Investigating OIG Complaint in City Council's Court — but SCC Isn't Acting

by Carolyn Bick

In August, a former high-ranking staffer from the Office of Inspector General (OIG) resigned from their position as investigations supervisor. At the same time, the whistleblower and now former investigations supervisor filed what was then an ethics complaint against the office, alleging that Inspector General Lisa Judge and Deputy Inspector General Amy Tsai have actively tried to silence any pushback against the Office of Police Accountability (OPA) — the fellow police oversight entity the OIG is supposed to oversee and audit — creating, in effect, a squad of rubber stampers in the OIG itself. The complaint alleged that OIG's efforts to avoid criticizing the OPA were in part engineered to "appease" OPA Dir. Andrew Myerberg, stating that OIG leadership didn't want to "anger" Myerberg. The complaint also alleged that the OPA had committed malfeasance of its own.

Over the past several months, the Emerald has covered the evolution of this complaint in detail in a series of articles examining each allegation and the City's response — or, more accurately, the lack thereof. As the Emerald revealed, both the Seattle Ethics and Elections Commission (SEEC) and the City's Human Resources (HR) department (the departments with whom the complaint was filed) declined to investigate the complaint, which Seattle City Councilmember (SCC) Lisa Herbold told the Emerald meant that the complaint was no longer considered to be one of an ethical nature.

(In an effort to avoid getting bogged down arguing the line between the City code and the actual definition of "ethics," the Emerald will hereafter refer to the complaint against OIG as just that: the complaint against OIG.)

But Herbold stopped short of saying that the complaint's allegations were specious and not issues of concern. Instead, she recently sent the Emerald two budget proposals that she claimed would address the two major issues at play in the complaint.

This appears to mark a significant shift in official attitudes towards this complaint, but as this article will outline below, it still doesn't look like the primary concerns raised by the whistleblower are getting any closer to being addressed.

As the Emerald previously reported, as recently as October, Federal Monitor Anthony Oftelie revealed in a correspondence with the Emerald that "from all accounts relayed to me" — ostensibly by City officials — "this is an issue that while sounding salacious on its cover, really has no merit."

The Emerald noted this in the article about the SEEC's decision, but it bears repeating: When Oftelie wrote the above, he had not read the complaint or its associated materials, a fact he admitted to the Emerald via email.

Because SEEC and HR declined to investigate, the Emerald set out to try to figure out who exactly is responsible for investigating or commissioning an investigation into the allegations contained within the complaint. As it turns out, the buck seems to stop with the SCC itself — and, more specifically, with Herbold, who serves as the head of the City's Public Safety & Human Services Committee.

But the Emerald obtained an email exchange between Herbold and a high-ranking OPA staffer about one of the several serious allegations contained within the complaint. The exchange appears to raise yet another issue of concern.

Herbold to OPA: 'Happy to Follow Your Guidance'

On Sept. 22, 2021, Herbold and OPA Asst. Dir. of Public Affairs & Policy Anne Bettesworth corresponded about OPA case 2020OPA-0583, which was included in the complaint against the OIG. The complaint alleged that the OPA supported — and helped to create and push a false narrative about — the events cited in that case, which dealt with the 2020 Labor Day protest in front of the Seattle Police Officers' Guild (SPOG). The Emerald examined this allegation in detail in this story.

The Emerald had originally emailed Herbold, who then added to the thread her legislative assistant, Newell Aldrich, and Bettesworth. But in a reply from Bettesworth, the Emerald alone was not included. In the exchange, Bettesworth appeared to answer a question about the case concerning the 2020 Labor Day protest, telling Herbold that the information on the OPA's online case tracker was "basically correct" with regard to the case. Responding to Bettesworth, Herbold wrote the following:

"Very, very helpful. Thank you! I see you dropped [Emerald reporter] Carolyn [Bick]. Is there any reason I shouldn't share this with her? Maybe I *don't* tell her that Director Myerberg is amending his filings? She'll then probably write something that suggests that the clock is run out if I only tell her that the online tracker is accurate. If I clarify that the 180 deadline only applies to the original findings this will suggest by inference that there are amended filings in the works. Happy to follow your guidance."

