Power to Rework Criticized Police Contracts Lies With Elected Leaders

Police unions and their labor contracts with cities are facing scrutiny amid the calls for drastic changes to law enforcement that have swept the nation in recent weeks. 

As with previous campaigns to drive policing reforms, advocates across the country have recounted how police unions have thwarted efforts to open up officer use of force records to the public, or fought to preserve often secretive arbitration procedures that frequently reinstate cops fired by police brass for serious misconduct.

But people on different sides of the debate are pointing out that it’s not only unions that hold sway over collective bargaining agreements for police. State and local officials who negotiate and approve the contracts also have the power to change them.

While police unions are a target of the current backlash, workplace standards for police around the country are in place because elected leaders have agreed to those ground rules, or remained ambivalent about them, and have done so despite the significant time, attention and money devoted to police reforms during the past five years.

In Philadelphia, Rev. Mark Kelly Tyler, a pastor at Mother Bethel A.M.E. Church and a leader with the interfaith organization POWER, has been critical of the local police contract and wants to see more transparency and public input in how it’s negotiated. “It’s pretty much done in the dark and without any input from the citizens,” he said.

He applauded legislation city council members recently introduced that could help with this, as well as a council proposal he and others have pushed for that aims to strengthen civilian police oversight. But asked if he thought city politicians have at times used the contract as an excuse to avoid thorny debates about policing, he quipped: “Is the sky blue?” “Of course it’s used that way. It’s always used that way, it’s: ‘My hands are tied ... we can’t do anything about it, it’s the contract.’”

“The contract hasn’t fallen from heaven and into the hands of the mayor and the FOP. It’s negotiated. And as far as I can see, there’s never any pushing back,” he added, referring to the acronym for the Fraternal Order of Police Lodge 5, the labor union that represents Philadelphia police officers.

Ron DeLord, a longtime police and fire union contract negotiator based in Texas, also noted that the labor pacts are not unilaterally imposed—mayors and other elected officials sign off on them, even if they complain later about the provisions they contain.

“If the mayor had never signed it and the council had not ratified it, they wouldn’t have a contract,” he said.

“If you think the due process system is unbalanced, then bargain a different system or change the law,” DeLord added, noting that unions can't bargain anything that goes against state law.

DeLord also stressed that collective bargaining agreements on their own do not extend special protections to officers who face criminal prosecution. “The district attorney doesn’t care if you have a union contract,” DeLord said. “The FBI doesn’t care.”

State lawmakers do have the authority to change laws in ways that would bar police unions from negotiating over certain issues that have proven to be controversial. But police unions are also known for wielding considerable clout in state capitals. And some states have passed police officer “bill of rights” laws that extend protections to police during misconduct inquiries and can also make it difficult to change individual department procedures. 

To what extent the current upheaval over policing erodes the political influence police unions have in legislatures remains to be seen.

Critics often charge that police union contracts and the officers bill of rights statutes create procedural hurdles that can make it extremely difficult to hold officers accountable for bad behavior on the job, and that also present a host of other roadblocks to various reforms, safeguards and transparency measures.

“We talk about accountability: police departments have to have x policy, they have to do y training, but folks don’t realize that union contracts many times really tie their hands,” said Lynda Garcia, previously an attorney with the Department of Justice, where she worked on investigations into police agencies that had shown signs of biased policing or recurring civil rights violations.

“Especially in terms of disciplinary matters, departments can be so restricted,” added Garcia, now policing campaign director for the Leadership Conference on Civil and Human Rights.

Norm Stamper, who served as Seattle’s police chief in the late 1990s, emphasized that he is a proponent of labor unions in general. But he echoed Garcia’s view on police contracts. “I think they can represent a huge roadblock to police reform and to basic internal discipline and efforts to set and enforce reasonable standards,” he said.

This week, the union that represents Seattle’s rank-and-file city police officers, the Seattle Police Officers Guild, told a city labor negotiator that two local laws passed earlier in the week to ban police from using chokeholds and crowd-control weapons like tear gas, pepper spray and “flash bangs,” are subject to collective bargaining, The Seattle Times reported on Thursday.

On Wednesday, the King County Labor Council, an umbrella group for unions in the Seattle area, voted to expel the guild after approving a resolution earlier this month that called on the officers’ union to take certain actions to address issues related to racism.

DeLord, the union contract negotiator, noted that around the country most state and local law enforcement agencies do not have unions or collective bargaining agreements.

The Fraternal Order of Police reported about 350,000 members on a filing with the Labor Department for the year ending last June 30. Some of its local chapters are labor unions, others are not. A report the Bureau of Justice Statistics released last October says that nationwide there were about 700,000 sworn officers working for general purpose police agencies in 2016, about 468,000 with local departments. 

Research about what happened when sheriffs’ deputies in Florida gained the right to collectively bargain, following a 2003 state Supreme Court ruling, found that there subsequently was a significant increase in incidents of violent misconduct among sheriffs’ offices.

“I think the leading hypothesis would be that when they get the right to bargain collectively, they gain these procedural protections that make it more difficult to hold them accountable,” said John Rappaport, a professor at University of Chicago Law School who co-authored the research, which was updated last August. 

He noted that a more recent analysis that has not been published casts doubt on the possibility that the change was due to new officers getting hired after bargaining became possible.

