2008, Liz Moore, the director of the Peace & Justice Action League of Spokane (PJALS) spoke for many when she termed the situation an “Ombudsfarce.” The public backlash was swift and led to the council adopting a unanimous resolution in 2009, calling upon the mayor to secure independent investigative authority for the ombudsman in a new collective bargaining agreement with the Guild.

The council’s 2009 resolution had zero effect. When the new guild contract emerged in November 2009, the notorious 2008 agreement was absorbed, verbatim, as Article 27 of the 2009-2011 contract. The council approved the contract anyway.

A 2010 rally at City Hall demanding independent oversight of Spokane police.
A 2010 rally at Spokane City Hall demanding independent oversight of Spokane police.

The public backlash was quick and severe. As the Justice Department  pursued criminal investigations of Spokane police officers involved in the Otto Zehm death and coverup, PJALS and other citizen organizations, including the Center for Justice, responded by mobilizing public support for a new ordinance to require independent investigations into citizen complaints. Under the weight of public pressure the Spokane city council passed the new ordinance on June 28, 2010, and Mayor Verner signed it the next day.

Three weeks later, the Guild filed a grievance against the City of Spokane, alleging that the new ordinance violated Article 27 of its collective bargaining agreement.

Concerned about what they were hearing about the languishing negotiations for a new labor agreement with the Spokane Police Guild, Council President Ben Stuckart and councilman Mike Allen asked Mayor Condon last spring if one or two members of the city council could sit in on negotiation sessions. The mayor said no.


Down in Flames

In its legal defense of the 2010 Ombudsman ordinance, the City of Spokane had the choice of defending the ordinance as a matter of law before the state’s Public Employment Relations Commission (PERC), or as a matter of contract interpretation through arbitration. The City chose the latter. It then clearly perplexed the state arbitrator, Michael Beck, when Beck convened a hearing in Spokane on April 5, 2011.

As Beck dryly noted in his July 11, 2011 ruling, “the hearing in this matter took only about one hour and 20 minutes.”  The Guild presented an opening statement, presented 16 exhibits, and called the hearing’s only witness. On the other hand, Beck noted, the City offered no exhibits and rested its case “without providing an opening statement or calling any witnesses.”

It was only after the hearing that the City advanced its main argument, which is that it was entitled to managerial discretion under state law and had acted within the scope of those rights. In his ruling, Beck admitted this presented a problem for him. To address the question of whether the City acted within its legal authority was a statutory issue that falls to the jurisdiction of the state’s Public Employment Relations Commission (PERC). It wasn’t an issue that belonged in arbitration.

“In any event,” Beck explained, “the parties have engaged me to resolve their dispute and I shall do so.”

Beck then ruled in the Guild’s favor, overturning the 2010 ordinance, and immediately reinstating the 2008 Verner agreement contained in the 2010-2011 contract.

After surviving being shot while fleeing from an off-duty police officer, Shonto Pete helped lead the movement for police oversight reform in 2010.
After surviving being shot while fleeing from an off-duty police officer, Shonto Pete helped lead the movement for police oversight reform in 2010.

Under pressure from the Center for Justice and others, the City then turned to PERC to complain that Beck over-stepped his authority, the result was a fiery reply from David Gedrose, the PERC’s Unfair Labor Practices Manager. Gedrose not only rejected the City’s request for PERC intervention, but chastised the City for its conduct. He pointed out that the City was the party that actually certified the matter for arbitration by signaling it would defend it as a contract dispute. Then, after failing even to present a case during the arbitration hearing, Gedrose noted, the City sprung a “surprise statutory defense.”

In his letter to Keller Allen, the outside attorney the City hired to manage its defense, 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.”

Within days after receiving Gedrose’s letter, attacking the City’s competence and good faith, the city council that had voted unanimously to approve the 2010 ordinance empowering ombudsman, now voted 5-2 to repeal it. The council still wanted to deliver independence to the OPO, but it now saw only one realistic path to doing that: by bargaining for it with the Spokane Police Guild as the city entered negotiations for a new collective bargaining agreement.

“If we negotiate with the Guild and we don’t get what we want, clearly this council is united — we do not want another contract if it does not include increased ombudsman authority. If we don’t get that, we don’t have to approve the contract.”—Spokane councilman Jon Snyder, October 11, 2011.


