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September 15, 2011 in City
Panel won’t overturn decision on police ombudsman’s powers
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.
Closing Geiger: Wise or worrisome? 
Ron_the_Cop on September 15 at 6:11 a.m.
The Ombudsman Ordinance was brought about by citizen demand for police oversight after the tragic death of Otto Zehm. I would encourage all to read the comment threads of the S-R’s ongoing coverage of the circumstances and cover up after his death esp., Shawn Vestal’s latest excellent column on the recent Mayor’s press conference:
Mayor’s FAQs on Zehm case short on real answers, again
http://www.spokesman.com/topics/otto-zehm/
There is a culture within Spokane government of covering up mistakes that is endemic and very costly to the taxpayers of Spokane. IMO the Ombudsman can’t with or without additional authority affect the change that the people are demanding when City leadership is a large part of the problem.
Spokane government has clearly demonstrated it is incapable of or won’t take care of this very serious problem. The Mayor and City Council have no political will to do this.
WE THE PEOPLE are not powerless to act and can take action to correct this problem if our elected leaders will not.
A way forward:
Recommendation No. 1:
All deaths involving officer involved shootings and physical altercations be reviewed by a Coroner’s inquest panel. This at least would bring the independent review of these incidents in a manner where the evidence is independently reviewed in a forum where due process rights of all involved are protected. Over time this will raise the professional bar in investigating these incidents and would minimize any attempt at cover ups.
Recommendation No. 2:
Spokane citizens Immediately request the US Attorney’s Office to expand its current criminal investigation into the death of Otto Zehm to include and prosecute anyone that was complicit and or aided and abetted in the cover up of the death of Otto Zehm.
Immediately request the US DOJ to undertake a pattern and practice investigation of the SPD and City of Spokane similar to what is now being done in Seattle.
For more information read more here:
Mayor Verner kicks the Otto Zehm death cover up down the road again http://tinyurl.com/3h49dgd
Mayor, City Attorney and Police Chief now implicated in Zehm death cover up (Spokane, WA) http://tinyurl.com/3h49dgd
Det. Ron Wright (Retired)
(Thirty-five yrs at Riverside PD, CA. and two term police union president)
Principal - Ron Wright Investigations LLC (Licensed in CA & WA)
Ron_the_Cop on September 15 at 7:16 a.m.
Tim Connor has also reported on the PERC response. I tend to agree that the City tanked its own case. Why?
Down in Flames
Published on September 8, 2011
In a scorching letter, a state labor relations official not only rejects the City’s challenge to an arbitrator’s July 11th ruling on Spokane’s police ombudsman, but questions whether the City sought arbitration in good faith. . .
http://cforjustice.org/2011/09/08/down-in-flames/
brianrbreen on September 15 at 8:33 a.m.
My sincere hope is that the guild will tell the Mayor no more Ombudsman charade, bring us a package that includes oversight of not only our membership but also oversight of our leadership and city administrators, then we will talk.
TheRoyLarsen on September 15 at 8:44 a.m.
Blasted rules again.
GDodd on September 15 at 8:59 a.m.
http://spokanehomicide.20m.com/