Police reform will be a major topic during the 2021 legislative session; some proposals would impact how city police departments discipline officers for misconduct and may impact collective bargaining agreements. Two bills that take different approaches to addressing professional discipline and HR matters for police are up for public hearing this week.

PERC law enforcement arbitrators

SB 5055, by Sen. Joe Nguyen (D–Seattle), would change the arbitration process for resolving disputes about disciplining police officers under the provisions of their union’s collective bargaining agreement (CBA). The bill requires all law enforcement grievance arbitrations involving disciplinary actions to select an arbitrator from a roster of specialized law enforcement personnel grievance arbitrators established by the Public Employment Relations Commission (PERC). Arbitration decisions are binding, and the decisions must be posted to PERC’s website with 30 days of a decision.

PERC is required to appoint a roster of nine arbitrators for three-year terms, all with a minimum of 6-years’ experience as either: a full-time labor relations advocate, a full-time labor mediator, a full-time arbitrator with at least six cases on CBA disputes, or a practitioner or instructor of labor law or industrial relations. Among other factors, PERC must consider a potential arbitrator’s experience on cultural competency, racism, implicit bias, and community diversity. PERC is also authorized to develop training for its law enforcement personnel grievance arbitrators. Arbitrator training must include topics on cultural competency, racism, implicit bias, and community diversity as well as the daily experience of law enforcement personnel.

SB 5055 applies to all law enforcement arbitration proceedings after January 1, 2022, but does not require existing CBAs to be reopened, though the provisions will need to be incorporated in the future. The procedures will need to be included in any new, renewed, or reopened CBAs from January 1, 2022 on.

Accountability Reforms and Civil Service Commission Discipline Proceedings

SB 5134, by Sen. Jesse Salomon (D–Shoreline), aims to eliminate arbitration for law enforcement in favor of appeals to a civil service commission or administrative law judge (ALJ). It also makes a number of other police accountability reforms to law enforcement CBAs.

Under the bill, appeals of law enforcement discipline decisions would go to civil services commissions, an ALJ, or hearings examiner instead of binding arbitration. Any entity chosen to hear an appeal would need to have subject matter expertise, avoid conflicts of interest, and not have worked for a law enforcement agency for 10 years. Commissioners, ALJs, or hearings examiners would not be allowed to reduce disciplinary decisions below if they uphold a finding of misconduct. All hearings and final written decisions would be public, officers and unions would have 10 days from the time of discipline to file for appeal, there would be no precedential value given to previous disciplinary decisions by a law enforcement agency, and all decisions are binding except certain cases that can be appeals to superior court.

The bill also prohibits an extensive list practices from being included in law enforcement CBAs, including:

• Waiting periods for interviews of officers regarding use of force, or allow officers and witnesses to view recorded materials from an incident prior to interview;
• Precluding investigations of complaints into police conduct based on time limits;
• Limits on how misconduct investigations are conducted;
• Limits on use of body cameras and car cameras for misconduct investigations;
• Limits on oversight and policies of the law enforcement employer, civilian oversight authorities, or chiefs and sheriffs;
• Limits on public access to disciplinary records;
• Limits on misconduct or employment records retention or placing them under seal or redaction;
• Allowing known, but previously undisclosed information at disciplinary appeals hearings;
• Requiring greater than preponderance of the evidence standards of proof to find misconduct;
• Precluding a law enforcement employer from releasing misconduct information to an officer’s potential future employer;
• Limits on the composition of discipline appeals decision makers; and
• Limits on using an officer’s discipline history in making assignment or transfer decisions.

SB 5134 also requires the automatic firing of an officer for several kinds of misconduct, including:

• Excessive force or failing to intervene in known excessive use of force of a fellow officer;
• Knowingly withholding evidence or giving misleading or fraudulent testimony under oath;
• Theft or misappropriation of funds or property, or committing a felony;
• Serious or repeated harassment or discrimination; and
• Sexual contact with a person being detained or in custody.

AWC’s position is to support reviewing and revising existing arbitration requirements to clarify and empower local agencies to discipline officers who violate agency policies, state, and local laws. We will be testifying in general support of these proposals. However, we do expect strong opposition from some labor groups.

Dates to remember

SB 5055 and SB 5134 are both scheduled for public hearing in the Senate Labor, Commerce & Tribal Affairs Committee at 8 am on Thursday, January 14.