The Condon Plan

Among those watching from the wings of this fiasco was David Condon. After getting clobbered by Verner in the August 2011 primary election by a near 2-to-1 margin, Condon’s campaign began to take off when he picked up the issue of police accountability, including Verner’s handling of the Otto Zehm case.

“I agree with you completely that we must have police oversight that has teeth in it,” Condon wrote in an October 31st email to PJALS’s Liz Moore. “Furthermore, I have made this one of the key elements of my campaign for mayor. I think it is unfortunate that our current mayor did not secure this in the last round of negotiations with the police department. When the police ombudsman law was challenged, the City did not even present any evidence.”

At the same time, though, Condon declined to sign a pledge to reject a new labor contract with the Guild unless it included independent investigations for the ombudsman.

“I want to explore all the possible avenues to hold the police accountable,” he explained to Moore, “including a coroner’s jury inquest and the possibility that state law needs to change to bring about the result we desire.”

Condon flanked by City Attorney Nancy Isserlis at the press event announcing the settlement of the Otto Zehm civil case in May 2012.
Condon flanked by City Attorney Nancy Isserlis at the press event announcing the settlement of the Otto Zehm civil case in May 2012.

In short, Condon was indicating he wanted to propose his own plan for police oversight, and not be bound by the ombudsman model that the public and the city council clearly supported. But what also became clear after he became mayor is that Condon was feeling his way on the issue, trying not to get scorched by public opinion.

The collapse of Mary Verner’s popularity because of her indifference to police reform was not lost on any of the City’s elected officials. On February 6, 2012, the city council unanimously adopted a resolution giving its support to an ambitious 13-point plan for police reform. Among the goals was to amend the ombudsman ordinance to “restore independent investigative authority for the OPO.”

Condon quickly follow suit. The very next week he released his own 13-point “immediate police action plan”  that included, as one of his goals: “Implement independent investigative authority for civilian oversight of the police.”

One hopeful sign was that both Spokane’s police unions—the Spokane Police Guild representing the rank and file, and the Lieutenants and Captains Association—made a rare public appearance to signal their support for the City’s goals. Still, the Guild’s then-president, Ernie Wuthrich, reminded the City on February 6th that it would have to negotiate for much of what it wanted.

Said Wuthrich: “The guild wants to thank the council members for recognizing that many of the steps presented in your resolution may affect the working conditions of represented employees and would need to be negotiated with the affected unions.”

Condon gave no indication that he didn’t expect to negotiate any of the items on his list with the police guild. But what soon became clear is that he did not share either the council’s approach to oversight, or the council’s sense of urgency.

If Mayor Condon were really serious about securing the Proposition 1 requirement for independent investigations, he would have chosen to either bargain the issue with the Guild, or to have put the Guild on notice that the City intended to reclaim the managerial rights it had waived in 2008 and 2009. He did neither.


“Exactly What I’m Talking About.”

On August 14, 2012, the mayor announced, out of the blue, that he was not going to retain Tim Burns as the City’s police ombudsman.

“We’re in the process of re-engineering that position,” said Theresa Sanders, the mayor’s top assistant.

There was an immediate backlash, including swift complaints from Rick Eichstaedt, the Center’s executive director, and the city council’s president, Ben Stuckart. In the face of the public criticism the mayor quickly retreated,  announcing he would extend Burns’s contract at least to the end of the year.

The bungling of Burns’s contract focused new questions on just where Condon was headed on police oversight. These questions multiplied again when the mayor—in introducing Frank Straub as the new police chief on August 22, 2012—said Straub would lead a process that would result in “deliberations” on a new proposal for police oversight by the spring of 2013.

The City, by this point, was already several months into negotiations with the Spokane Police Guild on a new contract that could lock the City in for at least another two years. So if the new mayor wasn’t even going to start “deliberations” on a police oversight plan until the spring of 2013, it begged the ominous question of just what was on the bargaining table with the Guild now.

This very question came up during a City Hall meeting between Center for Justice staff members and City Attorney Nancy Isserlis on October 8, 2012. Isserlis replied that she didn’t know what was in the City’s bargaining proposal with the Guild and that she would have to check with Erin Jacobson, the assistant city attorney who is Spokane’s lead negotiator in dealings with the Guild. In December 2012 I reported that this October 8, 2012 meeting with Isserlis had not gone “particularly well.” Certainly one reason the meeting went sour was our surprise at hearing the City Attorney say she didn’t know what the City was negotiating with the police guild.

