Portland Mayor Charlie Hales has taken the unprecedented step of trying to break up the city’s police commanding officers’ union.
“Managers should be clear they are managers,” Hales said Thursday. “It just doesn’t make sense to have people who are in management positions be in a union.”

“In our opinion,” Hales added, “it’s quite clear in state law.”

The Portland Police Commanding Officers Association, established in October 1989, now represents 51 members, including all Portland police lieutenants, captains and commanders.

A deputy city attorney on Wednesday filed a petition with the state Employment Relations Board, asking the board to clarify the “public employee status” of all the members of the police commanding officers union.

The city argues that police lieutenants, captains and commanders are “supervisory employees” under the Oregon Public Employee Collective Bargaining Act’s definition, and therefore should be excluded from union representation.

Since the police brass “exercise statutory management prerogatives with respect to hiring, transfer, promotion, assignment and directing of work, and discipline,” the city argues, they should not be part of a union.

The mayor met with some members of the union’s executive board Wednesday to inform them of the city’s action.

Henry Kaplan, the attorney for the Portland Police Commanding Officers Association, said he had heard of the development, but declined to comment as he was out of state and had not seen the petition.

Portland attorney Will Aitchison, who had represented the Portland police rank-and-file union for 32 years and has counseled law enforcement unions across the country, said the city’s action will face practical, political and legal challenges.

“This is the first time I’ve ever seen the city try to decertify a union,” Aitchison said. “This is a strikingly anti-union move. It’s a direct attack on unions.”

Portland police officers, sergeants and detectives are members of the rank-and-file Portland Police Association.

If the commanding officers’ union is disbanded, Aitchison said he anticipates that few sergeants in the bureau would seek promotion, because they would no longer have the job protections that they now hold as members of the rank-and-file Portland Police Association. They also wouldn’t be able to challenge their discipline to an arbitrator.

“They’ll have a very difficult time convincing the best and brightest sergeants to take the promotional tests for lieutenants and captains,” Aitchison said. “The lieutenants will have no job protections. They could be fired at will.”

The city asks that the matter be heard by an administrative law judge.

“It seemed to me a time to look afresh at that question. We have a new mayor and it’s a time to make change in the bureau,” Hales said.

Hales said his 10 years working in the private sector has shaped his views.

“If you run a police precinct, you’re a manager. If you command the gang enforcement team or family service division, you’re a manager,” Hales said. “Come on, we’ve got an organization to run. Managers and leaders have to do hard things sometime – like discipline employees.”

Kathryn Logan, who chairs the state Employment Relations Board, said the board received the petition and is in the process of serving it to the union leadership. The union will have 14 days to file an objection. If there’s an objection, the matter will be heard before an administrative law judge, who will issue a recommended order to the state board, which then makes a final order.

Logan said she’s not aware of any other law enforcement union that represents management-level officers in the state. Yet unions for supervisory officers are common in large metropolitan cities, such as Seattle, New York, Boston and Phoenix.

The city likely will point to the definition of “supervisory employees” under the state Public Employee Collective Bargaining Act. Under the act, public employees do not include supervisory employees or managerial employees.

Supervisory employees, as defined in the act, are “any individual having authority in the interest of the employer to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection therewith, the exercise of the authority is not of a merely routine or clerical nature but requires the use of independent judgment. ”

Aitchison said the city will have to prove that lieutenants, captains and commanders have a meaningful influence on the disciplinary process of lower-ranking officers and sergeants. The union might argue that its members have exercised less authority over discipline in recent years, with much of that power resting in the hands of the chief and police commissioner, Aitchison said.

The Portland Police Commanding Officers Association is currently challenging Chief Mike Reese’s demotion of Todd Wyatt from captain to lieutenant after an internal investigation found he had inappropriately touched several women police employees and that he exacerbated an off-duty road-rage encounter by displaying his gun and flashing his badge at another motorist. A police review board had recommended Wyatt be fired.

In 2008, an arbitrator threw out then-Mayor Tom Potter’s firing of a Portland police lieutenant, Jeffrey Kaer, for his actions leading up to the January 2006 fatal shooting of Dennis Lamar Young, who was parked outside Kaer’s sister’s home. An arbitrator ordered the city to give Kaer his job back and suspend him for 30 days without pay.

Recently, the commanding officers’ union shared a series of embarrassing text messages that Reese’s right-hand man, former police director of services Mike Kuykendall, had sent to a police lieutenant. The text messages were part of an internal affairs investigation and led to Kuykendall’s resignation and lawsuits against the city by the police lieutenant and captain.

Reese did not comment on the petition, forwarding questions to the mayor’s office.

Hales said the petition was his idea. He said the chief knows he’ll face criticism for it, even though it’s not his idea.

“He’s understandably nervous” Hales said, of the chief, “but he’s a good soldier.”

From The Oregonian