Fired Minnesota officers have a proven career saver: arbitration

One Min­ne­so­ta of­fi­cer was fired for kick­ing an un­armed sus­pect who was al­read­y on the ground be­ing at­tacked by a po­lice dog.

An­oth­er was fired for re­peat­ed­ly punch­ing a hand­cuffed, in­toxi­cat­ed man in the face.

A third was fired af­ter fail­ing to write up near­ly four doz­en cases, copy­ing a judge's sig­na­ture onto search war­rants and ly­ing dur­ing the in­ves­ti­ga­tion.

They all got their jobs back, gun and badge in­tact.

The kill­ing of George Floyd by a Min­ne­ap­olis po­lice of­fi­cer trig­gered rage and a fresh wave of re­solve to re­form polic­ing in the Unit­ed States. It has also prompt­ed re­newed scru­ti­ny of Min­ne­so­ta's sys­tem for dis­ci­plin­ing po­lice of­fic­ers, one that sets the bar high for fir­ing of­fic­ers for mis­con­duct.

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, ac­cord­ing to a Star Tribune an­aly­sis of de­ci­sions logged with the Min­ne­so­ta Bureau of Me­di­a­tion Services.

The true fig­ure could be slight­ly high­er. 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 ar­bi­tra­tion re­cords in­clude 10 cases in­volv­ing Min­ne­ap­olis po­lice of­fic­ers. Eight of them got their jobs back — one of them twice.

Al­though the Min­ne­ap­olis Police Department quick­ly fired the four of­fic­ers in­volved in Floyd's death, it doesn't typ­i­cal­ly fire many of­fic­ers. As­sist­ant Chief Mike Kjos said there are more sepa­ra­tions than ar­bi­tra­tion re­cords in­di­cate. Some cases nev­er go to ar­bi­tra­tion, and some are ne­go­ti­ated and clas­si­fied as res­ig­na­tions or re­tire­ments. Plus, the de­part­ment can't make a ter­mi­na­tion pub­lic un­til the griev­ance proc­ess has played out.

The fact that fir­ing an of­fi­cer could end up in ar­bi­tra­tion — and be re­versed — weighs on de­ci­sions to of­fi­cial­ly ter­mi­nate, Kjos said.

At a June 10 news con­fer­ence an­noun­cing his with­draw­al from con­tract ne­go­tia­tions with the Police Officers Federation of Min­ne­ap­olis, Chief Medaria Arradondo not­ed the dis­ci­pline and ar­bi­tra­tion proc­ess as areas need­ing re­form.

"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," Arradondo said.

He re­peat­ed that Thurs­day at a news con­fer­ence with May­or Ja­cob Frey and sev­er­al oth­er elect­ed of­fi­cials from around the Twin Cities. If the Leg­is­la­ture is se­ri­ous a­bout mak­ing chan­ges, they said, it will tack­le ar­bi­tra­tion.

Police re­form ef­forts, how­ever, col­lapsed at the Leg­is­la­ture Sat­ur­day as the spe­cial ses­sion end­ed with­out the Democrat-con­trolled House and Republican-con­trolled Senate find­ing mid­dle ground on those is­sues.

Rep. Mi­chael How­ard, DFL-Richfield, who auth­ored the House ar­bi­tra­tion re­form bill, blamed the Senate: "Giv­en the im­por­tance of this mo­ment and with the world watch­ing, it is deep­ly dis­ap­point­ing that the Senate chose to ig­nore Min­ne­so­tans cry­ing out for change and in­stead walk away."

The Bureau of Me­di­a­tion Services says po­lice of­fic­ers win their jobs back at rough­ly the same rate as oth­er pub­lic-sec­tor em­ploy­ees.

Vet­er­an ar­bi­tra­tor Lau­ra Coop­er, a re­tired University of Min­ne­so­ta la­bor law pro­fes­sor, said ar­bi­tra­tion is not a mono­lith­ic thing. It's a crea­ture of a­gree­ment that can be al­tered. If em­ploy­ers don't like the dis­cre­tion ar­bi­tra­tors have, they should change their la­bor un­ion con­tracts, she said, to re­quire spe­cif­ic con­se­quences for spe­cif­ic vio­la­tions of per­form­ance stand­ards.

