Mental Health Association of Portland

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.”

Daryl Turner (foreground) and Chief Mike Reese.

By Maxine Bernstein, The Oregonian, October 2, 2012

The Portland Police Association Tuesday morning argued that the city auditor’s review of witness testimony in the arbitration involving fired Officer Ron Frashour was not independent but marred by politics.

“We had requested an independent review of testimony of city witness testimony by a third-party,” wrote Officer Daryl Turner, association president, in response to the auditor’s report released five minutes to 5 p.m. on Monday.

“Instead, we received a review from the city’s own auditor who, prior to issuing her review, met privately with Mayor Adams and Chief Reese, but not with the PPA leadership,” Turner wrote, in prepared comments.

After the city auditor released her report, Mayor Sam Adams tweeted this message: “Based on the Auditor’s findings, I respectfully ask the Portland Police Association to cease their attacks on the character and integrity of member of the Portland Police Bureau, and to start focusing on the facts of this case.”

Using Mayor Sam Adams’ own words from the Twitter message, Turner Monday morning urged city commissioners to “focus on the facts of this case,” before considering whether to appeal a state panel’s ruling that orders the city to abide by an arbitrator’s award that Frashour be reinstated to the police force.

At  2 p.m. on Thursday, the City Council is set to consider a resolution to appeal the ruling by the state Employment Relations Board.

“The fact is, the PPA has always focused on the facts of Officer Frashour’s use of deadly force,” Turner wrote. “In contrast, the City – and Mayor Adams – have focused on politics, which deprived the community of facts that would allow them to understand why Officer Frashour justifiably used deadly force, and why every neutral party that has reviewed this case has agreed…”

The mayor and police chief fired Frashour in November 2010, finding his use of deadly force against Campbell on Jan. 29, 2010 was not justified because [Aaron] Campbell did not pose an immediate threat.

The union filed a grievance challenging the firing. Portland police trainers testified that Frashour acted consistent with his bureau training – contrary to Chief Mike Reese‘s testimony that Frashour did not acted as trained. Arbitrator Jane Wilkinson ordered the city to reinstate Frashour, finding the firing unjust.

Meanwhile, the police union called for an independent investigation of Lt. Robert King‘s testimony from the arbitration hearings.

King, who oversaw the training division’s review of Frashour’s shooting, testified before an arbitrator reviewing Frashour’s firing that the training division’s analysis was a “coordinated effort among bureau training instructors.” He testified that he discussed the shooting “extensively” with seven bureau instructors and showed them a draft of his review. The review, King testified, concluded that Frashour did not act according to his training.

But King broke down in tears under cross-examination after union attorney Will Aitchison on entered into evidence five drafts between May 12 and June 20, 2010, in which King found that Frashour had acted appropriately, before he suddenly concluded the opposite in his final June 21, 2010, review.

When grilled by the union attorney, King acknowledged that he did not ask any trainers to review the full investigative files of the shooting and included none of their opinions in his final review, according to a transcript of King’s testimony in late September 2011 obtained by The Oregonian.

Police union leaders called for an independent investigation of King’s testimony, saying the unusual turn of events suggested that Frashour’s firing was politically motivated. They pointed to the fact that the review was done by a new lieutenant who shut out the opinions of lead police trainers, and that the findings changed after the May 12, 2010, appointment of Chief Mike Reese.

City Auditor LaVonne Griffin-Valade, selected by the mayor to conduct an investigation, concluded that no police witnesses “appear to have violated” the bureau directive requiring truthfulness. The auditor also concluded there was no “documentary evidence” that King or others in the bureau, including the police chief, faced political pressure to fire Frashour.

“There is no indication in King’s testimony that he was untruthful about whether and the extent to which he consulted with training instructors in the process of developing” the training analysis of Frashour’s fatal shooting, the auditor wrote.

Police union attorney Anil Karia, who was present during one of the interviews of a police training instructor for the auditor’s review, stated his concerns to those conducting the interview:

According to a transcript of the testimony, Karia said:

So for the record, this is ANIL KARIA and on behalf of the PPA, I wanted to note two concerns or objections if you will, to this investigation.  The first is that it appears that this particular investigation is retaliatory towards PPA members who testified at Officer Frashour’s labor arbitration. Secondly, it also appears that IPR is improperly using Internal Affairs to compel PPA members to this investigation, to make up for the fact that IPR lacks subpoena power over PPA members.

Reese, in his interview with the auditor’s investigators, said he believed that some of the bureau’s police trainers were improperly swayed by a Power [sic] presentation that the union attorney Aitchison presented to the bureau during a mitigation hearing in defense of Frashour before his termination.

“I believe that they – the PPA presented to our due process hearing a PowerPoint presentation that they then showed to the trainers, and it was not factually accurate,” Reese told investigators. “I think if they’re reviewing all of the material in a more sterile environment, without the filter of management or labor, that they may come to different conclusions.”

When asked if he knew how the bureau’s training division reviews of police shootings were to occur, the chief said he didn’t know.

Constantin Severe, the assistant director of the Independent Police Review Division who questioned the chief, asked, “So to your knowledge is there a standard operating procedure or directive that governs what a training analysis is supposed to consist of or how it’s supposed to be routed through the process in these cases?”

Reese said, “No, I don’t know. I’m sure the training has some protocols on it.”

Yet the city auditor found that at the time of Frashour’s shooting review, there were no established procedures for the training division’s analysis of the officer-involved shooting. She recommended the bureau adopt stringent standards that define the scope of the reviews, who conducts them and what to do if there are different conclusions by members of the training division.

