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Ombudsman: Idaho’s public records process needs strengthening, and a venue short of court for appeals
Four months into her new job, Idaho’s public records ombudsman, Cally Younger, says more work needs to be done to clarify and strengthen Idaho's public records process. She's surveying state agencies and meeting with stakeholders in advance of the 2015 Legislature, and recommending potential changes to her boss, Gov. Butch Otter, reports Idaho Statesman reporter Cynthia Sewell.
Under Idaho’s current public records law, a citizen or journalist who is denied access to a public record has to sue in court to challenge the denial. Younger told the Statesman that’s a problem and one she’s working to fix with new legislation to be proposed next year. "I think the biggest shortcoming is that litigation is the only remedy for a requester, which in many cases can be cost-prohibitive to pursuing withheld records," Younger said. "That is one of the biggest issues that I am going to look into. I think it is important." She added, “We actually had our first meeting last month to talk about our goals for this session. I am hopeful that we can add that review process and also clear up some ambiguities in the law.”
Younger also said she's working to improve response to public records requests by state agencies. Sewell’s full article and a Q-and-A with Younger ran Sunday; they’re online here.
Gov. Butch Otter seemed a bit surprised this morning that he’d already received a public records request for documents related to his move to create a public records ombudsman position in his office. “Did you hear about that?” he asked reporters before his press conference, referring to the request from AP reporter Rebecca Boone. “She asked for a public records on the executive order I’m signing about public records today!” When a reporter – OK, it was me – responded, “What a great idea!” a laughing Otter said, “You guys – get outta here.”
Boone’s request seeks “all documents, correspondence, notes, phone messages, emails, text messages and other records regarding the creation of a public records ombudsman position by the Governor’s office,” along with policy or procedure documents on how to respond to public records requests both before and after the creation of the office, and all drafts and previous versions of the executive order creating the ombudsman position.
That final item may be of special note, considering that Otter spokesman Jon Hanian told the Idaho Statesman, in an article printed today, that the new ombudsman would take requests from those who've had a public records request denied, in whole or in part, within 90 days of the denial, and issue an opinion within 10 business days. “We think it will add another check and balance in the process of transparency,” Hanian told Statesman reporter Cynthia Sewell. But the order Otter signed today doesn’t include that process.
The governor said that’s his vision for what his new ombudsman would do, but first the attorney, Cally Younger, will gather information about how agencies handle requests now and help formulate proposals for improvements, some of which might require legislation. Hanian said today that the 90-day time frame “was in the earlier working draft; it was not in the executive order he signed today.” He said Otter left that out of today’s order because “he wants all of the particulars that deal with the process … as well as the time frame … to be part of the dialogue that he spoke about this morning. So it may end up being 90 days, it may be shorter than that or longer than that. … This will get the ball rolling on it and we can start fine-tuning it.”
Idaho Gov. Butch Otter today signed an executive order creating an Idaho public records ombudsman’s office under his office, charged with collecting information and compiling concerns and complaints about state agencies’ compliance with Idaho laws requiring disclosure of public records, and working with the governor, stakeholders and the public to come up with improvements to Idaho’s system.
“What we’re announcing today is the beginning of a process for the establishment of a consistent program for either denying or accepting public records requests,” Otter said. “Before now, the only remedy for somebody being denied a public records request was going to court.”
Otter’s executive order doesn’t change that – that’s still the law. But the governor said his new ombudsman’s office, which he can create on his own by executive order, will lay the groundwork for making a case to the Legislature next year – with all stakeholders involved – on how to make the process better.
“In the next six or seven months, we’re going to amass this information,” Otter said. “I’m going to have to go to the Legislature and say we’ve got stuff in the statute that we can take out, or we’ve got additional stuff that we should put into the statute.”
Otter named Cally Younger, associate counsel in his office, as the new public records ombudsman. “What I envision is Cally saying to an agency, ‘You are without statutory or legal grounds to deny this.’ That’s what I envision,” he said.
Establishing such an office under the Idaho Attorney General’s office, which already advises state agencies on public records law issues, has been discussed for years, but hasn’t happened due to lack of funding. Otter said he’s not seeking any additional funding at this point. “Cally’s already on staff and she’s a very industrious employee, works very hard,” he said.