A month later, the Center for Justice returned to City Hall, this time with our allies from PJALS and the Spokane chapter of the League of Women Voters. We held a press conference in the Chase Gallery to release our prescription for a new ombudsman ordinance, specifically to add independent investigations and change the ombudsman selection process.

While the press was still gathered, Mayor Condon arrived to respond directly to what we’d presented.

“This is exactly what I’m talking about,” he eagerly told the reporters. “I think the feedback from the Center for Justice is phenomenal.”

You can view the mayor’s remarks at the end of this broadcast report  by KXLY’s Colleen O’Brien.

It’s plain, in hindsight, that the mayor really wasn’t talking about what we were talking about. Moreover, the most important people for the mayor to have been talking to about independent investigations for the ombudsman would have been representatives of the Spokane Police Guild. But he wasn’t.


Steve Salvatori, Mike Allen, and Proposition 1.

Among others watching the September 12, 2012 press conference in City Hall was Steve Salvatori. Salvatori was new to the city council in 2012 but, along with councilman Mike Allen, he was eager to move on police oversight. Although Salvatori would take the lead on putting together what became Proposition 1, Allen’s role was also key.

What Allen brought was institutional memory. In late 2007, he had been appointed to serve out the remaining two years of Mary Verner’s council term, after Verner won the 2007 mayoral election. Thus, Allen was on the council in 2008-2009 and he well-remembered the promises from the council that the 2008 “tentative agreement” would only be temporary, that the council would work with the mayor to secure independent investigations for the OPO. Allen still visibly bristles at suggestions to the contrary. As frustrated as anyone by the failure to deliver the long-promised investigative teeth for the City’s police watchdog, Allen joined Salvatori in working closely with the Center’s lawyers to develop a new city charter provision that could be put before Spokane voters.

Mike Allen
Mike Allen

“I’ve seen the iteration of the ombudsman three different times now. And every time the citizens are the ones that don’t get represented in this equation. And it’s always a filing of a union grievance, or there are these other things that are going out there. This is the citizens opportunity to weigh in and be heard on this process. It is a sad state of affairs when a union can control what the citizens desire, or the elected officials who are brought to this table to represent its citizens do not find the will to even back up what its citizens want.”–Councilman Mike Allen at a November 2012 council meeting.

The pathway to the ballot was a new ordinance, one that the council adopted unanimously last December 17th. One reason this matters, now, is that in the political jostling following the release of the 2013 “tentative agreement” last month there is the suggestion from the Condon team that it’s just not clear that Proposition 1 is about independent investigative authority for the OPO.

Except it is clear.

In the preamble of “whereas” statements leading into Ordinance 34941, the council notes that it has “continuously called” for negotiations with the Guild “in order to provide the police ombudsman with independent investigative authority,” and now finds “independent investigative authority is of such importance to the community that the citizens should be given the opportunity to vote to amend the City Charter to include such provisions.”

To be sure, a second piece was added to Prop. 1 to set up  a new citizen commission to work with and oversee the police ombudsman. (This, too, was part of Sam Pailca’s original recommendations back in 2007). But the core of Prop. 1—and the very reason it was necessary—was to secure independent investigative authority for the OPO.

 “We are comfortable that the tentative agreement gets us to where the community wants,” said the Mayor’s spokesman in early October. “Unfortunately, I can’t comment on any of the specifics.”


“Dead on Arrival”

After voters overwhelmingly approved Proposition 1, it became the mayor’s duty to come back to the Spokane City Council with a new labor contract with the Spokane Police Guild that complied with the new city charter requirements. Instead, the mayor and his team returned with a contract that—to borrow the Spokesman-Review’s phrase—“appears dead on arrival.”

Roughly speaking, the “dead on arrival” conclusion is what the Center’s lawyers and interns recognized when we first saw the contract a month ago. As we then reported  the new “TA” is strikingly similar to earlier agreements between the City and the Spokane Police Guild. The language in those agreements—now imported into the new TA—is toxic to the major reform of Proposition 1. In simplest terms—and as everyone can see now that the agreement is no longer secret—there is simply nothing in the new pact about the power of the ombudsman to conduct independent investigations as the city charter now requires.

