As the Portland protests against police brutality rage for the 10th week straight, legislators met in Salem Monday to discuss incremental police reforms. Chokeholds, tear gas and tweaks to the new statewide police disciplinary database were all on the table. Ultimately ,only House Bill 4301 passed, which tightens rules around chokeholds and limits the use of physical force.
But in the rush to get something on the books, city and state lawmakers may be overlooking one of the keys to police transparency and accountability: Police unions, which have the power to shield officers from discipline.
Unions hold a tenuous position in the U.S. Designed to empower workers to organize and bargain for higher wages, better working conditions and reduced hours, unions rose to the height of their influence during the Great Depression, and were responsible for many of the Progressive policies of the New Deal, according to the union umbrella organization, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO).
Today, unions have largely been outlawed by states or trammeled by corporations that have a lot to lose if their workers organize for living wages, healthcare and paid sick leave. A few notable unions remain, representing autoworkers, nurses, journalists, flight attendants, teachers and… police.
Historically, police and labor unions have had a brutal and violent relationship: Beginning as early as 1850, police were called in to break up labor strikes and often beat and killed striking workers.
Eventually, police wanted the benefits of collective bargaining for themselves. The Portland Police Union is the longest operating police union in the country, established in 1942, according to Willamette Week. The Bend Police Association was recognized in 1974.
Arbitration
In Oregon, police unions have power to dictate the terms of officers’ employment. If they have any grievances with contracts, department policies or disciplinary measures, officers can force the case into arbitration—meaning that cases stay out of court, but the final ruling often falls in favor of the police union or officer, at least on a national level. A report from The Washington Post documented 1,881 officers who were fired between 2006 and 2016, and 451 got their jobs back through arbitration.
“Police are members of what are referred to as ‘strike prohibited bargaining units,'” explained Deschutes County District Attorney John Hummel. “To avoid the danger of public unrest that might result if an entire police force went on strike, Oregon passed a law that prohibits police (and certain other groups) from striking. In exchange, they get to submit their grievances to an arbitrator for a binding decision.”
“It’s an all-or-nothing decision, and the City is usually afraid it will lose, so things rarely get to that point in Bend,” said Bend City Councilor Bill Moseley, who also previously worked as an attorney. “The contract itself is negotiated almost entirely with the City’s HR [human resources] director. We’re [City Council] consulted so late in the process, we’re not really in a position to take issue with anything.”
Difficult task of discipline
The more significant result is that it makes disciplining officers very difficult, Jeff Eager, a local attorney and former Bend mayor, explained to the Source during a recent interview for our “Bend Don’t Break” podcast.
“It makes local jurisdictions reluctant to issue discipline to begin with because they know that there is likely to be an appeal, and if there is an appeal, the arbitrator is likely to rule with the union member,” Eager said.
State legislators may bring a new law to the table in the coming months that would take some power away from arbitrators in Oregon. One idea: if a jurisdiction tries to fire an officer and the officer fights it in arbitration, the arbitrator can only get the officer rehired if the officer is found not guilty of the alleged violation, Hummel explained. The new law would also require a “discipline matrix” so that arbitrators can’t decide disciplinary measures on their own.
Police records are not public
The discipline process for Bend police officers is also largely hidden from public view, thanks to state law, and stipulations in the Bend Police Association contract.
Unless the officer is fired or is arrested for a crime, the disciplinary process happens behind closed doors. In order to shield themselves, officers usually resign before being fired. According to John Beck, vice president of BPA, only a few officers from BPD resigned over the last decade, but the public has no way of knowing the details. One notable exception was the resignation of Lt. Chris Carney in 2014, who stepped down after investigators determined he had sexual contact with several city employees and a member of the media.
In its last session, the Oregon State Legislature passed a law that the Department of Public Safety Standards and Training must now keep an online, statewide database of some discipline information. It has to be an offense egregious enough for the DPSST to consider revoking the officer’s Oregon certifications. Its current open list of cases contains no officers from Bend, but three from the Deschutes County Sheriff’s Office.
