Fmr. OPA Dir. Subverted Agency's Own Rules, City Ordinance by Withholding Information

City Refuses to Answer Essential Questions About Publicly Funded Investigation

by Carolyn Bick

The Emerald has obtained multiple documents that show that former Office of Police Accountability (OPA) Dir. Andrew Myerberg appears to have withheld key information from the Office of Inspector General — the OPA's accountability partner agency tasked with certifying OPA investigations — by submitting a case for certification and later adding information to the case report. In doing so, and in drawing conclusions from said information, Myerberg appears to have subverted not only the OPA's own rules and procedures but also the City's 2017 Accountability Ordinance.

As a result of a complaint stemming from the public release of this information, Myerberg — now the City of Seattle's director of public safety — is under investigation by an outside agency.

Some of these same documents, which include an Office of Inspector General (OIG) memo, a letter to Myerberg, and supplemental OIG material regarding a meeting with OPA staff, also appear to indicate concern throughout OIG that this was not the first time the OPA has omitted key information from case files.

Much of this information and documentation was included in the August 2021 whistleblower complaint a now-former OIG staffer filed but that City officials have refused to substantially address. Now, however, the City is spending public money to investigate an aspect of a complaint that it appears to have claimed to federal monitor Antonio Oftelie had "no merit." This same whistleblower complaint also highlighted another investigation, this one into an OIG auditor, which is also ongoing.

Moreover, the lack of transparency from the City regarding this investigation into a high-ranking public safety official — as well as the claim by firm investigators that they are "not authorized" to speak with the Emerald about anything regarding the case — is concerning, considering the fact that the investigation is publicly funded.

The case in question specifically regarded the high-profile 2020 protest incident in which a police officer struck a protester in the chest with a blast ball. The City later hired outside agency Seyfarth Shaw to investigate Myerberg and certain police officers after a complaint that Myerberg had obtained and released this protester's private medical information without consent. It is this medical information, in addition to pertinent case information, that Myerberg apparently withheld in his Director's Certification Memo (DCM) submitted to OIG for certification.

In an uncirculated memo dated Jan. 24, 2021, the auditor who had certified the case concerning the protester hit in the chest writes that they created the memo "in order to preserve the post-certification developments and concerns with OPA case 2020OPA-0344."

The auditor begins with a timeline of events to show how they unfolded, stating in the memo that on Dec. 2, 2020, the investigation was "routed to OIG with three major allegations/incidences combined into one OPA case (2020OPA-0344) with one ROI." However, "[a]lthough OPA combined three major incidences into one OPA case for investigation and certification, it appears they were separated for final disposition and publication."

The auditor makes no further mention of this. As of this writing, the OPA has only put out parts one and two of this case.

A source familiar with the process confirmed to the Emerald that in their experience, the OPA did not always inform OIG staffers — including auditors working on certifying the investigations — when cases would be presented as separate public documents.

It is unclear whether this is still in practice, as neither the OPA nor OIG answered any questions before deadline.

The auditor goes on to document in the memo several significant events that occurred throughout the month of December 2020. On Dec. 11, the auditor writes that the OIG sent the investigation back to the OPA "with numerous requests for clarification or additional investigation, investigator cited 'numerous gaps' in the investigation. Requests made to OPA were preserved via PDF document."

More than two weeks after OIG sent the investigatory documents back to the OPA, the OPA returned the investigation. However, the auditor notes in the memo, "little additional investigative steps conducted. Responses from OPA were preserved via PDF document."

The auditor issued a partial certification that same day that contains the OIG's requests to the OPA and the OPA's responses indicated above. However, on Jan. 15, 2021, the auditor writes (emphasis by the Emerald): "OPA posts closed-case summary with evidence not previously reported to OIG."

A source familiar with the investigation clarified to the Emerald that the partial certification's statement — "OIG appreciates the solid investigative efforts made by OPA in regard to the allegations officers deployed a flash bang which struck a protestor in the chest and an additional flash bang deployment which caused a photographer to be knocked unconscious" — was made prior to the OPA publishing what they called Myerberg's "inflammatory and irrelevant medical analysis."

In the summary of the issue in the uncirculated OIG memo, the auditor writes again that the public-facing document the OPA issues at the end of the case, the Case Closed Summary (CCS), contained evidence OPA did not share with OIG prior to publishing the CCS. The memo states that the information "pertained to the medical condition of [the protester], taken from a FIT [Force Investigation Team] report" and explains that the protester is the person whom a Seattle Police Department (SPD) officer hit in the chest with a blast ball, rendering her unconscious. Not detailed in the memo is the fact that the protestor subsequently suffered multiple cardiac arrests, both on-scene in the medic tent — which officers allegedly attacked, as the Emerald first reported — and on the way to the hospital.