Rick Eichstaedt
Rick Eichstaedt, Center for Justice

The sum of our analysis is that the tentative agreement is a travesty. —Center for Justice Executive Director Rick Eichstaedt in an October 16, 2013 letter to Mayor David Condon and Council President Ben Stuckart.

The Center’s lawyers have some important disagreements with the lawyers representing the police guild. But we do agree on this much: silence in the TA on independent investigations only serves to keep in place the prohibition on independent investigations.

There is also a cynical feature to the TA. The second sentence of the section (Article 27) on “Civilian Oversight” says this:

“The City and the Guild agree that the OPO and the Police Ombudsman Commission as set forth in Article 27 complies with and satisfies all of the requirements of the City Charter in effect on March 1, 2013.”

This is a breath-taking assertion. One of our lawyers joked that it was as though the City and the Guild emerged from behind closed doors after two years to announce that they now agree the sky is green.

There is the suggestion from the Condon team that it’s just not clear that Proposition 1 is about independent investigative authority for the ombudsman. Except it is clear.


A Few Questions for the Mayor

Because the mayor signed off on the tentative agreement with the Guild, one of two things must be true.

(a) The mayor believes the new labor agreement allows for independent investigations, or,

(b) The mayor is interpreting Proposition 1 differently than everyone else, except the Guild.

The answer is (b).

The mayor and the Guild have a different understanding of Proposition 1 than the rest of us. Neither believe the new charter amendment invests the Office of Police Ombudsman with authority to conduct independent investigations.

After we first read the TA early last month, I tried to determine which choice the mayor had made.

First, I posed this question, via email:

“Is the mayor confident that the tentative agreement with the Guild allows the Ombudsman to conduct independent investigations of complaints, beyond the role that the Ombudsman plays in the oversight of SPD internal affairs investigations?”

The City’s Communications Director, Brian Coddington, sent me this answer:

“We are comfortable that the tentative agreement gets us to where the community wants. Unfortunately, I can’t comment on any of the specifics.”

Coddington wouldn’t comment on the specifics because the TA was still being withheld from the public, until the Guild members voted to approve it.

Two weeks later, on October 21st, the mayor and the police chief were slated to appear at a morning conference at City Hall. I went and asked the question differently. Could the mayor assure voters that by the time a labor contract was approved and Prop. 1 implemented, the OPO would be able to conduct the independent investigations as Prop. 1 requires?

As I reported,  the mayor gave a long answer, but he wouldn’t answer the question. So I asked it again. And he still chose not to answer the question directly. As best I could tell, what he and the chief were saying is that the question of what independent oversight would look like under the new TA and new city charter had yet to be worked out. The chief then announced that he was inviting stakeholders, including the Center for Justice, to participate in a series of meetings to sort it out in the form of a new ordinance.

“Nothing is simple,” the chief said.

The next opportunity to pursue this question was last Friday morning, (November 1st) when the mayor and chief again met with the media, this time to officially release the TA. By then, the Center had obtained a confidential city document indicating Condon’s negotiating team never actually negotiated with the Guild for independent investigations by the ombudsman.

If, as the document suggests, Condon’s team never actually negotiated with the Guild for independent investigations this would be a remarkable twist. So did they, or didn’t they?

That was my next question for Mayor Condon.

“When voters approved Proposition 1 last February,” I asked him, “did you instruct your negotiators to go in and specifically request that the Ombudsman be allowed to conduct independent investigations outside the IA (internal affairs) process?”

Condon spoke, but he didn’t answer my question.

“The issue you’re asking is in Proposition 1, the definition of independence,” he said. “How do we, what is that independence? There is [sic] many latitudes to that, right?”

When the press conference concluded, I headed for the City Attorney’s office. Because the TA was now public, I reasoned, I should be able to ask Assistant City Attorney Erin Jacobson, the city’s lead negotiator, the same question. After Prop. 1 passed overwhelmingly, was she instructed to bargain for independent investigative authority for the ombudsman?

Jacobson politely deferred all questions back to Brian Coddington, the mayor’s spokesperson. Here’s part of the subsequent email exchange, with Coddington’s responses in blue.

