Portland police ballot measure likely to be litigated for years
Changes to police oversight that the Portland City Council on Wednesday approved for the November ballot are likely to be tied up for years in court, according to several lawyers with experience in police labor law.
The measure, approved unanimously, would set up an independent police commission with broad powers to oversee misconduct investigations of the Portland police officers, replacing the current system in which civilian investigators with limited authority directly investigate about a third of complaints. As the measure reads, the new board would be able to discipline and even fire police officers — authority that now rests with the commissioner overseeing the Portland Police Bureau, currently Mayor Ted Wheeler.
Commissioner Jo Ann Hardesty, who is spearheading the measure, has called it a "framework" that would be filled in by the City Council with changes to city code if the idea is approved by voters in November. And she dismissed concerns raised by the Portland Police Association, the union representing police officers, as obstructionism.
But several lawyers who've opposed this union and other police unions in court and in disciplinary arbitrations mandated by labor law told the Portland Tribune that the measure does appear to clash with state laws and the police union contract, suggesting it likely would be litigated for years.
At first glance, the measure appears to further entangle an area of law that's "already quite tangled," said David Woboril, a former deputy city attorney for the city of Portland, noting that he has not fully researched the matter as he would a formal legal opinion. "It has taken decades to work out the legal relationships in this area and a major reset would take many years to settle in."
Mark Amberg, another former Portland deputy city attorney who worked on police matters, said the measure would require contract negotiations with the union before it goes into effect — which in turn means the possibility of a lengthy arbitration process if the union won't agree.
"If approved by voters, the measure would be subject to significant bargaining issues with the union before it could be implemented," Amberg said. "There are a number of parts of the measure I can't see them agreeing to but that obviously would be for the bargaining table."
In the event of a contract negotiating impasse between the city and the police union, an arbitrator agreed upon by both parties selects between the two sides' final proposals. That decision may not jibe with the ballot measure, but may not be subject to subsequent court challenge.
Not only that, but its creation is approved by voters the board's decisions would still be subject to state collective bargaining law — the law protecting all union members and which is the means by which the Portland Police Association has been able to overturn police firings in the past.
As a result, the new board would still be subject to the PPA union contract as well as the new police arbitration law recently passed by the Legislature, Senate Bill 1604 — which some of Hardesty's allies on the ballot measure have criticized as obstructing police accountability.
"The Board would still be subject to the union contract and State labor and collective bargaining laws such as the new arbitration/discipline guide law recently passed by the legislature," Amberg said.
Akin Blitz, an attorney with Bullard Law, represents city governments seeking to overcome union advocacy on behalf of disciplined officers. Earlier this week, after reviewing the charter proposal, he called it "ill-conceived" and likely to compound existing problems with the system.
"The absolute reality over years has been that the discipline process is so extended, takes so long, involves city attorneys and HR staff, " he said. "Often the advice is wrong, the process flawed — and that's why arbitrators reverse and reinstate (discipline, including firings, placed on officers). This board will be exponentially worse."
What's clear is that the Portland Police Association is likely to fight the measure. On July 27 the union sent a letter to the City Council stating any such changes must be negotiated before going into effect, and also questioned whether the measure's provisions violate the City Charter and the U.S. Constitution, which requires due process for people accused of wrongdoing. The letter criticized the lack of public hearings or input from affected parties, calling it a "carelessly-drafted proposal that raises many more questions than it answers."
Hardesty: concerns will be addressed
During the Wednesday, July 29, council meeting at which Hardesty presented the measure, various city commissioners observed that the law may well conflict with the union contract, as well as state and even federal law, but said they were willing to approve it and see if Hardesty's vision bears fruit. The measure is written so that if parts of it are struck down, the remainder will still take effect.
Some also said they shared the concerns expressed by elected Auditor Mary Hull Caballero, who said that even if the measure passes it will face the same major problems the city's current system does — including what she believes is the excessive secrecy mandated by state law.
Commissioner Amanda Fritz, before voting, noted that an arbitrator's ruling in 2016 had blasted the city for using a ballot measure to circumvent bargaining with the police union as required by law. "I frankly don't know if this is going to work," Fritz said.
Hardesty and her policy director, Derek Bradley, defended the measure, saying they'd consulted with numerous community groups. They said the measure is just the start of a process of change. They told the other commissioners that supporters of the measure could use its approval to spark revisions to state law at the Oregon Legislature, and that an overwhelming public vote in support could help sway an arbitrator asked to rule on disputed union contract changes. Meanwhile, city code changes could be used to install due-process protections for officers accused of misconduct, addressing concerns that the measure violates the U.S. Constitution.
On Thursday, in a press conference, Hardesty struck a more aggressive tone. She argued the concerns raised about the measure are overblown and intended to distract and obstruct. She vowed that if it goes to court, the city would win.
"I spent a lot of time prior to submitting this ballot measure talking to both city attorneys and expert legal advisers on contractors before we ever submitted this, I am absolutely confident that a) the Portland Police Association will try to fight it and b), that they will lose. It is absolutely a legally sound document."
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