Skeptics Say Oregon’s Police Arbitration Bill Doesn’t Do Enough, While Cops Play Defense

Earlier versions of the bill passed the Senate twice but died. Senate Bill 1604 appears to have momentum.

In a marathon meeting today, the Joint Committee on the First Special Session of 2020 held public hearings and work sessions on a variety of bills, including Senate Bill 1604.

The bill—nominally sponsored by Senate President Peter Courtney (D-Salem) but the product of work by the Legislature's People of Color Caucus, led by Sen. Lew Frederick (D-Portland)—attempts to make it easier for Oregon police agencies to discipline officers without having that discipline overturned or reduced through binding arbitration.

The current bill calls on police departments and the unions that represent officers to agree on a matrix of discipline—in effect, a list of punishments for misconduct, including excessive use of force.

The bill also requires that if a disciplinary finding goes to arbitration, the arbitrator must stay within the bounds of the matrix when issuing a ruling. In other words, if the arbitrator agrees discipline is appropriate, the punishment must fall within agreed parameters.

The goal is to avoid situations in which an arbitrator finds misconduct occurred but hands down a far more lenient punishment than did the chief of police. A discipline matrix could reduce subjectivity in the disciplinary process, which reformers say currently favors officers.

Some critics, however, speaking on background, say the bill probably won't change much in high-profile shootings by police.

One example: the firing of Portland Police Officer Ronald Frashour for the 2010 fatal shooting of Aaron Campbell, an unarmed Black man. An arbitrator later overturned the firing, finding Frashour's conduct "objectively reasonable."

Under SB 1604, arbitrators are still free to determine that a firing or disciplinary finding by the employing agency, such as the Portland Police Bureau, was simply wrong.

As a legislative summary of the bill explains, the proposed disciplinary matrix only comes into play "if the arbitrator makes a finding of misconduct consistent with the law enforcement agency's finding of misconduct."

The distinction is a little like the difference between a verdict and sentencing: If a jury doesn't agree that someone is guilty, it doesn't matter if they agree what a fair punishment should have been. Even if the bill passes, an arbitrator is still free to determine that what an officer did was "objectively reasonable"—a common finding in police arbitration—and therefore not subject to discipline.

Related: For Nearly 80 Years, the Portland Police Association Has Wielded Power in a Town That Doesn't Like Cops. That Power Is Now Under Siege.

Some groups, such as the American Civil Liberties Union of Oregon, expressed other worries, including that the discipline matrix would be too wishy-washy.

"We have concerns that with the current language, law enforcement agencies and police union bargaining teams will be incentivized to reduce discipline matrix outcomes in order to anchor arbitrators," the ACLU said in written testimony.

Several advocacy groups, led by Unite Oregon, the Portland African American Leadership Forum, the Urban League and Rose City Justice, also oppose the premise that the discipline matrix should be the subject of collective bargaining in the first place.

"Allowing discipline for excessive use of force to be an issue that unions can negotiate away through collective bargaining is extremely problematic and
strongly limits our ability to hold officers accountable," the groups said in a June 22 letter to Gov. Kate Brown and legislative leaders. "Police unions, by design, represent police officers, and are not incentivized to prioritize community safety."

SB 1604 is similar to a bill that unanimously passed the Senate in the truncated short session earlier this year (the House did not vote on the bill because the session was cut short by a Republican walkout). A broader version of the bill passed the Senate in 2019.

Frederick, who has pushed police reforms for a decade, acknowledges the objections of critics who wish SB 1604 did more.

But he says passing the bill is "a first set of steps toward reevaluating what legal structures will be needed to track and effectively deal with discipline," adding it's the "tip of the iceberg on the direction we need to go to address the culture change that is needed."

Most speakers who testified today offered support for the bill.

Not surprisingly, police unions raised objections.

Michael Selvaggio, a lobbyist for ORCOPS, which represents law enforcement unions across the state and whose president is Daryl Turner, president of the Portland Police Association, submitted testimony opposing the bill.

Selvaggio noted the bill refers to a discipline matrix "adopted by the agency as a result of collective bargaining (emphasis added)."

His point: Police agencies could dictate a discipline matrix of their own, without having to agree with the union on the details of that matrix in collective bargaining.

"At no point does [the bill] suggest or imply that there need be agreement between the parties," Selvaggio said. In a typical contract negotiation, if the city of Portland wants something from the Portland Police Association, it has to offer something of value in return, such as raises or more favorable work rules. If the city can just dictate a discipline matrix, officers could give something up without getting anything in return.

ORCOPS suggested an amendment to the bill to require that a matrix be the direct product of collective bargaining. But unlike many of the bills heard today, no amendment to SB 1604 was offered or discussed, an indication the bill will sail through the short session as written.

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