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Re: Civilian Review June 7, 2005 Page 9 disclosure. Thus, comments made by and recommendations resulting from CRB meetings could be used as evidence in an arbitration or lawsuit and CRB members could be compelled to testify in an arbitration challenging any discipline imposed or in litigation against the City. This situation could pose a particular problem if, for example, the CRB was divided in its response to the adjudication proposed by the City, with some members agreeing with a recommendation that a complaint not be sustained, and others recommending otherwise. A similar issue will arise if the Department were to change its recommended outcome from unsustained to sustained in response to a CRB recommendation. While the CRB recommendation may be well founded and the resulting change in outcome may be warranted, it is likely that such a scenario would cause the Association to claim in arbitration that the Department's ultimate decision to sustain the complaint was due to "political" pressure. Also, under the current collective bargaining agreement, information related to an open investigation, including CRB input must remain confidential until the matter is closed and the information becomes a public record. Breaches of confidentiality by CRB members, even if inadvertent, could potentially breach the parties' contract. Such potential scenarios could compromise the City's ability to sustain discipline decisions at arbitration or hamper the City's ability to defend related litigation. "Closed case" review of an investigation that resulted in an unfounded or unsustained adjudication, or in which no discipline was imposed, would have to occur in open session, since those flies would not be exempt under the public records law. As discussed above, because the current EPEA contract requires the City to adhere to the public records exemption if it applies, the union contract would have to be modified in order to allow the review board to discuss personnel records in a public session. 3. Confidentiality Each member of the civilian review board would be required to sign a confidentiality statement in order to have access to confidential records. However, a confidentiality agreement is only as good as the individual signer's willingness to adhere to it. Once confidential information is released, there is no way to undo the harm caused to the parties. The potential for unauthorized disclosure needs to be seriously assessed because such disclosure can jeopardize the City's legal obligation to provide the full, fair and unbiased investigation required under due process and to defend any resulting litigation. 4. Bargaining issues In Oregon, collective bargaining between public employers and employees is governed by the Public Employees Collective Bargaining Agreement ("PECBA"), ORS 243.650 through 243.782. It is an unfair labor practice for a public employer to "refuse to bargain collectively in