“So it’s just a deterrence story. You make it harder to discipline people, then the deterrence that keeps them from misbehaving decreases,” Rappaport said. “And so they’re likely to misbehave more.”

Protests over police brutality that have roiled the nation in recent weeks, along with a broader national dialogue that is now unfolding over policing and racial injustice, were ignited by the death of George Floyd, a Black man who died on May 25 after a white Minneapolis policeman kneeled on his neck.

As Minneapolis Mayor Jacob Frey, a civil rights lawyer, discussed the possibility of a “culture shift” and combatting institutionalized racism within the city’s police department, during an interview with The New York Times, he described the local police union and its labor contract as a sizable impediment—the “elephant in the room” as he put it. 

“It sets up a system where we have difficulty both disciplining and terminating officers who have done wrong,” he said.

Arbitration and other lengthy appeal processes that are backed up by union contracts and state laws can provide officers with a powerful form of recourse if they’re facing disciplinary action, or firing, over alleged misconduct or violations of department rules. Arrangements like these often draw the ire of reformers who say they can allow bad police officers to keep their jobs, putting the public at risk.

The Washington Post in 2017 found that 37 of the nation’s largest municipal and county police departments fired a combined 1,881 officers over about a decade. Of those officers, 451 successfully appealed, often through arbitration processes, and got back their jobs.

When officers land before arbitrators, it’s not always because they’re facing brutality allegations. It can also be for infractions like drinking on the job, crashing vehicles, or insubordination. The Post investigation flagged incidents that ranged from an officer who allegedly forged prosecutors’ signatures on documents, to another who fatally shot an unarmed man.

In addition to calling into question arbitration processes, some reform advocates argue that state laws should be changed so officer discipline is left out from police union collective bargaining all together.

As it stands, DeLord argues that police unions are no different than any other labor organization: They fight for pay, benefits and job security for their members. 

“Police officers in unionized work environments have a right to due process,” he said. “They want to know that when you get down to: ‘Did I violate the rules and regulations of the department, not the law, will I have a chance to tell my side of the story?’” 

When it comes to police chiefs and other city leaders who complain that they can’t fire certain officers over alleged misconduct or violations of department rules, DeLord added: “What they’re bitching about is the cases they couldn’t win in a system they agreed to.”

Earlier this month, Minneapolis police chief Medaria Arradondo announced that the city was stepping away from union contract negotiations as debate has continued to flare over what changes his department should undergo. A nine-member majority of the City Council has gone so far as to voice support for dismantling the city’s police force and begun the slow process of moving in that direction.

But Dave Bicking, a board member with Communities United Against Police Brutality, who has been working with the Twin Cities-focused group for over a decade now, is skeptical that the council will be able to deliver on its disbanding pledge anytime soon. 

And he cautions that the move by the city to withdraw from contract talks could lead to a situation where a new agreement is eventually imposed by an arbitrator, and the city council actually loses some of the ability it would otherwise have to force changes to the status quo.

In the meantime, Bicking and other activists are standing by with a slate of proposals for how the local police union contract might be amended. Notably, many of these proposals don't focus directly on disciplinary issues.

For instance, some of the recommendations include reducing officer fatigue by restricting work hours to 50 per week except in major emergencies; requiring regular mandatory mental health screenings; testing officers for steroid use; and providing managers more flexibility to put officers on specific assignments based on skills, experience and past conduct.

“The union contract is perfectly fine in almost every respect when it talks about discipline,” Bicking said. “It’s a standard public employee contract. And it’s very similar to most private employer’s contracts,” he added. “It has a grievance procedure, as it should.”

But Bicking noted that based on research he and his collaborators have conducted, a “vanishingly small” number of officers typically face disciplinary action within the Minneapolis police department. And those who are disciplined commonly get their punishment tossed out in the appeals process, he said.

He said that he and others think this can be fixed in Minneapolis if the department adopts a “discipline matrix” for deciding how to punish officers who screw up. But it will also involve what he described as a “reset” with the arbitration process, so that punishment is consistent based on the matrix and not overturned if it doesn't align with how officers were disciplined in the past.

Bicking makes clear that he is no fan of the Minneapolis police union. “But in the end,” he said, “the power lies with management.”

At the national level, the group Campaign Zero advocates for a range of accountability measures and other policy changes that are intended to lower the number of people who are killed by police. Amending union contracts is one of the areas that the group focuses on.

The group says that it has reviewed police contracts for 81 of America’s biggest cities and concluded that 72 of them, along with 15 states with police officer bills of rights, were found to impose at least one barrier to police accountability.

Some of the contract provisions that Campaign Zero flags as problematic include things like disqualifying misconduct complaints submitted too many days after an incident occurs, mandatory “cooling off periods” that prevent police investigators from interrogating officers immediately after serious incidents, and expunging information on officers’ disciplinary history from their personnel file, or withholding that information from the public.

For Tyler, the reverend in Philadelphia, the police contract is just one area where he said he’d like to see changes. He described the proposal for a new civilian oversight commission—and making sure that it has adequate funding—as being crucial as well. 

“Accountability and transparency are the two things that we are really pushing for on multiple levels,” he said. “The days of simply deferring to law enforcement,” Tyler added, “the days of that are over. The public wants to know what the police are doing.”