Text Size:   A+ A- A   •   Text Only
Find     
Site Image

IA-01-95
 
In The Matter of the Interest Arbitration Between The City of Portland and The Portland Police Commanding Officers Association. IA-01-95
 
Pursuant to ORS 243.746 and Senate Bill 750, Sections 9 and 10, an interest arbitration hearing was held in the above-captioned matter on August 28-31 and September 1, 1995, in Portland, Oregon. The City of Portland (herein the City or the Employer) was represented by Liana Colombo, Deputy City Attorney, City of Portland, 1220 S.W. 5th Avenue, Portland, Oregon 97204. The Portland Police Commanding Officers Association (herein the PPCOA or the Association) was represented by Henry J. Kaplan; Bennett,, Hartman, Reynolds and Wiser, Attorneys at Law, Suite 1600, 851 S.W. Sixth Avenue, Portland, Oregon 97204-1376.
 
The hearing was closed upon the arbitrator's receipt of post-hearing briefs. The time for publication of the arbitrator's opinion and award was extended by agreement of the parties.
Statement of the Case
 
As required by law both parties made timely submissions of a last best offer to the arbitrator.
 
The City's offer proposes changes in the following contract provisions:
 
Article 2 -- Management Rights
Article 14 -- Sick Leave
Article 19 -- Holidays
Article 32 and Schedule A -- Salary Rates.
The PPCOA proposes changes in the following contract provisions:
Article 14 -- Sick Leave
Article 32, Schedule A -- Salary
Article 33 Executive Leave and Overtime
Article 36 Termination and Duration
 
New Article Legal Fees
 
All contract items not listed above have been the subject of tentative agreements between the parties. Additionally, it was discovered that the parties had submitted identical final proposals on sick leave and holidays. Those issues will therefore not be discussed in this opinion and award.
 
Background
 
Most of the City's employees are union-represented. Those employees fall within seven bargaining units, each with a separate labor contract. The City employees who are permitted by law to strike are represented within three bargaining units: District Council of Trade Unions (DCTU) unit (some 1700 general employees), the COPPEA unit (344 employees in engineering and related classifications), and the Municipal Employees Local 483 unit (some 56 recreational instructors). The strike prohibited employees fall within four bargaining units: the firefighters unit (640 employees), the BOAC unit (107 employees in the 911 operations), the Portland Police Association (PPA) unit (947 police officers up through police sergeants), and the PPCOA (44 employees in the classifications of lieutenant, captain, and commander).
In its contract negotiations with each bargaining unit, the City's economic parameters are established by the City Council in terms of a total compensation amount (wages plus all benefits) for each bargaining unit.
 
In the 1994-95 labor contract negotiations, the City sought a two year total compensation package based on wage increases of 3.6% (first contract year) and 2.9% (second year) and an enhanced benefits package (uniform among many City employees and across bargaining unit lines).
 
The result of the 1994-95 labor contract negotiations was a series of agreements that, for the most part, fell within the City Council's compensation scheme. The basic police bargaining unit (PPO) settled on an agreement with 3.6% and 2.9% wage increases and the existing benefits plan. The engineering (COPPEA) and AFSCME (BOAC) units also settled contracts with 3.6% and 2.9% wage increases and existing benefits, as did the firefighters' unit ultimately. Some minor variances from the City's "total compensation" parameters were specifically approved by the City Council (e.g. lump sum bonus for BOAC employees).
The City sought the same "total compensation" deal with the PPCOA in its negotiations. Negotiations began with a collaborative bargaining efforts In June, 1994, the parties changed to traditional bargaining. The bargaining process was a prolonged one. Interest Arbitration was finally sought by the PPCOA in March, 1995.
 
It should be noted that this is only the third labor contract between these parties. After the Association's recognition as a collective bargaining representative by the City in 1988, the first contract negotiation ended in a 1991 interest arbitration award by arbitrator Gary Axon. The next contract, with a term ending in June, 1994, was negotiated between the parties. The present interest arbitration will result in the parties' third contract.
 
Procedural Matters
 
At the hearing, the City sought to introduce detailed evidence and to question Association witnesses in detail regarding negotiation process and, in particular regarding the extent to which the Association's overtime proposal had been negotiated. It is the city's contention that the Association has improperly submitted the overtime proposal to interest arbitration without first exhausting the bargaining process as required by the Oregon Public Employee
collective Bargaining Act (herein the PECBA). The Association disputes that contention.
The arbitrator ruled that the issue of whether the Association had met the statutory bargaining requirements prior to submission of its proposals to interest arbitration was a matter for the Oregon Employment Relations Board (herein ERB) to decide rather than the arbitrator. The arbitrator assumes that all issues submitted for interest arbitration have been the subject of good faith bargaining and are properly before the arbitrator for resolution. The arbitrator excluded the evidence proffered by the City on that issue and also (with varying success) attempted to limit the city's examination of Association witnesses regarding the bargaining issue. The City's continuing objection to those rulings by the arbitrator was noted.
 
A second preliminary issue raised by the parties concerns the applicability of Senate Bi11 750 to the present interest arbitration proceeding. The Association contends that because the present interest arbitration was initiated on March 13, 1995, before the passage of SB 750, the proceeding must be governed by ORS 243.746(4), rather than SB 750. The SB 750 was passed in June,1995 and its interest arbitration provisions would be effective on August 1, 1995, according to the Association's reasoning (90 days after the end of the legislative session). The interest arbitration hearing in this case was held on August 28-September 1,1995.
 
The Association contends that SB 750's change of criteria for use in interest arbitrations is a change in substantive law, which cannot be made retroactively (in the absence of a showing of such legislative intent) under Oregon case law, e.g. Whipple v. Howser, 201 Or. 475, 632 P2d 782 (1981); Joseph v. Lowery, 261 Or. 575, 479 P2d 273 (1972).
 
The arbitrator has chosen to apply SB 750 in the present interest arbitration, rather than the pre-amendment criteria set forth in ORS 243.746(4). In doing so, the arbitrator is following the guidelines established by the ERB in its temporary rules, effective August 1, 1995, issued to deal with the changes in the PECBA and the passage of SB 750. The Board's temporary rules provide, in part:
 
(4) If an interest arbitration hearing has occurred prior to August 1, [1995] the award should be issued in accordance with the current statutes and rules. If an interest arbitration hearing occurs August 1 or after, regardless of when arbitration was initiated, the award should be issued in accordance with the statutes and rules in effect at the time of the hearing.
See, ERB Memorandum issued July 17, 1995, Implementation of SB 750's Provisions.
Issue #1 Overtime, Wages, and Duration
 
Both parties propose across-the-board wage increases of 3.6%, effective July 1, 1994 and 2.9% effective July 1, 1995 (percentages derived from 100% of CPI). The City proposes a two year contract. The Association proposes a three year contract with a reopener on wages and benefits in the third year. By far the most significant issue in the present negotiations is overtime.
 