1)      In negotiations with the Spokane Police Guild did the City ever specifically request that the new collective agreement (the TA) include language that allows the Office of Police Ombudsman to conduct independent investigations into citizen complaints?

The City’s negotiations team was directed to negotiate exactly what it did, which provides complete independence in the form of the citizen Commission.  The Ombudsman, through the Commission, can now require IA to initiate investigations that might previously not have been initiated and to conduct further investigation on issues that might previously have been closed.  The Ombudsman can participate in these investigations and ask unlimited questions.

The negotiations team was also directed to, and did, negotiate only those components of civilian oversight that are mandatory subjects of bargaining.  To the extent that the “independent investigations” inquired about refer to issues that are completely separate and apart from officer discipline (such as an audit of all TASER usage for the purpose of recommending procedural or training changes), that authority is also consistent with the TA, but would not need to be explicitly called out in the TA.

2)      After Proposition 1 passed in February of 2013, did the Mayor instruct Erin (and other members of the City’s negotiating team) to specifically bargain for independent investigative authority for the Office of Police Ombudsman? In other words, was independent investigative authority for the OPO a clear request/offer to the Guild in negotiations with the Guild following the passage of Proposition 1?

This direction did not change following Prop 1 because it was already on the table in negotiations long before Prop 1 was ever contemplated.  Again, “independent investigations” is not defined in Prop 1, and our view is that the TA does provide additional independence that does not exist in the current contract.  To the extent that any additional independent investigative authority is needed to satisfy City Council’s vision of Prop 1, it is up to the Council and its working group to include that in the ordinance.

There’s lots going on in these long answers. But when you boil it all down, the answer to question #1 is negative, the City did not at any time negotiate for independent investigative authority for the ombudsman.

The answer to question #2 is also negative, the instructions to Erin Jacobson and other negotiators did not change after voters overwhelmingly approved Proposition 1. Both answers square with what the confidential document provided to the Center had previously indicated—the City’s negotiators never actually proposed to the Guild that the TA include language that would give the Guild’s blessing to independent investigations for the police ombudsman.

Immediately after the Friday press conference I asked Council President Ben Stuckart if he knew whether the mayor had ever instructed his negotiators to bargain for independent investigative authority for the ombudsman.

“I haven’t gotten the answer to that question either,” Stuckart told me.

Stuckart then reminded me that he and councilmember Mike Allen had written to Mayor Condon last May, asking that “one or two” council members be permitted to sit in on negotiating sessions with the police guild. The mayor declined their request.

 The Spokane city council can pass ordinances and, as with Proposition 1, it can enable voters to make popular changes to the city charter. What it cannot do is negotiate directly with the Spokane Police Guild. That job belongs solely to the mayor.


The End is the New Beginning

There are at least a couple messages that need to be carefully unpacked from Brian Coddington’s answers to my questions on November 1st.

First, there’s this: “The City’s negotiations team was directed to negotiate exactly what it did, which provides complete independence in the form of the citizen Commission.”

This is the revisionist version of Proposition 1 that Mayor Condon is now trying to sell Spokane voters—that what voters really wanted is to expand the OPO’s independence by adding the OPO Commission, a five member board that would oversee the work of the OPO and replace the mayor as the final arbiter in any disputes between the OPO and the chief of police about whether SPD internal affairs has adequately investigated a complaint.

Why Condon and his team thought this would fly is hard to figure. As you can hear in the audio strip inserted in this story, the mayor clearly floundered in trying to answer this at his November 1st press conference releasing the new TA.

“How do we, what is that independence?” he asked aloud, clearly flustered. “There is [sic] many latitudes to that, right?

The reality is the city council and voters have been very clear about what independence for the OPO should look like. Moreover, the mayor’s Use of Force Commission squarely addressed the issue when it presented its report to the mayor in February. The commission’s call for investing the OPO “with the authority and discretion to open and conduct independent investigations concerning the operations, actions, or omissions of the SPD” could hardly have been more explicit.

For the record, the mayor and chief accepted the commission’s recommendation by reporting the City is complying with Proposition 1.

In any event, the mayor’s effort to redefine Prop. 1 was shot from the sky right away, not just by the Center for Justice but by Spokane’s newspapers, including a biting editorial in the Spokesman-Review on November 5th, recommending the TA be rejected by the council and pointedly reminding Condon that the community’s patience is wearing thin.

