There are several bills working their way through the Washington State Senate right now that aim to make some serious reforms to policing in the state. Two of them are drawing much attention, including from Seattle officials who testified at a hearing on the bills last week. While both bills recognize that many of the issues can be traced back to the collective bargaining agreements negotiated with unions of law enforcement officers, one of the bills focuses on a modest reform to the arbitration system for appealing disciplinary measures while the other “swings for the fence” on an ambitious list of reform measures.
Senate Bill 5055, the less ambitious of the two, aims to standardize what happens after the police chief imposes discipline on an officer. Under the most recent SPOG contract (which has been highly criticized and both pending bills seem to use as a laundry list for proposed reforms, though the bills would apply to jurisdictions statewide) an officer may “forum shop” an appeal of a disciplinary decision either to the Public Safety Civil Service Commission (PSCSC), or to an arbitrator chosen from a list developed jointly by SPOG and the city through an elaborate process. But SB 5055 merges the two options into one: the state Public Employment Relations Commission (PERC) maintains a list of and trains nine arbitrators, who are then assigned to appeals in a rotation that follows alphabetic order. The arbitrators must meet a demanding set of qualifications laid out in the bill. No other forum for appeals or arbitration is allowed either by local legislation or through negotiation in a collective bargaining agreement; SB 5055 would preempt. The bill would also prohibit collective bargaining agreements with law enforcement unions that prevent, alter, or suppress a city or county ordinance establishing a civilian review system for disciplining law enforcement officers.
SB 5055 would go a long way toward standardizing arbitration processes, standards, training and decisions for law enforcement personnel across the state. At the Senate committee hearing last week, several elected officials and a handful of other advocates testified in support of the bill, while there were only a few voices in opposition. Labor representatives seems to be either split or neutral on it, though there were concerns raised that with only nine arbitrators the backlog for deciding cases might get long.
Senate Bill 5134 is a different matter altogether, which aims to aggressively tackle the most glaring issues in the most recent SPOG contract (and other similar contracts with law enforcement unions). The provisions in the bill fall under four main themes:
1. Prohibitions on what can be written into a collective bargaining agreement. The bill contains a very long list of things that (if passed) can no longer be in collective bargaining agreements. The list includes:
- A required waiting period before an officer can be interviewed about a “use of force” incident; an immediate interview must be allowed. Also, officers are not allowed to review video or written statements or talk to other officers before the interview.
- A time limit for filing a complaint or for completing an investigation into a complaint of officer misconduct.
- Any limits on the agency’s manner of initiating, investigating, litigating, or resolving a complaint.
- Any limits on pursuit of other separate incidents or misconduct revealed in the course of an investigation.
- Limits on the retention, se or disclosure of body-worn video and in-car video footage.
- Limits on the agency’s management, oversight and policies related to officers’ secondary employment.
- Limits on law enforcement agencies’ internal review boards or early intervention systems.
- Limits on the authority, composition or responsibilities of civilian oversight entities.
- Limits on a civilian oversight authority’s use of civilian investigators and supervisors.
- Limits on subpoena authority for civilian oversight entities.
- Limits on public access, retention, or disclosure of information and records related to “incidents, complaints, investigations, findings, disciplinary decisions, litigation, appeals, or decertification involving law enforcement officers.”
- A limit on a police chief’s or sheriff’s authority to remove an officer from duty or place an officer on leave.
- Limits on procedures or timelines for retention or destruction of employment and misconduct records for officers.
- Allowing the sealing, removal, redaction, or destruction of information in officers’ misconduct and employment records.
- Allowing officers to introduce previously undisclosed information during a disciplinary appeal.
- Requiring a standard of review or burden or proof that is greater than “a preponderance of the evidence.”
- Allowing the use of arbitration to decide disciplinary appeals (we’ll come back to this one in a moment).
- Including any provisions regarding processes or information regarding imposition of discipline, hearings, appeals, or decertification for misconduct. Also any limits on who shall investigate criminal misconduct complaints, and the manner of the investigation. In other words, disciplinary procedures are completely off the table for collective bargaining agreements.
- Prohibitions on law enforcement agencies from releasing misconduct and employment records to a prospective employer, or seeking such records on a prospective hire.
- Limits on the composition requirements, policies procedures or rules of civil service commissions.
- Requirements that discipline must be consistent with a comparable to past disciplinary practices.
- Limits on the agency’s authority to take into account past misconduct history when assigning, reassigning or transferring officers to or from specialty assignments or field training positions.
The bill also declares that none of the above items are subject to bargaining, and may not be modified by collective bargaining.
