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A proposal for a new police oversight panel approved by voters almost three years ago will come before the Portland City Council on Aug. 31. Council members are already signaling it may be in trouble.
After the George Floyd protests, 82% of Portland voters in November 2020 approved the creation of a new police oversight board that could investigate, discipline and even fire police officers who engaged in misconduct. And the new panel would be funded by an amount equivalent to 5% of the Police Bureau’s budget, about $12.5 million.
The ballot measure, spearheaded by then-Commissioner Jo Ann Hardesty, came at a time when Portlanders wanted greater police oversight. There was fresh impetus for change: Portland police officers regularly used excessive force against protesters downtown that summer.
And the city had a poor record historically of policing the police. The U.S. Department of Justice reprimanded the Police Bureau in 2014 for using excessive force against people with mental illness, leading to a settlement agreement under which the bureau still operates.
“This was something the community had been asking for for well over 20 years,” Hardesty says. “And the political will lined up with the people’s demand in the fall of 2020.”
But three years later, things have changed.
“There’s nothing the city is more concerned about right now than public safety,” Mayor Ted Wheeler said at a May 17 presentation by the 20-member Police Accountability Commission that’s crafting the plan for the new oversight panel. “And if people feel that we’re messing with public safety, or in any way weakening it, they will react.”
Wheeler warned the group he didn’t like some of its ideas: “I also don’t want two years from now somebody saying, ‘How could you guys not have seen this mess coming?’ if it goes the way I think it could go.” (Wheeler and his colleagues on the City Council declined to comment for this story).
Members of the City Council have shown a willingness this year to revisit ballot measures already approved by voters. They changed the allocation of money from the Portland Clean Energy Fund, and two of them took an unsuccessful swipe recently at the 2022 measure to change Portland’s form of government.
Observers think signals from Wheeler and his colleagues about police oversight are ominous.
“This is the tone you set when you’re about to gut something,” says Oregon Justice Resource Center lawyer Juan Chavez, “and I think that’s what they plan to do.”
In 2020, Portlanders and the City Council wanted fewer cops and greater scrutiny of those it had. Today, the city faces a public safety crisis.
It was in that changing environment that the 20 members of the Police Accountability Commission met 150 times in the past two years to draw up a blueprint for the new police oversight panel.
The new board will replace the current oversight panel, Independent Police Review. Critics say IPR, which has a $3 million annual budget, is toothless.
That’s because the police chief and police commissioner—currently, Wheeler—ultimately decide whether there has been officer misconduct and, if so, determine the punishment. The Police Bureau is engaged throughout the investigatory process, and some complaints are given to the bureau to investigate internally.
Chavez says the bureau’s involvement “waters down and dilutes IPR.”
“Who is that process then for?” Chavez asks. “It’s not for the public. It’s to the benefit of the officer.”
Commissioner Hardesty proposed Measure 26-217 to replace IPR with a better-funded, community-led board that could investigate more complaints and would also have greater authority to discipline and fire police officers found guilty of misconduct. That’s the primary difference: The new board will have the power to find guilt and impose discipline.
After the PAC wraps up its work Aug. 31, the City Council has 60 days to make changes before sending the plan to the U.S. DOJ for review (it must comply with the 2014 settlement agreement). Any part of the plan not explicitly mandated by Measure 26-217 is fair game for alteration.
Parts of the commission’s proposal appear to have rubbed the City Council the wrong way. The group proposes a 33-member board, for instance. That’s unusually large for a decision-making panel, and it’s the largest police oversight board that WW could find in any other major city in the country. (San Diego has a 25-member board.)
“It allows for a wider range of voices on the board,” says Tim Johnson, director of Willamette University’s Center for Governance & Public Policy Research, “but the tradeoff is that coordinating a large group and ensuring that it remains effective becomes more difficult.”
Another novel idea: Members could be paid up to $7,400 annually and provided free mental health care. (Members of public boards and commissions are rarely paid more than a nominal amount to cover expenses.)
Ten percent of the board’s overall budget, the commission recommends, should be spent on board members. That could include child and dependent care, therapy and personal security if a member feels unsafe. The board would hire a director, and the commission recommends creating a new bureau with up to 56 staff.
Determination of wrongdoing under the new plan would be in the hands of citizens—not the police officer’s bosses. The board would use the standard of proof of a preponderance of the evidence. That means an officer could be found guilty if more evidence than not suggests the officer engaged in misconduct.
Cops found guilty of wrongdoing by the board could appeal to a secondary panel, also made up of board members. So can citizens who lodge complaints.
Wheeler warned the commission in May that it needed to be careful about overreaching and losing public confidence.
“When it comes to police oversight, we’ve seen specific examples where police oversight boards have exploded in spectacular style due to a loss of legitimacy,” he said.
Parts of the proposal—such as the size of the board and its level of involvement in investigations—were not explicitly laid out in the ballot measure, and are therefore subject to change.
But there were provisions that can’t be changed. No police or their immediate family, for instance, are allowed on the board. Neither are former cops. Under the terms of the measure, the City Council, which appoints board members, should prioritize applicants with lived experience of police discrimination. Applicants should be racially diverse, and the board should also include members impacted by addiction and mental illness.
Of particular concern to the City Council is the board’s authority to subpoena testimony and compel the production of documents.
“I don’t have subpoena powers myself,” Commissioner Mingus Mapps remarked May 17. Wheeler wondered out loud how the Multnomah County district attorney would feel about such access to records.
“My concern is that if this is not seen as a balanced, fair approach to police accountability, it will quickly be seen by the public and by our employees as an illegitimate process,” Wheeler said. “Then we’ll have a major mess on our hands.”
PAC members assured the council they had conferred with law enforcement, including the Portland Police Association, and that officers would retain the due process rights they currently have.
In a sign that she is uncomfortable with the new oversight panel’s generous budget—5% of Police Bureau’s—Commissioner Carmen Rubio recently asked the city attorney if some of it could be allocated to cash-strapped Portland Street Response. (It can’t be; such a change would require a charter amendment, the City Attorney’s Office told Rubio.)
All five members of the City Council laid out their concerns in a June 9 letter to the PAC, urging the group to make recommendations “based on accurate information and distinguishing between statements of perception and statements of fact.” (The commission says it plans to update its plan “based off of council feedback.”)
“We’re dealing with the impacts of other measures that have cast long shadows,” Commissioner Rene Gonzalez said at the May meeting. “How do we assure fidelity to what voters approved, but as elected officials, when we see unintended consequences of what was approved, how do we adjust?”
Current Police Accountability Commission co-chairs Dan Handelman, Seemab Hussaini, and Charlie Michelle-Westley say they “are confident that City Council will thoughtfully evaluate our recommendations and the reasons behind them, because our recommendations will create a system that will serve all Portlanders fairly.”