If the decision to distract the public by over-hyping the commission was Condon’s Plan A to defend the new TA, then Plan B was to assert that the long-awaited agreement with the Guild was not the end of a five year process, but something like the beginning of a new one.

Wrote Coddington: “To the extent that any additional independent investigative authority is needed to satisfy City Council’s vision of Prop 1, it is up to the Council and its working group to include that in the ordinance.”

This is an extraordinary statement. What the mayor’s spokesperson is saying is, in effect, ‘if the council has a different idea of what the mayor thinks Prop. 1 means then it’s up to the council to put that in an ordinance to implement Proposition 1.’

Of course, the council had been trying to do just that, days earlier, when the mayor’s team effectively stopped the council in its tracks. The council had unanimously approved a resolution last May that included a draft ordinance for implementing Proposition 1. The only reason the council didn’t move to finalize that ordinance in May is that it was under pressure to stall. The council was waiting for the mayor and the Guild to reach agreement on the long-overdue labor contract. So instead of passing the ordinance as an ordinance, the council passed a non-binding resolution to guide the mayor in his negotiations with the Guild. By mid-September, Salvatori, Allen, and others were out of patience. Salvatori put the ordinance on the council’s agenda for October 7th.

The push-back began almost immediately, with the council hearing that if it voted to approve the ordinance the Guild would file a grievance and withdraw from the new TA.

Coddington’s email confirms what is obvious on the face of the new TA—the council’s resolution about what it wanted was basically ignored. For example, the council was clear it wanted to change the way the ombudsman was selected, to remove the police unions’ heavy hand in the screening process. Yet the selection process laid out in the new TA is identical to that Mary Verner signed off on in the 2008 TA.

Still, the glaring problem was, and is, the gaping chasm on independent investigations. The council was being assured the TA complied with Proposition 1.

But how?

Spokane Police Chief Frank Straub.
Spokane Police Chief Frank Straub.

No one really could say for sure, and what ensued was an unsightly scramble by city officials to try to save the TA by pulling in the Center for Justice, Spokane lawyer and former CFJ director Breean Beggs, and representatives of the Guild. The hope was to come up with language in a new ordinance that could bridge the chasm between the TA and Proposition 1. It was also the hope, to have at least a draft of what that language would look like to present to the press and public along with the TA.

That didn’t happen, and all the mayor and the police chief had in hand when they met the press on November 1st was the TA.

When I asked about this, the mayor acknowledged he was “disappointed” that he didn’t have a “final draft” of an implementing ordinance but that he was “excited” about the process moving forward to marry the TA with Prop. 1.

“Frankly,” he said later, “my patience is wearing thin, obviously, with the public’s and it’s due time that we continue this process that allows us to get to citizen oversight in a way that is consistent with state law, with Proposition 1 and also an ordinance that is compliant with that.”

When the mayor stepped aside, police chief Frank Straub spoke.

“The Mayor’s frustrated, I’m frustrated, the Guild’s frustrated, the Center for Justice is frustrated, the people are frustrated.”The chief then asked for patience.

“One of the things that we have to do is put out not just a charter amendment but an ordinance that is consistent with Washington state law and brings in the collective opinion of all those parties and ultimately this community. So, to rush to judgment, to rush to create something because it feels good that it’s out there is an error. It’s an error that will eventually get overturned and then we’ll be back to square one, yet again.”

To which he added: “Why don’t we just take our time and get it right?”

The chief’s plea for patience defies at least one basic truth. If the countless hearings and votes over the past six years have not been enough, the public and the city council had both been clear with Proposition 1 about what they wanted. Both expected the mayor to negotiate in good faith with the Guild for the Proposition 1 reforms. It now turns out he didn’t.


“It Should Be Clear that the Guild Does Object.”

Lost in the late October scramble to bridge the chasm between Proposition 1 and the new TA with the Guild was a stark fact that should have surprised no one. The lawyers for the Spokane Police Guild believe they’ve captured the Spokane police ombudsman fair and square, and they’re not about to let him go.

“While I was born in the morning, it wasn’t this morning.”

This is what Guild attorney Chris Vick wrote to the City’s Erin Jacobson in June 2010 after Jacobson shared with Vick the terms of the 2010 Ombudsman ordinance that the city council was then considering. Vick listed numerous items that violated the contract because they were “mandatory” subjects of bargaining, adding, “in any event, the Guild demands to bargain the effects of any change reflected in the proposed ordinance.”

