For real police reform, look behind the scenes

After roiling Minneapolis and its politics for two years, controversy over police reform has of late grown comparatively quiet. But rumblings continue.

Activists and dissenting City Council members complained that the recently approved police union contract did too little to toughen discipline for cop misconduct. Mayor Jacob Frey explained that putting more disciplinary processes into the contract would merely give the union more power to block tighter accountability.

Newly elected Council Member Elliott Payne touted on these pages last month his proposal for a free-standing Public Safety Department that would exist side-by-side with the Minneapolis Police Department, offering alternative services. Payne is one of five council members elected last fall who had supported the effort to replace the MPD outright, which voters rejected.

Frey's search for a new, permanent police chief continues, and he recently proposed a more complete ban on no-knock warrants, following the Feb. 2 shooting death of Amir Locke in a no-knock raid. Prosecutors led by Minnesota Attorney General Keith Ellison's office are reviewing whether to bring charges in the case.

But in the meantime, as I noted almost a year ago, Minnesota's most important reform in police disciplinary processes may be unfolding in a far less visible arena.

The Peace Officer Grievance Arbitration Roster has published a second ruling, invoking a key principle that, if it takes hold, could at last empower law enforcement leaders to hold wayward cops accountable to the high standards the public has a right to expect.

As I've discussed numerous times in this column, mandatory labor arbitration has long posed one of the most demoralizing obstacles to firm discipline in law enforcement agencies across Minnesota, where the integrity and courage of most officers are betrayed by an unworthy few.

State law requires every police department and sheriff's office, as public employers, to allow discipline to be appealed to binding arbitration. It's a system that has too often reinstated fired officers or shortened suspensions, serving as a "broken and flawed" process of second-guessing, in the words of a 2017 lawsuit.

In that suit, the city of Richfield, backed by the League of Minnesota Cities, the Minnesota Police Chiefs Association and others, pleaded with the courts that the existing arbitration process should not be applied to "police officers, who by the very nature of their positions, hold the trust and safety of the public in their hands … ."

Developed to balance the contractual rights and interests of employers and employees, arbitration traditionally has too seldom taken full account of the overriding public interest in, as Richfield's suit put it, empowering "cities and their police chiefs … to [enforce] rigorous accountability and transparency standards" on officers wielding awesome authority.

The Minnesota Supreme Court rejected this plea and upheld the inviolability of arbitrators' rulings.

But two years ago, in the wake of George Floyd's murder, the Minnesota Legislature finally took on arbitration reform. It established a new, special roster of arbitrators exclusively to hear discipline cases involving cops — separate from the general roster of arbitrators maintained by the state's Bureau of Mediation Services to resolve disputes between many other unions and employers.

Most important, the new police arbitrators are assigned to hear specific cases through a simple rotation. They will not be chosen by unions and managements through a long-standing process of elimination that has seemed to many to give arbitrators an exaggerated incentive to split differences.

"We don't have to keep anybody happy," arbitrator Susan Gaertner told me last year. "The only pressure we're under is pressure to do the right thing."

Gaertner, who served 16 years as Ramsey County attorney (1995 to 2011), is the most prominent name on the six-member roster, which also includes former Hennepin County Judge Stephen Swanson and other private and public attorneys and mediators. All are appointed by the governor to staggered terms.

The best evidence that all this has changed something about police discipline in Minnesota may be how few cases the new peace officer arbitrators have decided.

In February, the Bureau of Mediation Services website posted only the second police discipline case since the new arbitration roster took over in the late fall of 2020. Both were decided by Gaertner. (A third case, from Swanson, resulted in no discipline and is therefore not public under state law.)

A good many discipline grievances have been submitted for arbitration over the past 15 months. But Gaertner and Swanson both report that a large number are being settled before final resolution. The three that have been fought all the way to final arbitration awards to date represent a far slower pace than prevailed before the new system was established.

No one can be sure what's causing that change. But it's not unreasonable to speculate that police unions and managements are simply not as confident as they once were that they can calculate the probabilities of winning a given case in front of arbitrators who, as Gaertner says, don't have to keep anybody happy.

In her new ruling Gaertner made a law enforcement union unhappy, as she had done in the first award she posted last year upholding a suspension. The February case was a more serious termination, and in upholding the firing Gaertner invoked a principle that could be essential to more rigorous accountability for cops.

The dispute involved a member of the State Patrol, a technical sergeant whose duties included inspections of commercial vehicles along with normal law enforcement functions of a state trooper. This officer was fired after admitting that he failed to conduct required inspections and filed false reports with the state and federal governments.

The crux of the case was the union's argument that another state inspector — a civilian state employee, not a sworn law enforcement officer — had committed the same misconduct as the terminated trooper and had suffered only a suspension. (Interestingly, Gaertner noted how managers had discussed worries that a termination of this public employee "would be overturned by an arbitrator.")

Often in arbitration cases, employers lose when they have failed to give the same treatment to employees who committed similar misdeeds. But Gaertner ruled that a sworn law enforcement officer is not the same as a civilian employee and "ought to be held to a higher standard … ."

A trooper, she wrote, "enforces laws relating to critical public safety issues such as DWI's, guns and drugs … . They can serve warrants, and seize individuals and property. They carry a weapon. They are authorized to use deadly force where appropriate. None of that can be said of [civilian inspectors]. The public rightfully expects that with such authority comes great responsibility."

Cops, if I may translate, are different, holding "the trust and safety of the public in their hands." The public's rightful expectations must restrain any "second-guessing" of law enforcement leaders enforcing "rigorous accountability and transparency standards … ."

If such a principle continues to inform arbitration of police discipline cases, useful change may just come.

D.J. Tice is at doug.tice@startribune.com.