Like many local public sector contracts, BPA’s contract states: “If the City has reason to discipline an employee, it will attempt to do so in a manner that will not embarrass the employee before other employees or the public.”
Oregon state law backs this up with two confusing laws: basically, the disciplinary documents cannot be exposed if the employee is disciplined, and the documents cannot be exposed if the employee is not disciplined. The one exception: if it’s in the public’s interest to know about it. An officer running for county sheriff would justify disclosure, for example. But a journalist could not request all the records of police discipline over the last year. Even if a journalist had a specific incident they’d been tipped off about and requested the records, public bodies could still deny access.
“In other professions, you can look it up and see what has been concluded for disciplinary actions; you can see this for a doctor or a dentist,” said Moseley. “Of course, I believe they are entitled to due process, but it’s in the public’s interest to see the outcome.”
John Beck of the BPA explained that the union is brought in for all allegations of officer misconduct. The union can bring in their own attorney if the situation warrants, and union members have time to work with the officer to prepare them.
Moseley suggested that it may be time for Bend to consider instituting a civilian oversight board to oversee some police disciplinary matters. Portland has had an 11-member Citizen Review Committee since 2001, designed to improve police accountability and increase public confidence. Bend has a Citizen Advisory Committee that meets with the chief of police to represent the “opinions and perspectives of the entire community,” but it’s not involved in individual police discipline.
Use of deadly force
Typically, when officers are involved in an incident where they kill someone, they have a few days to decompress and organize their story. While the BPA doesn’t mandate a waiting period for its officers, Deschutes County Sheriff’s Office’s “Deadly Physical Force Plan” mandates officers have a “reasonable” amount of time to organize their story.
DA Hummel said he’s against the union contract mandating the waiting period and that officers should be treated like any other person who kills someone: They should be immediately questioned, yet have the right to remain silent until they have assembled legal counsel, if they choose.
Benefits of the union
“The chief has to be willing to listen and so does the association,” Beck said. “The old way is not having good, open communication with your administration and the inverse as well. The collaborative approach makes it better for everybody.”
City of Bend Assistant Attorney Ian Leitheiser—who handles many of the legal issues involving the police department—said that BPA’s contract is really “pretty standard” for other public sector employees in Bend.
“I can say that I have not seen our contract with the police association as a hindrance to addressing disciplinary concerns when they arise, contrary to what some may think,” said Leitheiser said. “Command staff have been able to manage employee performance and conduct when necessary, within the framework the contract provides.”
“In today’s role, the union is a lot different than it used to be,” Beck said. “Our role is not just to argue every point there is to argue, but to make the agency the very best we can, and do that in cooperation with the administration and City government.”
While it is nearly impossible to know much of what has gone on behind closed doors in regards to police discipline at the BPD over the last decade, in my interviews for this article, the consensus has been that there was a major cultural shift in the department when former Police Chief Jim Porter took over in 2014.
Either the City and the BPA are doing a really good job at hiding any evidence of the “few bad apples,” or the department evolved into a much healthier organization under Porter’s tenure. Perhaps problematic behavior from officers are identified and addressed early enough that these errors of judgement don’t explode into egregious acts of police misbehavior?
As the Bend Polic Department moves into a new era with the controversial hiring of Mike Krantz, and the tides of public opinion demand more transparency and accountability from those paid to protect the community, the coming years will undoubtedly test the resiliency and adaptability of the department’s officers and administration.
This article appears in Aug 12-19, 2020.
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The following paragraph shows real lack of research regarding unions:
“Today, unions have largely been outlawed by states or trammeled by corporations that have a lot to lose if their workers organize for living wages, healthcare and paid sick leave. A few notable unions remain, representing autoworkers, nurses, journalists, flight attendants, teachers and… police.
I am not a fan of police unions, but I guarantee you that there are a lot more people served by unions that the handful of industries and groups of workers you mentioned. Yes, unions are under attack. And misstatements like “unions have largely been outlawed by states” sure don’t help. I’d be happy to provide you and the Source staff a tutorial on the labor movement based on some 25 years of work in the field. Have you ever heard of SEIU or AFSCME or OSEA or ILWU or IBEW or CWA or…well you get my point. You could look it up.
