By Maxine Bernstein, The Oregonian, Feb. 19, 2013
A federal judge Tuesday directed the city of Portland, federal justice officials, the Portland police union and an Albina Ministerial Alliance coalition to go before a mediator to iron out a potential amended settlement agreement on police reforms.
U.S. District Judge Michael H. Simon Tuesday granted the Portland Police Association the right to intervene in the remedy phase of the pending agreement that the city negotiated with the U.S. Department of Justice on wide range of police reforms.
Simon denied the Albina Ministerial Alliance’s Coalition for Justice and Police Reform the legal right to intervene, but granted the coalition enhanced “friend of the court” status. That will allow the coalition to be considered a party to the case, affording it the right to file legal briefs, participate in oral arguments, present argument from the court’s counsel table and participate in mediated settlement discussions.
“I am suggesting the parties meet and see if they can agree on a mediator to meet with the United States, the city, PPA and the AMA Coalition to see if there are changes that could or should be made to the settlement agreement,” Simon said in U.S. District Court in Portland Tuesday.
The actions stem from the U.S. Department of Justice’s nearly 15-month investigation into use of force by Portland police. The inquiry found police engaged in a pattern or practice of excessive force against people suffering from or perceived to have a mental illness.
The settlement, approved by the City Council on Nov. 14, called for widespread changes to Portland police policies on use of force, Tasers, training, supervision and oversight. It also called for a restructuring of police crisis intervention training and quicker internal inquiries into alleged police misconduct.
The extended time line – which may set back any court-approved settlement until late April or May at the earliest – comes as Portland police are investigating a Sunday night officer-involved fatal shooting of a 50-year-old man who had been a patient at the Portland Adventist Hospital emergency room Sunday night.
“I am sensitve there is value in moving this process forward and not letting it drag on too long,” Simon said in court Tuesday.
In court papers, the Portland police union had argued that the changes to the Portland police use of force policies, training and oversight undermine the collective bargaining rights of union members.
Anil S. Karia, attorney for the Portland Police Association, had cited a 9th U.S. Circuit Court of Appeals ruling in April 2002, which found the Los Angeles Police Protective League’s rights to negotiate the terms and conditions of its officers’ employment gave the union an interest in a consent decree between the city of Los Angeles and the federal government.
That occurred a decade ago after the U.S. Department of Justice found Los Angeles police engaged in excessive force, false arrests and improper searches and seizures. A federal judge initially denied the union’s motion to intervene, but the federal appellate court in April 2002 reversed the ruling.
Judge Simon, in his ruling, cited the federal appellate ruling as a major factor in his decision to grant the union legal intervenor status in the pending case.
“I believe that I must grant that motion,” Simon said, of the union’s motion to intervene in the remedy phase.
“I do not believe I could order changes be made to the collective bargaining agreement,” Simon said. “That’s why I have concerns about the agreement as currently crafted.”
Simon quoted from the 9th U.S. Circuit Court of Appeals ruling, noting that an employer “cannot unilaterally change” a collective bargaining agreement as a means of settling a dispute as to whether the employer engaged in constitutional violations.
He found the union met the criteria to intervene in the case: it has a significant interest in the agreement; the settlement may impair the union’s ability to protect its members bargaining rights; and that neither the city or the federal government can adequately protect the union’s interests.
The judge said his ruling does not mean the police union has “the legal right to block a settlement by withholding their consent…It may not do that.”
If the union and the city are unable to resolve their disagreements, the United States government has the right to seek a court order to enforce the terms of the reforms.
The judge said that while the AMA Coalition does not have a “legally protectable interest” in the pending case, he said he did want the coalition to play a vital role.
He said he recognized that the coalition has dedicated significant time and resources over many years to seek police bureau improvements, has done extensive community outreach and has an important perspective that should be heard.
The four parties to the case – the city, DOJ, police union and AMA coalition – were asked to report back to the court by Feb. 28 if they agree on a mediator. If not, they’re each to propose three names of mediators.
The judge said he’d hope mediation could be completed by April 5.
If no agreement is reached, all parties to the case are to submit legal briefs by April 19, and allow for oral argument in court on May 23.
City Attorney James Van Dyke alerted the court that the city currently is dealing with a large hole in its budget with expected cuts to the Police Bureau, among other city bureaus, and has started contract talks with the Police Police Association.