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Thursday, October 4, 2012

Harsh Words for Police Union in Unanimous Vote to Fight Frashour Reinstatement

Posted by Denis C. Theriault on Thu, Oct 4, 2012 at 4:58 PM

PPA attorney Will Aitchison, left, and Portland Copwatch mainstay Dan Handelman prepare to testify.
  • Denis C. Theriault
  • PPA attorney Will Aitchison, left, and Portland Copwatch mainstay Dan Handelman prepare to testify.
As promised, after hearing from outraged activists and an equally impassioned police union lawyer, the Portland City Council today unanimously answered Mayor Sam Adams' call to take his fight against reinstating Ron Frashour to the Oregon Court of Appeals.

The city now has just a few weeks to formally appeal an Oregon Employment Relations Board ruling from last month that orders Adams to give Frashour his job back. Adams and Police Chief Mike Reese fired Frashour in 2010 for killing Aaron Campbell, a distraught and unarmed man whose attempted surrender to police was botched by an epic communications breakdown. But Frashour was later ordered reinstated this spring by a state labor arbitrator—and the city unsuccessfully tried to persuade the ERB to throw that ruling away.

But while the vote itself was expected, it came with a heaping helping of council vitriol over the influential Portland Police Association and the occasionally pugnacious tone it's taken under its president of two years, Daryl Turner.

Commissioner Randy Leonard, a former firefighters union president and staunch labor ally, phoned into the meeting and launched into a long statement recounting the facts of the Campbell case, as he saw them, and then ripping into Turner for taking shots questioning Adams' integrity and also for ignoring community outrage.

He highlighted testimony in a recent auditor's report, reported by the Mercury on Monday, in which an assistant police chief complained about "rehearsed" testimony during Frashour's arbitration hearing. And he recalled that while a grand jury absolved Frashour of criminal liability, it also took the unusual step of castigating the bureau itself, in a letter, for the many lapses that led to Campbell's death.

"There really is a bigger picture I need to consider. When the PPA president ignores community outrage, unprecedented grand jury outrage, a $1.2 million settlement, and even ignored unprecedented outrage by one of the Portland Police Bureau's own top commanders, but instead makes outrageous personal attacks on the mayor and a highly respected former PPA president [now-Lieutenant Robert King, who co-wrote a review that helped lead to Frashour's dismissal]," Leonard said, "I felt like, as I do now, that I needed to change my focus. Something needs to change in the Portland Police Bureau. And maybe this is the path we have to take to get there. If that's the case, then so be it."

Not long after, Nick Fish, a former labor lawyer, said he wished Leonard was in the chambers so he could personally tell him how "eloquent" his statement was. Fish said he wanted to make clear that the vote wasn't about the collective bargaining process.

"Much of what he said, I not only agree with, but the way in which he stated it was very eloquent and extremely thoughtful," Fish said, noting "we have both been involved in labor relations." "This is not an attack on the collective bargaining process. That's a diversion."

The council's challenge hinges on the correct legal interpretation of a 1995 state law that, in limited circumstances, gives government bodies permission to defy an arbitrator's ruling if enforcing that ruling—ie, putting someone back to work—violates public policy and/or case law on matters that include the use of deadly force.

Adams and City Attorney Jim Van Dyke both said the exceptions were crafted, in part, after an arbitrator overturned discipline for Portland Officer Doug Erickson after he fired his gun 20-plus times at a man who was running away from him in 1993—an incident, the city says, with eery echoes to the Campbell case.

The ERB, however, said the exception sought by the city was moot. Because not only did the arbitrator overturn Frashour's firing, but she also cleared him of misconduct in the first place. The arbitrator said it was reasonable for Frashour to assume—as Campbell reached toward his back while running away from another cop who shot him with beanbag rounds—that Campbell might have had a gun and might have been about to grab it to shoot first.