While the Emerald later received a response from Herbold, it only recently learned — via a public disclosure request (PDR) — about this email exchange in which Herbold had asked the OPA not only what she should tell the Emerald but also whether she should keep what appears to have been public information from the Emerald in response to its inquiry about the allegation regarding the Labor Day 2020 protest.

The former OIG investigations supervisor who filed the whistleblower complaint met with Herbold and Councilmember Andrew Lewis in an attempt to discuss the complaint. However, the Emerald learned via the same PDR mentioned above that Herbold appears to have questioned the complaint's veracity from the get-go — nine days before Herbold and Lewis met with the investigations supervisor — despite the whistleblower's position with the OIG. The PDR also produced emails from the whistleblower that show this person repeatedly attempting to explain to Herbold that there is a difference between a closed case and a closed investigation. Though the Emerald will discuss these emails in-depth later in this story, readers can find the distinction in the story about the case concerning the 2020 Labor Day protest, linked above. Herbold's seeming lack of understanding of some of these basic systems and processes pertaining to the work of the OPA and OIG are clearly an ongoing frustration for the whistleblower, as the content of the emails will illustrate.

Additionally — though it was first characterized as an ethics complaint — because SEEC and HR declined to investigate the complaint, Herbold told the Emerald in a Nov. 10 email, the complaint isn't an ethics complaint at all, according to the City's definition of what constitutes an ethics issue. Rather, she said, the complaint falls into two categories: independent oversight of the OPA — which is supposed to be the OIG's job — and transparency and public disclosure.

Instead of directly answering the Emerald's original question to her about what the SCC is going to do to address the complaint, Herbold instead touted two budget amendments that she has proposed. However, neither appear to get to the root of the problem in the complaint or the central issue posed at the end of the Emerald's last article on the subject: Who is responsible for ensuring these allegations are properly investigated?

Notably, Herbold did not deny that the allegations within the complaint did, in fact, appear to at least be worth looking into.

And now, given Herbold's correspondence with the OPA and the apparent suggestion that she keep information from the Emerald at the OPA's behest, the Emerald's various lines of inquiry have unearthed yet another issue — one that does, in fact, seem to be ethical in nature: Can the City's officials rightly and responsibly hold their posts as supposedly independent legislators if they ask the very agencies it is their job to oversee whether they should share what appears to be public information with media outlets? This question is especially crucial here when juxtaposed against Herbold's own move to define one of the issues raised within the former investigations supervisor's complaint as that of "transparency and public disclosure."

Who Is Responsible?

Neither the question of who is responsible for addressing the complaint nor what is appropriate when it comes to communication and collaboration between legislators and the agencies they oversee have a straightforward answer. But the first, at least, has a roundabout one that suggests that the duty to do something about the allegations has landed squarely at the SCC's feet. However, Herbold seems to evade this responsibility, instead shifting it onto other agencies.

The budget amendments she referenced in her Nov. 10 email to the Emerald read as follows:

1) Fund Seattle Office of Civil Rights to engage a task force of community members impacted by law enforcement and criminal legal system to assist the City Auditor's assessment of the police accountability system.

It's unclear how this proposed amendment would immediately have remedied or even begun to address the allegations outlined in the complaint or how such a task force would substantially differ from the Community Police Commission (CPC) — the third leg in the City's police oversight system, alongside the OPA and OIG — in its powers and duties. The CPC does not have the power to launch investigations. Moreover, as the Emerald recently reported, the CPC, it would seem, has been twice left out of the loop regarding the decisions by SEEC and HR not to investigate the allegations listed in the former whistleblower's complaint, which calls into question what power they actually have within the City's oversight system.