Overtime
 
Currently, the PPCOA bargaining unit members do not receive overtime. The bargaining unit members are considered salaried exempt employees by the City. The overtime issue has often been revisited in the parties' brief history of negotiations.
 
The PPCOA seeks overtime because its members are often called upon to work long hours far in excess of a normal work week. That tendency has increased dramatically as the bureau-wide policy of community policing continues to be implemented and refined.
 
Community policing places greater responsibility on command personnel and also creates the need for extensive interaction between command personnel, community members and groups during evening hours, after the end of the normal business day. The evidence shows that the Police Bureau employs a number of dedicated and highly motivated lieutenants who work hard at implementing and developing community policing in the Portland neighborhoods. That work can require significant amounts of after-hours work on a fairly regular basis. Bargaining unit members have, by contract, a liberal system for determining the exact hours of their work days and ''flexing" their time. The overall evidence shows, however, that the schedule flexing system does not allow bargaining unit members to regularly take daytime hours off in order to compensate themselves for evening hours worked. The normal daytime administrative duties of the command officers' day require the presence of the officers, and if flex-time off is taken during the day, that work simply accumulates.
 
Two other factors also play a role in the bargaining unit members' quest for overtime compensation. The first is pay disparities that can occur between PPCOA bargaining unit members and PPA bargaining unit members who receive overtime pay. The City's figures show that some 21% of police sergeants, because of overtime compensation, earn more annually than the average lieutenant under whom they serve. That situation no doubt causes some morale problems among lieutenants. The second relevant factor is the widespread perception among lieutenants and others that captains and commanders assign a disproportionate amount of after-hours duties (e.g. attendance at evening time community meetings) to lieutenants, rather than to sergeants or other officers precisely because the commanders can do so without incurring overtime costs that would strain their operating budgets. This situation leads to a feeling among bargaining unit members that they are being abused and that a more proper distribution of after-hours duties will only be accomplished when the overtime-free "incentive" to assign such duties to lieutenants is removed.
 
The problems described above are not new ones. In the 1991 interest arbitration by Gary Axon, one finds the following:
 
A primary reason for the formation of this bargaining unit was the City's tendency to assign commanding officers to work longer hours with greater responsibility with no comparable increase in pay. Commanding officers saw their workload increasing and the salary differential between themselves and the people they supervised decreasing. Command officers attempting to "flex" their schedules simply faced a double workload when they returned to work. Axon Award, p. 261.
 
Arbitrator Axon denied the PPCOA a broad overtime proposal it sought in the 1991 interest arbitration, ordering instead the implementation of an administrative leave system "as recognition that members of this bargaining unit do perform substantial amounts of overtime work for which they receive no additional compensation." Axon Award, p. 266. Arbitrator Axon noted, however, that some form of overtime compensation might be appropriate for the bargaining unit at a future date.
 
In the parties' subsequent contract a specific executive leave benefit was negotiated as payment "in lieu of overtime." (Forty hours of executive leave, which can be taken either as time off or in the form of a cash payment.)
 
Positions of the Parties
 
The overtime issue is by far the predominant issue in this arbitration and has been the focus of the vast majority of the parties' evidence and arguments. The parties have made detailed arguments as to each of the relevant statutory factors under SB750. The arbitrator will not attempt to recount the many arguments advanced by the parties in this case. (The post-hearing briefs were 90-100 pages in length.) Rather, the arbitrator will offer only a very brief summary of the parties' arguments and then will review the statutory criteria and, where appropriate, try to briefly note the particular positions of the parties.
 
The Association
 
The PPCOA argues that the overtime proposal is appropriate insight of the dramatic increases in workload for bargaining unit members. The Association asserts that the overtime system could be effectively managed to limit its cost in the same manner as the PPA overtime system is managed. The Association further asserts that the statutory criteria, including comparability, favor adoption of the overtime provision, and that, in any event, only the existence of an overtime system will prevent abusive "overassignment" of lieutenants to nighttime duties.
 
The City
 
The City argues that the PPCOA's proposal is unnecessary and unworkable. The City contends that there has been no substantial increase in police command officer duties and that. In any event, an overtime system under which overtime hours are authorized for bargaining unit members by other bargaining unit members would be irresponsible and unmanageable. It is the City's position that the overtime proposal is too costly (a minimum of $300,000), is not justified by comparability considerations, and is contrary to established notions of appropriate managerial compensation.
Discussion
 
The PPCOA's overtime proposal raises issues regarding nearly all of the statutory criteria set forth in SB 750. The Association proposes a broad and substantial overtime provision that would require overtime compensation for virtually all work (of any kind) done by lieutenants outside of the normal work day. The PPCOA proposal would in effect apply to police lieutenants substantially the same overtime unit rank and file officers. The PPCOA proposal would also double the current executive leave benefit for captains.
 
Such a proposal raises not only financial issues regarding the appropriate compensation level for PPCOA members, but also the more "philosophical" issues regarding the nature of command officers' work and those officers' proper place in the bureau's organizational structure. Not surprisingly, the PPCOA views the overtime issue as simply a matter of compensation equity, while the city sees a major question regarding the basic forms of compensation appropriate for managerial officers and the City's proper expectations regarding managerial employees and their hours of work.
 
Both the financial issues and the organizational issues have relevance to the primary criteria for resolving interest arbitration issues under SB 750: "the interest and welfare of the public." It is no doubt true that the concerns of the command officers that have resulted in their continuing quest for overtime compensation must have some negative effect on employee morale. It is not difficult to conclude that the interest and welfare of the public would be adversely affected by widespread morale problems among police command officers. The City has argued that the workload of the command officers has not increased significantly and is not particularly onerous. In the arbitrator's view, the evidence shows that many command officers have duties that require a substantial number of work hours beyond the normal work day and cannot, as a practical matter, make up for a substantial part of that extra work through "flexing" of their schedules. While there may be an element of exaggeration to some of the Association's assertions about increasing workload, the arbitrator finds that the overall evidence supports the PPCOA claim that substantial extra work hours are required of many PPCOA unit members for completion of their normal duties.
 
