Dispute About Arbitration for Terminated Cops

As former Minneapolis mayor, R. T. Rybak, persuasively has argued, police unions frequently undermine efforts to reform policing here and elsewhere.[1]

Now a dispute has emerged about arbitrators decisions about police officers who had been terminated for misconduct.

A StarTribune journalist examined the record of terminated Minnesota police officers getting their jobs back in arbitration.[2] “More than 80 po­lice of­fic­ers across Min­ne­so­ta were fired and fought their dis­charge in ar­bi­tra­tion over the past 20 years. A­bout half got their jobs back,” and “the true figure could be slightly higher” because “Min­ne­so­ta’s pub­lic re­cords laws pro­hib­it re­leas­ing any in­for­ma­tion at all when ar­bi­tra­tors o­ver­turn a de­ci­sion to fire a cop with­out im­pos­ing any type of dis­ci­pline. Such total ex­on­era­tions, while un­com­mon, are erased from pub­lic re­cord.”

The current Minneapolis Police Chief, Medaria Arradondo, shares this view of arbitration. He said, ““There is noth­ing more de­bili­tat­ing to a chief from an em­ploy­ment mat­ter per­spec­tive, than when you have grounds to ter­mi­nate an of­fi­cer for mis­con­duct, and you’re deal­ing with a third-par­ty mech­a­nism that al­lows for that em­ploy­ee to not only be back on your de­part­ment, but to be pa­trol­ling in your com­mu­ni­ties.” This is why he has withdrawn from further contract negotiations with the union and why he wants the Minnesota Legislature to pass legislation to reduce the scope for arbitration of terminated officers.

This harsh judgment of such arbitrations needs qualification, said the StarTribune journalist. “Some [termination] cases nev­er go to ar­bi­tra­tion, and some are ne­go­ti­ated and clas­si­fied as res­ig­na­tions or re­tire­ments.”

A stronger defense of labor arbitration was provided by Stephen F. Befort, a professor at the University of Minnesota Law School and a part-time labor arbitrator. He starts by explaining that labor arbitration is “a due process review of discipline and discharge decisions. The process entails an informal evidentiary hearing before a neutral decision maker. Minnesota law currently requires that all public sector collective bargaining agreements provide for the binding arbitration of disciplinary disputes. The arbitrator’s task is to determine whether the employer had just cause to support the discipline or discharge decision.”[3]

In this process arbitrators “are individuals who have developed expertise in labor relations and personnel matters. Federal and state agencies maintain rosters of arbitrators who meet certain qualifications. Arbitrators are not appointed by these agencies, but instead the parties to the dispute (i.e. municipalities and unions) mutually select one or three arbitrators from a roster to hear and resolve the dispute.”

Befort then reports that Minnesota arbitrators upheld discharge decisions by all kinds of employers (not just police) in 52 percent of over 2,000 such cases over 20 years while employees won reinstatement and full back pay in only 20 percent of the cases. The other 28 percent of the cases were “’split’ decisions in which discharges were reduced to some lesser form of discipline such as suspension without pay.” These statistics came from a 2015 book by Befort and two faculty colleagues which was “the largest empirical study of arbitration outcomes ever undertaken.”

Moreover, Befort claims that the above statistics are similar to those for police arbitration over a four-year period according to an article by one of his University of Minnesota Law School students that was published in an American Bar Association journal. These statistics were upholding police officers terminations, 53%; overturning such terminations, 23%; and split outcomes, 24%.

Finally Befort points out that if there were no labor arbitrations, the alternatives are leaving the employers’ decisions unreviewable or the more expensive and slower court litigation, neither of which is desirable.

Conclusion

As a retired attorney who specialized in business litigation, I was intimately familiar with the costs (beneficial to law firms and lawyers) and delays in resolution in such court litigation. Moreover, I became aware of the frequent adverse psychological impact of such litigation on the parties to the disputes. Therefore, I became an advocate for alternative dispute resolution (ADR), especially mediation but also arbitration, and served as Chair of the Minnesota State Bar Association’s Alternative Dispute Resolution Section.[4]

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[1] See Former Minneapolis Mayor Discusses Police Reform Problems, dwkcommentaries.com (June 21, 2020).

