The police killings of George Floyd and Breonna Taylor in spring 2020, along with law enforcement officer killings of thousands of others over the years, especially Black and Brown people, gave new urgency and mass support for proposals to radically restructure or even abolish policing. Among the proposed reforms are some that concern law enforcement labor relations. Law enforcement officers (including city police, county sheriffs, state troopers, and jail and prison guards) are unionized in every state. And, in all but a few states, legislation gives those unions the right to bargain collectively over the standards and procedures that apply when officers face discipline for misconduct. In addition, in the vast majority of states, civil service laws applicable to most government employees and statutes applicable only to law enforcement officers (known as law enforcement officers’ bills of rights) grant other procedural and substantive protections to officers who face discipline. Many believe that law enforcement unions use their power in bargaining and through legislation to thwart discipline—even in egregious cases of misconduct—thereby contributing to a culture of impunity that has increased the violence directed at people of color, poor people, and protesters.

As law professors and legal professionals, we felt compelled to respond to the current moment by bringing our collective experience in labor and civil rights law to bear on urgently needed reforms in policing. We formed a study group to consider possible changes to law enforcement labor relations with the goal of proposing politically feasible reforms that could be quickly implemented and would meaningfully address some of the grave problems in policing. (We note that some or all members of our study group favor more radical reforms than we outline here; both the wisdom and the need for more profound changes in law enforcement and in civil rights laws that affect police accountability are beyond the scope of this piece.)

The changes we propose would apply to law enforcement officers employed by California counties, cities, and some other political subdivisions under California’s Meyers-Milias-Brown Act, Cal. Govt Code § 3500. The eight types of reforms we propose, which we have also presented to California legislators to consider, would require modification or supersession of existing laws and regulations to ensure statewide application. The proposals fall into three categories: transparency in contract negotiation and record-keeping, reforms (including greater transparency) in law enforcement disciplinary proceedings, and improved accountability in collective representation of law enforcement officers. We explain our proposals below. We note that although our proposals focus on California, many could be adopted in other states.

I. Transparency in Contract Negotiation and Record-Keeping

The first category of reforms we propose would increase public access to information about labor negotiations between public entities and law enforcement unions, as well as all law enforcement disciplinary records.

1. Public Access to Negotiations on Use of Force

Use of force (UOF) policies are not mandatory subjects of bargaining. What that means is that no public entity is required to negotiate over a use of force policy; management can instead implement a new policy at its discretion. Moreover, the mechanisms used to resolve disputes in negotiating collective bargaining agreements do not apply. Thus there is no mediation, binding interest arbitration, non-binding advisory arbitration, or fact-finding when negotiating disputes over nonmandatory subjects. But public entities may negotiate over nonmandatory subjects if they wish, and under current law they must bargain over the effects of a change in policy (known as effects bargaining).

We propose that the current law be amended to require that, if a public entity chooses to bargain with a union representing law enforcement officers over UOF policy, the public must be notified in advance of the time and place of any such negotiations and have a right to attend. This will allow greater transparency on UOF policies. It will also increase accountability of public entities and law enforcement unions that choose to negotiate over UOF policies.

In addition, we propose that the law make clear that even if the effects of a UOF policy are a mandatory subject of bargaining, management has a right to implement the policy before or during effects bargaining. For example, if a public entity adopts a UOF policy that prohibits officers from using a firearm in a particular situation, the officers’ union should be permitted to negotiate for the department to provide bullet-proof vests. Negotiations over the vests, however, should not delay implementation of a policy restricting the use of firearms.

2. Transparency for All Law Enforcement Contract Proposals

We propose that, before a public entity commences negotiations with law enforcement union, that entity must conduct a public hearing on its bargaining proposals with sufficient notice and opportunity for public comment. The sunshine provisions that require disclosure of the parties’ opening bargaining proposals under the State Employer-Employee Relations Act (SEERA) should apply also to proposals made in negotiations for law enforcement contracts under the Meyers-Milias-Brown Act. After a collective bargaining agreement or memorandum of understanding with the law enforcement union is negotiated, the public entity must conduct a public hearing, with sufficient notice and opportunity for public comment, before the agreement is ratified.

These reforms will enable the public to know the possible or likely terms of a collective bargaining agreement before such an agreement is negotiated or signed. This information will aid the public in holding elected and appointed officials accountable for the police contracts they negotiate. It will also provide the public the opportunity to ensure that the contracts serve the common good.

3. Transparency of Law Enforcement Disciplinary Records and Decisions 

A well-known concern regarding the persistence of police misconduct is that the public—including victims of that misconduct—cannot find out whether an officer has been the subject of prior citizen complaints or discipline. This information is also off-limits to departments considering hiring an officer who has worked in another jurisdiction.

Legislation passed in 2019 increased the transparency of officer complaint and disciplinary records, but more could be done. The 2019 law only grants the public access to three categories of records involving: law enforcement shootings or the use of force causing serious injury or death; sustained findings that a law enforcement officer committed sexual assault; and sustained findings of dishonesty by an officer that impacted the reporting, investigation, or prosecution of a crime. We propose that all disciplinary records and arbitration and civil service decisions involving law enforcement officers be maintained in a publicly accessible database subject to disclosure under the Public Records Act. However, in order to protect those who make complaints against officers or who are victims of misconduct, the name and other private information of complainants will not be disclosed.

