(a) Legislative and executive bodies at each level of government—federal, state, and local—should not adopt laws or promulgate regulations that undermine sound policing or officer accountability within agencies, and they should repeal or amend current laws and regulations that do so.
(b) Legislative bodies, the executive branch, and policing agencies should not agree to collective-bargaining-agreement provisions that unduly interfere with officer accountability or sound policing, and they should seek to renegotiate agreements, formal or informal, that do so.
Comment:
a. Impact of labor agreements and employment laws on officer accountability. Among government employees, the police are unique: they have unparalleled power and authority over the public, and when they engage in misconduct, they can cause great harm. One critical way agencies encourage conduct consistent with sound policing and earn community trust is by holding officers responsible for misconduct. A well-functioning system for dealing with complaints against police officers and imposing appropriate consequences for misconduct is essential to sound policing. See § 13.07.
Labor and employment laws, including civil-service rules and regulations, promote fair treatment of employees. Labor organizations also play an acknowledged and appropriate role in advocating for better wages, benefits, and conditions of employment. The protections afforded by law and negotiated by labor organizations help ensure that, when employees are accused of wrongdoing or mistakes, they are treated appropriately during investigations and disciplinary proceedings. This is true for law-enforcement officers, as it is for other public employees.
Some statutes, regulations, and agreements, however, have granted officers protections that go beyond what is needed to secure fair treatment. These protections instead prevent agencies from investigating and terminating officers when it is appropriate to do so, or even disciplining or reassigning officers who undermine sound policing and cause harm. In some respects, existing laws and policies offer greater protection to officers facing administrative penalties, such as a suspension or loss of vacation time, than the criminal legal system provides to individuals facing criminal sanctions, such as imprisonment. Although the line between ensuring fair treatment and interfering with appropriate discipline can be difficult to draw, legislative and executive bodies, and policing agencies themselves, need to draw that line. To promote sound policing, they should ensure that state and local laws and regulations, collective-bargaining agreements, and other agreements or policies, whether formal or informal, do not interfere unduly with officer accountability.
b. Law enforcement “Bills of Rights” and similar statutory protections. Legislatures in approximately 20 states have passed statutes or provisions that create protections for law-enforcement officers subject to administrative investigations and disciplinary proceedings that are not available to other public employees. These provisions often are included in statutes named “Law Enforcement Officers’ Bills of Rights” (LEOBORs), although they are also found in other statutory frameworks.
Some of these provisions require agency investigators to wait days to interview an officer accused of serious misconduct or involved in a serious use of force, such as a shooting. Some prohibit agencies from disciplining an officer found to have committed misconduct unless they communicate the discipline to the officer within an unreasonably short period of time. Other provisions limit the types of discipline an agency can impose, for example, by prohibiting reassignment, or making it difficult for managers to break up problematic policing units or ensure an officer is not in a unit in which they are more likely to cause harm. Some statutory protections can make it challenging to gain a full understanding of an officer’s course of conduct over time by permitting or requiring that jurisdictions conceal or destroy records of complaints or misconduct. Still other provisions effectively prohibit some forms of external oversight of policing by entities charged with investigating officer misconduct. See § 14.07 (External Oversight of Policing Agencies).
These and similar statutory provisions, which enshrine protections unique to law-enforcement officers into state law, can make it overly difficult for agencies to investigate and address officer misconduct, and can prevent jurisdictions from undertaking measures necessary to promote police accountability and sound policing. Moreover, these statutory protections generally cannot be countermanded by local law or agency policy. As a consequence, LEOBORs and statutes with these and similar provisions can also render moot local efforts to ensure that rules, policies, and agreements, including collective-bargaining agreements, do not undermine officer accountability.
In recent years, members of the public have expressed concern about LEOBORs, and studies have suggested a link between such laws and increases in the harm caused by police. Consequently, some states have rescinded or revised their LEOBORs. The legislatures of every state with a LEOBOR or other statutory provisions granting unique protections to law-enforcement officers should scrutinize those laws and take action to ensure that state law does not unduly interfere with officer accountability and other elements of sound policing.
c. Collective-bargaining agreements. Even when state laws do not interfere with officer accountability, local governments may bargain away important features of an effective accountability system. In doing so, they frustrate sound policing.
