by Carolyn Bick
The Emerald's Watchdragon reporting seeks to increase accountability within our city's institutions through in-depth investigative journalism.
In February of last year, lawyer Sarah Lippek lodged a complaint against former Office of Police Accountability (OPA) Dir. Andrew Myerberg with the Office of Inspector General (OIG). The complaint regarded Myerberg publicly releasing a client's medical information in a Case Closed Summary (CCS). Lippek's client is the young woman whom an officer hit directly in the chest with a blast ball. The young woman subsequently went into cardiac arrest multiple times on her way to the hospital.
As of this writing, this person's medical information still remains in the public eye, despite that person not consenting to have it released or shared with anyone, including the Seattle Police Department (SPD) or the OPA. Thus, it appears that Myerberg and the Force Investigation Team (FIT) officers who — according to Myerberg — obtained and gave him the information may have violated a number of Washington State laws.
Readers may recall that this release of medical information was one of the main cited concerns in the whistleblower complaint filed against the OIG more than six months ago. As of this writing, no one at the City level has substantially addressed the complaint and its many allegations. This is now the third allegation from that complaint that appears to have legs.
In a back-and-forth with Myerberg in Feb. 2021, Lippek attempted to explain to Myerberg her concerns not only about the fact that officers apparently illegally obtained these medical records but also about his decision to publicly release some of this medical information without consent. She told him on Feb. 23, 2021, that he could consider her email a formal complaint to the OPA about officers improperly obtaining and distributing her client's medical information. She also told him that she would be contacting the OIG with a separate but related complaint about the OPA's decision to publicly release her client's medical information without consent.
Later that year, in July 2021, Lippek launched a second complaint with the OIG against the OPA for allegedly failing to investigate the complaint she had specifically filed with Myerberg on Feb. 23, 2021, as it had not only allegedly failed to provide her with any updates but had allegedly not responded to her at all about the matter. Lippek told the Emerald that it appeared that no one at the OPA was investigating the matter of FIT officers obtaining and distributing her client's medical information.
But despite the OIG sitting with Lippek's first complaint to that agency, 2021OIG-002, for almost six months and corresponding with her about it during that time, it abruptly chose to recuse itself from the matter in June 2021. It also has not provided Lippek with any updates regarding the second complaint she filed in July 2021 — not even a case number — despite Inspector General Lisa Judge telling Lippek in writing that she would "look into it."
For Lippek, there has been no resolution or clarity on any front in these three different, but related, complaints (two to OIG about the OPA and one to the OPA about FIT officers). These complaints all intersect in one large, twisting labyrinth that leads from the OPA to the OIG to the Seattle Department of Human Resources (SDHR) office to the Seattle City Attorney's Office (SCAO) to an outside investigatory agency. The path — replete with unclear, incomplete, and sometimes conflicting information — is one along which even the complainant can't get a straight answer.
Two things, however, are clear.
The first is that Lippek has made three different, but related, complaints:
This is backed up by numerous emails and communications with both the OPA and the OIG.
While it appears that Lippek's initial complaint to the OIG (#2 above) is now in the hands of the SCAO, it is unclear where her second one (#3 above) stands — or whether it was even assigned a case number, despite being a formal complaint that received written acknowledgement from the inspector general herself.
It is unclear where Lippek's OPA complaint (#1 above) stands or whether it was even investigated at all (which, again, is the basis for complaint #3 above).
The second thing that appears clear is that the City is, in some capacity, investigating Myerberg.
The Emerald reached out multiple times to new Mayor Bruce Harrell's office to ask whether he knew about this investigation when he made the decision to appoint the former OPA director to the new post of director of Public Safety, a position Myerberg assumed in late January 2022. Harrell's office did not respond.
Readers should note that there are other issues at play that are contained within the correspondences the Emerald will be referencing and quoting from throughout this article. However, for the sake of brevity and focus, the Emerald will only be focusing here on Lippek's two complaints to the OIG, briefly detailed above, and her complaint to the OPA. It will return to other issues in future articles.
Editor's note: The Emerald seeks to bring transparency and clarity to complex, often confusing police and government accountability systems and processes in Seattle and King County. To that end, we've launched a diagramming project to help readers navigate these stories. We'll diagram future — and past — stories as time and resources allow.
On Feb. 23, 2021, Lippek wrote an email to Myerberg detailing her concerns regarding her client's allegedly improperly obtained and distributed medical information. Her email contained five concerns, which the Emerald has reprinted below as they appear in the email, with formatting intact. The Emerald has redacted the name of Lippek's client. (Readers should note that there are five concerns, but the list labels two different concerns as number two.) Lippek's concerns were listed as follows:
1. Improper procurement of medical records without a release. Your letter cites medical records "obtained by FIT." [My client] never signed any release of medical records to FIT or OPA. This is a violation of [my client's] privacy and will be reported to the [hospital] patient privacy compliance team for investigation. It is also highly unethical, and potentially illegal, for SPD to even make the attempt to obtain medical records without a release. Unless there was a valid warrant, this was not legal.
RCW 70.02.330 Obtaining confidential records under false pretenses—Penalty. "Any person who requests or obtains confidential information and records related to mental health services pursuant to this chapter under false pretenses is guilty of a gross misdemeanor."
2. Improper disclosure of protected confidential medical information
Your letter discloses to the public sensitive medical information purportedly gleaned from the illegally obtained records. Laws protecting patient privacy cover non-health care providers.
RCW 70.02.005 Findings.(1) Health care information is personal and sensitive information that if improperly used or released may do significant harm to a patient's interests in privacy, health care, or other interests.
(4) Persons other than health care providers obtain, use, and disclose health record information in many different contexts and for many different purposes. It is the public policy of this state that a patient's interest in the proper use and disclosure of the patient's health care information survives even when the information is held by persons other than health care providers.
2. Redacted records. Your letter implies that there was some nefarious reason for redacting [my client's] records. Apparently, the records that were improperly obtained were different than those I have. In the record I have reviewed, there is no 'diagnosis' that would indicate [my client's] cardiac arrest was from 'acute intoxication'. I redacted some things when I provided them, like a pregnancy screen, and a tox screen, because they were clearly not relevant to the medical diagnosis — let alone the behavior of the officer who hit [my client] in the chest.
