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Lawyers: Mayor may have hurt disciplinary review of cop's texts with Patriot Prayer's Joey Gibson.

TRIBUNE PHOTO: JAIME VALDEZ - Early comments by Portland Mayor Ted Wheeler could inadvertently help a police protest liaison facing investigation over his tests with Joe Gibson of Patriot Prayer, some lawyers say. Flanked by top polce brass, Wheeler is pictured third from right at last week's listening session concerning the texts.With an internal investigation imminent of Portland Police Lt. Jeff Niiya over his texts with right-wing organizer Joey Gibson, Mayor Ted Wheeler already may have given the cop an unintended helping hand.

That hand? A seemingly routine press release.

Following the disclosure of friendly sounding texts showing information-sharing between Niiya — a police protest liaison — and Gibson of the group Patriot Prayer, Wheeler issued a statement calling the messages "disturbing," adding that "It is imperative for law enforcement to remain objective and professional, and in my opinion, these text messages appear to cross several boundaries."

Issued after the texts were revealed by Willamette Week and the Portland Mercury, Wheeler's press release also suggested Niiya had encouraged demonstrations by Gibson that "caused disruption and increased fear in our community."

Most people get to say such things without consequence — and indeed, many police critics in Portland reacted more strongly. They'd long been accusing the bureau of going easy on Gibson and his followers at protests he organized.

But Wheeler is the city's police commissioner, and for him to make such bold proclamations before an investigation is done likely has legal implications in the restrictive world of government personnel investigations, according to several lawyers.

"It's almost impossible to do a fair, just and equitable investigation when you've already got your decision-maker saying it's misconduct," said labor lawyer Mark Makler, a former prosecutor who represents police unions, though not at the Portland Police Bureau.

In addition to an outside review of potential bureau bias during protests, Niiya likely faces an internal administrative disciplinary investigation, bureau insiders say.

But because Wheeler directly oversees the Portland Police Bureau, lawyers say his Feb. 14 statement would present Niiya with a powerful argument in his defense if the investigation leads to discipline being proposed.

Will Aitchison is an expert on police labor law who used to work for the Portland Police Association and whose partner still does. The PPA, though it does not represent Niiya, already has blasted Wheeler for his comments and handling of the texts.

"A 'crossing of boundaries' can only mean one thing," Aitchison said. "This is really solid law in this area. There's not much wiggle room on this. You can't have the decision-maker making a pronouncement as to culpability before the investigation is complete."

Akin Blitz, a Portland labor lawyer who has represented management during numerous police disciplinary cases, is not so sure. The outcome of any discipline of Niiya will rest on evidence, not Wheeler's statements, Blitz argued. And if the union doesn't make this argument, it will simply make another.

"The mayor must be able to speak on matters of public concern," he said.

Wheeler walks back rhetoric

Since his Feb. 14 statement, Wheeler has shifted to a more measured tone, stressing that Niiya deserves due process.

"It was important to acknowledge that at face-value, the content of these texts was deeply concerning," he said in a statement. "Now it's just as important to suspend further judgment until the internal and external independent investigations yield their results."

But lawyers said the damage to the case already has been done.

One lawyer who's not affiliated with any police agencies spoke on condition of anonymity, saying that because of Wheeler's comments, "If you do try to discipline this employee, the odds of you being successful have diminished significantly."

The internal probe of Niiya is likely to examine December 2017 texts exchanged before an imminent protest regarding an ally of Gibson's who's repeatedly been accused of assaulting left-leaning protesters, Tusitala "Tiny" Toese.

Niiya told Gibson to make sure Toese had taken care of his "court stuff," and said, "Just make sure he doesn't do anything which may draw our attention. ... If he still has the warrant in the system (I don't run you guys so I don't personally know) the officers could arrest him. I don't see a need to arrest on the warrant unless there is a reason."

Some cops say it's standard to tell someone to get their warrants taken care of — and to avoid making arresting during a highly charged protest. But the exchange has been interpreted by others as favoritism and a violation of bureau policy.

Lt. Craig Morgan, a former lawyer who heads Niiya's union, the Portland Police Command Officers Association, said he is confident the protest liaison did nothing to merit discipline. But in the context of an investigation, Morgan said that comments like the one Wheeler made generally amount to an "inadvertent gift" to the cop under scrutiny, ensuring that no inappropriate discipline takes place.

Niiya's union also has filed a workplace harassment complaint, as well as a grievance claiming the police contract was violated by the comments by Wheeler as well as others by Commissioners Jo Ann Hardesty and Chloe Eudaly.

***

Wheeler statements show evolving tone

Wheeler statement on Feb. 14:

"The released text messages, which I learned about in Willamette Week, are disturbing.

"Community members have long expressed concerns about police bias during demonstrations. Incidents like this contribute to the distrust that so many people have about the Portland Police Bureau. This creates a mandate for specific training to identify and combat white supremacy. It is imperative for law enforcement to remain objective and professional, and in my opinion, these text messages appear to cross several boundaries. They also raise questions about whether warrants are being enforced consistently and what information is being shared with individuals who may be subject to arrest.

"Moreover, the texts appear to unnecessarily encourage Joey Gibson, the leader of a group that perpetrates hate speech and violence. Demonstrations that he has led have caused significant disruption and increased fear in our community. I have directed Chief Outlaw to do a thorough investigation of this matter and report back to me expeditiously."

Wheeler statement on Feb. 24:

"Outreach and relationship building plays a fundamental role in de-escalating potential conflicts, especially when it comes to handling demonstrations with the potential to turn violent. The Portland Police Bureau does not often get enough credit for their years of successfully balancing this tricky, complicated, and nuanced dynamic of their job. However, there are some boundaries that should not be crossed when developing such relationships.

"That's why this is an examination of the content of such communication, not of the communication itself. The content of these texts spurred a necessary review of how a PPB liaison should communicate with demonstration organizers. The texts also catalyzed a necessary examination of potential bias within the Bureau.

"We are living at a time of significant division, where we are seeing deep wounds in the community, especially when it comes to policing.

"But we are also living at a time where there are misconceptions regarding the Portland Police Bureau, created by damaging generalizations. I believe most Portlanders can understand that this is not a simple case.

"So, bridging the perception of bias and the reality of bias begins when we examine the root of the problem.

"It was important to acknowledge that at face-value, the content of these texts was deeply concerning. Now it's just as important to suspend further judgment until the internal and external independent investigations yield their results."


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