Keep fighting reinstatement of Portland police officer who shot Aaron Campbell, Mayor Adams urges council

OregonLive

Portland Mayor Sam Adams Monday said he'll urge the City Council to appeal a state board ruling that ordered the city to reinstate fired officer Ronald Frashour to the police force with back pay and benefits. 

"I promised in April I would take this case as far as we can," Adams said, speaking at City Hall. 

Though the mayor said he's aware of the potential cost to the city should it lose in court, Adams said he's fighting for control of the city police force by the city's police commissioner, police chief and City Council. 

"What we're investing in here is to have more local control of our very own Police Bureau," Adams said. "It is totally worth it, and Portlanders want us to do this." 

The mayor and Police Chief Mike Reese fired Frashour for shooting an unarmed man in the back in 2010. 

In a ruling released Monday, the state Employment Relations Board unanimously ruled that the city violated Oregon's Public Collective Bargaining Act by refusing to follow an arbitrator's award in March that ordered Frashour be reinstated to the police force. The board ordered Frashour be returned to his job within 30 days, with back pay, benefits and 9 percent interest. 

The board did not issue the city a civil penalty, but said the city must post a public notice in the Police Bureau and other city offices that the city in a "calculated" action violated state law. 

The state's findings did not surprise city officials or Portland police union representatives. 

The city had argued that rehiring Frashour would violate public policy. The mayor hung his hat on a "public policy exception" adopted as state law in 1995 to limit an arbitrator's authority after several controversial and highly publicized arbitration awards. 

Attorneys for the city argued that Frashour's use of deadly force was unreasonable and disproportionate to the circumstances he faced. They said the Police Bureau's use of force policy is more restrictive than state law, which instructs officers to use the least amount of force possible. To reinstate him would violate the city charter, as well as the state and federal constitutions, the attorneys argued. 

But since 1995, rulings by the Oregon Court of Appeals and Oregon Supreme Court have narrowed the state board's focus. An arbitrator's award can only be ruled unenforceable if it orders a public employer to do something that lawmakers or courts have determined to be contrary to public policy. The analysis must focus on whether the arbitrator's award violates public policy, not whether the employee's conduct does. 

"We review the award, not the conduct," the board wrote in its Frashour decision. 

On Jan. 29, 2010, Frashour shot Aaron Campbell in the back with an AR-15 rifle after Campbell had been struck with multiple beanbag-shotgun rounds shortly after emerging from a Northeast Portland apartment. Frashour said he thought Campbell was reaching for a gun. Campbell was unarmed. 

The mayor and Police Chief Mike Reese fired Frashour on Nov. 8, 2010. But on March 30 of this year, arbitrator Jane Wilkinson ordered the city to reinstate Frashour, 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 follow the arbitrator's ruling -- the first time a Portland mayor has fought an arbitrator's ruling on an officer terminated for use of force. The police union filed an Unfair Labor Practices complaint on Frashour's behalf. 

The state board said it relied on a three-part test: Did the arbitrator find the employee guilty of misconduct? If so, did the arbitrator relieve the person of responsibility for the misconduct? And lastly, is there a clearly defined public policy that makes the award unenforceable? 

"We are not to substitute our judgement for the arbitrator's determination of whether the public employee engaged in the conduct resulting in discipline," the board wrote. 

The arbitrator in the Frashour case, the state board noted, concluded there was an "objectively reasonable basis" for Frashour to believe Campbell posed an "immediate risk of serious injury or

death to others." The arbitrator found the city did not prove Frashour violated the bureau's use of force policies.  

"There is no need for any further analysis" by the board if an arbitrator finds no misconduct by an officer, the board said. 

Union attorneys had predicted the outcome months earlier. Officer Daryl Turner, Portland Police Association president, said Frashour wants to get back to work. 

"The unnecessary battle that the city undertook should now be over," Turner said in a statement Monday. "The city has spent over $750,000 of taxpayer funds to keep Officer Frashour fired. That sum is unacceptable in a time where local governments are struggling to provide core services to their communities." 

Yet Adams pledged to make the Frashour discipline a "test case," frustrated by repeated arbitration rulings that have overturned the city's discipline of police. He said he'll urge the City Council to hold a hearing within 30 days to vote whether to challenge the board's ruling to the Oregon Court of Appeals. 

City Attorney James Van Dyke argued that the board failed to consider the legislative history behind the "public policy exemption." 

"We just feel like they got it wrong this time around," Van Dyke said. 

Commissioner Randy Leonard, a former president of the city firefighter's union, said he's leaning against a court challenge. Leonard said he considered Frashour's actions "outrageous" and supported his termination, but the city must abide by the terms of its police contract, which includes binding arbitration. 

The other three commissioners said they need to further review the board's ruling.