City Silent About Ongoing, Potentially Flawed Investigation Into Former OPA Director

Charging Thousands of Dollars Per Month, Outside Firm Waited Almost a Year to Interview Former OPA Director

by Carolyn Bick

Since the beginning of this year, the Emerald has been following and reporting on developments in the ongoing investigation into allegations of medical privacy violations against former Office of Police Accountability Dir. Andrew Myerberg and still-unnamed — and, possibly, still unknown — Seattle Police Department (SPD) officers.

Recently, the Emerald obtained documents showing that it took almost an entire year for investigators at Seyfarth Shaw, the outside firm the City hired to do the job, to reach out to Myerberg himself for an investigatory interview.

The documents also show that despite telling complainant Sarah Lippek that the office was recusing itself from the investigation — specifically citing a conflict of interest regarding Inspector General Lisa Judge's role as the "deciding official" in the investigation — the Office of Inspector General (OIG) will be making the final determination in the case.

These same documents have also revealed that the OIG appears to have misconstrued Lippek's original complaint against Myerberg, relegating it to the realm of SPD policy violation, rather than a violation of Washington State medical privacy laws, despite Lippek alleging the latter in her formal complaint. This seems to indicate that no one is looking into the specific allegations that Myerberg violated Washington State medical privacy laws.

Further documentation reveals that the City plans to spend — or, at the time of this writing, has already spent — $50,000 on Seyfarth Shaw to "fact-find" for the OIG, despite the fact that the OIG is not looking at the formal allegations as articulated in Lippek's original complaint. In other words, the City is apparently spending thousands of public dollars to fund a fact-finding mission based on a flawed investigatory premise.

Finally, the City of Seattle — including the City Attorney's Office and the Office of the Mayor — has now begun to ignore the Emerald's repeated requests for basic updates about a publicly funded investigation that has dragged on for more than a year.

On July 22, 2022, Myerberg received the following message from Kira Johal, an attorney and investigator with Seyfarth Shaw:

"My name is Kira Johal and I am an attorney at Seyfarth Shaw. My colleague, Lauren Parris Watts, and I have been retained by the Office of Inspector General to conduct an investigation into case No. 20210IG-0002. We have attached the previous classification notice that was provided to you on March 29, 2021 by Lynn Erickson as a reference to the complaint allegations. As part of our investigation, we are reaching out to see if you'd be available to speak with us some time this or next week. Please let us [sic] if you have dates/times most suitable to your schedule for a call. Please also let us know if you have any questions. We look forward to hearing from you soon."

Johal attached a message from now-former OIG auditor Lynn Erickson, dated March 21, 2021. The message informs Myerberg of the investigation and appears to show that the OIG is treating the investigation as the OPA would.

"As previously indicated, the Office of Inspector General (OIG) received a complaint of an alleged violation of SPD policy in which you are named," Erickson's message reads. "We have conducted a preliminary investigation and are now classifying this case for further investigation."

"Our office will be taking additional steps to investigate this matter as deemed relevant and appropriate, a process we hope to complete in approximately 90 days. As part of this process, you can expect to receive a notice to schedule an interview once we are prepared to speak with you about the underlying concern," Erickson's message to Myerberg continues. "When the investigation is complete, it will be reviewed by OIG leadership and the City Auditor's Office. The Inspector General will issue a recommended finding for each allegation raised."

Readers may recall that Erickson told Lippek in a Jan. 25, 2021, email that the OIG was conflicting itself out of the investigation, stating, "[O]ur office determined there was potential for a conflict of interest with Lisa Judge being the deciding official on the investigation."

Erickson states that Myerberg can expect "to be notified of any findings as either Sustained or Not Sustained as follows" and lists a range of classifications typically seen in OPA Case Closed Summaries, all of which are within the context of whether an individual has violated SPD policy.

This appears to indicate that the OIG did not accurately construe Lippek's complaint from the beginning, which, again, alleged that Myerberg violated Washington State medical privacy laws, not just SPD policy. With regard to disclosing medical information, while the SPD Manual does not directly address the matter of an individual's medical privacy, it does state that only "[r]eadily observed information regarding medical conditions may be released. Detailed medical information, diagnosis or prognosis will not be released."

Erickson also attaches the complaint, which reads as follows:

"OIG Case No.: 20210IG-0002
"Summary:

"The Complainant alleges that after their client (a victim of SPD use of force interviewed by OPA) declined to sign a medical release, the Named Employee obtained a copy of the victim's unredacted medical records. Subsequently, the Named Employee included explicit and sensitive medical information about the victim in a Closed Case Summary, which was published on OPA's website on January 15, 2021. The Complainant alleges that in addition to publishing this private and legally protected information about the victim, the Named Employee opined on the meaning of the medical records, despite not being medically trained to do so, and despite the medical information not being directly relevant to an assessment of the misconduct at issue. Further, the Complainant alleges the Named Employee included private medical information in the Closed Case Summary with the intent to smear and undermine the victim, as well as to cast aspersions on the harm the victim suffered. The Complainant alleges the improper use and disclosure of medical records by the Named Employee was unprofessional, retaliatory, lacked the objectivity required of the Named Employee's position, and may have been in violation of state law."