3. Diagnostic notes. The records in my possession note "High probability of imminent or life-threatening deterioration due to trauma, hypoxia, altered mental status." "Patient altered and intermittently responsive arrived after apparent blunt trauma from a percussive device (flashbang)." There is zero mention of alcohol intoxication as a precursor or contributing factor.
4. OPA unqualified to make medical determinations. I am concerned that your determination is based in part on medical records that were not only improperly obtained, but that you are not qualified to review. Unless OPA used the services of a medical professional to interpret the records, your statements on the fatality risks of a particular ethanol concentration in the blood are speculative and irrelevant.
(Quoted material ends here.)
"Please consider this a formal complaint about SPD improperly obtaining medical records without seeking a release of that information by the patient, and a further complaint about the improper disclosure of protected health information," Lippek said in closing. "It is my understanding that this was also done in the case of [another protester], who similarly signed no release and yet had sensitive medical information published on the SPD blotter."
The Emerald wrote about SPD's misuse of private medical information in the case of another protester on Nov. 5 and Nov. 9, 2020, and followed up on the matter in August 2021. This case concerned a person who fell into a coma, following what appeared to be a forceful arrest. SPD officers denied that the use of force during the arrest was the cause of the person falling unconscious, and claimed that it was because the person had allegedly ingested a narcotic, prior to arrest. As the Emerald previously wrote, this person's lawyers maintain that this claim is untrue.
Shortly after the release of this article, the Emerald learned that, in this case — 2020OPA-0695, the Case Closed Summary for which was created in January 2022, though the OPA's Demonstration Complaint Dashboard has not been reflected to update when it was publicly issued — the OPA chose not to sustain the allegation of inappropriately releasing medical information. The OPA revealed in the CCS that Interim SPD Chief Adrian Diaz himself authorized its release to the public and said that because of this, as well as the fact that the information was not "detailed," with regard to "medical information, diagnosis or prognosis," the release was allowed under SPD policy.
While the OPA stated in this case that "[t]hepresence of the drug does not mean it was the cause of the medical episode during the arrest," it also said that Diaz was justified in releasing this information, "given the media attention the incident had received and given that the ingestion of the narcotic could be relevant to theSubject's loss of consciousness, which SPD denied causing through force."
Myerberg wrote back to Lippek on Feb. 24, 2021.
"From looking at the FIT file, it appears that they obtained [your client's] medical records under RCW 70.02.200, which does not require a release from the patient," Myerberg said of the explosive-device-to-the-chest case.
RCW 70.02.200 covers "permitted and mandatory disclosures" of medical information to health care providers, law enforcement officials, and other agencies under specific circumstances, none of which appear to apply here and none of which seem to grant blanket permission to release said information to the public.
"With regard to OPA's disclosures, we included the information that pertained to the cause, nature, and extent of injuries suffered by [your client], which are relevant to this case for a number of reasons. OPA regularly assesses this information when evaluating force cases. It provides insights into the method and type of force that was used, as well as contributes to our determination on whether the force was reasonable, necessary, and proportional," Myerberg continued. "Moreover, it is relevant to assessing the severity of a case and what level of discipline to be imposed. Lastly, given the numerous interviews provided by [your client] and media statements made by her representatives, whether the blast ball deployment caused [your client] to go into cardiac arrest and her medical injuries generally were placed in the public domain and are matters of public concern."
Lippek told the Emerald in an interview on Feb. 15, 2022, that her client's level of intoxication at the time of the incident is irrelevant to whether the officer's conduct was appropriate: "You can do an inquiry into just [the officer's] conduct. You don't have to … do an amateur pseudo-medical analysis of whether the fact that the person had cardiac arrest was or was not attributable to the flash bang." The OPA can determine whether the use of force was within policy without any medical records at all, Lippek told the Emerald.
If there is a chance the flash bang caused someone life-threatening injuries, Lippek continued, then "why isn't it being investigated as a Type III use of force?"
Lippek told the Emerald that if a doctor's opinion is needed, then a doctor's opinion should be sought. The OPA director is not qualified as a physician, and it is not his role to examine a patient and determine how that person got hurt. That role belongs to a doctor, Lippek said.
Lippek has reviewed her client's medical file pertaining to the incident, and in several places in the file, she said that the doctors wrote that this person's cardiac arrest resulted from "a flash bang grenade."
Ultimately, though, Lippek said, "[w]hether [the officers] broke the law isn't dependent on whether she had a heart attack because of it. The problem is, regardless, they are not supposed to shoot people in the chest. And they are not supposed to watch someone fall, not render aid, and then teargas the medical people who were trying to revive her."
Officers also allegedly threw explosive devices into the medical tent where street medics were attempting to stabilize and care for Lippek's client.
As for the RCW under which officers supposedly obtained Lippek's client's medical records, Lippek later told the Emerald in a March 3 email that "Myerberg cited an entire section, without naming a specific exemption for police to get medical records against the patient's wishes. The only section that could be stretched to apply refers to law enforcement investigations of intentional firearms injuries.
"That exemption is for criminal investigations, not administrative reviews. Which leads to another problem — neither OPA nor FIT conducts criminal investigations of police officers. If OPA discovers a potential criminal act by an officer, they should hand the case to the prosecutor's office for criminal charges," Lippek said. "There is no indication that the officer who shot my client in the chest with a flashbang grenade was ever investigated criminally."
Myerberg's Feb. 24, 2021 email continued: "In the medical records that you provided, you redacted any reference to [your client's] potential intoxication and alcohol level.
"I obviously don't know why you did so, but, in OPA's opinion, this information was relevant to the case, the extent of her injuries, and her ability to accurately recount what occurred," Myerberg wrote. "For example, on page 8 of the redacted records, under Assessment and Plan, it states: '#Acute Hypoxic Respiratory Failure: multiple reported episodes of apnea and hypoxia on presentation to ED, requiring intubation. Unclear etiology…' You redacted the next sentence, which was 'possibly secondary to acute alcohol intoxication.' Further on in that paragraph, you also redacted the ethanol level. Looking at the records you provided, it would be impossible to know that there was another potential cause for [your client's] injuries apart from the blast ball deployment, which is again relevant to this case," Myerberg said.
Lippek told the Emerald that those redactions were done by a paralegal at the firm with which she worked at the time she emailed Myerberg, and that they were standard practice.