Most states permit or require local governments to bargain with police unions regarding wages, benefits, and conditions of employment. Police unions thus generally have the same ability as other public employees to bargain over procedural protections during misconduct investigations and disciplinary proceedings. However, many jurisdictions have agreed to collective-bargaining agreements (CBAs) with officers, which provide investigatory and disciplinary protections that are far more expansive than those afforded to other public employees.
It is not uncommon for police CBAs to dictate in minute detail the procedures regarding the intake of misconduct complaints, to specify how administrative investigations must be conducted, or to prescribe the precise disciplinary processes and penalties for police misconduct. Like LEOBORs, CBAs often include provisions requiring agency investigators to wait for days before interviewing an officer who has killed someone or who has been accused of serious misconduct. They may prohibit external oversight by nonofficers, require arbitration to affirm discipline meted out by the agency, or set unreasonably short time limits for agency discipline after misconduct has been committed. CBA provisions may prohibit anonymous complaints, require that complaint and disciplinary records be expunged, or bar public disclosure of such records.
Like provisions in LEOBORs and similar state laws, CBA provisions such as these may inhibit agencies from holding officers appropriately accountable for misconduct and may prevent jurisdictions from identifying and addressing patterns of misconduct or ensuring sound policing. Destroying officers’ disciplinary histories, for example, both compromises officer accountability in individual cases and makes it more difficult for external oversight entities to evaluate an agency’s systems for handling complaints and responding to incidents of officer misconduct. Arbitration provisions can result in meritorious disciplinary decisions being overturned, or can reduce disciplinary penalties, compromising both accountability and efforts by agency and city leadership to remove unsuitable officers from policing. Jurisdictions should avoid provisions in CBAs that frustrate accountability or undermine sound policing. Reaching this objective may require changing how CBAs are negotiated. Jurisdictions should render CBA negotiations transparent and publicly accessible so that members of the public have the opportunity to understand negotiations and offer input on provisions that affect the public. Jurisdictions also should prohibit informal side agreements with unions, especially those that offer special protections for officers during investigations and disciplinary proceedings; and if such agreements are made, they should not be treated as binding.
Reporters’ Notes
As they do for other public employment, unions and employment-protection laws serve an important function in policing. At the same time, the power and history of police unions, as well as the unique features of policing in the United States, mean that labor protections often have different consequences in policing than in other public employment sectors. When bargaining with police unions and considering policing laws and regulations, public officials should be attuned to these dynamics and should understand how they play out for their constituents, especially those most negatively impacted by policing, than they have in the past. See Walter Katz, Beyond Transparency: Police Union Collective Bargaining and Participatory Democracy,74 SMU L. Rev. 419, 435-436 (2021) (describing political leaders as having succumbed to regulatory capture in their dealings with police unions); Stephen Rushin, Police Union Contracts,66 Duke L.J. 1192, 1215 (2017) (arguing that the conditions under which most municipalities negotiate police-union contracts are susceptible to regulatory capture).
Perhaps no law impacts police accountability and sound policing more than civil-service law. Civil-service laws arose in the late 19th century to reduce political patronage and increase merit-based public employment. Stephen Rushin, Police Union Contracts, 66 Duke L.J. 1192, 1207 (2017). Now, states overwhelmingly have civil-service statutes that apply to local law-enforcement officers, and those statutes cover many employment actions germane to police accountability, including demotions, transfers, terminations, training, attendance, safety, grievances, pay and benefit determinations, and position classification. Id. As both policing scholars and the U.S. Department of Justice have noted, civil-service laws have become a potent defensive tool that officers routinely use to challenge disciplinary and corrective actions on both procedural and substantive grounds. See Rachel Harmon, The Problem of Policing, 110 Mich. L. Rev. 761, 796 (2012) (civil-service and employment laws act as an immediate “tax” on efforts to hold officers accountable); U.S. Dep’t of Just., Report of the Investigation of the New Orleans Police Department 96-100 (2011) (setting out impact of civil-service commission review on agency disciplinary decisions). Little research exists about how civil-service laws affect officer accountability and sound policing, but local legislative and executive bodies would do well to consider the intricacies of these laws and their impact on policing in their communities.