Assistant Chief Larry O’Dea, in his interview, cited his concerns about what he thought were misguided trainers’ opinions of the Frashour shooting.

“I felt like what I heard was a..a rehearsed union story from some of the trainers, not individual opinions on here’s what I know, here’s what..how to apply this,” O’Dea said.

O’Dea did point out that the training review’s analysis of the Campbell shooting was handled differently, because the training division captain, then Bob Day, could not supervise it since he was the commander involved in the Campbell case. That’s why King. a lieutenant in the training division, was reporting to O’Dea, and emailing O’Dea drafts of his training analyses

In the past three decades, Portland police chiefs have fired officers who were convicted of driving drunk off duty, leaving dead animals outside a black-owned business, and selling “Smoke ‘Em, Don’t Choke ‘Em” T-shirts to officers after a man died in police custody from a neck hold.

The chiefs had to bring them all back.

More recently, an arbitrator overturned the firing of Officer Ron Frashour for fatally shooting an unarmed man [Aaron Campbell] in the back; the 80-hour suspensions for Officer Chris Humphreys and Sgt. Kyle Nice following the death of James P. Chasse Jr.; and the 900-hour suspension of Officer Scott McCollister for his actions leading up to his fatal shooting of Kendra James.

READ – What happened to Aaron Campbell
READ – What happened to James Chasse
READ – Stories including mention of Kendra James

So just what does it take to discipline a Portland police officer?

Frankly, if push comes to shove and it goes to arbitration, you can’t do it.

Police leaders complain that they can’t effectively manage their work force when decisions are second-guessed and overturned.

Police union representatives say the percentage of discipline cases they challenge is small. And they’re right; in the past 10 years, 12 discipline cases in the nearly 1,000-member police force ended up in arbitration. An arbitrator overturned the discipline in half; the others await a hearing or a ruling.

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. They tend to be those that reflect most poorly on the agency and anger the public, which seeks accountability for bad actors.

The result of repeated rulings overturning discipline has left those responsible for trying to command the largest municipal police force in Oregon feeling powerless.

“It’s frustrating. It’s very hard to lead an organization like that,” said Brian Martinek, a former Vancouver police chief who served as an assistant chief in Portland during the Chasse case and Frashour’s shooting of Aaron Campbell.

Once discipline comes down, union leaders frequently are in command staff’s faces, he said, taunting that, “We’re just going to kick your butt anyways, like we always have.”

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.

Darrel W. Stephens, executive director of the Major Cities Chiefs Police Association, said Portland’s experience is not unique.

“Quite frankly, arbitrators find it very difficult to take the police officer’s livelihood away,” said Stephens, who served as chief of the Charlotte-Mecklenburg Police Department and teaches at Johns Hopkins University’s Public Safety Leadership Program. “The unions may win these things, but they’re not helping the organization. The community loses confidence in the police, and within the department, it undermines the whole process of discipline.”

Portland’s police union lawyers say the rank-and-file accept most discipline, and the union takes only strong cases to an arbitrator when it’s clear an officer was wronged. Further, they say many serious discipline cases don’t stand up because they were politically motivated.

“I grant you, it’s not the perception of the public” said Will Aitchison, who served as Portland Police Association lawyer for 32 years, “but the fact is, it is very rare to find the city’s police union challenging a police termination.”

Mark Iris, who served for 21 years as executive director of the Chicago Police Board and has written about arbitration rulings in Chicago and Houston, said he’d expect serious discipline — which has gone through several layers of review, including grand jury, criminal and internal inquiries — to be upheld once it got to arbitration in at least 75 to 80 percent of cases. But that’s not happening nationally.

Over time, he said, such reversals can have a “corrosive effect” on an agency’s disciplinary process, “erode the deterrent value of discipline” and cause the public to lack confidence in the ability of an agency to control its people.

One need only look at the remarks of the Rev. LeRoy Haynes, chairman of the Albina Ministerial Alliance’s Coalition for Justice and Police Reform, who helped lead a protest outside City Hall after an arbitrator ordered Frashour back on the force.

“This decision says that those who are elected, that they cannot hold police officers in this city accountable,” he bellowed from City Hall’s steps. “It says any police officer can do what they want to do. … It means we cannot trust our police department.”

The arbitrator’s ruling that dismissed former Chief Mark Kroeker‘s 900-hour suspension of McCollister reads as a template for how arbitration has worn down Portland police discipline. The litany of reasons for overturning the suspension have popped up in multiple Portland arbitration decisions since. Kroeker had ruled McCollister should not have put himself in such a precarious position by reaching into a moving car to try to stop Kendra James from driving off, only to fatally shoot her in 2003.

Kroeker testified that he recognized the unusually long suspension was “ground-breaking” in the bureau, and said he issued it to “send a message to the officer and to the organization” that McCollister’s tactics were faulty, and led to the use of deadly force.

“Policing is the kind of profession where the employer must be able to exercise its subjective judgment in making disciplinary decisions; so long as that subjective judgment is exercised in good faith, the arbitrator should not second guess the disciplinary decisions and sanctions imposed,” Kroeker argued.

But the union quickly cited two cases in which officers had reached into moving vehicles without facing such harsh discipline.

One involved a highly respected officer, Mike Stradley, who climbed entirely into a moving van to take a suspect into custody and ended up firing his Taser while the van was traveling 80 mph through a city neighborhood. A written reprimand was proposed. The other case involved then-Officer Jim Lawrence, who shot and killed a suspect while reaching into the open window of a moving van and being dragged. He received no discipline.

