Last week a fight broke out between the Community Police Commission (CPC) and the Mayor’s Office over the tentative collective bargaining agreement (CBA) with SPOG, the police officer’s union. In the days since the CPC voted last Wednesday to urge the City Council to reject the contract, I’ve talked to both sides to try to understand their perspectives on the contract.
What became clear very quickly is that we can’t understand the CBA without first understanding the legal context surrounding it. Here’s what I’ve learned, and what I think it means for the city’s negotiations with SPOG. Caveat: I am not a lawyer. I am sure those who are will send me notes on where they think my analysis is wrong, and I will do my best to understand their points and update this post to make it more accurate.
The right of public employees to collective bargaining is enshrined in state law, most notably the Public Employees Collective Bargaining Act (PECBA). It lays out the topics, processes, and grievance procedures associated with collective bargaining agreements between public institutions in Washington and their employees. Specifically, it defines the subjects that are required to be bargained:
“Collective bargaining” means the performance of the mutual obligations of the public employer and the exclusive bargaining representative to meet at reasonable times, to confer and negotiate in good faith, and to execute a written agreement with respect to grievance procedures and collective negotiations on personnel matters, including wages, hours and working conditions, which may be peculiar to an appropriate bargaining unit of such public employer, except that by such obligation neither party shall be compelled to agree to a proposal or be required to make a concession unless otherwise provided in this chapter.
State law also creates the Public Employees Relations Commission (PERC) , whose job is defined as such:
It shall be the duty of the commission, in order to prevent or minimize interruptions growing out of labor disputes, to assist employers and employees to settle such disputes through mediation and fact-finding.
PERC oversees (and in some circumstances conducts itself) mediation and arbitration on labor disputes, including grievances between unions and employers on terms of their CBAs, complaints of unfair labor practices, and appeals of disciplinary action. They also do general education for public employees on their rights under the law, providing information and past rulings on their web site.
PECBA’s role is both incredibly important and incredibly nuanced. For the public good, many government employees — including police officers — don’t have the right to strike. That puts them at a huge disadvantage in terms of negotiating wages and working conditions, so PECBA provides strong guarantees in return: the right to unionize, an affirmative requirement that their employers negotiate collective bargaining agreements covering the mandatory subjects, and the right to arbitration and a fair and objective grievance procedure. And in the case of an impasse in negotiations, it requires that a mediator be brought in to break the impasse within a given timeframe. To ensure this balance of the rights and responsibilities of public employees is maintained, PECBA is crystal-clear that it is the controlling law on this topic: it is to be construed liberally, and if it conflicts with other laws at the state or local level, PECBA wins.
The CPC has positioned its argument as a conflict between the police accountability ordinance passed by the City Council last year, and the new CBA. But it isn’t nearly that simple; as the city admitted last year to Judge Robart, who oversees the consent decree between the city and the DOJ over police misconduct, there are many provisions in the ordinance that relate to personnel matters and working conditions, thus requiring collective bargaining with SPOG and SPMA (the union for police supervisors). In fact, Robart recognized this weakness in the ordinance and required the city to deliver lists of the terms in the ordinance that were subject to collective bargaining, and those that weren’t. Here’s the list requiring bargaining:
And here’s the list that doesn’t:
What this means in practice is that it doesn’t matter what the police accountability ordinance says about any topic that is a mandatory subject for collective bargaining, because under state law the only terms that matter on those topics are those in the CBA. The ordinance can put a stake in the ground about what the city would like to see, but it has no power to unilaterally decree, and if it claimed it did then it would be subject to an unfair labor practice complaint for not meeting its obligation to engage in good-faith collective bargaining under PECBA.
