A primer on Lexington’s police collective bargaining agreements
Updates on the LFUCG/FOP CBA (10/31):
The Collective Bargaining Agreement between Lexington's Fraternal Order of Police and LFUCG passed its first reading at the October 28 Council Meeting. CM Fred Brown made a Motion to bring the resolution forward to its second reading, but the Motion failed in a vote of 9 to 5. It would have needed 10 votes to pass.
Dissenting Council Members stated that while they will vote to pass the agreement, they didn't want to process to seem rushed and wanted to make sure the public had enough time to weigh in. It will go before Council for its Second Reading on Thursday, November 4th.
During last Tuesday's Work Session, Council discussed changes to the agreement and expressed that they were satisfied with the new contract.
Major changes that will go into affect as of July 1, 2021 include:
Salary increases to encourage recruitment and retention
Two Citizen Seats on the Disciplinary Review Board
An unlimited timeframe for disciplinary look back
A more robust disciplinary process
Changes in the CBA - Updated 10/31/21
During this week's Work Session, Council will assess changes to the long-awaited 2021 Bluegrass Fraternal Order of the Police (FOP) Lodge 4's Collective Bargaining Agreement (CBA) for Officers and Sergeants. The document, which includes outlines for police disciplinary procedures, expired on June 30th of last year.
The confidential negotiation process between the FOP and the Mayoral Administration was put on hold in 2020 due to COVID precautions. The Council and residents were not directly involved, but the Administration could choose to bring their concerns to the table on their behalf.
Council will now have the final say in whether or not the city adopts the agreement. This CBA was a major point of discussion in last summer's protests following the murder of George Floyd, with changes to incident reporting and disciplinary procedures for officers being some of the most sought-for demands of protestors for better police accountability.
You can attend the meeting on the 26th either in person or watch it remotely via the city's LexTV broadcast. Major changes to listen for include details about pay raises, Grievance Procedures, Disciplinary Procedures and the Bill of Rights, Personnel Files, and Critical Incidents.
Major changes include:
Pay Raises: A four-year, $21.3M agreement for pay increases. Starting pay will now be $47k; also: 3% pay raise in 2022, followed by 2% raises in 2023 and 2024
First Responder Bonuses: $5,000 bonuses for all officers from the city's ARPA funds
Civilian Oversight: LPD's internal review board added 2 civilian positions; the board also has 2 FOP union representatives, and 5 other police officers (down from 6)
Misconduct Records: The LPD can now consider officer conduct records that are older than 5 years when disciplining an officer. Previously, any records older than 5 years were not allowed to be considered.
Paid Leave: LPD officers now can have up to 2 years of paid leave after an injury, up from 18 months.
A lot more details below.
Article 39 - Salary Schedule
Pay increases to make entry-level pay more competitive and to promote retention.
3% starting July 1, 2022
2% starting July 1, 2023
2% starting July 1, 2024
Article 11 - Grievance Procedure
Language added to Section 1:
all grievances must be signed by the affected member (the document uses the term member in place of officer); it must be presented to a designated Lodge representative; incomplete and unsigned grievance documents don't count as adequate notice of grievance filing; and all grievances have to be in writing.
Language added to Section 2
LFUCG and the Lodge can mutually agree to extend grievance deadlines
meaning of "grieved event" includes when a member knew or should have known about the circumstances leading to a grievance.
Section 2, Step 1: The term "Immediate Supervisor" was replaced with "Affected Member's Lieutenant". The Lieutenant now has 14 days from when the grievance was submitted to answer in writing via email to the member and the lodge.
Section 2, Step 2: Members can appeal to the Assistant Chief within 14 days of receiving a response from their Lieutenant if they don't agree with it. The Assistant Chief must meet with the member within 14 days after being notified and must provide a written answer within 14 days of that meeting. Finally, all grievances affecting members of more than one Bureau or more than one member in the same Bureau must be initiated at this step.
Section 2, Step 3: Appeals to answers initiated in Step 2 must be presented by email to the Chief of Police within 14 days of the member receiving the answer from the Assistant Chief. The Chief must meet with the affected member and Lodge representative to discuss the grievance and provide an answer to it within 14 days of the meeting .