The position of the Guild’s lawyers hasn’t changed in three years. By most accounts the reason Mayor Condon didn’t release a new draft ordinance that might bridge the chasm between the new TA and Proposition 1 is that a Guild lawyer in Seattle had finally gotten wind of what was going on in Spokane, and hit the brakes.

That lawyer appears to be Hillary McClure who works in the Seattle office of Aitchison & Vick, along with aforementioned attorney Chris Vick, a lawyer who’s well known for his work representing police unions in both Spokane and Seattle. (The single witness at the 2011 arbitration hearing on the 2010 ordinance was Chris Vick). McClure did not respond to requests for an interview, but her views are well-expressed in an email she sent to Jacobson on October 31st, the day before mayor Condon released the TA.

In the email to Jacobson, McClure reminds the City that the TA wasn’t some open-ended exercise. To the notion that the language in the TA about the ombudsman selection process, could now be changed in an ordinance implementing Proposition 1, McClure put her foot down.

“The selection committee was purposefully designed in its current form so that the OPO selection committee would be made up of a group of people who would work to find a candidate who could be fair to the involved parties,” she wrote.  “I saw an email from the Chief that said ‘no one objects to the Chair of the OPO Commission being the 5th person.’  This is not accurate, it should be clear that the Guild does object.”

McClure also voiced her displeasure with what seemed to be happening in the scrum to try to backfill what the TA had left out.

“As you are aware,” McClure wrote, “our TA included an agreement that ‘All proposals by either the City or the Guild that are not addressed in the below or attached TA’s are withdrawn.’  There are issues raised in the Ordinance that appear to me to fall under the category of proposals that the City had on the table but that were not included in the TA. As a result we are in the difficult position that it feels like as soon as we made the agreement, the City is asking for things that the City had removed from the table to get the TA done.”

McClure re-emphasized that, in the Guild’s view, just because the City chose to leave something out of the TA, doesn’t mean it has the right, going forward, to just slap it into an ordinance. In this, she includes the ombudsman’s investigative authority.

“It was my understanding at the negotiations table that the City believed it was fulfilling the City Charter (the Ordinance, Prop 1, Section 129 and 130) with the terms of the TA,” she wrote. “I have heard that there is an assertion being made that there is some investigative authority that was granted to the OPO that is separate from what was agreed to by the parties. I strongly disagree.”

It was the mayor who’d chosen not to bargain for independent investigations for the ombudsman, as Prop. 1 requires. The consequences of that decision are already becoming clear. They’re not good.


The Mayor’s Signature

The way Spokane city government is now organized under the strong mayor system, there is a limit to what the city council can do to achieve the police accountability reforms Spokane voters demand. The council could pass ordinances and, as with Prop. 1, it could enable popular changes to the city charter.

What it could not do is negotiate directly with the Spokane Police Guild. That job belonged solely to the mayor.

There were only two paths by which Mayor Condon and his negotiating team could reconcile the Proposition 1 city charter requirements with the City’s legal and ethical obligations to the Spokane Police Guild.

brally 300The first path is obvious. The mayor could have bargained directly with the Guild for the elements of Prop. 1. If, for example, his team agreed with the Guild that the OPO’s functions were a mandatory subject of bargaining, the City could offer financial compensation in exchange for the Guild accepting independent investigative authority for the OPO.

The other route—as the Center for Justice had suggested—was to inform the Guild that the City would seek to recover the managerial rights that Mayor Verner had forfeited in 2008. To the extent the Guild disagrees that the City can unilaterally implement police oversight, then it would have been free to file an unfair labor practices complaint with PERC. Such a legal challenge would at least result in the issue getting adjudicated one way or the other. If PERC and the courts sided with the Guild then the City would have the clear option (and more of a case) to go to the state legislature arguing that Washington labor law was infringing upon the will of the voters in Spokane.

In evaluating the Mayor’s conduct, it’s important to recognize that he chose neither path. He neither negotiated with the Guild, nor did he inform them that he was moving to reserve the City’s managerial rights.