Like civil protections, police unions first emerged in the late 19th century. Like other labor unions, early police unions sought to improve the pay and working conditions of officers. However, these early police unions faced public hostility that stunted their growth for decades. Seth W. Stoughton, The Incidental Regulation of Policing, 98 Minn. L. Rev. 2179, 2206 (2014) (recounting causes and impact of “disastrous” Boston Police Department strike of 1919); Catherine L. Fisk & L. Song Richardson, Police Unions, 85 Geo. Wash. L. Rev. 713, 734-737 (2017) (setting out history of police unions). Police unions only gained a “lasting foothold” in American policing after they reemerged in the 1960s in response to police reform efforts. See Fisk & Richardson, supra, at 736. Rather than focus on economics, civil-rights era police unions opposed affirmative action, external oversight entities, and other civil-rights-movement demands aimed at addressing police brutality and race discrimination. See Samuel Walker, Institutionalizing Police Accountability Reforms, 32 St. Louis U. P.L. Rev. 57, 69 (2012). In this period, police unions were helped along by rising crime, which encouraged public officials to expand agencies and give officers increased power and latitude. See Jamein Cunningham, Donna Feir & Rob Gillezeau, Overview of Research on Collective Bargaining Rights and Law Enforcement Officer’s Bills of Rights, at 3 (2020). http://craftmediabucket.s3.amazonaws.com/uploads/LEOBR_Cunningham_12_3_20.pdf.
Today, only a handful of states prohibit police departments from engaging in collective bargaining, and 41 states either permit or require collective bargaining with police unions. Stephen Rushin, Police Union Contracts, 66 Duke L.J. 1192, 1204 (2017). The U.S. Department of Justice estimates that two-thirds of officers are employed by departments that engage in collective bargaining. Brian A. Reaves, U.S. Dep’t of Just., Local Police Departments, 2007, at 13 (rev. ed. 2011), http://bjs.gov/content/pub/pdf/lpd07.pdf. Other estimates are even higher. See, e.g., Cunningham, et al., supra(estimating 75 percent). The Fraternal Order of Police (FOP) purports to be the largest law-enforcement labor organization, with over 300,000 members, although not all FOP chapters have bargaining authority. Fraternal Order of Police: Government & Media Affairs, https://fop.net/government-and-media-affairs/about/.
Today’s police unions continue to oppose many of the same accountability and reform efforts that prompted their rise in the 1960s. See, e.g., Walker, supra, at 69 (police unions continue to be the “principal opponents of affirmative action in police hiring and the creation of independent citizen oversight mechanisms.”); Fisk & Richardson, supra, at 737. In addition to their efforts, discussed below, to secure special disciplinary protections for police officers, unions increasingly oppose police reforms more generally. They have, for example, opposed requiring data collection for traffic stops and tracking and sharing information about police uses of force and misconduct complaints. They also have resisted community efforts to create external oversight of policing. See, e.g., Fisk & Richardson, supra, at 744-747; William Finnegan, How Police Unions Fight Reform, The New Yorker (July 27, 2020).