Given that situation, and the specific remedy proposed by the PPCOA, wherein does the interest and welfare of the public lie? The basic economic and financial considerations cannot, of course, be ignored. The PPCOA's proposal would have a very substantial cost. That cost must be evaluated not only in terms of the public interest and welfare, but also in light of several of the "secondary" criteria set forth in SB 750: the "reasonably financial ability" of the City to meet such costs, the overall compensation received by the employees, the comparability of the compensation level to that in other similar locals and the employer's ability to attract and retain qualified personnel.
 
With respect to the City's ability to pay, it is clear from the evidence that the City does not lack the funds to pay the cost of the PPCOA's overtime proposal, although the proposals cost would probably be well beyond the budget of the police bureau. The City has managed its finances very responsibly and very successfully over the recent past years. A part of the City's successful financial dealings has been its ongoing effort to keep the. wages and benefits of each of its many employee groups within the "total compensation" amounts budgeted by the City Council.
 
The Association's overtime proposal would have a very significant cost. The Association's estimate is some $300,000 per year - based on employee responses to a questionnaire regarding the amount of extra hours currently worked. The City questions the accuracy of that cost figure and notes, correctly, that there is nothing in the language of the overtime proposal to prevent lieutenants from deciding to work far more overtime hours in the future (with authorization from their fellow bargaining unit members, the captains).
 
Another of the statutory criteria for application in interest arbitrations is the overall compensation received by the employee group in question. The evidence shows that the overall compensation received by the bargaining unit members is quite substantial, with a particularly generous retirement plan.
 
The issue of is often a central one in interest arbitrations. But under the new standards of SB 750 and under the particular circumstances of this case, comparability is of much less importance. In fact, comparability among employee groups within the City may be of the most relevance in the overall area of comparability.
 
With respect to external comparators, the parties are in sharp dispute as to the appropriate jurisdictions for comparison. Under SB 750, comparability is defined in terms of communities of similar population within Oregon and, in the case of a large city such as Portland, may also include out-of-state cities of similar size. The chief dispute between the parties regarding comparability has to do with the factor of geographical proximity. The City argues that since SB 750 makes no reference to geographical proximity, comparators should be chosen on a nationwide basis, using only similarity of population size as a measure. The PPCOA argues that considerations such as general demographics, regional economics, regional and employee pools make geographic proximity a very important factor. The PPCOA's list of primary comparators consists of the California cities of Sacramento, Fresno and Oakland, as well as Seattle, Washington. Those cities were selected as West Coast cities north of Los Angeles within a population range of 75%-133%of that of Portland. The Association's data shows that the cities of Oakland, Sacramento and Seattle pay overtime to police lieutenants and that Oakland and Sacramento pay overtime to captains as well. The data does not show whether such officers are treated as FLSA salaried exempt by the comparator jurisdictions.
The City proposes as comparator jurisdictions the ten cities nationwide with populations closest to Portland's (five above and five below) . Those cities are: Tucson, Arizona; Long Beach, California; Denver, Colorado; Charlotte, North Carolina; New Orleans, Louisiana; Kansas City, Missouri; Oklahoma City, Oklahoma; Austin and Fort Worth, Texas; and Virginia Beach, Virginia. Of those cities, six treated police lieutenants as FLSA exempt employees and three among those six jurisdictions paid some type of overtime compensation (some quite limited) . Further, the data shows that the PPCOA bargaining unit compares very favorably with the City's proposed nation-wide comparators in terms of overall compensation. (The City's current contract offer for lieutenants is some 32% above the mean of the City's comparators).
 
Because the present interest arbitration is one of the first to occur under the new standards for comparability set forth in SB 750, the parties have both made extensive presentations with regard to the comparability issue. In the context of the present dispute, however -- where the amount of general wage adjustments and insurance benefits is not disputed -- the arbitrator finds the comparability issue to be of much less importance than is customary. The arbitrator therefore will not be making any definitive rulings or lengthy pronouncements on the exact list of the most appropriate comparable jurisdictions for the City of Portland, Oregon. Some comment is, however, necessary.
 
There are problems with each party's proposed list of comparables that make neither list wholly acceptable as proposed. The Association's proposed list consists almost entirely of California cities and therefore again presents the oft-visited problem of comparing Oregon wages to those of a single discrete economic area (California) where wages and the cost of living have historically been much higher than those in the state of Oregon. This arbitrator is strongly inclined to favor more regional comparators because of the shared regional economics and common labor markets. Some adjustment, however, must be made for cost of living and other factors when comparing gross compensation levels between California and Oregon cities. With respect to the PPCOA's comparisons on the payment of overtime, the arbitrator finds the data less than fully useful in the absence of information about whether "command officers" who receive overtime in other jurisdictions are truly comparable in terms of managerial rank and responsibility (e.g. FLSA exempt, degree of integration into managerial hierarchy, etc.).
 
The arbitrator is not philosophically opposed to the use of non-West Coast comparators, as proposed by the city. once initial comparability on the basis of population is established, however, one must be aware of other factors that may make direct comparison less appropriate (e.g. grossly different economics, standards of living, etc.). The arbitrator does not believe that SB 750's limitation of "comparables" jurisdiction to communities and cities of similar population size precludes further rational analysis regarding which similarly sized communities are most appropriate for comparison. For example, the City's overall compensation comparison is seriously skewed by the inclusion of some jurisdictions that have very little beyond gross population in common with Portland, Oregon. The data for the city of New Orleans shows a police compensation rate less than one-half of that of Portland and some 40% below the mean of the other comparators. The rate of compensation of New Orleans police officers must be viewed in light of the facts that Louisiana has the nation's highest poverty rate, lowest teacher salaries lowest bond rating, and fourth highest unemployment and violent crime rates. See, New York Times, National Report, Sept. 26, 1995. In light of the recently publicized series of criminal indictments of New Orleans police officers, it would surely be no stretch to assume that that city would also lead the nation by far in police corruption if such statistics were published. Although the example of New Orleans is the most obvious one, similar questions of comparability, in terms of common demographics and economics, could be raised regarding some of the City's other proposed comparators. Under these circumstances, the arbitrator cannot agree with the City's contention that its proposed comparators constitute the most appropriate ones, merely because of the similarity of population sizes.
 
