Police Defunding and Legal Shrooms? Justice Reform Faces Hard Questions in 2021

Energized by the summer’s racial-justice protests, several places passed police-oversight initiatives—San Francisco, Pittsburgh and King County (Seattle) among them. Another was Portland, Oregon, where the political and legal arguments give a window into how difficult the next steps can be.

Ballot Measure 26-217 would replace Portland’s current, mostly toothless Independent Police Review board with a powerful new commission that could subpoena documents, access police records, compel witness statements, including from police officers, as well as impose discipline, including termination. Voters in Portland, a city that’s become synonymous nationwide with persistent unrest, passed it with overwhelming 80 percent support.

But even before the measure passed on Nov. 3, there were rumblings of a legal challenge in waiting. And indeed, just two days after Election Day, the Portland police officers union filed a grievance with the city, alleging a violation of its collective bargaining agreement by allowing voters to decide something—in this case, disciplinary standards and procedure—that the city is contractually obligated to negotiate with the union. The grievance requested that the city effectively hit pause on the new oversight board until it negotiates a new deal with the union.

Mayor Ted Wheeler, who oversees Portland’s police bureau, has thrown himself fully behind the new board, declaring that the city would “actively defend the voters’ decision,” while also complying with the bargaining rules. It appears this could require some complicated moves, like changing state law: According to Oregon Public Broadcasting, later in November, City Hall asked state Sen. Lew Frederick to draft a bill that, if passed by the Legislature in Salem, would carve out a loophole in the Oregon’s public employee collective bargaining law to let the review board do its job.

Even if it all goes smoothly, it could be years before the commission hears a case. The City Council is expected to take at least 18 months to hammer out the details of implementation, including appointing a citizen-led committee to draft a proposal of the commission’s structure and operating guidelines.

For now and the foreseeable future, police misconduct complaints will continue to be overseen by the IPR—which, to add one more wrinkle, is overseen by an auditor who opposes the new board.

While the state decides whether to create the loophole, the city of Portland has to open scheduled contract negotiations with its police in January. Those talks could give the police union the opportunity to negotiate an alternative disciplinary arrangement or some other benefit in exchange for accepting the voter-supported commission.

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