Collective Bargaining
Currently unions have control over police officer retention, even when officers actions are a violation of civilian civil liberties, assault, or result in death. Police union contracts are barriers to police accountability; it is vital to remove police accountability from the collective bargaining process.
Importance
Police, like all employees, deserve contracts that provide for fair wages, benefits, and good working conditions. However, accepting current police contract standards and practices to address police misconduct as “working conditions” that cannot be determined by police management and local government leaders outside the bargaining process, makes it impossible to hold police accountable for their actions.
Why Care?
This bill removes police accountability from collective bargaining and requires public participation in the development and establishment of accountability systems and processes for serious police misconduct.
Unlike most public employees, law enforcement officers, in the course of duty, have the authority to interfere with the life and liberty of civilians as well as use of deadly force. The systems of accountability that address serious officer misconduct are subject to collective bargaining along with pay, benefits, and good working conditions. Because union contract negotiations are “behind closed doors” (in secret), the public is unable to observe (or track) how policies related to misconduct are set and whether their interests are being considered. Too often, accountability measures are watered down and when the system is put to a test, the local jurisdictions or police departments are unable to impose meaningful discipline on officers who have overstepped bounds.
This inability to impose administrative accountability on law enforcement is frustrating to community members, who are primary stakeholders not represented at the bargaining table. The public’s options for recourse in engaging with a faulty system are limited and ineffective because accountability systems are weak and accessible public figures are not empowered to act. Police chiefs do not have ultimate authority in disciplining or removing problematic officers. Local governments can pass ordinances, but under current state law, when there are conflicts between local law and the Police Guild collective bargaining agreements (CBAs), the CBA prevails. Without robust accountability mechanisms, reform is near impossible as remaining avenues such as training or department policy are easily and routinely ignored.
Examples in Spokane
Center for Justice: new contract does not include investigative powers for ombudsman
In 2013, City of Spokane voters approved embedding the independence of a civilian oversight agency (Office of Police Ombudsman) in the city charter. However, the collectively bargained contract with the Spokane Police Guild did not honor the public’s will and did not include investigative powers for the ombudsman.
Despite voter-approved measure making labor bargaining public, Spokane Police Guild negotiations to remain closed
In 2019, Proposition 1 was approved by 76% of Spokane voters to make bargaining between City of Spokane and public employees public. However, negotiation of the Spokane Police Guild contract remained behind closed doors and the resulting contract was rejected by Spokane City Council in June 2020 because independent oversight of the Spokane Police Department was not ensured.
The Issue
Officers’ arbitrators routinely substitute their own judgment on discipline, overturning chiefs’ decisions, ordering officers who committed serious misconduct to be reinstated. Police are not the same as other public sector employees, as police carry and use guns, they can take your liberty, including using deadly force to take your life. The provisions in police contracts can have very different impacts on the public than similar provisions in other public sector contracts. Police contracts no longer just address wage, benefits, and other subjects traditionally thought of as “working conditions,” as other labor contracts do. Instead, police contracts have been used to shield officers from accountability when misconduct occurs, diminish transparency, and preclude or weaken civilian oversight.
This weakens the chief’s power to hold officers accountable in line with public expectations, allowing arbitrators to overturn disciplinary decisions for any number of reasons, including minor procedural issues, even in cases where the chief’s decision is supported by a preponderance of evidence. It allows hearings to be closed to complainants, the public, and the media, and allows months, if not years, of delay before appeals are resolved. As of August 2020, Seattle has 80 appeals pending, some going as far back as 2016.
If a complaint of misconduct involving use of excessive force is not made within a certain period of time, or if a complaint isn’t fully investigated within 180 days, the officer cannot be disciplined, regardless of the misconduct or the reason for the delay. How the days are counted is vague and subject to challenge. The burden of proof required to prove misconduct has been raised to an undefined “elevated” standard for any termination that results from misconduct that could be considered “stigmatizing” to the officer. Only certain misconduct complaint and investigation files are retained; others must be purged. Civilian oversight is limited when the alleged misconduct is criminal, even though these cases often involve the most serious types of misconduct. Civilian oversight subpoena authority has been narrowed. Officers are allowed to use vacation and sick leave when the discipline is supposed to be days without pay. Officers under investigation – and their union representatives – are allowed to withhold relevant information during the investigation and raise it later, as evidence to challenge discipline. Officers’ names must be redacted when case information is made available to the public.
The state could increase transparency and public participation in the development of police disciplinary procedures. They could require police unions to negotiate disciplinary procedures in public hearings rather than behind closed doors or require municipalities to establish notice-and-comment procedures, similar to those employed by administrative agencies, before agreeing to a package of disciplinary procedures via the collective bargaining process or most effectively, states could amend labor laws to remove police disciplinary procedures from the list of appropriate subjects for collective bargaining.
Unions help police negotiate higher pay and better working conditions. But critics say they also shield members from accountability.
Long description: Police have been granted extraordinary powers to use discretion in a range of ways that have enormous impact on the public, including taking away liberty and the use of deadly force. Legal and procedural safeguards against police abusing these powers in ways that undermine public trust should not be subject to the give and take of collective bargaining. Collective bargaining in police department contracts unreasonably interfere with or otherwise limit the effectiveness of mechanisms designed to hold police officers accountable for their actions. For example, many of these contracts limit officer interrogations after alleged wrongdoing, mandate the destruction of officer disciplinary records, ban civilian oversight of police misconduct, prevent anonymous civilian complaints, enable discipline decisions to be overturned by arbitrators, etc.
Examples in Seattle
Details and critics emerge for new Seattle police contract
In the wake of Charleena Lyles' killing by police officers, SPOG argued that body cameras would have to be negotiated as part of CBA instead of just mandated as department policy. Subsequently, it was an issue that was leveraged for pay raises in the 2018 negotiation. As stated above, constitutional policing should be a minimum requirement, not a bargaining chip.
Judge vacates arbitrator's ruling in Adley Shepherd case (UPDATED)
The SPOG led petition for reinstatement of Adley Shepherd specifically points to CBA's as a reason why he shouldn't have been terminated. It took a Superior Court Judge to overturn the arbitration decision that would have reinstated Shepherd. The Federal Judge enforcing the 2012 Consent Decree also felt that the way SPD handled the Shepherd termination was indicative of the department no longer being compliant. This is an example of SPOG's use of CBA's as their main line of defense when evading enforcement of accountability by City, County, and Federal authority.