Council members want to change police disciplinary process

Council members want to change police disciplinary process

Legislation would alter bargaining with union over management decisions

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Photo from Montgomery County Police

The Montgomery County Council on Tuesday is expected to face more legislation that would change police procedures or policies.

Council Members Hans Riemer and Craig Rice have drafted legislation, called the Police Accountability Act, that would alter the Montgomery County Police Department’s disciplinary process.

It would also ensure that Police Chief Marcus Jones has the employer right to issue a management decision, such as the use of body cameras, without bargaining with the police union, the Fraternal Order of Police.

In a letter on Wednesday to the rest of the council, Riemer and Rice wrote that changes to the police department’s policies would not matter if officers “are not subject to quick, fair discipline for violating them.”

“Through state law (Law Enforcement Officers’ Bill of Rights, or LEOBR) and the collective bargaining agreement with the county, we have a slow, uncertain, and complex process to discipline officers for violations of departmental policies,” they wrote. “This must change because we should have a department where the chief’s ability to set a culture and hold officers accountable for meeting high expectations is strong.”

Riemer and Rice noted that Officer Kevin Moris — who was convicted of assault in December for kneeing Arnaldo Pesoa in the back of the head while Pesoa was restrained in July 2019 — is still on the department’s payroll.

The final determination on Moris’s disciplinary charge has not been made yet.

Riemer said in an interview Friday morning that he was also told that an officer was on paid administrative leave for four years while appealing termination.

“The big problem is the police chief does not have the final word on discipline and what CEO of a company doesn’t have the ability to make a final decision about an employee who is violating the policies and missions of that company?” Riemer said. “You have to be able to create a culture in a company and set expectations and hold people accountable, and hold people to that vision.”

Rice could not be reached for comment Thursday afternoon.

The County Council is considering other legislation related to the police department, such as how much force officers should be permitted to use. It also has created a Policing Advisory Commission. The council is interviewing people who applied to serve on the commission.

Separately, County Executive Marc Elrich has said there will be a task force to review the police department’s data, policies and procedures.

Under the current disciplinary process, an officer has the option to request an appeal.

If the officer is represented by the FOP and the punishment is greater than 24 hours of suspension, the officer can request to appeal to an alternative hearing board, which has three members.

One member is chosen by the police department and another is chosen by the FOP. The third member, who is the chairperson, is chosen from a panel of labor arbitrators by the FOP and county.

If an officer is not represented by the union or if the punishment is less than 24 hours of suspension, the appeal process is through a traditional hearing board, which has three members chosen by the police chief. One member must be of the same rank as the officer under review.

The proposed legislation would remove the alternative hearing board process in favor of an internal appeals procedure with a traditional trial board. Jones would then have final say on disciplinary decisions.

“The union has exerted a significant influence over the disciplinary process. … Even a minor infraction is a litigation sinkhole for the chief with the union, and the union will represent every officer, as they should,” Riemer said.

If a hearing involved discipline concerning a civilian’s complaint of excessive force, the bill would require that two civilians be placed on the trial board.

Montgomery County police Lt. Nicholas Picerno, executive officer to the chief, said Friday morning that Jones “officially has no comment on the pending legislation.”

Riemer said the state LEOBR was a “mistake.”

“It has a provision in it that allows counties to set up a disciplinary process that is different from the normal disciplinary process. The county didn’t want to necessarily do that, but they bargained for it,” he said.

In addition to the disciplinary process, the bill would change the scope of collective bargaining by taking away the union’s right to bargain over management policies and procedures.

Riemer said the council has already received some emails from FOP members unhappy with the legislation.

FOP Lodge 35 could not be immediately reached for comment Friday morning.

The FOP has “overly expansive” bargaining rights that it uses “very aggressively,” Riemer said.

“As a result, it has way too much influence over the department,” he said. “One of the examples of this is that even when the chief has the right to enact a policy, the union can bargain endlessly about how that will be implemented.”

The change would not take away the union’s right to bargain over wages, benefits, and other working conditions.

Briana Adhikusuma can be reached at briana.adhikusuma@bethesdamagazine.com.

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