Binding arbitration earned public scrutiny after the Almanac broke the story last year of veteran police officer Jeffrey Vasquez, who was reinstated by an arbitrator despite being caught naked with a prostitute in a motel room and reportedly admitting it wasn't the first time he had hired a hooker for sex. The arbitrator also awarded him $188,000 in back pay.
Labor attorneys Jeff Sloan and Michael Rains, representing the management and union perspectives on binding arbitration respectively, carried on a back-and-forth during their Jan. 27 presentation to the council.
Mr. Sloan said a "very strong" public safety lobby led to California's "Public Safety Officers Bill of Rights," which sets out protections for police officers that are broader than those for any other public employee, with the possible exception of firefighters.
Mr. Rains, a former police officer with three decades of experience as a labor attorney, noted that the purpose of the bill of rights is to prevent abusive or arbitrary discipline.
Describing police as "the most visible representative of this city," he told the council that officers want a fair, thorough and objective process, which in turn brings benefits for the city.
"As long as the disciplinary process and the appellate mechanisms are there, you can buy a lot of goodwill from your police officers and their associations," Mr. Rains said.
Two alternatives to binding arbitration: A civilian personnel review board, or implementing non-binding arbitration, which would allow either side to appeal a decision through the court system.
Mr. Rains said those choices can bog down the process, leading to lengthy and expensive hearings.
Voicing disagreement, Mr. Sloan said arbitration isn't fast either, in some cases taking more than a year to render a decision. "I had one case where the union lawyer took 23 days to put on his case in front of an arbitrator, and I dare say a judge would not have allowed that."
He said a big aspect of his concerns relates to the issue of who the arbitrators are. "How qualified are these people? To what extent are they researchable, and can I see what they've written, check their references? And typically the answer to that is no." Arbitrators have to be able to satisfy both sides of an appeal to stay in business, he noted.
Mr. Rains countered with saying that word gets around within the legal community about an arbitrator's reputation, in addition to copies of sample decisions.
"We aren't just out there picking and hiring blindly," he said.
Other labor attorneys shared Mr. Sloan's concerns during the Almanac's investigation last year. At least 16 jurisdictions in California rely on binding arbitration in police disciplinary cases.
The lack of a centralized database of arbitration decisions, or even statistics on how many cases are upheld, turns evaluating the effectiveness of the system — or individual arbitrators — into a monumental challenge.
The Almanac obtained 17 redacted decisions in police misconduct cases involving San Jose, Stockton, Richmond, Alameda, Sierra Madre, Oroville, Merced County and Oakland. Out of 17 cases, arbitrators reinstated the officers nine times, and reduced a suspension once — a reversal rate of about 59 percent.
They upheld terminations in the remaining seven cases. Academic studies of similar binding arbitration cases in Chicago and Houston show approximately the same reversal rate.
The state doesn't require arbitrators to publish their decisions, and due to confidentiality laws, both parties must give permission should an arbitrator choose to release a case ruling. Labor attorneys said sample decisions provided by arbitrators are typically selected according to politics — a city manager, for example, is likely to get a copy of a ruling that supported management.
One question went unaddressed during the Jan. 27 study session — where is the public transparency? Under California law, the identities of police officers appealing through binding arbitration are confidential.
A public agency may disclose the number of such cases and the outcomes, as the city of San Jose does quarterly, but Menlo Park refuses to release even that redacted information. And no state agency has oversight of the arbitration process, meaning no one knows how well the process works.
Councilman Peter Ohtaki said during the study session that the outcome in the Vasquez case outraged the council as well as the community. "What we're trying to do is look at alternatives to avoid the outcome, but still respect and preserve a fair and thorough and objective due process."
In August, the Menlo Park council voted 4-1 to approve a contract with the Police Sergeants Association that made minor changes to the binding arbitration process, namely, adding a clause that allows the city and union to select an arbitrator from a pool of retired San Mateo County judges if they can't agree on an arbitrator from a list provided by an outside agency such as the state mediation service. But the arbitrator's decision would still be final.
Voting against the contract, Councilwoman Kirsten Keith called the binding arbitration process "broken" and said the changes didn't go far enough.
At the Jan. 27 study session she said she agreed that fairness is necessary. "But it doesn't mean binding arbitration furthers that goal."
The council asked for opinions about using retired judges to arbitrate. On that topic, Mr. Sloan and Mr. Rains sounded united. Both expressed that retired judges may not have the experience or background to deal with the nuances of labor law.