- Illustration by Glenn Harvey Aguilar
And, unsurprisingly, he was joined in his opposition by the leaders of the two unions that represent sworn officers, the Portland Police Association and the Portland Police Commanding Officers Association. Both accused the IPR of sidestepping city labor contracts by changing the discipline process and offering up a Trojan horse leading to the "civilianization" of police punishment.
Those concerns came during a four-hour Portland City Council hearing that Mayor Charlie Hales almost immediately said would be continued, given the complexity of the proposed code changes, the skepticism from cops, and also the tepid response from several police accountability advocates who remain concerned the proposals don't go far enough.
Hales, in light of all those comments, decided to put the issue off until early December. But that was almost a formality, after he'd initially suggested it go on hold indefinitely. He even raised the possibility of a "stakeholder" panel. And he didn't allow IPR Director Constantin Severe any time to answer whatever issues were brought up. The appearance was that the issue isn't high on his list of priorities.
"It needs work," Hales told the Oregonian's Maxine Bernstein as she followed him out of council chambers.
Hales had previously declined to talk about the proposals, with his office saying several days ago that it was still weighing them internally. His chief of staff, Gail Shibley, told me tonight she wasn't personally involved in any recent discussions.
Reese, invited by Hales to speak early in the hearing, spent the most time out of anyone giving his sense of the proposal's many cons.
He actually cited the federal government in his remarks—as an example of why the city should hold back on making changes. He said he broadly agreed with proposals that fit the letter of a pending legal settlement between the DOJ and the city—including what he called an "aspirational" 180-day deadline for investigations. But he resisted proposals that went above and beyond what that document required and said it was too soon to proceed after an oversight overhaul a little more than three years ago.
"We're doing good work," he said. "I recommend giving the bureau time to adapt before making additional revisions that are not part of the Department of Justice settlement."
We broke the new changes down in last week's paper and hinted at some of that expected opposition.
In some cases, the policy changes would reflect what's become a tacit practice. Despite rules that say only police can directly interview other cops—technically, an IPR investigator must ask an internal affairs investigator in the same room to repeat questions to an officer—the bureau has been casually letting that slide.
In others, the changes would require some major shifts in how the bureau works. For the first time, the bureau would have to tell citizens when a police chief's discipline veers from the recommendation of the bureau's citizen-populated Police Review Board (PRB). The chief would also have to explain his decision to depart from the PRB to the police commissioner. And public reports on review board hearings involving police shootings and in-custody deaths would need to name the officers and the victims.
The chief was backed by several senior officers, but joined in front of council by Captain Dave Famous, who presides over the bureau's internal affairs division. In fact, Hales insisted they go point by point through their objections—occasionally facing pushback from commissioners Amanda Fritz, Steve Novick, and Nick Fish.
• First, Reese said he doesn't think IPR should have power over non-sworn police employees who also oversee cops.
As I revealed in last week's story, this change is all about Mike Kuykendall, the chief's former band mate and right-hand man who had to leave the bureau amid a text messaging scandal involving an internal affairs probe in a harassment case.
Kuykendall, as the bureau's civilian director of services, oversaw internal affairs. And that meant Kuykendall, until he resigned, was in charge of a probe that involved him as a player. And because he wasn’t a cop, he was out of IPR’s reach.
Reese's beef? He argued, with a straight face, that the change didn't result from "a specific issue." But he did say it would slow down investigations by adding new employment rights to people who don't already have them.
• Reese also doesn't think IPR investigators should compel testimony—perhaps the most important element in what the IPR and its boss, City Auditor LaVonne Griffin-Valade, have proposed.
Reese invoked the unions, mostly—comments echoed, eventually, by PPA president Daryl Turner and PPCOA President Bryan Parman. He worried about the prospect of an unfair labor practice complaint. He also said the policy would lead to "unintended consequences," though he was vague about what those might be.
In fact, in what could be grounds for a grievance, Famous confirmed something else I'd reported: that the bureau has already been letting IPR investigators directly question cops, with those cops compelled to answer under his authority. Famous called current rules requiring a police bureau intermediary insane. It's just that Famous prefers keeping his workaround ad-hoc instead of making it a formal part of the code.
"Authorizing the ability to compel is more restrictive than what's in the DOJ agreement. The word compel is not in there," Famous said.
Earlier in the hearing, Severe had tried to preempt those concerns by pointing out that the city already allows the civilian Bureau of Human Resources to compel testimony. Severe also had told council that he read through the PPA's contract with the city and found nothing preventing IPR from doing that work—and offered to supply an email chain from the city attorney's office backing him up.
Fish tried to ask Reese about the conflicting interpretations on how the changes might affect labor relations.
"I'm concerned we have conflicting legal advice on what is a very important issue," he said.
Reese dodged Fish's question, replying only with: "The current system is working well."
