A brief, 14-word sentence at the end of a newspaper story last week demonstrates one of many problems with the current arbitration system mandated by union contracts with the city’s police and firefighters.
The article in the San Antonio Express-News concerned the termination of a San Antonio firefighter who had been charged with driving under the influence in February 2019. The firefighter compounded the offense by fleeing a police officer for a full nine minutes before pulling over and then almost certainly lying to the arresting officer.
Selma officer Josten Rodriguez reported he found off-duty firefighter Albert Cerda slumped over his steering wheel while stopped in the right lane of Retama Parkway. The officer pounded on the window until Cerda looked up at him, then drove off. The officer ran to his car, turned on his flashing lights and siren, and pursued Cerda, ordering him through his loudspeaker to pull over.
Rodriguez testified that Cerda briefly swerved into oncoming traffic before finally coming to a stop.
Cerda said he hadn’t been drinking, that the 24-ounce beer can next to him belonged to his brother, who had been with him earlier. But a blood test showed Cerda’s alcohol level to be at 0.131, well over the 0.08 percent legal limit.
Prosecutors were relatively lenient. They agreed to a plea bargain that dropped charges of evading arrest and carrying an illegal firearm and reduced the DUI charge to blocking a roadway, for which Cerda received probation.
San Antonio Fire Department Chief Charles Hood was tougher. He fired Cerda in May 2019. But the firefighter’s lawyers are appealing to an arbitrator, and that’s where the 14 words come into play: Among other things, “The attorneys plan to argue that Cerda’s firing is an example of disparate treatment.”
Previous firefighters arrested for DUI have not been fired, the lawyers said, so Cerna shouldn’t be.
“Disparate treatment” is grounds for arbitrators to overturn chiefs’ decisions in police and fire union contracts around the nation. It is the bane of many reform-minded chiefs who want to raise the standards of their organizations but find themselves hamstrung by the decisions of earlier chiefs – or earlier decisions they themselves made.
In the current labor contract negotiations between the police union and the City of San Antonio, the city’s negotiators are holding firm to a commitment to do away with the “disparate treatment” language. The chief’s punishment should be overturned, the city says, only if an arbitrator finds it to be “arbitrary and capricious.”
The Merriam-Webster dictionary defines “capricious” as “impulsive, unpredictable.” It defines “arbitrary” as a synonym of capricious: “existing or coming about seemingly at random or by chance or capricious and unreasonable act of will.”
Redundancy in legal writing is so endemic as to suggest that at some point lawyers charged by the word, not by the hour.
The police union wants to keep the “disparate” standard. As the San Antonio Report’s Iris Dimmick wrote recently, they want the arbitrator empowered to overrule the chief’s determination of punishment “if the charges are unsupported by the evidence or reduce punishment if they find at least some of the charges are unsupported, the punishment is disparate compared to past discipline, or if the chief is ‘unable to provide a reasonable explanation for the disparity in treatment.’”
The gap between the two proposals is immense. Reasonable people could feel that Hood was too harsh toward a firefighter for whom it was a first offense. After all, he had been given a forgiving plea deal. What’s more, I’m sure some other DUI offenses by firefighters had not resulted in termination.
But I don’t think anyone would find that it was capricious (yes, and even arbitrary) to fire a firefighter who was driving so drunk that he might have killed someone and who had, according to the officer, tried to evade arrest, lied about an open container in the car, and been in possession of an illegal firearm.
It is the chief’s job to create a culture in a police force or a fire department. It is the union’s job to make it hard to fire their members. There was a time when the balance between these competing interests was tilted toward the chief – or, actually, to the chief’s political bosses.
For much of San Antonio’s history and that of many other cities, the police and fire departments were bastions of patronage for the mayor and other powerful politicians. Job security meant reelecting the politician who got you the job.
When reformer Maury Maverick Sr. was elected mayor in 1939 in the wake of a massive political scandal, one of the first things he did was to fire a large number of police officers, hire a new chief from up north, and establish merit examinations. But Maverick kept his office for only one two-year term, and business as usual returned.
Eventually Texas cities and the Legislature established civil service protections for police and fire departments in cities with populations of more than 10,000. The current state law, passed in 1987, begins by stating its purpose as “to secure efficient fire and police departments composed of capable personnel who are free from political influence and who have permanent employment tenure as public servants.”
The civil service law establishes the arbitration system for appealing a chief’s decision, but it provides that the precise rules can be established in union contracts. In San Antonio in the 1980s, the police union was the largest single financial contributor to the mayor and City Council members. The union rivaled developers in the competition for City Hall clout. Scandals resulting from that led to the current limits on political contributions to council members – $500 per election cycle for council members and $1,000 for the mayor.
Between that and general public support for police and firefighters, the union was able to shift the balance too far in the other direction. A chief, under the current rules, must be as lenient as any of the previous chiefs. This makes it impossible for the chief to enforce a level of discipline that ensures that only good, mature, and disciplined officers are given the life-and-death power that police officers must have in our dangerous society.
It is possible that the pendulum could swing the other way and a chief could become capricious. If one does I think we can count on the police and fire unions to persuade our elected officials to deal with it.