How fired cops win their jobs back: arbitration

In Washington state and around the nation, some cops fired for dishonesty or misconduct remain on the beat because private arbitrators gave them their jobs back.

A line of police officers on a street with a building behind them

Tacoma police and other law enforcement officials stand in a line as protesters approach in the street in front of the City-County Building during a protest against police brutality, Jan. 24, 2021, in downtown Tacoma. (Ted S. Warren/AP)

Backup was only about a minute away. But by the time it arrived, Centralia Police Officer Phil Reynolds had already used his Taser three times on a handcuffed suspect in the back of his patrol car.

Two days later, Reynolds used his stun gun on another suspect, with one of the deployments lasting 44 seconds, nearly nine times as long as the standard Taser cycle.

An internal review found four other incidents where Reynolds used his Taser in ways that violated department policy, then filed inaccurate reports about those uses of force.

Nine months later, when Reynolds failed to respond to his fellow officers’ calls for backup, the police chief decided to fire him

Yet Reynolds still works for the Centralia Police Department today after he was reinstated through an arbitrator’s decision in 2014.

Similar stories have played out across Washington state, as well as throughout the nation. 

A paper written last year by Stephen Rushin, a law professor at Loyola University Chicago, reviewed a database of 624 police arbitration awards, and found that arbitrators overturned disciplinary decisions against police officers 52% of the time. In 46% of cases, arbitrators ordered police agencies to rehire officers who had been fired. 

Bob Berg, the former Centralia police chief who fired Reynolds, said Reynolds’ continued employment as a cop points to something deeply wrong with the system. 

Before his firing, Reynolds had been disciplined three times in two years. He had also been written up informally and verbally counseled several times, including about being unavailable to take calls, the offense for which he was ultimately fired. 

“By gosh, when you can’t get rid of the ones that aren’t doing the job right, there’s a problem,” Berg said in a recent phone interview. 

He added: “You just do not tase a handcuffed person, unless they start to kick the crap out of you with their feet.”

State Sen. Jesse Salomon, a Shoreline Democrat who also works as a public defender, wants to rein in private arbitration. A proposal Salomon introduced this year, Senate Bill 5134, would have made it so police officers couldn’t appeal disciplinary actions using the arbitration process. Seattle Mayor Jenny Durkan was working on another proposal to overhaul the practice.

But as the 2021 legislative session comes to a close, those attempts to reform arbitration have stalled in Olympia, even as other significant police reform measures have advanced.

Salomon said the use of arbitration to water down police discipline will remain a problem even if the Legislature approves other police accountability bills this year, such as new limits on police use of neck restraints, tear gas and physical force.

“Once we pass some of these bills that are easier to pass and we see these arbitration incidents keep happening, where officers are let off the hook for not obeying these new laws, I think it is going to keep shining the spotlight on this problem,” Salomon said. 

State Sen. Jesse Salomon with trees behind him

Democratic state Sen. Jesse Salomon outside of his Shoreline home on April 5, 2021. (Dorothy Edwards/Crosscut)

Democratic state Sen. Jesse Salomon outside of his Shoreline home on April 5, 2021. (Dorothy Edwards/Crosscut)

From Seattle to East Wenatchee

Reynolds, who didn’t respond to multiple requests for an interview, is far from the only police officer in Washington who has been fired and reinstated because of arbitration. 

Three years ago, an arbitrator ordered the Seattle Police Department to rehire a cop who was fired after punching a handcuffed woman in the eye. The arbitrator’s decision to reinstate Officer Adley Shepherd alarmed a federal judge so much that the judge decided to extend federal oversight of the Seattle Police Department, citing concerns over a lack of accountability. 

While a court decision later overruled the arbitrator, causing Shepherd to lose his job again, Durkan said that’s very rare and doesn’t erase the system’s underlying problems.

Arbitration also saved the jobs of a Spokane cop who had sex while on duty and a Washougal officer who was convicted of assault for punching a man, according to local news reports. 

Another cop who owes his job to arbitration is Tye Sheats, an East Wenatchee police officer whose supervisors accused him of repeated dishonesty. Crosscut came across his case and a handful of others while reviewing county prosecutors’ files on officers who have potential credibility issues. (Read our story on cops who landed on prosecutors’ Brady lists.)

When applying for a job at another police agency in 2016, Sheats admitted to several instances of fraud and petty theft, according to a summary of answers he gave as part of a preemployment polygraph screening.

Some of the offenses Sheats admitted to, according to the summary document, included:

  • Falsifying traffic stop statistics in 2016 (Sheats now disputes this charge).
  • Taking a pair of gloves from a car during an investigation in 2011.
  • Pocketing a knife that he confiscated from a driver during a traffic stop in 2012. 
  • Altering sales prices on vehicle titles from 2008 to 2013 to avoid paying higher sales taxes. 
  • Filing a false or misleading insurance claim in 2009.
  • Shoplifting and stealing at least 20 times before becoming a police officer, including many times when Sheats was a teenager.

