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Originally published Thursday, February 28, 2013 at 9:00 PM

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An old clash ignites McGinn, Holmes split over police reforms

Mayor Mike McGinn concluded City Attorney Pete Holmes had worked against the city’s interests, but Holmes countered he was doing his job.

Seattle Times staff reporter

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In submitting a proposed road map for police reforms in Seattle, the independent monitor tracking the court-ordered changes recently informed the city that it was important to gauge whether the police brass is embracing the reforms.

The monitor, Merrick Bobb, cited the need to assess whether the chief, the assistant and deputy chiefs and captains are demonstrating an “honest endorsement and a thorough understanding of the letter and spirit” of a settlement agreement with the Department of Justice (DOJ) to curb excessive force and biased policing.

In a letter sent Monday to Bobb, Police Chief John Diaz replied that the Police Department “disputes the findings” of the Justice Department report in December 2011 that led to the agreement.

It was this re-fighting of an old battle — reflected in one reply after another in Diaz’s response to Bobb’s draft monitoring plan — that triggered the bitter clash that has unfolded this week between Mayor Mike McGinn and City Attorney Pete Holmes.

Holmes, alarmed by Diaz’s response, sent his own letter to Bobb and a federal attorney Tuesday, expressing his willingness to tackle the issues in a more collaborative fashion.

McGinn asserted that Holmes had acted unethically by interfering with the negotiations and declared he would no longer allow Holmes to represent the city in the negotiations. A McGinn spokesman said Holmes was seeking to dictate city policy.

Holmes refused to step aside, saying that as the elected city attorney he represents the entire city, not just the mayor and the Police Department.

“In order to avert what we believed would be the Monitor’s total rejection of SPD’s concerns, we sent to the Monitor and DOJ our own work product as another alternative for the Monitor to consider,” Jean Boler, chief of the City’s Attorney’s civil division, wrote in an email to McGinn’s legal counsel Wednesday. “We have acted in the best interests of the City and in no way breached any ethical obligations.”

A copy of Boler’s email was obtained Thursday by The Seattle Times from a source.

The split between McGinn and Holmes raised the specter that the city and Bobb won’t be able to submit a unified plan to the federal judge overseeing the case, despite the settlement agreement reached in July.

It also appeared to be an extension of the differing stances the two men took during negotiations that led to the settlement agreement.

A close look at Diaz’s letter to Bobb — the head of a Los Angeles police-assessment center appointed by the judge to monitor the agreement — makes clear that Diaz believes that, under the settlement agreement, the monitoring plan must stay within the four corners of the document.

McGinn spokesman Aaron Pickus confirmed Thursday that is the city’s position.

From Diaz’s perspective, some of Bobb’s more liberal language strays beyond the city’s literal view of the accord.

Example: Bobb suggested that at the precinct or unit level, he would focus on the “interaction of first-line supervisors with the rank-and-file on rudeness, discourtesy, strategic and tactical error, and violations of administrative policy and training, as well as the use of force and race-based policing.”

Diaz, in a comparison chart attached to his letter, said under the settlement agreement there is no role for the monitor to “evaluate rudeness, discourtesy, or strategic and tactical errors.” Nor, he added, is there a role for the monitor to “evaluate violations of administrative policy and training beyond what the agreements require.”

Diaz said police should be “equitable, respectful and free of unlawful bias” to foster “community engagement and confidence” in the department and that officers should not use “harassing, intimidating or derogatory language.”

When Bobb suggested the monitoring plan is designed to “remedy the pattern or practice of unconstitutional policing,” Diaz replied: “Alleged pattern or practice.”

Both sides are seeking to agree on a plan, but if they can’t find common ground the settlement agreement allows the Police Department to put forward its own blueprint.

Without agreement, the judge, James Robart, could be asked to resolve the conflict — even settling differences over the meaning of words.

Bobb, for example, has proposed that sergeants “hold rank-and-file officers strictly accountable for constitutional policing,” to which Diaz responded: “What does strictly accountable mean?”

While those differences — and many other less contentious issues identified in the chart — might be resolved with a few adjustments in wording, others go to deeper fundamental issues.

In his draft plan, Bobb wrote of the need for “Permanent institutional change such that there no longer exists a factual basis to sustain the findings of the United States made on December 16, 2011, after a lengthy investigation.”

“The City,” Diaz replied, citing the legal terms of the settlement agreement, “does not admit or agree with the DOJ’s findings and conclusions.”

Boler, the city attorney’s civil chief, wrote in her email to the mayor’s counsel that the comparison chart was submitted by Diaz to Bobb “without consulting us.”

Boler said her office repeatedly advised Bob Scales, the Police Department’s compliance coordinator, that the information sent to Bobb would not further the Police Department’s or the city’s goal to craft a monitoring plan addressing the settlement agreement’s core requirements.

“We warned you that this strategy would backfire, but SPD nonetheless chose to communicate directly with the Monitor without even hearing us out directly,” Boler wrote. “Our Client is the City. If a Department of the City insists on undercutting the City’s interests, it is the City Attorney’s duty to mitigate that harm.”

Pickus, McGinn’s spokesman, issued a statement saying, “The City Attorney’s opinion of the quality of his own legal advice does not justify breaching ethical responsibilities to his client.”

Steve Miletich: 206-464-3302 or smiletich@seattletimes.com

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