Negotiators in Portland police contract talks argued this week over whether the city has the right to create a civilian police oversight board that could independently discipline officers.

Steve Schuback, a private labor attorney serving as the city’ lead negotiator, and Deputy City Attorney Heidi Brown contended Wednesday that the city can decide who investigates police and who imposes discipline.

They said the civilian oversight board – approved by voters in November and now in the planning phase — would investigate certain misconduct allegations and issue discipline directly to an officer, independent of the police chief.

“We’re trying to come forward with the fact that our full intent is that there will be a board that will impose discipline, at some point in time,” Schuback said.

Attorney Anil Karia, representing the Portland Police Association, said he couldn’t understand how the city is trying to negotiate the discipline grievance process for the contract when the city hasn’t set parameters yet for the future oversight board’s powers.

“We can’t bargain the impacts of something when we have no idea what the ‘it’ is,” Karia said.

Further, he said, the union holds that the city’s creation of such a board alters the police disciplinary process and must be negotiated as part of collective bargaining.

“I can show you reams of case law from both the (state Employment Relations Board) and from throughout the country that changes to the disciplinary systems are a mandatory bargaining subject,” he said.

The union cited a decision last month by the Employment Relations Board in a Portland Public Schools case that found both the standard for disciplining employees and “the procedures and guidelines for discipline” are mandatory subjects for bargaining. The state labor board also cited a Portland Fire Fighters Association case against the city of Portland from 1995.

Brown countered that the city is only changing who issues the discipline not the disciplinary process. The city, though, is open to negotiating how officers challenge discipline imposed by the new board, she said.

“We’re talking about the management right to determine — not the process — but the person that makes the (discipline) decision,” Brown said. “The city disagrees with you that we are making a change to the disciplinary process.”

The union last year filed an unfair labor practice objection to the city’s plan to create a civilian oversight board without having negotiated the change.

“I’ll have to figure out a way to understand how getting rid of a current disciplinary system and replacing it with a new system is merely just changing people,” Karia said.

Wednesday marked the third public session of contract talks, held via Zoom video conference.

It came a day after the city urged Oregon lawmakers to adopt Senate Bill 621, essentially legislation to ensure that Portland’s new police oversight board can operate unimpeded by the state Employment Relations Board or a labor arbitrator. The bill also would acknowledge the city’s management rights to create such a board.

“What this bill does is really provide us certainty about whether or not we need to bargain this,” Brown told the Senate Judiciary Committee on Tuesday.

“If there are any impacts that would require bargaining … we would then address that at the time that the board is ready to actually get set up,” Brown said.

Darren Golden, who lobbied for the civilian oversight board through the Real Police Accountability PAC, told lawmakers that the support of 82% of voters in November for the new board marked a “culmination of decades of work’’ by advocates who have “dreamed of a better way to hold police accountable.”

The Portland City Council is working to fill a 20-member volunteer commission that is expected to meet for a year and a half to come up with the structure, makeup and parameters of a new board.

Jason Renaud, board secretary of the Mental Health Association of Oregon, testified in support of the bill, saying, “Cities and counties are the owners of police departments. And so they should be highly engaged in oversight and holding officers accountable.”

Chloe Becker, a lobbyist for the American Civil Liberties Union of Oregon, called the voter-approved board a response to the “crisis of confidence” that people in Portland have with the ability of police to police themselves.

Scott Winkels, a lobbyist for the League of Oregon Cities, and Shiloh Phelps , whose 22-year-old son Bodhi Phelps was shot and killed by Gresham police in 2016 , said the bill will not only help Portland but allow other cities to pursue similar boards that investigate and discipline their officers.

Winkels said any discipline issued by a civilian board would still have to adhere to a discipline matrix or guide each city adopts.

Michael Selvaggio, lobbyist for Oregon Coalition of Police and Sheriffs, called the bill an attempt by Portland to do an end-run around the state collective bargaining law at a time when the city is in contract talks with the police union.

“When the Legislature enacted the state’s collective bargaining law in 1973, it did so in order to ensure that the process balanced the interests of management and labor unions that collectively represent public employees,” Selvaggio said. “Passing Senate Bill 621 would be a terribly dangerous precedent to set.”

“Indeed, every local government would now feel compelled to come to the Legislature to change the rules to tilt the scales entirely in management’s favor at the local level bargaining tables, which would necessarily disenfranchise employees and their ability to meaningfully bargain over their working conditions,’’ he said.

Another topic raised Wednesday during Portland’s contract talks with the police union: Whether an officer facing an ongoing internal investigation into a complaint but in line for a promotion should be passed over for the promotion.

Schuback questioned how the city could promote someone to a higher classification with more pay and authority if they’re under investigation.

The union argued that there have been officers facing low-level complaints who have been passed over for promotion until after a complaint is cleared, which often can take months. There’s also been officers placed in acting supervisory roles, such as an acting sergeant’s job, who oversee a critical incident and then are passed over for promotion if that incident comes under internal investigation, and once cleared, have lost six to eight months of seniority because of a delayed promotion, Hunzeker said.

— Maxine Bernstein

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