Portland police officers have been fired for sending threatening emails, lying about crashing a patrol car, and for having sex while on duty. But cops who are accused of committing far worse offenses—from fatally shooting an unarmed man in the back, to refusing to take a man who officers had beat nearly unconscious to a hospital—have kept their jobs, even after mayors and chiefs of the Portland Police Bureau (PPB) have wanted to remove them from the force.

“This has created an atmosphere within the bureau that you can do anything you want, and you will not be held accountable for any actions,” says Dr. T. Allen Bethel, a civil rights activist and president of the police accountability group the Albina Ministerial Alliance. “Especially if those actions kill.”

Facing diminishing public trust in the city’s ability to discipline its police force, Portland’s elected officials are pushing the Oregon legislature to pass a bill that would close a legal loophole that prevents the firing of officers who gravely injure or kill members of the public.

It’s an issue that has divided those in law enforcement. While union leaders representing rank-and-file police argue that the legislation undermines officers’ rights, police leadership—including the PPB’s chief and Portland’s mayor, who serves as police commissioner—say the bill will allow them to discipline their employees equitably and improve workplace morale. Meanwhile, some community leaders who have long demanded accountability for cops, say that lawmakers’ plans are a too-little, too-late solution that doesn’t address the actual problem.

The future of the legislation is uncertain. But the discussion of its merits—a conversation that coincides with contract negotiations between the city and the PPB’s union—has brought renewed attention to a question Portland has struggled to answer for decades: How can the city fairly penalize officers who kill or injure members of the public?

Those in leadership positions at the PPB point to a single tool that, they say, has routinely undercut their attempts to discipline problematic officers: arbitration.

“The current system of arbitration... undermines the chief’s ability to hold officers accountable to the high standards of our profession,” said PPB Assistant Chief Chris Davis at a recent hearing before Oregon’s Senate Judiciary Committee.

When a PPB chief chooses to discipline an officer, the decision can be challenged by the police union—in most cases, that’s the Portland Police Association (PPA), the union representing all 950 of the bureau’s rank-and-file officers. When the PPA challenges a disciplinary decision made by the PPB, the case goes to an arbitrator—a private attorney recommended by the state’s employment relations board—to settle the disagreement out of court.

In Portland, every time a police chief or mayor has decided to discipline or fire an officer for inappropriate use of deadly force, the PPA has challenged the decision, thus sending the matter to arbitration. And every time, the arbitrator has overturned the police chief or mayor’s decision.

"This contributes to distrust of the discipline system among our officers, and it leads to public distrust in our ability to hold our own people accountable, which is fundamental in a democracy.”Chris Davis, Assistant Chief of the Portland Police Bureau

In 2003, PPB officer Scott McCollister shot and killed Kendra James, an unarmed Black woman, during a traffic stop. The city suspended McCollister without pay for nearly six months—only to have an arbitrator overturn the decision and order the city to reinstate McCollister, erase the suspension from his record, and pay all lost wages and benefits.

In 2007, then-mayor Tom Potter fired PPB lieutenant Jeffrey Kaer for killing Dennis Young, an unarmed man, after Kaer approached his parked car. A year later, an arbitrator reversed his firing; Kaer returned to work shortly afterward, with a check for backpay.

A similar scenario played out in 2012, when an arbitrator overturned the termination of Ron Frashour, the PPB officer who shot and killed Aaron Campbell, an unarmed Black man. Later that year, another arbitrator overturned the two-week suspensions of Chris Humphreys and Kyle Nice—two PPB officers who severely beat and tased James Chasse, a man suffering from schizophrenia, and then neglected to take him to a hospital, directly leading to Chasse’s death later that day.

In these cases, arbitrators sided with the police union after finding past situations where PPB did not discipline officers for similar conduct. Arbitrators are allowed to use these contradictions as precedent, thus undoing PPB’s more recent decisions.

“Case after case, excessive use of force in Portland has been dismissed—not because the officer did not use deadly force, but because we allowed that use of force in the past,” says Oregon Sen. Lew Frederick, who represents North Portland. “That can’t be our standard.”