Mark Warbis, Otter’s communications director, said the attorney general’s office doesn’t have the power to create such an office by executive order, and the governor’s office does. Otter thanked the Newspaper Association of Idaho, an association of Idaho newspaper publishers, and the group’s lobbyist, Jeremy Pisca, for spurring the move. “I want to build a process that gives some relief ahead of going to court,” Otter said. “That’s what this is all about.”
Coeur d’Alene Engineering Project Manager Dennis Grant will assume the role. Grant will serve as an ombudsman, working with contractor CNI and property owners to help facilitate the flow of information. “Dennis will be the ‘boots on the ground’ during construction,” said City Administrator Wendy Gabriel. “He, along with our City engineer, will work with the contractor and the property owners to ensure things go smoothly and that any issues are immediately addressed.” Grant has worked in the City’s Engineering Services Department for the past 13 years/Kristina Lyman, Coeur d'Alene Today. More below.
- Also: City staff to spread McEuen word/Tom Hasslinger, Press
Question: Have you visited the reconstruction sign this winter?
Spokane’s first police ombudsman will soon be out of a job, and the city may be without a permanent replacement for several months.
Mayor David Condon has decided not to renew Ombudsman Tim Burns’ three-year contract that expires Aug. 24, said City Administrator Theresa Sanders. He will keep his job, however, until Oct. 31.
Sanders said Condon was uncomfortable extending Burns’ stay for the long term because the position is likely to change. The city’s Use of Force Commission is due to release its final recommendations for a reformed police oversight model next month. Condon also has said he will select a new police chief by the end of this month.
Read the rest of SR reporter Jonathan Brunt's article here.
Spokane Police Guild officials announced in a news release Monday that the union "embraces" a police reform resolution that the Spokane City Council is likely to approve tonight.
"The Guild wants to thank the Council members for recognizing that many of the steps presented in the resolution may affect the working conditions of represented employees and would need to be negotiated with the affected unions," the news release said. "The City Council can expect the Guild to negotiate in good faith."
The guild agreed to the city's first rules that created the police ombudsman but successfully challenged an update to the job's powers last year. The resolution in front of City Council tonight calls not only for the reinstatement of the ombudsman's independent oversight powers, but for the police chief to be able to use ombudsman reports when considering discipline.
Interim Police Chief Scott Stephens has said he would support the upgraded ombudsman rules.
"I believe the officers actually developed kind of a favorable opinion of that (the stronger police ombudsman ordinance that was repealed). The guild of course is taking a look at this and just saying, 'We don't have objections to that in principle. Again we just want to make sure that if you're going to do this we want to be at the table.' They felt like things were being done to them without their input and I think that's why they threw the roadblock up there."
A call to Guild President Erinie Wuthrich was not immediately returned.
A coalition of organizations including the Peace and Justice Action League of Spokane is asking Spokane mayoral and City Council candidates to pledge not to vote for a Spokane Police Guild contract unless it includes stronger oversight.
The guild's contract expires at the end of the year and is under negotiation currently.
Earlier this month, the City Council repealed its 2010 police oversight law at the demand of an arbitrator, who ruled that it violated the guild's contract. The law gave Ombudsman Tim Burns the right to investigate allegations of police misconduct separately from the police department's internal affairs division.
The city is now operating under its 2008 police ombudsman rules.
Those who voted to repeal the law said the best way to obtain the provisions in the 2010 law are win guild approval of them through negotiations. Some council member said they would be unlikely to vote for guild contract unless the extra oversight is included in it.
League Director Liz Moore said pledge supporters will give candidates until the end of the week to decide if they will sign the pledge. Results will be publicized early next week.
Spokane’s police ombudsman on Monday lost the power to independently investigate misconduct allegations against the city’s law enforcement officers.
The Spokane City Council voted 5-2 Monday to repeal police oversight rules it approved unanimously last year, blaming an arbitrator’s decision in July that determined the expanded powers violated the Spokane Police Guild’s labor contract.
The Spokane City Council isn’t giving up on stronger police oversight, at least not for two more weeks.
