As a service to the public, the Guild will post “fact checks” from time to time regarding news & blog posts that relate to Guild issues.  This is in an effort to provide additional information that will enable citizens to form their own opinions on various Guild-related topics.

In this first article, the Guild has taken note of an Island blogger that posted on July 18, 2012 her take on Mr. Jon Fehlman’s job status and an interview she had with Mr. Don Pierce.  In her blog postings, the author wrote:

1.  “Emails released under the Public Records Act suggest that Interim City Manager Morgan Smith will put police Chief Jon Fehlman on paid administrative leave as soon as he is well enough to assist in the investigation into the Bainbridge Police Guild’s no confidence vote”  And, “He was so ill he could not attend any portion of the Ostling trial in May, even though he was a named defendant in the high profile case involving the shooting death of a mentally ill man by a Bainbridge police officer. “

Guild Response:  Mr. Fehlman was not ill to the point that he could not move his entire household out of his Bainbridge Island home and into an off-island house.  This was within a week or so of the no-confidence vote and list of allegations against him being made public. It is also noted that Mr. Fehlman is not so ill that he cannot continue his football assistant coaching job at Kingston High School.  A look at the practice and play schedule from the team’s web site shows quite a commitment in time and travel.   Further, the Guild asserts that Mr. Fehlman’s assignment to Administrative Leave coincides with his dwindling sick and other leave balances.  Being on Administrative Leave essentially allows an employee “free” leave time that isn’t charged against a leave bank and continues their medical and other benefits while at the same time drawing the employee’s regular pay check. 

2. Smith sent the email to Fehlman about administrative leave on June 27, noting that it was a follow-up to a previous conversation. Smith wrote that Fehlman’s change in status to administrative leave “should occur once you are able to be available to Rebecca Dean and assist in her investigation of the allegations presented in the Guild’s report. This is the approach that is described in the letter you have already received.” And, “As soon as you notify me that you are able to…[assist in the Dean review], I will confirm your change in status to a paid administrative leave,” her email concluded.  Ms. Smith also stated, “…it will be very useful to have an investigation of all of the Guild’s claims…”

Guild response:  Despite Ms. Smith’s statements, at a meeting on July 12, 2012 Morgan Smith told Guild members that she did not believe that there was any criminal behavior on the part of Mr. Fehlman and was therefore bypassing using an outside law enforcement agency and hiring a private contractor to investigate.  The city has thus far refused to have any agency with criminal jurisdiction and legal authority investigate the allegations against Mr. Fehlman.  In fact, Ms. Smith stated that her choice of a private investigator and narrowed scope of that investigation was being conducted at her direction.  The city is not having anyone with legal authority or law enforcement powers investigate the list of potential criminal allegations against Mr. Fehlman.  This is not the industry standard and not how any other police officer would have been treated if similar allegations were leveled against them.  The Guild believes that if Mr. Fehlman was fully investigated, and any misconduct or integrity issues came to light, that would render him useless in court and essentially end city efforting in that arena.  If the city maintains an unwillingness to have valid potential criminal complaints investigated, the Guild may pursue having agencies with legal authority, investigative powers, and jurisdiction look into the allegations.  Not a private contractor that is controlled by the city.

3. Jensen admits that Fehlman spoke to him about the report but says that didn’t amount to an oral reprimand. Guild President Lt. Bob Day and Lt.  Jensen have said they don’t know the legal definition of perjury and were just giving the facts of the incident.

Guild response:  Both employee discipline and counseling are formal procedures with associated documentation.  It is a legal and labor process that is very well set forth.  The Guild maintains that Lt. Jensen was absolutely never disciplined or counseled about his part in the Ostling shooting.  Can the city provide a single document to back up Jon Fehlman’s assertion that he disciplined Lt. Jensen?  No, the city cannot because such documentation has never existed.  Regarding the discussion with Bob Day and Chris Jensen about possibly perjury charges, the blogger mischaracterized the substance of the interview.  The elements of the crime of False Swearing and Perjury are easily understood and set forth in statutes.   What the Guild members told the blogger was, “we know what the legal definition of perjury is and that the actions of Fehlman crossed the line - but as to if it is a chargeable offense that is for a prosecutor to decide.”  Further, the Guild has asked the city to have someone with legal authority and investigative powers look into the issue to decide which may be the more appropriate crime.  In this instance, the person with authority would need to collect a copy of the relevant deposition testimony, verify the non-existence of disciplinary or counseling records relating to Lt. Jensen, interview Mr. Fehlman and Lt. Jensen, perform any other necessary follow up investigation and then submit a statement of probable cause to a prosecutor’s office.  None of which will currently be done because the city is refusing to investigate the matter.  That is why if the city maintains an unwillingness to have valid potential criminal complaints investigated, the Guild may pursue having agencies with legal authority, investigative powers, and jurisdiction look into the allegations. 