[2] Bjorhus, Fired Minnesota officers have a proven career saver: arbitration, StarTribune (June 21, 2020).

[3] Befort, Counterpoint: In defense of arbitration, StarTribune (June 19, 2020).

[4] See these posts to dwkcommentaries.com: Ruminations on Lawyering (April 20, 2011)(interest in ADR and chairing ADR Section); My First Ten Years of Retirement (April 23, 2011)(service as arbitrator); International Commercial Dispute Resolution (Aug. 11, 2011)(arbitration); Intraocular Lenses Litigation (Aug. 18, 2011) (litigation against ex-employees); Employers’’ Lawsuits Against Former Employees (Aug. 25, 2011); List of Posts to dwkcommentaries—Topical: LAWYERING.

 

Former Minneapolis Mayor Discusses Police Reform Problems

R.T. Rybak, former Mayor of Minneapolis (2002-2013) believes that police unions and their leaders are major reasons why past efforts at reforming policing in Minneapolis and elsewhere in this country have had problems and why current reform efforts are facing difficulties.[1]

He says this as he struggles with competing police images. On the one hand, Rybak has seen “police officers perform extraordinary acts of courage at explosive crime scenes, protect women from domestic abuse, build trusted relationships with immigrants who are terrified the government will take their children, and so much more.” On the other hand, he also has seen “toxic us-versus-them police cultures—in which an officer who might individually make the right call becomes silently complicit when a fellow officer goes rogue.This culture enabled three officers in my city to stand by while [George] Floyd was killed.” [2]

The latter culture is understandable when “officers see the worst things happening in their city on any given shift. After being in danger every night, officers gradually stop seeing the humanity in the people and neighborhoods they patrol. Instead, they go back to the precinct with the only people who can really understand what they are going through. People with exceptionally tough jobs serving complex humans naturally vent when they are together.”

“But the tribalism that can build up within police departments is far more consequential. Us versus them—meaning police versus criminals—slowly curdles into police versus the people: Who would live in these crime-infested neighborhoods where we risk our lives? Waiting to stoke that resentment are police-union leaders such as [Bob] Kroll [the President of the Police Officers Federation of Minneapolis], who defend even the more aggressive acts of officers and, even in a case as extreme as [George] Floyd’s death, prevent any self-examination by blaming the victim.”

“As matters stand, the public—through its elected representatives—has also ceded far too much power to the police unions that enable bad behavior. Floyd’s death underscores that police work should be subject to oversight, and officers who violate policy and misuse their power should be subject to discipline. But the unions’ power is most notable in contracts that limit the accountability that, as the community can now see, is so desperately needed. The lack of accountability seems incongruous because the mayors and city councils that negotiate with police unions include some of the country’s most progressive elected officials and represent some of the country’s most progressive constituencies.”

“Yet when duly elected officials propose reforms, police unions do not merely oppose them; they actively work to thwart them. Last year, Minneapolis Mayor Jacob Frey banned so-called warrior-style training, which emphasizes physical threats to police officers rather than the benefits of de-escalating confrontations. . . . Kroll and the police federation defied Frey’s move by offering warrior-style training of their own.”[3]

“Some local officials have also hesitated to demand tougher reforms in contracts because police unions often spend heavily in local elections to oppose any politician who challenges them. I know what that’s like. The union supported me near the end of my first race for mayor. But after I took office, we disagreed over the police budget and my choice of police chief. When I ran for reelection, the police union went all out to defeat me: It helped pay for polling to identify the strongest candidate to run against me and pounded voters relentlessly with literature and broadcast ads that portrayed me as soft on crime. [Nevertheless,] I got more than 60 percent of the vote. The police federation also made a massive investment to defeat an incoming council member, Betsy Hodges, who still won overwhelmingly. Eight years later, again, despite massive police opposition, she was elected mayor.”