In 2019, a prosecutor also disputed Sheats’ account of a use-of-force incident, saying video evidence contradicted Sheats’ official report. Sheats had said a suspect tackled him during a pursuit, leading to a scuffle. However, the prosecutor who reviewed video footage wrote it was actually Sheats who tackled the suspect first, “at full speed." In reviewing Sheats' report, the prosecutor also noted “Sheats [was] actually the only person throwing punches throughout the entire incident.”

Sheats wasn’t disciplined over that case. Nor was he fired over his admissions in the polygraph, which he said got twisted and misconstrued.

But Sheats’ supervisors did fire him in 2019 after they said he was untruthful in two different internal investigations. 

A private arbitrator reversed Sheats’ firing, saying the rules Sheats broke weren't well known to officers and that another officer received a less severe punishment for a worse offense. 

In reinstating Sheats, the arbitrator also said the city hadn’t proved Sheats was dishonest “beyond a reasonable doubt.”

In a phone interview last week, Sheats said his department kept searching for bogus reasons to fire him after learning of the 2016 polygraph. 

If anything, Sheats said, he may have been “overly honest,” which is why he confessed to so many mistakes from his youth. 

Regarding the use-of-force incident, Sheats called it an instance of a prosecutor “doing a Monday morning quarterback,” or second guessing the split-second decisions cops have to make.

‘Red flags’

One problem with officers being reinstated through arbitration is that it can make it harder for other police agencies to know of a cop’s past issues. 

Case in point: Soap Lake Police Chief Ryan Cox said he probably wouldn’t have hired Shane Jones if he had known the details of how Jones was fired from his job as a sheriff’s deputy 14 years earlier.

The Okanogan County Sheriff’s Office terminated Jones in 2006 after he was arrested for driving under the influence while off duty. An internal investigation found that Jones repeatedly lied to Washington State Patrol troopers during the arrest. He also tried to get preferential treatment based on his status as a deputy sheriff, an arbitrator affirmed.

Yet the arbitrator said Jones couldn’t be fired, mainly because another sheriff’s office employee who showed up to work drunk had been allowed to keep her job.

Jones was reinstated, but later resigned from the sheriff’s office in lieu of termination in 2017, after being accused of driving under the influence again.

Even after that, Cox decided to take a chance on Jones, who he thought had overcome his past problems with substance use. Cox hired him last year as a reserve officer in Soap Lake, a Central Washington town of about 1,500 people.

Then, two months ago, Jones crashed a city-owned patrol vehicle into another car and drove away, according to a State Patrol incident report. He later drove the patrol car off the road and got into “an altercation” with Franklin County sheriff’s deputies, the report said, before being arrested for driving under the influence.

So, Cox fired Jones from the job in Soap Lake.

Cox said that when he originally requested documents from Jones’ Okanogan County personnel file as part of a background check, he didn’t get a copy of the 2006 paperwork terminating Jones, nor the arbitration agreement ordering the county to rehire him. Okanogan County officials confirmed those documents were not in Jones' personnel file.

Had he seen those, Cox said, there would have been some “red flags” for him.

Among them: According to the county officials, Omak police banned Jones from the Omak city limits after Jones pepper sprayed a driver inside a car. The driver’s Chihuahua jumped out of the car during the encounter “and was never found by the city,” according to the arbitrator’s summary of the incident.

Jones also was formally reprimanded for an angry outburst toward a state trooper in 2006 and counseled several other times “regarding his aggressive actions.” For instance, while in uniform, Jones once yelled at clerks at a bank, later letting himself behind the bank counter and “verbally assaulting the manager,” the sheriff's office said.

Yet Cox said he didn’t find out about any of that when he asked about Jones or looked through documents from Jones’ personnel file, which Okanogan County released with Jones' written permission. 

Okanogan County officials, meanwhile, say the information was available to Cox if he had asked the right questions and gone to the right places. In an email, Okanogan County Sheriff Tony Hawley wrote that if Cox had called him directly, he would have told Cox not to hire Jones. 

Cox, however, stands by his background check and maintains that Jones' personnel file should have given a fuller picture. Cox said he talked to other people he knew at the sheriff's office before making the hire.

“Nobody gave me bad reports,” Cox said during a phone interview. “Especially as a small department, we have to go by what we’re told. So what do you do?”
 

‘You’re putting bad cops back into departments’

Had Salomon or Durkan’s proposals been in law at the time, the Reynolds, Sheats and Jones cases may have turned out differently.

For one thing, the disciplinary appeals would have had more public scrutiny.

