In 2013 Spokane’s electorate voted overwhelmingly to change the city’s charter to require independence for in civilian oversight of the police. On Monday, the city council voted for the third time not to enforce that mandate.

Police reform is difficult everywhere but in Spokane there was, in the early years of Mayor David Condon’s first term, a jaw-dropping element of dark comedy to it.

Condon, some may recall, was lagging incumbent Mary Verner in the polls in the fall of 2011. He solved that problem by seizing upon Mayor Verner’s signature weakness—her near-complete tone deafness to the anger unloosed in Spokane following the senseless death of Otto Zehm at the hands of Spokane police. Verner approached police reform as if it were a pool with sharks in it. Condon vowed to dive right in. He won the election.

Condon’s pledge to bolster civilian oversight of the SPD was one of the gaudiest deceptions in Spokane political history. The backlash to his duplicity was actually led by fellow Republicans on the city council who worked with citizen groups to bring Proposition 1—requiring independent police oversight—to a special election in early 2013. It passed with 69 percent of the vote. Condon’s response to the vote? He ignored it, just as he ignored the recommendation from his high-profile Use of Force Commission to end the secrecy involved in the city’s collective bargaining negotiations with the Spokane Police Guild.

There are so many waves of betrayal in this saga I have trouble picking out the crest of the farce. But one stinging insult was inscribed right up front in the first collective bargaining agreement composed by Condon’s negotiators and their police guild counterparts. Without including any changes to enact what the new charter amendments required–enabling the police Ombudsman to conduct independent investigations–the two sides simply slapped the Ombudsman in leg irons and stated that the agreement fully complied with the new charter.

The same language is still there in Article 27, the Civilian Oversight section in the new contract approved by the Spokane City Council earlier this week (March 1, 2021). A dash of salt for a re-opened wound.

Suffice to say, it’s still not true. Statements to the contrary are just more evidence of the power imbalance between the citizens of Spokane who voted overwhelmingly for reform. If it hasn’t quite sunk in yet, we live in a city that capitulates time and again to its police union and other forces in the city who view independent oversight as a threat to their interests. It is from the movie Groundhog Day, on steroids.

The most charitable interpretation I can bring to this is that the window for reform—by which I mean actually honoring the charter amendments voters passed in the 2013 special election—has closed, and it probably closed early on Condon’s watch. The infrastructure and momentum of public activism that brought the issue to the streets and to the ballot has waned, and is unlikely to form again until the next crisis.

In listening to the recorded comments of Mayor Nadine Woodward and City Council President Breean Beggs I thought it noteworthy that neither chose to push the case that the new contract actually complies with the city charter. The Mayor says that the contract “balances the needs of the community, the department, and the city charter.” The Council President says that the agreement “meets the spirit” of the charter. In written comments, Breean has gone further in communicating his opinion that the new agreement fulfills the charter.

If it hasn’t quite sunk in yet, we live in a city that capitulates time and again to its police union and other forces in the city who view independent oversight as a threat to their interests. It is from the movie Groundhog Day, on steroids.

What follows is my email exchange with Breean after I had a chance to actually review the section of the contract on civilian oversight. I also sent the comments to councilmembers Lori Kinnear and Betsy Wilkerson in whose district I reside. Lori is also the chair of the council’s public safety committee with oversight over the police. Breean’s response arrived just before the council gathered to cast its votes.

A couple notes. I consider Breean a good friend. He hired me to work at the Center for Justice in 2007 after the Center had represented me and my colleagues at Camas Magazine for several years in connection with our investigation of the River Park Square scandal. One of my jobs at CFJ was to work with community leaders on police oversight reform, and he and I worked together closely on initiatives that ultimately led to the 2013 charter amendment. Also, I made a minor mistake in my message to him by stating that the vote on the charter amendment was in 2012. It was in early 2013.

Ironically, Breean’s defense of the agreement borrows an argument that he worked to dispel before he became council president–the notion that state law somehow prohibits municipalities from initiating independent investigations of alleged police misconduct. I’m not a lawyer but you don’t have to be a lawyer to recognize that a key argument in his reply is self-refuting. Under the terms of the agreement passed Monday, the OPO is empowered to initiate an independent investigation if the SPD refuses to assign a substantive citizen complaint to investigation by its office of internal affairs. It complies with state law because the City and the Guild agreed to include the clause in their collective bargaining agreement. The very same rules apply if the City and Guild agreed to allow the OPO to conduct independent investigations into any citizen complaint. This, in turn, begs an obvious question about whether the city has ever bargained in good faith to fulfill the full provisions of the 2013 charter amendments. We might have an answer to that question if—as the Use of Force Commission recommended in 2012—the negotiations were more transparent.

