No Authority

A state arbitrator says Spokane overreached by expanding the police ombudsman’s powers. So now what?

No Authority
Young Kwak
Spokane Police Ombudsman Tim Burns

Arguing that the recently expanded powers of the police ombudsman constitute an “unfair labor practice,” the Guild earlier this year provided a state arbitrator with an opening statement, called one witness and offered 16 exhibits to an arbitrator. The city, defending the ordinance passed unanimously by the City Council and signed and endorsed by the mayor, rested without delivering an opening statement, calling any witnesses or offering any exhibits.

The Guild won the argument. But as Council members discussed the arbitrator’s decision this Monday during its normally sedate briefing session, the aggressiveness of some council members was quite visible.

“If you have an ordinance to bring forward,” roared Council President Joe Shogan to Councilman Richard Rush, “get it on and bring it on.”

Next week, the Council will begin discussing legislation concerning the Office of the Police Ombudsman, which was created two years ago in response to a series of controversies —most notably, the case of Otto Zehm, a 37-year-old janitor who was mistakenly suspected of robbery and died after an encounter with Spokane police.

At its inception, the ombudsman’s office — the only one of its kind in the region — was hailed by city leaders as a step toward building transparency in the police department and trust among citizens.

But now, a battle is roiling again in City Hall. Two opposing pieces of legislation wait for the Council’s approval. One, an ordinance introduced by Shogan, will abide by the arbitrator’s decision and repeal the expanded powers of the ombudsman. The other, a resolution Rush says he’ll introduce this week, will appeal the arbitrator’s decision.

“The courts do not favor overturning arbitrators,” Shogan told the Council this week. “They favor arbitrators.”

“He does not have the authority to make the decision,” Rush says of the arbitrator. “I’ve got conflicting advice on what the appeal path is. But it doesn’t matter. It needs to be appealed to the right authority. We’ve got to do a thorough test of the law.”

Jon Snyder, who was one of three Council members (including Rush) who drafted the disputed ordinance, says the arbitrator’s decision has merit regardless of what some citizen groups now argue.

“You have to take what the Center for Justice says with a grain of salt,” he says, referring to the public interest group’s argument that the arbitration process was the wrong path to take. The three citizen groups — the Center for Justice, Peace and Justice Action League of Spokane and VOICES — are urging the city to take the case to the Public Employment Relations Commission.

“They’ve never done PERC labor law over there, so that may be one reason why they’re misreading this,” Snyder says. “But to me, that’s a little immaterial. We decided to go through the arbitrator process.

The Guild decided to go through the arbitrator process. It’s a legally binding process.”

But the dispute should never have gone to arbitration in the first place, says Breean Beggs, a local civil rights attorney with long-standing connections to the Center for Justice.

“The city and the Guild didn’t dispute it when it went to arbitration,” Beggs says, adding that the change to the ombudsman’s powers was one of policy, not of labor conditions.

“It’s a public-policy call. The PERC should make a decision on this.”

Strikingly, the arbitrator appears to agree that he wasn’t the one to decide the issue.

“This determination is appropriately one that should be made by PERC,” writes the arbitrator, Michael Beck, in his findings. “In any event, the parties have engaged me to resolve their dispute and I shall do so.”

Though Snyder, Rush and Councilwoman Amber Waldref now claim ownership of the expanded-powers ordinance, the movement to further empower the ombudsman was first led by Councilman Bob Apple, who was the only Council member to sign on to an earlier proposal put forth by the citizen groups.

“They almost voted on it, but at the last minute Snyder, Waldref and Rush went to city legal, and an alternative was crafted that they thought was more bulletproof to appeal,” Beggs says.

“We essentially had a short time [to craft legislation] because [Apple’s] ordinance was on the agenda,” Rush says. “The work Jon, Amber, and I did was to present an ordinance that would pass muster at PERC.

“Everything that they advised we incorporated into the ordinance,” Rush says of the legal department’s suggestions. “There were a lot of points, I remember four or five, that they said wouldn’t fly. And they were out.”

Asked if he regrets going through the city’s legal department since the suggested changes obviously didn’t make the ordinance invulnerable to challenge, Rush says no.

But at this week’s tense briefing session, Rush bristled at City Attorney Mike Piccolo’s interpretation of the appeals process and offered what he called an “alternative” interpretation.

“We’ll take your legal background into consideration,” Shogan told Rush, after reminding fellow Council members of his own law degree.

After suggesting to Rush that “perhaps you’ll be bringing forward the $25,000 needed to appeal this,” Shogan lamented that the members of the public demanding more transparency in police business wouldn’t supply the funds, either.

“Everything has a cost,” he said.

Mayor Mary Verner says the debate around the arbitrator’s decision doesn’t concern her, though she did say his decision was “frustrating.”

“On this particular narrow legal topic … I’m going to leave that to the wisdom of the attorneys,” she says. “Whether the City Council wants to accept the advice of their attorneys or not is not my issue. … I feel like I shouldn’t insert myself in that debate.”

Instead, she says she’ll be “asking [the Guild] if they would cooperate with us and continue the role that the ombudsman has been exercising.”

Verner says she has already brought up expanding ombudsman powers with the Guild, but she would not say whether she’d make it a key term in this year’s negotiations. She says the Guild isn’t fighting police oversight. At issue was the way the powers were installed — through legislation rather than through labor negotiations, the mayor says.

Repeated calls to a Guild representative were not returned.

Asked if she’d leave the public fight for transparency in the police department to Rush, she says that she’s the “public face on working with the bargaining units.”

Snyder says he expected a protracted battle. “We’re trying to do something extremely difficult,” he says. “No other city in Washington has … an Office of the Police Ombudsman like we have here.”

If the Council appeals the arbitrator’s decision, Snyder says, the case won’t go to PERC like the citizen groups suggest.

“My understanding is the next step for appeal is Superior Court,” Snyder says.

Still, Snyder says, because the arbitrator told the city that it had to repeal the expanded-powers ordinance, the City Council will do just that. “If we don’t repeal, it’s just like writing a check over to the Guild,” he says.

But the fight for an independent ombudsman is far from over, some Council members say.

“I think this thing ought to be taken all the way up, even to the [state] Supreme Court,” Rush says. “We need a definitive answer why the community can’t have the police oversight that they’re seeking.”

For the time being, Rush says, “This now rests with the mayor. It now rests with the Council.”

Regardless of where it’s heading or who’s taking it there, Beggs says the three citizen groups have indicated the direction.

“We gave them a way forward. You can appeal.

The arbitrator went outside of his authority,” he says. “What would be weird is if they didn’t appeal. There really is no drawback to appealing.”