By Maxine Bernstein
oregonlive.com
PORTLAND, Ore. — City lawyers want to negotiate with the Portland police union a new disciplinary guide for officer misconduct that would be binding on a state arbitrator and include a restorative option such as enhanced training or community service as potential corrective measures.
Steve Schuback, a private labor attorney serving as the city’s lead negotiator, set out the goals city officials have as they pursue a new disciplinary guide for police: accountability, clarity, consistency, corrective behavior and improved trust with the community and between officers and management.
Schuback presented Portland Police Association leaders with the city’s broad concept for a negotiated disciplinary guide that the city expects a police chief or future citizen oversight board would have to follow when evaluating or recommending discipline for police misconduct.
If misconduct doesn’t lead to a firing, the city would want the Police Bureau to work on rehabilitating an officer and assuring the public there’s been appropriate accountability, Schuback said.
If an offense doesn’t demand termination, “We need to correct that behavior. We need to move forward and grow from it,” Schuback said.
The guide could, for example, call for an officer to attend classes or training from bureau or outside instructors on a policy or police tactic, conduct a research project or perform community service that’s relevant to the officer’s misconduct.
A sanction or penalty could be coupled with other corrective action, and suspensions could be offset by education-based or restorative alternatives, Schuback said.
“There might be remedial plans,” he said. “There will be re-education, training, creative ways to have the employees engage in their rehabilitation so that it’s not just a punitive sanction, but there’s also growth that comes out of it. It can include mediation with the complainant or with the community.”
Portland police Deputy Chief Chris Davis said he’s researched similar types of restorative discipline already adopted by the Los Angeles County Sheriff’s Office and police in Denver and El Paso, Texas.
The city also proposed identifying misconduct that would “cross the line” and demand termination, compared to mid-level misconduct that likely would result in a suspension or demotion or low-level misconduct that could draw a letter of reprimand.
The city tentatively identified “obvious” misconduct that would warrant an officer’s termination as: a felony or Measure 11 criminal conviction, domestic violence, untruthfulness, public corruption for monetary or personal gain such as a bribe, intentional or reckless misconduct that results in either death or physical injury or foreseeable risk of death or physical injury (such an unlawful shooting or excessive use of force that results in an indictment) and misuse of police authority that targets a protected class of people.
Outside of the so-called “cross the line” offenses, the city proposed three tiers of misconduct that could but would not presumptively lead to a firing. The most serious tier would include unethical behavior, discrimination or harassing behavior that shocks the conscious, intentional civil rights violations, excessive force not resulting in death, and a pattern of continued rules violations. The middle tier would include unnecessary or unreasonable use of physical force, or actions that cause a foreseeable risk of harm to the public or significant property damage, with a lower tier capturing lack of professionalism or unintentional or minor procedural law violations.
The suggestions presented by the city Wednesday were described as broad concepts that would have to be negotiated further.
Anil Karia, the union’s attorney, said the introduction of non-punitive corrective action such as further education or training is a “welcome area” and something that the union has pushed for in the past. The goals that the city identified as underlying a future discipline guide are shared by the union, he said.
“We will have the discussion and look forward to it,” Karia said.
Karia questioned who would decide what type of restorative actions are taken.
Deputy City Attorney Heidi Brown said that’s still to be determined, but city officials hope that any remedial plan would be “created with the employee” and emphasize training, education or other creative interventions to promote “a positive outcome and avoid employee embitterment.”
Daryl Turner, a retired officer and former union president who now serves as executive director of the Portland Police Association, told city representatives he’s concerned that any low-level policy violations, such as a mistake in police report writing, would be classified as misconduct.
“A mistake in a report writing area shouldn’t be seen as misconduct but a policy violation,” he argued.
The Police Bureau in 2014 adopted a police discipline matrix as a condition of its settlement agreement with the U.S. Department of Justice over police use of force against people with mental illness. It was designed to set out out reasonable penalties for misconduct and ensure that similarly situated employees are treated the same, allowing for any mitigating or aggravating circumstances.
The city and police union representatives have haggled over the years about whether the current police discipline guide is advisory or must be followed to the letter. One clause in the guide now allows the chief or police commissioner to “deviate from this guide as conditions and circumstances warrant.”
Under new legislation adopted last year that has become law, an arbitrator may not order any disciplinary action that differs from disciplinary action imposed by an agency, if the disciplinary action imposed is consistent with the provisions of a discipline guide or discipline matrix adopted as a result of collective bargaining.
Both sides have been in bargaining for a new contract since January. The next city-hosted public bargaining session between the city and police union is scheduled for June 30.
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