How Florida state law makes it difficult to keep bad police officers off the force

It can be impossible to keep bad police officers off the force because union contracts provide protection.

It happened in the case of Orlando Officer William Escobar, who is seen in this video kicking and punching a man while responding to a call in the Parramore neighborhood. Investigative Reporter Daralene Jones found out that in Florida, state law, also gives officers added cover when they’re under investigation.

The Law Enforcement Officer’s Bill of Rights dictates how investigators who lead discipline or termination cases are handled. And in Florida, the law enforcement officer or correctional officer under investigation must be informed of the nature of the investigation before any interrogation begins, and he or she must be informed of the names of all complainants.

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All identifiable witnesses shall be interviewed, whenever possible, prior to the beginning of the investigative interview of the accused officer.

The complaint, all witness statements, including all other existing subject officer statements, and all other existing evidence, including, but not limited to, incident reports, GPS locator information, and audio or video recordings relating to the incident under investigation, must be provided to each officer who is the subject of the complaint before the beginning of any investigative interview of that officer.

An officer, after being informed of the right to review witness statements, may voluntarily waive the provisions of this paragraph and provide a voluntary statement at any time.

Officer Escobar was charged with battery and perjury because of the attack on Refus Hollaway, a military veteran, that was captured on cell phone and body camera video. Holloway was kicked and punched, while he lay face down in handcuffs. Escobar was fired, but got his job back through a lengthy process that allowed him to appeal when a jury acquitted him of the battery and perjury charges, even though an internal investigation found that he violated standards of conduct, used excessive force, filed a false report and failed to obey law and procedure.

“The not guilty verdict, that really shocked him because everyone could see the tape,” Carlus Haynes said.

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Haynes represented Holloway in the lawsuit against the city. “Everyone else in Florida, we are at will employment, yet still these police officers have this heightened protection which gives them a feeling they can do what they want,” Haynes said.

Escobar was able to file a grievance to fight his termination, claiming the discipline was not consistent and progressive for similar violations, which the city is required to consider because of the union contract. The appeal was rejected and not even the union labor committee supported him. But that union contract allowed him another option - to hire a private attorney who could take the case to arbitration. Sheriff John Mina was the chief at the time. “One of the things that we deal with that can be a real frustration is the officer Bill of Rights, the police union and arbitrators,” Mina said.

The city has an agreement with the Federal Mediation and Conciliation Service, which declined our request for an interview. It provides a pool of independently contracted arbitrators, but they are not federal employees. In Florida - the arbitrators can be pulled from Florida, Mississippi, Tennessee, North Carolina, Alabama, Georgia, or South Carolina. The arbitrator who ruled in Escobar’s case has an address in South Florida, but at the time, lived in the greater New York City area.

His 79-page ruling focused mostly on plucking holes in how the city handled the investigation and pointing out policies and procedures that he claimed were not followed based on that union contract and the officer’s Bill of Rights written into state law, which the city denied. Escobar’s attorney couldn’t be reached for comment today, but he received backpay when he was reinstated. This week, he was part of the detail keep an eye on protesters. “They have to be a strong voice and push for this change and only elect people who are willing to go into the legislature to go in and force the change,” Haynes said.

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The police union contract has a provision stating the arbitrator’s ruling is final. And while discipline structure in the union agreement was changed in the new contract put in place last year, that part wasn’t discussed. The Orange County Sheriff’s Office does not have binding arbitration language in its union agreement, and the final decision rests solely with the sheriff.

The changes made to the OPD contract include the following:

Any “sustained” findings inserted in an employee’s Personnel File shall be removed after one (1) year from the employee’s Personnel File and placed in the Internal Affairs disciplinary file, which will be retained in accordance with Florida State Statutes or as otherwise legally provided by law. Unfounded, Exonerated, and Not Sustained investigations shall be removed from an employee’s files after one (1) year. Sustained investigations resulting in discipline of Oral Reprimand or Written Censure shall be removed from an employee’s files after three (3) years. Sustained investigations resulting in discipline of Suspension or Demotion shall be removed from an employee’s files after five (5) years.Sustained investigations, initiated on or after 10/01/19 resulting in discipline of a Suspension of less than 32 hours shall be removed from an employee’s files after five (5) years. Sustained investigations resulting in discipline of a Suspension equal to or greater than 32 hours or Demotion shall be removed from an employee’s files after seven (7) years. Files shall include computer/digital records.

Discipline will be consistent and progressive for similar or substantially similar violations in the preceding 7-year period. The City shall make available electronically to the Union its Disciplinary History, indexed by Rule and sub-part for the past seven (7) years. An employee’s 7-year prior discipline history ‚and any of the following: the nature and seriousness of the offense, and whether the offense was intentional and technical or inadvertent, or was committed maliciously, or was requently repeated, the relation to employee’s duties, position, and responsibilities, the employee’s job level and type of employment, including supervisory or fiduciary role, contact with the public, and prominence of the position, the effect of the offense upon grievant’s ability to perform at a satisfactory level and its effect upon supervisor’s confidence and grievant’s ability to perform assigned duties, the notoriety of the offense or itsimpact upon the reputation of the employer shall be proper cause for the discipline to be enhanced above the progressive discipline for similar or substantially similar violations in the preceding 7-year period

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