On top of that, both Salomon and Durkan’s proposals would have required the police agencies to meet a lower burden of proof, making it easier for them to show they fired Jones and Sheats for just cause.

This detail may sound wonky and technical. But it has a huge impact on the outcome of arbitration cases and whether police discipline is overturned. 

In particular, the standard of review the arbitrator used in Sheats’ case — requiring that East Wenatchee prove its case “beyond a reasonable doubt” — is an especially high bar, one normally reserved for criminal trials.

Anne Levinson, a former judge who spent six years as an independent auditor of Seattle’s police accountability system, said the standard of review in police disciplinary appeals should instead be “a preponderance of the evidence.” That’s what normally applies in administrative law proceedings and civil trials.

Lately, however, Levinson said many police contracts have started requiring a higher standard of review for offenses that could get a cop fired or suspended.

In practice, that means police agencies are less likely to hold officers accountable for serious misconduct than to punish them for minor offenses, she said.

In Jones’ case, the arbitrator required “clear and convincing evidence” of his misconduct, which also is a higher standard than what Levinson said is appropriate or what Durkan and Salomon’s proposals would have allowed.

Additionally, Sheats and Jones were let off the hook partly because other employees had been treated less harshly.

That practice of insisting on comparable discipline can be a problem in law enforcement, since past disciplinary decisions often were too lax, Levinson said.

“If they have done a poor job over the years of holding people accountable, you are building on an inherently weak system,” Levinson said.

Put another way, she said, “One can never hold officers accountable, because they didn’t in the past.”

Salomon’s bill would have stopped old disciplinary decisions from being used to reduce discipline against cops going forward. 

The proposals he and Durkan have made would have also given more deference to the original decision handed down by the police chief, making discipline harder to reverse unless it was arbitrary, retaliatory or somehow capricious. Similarly, technical issues with the investigation would have been given less weight under Salomon’s plan.

Joe Kendo, lobbyist for the Washington State Labor Council, wrote in an email that Salomon’s bill amounted to the “wholesale dismantling of workers’ rights for law enforcement employees,” and “that’s not something we could support.” 

The Legislature instead passed a more modest reform to arbitration: Senate Bill 5055, which would change the arbitrator selection process and require arbitration decisions on police discipline to be posted online (with the officers' names removed). The governor signed that measure into law this week.

Durkan, the Seattle mayor, said the new law doesn’t go far enough. 

Because it wouldn’t establish uniform standards and new rules for arbitrators, she said it would still lead to disciplinary decisions being routinely overturned.

“You’re putting bad cops back into departments,” Durkan said. “If you want to really reform police departments, you have to have true accountability. And if someone uses excessive force, kills someone unlawfully or is dishonest — if they're fired, they should stay fired.”

Mayor Durkan at podium decorated with Seattle city seal

Mayor Jenny Durkan in Seattle, Sept. 24, 2018. (Matt M. McKnight/Crosscut)

Mayor Jenny Durkan in Seattle, Sept. 24, 2018. (Matt M. McKnight/Crosscut)

James Schrimpsher, a vice president of the Washington Fraternal Order of Police, cautioned against putting too much power in the hands of individual police chiefs and sheriffs, who he said may have ethical issues of their own.

He said getting “clear and convincing” evidence of misconduct is appropriate in cases where officers are facing a penalty as severe as termination.

Others think police unions are too focused on protecting officers’ job prospects rather than ensuring the safety of the communities they serve.

“There may be police officers who just can’t set aside their personal bias or cannot de-escalate a situation,” said Monisha Harrell, board chair of Equal Rights Washington, at a recent meeting of an advisory panel to the U.S. Commission on Civil Rights. 

“And we have to admit they’re not a fit for the job.” 

Decertification bill also advancing 

Another bill moving through the Legislature, Senate Bill 5051, would create new ways to remove cops from the policing profession by revoking their certifications over serious acts of misconduct. The state labor council is supporting that measure, which Kendo called a significant reform. Levinson, the police oversight official who helped draft the certification bill, agreed that it would address several major issues, including shedding more light on cops’ disciplinary records.

But Alison Holcomb, political director of the American Civil Liberties Union of Washington, said that even if the decertification bill passes, lawmakers still need to fix the flawed arbitration process.

“It’s a severe punishment to be decertified, so we assume it is going to be much rarer than the ability to start addressing misconduct as soon as you see it,” Holcomb said. “For police chiefs and sheriffs, to be able to rely on effective disciplinary systems is critical for reshaping the culture of their departments.”

As things stand, Berg, the Centralia police chief, said it’s so hard for police chiefs to fire officers that there’s an incentive for them to not pursue it, knowing it will be a prolonged fight they are likely to lose.

“Getting rid of a bad officer is really, really hard,” Berg said. “And then, at the end of the day when things happen, the taxpayers ... they end up paying the price.”