America's public school systems are notorious for their rubber rooms. That's where teachers deemed unfit to work in a classroom pass the time as their disciplinary actions or terminations move through the convoluted system. This can take years, and while it does, the teachers collect their full paychecks as they twiddle their thumbs. It's a vestige of our union-dominated school system, which has so many protections (for teachers, not kids) that it's nearly impossible to fire bad actors.
America's police agencies don't have rubber rooms, but they have a situation that's equally disturbing. They have lists—often long ones—of officers found to have engaged in "moral turpitude." These are referred to as Brady lists, which refers to a 1963 U.S. Supreme Court decision (Brady v. Maryland) in which the prosecution withheld evidence favorable to the defendant in a murder trial. The court ruled that prosecutors must provide the defense with any such relevant information.
"Subsequent case law has decreed that an arresting or witnessing officer's past record for certain work performance deficiencies including moral turpitude is a factor which might impair the officer's credibility on the witness stand" and therefore also needs to be disclosed, according to an October 2016 letter that Los Angeles County Sheriff Jim McDonnell sent to approximately 300 deputies whose personnel files may include such disclosable information.
This includes "founded administrative investigations" involving immoral conduct; bribes, gifts and favors; misappropriation of property; tampering with evidence; false statements and the failure to make statements during internal-affairs investigations. The lists also include those accused of police brutality and domestic violence.
These are serious allegations that, in a sane system, could lead to an officer's firing. But these officers remain on the job even though their past behavior could undermine the veracity of the criminal cases prosecutors are pursuing.
This Brady issue was in the news in late June when a man convicted of a drug charge after a traffic stop sought a new trial. The man is arguing that prosecutors violated his rights by not telling the defense that the officer who testified in the case "had previously been found liable by a federal jury in a civil lawsuit accusing him and other deputies of using false evidence or false testimony in a man's arrest," according to a Los AngelesTimes report. The courts have yet to decide whether civil verdicts need to be disclosed.
McDonnell wants to hand over his Brady list to the district attorney's office, so they can be included in the database of "problem officers." The information could then be disclosed under court rules. But the union representing deputy sheriffs "argues that the disclosure would violate state laws protecting officer personnel files and draw unfair scrutiny on deputies whose mistakes might have happened long ago," according to a separate Los Angeles Times story, which notes that California grants officers the most wide-ranging police privacy protections in the nation. The appeals court agreed with the union in a February decision temporarily blocking the release of the names.
The state's Peace Officers' Bill of Rights is one stumbling block to their release. So, too, is the state Supreme Court's 2006 decision in Copley Press v. County of San Diego. The Copley decision, according to the American Civil Liberties Union, has "effectively shut off all avenues for the public to learn about misconduct involving individual police officers, such as excessive force and dishonesty; officer-involved shootings; patterns of misconduct and leniency; previous discipline for misconduct by another agency; and even the identity of officers in misconduct cases."
Here again the comparison to the public-education system is relevant. The state's rules, advanced by public-sector unions and by their allied legislators, are designed to protect the public employee rather than the citizen. This has resulted in some costly workarounds. McDonnell's letter pointed out that his department is considering several policies to address the problem, ranging "from instituting special working conditions (e.g., mandated recording of all public contacts), to restricting employees from performing certain tasks."
Salon noted that some counties such as San Francisco "have gotten around the disclosure law by keeping lists of officers' names that have no additional information about what those officers have done." But this means that the police department can only tell "the DA's office it should investigate the files of certain officers" or that the defense must "make a motion for the judge to review the personnel file and determine if it contains anything relevant."
Only a small percentage of officers are problems. The Times explains that the Los Angeles County list involves just 3 percent of its 9,100 officers. But a Chicago Police Department study shows that a tiny percentage of officers cause the preponderance of costly lawsuits and settlements. Put another way, a small number of bad cops can cause a lot of problems for taxpayers, as those costly settlements show, and for the civil rights of the people who encounter these officers. Police misconduct has also resulted in courts throwing out the convictions of serious criminals, which ends up endangering the public.
In the 2014 education-related Vergara decision, Los Angeles County Superior Court Judge Rolf Treu tossed California's system of tenure and other teacher protections because they threaten the constitutional rights of those students subjected to the bad teachers.
The judge wrote that an expert called by defendants found that 1 percent to 3 percent of the state's approximately 275,000 public-school teachers are "grossly ineffective." That means somewhere between 2,750 and 8,250 such teachers are in the classroom, which leads to a "direct, real, appreciable, and negative impact on a significant number of California students." The judge also found that it takes two to 10 years to dismiss a teacher, and costs the district $50,000 to $450,000 to bring these cases to a close. The case was overturned by an appeals court and the appeals decision was not reviewed by the state Supreme Court.
There's no apparent study showing the negative effect of bad police officers on the public and the taxpayer, but a similar dynamic is at work. The problem is simple. Legislators have put union protections above public protections. In teaching and policing, there may be only a relatively small number of bad actors, but the price they inflict is terribly high.
This column was first published by the California Policy Center.