As for the City Auditor, the position is one appointed by the SCC. According to the office's website, while the City Auditor can provide recommendations for departmental changes via in-depth analysis of different departments, it cannot conduct investigations into allegations against any City department. City Auditor David G. Jones stated much the same thing in a Nov. 16 email to the Emerald:

"We have no specific, formally assigned role in overseeing the police accountability system and cannot compel OPA, OIG, or CPC to do anything," Jones wrote. "However, our office is authorized to conduct reviews, primarily through performance audits, of virtually any City department, program, or contract and to make recommendations for improvements. As an entity housed in the legislative branch of Seattle City government, our priorities are to perform work required by ordinance or requested by the Seattle City Council."

Jones said that the office has authorization to review "most things" the City does.

"However, given our small size and limited resources, we can only take on a limited number of projects and we prioritize working on those required by ordinance and/or that are of greatest interest to the City Council and that concern significant risks to the City of Seattle," Jones explained. "Our office is limited to making recommendations that City decision makers (e.g., City Councilmembers, the Mayor, City department heads) must decide whether to implement."

In a follow-up email, he clarified, "We would not do this work without a Council request."

This amendment did not pass.

2) Add funds to the Office of Inspector General for public disclosure staff. OIG has unique public records needs and responsibilities including maintaining CJIS [Criminal Justice Information Services] background status and being trained in collective bargaining agreement requirements and video redaction tools. For a small department, fulfilling police-related PDRs becomes a very time intensive process.

With regard to the second budget amendment, it completely ignores the allegation in the former investigations supervisor's complaint that both Inspector General Lisa Judge and Deputy Inspector General Amy Tsai directed staff not to put anything in writing that the press could get ahold of — specifically, anything that could be deemed critical of the OPA. The former investigations supervisor writes in the complaint that they themself were "verbally reprimanded" for their supposed "tone" in an email to OPA Dir. Andrew Myerberg. Later, the whistleblower said in the complaint, Tsai herself called the investigations supervisor to remind them of the OIG's unwritten policy.

"[Tsai] told me it is the policy of the IG [inspector general] that any statement which could be construed as negative toward OPA should take place via phone call only," the whistleblower writes in their complaint. "The reason for this was to avoid the press having 'ammunition' to portray OPA in a bad light, as this would make the IG's relationship with OPA Director Andrew Myerberg more difficult. I expressed my frustration with this stance, as it is counter to our oversight position, but was again told it is a political decision made by the IG and I must abide by this policy."

Thus, it would seem that the issue is not one of lack of funding or staff to fulfill public disclosure requests, as Herbold's email seems to suggest. Instead, the problem, as alleged by the whistleblower, is intentional and active refusal by OIG leadership to create publicly disclosable records.

Both the State Attorney General's Office and the governmental transparency and accountability nonprofit Washington Coalition for Open Government (WCOG) said that this alleged practice is not a violation of the State's Public Records Act. However, WCOG strongly condemned this alleged practice. WCOG Executive Dir. Juli Bunting said in a Dec. 2 email to the Emerald that "the notion that our public officials would compel their employees to remain silent on a matter of public concern is disturbing.

"The public needs to know that their officials are actively working to thwart accountability, even to the point of establishing official policies that presumably carry the threat of discipline or firing," Bunting said. "It is egregious."

This budget amendment passed.

When the Emerald pointed out that neither budget amendment appeared to strike at the heart of the complaint's allegations, Herbold said only in a Dec. 3 email, "a. Additional PDR staff assist in adherence to PDR law. b. Making changes to the system is best driven, I believe, by a comprehensive assessment and one that involves stakeholders."

The Emerald also reached out to the City Attorney's office to ask whether the office can investigate the allegations listed in the complaint. City Attorney Communications Dir. Dan Nolte told the Emerald in a Nov. 13 email that it's a common misconception that the office has an investigatory arm and clarified that other agencies, such as the Seattle Police Department (SPD) and the City's Animal Shelter, are the ones who investigate. Nolte said that his office reviews any cases referred for prosecution.

