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For today’s Critical Issues Report, we asked current and retired police executives how collective bargaining contracts and arbitration processes for disciplinary cases impact their efforts to implement reform measures.
Key Takeaways
-- Arbitration systems consume a great deal of time and money. This results in pressure on chiefs to settle cases quickly.
-- Arbitrators often are selected in a process similar to jury selection, with each side taking turns striking candidates from a list. This creates an incentive for arbitrators tend to “split each case down the middle,” regardless of the merits of the case. In that way, the arbitrators are more likely to be selected again in future cases.
-- Disciplinary systems often were created through a patchwork of changes to collective bargaining agreements going back decades. So chiefs trying to implement 21st century reform measures are held back by standards that were agreed to 30 years ago or longer.
-- Recommended reform proposals include the following:
- Scrapping arbitration of disciplinary cases, and implementing a system in which the police chief decides discipline, subject to one additional layer of review by the chief’s “boss” – the mayor or city manager.
- Creating a new arbitration system in which the decision-makers are impartial appointees, like judges, rather than “compromise-oriented” candidates who are chosen case-by-case according to how their most recent decisions are perceived.
- Starting from scratch. Instead of renewing existing contracts with minimal changes, write entirely new contracts that are designed to reflect the realities of 21st century policing. Labor organizations likely will oppose this approach, which is why there is talk in some cities of abolishing the police department and creating a new agency.
- Decertification. In states where officers can be decertified if they are convicted of certain crimes, expanding the list of offenses could provide a separate option for termination.
- Early intervention systems should be part of the reforms. An EIS can prevent many situations from ever escalating to the level of discipline.
Retired Miami Beach Chief Dan Oates:
The Arbitration Process Costs a Lot of Time and Money, and Management Typically Doesn’t Win
I’ve worked in four states: New York, Michigan, Colorado, and Florida. In the places with arbitration – Michigan and Florida – both sides are given 7 names, and they each de-select one until they’re down to one name. In that kind of process, the people who are repeatedly picked and paid to do arbitrations are those who “split the baby” and decide cases down the middle.
Another problem is that we’re usually only taking the worst cases to arbitration, like the termination cases. Arbitrations cost a lot of money. When I left Miami Beach, the typical cost of arbitrating a case was about $50,000. So you can only go to your bosses and make the case for arbitration so many times. That means the pressure from your union and often from your bosses is to settle these cases.
So you only go to war over the biggest cases, and you end up in front of an arbitrator who wants to give the other side something.
It's not just collective bargaining agreements, it’s also state labor laws. Over time, elected officials give away rights in contracts, like not even being able to transfer people. When I was in Ann Arbor, if someone was incompetent in their job, you couldn’t transfer them unless you could prove in front of an arbitrator that they deserved to be transferred. So it’s a combination of both state labor laws and collective bargaining agreements.
The volume of cases, the expense, and the time you spend on each one work against you: A big problem in the cities where I worked was the volume. You have misconduct you want to deal with, but you can only go to arbitration for a portion of it. And arbitration sucks up your time and your staff’s time.
For every arbitration, I spent about 1 to 2 weeks of my time preparing for and dealing with an arbitration. That’s time that’s not spent running the organization. And that’s true of some other senior staff and your internal affairs team as well. It really sucks the life out of you.
Everybody knows that the arbitrations are really hard for management, and management typically doesn’t win. So, in the places where I worked, the union really works you. If you want an 80-hour suspension, they want a day or a written reprimand. And if you say no and want to take it to arbitration, you have your own city lawyers asking if you can just settle it for 20 hours and avoid that expense. If that doesn’t happen, you go before an arbitrator who has been picked because he or she is going to land halfway between management and labor. So you’re not going to win 80 hours, even if that’s the best possible resolution to hold people accountable and send a message to your staff.
Then there are the cases you lose. If you lose an arbitration, your ethics and your integrity are challenged by the union leadership. They go around to everyone in the organization and say, “Look how unfair this chief is. Look how he railroaded this cop.” My experience is that the deck is stacked against management.