Section 2, Step 4: Further appeals to the Mayor must be presented within 14 days of receiving the Chief's answer. The Mayor must meet with the member and Lodge representative to provide an answer within 14 days of the meeting.
Section 2, Step 5 (A): amended to require an affected member to notify LFUCG in writing of their intention to seek arbitration of a grievance within 14 days after receiving the Mayor's answer. Language was added that the arbitration panel must include 7 arbitrators from the Kentucky region and that the panel be provided within 21 days of the member requesting arbitration.
Section 3: The Department has a 72 hour grace period to provide an answer to a grievance if the affected member doesn't receive one within the timeframes listed in Steps 1-4. If the Department still doesn't provide an answer, the grievance will be deemed confessed.
Section 4: the grievance procedure is the sole means of resolving grievances unless otherwise noted.
Article 15 - Disciplinary Procedures and the Bill of Rights
Section 2: members are to be disciplined only for just cause; the term "misconduct" includes acts or omissions in violation of criminal law and LFUCG policy
Section 3 - Complaint Procedure: The complaint procedure has been removed and replaced nearly in its entirety.
Section 3(A)(1) - complaints alleging criminal misconduct by a member will be investigated without the need for a signed affidavit from the complainant.
Section 3(A)(2) - complainants alleging misconduct not classified as criminal activity must provide a signed affidavit
Section 3(A)(3) - if the complainant refuses to sign an affidavit related to a complaint, LFUCG may still investigate the incident, but may only bring charges if LFUCG can independently substantiate the allegations against the member.
Section 3(B) - adds that nothing in the section precludes the Department from investigating and charging members with criminal or administrative misconduct.
Section 3(C) - the complaint procedure defined in KRS 15.520 adn KRS 95.450 must be explained to the complainant by a supervisor or the Public Integrity Unit ("PIU") investigator.
Section 3(D) - a complainant is required to sign an affidavit if they elect to file a formal complaint. The PIU shall investigate all allegations of misconduct contained in formal complaints.
Section 3(E) - If the complainant chooses not to file a formal complaint, then an informal complaint or an information only report may be completed, and such complaints must be resolved at the Bureau level:
Section 3(E)(1) - once an informal complaint is received, a member's immediate supervisor must contact the complainant to conduct further inquiry and investigation as appropriate
Section 3 (E)(2) - an investigating supervisor may take appropriate remedial measures at the Bureau level on informal complaints which are limited to coaching and counseling and remedial training. Coaching and counseling documents do not constitute discipline.
Section 3 (E)(3) - After the investigation, the investigating supervisor must contact the complainant and inform them of the resolution and/or remedial measures taken. If unsatisfied with the result, the complainant must be referred to PIU where they can file a formal complaint.
Section 3(E)(4) - If the investigating supervisor believes the incident requires a formal complaint, and the complainant declines to do so, the investigating supervisor must file a formal complaint with the PIU.
Section 3(E)(5) - Requires all informal complaints to be documented accurately and to be provided to the PIU for entry into the Early Indication System.
Section 4 - Investigation Procedure
Section 4(A) - The member must be provided with a written explanation of the reason for an investigation and whether the member is the subject of the investigation. If a member becomes the subject of an investigation, an investigator has no obligation to stop an interrogation to inform the member they are now the subject of an investigation.
Section 4(B) - A member may be required to submit his/her own written report regarding an investigation.
Section 4(E) - was added stating that LFUCG shall conduct administrative investigations of non-criminal conduct within 60 days of receipt of a signed affidavit from the complainant. The time limit can be extended by the Chief of Police.
Section 4(F) - If a criminal investigation occurs along with an administrative complaint, the administrative complaint can be postponed until the criminal investigation is resolved.
Section 4(G) - When a complaint alleges criminal misconduct, the member may also be subject to an administrative investigation, and the member will be provided with a copy of the administrative complaint within 7 days of the disposition of the criminal investigation. Administrative complaints not related to criminal activity will be provided to the member within 21 days of the signing of an affidavit by the complainant.
Section 4(H) - The PIU investigator will prepare a summary report to the Chief of Police following the completion of the investigation.
Section 4(I) - The Lodge must provide LFUCG with any written or recorded statements related to disciplinary actions against a member prior to any hearing before the LFUCG Urban County Council.
