As controversy has swirled over the particulars of a forthcoming police body camera policy in recent weeks, Mayor Charlie Hales has repeated one claim several times: Hales says the city's legal experts believe that the city's rank-and-file police union, the Portland Police Association (PPA), has an ironclad right to hash out the policy as part of its contract.
"The city attorney says it's a mandatory subject of bargaining," Hales told the Mercury last week.
That's a strong position for the union to be in—it ensures the PPA has leverage over the policy, and can file a grievance with the state if it has concerns about how body cameras are being implemented.
But it turns out that Hales' statement isn't entirely accurate.
In fact, in a legal memo [PDF] sent to members of Portland City Council today, Deputy City Attorney Mark Amberg writes that city attorneys "would argue that implementation of a body camera policy is a management prerogative that is permissive for bargaining..."
It's a way of saying Amberg doesn't believe the city's automatically required to hash out a body camera policy as part of the union contract. Amberg also writes in the memo it's not clear the city has to bargain over when officers are able to review footage they record on body cameras, which has proven to be hugely controversial.
But the city's giving the PPA bargaining power over body cameras anyway.
A "tentative agreement" [PDF] between the city and the PPA—which is scheduled to come up for a vote tomorrow morning, along with a new contract—specifically states that "PPA retains all collective bargaining rights over the [body-worn camera] Policy, to include the right to file grievances and/or unfair labor practices."
The agreement also says the parties "specifically agree that the subject of review of audio/video... is mandatory for bargaining."
The reason for these concessions lies behind the rest of Amberg's memo. He writes that, though city attorneys don't think body cameras need to be bargained, they have no faith the state's Employment Relations Board (ERB) will side with that opinion if it's put to the test (and it would be).
"We think there is a significant risk the ERB would determine that at least parts of the design and implementation of a body camera policy have impacts on mandatory bargaining subjects and, therefore, would be mandatory for bargaining," Amberg's memo says. "We think there is also a significant risk the ERB would find that the that the review of audio/video by officers—whether under a body camera policy or otherwise—impacts mandatory subjects of bargaining and, therefore, is mandatory for bargaining."
The distinction between Hales' statement (that bargaining the body cam policy is absolutely mandatory) and Amberg's opinion (that the city has an argument bargaining isn't mandatory, but it would likely fail) is important for police accountability advocates who've raised concerns about the development of the policy.
Those concerns are especially centered around "Section 9" of a draft policy recently unveiled by the city. The section says officers are free to view footage from their body cameras before writing reports in most instances, a provision that's common to policies around the country, but which is frowned upon by a host of national organizations.
"We believe there are valid legal arguments that at least portions of Section 9 are permissive subjects of bargaining," Kimberly McCullough, legislative counsel for the ACLU of Oregon, wrote in an October 4 email to City Council. "This is important, because if the provisions of Section 9 of the body camera policy are mandatory for bargaining, they cannot be changed by the City without bargaining with the police union. If they are permissive, the City can change the policy without having to give the union anything in exchange."
Here's the crux of why this is important: Maybe Mayor Hales and his administration do not wish to make the argument that Section 9 is a permissive subject of bargaining. But a new mayor, Ted Wheeler or one of his successors, may wish to alter Section 9 so that body cameras will better serve the community as an accountability tool. That new mayor may share our opinion that all or at least parts of Section 9 should be a permissive subject of bargaining, because it is primarily tied to the promotion of the health, safety, and welfare of the people of Portland. But that new mayor will be precluded from making such an argument by this agreement.
Dan Handelman, of Portland Copwatch, puts it another way.
"They gave away the store by putting it into the tentative agreement with the police association," Handelman said Tuesday evening. He said it was "pure speculation and a very poor way to drive public policy" to just assume the city would be unsuccessful before the ERB.
But the matter may be moot by lunchtime Wednesday. After several of the most contentious hearings in recent memory (see here, here, and here), City Council is finally scheduled to vote on the new contract tomorrow, as well as the tentative agreement that makes clear body cameras will be up for bargaining.
There appear to be enough votes on council to pass that agreement, but there's also almost no chance that hearing goes smoothly. As of Tuesday night, activists were camped out in front of City Hall in protest of the police agreement, and were promising to flood Wednesday's hearing as they have others (#bridgecrane).
#bridgecrane The tents are up. pic.twitter.com/ZTmdlv8lVb
— Bridge Crane (@Bridge_Crane) October 12, 2016
#BridgeCrane #OccupyCityHall pic.twitter.com/lmliYXB1Mf
— Tiffany Kraft (@TiffanySKraft) October 12, 2016