As noted above, given the unique and limited nature of the economic issues in this case (i.e. primarily overtime compensation), the question of the proper external comparators is far less than central to the resolution of the matter. The question of internal comparators is, however, of substantial significance. It is undisputed that there has traditionally been wage and benefit parity between police command officers and their counterparts in the Portland fire bureau. The parties have and do continue to attempt to maintain that parity in collective bargaining.
The evidence shows that fire bureau battalion chief is regarded as a classification equivalent to police captain, and fire captains are the equivalent of police lieutenants. While some fire bureau policies provide for overtime (time and one-half) for battalion chiefs held over past their normal shifts at the station, payment of such overtime is extremely rare due to careful scheduling. The evidence shows that fire captains often receive greater annual pay than police lieutenants because of the use of "call shifts" in the fire bureau. A call shift is a work shift filled by an off-duty employee because of the regularly scheduled employee's absence. In the fire bureau, call shifts are paid at the rate of time and one-quarter. The fire bureau command officers are assigned to particular call shifts on a rotating basis through the use of a roster. Those officers average some 11 call shifts per year.
 
With respect to other City employees in supervisory/managerial positions (i.e. FLSA exempt) , the evidence shows that the City does not pay overtime to any managerial employees for work outside or beyond the normal work day.
 
Thus, the evidence shows a fairly consistent City-wide policy of excluding FLSA exempt employees from any type of overtime benefits. A partial exception exists for fire bureau command officers, but the extremely limited "overtime" (primarily call shift) system within the fire bureau is a far cry from the broad overtime system sought in the PPCOA proposal (i.e. time and one- half for every 9th hour per day and 41st hour per week).
 
With respect to the ability to attract and retain qualified personnel, the record shows that the City has been able to hire and promote highly qualified and often outstanding employees to the command officer positions. There has been virtually no turnover among command officers.
 
Conclusions
 
Based upon the statutory criteria discussed above and the evidence presented, the arbitrator is able to draw some clear conclusions. With regard to the secondary criteria (employer ability to pay, ability to attract and retain employees, overall compensation, cost of living, and comparability), the evidence does not establish a strong case for the PPCOA's overtime proposal. The comparability data is inconclusive, due largely to the "apples to oranges" (e.g. FLSA exempt vs. non-exempt) nature of many of the comparisons. While the City's financial position is sound, the ability to pay criteria still does not mitigate strongly in the PPCOA's favor because of the open-ended potential cost of the particular overtime proposal in question. Given the extremely broad nature of the Association proposal, reasonable ability to pay would still be a valid concern. While not all of the secondary factors mitigate against the Association's proposal, it cannot be said that the evidence regarding those factors affirmatively establishes that the PPCOA contract proposal is necessary and appropriate.
The primary criterion for evaluating the overtime proposal under SB 750 is, however, the "interest and welfare of the public." With regard to that criterion, the arbitrator sees this case as a contest between two conflicting policies, both of which can rightfully claim to be in the public interest. On the one hand, it is certainly in the public interest for the City to generally keep personnel costs to a reasonable minimum and, in particular, to maintain the City-wide system of treating managers as professional employees who act independently and responsibly in the interest of the City; that is, managers who take bottom-line responsibility for the overall completion of work rather than regarding their status in the overall operation from an hourly wage earner's perspective. Certainly, the City is right to be concerned that the payment of overtime to managers in one City bureau for routine after-work hours administrative/managerial work could cause wide-spread problems in other City bureaus.
On the other hand, efficient and effective operation of a city police bureau -- charged as it is the most critical public safety function -- is of paramount importance. The interest and welfare of the public must necessarily be served by a system of equitable compensation that produces highly committed and motivated police command officers. That is particularly true in a situation such as the present where an innovative system of community policing is being implemented and requires dedicated and conscientious leadership at the command levels.
Thus, both parties in this case can make a creditable claim that their position on the overtime issue is consistent with the interest and welfare of the public. In the arbitrator's view, a resolution of this issue requires examination of the particular "problem" addressed by the Association's proposal and the particular remedy for that problem that proposal contains.
As discussed earlier in the findings of fact, the evidence shows that the police lieutenants are, in fact, placed in a difficult position by the current operational system. The community policing system places great demands on the command officers and requires work beyond (sometimes well beyond) a normal work week's hours. It is true that the command officers are relatively well paid managerial employees who should expect to have to work some extra hours to assure that all projects are accomplished. It is also true, however, that the police command officers often play a mixed role, with one foot in the managerial office and the other out among the ranks. Bargaining unit employees are not simply left free to manage their time in the manner that best allows them to complete their overall responsibilities. They may be assigned to specific night duties, such as attending community meetings. They may be required to go out on operational assignments, such as service of warrants or major arrests. They may also be called out for extended periods on routine operational duties at special public events such as dignitary visits and concerts. Under these circumstances, it is understandable that a degree of discontent might result when the command officers are called upon outside of normal work hours to perform duties that can be and sometimes are performed by rank and file PPA officers without any compensation. (At times the work is performed side-by-side with PPA officers who are receiving premium pay.) The record shows that the bargaining unit members are complaining not about such assignments on an occasional basis, but about increasingly regular assignments to such work.
 
After listening to the testimony of a number of bargaining unit officers (primarily lieutenants) as well as higher level commanders and Chief Moose, it is the arbitrator's conclusion that the Association is raising a legitimate concern that ought to be addressed through the collective bargaining process. The arbitrator does not disagree with many of the points made by Chief Moose at the arbitration hearing. For example, as Chief Moose noted in his testimony, command officers are expected to be highly motivated members of the management team who make extraordinary efforts in order to complete the bureau's mission. The command officers are also expected to be creative and innovative in pursuing means of performing their work more efficiently and in less time. still, the fact that this problem has persisted since the Association's formation in 1990 indicates that the matter deserves genuine attention in collective bargaining.
 
Unfortunately, the collective bargaining process appears not to have served the parties well, at least with regard to this issue. What is needed, in the arbitrator's opinion, is a reasonably limited arrangement whereby the command officers (particularly lieutenants) can either be relieved of some of the more onerous after-hours duties or be given some partial compensation to mitigate the burden of those extra duties. This also needs to be done in a way that will not change the basic nature of these management positions. Instead, the arbitrator is presented with an Association proposal that calls for unlimited overtime pay for each and every hour worked after eight hours per day and 40 hours per week, and a management position offering no form of extra compensation whatsoever. Given those choices, the arbitrator's task is not a happy one. The circumstances make clear, however, that the lesser evil here -- the choice which is least averse to the public interest and welfare -- is to award the City's wage proposal, rather than the PPCOA wage and overtime proposal. The reason is simple. The PPCOA overtime proposal is far too broad. It lacks a failsafe mechanism for control of overtime use. It lacks a reasonable basis for predicting and budgeting for overtime use. It fails to acknowledge the essentially managerial nature of the lieutenant position. Moreover, it would provide extra compensation far in excess of that which is warranted by the facts.
 