Section 4(L) - It is not a condition of continued employment to be compelled to testify by any person or body of a non- governmental nature. The Disciplinary Review Board is recognized as a governmental body.
Section 5 - Discipline Procedures, a newly added section
Section 5(A)- Requires the PIU investigator to submit a written summary of an investigation to the Chief of Police within 7 days of completion.
Section 5(B)- Requires the Chief of Police to determine whether the investigation revealed one of the following:
Proper Conduct - Member's actions did not constitute misconduct.
Improper Conduct - Member's actions did constitute misconduct.
Insufficient Evidence - Not enough evidence to prove or disprove the allegations.
Unfounded Complaint - the allegations were false or no evidence to support them.
Policy Failure - Member's actions fell within the relevant policy, but the policy may need to be reviewed and/or changed.
Section 5(C) - Requires the Chief of Police to communicate to the member his/her intentions to conclude the disciplinary process if there is no misconduct.
Section 5(D) - If there is misconduct, the Chief may recommend discipline, and may meet with the member to present recommended discipline and/or sanctions (the meeting will not be subject to section 7). The member may accept or reject such recommendations. The Chief may also choose not to recommend discipline (or if the member rejects the recommendation), and if so, the Chief must direct the PIU to prepare a report for the Disciplinary Review Board (“DRB”).
Section 5(E) - If the member accepts the Chief’s disciplinary recommendation, the PIU will prepare an Agreement of Conformity, and after signed by the member, the agreement will be sent to the L.F.U.C.G. Council Clerk to be put on the agenda.
Section 5(F) - If the disciplinary action is referred to the Disciplinary Review Board, the member must appear before the board and respond to questions. Failure to appear or respond to questions subjects the member to further discipline, including termination. Prior to the appearance before the Board, the member may obtain the investigative file upon written request. All records in the file are confidential and the member’s copy must be destroyed at the conclusion of the disciplinary proceedings.
Section 5(G) - The PIU investigator and the member will have an opportunity to present all relevant information to the Disciplinary Review Board, and the DRB may direct questions to the investigator and the member.
Section 5(H) - The DRB shall deliberate at the conclusion of the presentation without the member or Lodge representative present. The DRB shall determine by majority vote whether the member’s actions constitute misconduct, and the member shall be informed of the DRB’s decision and recommendation.
Section 5(I) - All DRB recommendations shall be reduced to writing and sent to the member and Chief of Police.
Section 5(J) - The Chief may accept, reject, or alter the DRB’s recommendations and may meet with the member again before making his/her recommendation (again this meeting is not subject to discipline under Article 7). The member may then reject or accept the Chief’s recommendation.
Section 5(K) - If the member rejects the Chief’s recommendation, the Chief must forward the recommendation to the L.F.U.C.G. department of law, who will then prepare charges to be filed with the L.F.U.C.G. Council Clerk. The Clerk will then comply with all necessary provisions of the collective bargaining agreement and KRS 15.520 and KRS 95.450.
Section 5(L) - Any time limits imposed by statute regarding the notice of disciplinary charges and recommended sanctions are considered issued upon service to a member.
Section 5(M) - was amended to require L.F.U.C.G. and the Department to make available any L.F.U.C.G. employees who have information related to potential misconduct as witnesses at any hearing conducted by the L.F.U.C.G. Urban Council.
Section 5(N) - was amended to require the L.F.U.C.G. Council Clerk to issue subpoenas to witnesses for L.F.U.C.G. Urban County Council hearings.
Section 5(O) - If Improper Conduct is determined through the investigation process, the Chief of Police, or designee, shall notify the complainant in writing about the final disposition.
Section 6 - Disciplinary Review Board ("DRB")
Section 6(A) - Requires the DRB to consider founded complaints made against members when the Chief of Police declines to recommend discipline, or when the member rejects the Chief’s recommendation.
Section 6(C)- Describes the requirements of the make up of the DRB: 9 members, 5 of whom are either Assistant Chiefs or Commanders. 2 members of the DRB must be supervisors appointed by the Lodge, and 2 members will be Fayette County residents who are 21 years or older, who have no felonies, and who have not been convicted of a misdemeanor within the last 5 years.
