Report bashing MPD whitewashed arbitration flaws

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A witticism long used to skewer my profession declares that "the news media is very accurate — except whenever they report on a subject I know something about."

I notice that sort of exception from time to time — and not only in the claims of journalists. I noticed what struck me as a doubtful conclusion (within a document oozing authoritativeness from every pore) when I read the Minnesota Department of Human Rights' damning report last month on the discriminatory practices of the Minneapolis Police Department.

I can neither refute nor confirm the report's allegations about racially disproportionate traffic stops, arrests, searches, uses of force, etc., etc. — or its many criticisms of the Police Department's internal disciplinary processes for correcting or jettisoning bad cops.

But when, in a brief but critical section, the report essentially dismisses the idea that state-mandated arbitration of disciplinary disputes has played a role in making it too hard to manage wayward officers, it goes astray.

And this matters, because many people who know something about arbitration and the role it has long played — people at the Minnesota Chiefs of Police Association, the League of Minnesota Cities, the Legislature, etc. — have been working hard these past few years, since the death of George Floyd, to enact the first meaningful reform of this system in decades.

The political power of public employee unions makes reform in such matters difficult. If an overzealous animus toward the Minneapolis police, or police in general, were to once again obscure arbitration's flaws and prevent their being corrected, the cause of real public safety reform will suffer.

As I've noted often in this column, 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 Chiefs of Police Association and others, pleaded with the courts that the existing arbitration process should not be applied to "police officers, who ... hold the trust and safety of the public in their hands … ."

That suit was ultimately unsuccessful, but the call for reform, as noted, finally brought legislative action in 2020, although it remains unclear how much change it will make. The chiefs of police and cities continue to call for still more sweeping arbitration reform where sworn law enforcement officers are concerned.

Minneapolis, in any case, has suffered its full share of defeats in arbitration over the years. But the Human Rights Department basically says this is the city's own fault — the result of "preventable factors within the control of the City or MPD." Fired cops have been reinstated or discipline has been softened because of delays in investigations or inconsistencies in discipline for similar cases or other "actions and inactions taken by the City and MPD."

The report notes that "between January 2010 and April 2021, about 20 [MPD] discipline decisions went to arbitration." It makes much of the fact that "in all but one of those cases, an arbitrator agreed with the City and MPD that some form of discipline was warranted."

But this is merely evidence of "second guessing." One of the primary complaints among critics of arbitration has long been that arbitrators have an incentive to split differences. Generally chosen for this well-paid work by agreement between the unions and managements whose disputes they judge, arbitrators very often agree "that some form of discipline was warranted" — just a lesser form than the department imposed.

Various calculations have shown that fired cops are reinstated by arbitrators roughly half the time.

Across the state of Minnesota, not just in Minneapolis, I counted 89 law enforcement terminations adjudicated by state arbitrators between January 2010 and April 2021. Of those, 40 firings were overturned in favor of lesser discipline. There were likely more reinstatements, since cases in which arbitrators impose no discipline do not appear on the Bureau of Mediation Services website.

But perhaps a case study could more clearly make the point that it's not just MPD that has had trouble getting discipline upheld by arbitrators.

In April, the very month that the Human Rights Department's MPD report was issued, the state of Minnesota itself had a termination overturned by an arbitrator. The arbitrator on this case is one who serves on the regular roster of arbitrators. Until 2020, these arbitrators had heard all cases, including police cases in Minneapolis and elsewhere.

In this April decision, the Department of Corrections had fired a senior supervisor at the women's prison in Shakopee.

The problems concerned sexual harassment and bullying and included the supervisor complaining to subordinates about other subordinates' faults, holding forth on the prevalence of anal sex in pornography — and pantomiming female masturbation for staffers' entertainment.

Naturally, the arbitrator agreed that some form of discipline was warranted, especially given the nature of this misconduct by a "high-level supervisor in a women's prison." But demotion, not termination, would suffice, the arbitrator ruled.

This is in no way an exceptional arbitration outcome. What was a somewhat unusual case was an arbitration ruling I wrote about earlier this year.

That case involved the state, as well — the State Patrol. But unlike the prison case, this one was decided by an arbitrator on the new roster of arbitrators created in the 2020 reform legislation noted above.

The Peace Officer Grievance Arbitration Roster is hearing only sworn officers' cases, and the parties have no say in which arbitrators serve.

In this February ruling, arbitrator Susan Gaertner, former Ramsey County attorney, upheld the firing of a state trooper for dishonesty. Even though there was inconsistency involved — other, civilian employees had committed similar misconduct and not been fired — Gaertner found that a sworn peace officer must be held to a higher standard.

In short, the State Patrol prevailed before the new, reformed arbitration roster in February even though it had the kind of imperfect case the Department of Human Rights says explains away the many frustrations Minneapolis had under the old, unreformed arbitration system.

Anyone truly interested in public safety reform would be supporting continuing efforts to give police chiefs more authority to enforce this kind of "higher standard" for cops. Or at least they wouldn't be denying the systemic flaws that have made accountability elusive.