PORTLAND — The most recent Portland police arbitration ruling dismissed the two-week suspensions against Sgt. Kyle Nice and Officer Christopher Humphreys stemming from the death of James Chasse Jr. while he was in custody in September 2006.
In the past three decades, Portland police chiefs have fired officers who were convicted of driving drunk while 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 from a neck hold while in police custody.
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 in the back, the 80-hour suspensions for Humphreys and Nice following Chasse’s death and the 900-hour suspension of Officer Scott McCollister for his actions leading up to his fatal shooting 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 workforce 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.
Darrel Stephens, executive director of the Major Cities Chiefs Police Association, said Portland’s experience is not unique.
“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. “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 a 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.”
Most decisions upheld
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 in 2003 when he reached into a moving car to try to stop James from driving off, only to fatally shoot her.
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 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 and officer 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.
Once McCollister’s suspension was reversed, the arbitrator ordered the city to make him whole not only for his back pay, but also to 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 the 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 providing 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 51⁄2 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.”