Richfield challenges arbitration system, saying it keeps problem cops on the job

Two times, the city of Richfield has lost its fight to fire police officer Nate Kinsey, who was captured on video in 2015 shoving a local teenager and smacking him in the head during an incident in a city park.

First an arbitrator ordered Richfield to rehire Kinsey, then a judge declined to reverse the arbitrator.

Now Richfield officials are taking their case to the Minnesota Court of Appeals and mounting a broader challenge to what they call a "broken and flawed" arbitration system that keeps problem officers on the job.

They have been joined by the League of Minnesota Cities and the Minnesota Chiefs of Police Association, which filed a joint friend-of-the-court brief earlier this month.

"There can be no trust between law enforcement and the diverse communities [it] serves unless cities and police can mandate that officers comply with rigorous accountability and transparency standards whenever they use force on the public," the league and the chiefs' association said in their brief.

The union that represents Kinsey flatly rejects the notion that Minnesota's arbitration system is broken.

"There's always going to be outcomes that either the union or the employer are not happy with," said Isaac Kaufman, general counsel for Law Enforcement Labor Services Inc. (LELS), the state's largest police union.

The appeals court is likely to hear arguments in the case in December or January.

The controversy dates to October 2015, when Kinsey answered a call to Richfield's Adams Hill Park from a woman complaining about a group of Somali youths driving erratically. She said one nearly hit her while she was walking her dog.

Kinsey pulled over Kamal Gelle, then 19, who didn't have his driver's license or insurance card.

Cellphone video tweeted at the time and broadcast in a clip on WCCO-TV showed Kinsey using foul and abusive language toward Gelle and his friends, eventually pushing Gelle, striking him in the back of the head and threatening the group, saying "I'll f--- every one of you f------ up."

Kinsey didn't report the incident, even though officers are required to report encounters involving use of force.

Kinsey had a prior history of using excessive force and problematic report writing, according to the city's brief, and had received "extensive" counseling and remedial training for both, although he was only formally disciplined once. One of the earlier incidents resulted in a $150,000 payout.

In 2016 the city fired Kinsey. No criminal charges were filed, but the city paid out nearly $50,000 to settle Gelle's claim that his civil rights were violated. Gelle's lawyer, Lindsay Lien Rinholen, said the young man is out of the country and his family didn't want to comment for this article.

Kinsey, 42, declined requests for an interview. A Cottage Grove resident and the father of two teens, Kinsey has not returned to the Richfield force, nor is he on administrative leave, because the city considers him terminated.

In late 2016, arbitrator Charlotte Neigh overturned the discharge, arguing that under the circumstances Kinsey's force was not excessive. She ordered him reinstated with back pay and reduced his discipline to a three-day suspension for failing to write a report.

Cities rarely appeal arbitration decisions because state law offers so few reasons courts can overturn them, said Minneapolis employment lawyer Marshall Tanick.

But Richfield went to Hennepin County District Court, asking that Neigh's decision be vacated under what's known as a public-policy exception — when the public interest in a case is so important that it outweighs the terms of a labor agreement.

That exception has been used only once in Minnesota to vacate an arbitration award, according to LELS, in a 2001 case involving a Brooklyn Center police officer fired for a long pattern of sexual harassment. The state Court of Appeals ordered a lower court to vacate an arbitrator's decision, holding that the officer's reinstatement would violate clear public policy requiring governments "to prevent sexual harassment and sexual misconduct by law enforcement officers."

In Richfield's case, however, the judge said no.

Labor unions have included arbitration in contracts for many decades, allowing employees to "grieve," or challenge, discipline and use neutral arbitrators to settle disputes.

Arbitrators are supposed to be the "final judge of law and fact," said Kaufman, the union lawyer.

Now, the effort to vacate Kinsey's arbitration ruling has touched off a vigorous statewide debate.

Kaufman acknowledged that there is a well-defined public policy saying officers should not use excessive force, but argued that there is no clear public policy saying they cannot be reinstated if they engage in it, according to the union's brief.

Other unions, such as the International Brotherhood of Electrical Workers, are weighing in on the Richfield case. They see the appeal as a push to expand the public policy exception.

"It is fair to assume that if this arbitration award were vacated under the public policy exception that we would see a lot more of these arbitration cases being taken to court by employers," Kaufman said. "That has some very serious implications for all organized public employees in the state."

For their part, police chiefs across Minnesota are sympathetic to Richfield's case, said Andy Skoogman, head of the police chiefs' association.

"They fire employees and are forced to rehire them," Skoogman said. "Or more often, they are advised by legal counsel not to fire employees because in the end, they are only going to return to work. It's crystal clear that the arbitration system is beyond broken."

The Richfield case places Minnesota squarely in the middle of a national controversy, said Chuck Wexler, head of the Police Executive Research Forum, a national think tank.

"It screams for change and I don't think the public is necessarily aware of how egregious this arbitration system is and how it works against disciplining problem officers," he said. "It is a source of enormous frustration from police chiefs across the country."

In Minnesota, no one has studied the track record of police arbitration, according to University of Minnesota law Prof. Stephen Befort, an arbitrator and authority on labor law.

When a U law student named Tyler Adams looked specifically at arbitrated disputes over police firings nationally from 2011 to 2015, he found that officers won just less than half their cases and employers won just more than half. That's similar to the outcomes of arbitrations over job terminations in all unionized professions in Minnesota, not just police, said Befort.

Both studies defined a win as a complete victory; a discharge that was reduced to a suspension, for example, was deemed a split outcome.

The Star Tribune analyzed 235 police discipline arbitration awards logged with the state Bureau of Mediation Services since 1995, counting any reinstatement a "win" regardless of terms. About 43 percent of all awards favored the officer and 49 percent favored management.

Counting only 99 rulings involving a job termination, police won 53 and employers won 45. One was a tossup.

To Richfield City Manager Steve Devich, rehiring Kinsey would violate public policies that require cities to protect citizens and hold officers to high standards of conduct, such as those set by the state Peace Officer Standards and Training Board.

The Hennepin County judge ruled that Richfield failed to show a clear public policy that officers who have used excessive force should be terminated or prohibited from being rehired.

Devich insists the public policy rationale "is there."

"Somewhere, somehow along the line, somebody higher up has to see that," he said.

Jennifer Bjorhus • 612-673-4683