However, the auditor writes (emphasis the Emerald's), "[i]n the investigation OIG reviewed for certification, there was only one reference to the corresponding FIT case, which was solely in regard to FIT helping locate the officer involved. Additionally, there was only one reference to the victim's medical information, which stated, 'A copy of [the protester]'s medical records were provided (doesn't say by who) but not included as part of the case file due to privacy.'"

And yet, as the Emerald wrote in its story about the investigation into Myerberg, Myerberg saw fit not only to publicly release this private medical information but also to draw conclusions and make a medical diagnosis.

Though the memo was written more than a year prior to that story, the auditor also makes this observation: "Despite stating in the investigation [the protester]'s medical records were not included due to privacy, OPA included a great deal of [the protester]'s personal medical information in closed case summary published on their website.

"In this case, FIT was able to obtain [the protester]'s unredacted medical record from the hospital without her consent, under a Washington code which allows disclosure without consent when law enforcement authorities reasonably believe a serious injury resulted from a criminal act. Only specific, narrow information is authorized for released [sic], although Detective [Jason] Dewey requested 'any medical records relating to her treatment.' A multi-page medical report was released to FIT."

It is still unclear who released these medical records to FIT, but this document appears to point to someone at Virginia Mason Hospital, where the protester was treated.

"After certification, and without OIG's knowledge," the auditor continues in the memo, "OPA then pulled [the protester]'s unredacted medical record from the FIT file and used this in the closed case summary and DCM."

The auditor then briefly details Myerberg's decision to make medical diagnoses and conclusions — which he would seem to be unqualified to do, as he is not a trained doctor — writing that the "OPA includes a two paragraph analysis of her medical records, including the complainants ethanol level, speculation concerning pre-existing medical conditions, and an acute alcohol intoxication diagnosis. At one point in the published summary OPA states, [the protester] potentially had a seizure history given a medication she was prescribed that could be used to treat seizure disorders. Further OPA makes veiled allegations against the complainant and her attorney, 'OPA also finds it troubling that, in the medical records initially provided to FIT by the Subject's attorney, the information concerning this diagnosis and her ethanol level was redacted throughout.'"

The auditor closes the summary by writing of their concerns, which they state are twofold, the first being "the message this release of private information sends to the community, who may now be reluctant to make complaints of their own."

"But further," the auditor writes, "I question OPA making case decisions and analysis on evidence not cited in the investigation we [OIG] review and certify. Especially, as this would have affected my assessment of objectivity."

This appears to indicate that, with access to all the evidence, the auditor would have found the OPA lacking not only in thoroughness but also in objectivity in OIG's partial certification of the case.

The auditor also includes a section regarding ongoing concerns that this case brings to light, chiefly that "OPA may also be adding evidence to the casefile post-certification by OIG." While the auditor does not accuse either Myerberg or the OPA of having some "nefarious purpose in doing so," they write that such actions do not allow for "an accurate assessment and certification of OPA investigations."

And this auditor is not the only one who noted the issue. In an OIG-OPA Feb. 4, 2021, meeting agenda obtained by the Emerald, OIG includes a meeting agenda item entitled, "Additional Investigation after Certification." Beneath this, OIG writes the following:

It was noticed in one case (2020OPA-0344) that OPA conducted additional investigation/made changes to the ROI after OIG certified the case.

• Does OPA intend to send the case back to OIG for additional review?
• Was this case a unique circumstance or has this happened in other investigations?

This latter bullet point appears to indicate that OIG auditors were concerned that OPA has previously made changes or additions to case reports without OIG's knowledge.

According to the Feb. 4, 2021, meeting notes the Emerald obtained, several OIG auditors and two OPA staffers were in attendance. Notably, however, neither the OIG's Inspector General Lisa Judge nor Myerberg attended.

The meeting notes indicate that OIG staff asked in-meeting whether the OPA intended to send the case back to the OIG for additional review. There are several bullet points below this item in the notes that summarize what appears to be a conversation between former OIG staffer Lynn Erickson and OPA staffer Lauren Caputo. The bullet points read as follows (copied verbatim from the meeting notes):

• Lauren reviewed this case in IAPro before our meeting and shared that an updated version of the ROI does document that additional evidence was received on one of the issues after OIG certification.

• Lynn pointed out that she was curious about the potential for OIG re-review because that was the same issue that resulted in the partial certification.

• Lauren emphasized that this case was unusual in that there were three different deadlines (due to including SPOG [Seattle Police Officers' Guild] named employees, SPMA [Seattle Police Management Association] named employees and an unknown employee), which has resulted in different due dates and DCMs being issued.

