A bill filed this month on behalf of two prominent Portland lawyers and police accountability advocates boasts something of a lofty goal in a Legislature that's largely very close to labor interests: It would strip away arbitration appeals for Portland cops disciplined over the use of force—leaving the mayor and police chief as the last word outside the court system.
SB 747 was submitted by Senator Chip Shields, a Democrat representing North and Northeast Portland, on behalf of father-and-son activists Greg and Jason Kafoury. The pair have fashioned a reputation for hard-nosed crusading on police misconduct—winning hundreds of thousands of dollars in judgments and settlements against the police bureau in cases involving force and civil right violations.
The bill is due for a hearing Wednesday in the Senate's general government committee, which Shields runs. It would ban the city, when negotiating contracts with the Portland Police Association and Portland Police Commanding Officers Association, from agreeing to allow binding arbitration in discipline cases that involve the use of force.
"He's very concerned about the city's police bureau and how they handle the use of force," says Amanda Hess, a legislative aide in Shields' office. "He believes the bill needs airing in committee."
It comes nearly a year after arbitrator Jane Wilkinson ordered Portland to reinstate Ron Frashour, the cop fired in 2010 for shooting Aaron Campbell in the back with his AR-15 rifle. Wilkinson found Frashour committed no misconduct. (The bill was first reported by Willamette Week.)
The Oregon Employment Board then slapped the city last fall after it refused to abide by Wilkinson's order—arguing, so far in vain, that the reinstatement runs afoul of "public policy" and violated a largely untested state law written after an arbitrator overturned discipline in a 1993 Portland police shooting. Frashour is back with the bureau, and the city has since filed with the Oregon Court of Appeals.
The city has a history of losing in high-profile arbitration cases—although most discipline cases, as the Mercury reported last spring, rarely end up in arbitration. As of last April, according to city data obtained through a public records request, only four cases since 2002 actually made it into a full-blown arbitration hearing.
A hearing is a big deal for a bill that's likely not going to make it out of the Legislature, certainly not this session and maybe not ever. The PPA is expected to put up a big fight, especially if the bill manages to stay alive and somehow squeeze its way into the House. Hess, Shields' aide, declined to comment specifically on whether her boss is lobbying colleagues in support of the bill.
The obvious line of attack is the chance that a mayor or police chief might punish a cop out of incompetence or for political reasons—like, say, a whistle-blower.
"The people supporting this bill have to have an answer other than 'Trust the city of Portland,'" one observer tells the Mercury. "Because the Legislature doesn't."
Jason Kafoury says he and his dad will try talking to other lawmakers, like North Portland's Representative Lew Frederick. Greg Kafoury invoked federal reform of the police bureau, over its unconstitutional treatment of people with mental illness, as an indication that a system with arbitration hasn't been working.
"There's been a great gnashing of teeth over the fact that there's no political control over the officers, so there's no real accountability. This is an agency that's just been investigated and found wanting by the federal government," he says. "This would put the elected officials back in charge, make them responsible for policing."
Greg Kafoury also says the city doesn't have to wait for a bill to become law. If he wants to, says Kafoury, Mayor Charlie Hales can insist on removing binding arbitration from its police contracts.
"The bill would require the city to do the right thing," Greg Kafoury says. "I'm hoping the city would do the right thing without having the law changed in Salem."
A spokesman for Hales, Dana Haynes, says the city is obviously watching what happens but that Hales isn't commenting on the bill. "It would not be acting in good faith to start talking in the media about what things we think are bargaining chips and which aren't."
But don't hold your breath hoping the city might try this on its own. Last year, I interviewed Henry Drummonds, an adviser to Governor John Kitzhaber who helped negotiate the state law on arbitration appeals the city is challenging, and others to talk about the legal issues behind the city's challenge. Here's how the resulting story closed:
Can the city strip binding arbitration from its police contract? The city could try that when the PPA's contract is up for renegotiation next year—essentially drawing the distinction that police officers, because they are allowed to use deadly force, are not like other union workers.
But it's rare and politically difficult. Observers say it would certainly drive the PPA to bow out of contract talks. And that would mean, ironically, that an arbitrator would step in and settle the dispute.
And if the city could manage it, what then? Would the police commissioner's decision be final? Or could a civilian review board be drafted—along the lines of the city's Citizen Review Committee, which already weighs in on discipline appeals before they hit arbitration?
Disputes would probably end up in court—much like where the Frashour case seems headed.
"It isn't required," Drummonds says of arbitration. "It's just an almost universal standard.
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