The lawyer representing Seattle’s citizen advisory panel on police reform last month accused Mayor Jenny Durkan’s office of “potential interference” with the independent oversight group while Durkan sought to advance her proposal to address the flaws in the city’s police-accountability system flagged by a federal judge, records obtained this week show.
David Perez, outside legal counsel for the Community Police Commission (CPC), raised his concerns to Durkan’s legal counsel, Michelle Chen, in an Aug. 12 letter that contended the mayor’s office’s behind-the-scenes criticisms of, and communications with, commissioners may have violated city law and rules for lawyers’ professional conduct.
Perez’s letter cited a text Chen sent last month criticizing the CPC for publicizing a letter condemning the mayor’s proposal, and what he described as Durkan’s “numerous and ongoing ex parte communications” with individual commissioners, including some about the group’s closed-door discussion of her police-accountability plan, as recent examples of the allegedly inappropriate interactions. The Seattle Times received a copy of the letter and related documents this week in response to a public records request.
“We are concerned that the Mayor’s Office is violating these provisions by interfering with CPC decision-making processes through application of explicit and implicit pressure on Commissioners and staff, and through ex-parte communications,” Perez wrote in his letter to Chen. “CPC is entitled to disagree with the Mayor, and indeed often must do so without interference or fear of reprisal or harassment. Any such interference or retaliation undercuts the CPC’s independence, undermines oversight, and violates the law.”
Durkan spokesman Mark Prentice said in an email Friday that the mayor’s office never received any privileged CPC information and provided a timeline of “our engagement with the CPC” since May. Prentice described the episode as a misunderstanding that has since been resolved.
“As we expected, we reached a mutual agreement that resolved any initial misunderstanding about our past communications and collaboration,” Prentice’s email said. “We have deep respect for the CPC’s critical role in the accountability regime and their strong independence. The Mayor looks forward to our continued engagement on a wide range of policing issues.”
City Attorney Pete Holmes, who facilitated a meeting between Perez and Chen on Sept. 6, separately wrote in a letter to Perez on Tuesday that “we’ve all reached a mutual understanding that communications between the Mayor and the Mayor’s Office with CPC Commissioners and staff did not violate” the Rules of Professional Conduct for lawyers regarding communications.
“With respect to your concern that the Mayor’s Office solicited or received privileged information … I can identify no such evidence that this occurred,” Holmes added. ” … Further, I’ve seen no documentation in the records provided that supports your concern regarding interference and retaliation against the CPC.”
The state Rules for Professional Conduct governing lawyer communications with represented persons generally bars an attorney with a client from directly communicating about a legal matter with a person known to be represented by another lawyer. But the rule makes exceptions when “authorized to do so by law or a court order.” The federal judge overseeing the police-reform case has ordered the city to work with the CPC to formulate the new police-accountability plan.
Perez, a partner in the Seattle law firm Perkins Coie, said in emails this week that his concerns about professional rules violations were “put to rest” by the meeting with Holmes and Chen. He added the CPC has since received assurances from the mayor’s office “of their renewed commitment not to interfere with the CPC’s role as an independent oversight agency.”
“As we said in our letter and our statement to you, we were concerned about possible interference and intimidation of the CPC from the Mayor’s Office,” Perez said in an email Friday. “We will continue to monitor those issues to ensure that CPC’s independence is respected.”
Created by city ordinance in 2013, the CPC is authorized as an independent oversight agency to provide community input on police reforms as part of the consent decree with the Department of Justice requiring the city to address officers’ alleged excessive use of force and biased policing.
In May, U.S. District Judge James Robart found Seattle had fallen partially out of compliance with the settlement agreement, and he ordered the city to devise a “methodology” for assessing the “police accountability regime” and achieving full compliance. As part of the process, the judge directed the city to work with the DOJ, the court’s appointed monitor, Merrick Bobb, and the CPC.
The week before Durkan was set to deliver the city’s proposal to Robart last month, the CPC voted 12 to 0, with three abstentions, to reject the mayor’s plan, which partly seeks to address Robart’s concerns by having outside consultants examine procedures in 20 other cities. The CPC, in an analysis it publicly released after its vote, expressed concern that Durkan’s approach “fails to adequately address the Court’s concerns and will lead to further unnecessary delays in achieving appropriate and long overdue disciplinary system reforms.”
News reports of the CPC’s criticisms prompted Chen, the mayor’s attorney, to complain in a text to CPC co-chair Isaac Ruiz that the commission publicized its position without first informing Durkan of it. “I don’t know what ‘collaboration’ looks like with CPC,” Chen wrote. “My experience so far has been nothing but bombs detonated via media.”
Perez later cited the email in his four-page letter to Chen, as well as the belief “that you and the Mayor have elicited privileged information from CPC commissioners concerning discussions held during executive session” prior to the vote on Durkan’s plan.
Perez pointed to another email, from Chen to him, following the news report about the CPC’s rejection of Durkan’s proposal. That email said “it has come to our attention that what was reported by the media is not what some Commissioners believed they were voting on and the process for which this vote occurred has raised concerns …”
Perez’s letter noted that commissioners’ discussions prior to their public vote on the mayor’s proposal were privileged, taking place during a closed-door meeting.
“The mere prospect that the Mayor’s Office would elicit privileged information from CPC commissioners is troubling,” Perez wrote to Chen. “The effect is to impair CPC’s ability to engage in candid and frank discussions with its counsel.”
Perez’s letter requested that going forward, the mayor’s office avoid “ex-parte” communications — or direct contacts with individual commissioners without the CPC’s lawyer present — and communicate about the federal case only through him. Perez also asked Durkan’s office to turn over copies of all documents and communications since May relating to meetings and communications with CPC commissioners or staff, and to disclose any instances in which the mayor received privileged CPC information.
Holmes’ response letter to Perez this week indicates the city has produced the records Perez requested, but the city attorney found nothing inappropriate in them. Holmes letter also said that Ruiz, the CPC’s co-chair, has since apologized for the CPC publicizing its legal position on Durkan’s plan before giving it to city officials.