"And it's just the standard redactions that you do when you are giving out medical information — things related to sexual and reproductive health, things related to drug and alcohol use, things related to HIV/AIDS," Lippek said. "Just things that aren't related to the injury at hand."
She later explained to the Emerald in her March 3 email that "[a]nyone who signs a medical release has the option to withhold these extra-sensitive parts of their medical record. This is because of the known stigma and discrimination that can result from disclosing this kind of information."
"The information we included concerning the significance of the 308 ethanol level and that a level of 400 can be fatal came from the Mayo Clinic," Myerberg continued.
With regard to his decision to incorporate online health information into the CCS, Lippek said that "it's not [Myerberg's] job to diagnose someone's injuries. He's not qualified for that. … You can't make a legal determination based on a WebMD search or looking at the Mayo Clinic website for what's a high alcohol level."
The Emerald would like to note that despite being a trained lawyer who at the time headed up a legal investigations body whose purpose is to investigate and make disciplinary recommendations for officers based on legal fact-finding, in June, 2021, Myerberg determined that he could not make a legal judgment regarding whether officers violated voting laws, an act that would have constituted a Class C felony.
But despite not being a trained doctor, presumably after reviewing the Mayo Clinic's web page on the matter of alcohol intoxication and its effects on the body, Myerberg did, in Dec. 2020, feel qualified to make a medical call, specifically writing in the CCS that the blast ball Lippek's client took directly to the chest may not have caused her to go into cardiac arrest, thus appearing to contradict doctors' notes in the patient's file and effectively exonerating the officer who threw said blast ball.
"As you indicated below, any complaint against OPA needs to go through the OIG. Given the language of RCW 70.02.200, it does not appear that SPD violated policy in [your client's] case by obtaining her medical records," Myerberg's email continued. "However, this could be a systemic issue evaluated by the OIG if that is what you would like and if you believe that FIT is improperly relying on this section of the RCW.
"With regard to your complaint concerning the release of medical information on the blotter concerning [another protester] we will initiate an investigation," Myerberg wrote, before closing with a "Thank you" and his name.
Lippek wrote back to Myerberg on Feb. 24, 2021.
"Another point. In the records, it is clear that the 'possibly secondary to alcohol intoxication' refers to the hypoxia, not the cardiac arrest, which is elsewhere in the record attributed to chest trauma," Lippek wrote. "I did not attempt to hide this because it was relevant but because it was not relevant. The allegation is that a blastball [sic] to the chest caused cardiac arrest.
"Alcohol intoxication does not cause cardiac arrest," Lippek continued. "Alcohol intoxication does not explain away the cardiac arrest caused to this 26-year-old woman by an explosive munition blast to the chest. I am disappointed in your apparent prioritization of exonerating an officer rather than taking a balanced view of the facts."
Myerberg responded with a short message that appeared to disregard what Lippek was trying to explain:
"You're certainly entitled to your opinion on the relevance of the information and of what you redacted," Myerberg began. "I ultimately disagree.
"I also disagree with your characterization of OPA's investigation and the findings. We did not exonerate the officer and deemed the deployment out of policy; however, as you indicate, the facts are important and needed to be objectively and fully discussed," Myerberg continued. "This includes whether the blast ball deployment itself caused cardiac arrest. I think we did this here without bias.
He closed with, "I recommend addressing any further concerns directly with the OIG as I don't think additional discussions between us on this matter will be fruitful."
It was this exchange that Lippek forwarded to the OIG, a matter to which the Emerald will return later in this article.
As mentioned earlier, Lippek made the complaint about Myerberg releasing her client's information to the OIG's office in February 2021. But despite the OIG sitting with that complaint for nearly half a year, the office appears to have abruptly changed course in its decisions and discussions about the complaint around June 2021.
OIG staffer Lynn Erickson, whom Lippek said had been regularly corresponding with her about her initial complaint, told Lippek in an email on June 25, 2021, that there had been "a change in the status of your complaint.
"Namely, our office determined there was potential for a conflict of interest with Lisa Judge being the deciding official on the investigation," Erickson wrote. "We therefore consulted with Seattle Department of Human Resources, who agreed to finish out the investigation. Your point of contact moving forward will therefore be Steve Zwerin."
Lippek wrote back, asking about the alleged conflict of interest — was it because she was a former OIG employee? She told the Emerald that she would have been surprised if this were the case, because it had not stopped the OIG from taking on her complaints in the past. She voiced her confusion to Erickson in her reply: "In that case, wouldn't there have been a conflict in my other complaint as well?"
Erickson gave a murky answer: "[T]o answer your question below, not necessarily.
"I recall we had some communication on the prior concern you brought forward being of more a systemic nature, which OIG was able to respond to through communication with OPA and the DOJ," Erickson wrote. "The distinction being that this current matter involves allegations of misconduct naming the OPA Director, and is therefore a formal investigation. It was the consensus that the potential for a conflict of interest (or appearance thereof) for our office comes more from how that process plays out. Given that you used to work here, I know you have some familiarity with this, and so I hope that makes sense."
Despite this unclear response, Lippek said, "Sure, just curious. That makes sense." She then emailed Zwerin with a question of conflict of interest, too: Zwerin had been the one to investigate Lippek during her time working with the City.
In her July 15, 2021, email to Zwerin, Lippek summarized their history. Following Myerberg bringing certain allegations about her to the fore, Zwerin investigated Lippek without ever notifying Lippek of this investigation or contacting her for a single interview. She later reached a settlement with the City. (This is a matter Lippek said that she cannot currently discuss with the Emerald, due to the nature of her settlement with the City.)
"I am concerned that your history of involvement with both Mr. Myerberg and myself might also create a conflict," Lippek said.
After a short period of silence, Zwerin responded, telling Lippek that the matter was only recently reassigned to him.
"Mr. Myerberg is in the process of providing information that OIG had requested of him before reassigning the matter to me. His deadline is at the end of July," Zwerin wrote. "Once I have that, I will review it and assess what follow up is needed. It may include contacting you for more details, or a response to some of Myerberg's assertions, etc. I'll know more once I've received and reviewed his information."
"I do not think there is a conflict with this matter. It is common in the investigations arena to intersect with the same parties or witnesses. As an investigator, I compartmentalize cases from one another. An outcome in one case has zero effect on another. Each case is a new, different, and independent matter," Zwerin said, before closing with an invitation for Lippek to reach out to him with further questions.