Despite this internal confirmation directly from the OPA that new information was added, neither Myerberg nor any other OPA staff ever sent the investigation to OIG for recertification, a source familiar with the situation told the Emerald.

The Emerald also asked the OIG whether it had discovered evidence of the OPA adding information to other case documents post-certification, but the OIG did not respond.

With regard to the additional information, the auditor also writes that the OPA added a witness statement post-OIG certification from a medic in the tent into which officers allegedly threw tear gas canisters and flash-bangs but that the OPA did not notify OIG of this addition, despite the fact that the auditor in the case specifically requested that the OPA obtain a statement from this witness.

"OPA returned the investigation for certification after only waiting several business days and without receiving a statement from [the medic's] attorney," the auditor writes.

It appears that the information this witness ended up providing as evidence may have proved valuable and potentially opened more investigative leads.

The auditor writes that in the witness statement obtained by the OPA — and, again, that the OPA neglected to forward to the OIG — that the witness "makes several allegations of SPD policy violation. He states himself and a group of medics operated a makeshift aid station in the outdoor dining area of Rancho Bravo tacos for several weeks at the beginning of the protests. He alleges SPD officers threw flashbangs and tear gas directly into the aid station."

Quoting from the witness statement, the auditor writes, "'While assisting one patient on crutches away from the area, a SPD officer tossed a tear gas canister approximately 3 feet in front of my patient and I as we hobbled away (the only people in our immediate area were medics and patients, also retreating), severely afflicting both my patient and I.'"

The auditor continues to quote from the medic's statement, in which he says he "was standing between broadway and harvard on pine street, I was standing to the side of the crowd watching the last of the crowd retreat to our position when I felt an object strike my chest with significant force. It didn't deploy any irritating agent which led me to believe it was a 'baton round'" — that is, a supposedly "less lethal" munition designed to be fired directly at the body without piercing the flesh. However, baton rounds can cause severe injury and even death.

"These are just some of the allegations [the medic] makes," the auditor writes, apparently indicating that there may be more allegations from the medic that the OPA should have investigated on their own. "In IAPro [internal documentation software] there is an email from the attorney, Mr. Pence, stating [the witness] is willing to sign the statement as a sworn declaration. There is no indication if OPA responded to Mr. Pence."

Moreover, according to the memo, even before putting out the CCS in January 2021, the OPA apparently gave OIG misleading or unclear explanations (emphasis the Emerald's).

"In the [Dec. 11, 2020] request to OPA, OIG questioned why all interviewed officers had not been asked about the blast balls," the auditor writes. "OPA responded in the preserved PDF with various explanations as to why the officers had not been questioned concerning the blast balls. However, postcertification, [SPD Lt. John] Brooks was interviewed by OPA and was asked about targeting medical tents (he denied any knowledge) The results of this interview were not provided to OIG."

The auditor closes the memo by writing that, additionally, in IAPro (emphasis the Emerald's),"there was a new ROI [Report of Investigation] titled Close Case Summary Part 3 with updated information concerning contact from Mr. Pence, the statement from [the witness] (characterized as unhelpful to the investigation), the interview of LT Brooks, and a few changes to the OPA answers given in response to OIG's asks (this was inserted at the end of the ROI.) Tomorrow I will compare the original response and update response, I will then state these few changes in more detail. Other than this addition, a new memo to file will be created for any additional information."

The Emerald is not in receipt of any additional memo files at this time.

On Jan. 26, 2021, at the request of Judge, the auditor then wrote a formal letter to Myerberg regarding their concerns. However, as far as the auditor was aware, Judge never sent this letter, and the OIG did not answer the Emerald's question regarding whether Judge had sent the letter. This letter and the concern that Judge never sent it are included in the whistleblower complaint filed against the OIG in August 2021.

In their letter to Myerberg, the auditor writes that in addition to public ramifications of the decision to release private medical information, there may be legal ones, too, as local, state, and federal laws "exist to protect the public from such unauthorized disclosure of their personal medical information.

"Although FIT obtained the Subject's medical records under RCW 70.02.200," the auditor writes, "this statute does not specifically give OPA the authority to then publish such information without the individual's consent. OIG is concerned the publication of this information may violate privacy laws."

Moreover, regardless of any legal authority that may or may not support publishing this private information, the auditor writes that the OIG is concerned that such publication will have "a chilling effect" on anyone coming forward with complaints against SPD officers. According to the OPA's own analysis in the CCS, the auditor writes, the protester's previous medical state was irrelevant in assessing whether the SPD officer violated SPD's use of force policy by throwing the blast ball at the protester.

"Publishing this irrelevant, private, and protected information in a CCS conveys to the community they run the risk of having their personal medical history exposed, dissected, and criticized if they make a complaint to OPA. This runs contrary to the public trust efforts OPA and SPD have pursued," the auditor writes.

