This article has been updated with more details surrounding the Fix SAPD petition and launch.
For San Antonio police officers, being fired often is a punishment that lacks permanence.
In the past decade, arbitrators have overturned 10 firing decisions by San Antonio’s police chief, who also has reversed many of his own dismissals to avoid arbitration. As a result, cops who have been accused of domestic violence, abusing suspects, and drug possession are able to remain on the police force. It’s a pattern that has caused reform advocates, spurred on by the Black Lives Matter movement, to question police accountability, several disciplinary clauses in the San Antonio Police Officers Association’s contract with the city, and the two state laws that allow officers to remain on duty after their superiors accuse them of misdeeds.
Fix SAPD, a group affiliated with the broader Black Lives Matter movement in San Antonio, plans this month to launch petitions that could lead to a public vote on Chapters 143 and 174 of the Texas Local Government Code. The chapters detail stipulations in hiring, firing, and disciplining police officers, as well as the collective bargaining rights that empower police unions.
“If those two laws are not revised, if that’s not pulled out of the bargaining agreement, we will not get any type of victory” on police reform, said Pharaoh Clark, one of the leaders of the Reliable Revolutionaries, another local police reform group.
For police union boss Mike Helle, any talk of weakening the chapters is a non-starter. Helle, an advocate for fired officers for the past 12 years, had planned to retire in January as president of the San Antonio Police Officers Association, but told the Rivard Report that could change if activists gain traction.
“If we are attacked by a legitimate group to destroy our police profession that has struggled since 1974 to provide the best pension, pay, and benefits, etc., for our hard-working men and women of the San Antonio Police Department, I will not be retiring,” Helle said in an email.
Second Chances Through Arbitration
The union has fought to protect the rules surrounding police disciplinary process. Punishments for bad acts range from a written reprimand to an indefinite suspension, which is essentially the same as getting fired. But such punishments can be overturned by the arbitration process in which a third-party arbitrator is allowed to review the facts of the incident and decide whether the chief’s punishment is appropriate. Officers accused of breaking the law can still be charged with crimes.
In the past decade, San Antonio Police Chief William McManus has fired officers 71 times. More times than not, arbitrators have upheld the chief’s decisions. In 20 cases, McManus opted to rehire officers so that he could set the terms of reinstatement, rather than the arbitrator.
“It’s somewhat of a gamble,” he said. “I would rather be able to control that than take my chances with the arbitrator.”
By the time an arbitration hearing starts, elements of the case against an officer can sometimes “evaporate,” he said. That could mean a witness no longer wants to testify or a related charge was dropped by the District Attorney’s office.
However, in 10 cases since 2010, arbitrators have granted fired officers their jobs back. Of those, two are on administrative duty with limited contact with the public, three are out on patrol in the community, and the others have since left the department.
“There have been a couple people that I put back on the street,” McManus said. “The ones that I am not comfortable with are on desk duty.”
Here are the 10 officers who have been reinstated through arbitration, according to information released by SAPD and the Fourth Court of Appeals:
Detective Emanuel Keith Jr.
Date: May 4-18, 2018
Incident: Keith admitted to sending threatening text messages and voicemails to a mistress over the course of multiple days. Included in those messages was language such as “Dead b—- soon” and “I could really choke the life out of you.” McManus indefinitely suspended Keith, a 20-year SAPD employee, in 2019. Keith appealed the decision. A hearing examiner decided in Keith’s favor in February 2020, citing a previous case in which an SAPD officer did choke his significant other instead of threatening her and received a 90-day suspension.
Outcome: Indefinite suspension reduced to 90 days with back pay. Keith is currently on active patrol duty.
Officer Matthew Luckhurst
Date: May 6, 2016
Incident: Luckhurst, who joined SAPD in 2012, was on bike patrol with two other officers when they entered a parking lot downtown where homeless people congregate. Luckhurst told investigators he used a discarded slice of bread to pick up a piece of feces, then placed it inside a Styrofoam food container and put it on the ground near a homeless man, who opened it. McManus indefinitely suspended Luckhurst for violating police conduct rules, believing that Luckhurst intended the man to eat the feces. Luckhurst maintained that he assumed the man would determine the container was trash and throw it away. Luckhurst appealed on procedural grounds, with the police union saying the administration had failed to discipline him within 180 days, as required by the police contract. A hearing examiner sided with Luckhurst on March 10, 2018.
Outcome: Indefinite suspension reduced to five days.
