Measure 26-217: Portlanders weigh scrapping the city’s system of police oversight

Portlanders will decide in November whether to scrap the city’s system of police oversight and replace it with a new body.

Propelled by a national uprising over systemic racism and police violence, Commissioner Jo Ann Hardesty successfully pushed to get a measure on the November ballot that would create a new civilian oversight body with the power to discipline and fire police officers. The City Council voted unanimously this summer to refer Measure 26-217 to the November ballot.

Related: OPB’s 2020 election coverage, ballot guide and results

A poll conducted this summer showed 70% of Portland voters support the change. While the proposal faces little in the way of formal opposition, the measure has its fair share of skeptics who warn it will face significant legal challenges if approved. The Portland Police Association, the union representing the rank and file officers, says the new body would violate their contract with the city and will get tied up in litigation if the measure passes.

But that contract is up for negotiation in January and Hardesty said she is confident the voters will send a clear message, strengthening the city’s bargaining position when the time comes.

“Having four city attorneys who worked on this particular ballot measure, as well as three outside attorneys, I am absolutely confident that we have the time and the political will to make the changes necessary prior to seating this board,” Hardesty said.

What it does

If approved by voters, the measure will amend the city charter to establish an independent police oversight board with members approved by the City Council.

Members would wield a significant amount of power. The board would have the authority to discipline and fire police officers — a power currently reserved for the police commissioner. They would have a guaranteed budget of no less than 5% of the police bureau’s budget, which this fiscal year would have been $11 million. That’s compared to the current Independent Police Review board’s $2.8 million budget. And they would function independently of any government official.

The new oversight board would have the power to investigate all deaths in custody, uses of deadly force, complaints of force causing injury, discrimination against protected classes and constitutional rights violations. The board would also be tasked with making recommendations on police policy and directives that the City Council — and not the police bureau — would get the final say on implementing. What types of policy the independent board could recommend has not been defined.

The board would also have the power to subpoena documents and compel statements from police officers during investigations. The measure says board members should have diverse backgrounds, including lived experience with systemic racism, mental illness and addiction. It specifically prohibits current or former police officers — or anyone in their immediate families — from serving on the board.

The proposed changes would mean the end of the Independent Police Review, a city agency that investigates complaints made against police. Many have criticized the agency for lacking the power to hold police accountable.

Another major critique of the current system is that Independent Police Review investigations are often confidential. Disciplinary decisions are left up to the police chief and police commissioner — a post currently filled by Mayor Ted Wheeler. Those decisions can be overturned by an arbitrator if the police union appeals.

State law shields most of these investigations into police misconduct from being disclosed to the public. So while Hardesty has promised a more effective and transparent form of oversight than what the Independent Police Review offers, it will require changes to state law and within the union contract to become a reality.

Her staff hopes approval of this measure will pave the way for those changes.

“This is an attempt to create a system that provides outward pressure to get the changes we need,” said Derek Bradley, Hardesty’s policy director, in a July City Council session.

Who’s for it?

Supporters say abolishing the Independent Police Review is a necessary step to rebuild Portlanders' trust in the police, and will ultimately lead to a more stable and better-funded oversight system.

“I think we will be the model for this specific type of oversight board,” said Hardesty, who believes the mandatory budget is critical if the board is going to withstand political pressure from powerful interests. “The only way that this ballot measure gets changed is by a vote of the people. And I think that’s appropriate because I’ve seen too many times where political will or interest was not consistent with what community will and interest was.”

The end of the Independent Police Review will also spell the end for the Citizen Review Committee, which serves as a volunteer advisory board to the Independent Police Review. Still, the measure has the support of CRC chair Candace Avalos.

In the current system, Avalos said, board members pour hours into crafting recommendations for the police bureau only to have those recommendations ignored. She said they spent two years pushing to strengthen the committee by changing their “standard of review.” But the bureau had no reason to listen.

“It just kind of died because there’s no mandate to anyone to follow up on anything that comes out of any of our advisory boards,” she said.