In 2019, Frederick introduced a bill that would prohibit arbitrators from overturning a discipline decision made by a police chief or police commissioner. Rather than letting arbitrators determine punishment based on prior precedent within a police department, Frederick’s bill would prioritize a “discipline matrix”—an established document that dictates what kind of punishment will be imposed for different levels of misconduct. Portland adopted a discipline matrix in 2014 and remains the only jurisdiction in the state with one in place.

Frederick’s bill passed the Senate, but was stalled in a House committee chaired by a former PPA president. Frederick, who reintroduced the bill in the legislature’s 2020 session, says an outside arbitrator’s opinion shouldn’t override discipline rules that are laid out in a legally binding discipline guide.

He’s not alone.

“As management, we need a clear discipline guide,” says Scott Winkels, a lobbyist for the League of Oregon Cities, a nonprofit that advocates for cities’ needs at the legislature. “And for officers, it provides clarity. So if they commit an act that is serious, they’ll know exactly what the consequence will be. And line officers will know what standards their colleagues are going to be held to.”

PPB’s Davis says that to gain the trust of his employees, the discipline system has to be “predictable and consistent.”

“The current system causes unpredictability and different outcomes for discipline cases,” Davis told the Senate committee. “This contributes to distrust of the discipline system among our officers, and it leads to public distrust in our ability to hold our own people accountable, which is fundamental in a democracy.”

Davis is a member of the City of Portland’s bargaining team, which began meeting with the PPA in early February to negotiate the union’s contract. The city is expected to push PPA to include stronger discipline guidelines in its new contract. Frederick’s bill could make those negotiations easier—slightly.

Since Frederick’s legislation is modifying an existing policy within the union contract, the politically powerful PPA still has to approve his bill’s language before it goes into effect. The City of Portland, the PPB, and the Multnomah County Sheriff’s Office have all submitted testimony in support of the bill.

The PPA, which opposes the bill, did not respond to the Mercury’s request for comment.

The bill is co-sponsored by Rep. Janelle Bynum, who represents parts of East Portland. Bynum says that in the absence of state-level standards for police discipline, the legislation is a step toward; more equitable treatment of Oregon police officers.

“This is about the good cops, the ones putting their lives on the line. It’s about giving them a fair shot at rising to the top,” Bynum says. “This is so critically important for upholding professional standards. I don’t think you can guarantee real justice for police officers and the public without a consistent level of justice.”

"I don’t think you can guarantee real justice for police officers and the public without a consistent level of justice.”Janelle Bynum, Oregon Representative

Police union supporters, however, are using a similar argument to oppose the legislation’s proposal. In his testimony against the bill, Michael Selvaggio, a lobbyist for the Oregon Coalition of Police and Sheriffs, said that independent arbitrators keep police leadership from making biased or politically charged discipline decisions.

“We’re in favor of making the process standardized and predictable,” Selvaggio told the Senate committee. “That’s why we’re urging a ‘no’ vote.”

Attorney Will Aitchison, who served as PPA general counsel until 2013, believes the legislation misses the mark.

In Portland, the vast majority of police discipline recommendations made by the police chief or mayor aren’t challenged by the PPA.

“Thing is, the bureau usually gets it right,” Aitchison says, “and the union looks at the case and doesn’t challenge it.”

The cases that do make it to arbitration, however, are generally the most egregious—and often the ones in which politicians and members of the public have demanded that an officer be punished or fired.

As Aitchison points out, however, not all headline-grabbing cases will be impacted by the proposed policy. Frederick’s legislation would only apply to instances when an arbitrator agrees with the city that misconduct occurred, but doesn’t agree that city’s punishment is appropriate for the offense.

In each of the cases mentioned earlier in this story involving officers’ punishments being reversed, arbitrators concluded that no discipline was necessary. Meaning that, in each of these cases, Frederick’s legislation wouldn’t apply.

Aitchison said that in his 35 years representing the PPA in arbitration, he never encountered a situation in which arbitrators agreed that misconduct occurred, but disagreed on the appropriate punishment.