Police labor organizations have, through collective bargaining and lobbying, achieved robust legal protections for officers. Those protections routinely exceed those available to other public employees. They often are embedded in statutes named “Law Enforcement Officers’ Bills of Rights” (LEOBORs). A few states have repealed or reformed LEOBORs recently; still, 20 states have such statutes protecting officers. See Michael Levenson & Bryan Pietsch, Maryland Passes Sweeping Police Reform Legislation, N.Y. Times (Apr. 10, 2021) (reporting Maryland’s repeal of the nation’s first LEOBOR, among other legislative reforms); Wes Muller, New Police Reforms Coming to Louisiana, La. Illum. (July 7, 2021) (reporting new police-reform laws including mild revisions to the state’s officer bill of rights). National Conference of State Legislatures, Law Enforcement Officer Bill of Rights https://www.ncsl.org/research/civil-and-criminal-justice/law-enforcement-bill-of-rights.aspx (detailing states that have LEOBORs). Those provisions generally deprive local communities of the ability to impose stricter accountability measures on officers who serve that community.
LEOBOR provisions and collective-bargaining agreements can impact the accountability process from beginning to end. They limit who may file a complaint of police misconduct and how they may file it. See Fisk & Richardson, supra, at 750 (listing restrictions on which complaints will be investigated, including refusing to investigate anonymous complaints, as among those contractual provisions that are potentially problematic for reform efforts). They impose overly restrictive limits on how quickly misconduct investigations must be initiated and completed. See Christopher Harris & Matthew M. Sweeney, Police Union Contracts: An Analysis of Large Cities, Policing: J. Pol’y & Prac. 6 (June 25, 2019) (analyzing collective-bargaining agreements and finding completion limits as narrow as 45 days), https://doi.org/10.1093/police/paz042; requirements that an investigator wait for days—or weeks—before interviewing an officer accused of misconduct, see, e.g., Stephen Rushin, Police Arbitration, at 1037-1038 (listing contracts that include delay before interviewing officers ranging from 48 hours to 10 days); LA Act No. 451 (2021) (revising officer bill of rights to reduce the time allowed for officer to retain an attorney before administrative interview from 30 to 14 days). They prohibit non-police officers from investigating misconduct or participating in decisions about discipline. See, e.g., Richard G. Carlson, Charter Fight Over, Let’s Get to Work on Real Reform, Star Tribune (Nov. 6, 2021) (arguing that changing Minnesota’s statute prohibiting external oversight bodies from making misconduct findings of fact or imposing discipline should be at the center of state reform efforts). They require that jurisdictions destroy disciplinary records. See Katz, supra, at 1197 (noting difficulty of conducting pattern or practice investigation because police department had purged disciplinary records from databases because of union contract requirement). And they require that officer complaints against officers and officer disciplinary records be kept secret. See, e.g., Katherine J. Bies, Let the Sunshine In: Illuminating the Powerful Role Police Unions Play in Shielding Officer Misconduct, 28 Stanford Law & Policy Rev. 109 (2017).
Collectively, LEOBORs, similar statutes, and collective-bargaining agreements have, under the guise of protecting officer rights, undermined efforts to impose appropriate discipline and promote sound policing. See Dhammika Dharmapala, Richard H. McAdams & John Rappaport, Collective Bargaining Rights and Police Misconduct: Evidence from Florida, Univ. of Chi. Coase-Sandor Inst. For L. & Econ. Rsch., Paper No. 831 (2018) (collective bargaining in Florida sheriffs’ departments associated with statistically significant increase in complaints and officer violence); Abdul N. Rad, Police Institutions and Police Abuse: Evidence from the US, Dept. of Pol. & Int’l Relations, University of Oxford (finding statistically significant positive correlation between police protections created via union contract and police killings of unarmed civilians); Benjamin Levin, What’s Wrong with Police Unions?, 120 Colum. L. Rev. 1333, 1343 (2020) (police unions and contracts can “operate as markers or structural guarantors of obstruction and unaccountable policing, particularly as they affect communities of color, poor people, and other marginalized groups”); Seth W. Stoughton, The Incidental Regulation of Policing, 98 Minn. L. Rev. 2179, 2216-2217 (2014) (when collective bargaining gives line officers more authority to define police role, officers “embrace a legalistic patrol style that results in higher arrests and more aggressive criminal enforcement.”). Richard D. Elliott, Impact of the Law Enforcement Officers’ Bill of Rights on Police Transparency and Accountability, So. Pol. Sci. Assoc. (2021) (finding “substantially greater hurdles to police accountability and