- Denis C. Theriault
- Police Chief Mike Reese, from left, with human resources director Anna Kanwit and Portland Police Association President Daryl Turner.
"You bring in the public to testify at this point?" Walsh, a retired labor organizer for the International Longshoremen and Warehouse Union, nearly bellowed. "For you to overturn this contract, you'd have to kick in the teeth of your negotiators. You bring us in at the wrong time. The chances of you not voting for this is zilch. Nada."
And so it was a little while later. City commissioners, with some mention of minor reservations, unanimously approved a new PPA contract that police accountability advocates loudly and clearly accused of falling short. And they also approved an agreement, first teased at a press conference last month, that ends what loomed as a protracted PPA challenge to a reform deal negotiated last year between the city and US Department of Justice.
Together, the two votes mean US District Judge Michael Simon can move ahead to considering those reforms—holding a "fairness hearing" for community members on the deal next February. And Portland can continue making changes meant to answer a federal finding that our officers to regularly use excessive and unconstitutional force, especially against people who seem mentally ill.
"We do need to settle this contract to move forward," Commissioner Amanda Fritz said, "and therefore it's the right thing to do."
The terms are pretty much as we've been reporting all along.
• Holiday comp time cashouts will go away for officers, leading to a potential $1.5 million hit first reported by the Mercury, and helping pay, ongoing, for a raft of new premiums and bonuses. Not including cost-of-living increases already built into city forecasts, the contract is "revenue neutral."
• The police bureau can officially implement new use of force, Taser, and performance policies (first aired yesterday by the Mercury) that make as clear as ever that officers can face sanction not only for how they use force but also for the decisions that put them in that position.
• Performance reviews for cops will be resurrected, but not for disciplinary purposes. Those reviews also won't include all complaints against officers, just those that have been "sustained."
• Cops who can prove they inadvertently showed positive for steroids or prohormones in random testing, because maybe steroids were an unlabeled ingredient in a legal supplement, can escape immediate dismissal. Those officers must pay to have a laboratory examine their supplement. And they can still face termination or some other discipline. It just won't be automatic. (To date, no officer has tested positive for drugs or steroids, human resources director Anna Kanwit said.)
• Maybe most important to city officials, an "advisory" discipline matrix can be finished and used by the police chief and police commissioner. The matrix will spell out a range of consequences for specific failures and/or acts of misconduct, and for a history of mistakes or bad behavior.
The PPA, as part of the global agreement it's reached with the city, won't challenge the city's ability to consult the matrix. It still can fight, however, any individual discipline decision—just as it's always been able to do. The bureau has struggled to defend dismissals and terminations in front of arbitrators in part because the PPA has been able to show inconsistent punishments for similar actions. (And also, in part, because the constitutional standard for force makes it hard to prove that an officer's actions weren't reasonable.)
Citing the presumed benefit of "consistent discipline, Commissioner Steve Novick offered, "I also hope we'll stop losing so many arbitrations."
PPA President Daryl Turner spoke about "collaboration" before the vote, noting the long legal path that got the two sides inching toward a deal. But advocates for police accountability still railed at the agreement and the things it didn't change. Another fight, in fact, is looming later this afternoon when the council takes up proposed reforms to the Independent Police Review Division.
Critics were especially stung the city didn't get the union to budge on the so-called "48-hour rule" generally giving cops a two-day window before they must submit to internal interviews after the use of force.
Testimony at the hearing made clear that the rule has some exceptions—when the chief believes waiting could jeopardize an investigation or if criminal conduct is involved.
But advocates weren't swayed. Shauna Curphey of the National Lawyers Guild referenced a letter (pdf) she sent to the city in October arguing that city officials didn't need the union's permission to do away with that rule, citing past state Employment Relations Board rulings.
"This means the city chose to keep that on the table," Curphey said, "instead of taking a public stand for accountability. You missed an opportunity by not negotiating it."
Kanwit, prompted by questions from commissioners, agreed that Curphey could partly be right. But Kanwit said interviews involving the use of force could be seen differently by state regulators. She also said it wasn't worth holding up the contract for a provision that would certainly be challenged by the PPA and take months to have settled by the ERB.
Advocates questioned why the city didn't do more to ensure that IPR investigators be able to compel interviews with officers. That's going to come up in the hearing later today, and the agreement with the PPA still allows it the right to challenge whatever council decides.
"We believe there have been some missed opportunities," said Dr. T. Allen Bethel, vice chairman of the Albina Ministerial Alliance Coalition for Justice and Police Reform.
Bethel, and others who spoke, also said he was troubled by the advisory nature of the discipline matrix. He said the chief could always veer from the matrix. (Although, something else coming up this afternoon, changes to city code proposed by the IPR would force the chief to explain in writing any time he deviates from whatever discipline range the matrix suggests.)
"If it's simply an advisory tool, rather than something that will give certainty to police officers and the public," said former state Representative Jo Ann Hardesty, a member of the AMA's steering committee, "that's a mistake."
Commissioner Nick Fish, hearing some of those concerns, tried to put city officials on record with a few assurances. He got Police Chief Mike Reese to promise that the police commissioner, when reviewing promotions, would be able to see cops' performance reviews. He made clear the city could choose to reopen the contract to take up changing the 48-hour rule. And he reminded everyone what Simon could do if he didn't like the deal that the city, feds, and PPA have just entered into.
Simon can't make changes after next year's fairness hearing. But he can reject the deal wholesale—indirectly pressuring the union and city and feds to alter pieces of the deal to his satisfaction. The threat of a bench trial next year with Simon in greater control, after mediation failed, proved a powerful incentive for all sides to dig down and overcome whatever roadblocks had been in place.
"We fear officers will conduct themselves in inappropriate ways, either with force or words," Mayor Charlie Hales said, "and not face the consequences. So we insure against our fears. But we also have to think about our hopes [that officers will act in exemplar fashion]. That's what we now have a better chance of having."