Date: June 12, 2016
Incident: During a 5:30 p.m. to 3:30 a.m. shift, an unidentified male officer went into SAPD’s Bike Patrol Office and defecated in the women’s toilet. Luckhurst went in afterward and did the same “on top of the previously deposited excrement.” Both left the toilet unflushed, then later took a boba tea smoothie and poured it onto the toilet and seat. Luckhurst admitted to doing so specifically to create a mess that would be seen by female officers.
“What triggered his decision not to flush the toilet and vandalize the female restroom, was a whiteboard with a note requesting the restroom be left clean, and posters of [actors] Dwayne ‘The Rock’ Johnson and Ryan Gosling that he saw on the wall upon entering,” a hearing examiner wrote. Luckhurst “thought the posters were making fun of ‘us,’ meaning the males, by saying they weren’t as muscular or good looking as the actors.” McManus fired Luckhurst again in December 2016.
Outcome: A hearing examiner in Luckhurst’s second appeal sided with the administration and upheld his permanent dismissal in June 2020.
Officer Robert Romo
Date: Jan. 11, 2013
Incident: Romo, on the force since 2008, was off duty and driving his personal vehicle when he was stopped on suspicion of driving while intoxicated. McManus fired Romo on April 25. A DWI charge was filed but later dismissed by a state district court, a decision upheld by a state appeals court. Both sides agreed to reduce the discipline to a retroactive 882-day suspension without pay on Sept. 22, 2015.
Outcome: Romo returned to his former SAPD job.
Date: Oct. 27, 2015
Incident: Around 2 a.m. and while off-duty, Romo was involved in a fight behind a bar called Mustang Sally’s at 3428 Roosevelt Ave. During the fight, a weapon was discharged and a friend of Romo’s who was not a police officer was shot in the elbow by an unknown suspect. Investigators also found a small baggie of cocaine in Romo’s personal vehicle. McManus fired Romo on Feb. 16, 2016, for the fight, not giving a statement to responding officers, for Romo allowing his friend to carry his City-issued handgun into the bar, and for the discovery of cocaine in his vehicle. Romo appealed, arguing the evidence did not support the City’s allegations. He denied the cocaine was his and passed a drug test within 12 hours of the incident. He also denied giving his friend permission to remove his gun. A hearing examiner ruled that the chief “relied on inaccurate and misleading information” and “was not aware of all pertinent information” and reinstated Romo.
Outcome: Indefinite suspension reduced to 30 days with pay. Romo later resigned from the SAPD.
Officer Tim Garcia
Date: July 14, 2018
Incident: Garcia had been on the force 11 years when, late in the morning, he and his partner detained a man on suspicion of trespassing. Garcia’s body camera captured him insulting the man, including calling him the N-word. McManus fired Garcia on Jan. 7, 2019, calling it “the most inappropriate language I have ever heard during an arrest, especially to a minority.” Garcia appealed, acknowledging what he said but claiming he did not intend to use the slur in a racist manner. An arbitrator on Nov. 4, 2019, ruled that Garcia violated department policies but did not deserve to be fired. “One diatribe does not automatically denote a racist,” the arbitrator wrote.
Outcome: Indefinite suspension reduced to 10-month suspension without pay. Garcia is currently on patrol duty.
Officer Matthew Belver
Date: Aug. 2, 2015
Incident: Belver had served on the force for 9 ½ years when he was recorded on-camera uncuffing a suspect, challenging him to fight or attempt to flee, and berating him with profanities while taking him to the magistrate’s office. Belver also admitted to discarding three shell casings collected from a crime scene instead of submitting them as evidence. McManus fired Belver on Feb. 12, 2016. An arbitrator granted Belver’s appeal on Feb. 24, 2017, saying the City had proved the allegations against Belver, but that it did not have “just cause for the discipline imposed.”
Outcome: Indefinite suspension reduced to 45 days with back pay. Belver is now on administrative duty with limited public contact.
Officer Matthew Martin
Date: April 7, 2015
Martin, who had worked for SAPD since 2007, initiated a traffic stop on a vehicle with a male driver and a female passenger. Martin found three bags of marijuana in the car, two in the vehicle, and one in the passenger’s bra. Martin was accused of commingling the three bags of marijuana, commingling the evidence, and only charging the driver with possession while allowing the passenger to go free. McManus fired Martin on Sept. 30, 2015, alleging untruthfulness in his written report and in interviews with investigators. Martin appealed and an arbitrator on March 30, 2017, ruled that while the City had proved Martin made untruthful statements, the firing was not deserved.
Outcome: Indefinite suspension reduced to one-year suspension without pay. Martin later resigned from the SAPD.