—-tjc

March 1, 12:00 AM

Breean—

Thank you for facilitating access to the new and long-overdue Tentative Agreement negotiated between the City and the Spokane Police Guild. My criticisms will not surprise you. But I offer them with genuine appreciation for the role you’ve played, over the past decade, in trying to get us to a better place on citizen oversight and police accountability in Spokane.

I understand how difficult this is given the entrenched resistance to police accountability reform nationwide, a resistance that is deeply intertwined in Spokane’s experience. A lot of good work has gone toward this cause, especially since the tragic death of Otto Zehm in March of 2006. Still, it is the nature of this problem that public outrage ebbs and flows while the resistance to reform is embedded in the system and never takes a day off.

Although the details of my critique are attached to specific, substantive aspects of the TA, I also want to directly call out the fundamental problem that is laced into this process—the longstanding disdain for public accountability not just in the attitude of the Guild but within the executive branch at City Hall. Regrettably, that attitude is still reflected in the tenor of the agreement and its companion enabling ordinance. It is disheartening that the recommendation by the Mayor’s Use of Force Commission to bring transparency to the City/Guild negotiations has once again been ignored.

In my comments, below, I reference the City of Boise’s charter for its Office of Police Oversight and the clarity with which it secures the powers and independence of its civilian oversight function. The difference in tone and substance with Spokane’s ordinance (derived from a succession of collective bargaining agreements with a paucity of public input) is striking. In Boise it’s very clear what the city expects in the way of independence for civilian oversight. Boise’s charter not only confers clarity about the rights of the office, it empowers the office with the dignity and respect that is vital for any such office to operate in what is inherently a perilous social and political environment. The truth about the Spokane process (which was recognized by the Mayor’s Use of Force Commission as it crafted its voluminous 2012 report) is that the public—the one party to this problem most insistent upon independent oversight—is completely shut out of the process.

Spokane’s 2012 charter amendments express the will of the voters for robust independence in civilian oversight, whereas the subsequent collective bargaining agreements treat civilian oversight as a nuisance that has to be muted, censored, pulled over and searched at every intersection. As such, the new TA (like the existing agreement and ordinance) continues to reflect the power imbalance between the legitimate and well-expressed public desire for modest reforms, and the thinly concealed hostility—embedded in the agreement—toward civilian oversight.

•In short, this TA—like the existing agreement and implementing ordinance—does not comply with the letter and spirit of the City Charter stipulation that “(t)he OPO shall independently investigate any matter necessary to fulfill its duties…” in Sec. 129 of the City Charter.

•Rather than reinforcing the Ombudsman as defined by the plain definition of the word Ombudsman, the new TA reaffirms the purposeful warping of the Spokane police ombudsman office into what amounts to an internal auditor for the police department’s internal affairs (IA) branch. There’s indisputable value in the OPO having reliable access to SPD-IA. But it should not have come at the expense of the OPO’s independence, which is what voters were most interested in securing with the 2012 charter amendments.

•The casual excising of the letter and spirit of the charter amendments is woven into the deceptive language of section (e) of the Civilian Review preamble: “Upon receiving a complaint, the OPO will advise the complainant of the options available to resolve the complaint. These options include referral of the complaint to IA with the potential for a disciplinary investigation monitored by the OPO, mediation services, and/or independent investigation by the OPO where authorized by and in accordance with the provisions of this article.”

•This is a cynical abuse of language. As the drafters of this agreement are keenly aware, none of the “options” actually authorize the OPO to conduct independent investigations. Granted, the new language in paragraph (k) provides the shortest path yet to an independent investigation by the OPO. But this path can be removed by the SPD simply by reverting to the pre-2019 policy of requiring SPD-IA to investigate complaints involving excessive force and officer misconduct. If that’s the purpose of the new language—to force SPD to reinstitute its earlier policy—that’s fine. But it’s a stretch to herald this new clause as fulfilling the City Charter mandate that the OPO have unfettered discretion to conduct independent investigations into citizen complaints when the OPO believes it is warranted.