The council voted 6-0 this week to delay action on the possible repeal of the city’s 2010 police ombudsman law to give it time to hire an outside attorney to analyze the possible appeal of an arbitrator’s July decision demanding that the city remove the ordinance.
The law, which strengthened the city’s original ombudsman rules from 2008, gave Ombudsman Tim Burns the power to investigate accusations of police misconduct separately from the police department’s own reviews.
Spokane City Council members suggested they may need voters to save the stronger police oversight rules they approved last year, by working to place the concept on the ballot.
Passions were high during the council’s Monday meeting as they discussed overturning police oversight rules. The debate included a few shouting matches between attendees and Council President Joe Shogan.
Mayor Mary Verner latest campaign newsletter picks a topic fresh in the news: police oversight.
Last week, Verner's campaign stressed her support for creating a police ombudsman position at City Hall. The week before, a filing in federal court detailed the position of Assistant Police Chief Jim Nicks related to the death of Otto Zehm, who died in police custody in 2006. Nicks has told federal investigators that Officer Karl F. Thompson Jr. violated department use-of-force policies and that detectives failed to thoroughly investigate Zehm's death.
Verner has indeed been on record supporting the creation of the position for some time, but she hasn't always pushed for the kind of independent, full-time ombudsman that was envisioned in a 2007 report commissioned by the city.
In 2008, Verner said that instead of hiring a full-time ombudsman, she planned to contract out for an ombudsman on an as-needed basis because of the city's budget problems.
In a meeting with journalists in March 2008, Verner explained that a full-time ombudsman wasn't necessary.
"I don’t really think that we need an in-house, full-time employee for an ombudsman," Verner told reporters. "I really believe that with Chief (Anne) Kirkpatrick’s leadership and the evolving good working relationship between the guild and the chief that we would have a Maytag Repairman on our hands."
Verner's position, however, had changed when she unveiled her 2009 budget plan, which included money for a full-time ombudsman, and her newsletter is correct that she conducted a nationwide search in an open process when she hired Ombudsman Tim Burns.
Since Burns started work, some council members pushed to give Burns the power to conduct investigations separately from police. Verner initially opposed that effort, and said that it was too soon to change Burns' powers and that doing so would require negotiations with the Spokane Police Guild.
Verner argued that during an economic downturn, her goals for Police Guild negotiations were for concessions to save jobs and service over gaining more police oversight authority. Verner signed the ordinance boosting Burns' authority after the council passed it unanimously. Next week, the council will consider revoking the ordinance in response to an arbitrator who ruled that the city should have negotiated the rules with the guild.
That action, along with the ongoing federal case against Thompson, will keep police oversight one of the top issues of the campaign even after Tuesday's primary.
An arbitrator this week revoked a law that strengthened Spokane’s police ombudsman powers because the city did not consult the Spokane Police Guild before it was approved last year.
The decision by arbitrator Michael H. Beck effectively reverses rules that strengthened the ability of police Ombudsman Tim Burns to investigate alleged officer misconduct independently of police. The opinion was dated Monday; the city received it Tuesday.
The power to examine police wrongdoing separate from the police department’s own investigators is a change in working conditions that must be negotiated with the guild, Beck ruled.
UPDATE: City Spokeswoman Marlene Feist said this afternoon that Verner will sign the ordinance.
Spokane Mayor Mary Verner said Tuesday that she supports the “overall intent” of the police oversight ordinance approved by City Council and “likely” will sign it.
She added, however, that she still has to read the final version before making a final decision.
Verner made the comments at the end of Monday’s council meeting, which ended Tuesday morning.
It’s past midnight here at the Spokane City Council. City Council President Joe Shogan recently announced that there will not be a vote tonight (or more accurately, this morning) about providing ombudsman the power to conduct independent investigation. But testimony is continuing. So far, a couple dozen people have talked, all in support of independent oversight.
The city hired its first ombudsman last summer, but rules haven’t allowed him to investigate allegations into police misconduct. Instead, he shadows police internal investigations and decides if the police have been thorough and fair.
In an interview last week, Ombudsman Tim Burns said he believes his office should have investigative authority. In a brief interview before the meeting, Mayor Mary Verner said she would wait to see the final version approved by the council before deciding if she would support giving the ombudsman investigative power. Verner said she hasn’t talked to Burns about his current opinion on the topic.