The McCollister discipline was further derailed because no internal affairs investigation was ever done. Instead, the bureau relied solely on the detectives’ criminal inquiry, which the union pointed out was contrary to past practice. For a final blow, all the bureau training instructors testified that McCollister had acted as trained, and no policy existed then that restricted an officer from reaching in to a moving vehicle.

Sound familiar?

Once McCollister’s suspension was reversed, the arbitrator ordered the city to make McCollister whole not only for his back pay, but also include 1.88 hours of overtime for each week he was suspended. The union said the city must compensate him for what he “would have earned.”

“The arbitrator can always find an excuse that on its face looks potentially plausible,” Iris said.

Stephens said arbitrators can’t expect agencies to have a policy for every conceivable act of misconduct. “Some of it just has to be about common sense,” he said.

Aitchison counters that chiefs can’t discipline officers based on a standard of conduct that’s not trained. “Cops just want to know what the rules are,” he said.

Typically, only the union can decide to challenge an officer’s discipline before an arbitrator; officers can’t do so on their own. The union’s executive board votes and a majority rules. A list of arbitrators is sent to the city and union, and each side alternately strikes names off the list; the last name remaining gets the assignment.

Critics say arbitrators are well aware that if they routinely side with management, the union won’t pick them again, or vice-versa.

“The last one left standing gets the commission, gets the job,” Iris said. “I think arbitrators rein themselves in so they’re chosen the next time.”

Observers also note that Aitchison, a nationally recognized police labor attorney, historically has run circles around city attorneys.

“In many places that’s true,” Iris said. “The attorney for the union is savvy, experienced and capable, and the city lawyers are vastly overmatched.”

To make sure discipline issued by police managers is not arbitrary but consistent and fair, police consultants have recommended agencies adopt what’s called a disciplinary matrix. It would set disciplinary guidelines for a variety of violations or misconduct, intended to give officers and police managers a sense of what to expect. A few U.S. police agencies have adopted matrixes, including the Los Angeles County Sheriff’s Office, Phoenix and Washington State Patrol.

Portland police are setting up a work group to consider such a matrix.

Beyond that, criminal justice experts have urged police departments to do as much as possible to limit disciplinary problems by setting high standards for hiring with effective screening of applicants, ensuring training is aligned with bureau policy and clear expectations, and there’s strong street-level supervision. Also, they stressed the importance of disciplining officers soon after the alleged mistake.

Upon learning that the Chasse arbitration ruling this week had come 5 1/2 years after his death, Stephens said: “That’s crazy! By the time you get to that point, any impact you intended the discipline to have is long gone.”

There’s no magic answer, Iris said.

“In some cases,” he said. “You basically have to gnash your teeth.”

From the Portland Mercury, June 19, 2012

Eight days after Portland Police Association President Daryl Turner publicly shared confidential details from an arbitration ruling over whether the city should reinstate Ron Frashour—the cop fired for killing Aaron Campbell—the city attorney’s office sent a terse letter accusing the PPA of “unauthorized disclosures” violating a federal court order and other agreements meant to keep those details under wraps.

READ – Transcription of deposition of Robert King by Portland Police Association attorney Will Aitchison (203 pages, PDF)
READ – Letter from City Attorney James Van Dyke to Anil Karia of Tedesco Law Group, representing the Portland Police Association (22 pages, PDF)
READ – City of Portland brief to ERB about Ronald Frashour (54 pages, PDF)
READ - Portland Police Association reply to ERB about Ronald Frashour (26 pages, PDF)

The 22-page letter (PDF) by City Attorney James Van Dyke, obtained by the Mercury in a public records request, threatens legal action if necessary. It was sent to the PPA on June 13, a week after the Mercury and the Oregonian obtained transcripts of testimony given by Lieutenant Robert King and a day after the O obtained transcripts of testimony given by Police Chief Mike Reese.

“It may be, of course, that the federal court protective order and the separate agreement between PPA and the City may need to be modified. However, at this point they have not been modified. As a result, violations of the federal court order and the agreement PPA executed must cease immediately. If PPA intends further unauthorized disclosures, please contact my office so we can set up a hearing before the federal court and/or the arbitrator.”

The backdrop of all this is the city and the PPA’s current battle before the Oregon Employment Relations Board over Mayor Sam Adams‘ refusal to follow the arbitrator’s order to reinstate Frashour. Adams is arguing that reinstating Frashour for an “egregious” use of force (PDF) would violate public policy. The union has filed an unfair labor practices complaint, arguing that the arbitrator didn’t just give Frashour his job back but also cleared him of any misconduct (PDF). By talking about the arbitration in detail, at a time when the city has been unwilling, the PPA has been able to directly seize control of the narrative.

Also interesting in the letter? A sense of what’s (not been) happening with grievances filed for the other three officers disciplined in the Campbell shooting: Sergeants Liani Reyna and John Birkinbine, and Officer Ryan Lewton, all of whom were given 80-hour unpaid suspensions.

Turns out there’s a legal dispute over how to handle the three grievances. The PPA technically didn’t push for arbitration within the limits spelled out by law, and when the city refused to process them anyway, the PPA asked the ERB to weigh in. That appeal is still pending, meaning it could yet be months before the other three cops’ fates are known.

But the city’s letter spends much of its ink addressing the transcript leaks and Turner’s article, which referenced not only transcripts but also training review documents that had been submitted to the arbitrator.

