Ron Frashour and Binding Arbitration

Nels Johnson

Last week the Portland City Council unanimously voted to challenge the ruling by the state Employment Relations Board ordering the City to reinstate Ron Frashour, the fired police offer who shot and killed unarmed Aaron Campbell. Predictably, the police union, Portland Police Association (“PPA”), took issue with the vote. PPA president Daryl Turner called efforts to fight the ruling as “brazen and misguided.” On the other side of the issue, Rev. LeRoy Haynes, chair of the Albina Ministerial Alliance Coalition for Justice and Police Reform applauded the Council’s vote.

I don’t blame Turner for zealously defending Frashour. He’s just doing what he was elected by his members to do, and frankly, his argument that binding arbitration – means just that – that it’s binding, is a pretty tough argument to quibble with. The issue isn’t PPA. Instead, there is a clause in the City’s contract with the PPA that requires all decisions made by the arbitrator in labor disputes “binding,” meaning the City must accept the ruling whether it likes it or not and has no legal ground from which to appeal the arbitrator’s decision. Say what you will about Turner’s criticism of the Council’s vote to fight the arbitrator’s ruling, but he’s got a solid legal argument to stand on.

Now I’m no Frashour apologist. Binding arbitration or no binding arbitration he should never wear a Portland Police Bureau uniform again. I applaud Mayor Adams and the City Council for the courage in taking a stand and doing the right thing, even if they are likely to lose at the Court of Appeals. But the Frashour case illustrates one of the fundamental problems with the Police Bureau, and that is binding arbitration.

In the Article 22 of the current contract between the City and PPA (which can be found on the City's website), either party may invoke arbitration in an employment dispute. The arbitration is “final and binding,” meaning that you can’t appeal the decision to the Court of Appeals or the Supreme Court in the same way you would appeal a lower court’s ruling. Binding arbitration puts the City at a serious disadvantage by taking away tools of resolution and effectively eliminating the City’s ability to properly litigate a case through the court system. Binding arbitration is also unaccountable to the public. All court judges in Oregon must be elected and held accountable by the public, arbitrators don’t have to be. Therefore the public has no way of holding arbitrators accountable for rendering decisions that the public disagrees with.

Portland’s history shows that binding arbitration has made it nearly impossible to hold police officers accountable for the use of inappropriate force. In fact, according to the Portland Mercury in an April 5th, 2012 report, PPA has invoked binding arbitration and seen to it that every Portland police officer fired over the past 20 years for the inappropriate use of deadly force was fully reinstated. It’s things like this that continue to erode the public’s trust in the Police Bureau, and gives the majority of officers, which are very fine and outstanding people, a very tainted and bad name.

Ending binding arbitration is good for both sides. The City and voters get the accountability of having an elected judge make the decisions related to police conduct and PPA gets to do away with a process that is doing irreparable harm to their public image and credibility with the public. Both sides would benefit enormously from an open, fair and accountable judicial system deciding whether it was right for the City to fire Officer Frashour.

One of the first big tests of leadership for the next mayor will be to negotiate a new contract with PPA before the current one expires on June 30, 2013. The next mayor must think long and hard about what’s best for the police department, the city government and most importantly, each and every citizen. Restoring the people’s trust in the Police Bureau isn’t going to be painless or easy. But a good way to minimize potential future problems of police misconduct and provide public accountability would be to do away with the mandatory arbitration clause in the next round of collective bargaining.

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    I was the PPA's lawyer for over 30 years, and can give you a perspective on binding arbitration and police discipline.

    Binding arbitration has been part of the PPA contract for almost 50 years. Over that span, the PPA has actually sent cases to arbitration at a rate of less than one a year, with many of the arbitration issues having nothing to do with discipline (e.g., seniority, overtime, etc.). In any year, the Police Bureau disciplines a number of officers, issuing penalties ranging from reprimands to suspensions to demotions to terminations. This means that over the years, there have been hundreds of disciplinary actions the PPA hasn't challenged through arbitration.

    And the rare disciplinary case that does end up in arbitration? Sometimes the City simply makes a mistake. It may make a mistake about the facts, or it may make a mistake that's politically driven, or something else might go awry in the process. Binding arbitration exists as the safety valve for precisely those sorts of cases.

    Binding arbitration isn't about the PPA having wrested control from the City of the disciplinary process. The City has always had, and continues to have, firm control over police discipline. What binding arbitration is about is the ability of the PPA, which represents working people, to challenge the decision of an employer when the employer is wrong.

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    There is a substantial issue about trying to take excessive force and deadly force discipline out of the binding arbitration clause of the contract, especially given the PPB's bad history, its continued paramilitarized culture (Vera Katz' worst legacy as mayor), and recent Federal DOJ findings that back up much local news reporting and community criticism.

    However, binding arbitration is a feature of nearly all public sector union contracts in fields where the law prevents strikes, because the workers don't have the option to withdraw their labor to create pressure when the bosses acting wrongly or in bad faith.

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