Nolte said that no one has yet referred the complaint or any of the allegations therein to the City Attorney's office. But this doesn't mean that they can't. The Emerald followed up with Nolte on Nov. 16 to ask whether the Seattle City Council, the OIG, the SEEC, HR, and others can refer cases to the City Attorney for prosecution.

"There's no legal prohibition preventing those other departments from making referrals. It's just not something that happens," Nolte said. "The referred investigation would need to be certified under penalty of perjury for a judge to be able to find probable cause."

So, it seems that while the SCC cannot itself investigate the allegations contained within the complaint, there is nothing preventing the Council from pushing for or devoting resources to an outside agency to conduct an investigation — and, as the City's legislative body responsible for overseeing the City's departments and employees, one might argue that it's the SCC's job to determine how to handle the allegations.

When the Emerald told Herbold what it had learned from both the City Attorney's Office and the City Auditor's Office, she asked whether the offices "are aware that the issues are an under review by an independent third party and whether, given that, they really believe that it falls to the City Council 'to deal with the whistleblower complaint.'"

The Emerald replied that an independent agency is only investigating a singular allegation in the complaint — specifically, the issue of an OIG auditor's performance — not every allegation in the complaint.

Herbold did not reply to this.

Though he did not overtly suggest an outside investigation, Councilmember Lewis appears to have at first taken the allegations seriously.

"Any thoughts on the Council taking some action on these allegations?" Lewis writes in an Aug. 9 email, citing the Emerald's reporting. "Perhaps an external audit of OIG processes by the City Auditor? Or some kind of resources for the ethics investigation? There may be some structural issues here that stop short of being unethical, but have an impact on the efficacy of the OIG's work. Would love to chat more about this."

However, Herbold appears to cut him off at the pass, instead casting doubt on the veracity of the whistleblower's complaint: "It's interesting to me that the article a couple weeks ago was that OIG had certified some OPA investigations as incomplete – an example of OIG exercising their statutory oversight over OPA and now the story is that OIG is not exercising oversight?"

Here, Herbold appears to miss the fact that OIG leadership has been accused of pushing back against providing true oversight of the OPA, not that every single one of its auditors have fallen in line with this alleged internal policy of not being critical of the OPA.

"As mentioned in Briefings this am [morning], I'm going to check with HR and SEEC to determine whether these complaints are within the scope of their offices. I'll let you know what I find out," Herbold adds.

Aldrich told the Emerald in an email on Dec. 6 that Herbold "did follow up [with Lewis], and they agreed on working with the City Auditor on a budget action which wasn't included in the balancing package." The Emerald addressed this budget action above.

The Emerald also reached out to Lewis for comment and, as it did with Herbold, to ask what the next steps were for the SCC with regard to addressing the allegations in the complaint. Lewis did not respond.

But Lewis' lack of response is hardly unique. Aside from Herbold, no councilmembers have made an effort to respond to the Emerald about this matter — or, indeed, to talk about any aspect of the complaint publicly at all, despite many of them, such as Sawant and Mosqueda, framing themselves as wanting to hold the police accountable and create more transparency within the City.

The Emerald directly contacted both Sawant and Mosqueda about the complaint multiple times and has email evidence via the aforementioned PDR showing that the whistleblower directly included Sawant on an email to Herbold and Lewis about the complaint.

The Emerald was scheduled to speak with Mosqueda about the Labor Day 2020 protest allegation in the whistleblower complaint on Oct. 4 for a future story — but once on the phone, Mosqueda appeared to believe she was speaking with the Emerald about the budget. When the Emerald corrected her, Mosqueda told the Emerald to send along the story and that she would "see if [she] could" comment on it. Though the Emerald sent along the story, Mosqueda did not return repeated requests for comment, and her legislative assistant, Faride Cuevas, told the Emerald that she would not be able to speak about anything but the budget until after Nov. 22.

The Emerald contacted Mosqueda and Cuevas on Dec. 1 to ask for comment about either the Labor Day 2020 protest allegation or the whistleblower complaint as a whole and was met with silence from both of them.

