As Oregon's Legislature hurtles into an unprecedented special legislative session Wednesday, questions remain about exactly what bills lawmakers will take up — and what they should accomplish.
Some big ideas for the session have already been scuttled — and Republicans are suggesting they might insist others fall by the wayside in exchange for smoothing the path of the session. Lawmakers said Tuesday they were still waiting to see what concepts would ultimately make the cut, and whether there would be late entrants for consideration.
Six police accountability measures will headline the session, but at a Tuesday hearing, lawmakers heard wide differences of opinion on their details. Some testified that the bills would be overly restrictive or could create difficulties in the legal system, while others believe they contained broad loopholes.
The dynamics reinforce just how atypical this political moment is for Oregon. While special sessions are typically carefully choreographed, no one knows what to expect this time around.
“There’s no bill that I couldn’t walk away from,” Senate Minority Leader Fred Girod, R-Stayton, said Tuesday morning, adding that he did not expect his caucus members to abandon the Capitol in protest as they did in the 2019 and 2020 regular legislative sessions. “I’m going to get in and out as fast as I can.”
The concepts generating most interest in the session surround new regulations on police. They are a response to the police killing of George Floyd in Minneapolis, and the massive protests that have become a nightly occurrence across the country since.
Prior to an initial hearing on the bills Tuesday, Rep. Janelle Bynum, D-Clackamas, nodded to those protests when she quoted from Martin Luther King Jr.’s “Letter from Birmingham Jail,” written in 1963 after King was arrested for participating in civil rights protests.
“'It is unfortunate that demonstrations are taking place in Birmingham, but it is even more unfortunate that the city’s white power structure left the Negro community with no alternative,'” Bynum quoted, before adding: “I find it very interesting that we are still in the same times and seemingly in the same place.”
Lawmakers are expected to take up bills that would make it easier to discipline officers for misconduct; ban the use of chokeholds, tear gas and acoustic weapons; give the Oregon Department of Justice oversight of investigations into serious injuries and deaths at the hands of police; create a state database of discipline against officers; and force officers to intervene if they see a colleague committing misconduct.
Particularly contentious on that list are proposals to streamline discipline and put some use-of-force investigations in the hands of the state justice department.
The first bill seeks to ensure that a police department’s decision to punish an officer cannot be overturned by an arbitrator, so long as that arbitrator agrees that misconduct occurred and the department abided by its own discipline policies.
That idea is, in principal, supported by the state’s police unions and by police accountability advocates, but the two groups have very different takes on how the legislation should be tweaked.
Police unions said in testimony submitted Monday that the bill, as written, risks putting too much power in the hands of cities, and that discipline policies should be explicitly subject to contract negotiations. Without such a change, the Oregon Coalition of Police & Sheriffs said its members would oppose the legislation.
But accountability proponents suggest that the bill could give police a free pass for bad behavior. That’s because it requires that an arbitrator agree with a city that misconduct occurred in the first place. If the arbitrator does not make that finding, advocates testified, the bill could have little impact.
Their suggestion: Forcing arbitrators to view such cases through the lens of a “reasonable person.” In other words, regardless of an arbitrator’s personal feelings, they would be required to uphold police discipline if they found a reasonable person would conclude misconduct occurred.
“The fatal flaw in this bill of not having an acceptable standard of review that can rein in the arbitrator’s powers,” said Candace Avalos, acting chair of the City of Portland’s Citizen Review Committee, which scrutinizes complaints against police.
The arbitration bill has twice passed the Senate with unanimous support, and is expected to be enacted in the special session.
The fate of a bill that would require the DOJ to oversee investigations into police killings is less clear cut. While a wide array of groups agree with the premise of taking such investigations away from prosecutors in the county where a death exists, many raised concerns on the specifics.
A DOJ representative noted that it could take a long time for an investigator to arrive on the scene of a killing or serious injury under such a system, and suggested vague guidelines that the DOJ take the lead on "qualifying injuries" might create difficulties. The state's prosecutors called for a "more deliberative process" before the bill is passed.
Meanwhile, advocates suggested that — even if imperfect — the proposal is a good start.
“I understand the DOJ’s concern, but we just have to do it,” said Jason Kafoury, a lawyer who represents plaintiffs in excessive force cases. Kafoury noted that, even in cases where his clients are awarded substantial damages by civil juries, officers rarely face consequences for their use of force.
Prior to Tuesday’s hearing, state Sen. Lew Frederick, a Portland Democrat and key proponent of the police accountability bills, said he expected the proposals to be fine-tuned during the special session.
"It is nothing that is etched in stone at this particular point," he said, adding that legislators and others "are working on them right now, and I expect we'll see more people working on them over the next couple of days."
Meanwhile, other policy changes that aren't related to police appeared equally in flux.
Senate President Peter Courtney’s office acknowledged Tuesday that one closely watched bill to make virtual charter schools temporarily more accessible is now off the table. That change had been sought by Girod, the Senate Republican leader, but was disliked by teachers’ unions and some Democrats.
“Given this pandemic, people are going to want an alternative, and that alternative is going to be virtual schools,” Girod said Tuesday, acknowledging his proposal was “on life support.”
Sen. Michael Dembrow, D-Portland, worries that online charter schools could lead to performance problems for Oregon students.
“Their graduation rates are quite low compared to regular schools,” said Dembrow, who chairs the Senate Education Committee and said he’ll ensure lawmakers further study virtual learning in coming months. “I think it became clear that this wasn’t going to get traction.”
Another likely sticking point in the session: extending current moratoriums on commercial and residential evictions months beyond the current state of emergency declared by Gov. Kate Brown in March.
Those extensions are being demanded by a coalition of business and housing advocates, who say that allowing landlords to evict during a pandemic will put residents on the streets and permanently shutter businesses. Landlord groups have opposed eviction moratoriums.
Lawmakers are also considering creating temporary foreclosure protections to bolster similar actions taken by the federal government.
Both proposals are opposed in their current form by Republican leaders, who hold them up as reasons their members might decline to waive legislative rules that ensure a bill cannot pass both chambers on the same day it is introduced.
Such rules suspensions are common in special sessions as a way to ensure lawmakers can complete their business as quickly as possible. Two-thirds of each chamber needs to agree to suspend the rules, however, meaning some Republican buy-in is necessary in both the House and Senate.
“There’s a couple bills I’d like to see die that might be the cost of rules suspension,” said Girod, who owns a small number of rental properties and specifically referenced the eviction and foreclosure protections. “I understand the plight of people who are renting, but I also understand the plight of mom-and-pop owners, too.”
House Minority Leader Christine Drazan, R-Canby, said Tuesday she has so far been rebuffed after asking Democrats to consider measures reining in the governor’s broad emergency powers and extending limited legal immunity to businesses from being sued in relation to the coronavirus pandemic.
Despite that, Drazan said her members will consider paving the way for a quick special session if they feel their input is being added to existing proposals.
“The threshold for rules suspension has been really uncomplicated, from my perspective, from the beginning,” Drazan said. “We’re looking to be partners in this work … I don’t know if we get there.”
Lawmakers are scheduled to gavel into session at 8 a.m. Wednesday. The Capitol will remain closed to the public.
OPB reporter Jeff Mapes contributed to this report.