transparency in states with LEOBOR in effect.”), https://ssrn.com/abstract=3690641. In instances in which discipline is meted out despite these protections, arbitration, a common right of appeal for officers included in collective bargaining agreements, may result in the disciplinary decision being overturned, or the disciplinary penalty reduced. Some reversals by arbitrators are doubtless appropriate. There are indications however, that, on balance, reversals and reinstatements by arbitrators bring unsuitable officers back in to policing more than they protect wrongly disciplined officers. This undermines sound policing and forces cities to continue paying officers they have tried to terminate and may believe pose an ongoing danger in the community where they work. See Stephen Rushin, Police Arbitration (finding that of 624 arbitration awards, 52% reduced or overturned police officer discipline and that in 46% of the cases involving termination, arbitrators ordered police departments to rehire previously terminated officers); 36 Fired MPD Officers Reinstated; Receive $14 Million in Back Pay, A Report by the Office of the District of Columbia Auditor (October 6, 2022) (finding that the most common reason an MPD termination was overturned was because an arbitrator though termination was an excessive punishment for the officer’s misconduct). See also, Jamein Cunningham, Donna Feir & Rob Gillezeau, Overview of Research on Collective Bargaining Rights and Law Enforcement Officer’s Bills of Rights, at 10 (2020) (“Research has also shown that unionization may not influence police misconduct, but the adoption of collective bargaining rights more broadly changes police behavior—negatively impacting minority civilians.”).
In light of the role unions have played in generating legal obstacles to accountability and in resisting police reform, some have called for dismantling police unions or expelling them from labor federations. See, e.g., Kim Kelly, No More Cop Unions, Sold/Short (May 29, 2020) https://newrepublic.com/article/157918/no-cop-unions; Paul Butler, Why the Fraternal Order of Police Must Go, Marshall Project Commentary (Oct. 11, 2017). Others call, more moderately, for prohibiting collective bargaining over discipline-related matters. See, e.g., Benjamin Sachs, Police Unions: It’s Time to Change the Law and End the Abuse, onlabor.org (June 4, 2020), https://onlabor.org/police-unions-its-time-to-change-the-law/ (arguing for amending public-sector bargaining laws so that police unions can bargain only wage and benefit matters but not any subject that implicates the use of force, including disciplinary matters); Ayesha Bell Hardaway, Time is Not on Our Side: Why Specious Claims of Collective Bargaining Rights Should Not be Allowed to Delay Police Reform Efforts, Stan. J. of C.R. & C.L. (2019) (arguing that state and federal courts should prohibit negotiation of use-of-force and police-accountability rules because these are managerial topics on which union interest in these topics is “specious,” and urging state and local governments to clarify the scope of public-employee collective-bargaining rights). Recent LEOBOR reforms and limits on collective bargaining suggest that some jurisdictions are heeding these calls. See H.R. 3653, 101st Gen. Assemb., Reg. Sess. sec. 10-150, § 3.8(b), sec. 25-40, § 6.7 (Ill. 2021) (prohibiting some newly adopted accountability-related provisions from being included in future collective-bargaining agreements); Fraternal Order of Police v. Dist. Of Columbia, 502 F. Supp. 3d 45 (D.D.C. 2020) (upholding District law that excludes “all matters pertaining to discipline of sworn-law enforcement personnel” from negotiation in future collective-bargaining agreements).
As some advocates point out, removing limiting collective bargaining over disciplinary matters does not prohibit unions from influencing disciplinary processes. Rather, it shifts debate about accountability mechanisms from often opaque contract negotiations to more public arenas. See Katz, supra, at 441-442 (setting out proposal to “democratize collective bargaining” by moving certain positions from the collective-bargaining arena to the local legislative body for public consideration). Limits on collective bargaining also stymie municipal leaders who would offer concessions on discipline in exchange for lower officer salaries. See Sam Ashbaugh, Gov’t Fin. Officers Ass’n, An Elected Official’s Guide to Negotiating and Costing Labor Contracts 66 (2003) (advising government officials to avoid the temptation to trade management control of employees in exchange for economic concessions); John Chase & David Heinzmann, Cops Traded Away Pay for Protections in Police Contracts, Chi. Trib. (May 20, 2016); Stephen Rushin, supra, Police Union Contracts, app. D xvii (describing the idea that the legal procedure used to negotiate police-union contracts can be susceptible to a form of regulatory capture as an “emerging hypothesis” for how the collective-bargaining process causes lax internal disciplinary procedures).
