Rehire of Portland officer who shot unarmed man contended

PORTLAND – The city of Portland has filed a legal brief contending that a Portland police officer who shot an unarmed man in the back two years ago should not be reinstated.

In a brief to the state Employment Relations Board, attorneys Howard Rubin and Jennifer Nelson wrote that rehiring Ronald Frashour would violate public policy because his use of deadly force was “unjustified and egregious.”

Mayor Sam Adams and police Chief Mike Reese fired Frashour in November 2010, after concluding that Aaron Campbell did not pose an immediate threat of death or physical injury and the officer failed to consider other tactical options.

Arbitrator Jane Wilkinson later ordered the city to reinstate Frashour with lost wages, finding that the city didn’t prove just cause for his termination. She said a reasonable officer could have concluded that Campbell looked like he was reaching for a gun.

The mayor refused to reinstate Frashour, and the union filed an Unfair Labor Practice Complaint against the city.

The Employment Relations Board can overturn the arbitrator’s order or let it stand.

“If the Board allows the arbitrator’s award and reinstatement remedy to stand, the result will be that the PPB and other Oregon law enforcement agencies, will not be able to set and enforce the higher standards for the use of force that the federal and state law endorse and our community expects,” the attorneys for the city wrote in their brief filed Friday.

Based on court rulings, the Employment Relations Board has used a three-part test to determine whether an arbitrator’s decision violates public policy: Did the arbitrator find the employee guilty of misconduct? If so, did the arbitrator relieve the person of responsibility for the misconduct? And is there a clearly defined public policy in statutes or judicial decisions that makes the award unenforceable?

Attorneys for the Portland Police Association say the city will lose outright on the first question because the arbitrator found that Frashour acted within bureau policy and training.

Union attorneys also argue that returning Frashour to the force would not violate public policy clearly set out in a statute or judicial decision, and that local policies aren’t relevant in the board’s consideration.