In late February 2022, Zwerin announced that he would be taking a position with Alaska Airlines. The Emerald could not get in contact with him for this story.
But at some point down the line, the investigation — or, at least, some aspect of it — appears to have been handed over to the SCAO.
The City appears to have then hired an outside firm, Seyfarth Shaw, to conduct a similar investigation. Based on ensuing emails that the Emerald will detail, it appears that Seyfarth Shaw was hired by either the SCAO or the OIG. It is unclear when, exactly, that happened or why, but Lippek received a message from Seyfarth Shaw investigator Lauren Parris Watts on Oct. 14, 2021, with a request to interview Lippek's client about what Parris Watts termed "her concerns" (though, again, Lippek is the person who filed the original complaint, and did not do so on behalf of her client).
Seyfarth Shaw is a massive, multi-office international firm, rumored since at least the late 1980s to be notorious for union-busting. According to this article, Seyfarth Shaw was the nation's fifth largest firm that specialized in "union avoidance activities" in 2019.
Lippek followed up with Parris Watts in October 2021 to ask several specific questions. Lippek then received an email from Anne Vold, the director of the SCAO's employment section, on Oct. 25, 2021, explaining that Parris Watts had forwarded some of Lippek's questions to her.
But instead of clarifying anything for Lippek, Vold's responses only muddied the waters further. In addition to denying that the OIG had conflicted itself out of the investigation, Vold also appeared to be under the impression that Lippek filed the complaint against Myerberg on behalf of her client. This is untrue. Lippek filed the claim alone, not at the behest or on behalf of her client.
It is unclear whether Vold is still under this impression, as neither she nor the SCAO will return any of the Emerald's many phone calls.
In any case, Vold's email from Oct. 25, 2021, stated that the SCAO stepped in after Lippek "raised a conflict issue with the investigator, Steve Zwerin. The City then retained Ms. Parris Watts to investigate your complaint."
Readers may recall that Zwerin claimed there was no conflict of interest in this case. However, it appears that in the several months between July and October 2021, either he or someone else decided otherwise. Regardless, Lippek said, they did not inform her of this decision.
Lippek also asked whether the report the investigation produced would be made public.
"Once the report is finalized, it will be available to [your client] for review," Vold replied.
Again, this is despite the fact that Lippek is the person who lodged the complaint. She did not do it on behalf of her client.
"The City does not generally release investigation reports to the public," Vold continued. "However, if someone makes a public disclosure request, the City will comply with the provisions of the Public Records Act, RCW 42.56."
Lippek also asked about the possible outcome of the investigation, as well as whether the SCAO investigation replaced "current ongoing processes," meaning the OIG's responsibility to investigate complaints against the OPA.
Vold responded that the City could not "determine what outcomes are possible" until the investigation was complete and that Lippek would need to be more specific about what she meant by "current ongoing processes."
Lippek replied to both Vold and Parris Watts in a subsequent email. In this email, also sent in October, she said that she was still "unclear about some basic information that will help my client and I understand and evaluate the request for an interview, and/or to prepare for next steps. I am also trying to discern if any communication between you and [my client] is proper at all, given her status as a plaintiff."
Lippek clarified for the Emerald that Parris Watts had asked to speak with her client, but did not tell Lippek why.
"[My client] has made several reports of police violence and misconduct to the OPA, and [several] were escalated to the OIG. [My client] is also a plaintiff in active civil litigation against the City," Lippek wrote. "Throughout, I have been (and I remain) her attorney. Karen Koehler of Stritmatter Kessler Koehler Moore is also [my client's] attorney — we are co-counseling, so please include her (or a designee from her firm) on all correspondence regarding [my client]."
Lippek asked Parris Watts to clarify her role and the purpose of the investigation, before any further talk of interviewing Lippek's client. She also asked what "OPA case numbers, and/or other investigative processes, have been assigned to you, Ms. Parris-Watts [sic], or others in your firm, for investigation?
"Ms. Vold referred me back to you, Ms. Parris-Watts, for the answer to this question — I await your response," Lippek continued. "I am familiar with the operations and functions of the Office of Inspector General, and I would like to know what type of investigation or audit you are conducting on their behalf."
Lippek then listed a number of questions:
Lippek closed with, "Thank you for clarifying — I am eager to learn more about your work and your function vis-a-vis the City of Seattle and the police accountability process."
On Nov. 11, 2021, Parris Watts said that she had "been engaged to conduct an impartial fact-finding investigation as to the above allegations and to determine whether any of the OPA or SPD policies have been violated." She did not detail further what this meant.
Parris Watts also replied to a few of Lippek's questions, listed above. However, it appears that Parris Watts was also operating under the incorrect premise that Lippek's client, not Lippek, was the complainant in this particular case.
"I am investigating the following allegations by [your client]," Parris Watts wrote, and bulleted the following issues (included below as found in the email):
In response to whether her investigation regarded Lippek's complaints — which would have included the complaints regarding her client's medical information — Parris Watts wrote, "No, my investigation relates solely to [your client's] complaints."
Parris Watts deemed questions four, five, six, and seven as "outside the scope of my role as an investigator" and directed Lippek to Vold for those responses.
Despite Lippek receiving an email in June 2021 from the OIG specifically stating that the office had conflicted itself out of the investigation, Vold claimed that "OIG has not recused itself from this investigation.
"Ms. Watts has been hired as an independent investigator to conduct an impartial investigation on behalf of OIG," Vold said.
As for Lippek's question regarding on what basis Zwerin was conflicted out of the investigation, Vold replied that "[t]he City has not recused itself from this investigation.
"OIG's role is to review OPA's misconduct complaint-handling, investigations and other OPA activities. OIG asked the City's Human Resources Investigations Unit (HRIU) to conduct the investigation on its behalf," Vold said. "However, in an email communication to Steve Zwerin, you indicated there was an appearance of conflict for him to be involved in this investigation. [See attached]. As Mr. Zwerin is the Director of the HRIU, Ms. Watts was then retained as an independent investigator on behalf of OIG."
Vold's description of OIG's role is inaccurate. According to the City's OIG "about" page, in addition to auditing the OPA and SPD and providing policy input, OIG's function includes "Reviewing OPA complaint handling and conducting investigations of allegations against OPA staff." OIG is an investigatory body and has the capacity to conduct investigations into the OPA on its own — unless, of course, it conflicts itself out of said investigation.