Section 6(D)- Requires the chairperson of the DRB to be appointed by the Chief, and a member of LFUCG’s law department will serve as a liaison to the DRB. The person who filed the complaint cannot be a member of the DRB.
Section 6(E)- The members of the DRB shall adhere to all confidentiality requirements set forth in federal and state law.
Section 7 - Lodge Representation
Section 7(A)- States that a member has the right to Lodge representation if the member is questioned by a supervisor regarding an incident or complaint, the member believes the incident may result in discipline, and the member requests representation.
Section 7(B)- The right to Lodge representation must include a supervisor’s request for a written statement from the member regarding the incident.
Section 7(C)- The Lodge agrees to have a representative available at all times to provide representation without unreasonable delay. The Lodge must provide the Chief with a list of Lodge representatives at specific times.
Section 7(D)- L.F.U.C.G. is not required to delay an interview or written statement of a member to wait for a member’s preferred representative. So long as there is a qualified representative present, there is no cause for delay.
Section 7(E) was amended to define a “Lodge Representative” as a designated member of the Lodge or an FOP attorney.
Article 16 - Personnel Files
Section 1 - Personnel files are the property of LFUCG and that this section is subject to state and federal law.
Section 6 - A "Supervisor's file" of a member must only contain records reasonably necessary to reference a member's prior work performance when preparing evaluation, and to recommend additional training.
Section 7 - If no formal complaints are filed, only an informal complaint or information complaint may be completed. These complaints are to be investigated and resolved at the Bureau level, and any action taken must be forwarded to the Public Integrity Unit for storage in the IA/Pro system. Coaching and Counseling documents are to be kept in the member's electronic personnel file for a maximum of one year from the date of incident.
Article 41: Critical Incidents
A new article created from former Article 15 language
Section A - LFUCG must notify the Lodge President when any member is involved in a "critical incident", which is an incident that results in the death or serious physical injury to another.
Section B - Members are not allowed to refuse or fail to cooperate in providing scene information about a critical incident.
Section C - Requires that the investigating agency follow all applicable post-critical investigation protocols
Section D - A drug test may be administered to any member involved in a critical incident.
Section E - Members must be informed of their right to counsel and given enough time to receive counsel if being interviewed by an investigating agency as a result of their involvement in a critical incident.
Section F - Members are not required to give a statement on a critical incident during a criminal investigation with a Public Integrity Unit representative present.
The above is only an excerpt containing the most publicly-relevant agreement changes and additions. If you'd like to read the full document, you can access it here.
Why should you care?
If you are interested in law enforcement, including reform and accountability, you should pay attention to this conversation.
In the summer of 2020, community advocates and activists took to Lexington’s streets to urge new reforms to LFUCG’s Collective Bargaining Agreement (CBA) with the Fraternal Order of Police, the union for many of Lexington’s Police Officers. The most recent CBA expired in June of 2020, and the city has released little information about the status of the CBA negotiations, citing the need for confidentiality.
Nationally, many activists, lawyers, policymakers, and academic experts have cited the protections enshrined in many CBAs with Police as a significant barrier for reform. The Fraternal Order of Police, the most prominent union for police officers, insists that the protections offered in CBAs are essential for a difficult and dangerous job.
The role of public engagement in CBA negotiations is often limited, but organizations across the county encourage residents and community members to become more engaged in the process. This presentation will help provide context to what the city’s CBA is and how it functions.
What is a Collective Bargaining Agreement?
Collective bargaining agreements (CBAs) are agreements between employers and a union that represents their employees.
CBAs usually contain provisions related to wages, benefits, working conditions, and more. They are negotiated with the employer by the union, which is operating on behalf of the workers.
CBAs generally apply to all workers, regardless of if they are a member of the union or not. In states with right-to-work legislation, like Kentucky, workers do not have to contribute any dues in a unionized workplace, but they still receive the protections and other benefits in the CBA.
You can read more about Collective Bargaining Agreements and the process of negotiating them through this excellent resource from the Cornell Law School.
What CBAs does Lexington have in place?
The City of Lexington has six CBAs in place - two with the police, two with the division of fire employees, and two with corrections officers.
The City started having bargaining agreements in 2005.
