“Arbitrating Your Safety Away” by David Packman

Dr. Q recently wrote about BART officer Marysol Domenici, who was present when Oscar Grant was murdered by Officer Mesherle in 2009, being reinstated due to the decision of an arbitrator. Officer Domenici spent 15 months on paid leave and was then fired in March for being dishonest about what she saw on the BART platform that fateful night. She will receive full back pay.

David Packman over at Injustice Everywhere wrote an article about arbitrators and how they are an obstacle to police accountability. The article was written over a year ago, but it is as relevant as ever, especially in light of Officer Domenici’s reinstatement.

Pittsburgh Pennsylvania police have been ordered to rehire a police officer who shot an innocent man in the hand when his gun went off while he was pistol whipping him while drunk after confusing him for a person he alleged had assaulted him.

Worcester Massachusetts police have been ordered by a permanent arbitrator, who was chosen by name by the police officer’s union, to rehire a police officer who was accused of chasing down and pistol whipping two 15-year-old and a 14-year-old kids for trespassing on his lawn. The police chief there has vowed to appeal claiming the arbitrator was biased in his decision.

Springfield Massachusetts police have been forced to rehire a police officer with an extensive history of complaints and suspensions who was fired on allegations that he used a racial slur when he injured two women during an off-duty bar brawl.

West Palm Beach Florida is ordered to rehire a police officer who punched an unarmed and handcuffed suspect several times on video. That officer had been fired and rehired once before for altering doctor’s notes in order to receive workers compensation.

A Toledo Ohio police sergeant is greeted with protests after police department is ordered by arbitrator to rehire him despite being found guilty of threatening to arrest a woman at a convenience store if she did not have sex with him. The officer is currently under investigation again for alleged unsuitable comments made to home invasion victims.

A Cincinnati Ohio police officer who had been rehired after an arbitrator’s ruling in 2007 is found to have used excessive force yet again after tasering a councilman’s daughter in the back during a traffic stop while she was on her knees and compliant.

These are just a few of the examples of arbitrators who have forced local governments to rehire police officers who were disciplined by firing for alleged acts of misconduct in the last couple of months. While there are other examples of officers who are forced back upon reluctant law enforcement agencies through use of civil service boards and courtroom appeals, arbitration is one method that tends to overturn decisions to fire most often and is least understood by the general public.

The use of arbitration to settle labor disputes isn’t new, having been a means to resolve labor issues for well over a century, but it’s use to resolve labor issues between law enforcement unions and their employers isn’t as long-standing and is far more controversial.

The problem is that labor arbitrators have a single goal, being to find some way to resolve a labor dispute in a way that can satisfy both parties if at all possible. This is fine for a dispute between a steel worker or other type of private industry employer and his or her employee, but has certain ramifications when applied to public safety officials entrusted with special rights with which to enforce the law, namely the ability to deprive citizens of freedom or use deadly force at their discretion.

For an arbitrator, concerns of public safety tend not to have any ramification to their decision making process when faced with a dispute over law enforcement officer discipline. Mainly an arbitrator is concerned with whether or not the discipline was legal, whether it compares with the disciplinary history of that department for similar offenses, and whether there is any way to salvage the law enforcement officer’s job with that department.

This set of guidelines biases labor arbitrators in favor of law enforcement officers as the arbitrator is essentially looking for any reason whatsoever to overturn a disciplinary action and will only sustain it if no possible reason to overturn it exists.

Sure, this is great for the police officer in question, but very problematic for the public and specifically for any victims that police officer may have left in his wake during an act of misconduct… which is the other problem with arbitration.

In arbitration the dispute is between employee (the officer) and the employer (the police department) and only those two parties are entitled to any representation within the arbitration hearings. Therefore an arbitrator never hears arguments from the officer’s victims or gets to hear any perspectives or concerns from a party that represents the general public.

Additionally, an arbitrator is not held liable for what a police officer he orders returned to duty does with the police powers that officer is granted by the government. So, arbitrators really have no vested interest in considering public safety when they decide in a law enforcement officer’s favor… after all, they don’t have to pay for the lawsuits when the local government is sued, or have to face jail time when the officer commits a crime, or apologize to the victims of a police officer’s misconduct.

This is problematic because it’s the public that faces the greatest potential harm caused by an arbitrator’s decision to overturn disciplinary action taken against a police officer and the news is rife with stories of officers who have been returned to their jobs based on arbitrator rulings only to go on to harm others yet again… sometimes even after multiple arbitration rulings returning them to the job.

While it can be a bit confusing why local governments agree to arbitration resolution clauses in law enforcement union contracts, the reasons vary between a bargaining chip used to slow down pay increases to police officers during contract negotiations to state laws that mandate the use of arbitrators.

No matter which reason, it’s nearly impossible for a local government to take the right to arbitration away from a law enforcement union under contract because the alteration of the disciplinary process must be agreed to by the union, and once they have the ability to appeal firings through arbitration in addition to other options, they never let it go and local governments cannot force them to do so.

For example, Cincinatti Ohio recently decided to review their arbitration agreement with their police union after all but 2 of 18 cases were ruled in favor of law enforcement offices and the two cases weren’t matters of employment termination. This came to a head when one officer who was returned to work tasered the daughter of a council member… and even now the city says it’s likely an arbitrator would overturn the decision to fire him now, so they won’t even try. While the city says it intends to review that agreement, there’s no way for them to offer enough incentive to the union to allow it’s modification.

The same is true for Worcester Mass where the police union there managed to not only get the city to agree to use arbitrators to resolve employment disputes with officers, but also got to name their choice of arbitrators that the city must use. That choice is proving problematic with the city now that they have found him to be biased towards officers when he overturned the decision to fire an officer who pistol whipped three teens.

Some may argue that the use of arbitration isn’t much different than when police unions can appeal through civil service boards or the courts given the built in biases in both of those methods of labor dispute resolution. However, at least through the court the matter of risk to public safety is recognized as a legitimate argument and with civil service boards the city can chose at least some of the members on those boards…

With arbitrators, local governments don’t often have too much say once they are bound to use one through contractual agreements and there is no real concern for public safety or public outcry by arbitrators who are not elected officials and who cannot be fired by elected officials. Thus they have no accountability for the decisions they make that may imperil the public when they return problematic officers to duty.

What can be done once a local government agrees to the use of arbitration or a state government mandates it? Not much other than pressuring state government to recind it, which is nearly impossible due to police union lobbyist efforts and the law itself which holds the contracts between local governments and police unions inviolate.

The only thing that can be done is to pressure local governments not to enter into such agreements in the first place and to make sure any statewide, or even federal, efforts to force the use of arbitrators are halted before they are put into effect.

Otherwise, once police officers have the option to use arbitrators to get their jobs back when they are fired for misconduct, they never let it go and there isn’t anything anyone can do, short of disbanding the police department and starting over, to take that loophole out.