As the Emerald noted earlier, Vold also appears to have been under the impression that Lippek's client, not Lippek, lodged the complaint against the OPA, as she responds to Lippek's final question with, "To my knowledge, [your client's] allegations have not been directed to the County or another State-level agency. As indicated above, Ms. Watts was retained as an independent investigator on behalf of OIG and OIG's role is to review OPA's misconduct complaint-handling, investigations and other OPA activities."
On Jan. 15, 2022, Lippek again wrote to Vold in an attempt not only to seek clarity regarding the investigation but also to correct the mistaken idea that her client had been the one to lodge the complaint or that Lippek had lodged the complaint at the behest of her client.
"Dear Ms. Vold," Lippek began, "It appears we are getting mixed messages. For one thing, the original complainant on this case was not my client, but me.
"I received an email from OIG [investigator] Lynn Erickson on Jun 25, 2021, stating that 'Our office [OIG] determined there was a potential for a conflict of interest with [Inspector General] Lisa Judge being the deciding official on the investigation [into 2021OIG-002],' and stating that the Seattle Department of Human Resources would 'finish out the investigation.'
"In a follow up email later that day," Lippek continued, "Ms Erickson elaborated: 'It was the consensus that the potential for conflict of interest (or appearance thereof) for our office comes more from how that process [a formal investigation] plays out.'
"Could you help me harmonize that information from the Office of Inspector General with what you've told me about the hiring of Seyfarth to perform an investigation?" Lippek asked.
She then continued: "You told me that the OIG has not recused itself — the OIG told me months ago that they were stepping back from the case due to a 'consensus' in the office that a potential or apparent 'conflict of interest' arose from this particular complaint. What is the difference between recusal and handing off a case due to a potential conflict? What is the general standard or rule for a case receiving outside investigation?"
Furthermore, Lippek pointed out, "[m]y concern is that the Office of Inspector General is meant to be the oversight body investigating misconduct allegations, should they arise, against OPA personnel.
"OIG has investigators on staff who are presumably trained and paid to conduct such investigations. If the public agency designed and funded to conduct investigations is unable/unwilling to perform those investigations, that is something that the public — including complainants — has the right to know," Lippek wrote.
Lippek then requested clear answers to the questions that remained unaddressed. The Emerald will list them as they appeared in the email.
(Readers should note that in this email, Lippek also references the second complaint she launched against the OPA in July 2021, which is briefly detailed at the beginning of this story. As a refresher, the original OPA complaint — included in Lippek's Feb. 23, 2021, email to Myerberg — alleges that FIT officers wrongly obtained and distributed Lippek's client's medical information. Lippek's July 2021 complaint alleges that the OPA not only failed to provide her with basic information but failed to investigate the complaint altogether. The Emerald will detail this second complaint later in this article. Thus, these are two related complaints that Lippek launched through separate agencies: the complaint against the FIT officers themselves to the OPA and the complaint against the OPA to the OIG.)
Lippek's questions were as follows:
"What date is the 180-day deadline for potential disciplinary action for involved officers?
"Clarification: The complaint Seyfarth is investigating, which I made, includes the necessity to investigate the actual source of the medical information that was obtained against [my client's] consent. Who got [my client's] records when she explicitly declined to consent to their release? Under what authority, if any? Who gave them to Mr. Myerberg?
"Mr. Myerberg appears responsible for publishing private medical information, and procuring that information when his office had not received patient consent. However, it is likely that other SPD officers, potentially other OPA-assigned SPD officers or FIT officers, actually got the record from the hospital in the first place. So this investigation necessarily goes beyond an inquiry into Mr. Myerberg's own behavior, and implicates the behavior of other officers.
"That is the basis for my question: What is the deadline for completion of this investigation in order to stay within the 180-day timeline within which discipline could be enacted if misconduct were found?
"Does the scope of the Seyfarth investigation include both my complaint about Mr. Myerberg and my complaint (delivered simultaneously, in the same email) about SPD/FIT officers wrongfully obtaining medical records and transmitting them to Mr. Myerberg, and Mr. Myerberg's subsequent refusal to investigate those officers?"
On Jan. 18, 2022, Vold replied to Lippek inline in bold red lettering. For the most part, Vold directed Lippek to Parris Watts — who had directed Lippek to Vold. Moreover, Vold's replies were not answers, and only created more confusion for Lippek.
In one of her short replies in which she did not direct Lippek to speak with Parris Watts, Vold stuck to the claim that the OIG had not recused itself by way of directing Lippek to her prior response in October.
Vold also claimed that "Because a finding of misconduct has not been made, it's not possible to determine whether a 180-day deadline would apply or when it would commence."
This is incorrect.
As Lippek pointed out in her email back to Vold on the same day, "The 180-day deadline does not begin with a finding of misconduct. It is the timeframe WITHIN which an investigation must occur if a disciplinary action is to arise from any finding.
"You can find it described here," Lippek said, and pointed Vold to the OPA's guiding documents section. "Not only is it 'possible' to determine when such a timeframe would commence, it is required. The OPA must make exactly such a calculation at the outset of an investigation, and the OIG must consider the 'timeliness' of each OPA investigation when it certifies that investigation.
"I am asking for general, procedural information that should apply to every investigation undertaken by OPA/OIG. I asked only when OPA and OIG investigations are deemed to have been commenced, and therefore when the 180-day deadline expires (if it has not yet expired.)" Lippek continued. "Are you, or Ms. Parris-Watts, able to tell me what date the OPA and OIG investigations are deemed to have begun?"
After another period of silence, Lippek followed up again with Vold. In this email, sent Feb. 8, 2022, Lippek said that the "180-day timeline attaches whether or not there is a finding of misconduct.
"That's the entire reason OPA investigations are conducted and completed within 180 days — as I believe you are aware, the timeline is enshrined in the SPOG CBA. If the deadline is not followed, then any discipline arising from the investigation could be reversible in arbitration. Or, more likely, it simply won't be applied at all — see this Seattle Times article for an example," Lippek continued, directing Vold to this article. "Officers who commit incontrovertible wrongdoing, including material dishonesty — which carries a presumption of termination — evade consequences when investigations take more than six months.