How about an article on how corrupt the teachers unions are?
Thanks from writing in Mickey.
“Fifty years ago, nearly a third of U.S. workers belonged to a union. Today, it’s one in 10.”
https://www.npr.org/sections/money/2015/02…
The point I was trying to make is that unions are a lot less powerful than they once were and over the years corporations have had the ability to convince lawmakers to pass laws that make it harder for unions to organize. Why aren’t there unions for fast food workers, Amazon workers, Walmart workers?
The list I wrote out was not intended to be exclusive. And I was not trying to insult the unions that currently exist or the labor movement in general, but to paint a picture that underscores that the labor movement has indeed lost a lot of power over the last half century. The article was not meant to be a long history of the labor movement, but I did want to put unions in some kind of historical context.
Of course I would be interested in your perspective on unions and it would be great to be able to interview you when we do a longer article on the topic in the future. Please feel free to email me with your contact information.
While a police officer in Astoria, Oregon, our sworn officers were represented by the Teamsters Union.
At the time, the department’s administration had weaponized the internal disciplinary policies to harass, intimidate, isolate, and otherwise terrorize our sixteen officers for its own purposes. This is not uncommon in American law enforcement – and certainly Bend PD has seen its fair share of such intimidation over the years.
In Astoria, the Teamster representative, who was superb at his job, told us our collective group generated more complaints about department’s administration and front line supervisors, and saw more union interventions that derailed frivolous allegations made by the administration, than any other bargaining group on the North Coast.
“They use the system against you guys,” he told us. To try and keep you in fear of your jobs and in line with what they want.”
Again, this is sadly and tragically true throughout the country and one reason cops offer they have to “wear more body armor on our backs than in front” given the level of administrative witch-hunting that goes on.
Police unions, or associations, fight this battle daily on behalf of their members.
One result of such “witch-hunting” can be a personnel file filled, over the years, with baseless allegations, complaints, and internal “investigations” that are shown to be false upon the officer and her/his union successfully challenging them. If viewed by an unknowing reporter, or attorney, or just Joe Citizen with no clue about the reality of working under such a system of harassment, the officer could look very bad.
When in reality she or he simply wasn’t the “flavor of the month” with the chief, or the captain, or the lieutenant, or the sergeant, or All of the Above.
Disgraced DCSO sheriff Greg Brown was legendary for his misuse of his authority and the disciplinary system while happily looting the public coffers; now retired chief Jim Porter’s departure was welcomed by a number of BPD officers who’d fallen prey to the administrative lynching process both before his tenure and during it.
https://www.linkedin.com/pulse/ungracious-exit-chief-jim-porters-betrayal-deschutes-greg-walker/?trackingId=0lIqbB%2F5o9psKIS3lHtnHw%3D%3D
So, as there always is, the “rest of the story” is as interesting as its beginning.
And this includes mid and senior level administrators who willfully cover for favored officers who they suspect or know have violated the Public Trust. One such example is the 2016 killing of Mr. Tyler Jacques by former BPD officer Marc Tisher and current officer Scott Schaier.
https://www.linkedin.com/pulse/justifiable-negligent-homicide-greg-walker/?trackingId=jKz6X4aQAkT2FOkLBEuKQA%3D%3D
Cops today, if they choose to remain in law enforcement for longer than five years, now have private legal counsel on their speed dials. Even the unions or associations are becoming daily more suspect – and the need to expertly challenge, defend, and win requires one’s own legal representation.
Oregon’s Department of Public Safety, Standards, and Training should likewise expedite the de-certification of law enforcement officers being investigated by this agency for a wide variety of alleged wrongs. There are, and this is public record and available on the DPSST website, cops “out in bad standing” who have languished on the de-certification grid for years now – former DCSO deputy Eric Kozowski being one of these.
https://www.oregon.gov/dpsst/cj/pages/professionalStandards.aspx
Until the State of Oregon begins cleaning up its own house where its responsibilities to the General Public and well serving officers, agents, and troopers are concerned – the unions / associations remain the least of the problem.