The city argues that the training memos are bound by a judge’s order protecting materials in a (still technically unsettled) civil lawsuit filed by Campbell’s family and a separate agreement between the city and the PPA not to share arbitration materials with outside parties. The city also argues that city/PPA agreement, plus an order by arbitrator Jane Wilkinson, also applies to the release of the transcripts themselves.

The PPA, according to the city’s letter, has told the city it doesn’t believe the transcripts are bound by the federal order and ought to be free for release. The PPA has declined to comment on the transcripts and has not taken responsibility for sharing them.

“On June 7, 2012, Stephanie Harper of my office spoke with you regarding the breach of the confidentiality agreements and the orders by PPA. I understand you told her the transcript of the arbitration proceeding was not subject to any agreement regarding confidentiality. Your own email, however, shows you contended opposite to the arbitrator.”

Meanwhile, Portland Copwatch’s Dan Handelman noticed something peculiar in the Reese transcripts posted by the O on June 12: The paper never fully cleaned them up. The info field shows an author named “Will” (presumably for union counsel Will Aitchison) and a file creation date of May 27, more than a week before Turner’s post went out.

That doesn’t prove that Aitchison actually sent them, but it’s an interesting, dare I say tantalizing, clue left surprisingly uncovered by the city’s paper of record. Van Dyke’s letter was sent before Handelman found that.

“Beyond the violations, however, you should be aware that PPA’s credibility has been severely damaged by these actions. I understand your client and mine have a difference of opinion in regard to the Frashour disciplinary proceedings and our clients may have disputes in the future. In order to have any kind of productive relationship, the City must be able to trust PPA to live up to its promises and not to selectively release portions of transcripts while this matter remains pending before ERB and the federal court. Based on the facts above, it appears PPA’s promises are not credible. In addition, I am hopeful attorneys for PPA neither participated in these disclosures nor were aware of them before their release, as that would be a serious matter as well.”

The federal Department of Justice has also asked for the arbitration transcripts, and Van Dyke tells the Mercury his office agreed today to modify the federal court order to allow the feds to get a look at them.

Portland-area church group leaders submit legal brief in Frashour arbitration case

From the Oregonian, June 19, 2012

The Albina Ministerial Alliance has thrown its hat into the legal wrangling over whether the city of Portland should heed an arbitrator’s ruling to reinstate fired Portland officer Ronald Frashour, who shot and killed Aaron Campbell in 2010.

The Rev. LeRoy Haynes, left, of the Albina Ministerial Alliance, stood outside City Hall on April 2 to decry an arbitrator's ruling that ordered the city to reinstate fired Portland police Officer Ronald Frashour. Frashour was fired for fatally shooting Aaron Campbell. To Haynes' right, is John Davis, Campbell's stepfather.

The Alliance, made up of 125 Portland-area churches, argued in a legal brief that Oregon’s Employment Relations Board needs to consider “the rights of people in communities affected by excessive police use of force.”

The Alliance’s position, which mimics the city’s argument against reinstating Frashour, said it represents “the interests of communities disproportionately impacted by police use of force in the City of Portland,” including African American communities, people with mental health disabilities and other minority groups.

“His reinstatement clearly violates the important public policy requiring municipalities to prevent their officers from engaging in unconstitutionally excessive force,” wrote attorney J. Ashlee Albies on behalf of the Alliance.

READ – The Albina Ministerial Alliance’s amicus brief to the ERB about Ronald Frashour (25 pages, PDF)

The Alliance cited other examples of misconduct by Frashour, including his 2006 firing of a Taser at Frank Waterhouse, who was videotaping officers chasing a jaywalking suspect. In fall 2009, Waterhouse won a $55,000 federal jury verdict against the city, stemming from the encounter. The Alliance noted Frashour faced a “command counseling” in the bureau for using the Taser against Waterhouse, and for an August 2008 incident in which Frashour rammed into the wrong car as police were trying to stop a reckless driver.

“It is entirely foreseeable that should a similar situation arise, Officer Frashour would not hesitate to pull the trigger again,” Albies wrote. “The ERB must ensure that does not happen and allow the City to protect its inhabitants.”

Attorneys from the city of Portland and the Portland Police Association did not object to the Alliance’s brief.

Yet union attorneys Will Aitchison and Anil Karia quickly dismissed the Alliance’s argument in a legal brief to the board. They also pointed out that Frashour wasn’t given “counseling” for the Waterhouse incident until months after the Campbell shooting.

“The unjustly accusatory AMA brief warrants little reply,” the union attorneys wrote, in a 22-page brief filed Friday in response to both the AMA and the city’s arguments in the case.

The state panel determining whether the city must abide by the arbitrator’s ruling is expected to issue a decision within 30 to 60 days. The board will rely on legal briefs submitted by the city, the union and the Alliance, and not hold a hearing.

On Jan. 29, 2010, Frashour fatally shot Aaron Campbell in the back with an AR-15 rifle after another officer had fired multiple beanbag shotgun rounds at Campbell as he emerged from his girlfriend’s apartment with his hands behind his hand, but not in the air as police had ordered. Campbell turned to run toward his girlfriend’s apartment building. Campbell was unarmed, but Frashour said he thought Campbell was reaching for a gun. The mayor and Police Chief Mike Reese fired Frashour in November 2010 after concluding that Campbell did not pose an immediate threat of death or physical injury and Frashour failed to consider other tactical options.

