Bargaining in Blue: Should provisions related to discipline allow for discretion when determining disciplinary action for police officers?

By

Ballotpedia staff

In this month’s edition of Bargaining in Blue: 

  • On the beat: Canton, Ohio, officer faced disciplinary hearing after kicking suspect in the chest
  • Insights: Disciplinary provisions in police CBAs across the country
  • Around the table: Should provisions related to discipline allow for discretion when determining disciplinary action for police officers? 

Following up

Austin, Texas, resumes police CBA negotiations 

In January we took a deep dive into a dispute in Austin, Texas, affecting CBA negotiations. The dispute concerned the implementation of the Austin Police Oversight Act—a police oversight measure approved by voters in May 2023. 

On September 6, contract negotiations resumed between the city of Austin and the Austin Police Association. The parties have agreed to follow guidance from the courts on implementing the police oversight requirements and will now focus on negotiating pay provisions.  

On the beat

Canton, Ohio, officer faced disciplinary hearing after kicking suspect in the chest 

Brandon Momirov—a Canton, Ohio, police officer who kicked a compliant suspect in the chest—was terminated on September 23 following a disciplinary hearing for a Class A violation, in accordance with the city’s collective bargaining agreement (CBA) and its rules and regulations. 

Canton Police Chief John Gabbard determined Momirov committed a Class A violation of the department’s use of force policy, according to the rules and regulations referenced in its CBA. Gabbard said, “The conduct under review is unacceptable and does not reflect our training, our principles, or our mission. … Mistakes like this affect every officer, making a very difficult job even harder.” 

The case was referred to the city safety director for a disciplinary hearing, per the disciplinary process outlined in the Canton police CBA. Following the disciplinary hearing, the city announced Momirov’s termination. The officer may file a grievance within 10 days to have the discipline reviewed at arbitration under the CBA’s grievance and arbitration procedure. 

The department’s rules and regulations highlight discipline for Class A violations as a minimum of a 30-day suspension and a maximum of termination, however, the department’s rules and regulations also state the listed sanctions are not mandatory. The documentation instructs the safety director to account for mitigating or aggravating factors when determining disciplinary actions. 

The background

Officers were called to the scene of a dispute on August 24 where 10 to 15 people were reportedly arguing. When officers arrived, several people fled and three suspects were ordered to get on the ground. Momirov kicked a 21-year-old suspect while he was complying with officers’ orders to get on the ground. After the incident, a video recording began circulating on social media. 

The Canton Police Department conducted an internal review of the incident and concluded the officer committed a Class A violation of the department’s rules. The department stated, “Class A is reserved for the most serious violations.” 

A closer look at the Canton Police CBA

Disciplinary provisions in the Canton Police Patrolmen’s Association CBA reference the Canton Police Department Rules and Regulations. Chapter 5 of the rules and regulations outlines rules of conduct for police officers related to the treatment of persons subject to arrest, including the department’s use of force policy. 

Chapter 7 of the Canton Police Department Rules and Regulations outlines the classification of rules of conduct in relation to disciplinary provisions:

The Department recognizes that disciplinary actions serve a two-fold purpose. Situations will arise that call for corrective or remedial action. Under those circumstances, every effort will be made to improve, rehabilitate or train the officer in the most effective performance of duty. On the other hand, certain types of police misconduct require the imposition of a severe penalty. In order to ensure both the highest standards of police conduct and the fair administration of discipline, a schedule of sanctions has been established. A range of minimum and maximum corrective action or penalties has been assigned to each Rule of Conduct. Repeated infractions or violations will be accounted for by imposing escalated sanctions.

The officer’s misconduct in the incident above was classified as a Class A violation, or a major violation of police conduct. According to the rules and regulations, all violations of the department’s use of force policy are classified as Class A violations. 

The schedule of sanctions for a Class A offense lists a 30-day suspension as the minimum discipline and termination as the maximum discipline, however, the document also states the following:

The Schedule of Sanctions set out below is not intended to be mandatory. If other action than that described is deemed appropriate due to mitigating or aggravating circumstances, the Chief of Police or Safety Director shall take such facts into account.