The Mayor has the ability and discretion to negotiate the contract without the council. Still, the council has the discretion to accept or reject the agreement, but only after the union has adopted it.
By state statute, only three types of employees of LFUCG are guaranteed the right to engage in a collective bargaining process - the ones mentioned above.
The City of Lexington has six total CBAs in place, two with each of the three departments indicated above.
The same state statute requires that LFUCG engage in collective bargaining with these personnel types on several issues, including wages, hours, working conditions, and more.
The CBA must be entirely accepted and approved by both the negotiating union and the City of Lexington’s negotiating team.
How does the collective bargaining process work?
The collective bargaining process starts before the expiration of a current agreement.
Five to ten representatives from the union and the LFUCG both come to the “negotiating table” with a list of changes to the CBA they would like to implement.
In addition to a professional negotiator, the city’s CBA negotiation team generally consists of representatives from these city departments:
Finance & budgeting
Human Resources
Law
The city’s negotiating team also usually includes management from the division that is negotiating.
The city and union generally keep all aspects of the negotiations private and confidential. The city says that this confidentiality is essential to “building trust between the parties and complying with labor law.”
Both sides of the negotiation must agree to all changes in the CBA.
The city makes a point that it is in their best interest “to include as little as possible in the agreement in order to maintain the discretion to implement new policies or make changes.”
What is the status of the police CBA?
The City has two CBAs with the Fraternal Order of Police (FOP) that cover the Division of Police employees. One covers Officers and Sergeants, and the other covers Lieutenants.
The CBA with Officers and Sergeants expired on June 30, 2020. The City is still in negotiations with the FOP, citing delays from the COVID-19 pandemic.
Until a new agreement is reached between the City and the FOP, the current ~100-page contract remains effective.
Given that a presentation is happening in a Council Work Session to remind Council Members of the CBA adoption process, the negotiations are likely winding down.
How does state law impact the city’s Officers and Sergeants CBA?
The Officers and Sergeants CBA is significantly impacted by state statute. While state statute does supersede the CBA, it cannot limit any rights for police officers that have been negotiated through a CBA.
State law governs police and fire officers’ discipline process in urban-county governments and some cities across the state.
This law prohibits city governments from suspending, firing, or reducing the pay for any police or fire officer for any reason aside from “inefficiency, misconduct, insubordination or violation of the law.”
The statute outlines the city or community members’ process to file grievances against an officer, how that issue is vetted, what the disciplinary process is, and more.
It also gives any disciplined officer the right to appeal the decision to the Circuit Court.
Police officers have additional protections in Kentucky state law for any grievances filed against them when they are “performing law enforcement duties.”
This is generally referred to as the “Police Officer’s Bill of Rights” and is not general practice across the US. Less than a third of US states have adopted similar legislation.
The statute outlines a more specific and elaborate process for what happens when a resident files a grievance against a police officer.
It requires that a resident submits a signed affidavit for any grievance that is not “criminal activity,” including violations of police department rules.
If they choose not to submit an affidavit, the police department can still internally investigate the request, but it is not a requirement.
The statute also sets strict requirements and limitations on what the government can say or do regarding a grievance.
The police department must fully inform the officer about the grievance if the city formally charges them.
Any interview of the officer regarding the grievance must be made within 48 hours of notifying them that the grievance has been filed.
If an officer is charged as a result of a grievance, the department and city are not allowed to make any public statements about the situation until the charges have been settled.
Lastly, the statute outlines the process for investigating and making a decision on the charges, including:
Officers must be given 12 days’ notice about a hearing regarding the charges.
Copies of all evidence and statements must be given to the officer at least 12 days before a hearing.
If the person who filed the grievance against the officer does not show up to the hearing to testify, the charges will be dismissed.
If an officer has been suspended while their charges are pending, the hearing must take place within 75 days of the charge being filed, or the charges will be dismissed.
Want to get involved? Here's how.
Reach out to relevant service or advocacy organizations -good options for this issue would be NAACP Lexington, ACLU Kentucky, LPD Accountability, Fraternal Order of Police, and the Kentucky Peace Officers Association.
Apply to be on a Board or Commission - good options with vacancies (as of April 1, 202) for this issue would be: Bluegrass Crimestoppers, Civil Service Commission, and the Human Rights Commission.
