Monday, July 27, 2020

The Arbitration of Police Officer Discipline

Police unions and their contracts should be considered in discussions of social justice and policing. But we shouldn’t ignore the details of the arbitration procedure for deciding police discipline. It’s common for U.S. union contracts across all occupations and industries to set standards for discipline and discharge (especially just or good cause), and to specify a grievance procedure. Typically, the final step of this procedure allows for arbitration by a neutral arbitrator who determines whether these standards have been fulfilled and if so, the appropriate discipline.

Unionized grievance procedures are important, especially when workers face discipline or termination. Rather than having one’s livelihood threatened by arbitrary or unjust managerial actions, unionized grievance procedures give workers due process so that discipline or terminations only occurs when it is done properly, supported by evidence, and just. The ability to appeal to an arbitrator is the linchpin for delivering due process because a neutral, third party can override unjust actions rather than leaving the grievant at the mercy of organizational leaders. Arbitrators take this role seriously, and there is now a rich body of accepted standards relating to due process, progressive discipline, and just cause.

Turning to police officers specifically, if we see them as workers, then they should be entitled to due process protections so that any disciplinary actions are just. As such, many police union contracts have grievance procedures ending in arbitration just like those found across the U.S. private and public sectors. But unlike most workers, police officers are allowed to use force against others, and police misconduct can severely injure or kill others. This magnifies the importance of disciplinary procedures when applied to police officers, and it is important to ask whether such procedures make it difficult to hold police officers accountable for misconduct (or whether it would make it difficult to hold public safety workers accountable in a drastically-changed system of public safety in which they are not class collaborators).  

One study found that around 25 percent of terminated police officers who appealed their firing to arbitration were reinstated by arbitrators. Police chiefs argue that this undermines their authority and makes it difficult to hold police officers accountable for misconduct. By itself, however, that some cases are overturned does not mean that there is a problem with arbitration. Indeed, arbitration only serves its purpose of providing due process throughout the grievance process if unjust terminations are overturned. For example, a patrol sheriff was fired for escorting his girlfriend home during his shift so they could spend his lunch break together, but this was overturned by an arbitrator who found that the investigation of this incident was incomplete, unreliable, and incorrect.

But legal scholar Stephen Rushin’s in-depth consideration of police disciplinary appeal procedures reveals specific features that could undermine accountability. One, when police chiefs and unions play an active role in selecting the specific arbitrator who will hear the case (e.g., by alternating striking names from a roster of choices), arbitrators have an incentive to make both sides happy in order to be selected again in the future. Reducing a termination to a suspension might be a way to split the difference between the two sides. Alternative selection procedures could weaken this incentive while preserving arbitration as a check on due process. For example, starting in September 2020, in Minnesota a roster of arbitrators will be assembled by the state’s Bureau of Mediation Services, and after they undergo training on racism and policing, arbitrators will be assigned to cases alphabetically rather than selected by the parties. [Relatedly, most arbitrators are probably older white men so the impact of reforming the selection process could perhaps be magnified by diversifying the arbitration profession.]

Two, arbitrators typically have broad authority to hear a case without deferring to previous decisions in that case—in legal parlance, they can arbitrate a case de novo (“from the new”). So all evidence can be reconsidered, new factual determinations can be made, and decisions by, for example, civilian review boards, can be ignored. Police officers accused of misconduct have a strong incentive to appeal to arbitration because they will get a new hearing. But perhaps more significantly, the authorities that are democratically accountable to the community—such as police chiefs, city officials, or civilian review boards—are subordinate to the arbitrator who can craft his or her opinion from scratch. An alternative approach would be to make arbitration more of an appellate-type review with a deferential standard. In this way, rather than an arbitrator being able to substitute their judgement for that of the police chief, the arbitrator would need strong procedural reasons or evidence of significant factual errors to overturn a disciplinary decision. In other words, this could shift the mindset from “what would I (the arbitrator) do?” to “is what was done reasonable?” This could still provide a check on due process violations, but would give more deference to the decisions of democratically accountable officials.  

Another area to consider is past practice. An important aspect of just cause is whether discipline is being evenly applied—that is, is the worker being treated the same as other workers who previously did similar things? So arbitrators place a lot of weight on past practice, and when seen through a lens of fairness, this seems appropriate. But if police departments have been lax in holding police officers accountable for misconduct, then the importance of past practice for arbitrators can make it difficult for new leaders to enforce misconduct standards because others have not been punished for the same offenses in the past. Communities United Against Police Brutality therefore advocates for a mandatory “disciplinary reset mechanism.” This consists of a thorough revision of a police department’s use of force policy that includes clear penalties for violations and a statement that this replaces past practices. This should also include training for officers on the new policy, and training for supervisors on how to correctly document violations while also administering consistent and progressive discipline. If done properly, this will fulfill the arbitral standards for just cause discipline and discharge.

In closing, design choices for organizational dispute resolution procedures importantly affect worker justice and organizational efficiency. In the case of police officers (or potentially some workers in a reformed system of public safety), it may also influence public accountability for police brutality, with very important and sometimes tragic consequences for victims and communities. This makes these issues too important to uncritically accept the status quo without considering avenues for improvement, even if this is just a small piece of a larger, complex puzzle of public safety reform.

Discussion / Reflection Question

What are some limitations of these proposals for changing arbitrator selection, limiting de novo authority, and enacting a disciplinary reset? Be sure to separately consider this from the perspective of (a) police or public safety workers, (b) police department and city officials, and  (c) the public.


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