But on March 30, Arbitrator Jane Wilkinson ordered the city to reinstate him with lost wages, saying a reasonable officer could have concluded that Campbell “made motions that appeared to look like he was reaching for a gun.” The mayor refused to reinstate Frashour, and the union filed an Unfair Labor Practice Complaint against the city.

City attorneys argued that Frashour’s use of deadly force was “unjustified and egregious,” and the arbitrator failed to consider that Portland police policies on the use of deadly force are more restrictive than federal or state law.

Further, the city argued that the state board’s past interpretation of the “public policy exemption” adopted into state law in 1995 is “inconsistent” with the intent of state lawmakers who drafted it. The union countered that the city failed to provide an alternative standard for the board.

Based on court rulings, the state board has used a three-part test to determine whether an arbitrator’s decision violates public policy: Did the arbitrator find the employee guilty of misconduct? If so, did the arbitrator relieve the person of responsibility for the misconduct? And is there a clearly defined public policy in statutes or judicial decisions that makes the award unenforceable?

The union attorneys argued that the city will lose outright on the first question.

“This is a case where arbitration worked,” they wrote. “The conclusion reached by the Arbitrator that remains at the core of this case is that Officer Frashour violated no employer rules… There is no basis to overturn the Arbitrator’s decision.”

From The Oregonian, June 11, 2012

Portland Police Chief Mike Reese stressed multiple times during testimony before an arbitrator that Aaron Campbell posed no immediate threat to police before Officer Ronald Frashour shot him.

Portland Police Chief Mike Reese

“We don’t have a right to shoot him. He never displayed a weapon. He didn’t take any offensive action towards the officer,” Reese said in a sworn statement. “We can’t use force on him.”

For Campbell to have posed an immediate threat, the chief testified, he would have had to take an “offensive action” — “turn toward us, pull something out, take a shooting stance.”

The chief’s testimony Sept. 23, 2011, obtained by The Oregonian, stunned Portland police, union leaders and the union’s use-of-force expert, who say the chief articulated a new standard, one that’s inconsistent with their training. And in the end, the arbitrator discounted the chief’s stance in her March ruling that ordered the city to reinstate Frashour, who was fired in November 2010.

READ – Deposition of Portland Police Bureau Chief Mike Reese
READ – Deposition of W. Ken Katsaris, a ‘police training expert’ and hired witness of the Portland Police Association
READ – Deposition of James McCabe, a criminal justice professor, and hired witness of the City of Portland

It was yet another example of what the Campbell family’s attorney Tom Steenson has called a serious “disconnect” between Portland police command staff and bureau trainers that needs to be addressed for public safety.

“Courts have recognized (as does the Portland Police Bureau, according to evidence at the hearing) that an officer is not required to “await the glint of steel” before acting because it then may be ‘too late to take safety precautions,’” arbitrator Jane Wilkinson wrote.

A Portland police trainer’s testimony directly conflicted with the chief’s. Police are taught that if an officer reasonably believes a person is a significant immediate threat of death or serious physical injury, the officer would not have to wait to see a gun or see what the suspect intends to do with that gun, and would need to take “pre-emptive action.”

Action-reaction principle

Their training drills into officers the action-reaction principle that a suspect can pull a gun and shoot faster than an officer reacts.

On Jan. 29, 2010, Campbell, distraught and suicidal about his brother’s death, emerged from a Northeast Portland apartment with his back toward officers and his hands behind his head. Officer Ryan Lewton, trying to get Campbell to put his hands in the air, fired six beanbag rounds at him. Campbell ran toward a parked car and Frashour shot Campbell once in the back, killing him. Campbell was not armed, but Frashour said he thought Campbell was reaching for a gun.

The arbitrator found that a reasonable officer could have concluded that Campbell was armed and reaching for a gun. Mayor Sam Adams has refused to honor the ruling, and the city is challenging it before a state panel.

The chief testified that Campbell posed no immediate threat because police were called for a welfare check; no crime had occurred; Campbell had threatened no one but himself; and he emerged voluntarily without threatening police or showing a weapon.

During Reese’s cross-examination, union attorney Will Aitchison asked the chief again, would Campbell have had to “pull the gun out,” for him to be an immediate threat?

Reese answered: “They have to have somebody who is displaying something, a weapon, or some offensive action before he’s immediate.”

W. Ken Katsaris, an expert who has testified on behalf of the city in the past but was hired by the union in the Frashour arbitration, called Reese’s standard unusual.

Katsaris, noting that he’s been in law enforcement for 50 years and has spent 45 years training police, testified: “I have never heard of the fact that you have to see a gun or some action such as presenting the firearm first. I have never seen a court decision that ever required that. And I have never seen a policy or a directive or another police chief or sheriff in the country that has indicated that, in my experience.”

Katsaris further blasted the bureau’s physical-force policy, adopted in 2008, which is more restrictive than state or federal law. The directive says officers should accomplish the bureau’s mission “as effectively as possible with as little reliance on force as practical.”

The policy continues, “The Bureau places a high value on resolving confrontations, when practical, with less force than the maximum that may be allowed by law.”

Katsaris, who worked as a St. Petersburg officer and a Leon County Sheriff in Florida, characterized the directive as “feel-good value statements” that don’t give police guidance on when force should be used. “It’s untrainable, it’s untenable, it’s unreasonable, it’s wrong … and it’s left up for an interpretation,” he testified.

The city countered that Deputy City Attorney Dave Woboril in 2009 repeatedly has trained all officers, including Frashour, on the new bureau standard.