Officer Michael Garza
Date: July 26, 2012
Incident: Garza was involved in an altercation that ended in the killing of his lover’s former boyfriend while he was working a 7 p.m. to 3 a.m. shift as a plainclothes officer assigned to the SAPD’s gang unit. Prior to that, he had served for 10 years with no disciplinary record and many commendations, especially for his undercover work.
During the shift, he also allegedly drank alcohol without permission and drove his romantic partner to a nightclub and then back home, at one point texting her, “OK ma. I got half of crown n seven. Guna chug. Be der in bout 13 mins and 27 seconds” (Garza said the text was a joke). The confrontation with her ex-boyfriend began at Garza’s lover’s apartment, where the boyfriend allegedly shot at Garza. Garza then pursued the man to his home, where Garza told investigators he shot the man after he made aggressive movements and did not show his hands. Garza was not charged in the incident.
McManus fired Garza on Nov. 20, 2012, and Garza appealed. On June 22, 2015, an arbitrator reversed the firing, saying the City had “chosen to inflict the industrial counterpart of ‘capital punishment’” on a “gifted asset” to the department.
Outcome: Indefinite suspension reduced to 15-day unpaid suspension. Garza is now assigned to administrative duty.
Lt. Joseph Salvaggio
Date: Jan. 22, 2010
Incident: Salvaggio was taking an exam to become a captain when he was found carrying a Post-it note with numbers on it corresponding to the candidates taking the exam that he had used as scratch paper. He was accused of taking “test materials” into the exam, though he disputed the note constituted “test materials.” McManus fired him on July 16, 2010. Salvaggio appealed. An arbitrator found in Salvaggio’s favor and restored him to his position with full back pay. The City appealed the decision, but a state district court and the Fourth Court of Appeals both sided with Salvaggio during a four-year court battle.
Outcome: Salvaggio ended up leaving SAPD and became police chief of the City of Leon Valley. He’s currently serving as interim city manager.
Lt. Lee Rakun
Date: May 28, 2010
Incident: Rakun, who had been an SAPD officer since 1993, had admitted to making false statements to an SAPD detective during a video interview. McManus fired Rakun on Sept. 9, 2010. On May 26, 2011, Rakun and the administration entered a settlement agreement that led to his return to duty.
Outcome: Indefinite suspension reduced to 125 days without pay.
Date: Jan. 14, 2012
Incident: Rakun was off duty and out with friends when he attempted to bring a bottle of liquor into Silo, a bar on Austin Highway. He was stopped by a Bexar County deputy constable who was working the door. Rakun allegedly told the man he “was SAPD” and, when he was denied entry, called the deputy multiple racial slurs. Rakun in his appeal said the deputy’s testimony was “fabricated or exaggerated,” among other inconsistencies in the City’s evidence. An arbitrator agreed that Rakun used “inappropriate, abusive, and intimidating language” during the encounter but did not deserve to be fired.
Outcome: Indefinite suspension reduced to 45 days without pay.
Incident: Little detail is available in the settlement agreement that led to Rakun’s retirement. McManus gave Rakun two indefinite suspensions in June 2018 “for allegations of violations of civil service rules and regulations” related to social media and respect for supervisory officers. Rakun appealed both decisions. Both sides agreed to allow Rakun to return to work temporarily, then retire.
Outcome: Indefinite suspension reduced to 37 days without pay. Rakun retired on Feb. 1, 2020.
Officer John Resendez
Incident: The details of McManus’s firing of Resendez in 2010 is unclear, with SAPD officials saying the arbitration records no longer exist. A separate SAPD filing indicates that McManus fired Resendez on Nov. 10, 2010, for “sexual conduct,” a decision that an arbitrator later reversed.
Outcome: Indefinite suspension reversed. Resendez is currently on patrol duty.
These officers were able to return to the police force, and in some cases receive back pay, because of arbitration and disciplinary rules spelled out by state law and the police union’s contract.
The City has deemed many of these rules problematic and tried unsuccessfully to get the disciplinary elements changed during negotiations for the 2016 contract. Attorneys argued, for instance, that the 180-day rule for punishment should be changed from 180 days after the incident took place to 180 days after the chief is made aware of a bad act. That is why Luckhurst’s first dismissal was overturned.
In the San Antonio fire union’s most recent contract reached earlier this year, the 180-day rule was changed to apply to the date the chief became aware of the infraction.
Both Chapters 143 and 174 are laws that cities can opt into and apply to their police departments. Chapter 143 was adopted by voters in 1947. Chapter 174 was adopted in 1974. Not all cities have adopted these state rules, but both can be repealed by a local vote.
- The chief must discipline an officer within 180 days of the violation.
