Arbitration

As a footnote to my earlier post on Mayor Durkan’s proposed plan to get the consent decree back on track, there has been one particular troublesome issue that has generated more heat than light: whether police officers should be able to appeal disciplinary actions to arbitration. The CPC had a few thoughts on that in their letter yesterday.

Under state law, police officers have the right to arbitration to offset the fact that they are not allowed to strike. The SPOG contract in force up until last year provided for arbitration as one of several paths for appealing disciplinary action. Nearly everyone agrees that the old contract had too many options for appeals, which allowed for “forum shopping” to whichever one the officer thought would give the most favorable result.

The 2017 police accountability legislation, written by the City Council, solved this problem by getting rid of all but one path: the Public Safety Civil Service Commission (PSCSC). That’s right: it unilaterally got rid of arbitration, in violation of state law. This was flagged to the court overseeing the 2012 Consent Decree as one of the issues with the legislation that was subject to collective bargaining: SPOG can decide to negotiate away its right to arbitration in return for other concessions from the city, but the city doesn’t have the right to take it away on its own. If it insists on a contract that eliminates arbitration, then it opens itself up to a charge of unfair labor practices.

In its letter yesterday, the CPC takes issue with the city’s stance on arbitration, starting with a justification of why the city should have tried to negotiate it out of the SPOG contract:

It has also been suggested that the fact that “other City employees have arbitration” serves as a justification not to have addressed arbitration in bargaining. This rationale was also proffered by a previous mayoral administration in discussions as the 2017 accountability law was being considered. As the CPC pointed out at that time, other City employees cannot take life and liberty. There is a reason police have a Consent Decree, have a separate accountability system, have the Office of Professional Accountability (OPA) and the Office of Inspector General (OIG) to ensure that their actions are Constitutional and are consistent with law and policy. As stated in the expert declaration we filed with the Court, what constitutes a fair and effective police arbitration system must be measured differently than arbitration used in other public or private disciplines.

True, but the argument isn’t that other city employees have arbitration; it’s that public safety officials such as police and fire fighters can’t walk off the job, so they have a state-guaranteed path to raise and resolve grievances.

The CPC goes on, faulting the city for assuming that SPOG would not give up arbitration under any reasonable conditions and thus not even trying to negotiate even specific improvements to the arbitration scheme:

We have also been told that the Court and community should have understood that SPOG and SPMA would never give up arbitration. This, too, suggests that there never was a commitment to bargain so as to fully realize the reforms mandated by the accountability law, and that there remains little inclination to remedy the system even now. Even if one were to be resigned to an arbitration scheme, it seems there was no effort made within the framework of arbitration to at least remedy the myriad barriers to fairness, objectivity, expertise, standard of review, timeliness, and transparency in Seattle’s police arbitration system. Multiple City leaders after the disciplinary reversals scandal of early 2014 declared that reform in this area was essential.

This actually isn’t true; the city did, in fact, negotiate changes to the arbitration system, and in particular how arbitrators are chosen so that police officers have less ability to game the system to land an arbitrator with a reputation for favoring officers. They may not have negotiated as much as the CPC wanted them to, but the details were negotiated.

Judge Robart laid out his thoughts on arbitration in his May ruling finding the city partially out of compliance with the Consent Decree. He had previously noted in his “order to show cause” last December that an arbitrator’s overturning of the termination of Officer Adley Shepherd was particularly troublesome and caused him to question whether arbitration-based appeals are compatible with constitutional policing. He answered his question in his May ruling:

Again, in its order to show cause, the court was particularly concerned by the reversal of former Chief of Police O’Toole’s discharge of Officer Shepherd. (OSC at 6-7.) The court noted the substantial differences between the process for review of that decision under the old arbitration regime and the new Accountability Ordinance prior to the Ordinance’s alteration by SPOG’s CBA. (Id. at 7.) No party argues in favor of the reversal of Chief O’Toole’s decision or commends the outcome of that arbitration process to the court. (See generally City Resp.; U.S. Resp.; CPC Resp.; City Reply.) Nevertheless, the City and the United States insist that the Officer Shepherd case is an aberration and the City should not be faulted for actions out of its control, especially because the City is appealing the decision. (City Resp. at 10-11; U.S. Resp. at 7 (“The fact that an arbitration panel, which is not controlled by the City, overturned the City’s efforts to enforce its policies is not a fair indication of a failure by the City and SPD to hold officers accountable.”).) But as the CPC points out, the issue is not just that an arbitrator reinstated this officer, but that the CBA (1) retains significant attributes of the old appeals system that the parties admit needs reform, and (2) abrogates critical reforms in the Accountability Ordinance that the parties put in place.

He concludes by making his view crystal clear:

As stated above, the court FINDS that the City has fallen partially out of full and effective compliance with the Consent Decree. The court so rules due to the changes in the Accountability Ordinance that occurred following implementation of SPOG’s CBA and the City’s reversion to an arbitration system that is materially unchanged from the old, inadequate accountability regime.

Robart says that the arbitration system contributes to his finding that the city is out of compliance with the Consent Decree. What he doesn’t say is whether arbitration for police officers is incompatible with “constitutional policing,” In other words, is the state law mandating arbitration in conflict with protections under the U.S. Constitution? If Robart had said “yes” to that question, then the city would have authority to rip it out of the SPOG contract. But what Robart said instead is this:

Finally, the court also is not ruling today that—to be in full and effective compliance—the City must necessarily return to the provisions of the Accountability Ordinance referenced herein as those provisions existed prior to collective bargaining. With the assistance of the Monitor, the United States and the City are free to find other methods that will bring the City into compliance with the Consent Decree on accountability. To this end, the court ORDERS the City and the United States, with the assistance of the Monitor and the CPC, to formulate a methodology (1) for assessing the present accountability regime, and (2) for how the City proposes to achieve compliance.

That leaves the city in the worst possible position: it will never be in compliance with the Consent Decree until it can either remove or heavily revise the arbitration scheme in the SPOG contract, but it has no leverage to negotiate such a change. SPOG has all the leverage: it knows that the city is in a bind, and it can ask for anything in return for removing arbitration. Worse, it can stall out negotiations, let the legal and political pressure mount for the city, and then issue its demands. Which, by all appearances, is exactly what it is doing now.

Robart has stated in the past, “Against Constitutional principle, labor contracts will fall… The citizens of Seattle are not going to pay blackmail for constitutional policing. I’m not going to back down from that.” But in practice he has enabled the thing that he railed against. The CPC can formulate whatever rationale it wants as to why police officers don’t deserve guaranteed arbitration (and their arguments are generally sound), but until Judge Robart provides some legal leverage, the city will either pay a hefty price to eliminate arbitration, or never get rid of it at all.

A point lost in this argument is that the alternative in the police accountability ordinance is a good one: the Public Safety Civil Service Commission is a neutral forum for hearing grievances that has advantages over an arbitrator because it has subject-matter expertise in the domain of public safety and law enforcement. But the PSCSC doesn’t qualify as arbitration, so short of a ruling by Judge Robart it can’t be forced upon SPOG as an acceptable alternative.


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