UPDATE
David Barbary shared a presentation about the Collective Bargaining Agreement (CBA) between the City and the Police Department’s union, the Fraternal Order of the Police, during last Tuesday’s Council Work Session. A new contract hasn’t yet been released, but one may be close given the content of Barbary’s presentation. The discussion that followed centered on what role the Council will play in the negotiation process and what power it may have to address unsatisfactory terms.
CM Baxter opened the discussion by asking about what happens if Council doesn’t approve the CBA. Mr. Barbary answered that the Council would hopefully explain what the contract lacked, but that Council and the Union would have to go back to the bargaining table with those additional requests. He added that if Council asked for more than what was already in the CBA, it might have to give up things it didn’t want to have on the table in order to incentivize the Union. The Union would by then have already gone through its approval process for the contract and would have to re-approve an amended version.
CM LeGris then asked if negotiations would begin all over again if Council voted not to ratify the CBA. Mr. Barbary explained that what typically happens with some of the unions is that there would need to be a meeting to explain the requested changes in order for it to be satisfactory to the group that’s approving it. He again stated that that would probably require Council to give the Union something else, or the Union possibly taking something away to incentivize them to approve the amendments. There is no way to force them to accept the changes either the Mayor or Council would like to make.
CM LeGris followed up by asking whether or not the agreement would go into effect if Council took no action. Mr. Barbary answered that the Mayor could approve the agreement at that point. This would most likely happen if the Council had issues with the proposed agreement, but didn’t want to vote against it. They would be able to show some measure of their displeasure with the contract while still allowing it to go forward legally.
CM LeGris wanted to know the degree to which Council could offer input if they voted no. Barbary explained that there wasn’t anything necessarily stopping that process from happening and that he’d like to think that the Mayor, Chief of Staff, and the Police management took into consideration the things they have heard from the citizenship, as well as from the Council in going to the bargaining table. He said Council will probably not get everything they’ve asked for, but that hopefully rejecting the contract is more of a hypothetical situation.
VM Kay asked about the timeframe for receiving, commenting on, and either accepting or rejecting the agreement. Barbary explained that it would be added onto a work session. Council would include a summary of the most significant changes, along with a financial summary that would indicate how much more money would go into the contract over its course. A negotiator would be present and Council would have the opportunity to ask any questions it may have about the agreement. He added that the entire contract would be available to the public at that point. Council would have three meetings after that presentation to accept or reject it.
VM Kay then circled back to a previous question, asking how detailed the Council should be in explaining any elements it found unacceptable. Barbary answered that Council should be as clear as possible.
VM Kay’s last question was about the resolution specifically — would the resolution by Council be just to accept or reject the proposal or would it also include any questions or further asks/recommendations? Barbary answered that he didn’t know if the resolution could include the proposed changes. He said the resolution, on its face, really doesn’t get into that specific issue and it would be something they would have to explore.
CM Bledsoe considered possible scenarios: if Council were to say no and the Mayor decided to move ahead anyway; and if the the current agreement would still stand if the Union decided to reject the new one. Barbary answered that due to an evergreen clause, the most recent agreement that had gone through the entire process would stand until a new one was approved by both sides.
CM Bledsoe said that much of what the public and Council has asked for can’t be legislated by Council, it being governed instead by the state legislative body, which is something that needs to be made very clear. Barbary added that the process often has to be taken step by step. Major changes aren’t often made in one contract.
To questions she’d received about why Council didn’t have representation at the negotiation table, CM Bledsoe explained that it would be difficult for one person to represent all the different perspectives and needs of each district. Further, she said it’s important to know that Council has influence and has been able to voice their district’s concerns individually over the past several years. She said she hopes the police bargaining and administrative side takes those concerns into consideration.
CM Lamb asked how often the agreements come up. Barbary answered typically every three or four years, adding that we’re already a year into this term and anything in this contract will be applied retroactively to that year.
CM Lamb then asked about how that would effect pay and/or benefits. Barbary explained that will be negotiated, saying the pay part will be very clear about when it starts. He also said there’s really not a way to pay people who don’t work there anymore, or who retired.
