How Union Contracts Protect Bad Cops
In late 2013, a San Antonio police officer stood accused of handcuffing a woman in the rear of his police car and then raping her. The same officer had remained on the force despite prior sexual misconduct complaints and other brushes with the law.
So early in 2014, backed by the city council, City Manager Sheryl Sculley proposed reforms to the police union contract in the Texas city. She wanted to eliminate a clause that erased prior misconduct complaints from cops' records, increase citizen participation in the complaint process, and end officers' ability to forfeit vacation time rather than serve suspensions.
The San Antonio Police Officers Association's response: It targeted Sculley with a $1 million advertising campaign, according to estimates by the manager's office. The union ran full-page newspaper ads and placed billboards downtown claiming crime rates rose because she refused to fill open police positions. Police backers broadcast ads highlighting Sculley's six-figure salary and created a Facebook page, Remove City Manager Sheryl Sculley.
"They were really trying to intimidate," said Sculley. "I knew it would be one of the hardest things I would work on here in San Antonio."
Mike Helle, the officers' association president, said Sculley pitched the changes simply to ride a wave of protest over police. The contract ensures fair discipline, he said, and if anyone was on the attack, it was the manager. "Her tone was immediately aggressive," he said.
In the end, after two years of bitter negotiations, the sides agreed to a contract capping salaries and benefits at rates manageable for the city. But it did not include Sculley's disciplinary changes. "The bottom line is that we could not change the contract," she said.
The episode is a telling snapshot of the power police unions flex across the United States, using political might to cement contracts that often provide a shield of protection to officers accused of misdeeds and erect barriers to residents complaining of abuse.
From city to city, union contracts have become just as crucial in governing departments as police manuals and city charters. Yet those contracts are coming under scrutiny amid civil rights protests over alleged police abuses, including shootings of unarmed black subjects.
Reuters, examining the fine print of 82 police union contracts in large cities across the country, found a pattern of protections afforded the men and women in blue:
Police supporters say the contract rules are common-sense protections.
"Our job isn't to keep bad officers in this profession. Our job is to make sure that due process is given to the officers," said Rick Weisman, director of labor services at the National Fraternal Order of Police. "If the agency's got a case, make your case."
But many law-enforcement veterans think the protections go too far.
"The balance has dramatically shifted . . . to the creation of barriers to actual accountability that don't serve the public good," said Johnathan Smith, former chief of special litigation in the Civil Rights Division of the U.S. Department of Justice.
Over the last 40 years, cities have bargained away the power to discipline police officers, often in closed negotiation meetings with local unions. Historically, contracts covered salary, pensions and healthcare. Discipline was brought to the negotiating table in the 1980s, when cash-strapped cities gave more management control to unions rather than increase salaries.
"During recessions [the city] would give the union management rights in lieu of money," said Robert Olson, chief inspector of the Garda Síochána Inspectorate in Ireland and former chief of police in Minneapolis. "And when that happens, that's when trouble starts."
"We're not talking about just one union contract," he added. "We're talking about incremental changes in contracts over years that cumulatively, suddenly, there's all of these hoops, which makes it far more difficult for chiefs to sustain discipline."
THE CASE IN COLUMBUS
Joseph Hines was in his junior year at Ohio State University studying agribusiness. On August 29, 2012, Hines and his two best friends were out celebrating the first day of their junior year. They were sitting on a bench joking about fantasy basketball when two police officers on bicycles pulled up and asked Hines for his ID, according to internal police documents and interviews with witnesses.
Hines said he didn't have his ID. The male officer grabbed his arm, and Hines jerked it back. Then the female officer took out her handcuffs, and the two tackled him to the pavement.
A police car dashcam recorded Hines' shouts. "Stop! Stop! Please!"
"Shut the fuck up!" an officer screamed. "Shut up! Get down!"
"Please, stop!" Hines cried. "I can't breathe, stop!"