The CPC published a list of the places it found where the ordinance and the CBA are in conflict and the CBA seems to roll back important reforms in the ordinance. I compared their list to the city’s list of parts of the ordinance subject to mandatory collective bargaining; nearly everything the CPC is raising as an issue is on the city’s list. Here are the CPC’s complaints that aren’t on the city’s list, with references to the relevant sections of the ordinance:
- 3.29.125.A: the extent to which the OPA and OIG have subpoena power (the CBA limits it with respect to employees and their person records (plus their family members).;
- 3.29.125.F: whether OPA must give copies of its investigation plans to SPOG after an investigation is complete and before any due process hearing. The ordinance is silent; the CBA says yes;
- 3.29.125.G: when the Chief of Police meets with a complainant after the OPA sustains a complaint, whether notes will be taken and given to SPOG. The CPC argues that since notes are not required and distributed to the public when the Chief meets with the employee named in the complaint and their union rep, this seems like an imbalance that calls into question the fairness of the complaint process;
- 3.29.135: what information is documented and disclosed when the Chief of Police disagrees with the OPA Director’s recommendation on the findings of an investigation.
- 3.29.330: the ordinance says that the CPC may have access to information relevant to its duties, while the CBA says that the CPC will not have access to OPA files until those investigations are closed.
- 3.29.420.A.8: the ordinance specifies that employees may not use accrued time balances to be compensated while serving a disciplinary penalty that includes unpaid suspension. The CBA limits that to suspensions of over eight days, and provides for an exception if it negatively affects the employee’s pension or medical benefit.
- 3.29.420.A.9: The ordinance says that the City Attorney’s Office will determine legal representation for SPD in disciplinary challenges, and that the city may not settle or resolve grievances or disciplinary appeals without the City Attorney’s approval. The CBA is looser in its requirements.
In addition, the CPC points out that the CBA specifies that it takes precedence in any conflicts between itself and the ordinance. As already discussed above, for the vast majority of the CBA, covering mandatory topics for collective bargaining, that is already true under state law. The only issues where that declaration has any meaning are the seven bulleted items above that aren’t subject to bargaining.
One other issue worth discussing is arbitration. The ordinance does away with arbitration as an avenue for resolving disciplinary appeals, in the hopes of reducing forum-shopping by forcing all appeals to go through one path: the city’s Public Safety Civil Service Commission (PSCSC). However, arbitration is a basic right granted by PECBA to all public employees, that has been affirmed by the courts; the City Council can’t legislate it away unilaterally. SPOG could negotiate it away in exchange for other concessions from the city, but it has chosen not to do so, and the city has little leverage to make them.
In making its case for the CBA, the Mayor’s Office doesn’t dismiss the importance of the police accountability ordinance, but argues that (at least for mandatory subjects) it’s equally if not more important to compare it to the old CBA, which expired in 2014. They claim that there are several areas where they negotiated significantly better terms, even if they didn’t reach the goals as stated in the ordinance. For example, arbitration: the new contract changes the way arbitrators are selected to reduce gamesmanship. Now there is a random list of arbitrators, and each side only gets one opportunity to remove an arbitrator from consideration for assignment to a case.
In aditional, the standard of review for disciplinary findings was rewritten significantly from the old CBA to the new one. The old agreement held that discipline needed to be based on “just cause,” but specifically called out dishonesty as a high standard of review, “clear and convincing evidence:” (my emphasis below)
The parties agree that discipline is a command function, and that the Department may institute a disciplinary procedure. So much of said procedure that relates to the right of an employee to a hearing and the mechanics thereof are outlined in this Article; provided, however, that it is understood that if deemed appropriate by the Chief of the Department, discipline or discharge may be implemented immediately consistent with the employee’s constitutional rights. Disciplinary action shall be for just cause.
In the case of an officer receiving a sustained complaint involving dishonesty in the course of the officer’s official duties or relating to the administration of justice, a presumption of termination shall apply. For purposes of this presumption of termination the Department must prove dishonesty by clear and convincing evidence. Dishonesty is defined as intentionally providing false information, which the officer knows to be false, or intentionally providing incomplete responses to specific questions, regarding facts that are material to the investigation. Specific questions do not include general or ‘catch-all’ questions. For purposes of this Section dishonesty means more than mere inaccuracy or faulty memory.
The new contract removes the requirement for “clear and convincing evidence.” It maintains the requirement that discipline be for “just cause,” but it adds a requirement that arbitration findings must follow established principles, and calls out a specific example where for termination cases “where the alleged offense is stigmatizing to a law enforcement officer,” the standard is “elevated.”