“Authority to act first”

A city-hired expert, James McCabe, a retired New York Police Department inspector who teaches criminal justice at Sacred Heart University in Fairfield, Conn., testified that the action-reaction principle does not give the police the “authority to act first.”

It’s understood that a person “looking to pull a weapon and shoot an officer” is at a tactical advantage, he said.

“However,” McCabe testified, “that does not give license, if you will, to take preemptive force to prevent that. … Wait. … Allow the situation to unfold. Remain behind cover, maintain tactical advantage, and then wait for a peaceful resolution.”

The chief and McCabe argued that Campbell posed a “potential threat,” but police had superior firepower and a police dog, and Campbell was running away from officers. Even if he’d made it behind a parked car or back to his girlfriend’s apartment, police could have called in tactical officers to reassess. If Campbell was an immediate threat, they testified, why didn’t other officers fire their guns.

“I think Frashour overreacted,” McCabe testified. “He used a preemptive force to stop a potential threat. He should have waited.”

The union expert countered that Campbell was said to have talked about “suicide by cop” in the past, surprised police when he emerged from his girlfriend’s apartment, failed to follow orders to put his hands in the air and had texted his girlfriend, “Don’t make me get my gun. I ain’t playing.”

Katsaris said it was important for Campbell to put his hands in the air; officers are taught that he could have been palming or concealing a small-caliber gun with his hands behind his head.

In his termination letter, Reese cited Frashour’s “rigid and inflexible” approach to policing, and referred to an August 2008 incident in which Frashour rammed into the wrong car as police were trying to stop a reckless driver and his 2006 firing of a Taser at Frank Waterhouse, who was videotaping officers chasing a suspect. He also testified that Frashour’s firing was “the only correct decision to make with the loss of life.”

“I don’t think that we could improve his decision-making to where I could feel comfortable putting him back as a Portland police officer,” the chief testified.

Yet Reese broke ranks with the mayor this year, saying he did not support the city’s challenge of the arbitrator’s order. Reese declined comment for this story, citing the ongoing matter before the state Employment Relations Board.

No closure in Aaron Campbell killing

Editorial from The Oregonian, June 8, 2012

It is difficult to believe the unnecessary and fatal shooting of Aaron Campbell would hold yet more repugnant surprises. But the news this week that the Portland Police Bureau’s chief spokesman, Lt. Robert King, may have changed his sworn testimony about the findings of his review into the tragedy pushes our patience to the extreme.

Portland Police Lt. Robert King

King’s role and his words throughout the Campbell proceedings need immediate investigation. Portland Mayor Sam Adams and Police Chief Mike Reese were correct Thursday in requesting that the city’s independent auditor review arbitration and grand jury testimonies not only of King but of all witnesses to the shooting.

The sorry truth in this more than two-year-old case has been slow to arrive and isn’t here yet. The independent arbitrator reviewing the case, Jane R. Wilkinson, last year heard testimony that King and an associate had concluded in five successive draft reports that Officer Ronald Frashour, who fired the fatal shot, acted in a way that was consistent with his training. In a sixth and final report, however, King concluded otherwise.

READ – Partial transcript of Robert King’s testimony about the investigation of the shooting of Aaron Campbell by Ronald Frashour.
READ – Attorneys for Portland consider Frashour’s fatal shooting ‘unjustified and egregious’, The Oregonian
READ – City of Portland brief to the Employment Relations Board re. termination of Ronald Frashour

Now, an arbitration transcript obtained by The Oregonian’s Maxine Bernstein shows King is on record as saying that he had never really asked police trainers to review the incident for him and that he discounted their opinions anyway because he felt they would be disinclined to rule against a fellow cop.

But King, who oversaw the training division’s review, ultimately decided Frashour had acted inappropriately. And Reese and Adams would soon fire Frashour.

Following the arbitrator’s ruling that Frashour acted in a manner consistent with his training, Reese swung around to support Frashour’s reinstatement. But Adams, as police commissioner, insists Frashour remain off the force and has a raft of arguments drafted by city attorneys to support his position.

King, it is worth noting, was sufficiently tortured by his reviewer role that he first considered demotion to avoid it, Bernstein reported. “I thought that I should revert to being a sergeant, because I didn’t want to take a position against an officer that would be harmful to him and his career, that could result in his termination,” he testified.

The unspeakable result for Aaron Campbell was mortal termination.

Transparency in the Campbell proceedings continues to lag. And the battle between City Hall and the union for control of the Police Bureau continues and clouds everything going forward.

On Friday, Adams was near exasperation.

“I’m calling the union out on this,” he told The Oregonian. “The selective release of arbitration transcripts is a federal violation. Our auditor will get the whole picture. And she will find what she finds. I am confident. I stand by our review.”

But we’re calling everyone out on this. The city of Portland needs closure and healing from the egregious killing of Campbell. And it won’t come in the next batch of dueling accounts of who said what to whom and when.

While Wilkinson cited federal law to support her view that a suspect reaching into a pocket could be viewed by a police sniper as armed, we take the view that anyone running away after being pelted by beanbags should first be seen as frightened rather than a serious threat. Not seeing that appears to be a failure of police action or police training or both.

More than two years ago, the Albina Ministerial Alliance correctly and effectively protested Campbell’s shooting as another inappropriate use of force against an unarmed, innocent citizen who posed no real threat. Yet Portland police won’t get it right until Campbell’s case is fully vetted, understood by everyone to mean the same thing and the source of learning both on the force and in the community.

