This Week in the Mercury


Monday, September 24, 2012

UPDATED: State Board Orders Mayor Adams to Reinstate Ron Frashour

Posted by Denis C. Theriault on Mon, Sep 24, 2012 at 2:28 PM

Mayor Sam Adams on the fight to keep Ron Frashour off the police force: It is totally worth it.
  • Denis C. Theriault
  • Mayor Sam Adams on the fight to keep Ron Frashour off the police force: "It is totally worth it."
The Oregon Employment Relations Board, in a perfunctory ruling reached on Friday, has told the city of Portland and Mayor Sam Adams to reinstate Ron Frashour, the officer fired for fatally shooting Aaron Campbell in the back in 2010. The board decided that putting Frashour back to work, with back pay, wouldn't amount to a "public policy violation," something the city tried to argue using an obscure state collective bargaining law.

The board's decision—the latest turn in a case that generated enormous community outrage and helped lead to a damning federal report on how Portland cops treat the mentally ill—may mark the end of a monthslong effort by Adams to do anything in his power to keep Frashour from working as Portland cop. Adams has a press conference planned at 3 to respond. To keep fighting, via a court challenge, he'll now need two other city commissioners to join him.

Frashour was fired later in fall 2010 for the Campbell shooting and for a history of other questionable judgment calls involving the use of force. But an arbitrator this spring ruled Frashour's decision to shoot the distraught and suicidal Campbell—tragically ending a welfare check gone chaotically awry amid a breakdown in police communication and a dubious use of a beanbag gun—was reasonable because Frashour said he believed Campbell was reaching for a gun. When Adams balked at reinstating Frashour, the Portland Police Association filed an unfair labor practices complaint with the ERB.

UPDATE 3:25 PM: Adams, at a short press conference where shared the lectern with City Attorney James Van Dyke, said he expected the ERB's decision and promised he would hold a public hearing in the next 30 days (before Frashour would return to work) and ask his fellow commissioners to back sending the matter to the Oregon Court of Appeals.

"That's what were fighting for here: our ability to manage our own police bureau on behalf of Portlanders who have their own set of values and have the right to have a police force that reflects that," said a clearly emotional Adams, lamenting that "labor unions and their connected institutions" have a greater say on discipline and values than "the city council, the police commissioner, the police chief."

"It is frustrating to have so much of what should be our local control taken away from us with these arcane or misused state labor laws," he also said.

Update 5:05 PM: I've just finished buzzing the four city commissioner offices, and it's looking like the mayor will have his work cut out for him convincing his colleagues that a court challenge makes sense.

I've previously reported that Randy Leonard disagreed with the initial decision to send Frashour's reinstatement to the ERB. Leonard, who worked on the law the mayor is citing when he served in Salem, says he doesn't know "that you can convince the Court of Appeals that first an arbitrator and then the ERB disregarded collective bargaining laws." He'll never be convinced "it's a good idea," but if it's a close decision for him—he worries an adverse court might "embolden bad behavior"—he'll support the mayor.

"He's the police commissioner," said Leonard, a close Adams ally and a former union leader himself.

Nick Fish maybe comes closest to distilling what's in play for the rest of the council. He says he wants a full briefing from the city attorney's office and that he needs to see the city has a "plausible legal strategy" for a challenge and that "we're not just kicking the can down the road" if the courts say no.

Dan Saltzman said he hadn't read the ruling yet and didn't have any comment, other than to say he wasn't surprised. Amanda Fritz

was out of the office; I've sent her a message asking for comment
also said she couldn't comment because she hadn't read the ruling.

Hit the jump for more reaction from Adams, Van Dyke and the PPA.

Original post resumes here: The panel looked closely at the arbitrator's ruling clearing Frashour, seizing on a key distinction raised the Portland Police Association: Not only was Frashour punished too severely, the arbritrator found, but more importantly there also wasn't any misconduct to punish.

"There is no need for any further analysis by this Board once the arbitrator determines that the greivant did not engage in misconduct," the ruling said. "The arbitration award must be implemented."

The decision wasn't unexpected. As the Mercury first reported this spring, legal observers who helped write the law Portland tried to use to keep Frashour from the police force were convinced the city was on shaky ground.

UPDATE CONTINUED: A Portland court challenge challenge would follow other—losing—court fights that came after ERB reinstated other public employees. Van Dyke explained that the city wants to challenge ERB's basic approach to this kind of case—complaining that it shouldn't stop at the question of whether an arbitrator did or didn't misconduct because arbitrators sometimes get that finding wrong. As an example, the city cited its attempt nearly 20 years ago to punish Officer Douglas Erickson in a deadly force case, a case held up as one of the reasons a "public policy" exemption was added to collective bargaining laws.

Adams said he's been keeping his fellow commissioners apprised of the case but didn't way whether he had any commitments. The PPA's president, Daryl Turner, has also been making the rounds, as I reported in Hall Monitor earlier this year.

"I want them to have the time over the next couple of weeks to sit down on their own with our outside counsel and the city attorney and learn all the details on the matter and make a decision," Adams said. "I don't speak on their behalf."

Adams also took the chance to hit back at the PPA for telling a "very selective and distorted story about the investigation into the use of force by officer Frashour," referring to leaked transcripts from the arbitration hearing that forced the city attorney's office to write a stern letter to the PPA's attorney. Turner, in describing the confidential transcripts in the PPA's newsletter this summer, argued they revealed Frashour's firing was politically motivated. The city has bristled at that but declined to release, citing the ongoing legal fight, the full set of transcripts to rebut that. Instead the city has promised a review by the auditor's office.

"We've used restraint," Adams said.

Adams also batted away complaints over the cost of the legal fight to keep Frashour off the police force: approaching, if not already surpassing, $1 million. He defended it as an "investment" in our values.

"It is totally worth it, and Portlanders expect us to do this."

Meanwhile, over the PPA's newsletter, Turner has posted a statement of his own.

Today, in a unanimous opinion, the Oregon Employment Relations Board (ERB) determined that the City violated State law by refusing to put Officer Ron Frashour back to work. The ERB is the sixth independent body to clear Officer Frashour of misconduct. A Multnomah County Grand Jury; the Oregon Employment Department; the United States Department of Justice; Oregon’s Department of Public Safety Standards and Training; a nationally recognized arbitrator hand-selected by the City; and now the ERB have all said the same thing—Officer Frashour acted reasonably and lawfully.

The ERB’s order is compelling given that its three members—one from a management-side labor law background, one neutral, and one from a union background—unanimously agreed that State collective bargaining law requires the City to honor the final and binding arbitration award that ordered Officer Frashour back to work. The ERB’s reasoning is clear: Officer Frashour engaged in no misconduct and his reinstatement would not violate public policy.

From the beginning, the Portland Police Association has supported Officer Frashour because he followed the training and policies of the Portland Police Bureau on the night of January 29, 2010. The unnecessary battle that the City undertook should now be over. The City has spent over $750,000 of taxpayer funds to keep Officer Frashour fired. That sum is unacceptable in a time where local governments are struggling to provide core services to their communities. That sum is also shocking given that, in the words of the ERB, the City’s actions were “calculated” and in clear disregard of well-established State law.

Now is the time to move forward and provide closure to this incident. For nearly three years, Officer Frashour, Mr. Campbell’s family, and the community have endured the politicizing of a tragedy. No good has come of it. The City asserted that transparency, accountability, and integrity of the process compelled it to seek review of the arbitration award; the ERB has now affirmed that the arbitration award satisfied each of those concepts. The time has come for the City to honor its legal obligations and return Officer Frashour to work.

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