The parties agree that discipline is a command function, and that the Department may institute a disciplinary procedure. So much of said procedure that relates to the right of an employee to a hearing and the mechanics thereof are outlined in this Article; provided, however, that it is understood that if deemed appropriate by the Chief of the Police Department, discipline or discharge may be implemented immediately consistent with the employee’s constitutional rights. Disciplinary action shall be for just cause. The standard of review and burden of proof in labor arbitration will be consistent with established principles of labor arbitration. For example, and without limitation on other examples or applications, the parties agree that these principles include an elevated standard of review (i.e. – more than preponderance of the evidence) for termination cases where the alleged offense is stigmatizing to a law enforcement officer, making it difficult for the employee to get other law enforcement employment.
In the case of an officer receiving a sustained complaint involving dishonesty in the course of the officer’s official duties or relating to the administration of justice, a presumption of termination shall apply. Dishonesty is defined as intentionally providing false information, which the officer knows to be false, or intentionally providing incomplete responses to specific questions, regarding facts that are material to the investigation. Specific questions do not include general or ‘catch-all’ questions. For purposes of this Section dishonesty means more than mere inaccuracy or faulty memory.
This section was a major issue for the CPC, but let’s peel it apart. First, the new requirement only applies to arbitration, and not to other forms of review as it did for dishonesty in the old CBA. Second, arbitrators are required to follow past precedents for how similar cases were decided; as such, they select the standard of review they believe to be appropriate (based on arguments made by both sides). Third, while the CPC argues that under the old CBA the standard of review was “preponderance of the evidence” (meaning more likely than not) for everything except dishonesty, and the ordinance established it as “preponderance of the evidence” for all misconduct, what the ordinance actually says is (3.29.135.F):
Termination is the presumed discipline for a finding of material dishonesty based on the same evidentiary standard used for any other allegation of misconduct.
Nowhere is it established that the standard should be “preponderance of the evidence,” and the city negotiated a potentially lower standard than “clear and convincing evidence” in the new CBA even if it is elevated above “preponderance of the evidence.” “Elevated” is a vague term, and there is a lot of room between the low and high bars here. Fourth, as a reminder this section of the ordinance is one of the areas identified as subject to collective bargaining, so what the ordinance says is not binding — and would be an unfair labor practice if the city tried to rely on it.
Another issue that the CPC raises is that the OPA is not allowed to perform criminal investigations under the new CBA, whereas the ordinance says that the CPC’s jurisdiction includes all types of misconduct and it has the responsibility to “coordinate:”
OPA’s jurisdiction shall include all types of possible misconduct. In complaints alleging criminal misconduct, OPA shall have the responsibility to coordinate investigations with criminal investigators external to OPA and prosecutors on a case-by-case basis to ensure that the most effective, thorough, and rigorous criminal and administrative investigations are conducted.
The Mayor’s Office argues that it expanded OPA’s involvement in criminal investigations in the new CBA versus the old one. Here’s the new language:
OPA will not conduct criminal investigations. OPA and specialty unit investigators conducting the investigation may communicate about the status and progress of the criminal investigation, but OPA will not direct or otherwise influence the conduct of the criminal investigation. In the discretion of the Department, simultaneous OPA and criminal investigations may be conducted.
The Mayor’s Office also makes similar cases for having incrementally improved upon the old CBA for other top issues that the CPC raises, including extending the 180-day time limit for investigations, the statute of limitations for disciplinary action (3 years under the old contract, 4 under the new one, 5 under the ordinance), and the rules for when officers can review body-worn video footage before writing an incident report.
Here’s the thing though: this really isn’t an argument about whether the new CBA faithfully implements the police accountability ordinance; it doesn’t, and everyone agrees on that point. The real question at hand is whether the new CBA is a good or bad deal for the city and its residents. The CPC argues that it’s a bad deal, holding up the ordinance as the gold standard the city should have negotiated for. The Mayor’s Office says that it’s a good deal, in turn drawing attention to how much better it is than the previous CBA. In the end, whether it’s a good or bad deal — or whether it is the best deal the city could get — is entirely subjective and will be up to the City Council to decide. The one objective standard that still remains is whether it is consistent with the terms of the Consent Decree, and (assuming the Council approves it) in the coming months Judge Robart will make that call.
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