In the arbitrator's opinion, it is wholly impractical and unrealistic for managerial employees to receive overtime pay for every "ninth and forty-first" hour spent doing routine managerial and administrative work. Police bureau parity with the fire bureau would require nothing nearly that extensive. Nor does compensation of lieutenants for some evening community meetings or for operational call-outs require such an all-encompassing overtime benefit. Further, to implement the Association's proposed overtime system in the police bureau would undoubtedly trigger negotiation demands for salary re-adjustments not only in the fire bureau but in every other city department with represented employees in FLSA exempt positions. That situation would plainly be contrary to the public interest and welfare. In light of these considerations and the record as a whole, the arbitrator concludes that the most appropriate wage, duration, and overtime proposal -- as between that of the Association and that of the City -- is the City's.
 
Issue #2 Legal Fees
 
The Association has proposed a new contract Article with language providing that bargaining unit members will be reimbursed by the City for reasonable attorney's fees incurred in defense of the member in a criminal investigation or against criminal charges arising from the member's actions as a police officer, so long as no criminal conviction or disciplinary action ultimately results from the investigation or the charges. The Association proposal is modeled on a similar provision in the PPA labor contract.
 
The Association's evidence relating to this issue was ambiguous. Apparently there has been one instance in the recent past of a bargaining unit employee having an attorney's assistance (or at least attendance) at interviews of the officer regarding an incident wherein a bank robber was shot. It is unclear whether the officer was billed by the attorney and whether the City, if necessary, reimbursed the officer for the attorney's fees.
 
Given the nature of police work, and in light of the obvious reasons that the attorney's fee reimbursement clause appears in the PPA contract, the arbitrator would be strongly inclined to grant the Association's proposed contract language. The SB 750 does not, however, allow the arbitrator to do so without granting the Association' s entire package proposal. Because the overtime issue far outweighs the legal fee issue in importance, the Arbitrator must award the city's proposal on this issue as well.
 
Issue #3 Management Rights -- Take-Home Cars
 
The City currently has a policy of providing "take-home vehicles" to command officers under a system governed by labor contract (Article 23), general order, and bureau policies and practices. The current system does not explicitly describe the policy in terms of each party's rights and prerogatives. The City proposes to add language to the management rights clause of the collective bargaining agreement that would expressly provide that the assignment of City take-home cars is a management right.
 
The evidence shows that there have been no actual disputes between the parties or within the police bureau regarding the issue of take-home cars. Under these circumstances, the arbitrator would normally be inclined to disallow the City's proposal because of the simple absence of any showing of a need for a change in longstanding basic contract language. But because the importance of the take-home car issue is far outweighed by that of the compensation issues in this case, the arbitrator must award the City's entire proposal package, including the proposed change in Article II, management rights.
 
Award
 
Based upon the evidence and arguments of the parties, and in light of the criteria set forth in ORS 243.756, as amended by SB 750, the arbitrator awards the last best contract offer package submitted by the City. Pursuant to statute, the arbitrator's fees and costs shall be borne equally by the parties.
 
Dated this 9th day of December, 1995.
 
John Hayduke, Arbitrator
 
For the City of Portland: Liana Colombo, Deputy City Attorney
 
For PPCOA: Henry J. Kaplan; Bennett,, Hartman, Reynolds and Wiser
 
INDEX A: The Text of the Parties' Last Best Offers
 
ARTICLE 2 -- JOB PROTECTIONS FOR EMPLOYEES/MANAGEMENT RIGHTS
The City proposes to make the following changes in the current management rights provision (deletions bracketed, additions in bold italics (shown here between **)):
 
D. Management Rights
General: The City shall exercise the sole responsibility for management of the City and the direction of its work force. To fulfill this responsibility, the rights of the City include but are not limited to: Establishing and directing activities of its employees; determining standards of service and methods of operation, including subcontracting and the introduction of new equipment; establishing procedures and standards for employment and promotions, layoffs, and transfers; to discipline or discharge for just cause; determine job descriptions; determine work schedules; assign work; *assign City take-home cars* and any other rights except as expressly limited by the terms of this agreement.
 
Civil service: Nothing in this agreement shall preclude the Personnel Director from exercising
his or her authority to classify, or reclassify positions and to establish entrance and promotional examination requirements. Employees shall perform all work assigned that is reasonably within the scope and terms of the classification specification, though not specifically described therein.
Section 2 - Subcontracting
 
(a) The City agrees to notify the President of the Association of any plan to contract out or subcontract any work now performed by employees covered by this agreement, before the plan is actually executed and subcontracting has been done.
 
(b) Before the City contracts out or subcontracts work now performed by employees covered by this agreement, the City agrees to meet with the Association, at its request, to discuss the effect of the contracting out plan involved and to explore possibilities which might exist for reducing the impact, if any, on employees covered by this agreement.
The Association proposes the current language.
 
ARTICLE 14 -- SICK LEAVE
The City proposes the following changes in Article 14 (deletions bracketed, additions in bold italics (shown here between **) :
 
ARTICLE 14 - SICK LEAVE
Sick leave accrual and provisions shall be in accordance with the provisions applicable to Police Lieutenants and Captains in Chapter 4.28 of the City Code in effect as of April 15, 1989, except that sick leave payoff provisions shall apply as provided in this Article.
In situations where a Lieutenant's or Captain's spouse, parent, child or other person for whom the Lieutenant or Captain is legal guardian, becomes ill or injured and alternate means of transporting or caring for such person cannot be arranged immediately by the Lieutenant or Captain, the Lieutenant or Captain shall be permitted to use vacation time or sick leave. A maximum of five (5) days sick leave per year may be used as provided in this subsection. The Lieutenant or Captain shall be required to submit a doctor's certificate for any absence of three (3) days or more within a period of five (5) working days.
 
Unused Sick Leave Upon Retirement. Upon retirement, a lieutenant or captain shall be permitted to apply unused sick leave credits in the following manner:
 
A. Individuals covered by the Public Employee Retirement System (PERS) shall be permitted to convert unused sick leave upon retirement in accordance with ORS 237.153 and PERS administrative rules.
 
B. Unused Sick Leave Upon Retirement for Individuals Covered by the city of Portland fire and Policy Disability Fund. A lieutenant or captain who has accumulated sick leave at the time of his retirement shall receive credit in an amount equal to thirty percent (30%) of the first four hundred and eighty (480) hours of such accumulated sick leave, fifty percent (50%) of the second four hundred and eighty (480) hours, and seventy percent (70%) of all accumulated sick leave in excess of nine hundred and sixty (960) hours up to a maximum of 2,064 hours. The cash value of such credit will be calculated on the basis of the lieutenant's or captains pay rate at the time of retirement.
 
