To Protect And Arbitrate: A Look At San Antonio's Police Disciplinary Protections And Criticisms
Police unions have been under a nationwide microscope since May, when George Floyd was killed by a Minneapolis police officer. In San Antonio, police scrutiny is not new, but the cries against lax disciplinary procedures for the San Antonio Police Department — and its union members — are growing louder.
The current contract between the San Antonio Police Officers’ Association and the City of San Antonio will be up for renewal in January. Recent protests over police brutality and the police union’s power have led to calls for reform. Here is the current contract signed by the city and police union in 2016.
What Does The Collective Bargaining Agreement Allow?
The association plays a major role in officer protection through its collective bargaining agreement with the city, known as a CBA. Protections in the CBA include allowing accused officers to view all evidence before being interviewed by internal affairs, only allowing disciplinary action to be taken if it is within 180 days of the misconduct and allowing a 48-hour notice for accused officers before they have to give a statement when misconduct is investigated.
The latter two are what San Antonio’s District 2 Councilwoman Jada Andrews-Sullivan takes strong issue with. That’s in addition to the lump sum payout for dismissed officers.
“When I went through a domestic violence situation... the incident ended with my husband taking his life. (The police) didn’t give me to the next day to come give a statement. They needed the statement at that time at 2:30 in the morning when everything was over. I think that our police officers should have that same responsibility,” Andrews-Sullivan said of the 48-hour window for police accused of misconduct.
She added that officers proven guilty of wrongful death or inappropriate behavior should not be paid out lump sums after termination.
And while the East Side councilwoman has also called to extend the 180-day limit on discipline, the president of the San Antonio Police Association Mike Helle equates her criticism to a misunderstanding of the rule.
“This does not apply to criminal actions at all, and that’s another thing that’s been misrepresented,” Helle explained. “If the policeman conducts something that is potentially something that is criminal, or anything to that nature, the 180 days is no longer applicable to the situation.”
The 180-day rule led to an arbitrator overturning the termination of former SAPD officer Matthew Luckhurst who gave a homeless man a feces sandwich. Arbitrators are intended to serve as a neutral party to determine whether an officer’s discipline from the police chief is justified.
Luckhurst was again fired by San Antonio Police Chief William McManus for a separate misconduct incident that an arbitrator ultimately upheld. Helle said he agrees Luckhurst’s actions should have been considered criminal, but the officer’s overturned dismissal should be blamed on McManus, not the 180-day rule.
“Did I think he committed a criminal offense? Yes I do,” Helle said. “But I’m not the criminal regulator or the person that’s required to file these charges, that’s the chief of police. The chief’s office, through its incompetence, failed to determine the actual day of when this took place.”
Arguments For — And Against — Arbitration
Arbitration is an appeals process that officers can use if they’re disciplined by the chief for any reason. In San Antonio, arbitrators are often selected through a process called alternate-strike. In alternate-strike, the American Arbitration Association provides the chief of police and the legal counsel for the accused officer with the names of seven arbitrators, and the two parties alternately strike off names from the list until one name is left.
Loyola University law professor Dr. Stephen Rushin has criticized this form of arbitrator selection.
“As repeat players, the arbitrator often has, arguably according to critics of it, an incentive to compromise if they’re going to be a repeat player and they want to make sure they’re selected in the future,” Rushin said. “The person that kind of meets in the middle is the one that may be most appealing, or maybe a better way to put it is they may be the least offensive.”
Rushin has also criticized the arbitration procedure used in San Antonio more broadly, saying it gives arbitrators the authority to completely relitigate cases, impose legally binding decisions and circumvent civilian review boards.
“Once you layer all these together, what you’re ultimately left with is a really powerful arbitrator that has, effectively, complete control over discipline,” he said. “And you’ve suddenly made internal disciplinary matters not be a matter where there’s really any democratic accountability.”
Helle said arbitration is necessary to protect officers’ rights.
“I’m not opposed to, and nor is any policeman opposed to, dealing with a discipline process that is very stringent … but, at the same time, if we’re going to be held to that level of scrutiny, then we deserve a process that is apolitical that does not allow politics to interfere, and that is the arbitration process,” Helle said.
Political Past, Potential Future
Many local police protections, including arbitration, come from Chapter 143 of the Texas Local Government Code. Voters adopted the statute in 1947 after it was added to the ballot using a petition.
Now, local organizers are planning to launch a new petition — this time to repeal it.
“Everywhere you look, people are looking to take action. So, if there was a time, this is it,” said Oji Martin, co-founder of FixSAPD.
FixSAPD is a recently created group working to repeal Chapter 143 and Chapter 174 in San Antonio. Chapter 174 allows police and fire employees to collectively bargain, and voters adopted it in 1974. FixSAPD has received the support of organizations like the Texas Organizing Project.
FixSAPD will need nearly 100,000 physical signatures to get both statutes on the May ballot, a difficult task in the best of circumstances that will be made even more challenging by the ongoing COVID-19 pandemic. They’ll likely face a major challenge from the police and fire associations.
One reason FixSAPD is trying to put a second vote to these statutes is because the initial votes excluded communities of color, Martin said. Chapter 143 was passed before the Voting Rights Act and Chapter 174 was passed before a mandate to offer ballots in Spanish, limiting the amount of participation Black and Hispanic people could have in those elections.
Martin said she wants everyone, including this generation, to have a voice and a choice in the laws that govern them. She also emphasized FixSAPD is not trying to abolish or defund the police.
Andrews-Sullivan has expressed support for San Antonians who are trying to repeal Chapter 143, which includes arbitration.
There are potential changes to arbitration that are seen in other cities. Some limit the scope of arbitrators to a review similar to the appeals process in the justice system. Rushin said other cities allow the city council or a civilian review board to overturn arbitrator decisions.
“One hundred percent they need due process," Rushin said. "But, we have to weigh that against the harms that we’re creating by making an overly cumbersome disciplinary process that strips the public from having an ability to oversee police conduct and respond to it appropriately."
Negotiations on the last contract between the city and union went past the contract’s expiration date in 2014. Both sides could not agree on healthcare and wages and the removal of an evergreen clause that would allow the expired contract to continue for 10 years. The city made several court attempts to remove the evergreen clause, but the union would win the court’s favor.
The city and union agreed on a contract during court-ordered mediation in 2016.
The current police association contract expires in September of 2021.
Negotiations between the city and union on a new contract start in January, and FixSAPD will launch its petition in the coming weeks.
Most recently, the San Antonio City Council has outlined its priorities for the next contract which include removing some protections like the 180-day rule. San Antonio Mayor Ron Nirenberg declared police reform a priority in June. The council tabled a resolution on its priorities for a new contract with the police association before the council went on its annual July recess and may bring it up again for discussion in August.
TPR’s Joey Palacios contributed to this story.