Almanac

Viewpoint - August 21, 2013

Editorial: City retains protective arbitration for sergeants

It is disappointing that the Menlo Park City Council has settled on a contract proposal for its police sergeants that includes binding arbitration, despite losing the case of veteran police officer Jeffrey Vasquez, who was fired for allegedly soliciting a prostitute and then reinstated with $188,000 in back pay after he appealed through binding arbitration.

The council could have fought the inclusion of binding arbitration in the new contract and instead insisted on use of a civilian review board or other administrative means to handle cases involving police officer misconduct. But instead, Mayor Peter Ohtaki and his colleagues decided to stick with traditional binding arbitration in the deal, but added the ability — as a last resort — to select an arbitrator from a list of retired San Mateo County judges. The option to choose a judge for the case would come only after the two sides could not agree on an arbitrator from a list provided by the state.

Mayor Ohtaki and several council members say the change to allow retired judges to possibly become involved is significant, although attorneys and at least one retired judge told the Almanac they weren't sure it would make a difference.

The proposed contract does reduce the city's future financial exposure by reducing pension benefits from 3 percent for every year served up to age 50 to 2.7 percent up to age 57 for new police employees hired after Jan. 1. But in return, the new employees will pay slightly less to CalPERS for their pension benefits.

Regardless, we're concerned that despite the bitter experience of seeing Officer Vasquez reinstated with full back pay in a secret proceeding conducted by an arbitrator whose track record is not available to the public, the city hasn't made any real progress in fixing the broken binding arbitration process. While arbitrators may favor one side or the other, retired judges aren't foolproof. One labor attorney told the Almanac that "...arbitration decisions are binding, regardless of whether the arbitrator gets it wrong on the facts or wrong on the law." The council's change does nothing to prevent this.

In 17 redacted binding arbitration decisions appealed by officers from multiple jurisdictions, the Almanac found that more than half — 59 percent — were reversed. Arbitrators reinstated the officers nine times and shortened one suspension, and upheld terminations in the remaining seven cases. That's a reversal trend seen in other states that use binding arbitration, suggesting that the problem lies with the process.

It's past time for the council to push for more transparency in serious police misconduct cases. Menlo Park imposes secrecy beyond what the law requires, refusing to share information with the public that could be disclosed. Why does the number of police officers who have faced discipline, and the number of cases that have gone to binding arbitration, have to remain a secret? Other jurisdictions, such as San Jose, include that data in public reports that strip out identifying information.

Taxpayers have a right to know how many Menlo Park police officers are disciplined each year, and for what types of misconduct. Robert Jonsen, the city's new police chief, appears much more open than his predecessors, an attitude we hope rubs off on the City Council and other officials.

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