He lost consciousness, and then awoke on the sidewalk, surrounded now by at least 15 officers, with one eye swollen shut. Hines was hospitalized for three days, diagnosed with facial contusions, a concussion, mild brain damage and Post-Traumatic Stress Disorder, according to medical records he provided to Reuters.
Hines was charged with six crimes, including resisting arrest and underage drinking. Police contended he was drinking in public - a can of Four Loko alcohol was found nearby. Hines says the can wasn't his, and the charges for open container and public intoxication were dropped.
Ultimately, he pleaded guilty only to littering and paid a $100 fine. "I wasn't charged with assault," Hines said. "My face didn't match up to my charges."
Department records show a history of misconduct complaints against the two Columbus officers involved, Thomas DeWitt and Debra Paxton.
Prior to this incident, citizens filed 40 complaint allegations against DeWitt and 14 against Paxton. Those numbers should have "raised eyebrows and raised questions," said Norm Stamper, former chief of the Seattle Police Department and author of a book outlining police reforms.
The details of many of those cases are missing because Columbus files are routinely destroyed every four years. "We shred them in various cycles," said Jonathan Schirg, the management analyst in charge of records retention in the Columbus Division of Police. The retention schedule is approved by the Records Commission, Ohio Historical Society and Auditory of State.
Wes Phillips, the attorney for both officers, declined to comment.
The officers were never suspended in the Hines case. The department began an administrative investigation into their "response to resistance" - a new term used by the Columbus Division of Police to describe police use of force. The investigating sergeant was "unable to resolve" the allegations because Hines declined to be interviewed, as instructed by his attorney, records show.
Mike Miller, Hines' attorney, said he would advise any client not to talk to police in the midst of a case. "The police are the ones that brought these charges against him," he said.
After interviews with 15 officers and two paramedics, police brass determined the misconduct allegations were unfounded. That ruling came as a jury in September 2015 found DeWitt used excessive force and awarded Hines $30,000 in damages for his injuries. Hines appealed the award, which did not cover his attorney's fees, and the case is pending at the Sixth Circuit Court.
Like many police departments, Columbus has a procedure in place to identify patterns of behavior and recommend counseling, called the Employee Action Review System.
The union contract prohibits complaints deemed by the department to be unfounded from factoring into discipline. In the department's view, there is no just cause to discipline without a proven allegation, Columbus Division of Police Chief Kimberley Jacobs said in an e-mail.
The review committee recommended Officer Paxton be monitored and given remedial training after 13 investigations in six months were opened into her use of mace, records show. In July 2014, she took a 30-minute course in handcuffing techniques.
Since the review, the department has investigated eight additional incidents involving Paxton's use of mace and force.
Another Columbus case shows how officers can build up mounting complaints and stay on the force - until even more serious events occur.
Last September, Columbus officer Bryan Mason shot and killed 13-year-old Tyre King, who was carrying a BB gun. Mason had been the subject of more than 60 investigations, including 25 incidents in which citizens required medical attention, and was involved in two additional fatal shootings in 2009 and 2012, according to internal police documents obtained by Reuters.
Mason has been moved to an investigative assignment and is no longer on patrol, according to a spokesperson for the department. His lawyer, Phillips, declined to comment on specifics but said: "Columbus is a very well-trained police force."
Jason Pappas, president of the Columbus Fraternal Order of Police, said the union contract does not skew investigations or limit accountability. "If every officer started getting disciplined or moved because somebody started filing complaints, hell, the whole neighborhood would start filing complaints," he said.
In 15 cities reviewed by Reuters, few citizen complaints were sustained by police internal review boards. In Tacoma, Washington, for instance, just 10 percent of 215 complaint allegations filed against police were sustained between January 2015 and March 2016.
Assistant Chief Kathy McAlpine said complaints are often not sustained for lack of independent witnesses. "It is the complainant's word versus the officer," she said.
In Chicago, a Reuters analysis of 1,000 civilian complaints sent to Internal Affairs in 2016 shows just one resulted in disciplinary action.