“Electing mayors and city-council members who support such reforms is not enough. Police-union leaders use back channels to go around local officials and get more conservative state legislators to block meaningful changes. That dynamic holds true in Minnesota, where a Republican state representative, who was also a Minneapolis [police] officer, helped overturn a residency requirement for police. Today more than 90 percent of Minneapolis officers live outside the city. The legislature also has stonewalled attempts by the city to get supervisory positions removed from police-federation ranks. As a result, some of the people directing and disciplining officers, and developing the union contract, are actually negotiating with the union of which they are a member.”

“In return, police unions have helped their enablers on the state and national levels. Police-federation leaders endorse Republicans in most gubernatorial races. Last fall, Kroll appeared with President Donald Trump at a rally in Minneapolis and was interviewed wearing a ‘cops for trump’ T-shirt on Fox News.”

“If progressive local officials want wholesale reform of police tactics and culture, they will have to do something that runs counter to their own culture: take on union leaders. [After all,] Minnesota’s chapter of the American Federation of Labor and Congress of Industrial Organizations—an umbrella group that does not include the police federation—recognizes that Kroll isn’t merely taking his members’ side in a labor-management dispute. In a recent statement calling for Kroll’s resignation, the Minnesota AFL-CIO president, Bill McCarthy, faulted him for trying to justify Floyd’s killing rather than participate in a dialogue about reform. McCarthy also accused Kroll of failing the labor movement. ‘Unions exist to protect workers who have been wronged,” McCarthy declared, “not to keep violent people in police ranks.’”

“I used to say that the majority of officers are good but silently let a minority set the dominant culture. But now I believe that no one can be called a ‘good officer’ if they are not working actively and openly to change the culture and unseat their toxic union leaders. The silence of the ‘good officers’ so far is deafening, but a glimmer of hope came recently when more than a dozen brave Minneapolis officers bucked their union, condemned the officer who murdered George Floyd, and vowed to regain the community’s trust.”[4]

“In general, intimidated local officials overestimate the political muscle of police unions. Their credibility with the public is even more diminished in the aftermath of [George] Floyd’s death. So now is the time to push for reforms that hold police departments more accountable to the public.”

“I am not suggesting that cities should try to bust police unions. Far from it. Working people need and deserve the protections that collective bargaining provides. In a better world, a police-union leader could help the public understand how hard the job can be—but could also set the moral and professional standards for officers, rather than defend them no matter what they do.”

“While the breakdown between the police union and the public’s elected representatives has been especially acute in Minneapolis, I know from my discussions with other mayors that many other communities experience similar tensions. These relationships must be fundamentally reshaped. When cities lack the power to provide basic oversight of their officers and cannot break down an us-versus-them culture, they cannot prevent future deaths like that of George Floyd.”

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[1] Rybak, I Was Mayor of Minneapolis. I Know Why Police Reforms Fail, Atlantic (June 10, 2020). See also Mannix, Killing of George Floyd shows that years of police reform fall far short, StarTribune (June 20, 2020).

[2]  It must not be forgotten that the Minneapolis Chief of Police immediately fired the four officers involved in the killing of George Floyd, that soon thereafter serious criminal charges were filed against all four and the City banned chokeholds and neck restraints under an agreement with the Minnesota Department of Human Rights that was incorporated in a court injunction. See List of Posts to dwkcommentaries—Topical: GEORGE FLOYD CASE.

[3] Jany, Minneapolis police union offers free ‘warrior’ training, in defiance of mayor’s ban, StarTribune (April 24, 2019).

[4] Olson, Minneapolis police officers issue open letter condemning colleague in George Floyd’s death, pledging to work toward trust, StarTribune (June 12, 2020); The Criminal Complaints Against the Other Three Policemen Involved in George Floyd’s Death, dwkcommentaries.com (June 14, 2020).