Legislative Independence

As outlined at the beginning of this story, the Emerald reached out to Herbold for comment for a September story about OPA case 2020OPA-0583, which concerned the Labor Day 2020 protest in front of the Seattle Police Officers' Guild (SPOG) headquarters. The Emerald had discovered that the OPA seems to have based its conclusions on what appears to be a false narrative.

The Emerald had also reached out to the OPA for comment. However, the OPA did not respond to the Emerald — and, as indicated above, the OPA's Anne Bettesworth even went so far as to drop the Emerald from the email thread.

Rather than registering concern that a public agency would refuse to correspond with a member of the media requesting information, Herbold instead asked whether she should keep information from that member of the media. (Readers can find that email at the beginning of this story.)

To this email, Bettesworth replied, "You're welcome! Feel free to respond to Carolyn as you see fit. The documents will speak for themselves eventually, and she will also likely write what she wants to write. And I don't mean that disrespectfully to you at all."

Herbold replied with a terse, "Understood."

As the Emerald outlined earlier, this exchange raises the question of legislative independence and whether an agency that is alleged to have breached the public trust should be consulted as to what information a City Councilmember who supposedly oversees that agency provides to the media.

As the head of the Public Safety and Human Services Committee, Herbold's duty, as defined on the committee's website, is as follows (emphasis by the Emerald):

"To provide policy direction and oversight and to deliberate and make recommendations on legislative matters relating to … police accountability (including the Office of Police Accountability, Office of Inspector General, and the Community Police Commission), and the implementation of the Settlement Agreement between the Department of Justice and the City of Seattle regarding the Seattle Police Department."

It is unclear how Herbold can maintain a role of independent oversight while at the same time consulting an agency she is responsible for overseeing as to how she should respond to a member of the media who is asking questions about alleged wrongdoing by that very agency.

Furthermore, as mentioned earlier, it appears that Herbold also does not understand the difference between a closed investigation and a closed case, thus throwing any oversight she could provide on this particular matter into question as the distinction is relevant to the allegations and the events currently playing out in their wake. And based on a brief email interaction between herself and her legislative assistant, Aldrich, it is unclear whether Herbold had at the time thoroughly read the complaint against the OIG or any reporting on it at all.

When the Emerald asked Herbold why she asked Bettesworth what she should tell the publication, when she is supposed to oversee the agency, she replied, "Anne [Bettesworth] dropped you from the reply that I intended her to send both you and I. I asked her why it was that she didn't include you in the reply. I then asked her opinion of my publicly sharing the news that Director Myerberg intended to amend the filings. I thought he might feel that this was his news to share (not mine), because it was a decision that he had made."

On Sept. 22, the same day she corresponded with Bettesworth, Herbold emailed Aldrich to ask about the Emerald's query to her: "What is a DCM? And upon what is she basing her believe [sic] that I have seen a 'completed DCM?'"

A DCM, as Aldrich replied, is a Director's Certification Memo — the very document at the heart of the story of the OPA case concerning the 2020 Labor Day protest, contained within the whistleblower's complaint against the OIG. It is worth noting that the complaint contains this abbreviation multiple times, as do all of the Emerald's stories on the matter.

As the Emerald detailed in the aforementioned story about the case concerning the 2020 Labor Day protest and associated DCM, an OPA investigation has a 180-day deadline, unless an extension is granted. A case, however, has no deadline — the OPA can keep a case "open" long after decisions have been made and the investigation deadline has passed. The OPA ultimately controls all of the information about its cases that is released to the public, including the Demonstration Complaint Dashboard, the online tracker that Bettesworth and Herbold reference in their correspondence. This means that the OPA defines the completion percentage of individual cases. When the OPA leaves a case marked "open," they avoid releasing substantial information about that case on the basis that it's still marked as "open."

The former investigations supervisor attempts to point out the difference between a closed investigation and a closed case in an Aug. 20 email to both Herbold and Lewis, soon after the three of them met to discuss the complaint and allegations therein, opening the email by thanking both Herbold and Lewis for meeting with them and saying that they "understand the reluctance to take what I'm saying at face value, especially in light of conflicting statements from OPA.

