Jonathan HoltzmanThis article, written by RPLG Founding Partner Jon Holtzman, was originally published in the January 17, 2022 edition of the California Employment Law Letter.

Police reform remains a controversial topic in the public because, to many, it implies animus toward police officers. In the world of local government, however, the issue isn’t really whether there will be new approaches to policing as we know it but what the changes will be.

3 reasons police reform is so difficult

First, it has become nearly impossible to recruit for the job as it’s currently defined. Local governments are throwing increasingly large amounts of money at police unions to recruit and retain officers, but even the hefty sums are having a limited effect on expanding the overall pool of people interested in the work.

Second, unbeknownst to most people in the public, police unions and local governments mostly agree on at least one tenet of police reform: Police officers are poorly equipped to deal with mental health and substance abuse issues. Whether the solution lies in moving cases out of the criminal justice system entirely or creating combined models in which the officers work with mental health professionals, no one thinks the status quo is acceptable.

Finally, while many perceive “the pressure is off” because of COVID-19 and a current spike in crime, the push for reform will inevitably return as more people die from incidents of alleged excessive force.

How HR pros can help

While the focus of all the discussions is on the police, many fail to recognize the problem is really a human resources issue. That isn’t to say HR professionals are responsible for the abuses. Rather, the task of addressing the challenges runs right through their departments’ front yard.

Workplace culture. HR pros have the skills to address problems in police officers’ workplace culture. Policing is hard. It takes a toll on the officers’ psyche. Few normal people want to sign up for a job as purely an “enforcer,” and those who do so probably aren’t the right choices.

As the President’s Commission on 21st Century Policing concluded, the work must be converted from a “warrior” to a “guardian” model. After all, many people would be interested in “community service” at a starting salary of roughly $100,000 plus the ability to retire in 30 years with a healthy pension.

The challenge of tackling the cultural conversion will fall heavily on HR pros. It means changing not just the messaging but also the job. For example, why shouldn’t we be training police officers as paramedics? After all, they are more likely to be first on the scene. Just the very act of giving officers the responsibility over the health of those they deal with would affect how they see their own role.

Also, for example, most police departments let officers rotate patrol assignments annually, which doesn’t allow enough time for them to get to know their neighborhoods. HR pros need to use their unique skills to fine tune such proposals.

Union bargaining. A second way in which police reform runs through HR pros’ territory is union bargaining. Although court decisions have found most police reform measures are outside the mandatory scope of bargaining, a very strange thing happened recently at the California Public Employee Relations Board (PERB).

Despite (1) seemingly clear language in the Meyers-Milias-Brown Act excluding police officer issues from the PERB’s jurisdiction and (2) many, many years of understanding the matters were in fact excluded, in 2017 and again in 2019, the board decided the public safety exclusion in Government Code Section 3511 applied only to cases involving police officers, not those filed by police unions. The ludicrous conclusion has yet to be challenged in court but will be soon. Why?

Last fall, the PERB took its newly self-granted authority and struck down much of a citizen-passed initiative creating a public safety oversight board in Sonoma County (see “PERB steals the vote on county oversight measure” in our August 9, 2021, issue). In broad terms, the case eviscerated the powers of the county’s Independent Office of Law Enforcement Review and Outreach (IOLERO), the oversight body created through a ballot measure that passed with 65% of the vote. The initiative had allowed IOLERO to investigate sheriff employees independently and make recommendations for their discipline, directly access sources of evidence obtained as part of internal affairs probes, receive and review confidential peace officer personnel files, and post body-worn camera video online.

Among the issues the PERB found either within the scope of or subject to required “effects” bargaining were IOLERO’s authority to:

• Subpoena records or testimony in investigations and review an officer’s disciplinary record;

• Post body-worn camera footage;

• Conduct independent investigations and make non-binding recommendations about discipline;

• “Personally sit and observe” investigative interviews;

• Directly contact and interview complainants and witnesses; and

• Investigative evidence and databases.

The IOLERO decision is subject to review by the California Court of Appeal and will hopefully be overturned on two grounds: (1) The PERB had no jurisdiction in the public safety area, and (2) the board’s conclusions are dramatically at variance with many court decisions, which have held most aspects of public safety reform are a matter of managerial prerogative and not subject to bargaining at all.

With respect to the latter point, one need only look back at a 2018 decision (San Francisco Police Officers’ Assn. v. San Francisco Police Co.) in which the court of appeal went so far as to imply the management decision to amend the city’s use-of-force policies might be so significant that it circumvents the doctrine of “effects bargaining” entirely. Another area related to police reform in which the courts have ruled decision bargaining isn’t necessary, but the PERB has concluded otherwise, is investigative methods (e.g., preinterview access).

Pep talk for moving forward

The PERB’s actions make the job of HR and labor professionals working on police reform that much harder. Hopefully, sanity will prevail in the courts, as it often does. But the requirement that various aspects of police reform be bargained isn’t a reason or excuse to slow down. In my experience, many police associations are open to reasonable reforms and oversight, particularly when controls are in place to ensure the decisions aren’t overly politicized. The reforms will include continued changes to:

•Use-of-force policies (the state has already made changes here);

• Performance evaluation and discipline systems;

• Methods for investigating misconduct allegations;

• Schedules and staffing;

• Better recruitment techniques to improve both the number and diversity of applicants;

• Increased transparency in the complaint-handling process;

• Better training;

• More refined oversight mechanisms;

• Increased integration of mental health professionals; and

• As mentioned earlier, cultural changes

It isn’t necessarily up to HR pros to initiate the changes, but it will be their duty to effectuate many of them.

Bottom line

My advice to clients is don’t be afraid we’re tilting for or against the police as we work through the issues. Instead, look at the challenges as urgent problems to be solved in the interest of the public, local government, and the officers themselves.

Talk all you want about attitudes toward policing, but the need for police isn’t going away, and attitudes won’t get us very far if no one wants to undertake the job. Reform isn’t optional.

Arthur Hartinger

For more information, contact:

Jon Holtzman
Founding Partner, Renne Public Law Group