The final piece of Brian Coddington’s November 1st reply (on the mayor’s behalf) that needs to be highlighted is this one:

“The negotiations team was also directed to, and did, negotiate only those components of civilian oversight that are mandatory subjects of bargaining.  To the extent that the ‘independent investigations’ inquired about refer to issues that are completely separate and apart from officer discipline (such as an audit of all TASER usage for the purpose of recommending procedural or training changes), that authority is also consistent with the TA, but would not need to be explicitly called out in the TA. (emphasis added.)

What Coddington is saying here is that the mayor actually accepts that the City has managerial rights it can use to empower the ombudsman. Readers will have to decide for themselves whether this answer is honest and credible.

Whether his answer is honest and credible, it is not helpful.

The reason it’s useless is actually found throughout a legal opinion that the mayor shared on the same day he released the TA.  The opinion comes for Otto Klein a state labor law expert at the Summit Law Group. Klein’s Oct. 4 memo was used to knock the legs out from beneath the ordinance that Steve Salvatori brought to the council for a vote on October 7.

Klein emphasizes that the City has a duty under state labor law to bargain in good faith with the Guild. In the main, his memo is very pessimistic as to whether the City can escape any duty to bargain with the Guild for significant functions of the ombudsman, most notably independent investigations.

Klein notes, among other things, that the City is not working with a clean slate (or clean hands, for that matter) when it comes to asserting its managerial discretion. The 2011 Beck decision is still there, he notes, and “under generally accepted arbitration law, once an issue has been resolved in arbitration, that resolution is final and binding on the parties, and is a precedent for purposes of their future relations.”

Again, what Beck ruled is that independent investigative authority for the ombudsman is a mandatory subject of bargaining. While the Center for Justice and others continue to question the legitimacy of Beck ruling on a statutory question that should have been resolved by PERC or a court, it’s also true that the 2011 council had a chance to appeal Beck’s decision to superior court, and chose not to. If the Guild challenges a unilateral decision by the City to implement independent investigations by the OPO, Klein warns that PERC might impose an “extraordinary remedy”—meaning unusually heavy sanctions against the city.

“I believe,” writes Klein, “the agency (PERC) will view the City as a pattern (or ‘recidivist’) offender on the issue of civilian oversight, and thus will want to take strong affirmative action to ensure that the City understands its bargaining obligations in this area.”

To be fair to the Salvatori ordinance, independent investigations could only have proceeded with clearance from the city attorney. And to be fair to the council as a whole, the Beck decision and the rebuke from PERC were not lost on them. They voted to repeal the 2010 ordinance and tried to focus the mayor’s attention on bargaining with the Guild.

In short, Klein’s memo says, if you want independent investigations for the ombudsman, then treat it as a mandatory subject of bargaining and negotiate it with the Guild.

Mayor David Condon
Condon announcing his appointment of Chief Frank Straub in August 2012.

Yet, what Coddington reported on November is that the Mayor decided not to negotiate for it, but to silently reserve it as within the City’s managerial discretion. (Indeed, it is so quietly reserved that it is not even listed in Article 3 of the agreement which is where the parties list the City’s management rights under the contract. It’s just not there.) It is so quietly reserved that when Guild lawyer Hillary McClure sensed just a whiff of it in the flurry of discussions last month, she called it out and objected to it in her October 31st email.

The point is, it’s hard to argue with Otto Klein’s memo on this point. The City does have an obligation to bargain in good faith, and it should be obvious to anyone that if the City were to make such a major change as to try to recover its managerial discretion in a new collective bargaining agreement, that this would need to be “explicitly” spelled out, not secured by stealth or omission, as Coddington now suggests it was.

The bottom line is that the new TA with the Guild is worthless in securing the major reform of Prop. 1. The Guild didn’t agree to independent investigations, and the “managerial discretion” supposedly reserved for the City is just the slim fuse for a legal bomb that, as the Klein memo cautions, would likely explode in the City’s face.

This is David Condon’s signature on this fiasco. The man who was able to unseat Mary Verner by criticizing her performance on police reform appears only to have made matters worse, and it’s not clear, now, that the Proposition 1 reforms can ever be put in place.

“I don’t care why it didn’t happen,” PJALS Liz Moore says about the long-awaited labor agreement that omits the heart of Proposition 1. “It’s just unacceptable that it didn’t happen. We needed this result. The mayor didn’t get the job done, and he had twenty two months to do it.”

 

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