"This is the source of my concern," Lippek continued. "If you are overseeing this investigation, and you are not cognizant of the 180-day deadlines, then there is a very real possibility that no discipline will follow, even if serious misconduct is revealed."
She then asked Vold to "confirm that you understand the source and import of the 180-day deadline."
In her reply on the same day, Vold said, "Yes, I understand."
Lippek also asked Vold to "confirm whether the 180-day clock is ticking for any named officers, and when the clock started."
Vold said that Lippek's "complaint does not identify or name any specific officers," and referenced a copy of Lippek's second OIG complaint from July 2021 that she attached to the email. "If you have allegations regarding specific officers in relation to the attached complaint, please provide that information to the investigator."
This doesn't make any sense, Lippek told the Emerald, because she was never told which FIT officers provided the medical information to Myerberg. Myerberg only told her that FIT officers had given him her client's medical information. It would seem to be an investigator's role to find out who these officers are, most likely by asking Myerberg himself.
Lippek explained in her same-day reply to Vold: "In case it wasn't in the file provided to you by OIG, I have attached my second complaint to OIG, which was acknowledged received by Lisa Judge, on July 15, 2021. I'm asking whether both complaints are under investigation at this stage, or not.
"I have no way of knowing which officers to name," Lippek continued. "Mr. Myerberg is the person who claimed that he received the medical records from FIT officers. Determining who they may have been is the work of an investigation.
"OIG has had the first complaint for nearly a year, and the second for over six months, and it hasn't provided any updates, nor can anyone confirm that the linked matters are even being investigated — please understand why that creates concerns about the 180-day timeline," Lippek continued, before closing: "Your assistance is appreciated."
"I keep trying to narrow [my questions] down more and more," Lippek told the Emerald in her Feb. 15, 2022, interview. "Are you actually investigating to find out who the FIT officers are? The 180-day clock doesn't start when you find misconduct. It starts when you start the investigation and you know who the person is who you are investigating. … It starts before you find misconduct.
"Here is the thing: We are supposed to have this professional system, where the OIG knows the rules inside and out, because they are constantly referring to [the rules], they are the experts, they have been doing this for years," Lippek continued. "They know what the accountability ordinance looks like. They know what the procedure is for an investigation. That is their area of expertise — or, it's supposed to be.
"Instead, they've hired some people to do an investigation who don't know those things. They aren't these experts. They don't know the process. And Anne Vold doesn't know the process. … And, at this point, it's like, what is the point of an OIG?" Lippek asked.
As of this writing, Lippek has not heard back from Vold.
As detailed in the beginning of this article, in February 2021, Lippek had filed a complaint with the OPA (specifically, with former OPA Dir. Andrew Myerberg) against the FIT officers who obtained and distributed her client's medical information.
But after months of silence from both Myerberg and the OPA as a whole, with no updates whatsoever on her open OPA complaint, Lippek decided to send another complaint to the OIG. It alleged that the OPA had failed to provide her with basic case intake information and had failed to investigate the matter at all. Lippek filed the complaint directly with Inspector General Lisa Judge on July 15, 2021.
"Please consider this a complaint to OIG about OPA's failure to address or investigate a complaint made in February 2021. This is related to another OIG complaint I have already made that is currently under investigation. I lodged a complaint about OPA improperly obtaining and disseminating medical records," Lippek's email opened. This was in reference to her pre-existing complaint with the OIG against Myerberg — the same complaint from which Erickson had told Lippek the OIG had recused itself.
"Before that complaint, I had made a complaint to OPA about FIT or other officers improperly obtaining medical records," Lippek continued, referencing the complaint she had filed with the OPA in February of that year. "Despite clearly stating that I wished to make an OPA complaint, I was never provided a case number and never received notification of how my complaint was classified or handled.
"Even if the complaint was classified as a contact log, as the complainant I should have received some sort of notice," Lippek continued. "I am concerned that OPA director Myerberg failed to even begin investigating my complaint, and instead ignored it."
Lippek attached her original February 2021 OPA complaint to that message, in order to show Judge the OPA complaint she was talking about.
In response, Judge simply said that she would "look into it."
Since then, months have passed — and, as with Lippek's February 2021 OPA complaint, she has neither received a case number nor any updates regarding this newest complaint against the OPA.
In fact, though she has been attempting to get clarity for months, Lippek said that her main point of contact at the OIG — Deputy Inspector General Amy Tsai — has not provided clear answers or any real responses. Tsai has also been creating new email threads regarding the two complaints Lippek has lodged rather than responding to existing threads. It is unclear to Lippek why Tsai would be doing this, though the Emerald would like to remind readers that it has been alleged that Tsai and Judge have instructed OIG staff to take steps to make it more difficult for the media and the public to obtain certain materials via public disclosure requests.
It is also still unclear whether the OIG actually created a case for Lippek's July 2021 complaint. The OIG did not return request for comment on either this matter or anything else in this story.
Lippek has attempted to coalesce all of these emails into an ongoing thread with Tsai, regardless of whether Tsai responds to that thread. Lippek has sent the Emerald that specific, ongoing thread that she has been maintaining, and the Emerald will be drawing on said thread for this section. (Readers should note that these emails also contain other issues that the Emerald will return to in future articles, but for the sake of clarity and brevity, will not detail here.)
As noted, no one at the OIG responded to Lippek further regarding her newest complaint against the OPA. So, on Aug. 5, 2021, she followed up again, specifically including both Myerberg and the OPA as a whole on the email.
"I write because my requests for information about the below matter have been ignored. Please respond regarding the status of the OPA complaint I made in February and the OIG complaint I made in July," Lippek's email began.
(For the sake of clarity, the Emerald will here remind readers that the complaint Lippek made in July to the OIG concerns the OPA's alleged failure to provide her with any complaint intake information or investigate her February complaint, which concerned officers obtaining and distributing her client's medical information without consent.)
Lippek then proceeded to list issues on which she had not received any update. The Emerald has included them below verbatim:
1. Complaint to OPA re: FIT officers improperly obtaining/disseminating medical records.
In February, I submitted the following complaint to OPA Director Andrew Meyerberg. I explicitly stated that I was making a complaint about SPD misconduct. I never received a classification letter or case number. If the matter was classified, then the 180 day deadline has likely passed.
