Public sector unionism was always conceptually flawed. On the one hand, why should people who work for government be denied the same opportunity to collectively bargain as private sector employees? On the other, the incentives that justified private sector unions didn’t apply to the public sector, making the system untenable. Whoda thought? Me, actually.
But then, my doubts as to the viability of public sector unionism barely scratched the surface of the problem when it came to police unions. There was another, entirely separate, dynamic at play, and we’re paying for it now.
In a New York Times op-ed, Jonathan Smith, an associate dean of the law school at the University of the District of Columbia, and formerly a senior litigator in the civil rights division of the Department of Justice, explains what followed the 1960s Kerner Commission report on why minorities were rioting in the inner cities.
The Fraternal Order of Police and other rank-and-file police groups adopted a defensive strategy toward this pressure. They lobbied state legislatures to enact law enforcement “bills of rights” that placed strict limits on accountability.
In big cities, where police unions have political clout, rigid union contracts also restricted the ability of police chiefs and civilian oversight bodies to tackle misconduct. As a result, an officer involved in a shooting often cannot be interviewed at the scene; internal affairs investigators have to wait days to get a statement.
Many police departments allow officers to collaborate on a use-of-force report and permit officers to view bodycam recordings before writing a report to “get the story straight.” We found that senior officers rarely questioned a use-of-force report, even if it was incomplete or inconsistent, or used boilerplate language.
And so we’re left with this morass of union rules, “rights” afforded cops that no one else in America enjoys, all of which provide ready excuses for why police departments are saddled with bad cops and can do nothing about it. Walter Olson at Overlawyered has been pounding this point home for a long time, as has Radley Balko.
One oft-heard claim that these laws merely give suspected cops the same rights as other suspected citizens. Don’t miss Ken White’s new post at Popehat blowing that argument to smithereens. Equally laughable is the suggestion from union brass that the laws merely put into effect Fifth Amendment or other constitutional rights. While a few cases from the Warren Court era did invent new constitutional constraints on public agencies’ handling of employee investigations, LEOBR laws go far beyond anything in those cases.
Smith goes on to echo these problems, that union contracts and LEOBOR serve not only as a means of blocking oversight on their own, but provide a ready excuse for police departments to avoid cleaning up their mess.
Union-negotiated rules are only one barrier to change — and police chiefs sometimes cite union contracts unfairly, as an excuse for inaction. But state laws and collective bargaining agreements must be reformed. Disciplinary procedures should be less complex and rules that limit the effectiveness of civilian oversight must be eliminated. Transparency in police conduct must be the rule.
Smith, of course, tosses in the usual caveat, lest the strength of his point go untempered and make a cop cry.
I met hundreds of officers in my work. The vast majority are honorable public servants, and many see the need for fundamental change.
What percentage, exactly, is “many”? Two? Three and a half? Smith offers a tepid explanation for why those good cops ought to want change.
Reform is good for union members — in fact, the overreach of law enforcement bills of rights and some union contracts have harmed the very officers the contract rules are intended to protect. The obstacles to correcting police misconduct have not only undermined confidence in the police, especially among minorities, but have actually placed officers at greater risk by damaging relations between police departments and communities.
While this may play in Peoria, it’s a laughable rationale. This isn’t to say that the current state of affairs shouldn’t be, and isn’t, of concern to police officers of good will, but it ignores the nature of unionism and protectionism. Sure, these rules protect the bad cops, but they protect the good cops too.
The accusations aren’t directed only at the cop who needlessly shoots down an unarmed black guy, but at the cop who did nothing wrong as well. False accusations happen, and the good cop wants protection from them just as the bad cop wants protection from legitimate accusations. For the good cop, protecting his brother who “made a mistake” is a cost of doing business.
What is rarely considered in all this is that it’s not cops who are to blame for the creation of this untenable system that makes it impossible to rid police departments of bad cops, but us. This goes back to the incentive issue with public sector unionism, and it’s given us pretty much what we deserve.
When police unions negotiate a contract with a public authority, there are monetary and non-monetary demands. One costs the public money, which means our taxes are raised (because it’s not like there are profits from which salaries and benefits can be paid). The other involves stuff like LEOBOR, negotiated “rights” and privileges, work rules, that “cost” nothing.
Police unions know this, as does every union. They trade off a couple points of salary increases, knowing full well that they can make them up another day, by demanding protectionist rules instead. The public authority negotiating with them breaks into a broad smile, knowing that a couple of points shaved off of salary will make them heroes in the eyes of their constituents, who only care about tax increases.
The public votes their pocketbooks, and some rule to allow cops to have 48 hours and a union rep at their side will never make it on the radar. No one will care. Until, that is, something happens to give rise to outrage. And then, everyone will wonder how this could possibly happen.
The job of restoring community trust in cities like Cleveland demands sustained effort both by political and police leaders and by regular police officers. The police unions must play their part.
Must they? Not according to their contract.