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The union contract that helps keep police officer misdeeds under wraps is now in the hands of an independent arbitrator who is expected to release a decision soon.

Negotiations for a new (SHOPO) collective bargaining agreement stalled about two years ago after neither side could come to an agreement. The last four-year agreement expired in June 2011.

But due to bargaining rules and confidentiality requirements no one will say what the sticking points are or what’s on the table.

Compared to the loose-lipped negotiations over a new Hawaii State Teachers Association contract — in which everyone seems to be blabbing to the media — SHOPO, the state and the four counties have kept their mouths shut.

It’s impossible at this point to know how much an arbitrator’s decision in the SHOPO negotiations will cost the four counties. If the arbitrator sides with the union it could mean higher salaries for cops.

In Honolulu, where the SHOPO membership is largest, Mayor Kirk Caldwell has not budgeted for any increases in compensation for police officers. He has, however, accounted for an automatic 5 percent salary bump many other city employees will receive as mandatory, statewide pay cuts implemented in 2009 sunset.

Honolulu officials don’t tend to budget for increased costs that would be incurred as a result of contract negotiations. That would be similar to negotiating with an open wallet. Everyone can see how much money you have to give.

Caldwell, who was heavily endorsed by unions, including SHOPO, during his run for office, spoke generally with Civil Beat about his collective bargaining philosophy. He took office after SHOPO went into arbitration so his involvement has been limited.

“I want to make sure that whatever is negotiated that we can afford to pay for it,” Caldwell said.

He added that he wants to find the “best and fairest deal” for taxpayers while at the same time looking out for the employees who help run city government.

“It’s a balance between those two things,” Caldwell said.

Whether the city will be able to strike that balance is another matter. In addition to SHOPO, the Hawaii Fire Fighters Association has entered into arbitration over its collective bargaining agreement. The other two unions that represent city employees, Hawaii Government Employees Association and United Public Workers also have contracts that are currently being negotiated.

Considering historical trends, salary costs for the city have increased more than 200 percent since 1992 despite the number of employees staying relatively steady. Benefits costs have increased even more during this span, jumping by more than 300 percent.

’Fierce Resistance’ To Change

As for trying to negotiate with SHOPO over the guaranteed protections officers receive when accused of misconduct, Caldwell and others would likely have an uphill battle.

Under the current SHOPO contract officers who get in trouble have up to four appeals of their punishment as part of a negotiated grievance process. County law enforcement officials have said this lengthy procedure binds their hands when it comes to getting rid of bad cops on the force.

A Civil Beat investigation into police misconduct has found that at the — by far the state’s largest — that nearly 40 percent of the officers discharged between 2000 and 2012 got their jobs back after a grievance procedure was completed.

One officer whose termination was overturned had a history of domestic violence, and on one occasion got behind wheel of a car while drunk and pinned a significant other against another vehicle. Other officers who had their firings overturned had lied to investigators, assaulted citizens and pleaded guilty to crimes.

But if someone wanted to challenge this provision of the contract, labor economist Lawrence Boyd with the Center for Labor Education & Research at the University of Hawaii — West Oahu said there would likely be significant backlash.

“That’s actually the heart of the contract,” Boyd said. “I think it would be fiercely resisted if you attempted to change that.”

Boyd has been an arbitrator in union negotiations and has also been an expert witness for SHOPO in collective bargaining talks. He said the grievance procedure is a central part of any union contract. It’s in place to make sure employees are getting treated fairly by their bosses when punished or fired.

In the case of HPD, Boyd said it appears the grievance procedure has been working. From his vantage point, 40 percent of the terminations handed down by HPD were proven to be unjustified and that 60 percent were punished appropriately.

“The burden of proof is on the employer,” Boyd said. “If the burden of proof was on the employee you’d probably have a higher termination rate.”

He said the four-step grievance process — which ends when an independent arbitrator makes a final ruling — is a “means of getting at the truth.” He likens it to the judicial system, where a person is innocent until proven guilty.

While one can question an arbitrator’s decision, Boyd said the decisions are based on a clear set of guidelines as well as prior cases. Questioning a decision would be akin to doubting a judge or jury, he said.

“You can question judges or you can question jury decisions and whether they made a mistake,” Boyd said. “Did the jury make a mistake? Or did the judge make a mistake? Most times no.”

Read Civil Beat’s investigative series, In The Name Of The Law.

Read the current SHOPO contract: