City attorney Pete Holmes sees a way to save more than $150 an hour on legal fees by not letting cops hire private lawyers. But the police guild promises legal action against the city if he goes through with it.
Ask anyone at City Hall and they'll tell you: The union representing Seattle police officers files far more labor complaints against the city than any other city union. Now the police are threatening to file yet another complaint, and this time officers are trying to leverage next year's budget shortfall of $67 million to their advantage, telling council members to capitulate or risk more debt from legal defense fees.
"We will take all necessary steps to vindicate our rights, which could prove very expensive for the city, especially in a tight budget year," wrote Rich O'Neill, president of the Seattle Police Officers' Guild (SPOG) in a letter to the mayor, the city attorney, and every member of the city council earlier this month.
What's this complaint all about?
The "rights" that O'Neill wants to "vindicate" involve the union's ability to choose who defends a police officer when he or she is sued for conduct—or, more frequently, misconduct—on the job. Put simply: When an officer unlawfully arrests someone, who is that officer's attorney? For the past 40 years, attorneys for police officers have come exclusively from one pricey downtown Seattle law firm: Stafford Frey Cooper.
On average last year, Stafford Frey Cooper charged the city $287 per hour; City Attorney Pete Holmes says city-employed lawyers can do the same job just as well for less than half as much: $102 per hour.
"We estimate that if we bring in as many as three lawyers in-house, we could save a net $1 million a year," Holmes says, adding that cases presenting a potential conflict of interest would be put up for a competitive bidding process among outside firms.
Rewriting the soon-to-expire police union contract, which police guild leadership says must be done in order to force them to abandon Stafford Frey Cooper, is political dynamite. "Over the last six or seven years, this was a real hot potato," says Council Member Nick Licata, who used to chair the council's public safety committee. "So I give our city attorney a lot of credit for raising this issue."
Even more combustible: Holmes is directly confronting SPOG, which smeared his bid for election last fall with accusations of "divisiveness" and "grandstanding," by arguing that he lacks the authority to change its defense lawyers without renegotiating that part of the contract. Says O'Neill: "The proposed change by the city attorney is an illegal action. If he chooses not to negotiate, we will file legal action against the city."
SPOG argues that when the city undertook responsibility for the entire insurance plan for false arrest in the 1980s—it used to be held by Lloyd's of London—it accepted a commitment to hire outside counsel from Stafford Frey Cooper, which has handled cases for about four decades. That contract for legal defense must be negotiated, and O'Neill says SPOG has to agree with it.
Holmes has a different interpretation of that clause of the contract. "If we reach impasse, [the city] can implement the change," Holmes says. "That is the end of the story."
Responding to a notice Holmes sent last month, Stafford Frey Cooper—which stands to lose an average of $1.8 million a year in legal fees, based on payments from the past 10 years—sent two lengthy letters to city officials trying to stop the change. Firm attorney Ted Buck wrote that he believes the city "would actually experience an increase in the overall cost of police misconduct defense." He cites the firm's specialized knowledge of the Seattle police force, the specific field of law, and costly cases that the city couldn't beat. Buck also makes two other points. Two other cities that manage their own officer defense, San Francisco and Minneapolis, pay two or three times what Seattle currently does in an average year. Plus, he says, Stafford Frey Cooper's reputation for winning cases without monetary judgments discourages lawsuits from being filed in he first place.
Switching to the city's lawyers would cause a "diminution in the experience level of attorneys representing the officers and the city (and its taxpayers)" and will therefore "lead to larger and more frequent payouts," Buck contends. For example, the city recently settled a pilot lawsuit that it shared with Stafford Frey Cooper, in which the city chose to settle the case for $28,000 (a Real Change newspaper vendor claimed an officer tried to ban him from the sidewalk in front of a bank on Second Avenue, an alleged civil rights violation). Stafford Frey Cooper lawyers told the city the firm wouldn't have settled; in general, Stafford Frey Copper seems to avoid settling at all costs.
Holmes calls that tactic—which requires the city to pay lawyers to fight every case to conclusion—"the scorched-earth theory of litigation." He says, "I certainly do not agree with a blanket policy that you are going to vigorously defend every claim. It is wrongheaded because it assumes that every claim is a false claim, and that is simply not true." He said that the city would always defend aggressively against unsubstantiated claims.
For an example of it working, Seattle needn't look to other cities (which some say is an apples-to-oranges comparison) but only to King County, which did the same thing Holmes is proposing a decade ago. The person who made the decision? City council member Sally Bagshaw, an attorney herself, who ran the civil division of the King County Prosecuting Attorney Office from 1999 to 2007. "We saved a bundle—undoubtedly in the millions," says Bagshaw, who will soon vote on a city budget that may include paying for new in-house attorneys for police defense work. Bagshaw says there was no increase in frivolous lawsuits and no uptick in needless payouts, and that government lawyers are just as good as private counsel. Holmes points out that he's just hired an attorney who specialized in defending New York Police Department officers.
"Not only is it perfectly normal from a taxpayer's perspective, it is an effective and efficient way to provide legal services," Bagshaw says. "I totally support it 100 percent."