According to the Portland City Attorney’s office, there’s only one case that has occurred since the introduction of PPB’s discipline matrix in 2014 that would have been impacted, had this new bill had been in place at the time. The city declined to share any more details about that case.

“That’s the supreme irony about this legislation,” says Aitchison. “It’s trying to solve a problem that doesn’t exist.”

Frederick disagrees. He says it’s unfair to compare past discipline decisions against the suggested legislation, and that it’s more important to think of the policy as one of several incremental tools that, when combined, can strengthen officer accountability.

“Police chiefs are telling us that this is what they need to do their job,” says Frederick. “This isn’t going to solve everything, but it’s an attempt to begin making changes.”

Passing this bill, the bill’s supporters argue, will also encourage other cities to use a discipline matrix, thus standardizing discipline across the state.

Longtime critics of the PPB and PPA, however, seem to agree with Aitchison.

Arbitrators who review police discipline cases don’t only rely on the PPB’s past disciplinary decisions when determining their rulings. More often than not, arbitrators also find that an officer’s conduct, while egregious, was in line with PPB policy guidelines.

“In order for this [bill] to be effective, we have to believe that officers who have killed people are going to be found ‘out of policy’ to begin with, and that’s an incredibly rare thing to occur,” says Dan Handelman of police accountability group Portland Copwatch.

PPB policy is notably vague when granting officers the right to use deadly force, requiring only that such action is “objectively reasonable.” The bureau requires that determination be made “based on the totality of circumstances known by an officer at the time of action or decision-making... without the clarity of 20/20 hindsight after the event has concluded.”

In the 2012 ruling that overturned the city’s decision to fire Frashour—finding that Frashour acted within PPB guidelines in killing Campbell—arbitrator Jane Wilkinson was careful to specify that her ruling avoided relying on “20/20 hindsight.”

“This was a very tragic case, one where the Monday-morning quarterback has the clear advantage when divining what went wrong,’’ wrote Wilkinson.

Handelman says that if the city is truly concerned about penalizing officers who seriously hurt or kill Portlanders, it needs to reconsider its deadly force policy.

"Over the years, we’ve seen so many people in crisis and people of color killed by the police, yet we’ve seen no attempt to hold officers accountable. If the city actually held the officers accountable, then there wouldn’t be bills like this.”J. Ashlee Albies, Portland civil rights attorney

It’s not out of the question that city leaders could revise that policy to offer stronger protections for Portlanders. City leadership is allowed to review and adjust PPB policies if they have solid “administrative rationale,” a term that includes anything from “complaints or discipline outcomes” to “a shift in organizational philosophy.”

Portland City Council used this tool in 2017 when it voted to require that PPB officers give statements to investigators within 48 hours of a shooting.

J. Ashlee Albies, a Portland attorney who has represented police accountability groups in court, believes responsibility lies with the city, not the state legislature, to improve the PPB’s discipline system.

“Over the years, we’ve seen so many people in crisis and people of color killed by the police, yet we’ve seen no attempt to hold officers accountable,” says Albies. “If the city actually held the officers accountable, then there wouldn’t be bills like this.”

Albies argues that if the city took a stronger position in advocating for the community’s interests—particularly in their closed-door arbitration meetings with the PPA—these cases might end with different outcomes.

“I think this bill is a convoluted way at getting at that problem,” she says. “In this case, legislators are trying to represent the community. It’s admirable.”

Frederick’s legislation has collected bipartisan support at the state capitol. At the time of publication, the bill had passed the Senate and was still being discussed in a House committee, but it’s unclear if it’ll pass before the end of Salem’s whirlwind 35-day session on March 8. Both Bynum and Frederick, however, have shown interest in continuing to push the bill forward, even if that means waiting until 2021’s longer session.

“The motivation here is very simple: trust,” Frederick said during the bill’s first Senate committee hearing. “I want to see a system where people feel they are treated well—both law enforcement and the general public. This is an attempt to make a step in that direction.”