In talks with DOJ, McGinn's legal adviser emerges as blunt voice
As city leaders respond to the U.S. Justice Department's finding that Seattle police too often resort to excessive force, Mayor Mike McGinn's legal counsel, Carl Marquardt, has challenged and chided federal officials while City Attorney Pete Holmes has taken a quieter approach.
Seattle Times staff reporter
When a top civil-rights attorney in the U.S. Department of Justice wrote two sternly worded letters to the city questioning its willingness to address problems in the Seattle Police Department, he sent the correspondence to City Attorney Pete Holmes.
But the city's blunt response disputing the claim was written not by Holmes but by Mayor Mike McGinn's legal counsel, Carl Marquardt.
While Marquardt has participated for some time in discussions with the Justice Department, his letter revealed the significant role he has assumed in responding to the Justice Department's controversial finding that Seattle police officers too often resort to excessive force.
At the same time, Marquardt's letter cast in sharp relief the delicate balancing act of Holmes. While bound by his job description and rules of his profession to strongly represent McGinn, Holmes also has refrained from criticizing the Justice Department and hinted he favors a collaborative approach with federal officials.
Marquardt, 46, and Holmes, 56, who both earned undergraduate degrees at Yale University, found themselves defending the city after the Justice Department in December issued a blistering report that also cited "troubling practices" of biased policing affecting minorities.
In keeping with their attorney-client relationship with the mayor, neither Marquardt nor Holmes would comment on their dealings with McGinn.
But each has distinct duties: Marquardt serves solely as a senior adviser to McGinn, while Holmes, as an elected city official, represents the city as a whole and the mayor.
Although McGinn is under no obligation to ask for Holmes' advice, staffers in the City Attorney's Office are working with the mayor's aides in responding to the Justice Department.
A former bankruptcy attorney, Holmes came into office in 2010 with a reputation as a Seattle police critic from his previous role as head of a police-oversight board. As city attorney, he has angered the police union by prosecuting officers for assault but has also aggressively defended officers in civil suits.
Before McGinn took office in 2010, he and Marquardt worked together for a time at the Seattle law firm Stokes Lawrence. While McGinn favored settlements, his experience with rough-and-tumble legal cases can be seen in the city's narrowly tailored responses and tough bargaining with the Justice Department.
With re-election bids for McGinn and Holmes looming next year, the stakes are high: Federal attorneys have said they will file a lawsuit that could force changes unless the city enters into a court-enforced consent decree with an independent monitor to oversee changes. If a suit is filed, Holmes would defend the city.
McGinn has said he's open to a consent decree, depending on the terms. Holmes has said an agreement would be in the city's "best interest."
Marquardt's letter to the Justice Department, dated May 31, alternated between combative and conciliatory language that challenged and chided the Justice Department while leaving room for further talks. Sprinkled throughout the three-page letter were words such as "untested," "impractical" and "undue" to describe measures that could be imposed on the city.
The letter was made public on June 25, after public-disclosure requests filed by news organizations prompted city and federal officials to release more than 150 pages of previously confidential documents detailing their respective positions.
The documents revealed wide gaps in their views, but both sides recently pledged to move forward and brought in a mediator to help bridge the divide.
Until the détente, McGinn and federal officials had met little and mostly traded barbs since the Justice Department handed the city a 107-page reform plan in late March. Included were comprehensive proposals to enhance oversight, expand training and add sergeants to improve front-line supervision.
McGinn called the plan burdensome and costly, saying the city would be saddled with up to $41 million in costs in the first year alone at a time of a budget shortfall. Alternatively, he pushed the city's own "20/20" plan, unveiled in March, as an effective but less-expensive way to address the Justice Department's concerns, including biased policing.
Federal officials disputed the cost figure and found fault with the "20/20" plan, calling the plan's 20 initiatives over 20 months "terrific goals and aspirations" lacking in substance.
On May 16, the city delivered its official counterproposal to the Justice Department. Notably, it disagreed with the excessive-force finding. But it expressed a willingness to enter into an agreement to ensure the Police Department is operating at the highest level, as well as to foster positive community relations and avoid the cost and delay of protracted litigation.
Crafted by the mayor's office and Holmes' staff, the 31-page plan offered more modest changes than those proposed by the Justice Department, focusing on policies and procedures related to use of force but conspicuously omitting measures to deal with biased policing because the Justice Department had stopped short of reaching an official finding on that issue.
However, in a cover letter separately obtained by The Seattle Times, Holmes wrote, "The City is not limiting its reforms to the elements of this counterproposal. The City will continue to explore and implement measures to ensure effective and constitutional policing."
Jonathan Smith, chief of the Special Litigation Section in the Justice Department's Civil Rights Division in Washington, D.C., replied in a letter the same day.
"We are particularly troubled and surprised that the City has not included any measures to respond to the issues of discriminatory policing, community engagement, or the City's accountability system," Smith wrote.
Smith complained the city had made "this process unnecessarily contentious and personal," increasing the risk of "unnecessary litigation."
He wrote Holmes again on May 23, accusing the city of bargaining through incremental moves commonly used in litigation. "Real solutions require a comprehensive approach, not piece meal bartering," he wrote, expressing a willingness to discuss alternatives.
Marquardt, in his May 31 letter to Smith, said the Justice Department's reform proposal addresses "many areas that were not subject to any rigorous analysis or findings" and includes measures that are "cost-prohibitive, operationally impossible, untested, inconsistent with best practices, and harmful to police responsiveness and effectiveness."
Marquardt chastised federal attorneys for dismissing the city's budget concerns and not making clear why the federal plan was "measurable and enforceable " and not the city's. He raised the possibility of agreeing on a court-enforced plan to address use of force, along with a memorandum of agreement on other provisions.
But Marquardt, citing possible "misunderstandings," opened the door to "substantive dialogue," suggesting McGinn meet with Attorney General Eric Holder or Thomas Perez, the assistant attorney general who oversees the Civil Rights Division. He also mentioned mediation.
McGinn, during an East Coast work trip, met with Perez in Washington, D.C., on June 12.
The next day, the Justice Department and McGinn's office issued a joint but vague statement, saying the meeting focused on the work ahead as part of continued efforts to reach agreement on "all issues."
Seattle Times news researcher David Turim contributed to this story, which includes information from Times archives.
Steve Miletich: 206-464-3302 or firstname.lastname@example.org