One Chicago officer, Raymond Piwnicki - the subject of reports by The Invisible Institute, a Chicago journalistic organization focused on civil rights - accumulated at least 89 misconduct allegations in his 18-year career, files reviewed by Reuters show. Of those, four were sustained and one of the four, fighting with another officer, resulted in punishment, complaint records and internal investigative files show.
In one sustained case in 2005, Piwnicki exchanged words with a couple as they boarded an elevator, telling the man, "Shut up, you fucking coon, you fuckiing cluck, I do whatever the fuck I want to," according to a report by the department's Office of Professional Standards. The argument began after Piwnicki pushed the wife out of the way so he and a friend could board first, the OPS investigation found. The report said Piwnicki attempted to punch the man.
Piwnicki denied wrongdoing in a statement to OPS, but the department sustained all six allegations against him.
"Piwnicki has clearly exhibited a pattern of using profane and derogatory language in his contact with citizens," an investigator wrote.
In 2013, Piwnicki was promoted to detective. He declined comment.
In many cities, prior disciplinary cases simply disappear from the record, thanks to the contract.
Honolulu's contract specifies "derogatory" materials in an employee's file - including disciplinary records - be destroyed after four years. Files may be "temporarily withheld from destruction" if officers are involved in pending litigation, said Sarah Yoro, a Honolulu Police spokeswoman. "Files are normally shredded or burned," she said.
In Baton Rouge, complaints of sexual misconduct or harassment are removed from an officer's record and destroyed after five years. The department did not respond to interview requests.
Destroying data that could signal wider problems can hurt the police department as well as the public, said Smith, the former DOJ official. Officers who become involved in shootings or other serious violations frequently have faced less serious allegations in the past. By limiting the use of past complaints, he said, union contracts can render institutions unable to correct their own behavior.
Glendale, Arizona, with a population of more than a quarter million residents, is among nine cities where the union contract restricts anonymous complaints from being investigated.
"We want the complainant to come in," said Justin Harris, a Glendale police officer and union representative. "There's a form, and it lets the taxpayer know that if you're knowingly and intentionally making a false statement, you could be prosecuted."
Glendale police defend their other contract protections. Among them: Officers under investigation get to see video footage that isn't made available to citizens. Incidents involving police use of force can be emotional, and looking at video footage can help officers refresh their memory, police say.
"That way they know all the facts, there's no witch hunting," Harris said.
By contrast, he said, "You don't want to let a witness review footage of something they may or may not have seen, because if they review that footage, then they're going to come back and just tell you what they just saw. So that's not an independent statement."
In eight cities, contracts allow officers to refuse to testify before civilian oversight boards. In Las Vegas, the union contract requires a court order to access an employee's file.
Detective Steve Grammas, president of the Las Vegas Police Protective Association, said the policy is "consistent with public and private sector employment practices."
Some contracts afford second chances when officers are found to have alcohol in their system.
In Chicago, officers who are breathalyzed on the job and register a blood-alcohol content of 0.021 through 0.039 - close to the 0.05 cutoff for a driving-while-intoxicated citation in Illinois - are sent home and tested again the next day. "If the return-to-duty test reveals an alcohol level of .00, the Officer may return to duty and shall not be subject to discipline based on the initial test result," the contract states.
Toledo is equally forgiving. "Any on-duty officer who has under a .04 BAC shall not be subject to discipline but will be required to go home," the contract says. "This officer may utilize any accumulated compensatory or vacation time to cover their absence."
Officer Daniel Wagner, president of the Toledo Police Patrolman's Association, said the language was recently added "to be proactive in addressing a common problem seen in policing nationwide" involving officers and alcohol. But, he said, the force has not had to put the provision into action.
UNIQUE BENEFITS, PUBLIC BARRIERS
In Milwaukee, officers can be paid during disciplinary suspensions - a benefit not bestowed on other city workers. "It is recognized that financial losses are not typically borne by the offending member alone, but by his or her family as well," the police contract states.
