Negotiators with the City of San Antonio and the police union locked horns Tuesday over one of the most infamous loopholes in the police disciplinary process.

A clause in the city’s current contract with San Antonio Police Officers Association puts a statute of limitations on conduct violations, which means officers can’t be punished 180 days after the incident occurred.

The so-called “180-day rule” is what Officer Matthew Luckhurst cited to avoid getting fired after giving a feces sandwich to a person experiencing homelessness in 2016. Ultimately he was fired for a separate case that also involved feces.

Under the city’s proposed language, the 180-day rule would have different guidelines for minor and major misconduct. The 180-day statute of limitations after the incident would still apply to minor misconduct, or slight variances from police department policies, procedures, responsibilities and expectations. But major misconduct (significant variances) would use a discovery rule, meaning the chief has 180 days to punish an officer once the department (the chief, a captain or the Professional Standards Section) finds out about the violation.

The city and union have agreed to that structure, but how major misconduct is defined has been the main sticking point for both sides. The union doesn’t want the definition to be so broad that officers could be on the hook for what may amount to a minor infraction. The city doesn’t want the standard for major misconduct to be so high so that the discovery rule can’t be used.

The city’s proposal includes a list of violations as examples of what would rise to the “level of significant variance such as excessive/unnecessary use of force, discrimination, harassment involving a serious behavior infraction, abuse of official position, improper/unauthorized use of City property, failure to timely report a Major Misconduct of which the Officer was aware, and the use of unauthorized intoxicants or unauthorized medication while on duty.”

The union argued that these examples shouldn’t automatically qualify as major misconduct — that should be based on the behavior of the individual officer.

“You can have discrimination that is not a major misconduct,” Ron DeLord, the union’s attorney, said during the meeting. “Improper [use of a] pronoun — it could be any little thing.”

The union is concerned that a police chief could abuse the extended timeline for punishment that major misconduct affords and go digging into an officer’s past for personal or political reasons, Sgt. Chris Lutton, lead union negotiator told reporters after the meeting.

“For us, discrimination is a significant variance,” said Deputy City Manager Maria Villagómez, the city’s lead negotiator. “If somebody complains about discrimination, that doesn’t automatically mean that [the officer is] going to be disciplined. … We have the due process by which an investigation has to take place [and] the facts have to corroborate whatever the allegation may be.”

A major misconduct violation, if proven, “does not automatically mean termination,” Villagómez said. They could be suspended for as little as one day.

DeLord suggested removing the list of major misconduct examples entirely.

The city wants to keep it in order to give an arbitrator, a third-party who hears appeals for misconduct cases, as much clarity as possible as to what qualifies as major misconduct, Villagómez said.

“[This list] makes it clear from the employee perspective, the public perspective and also the arbitrator,” she said.

Apparently frustrated with the back-and-forth during the meeting, DeLord concluded the conversation about the 180-day rule.

“We are where we are,” he said.

Both sides agree, however, that giving someone a feces sandwich case would qualify as major misconduct.

“I think we’re all in agreement there’s certain conduct that should not be engaged in by San Antonio police officers,” he said.

Despite winning his case through arbitration, Luckhurst was not returned to the force as he had yet another conduct violation under review. An independent arbitrator found his dismissal was warranted in the second incident when he defecated in a woman’s bathroom, purposely didn’t flush, and spread a brown tapioca-like substance on the toilet seat to give the appearance of feces.

The 180-day rule is one of several disciplinary reforms that the city has prioritized during talks that started in February. Last month, they came to a consensus on rules that an arbitrator has to follow in order to rehire a fired officer, a key element in the police disciplinary process.

Disagreement still remains on whether an officer should be able to see all the unredacted investigation materials before they are questioned by Internal Affairs regarding a complaint. The union says yes while the city wants to keep the identities of the complainant and witnesses confidential.

Tuesday was the 28th time the two negotiating teams have met to hash out a new deal. The current contract expired on Sept. 30, but a clause allows most of the terms of the now-expired contract to continue for eight years. During that time, however, base pay raises for union members will halt and they will continue to pay increased health insurance premiums each year.

Wages, health care still on the table

While the two sides have agreed at least on a five-year term of the contract (the union previously wanted six years), they are still fairly far apart when it comes to wage increases.

The city proposes a package that mixes lump-sum bonuses and base pay increases that amount to an 8.25% increase over five years.

The union’s proposal would pause raises in the first year, but give members a 2% wage increase every six months for the remaining four years. That amounts to about a 17% increase over five years.

The two sides have come to a consensus on increasing member premiums 10% each year, but remain split on how to handle medication cost increases.

While health care was at the center of talks for the 2016-2021 contract, it has largely taken a back seat to disciplinary reform during this round. Those on-again, off-again negotiations went on for more than two years; the contract was ultimately arrived at through private, court-ordered mediation.

The city dropped its lawsuit against the police union contract’s evergreen clause when the deal was approved by City Council in 2016.

Lutton said they’re closer to a deal now than they were at the same phase of the previous negotiations. “Last time we were in a lawsuit, and there was no talking going on.”

Villagómez was also optimistic about the progress made so far.

“We don’t agree on everything,” she said, “but I think we have had productive sessions compared to what we experienced in the last contract.”

Iris Dimmick

Senior Reporter Iris Dimmick covers public policy pertaining to social issues, ranging from affordable housing and economic disparity to policing reform and workforce development. Contact her at iris@sareport.org