FILE: Portland police cordon off a neighborhood after an officer shot and killed a person while assisting the Drug Enforcement Agency on Aug. 27, 2021 in Portland.
Jonathan Levinson / OPB
Nearly three years after Portlanders overwhelmingly voted to establish a new system to address police officer misconduct, the details of the new oversight body are coming into focus.
Portland City Council will decide next month whether to adopt new code language that delineates the power and structure of the voter-approved system. The proposal comes from a commission of 20 city-appointed volunteers tasked with drafting this text and creating a transition plan from the current oversight system to the new body by 2025.
While members of the public who advocated for the new oversight body are eager to see the long-awaited plan fall into place, the proposal has garnered hesitation from city politicians who question whether voters still support a police oversight system divorced from the police bureau. Yet there’s little room — or time — for adjustment: The system must be presented to the U.S. Department of Justice by November for approval, and it must match the requirements of the voter-approved measure.
Members of the Police Accountability Commission who have spent two years laying the groundwork are hoping for success.
“We are trying to build something that’s not going to be just sort of another flash-in-the-pan system that’s going to need to be replaced again in a couple years,” said KC Lewis, a commission member and attorney with Disability Rights Oregon. “Something that is going to serve everybody justly and build confidence in the city of Portland, and hopefully build confidence and trust with the Portland Police Bureau.”
Controversial history
The city’s current police oversight system has run low on public trust for years.
Since 2001, the Independent Police Review has been responsible for reviewing complaints from members of the public who believe an officer violated police bureau policies — allegations that include everything from officer profanity to unjustified use of force.
If an investigator with the Independent Police Review determines that an officer has violated policy, they kick their findings to the police chief or police commissioner to determine if discipline is warranted. That discipline can be overturned by an arbitrator if the police union appeals. If an investigator finds no evidence of misconduct, they dismiss the complaint — unless the person who filed the initial complaint appeals to a volunteer review board, called the Citizen Review Committee.
The Independent Police Review is barred from ruling on of the most egregious misconduct allegations, like cases where an officer uses deadly force or where a person dies while in police custody. Those complaints are reviewed by a panel of seven people, four of whom are police bureau staff.
This system has long drawn criticism from police accountability advocates for giving the police bureau outsized influence in investigations into the most serious allegations against their coworkers. The Independent Police Review’s investigations are confidential and the oversight body plays no role in choosing consequences for officers who violate city policy.
For those with a front-row seat to this system, the lack of transparency undermines any sense of accountability. Candace Avalos, executive director of the environmental justice nonprofit Verde, has sat on the Citizen Review Committee since 2017. Because the appeals board can’t compel officers accused of misconduct to testify or attend their appeals hearings, the commission is forced to draw conclusions based on scant information
“A lot of times in these complaints, it’s just miscommunication that could be cleared up with a simple conversion between the complainant and the officer,” Avalos said. “Instead they drag on for months.”
Avalos and others on the Citizen Review Committee lobbied the City Council to update its police oversight system for years. But it took the momentum of 2020′s social uprising over systemic racism and police violence to get an overhaul on the ballot.
A new plan
Measure 26-217, the proposal championed in City Hall by former Commissioner Jo Ann Hardesty, passed with 82% voter support in November 2020.
The measure set the stage for the city to replace the Independent Police Review with a new city department to oversee police misconduct. That office will be led and informed by a city-appointed oversight board, which will have significantly more power than its predecessor.
The measure guarantees a budget for that new department that is no less than 5% of the police bureau’s budget, which this fiscal year would have been $13 million. The Independent Police Review currently has a budget of $3 million, 23% of the future department’s budget.
Per the measure, that board has the power to investigate all deaths in custody, uses of deadly force, complaints of force causing injury, discrimination and violations of constitutional rights. The board also has the authority to subpoena documents and compel statements from police officers during investigations, and discipline and fire officers.
The measure, which has now been codified in the city’s charter, explicitly prohibits people who have worked for a law enforcement agency and their immediate family members from serving on the oversight board.
Measure 26-217 instructed the City Council to appoint a Police Accountability Commission to hammer out the system’s finer details. Those details are included in the code language headed to Council this month.
The commission shared a draft version of the proposed code earlier this month.
It instructs the oversight board to be made up of 33 members appointed by City Council for three-year terms. The board will receive a to-be-determined financial stipend, be responsible for investigating all citizen complaints against police officers, and must resolve investigations within six months.
The commission suggests that most board complaint hearings be public, which is not the case with the Independent Police Review. It also instructs the board to follow the police bureau’s discipline guidelines when considering officer discipline. Under the proposed rules, police bureau leadership is not allowed to lessen the severity of discipline ordered by the board.
After the board is appointed by council by 2025, board members will hire a director to lead the next oversight office. That director will be responsible for hiring office staff to assist in policy research, data analysis, communications, public engagement and any other tasks to support the board’s work. The commission estimates a staff of up to 56 people. In comparison, the Independent Police Review has a staff of 12.
After more than a year of work, the Police Accountability Commission is confident their proposal will set the new oversight group up for success.