Decertification for criminal offenses: In terms of reform, I have two significant ideas. In every state in which I worked, if you were convicted of a felony, you were decertified by law, and the unions couldn’t really do anything about that. Those states also had a limited number of misdemeanors for which that law applied, such as official misconduct. One option might be to broaden that list of misdemeanors for which an officer loses their certification by law.
Giving the chief the authority, with one level of review above the chief: The best way to have a good police department when it comes to discipline, performance, and ethics, is to have a really good police chief and empower that chief to impose discipline. Due process is about notice and an opportunity to be heard. That’s it. Due process doesn’t require arbitration.
So my second idea for reform is to have the police chief’s decision stand, with one level of review above. That review could be to the chief’s boss, whether it’s a city manager or a mayor. And the standard should be, “Was the chief’s decision arbitrary and unreasonable?” Instead of a full-blown arbitration, have a written brief prepared by both sides and submitted to the chief’s boss as an extra layer of supervision and review. But the cop who has been disciplined would have to show that the chief’s decision was arbitrary and unreasonable. That’s a fair standard that answers any questions about due process.
Buffalo Deputy Commissioner Joe Gramaglia:
We Can’t Change Policies Because of Union Contract Provisions from the 1980s
Discipline takes an absolutely inordinate amount of time. When an officer is charged in a criminal case, we cannot intervene with any discipline whatsoever until after that case has been heard. We just came out of a couple federal prosecutions of officers in which the feds lost. One took 9 years, and the other took 5 or 6 years. Those officers were all out on paid administrative suspension.
Since all the protests have occurred, the media have been asking to see the union contract, and the union released it for the first time. It’s not a contract; it’s a serious of MOUs that go back to 1986. I was in high school when these were put in place. We’re trying to implement reforms under agreements that reflect the style and philosophy of policing at that time.
So we can come up with a new policy or procedure, or get information from PERF or another police agency about something we want to put in place, and someone will point to an MOU from 1992 to say we can’t do it.
And the grievances come by the dozens. We have thousands of grievances backed up, some that will never be heard, and there’s no process to speed those along. We have an arbitrator in our building for two days a month. We pay half, and the union pays half. He tries to triage these grievances.
When can we ever break out from bad policing practices if we’re beholden to past precedents?
Officers are on probation for the first 18 months – 6 months in the academy and a year on the street. During that time, you can be terminated for almost anything. But for a veteran officer who isn’t on probation, it simply doesn’t happen.
Chuck Wexler: What would make the biggest difference in Buffalo?
Deputy Commissioner Gramaglia: Without a doubt, the contract has to be revisited. In an interview last week, a reporter asked why we don’t just rip up the years of MOUs and renegotiate. The answer is that the union would be giving up arbitration awards that they won along the way. The only way to ever get rid of that is to abolish the police department, or have a control board come in with ultimate authority to deal with contracts. We were under a control board for several years, and they did freeze portions of our contract at the time.
I think the arbitration system needs to be looked at, so the commissioner or chief executive has the ability to discipline.
One tension here is that we have one union for all ranks. There has been talk throughout the years about separating into a command officers’ union, a detectives’ union, an officers’ union, etc. When you have command officers in the same union as the officers, you will not get the same level of supervisory authority as when they’re in separate unions.
Retired Minneapolis Chief Janee Harteau:
Arbitrators Must Side with the Unions to Some Extent If They Want to Be Chosen Again
If we look at our union contracts, many of our discipline processes are built on an old police culture that doesn’t support policing in the 21st century. And when we sit down for collective bargaining, it doesn’t allow us to do much more than incremental changes.
I’d love to just start all over. Take a union contract and start from scratch. Look for agreement about what supports 21st century policing, instead of negotiating over an archaic contract that’s evolved over time.
Wexler: How does the arbitration process work?
