Police Oversight in Spokane, Washington

Wednesday, May 5, 2021
by Commissioner Jenny Rose, Office of Police Ombudsman Commission, with background by Deputy Police Ombudsman Luvimae Omana, Office of Police Ombudsman
In 2013, 70% of the voters in Spokane, Washington voted for something remarkably simple: a police oversight ombudsman, complete with staff and commission, to be completely independent and have the authority to investigate complaints against the police department. Thus was born the City of Spokane Office of Police Ombudsman (OPO) and the Office of Police Ombudsman Commission (OPOC). Despite this mandate, the OPO and OPOC face important challenges to fulfilling their role to keep the police accountable. This post describes the various models of civilian oversight and the duties of the OPO and OPOC in Spokane. It also explores the barriers these agencies face in carrying out their role as well as the progress they’ve made, and articulates the hopeful path that lies ahead.

What does civilian oversight of police departments look like?

There are three general models of civilian oversight: (1) the auditor model (also called the monitor model), where the oversight agency is involved in or reviews the investigation of the complaint process[1] ;(2) the investigative model, which allows the oversight agency the ability to conduct independent investigations[2]; and (3) a hybrid of the auditor and the investigative models[3]. These three models typically have a full-time staff that conducts the investigations or monitoring. 
Civilian review boards are another form of oversight[4]. In a review board model, a panel of citizens reviews cases. The panel can either review completed investigations or conduct investigations of their own, depending on the jurisdiction. Their findings can become the basis for a range of subsequent actions, spanning from advisory recommendation to further investigation and the issuance of discipline. The staff for the review board model also varies. Some review boards have no full-time staff while others may have staff that provide administrative support to the board. 
Spokane employs a hybrid auditor/investigative model in the OPO. The mission of the OPO is to:
Promote public confidence in the professionalism and accountability of the members of SPD by providing independent review of police actions, thoughtful policy recommendations, and ongoing community outreach
The OPOC is responsible for selecting and removing the Ombudsman, evaluating the OPO’s work, and reporting to the City Council. They also serve as the arbiter of disputes over case investigations. The Spokane Police Department’s (SPD) Internal Affairs (IA) unit is the Chief of Police’s designee in administrative investigations.  The OPO’s day-to-day interaction with SPD is mostly with IA. They conduct all investigations and the OPO monitors the complaint investigation process.  However, where OPO and IA cannot come to an agreement, the OPO can appeal IA’s decision to the Chief.  This includes whether or not a complaint will be investigated; the type of investigation conducted, i.e. an IA investigation, a shift-level investigation for minor allegations conducted by a supervisor, or a cursory review that does not receive a full investigation; and when an investigation occurs, whether further investigation is warranted.
The Ombudsman and Deputy Ombudsman are invited to attend officer and citizen interviews conducted pursuant to the investigation process, and may ask open ended questions during the interview. At the end of the investigation, IA sends their investigation to the OPO for certification as timely, thorough, and objective.  The OPO is not involved in the disciplinary process.  If the OPO disagrees on any of these three things, they may request further investigation to be conducted by IA.  As previously mentioned, the OPO can appeal to the Chief if IA disagrees that further investigation is warranted.  If the Chief determines no further investigation is warranted, only then can the Ombudsman present his case to the OPOC through a written request. After reviewing both the OPO and the Chief’s or designee’s positions, the OPOC can direct an independent investigation. The OPO can also make policy and training recommendations, but none of their work can mention or impact discipline of specific officers.