The auditor also raises concern that the OPA chose not to share with OIG information it later used to draw conclusions, make public statements, and publicly share. The auditor states that this failure to disclose information to OIG went against the 2017 Accountability Ordinance.

"Under the 2017 Police Accountability Ordinance, OIG reviews the final investigation and all investigative materials prior to certification. OIG needs to view all underlying evidence for an investigation that is used in a CCS or Director's Certification Memo (DCM)," the auditor writes. "Once OIG has certified an investigation, if OPA conducts additional investigation, adds new evidence, or changes the ROI, this information needs to be resubmitted to OIG for further review.

"Here, the included medical information and statement concerning the Subject's attorney's actions are directly relevant to determining OPA's objectivity, one of the elements upon which OIG certifies OPA investigations. However, OIG was not allowed to review all investigative material prior to certification or OPA's release for public review via the CCS," the auditor continues. "Furthermore, OPA hindered the OIG review process by failing to share such information with OIG, claiming initially that it was not included due to privacy concerns. Arguably, if OIG was allowed to review all investigative materials, the disclosure of the Subject's medical records may have been prevented."

The auditor closes the letter by requesting that the OPA "contact the City Attorney's Office for legal review of the disclosed medical information," before asking that the OPA "fully cooperate with and send OIG all investigative materials prior to certification, or, resubmit the investigation for additional review of any evidence included in the case post-certification, prior to issuing findings."

When the Emerald initially reached out to the OPA with questions on June 14, OPA staffer Katelyn Wieliczkiewicz told the Emerald in an email a few minutes later that the OPA would be "unable to provide a comment by your deadline" at 7 p.m. on June 14. When the Emerald followed up to notify Wieliczkiewicz that the deadline had been extended by 22 hours to 5 p.m. on June 15, Wieliczkiewicz replied on the afternoon of June 15 with a short message that answered none of the Emerald's questions.

"I have included a link to our current manual (effective January 1, 2022) that details the certification process," Wieliczkiewicz said. "Completed investigations published as a CCS may be separated for a variety of administrative and necessary reasons at the director's discretion."

She then linked the Emerald to the current OPA Manual — which, it should be noted, was not in effect or even published at the time of the investigative events in question. Regardless, while the manual shows what is supposed to happen procedurally on paper, the documentation the Emerald obtained seems to show that what actually happens may be quite different.

The Emerald followed up with Wieliczkiewicz to repeat its original questions, but Wieliczkiewicz did not reply.

The OIG did not respond to the Emerald at all.

SCAO's public relations officer Anthony Derrick told the Emerald on the morning of June 14 that the investigation into Myerberg is ongoing and that he could not provide any sort of projected end date, because "[i]t's very hard to estimate … any timeline I could give you would be pure speculation at this point."

Seattle Mayor Bruce Harrell's office has not returned the Emerald's phone calls or emails regarding the investigation, despite the fact that Harrell named Myerberg the director of public safety — a new position Harrell created — well after the investigation into Myerberg began. Additionally, the mayor's office has publicly stated that Myerberg "will be shepherding" certain aspects of the process of choosing a new OPA director.

The Emerald also called Seyfarth Shaw investigator Kira Johal — who, as disclosed in the original story regarding the investigation into Myerberg, reached out to this author for an investigatory interview — to ask where the investigation into Myerberg stood. Johal told the Emerald that she could not discuss the investigation at all, including whether it was open or closed.

Additionally, the Emerald reached out to Lauren Parris Watts, who is both an investigator on this case and a partner at Seyfarth Shaw. Parris Watts told the Emerald via email on the afternoon of June 13 that she is "not authorized to share this information with you at this time but I will pass along your request to my contact."

Sarah Lippek, the lawyer who filed the complaint that eventually resulted in the investigation into Myerberg, told the Emerald that she followed up with Parris Watts on June 14, after Parris Watts asked Lippek in May to send along an authorization form so that Parris Watts could check with the hospital to see who obtained the protester's medical record. Lippek told the Emerald that Parris Watts did not confirm initial receipt of the authorization form but said that she responded to Lippek's June 14 email and said that she is "in communication with the hospital."

It is unclear why the City of Seattle, which is using public money to fund an investigation into a high-ranking public safety official, would refuse to proactively share any substantial information about that investigation with the public or the person whose complaint eventually resulted in said investigation.

The Emerald followed up with Parris Watts to ask if the contact referenced in her email is SCAO attorney Anne Vold, who appears to be Parris Watts' primary contact, based on emails detailed in the original story about the investigation — but Parris Watts did not reply.

Featured image by Alex Garland.