It’s the Police Union Contracts, Stupid

Published by PolisPandit on June 7, 2020June 7, 2020

It is in vogue to call for the defunding or downsizing of police departments. From Minneapolis to Los Angeles, local officials have seized the opportunity to announce budget cuts and the redirection of funds to other areas, including education and youth programs. Although this may be beneficial to some degree, it misses the mark when the focus is police misconduct in the wake of George Floyd’s murder (not to mention the countless others). In the spirit of James Carville, it’s the police union contracts, stupid.

Redirecting funds from police departments may be an expedient tool in a local politician’s toolbox, but real reform can only come when the union contracts and labor arbiters no longer shield police officers from misconduct. These contracts typically contain extensive police officer protections. They insulate officers from accountability and design arbitration hearings to operate in their favor. Even when fired for egregious offenses, cops can often appeal and win their jobs back.

It’s All In the Collective Bargaining Agreement.

Mayoral offices are typically responsible for negotiating police union contracts (hence why it’s crucial to vote for good mayors). These Collective Bargaining Agreements (“CBAs”) have a significant impact on determining how a city must handle cases of police misconduct. Once in place, city councils have minimal authority for addressing these issues. They can pass legislation, but it will likely be toothless because in most cases the legislation cannot override CBA provisions.

For example, should a city council impose a “preponderance of the evidence” standard for officer disciplinary hearings – which is customary in civil courts and other employment hearings – a CBA with the police union could enforce a higher burden of proof in the review or appeal of any findings. This ex post facto leniency for cops who engaged in misconduct allows many to walk scot-free. It also holds police to a more lenient standard – through the CBA’s arbitration process – than what their own departments would otherwise face in a civil case.

Other CBA clauses often prevent internal affairs investigators from interviewing officers at the scene of a shooting. They usually have to wait multiple days to get a statement. And good luck auditing police conduct in those cases. Certain CBA provisions block the recording or retaining of past misconduct in an officer’s personnel file. In addition, CBAs often have restrictions on the tracking of any data that is present or its use in determining patterns of misconduct.

Civilian complaints alleging misconduct face similar hurdles under standard CBAs. Tiered review processes wrapped in red tape basically ensure that no complaints ever get resolved. Others may be “disqualified” if submitted too many days after the incident occurs or if an investigation takes too long to complete.

Some CBAs even grant officers special privileges, giving them access to information civilians would not receive prior to interrogation. A few contracts actually allow officers to review all evidence against them prior to interrogation. Once officers sit for questioning, CBAs may restrict when interrogations can take place, who can conduct the interview, and the types of questions that can be asked.

Throughout the entire investigation process, many CBAs actually require cities (i.e., taxpayers) to pay costs associated with police misconduct. These costs can include paid leave, legal fees, and any settlement amounts. Yes, even if a disciplinary hearing finds a cop at fault, the taxpayers could still be left holding the bag. In cases where officers are found at fault or guilty, CBAs may require the expungement of records after 2 years or less.

Police unionization and CBAs are not inherently bad, however. Police, along with similarly situated jobs like firefighters and teachers, should have collectively bargaining rights. The critical difference with police officers though is that they carry loaded guns. They also have the authority to use force, and at times, deadly force. Collective bargaining rights for the police must consider and account for this immense power.

No CBA should permit police to effectively use their collective power as a weapon that infringes on the Constitutional rights of citizens. Certain cases of alleged misconduct – like shootings of unarmed suspects – should never qualify for arbitration. Whether that requires state legislatures to pass new laws around collective bargaining or mayors to negotiate CBAs with unions that are more fair and just, reforms must happen. A CBA is intended to put the police on equal footing with a city in terms of bargaining power. It is not meant to afford officers the right to act with impunity.

Defunding or Dismantling Police Departments Is… Stupid.

Instead of calling attention to CBAs, a number of local politicians have recently rallied cries to defund or dismantle their police departments. How would these calls to dismantle the police even work though? These vague policy proposals may pull on the heartstrings of the moment, but in the end, they are empty platitudes. At a moment when trust between communities and police departments are at all time lows, it is difficult to see how defunding or dismantling them will remedy that problem. If anything, it will exacerbate it.

Without sufficient boots on the ground to engage in the type of community policing that American cities desperately need at this time, police officers will have no chance at building trust. Instead they will be stretched thin with less resources and consequently, more prone to act out in frustration and with excessive force. They will feel more villainized and demonized. What happens when there are no officers to respond to an emergency 911 call?

While there is undoubtedly some need to reexamine police budgets, it should not be at the expense of misconduct from cops stretched to the limit. Some argue that cities should reinvest large portions of police budgets in jobs and education in communities of color. While those are noble endeavors, it is unclear how those proposals will address holding officers more accountable for misconduct. Reforming budgets will not reform behavior. Moreover, reassigning more service-oriented policing roles detracts from the police officer as a community figure, potentially alienating them further from the public. At a time when community engagement and trust is more crucial than ever, police officers need to be visible and active. If that ceases, their feelings of social isolation and negativity toward the community will prevail, with all of the behavioral consequences that come with it.

Reform the Union Contracts.

If anyone doubts the power of police unions, take a look at the 57 officers who resigned in Buffalo following the suspension of two of their colleagues. This is despite the graphic video that later surfaced of the two officers shoving a 75-year-old protestor unnecessarily, leaving him in a pool of his own blood. And not to mention the fact the video directly contradicted the initial description from the Buffalo police that he only “tripped and fell.” Needless to say, the 57 officers did not resign unilaterally.

Budgets and resources will not reform police conduct when CBAs across the country shield officers from liability. Some mayors and local politicians want to characterize the problem as a budget issue because they have direct and immediate control over those resources. What they want to avoid in reality is a protracted labor fight with powerful unions. But that is a fight we can no longer afford to avoid.

A CBA is intended to put the police on equal footing with a city in terms of bargaining power. It is not meant to afford officers the right to act with impunity.

Until mayoral offices and ultimately, the people, reign in police unions across the country, police officers will still enjoy rights not afforded to the average citizen. Officers should still enjoy labor protections through collective bargaining. Unsubstantiated misconduct complaints, for example, should not go against an officer’s record. But complaints where there is bonafide evidence of misconduct should similarly not go unresolved in perpetuity.

In the fight for racial justice and equality, politicians and the police play starring roles. Police unions must start playing their part too. They should not be shielded from discussions or reforms in the same way many of their CBAs shield police officers today.