Some actual, practical police reform deserves to be noticed

Good news hardly could be more scarce on the public safety, crime-and-cops beat.

Advanced thinkers keep "reimagining public safety," but it's surging street violence that feels real in many American cities, our battered hometowns included.

Just since early March, when Derek Chauvin went on trial for George Floyd's murder, Minneapolis recorded well over a dozen new homicides.

Politicians and activists far and wide are noisily debating many ideas for police reform. Some have merit; some are mostly posturing. Some are bonkers.

But an encouraging morsel of news worth noting just now is that a practical, real-world improvement in police disciplinary processes, enacted by the Minnesota Legislature a year ago, has this spring quietly become a reality.

The Peace Officer Grievance Arbitration Roster is up and running, having issued its first ruling last month. Over time it could make a difference.

As I've discussed numerous times in this column, mandatory labor arbitration has long posed a demoralizing obstacle to strong management and firm discipline in law enforcement agencies across Minnesota. State law requires every police department and sheriff's office, as public employers, to allow discipline to be appealed to binding arbitration.

Arbitrators have, of course, sometimes upheld discipline (including firings). But it has also not been uncommon for terminations to be reduced to suspensions and for other discipline to be diminished. Evidence suggests fired cops are reinstated roughly half the time.

Such cases often seem to come down to judgment calls about whether officers have demonstrated that they lack, or have lost, the exceptional level of self-control and sound judgment we need from police — and which most cops heroically display. Presumably, we appoint police chiefs and elect city officials to make such judgment calls.

But what we have had instead is a "broken and flawed" system of second-guessing, in the words of a 2017 lawsuit in which the city of Richfield, backed by the League of Minnesota Cities, the Minnesota Police Chiefs Association and others, pleaded with the courts that the arbitration system 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 … . [C]ities and their police chiefs must be allowed to [enforce] rigorous accountability and transparency standards when [officers] use force on the public."

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

And yet, years of such protests, combined with surging demands for action following Floyd's death, at last moved lawmakers in St. Paul last year to take on arbitration reform. The politics are tricky because the right to grievance arbitration is prized by all public employee unions, crucial allies of DFL politicians, while influential police unions often align with the GOP.

The legislation, authored by Rep. Kaohly Vang Her, DFL-St. Paul, does two smart things. First, it establishes a special roster of arbitrators to hear discipline cases involving Minnesota cops — and only cop cases. These arbitrators will not be part of the general roster of arbitrators maintained by the state's Bureau of Mediation Services to consider disputes between many other unions and employers.

Second, and most important, the new arbitrators will be assigned to hear specific police cases through a simple rotation. They will not be chosen by the parties through a long-standing process of elimination. That process has seemed to many to give arbitrators an incentive to maintain a carefully balanced won-lost record regardless of the merits of the disputes that happen to come before them.

When a union and a management seek an arbitrator from the Bureau's general roster, the agency provides a list of seven to choose from. The union and the employer then take turns striking names from the list until one remains and is assigned to decide the case. Arbitrators' past opinions are generally public. So it is clear that arbitrators who hope to emerge as the chosen one very often have an interest in not compiling a record that looks unfriendly to either union or management eyes.

Defenders of the system deny that such considerations ever influence decisions. But "there's a financial incentive to being chosen as an arbitrator," Coon Rapids Police Chief Brad Wise told lawmakers last year. He added in an e-mail: "People who work as arbitrators know full well how they are selected and therefore have an overwhelming incentive to have a 50/50 mix of decisions so they are the last one standing in that selection process. …"

At all events, the new Peace Officer Grievance arbitrators will not need to resist such incentives.

"We don't get picked," says Susan Gaertner, one of six arbitrators named to the new panel. "They're stuck with us," she adds — with whatever arbitrator comes up next in the small rotation.

As a result "we don't have to keep anybody happy. The only pressure we're under is pressure to do the right thing."

Gaertner, who served 16 years as Ramsey County Attorney (1995-2011) is the most prominent name on the new 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.

Gaertner says she was drawn to seek this appointment because her background working with law enforcement and as both a public sector boss and union member equips her to provide an "important public service" as one of "a handful of individuals from outside the [system] — assigned rather than chosen — trying to instill some confidence that [police discipline] decisions are being made with an eye toward the public interest."

Particularly in this time of "heightened scrutiny," she adds, "because of the role they have, [officers] need to be held to a high standard of conduct. And management needs to be held to a high standard of due process, regardless of publicity."

In interviewing for this arbitrator role, Gaertner says she found it meaningful that she was asked "lots of questions about whether I would shy away from making unpopular decisions one way or another, or could I do the right thing and take the heat?"

Time will tell. As for the first ruling handed down by this new panel of arbitrators, it came from Gaertner. It will not generate much heat, and it would be a mistake to try to read much into it.

But for what it's worth, the dispute involved an Anoka County Sheriff's deputy who caused a damaging, noninjury traffic accident while driving "unsafely" and was suspended for two days without pay.

Finding the suspension "within the bounds of reasonableness" — not exactly a full-throated endorsement — Gaertner concluded that "I see no reason to second guess." The discipline stood.

D.J. Tice is at Doug.Tice@startribune.com.