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Cops in Misconduct Stay in Force by Arbitration


SEATTLE (AP) – An Oregon police officer lost his job and then returned to work after shooting an unarmed black man in the back. Florida sergeant dismissed six times for excessive force and stealing suspects, while Texas lieutenant was fired five times after being charged with hitting two women, threatening to call and to have committed other offenses.

These officers and hundreds of others across the country have been fired, sometimes repeatedly, for violating policies, but returned to work after appealing their case to an arbitrator who canceled their discipline – a practice far too common that some law and law enforcement experts say opposes real accountability.

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“Arbitration inherently undermines police decisions,” said Michael Gennaco, police reform expert and former federal civil rights attorney specializing in police misconduct. “It is appalling to see referees regularly putting people back to work.”

The murder of George Floyd at the hands of a Minneapolis police officer has sparked weeks of protests and calls for reform, but experts say arbitration can block these efforts.

Arbitration, the appeal process used by most law enforcement agencies, contributes to officers’ misconduct, limits public scrutiny and lowers morale, said Stephen Rushin, a law professor at the law firm. Loyola University of Chicago, which last year published a study on arbitration in the University of Pennsylvania Law Review.

“Police arbitration on appeal is one of the most important liability issues in the country,” he told The Associated Press. “You cannot change an organization if you have to continue to employ people who you know will do bad things.”

Generally, when a misconduct complaint is made against an officer, it is the subject of an internal investigation and if a policy violation has occurred, the chief or another official may order the discipline which can range from an oral reprimand to a suspension of several days to termination.

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An opposing officer may appeal to an arbitrator. Each state and municipality is different, but this is the most common process. Police unions argue that arbitration is less costly and takes less time than going to court, so it’s written into their contracts.

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Arbitrators are usually lawyers who focus on labor law and in most cases, have the final say. The process can take years and the dismissed and reinstated officers can recover their wages for the time they were not working.

The contract between the Seattle Police Union and the city states that the burden of proof to fire an agent must be “more than the preponderance of evidence”, in cases for an offense that could “stigmatize” an agent and make it harder to get a job elsewhere.

This type of requirement is common, said Gennaco, adding, “The high standard for termination cases is another example of a union contract that grants special rights to the police.”

James Pasco, executive director of the National Fraternal Police Order, which has 351,000 members nationwide, said management should do a better job when hiring officers.

“Rather than admitting their failure to recruit and screen, they want to blame problem officers on the union contract,” Pasco said on Monday. “If they recruited, trained and supervised appropriately, we would not be able to go to arbitration.”

It is not clear whether some cases are overturned because of an arbitrator’s personal bias or flaws in the internal inquiries, or a bit of both, said Rushin, the law professor.

A Seattle officer was dismissed for punching a handcuffed woman in the back of his patrol car in 2014. He appealed and the arbitrator reduced his sentence to a 15-day suspension. The city appealed this decision to a state court and the judge reinstated his dismissal.

It’s an unusual result, said Rushin. Most often, agreements with unions make the arbitrator’s decision final and a court cannot reverse it.

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Officials in Portland, Oregon opposed their decision to an arbitrator’s decision in the Oregon Court of Appeal, but lost their intention to have Constable Ron Frashour fired.

Frashour and another officer went to Aaron Campbell’s home on January 29, 2010, according to a report that he was upset by the death of his brother. The officers ordered Campbell to leave the house and he left unarmed, walking backwards, hands on his head. Frashour shot Campbell behind his back, killing him.

Portland settled a federal lawsuit with the Campbell estate in 2012 for $ 1.2 million, and city officials fired Frashour, concluding that Campbell was not a threat. But an arbitrator decided in 2012 that the city should reinstate him. The city appealed and lost again.

San Antonio officials have repeatedly ordered the discipline of Lt. Lee Rakun, but he has successfully appealed his dismissal five times, according to reports. His last suspension was in 2018 for leaving work earlier and defying authority. He again called for the dismissal.

Rakun is not alone. San Antonio TV Station KSAT found that two-thirds of the dismissed officers had returned to their jobs since 2010.

San Antonio City Manager Erik Walsh said the current collective agreement limits the chief’s ability to discipline officers appropriately.

“We intend to take these matters to the next contract negotiation with the police union,” he said. “I hope the police union will agree that these cases will tarnish and have an impact on the community’s confidence in our police service.”

A Florida police officer who was fired six times returned to patrol in 2018. An arbitrator ordered the Opa-locka police department to re-hire Sgt. Bosque German after his dismissal in 2013 for falsifying evidence. A 2011 Sarasota Herald-Tribune report said that Bosque had 40 internal complaints, including 16 for battery or excessive force.

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When an arbitrator changes or casts the sentence, it can have a demoralizing effect on those responsible.

“One of the most common complaints I have heard from chiefs is that they say why an unelected referee, who does not know our department, does not know our history, why should he be the one decide what type of sentence is excessive and what type of sentence is reasonable? Said Rushin.

No state or federal agency tracks the results of the arbitration, but media inquiries have documented hundreds of officers who returned to work after being laid off. Washington Post report documented 1,881 agents dismissed between 2006 and 2016, and 451 returned to work by arbitration.

These corrupt agents can be a burden on government departments, communities and the criminal justice system.

“It is essential to understand that arbitration does not only mean that you have an officer who is not the best,” said Rushin, “but often means that they cannot do their job in the same way as the other agents. And it’s a burden that the community bears because we are responsible for paying their salaries. ”

Source: AP News

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