I wrote to Director Meyerberg again on July 15th, requesting an update on the status of the investigation, and at least a case number, thinking that I could check the complaint dashboard and/or request public records related to the complaint. I wrote to him because I was not aware of any other point of contact or investigator on this case. I did not receive any response. I still do not know whether my complaint was processed at all or simply ignored.
I am again asking OPA to respond and provide the case number for this complaint. If it has not been processed as a complaint of police misconduct yet, I ask that OPA begin the process, assign a case number, and expedite the classification decision.
2. Complaint to OIG re: OPA's apparent failure to investigate complaint re: FIT officers
Also on July 15th, I wrote to Ms. Judge to request that OIG look into OPA's apparent failure to do anything about my complaint. Ms. Judge replied that her office would 'be in touch' with me. I have not heard anything from OIG or anyone else about the status of this complaint. It has been three weeks.
A related complaint, about OPA misconduct in the same matter, was made to the OIG in February. I was told on June 25th, four months after lodging the complaint, that Ms. Judge had recused her office from the matter and transferred it to HR for further investigation. However, the recusal in that other complaint occurred on June 25th, before Ms. Judge received this complaint and before she told me her office would be responding to it.
Please provide the OIG case number or classification decision regarding this matter, and an update as to the status of any investigation. If OIG is recusing itself from investigating this additional complaint, please provide notice of that recusal, and confirm that the investigation will be handled in some other fashion. Please include contact information for the person in charge of the investigation, and the case number assigned to the investigation.
3. Content of original complaint to OPA.
The following is the portions of my complaint involving FIT officers, which should have been handled as a complaint by OPA:
"1. Improper procurement of medical records without a release. Your letter cites medical records "obtained by FIT." [My client] never signed any release of medical records to FIT or OPA. This is a violation of [my client's] privacy and will be reported to the [hospital] patient privacy compliance team for investigation. It is also highly unethical, and potentially illegal, for SPD to even make the attempt to obtain medical records without a release. Unless there was a valid warrant, this was not legal.
RCW 70.02.330 Obtaining confidential records under false pretenses—Penalty. "Any person who requests or obtains confidential information and records related to mental health services pursuant to this chapter under false pretenses is guilty of a gross misdemeanor."
"Please consider this a formal complaint about SPD improperly obtaining medical records without seeking a release of that information by the patient, and a further complaint about the improper disclosure of protected health information. It is my understanding that this was also done in the case of [another client], who similarly signed no release and yet had sensitive medical information published on the SPD blotter."
Seven days later, Lippek received a reply — not from Tsai, but from Erickson.
"I am reaching out to you regarding your follow up email below. … I would like to speak with you to gather some additional information on the concerns you brought forward," Erickson wrote, and proceeded to ask Lippek whether she would be available to speak with her after 10 a.m. the following day.
"I am copying Amy and Lisa on this email so they know I have reached out to you," Erickson noted. "For scheduling purposes, feel free to email me directly. I apologize for the delay, and I look forward to speaking with you."
Lippek was unable to speak with Erickson on the proposed date. Shortly after this, Lippek moved to a different firm. She explained as much in a Jan. 5, 2022, email back to Erickson and asked if Erickson would send her any correspondence that she may have missed.
"I was also asking about a matter that was not investigated by OPA — my specific complaint about FIT officers wrongfully obtaining, and sharing, private medical information," Lippek said. "I understand that my complaint about Mr. Myerberg's release of that same private information is now the subject of an outside investigation — what I do not understand is whether that investigation also covers the un-investigated complaint about FIT officers.
"As the OIG referred the matter [Lippek's first complaint to the OIG] following recusal, and some amount of information-gathering was done by OIG before that referral, I would just like clarity about whether the investigation into allegations against FIT [Lippek's second complaint to the OIG] was subsumed into that case number, or whether it is being treated as separate with a different OIG case number," Lippek asked, attempting again to clarify what was happening with the two complaints she had submitted. "I am not asking for information about an active investigation, simply whether there is a case open into the FIT officers and/or OPA's refusal to handle that complaint.
"I would be happy to get an update via email — thanks so much for your work," Lippek signed off.
On Jan. 13, 2022, Tsai, not Erickson, wrote back to Lippek. She said she believed that one of Lippek's questions was "whether there was a case about FIT officers obtaining medical information" and said that, on that question, "OPA does have a case open."
This is not what Lippek asked. She specifically asked whether the OIG was also going to recuse itself from her second complaint about the OPA's alleged failure to investigate her complaint to the agency. If the OIG was not going to recuse itself from that particular complaint, Lippek requested that a case number and update be provided.
Lippek wrote back to Tsai the following day.
"I think my second question was misunderstood. I did not ask if OPA had a case open. I asked if OIG has a case open," Lippek wrote. "On July 15th, 2021, I made a complaint to OIG about OPA's failure to investigate FIT officers wrongly obtaining medical records. Ms. Judge responded in writing that your office would 'look into it.'
"On August 5, 2021, I asked the following of you and Ms. Judge: 'Please provide the OIG case number or classification decision regarding this matter, and an update as to the status of any investigation,'" Lippek continued. "'If OIG is recusing itself from investigating this additional complaint, please provide notice of that recusal, and confirm that the investigation will be handled in some other fashion. Please include contact information for the person in charge of the investigation, and the case number assigned to the investigation.'
"To date, I have not received a response. Ms. Erickson asked for a phone call on a day I was unavailable, and I have not gotten any information at all on this matter. It has been six months," Lippek noted of her July 2021 complaint. "I am requesting, again, the classification decision; OIG case number; and/or any notice of recusal with contact information for the alternate investigator."
More than 10 days later, on Jan. 25, Tsai responded with the following short message: "Thank you for your follow-up and opportunity to clarify. I believe that I answered your question about the FIT officers below, since OPA has an open case. If you have any further inquiry about that incident that intersects with your client's litigation against the City, please feel free to send questions to our litigation counsel who is CCed here. We'll also still be getting back to you about your question regarding the other case."
As readers will note, Tsai did not answer any of Lippek's questions and appears to have ignored her second attempt to clarify what she was asking. Lippek wrote back to Tsai on Jan. 27, telling her as much.
"With all due respect, you did not answer my question. I did not ask whether OPA has an open investigation," Lippek said, before asking again: "Does OIG have an open case related to my July 15th OIG complaint?
