Case 2:12-cv-01282-JLR Document 335 Filed 11/29/16 Page 1 of 5 The Honorable James L. Robart 1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 8 UNITED STATES OF AMERICA, Plaintiff, 9 CITY OF SEATTLE, Defendant. 12 13 14 15 16 17 18 19 20 21 REQUEST FOR STATUS CONFERENCE vs. 10 11 Civil Action No.: 12-CV-1282 (JLR) Pursuant to Paragraph 226 of the Consent Decree, the City of Seattle herein apprises the Court of an Unfair Labor Practice Complaint (“Complaint”)1 that was filed against the City by the Seattle Police Management Association (“SPMA”) on October 20, 2016. As the Court is aware, Paragraph 226 requires the City and the United States of America (“DOJ”) to notify each other of any court or administrative challenge to the Consent Decree. (See Dkt. No. 3, at ¶ 226.) The City has informed DOJ of the Complaint, which the City reads to challenge both the Consent Decree and the Court’s Order setting forth the process for the draft accountability legislation. (See Dkt. No. 305.) Consistent with the spirit of Paragraph 226, the City believes it is also obligated to inform the Court of this challenge to the Consent Decree and the Court’s Order. 22 23 1 A copy of the Complaint is attached hereto at Exhibit “A.” REQUEST FOR STATUS CONFERENCE (12-CV-1282-JLR) - 1 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 Case 2:12-cv-01282-JLR Document 335 Filed 11/29/16 Page 2 of 5 1 The Complaint at issue alleges that the City and SPD have made numerous unlawful 2 unilateral changes to working conditions dating back to 2013 as the City modified policies and 3 procedures in compliance with the Consent Decree. (See Complaint, Exh. A.) The Complaint 4 also alleges that the process the Court has laid out for developing, drafting and implementing the 5 draft accountability legislation violates the City’s bargaining obligation with SPMA.2 (See 6 Complaint, Exh. A.) The City notes that on November 21, 2016, the Public Employment 7 Relations Committee (“PERC”) issued a deficiency notice concerning the Complaint.3 The 8 deficiency notice indicated that a number of the claims alleged in the Complaint, including those 9 allegations relating back to 2013 through 2015, were untimely filed or otherwise insufficient. 10 (Deficiency Notice, Exh. B, at pgs. 1-2.) However, with regard to the allegations concerning the 11 draft accountability legislation (assuming, as is PERC’s standard of review at this stage, that the 12 facts set forth are true and provable), PERC held that the Complaint stated “a claim for relief 13 available through unfair labor practice proceedings before the Commission.” (Deficiency Notice, 14 Exh. B, at pg. 1.) 15 On August 9, 2016, the Court entered an Order authorizing the City to draft the 16 accountability legislation but requiring that the Court “approve the proposed legislation” before 17 it being submitted to City Council. (Dkt. No. 305.) Notably, following the Court’s August 9 18 Order, both SPMA and SPOG were provided with informational briefings by the Mayor’s Office 19 during the formulation of the draft accountability legislation. 20 21 22 23 2 While only SPMA brings this Complaint, SPMA and the Seattle Police Officer’s Guild (“SPOG”) jointly submitted a letter to this Court in advance of the August 15, 2016 status conference in this matter, in which both unions indicated their beliefs that accountability recommendations articulated in the Monitor’s August 1, 2016 letter to the Court (Dkt. No. 303), and, by extension, aspects of the prospective draft accountability legislation, violated their collective bargaining rights. (See Dkt. No. 306.) 3 A copy of this deficiency notice is attached hereto at Exhibit “B.” REQUEST FOR STATUS CONFERENCE (12-CV-1282-JLR) - 2 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 Case 2:12-cv-01282-JLR Document 335 Filed 11/29/16 Page 3 of 5 Moreover, Section 3.29.400(B) of the draft legislative package provides: 1 Any provision of this ordinance that requires collective bargaining shall not become effective until the City satisfies its collective bargaining obligations under the Public Employees’ Collective Bargaining Act, chapter 41.56 RCW, or the City and the affected police union(s) mutually agree that the provision may be implemented. 