“I don’t know how much that (Burns’ opinion about the need for independent investigatory authority) reflects a need for a change in the ordinance,” Verner said.
The Spokane Police Guild, in an interview with Spokane Public Radio, has threatened to challenge any ordinance that expands the ombudsman’s authority. The most recent proposal under consideration would give Burns the power to begin interviewing witnesses as soon as a complaint is received. Burns would not have the power to interview guild members. (Related: Previous proposal, held over from the May 24 City Council meeting.)
Good morning, Netizens…
You have to always give credit to the elder spokespersons in our Fair City, because their sense of right and wrong nearly always are spot-on when it comes to recommending clinically good decisions. No, I am not bespeaking the lackluster members of the Spokane City Council. Bob Apple aside, the City Council ‘s lack of decisiveness and acumen is only equalled by their ability to hold decent public meetings where the public can speak to issues without fear of being escorted from the premises. There are other elders in our community who speak well, have cogent thought processes and aren’t afraid to speak their piece, even in front of the august City Council members.
Now take last night’s City Council meeting, for example, where they ratified the lackluster Police Ombudsman who-has-no-authority. As I have stated in the recent past, having a Police Ombudsman without full investigatory powers similar to those held by the Ombudsman in Boise, Idaho, is a waste of taxpayer’s money. Apparently most of the elder spokespersons in our community agree with that.
Marianne Torres perhaps coined the description best when she described hiring Tim “Hippie” Burns as Police Ombudsman like “a fox watching the chicken coop”.
Now you might not like Marianne Torres, because of some of her political stances. You might want to ask her why, if she is as sage as she appears, why she never ran for City Council. Maybe it is because she is too savvy to do something crazy like run for a City Council position. On the other hand, Mz. Torres aptly speaks for the disenfranchised, the downtrodden in our midst, most of whom question just about everything passed into law in our fair city. You take away the Ombudsman’s authority and what do you have? Nuttin’ baby. Everyone except the members of the City Council and the Mayor seem to agree with that.
Of course, if you have attended and/or watched City Council meetings past and present, you would know George McGrath. I am told there is even a George McGrath fan club, given the length of time he has appeared in the Citizens Forum pointing out the inequities of our city government. Typically armed with a sheaf of public documents, and loaded for bear, George can be counted upon to point out gross stupidity in our midst, and has done so for decades. George was escorted from last night’s City Council session for muttering deprecations from the audience about the ombudsman position. He is right when he says there is nothing being accomplished for the citizens.
That’s the problem, in my eyes. We have a Police Ombudsman bereft of any real powers, and a City Council and Mayor who do not know when to shut up and listen to our village elders.
However, we have a Police Ombudsman now. Sort of. Our City is still married to the Police Guild, a quasi-secret society of police that make their own rules as they go along. Can you agree with them or the Village Elders? It’s a choice, you know.
Good evening, Netizens…
We have a candidate for police ombudsman. His name is Timothy Burns of Visalia, California, a retired police officer now working as a neighborhood preservation advocate.
“I am excited to be able to move this process closer to conclusion,” Verner said in a prepared statement. “I believe Mr. Burns is the right selection for our community.”
Did you notice something was missing? There was no explanation why she chose Burns over the other two candidates, the FBI official and Texas A&M instructor, or Greg Weber, a Spokane attorney and former deputy director of the Washington State Attorney General’s Medicaid Fraud Control Unit, Tony Betz.
I gave Queen Mary her moniker because of her yakkety-yak-don’t-talk-back attitude, with the exception of when she is singing “Proud Mary” with Doug Clark for grins and giggles. Did we have a snow emergency? Her immediate response took fifteen lines of print to deny it. Most anytime she has something to say she is chattier than a Chatty Cathy doll stuck in overdrive.
Who muzzled Queen Mary on her choice of ombudsman and why? Is there an unseen hand keeping her from explaining why she chose Burns?
Now it goes before the City Council for ratification. Maybe we’ll learn the reason(s) for her choice, but probably not.