- Police officers have the right to appeal punishments to a “qualified neutral arbitrator” or Civil Service Commission.
- The arbitrator’s ability to change the punishment isn’t limited.
- Records of punishments are not made public “if the disciplinary action was entirely overturned on appeal” (this does not apply to excessive force incidents that result in death or injury and the charge is being investigated).
- Records of punishments are not made public unless there is a final discipline (written reprimands are not considered discipline).
- The City can pay lost wages when an officer is reinstated after a suspension.
- This statute allows police officers and firefighters to collectively bargain.
- The local employment contracts can supersede or supplant civil service laws outlined in Chapter 143.
- Police officers and firefighters are prohibited from striking. (However, there are other sections of state law that prohibits all City employees from striking.)
Police union contract
- Discipline must take place within 180 days of the incident.
- Police officers are allowed 48 hours notice before Internal Affairs contacts them about a disciplinary issue.
- Officers are allowed access to all evidence prior to questioning.
- The chief and arbitrators are limited in how far back they can look in an officer’s record for prior bad acts.
- Suspensions of three days or fewer are automatically converted into written reprimands on the officer’s permanent record if the officer doesn’t break the same rule in two years.
- The contract establishes training requirements and other enhancements, including the Chief’s Advisory Board, which makes recommendations to the chief on proper punishments.
Petition Seeks Public Vote
Fix SAPD organizers have said that even if the problematic language from the contract is fixed, the underlying state law still provides for the arbitration process, an unreasonable 180-day statute of limitations, and incomplete public records. They don’t believe the police need the ability to collectively bargain.
To get a repeal of Chapter 174 on the November ballot as a local proposition, 19,337 verified signatures (5 percent of the number of votes cast in the November 2018 election) will be required. To repeal Chapter 143, 10 percent of registered voters, or 78,415 signatures, would be required. The deadline to file a petition that would trigger a referendum on the November ballot is Aug. 17.
That deadline is too tight to collect in-person signatures when people are being told to stay home and avoid contact with others during the coronavirus pandemic, said Ojiyoma Martin, a Fix SAPD leader.
The group’s petition – yet to be formally launched – will be aimed at getting a repeal vote on the May 1, 2021 ballot when mayor and City Council elections will occur, Martin told the Rivard Report on Monday.
“We’re doing our best,” she said. “We’re going to talk to these council people [and candidates] to get them in our corner.”
The deadline for the City to receive enough signatures is not yet set for the May election, but the City Clerk needs at least 20 days to verify signatures, and the ballot will be finalized by February 12. That leaves roughly Jan. 18-22 for a deadline to turn in signatures. Signatures are valid for 180 days after they are signed.
City and union officials have said they expect to start negotiating the next contract, which expires on Sept. 30, 2021, early next year. However, the current contract includes an eight-year “evergreen clause” that keeps most of the terms in place while a new contract is being negotiated.
Helle said repealing the state laws would not void the evergreen clause, meaning the current rules could stay in place until 2029. But First Assistant City Attorney Liz Provencio disagreed, saying that if Chapter 174 is repealed, the evergreen clause would no longer apply.
“The evergreen is conditioned on [the ability to come] to a new agreement,” Provencio said. Without 174, there is no legal mechanism to agree to a new contract.
In addition to its other provisions, Chapter 143 prohibits police officers and firefighters from striking, Helle noted. Repealing that would “cause massive civil unrest.” However, Provencio noted, there are other provisions in state law that prevent public employees from striking.
McManus said he is not opposed to the collective bargaining process, but an arbitrator who is unfamiliar with the department should not be able to overturn his decisions.
“I do not want to leave it in the hands of an arbitrator to return someone to duty,” McManus said. “I want to be in charge of that process. … I’m focused on the articles [in the contract] that deal specifically with discipline.”
Click here to read a copy of the contract.
To McManus, repealing Chapter 174 would also undo the progress made in training requirements and the Chief’s Advisory Board, half of which comprises non-police members.
“The contract overrides those [State] chapters,” McManus said. “That can all be bargained, agreed with, and worked out at the negotiating table.”
The contracts dictate terms for salary, health care benefits, pension, retiree healthcare, working conditions, recruiting, promotional testing, education, among other things, Helle said. If the contract is void, all those benefits would go away. “That makes our police department attractive for young people wanting to find a working profession, raise a family, own a home, buy a vehicle, and work for a city for 20 to 30 years.”
If Helle sticks to his previously announced plan to retire from the police force in January and give up his union leadership role, union members would elect a new president to lead them through contract negotiations. The nomination process starts in November and elections occur in December, he said.