Chief Harteau: Each side gets to participate in the process of selecting arbitrators, but the arbitrators who continue to be selected often side with both.
I had terminations that were reduced to time off without pay, and I had demotions that were reduced to time off without pay. So who has the full authority here? Not the chief.
The arbitrators often find a middle ground. They say they agree the officer’s actions were inappropriate, but they disagree with the level of discipline for those actions. Arbitrators tend to side with the unions in some cases, or they will never be selected by a union.
I would love to see these go to a neutral party, like a judge, instead of an arbitrator who is selected by both sides.
The current system makes it virtually impossible to change certain practices, simply because they were upheld in the past. We need to move forward and say we will no longer accept certain behaviors as becoming of an officer. We can’t hold people accountable if we don’t have the tools to make those decisions and say, “This is enough to be terminated.”
Wexler: What is the path forward for reforming police in unionized departments?
Chief Harteau: One, I think we need to terminate the contract as it is. We start over in the 21st century. We have to have honest conversations and reevaluate what we want our officers to do. We are trying to manage all of society’s failures, and we need to really look back and ask what role the police should play.
I think we need to put the things that all sides agree on into the contract. Things that are in the best interest of the membership and the community.
I’d love to see term limits for union leadership. Part of the institutionalized power that the Minneapolis union has comes from the fact that the prior president was there for many, many years.
I think union leaders need to be accountable to their words and actions. All employees are entitled to due process, but my experience is that there are automatic grievances for all discipline cases. That’s simply an “us vs. them” mentality. There should be times when union leadership stands up with the police chief to denounce the actions of officers and say, “This is not who the Minneapolis Police Department is.”
I want to see mandatory arbitrations go away, or have somebody who is neutral, not someone who is selected from a list, based on their prior decision-making.
A real early intervention system is very important. By the time we’re talking about termination, we’ve failed somewhere. We need a real EIS that allows leaders to see patterns, address things when they’re small, and prevent egregious behavior in the future, while also ensuring that the health and welfare of officers are addressed.
When you look at any officer who has been terminated for anything other than domestic violence or other criminal conduct, they have patterns, and many times they were involved in prior critical incidents and their mental health was never addressed.
Minneapolis Deputy Chief Henry Halvorson:
It’s Difficult to Implement Reforms When You Don’t Have the Authority
We were working on the union contract, which was up at the end of 2019. During the several months we met with the Police Officers’ Federation, of the 40-odd issues we had, we only got to agreement on about 10 of them. It was a fight, even on simple things that it seemed would not be an issue.
I didn’t realize the power our union has until I got into this position. We’re looking at stepping back and getting away from the union table right now, taking some time, and addressing the issues we need to work on.
Our arbitration process is run through the state Bureau of Mediation Services, and it’s almost like picking a jury. You get several names, each side rejects ones they don’t want, and you eventually have to agree on one.
If an arbitrator upholds a termination, the union probably will not agree to that person in the future.
Recently some of the arbitrators have said that they agree that an officer’s actions didn’t fall within policy, but the amount of discipline was too high.
When the leader of our organization makes a disciplinary decision, whether it’s termination or a long suspension, and that’s overturned, the leader then has to go back to the mayor, city council, constituents, and the rest of the department, and reinstate a person who they have said they lost trust in.
So they did something wrong, and you lost trust in their ability to do this job. But you weren’t the ultimate decider on what their punishment was for that.
It’s difficult to reform when you have people turning over what you decide is right for your organization.
I agree with Chief Harteau about the early intervention system. We’ve focused on the health and wellness of our people. People talk about trauma that communities and individual people have dealt with, and our officers have dealt with trauma for years and swept it under the rug. We’re finally realizing the impact that has on our people. It affects their lifestyles, their decision-making, and their service to the community.
The PERF Critical Issues Report is part of the Critical Issues in Policing project, supported by the Motorola Solutions Foundation.
PERF also is grateful to the Howard G. Buffett Foundation for supporting this work.
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