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Insights

Ballotpedia CBA Dashboard takeaways on disciplinary provisions  

  • Featured dashboard query 
    • Scope: all states and the top 100 largest cities
    • Topic: provisions related to discipline for misconduct 

CBAs and LEOBORs frequently include specific processes and requirements for officer discipline. These include the primary discipline authority, the types of discipline authorized, the appeal process, and restricted aspects related to disciplining officers. 

According to our Police CBA Dashboard:

  • 70 of the 100 largest cities in the U.S. have police CBAs that specifically address disciplinary procedures
  • 23 states and the District of Columbia have police CBAs that specifically address disciplinary procedures 
  • Click here to view the dashboard query showing details.
  • 90 of the 151 states and cities we analyzed have police CBAs containing provisions outlining specific types of discipline covered by the agreement:
    • 11 police CBAs include a general disciplinary category among the list of discipline types, such as covering other disciplinary actions, other employment penalties, or alternate disciplinary actions.
    • Two police CBAs (Los Angeles, CA and Tampa, FL) specifically include training or retraining in its list of types of discipline. One police CBA (Michigan) specifically excludes training from its list of types of discipline.
  • 92 police CBAs contain provisions related to the authority primarily responsible for determining disciplinary actions:
    • 85 police CBAs include the state or city police department as the primary discipline authority. 
    • Four police CBAs identify the Chief of Police as the primary discipline authority.
    • The Florida police CBA and the Hawaii police CBA identify the state government as the primary discipline authority.
    • The Vermont police CBA identifies the Commissioner of Human Resources as the primary discipline authority. 

Around the table

Should provisions related to discipline allow for discretion when determining disciplinary action for police officers? 

The New Paltz, New York, police department published a notice outlining its discipline matrix, which aligns with its CBA to provide guidance on disciplinary standards. The notice outlined potential mitigating or aggravating factors to be considered in disciplinary matters including, but not limited to, prior disciplinary history, the training and expertise of the respondent, the motivation for the action, and the nature of the event. 

The department argues disciplinary cases should be determined on a case-by-case basis and disciplinary recommendations should consider all relevant factors. 

The guidelines set forth presumptive penalties for acts of misconduct and violations of Department policy. A presumptive penalty is the assumed penalty generally deemed appropriate for the first instance of a specific proscribed act. The presumptive penalty serves as the starting point for analysis during the penalty phase of a case, which must include consideration of the totality of the circumstances and any aggravating and or mitigating factors that may be relevant. […]

Given the complexity of some events and significant permutations across fact patterns, it is not possible to predetermine the outcome or the relative weights of potential aggravating and mitigating factors for every disciplinary matter. In select areas of misconduct, presumptive penalties for common aggravating factors are delineated, but even in these cases, there may be additional aggravating factors or mitigating factors that bear upon the ultimate penalty recommendation. 

The Chicago Office of Inspector General (OIG) issued a report in 2022 recommending changes to the Chicago Police Department’s (CPD) disciplinary process to promote what the OIG refers to as fairness and consistency. OIG argues Chicago police agencies need clear policies and procedures for determining discipline and actionable guidance on a standardized process for weighing aggravating and mitigating factors in disciplinary decisions.

The current system for investigating allegations of misconduct by CPD members, recommending discipline, challenging that discipline, and finally implementing discipline is a complex one governed by numerous policies and procedures, involving multiple agencies and actors. The system is not adequately transparent to those involved or to the public. Without clearer policies and standards to govern decision making and inter-agency coordination, the system as it currently functions risks procedural inconsistency and unfairness in the formulation of disciplinary recommendations and in Police Board reviews of issued discipline; absent adequate procedural controls or guidelines for developing disciplinary recommendations, sanctions imposed on CPD members might be arbitrary and unconstrained, fundamentally undermining the legitimacy of and public confidence in the disciplinary system. There are important changes that the agencies can make both unilaterally and coordinately to materially improve the consistency and fairness of the process by which CPD members are disciplined.

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