City of Seattle Office of the Mayor March 5, 2013 Peter Holmes, City Attorney Jean Boler, Civil Division Chief Seattle City Attorney's Office Dear Pete and Jean, Recent communications between our offices reflect a fundamental disagreement about the 'rote and authority of the City Attorney. This disagreement has persisted for several years, and it has significant consequences for City government. We believe it is in the best interests of the City to resolve this issue, one way or the other, and we would like to propose a path to do that. First, 3 want to review the recent events in detail, because they provide a good iliostration of the probierns that arise from inconsistent views as to the roie of your office. The City entered a comprehensive Settiement Agreement with the United States Department of Justice on August 27, 2012. Merrick Bobb was appointed to monitor the agreement on October -30, 2012. The Settiement Agreement provides that "{w]ithin 120 days of the Monitor?>> appointment [February 27], the Monitor will develop a monitoring plan and wilt submit it to the parties for review and approval." "if the Parties do not agree on a Monitoring Plan, all policies and procedures will be developed within 180 days of the Effective Date of [the] Agreement and ail training curricula will be developed within one year of the Effective Date." By the plain language of the agreement, a Monitoring Plan can only be adopted by agre.ern_ent of the parties. The Monitor does not have authority under-the Settlement Agreement to unilaterally decide a plan. if there is no agreed-upon plan, the parties default to deadlines set by the Agreement. While the Agreement provides a deadline for the Nionitor's submission of a plan to the parties, it does not provide a deadline for agreement on the plan, or a requirement that it be approved by the Court. The Monitoring Plan is to "ciearly delineate the requirements of the Settlement Agreement to be assessed for compliance," and "set out a schedule for a compiiance review or audit of each requirement." Mr. Bobb provided us with a proposed monitoring pian on February 1. As you 'recognized, Mr. Bobb's proposal deviated from the Settiement Agreement in significant ways. You advised us that: The Monitor's draft plan does not track the settlement agreement in that it characterizes a number of things as "reouirements" that are not requirements and does not provide specifics on core requirements that are in the Settiement Agreement. Your .ofl"ice provided a 13--page "Comparison" chart, outtining a series of material inconsistencies between Mr. lE3obb's pier: and the requirements of the Settlement Agreement. Seattle City Hall, 71* Floor Tel (206) 684-4000. 600 Fourth Avenue Fax (206) 684-5360 PO Box 94749 Seattle, WA 98124-4749 Peter Holmes Jean Boler March 5, 2013 Page 2 Discrepancies between the Settiement Agreement and the proposed Monitoring Pian matter a great deal. Every provision in the Settlement Agreement was carefully considered and scrutinized to ensure that the overall Agreement will i) address the essentiai constitutionai concerns identified in DOJ's findings ietter; 2) preserve the Department's protect the pubiic; and 3) responsibiy manage City budget and resources. As chief law enforcement officer for the City, the Mayor is responsible for protecting all of these interests, and carrying out the Sattienient Agreement as written. The fact that the Monitor would submit a plan that clearly did not comply with the Settlement Agreement was alarming. Mr. Bobb's intent>> to extend the timelines for review of policies and training curricuia set forth in the Agreement was of particular concern. The Settlement Agreement requires the Monitor to complete his review of policies and training materials within 45 days of receiving a draft. Mr. Bopbspian indicates that he wilt delay approval of many poiicies and training curricuia for 5 to 9 months, or more. We were concerned this would unnecessariiy delay Si='D's progress in impiementing agreed reforms. Over the iast few weeks, we discussed with your office the best course of action for the City. We proposed that the City draft and offer an aiiernative plan that would iaithfuliy comply with the Settlement Agreement, provide ciear guidance to SP8, and serve the City's interests in pursuing prompt and effective implementation. You were criticai of this approach even though you acknowledged probiems in the Monitors draft plan. You suggested your office might not support an approach that would potentially antagonize Mr. Bobb or DOA, or ieadto any public disagreement - and that this was the City Attorney's prerogative. it seemed your primary concern was not to advocate for the City's position, but rather to appease the Monitor and DOJ. On Monday, February 25, you had a discussion with Bob Scaies, SPD's Compliance Coordinator, in which he presented our alternate framework of a monitoring plan. As believe you recognized, this proposal was logicai, comprehensive, and faithfui to the letter and spirit of the Settlement Agreement. You nevertheless indicated that you had concerns about this approach because it would be perceived as oppositionai to Mr. Bobb and DOJ. You proposed that we instead offer an edited version of Mr. Bobb's proposai, and include our draft as an appendix. After due consideration of your advice, and with the Mayor's approval, Chief Diaz provided our draft proposal to the Monitor. The next day, February 26, you sent a letter to the Monitor and DOJ undercutting the Chiefs proposal. You stated that "as the City's attomeys," you believe that "the Monitors draft pian provides a starting point for collaboration on the pian and that SPD's desire for more specific guidance can be accompiished by adding an appendix to the Monitoring Pian." You attached to your letter your "suggested edits to the Monitor's draft plan" and "an alternative statement of the framework for setting specific goals