MAYOR SAM ADAMS delivered on a first-in-Portland promise on Thursday, April 12: Defying the will of a state arbitrator, the mayor officially refused to rehire Ron Frashour—the former cop who shot and killed an unarmed Aaron Campbell in January 2010.
Adams pointed to a little-tested state statute that says arbitrators' decisions can be overturned if they fail to meet "public policy" standards—and he said he wanted the state Employment Relations Board (ERB) to weigh in on a ruling that Adams says mistakenly labeled Campbell's shooting "justified."
But Adams may not like how the rest of the script plays out.
On Friday, April 13, the Portland Police Association (PPA) filed a formal complaint with the ERB, accusing the city of breaking state labor laws. And legal experts and other observers, even those critical of the power of police unions, tell the Mercury that the PPA is likely to prevail.
"If I were a betting man," says Henry Drummonds, a prominent legal advisor, who helped then-Governor John Kitzhaber negotiate the law Adams cites, ORS 243.706(1), "I'd bet the union gets the [arbitrator's] award enforced."
Worse, observers say the city is avoiding a bigger issue: What it needs to change—either in its police training regimen or labor contract with the PPA—to make sure this fight doesn't spring up the next time a Portland cop is fired for the inappropriate use of deadly force.
Here's a quick look at some of the issues in play:
Why is the city's challenge on shaky ground? The city will have to convince the ERB that arbitrator Jane Wilkinson's March 30 ruling in favor of Frashour failed to "comply with public policy requirements" because what Frashour did was "unjustified."
Frashour shot Campbell in the back at the end of a long standoff—a decision he made after Officer Ryan Lewton fired a beanbag at Campbell's back, sending him running and reaching in pain toward his waistband.
But Drummonds, also a labor law professor at Lewis and Clark, argues that's generally a "very narrow" point to prove. And Wilkinson's ruling—clearing Frashour, in part, by saying he did precisely as he was trained—doesn't make that any easier.
"The arbitrator has determined that the police officer followed his training instructions," says Drummonds. "The violation has to be clearly defined."
Another hurdle? Whether the ERB will be influenced by other agencies that reviewed the Campbell shooting and cleared Frashour.
Wilkinson didn't consider favorable rulings by two state agencies, the Oregon Employment Department and the Department of Public Safety Standards and Training. But ERB might.
"If the record expands," says one observer closely following the case, "it favors the union here."
Can the city change its police training?Drummonds, like others, says there's "a bigger problem" in play than legal wrangling.
"Portland police commanders need to get their training policies in order," he said, "so there's a clearer standard for officers to follow."
In Frashour's arbitration hearing, top police training instructors all testified that he followed his training: Frashour didn't have to confirm whether Campbell had a gun before firing—because, according to Frashour's testimony, he was afraid Campbell was reaching for a gun and was heading toward a car that would have provided him cover to shoot.
The bureau, like most around the country, takes as gospel a principle called "action/reaction" that says cops, if they wait to see a gun, will always be slower to react than whoever decides to fire at them.
But a 2011 report focusing on the Los Angeles County Sheriff's Department turns up an alarming statistic: In a recent six-year span, deputies who shot someone without waiting to see a gun wound up shooting an unarmed person 61 percent of the time. In training scenarios that emphasized restraint, deputies managed to hold their fire and keep that number to zero.
"We should be teaching officers how to be certain someone is armed," says Portland attorney Elden Rosenthal. "They are training police to be trigger-happy."
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."