This week, Oregon lawmakers will gather at the state capitol (and virtually) to hash out a number of law enforcement reform bills intended to spur a marked transformation in how police departments operate across the state.
One bill proposed during this special session has received particular attention for its promising goal: Making it easier for cities to fire police officers who commit misconduct.
But Portland's top police accountability advocates argue that the legislation, Senate Bill 1604, will do little to fix the system that repeatedly shields delinquent officers from discipline or termination. Between that scrutiny and the pressure from police unions to scuttle any bills limiting law enforcement, it's unclear if one of the legislature's key police reform proposals will survive the special session.
SB 1604 attempts to simplify cities' labyrinthine police discipline processes. Portland's process serves as a representative example of what cities across the state of Oregon face when they want to discipline a member of their police force.
When an officer with the Portland Police Bureau (PPB) violates a bureau policy—which can be anything from using profanity to wrongfully killing a member of the public—it's up to the police chief to approve the correct level of discipline. That discipline can range from a stern talking-to by management to firing the officer.
That's where PPB's "discipline matrix" comes in. This matrix, adopted by Portland in 2014, dictates what level of punishment will be imposed for different types of misconduct. It's up to the police chief to determine the severity of the punishment allowed within the matrix framework. For example, if an officer fails to write up a report after making an arrest twice in one year, the matrix mandates that the cop receives, at the least, a meeting with their superior and, at the most, one day of unpaid leave.
The chief's discipline decision, however, can be challenged by the police union—in most cases, that’s the Portland Police Association (PPA), the union representing the bureau’s rank-and-file officers. Often, the union argues that the discipline is too severe. This appeal is then heard by an arbitrator (a private attorney recommended by the state’s employment relations board) to settle the disagreement out of court. An arbitrator looks at PPB's rules of conduct, called "directives", to determine whether or not misconduct took place.
"Passing [SB 1604] gives the impression that we're fixing that system but in reality the bill as drafted does not resolve the issue."— Candace Avalos, acting chair of Portland's Citizen Review Committee
In Portland, the vast majority of police discipline recommendations made by the chief aren’t challenged by the PPA and don't need an arbitrator's involvement. The ones that are, however, are often the most egregious cases. And those challenges are usually upheld by an arbitrator.
A few examples: In 2010, then-PPB Chief Mike Reese fired Officer Ron Frashour for improperly using force against Aaron Campbell, a Black man in a mental health crisis, which resulted in Campbell's death. The PPA challenged this ruling and an arbitrator agreed, reinstating Frashour with backpay. In 2003, Officer Chris Humphreys and Sgt. Kyle Nice were suspended for not bringing James Chasse to a hospital after violently beating him—injuries that led to his death. Chasse, a man with a mental illness, was arrested and beaten after urinating in public. The PPA challenged the officers' suspension and an arbitrator agreed, reinstating them with backpay and a clean record. Also in 2003, Officer Scott McCollister was suspended for breaking protocol by fatally shooting Kendra James, a Black woman pulled over during a traffic stop. The PPA challenged this decision and an arbitrator agreed, reinstating McCollister with backpay.
SB 1604 aims to fix this cycle by mandating that an arbitrator follow a city's discipline matrix when making a decision—something that currently isn't required. However, the proposed legislation would only apply to situations where an arbitrator agrees with a police chief that an officer did, in fact, commit misconduct. In the three examples above, arbitrators disagreed with the chief's ruling.
That's why police reform organizations like Portland Copwatch say the bill won't offer an improvement.
"The current bill being proposed to limit the powers of arbitrators in police misconduct cases could be helpful in specific circumstances, but will not keep officers fired for extreme behavior fired, if history is a guide," reads a recent analysis written by Portland Copwatch.
Many echoed these concerns in a Tuesday virtual hearing, where members of the public shared their thoughts on proposed police reform bills with state lawmakers.
"The state arbitration is one of the largest barriers to real accountability to police misconduct," said Candace Avalos, who serves as the acting chair of Portland's Citizen Review Committee (CRC), a city-appointed group that oversees police misconduct complaints made by the public.
"Passing [SB 1604] gives the impression that we're fixing that system but in reality the bill as drafted does not resolve the issue," Avalos continued.
She and others urged legislators to instead establish a "standard of review" that arbitrators must follow when determining misconduct. They argued that creating guidelines for how an arbitrator determines whether or not misconduct took place could address the problem further upstream.
Lawmakers also heard from Elliott Young Tuesday. Young serves as the co-chair of the Portland Committee on Community-Engaged Policing (PCCEP), a committee tasked by city leaders to make police reform recommendations to PPB officials.
"The reason arbitration is ineffective at the moment is because there is no clear standard of review," Young said. "Arbitrators cherry-pick the evidence they like and then absolve the officers of any misconduct the agency may have found."
"We could spend another few months arguing over the details, but I want to use this window of opportunity to get something accomplished right now."— Sen. Lew Frederick
Young proposed the following as a potential standard of review that the state could require arbitrators consider when determining a contested discipline: "That a reasonable person, given the original evidence in the record, could come to the same conclusion as the municipality, even if the arbitrator disagrees with the findings."
SB 1604's author, Sen. Lew Frederick, rejects these critiques. This is the third time Frederick's introduced this bill in the Oregon Legislature. Despite have strong bipartisan support in recent sessions, the bill was one of many pieces of legislation stalled after GOP legislators refused to vote on other controversial bills. Frederick believes that it's finally time for his legislation to become law.
"Yes, I believe that the bill could be significantly stronger," Frederick told the Mercury Tuesday afternoon. "I think we need to be able to do more in terms of arbitration. But at this point, the bill is ready to go. We could spend another few months arguing over the details, but I want to use this window of opportunity to get something accomplished right now."
Frederick stressed that passing this bill is the beginning—not the end—of the conversation around reforming the arbitration process. He's worried that the advocates' concerns, paired with a strong push from police union lobbyists to stall any police reform bills this session, will inhibit SB 1602's potential to lay the groundwork towards more substantive change.
"I know there are folks who would love to see us get nothing done this session," said Frederick. "I'm tired of allowing imperfection to undermine progress."