Upon retirement, a captain or lieutenant [may elect to] *shall* receive *a lump sum payment for the sick leave credit.* [this sick leave credit through one of two options as follows:
Option #1: He/she may elect to receive a lump sum each payment for his/her sick leave credit;
 
or Option #2* He/she may elect to utilize his/her sick leave credit to continue his/her employee and dependent group hospital and medical insurance plan. In the event a captain or lieutenant elects this option, the City will utilize the captain's or lieutenant's sick leave each credit to pay the yearly insurance premiums.
 
Under Option #2, the heirs or estate of the retired captain or lieutenant will receive a lump sum each payment for unused sick leave credit remaining when the retiree reaches age 65 or upon death. Further, the retired captain or lieutenant may elect to receive a lump sum each payment for the balance of his/her sick leave credit at any time after his/her initial election of Option #2.]
 
C. Unused Sick leave in the Event of Death. The city will pay a lump sum cash payment equal to one hundred percent (100%) of unused sick leave to the surviving dependents of any captain or lieutenant who dies prior to retirement.
 
With regard to sick leave, the PPCOA makes the following proposal (deletions bracketed, additions in bold italics (shown here between **)):
 
ARTICLE 14 - SICK LEAVE
Sick leave accrual and provisions shall be in accordance with the provisions applicable to Police lieutenants and captains in chapter 4.28 of the City Code in effect as of April 15, 1989, except that sick leave payoff provisions shall apply as provided in this Article.
In situations where a lieutenant's or captain's spouse, parent, child or other person for whom the lieutenant or captain is legal guardian, becomes ill or injured and alternate means of transporting or caring for such person cannot be arranged immediately by the lieutenant or captain, the lieutenant or captain shall be permitted to use vacation time or sick leave. A maximum of five (5) days sick leave per year may be used as provided in this subsection. The lieutenant or captain shall be required to submit a doctor's certificate for any absence of three
(3) days or more within a period of five (5) working days.
 
Unused Sick Leave Upon Retirement. Upon retirement, a lieutenant or captain shall be permitted to apply unused sick leave credits in the following manner:
 
A. Individuals covered by the Public Employee Retirement System (PERS) shall be permitted to convert unused sick leave upon retirement in accordance with ORS 237.153 and PERS administrative rules.
 
B. Unused Sick Leave Upon Retirement for Individuals Covered by the City of Portland Fire and Policy Disability Fund. A lieutenant or captain who has accumulated sick leave at the time of his retirement shall receive credit in an amount equal to thirty percent (30%) of the first four hundred and eighty (480) hours of such accumulated sick leave, fifty percent (50%) of the second four hundred and eighty (480) hours, and seventy percent (70%) of all accumulated sick leave in excess of nine hundred and sixty (960) hours up to a maximum of 2,064 hours. The cash value of such credit will be calculated on the basis of the lieutenant's or captain's pay
rate at the time of retirement.
 
Upon retirement, a captain or lieutenant [may elect to] *shall* receive *a lump sum payment for the sick leave credit.* [this sick leave credit through one of two options as follows:
 
Option #1. He/she may elect to receive a lump sum cash payment for his/her sick leave credit, or
 
Option #2. He/she may elect to utilize his/her sick leave credit to continue his/her employee and dependent group hospital and medical insurance plan. In the event a captain or lieutenant elects this option, the City will utilize the captains or lieutenant's sick leave cash credit to pay the yearly insurance premiums.
 
Under Option #2, the heirs or estate of the retired captain or lieutenant will receive a lump sum cash payment for unused sick leave credit remaining when the retiree reaches age 65 or upon death. Further, the retired captain or lieutenant may elect to receive a lump sum cash payment for the balance of his/her sick leave credit at any time after his/her initial election of Option #2.]
 
C. Unused Sick Leave in the Event Of Death. The City will pay a lump sum cash payment equal to one hundred percent (100%) of unused sick leave to the surviving dependents of any captain or lieutenant who dies prior to retirement.
 
ARTICLE 19 -- HOLIDAY COMPENSATION
The City proposes the following changes in Article 19 (deletions bracketed, additions in bold italics (shown here between **) :
 
ARTICLE 19 - HOLIDAY COMPENSATION
Captains and lieutenants shall receive twelve (12) holidays per year. Eight (8) of the holidays shall be personal holidays to be taken at the mutual convenience of the captain or lieutenant and the City. The remaining four (4) holidays shall be New Years Day, Independence Day, Thanksgiving and Christmas.
 
*The following days shall be recognized and observed as guaranteed paid holidays.
Holidays / 1994 / 1995 / 1996
New Year's Day / -- / January 1 / January 1
Independence Day / July 4 / July 4
Thanksgiving Day / November 24 / November 23 /
Christmas / December 25 / December 25*
 
Personal holidays which have not been used during the calendar year in which they accrue shall be forfeited.
 
Captains and lieutenants shall not normally be scheduled to work on any of the four designated holidays. If a captain or lieutenant is ordered to work on one of the designated holidays, he/she shall receive premium compensation of time and one-half in addition to regular pay in the form of either wages or compensatory time off, the form being at the sole discretion of the Chief of Police.
 
A captain or lieutenant whose scheduled day off falls on one of the four designated holidays shall receive a postponed holiday, with pay, to be taken at the mutual convenience of the captain or lieutenant and the City.
 
Eligibility for holiday pay under the preceding paragraph is contingent upon the lieutenant or captain being in pay status on the work day preceding the designated holiday and on the work day following the holiday.
 
Compensatory time accrued under this section, not exceeding sixty (60) hours may be carried from one calendar year to the next.
 
The PPCOA holiday proposal reads as follows (deletions bracketed, additions in bold italics (shown here between **)):
 
ARTICLE 19 - HOLIDAY COMPENSATION
Captains and lieutenants shall receive twelve (12) holidays per year. Eight (8) of the holidays shall be personal holidays to be taken at the mutual convenience of the captain or lieutenant and the City. The remaining four (4) holidays shall be New Years Day, Independence Day, Thanksgiving and Christmas.
 
*The following days shall be recognized and observed as guaranteed paid holidays:
Holidays / 1994 / 1995 / 1996 / 1997
New Year's Day/ - / January 1 / January 1 / January 1
Independence Day / July 4 / July 4 / July 4
Thanksgiving Day / November 24 / November 23 / November 28
Christmas / December 25 / December 25 / December 25*
Personal holidays which have not been used during the calendar year in which they accrue shall be forfeited.
 
