Sunday, April 21, 2013

Police discipline and public policy

Portland, OR police officer Ron Frashour was dismissed following his involvement in a fatal shooting of an individual who turned out to be unarmed. The City claimed that he had used excessive and unnecessary force in violation of the City's deadly force policies. Arbitrator Jane Wilkinson, in an award discussed here, upheld a grievance filed on his behalf and ordered him reinstated. Arbitrator Wilkinson concluded that Officer Frashour did not act unreasonably under the circumstances, and that there was no evidence that he had violated any City policy.

The award prompted controversy, Crowd protests arbitrator's decision to re-hire cop, and the City announced it would not comply with the award. The City maintained that the award was inconsistent with an Oregon statute providing "any arbitration award that orders the reinstatement of a public employee or otherwise relieves the public employee of responsibility for misconduct shall comply with public policy requirements as clearly defined in statutes or judicial decisions....

In response to a charge filed by the Portland Police Association, the Oregon Employment Relations Board found that the City had committed an unfair labor practice by refusing to comply with the award. It rejected the City's public policy argument, noting that Arbitrator Wilkinson had found as a fact that Officer Frashour had not engaged in misconduct.

The City has now appealed that decision and briefs have been filed in the dispute. Portland Mercury: Police Union Answers City in Appeal over Frashour reinstatement. The City maintains that the Arbitrator improperly failed to give deference to the City's conclusion that its policies were violated.

The City argues in its appeal:

ERB erroneously began and ended its inquiry with the Arbitrator's finding that Officer Frashour did not engage in misconduct. It was the Arbitrator's refusal to afford deference to the determination of the Chief of Police that Officer Frashour's killing of an unarmed, non-resisting, emotionally distraught man, on whose welfare the police were trying to check, violated the City's deadly force policies, that failed to comply with public policy requirements. In other words, it was not so much what the Arbitrator decided, but rather how she decided it that violated public policy.
In its reply, the Portland Police Association argues:

The City suggests that if the Arbitrator agrees with the City's conclusion that Officer Frashour violated City use of force policies, then the Arbitrator's award is consistent with public policy. But if the Arbitrator disagrees with the City and holds that Officer Frashour did not violate any City policy, then her award violates public policy because she did not defer to the City's decision. In other words, the City argues that it can make an incorrect disciplinary decision, one that might be motivated by political concerns or driven by an inadequate investigation, and that its decision must be upheld by an arbitrator.
The Portland Mercury links to the briefs filed by the City (here) and the PPA (here).
Professor Henry Drummonds has written an article discussing the public policy exception to enforcement of arbitration awards. That article is discussed here.

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