4.  Mr. Don Pierce’s comments regarding the Guild appear accusatory towards the Guild and supportive of Jon Fehlman.  Mr. Pierce made several statements;

1. That it was “nonsense” to place a chief of police on administrative leave after a no confidence vote.  And that he has never heard of it.
2. Claiming that the Guild was “way out in front of themselves” in terms of allegations of perjury or false swearing. And he wonders why the Guild did not go the Prosecutor’s Office if there were evidence of a crime.
3. He further makes minimizing statements of no confidence votes and calls them personal.
4. Mr. Pierce intimates that no confidence votes coincide with police contract negotiations.
5. He states that most chiefs leave after six month to a year or two after a no confidence vote.

Guild response: 

1. The Guild fully agrees with Mr. Pierce about administrative leave.  The Guild has never said that Mr. Fehlman should be placed on administrative leave simply due to a vote of no confidence.  The Guild has stated repeatedly that Jon Fehlman should be investigated like anyone else and placed on administrative leave (like anyone else) due to the complaints against him which includes both policy and criminal violations.  The Guild did more than a simple “vote of no confidence”.  The Guild also made a lengthy whistleblower complaint against Mr. Fehlman.  The blogger attempts to lump the topic of a vote of no confidence with a complaint against an employee- Mr. Fehlman, and minimize what the proper response to either should be.  Two separate issues that although related, should be handled differently.  There are many examples of chiefs of police being placed on administrative leave.  The Port of Seattle, Cities of Medina, White Salmon, Pacific, Granite Falls, Sultan, and Tenino (although this chief resigned quickly before actually starting the leave), all have placed their chief of police on administrative leave pending investigations.
2. The Guild has collective knowledge of facts that would fully justify an investigation into gathering all the related elements of the allegations.  The Guild considers it highly unlikely that the city would authorize its police department to investigate their own chief of police.  It rightly should be done by an outside law enforcement agency.
3. What the blogger does not write about is that Mr. Fehlman is also a member of WASPC.  Among other things, this organization provides assistance and peer support for chiefs, sheriffs and upper level law enforcement throughout Washington State.  Mr. Pierce is a colleague of Mr. Fehlman and a professional resource.  The blogger also failed to mention Mr. Pierce’s period of employment as the chief of the Boise, Idaho Police Department.  Among other things, Mr. Pierce was involved in a scandal with the Boise mayor and his chief of staff.  The Boise Police Ombudsman (the agency responsible for investigating police misconduct) issued a report sustaining several allegations against Mr. Pierce.  You can read the report here:  http://www.boiseombudsman.org/media/1902/OMB03_0018.pdf  The City of Spokane commissioned an outside review of incidents happening in their city back in 2006.  They originally contracted with WASPC and Mr. Pierce to conduct the investigation but when the circumstances of his 2004 departure from the Boise Police Department came to light Mr. Pierce withdrew from the investigation to “avoid any distraction”.  There are also other articles online relating to Mr. Pierce located at:  http://news.google.com/newspapers?nid=1314&dat=20060728&id=AmhWAAAAIBAJ&sjid=L_MDAAAAIBAJ&pg=6883,5459916  and http://www.mtexpress.com/2002/02-12-11/02-12-11murphy.htm and https://groups.google.com/forum/?fromgroups#!topic/alt.law-enforcement.corruption/T7mSBJGE9oU .  According to news reports, Mr. Pierce conducted an investigation that found no wrongdoing or criminal charges against his boss, the Boise mayor and also the Boise chief of staff.  The attorney general’s office later investigated and charged the former mayor with 5 felonies and his chief of staff with 14 felonies.  See http://news.google.com/newspapers?nid=1314&dat=20030507&id=QGhWAAAAIBAJ&sjid=ufIDAAAAIBAJ&pg=3051,7097022
4. The chief of police functions as a subject matter expert only during contract negotiations, not as a final decision maker.  It doesn’t matter to the Guild which person is providing their opinion to the city.
5. Mr. Pierce was given a vote of no confidence by the Boise Police Union in 2003 and Mr. Pierce resigned in February 2004.