The auditor’s review should be as swift as it is comprehensive, offering a legible path forward.

Portland police union calls for inquiry into testimony of Lt. Robert King, others in Ron Frashour firing

From The Oregonian, June 8, 2012

In sworn testimony before a state arbitrator in September, Portland police Lt. Robert King characterized the training division’s analysis of Officer Ronald Frashour’s fatal shooting of Aaron Campbell as a “coordinated effort among bureau training instructors.”

Portland Police Lt. Robert King

King, who oversaw the division’s review of the shooting and now serves as Portland police spokesman, told the arbitrator that he discussed the shooting “extensively” with seven bureau instructors and showed them a draft of his review. The review, King testified, concluded that Frashour did not act according to his training.

But King broke down in tears under cross-examination after union attorney Will Aitchison entered into evidence five drafts between May 12 and June 20, 2010, in which King found that Frashour had acted appropriately, before he suddenly concluded the opposite in his final June 21, 2010, review.

When grilled by the union attorney, King’s sworn testimony also changed and he acknowledged that he did not ask any trainers to review the full investigative files of the shooting and included none of their opinions in his final review, according to a transcript of King’s testimony obtained by The Oregonian. King testified over three days in late September 2011.

Police union leaders said the unusual turn of events suggests that Frashour’s firing was politically motivated and have asked for an independent investigation of King’s testimony and that of other city witnesses. They point to the fact that the review was done by a new lieutenant who veered from past practice by shutting out the opinions of lead police trainers, and that the findings changed after the May 12, 2010, appointment of Chief Mike Reese.

Further, the arbitration testimony revealed that the Portland Police Bureau has no policy or procedure for how its training reviews of police actions are to be done.

“As these drafts are being written, and as Lieutenant King changes his mind, the police chief is fired, we get a new police chief, appointed by a mayor who has already passed judgment on Officer Frashour,” Aitchison argued before the arbitrator. “The timing of this, I think, is significant.”

Mayor Sam Adams, who serves as police commissioner, called the union’s criticism of King “reprehensible and wrong,” likened it to “character assassination” and said it should be disregarded. “Enough is enough: (the) police union should stop bullying those who disagree with them,” Adams said.

Reese defended King, who would not comment for this story, as “well-qualified” to conduct the training review.

“To be clear, there was never an agreement between Mayor Adams and me prior to my appointment as chief of police regarding the outcome of this matter,” Reese wrote in a prepared statement. “To say otherwise is ludicrous and insulting.”

Trainers contradict King’s testimony

Aitchision asked why King, a new lieutenant at the time who hadn’t been a training instructor for at least 14 years, would ignore the opinions of the bureau’s training experts.

His answer: He doubted the training officers would rule against a fellow cop.

“One of the problems that we have in this situation is the trainers historically have not wanted to — I don’t think that they’ve wanted to write reviews that conclude that officers are out of training, for different reasons,” King testified. “It can have harmful effects in, say, a disciplinary proceeding like this one.”

Six of the seven police instructors from whom King said he had sought input contradicted his testimony, saying that no such conversations took place. Each testified that the first time they saw King’s training review was in September 2010, months after the final version was presented to a Use of Force Review Board, a panel of police and citizens who recommend discipline.

When King finally did share the final review, the lead training instructors objected in a tense meeting.

King, one trainer testified, responded by saying the bureau couldn’t ignore the political backdrop, and told them: “the elephant in the room is the fact that we shot and killed an unarmed black man.”

“I was disappointed because I think at that moment me and every other lead instructor, as I found out later, felt that that analysis was not immune to the political pressures of this case,” the defensive tactics instructor testified.

The testimony echoed concerns raised by Campbell’s family attorney, Tom Steenson, about the need for the chief to address an obvious “disconnect” between command staff and police trainers on bureau training and policy.

Said Portland Police Association President Daryl Turner: “Lt. King had a moral and civil obligation to conduct a full and thorough training review based on the facts; not on political pressure.”

Tearful testimony

Under questioning from the union lawyer, King said he regretted not including the trainers’ opinions, and during his cross-examination sought to explain how his decision-making evolved.

He testified that as a former union president and as an officer who’d had two fatal shootings scrutinized by the bureau, he was reluctant to rule against Frashour. He even considered a demotion to avoid doing so.

“This report, going through this process, was the single-most difficult thing that I’ve done in my police career,” he testified, through tears. “I was a probationary lieutenant at the time, and I contemplated demoting. I thought that I should revert to being a sergeant because I didn’t want to take a position against an officer that would be harmful to him and his career, that could result in his termination. I’d been with officers throughout the course of my career who have made those difficult decisions, and I’ve been with them and didn’t want to see them harmed.”

Up until a point, King testified, he was reluctant to be critical of Frashour’s actions.

“He’s (Frashour) saying all these sorts of things that I would expect to hear him and other officers in a situation like this to say. But it’s incumbent upon us as a Police Bureau to look very carefully and very thoughtfully, without regard to what anyone else will think or feel … at what they did and why they did it, and, if necessary, arrive at conclusions that are not what trainers or other officers or the officer himself or the union would like.”

King denied that he had been swayed by anyone in the chief’s office to find that Frashour had not complied with training. However the union submitted an email that King received from a sergeant in the chief’s office June 23, 2010, with an edited version of King’s training review attached. The subject line said, “Changes I’ve made.”

Although King had no extensive talks with the bureau’s training instructors, now-retired Officer Mike Stradley testified that King called him to discuss the shooting in depth, and at that time, they agreed that Frashour had acted as trained.

