Collective bargaining agreements with police too often constrain department leadership and tilt the playing field away from accountability for officers' misconduct. Community trust is at stake.
State and local elected officials reacted quickly to the deaths of George Floyd and other African Americans at the hands of police last year by passing a raft of new laws and enacting new policies to reduce police violence against civilians. While those measures seek to change police practices from the top down, reformers' next step should be to work from the bottom up to enhance police accountability through collective bargaining processes.
Opportunities abound. Major cities, including Houston and St. Paul, are currently renegotiating their collective bargaining agreements (CBAs) covering police. Other major cities with police union contracts expiring this summer include Baltimore, Boston, Cincinnati, Memphis, Phoenix and San Francisco. Chicago has been in the midst of heated contract negotiations between the local police union and Mayor Lori Lightfoot.
CBAs determine many police department policies, and are typically renegotiated every three to five years. The stakes are high: America's 20 cities and counties with the largest police departments paid over $2 billion to settle claims of officer misconduct between 2015 and 2020.
CBAs too often protect bad cops and keep them on the beat until something tragic happens. This is because CBAs detail the procedures by which officers can file grievances against superiors, the steps in misconduct investigations, how civilians can file complaints and the keeping of officer performance records. All of these add up to significant officer job protections and constraints on police leadership, especially related to misconduct and discipline.
Today's CBAs have been long in the making. Over multiple rounds of negotiations, the number of job protections has slowly ratcheted up in many contracts as unions representing police pushed for rules that protect their members. For officers, job protections are highly valuable. Getting sacked mid-career can kick former officers out of the middle class, as the skills they've acquired are not easily transferrable to other jobs. Management, on the other hand, has too often seen job protections as something to be traded away in place of raising salaries or benefits. Wage or benefit increases cost money in current dollars; job protections don't.
To improve department operations, policymakers need to comb through current contracts, review existing and past practices, and devise strategies to weed out obstacles to accountability. As outlined in a new Manhattan Institute paper, reformers need to prioritize removing obstacles to the receipt of civilian complaints and their investigation, the determination of any penalties, and the keeping of good records. That means focusing on the following areas of their existing CBAs:
Grievance proceedings: Grievance procedures allow officers disciplined by superiors to challenge their actions. The potential problem is that by empowering officers to push back against management, they decrease superiors' incentive to make tough decisions because they do not want to fight grievances.
Arbitration: Arbitrators have power over contested disciplinary cases. Arbitrators can overturn decisions made by police department leadership, even reinstating officers who have been fired, sometimes with back pay. But overturning leadership decisions can undermine accountability. It's hardly legitimate to accuse a chief of running a department poorly if multiple officers who would have been disciplined or dismissed are pardoned or reinstated by arbitration panels.
Misconduct reporting: It's vital to review CBAs to ensure that they aren't erecting too many barriers to civilians identifying bad cops through misconduct reporting. Easing misconduct reporting will inevitably lead to more frivolous and false accusations and more time wasted investigating them, but it is arguably worth the trade-off if it makes civilians feel that they can be heard and taken seriously — an important step to improving community trust in the police.
Investigatory procedures: Collective bargaining agreements often detail the processes by which any complaint is investigated. However, some steps in this process can tilt the playing field too far in favor of the accused officer. It is also important to determine whether current processes lead disciplinary cases to be decided on procedural rather than substantive grounds.
Record-keeping: Policymakers should push to store officers' disciplinary records in searchable electronic databases. The too-common practice of purging of officer records deprives supervisors of accurate information necessary for managing their organizations effectively. However, to ensure that officers are not held overly liable for unsubstantiated allegations or misconduct from long ago, departments should develop rules for who can consult past records and how they can be used.
As the ink dries on the new laws, reformers should not rest on their laurels. To make further change palatable to officers and their unions, policymakers will need to offer things that can help recruit and retain officers, such as higher starting pay or more flexible retirement arrangements.
Ultimately, communities, police officers and departments will all benefit if the links in the chain of accountability are stronger and tighter. Improving accountability is an important step toward reducing unnecessary use of force, changing public perceptions of police departments and bolstering community trust in the police.
This piece originally appeared at Governing
Daniel DiSalvo is a senior fellow at the Manhattan Institute and professor of political science at the City College of New York-CUNY.
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