After some back-and-forth, it appears that Seyfarth Shaw investigators may have interviewed Myerberg on Aug. 9, 2022 — but whether this interview happened is immediately unclear, as there is neither documentation of the calendar invite that Johal mentioned in an Aug. 3, 2022, message nor any sort of follow-up email or memo in the public documents the Emerald obtained.

Further documents the Emerald obtained show that the City of Seattle opened the case with Seyfarth Shaw on Sept. 10, 2021, setting a budget cap for retaining the firm at $50,000. The Seattle City Attorney's Office (SCAO) — which appears to be directly handling business with Seyfarth Shaw — is listed on these documents as the primary contact, with SCAO attorney Anne Vold specifically named.

One of these documents — an official letter from Vold dated Sept. 14, 2021, which outlines the Seyfarth Shaw investigators' duties and rates — reveals that the OIG has retained ultimate authority over the investigation, despite Erickson telling Lippek otherwise in the June 25, 2021, email sent almost three months prior to the SCAO retaining Seyfarth Shaw.

"Your investigative work will be fact-finding for OIG," Vold's letter reads, directly contradicting what that OIG had told Lippek. "In the capacity as fact finder, you will not act as an attorney for the City and will not provide legal advice or representation. The City Attorney's Office will be providing legal advice and representation regarding the investigation, and you will work with me and other attorneys and/or staff in the City Attorney's Office to provide us with the facts and other information we need to advise OIG.

"Any communications with and work done by the City Attorney's Office in connection with this investigation should be regarded as attorney-client privileged and should be kept strictly confidential and subject to the attorney-client privilege and any other applicable statutory and common law privileges and public records disclosure exemptions," Vold's letter continues. "Oversight for the investigation will be by the City Attorney's Office. I will be your contact person for the investigation, and I can be reached at the number listed above. Alexandra McGehee, [former] Operations Manager at OIG … will be your primary contact person for administrative and scheduling matters."

McGehee currently works with the City of Seattle's Office of Arts & Culture, so it is unclear who now serves as the primary contact for Seyfarth Shaw at OIG. The Emerald has asked OIG this question but received no response.

Several subsequent communications with Seyfarth Shaw have been redacted but appear to show Seyfarth Shaw investigators holding regular meetings with Seattle officials — possibly including OIG officials. An email from June 14, 2022, which the SCAO entirely redacted of substantial material, shows that Vold emailed Inspector General Lisa Judge about the matter. Further redacted emails indicate that they discussed some aspect of the investigation.

Another string of entirely redacted emails show that the SCAO at least once internally discussed the Emerald's queries for investigation status updates.

The most recent — and again entirely redacted — emails the Emerald obtained show that the SCAO and Seyfarth Shaw conferred the day after investigators' interview with Myerberg ostensibly took place.

Neither the OIG nor the SCAO — including the SCAO's media contact — has returned any of the Emerald's requests for comment, despite the Emerald contacting both departments several times about this matter.

The Emerald has specifically reached out to the SCAO media contact about once a month since early this year to ask for updates on the matter. While the media contact originally said that the matter is ongoing, in recent months, SCAO has not responded to any of the Emerald's queries about the investigation, despite returning requests for comment about other matters.

The Emerald sent the following list of questions to the OIG on Nov. 23:

"First, I wanted to ask who the primary contact is for Seyfarth Shaw at OIG, since Ms. McGehee left. Ms. Meza, are you the primary contact?

"Second, why did the OIG last year tell the complainant in the matter, Sarah Lippek, that the OIG — specifically you, IG Judge — had conflicted itself out of the investigation?

"The exact quote from OIG to Lippek last year was: 'Namely, our office determined there was potential for a conflict of interest with Lisa Judge being the deciding official on the investigation.'

"However, documents I have obtained say that the OIG is still making the final determination for any allegations, and that the City Attorney's Office is advising the OIG in the matter. Seyfarth Shaw is simply the fact-finder. Can you please explain why the OIG will make the final determination regarding allegations, given the above? How can the OIG make a determination in a case in which there is a conflict of interest that the OIG itself identified?

"Lastly, why is the complaint being treated solely as a violation of SPD policy, when Ms. Lippek articulated in her complaint that she believed Myerberg to be breaking Washington State laws?"

The OIG has not responded.

Featured Image: Screenshot of former OPA Dir. Andrew Myerberg speaking at an online Seattle City Council Public Safety Committee meeting in January 2022. Photo edits by Emerald team.