Months after Portland took the first step in its long-shot appeal of Portland police officer Ron Frashour's reinstatement by an arbitrator, the Portland Police Association this week submitted a tart response that pokes the city for seeking a system that would let it arbitrarily "refuse to comply with any arbitration award in which the city loses."
The city, in its opening 82-page brief (pdf) with the Oregon Court of Appeals, filed in January, had argued that both an arbitrator and the Oregon Employment Relations Board erred in reinstating Frashour—fired in 2010 for shooting Aaron Campbell. City attorneys wrote that neither the ERB nor the arbitrator correctly applied an obscure 1995 state law that, the city argues, prevents arbitrators from violating "public policy" when making orders in deadly force cases.
The city says the law applies because the city ruled that Frashour violated city policies when he shot the emotional, unarmed Campbell in the back—believing, he later said, that Campbell was armed and reaching into his waistband for a gun.
Anil Karia, the PPA's counsel, answered that claim in a 63-page brief (pdf) filed Monday and since obtained by the Mercury.
The city suggests that if the arbitrator agrees with the city's conclusion that Officer Frashour violated city use of force policies, then the Arbitrator's award is consistent with public policy. But if the Arbitrator disagrees with the city and holds that Officer Frashour did not violate any city policy, then her award violates public policy because she did not defer to the city's decision. In other words, the city argues that it can make an incorrect disciplinary decision, one that might be motivated by political concerns or driven by an inadequate investigation, and that its decision must be upheld by an arbitrator. That can't be right.
For the PPA, the nitty-gritty of the rebuttal mostly starts and ends on one major point:
If arbitrator Jane Wilkinson had found Frashour guilty of misconduct but still reinstated him, the city might have a legal leg to stand on. But because Wilkinson cleared Frashour of misconduct and/or policy violations, pronouncing him "not guilty," Karia cites a case out of Deschutes County and says "the arbitrator's award reinstating Officer Frashour was enforceable on its face."
The public policy statute the city cites, SB 750, "is obviously designed for cases where the employee's misconduct has been accepted by an arbitrator," Karia writes, "yet the arbitrator has elected to mitigate the employer's discharge decision," Karia writes.
Contrast that to the city's argument, in its brief, that a contract calling for binding arbitration shouldn't get in the way of punishing cops who use excessive force: "It does not matter whether the parties agreed to submit the controversy to binding arbitration. [SB 750] reflects the Legislature's judgment that the public interest precludes a public employer from contracting away some responsibilities it owes to the public," Deputy City Attorney Harry Auerbach wrote. "The arbitrator did not give due deference to the interpretation and application by the city of Portland and its chief of police of the city's own policies regarding the use of deadly force by its police officers."
This same debate is playing out in the Legislature, or at least was playing out. SB 747, pushed by civil rights lawyers and accountability advocates Greg and Jason Kafoury, seeks to remove any mystery over the issue of whether police chiefs and mayors have the last word when it comes to deadly force discipline. That bill, however, remains stuck in committee.
And the appeal won't be decided any time soon.
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