Police dishonorable discharges could be eliminated, what’s the alternative?

Editor's note - This story has been updated to show Uvalde CISD filed a motion to challenge Arredondo's default win in administrative court.

AUSTIN (KXAN) – Pete Arredondo, Uvalde CISD’s former police chief, was fired after coming under scrutiny for his part in leading the law enforcement response during the 2022 mass shooting at Robb Elementary School that left 19 children and two teachers dead.

But it’s what happened after Arredondo’s firing – when he appealed his less-than-honorable discharge and won by default in administrative court – that highlights a major shortfall in Texas law enforcement policy, according to an analysis by Texas 2036, a nonprofit and nonpartisan policy group.

Texas 2036’s research found Arredondo’s win by default is no outlier.

When Texas law enforcement officers leave their agency for any reason, an employment termination form called an F-5 is filled out and added to their file at the Texas Commission on Law Enforcement. The F-5 form categorizes the officer’s discharge as either honorable, general and dishonorable. An officer can appeal any less-than-honorable discharge in administrative court. If the officer wins, they can clean up their record by getting their discharge upgraded.

Nearly 60% of the discharge upgrades in Texas in 2021 were defaults, like Arredondo’s, which happen when the agency that fired an officer doesn’t show up to court to defend the decision, Texas 2036 found.

“That means that when a hiring agency in the future is looking at the record of this officer, they will see an honorable discharge,” said Luis Soberon a policy analyst with Texas 2036.

The law requires a background check of an incoming office, but those are only as good as the diligence of the backgrounding officer and the information available to them. If a case as high profile as Arredondo’s can end in default, that’s “a really stark example of how the system, as it is, is faulty,” Soberon said.

On Feb. 24, Uvalde CISD filed a motion for a rehearing in a administrative court seeking to submit evidence and uphold Arredondo's original F5 discharge, according to Texas 2036. The motion for a rehearing came three days after Texas 2036 posted its findings about Arredondo's default win in court.

Many in the law enforcement community agree, for various reasons, that the current F-5 process is broken. But what could take its place?

‘Due process’ and ‘fundamental fairness’

TCOLE has been under Texas Sunset Advisory Commission review for more than two years. In mid-February, the Sunset Commission posted its final recommendations for reforming the agency, including eliminating discharge categories on the F-5 form.

The Sunset Commission did not, however, provide alternatives to replace those categories; that job will fall to the legislature and stakeholders – like police chiefs, unions and advocacy groups – to hash out.

Texas 2036 suggests replacing the discharge categories with “neutral descriptive reasons for separation.” They also recommend ensuring all departments keep detailed personnel files, making the termination report public and requiring agencies to use a national law enforcement database to background prospective officers.

Soberon said they could use another state’s separation form as a template. For example, Florida’s form has 22 boxes and numerous subcategories specifying why the separation was routine, administrative non-routine, due to substandard performance or related to misconduct. You can see the Texas and Florida forms below.

Jennifer Szimanski, public affairs director with the Combined Law Enforcement Associations of Texas, said her organization approves of eliminating the categories from the F-5 form, but they want due process to remain in place for officers. CLEAT is one of the state’s largest police unions.

Texas’ current categories are too broad, she said. A dishonorable discharge can be used against an officer for anything from insubordination, which can amount to a personality or political dispute, to a felony criminal offense, she added.

It is also known among law enforcement that agency heads are often not participating in F-5 discharge appeal hearings, she said.

“They are not being held accountable because all they have to do is just not show up to the F-5 and it defaults back to the officer,” she said.

CLEAT supports compelling a chief or sheriff to place the facts surrounding the termination in a sworn document in an officer’s personnel file and making that document available to the next hiring agency, Szimanksi said.

“We feel what needs to be happening here is chiefs and sheriffs need to be held accountable on the front and back end. When they terminate someone, for one, and, for two, when they hire someone,” Szimanski said.

CLEAT would also support making every police officer’s employment fall under civil service rules, which provides an internal appeal process.

Szimanski said CLEAT is in favor of transparency between law enforcement departments and sharing all the details of an officer’s termination with the next hiring agency but not in favor of making that information public.

Kevin Lawrence, executive director of the Texas Municipal Police Association, also noted concerns about due process. Lawrence boiled it down to “fundamental fairness.” TMPA is also one of Texas’ largest police unions.

“If you deserve to be fired, by God, it should be open to the public – everybody knows why you get fired,” Lawrence said. “But if you didn't deserve to be fired, there shouldn't be a record there saying you got fired for cause.”

Lawrence said there should be some explanation or record provided to the next agency, in the event of a firing, that explains what happened. Like Szimanski, Lawrence stressed his support for due process for offices.

Lawrence said his group is in active discussions about how to recast the F-5 form, and it is a complicated endeavor.

“It is a very complex issue that has to apply to 2,900 different agencies with 2,900 different cultures, different types of department head,” Lawrence said.

‘Suspected of misconduct’

There is currently one piece of legislation, Senate Bill 521, filed by Sen. Royce West, D-Dallas, that would change the F-5 form.

West’s bill would eliminate the discharge categories in the F-5. The revamped report would require an agency to indicate if the officer was “suspected of misconduct, regardless of whether the license holder was terminated for misconduct” and regardless of whether the officer was arrested, charged or convicted. The officer would be able to contest the indication of misconduct in an administrative court, according to the bill. Lawrence said TMPA could support the bill, but they want some form of due process to be ensured.

Soberon and Lawrence said they are aware of other bills dealing with the F-5 that may be filed soon. The bill filing deadline is March 10. KXAN will be following this, and other law enforcement and TCOLE reforms, as developments occur in the legislature.