2 3 4 5 The City believes this commitment accommodates any bargaining obligation it may have 6 while allowing the process for reviewing and implementing the draft accountability legislation to 7 proceed as directed by the Court. However, if the City first needs to bargain with SPMA and/or 8 SPOG about the substantive terms of the draft accountability legislation before the Court begins 9 or completes its review, and before the legislation is considered by City Council, such bargaining 10 would likely have a material effect on the Court’s projected timeline and planned next steps. 11 Moreover, given PERC’s preliminary determination, the City runs the risk of being subjected to 12 conflicting legal obligations in different forums. 13 The City further notes that even though SPMA contends that the operation of the Consent 14 Decree4, generally, and the contents of the draft accountability legislation5 violate its collective 15 bargaining rights and agreements with the City and SPD, SPMA has not sought to intervene in 16 this litigation. 17 Given the above, the City believes the parties, as well as SPMA, would benefit from a 18 status conference to discuss these matters with the Court. The City proposes that at the conference 19 it would apprise the Court about the nature and present status of the Complaint and discuss the 20 Complaint’s intersection with the Consent Decree, generally, and with the draft accountability 21 legislation presently under Court review. The City further intends to seek the Court’s guidance on 22 4 23 See Complaint, Exh. A; see also Seattle Police Officer’s Guild, et al. v. City of Seattle, et al., 13 Civ. 0490 (RSM), Dkt. No. 1-1. 5 See Dkt. No. 306. REQUEST FOR STATUS CONFERENCE (12-CV-1282-JLR) - 3 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 Case 2:12-cv-01282-JLR Document 335 Filed 11/29/16 Page 4 of 5 1 how to address the apparent conflict between the Complaint and the Court’s August 9 Order, as 2 well as guidance on SPMA’s articulated view of the City’s collective bargaining obligations, 3 which appears to be in opposition to the Court’s statements on this matter at the August 15 status 4 conference. 5 6 7 To the extent the Court grants this request for a status conference, the City is available to participate at the Court’s convenience and as soon as early to mid-December. DATED this 29th day of November, 2016. 8 For the CITY OF SEATTLE 9 s/Andrew T. Myerberg Andrew T. Myerberg Assistant City Attorney 701 Fifth Avenue, Suite 2050 Seattle City Attorney’s Office Seattle, WA 98104 Telephone: (206) 386-0077 Email: andrew.myerberg@seattle.gov 10 11 12 13 14 15 16 17 18 19 20 21 22 23 REQUEST FOR STATUS CONFERENCE (12-CV-1282-JLR) - 4 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 Case 2:12-cv-01282-JLR Document 335 Filed 11/29/16 Page 5 of 5 CERTIFICATE OF SERVICE 1 2 I hereby certify that on November 29, 2016, I electronically filed the foregoing with the 3 Clerk of the Court using the CM/ECF system, which will send notification of such filing to the 4 following counsel of record: 5 Andrew T. Myerberg andrew.myerberg@seattle.gov 6 Annette L. Hayes Annette.Hayes@usdoj.gov 7 Brian G. Maxey brian.maxey@seattle.gov Christina Fogg Christina.Fogg@usdoj.gov Eric M Stahl ericstahl@dwt.com Gregory Colin Narver gregory.narver@seattle.gov J. Michael Diaz michael.diaz@usdoj.gov John B. Schochet john.schochet@seattle.gov Kerry Jane Keefe kerry.keefe@usdoj.gov Matthew Barge matthewbarge@parc.info Peter Samuel Holmes peter.holmes@seattle.gov Peter Scott Ehrlichman ehrlichman.peter@dorsey.com 16 Puneet Cheema puneet.cheema2@usdoj.gov 17 Rebecca Boatright rebecca.boatright@seattle.gov 18 Rebecca Shapiro Cohen rebecca.cohen@usdoj.gov 19 Ronald R. Ward Ron@wardsmithlaw.com 20 Timothy D. Mygatt timothy.mygatt@usdoj.gov 21 DATED this 29th day of November, 2016, at Seattle, King County, Washington. 8 9 10 11 12 13 14 15 22 23 s/Andrew T. Myerberg Andrew Myerberg, Assistant City Attorney E-mail: andrew.myerberg@seattle.gov REQUEST FOR STATUS CONFERENCE (12-CV-1282-JLR) - 5 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200