In pursuit of a new labor contract, the City of San Antonio and local police union have reached preliminary agreements on a number of police disciplinary reform measures at the bargaining table this year.
But a key sticking point remains regarding the appeals process for officers accused of misconduct: Should the chief of police have full discretion on how officers are punished?
The City has said yes. The union says no.
“The chief, being human, has preconceived ideas, biases, and opinions,” said Sgt. Rachel Barnes, a member of the San Antonio Police Officers Association’s negotiating team during a March negotiation meeting. “A neutral, third-party review process protects good officers from excessive discipline and assures that the [ultimate] decision is based in fact.”
But fired officers have found their way back on the force through the process of arbitration, outlined in the contract, or were reinstated by the chief under threat of arbitration. The City seeks a new labor deal that includes accountability reforms giving the chief a better shot at keeping bad cops off the force, officials have said.
“It is not acceptable to have arbitrators undermine the Chief’s authority and force him to rehire officers that have been fired for egregious conduct,” City Manager Erik Walsh said in a prepared statement on April 19. “Allowing that to continue tarnishes the City, the San Antonio Police Department, and our efforts to serve the public daily.”
But the City’s negotiating team recently budged slightly, acknowledging that there may be some punishments that a third-party arbitrator should be able to overturn: those that are found to be “arbitrary and capricious.”
Those two words are at the center of current contract talks, which have been paused until after the May 1 election, when voters will decide whether talks will continue at all by voting for or against Proposition B. If the measure passes, the union would lose its current collective bargaining rights.
How police appeal discipline
Under the current contract, when a police officer violates the San Antonio Police Department’s code of conduct or administrative rules, the police chief issues a punishment that can range from a written reprimand to indefinite suspension, the equivalent of firing. The Internal Affairs Unit investigates non-criminal misconduct while criminal offenses are investigated by the department separately and, if warranted, prosecuted by the district attorney’s office.
Officers, with the support of the union, almost always appeal severe suspension punishments.
When they do, the case is reviewed by the chief’s office and the department’s Citizen Advisory Review Board. Then, a hearing is held at which the officer can plead their case to the chief and provide mitigating factors in support of lesser discipline. After that, the chief issues a decision on punishment.
The officer can then appeal again and have their case reviewed and decided by an arbitrator, a person – usually with some kind of legal experience – selected by the union and the City. They also can choose to have their case reviewed by the Civil Service Commission, but officers rarely choose that route.
“The arbitration process, as it is, is not sustainable,” said First Assistant City Attorney Liz Provencio during a recent negotiation meeting. “We cannot produce the same results. And in order to do that, we’ve got to be sure that the arbitrator’s authority gives weight to the chief’s final discipline and of course, ensures due process.”
Currently, arbitrators are permitted to consider only the previous two years of the officer’s personnel record to make a decision. The chief, however, can look back 10 years for drug and alcohol-related issues, five years for acts of intentional violence, and two years for all other infractions in determining how severely to discipline an officer. The union and City have agreed in talks for the new contract that an officer’s full record of prior violations should be considered.
They have also agreed that an arbitrator, after hearing both sides, can decide whether or not there’s enough evidence to prove misconduct. Where the City and the union disagree is on the standard of evidence used by the arbitrator and whether the arbitrator should be able to change the degree of punishment.
‘Arbitrary and capricious’
The union’s most recent proposal is to have a three-person panel of arbitrators hear the case, instead of one, and use the standard of preponderance of evidence – meaning more than 50% chance that a claim is true. Under the union proposal, the panel can overturn the 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 City’s proposal retains a single arbitrator and uses a “substantial” evidence standard – meaning “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” according to case law.
Under the City’s proposal, the level of punishment can be overturned only if the charges are found to be unsupported. Punishment can be reduced only if “there is a finding that the discipline was arbitrary or capricious.”
During the most recent meeting, Provencio outlined simliar disciplinary standards in four police contracts from cities in Oregon, Illinois, Michigan, and Florida that include similar language.
Craig Deats, a union attorney, said the “arbitrary and capricious” standard would mean arbitrators would be “extremely limited in [their] ability to actually affect the decision chosen by the chief” and therefore curtail the officer’s right to due process by a neutral decision-maker.
Deats emphasized the need to keep a checks-and-balances decision in case the chief makes a wrong call for personal or political reasons. “We can’t rule out the possibility that the chief will make a wrong decision for the wrong reasons,” he said. “I’ve litigated too many whistleblower cases not to be concerned about using unchecked disciplinary [processes to] penalize whistleblowers.”
Last week, the two sides agreed to extend the negotiation timeline by 15 days to May 12. The union’s current labor pact expires at the end of September.
If approved by voters on Saturday, Prop B would repeal Chapter 174 of the Texas Local Government Code, which grants the union its collective bargaining rights. Its passage would not disband the San Antonio Police Officers Association, but the City would likely gain more leverage in future negotiations.
With police misconduct in the spotlight, police reform groups are looking for change to occur sooner rather than later. Union officials and Police Chief William McManus have said reforms are possible at the negotiating table, but the current gridlock on arbitration seems to paint a different picture.
The last two contracts took years to negotiate – and the current contract was settled in private, court-ordered mediation sessions. This time, the two sides have met publicly 10 times in just over two months.
“We made a lot of quick movement in a short period of time – there are very complicated issues that have to be discussed,” said Christopher Lutton, who chairs the union’s contract negotiation committee. “Collective bargaining gives us a process to address concerns for San Antonio.”
Correction: This article has been updated to accurately describe the role of the Internal Affairs Unit.