Just before Reese sent Frashour his final termination letter, Turner, the union president, and Aitchison, the union attorney, met with the chief. At that point, the union wasn’t aware of the multiple training draft reviews, but did alert the chief that the bureau’s lead instructors had disagreed with King’s findings and found that Frashour had followed his training.

When called to testify before the arbitrator, Reese was asked whether he had spoken to any of the trainers to verify that. The chief said no, but he did ask then-training Capt. Bob Day — who was at the scene of the Campbell shooting — about it. Day dismissed the union concern, telling the chief the trainers were “disgruntled,” Reese testified.

Portland mayor asks city auditor to review arbitration testimony in Frashour case

From The Oregonian, June 7, 2012

Mayor Sam Adams Thursday night said he has asked the city auditor to conduct a review of the testimony offered in the arbitration hearings on the firing of Officer Ron Frashour “in light of the serious accusations” made by the Portland police union president.

Adams request comes a day after Portland Police Association president Daryl Turner called for an independent investigation of Lt. Robert King’s testimony and that of other command staff.

Union leaders argue that Frashour’s firing for his fatal shooting of Aaron Campbell on Jan. 29, 2010 was politically motivated. The union pointed to the fact that the bureau’s training review of the shooting was done by Lt. Robert King, who was relatively new in the training division at the time, and veered from past practice by shutting out the opinions of lead police training instructors.

King’s testimony before an arbitrator in September 2011, according to transcripts obtained by The Oregonian and reported in a story that ran in the paper Thursday, changed during his cross-examination by union attorney Will Aitchison.

During his direct examination, King first characterized the training division’s analysis of the shooting as a “coordinated effort among bureau training instructors.” He said he had discussed the shooting “extensively” with seven bureau instructors and showed them a draft of the review, which found Frashour did not act according to his training.

Yet King broke down in tears under cross examination after the union attorney entered into evidence five drafts of training reviews King wrote between May 12 and June 20, 2010, in which King found that Frashour had acted appropriately, before he suddenly concluded the opposite in his final June 21, 2010 review. King also acknowledged during cross-examination that he did not ask any trainers to review the full investigative files of the shooting and included none of their opinions in his final review, according to the transcripts.

When the union president first called for an independent investigation on Wednesday, the mayor released a statement, saying the union should stop “bullying” those they disagree with and that the “union’s rant should be disregarded.”

By Thursday night, Adams released this statement: “Tonight I asked the city’s independently elected auditor to review the testimony in the Frashour arbitration matter. This request is in light of the very serious accusations the Portland Police Union president made against members of the PPB command staff – as well as the Chief and me – in an attempt to discredit them.”

Turner, reached Thursday night, said he had not seen the mayor’s statement and could not comment.

On his Facebook page, the mayor released his letter to the auditor:

Auditor Griffin-Valade:

Sam Adams
Mayor

Mayor asks auditor to review Campbell shooting testimony

Auditor says she will lead a team to look for material inconsistencies that require further investigation
From the Portland Tribune, June 7, 2012

Mayor Sam Adams has asked City Auditor LaVonne Griffin-Valade to review all of the testimony given by city employees related to the police killing of Aaron Campbell.

The request, which was emailed to Griffin-Valade Thursday evening, includes all the testimony given during the arbitration proceedings that reversed the decision by Adams to fire Ron Frashour, the officer who shot Campbell.

Griffin-Valade tells the Portland Tribune she will lead a four-person team from within her office that will review the testimony given by city employees in all administrative reviews conducted by the Portland Police Bureau into the shooting, as well as all testimony given during the arbitration hearings. Griffin-Valade said the review will look for material inconsistencies that could require further investigation. If the team finds any, they will be investigated by the Independent Police Review division of the auditor’s office.

“I hope to wrap this up as expeditiously as possible because this is a matter of great public concern,” said Griffin-Valade.

Adams is refusing to obey the arbitrator and rehire Frashour. The Portland Police Association that represents rank-and-file bureau employees has filed an unfair labor practice in the matter with the state Employment Relations Board and has also demanded that Frashour be re-hired.

Adams’ request comes after PPA President Daryl Turner wrote an article in the police union newspaper the Rap Sheet saying the decision to fire Frashour was political. Among other things, Turner said then-training Lt. Robert King only said Frashour violated bureau policies in the final version of his report on the matter.

The earlier drafts did not say Frashour violated bureau policies, wrote Turner, who also said King did not ask any training officers to review his drafts or the investigative files.

Frashour shot Campbell in the back with a sniper rifle after a lengthy police standoff at a Northeast Portland motel in January 2010 Although police had been told Campbell was armed, he did not have a gun on him when he was shot.

At the time of his death, Campbell, an African-American, was upset by the recent death of his brother. The killing sparked community protests, including a visit from the Rev. Jesse Jackson, who denounced it.

Adams and then-Police Commissioner Dan Saltzman subsequently asked the U.S. Department of Justice to investigate it and a number of other incidents where the police killed minority members. The review is ongoing.

Adams took the police bureau from Saltzman before firing Frashour.

Here is the email Adams sent to Griffin-Valade:

Auditor Griffin-Valade:

Sam Adams – Mayor

READ – Portland Auditor Agrees To Review Police Shooting Case, OPB.org
READ – Adams asks for independent review of Campbell shooting testimony, KOIN.com
READ – BREAKING: Mayor Asks Auditor to Review Frashour Arbitration Testimony, Portland Mercury