Lying, stealing, other misconduct don't prevent police promotions under civil service code

At the Austin Statesman today, Tony Plohetski published a story about the results of arbitration in Austin ("In punishment disputes, police, fire officials fared well," Jan. 17) when police and fire employees are fired or denied promotions under the state civil service code. Combining the two groups, writes Plohetski, "When Austin police officers and firefighters have disputed their punishment and taken their cases to outside arbitration, employees have lost that battle more frequently than not, an American-Statesman review of city records shows."

However, looking solely at police officers, "Arbitrators have upheld 10 of the 23 police disciplinary cases that officers have appealed since Acevedo came to Austin in July 2007." So the chief's disciplinary decisions were upheld just 43% of times officers appealed. The number swayed more in the favor of the fire chief, where just 2 of 13 serious disciplinary actions were appealed - one was upheld and one is pending.

For whatever reason, the numbers in the story don't quite add up. If arbitrators upheld 43% of police disciplinary actions, I don't understand how the Statesman claims "employees have lost that battle more frequently than not." Perhaps the inclusion of pending cases explains the difference, but on its face the 10 of 23 figure seems not to jibe with the story's lede.

Notably, a recent Texas Supreme Court case made it more likely fired officers will get reinstated with minimal punishment. "Last year, the Texas Supreme Court ruled that in firing cases, arbitrators can only reinstate officers without issuing discipline, uphold the termination or decrease the punishment to suspensions of 15 days or less."

Also of particular concern is the inability of police managers to promote who they want - instead, their decision by law can only consider the results of a standardized test and the officers' tenure. A past history of misconduct is not among the list of reasons promotions can be denied, and both the police and fire chiefs in Austin "have lost each time they've tried to withhold promotions from those who had otherwise met criteria to move up a rank. Arbitrators found they lacked enough reason."

One of the first criminal justice reform ideas I (unsuccessfully) helped push at the Legislature a decade or so ago was to fix this provision about police promotions. In 2001, then Rep. (now state senator) Juan "Chuy" Hinojosa carried a bill that would have allowed consideration of sustained incidents of misconduct along with tenure and test scores (HB 3492 - 77th session) when deciding promotions under the civil service code. It died in the House Urban Affairs Committee, where police unions enjoy loads of clout. But I continue to think this is an area where chiefs need more authority.

Looking back at a fact sheet developed in support of that 2001 bill, a prime example cited for why the law was needed was the case of former Austin police officer Hector Polanco, who was fired by APD after allegedly coercing false confessions (including in the Christopher Ochoa/Richard Danziger DNA exoneration case) and lying to the chief. He was later reinstated, took the Lieutenants exam and was promoted. Another example from that 2001 fact sheet: "APD Lieutenant Juan Gonzales became Captain after he’d had a sustained excessive force charge and another sustained allegation that he’d used departmental computers to do private investigator research for a law firm. Later he was made head of APD Internal Affairs, and after that promoted again to Commander."

This has been an issue for a long time. The same thing happens among firefighters; even promotions to top management slots can't be derailed by sustained misconduct allegations. From the Statesman:

[Austin Fire Chief Rhoda] Kerr withheld the promotion of a captain to battalion chief last year, saying that he had a history that included lying and shoplifting and that he failed to "live up to a promise to be better."

But  ... the arbitrator reversed her decision, saying that previous chiefs had promoted him and that the firefighter had not offended again.

So thanks to the state civil service code, lying and stealing simply aren't enough to keep police and firefighters from being promoted even to the highest management slots. Can you imagine any other job where that is true? And shouldn't cops, of all people, be held to a higher standard?