"It's important as a matter of general policy to get this matter before the Oregon courts," Van Dyke said. "As ERB acknowledged, its legal test, its interpretation, has never been considered by the Oregon Court of Appeals or the Oregon Supreme Court. It's not been accepted. It's not been rejected. It's never been considered whatsoever."

The vote was welcomed by community advocates as much as it was opposed by the PPA and its legal team, who accused the city of failing to uphold its contractual promises—which include accepting the outcome in an arbitration hearing as binding and final.

Dr. LeRoy Haynes, chairman of the Albina Ministerial Alliance Coalition for Justice and Police Reform, said the vote had a "greater implication" than just restoring a cop to his job.

"It raises a question in a democratic society on whether the elected democratic representatives on the Portland City Council have authority over a paramilitary organization, in the Portland Police Bureau," he said. "A hallmark of American democracy is the belief of civilian control over the military and law enforcement."

If Frashour returns after shooting "an unarmed distressed man surrendering," Haynes continued, it would make a "mockery" of the community's values and "create fear in every mother who has a mentally ill son or daughter."

Jo Ann Hardesty, a member of the AMA steering committee, echoed Haynes' remarks and warned that some people won't call the police if officers like Frashour, she said, aren't held accountable.

"My neighbors and I don't feel safe that a responding officer might come with an invincible attitude that he could do no wrong," she said. "If the community is faced with rolling the dice, some may choose not to make that call."

But owing to the long legal odds of convincing state judges to overturn an arbitrator, activist Joe Walsh, who first took the council to task for an "annoying" habit of announcing their views before actually listening to testimony, offered what he called a "plan B" that was also endorsed by Dan Handelman of Portland Copwatch.

"If you lose that case, assign that man to a desk with superglue. So he'll never be able to move from that desk."

Handelman also took on the issue of cost—the city has already spent close to $1 million hundreds of thousands of dollars in legal fees to keep Frashour off the police force—which is frequently held up by the PPA and other critics who've urged the city to stand down.

He mentioned the millions paid out in misconduct lawsuits over the years, including in other force cases by Frashour and other cops in shootings: "This is worth the investment up front, to save the money later."

The only really tense moment came right after Handelman spoke, when PPA counsel Will Aitchison (who's technically retired, but is seeing the Frashour case through) had his turn at the microphone. Though Aitchison was practically mid-word while delivering passionate remarks denouncing the city's decision, Adams bloodlessly cut him off when his allotted three minutes came due.

Later, Aitchison tried to quietly get some time to finish his remarks.

"Mr. Mayor, can I ask you a question?"

"No," Adams said. "You can return to your seat."

Aitchison, during his remarks, pointed out how little the PPA has gone to arbitration in discipline cases, backed up by a Mercury review this spring of the past 20 or so years of PPA grievances. And he reminded the city about its hand in choosing the arbitrator in the Frashour dismissal, the experienced Jane Wilkinson. He also talked about the testimony given during the arbitration hearing, from cops and trainers in defensive tactics, including Frashour's former instructors.

"They were all asked one question the bureau never asked in its investigation," he said. "Was Officer Frashour's use of force in compliance with the city's policy. And every one of them answered the question yes."

After the vote, the PPA's brain trust huddled among themselves in the back of the council chambers. Turner said he wasn't surprised but said, "You had five individuals who don't know the facts of the case" and hadn't seen or read all of the arbitration testimony and other exhibits.

I asked him about what Leonard and Fish had to say. Fish made the point that civil relations, in his mind, were the key to success for a labor leader. Turner said "None of the attacks are personal," but had a "no comment" and a smile when asked if he was surprised by the tenor of their remarks.

The best line came of the day came from accountability advocate Roger David Hardesty. Hardesty made a pretty good joke about Aitchison, who earned a stellar record defending cops in discipline cases and negotiating contracts during his 32 years as lead PPA attorney.

"Hire the police union negotiator," he suggested. "He's doing an excellent job."

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