By Maxine Bernstein, The Oregonian, April 8, 2013
Protest following Aaron Campbell’s shooting death by then-Officer Ronald Frashour.
Portland police disciplined for using excessive force would not be able to challenge the discipline before a state arbitrator, under a bill that will have a hearing before state lawmakers on Wednesday.
State Sen. Chip Shields, D-Portland, has sponsored the bill, at the request of Portland attorneys Greg and Jason Kafoury. The Kafourys are disturbed by the high-profile Portland police discipline cases that get overturned by a state arbitrator.
The bill would only affect Portland police, as it’s written for Oregon cities with populations over 300,000.
An arbitrator’s ruling ordering the reinstatement of fired Officer Ronald Frashour, who fatally shot an unarmed man in the back in January 2010, is among the most recent examples.
The Kafourys said they’re pushing for a legislative change because the city has not been able to negotiate changes to the Portland Police Association contract, which allows for binding arbitration.
Senate Bill 747 will be heard at 3 p.m. before the Senate’s General Government, Consumer and Small Business Protection Committee.
The proposed legislation also would allow police managers to issue serious discipline for misconduct that may have drawn a less severe penalty in the past.
“Our goal is to have a police union contract in Portland which does not allow for arbitration in cases of use of excessive force,” said Greg Kafoury on Monday. “We want there to be political, democratic control of the police department. That’s only going to happen when the mayor has ultimate power over police discipline.”
Kafoury called the arbitration cases enormously expensive for the city of Portland, “and they lose virtually all of them.”
“Even when we sue an officer and win six figure verdicts” Greg Kafoury said, “they’re routinely ignored.”
Police union representatives have argued that the percentage of discipline cases they challenge is small. A 2012 Oregonian review found that in the prior 10 years, 12 discipline cases in the nearly 1,000-member Portland police force ended up in arbitration. An arbitrator overturned the discipline in half; the others were awaiting a hearing or a ruling.
Daryl Turner, president of the Portland Police Association
But the cases that reach arbitration usually are high profile and involve the most egregious conduct, tactics leading to the use of deadly force or, in Frashour’s case, the use of such force.
For example, an arbitrator overturned Frashour’s firing; the 80-hour suspensions for former Officer Chris Humphreys (now Wheeler County Sheriff) and Sgt. Kyle Nice following the death of James P. Chasse Jr. in police custody; the 900-hour suspension of Officer Scott McCollister for his actions leading up to his fatal shooting of Kendra James; and the firing of Lt. Jeff Kaer, for his actions leading up to the fatal shooting of a motorist who was parked outside his sister’s home.
Will Aitchison, who represented the Portland Police Association for 32 years, said there were only three terminations of Portland officers related to use of force that were overturned by an arbitrator during his tenure: that of Kaer, Frashour and Officer Doug Erickson.
“It’s a solution in search of a problem,” Aithison said of the Kafourys’ legislative initiative.
Aitchison argued that the bill would “deprive police officers of the right to an independent review, as to whether discipline is fair.”
Last summer, The Oregonian reviewed 14 Portland police arbitration decisions since 1981 and found that discipline usually was overturned because either the bureau did a shoddy investigation or the arbitrator picked apart a chief’s decision with a grab-bag of objections: Similar misconduct by officers in the past hadn’t drawn such discipline, police policies were unclear or none governed the alleged misconduct, bureau instructors testified that an officer had acted as trained, or the officer had a prior clean record.
Greg and Jason Kafoury said they plan to play at Wednesday’s hearing part of a Feb. 9, 2011 deposition they took from former Police Chief Rosie Sizer stemming from a lawsuit against Sgt. Kyle Nice, in which she said she didn’t recall firing anyone for excessive force during her tenure as chief. Further, the deposition shows that Sizer thought all Portland police terminations for use of force “were all overturned through the labor process.”
During Chief Mike Reese‘s tenure, he’s had to rehire two officers he fired: Frashour and Scott Dunick, who smoked marijuana off-duty, gave one of his prescription pills to a fellow officer and then drove drunk while under investigation. An arbitrator ordered the chief to reinstate Dunick, albeit with a three-month suspension.
The Kafourys said they recognize the bill will face vehement opposition from the city’s police unions and likely does not have the support to pass this session.
“It’s going to be a long-term battle,” Jason Kafoury said.
Greg Kafoury met briefly with Mayor Charlie Hales to discuss the bill.
“We are aware of the bill and are monitoring it,” said Dana Haynes, the mayor’s spokesman.” We have not taken a position to support it or not at this time.”