The proc­ess is de­signed to pro­tect un­ion em­ploy­ees from ca­pri­cious de­ci­sions by em­ploy­ers, with a "just cause" stan­dard for ter­mi­na­tion that has been u­ni­ver­sal­ly ac­cept­ed in col­lec­tive-bar­gain­ing agree­ments, said Coop­er and la­bor unions. Ar­bi­tra­tors are neu­tral and look just at the facts, they say.

Ar­bi­tra­tion num­bers cap­ture only a frac­tion of the Min­ne­so­ta of­fic­ers fired each year, ac­cord­ing to Law Enforcement Labor Services, the state's larg­est law en­force­ment un­ion. Only the most dif­fi­cult cases end up in ar­bi­tra­tion, it says, and it's un­fair to use them to judge po­lice dis­ci­pline. If law en­force­ment de­part­ments are los­ing cases, they need to look at how they're han­dling their dis­ci­pline, said Sean Gorm­ley, the un­ion's ex­ec­u­tive di­rec­tor.

Police chiefs have de­cried ar­bi­tra­tion as a ma­jor ob­sta­cle to po­lice ac­count­a­bil­i­ty. The high chance that a fired of­fi­cer will be back in u­ni­form under­cuts the en­tire dis­ci­pli­nar­y sys­tem, said Chuck Wex­ler, ex­ec­u­tive di­rec­tor of the Police Executive Research Forum, a Wash­ing­ton, D.C., think tank.

In Min­ne­ap­olis, some of­fic­ers have gotten their jobs back not once, but twice.

Ja­son An­der­sen was fired in 2009 for a mis­de­mean­or do­mes­tic as­sault charge that was later dis­missed. An ar­bi­tra­tor or­dered him re­instat­ed af­ter con­clud­ing there wasn't en­ough evi­dence the as­sault oc­cur­red.

He was fired a­gain in 2010 af­ter al­leg­ed­ly kick­ing a teen in the head and be­ing un­truth­ful a­bout it dur­ing an in­ves­ti­ga­tion. An ar­bi­tra­tor or­dered him re­instat­ed a­gain af­ter con­clud­ing that An­der­sen, who told in­ves­ti­ga­tors he couldn't re­call the de­tails but knew he did not kick the teen in the head or face, could not be ex­pect­ed to re­mem­ber an e­vent from a year earli­er with­out see­ing his re­port on it, which he was not al­lowed to see.

An­der­sen was not fired, how­ever, for shoot­ing and kill­ing Fong Lee, a teen who was run­ning from po­lice in 2006. He was cleared of crim­i­nal wrong­do­ing and in a wrong­ful-death law­suit af­ter a fed­er­al jury found he used rea­son­able force. He's now the MPD's chap­lain co­or­di­na­tor.

Most re­cent­ly, an ar­bi­tra­tor last fall over­turned Arradondo's de­ci­sion to fire Officer Peter Brazeau, who had re­peat­ed­ly punched a bel­lig­er­ent drunk man in the face as the man lay hand­cuffed on his back.

The ar­bi­tra­tor agreed that Brazeau vio­lat­ed the use-of-force pol­icy but re­duced his dis­ci­pline to an 80-hour sus­pen­sion. Ac­cord­ing to the de­ci­sion, the rea­son was that po­lice lead­er­ship had en­ough con­fi­dence in Brazeau to ap­point him a train­ing of­fi­cer while the mat­ter was churn­ing through the dis­ci­pline proc­ess, and also be­cause of the MPD's "lack of spe­cif­ic train­ing as to how to deal with a hand­cuffed in­di­vid­u­al who con­tinues to kick, flail and re­sist."

An MPD spokes­man said nei­ther An­der­sen nor Brazeau could com­ment for this sto­ry.

