Last Updated on May 21, 2021 – 8:19 PM CDT
This article originally appeared in The Texas Tribune: Read More
Lawmakers want to make it easier for law enforcement agencies to share disciplinary records with one another. But time is running out to get the bills approved.
Credit: Jordan Vonderhaar for The Texas Tribune
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With less than a week and a half left in the legislative session, bills to crack down on police officers with histories of misconduct have been caught in the crosshairs of inter-chamber tensions and are in danger of not passing.
For years, law enforcement agencies in the state have been plagued by roving cops who are fired or resign from one agency because of misconduct to keep their license and go work at another law enforcement job.
A recent investigation by The Dallas Morning News detailed how former officer Stephen Yohner was able to keep working as a police officer for 10 years after he was fired from the Navasota Police Department in 2009 following an investigation into a sexual relationship he started with a woman he had met while responding to a police call. During that investigation, Yohner also told officers that he’d discussed having a relationship with an underage girl once she turned 18. He was 27 at the time.
But thanks to a separation agreement negotiated by the police union lawyer, Yohner was allowed to soften the firing on his record and continue working as a police officer. Eight years later, Yohner resigned from the Hearne Police Department after being accused of sexual harassment by two co-workers.
The investigation showed that Hearne did not review Yohner’s Navasota records before hiring him. Navasota officials told The Dallas Morning News they complied with legal requirements to provide Yohner’s employment records, but that some departments chose not to review them.
Two pieces of legislation aim to make it easier for law enforcement agencies to block the hiring of officers with histories of misconduct. But because the House and Senate are at odds over each other’s legislative priorities both bills have stalled in the final days of the session, despite support from House Speaker Dade Phelan, Lt. Gov. Dan Patrick and even some of the state’s major police unions.
In the House, Rep. Leo Pacheco, D-San Antonio, filed House Bill 8, which would require law enforcement agencies to digitize their employment records to make background checks easier.
Currently, some law enforcement agencies make the records available to other agencies, but only for in-person viewing. For small police departments in a vast state like Texas, that kind of travel is cumbersome. Pacheco hopes that requiring the records to be provided electronically will ease that burden.
“The situation described here is exactly what I want to help prevent with HB 8. Small cities often struggle to access an officer’s full employment records,” he said in an email. “Making records available electronically would make background checks easier for departments with limited resources. We need to do everything we can to prevent serial abusers from continuing to work in law enforcement.”
In the Senate, Houston Republican Joan Huffman’s Senate Bill 24 would similarly require employment records to be made electronically available, and would also require hiring agencies to confirm to the Texas Commission on Law Enforcement that they had contacted a candidate’s previous employers to conduct a background check and review employment records.
If a previous employer could not be contacted, the hiring agency would have to note that in their report to TCOLE. Background investigators say that former agencies not responding to requests should raise alarms for hiring agencies.
On Thursday, however, the House took the surprise step to recess until Sunday, when key legislative deadlines will begin to kick in for Senate bills to receive the House’s approval. That move was meant to pressure the Senate into pushing forward more of the House’s criminal justice and health care priorities.
Still, criminal justice advocates say the bills aren’t major reforms, they barely scratch the surface of the problem.
“We haven’t done a thing,” to solve the problem of roving cops, said Scott Henson, policy director for Just Liberty, a group dedicated to criminal justice reform.
While law enforcement agencies are required to view a candidate’s prior employment records, they are not barred from hiring officers with checkered pasts. In Yohner’s case, two agencies hired him even after reviewing his record with Navasota.
“We have example after example of people who know full well about past misconduct and hire them anyway,” Henson said. “Many of these have trouble hiring anyone at the rate they pay and so whoever will show up and do the job that has a license, they’ll take them.”
“In that environment, we need a state licensing agency to separate the wheat from the chaff,” he added.
A recent state review of TCOLE found that its licensing enforcement power is “toothless.” The agency can only revoke a license if an officer fails to complete mandatory continued education, is convicted of or received deferred adjudication for felonies or certain misdemeanors, or has received two dishonorable discharges.
That leaves small cities and departments with tight budgets to handle complicated administrative complaints, like sexual harassment or sexual misconduct, that are often appealed by officers. Faced with the prospect of a drawn-out legal battle, those cities sometimes choose to settle the appeal in exchange for getting rid of the problem officer.
But because the administrative complaints are not governed by TCOLE, those officers are allowed to keep their license and continue working in law enforcement. That is not the case in other states where the agencies that regulate law enforcement licenses can decertify an officer for misconduct.
For years, TCOLE has asked lawmakers for the power to pull licenses from problematic officers, just like the boards who govern nurses and doctors, but those efforts have been beaten back by powerful police unions, said Kim Vickers, the agency’s executive director.
This year, TCOLE was up for its routine review when lawmakers determine whether an agency is serving its purpose and should continue to exist. But despite a plethora of problems, including a lack of enforcement on licensing, lawmakers pushed off any changes to the commission for at least another two years.
That left the major hope for change with the House and Senate priority bills. But Senate Bill 24, which is closer to the finish line, leaves out a major concern covered in the House priority bill: banning nondisclosure agreements for officer misconduct that are already at odds with current law.
Yohner’s agreement with Navasota, according to the Dallas Morning News, said if the city was contacted by a potential employer, it could only orally release Yohner’s dates of employment, salary history and the fact that he resigned. While the city was still obligated by law to pass along employment records if they were requested, they could not provide information orally about Yohner’s firing or the investigation that led to his termination.
Rep. Phil King, R-Weatherford, a former police officer, added an amendment to Pacheco’s House Bill 8 that would clarify to small departments that they could not hide those agreements from other agencies and had to disclose them in background checks. That is already existing law, but King said many small agencies don’t know that.
During his time in charge of the hiring process at the Fort Worth Police Department, King said some law enforcement agencies would not share employment history for officers that had worked for them because they were scared to get sued for defamation by those officers. That left hiring agencies at a disadvantage in trying to weed out bad cops.
“That has remained a problem to today,” King said. “I checked with a lot of law enforcement agencies today and without question they said this is still a problem. Often, the law enforcement agency wants to give out the information but their city attorney or some other policy prohibits them from doing that.”
King said he wanted to protect officers who were falsely accused of misconduct, so his amendment made employment records handed from one agency to another confidential.
Henson said that is problematic because it creates another layer for officers to hide under, whether the allegations against them were substantiated or not.
“Is it a public record or not? Are you making it harder for the public to get information or easier?” he said. “You’re making it harder.”
Pacheco’s office said that while the records shared between agencies would be confidential, the agency where the misconduct was documented should still release it under state disclosure laws, which would not be changed by the bill.
But Henson said that puts the onus on the public to track down the misconduct.
“What if I’m a member of the public and want to know what kind of people we’re hiring at my agency?” he said. “I don’t care about the other agency, I care about my agency.”