The City of San Antonio and police union have volleyed proposals back and forth for months to settle on a new labor contract. On Friday, the union proposed an unusual model to settle discipline cases for misbehaving officers — one that removes the burden of proof.
The city’s top priority in these talks is disciplinary reform, specifically changing the process that allows fired officers to get their jobs back.
Initially, the city negotiating team’s goal was to give the chief of police full discretion when firing officers. Its latest proposal seeks to balance the chief’s need to get rid of bad cops with protecting officers from excessive or unreasonable punishment — the latter is the union’s goal.
The two sides have made significant strides towards a compromise on discipline since talks started in February, but two major hurdles remain: who should prove an officer’s shortcomings and how can the chief’s decision to fire an officer be given more weight.
Disciplinary actions for police misconduct — which are often not associated with criminal conduct — are outlined in article 28 of the contract. Section 9 describes the scope of the arbitrator’s authority, which is quite broad.
The arbitrator, after a hearing from both sides in an officer’s appeal of punishment, states what they find to be true in the misconduct case and whether the chief’s punishment should be upheld or substituted for a lesser discipline. The arbitrator can reduce an indefinite suspension (the equivalent to firing) to a suspension of 45 days or more.
The city’s proposal would narrow the arbitrator’s authority to adjust discipline and give more deference to the chief’s decision, said María Villagómez, the deputy city manager who leads the city’s negotiating team.
Because the arbitrator’s authority is so broad under the current contract, the city can rarely appeal their decisions, Villagómez said. This proposal would change that.
“This will narrow the jurisdiction of the arbitrator, and by doing so give us the ability to appeal under different grounds,” she said.
Under the city’s proposal, an arbitrator still rules on whether the misconduct occurred, but couldn’t overturn a suspension “unless it is arbitrary, unreasonable, or unrelated to the needs of the service.”
For indefinite suspensions, which are usually handed down for major conduct violations such as excessive use of force, the threshold for reversing the chief’s decision is even higher.
To avoid getting fired, the officer would have to prove that their conduct “is not a substantial shortcoming,” meaning they either prove that the violation doesn’t interfere with their ability to effectively serve in the police department or they prove that the law and community expectations would support them getting their job back.
It’s the city’s burden to prove misconduct has occurred, so it should be the officer’s burden to demonstrate why they shouldn’t be fired, Villagómez said. “We would like to have that balance … [by] putting that ownership on the employee.”
In the union’s latest proposal discussed Friday, the union wants both the city and the officer to present evidence to the arbitrator that proves (or disproves) that shortcoming — removing the burden of proof entirely.
A major divergence?
“It would be an even playing field,” said SAPD Sgt. Rachel Barnes, who serves on the San Antonio Police Officers Association’s negotiating team. “Each side would present their evidence and then the arbitrator would be the one [who] decides: which side is 51% [of the evidence on]?”
But that would represent a major divergence from how cases are conducted and appealed, city attorneys said during the meeting.
“Based on what we have reviewed, [removing the burden of proof] is unprecedented,” said Liz Provencio, first assistant city attorney who serves on the city’s negotiation team, told the San Antonio Report after the meeting. “We will continue to research, however.”
Placing the burden of proof on the officer is also how the chief’s decision maintains deference, she said.
“We shouldn’t have to show that that [major] misconduct is unacceptable for either department or the community,” she said during the meeting. “For example, using the N-word as part of an arrest … should not require the chief to then go on and say why that’s detrimental. It’s in the department standards.”
The chief’s deference could be both implied and written into the contract as a factor for the arbitrator to consider, said SAPD Sgt. Christopher Lutton, who chairs the union’s contract negotiation committee.
Villagómez said the city will consider the proposal, but “I don’t think the [union’s] language provides that balance that we’re trying to achieve to give the chief the weight that we need in the [discipline] process.”
Lutton acknowledged that the proposal puts both the city and union in uncharted territory.
“We’re slowly feeling [this] out to have a brand new outlook on things,” he told the San Antonio Report.
The wave of police reform movements across the United States last year in the wake of George Floyd’s murder by a police officer has fizzled out in some cities and grown in others, Lutton noted. “We don’t want it to fall apart here. We want to stay at the table.”
The union’s new proposal comes after a Thursday meeting during which the city reopened dialogue around what the new rules should achieve.
The two sides have agreed that for disciplinary cases, officers should have due process, there should be a neutral third party to review the case, and use a preponderance (51%) of the evidence standard. What they still don’t agree on is how to give the chief’s decision more weight throughout the process.
An agreement is still pending on whether an officer’s full disciplinary record should be considered by an arbitrator. Currently, arbitrators can use only two years of the officer’s record to make a decision. To determine discipline, the chief can look back 10 years for drug and alcohol-related issues, five years for acts of intentional violence, and only two years for all other infractions.
Once the issue of arbitration and burden of guilt is resolved, they will discuss officer records, Provencio said Thursday.
Several other major components of the contract, including health care and wages, are still on the table.
The current contract expires at the end of this month, but a clause within it allows most terms to continue for eight years. However, base pay raises will halt and members will continue to pay increased health insurance premiums.
That prospect is “weighing on some members,” Lutton said, but “we’re talking to our membership, making sure they understand” what’s at stake.
The two sides agreed to extend the timeline another 15 days and will meet again next Friday, Oct. 1.