City Accuses Police Union of Leaking Frashour Arbitration Transcripts

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 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.”