Officers are also paid during lengthy internal affairs investigations. One Milwaukee police officer, Sonthana Rajaphoumi, was on paid suspension for more than five months after being charged in April 2016 with three felony counts of causing mental harm to a child and soliciting prostitution. He allegedly offered $200 for sex with a 16-year-old girl and tried to court another 15-year-old girl. He was fired in October.
Rajaphoumi's attorney did not respond to requests for comment.
A department spokesperson said officers stay on payroll until found guilty by the court system or an internal investigation, processes that can take years.
Columbus' contract mandates that complaints be submitted in writing within 60 days of an incident. Beyond that, officers typically are not required to participate in the investigation, and their name doesn't appear on the complaint. At least 25 allegations of misconduct, or nearly 5 percent of all complaints, were not investigated in Columbus due to the 60-day clause, a 2015 report said.
"It's very difficult for a supervisor to investigate outside of 60 days," said Jennifer Knight, commander of the Columbus Internal Affairs Bureau.
Like most union contracts, the Columbus agreement allows officers access to all investigative materials. If new evidence is discovered, officers can pause an interview, step out with their lawyer and review the material.
Complainants are not given the same access in the city, where a string of police-involved shootings has sparked citizen marches.
THE CASE IN SAN ANTONIO
In San Antonio, the case that helped spur the city manager to action involved officer Jackie Neal, arrested in November 2013 on charges he raped a woman in the rear seat of his police vehicle. Later that night, released from jail, Neal returned to the home where the woman was staying and was arrested again.
Three months earlier, the police chief found that Neal, supervisor of the department's youth program, had had sex with a teenage girl participating in the program.
The chief suspended him for three days, but Neal never lost a dime in pay or a day off patrol: The union contract allowed him to serve the suspension using vacation days.
Helle, the union president, said he too wanted Neal off the force, viewing him at an outlier.
"I told the chief, you need to watch this guy," he said.
Helle has a daughter, and he said Neal's actions deeply troubled him.
Neal declined to comment.
Neal had two prior complaints of sexual misconduct, court documents show. A woman alleged he put his hands inside her panties, lifted up her shirt and felt her breasts during a routine traffic stop in November 2006. Neal was accused of digitally penetrating another woman in February 2007. Neither complaint was sustained by the department.
Police Chief William McManus declined interview requests. In a deposition in the civil case against Neal, McManus said he "had a stern conversation" with Neal after the sexual encounter with the teenager in the police youth program and felt confident allowing him to continue performing his duties unsupervised.
McManus said he did not see a connection between the teen sex incident and Neal's prior complaints. "These incidents, to me, were not - not sexually related, but they were what I considered to be a very, very aggressive officer in trying to find drugs," he said.
The officer had other brushes with the law. In February 2007, Neal's stepdaughter called police after he allegedly punched a door and began throwing clothes and a suitcase. Two months later, Neal's wife, Debbie, called 911 saying he was threatening to kill himself with a gun.
"He rarely raised his voice, but when he got mad it was scary," said Debbie Neal, who divorced Neal in 2009 but defended him in court. "I'd never seen him like that."
In November 2013, after the alleged rape in his police car, Neal pleaded no contest to improper sexual activity with a person in custody. He was fined $5,000 and sentenced to 14 months behind bars. As part of the plea, he agreed to surrender his officer certification.
Neal's sentence was shortened by five months through a state program allowing credit for work and education.
In April 2015, San Antonio approved a $500,000 settlement with the victim.
Yet such cases are not enough to spur change. The city manager, Sculley, said the police union wouldn't budge on her demand that it cede control over discipline, and city council leaders urged her to yield in order to settle a new contract.
"There is so much that still needs to be changed in the contract," Sculley said. "I lost the political support of the council to continue to press on that issue."
* Chicago Reporter: Can Chicago Take On Police Union Contracts This Year?
Posted on January 14, 2017
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