"I made a complaint to OIG regarding OPA's failure to classify, investigate, notify the complainant, or take any other meaningful action on a serious complaint about FIT officers wrongfully obtaining private medical information," Lippek continued. "I made a complaint to OIG on July 15th, 2021. Ms. Judge said she would 'look into it.'"
On Jan. 27, Lippek again wrote to Tsai to clear up the misunderstanding that her client was engaged in litigation with the City regarding the obtaining and release of her medical records.
"The matter of FIT officers and Mr. Myerberg obtaining/releasing private medical information is not in litigation. Further, neither my client nor I am barred from access to the City's police accountability system even where there is active litigation," Lippek wrote. "Being an attorney in litigation against the City does not make me ineligible to make complaints to the OPA and/or OIG, and does not change the duty of those offices to provide fair and equal treatment for my complaints regarding police misconduct."
On Feb. 15, 2022, Tsai sent Lippek an email stating that she believed she had "identified the source of confusion" and went on to reference a series of emails in which both she and Lippek had conflated certain case numbers. Again, the Emerald will return to these other separate, but related, issues in future articles.
With regards to the "matter of FIT officers obtaining medical records as it relates to your complaint against then Director Myerberg is being addressed in the case OIG referred out that you referenced," Tsai said.
It is unclear whether Tsai meant the City and Seyfarth Shaw are also taking on the original OPA complaint and case investigation or the subsequent complaint Lippek filed in July about the OPA's alleged failure to investigate the aforementioned complaint.
Lippek replied later that same day.
"I made OIG complaints about both matters you mention — thanks for clarifying, and apologies for any confusion," Lippek wrote. She then listed the outstanding issues, including her still-outstanding complaint about FIT officers.
"I had asked Ms. Vold about whether the FIT officers accessing medical records would be addressed in the outside investigation, and didn't get a clear answer, which is why I asked OIG for clarity," Lippek explained in a brief bullet point.
To this email, Tsai replied three days later on Feb. 18: "Thank you for your succinct summary. Your items track OIG understanding of the issues as well, so I believe we are now on the same page! I will be out of the office until 3/1 and will email you the week I get back."
Thus, Lippek told the Emerald in her March 3 email, it appears that Seyfarth may be investigating the FIT officers involved: Tsai said in her Feb. 15 email that the matter was "being addressed in the case OIG referred out that you referenced."
However, Lippek clarified, Vold said that Lippek did not name them, and thus these officers are allegedly not part of the inquiry. She also noted that Vold has still given her no response about the need to investigate to find out who the officers were, "Which is the role of the investigator — a complainant is not required to know the name of an officer to report misconduct — identifying involved officers is a standard part of an investigation by OPA [and] OIG. And presumably whatever outside investigators are standing in place of OPA and OIG."
As of this writing, Tsai's Feb. 18 email is the last correspondence Lippek has had with her on this matter.
Thus far, this entire past year trying to untangle and sort out what has been going on with her two complaints at the OIG has been nothing less than a 365-day exercise in frustration for Lippek.
"I get the runaround by Anne Vold. I don't know whether the FIT officers are being investigated," Lippek said. "If, as Anne Vold states, this is just an OIG investigation, it wouldn't encompass the FIT officers. It would only encompass my complaint about them not being investigated.
"No one is actually doing an investigation to find who those officers are," Lippek said. "And because it's been escalated to OIG, it's apparently not with OPA anymore. What [Tsai] told me … is that the inquiry into the FIT officers is encompassed into the investigation.
"If it's an OIG investigation, then it can only encompass OPA. If it's replacing an OPA investigation, then what is it? Who are these people doing these investigations? Why isn't the OPA investigating? And why isn't the OIG investigating?" Lippek questioned. "Why? And why can't anyone say what they are investigating?"
What they have essentially done, Lippek said, "is remove [the investigation and complaints] from the tiny amount of transparency dictated by the so-called accountability process, so now there is no accountability.
"There is no transparency. I, as a complainant, don't get updates. I don't get to know what's being investigated. I don't get to know with any clarity about what the timeline is. I don't get a classification decision. I don't get closure. I don't get a determination," Lippek said, listing off what she, even as the complainant, is now apparently barred from knowing.
"So, now, [Tsai] says the FIT officers are included in this investigation — but, if that's the case, why haven't I gotten any notices?" Lippek asked. "Why has the OPA procedure not been followed?"
Neither Mayor Bruce Harrell nor the OIG responded to multiple requests for comment and specific questions about the matters outlined in this story before publication. The Emerald emailed Harrell and his office's press official and also called said press official on March 7. Again, outstanding questions include whether Harrell knew about this investigation before transferring Myerberg to the new position of director of Public Safety.
When the Emerald followed up again with Judge and Tsai on March 7, it received an automatic reply from Tsai's email directing the Emerald to contact a different OIG staffer regarding anything to do with "OIG matters." Tsai is the deputy director. Not only would she seem to be best-placed to answer questions like this, but also, until recently, as of this writing, she specifically has been the person most recently in regular contact with Lippek about the issues outlined in this story.
Despite multiple phone calls from January until March 7, the SCAO never responded to request for comment, save for once, in a voicemail in late January, point the Emerald in the direction of former Mayor Jenny Durkan spokesperson Chelsea Kellogg, stating that Kellogg was the SCAO's media contact. When the Emerald reached out to Kellogg, she said she no longer was serving as the media contact for the office. The SCAO did not respond to further phone calls.
If the Emerald hears from Harrell's office, the OIG, the OPA, or the SCAO about the matters detailed herein, it will update the story with their comments.
Author's Disclosure: In an interesting twist, I was also contacted by Seyfarth Shaw investigators on Feb. 23, who asked if they could interview me for the investigation detailed in this story. I respectfully declined, due to the fact that participating in such a way would compromise my ability to cover this story.
Editor's Note: The Emerald updated this story shortly after publication to reflect new information regarding another case mentioned in this story. That case regarded a person who went into a coma, following SPD officers arresting them. The Emerald has also corrected the spelling of Seyfarth Shaw investigator Lauren Parris Watts' last name.
Featured Image: Screenshot of former OPA Dir. Andrew Myerberg speaking at an online Seattle City Council Public Safety Committee meeting in January, 2022.
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