2. Rewriting the rules on disciplinary appeals. SB 5134 states that discipline of law enforcement officers for misconduct is not subject to arbitration, and is only subject to appeal to a civil service commission (thus making it incompatible with SB 5055), though an employer may substitute an administrative law judge or a hearing examiner if it doesn’t wish to create a civil service commission. The bill also specifies the requirements for civil service commissioners, including not having worked for a law enforcement agency in the previous 10 years.
It goes further, in restricting when a disciplinary decision may be appealed. It specifies that they may only be appealed if the decision violated an explicit, well-defined and dominant public policy established by case law. It also says that the commission (or judge or hearing examiner) must uphold the decision and may not reduce the discipline imposed unless the decision was arbitrary, capricious, or based on an illegal reason. In addition, it requires deference to factual findings in the original investigation; there is no “de novo” review upon appeal.
The bill also defines the rules for conducting appeals:
- Hearings must be open to the public (but not deliberations).
- An appeal must be filed within 10 days of a disciplinary decision. The appeal must be heard within 90 days, and then a decision delivered within 30 days of the close of the hearing.
- Past precedents for disciplinary decisions by a law enforcement agency are not grounds for overturning or reducing an imposition of discipline.
- The written decision of an appeal must be made available to the public and is subject to pubic disclosure requests.
- These rules can’t be modified in a collective bargaining agreement.
3. Grounds and requirements for discharging officers. SB 5134 contains a long list of misconduct offenses for which on officer must be discharged. The list includes:
- Use of excessive force; or being present, aware of another officer’s use of excessive force, able to intervene, and failing to intervene or report the officer’s use of excessive force.
- Knowingly hiding material evidence, or failing to report exonerating information.
- Knowingly making materially misleading, deceptive, untrue, or fraudulent statements or representations during an investigation.
- Theft or misappropriation of funds or property.
- Use of the position of law enforcement officer for personal gain through fraud or misrepresentation.
- Serious or repeated harassment or discrimination based upon a protected class.
- Commission or conviction of a felony offense.
- Acting with deliberate indifference to a substantial risk of harm to a person in custody.
- Engaging in sexual conduct with a person who: has been detained; is in custody; or “where under the totality of the circumstances a reasonable person would believe he or she was facing the possibility of being detained or taken into custody.”
- Violation of a law enforcement officer’s duties under the state law that prohibits collecting information about an individual’s immigration status.
The bill also prohibits these rules regarding discharging officers from being modified in a collective bargaining agreement. And it’s very clear that it grants little latitude for extenuating circumstances and no latitude for following past precedents that would suggest a lesser discipline.
4. Requiring police accountability systems. SB 5134 requires jurisdictions to implement a system of laws and rules for receiving and investigating complaints of officer misconduct, and imposing discipline. Those systems must be consistent with the requirements in the bill, and the adoption process must allow for public comment and review.
At the Senate committee hearing last week, there were both strong support and strong opposition voiced — with elected officials and police accountability advocates lining up in favor of the bill but a broad set of labor advocates mostly in opposition, arguing that the bill goes too far, attacks the fundamental tenets of collective bargaining, and does nothing to hold management accountable for its errors.
This morning at the City Council’s weekly Council Briefing, the Office of Intergovernmental Relations (OIR) gave a quick status update on the bill and its strategy to help move it forward. A representative of OIR said that they are pursuing a strategy to amend the bill such as not to eliminate arbitration but instead to put some guardrails around it.
The section of the bill listing the offenses for which the officer must be fired will also probably see some amendments proposed to soften some of the hard lines it draws. For example, declaring that any use of excessive force requires discharge may seem too harsh and might lead investigators and those hearing appeals to be less likely to find that a violation had occurred. SPD’s policy manual has four gradations of use of force, from least to most severe, and it might make more sense to provide for more proportional forms of discipline for lesser cases of excessive force (but not for repeated lesser violations) than to create a penalty system that the participants find is unworkable in practice.
There is no timetable at the moment for moving either SB 5055 or SB 5134 forward, and neither is yet scheduled for another committee discussion.
These two are hardly the only bills related to police accountability that have been introduced in this legislative session, and there is still ample opportunity for others to be added. Also under discussion:
- HB 1054, which (among other things) bans police use of chokeholds.
- HB 1267, which codifies recommendations of the Governor’s task force on investigating police officers’ use of force.
- SB 5051, which establishes a statewide licensing system for law enforcement officers and would prevent an officer who was discharged for misconduct in one jurisdiction from being employed in another in the state.
These are all moving targets at this point; we’ll see how they play out as the state Legislature does its thing in the coming weeks.
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