The Federation Union Contract
Efforts to reform the contract that governs police in Minneapolis are numerous, but this key component of reform has been a persistent barrier to transformation of policing.
Police and the city operate under a contract that governs everything from assignments and scheduling, hiring and benefits to overtime and discipline. The parties to the contract are the City of Minneapolis and the Police Officers’ Federation of Minneapolis. The Federation is a labor union with strong support from its members and a powerful lobbying presence at the state capitol. Both the Mayor and the City Council must approve the contract prior to it being signed by the City.
The current MPD-Federation labor contract was negotiated for the period January 1, 2017 to December 31, 2019. It has expired but remains in effect by the contract’s terms until negotiation and approval of a new contract. As of April 2021, after a long hiatus in the negotiations following the death of George Floyd and Chief Arradondo’s walk away from the table, the parties have resumed negotiations. A professional mediator is helping the parties negotiate the new terms, and the negotiations are not open to the public.
Recommendations for Reform
Over the years, community members have made recommendations for changes to the labor contract. Most notably, Minneapolis for a Better Police Contract, a coalition of community-based groups, has made fourteen recommendations and prioritized three of them: 1) eliminate officer fatigue by limiting the number of hours in their work week; 2) mandate mental health screenings for police officers; and 3) provide for more flexible scheduling. Their other recommendations are outlined at Recommendations for Changes to the Labor Agreement between the City of Minneapolis and Police Officers Federation of Minneapolis.
Some critics call for a change in indemnification law to exempt police officers and require them to carry personal liability insurance. Pursuant to state law (Minn. Stat Sec. 466.07), the labor contract requires the City to “defend and indemnify” a police officer for damages caused in the performance of duties unless the officer is guilty of malfeasance, willful neglect of duty or bad faith. In a high percentage of cases, this results in the City paying for a civil judgment or negotiating a settlement if a lawsuit is brought against the officer.
Stephen Rushin, a law professor at Loyola University and legal authority on police contracts, echoes some of the above suggestions in his work. He also proposes that cities eliminate waiting periods between an incident involving use of force and an officer’s statement on the incident so as to capture actual events. And he urges that contracts 1) remove limits on public use or access to officer disciplinary records, and 2) remove arbitrators from deciding appeals of discipline, citing their lack of accountability to the public.
Arbitration Provisions in the Contract
The current contract gives the Federation the power to bring a “grievance” challenge in arbitration for most disciplinary actions, including terminations. Both state law and the labor contract provide that, unless resolved by the parties, a grievance is heard by an arbitrator. The arbitrator determines whether there was “just cause” for the discipline. The arbitrator must consider whether the officer violated a rule that is reasonable and related to the job, whether a full and fair investigation was performed, whether the evidence proves that the officer violated the rule, and whether the discipline is appropriate under the circumstances.
An arbitrator’s ruling is generally final and binding on the parties. In some cases, arbitrators have overturned or reduced discipline, resulting in the reinstatement of police officers. For example, recently an officer was terminated in the fourth precinct for decorating a Christmas tree with items denoting negative stereotypes of impoverished black communities, including a package of menthol cigarettes, an empty can of malt liquor, a paper cup from “Popeye’s Kitchen,” and some police crime scene tape. A community member saw it in the lobby, took a photo of the tree and posted it on social media. The officer grieved the termination, and the arbitrator reduced it to a 320-hour unpaid suspension. Among other reasons, the arbitrator found that management had not carefully considered all of the evidence, had not interviewed a key witness, and had not interviewed the officer’s supervisors.
Some criticize arbitrators because they are seen as “second-guessing” management’s judgment and inserting their own judgment, and Chief Arredondo cited the arbitration provisions in the contract as key to his earlier walk away from negotiations. In other U.S. cities, review of disciplinary actions is made solely by the Chief of Police or by another body (e.g. Police Commission, Civil Service Board) after a hearing.
Possible reforms to the grievance and arbitration process include:
- Changing state law, the Public Employees Labor Relations Act (“PELRA”) to exclude discipline of police officers from the arbitration requirements
- Modifying labor contract language to limit the arbitrator’s authority
- Narrowing the definition of “grievances”
- Modifying the contract to require arbitrators to defer to the management decision unless it is “arbitrary and capricious”
- Eliminating from state law the right to bargain disciplinary procedures
- Adding to the contract “restorative justice language” similar to that in the St. Paul Police contract which provides another method to deal with complaints of misconduct, including a meeting with the complainant, department-sponsored community service, or training.
In the summer of 2020, Jones Day, a national law firm committed to pro bono work, thoroughly reviewed the labor contract, looking at the language that could preclude possible reforms. It also compared the contract to police contracts in other cities (e.g. Dallas, Denver, Memphis). Jones Day suggests the following areas of reform:
- Management rights – change the language to be less generic and specify with more particularity the rights retained by management.
- Past Practices – eliminate this clause, which can be used as a defense to reform efforts and appears to incorporate unwritten practices into the contract.
- Investigations – eliminate the cooling off period that allows an officer under investigation to receive a written summary of the events no less than two days prior to giving a formal statement. This advance notice allows the officer time to meet with counsel and to coordinate the officer’s statement with others.
- Scope of the Unit – currently sergeants and lieutenants who are supervisors are covered by the labor contract and represented by the Federation, leading to questions about their oversight of officers and their accountability, as well as possible conflicts of interest. If demoted, these supervisors return to the rank and file.
- Slowdowns and sickouts – Add stronger language to mandate more significant consequences like termination and loss of benefits for an officer who engages in a prohibited slowdown or sickout.
- Personnel management – Modify language on transfers, promotions, bid selection, layoffs and recalls to provide more discretion to management and to give less importance to seniority in personnel decisions.
- File retention – Change language to broaden ability to retain complaints and investigations in the file even when the subject officer is not disciplined, thus improving transparency and accountability to the public. Allow prior complaints made against an officer to be considered in promotion decisions.
- Psychological Evaluations – Remove limitation on use of such evaluations to prescribed circumstances (“reasonable cause” to believe an officer is not “psychologically fit” to perform the essential functions of their job). These limits reduce management’s discretion and flexibility.
For more on Jones Day’s work, see [www.jonesday.com, July 28, 2020 Webinar, Transforming the Minneapolis Police Department]
Practical Limitations to Contract Reform
Many have suggestions for changes to the labor contract, but significant practical considerations limit the potential for any quick fixes. These include:
- Federation resistance to changes they believe do not benefit its members
- Strength Law of the law enforcement union, which carries significant influence at the legislature, making change difficult at the state level
- Lack of City resources to offer in the “give and take” trade-offs of collective bargaining
- The MPD uses a discipline matrix which leaves less room for management’s judgment (although a disclaimer calls the matrix “general guidelines”)
- Fear that good candidates will be discouraged from applying to the MPD due to less job protection, thereby increasing the instability of the police force, and contributing to poor morale
- Increase in litigation and costs for the city
As negotiations on the contract continue, the citizens of Minneapolis hope for a new contract that will contain significant changes to its arbitration provisions.
June 8, 2021 @ 9:40 pm
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