Originally published in Broad + Liberty.
Police reform became a top public issue in May after George Floyd’s death at the hands of Minneapolis police. But the subject is not a new one. Look no further than the multiple, years-long FBI investigations into alleged abuses by Philadelphia narcotics officers. Six were fired for their conduct, but, despite convincing evidence, police union leaders succeeded in getting all of them reinstated with back pay.
While such behavior is rare—less than 10 percent of officers are investigated for misconduct—the inability to properly discipline bad actors in police departments is not. Records show that officers who consistently accumulate complaints often manage to keep their badges because of protections built into union contracts.
In fact, police departments with collective bargaining have more excessive-force complaints and higher rates of officer misconduct than those without. As the Police Practice and Research journal summarized, “Virtually all of the published items that express an opinion on the impact of police unions regard them as having a negative effect, particularly on innovation, accountability, and police-community relations.”
Unfortunately, the negative effect of collective bargaining is not limited to police unions. Government unions—whether for police, teachers, or state workers—often create harm in the community by protecting bad employees. Now more than ever, state and local government must address the politicized, union-negotiated police processes with an infusion of transparency and accountability.
Pennsylvania’s Act 111 allows police unions to negotiate contracts in closed-door meetings with politicians to whom unions donate significant amounts of money. While these contracts previously covered only salary and benefits, public officials have increasingly forfeited crucial management responsibilities to unions—including political perks and disciplinary measures that now circumvent responsible policing.
Collective bargaining agreements often allow officers to appeal disciplinary sanctions to an arbitrator who reconsiders virtually all factual and legal decisions and can force departments to rehire or significantly reduce discipline. The results are striking. Here in Philadelphia, the police department rehired 62 percent of terminated officers between 2006 and 2017.
Often, arbitrators don’t dispute the underlying misconduct. They simply find technical violations in the discipline process. Even if police leadership appeals, judicial presumption is to let arbitrators’ decisions stand.
The secrecy shrouding contract negotiations extends to the discipline process as well. Pennsylvania is among 23 states with largely confidential police disciplinary history. And many contracts dictate record purging. So, while police leaders and local elected officials must ultimately account for their decisions to the public, individual officers’ conduct is obscured and investigations of their actions are hampered.
That’s why legislators across the political aisle have introduced police discipline and transparency reform proposals, which include exempting certain infractions from arbitration, expanding public access to disciplinary records, making collective bargaining
More can be done in addition to the current proposals; for example, we should ensure disciplinary hearings are held within a reasonable timetable. Delayed decisions allow for disciplinary decisions to be made after an officer retires or public scrutiny fades. Instead, officials and arbitrators should be immediately held to account for their decisions, including any failure to uphold due process.
Importantly, these valuable reforms will only have a lasting effect by addressing the shadow of government union privileges and power.
At the state level, government unions have successfully lobbied lawmakers to vote against legislation that would have ended the government-funded collection of unions’ political money. This was a significant good-government reform, considering public-sector unions (such as police) have spent over $138 million on state politics since 2007—including money given to officials with whom unions negotiate contracts and lobby to oppose reform.
Unions’ financial influence over politicians and their effective anti-reform lobbying leads to harmful legal protections. The Philadelphia police union, for instance, opposed an independent commission to investigate police shootings and resisted efforts to reform police discipline.
We must address this conflict of interest, or the power of political funds will outweigh the power of justice. Elected officials, police management, and union leaders must take responsibility for the policing and discipline process. Reforms that expose this unsustainable and unjust system will usher in the transparency and accountability needed to reestablish the trust upon which public safety depends.