Captains and lieutenants shall not normally be scheduled to work on any of the four designated holidays. If a captain or lieutenant is ordered to work on one of the designated holidays, he/she shall receive premium compensation of time and one-half in addition to regular pay in the form of either wages or compensatory time off, the form being at the sole discretion of the Chief of Police.
 
A captain or lieutenant whose scheduled day off falls on one of the four designated holidays shall receive a postponed holiday, with pay, to be taken at the mutual convenience of the captain or lieutenant and the City.
 
Eligibility for holiday pay under the preceding paragraph is contingent upon the lieutenant or captain being in pay status on the work day preceding the designated holiday and on the work day following the holiday.
 
Compensatory time accrued under this section, not exceeding sixty (60) hours may be carried from one calendar year to the next.
 
ARTICLE 32 AND SCHEDULE A
The City's proposal is as follows (deletions bracketed, additions in bold italics (shown here between **)):
 
ARTICLE 32 - SALARY
[Effective July 1, 1993, the wage rate shall be revised as follows:
Salary rates for the period July 1, 1993, to June 30, 1994, are to be increased by eighty five percent (85%) of the increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) (January, 1992 to January, 1993) for the City of Portland, Oregon, published by the Bureau of Labor Statistics, U.S. Department of Labor, minus 1.94% (Pension Pickup). However, in no event shall the salary increase be less than two and one-half percent (2.5%) or greater than four and one-half percent (4.5%).
Example: If the January CPI-W is 5.4%, the increase will be 2.65% (5.4 x .85) 1.94 - 2.65%.]
 
*1. Effective July 1, 1994, Schedule "A" wage rates will be increased by 3.6%.
The 3.5% increase in wage rates for the period July 1, 1994 to June 30, 1995 reflects an adjustment which is one hundred percent (100%) of the increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) (as measured by the index for January 1994 and 2nd Half 1993) for the City of Portland, Oregon, published by the Bureau of Labor Statistics, U.S. Department of Labor..
 
2. Effective July 1, 1995, Schedule "A" wage rates will be revised as follows:
Salary rates for classifications in Schedule "A" for the period July 1, 1995 to June 30, 1996 are to be increased by one hundred percent (100%) of the increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) (as measured by the index for January 1995 and 2nd Half 1994) for the City of Portland, Oregon, published by the Bureau of Labor Statistics, U.S. Department of Labor.
 
3. In the event that City revenue sources should be decreased by the passage or impact of a tax limitation measure, legislatively mandated change, cut back in Federal and/or State revenue sharing, or any other conditions causing a worsening of the City's financial position, the City Council and the signatory labor organizations agree that they will meet and discuss the economic impact and, by mutual agreement, will put forth a good faith effort to arrive at alternatives to a reduction in the workforce.*
 
SCHEDULE A SALARY RATES
*Rates as of July 1, 1994
Job Title / Entry Rate / After 1 Yr.
Police Lieutenant / 27.55 / 28.80
Police Captain / 31.68 / 33.11
Police Commander / 34.36
Rates as of July 1, 1995
Job Title / Entry Rate / After 1 Yr.
Police Lieutenant / 28.35 / 29.64
Police Captain / 32.60 / 34.07
Police Commander / 36.63
 
N0TE: the increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) (as measured by the index for January, 1995 and 2nd Half 1994) for the City of Portland, Oregon, published by the Bureau of Labor Statistics, U.S. Department of Labor, was 2.9%
 
Schedule "A" rates effective July 1, 1995 reflect an increase of one hundred percent (100%) of the 2.9% increase in the Consumer Price Index.*
 
The Association's salary proposal reads (deletions bracketed, additions in bold italic, (shown here between **)):
 
ARTICLE 32 - SALARY
Effective July 1, 199[3]*4*, the wage rate shall be revised as follows:
Salary rates for the period July 1, 199[3]*4*, to June 30, 199[4]*5*, are to be increased by *3.6%. Salary rates for the period July 1, 1995 through June 30, 1996 are to be increased by an additional 2.9%. The salary scales are set forth in Schedule A, attached.* [eighty five percent (85%) ofthe (sic) increase in the Consumer Price Index for Urban Wage Earners and Clerical workers (CPI-W) (January, 1992 to January, 1993) for the City of Portland, Oregon, published by the Bureau of Labor Statistics, U.S. Department of Labor, minus 1.94% (Pension Pickup). However, in no event shall the salary increase be less than two and one-half percent (2.5%) or greater than four and one-half percent (4.5%).
 
Example: If the January CPI-W is 5.4%, the increase will be 2.65% (5.4 x .85) 1.94 2.65%.]
 
SCHEDULE A - SALARY RATES
Rates as of July 1, 1994
Job Title / Entry Rate / After 1 Year
Police Lieutenant / $27.43 / $28.80
Police Captain / $31.68 / $33.12
Police Commander / -- / $35.60
Rates as of July 1, 1995
Job Title / Entry Rate / After 1 Year
Police Lieutenant / $28.23 / $29.64
Police Captain / $32.60 / $34.08
Police Commander / * /$36.63
 
ARTICLE 33 -- OVERTIME AND EXECUTIVE LEAVE
The Association proposes addition of an overtime provision to Article 33. The PPCOA proposal reads (deletions bracketed, additions in bold italics (shown here between **)):
 
ARTICLE 33 - *OVERTIME AND* EXECUTIVE LEAVE
*As used in this contract, overtime means a Lieutenant is authorized to work in excess of eight (8) hours in a work day, or forty (40) hours in a work week, or ten (10) hours in a workday or forty (40) hours in a work week for those personnel engaged in the Four-Ten Plan, including time on duty, compensatory time off, a holiday off with pay, or leave for which full salary is paid.
 
Compensation for all overtime work shall be at one and one-half (1-1/2) times the employee's established rate of pay as set forth in Schedule A. Overtime will be paid in cash except, at the option of the Lieutenant, compensatory time shall be granted in lieu of overtime pay.
 
Lieutenants may accrue a maximum of forty (40) hours of compensatory time at any one time. The compensatory time remaining at the end of the calendar year shall be paid for in cash.
Where the City and the Lieutenant mutually agree for a specified period to a shift change, a change in days off or split shift, the overtime pay shall not apply, provided the Lieutenant is scheduled for four (4) days off in each payroll period.
 
Personnel assigned to or from training programs shall not receive overtime as a consequence of their reassignment, provided the lieutenant is scheduled for four (4) days off in each payroll period, which includes a reassignment. The City reserves the right to assign lieutenants to selected training courses at out-of-town training sites. As this professional training is beneficial and mutually desirable to the City and the lieutenants, no overtime will be authorized for travel. Lieutenants authorized to travel to out-of-state training sites will be relieved from duty for the equivalent time necessary to travel to and from the out-of-state site.
 