The history of civilian oversight in Spokane and its challenges

Civilian oversight of law enforcement is still a comparatively new concept[5], compared to the rest of local government’s functions like running a water plant or the police department. As such, we run into hurdles as we carry out the duties charged to us. For instance, while the OPO is a hybrid model, 99% of the oversight it performs is through the auditor function. Contrary to what most members of the public may think, there is a very narrow path to an independent investigation. A community member cannot walk into the OPO or petition the OPOC and request an independent investigation on any incident. The community member must initiate the complaint process with the hope that it will prompt an independent investigation.
Under the recently ratified police contract in March 2021, a new path to an independent investigation has been added but both are still very limited.  In both cases, a community member must first file a complaint.  The new path to an independent investigation is triggered if IA determines no investigation will occur. In that case, the OPO may conduct an independent investigation of the complaint. 
The original path is still available - an independent investigation may also occur at the conclusion of the IA investigation.  If the OPO requests further investigation and the Chief determines IA will not conduct further investigation, the OPO may appeal to the OPOC.  However, an independent investigation is limited to additional investigative steps the OPO requested related to an open complaint.  The independent investigation can only commence after the Police Chief has made a written disciplinary determination on the matter. In both paths to an independent investigation, the OPO or third-party investigator may request officer interviews. The OPO does not have the same authority as SPD to compel an officer to respond to questions under Garrity advisements[6], since it is an independent entity.
In the last five years, the OPOC has only exercised its authority to direct SPD to conduct further investigation of one case, in 2018. To date, SPD has not acted on the OPOC’s direction, and has faced no ramifications.
Eight years into civilian oversight, the OPO and the OPOC are still struggling with the “completely independent” aspect. The Spokane City Charter states:
The police ombudsman and any employee of the OPO must, at all times, be totally independent. Any findings, recommendations, reports, and requests made by the OPO must reflect the independent views of the OPO
Sounds good, right? Notwithstanding this statement, the Spokane Police Guild (Union) Collective Bargaining Agreement (CBA), which mostly discusses wages and benefits, dedicates over 15 pages of the agreement placing limitations and adding procedural hurdles to how the OPO and OPOC conducts our business (CBA Article 27). The CBA was bargained between the Union and the City without OPO involvement. The most recent agreement dictates what the OPO can discuss in a report and requires disclosure that these reports are not an official determination of what occurred. A copy of any OPO closing report must be submitted to the Union for review in advance of publishing. This gives them an opportunity to review reports and make suggestions for what they view as a “potential contract violation,” followed by arbitration if the Union is still not satisfied with the OPO’s reports.
As a union member for 30 years and president of a union for eight years, it defies both logic and experience that third party oversight of public policing should be governed by the contents of the Police Guild’s CBA[7]. The people of Spokane did not vote for an oversight system where the Ombudsman is told by police when and how to investigate or what can be revealed to the public. They also did not agree to a provision that requires two to three out of the five members of the Ombudsman selection committee be police officers[8]!
Being independent also presents administrative challenges. The OPO reports to the OPOC who are volunteer community members and not City staff. For other departments, administrative requests are handled through the City and have a clearly established process. There is no clearly established process for the OPO and OPOC. This means that any budget requests and staffing changes approved by the OPOC can be dismissed inconsequentially without action.  
Furthermore, the OPO and OPOC have no recourse when we have disagreements with the Union in interpreting our duties and functions in the Municipal Code. There is no clearly prescribed path to resolution[9].  Historically, when the Union has filed a grievance, the City has chosen inaction. The OPO does not have the opportunity to present its case to resolve the disagreement and move forward[10]. In effect, the Union only needs to file a grievance to stop oversight efforts.
For instance, after the George Floyd protests last spring in Spokane, the Police Chief asked the OPO to assess the police response to the May 31st protests and write a closing report, since Spokane had never seen protests of that magnitude. We wanted the opportunity to review the challenges officers faced and make recommendations to enhance their response, supplies, strategies, etc. We hoped to look at what worked well and to make recommendations for improvement in the areas that did not. This is the true essence of police oversight. Almost a year later, SPD still has not provided the OPO with any of the records from the incident. The Union filed a grievance claiming the report could be a potential violation, which effectively stalled any effort to review and report on the incident. 
Labor law presents another challenge since the grievance process focuses on the employee and employer, and rightfully so. However, it does not account for civilian oversight and we find ourselves standing on the outside looking in on discussions that are central to our duties and functions. When the Union files a grievance against the City, the OPO is not formally notified. They only learn grievances were filed second hand from those who were notified, sometimes in unrelated conversations in passing.

Progress, and the path forward

There is some resolution on the horizon. With the recent ratification of the CBA, the Council President will include a path for the OPO and OPOC within the City to raise issues and receive resolution when the Municipal Code is updated to reflect the new contract.
Despite the challenges the OPO and OPOC have faced during my tenure as a Commissioner, we have made great strides in civilian oversight. In 2017, Spokane saw the greatest number of officer-involved shootings in recent memory. This spurred conversation between the Chief and the Ombudsman, which led to the creation of a de-escalation policy and an update of the use of force policy that shifted toward minimal reliance on force. The OPO successfully secured the City Council’s support in creating public facing use of force dashboards. This increased transparency and accessibility of data to the public. Then in 2020, the OPO released its first closing report, with 23 policy and training recommendations on a case that alleged excessive use of force. This report has increased dialogue between the OPO and SPD on the use of a K9 as well as any exceptional techniques allowed by the police department. These are areas that continue to be relevant after the George Floyd protests, and the OPO will continue to advocate for its ability to make related recommendations.
Community members have been contacting the OPO in steadily increasing numbers. In 2017, 955 citizens contacted the OPO. In 2020, we were contacted 1200 times—despite it being a pandemic year. Relationships are always a work in progress, but communication has steadily improved with the Chief’s office, and the OPO has developed a close working relationship with IA. When there is collaboration between the OPO and SPD – the sky is the limit!
[1] The City of Seattle’s Office of Inspector General (OIG) follows the auditor/monitor model.
[2] The City of Seattle’s Office of Police Accountability (OPA) follows the investigative model.
[3] King County’s Office of Law Enforcement Oversight (OLEO) follows the hybrid model.
[4] The City of Seattle’s Community Police Commission (CPC) is a Civilian Review Board that can review closed OPA cases and issue policy recommendations, but it does not have investigative powers like the Spokane Police Ombudsman.
[5] HB 1203, introduced in the 2021-22 legislative session, sought to create community oversight boards in cities and counties across the state but did not pass out of committee.
[6] In public employment, a Garrity advisement allows management to question an employee in administrative investigations and require they respond, possibly facing termination, while protecting the employee’s Fifth Amendment right to remain silent.
[7] ACLU-WA strongly supported a bill in the 2021 legislative session that would have strengthened police accountability by taking certain issues out of police collective bargaining and by eliminating the private arbitration of police discipline matters that too often results in officers keeping their jobs despite having committed serious misconduct.  The bill, SB 5134, did not pass in 2021 but the effort to address these problems is ongoing. For more information, see this blog post on the topic. 
[8]See also CBA Article 27(w).
[10] In 2018, the OPOC filed a complaint against Chief Meidl in order for the City to address its concerns over delay and interference with the OPO.  This prompted an HR investigation that took over a year to conduct and the allegations unfounded based on a limited investigation.  https://www.inlander.com/spokane/why-a-dispute-between-spokane-police-and-the-civilian-ombudsman-is-at-a-standstill/Conten...
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