Good evening, Netizens…
Thus far, I know of only one of the purported half-dozen people who attended last night’s first showing of the Police Ombudsman candidates, and the comments of this person regarding the process were not all that complimentary either. In fact, I haven’t heard from one person who was astronomically wowed by the first meeting. Although, as the Spokesman-Review has noted in a piece about the Ombudsman introductions here, http://www.spokesman.com/stories/2009/may/30/protest-outdraws-ombudsman-forum/ the number of people who attended the protest regarding the Ombudsman role vastly out-numbered those who attended the 5:00 PM meet-and-greet session.
Why didn’t I attend?
One: I do not believe for a moment that an Ombudsman without any independent investigative authority over Police or their Guild is capable of doing their job. Barring the ability to investigate police, what good is the Ombudsman’s office to begin with? I have seen first-hand and read accounts where a vibrant, active Ombudsman, armed with the right to investigate charges against police, would be an invaluable asset to our community. However, without that right by law, my prediction is that an Ombudsman without investigative authority will result in the same runaround and half-truths that take place already.
Two: Planning a public meeting of this type at 5:00 PM on a Friday night virtually guarantees that few, if any people will bother to show up. Furthermore the lack of planning shows disdain for the common person who has to work for a living, make dinner and take care of their families, just the sort of grandstanding I have come to associate with Queen Mary Verner, Mayor of Spokane.
With the people already distrustful of the process by which the Office of the Ombudsman was created, and the apparent lack of trust they have in the Police Department, Spokane needs a more generic overhaul beginning at the top of the administrative towers of power.
Good morning, Netizens…
Spokane Mayor Mary Verner yesterday announced the three candidates who will be considered for the position of Police Ombudsman. All three candidates will be in Spokane May 29 through June 1 to attend public forums, interviews and various other meetings.
The finalists include:
Anthony Betz, of College Station, Tex. Mr. Betz is a retired FBI agent who is currently working as an adjunct professor at Texas A&M University. According to the Spokesman-Review, in 1995, Betz was suspended with pay during an investigation into FBI’s handling of the 1992 siege at Ruby Ridge in North Idaho. Almost a year after he was suspended, he was reinstated and cleared of wrongdoing, according to news reports at the time. “I was cleared completely,” Betz said in a phone interview Monday.
Timothy Burns, of Visalia, Calif. Mr. Burns is a retired police officer who is now working as the Neighborhood Preservation Manager for the City of Visalia.
Greg Weber, of Spokane. Mr. Weber is an attorney in private practice and has previously served on the staff of the Washington State Attorney General. Last year he came in third in a three-way primary for a Spokane County Superior Court judgeship.
A series of three forums, designed to allow the public to provide their comments on the candidates, will be held as part of the selection process. The forums are set for:
Friday, May 29, at 5 p.m. in the Chase Gallery in the lower level of City Hall, 808 W. Spokane Falls Blvd.
Saturday, May 30, at 10 a.m. at the West Central Community Center, 1603 N. Belt.
Saturday, May 30, at 2 p.m. at the East Central Community Center, 500 S. Stone.
In addition, a meet-and-greet session with the candidates has been set for 5 p.m. on Monday, June 1, also in the Chase Gallery just prior to the start of the City Council meeting. You might want to come early to guarantee yourself a good seat.
The City of Spokane began recruitment for the ombudsman position earlier this year; 128 people applied for the position. A five-member committee oversaw the candidate review process and recommended the three top candidates for the position to the Mayor.
The selected candidate will be appointed as ombudsman for a three-year term and can be reappointed to a second three-year term. The salary range for the position is $77,130 to $94,628.
Boise seems generally happy to have had ombudsman Pierce Murphy for the past decade. Murphy was brought to Spokane to discuss his job as the city was formulating how to create its position.
One key difference in Spokane’s set-up is that the longest the ombudsman can serve is six years. He/she would be appointed to a three-year term with the possibility of a second term. If that were the case in Boise, Murphy would’ve already been replaced with a less experienced person.
I’d imagine it takes a few years just to get the lay of the land and get comfortable in the job. I wonder if it limits the quality of the candidates if the city can only guarantee three years of employment.
Do you think the ombudsman job should have term limits?