Protests Turn Spotlight on Powerful Police Unions Blocking Reform
(Bloomberg) -- Less than six months before the video of Minneapolis police officer Derek Chauvin killing George Floyd set off a nationwide furor, another city officer fired for the use of excessive force returned to the job.
Peter Brazeau was terminated in 2019 for beating a handcuffed, drunken man, leaving him in a pool of blood. But under the police union contract and Minnesota state law, Brazeau was allowed to appeal the decision in binding arbitration. The arbitrator overruled the department, deciding a two-week suspension was enough.
“I don’t want to come off saying strong unions are bad -- they’re not,” said Andrea Brown, former chair of Minneapolis’s Police Conduct Oversight Commission, a public defender and union member. “It’s just that especially with policing, when a chief says you’re fired and there are mechanisms to undermine that chief’s decision, that’s where we get into really big issues.”
With thousands demonstrating in the streets over the latest death of a black man at the hands of the police, greater scrutiny is being given to the role that union contracts and labor laws play in shielding police officers from accountability. The mechanisms are meant to protect officers from retaliation from false complaints or managers second guessing difficult decisions made in dangerous situations. But they can also serve as an obstacle to reform or protect officers with troubling records of violence.
In Chicago, where the 2014 shooting of a black teenager prompted an outcry when video of it came to light, citizens complaining about police misconduct must file a sworn affidavit -- a process the U.S. Justice Department in 2017 said creates a “tremendous disincentive” to come forward.
In Baltimore, complaints that don’t result in discipline can be expunged in three years. In one notorious case, an Oakland, California, police officer who was fired in 2009 after killing two unarmed men successfully appealed and was reinstated with full back pay.
Police unions are a powerful political force to both parties, serving as allies of law-and-order Republicans and labor-friendly Democrats who run most major American cities and are under persistent pressure to keep down crime. Police unions have contributed more than $100 million to state officials alone since 2000, according to the National Institute on Money in State Politics, and make important contributions and endorsements locally.
There are signs that the political ground among Democrats may be shifting. This week, the Washington, D.C., council passed legislation that removes the police disciplinary process from the list of topics covered by collective bargaining. New York’s legislature bucked police unions by passing a bill that would repeal a decades-old law that kept officers disciplinary records secret.
On Wednesday, Minneapolis Police Chief Medaria Arradondo said the department was withdrawing from contract negotiations with the police union and bringing in outside experts to review provisions, including use of force and disciplinary procedures such as grievances and arbitration.
“We’ve reached a turning point,” said Stephen Rushin, an associate professor of law at Loyola University Chicago who teaches criminal law, evidence and police accountability. “The public increasingly understands that even if you can generally support the rights of public employees to collectively bargain, it doesn’t mean you support leaders making bad deals that allow someone to engage in serious misconduct and keep their job.”
The public sector is a bedrock of the labor-union movement, thanks to the high membership of teachers, firefighters, and police. About 39% of local government workers belong to a union, compared with 6% of private industry employees, according to the U.S. Labor Department.
The public employee unions don’t just negotiate wages and benefits. Most states allow police to bargain over the terms and conditions of employment, which includes internal procedures used by police management to investigate or punish officers suspected of misconduct. In addition to collective bargaining, at least 16 states have enacted legislation to codify Law Enforcement Officers’ Bills of Rights, providing additional protections from investigation.
Some contracts also contain provisions that delay interrogations of officers suspected of misconduct, indemnify officers in the event of civil suits and require arbitration in cases of disciplinary actions.
A review of 178 collective bargaining agreements by Rushin, the Loyola professor, found a “substantial number” unreasonably interfere or limit the effectiveness of mechanisms designed to hold police officers accountable.
Police officers say that provides crucial due process protections given the confrontational nature of their jobs.
Under the contract that expired at the end of 2019, Minneapolis police accused of misconduct are given 48 hours before being questioned and receive a summary of the events and allegations.
“You would never in investigation into a crime ever tell the person ‘hello, we want to interview you, we’re giving you 48 hours notice and we want to tell you the whole basis of the interview and what other people are saying,’” said Rachel Moran, an associate professor of law at the University of St. Thomas in Minneapolis.
In 19 years on the force, Chauvin, who was charged with murder for the death of Floyd, was the subject of at least 17 civilian complaints. He received two letters of reprimand, according to a summary released by the Minneapolis Police Department. Complaints that don’t result in discipline are excluded from an officers personnel file, making it difficult to track a pattern of potential misconduct.
In Minnesota and around the U.S., the disciplinary appeals process is a source of particular frustration. Arbitration panels, which include members selected by unions, routinely reduce firings or suspensions.
It’s not clear, however, that eliminating disciplinary procedures from collective bargaining would significantly reduce police misconduct. North Carolina, South Carolina and Virginia ban police from collective bargaining, but Rushin said he’s unsure there’s significant evidence that those states are better than others in regulating misconduct.
“It would be shortsighted to say the problem is unionization,” said Rushin. “The problem is much deeper and systemic.”
Perhaps more important than the text of the contract is the culture of the department and the influence a union head can have on it. Lieutenant Bob Kroll, president of the Police Federation of Minneapolis, the police union, is the subject of at least 29 complaints and is notorious for his unwillingness to work with police administration, said Moran. Despite, or rather, because of Kroll’s hostility to management, he keeps getting re-elected.
In a letter to union members after Chauvin and three other officers were fired Floyd’s death, Kroll said they weren’t given due process and he was working with defense attorneys to reinstate them. Police were being made scapegoats for the protests that followed, he wrote.
The phone at the Police Federation of Minneapolis was disconnected and Kroll couldn’t immediately be reached for comment.
A message left for Brazeau, the reinstated Minneapolis police offer, with Joseph Kelly, the attorney who represented him in the arbitration, wasn’t immediately returned.
Negotiating disciplinary concessions in police union contracts wouldn’t come cheap. Police unions wouldn’t make them without receiving more pay and benefits in return, Rushin said. Some cash-strapped cities, like Chicago, negotiated concessions on disciplinary procedures in exchange for lower salary and benefit increases. Nationally, cities are facing big budget shortfalls, so they may have even more incentive to extend procedural safeguards than to roll them back.
Like Washington D.C, state legislatures and municipal councils could pass laws that limit the subjects local officials can negotiate through collective bargaining or amend law enforcement officers bills of rights, Rushin said. In a less radical move, states could amend their labor laws to require municipalities to make collective bargaining sessions over police disciplinary procedures open to the public.
States and cities could also pass legislation eliminating arbitration of disciplinary appeals, giving city councils or mayors the power of review. As an alternative, community leaders could provide city leaders the opportunity to overturn particularly egregious decisions by arbitrators.
“Police unions aren’t some insurmountable obstacle,” said Rushin. “We can address these issues if there’s political will to address them and we can at the same time allow officers to engage in good faith negotiations about things you want them to be able to negotiate about.”
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