The House ar­bi­tra­tion re­form sought to change the way ar­bi­tra­tors are cho­sen for po­lice mis­con­duct dis­putes. It called for an ar­bi­tra­tor to be auto­mat­i­cal­ly as­signed from a ros­ter of spe­cial­ists ap­point­ed by the gov­er­nor.

Cur­rent­ly, the em­ploy­er and un­ion take turns strik­ing an ar­bi­tra­tor from a list of seven as eith­er too pro-em­ploy­er or too pro-em­ploy­ee, un­til only one re­mains. Critics say that cre­ates an in­cen­tive for ar­bi­tra­tors to main­tain a 50-50 re­cord. Em­ploy­ers and unions typ­i­cal­ly split the cost of an ar­bi­tra­tor.

Tes­ti­fy­ing re­cent­ly at the State Capitol, Coon Rapids Police Chief Brad Wise dis­cussed the ef­fects of hav­ing dis­ci­pline over­turned.

"There's noth­ing worse, in my view, for an or­gan­i­za­tion than to lose an ar­bi­tra­tion," Wise tes­ti­fied. "I think it cre­ates dis­trust with­in the work­place. Frank­ly, it saps the con­fi­dence of a po­lice lead­er. And it makes po­lice lead­ers be re­luc­tant to even let cases go to ar­bi­tra­tion for fear of los­ing them."

Andy Skoogman, ex­ec­u­tive di­rec­tor of the Min­ne­so­ta Chiefs of Police Association, called How­ard's meas­ure a step in the right di­rec­tion. His group wants all po­lice of­fi­cer ter­mi­na­tion cases heard by an ad­min­is­tra­tive law judge.

The legis­la­tive push fol­lowed un­suc­cess­ful court chal­len­ges to ar­bi­tra­tors' de­ci­sions.

The city of Richfield dug in its heels af­ter its po­lice chief fired an of­fi­cer in 2016 af­ter he ver­bal­ly at­tacked a So­ma­li teen and smacked him on the head. A­mong oth­er things, Nate Kin­sey failed to re­port his use of force as re­quired. An ar­bi­tra­tor con­clud­ed Kin­sey's smack was not ex­ces­sive and or­dered him re­instat­ed, cut­ting the dis­ci­pline to a three-shift sus­pen­sion and full back pay.

The Min­ne­so­ta Su­preme Court last year full­y backed the ar­bi­tra­tor's de­ci­sion; Kin­sey is back on the Richfield force.

Du­luth, too, lost its chal­lenge to an ar­bi­tra­tor's de­ci­sion to re­in­state an of­fi­cer who dragged an in­toxi­cat­ed, hand­cuffed man 100 feet. In De­cem­ber, the state Su­preme Court de­nied its pe­ti­tion for re­view.

Coop­er, the ar­bi­tra­tor, said she'd be "shocked" if any ar­bi­tra­tors were track­ing their mix of de­ci­sions in the man­ner the chiefs as­so­ci­a­tion sug­gests.

"I think it's scape­goat­ing," she said. "Nine­ty to 95% of the time if you ac­tu­al­ly read the de­ci­sion, it makes per­fect sense."

Ar­bi­tra­tors work hard, she said, to weigh multi­ple fac­tors to de­ter­mine wheth­er there was just cause for ter­mi­na­tion. The most com­mon rea­sons chiefs lose a case, she said, is that the in­ves­ti­ga­tion was not thorough, they didn't prop­er­ly noti­fy the of­fi­cer the be­hav­ior was wrong, or they im­posed dis­ci­pline that dif­fered from what oth­er of­fic­ers re­ceived in sim­i­lar cir­cum­stances.

In her mind, pre­vent­ing ex­ces­sive-force mis­con­duct is a more ef­fec­tive way to im­prove ac­count­a­bil­i­ty, she said. That means clear rules, bet­ter train­ing and strong su­per­vi­sion.

Said Coop­er: "I want a sys­tem that stops kill­ing peo­ple un­just­ly."