and requirements for the Pian." The "a-lternative statement" was an eariier, substantiaily different version of Chief Diaz" proposal, which Mr. Scales had provided to you in confidence on February 22; you had simply removed the "Attorney-Client Priviiege" designation, deleted a chart, and changed the date of the February 22 document. Your letter concluded with an invitation for lvir. Boob to consider your proposai, rather than your client's, as the position of the City: [i]f the Monitor wouid to engage in discussions as suggested by SPD in Chief Dia-z's letter, our office will assist in that process. it, however, the Monitor is Peter Holmes Jean Boler March 5, 2013 Page 3 inclined to reject approach, our office wanted to propose an alternate path for Needless to say, you did not consuit with our office or SPD, or share any draft of your ietter, before sending it; While you oiairned you were representing the position of "the City," no City official authorized your action. Meantime, sometime on Monday afternoon, without notice or consultation with your client, you and D03 entered a stipulation to extend "the deadiine by which the City must deveiop policies and 'procedures conternpiate.d within the Settlement Agreement." As the stipuiation noted, any deadiine to develop policies and procedures has not arisen, because the parties have not concluded discussion of a proposed Monitoring Pian. The stipulation included a staternent that: The Monitor has indicated to the Parties that he is agreeable to this short e-xtension, although it does not in any way limit the Monitors ability to submit a Monitoririg Pian to the Parties, or should agreement not be reached, to the Court. The implication of this statement was that the Monitor could ask the Court to approve his proposed Monitoring Plan if the City did not agree - which is not consistent with the Settlement Agreement. Your rafusai to support your client's proposal. and your submission of an alternate proposai, undermined your ciient's position. In negoflations on Tuesday, February 26, Mr. Boot: and DOJ were clearly interested in discussing your proposai, and relatively uninterested in the approach. As the negotiations continued, we proposed a compromise approach that merged portions of Mr. i3obb's plan with our proposai. You insisted that you wouid not forward this proposal to the parties unless it included a cover note distinguishing between your edits and your ciient's ("attached is a draft that contains the City Attorney's edits to the Monitoring Plan aiong with other edits and the framework is now in Section Aids on Tuesday, after controversy regarding these interactions had arisen. the City Attorney was quoted telling a reporter, "i am concerned about the city getting on board and doing the job of reform." The impiication of this statement - that SPD was not "on board" with the project of implementing the Settlement Agreement - was unfounded, untruthful, and totally contrary to the letter and spirit of Chief Diaz' own letter and proposal the day before. indeed, Chief Diaz has expressed nothing other than an earnest desire to implement the Settlement Agreement. Essentially, we are now engaged in a three-way negotiation where the City's attorneys assert they have independent authority, and may take positions contrary to the Executive branch of government. This situation does not serve the City's interests. As Mr. Boob reportedly told a group of officers on Tuesday night, "it seems like the City doesn't know who's on first base; they don't know who's in charge or what's going on." This is not the first time we have had these sorts of disagreements. in 2011, you asserted that you had independent authority to bring a iawsuit on behaif of the City in City of Seattle v. Protect Seattle Now. The 'court ruled that you had no authority to initiate the action, without direction from the Mayor and City Council, because you had no client. You have since asserted that the court was wrong. In 2012, -as we were in the midst of sensitive negotiations with the Peter Holmes Jean Boier March 5, 2013 Page 4 Department of Justice, you issued a letter denouncing the lViayor's approach, with the apparent goal of undercutting his to negotiate effectiveiy on behaif oi the City. Throughout our dealings with the DOJ, you have engaged in private communications with representatives of and now, with Mr. Boob. without sharing the content of these discussions. There is no -doubt that you are working to advance the objectives of these parties, even (and especiatiy) when they are contrary to the positions of your City clients. -We beiieve this course of conduct offends severai provisions of the Washington Rules of Professional Conduct for attorneys. - RPC 1.2 provides that "a lawyer shall abide by a ciient's decisions concerning the objectives of representation, and, as required by Rule 1.4, shat! consuit with the ctient as to the means by which they are to be pursued" - RPC 1,4 provides in part: lawyer shall; (1) promptiy inform the client of any decision of circumstance' with respect to which the client's informed consent is required by these Rules; (2) reasonably consult with the client about the means by which the ciient's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter RFC 1.6 provides: A lawyer shaii not reveal information relating to the representation of a client uniess the ciient gives informed consent 0 RFC 1.13 provides: A lawyer employed or retained by an organization represents the organization acting through its duty authorized constituents." We understand your position is that the Rules of Professional Conduct and established principles of the lawyerlciient relationship do not appiy to you because you are an eiected official, and because the Seattle City Charter provides that the City Attorney has "fuil supervisory controi" over the litigation of the City. in your view, this ianguage gives you independent decision-rnal