The City of Portland must reinstate Ronald Frashour to the Portland Police Bureau as an officer, the state Employment Relations Board has ruled.

The board rejected the city's argument that an arbitrator's ruling earlier this year ordering Frashour to return to the police force violated public policy because he used unnecessary deadly force.

The board ordered the city to return Frashour to the police bureau within 30 days of its Sept. 21 ruling, make him whole for any loss of back pay and benefits with interest at 9 percent.

The board declined to penalize the city with a civil penalty, as the police union had sought.

But the board did order the city to post a notice in the Police Bureau and other prominent city offices, which says it has violated the Public Employee Collective Bargaining Act by refusing to heed an arbitrator's award.

Mayor Sam Adams said he'll urge the City Council to appeal the ruling to the Oregon Court of Appeals.

"I promised in April I would take this case as far as we can,'' Adams said.

, "not the underlying conduct'' of the employee involved, when determining whether to enforce an arbitrator's decision,

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The board said it relied on court interpretation of the state statute that governs its work.

"We are not to substitute our judgement for the arbitrator's determination of whether the public employee engaged in the conduct resulting in discipline,'' the board wrote.

The board used this three-part analysis to determine if the Frashour arbitration ruling was enforceable: a/ Did the arbitrator find Frashour engaged in misconduct ? b/ If so, did the arbitrator reinstate or relieve the employee of responsibility for the misconduct ? and c/ If so, is there a clearly defined policy, in statutes or judicial decisions, that makes the award unenforceable?

Frashour shot Campbell in the back with an AR-15 rifle on Jan. 29, 2010, after Campbell had been struck with multiple beanbag-shotgun rounds and turned to run toward his girlfriend's apartment building. Campbell was unarmed, but Frashour said he thought Campbell was reaching for a gun.

The mayor and Police Chef Mike Reese fired Frashour. But on March 30, Arbitrator Jane Wilkinson ordered the city to reinstate Frashour with lost wages, saying a reasonable officer could have concluded that Campbell "made motions that appeared to look like he was reaching for a gun."

According to the state board, the arbitrator in the Frashour case concluded there was an "objectively reasonable basis'' for Frashour to believe that Aaron Campbell posed an "immediate risk of serious injury or death to others.'' The arbitrator found the city did not prove Frashour violated the police bureau's use of force policies.

"In this case, the arbitrator determined that Frashour did not violate the City's policies, and therefore did not engage in misconduct,'' the board wrote. "The City does not have a lawful reason for refusing to implement the award.''

The board continued:

"There is no need for any further analysis by this Board once the arbitrator determines that the grievant did not engage in misconduct. The arbitration award must be implemented.''

Mayor Sam Adams had refused to heed the arbitrator's ruling and appealed the matter to the state Employment Relations Board. The city had argued that returning Frashour to the police force would violate the U.S. Constitution, Oregon's Constitution and Portland's City Charter.

Adams decided not to follow the arbitrator's ruling -- a first involving an officer terminated for use of force. The Portland Police Association filed an Unfair Labor Practices complaint on Frashour's behalf.

Overturning arbitrator rulings is an uphill battle.

Historically, the state Employment Relations Board has focused on whether the arbitrator's decision forces a public employer to violate public policy set out in statutes or judicial decisions, not whether the employee's conduct violates public policy.

The board historically has used the three-part test: Did the arbitrator find the employee guilty of misconduct? If so, did the arbitrator relieve the person of responsibility for the misconduct? And lastly, is there a clearly defined public policy that makes the award unenforceable?

Portland attorneys Howard Rubin and Jennifer Nelson, hired by the city to defend Frashour's firing, argued in legal briefs that the board's focus was too narrow and Frashour's use of deadly force was unreasonable and disproportionate to the circumstances he faced.

Police union attorneys had argued that the city would lose outright on the first question because the arbitrator found Frashour acted within bureau policy. The union attorneys correctly anticipated the board's decision.

Frashour is "hoping to get back to work.''

Turner, in a prepared statement Monday afternoon, said, "The unnecessary battle that the City undertook should now be over. The City has spent over $750,000 of taxpayer funds to keep Officer Frashour fired. That sum is unacceptable in a time where local governments are struggling to provide core services to their communities. That sum is also shocking given that, in the words of the ERB, the City’s actions were “calculated” and in clear disregard of well-established state law.''

Adams, speaking at City Hall Monday afternoon, said he'll urge the City Council to challenge the board's ruling before the state Court of Appeals and hold a hearing within 30 days.

Though the mayor said he's aware of the potential cost to the city, Adams said, "What we're investing in here is to have more local control of our very own police bureau. It is totally worth it, and Portlanders want us to do this.'''

Asked if he had the support of the city attorney's office, Adams responded, "They work for me.''

Portland City Attorney James Van Dyke said he received the board's ruling Monday afternoon.

"I'm disappointed in the result,'' Van Dyke said. "We just feel like they got it wrong this time around.''

Van Dyke argued that the board failed to consider the legislative history, surrounding the "public policy'' exemption that exists for the overturning of arbitration awards.

"ERB doesn't recognize it or explain it adequately,'' Van Dyke argued.

The board declined to issue a civil penalty against the City of Portland, noting that the city's action was not "repetitive.''

"Although the City has failed to implement arbitration awards with other bargaining units, it has not done so with the PPA bargaining unit,'' the board wrote.

Commissioner Randy Leonard, a former Portland firefighter and an ex-president of the firefighter's union, said he promised to consider Adam's request, but is leaning against support for any court challenge.

Leonard said he considered Frashour's actions "outrageous'' and supported his termination. Yet Leonard said the city must abide by the terms of its police contract, which includes binding arbitration. He said he thinks a court challenge may be "counter-productive.''