Measure 26-217 would change that. If the new oversight board wants to change police policy or directives and the bureau rejects the recommendations, it could head to City Council for a vote.

“So there’s actually a mechanism to have accountability for policy recommendations,” Avalos said.

Jason Renaud, the founder of the Mental Health Association of Portland who now sits on the campaign’s steering committee, said if the measure passes he expects significant hurdles before voters will see the kind of oversight Hardesty envisions. The police union will need to get on board. And overhauls of this magnitude take time to implement, he said. Some will inevitably grow frustrated that this new body did not come together as rapidly as they expected when they cast their vote.

But Renaud said he believes the city needs to try for a clean slate.

“When a bureaucracy has lost the confidence of a community and the community doesn’t believe it can do what it says it can do, you need to move it out, change the name, change the faces, change the mission and try again,” he said. “Do protesters think they’re going to get justice with IPR? No.”

Dan Handelman, the head of the police oversight activist group Portland Copwatch, has been advocating for years for a form of oversight similar to what voters will see on the ballot in November.

“In that sense, the outcome will be something that we’ve been seeking as an organization for a long time,” Handelman said. He noted he’s not formally endorsing or opposing the measure

But having watched Portland grapple with different forms of police oversight for three decades, he said he’s skeptical the new body will come to fruition exactly as it’s being pitched to voters.

“I think it would be good for members of the general public who support the ballot measure to understand that it might not get implemented exactly as it’s written,” Handelman said. “It could be tied up in court for some time.”

Who’s against it?

The measure faces no formal opposition.

But should the measure pass, the city is certain to run into a wall of stiff challenge from the police union.

Days before the City Council unanimously voted to refer the measure to voters, Portland Police Association President Daryl Turner wrote a lengthy letter accusing the city of rushing the proposal and violating labor law. The union maintains anything that deals with discipline needs to be bargained for with the union under Oregon’s Public Employee Collective Bargaining Act.

Turner has argued asking voters to approve a new disciplinary body without first getting it approved by the union is moving in reverse order — and giving voters false confidence in a plan that could get tied up in court.

“Voters will listen and hear reform and hear accountability and be all for it; I mean, who wouldn’t?” Turner said. “But then, in the end, you don’t read the small print: ‘This has to be negotiated by all parties.’”

Attorney Anil Karia, who represents the union, said the Portland Police Association plans to challenge the measure for violating its collective bargaining right.

“The entirety of the existence of this board will be litigated,” he said. “...The union is yelling from the mountaintop saying, ‘If you do this, this is what the cause of actions going to be, don’t do it.’ You’re going to make promises to the public you can’t keep.”

The police union has sued the city in the past over similar issues. In 2012, Portland voters approved a measure that changed the way the city calculated retirement benefits for police officers and firefighters. The union saw it as a bargaining issue and it ultimately got overturned in arbitration.

“You have to negotiate first before you look to voters to approve changes,” Karia said. “And the city has repeatedly lost that fight over and over again.”

On the day the council referred the measure to voters, some city commissioners voiced muted reservations that, if enacted, the measure would clash with the union contract and state law. The mayor noted that the measure had a severability clause, meaning if any one section is struck down by the courts, it won’t drag the rest of the measure down with it. The first sentence in the measure states the city has to meet its legal responsibilities under the Public Employees Collective Bargaining Act and “other state and federal laws” before the body could be created. All council members voted in favor of the measure.

There is one elected official in City Hall who has come out against the measure. Portland City Auditor Mary Hull Caballero, who oversees the Independent Police Review, argues the city is rushing an unvetted proposal without a clear plan for how it will work once Portlanders vote it into existence. She pointed to the lack of government oversight in the proposal.

“Is it going to be something that floats in a parallel universe of the rest of the city and no one can touch it, but money just keeps flowing toward it?” she asked. “Government with no checks on it is never a good idea.”

The first ballots go out Oct. 14.