A Lieutenant shall normally be paid at the overtime rate for only those hours worked.
 
A. However, if the lieutenant works less than two (2) hours, the Lieutenant shall be paid at the overtime rate the lesser of:
 
a. The time elapsed from the beginning of the overtime to the beginning of the shift; or
 
b. The time elapsed from the end of the shift to the end of the overtime; or
 
c. Two (2) hours.
 
B. A Lieutenant who is required to make morning and afternoon court-related overtime appearances on the same calendar day shall be compensated the lesser of:
 
a. The time elapsed from the beginning of the first court appearance to the beginning of the shift; or
 
b. The time elapsed from the end of the shift to the end of the court appearance.
 
C. Emergency call-backs shall be paid at the overtime rate for a minimum of two (2) hours.
 
A Lieutenant who reports for scheduled duty, but is excused because no work is available,
shall be entitled to eight (8) hours' pay.
 
D. For timekeeping purposes, Lieutenants off-duty on sick leave, disability benefits, approved leave of absence with pay, and suspended-from- duty-with-pay status will be considered to be on the Morning Relief with Saturdays and Sundays off.
 
a. When a Lieutenant on sick leave appears in court, the amount of time spent in court, or two (2) hours, whichever is greater, will not be charged against his sick leave credits.
 
b. Lieutenants on approved leave of absence with pay or disability benefits will be authorized overtime for court appearances in excess of eight (8) hours in a day or forty (40) hours in a work week.
 
Whenever a Lieutenant is subpoenaed to appear in court on a civil or criminal case, as a consequence of his/her official duties, on his/her off-duty time, he/she shall receive overtime pay for the time spent in court. The Lieutenant must report the subpoena to his/her superior at the earliest opportunity.
 
Overtime Limitations. No overtime premium will be paid to Lieutenants working out of town unless prior approval is obtained for such overtime.
 
E. Captains shall not be entitled to overtime.* The captains [and lieutenants] shall be entitled to executive leave as set forth below:
 
a. In lieu of overtime, paid executive leave of up to 5 days [per calendar year] *in the first six months of the calendar year, and up to 5 days in the second six months of the calendar year,* will be granted by the Chief, [the] *or any* Assistant Chief [or any Deputy Chief] to those employees who have demonstrated a commitment in that *period* [calendar year] toward furthering the goals and objectives of the Police Bureau by their efforts, performance or achievements.
 
b. [An Employee] *A Captain* who believes that his/her request for executive leave was unreasonably denied may file a grievance under Article 31 in this Agreement. However, minimal or occasional involvement in Police Bureau activities or routine management work performed outside normal work hours will not justify the granting of executive leave.
 
c. Executive leave shall be recorded separately and shall not accrue. Executive leave which is granted but not used by the end of the [calendar year] *period for which it is granted,* shall be paid to the employee in cash as a separate check following the first pay period in January *or July.
 
d. The use of executive leave will be arranged by mutual agreement between the employee and his/her supervisor.
 
ARTICLE 36 -- TERMINATION AND DURATION
The PPCOA proposes (deletions bracketed, additions in bold italics (shown here between **)):
 
ARTICLE 36 - TERMINATION AND DURATION
This contract shall be effective on the date of execution of this agreement, except as otherwise specified in this agreement, and shall remain in full force and effect until June 30, 199*7*4, *with the exception of Article 32- Salary and Article 15 - Health and Welfare. Salary and Health and Welfare are open to negotiation for the period July 1, 1996 to June 30, 1997.* The contract shall be automatically renewed from year to year thereafter unless either part shall notify the other in writing not later than March 1 prior to the date of termination, that it wishes to terminate or modify this Contract for any reason. Notification of intent to modify may include the substance of the modifications desired. In the event that such notice is given, those provisions not reopened shall automatically be renewed from year to year thereafter unless either party shall notify the other in writing not later than March 1 of any year that it wishes to terminate or modify this Contract for any reason. Proposals may be presented at the initial negotiation meeting. In the event that such notice is given, all provisions not reopened shall automatically be renewed and shall continue in effect uninterrupted.
 
Negotiations shall begin not later than March 15. This Contract shall remain in full force and effect during the period of negotiations.
 
*The wages as set forth in Article 32 shall be paid retroactively to July 1, 1994. The Article 33 language of the 1992-94 Agreemen5 shall govern Executive Leave benefits in 1995; modifications to Article 33 shall become effective January 1, 1996.*
 
NEW ARTICLE -- LEGAL FEES
The PPCOA has proposed the addition of a new contract article governing legal fees. The Association proposal reads as follows:
 
*ARTICLE __ - LEGAL FEES
The City agrees to reimburse a member for all reasonable, usual and customary legal fees charged by an attorney to a member as a direct result of criminal charges or a criminal investigation arising out of the member's involvement in actions in the performance of his/her duty as a police officer.
 
The reimbursement shall not be made if:
a. The member is convicted by verdict or plea, or pleads no contest to criminal charges arising out of the incident; or
 
b. The Bureau sustains disciplinary charges on the basis of the member's actions which formed the basis for the possible criminal liability, and the Bureau's sustaining of the charges is upheld on any appeal of discipline.
 
Any reimbursement shall be made only at the conclusion of all criminal and disciplinary proceedings against the member arising out of the incident.
 
To receive reimbursement under this Article, the member must select one attorney from a list of fifteen (15) which have been mutually agreed upon by the Portland Police Commanding Officers Association and the City Attorney. Neither party shall unreasonably oppose the inclusion of an attorney on the list. Within sixty (60) days of the execution of this agreement, the PPCOA shall submit to the Cily Attorney the names of the attorneys it proposes for inclusion on the list. If the City Attorney does not object to an attorney on the list within ten
 
(10) working days, the attorney shall be included on the list. The names on the list may be reviewed every six months upon the request of either party. If no attorney on the list is available to represent a member, the member may obtain another attorney, and if the PPCOA notifies the City of the selected attorney by the close of the next working day, the City shall reimburse the member for the attorney's fees provided all other requirements of this Article are met.
 
Before becoming obligated under this Article, the City shall be presented with a sworn affidavit by the attorney having an hourly breakdown of time spent and describing briefly the purpose of such time. If the City in its discretion feels the charges exceed reasonable, usual and customary fees normally charged, the City may submit the bill to the Oregon State Bar Association for review. The Oregon State Bar Association's determination will be final and binding for the City's obligation under this Article.