September 15, 2011 in City

Panel won’t overturn decision on police ombudsman’s powers

By The Spokesman-Review
 
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Background and the latest updates

At issue

The union argues that the ombudsman’s new powers could affect discipline and therefore should have been approved in negotiations with the guild. The city says that the new rules don’t give the ombudsman any authority for discipline, which remains at the police chief’s discretion.

Efforts to expand the Spokane police ombudsman’s authority to conduct independent investigations into alleged officer misconduct have suffered another blow.

The state Public Employment Relations Commission has not only rejected a request from the City Council to consider overturning an arbitrator’s decision blocking the expansion; it sent a letter highly critical of Spokane’s legal strategy, noting it was the city that opted for arbitration rather than a commission review.

“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,” wrote David Gedrose, the commission’s unfair labor practice manager, in a letter to the attorneys representing the city and the Spokane Police Guild.

The council is scheduled to decide Sept. 26 if it will repeal the ordinance as demanded by the arbitrator.

The original ombudsman ordinance was approved after it was accepted by the guild. Last year, however, the City Council strengthened Ombudsman Tim Burns’ powers by allowing him to investigate police misconduct separately from police. The guild filed an unfair labor practice claim with the commission because Burns’ authority was expanded without guild approval.

After the guild filed a complaint , the city agreed to arbitration. The city presented no witnesses at the arbitration proceeding, and Gedrose wrote that at least some of the arguments the city did present would have been better made in front of the commission, not an arbitrator. An arbitrator’s decision is based solely on the guild’s contract. The commission takes state law into consideration when ruling.

Gedrose said discarding the arbitrator’s decision would be unfair to the union, which played by the rules the city agreed to.

“Such a result 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 wrote.

Keller Allen, the Spokane labor attorney hired by the City Council to represent it in the case, said the city’s argument remained consistent throughout the case and was focused on a section of the guild’s contract that says “the city reserves the right to implement changes that are not mandatory subjects of bargaining.” He said in order to make the case about the contract, he highlighted a former decision by the employment commission involving the Seattle Police Department.

Allen said he would have made the same or similar arguments to the commission.

“It didn’t matter who it was in front of,” Allen said.

Breean Beggs, a civil rights attorney and former director of the Center for Justice, questioned the decision not to call witnesses at the arbitrator’s hearing. He suggested Chief Anne Kirkpatrick could have testified about the disciplinary process and Burns could have explained that he doesn’t have a role in discipline.

“The city’s decision to not call witnesses left them vulnerable to this decision,” he said.

Allen, who has billed the city about $10,500 for his work on the case, said one potential drawback of asking the commission to hear the case instead of an arbitrator is a rule that could have forced the city to pay for the guild’s legal bills because the commission already had rejected Spokane police oversight rules in the 1990s on similar grounds.

The city’s case was made more difficult because the guild’s contract included provisions about the ombudsman that had been negotiated based on the original ordinance, Allen said.

“Once parties sign a contract it’s difficult for one side of the contract to argue that they can unilaterally make a change,” he said.

Councilman Richard Rush, who has led the charge on the council to keep the stronger oversight rules on the books, called the letter “a real setback and disappointment.”

He said he has not ruled out the possibility of appealing the arbitrator’s decision.

Allen said the decision could be appealed in Superior Court or with the employment commission.

Last month, Verner said the most “direct route” to maintain the ombudsman is to negotiate with the guild. She said the group has expressed willingness to revert back to the 2008 ordinance. She noted that a recent state Supreme Court decision opening police internal affairs investigations to the public makes part of the new ombudsman rules unnecessary. The goal is to negotiate “in essence” the powers that were in the 2010 rules.

“Their point in objecting to the 2010 ordinance was that it was not negotiated,” she said.

Guild President Ernie Wuthrich did not return a call seeking comment.

Burns said he’s hopeful that after working with the new ordinance for about a year, the guild will agree to the newer ordinance.

“We can demonstrate that the increased authority was a wise decision that not only improved the process for the community but for the police department as well,” he said.


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