Still, it is not clear that restricting police unions or collective bargaining is the best reform strategy. Other scholars and advocates contend that police unions are not so different from other unions as to warrant special constraints. See Benjamin Levin, What’s Wrong with Police Unions? 120 Colum. L. Rev. 1333 (2020); Allison Schaber, In Defense of Police Unions, which, After All, Have a Job to Do, Star Tribune (Sept. 11, 2020); Michael Z. Green, Black and Blue Police Arbitration Reforms, Ohio St. L.J. (forthcoming) (arguing that police disciplinary actions warrant reversal by arbitrators due to department errors and procedural violations). Further, some argue that weakening police unions will have broader implications, including undermining organized labor more generally. See, e.g., Levin, supra. Instead, such advocates argue that public officials should be pressed to bargain more vigorously on behalf of those who suffer most when police are not held accountable. See, e.g., Daniel M. Rosenthal, Public Sector Collective Bargaining, Majoritarianism, and Reform, 91 Or. L. Rev. 673, 706 (2013); Levin, supra, at 1399; Katz, supra, at 422-423. Moreover, jurisdictions can make legislative processes and contract negotiations more transparent, as some states do. This may help generate political support for more stringent police-accountability measures. Katz, supra, at 436-437, 443 (suggesting that insufficient transparency is the “distinct flaw” of police-union collective bargaining). In some jurisdictions, activists have reported that open negotiations have allowed them to “change the dynamics” of bargaining and influence police contracts. See Sukyi McMahon & Chas Moore, Opinion: To Reform the Police, Target Their Union Contract, N.Y. Times (Apr. 8, 2019), https://www.nytimes.com/2019/04/08/opinion/austin-police-union-contract.html. Still, greater transparency and public involvement in the bargaining process does not guarantee tempered union influence or stronger accountability, and more research is needed to understand how legislative or collective-bargaining transparency affects police accountability. See Katz, supra, at 438-441 (noting that organizing, alongside transparency, may be needed for community groups to match the influence of unions, as well as the lack of scholarship focused on whether sunshine laws are effective in influencing accountability-related contract provisions). Moreover, police unions can contribute to sound policing. Not all unions have opposed police-reform measures, and some have played other roles in promoting sound policing, such as endorsing changes to especially harmful police practices. Some scholars argue that police unions have more potential yet. See Fisk & Richardson, supra (proposing that cities be required to meet and confer with unions representing even a minority of officers in order to elevate the voices of officers whose interests may not be adequately reflected in “majority union” positions); Samuel Walker, Twenty Years of DOJ “Pattern or Practice” Investigations of Local Police: Achievements, Limitations, and Questions, at 22 (Feb. 2017), https://samuelwalker.net/wp-content/uploads/2017/02/DOJ-PP-Program-Feb24.pdf (noting the collaboration between union and community representatives on Seattle’s Community Police Commission suggests the potential for unions to be a positive force in reform). In addition, police unions that are effective in bettering salaries and working conditions for officers may contribute to sound policing by allowing agencies to attract and retain employees better suited for its challenges. Cf. Monica C. Bell, Police Reform and the Dismantling of Legal Estrangement, Yale L.J. 2131-2136 (2017) (arguing that low pay perverts policing by driving good police officers from lower-paying cities and by putting pressure on officers to work too many hours). Whatever the precise approach, the legal changes required to satisfy this Section can help ensure that police unions play a more positive role in the future of policing than they have sometimes done in the past.