CM Lamb’s final question was if a section of 2011’s resolution that said the Mayor shall also submit a statement reflecting differences between the proposed agreement and the current agreement, also with the budgetary impact, had ever been done in a previous administration. Barbary answered that it has been done, but typically isn’t. He said that may of the changes in previous agreements were not that meaningful and amounted to 10-12 items in a 4-5 page summary. This agreement may be different, though.
CM Reynolds asked if Barbary had been talking about the police investigation process, transparency, or other topics when he’d referenced that some things had to be changed in a statutory way. Barbary answered that at least with the investigatory process it’s in the policing bill of rights and statute that a law enforcement agency must perform those investigations.
CM Reynolds asked for clarification on what power Council has to dictate that it be done differently. Barbary said that if it’s not in the statute, then they have the ability to change parts of it. He mentioned the current review board that assists the Chief in making disciplinary decisions in a lot of cases — it’s not part of the statute, not prohibited by the statute, and it’s been in place before collective bargaining even started.
Considering transparency, CM Reynolds asked if adding citizens to the board might be a possibility, even though City couldn’t set up its own complete citizen’s review board. Barbary answered that, at least with that framing, it couldn’t be done without a statutory change. He also recommended leaving a lot of the transparency asks out because they’re not currently in the contract. He explained that if the City puts them in the contract, it would have to negotiate every time there’s a change.
CM Reynolds then asked if Mr. Barbary could explain what it would take to have a statutory change. He said it would require someone to draft the actual legislation, someone to sponsor it, it would have to be submitted, and then it would require significant lobbying to move it forward. The chances of having something Lexington-specific pass would be greater than if it was state-wide, but there might still be some push-back from the Police lobby.
CM Reynolds closed with saying she thinks there are things that they are able to change and she knows they’re limited in some ways, but able to do more than they realize.
CM James Brown then brought up that while Council is discouraged from making any possible changes or initiatives that it would like to see included in the negotiation public, once the document is released to the public, those restrictions are lifted and Council will be able to speak more freely. Barbary added that the reason they don’t speak about it publicly earlier is because the Union would know what the most important items are and would have an upper hand in the bargaining process.
CM Brown said he wanted to be clear with that. He said he thinks a lot of folks feel like Council is not voicing or speaking on issues that they brought forward, but they’re all trying to be cautious of the process, while at the same time be responsive to the folks that we represent. To CM Reynold’s discipline review board, he said that might not be something that’s regulated as a statute, one it was established that the board membership would became part of the collective bargaining. Barbary added that that was a great example of one of the reasons Council would want some things to not make it into the contract. The dept can make a policy change outside of the agreement. They may get input, solicit input from the union, but they’re not going to be required to have the union sign off on everything according to what it says because it’s not really part of the contract. He joked that the goal is always to make this less than 92 pages long and they haven’t been successful in that over the years.
VM Kay wanted it to be clear that CMs are not at the table during the negotiating process, that no one CM could represent the whole Council, and that it would be a violation of open meetings law for a representative to be talking to all the CMs in private about their views. He said he hopes the Council and public understands that if Council rejects an agreement, then the present contract prevails. As long as there is no new agreements, the present contract prevails, adding that if the public are unhappy with the present contract, then it’s important to remember what Mr. Barbary said about small steps. Council may not get everything it wants, but it may be better than the existing contract. That is what Council has to decide.
Mayor Gorton had the final questions. She said she is highly alert to the transparency issue and wants to be as transparent as possible about it. She also said that there’s been a lot of discussion about if the Coucnil rejects the agreement, then the CMs would be able to talk about what they felt like was lacking. She asked if there would also be a discussion of if CM’s would like the City to go back to the table to bargain for the publicly disclosed issues, would they say what they want to give up, given confidentiality issues. Barbary answered that it wouldn’t be helpful to flat out reject a contract without giving any reason. The basis of the rejection would need to be stated so that everybody had the same information moving forward. He added that he didn’t think Council would be getting into that level of discussion publicly on what the other gives might be — Council wouldn’t offer anything if it had to go back with that. It would just see what the response was. He said he thinks there would be an ask and it might be a big ask, depending on what it is and how it worked.
Mayor Gorton closed by saying that made sense given how long the process has gone on. She said it’s excruciating work and that this was a really healthy discussion so that Council recognizes what the steps forward are.