•Under the terms of this TA (a carry over from the existing agreement) the other route to an independent investigation is controlled not by the complainant or the OPO, but by the chief of police and the OPO Commission. In this scenario, the triggering mechanism has two parts to it: (a) an unresolved dispute between the OPO and the SPD about the adequacy of an IA investigation that is being monitored by the OPO and, (b) a subsequent directive from the OPO Commission authorizing an independent investigation.

•This added obstacle (requiring the consent of the OPOC) is created out of whole cloth and violates the city charter inasmuch as it requires the OPO to secure the permission of a third party—the OPO Commission—to authorize an independent investigation into a citizen complaint. This is not a role or power assigned to the OPOC in the city charter. Rather it is a mechanism created in sequestered negotiations between City negotiators and the Guild to curtail the power that the charter explicitly conveys to the OPO.

•If ever there is an independent investigation by the OPO, the collective bargaining agreement still permits SPD personnel to decline to be interviewed by the OPO. There’s simply no rationale basis for this. For example, in the Boise, Idaho ordinance empowering its Office of Police Oversight, the ordinance states: “(a)ll City employees and City police officers shall be required as a condition of their employment to cooperate fully and truthfully with the office of police oversight operating within the course and scope of this chapter, by providing the office of police oversight with any and all information, evidence, interviews or other material as requested.” (Boise Municipal Code, Section 2-10-7, paragraph A). There’s no sound reason for any corporation, municipal or otherwise, to exempt its employees from being interviewed by Human Resources of Employee Relations officers in the event of accusations of wrong-doing. Especially given the clear stipulation in the ordinance that the OPO is NOT to be involved in disciplinary decisions, there’s no plausible reason why SPD officers should not be required to cooperate with the OPO if ever an independent investigation by the OPO takes place.

•The new TA, unlike the existing TA and corresponding ordinance, creates new confusion for the OPO’s process of referring complaints to IA. The practice has been that the OPO is expected to bring preliminarily vetted complaints of a “serious matter” including “improper use of force or improper/inappropriate interaction” against officers to SPD, with the expectation that SPD will initiate an IA investigation. However, the new agreement adds a clause to section (g): “If the OPO determines a complaint alleges potentially criminal conduct by an officer, the case shall be immediately forwarded to Internal Affairs.”

The use of the word “immediately” implies that the OPO should not take the time to conduct its customary vetting and do the preliminary investigation into a citizen complaint. This should be clarified by inserting by restating the clause to say: “If in the course of its preliminary investigation the OPO determines a complaint alleges potentially criminal conduct” and so forth.

Finally, the direct involvement of the two police unions in the selection process for the Ombudsman continues to be heavy-handed and inappropriate. Unlike Boise—where the Office of Police Oversight is directly involved in the disciplinary process—Spokane has taken great pains to ensure that the OPO and the OPO Commission are completely divorced from the SPD disciplinary process and, in fact, any process that could effect working conditions for SPD officers. Thus, there’s no basis for either bargaining unit playing a direct role in the selection process for Ombudsman or Deputy Ombudsman. Those selections should belong to the public and its elected officials.

Again, while I take issue with your public remarks about the progress represented in this new TA, I deeply respect your efforts and persistence toward accomplishing the reforms we that voters overwhelmingly supported when they voted for Proposition 1 nearly a decade ago. If you believe I’ve misstated or misconstrued the TA, please let me know and I will consider revisions and clarifications to my assessment.

Tim Connor

Breean’s Reply March 1, 5:52 PM

Thanks so much Tim.  The City has two roads it could follow: 1) imbed the Ombuds within the police investigation process with the ability to question any witness and direct changes in the investigation process, both of which could impact discipline; or, 2) investigate completely outside the police process without the power to interview police department witnesses.  I have proposed both but only got agreement from Council, the OPO and the OPOC for the former.  And as the Charter says, any independent investigation is limited by state law:
 
The OPO shall independently investigate any matter necessary to fulfill its duties under subsection (A) of Section 129, within the limits of the Revised Code of Washington, Washington State case law, Public Employment Relations Commission decisions, the Spokane Municipal Code, and any collective bargaining agreements in existence at the time this amendment takes effect, but only until such agreement is replaced by a successor agreement.

I think option 2 could work if we get the Legislature to amend the law to compel police officer interviews outside the IA process.  When independent investigation is read within the context of the law requiring compliance with state law, I believe this contract complies with the Charter.  I will continue to work at the Legislature to get more power locally and continue to negotiate for more.  Please keep up the pressure and your truth telling as you see it.
 
Best,
 
Breean