“City Council gave us a clear charge of what they wanted from us,” Lewis said, “and we feel that we have delivered exactly what they asked us for.”
Some on City Council not sold on future system
Yet council members have been lukewarm about the future oversight system.
Earlier this year, members of the commission spoke before Council about their progress on the transition plan and code language. During these meetings, city commissioners expressed concern with the basic tenets of Measure 26-217.
Portland Mayor Ted Wheeler, who serves as police commissioner, said he was worried that the public wouldn’t take the board seriously if it didn’t include police officers. Commissioner Mingus Mapps balked at the size of the board’s budget. Told that these voter-approved factors weren’t up to the commission to tweak, Commissioner Rene Gonzalez suggested maybe voters’ minds have changed.
“What was adopted in 2020 by voters… it’s frankly a very different voting base that exists in 2023,” Gonzalez said.
That’s not the impression Police Accountability Commission members have taken away from their more than 150 public meetings. Members say they largely heard concerns that the group isn’t working fast enough to stand up the needed oversight body or fears that the new board might not really be as powerful as promised.
“We’re trying to create something on behalf of the community,” said commission member and retired substance abuse counselor Charlie Michelle-Westley. “It’s important for the city council to know who we’re doing this for…and to listen to them.”
Dan Handelman, founder of police accountability group Portland Copwatch and a commission member, said that City Council’s worries may be rooted in a different political shift.
“Even though the population hasn’t changed [since 2020], the City Council’s changed,” Handelman, who’s documented police use of force cases since the early 1990s, said. “And I think that’s an important thing for everybody to remember.”
Wheeler is the only current member of City Council who was in office when council referred Measure 26-217 to the ballot in 2020. From the measure’s inception, Wheeler has aired concerns about the police not playing a role in their own oversight system.
“My concern is if this isn’t seen as a balanced or fair approach to oversight and accountability it will quickly be seen as an illegitimate process,” Wheeler said at a May council meeting.
Wheeler declined to be interviewed for this story.
This isn’t the first time newer City Council members have questioned the intent of measures approved by voters before they moved into City Hall’s second-floor offices. In July, Commissioners Dan Ryan and Gonzalez proposed altering key parts of the voter-approved amendments to the city’s charter, citing concern that voters might not have understood what they approved. Much of that plan collapsed following public outcry.
Avalos, with the Citizen Review Committee, also sat on a committee that shaped the charter amendment measure — and testified against Ryan and Gonzalez’s proposed changes. With council members again questioning the will of voters, this time those who approved the police oversight board, Avalos said she’s losing faith in local government.
“It feels anti-democratic to tell voters that they know better,” said Avalos, who ran unsuccessfully for City Council in 2020. “It means we have to keep our eyes on elected officials, so they know they can’t disregard us. It’s a shame, but that’s where we’re at. I think they underestimate that people are paying attention.”
Police union’s position
The union representing 802 rank-and-file police officers has stayed relatively quiet about the coming overhaul. The Portland Police Association initially filed a grievance against the Portland Police Bureau after Measure 26-217 passed, arguing that by referring the matter to voters, the city wrongly bypassed union negotiations to adopt a new discipline policy. But this argument faded after state lawmakers passed a law carving out an exception to labor laws allowing for voter-approved police accountability boards to be effective without labor talks.
Following this challenge, Portland Police Association President Sgt. Aaron Schmautz expressed his cautious support of the new oversight system in a meeting with the Police Accountability Commission. Schmautz said officers are also interested in an oversight system that moves swiftly.
“When things take too long it deprives the officer of clear direction to ensure they’re meeting the community’s expectations,” Schmautz said in a July 2022 meeting. “It deprives them of closure.”
Yet Schmautz panned the idea of public hearings, fearing they could unfairly villainize officers who are later cleared of misconduct accusations. Schmautz declined to comment on the oversight board’s code language now headed to City Council.
Next steps
Once the code language lands in council chambers, council members are faced with several options. They can either approve the Police Accountability Commission’s draft language, reject it, or propose a substitution.
Whatever language is approved will go through a strict vetting process with the U.S. Department of Justice. This is required under the DOJ’s 2014 settlement agreement with Portland over the purportedly unconstitutional use of force by police against people with mental illness. That agreement requires the city to maintain a police oversight board. And any new iteration of that board needs federal approval.
In prior meetings, DOJ attorneys have said they will support a program that both adheres to the voter-approved measure and doesn’t veer from recommendations made by the Police Accountability Commission.
The Police Accountability Commission expects to present its code language to City Council in early September. Council must send that proposal – or their amended proposal — to the DOJ by November. The DOJ is expected to give its feedback to the city by June 2024, with the plan to get the new board up and running by summer 2025.
The rules guiding the new oversight board won’t be set in stone. The commission ensured that the department will be reviewed annually by the oversight board, which will be able to recommend changes to the city code or charter to improve the system. That’s key to the program’s long-term success, said Handelman.
“I think the public should be aware, nothing’s going to be perfect,” he said. “We want it to be perfect, and we think what we wrote is really good, but it can fix itself if there are problems that develop along the way.”