How San Jose police union contracts shield officers accused of misconduct
San Jose police officers stand outside City Hall on May 30, 2020 on the second day of George Floyd protests. File photo.

    As San Jose and cities around the country study how to reform police departments, the role union contracts play in obscuring information about officers under investigation is facing scrutiny.

    “I am concerned that over the years a number of issues have been put into (police union) contracts that limit the management decisions of the police chiefs, city managers and, quite frankly, city councils,” said Pete Constant, a retired San Jose police officer and former city councilmember.

    All unions provide their workers with certain rights and protections. According to Paul Kelly, president of the San Jose Police Officers Association, employees under investigation may request to have a representative assist them. Union representatives ensure the city is following the rules of investigation and helps employees form a response and exercise their right to appeal.

    “The standard is that everyone is presumed innocent until proven otherwise,” Kelly said. “Every union in the nation works to make sure the process is fair.”

    The outcome of these investigations is not always known. The discipline records for San Jose police officer Jared Yuen, who was recorded making provocative gestures and swearing at protestors in May, are not not being disclosed by the city for this year. In addition, Yuen’s current duties — whether he’s patrolling the streets or working in an administrative role — also remain hidden.

    Assistant to the City Manager Elsa Cordova said it is a matter of public interest that Yuen’s current duties remain undisclosed.

    While some of these protections are afforded by the union, others are encoded in California’s Peace Officers’ Bill of Rights. The legislation, signed into law in 1976, prohibits agencies from releasing the name or photo of police officers under investigation “if that officer reasonably believes that the disclosure may result in a threat, harassment, intimidation, or harm to that officer or his or her family.”

    For example, San Jose still has not released the names of the officers who were recorded kicking and dragging a woman in a McDonald’s parking lot in July.

    Constant said such records should be made public.

    “When you have people that have repeated issues of misconduct or complaints, that should be released to the public, and it should be released easily to the public,” Constant said. “Not a process where you have to go through multiple requests and fight to get the information.”

    Kelly emphasized the city controls the pace of police officer investigations.

    “The (police) chief… has the ability to immediately remove police powers from an officer if he or she deems that is in the public interest,” Kelly said.

    There are certain provisions in San Jose’s police union contract that can slow the firing of officers. For example, the contract says an officer may appeal a firing through the city’s Civil Service Commission, and also have the firing ruled upon by an independent arbitrator. This arbitrator may reverse the city’s disciplinary decisions. According to police union spokesman Tom Saggau, such reversals have only occurred three out of eight times in the past 10 years.

    This year’s police union contract was approved quickly on June 30 without changes, save for two lines enabling the city and union to renegotiate compensation and policies.

    Kelly said police officers have a right to a full investigation before being fired for misconduct, and while the city controls the pace of the investigation, certain procedures must be followed to ensure fairness.

    “What some people are essentially saying is convict an officer first and then do an investigation later,” Kelly said. “That is not right.”

    Kelly said a recent report from Los Angeles, in which 16% of complaints filed against officers were proven “demonstrably false,” shows the importance of presuming innocence for officers and other employees.

    Some councilmembers have tried to make the union negotiating process more transparent. Councilmember Johnny Khamis said he voted in October 2014 to create a ballot measure that if approved would have made the city’s union negotiations — including those for the police union — open to the public.

    Though the initiative attracted public support, then-mayor Chuck Reed said he preferred to keep using private mediators. Both Constant and Khamis, as well as state State Assemblymember Ash Kalra, Mayor Sam Liccardo and former Councilmember Pierluigi Oliverio voted for the initiative.

    “I don’t see any reason to hide negotiations but the unions and our negotiators didn’t like the idea, so both sides poo-pooed the idea,” Khamis said.

    Saggau said union negotiations already are transparent enough given councilmembers direct city staff to negotiate around certain objectives. In addition, contract proposals are posted online throughout the process and prior to being voted on by City Council.

    “The city gives away tens of millions of dollars a year to developers, they do contracts for massive amounts of money for infrastructure improvements,” Saggau said. “(Should) residents be included in those negotiations?”

    Council members have proposed numerous reforms to police operations, including banning rubber bullets, as well as expanding the powers to the Independent Police Auditor.

    In addition, the council will vote Sept. 15 on whether to direct the city manager to release body camera footage from officers involved in numerous incidents during the George Floyd protests in May.

    Contact Sonya Herrera at [email protected] or follow @SMHsoftware on Twitter.

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