Severe, in his remarks, said that even if the council does agree with Reese and the unions, that it still needs to do something to give the IPR that power—minding the idea that the DOJ has ordered IPR to do "meaningful" investigations.
"Bargaining season is open," he said. "Folks need to do what they need to do. When the DOJ is talking to the city and asking me directly if we're in complliance, if they ask me that question now, I would say no."
Worth noting: The PPA grieved some of the last round of changes to the IPR, in 2010, on many of the same grounds. As I reported later, it eventually gave its assent as part of negotiations on a contract that paid cops millions starting in early 2011.
• Reese and Famous worry that the proposal "fundamentally alters" IPR's mission, from an agency meant to supervise and advise on police investigations into an agency that would conduct its own probes independent of internal affairs. (IPR findings would still be submitted to the current chain of accountability, ending with a discipline finding from the police chief.)
"I met with officials with the DOJ and discussed the current state of affairs," Famous said, quite passionately. "And not one attorney, no one from the United States government, told me they questioned the quality of IA investigations. We need to make sure we have safeguards."
• Reese doesn't want the 180-day deadline enshrined in code. Just because the DOJ likes it, he said, doesn't mean Portland should be "putting a bright line" in its laws. He's worried about losing in arbitration cases, potentially. Once again, we heard "unintended consequences." (Never mind that inconsistent discipline and training have long been bigger issues.)
• Reese doesn't want to add information to the biannual public reports the bureau produces on cases that go before the Police Review Board.
Though the officers' names in those reports are kept confidential, and the reports already include whatever discipline the PRB members seek, Reese worries that also sharing the discipline he actually recommends would somehow violate labor contracts by "embarrassing" officers. As if that would be the piece that tips the reports over into embarrassment, given all the other information that's publicly available.
As we reported this winter, after obtaining an apparently one-time matrix comparing the chief's and PRB's recommendations, the chief in recent months saved the jobs of three cops who'd been targeted for dismissal. That finding was an impetus for the proposed code change. Reese softened discipline in a substantial segment of cases sent for his review.
• Reese really dislikes having to start explaining to the police commissioner, in writing, why he disagrees with the PRB's findings.
He listed several reasons in a bid to fend off what seemed like a clearly interested council.
First, he said the mayor already knows why he might have softened whatever discipline was sought by the PRB, because the mayor or a mayoral aide already attends what's called a mitigation hearing—a cop's last, best chance to make his case in front of the chief.
"I'm writing a letter to someone who's been there," Reese said.
Those memos wouldn't be automatically part of the public record—and, as such, would detail things like medical issues or relationship issues, whatever a cop might offer for mercy. But Reese worried they would find their way there anyway, if journalists request them—or if they wind up being used against the city in a lawsuit or in arbitration.
"It'll also have a chilling effect on employees giving that information," Reese said.
But Novick and Fritz weren't having it: "I think that idea doesn't inspire public confidence," Novick said.
He said public records laws already allow sensitive information to be redacted when documents are released. Fish also was skeptical, saying the chief could just list general categories, like "medical issues," instead of specifics.
Both Novick and Fritz suggested that having the chief's thinking in writing would help a mayor review his or her own work in police discipline cases over time, and also give a new mayor or chief insight into the thinking of a past mayor or chief.
Turner and Parman's comments, coming deep in the hearing, played many of the same notes first struck by Reese.
"Until bargaining has taken place, these changes should not—and legally cannot—be implemented," Turner said, saying the "cons" in the package "far outweigh the pros." He also accused the IPR of rebuffing invitations to talk about its role in the discipline process with the PPA.
IPR already "has an unprecedented level of involvement and access in the Portland Police Bureau’s affairs," Turner told the council in remarks Hales asked him to submit in writing. "The changes would upset this delicate balance by empowering IPR to take over the bureau’s duties and obligations in the discipline process."
The auditor's office lined up some support, from the Center for Intercultural Organizing, Disability Rights Oregon, and the Urban League. But, interestingly, most of the advocates who spoke also asked for a delay—not because they agreed with Turner's fears, but because they still want to see them come true.
Some think the system is too weak as currently crafted and want the IPR to use the federal settlement to push for more oversight of the bureau. They want new powers for the Citizen Review Committee to decide on misconduct on it own, not just review the police bureau's findings. Others want a completely civilian system ripped away from the bureau.
"These changes fall far short of the comprehensive overhaul our police accountability structure deserves," said Becky Straus of the ACLU of Oregon. "What we’re putting in is piecemeal change within a structure that even the DOJ has said is self-defeating."
Though the delay likely means Hales won't push even the changes advocates panned as tepid, some were happy for the chance to keep pressing their case.
"If you go back and read our testimony," an exuberant Dan Handelman of Portland Copwatch told me soon after the hearing, "that's exactly what we asked for."