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What keeps me and maybe Kate Brown up at night
In my free time lately, when my mind is not occupied with the immediate needs of a wife, two young boys, an elderly male cat named Baxter, two businesses, one weekly(ish) email newsletter and one or perhaps two blue jays (one of whom the boys named Alex) who screech endlessly at Baxter when he’s outside, I’ve been thinking about two things, mostly:
1. Are the blue jays being mean or friendly? Baxter’s too old to threaten them, and he honestly appears to enjoy listening to their screeches. It’s likely they are mocking him and he’s oblivious, just happy someone is paying attention to him, but I’d prefer to think cat and birds have a mutually supportive friendship.
2. Oregon Governor Kate Brown has a real problem no matter what happens with COVID-19, now, in the wake of protests Brown not only allowed in contravention of her lockdown orders, but endorsed and supported. If cases spike in the aftermath of the protests, her mistake will have been to ignore her own order. If cases don’t spike after thousands and thousands of people gather in Portland day after day, then her mistake was to issue orders that prohibited human interaction on a much smaller scale than what occurred during the protests.
The more I think about it, I’m pretty sure the blue jays are just messing with Baxter.
Cases are going up and Brown has paused reopening
Oregon set a record with 178 new cases reported yesterday, which helped prompt Governor Brown to freeze all reopening, while denying Multnomah County’s application to enter Phase I. One reason the Multnomah application was rejected is that more than 40% of the newly reported cases in the county could not be traced to a single source, a prerequisite to reopen.
Now, there is debate about what has caused the increase in cases. You can bet that some folks will say it’s reopening that’s causing the increase; others will say that it’s the protests; still others will say that it’s isolated workplace spread in places like Pacific Seafood in Newport. I don’t know the answer, but I do know that the Governor and almost every media outlet in Oregon are going to try to minimize the role of the protests, the Governor will also attempt to minimize the role of the reopening, which was her plan after all, and a lot of conservatives, to the extent you hear from them, will try to minimize the role of reopening and focus on the role of the protests. This should be fun.
What I’m thinking about this morning is the Portland restaurant owner, hair salon owner, “non-essential” retailer, and their countless employees who were ready to open this morning, subject to strict physical distancing guidelines, but learned last night that they could not lawfully reopen. Some of these businesses were boarded up due to protests in which thousands of people commingled with little regard for physical distancing, right outside. Even if you believe, like I do, that the peaceful protests were justified, this would be excruciating.
Employers unexpectedly added 2.5 million jobs in May, cutting the unemployment rate nationally to a still really high 13.3%. This is welcome news, of course, for those who have been able to go back to work. More broadly, the hiring increase, coming as it did during a month in which many states began reopening their economies, bolsters the possibility that the economy is staged for a significant and perhaps rapid comeback if and when COVID-19 and related restrictions ease.
This raises the stakes of getting reopening right considerably. If, rather than being shocked into a longterm slowdown, the economy in fact has the untapped potential of a senior citizen-piloted Porsche Cayenne inching its way, ever so hesitantly, through and between roundabouts on Bend’s Mt. Washington Drive, en route to a four-car heated garage in Broken Top, then the ongoing impact of the disease and policies to address it make a big difference.
For good reason, we’re hearing a lot about police misconduct and ways to combat police brutality in the wake of the George Floyd killing. It’s been reported that the officer who killed Mr. Floyd had been subject to numerous conduct complaints prior to this incident. How can this happen? Well, part of it has to do with police unions and the contracts they negotiate with cities. Those contracts can make it very hard to remove a poorly performing or dangerous officer. Just for fun, I decided to take a look at the collective bargaining agreement between the City of Bend and its police union. Fortunately, I think Bend has a really good police force, and we haven’t seen the same problems here that exist in other cities. However, the contract language is likely similar to that of other cities, so it’s worth review.
The thing is 39 pages long. Beginning on page 23, the Discipline and Discharge section is fairly straightforward, but with some oddities. For example, if the city disciplines an employee, “it will attempt to do so in a manner that will not embarrass the employee before other employees or the public.” If there were an issue of police brutality, it would be difficult to imagine how the city would “attempt” to address that issue without embarrassing the officer. The likely result of this provision is that the city has a strong incentive to “attempt” to keep its disciplinary actions secret to avoid embarrassing the officer. This serves the offending officer well, but not the public. Also, discipline can only be made for “just cause.”
Then we get to the grievance procedure, which starts on page 21. The grievance procedure is triggered by an officer or the union charging that the city violated the terms of the contract. In the context of a grievance about disciplinary measures, this could come up if the officer believes he or she was disciplined without “just cause,” a nebulous and in this contract undefined term, or that the city didn’t attempt to avoid embarrassing the officer.
Once triggered, the grievance procedure calls for a series of meetings and written communications and mediation culminating, if the matter is not resolved, arbitration before an arbitrator from the Oregon ERB State Conciliation Service. I recall from my time on City Council that you really don’t want to arbitrate against a public sector union because most of the state-sanctioned arbitrators have previously or do currently represent public sector unions and are predisposed to rule in their favor.
The entire structure is designed to make it difficult to discipline police for misconduct, to keep the process by which police are disciplined secret, and to skew the results in favor of police officers. I do believe that the vast majority of police are upstanding folks trying their best to do a really hard and dangerous job, but those officers have nothing to fear from a system that rewards good officers and forces the bad ones out.
Protesters in Seattle have taken over a six-block area they call the “Capitol Hill Autonomous Zone,” or CHAZ for short, and are following in the inglorious footsteps of the Confederate States of America by claiming to secede from the U.S.. There’s a sign when you enter CHAZ saying you’re leaving the U.S.A., and they’ve changed the sign on the police precinct building read the “Seattle People Department.” They’re picking up garbage, enforcing their version of law, and maybe requiring a little quid pro quo in the form of payment from residents located within CHAZ. There are apparently people with guns guarding the borders (which include barriers that look suspiciously like walls)..
Some of this gets almost to the point of self-parody. One protester complains that CHAZites lack food because they invited homeless people in and they ate all the food. The hungry CHAZite pleaded via Twitter, ““We need more food to keep the area operational. please if possible bring vegan meat substitutes, fruits, oats, soy products, etc. – anything to help us eat.”
While the new citizens of CHAZ await the Berlin Air Drop of vegan meat substitutes and soy products, it sure seems like they’re replicating a lot of the things they don’t like about how things work out here in the United States of America – enforcing the rule of law by force when necessary, for example. Let’s hope CHAZ is reintegrated into our country peacefully and soon.
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Have a great weekend!
What I do:
EagerLaw PC – A business and real property law firm in Bend, Oregon.
Insite LGA Corp. – A campaign consulting, strategic communications and local government monitoring firm.
Waste Alert – Local government monitoring for the solid waste and recycling industry.
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