A BILL FILED in the Legislature this month on behalf of two prominent Portland lawyers promises something of a holy grail for police accountability advocates: It would strip away arbitration appeals for Portland cops punished for excessive force—leaving the mayor and police chief as the last word on discipline outside the court system.
Senator Chip Shields, a Democrat representing North and Northeast Portland, submitted SB 747 on behalf of father-and-son activists Greg and Jason Kafoury. The pair have fashioned a reputation as hard-nosed crusaders on police misconduct—winning several substantial judgments and settlements against the cops and frequently showing up to speak at city hall.
The bill is set for a hearing at 3 pm Wednesday, April 10, in the Senate's general government committee, which Shields runs. It would ban the city, when negotiating contracts with the Portland Police Association and Portland Police Commanding Officers Association, from agreeing to allow binding arbitration in discipline cases that involve the use of force.
Shields is "very concerned about the city's police bureau and how they handle the use of force," says Amanda Hess, a legislative aide in his office. "He believes the bill needs airing in committee."
It comes nearly a year after arbitrator Jane Wilkinson ordered Portland to reinstate Ron Frashour, the cop fired in 2010 for shooting Aaron Campbell in the back with his AR-15 rifle. Wilkinson found Frashour committed no misconduct.
The Oregon Employment Board then slapped the city last fall after it refused to abide by Wilkinson's order—attempting to argue, so far in vain, that reinstating Frashour breaks an obscure state law written after an arbitrator overturned discipline in a 1993 Portland police shooting. Frashour is back with the bureau, and the city has since filed with the Oregon Court of Appeals.
The city has a history of losing in high-profile arbitration cases—watching suspensions and firings overturned in not only Campbell's death but also the deaths of Kendra James and James Chasse Jr.
Although, as the Mercury first reported last spring, it's exceedingly rare for discipline cases to even wind up in front of an arbitrator ["An Airing of Grievances," News, April 26, 2012]. As of April 2012, according to city data obtained through a public records request, only four PPA cases since mid-2002 were listed as "closed" because of a finding from an arbitrator. Most times, the city and the union settle before a case gets that far.
The bill, first reported by Willamette Week, likely faces long odds in a Democratic Legislature closely allied with labor interests. The PPA is expected to put up a fight, especially if the bill manages to stay alive. Bills have to get out of their home committees by the middle of this month. Shields' office declined to comment on whether he's lobbying other lawmakers in support of the bill.
Jason Kafoury says he and his father are hoping to coax other lawmakers, like North Portland State Representative Lew Frederick.
The obvious line of attack is the chance that a mayor or police chief might punish a cop out of incompetence or for political reasons—like, say, a whistle-blower.
"The people supporting this bill have to have an answer other than 'Trust the city of Portland,'" one observer tells the Mercury. "Because the Legislature doesn't."
But Greg Kafoury says federal reform of the police bureau, over its unconstitutional treatment of people with mental illness, is a bright indicator that the current system isn't working.
"There's been a great gnashing of teeth over the fact that there's no political control over the officers, so there's no real accountability," he says. "This would put the elected officials back in charge."
He says the city doesn't have to wait for a bill to become law. If he wants to, Mayor Charlie Hales can insist on removing binding arbitration from the city's police contracts.
"The bill would require the city to do the right thing," Kafoury says. "I'm hoping the city would do the right thing without having the law changed."
Hales' spokesman, Dana Haynes, says the city is obviously watching what happens. Ironically, because cops aren't allowed to strike, an impasse over binding arbitration in discipline cases would still end up, you guessed it, in the hands of an arbitrator.
"It would not be acting in good faith," Haynes says, "to start talking in the media about what things we think are bargaining chips and which aren't."