"But," the whistleblower continues, "I do remain perplexed and frustrated at the repeated assertion that the 2020OPA-0583 investigation [concerning the 2020 Labor Day protest] was not certified/finalized by the OPA Director in April of this year with the provided DCM [Director's Certification Memo].

"To further quash this assertion, attached is an April 2021 email from the OPA Director, requesting a 4-day extension to give SPD Chain of Command time to review the case and the sustained finding," the former investigations supervisor writes, noting an email that can be found in the Emerald's story about the case concerning the 2020 Labor Day protest. "This is proof the investigation and corresponding DCM was routed to SPD in April 2021.

"Additionally, attached is an April 2021 email from the OPA Director to SPMA [Seattle Police Management Association]. In this email, A. [Andrew] Myerberg requests the 180-day be extended until 4/12 to align with the SPOG 180-day," the whistleblower continues, referencing another email that can be found in the story linked above. "He explains this will not prejudice [the officer in question] as the portion of the case involving his actions was already drafted and all the findings against him are Not Sustained. This individual is Named Employee #1, the Captain at the heart of the allegation concerning the dispersal order, the targeted arrest, and the molotov cocktails. It remains [t]roubling that the decision regarding the allegation disposition of NE #1 was based upon this inaccurate information.

"The above provides evidence the investigation was closed in April 2021, the DCM was drafted and finalized, and the case was routed through SPD chain of command. If A. Myerberg has decided to draft a second DCM, in light of recent attention, that is inconsequential, as the 180-day expired months ago and the damage has been done."

The Emerald explained in detail why drafting a second DCM would not accomplish anything — except perhaps to change the case's single Sustained finding to Unsustained — in its story about the DCM in question, linked above.

But Herbold, in a response to the Emerald about this case, appears to reject what the former investigations supervisor has tried to explain multiple times — in the original complaint, at the meeting among the three of them, and then again in the Aug. 20 email. Nevertheless, it is not clear whether Herbold understood the distinction between a closed case and closed investigation. In its correspondence with Herbold, the Emerald also tried to clarify this for the councilmember. Herbold's full response to the Emerald can be found in the story about 2020OPA-0583.

When the Emerald asked Herbold if she felt it was her job to understand the different working parts of the City's police accountability system, Herbold replied, "Yes," in her Dec. 3 email.

In a tense email to Herbold — on which are copied Lewis and Sawant — on Sept. 28, following the publication of the Emerald's story about 2020OPA-0583, the former investigations supervisor tries one last time to explain this:

"I see you remain convinced my conclusions/concerns are inaccurate. I adamantly disagree but acknowledge any further effort to convince you otherwise would be in vain," the whistleblower writes. "My concern has always been for the citizens assaulted and arrested by SPD that day, most likely without requisite probable cause. I have no concern for the smoke and mirrors of an 'amended' DCM, which has no effect on the allegations against the SPD commanders who ordered the attack on the crowd. Myerberg long ago issued not sustained findings for these serious and troubling allegations and gave SPMA assurance these findings cannot and will not be changed.

"I see that my email communication with you has been sent to OPA and discussed with the press," the former investigations supervisor continues. "I respectfully request that you do not share my emails with OPA and/or the press."

The whistleblower used their personal email to file the original complaint and to communicate with Herbold. It is unclear why Herbold shared the whistleblower's email with the OPA, given that the agency is named as an at-fault party in the complaint.

The whistleblower closes with a note for Herbold: "NOTE: There is a difference between a case being closed and an investigation being closed."

The Emerald has put in repeated requests for comment with the SCC regarding the whistleblower complaint, but no other councilmembers have responded.

Featured Image: Seattle City Councilmember Lisa Herbold speaks at a Council meeting in Aug. 2020. Screenshot from the Seattle Channel video of the meeting on YouTube.