II. Procedural Reform of Disciplinary Proceedings

The second category of reforms we propose would increase transparency of the proceedings in which law enforcement officers are disciplined. Officers exercise tremendous power in the name of the public. It is important that the public be able to attend the proceedings in which it is alleged that the power is misused, just as the public has the right to attend civil and criminal trials. We also recommend reforms to the procedures that are followed in law enforcement officer disciplinary arbitrations and civil service appeals. We note that, if adopted, our proposals would change law enforcement officer collective bargaining agreements in many California jurisdictions as well as the California Peace Officers Bill of Rights.

What do arbitration and civil service hearings look like? They typically resemble trials in court. Lawyers for the parties to the collective bargaining agreement—the employer and the union—introduce testimony and documents into evidence during a hearing before a neutral third-party decision maker (an arbitrator), and usually file a pre- or post-hearing brief. The arbitrator, who is usually a lawyer, is selected by the parties for a single case or as part of a panel appointed to hear all disputes arising under a collective agreement. Except in civil service hearings, the hearing is not open to the public. The arbitrator makes a decision, usually in writing, based on the evidence and the argument. The right to appeal is usually circumscribed.

We have identified several areas where this process could be reformed.

1. Transparency of Law Enforcement Disciplinary Arbitrations and Civil Service Appeals

It is not enough to make complaints and disciplinary records of past cases open for public inspection. We propose that all arbitrations and civil service appeals related to discipline of law enforcement officers be open to the public. Just as a civil or criminal trial is a public proceeding, so too should be disciplinary proceedings against law enforcement officers.

2. Reform the Procedure for Disciplinary Arbitration and Civil Service Appeals

Arbitrations and civil services disciplinary proceedings for law enforcement officers should be reformed to increase accountability for misconduct. We propose new standards to address specific criticisms of decisions made by arbitrators or hearing officers in such cases. In particular, critics have pointed to discipline being overturned by the inflexible application of investigation procedures, by insistence in every instance on advance notice of prohibited conduct, or by rigid reliance on precedent from past disciplinary cases regardless of departmental changes in practice.

As detailed below, we propose changes to the way that evidence is used in disciplinary appeals. We also recommend reforms to how arbitrators or hearing officers analyze appropriate penalties and remedies. These proposals will ensure that principles of just cause and due process already established for public sector employees are maintained in these proceedings. In our view, these reforms are consistent with constitutional due process protections of public employees.

A. Evidence Standards

One persistent criticism of the police disciplinary process is that evidentiary standards tilt too far in the direction of protecting the officer from effective discipline, limiting the weight an arbitrator may give to certain kinds of evidence, and requiring an arbitrator to disregard evidence for technical or procedural reasons unrelated to the merits of the case. Accordingly, we propose a variety of reforms to allow or require arbitrators to consider some evidence. We would:

1. Permit admission into evidence past complaints and disciplinary action involving the officer, notwithstanding any contractual or administrative time-bar to the use of past complaints or disciplinary action. Arbitrators or hearing officers will decide how much weight to give this evidence, taking into account usual principles governing hearsay, the passage of time, and other considerations.

   1. Deem irrelevant evidence of past disciplinary cases exonerating other officers charged with similar misconduct if a department has given notice to employees and to employee organizations of management’s intent to depart from past practice in favor of a new approach to potential discipline.

   2. In deciding whether discipline is appropriate, prohibit consideration of the absence of a written rule when a charge concerns serious misconduct worthy of summary action.

   3. Apply an inference adverse to an officer if the officer declines to be interviewed until they have had an opportunity to examine other officer statements, video or other recordings, or physical evidence related to the subject of an investigation. Supplemental interviews and statements by an officer also can be considered in applying an inference adverse to an officer, either as a mitigating or an aggravating factor.

   4. Apply an inference adverse to an officer for failing to use a vehicle or body camera if provided and required by their department, unless the officer demonstrates an equipment malfunction or other justification for failing to use equipment that was functioning properly when issued.

   5. In objecting to disciplinary action, prohibit a violation of the Public Safety Officers’ Procedural Bill of Rights Act from precluding sustaining charges if the violation was a harmless error without prejudice to the merits of the officer’s case.

B. Decisions and Remedies

Advocates of greater police accountability have argued that arbitrators render decisions or award remedies that shield officers from appropriate disciplinary action by disregarding the public interest in removing officers who have engaged in misconduct. Some arbitrators have ordered reinstatement when it is not warranted or awarded backpay that is a significant financial disincentive to suspending an officer without pay during a lengthy disciplinary investigation, especially when the officer is subject to a criminal investigation or prosecution. Accordingly, we would require arbitrators to consider the public interest before ordering reinstatement of an officer accused of misconduct. We would also toll the backpay award during any legal proceeding against an officer. In particular, our proposals would mandate:

1. In rendering a decision, discipline cannot be upheld absent a showing of just cause.  Just cause shall include the public’s interest in safety and equal administration of the law.

   1. Reasoned written decisions shall be issued within 30 calendar days of submission of a dispute following oral argument or briefing, whichever is later.

   2. In any case in which an officer was dismissed, and in which there is evidence that the officer engaged in misconduct, no order of reinstatement should be made unless it is shown that the officer has made, or has demonstrated a commitment to making, efforts to rectify the problematic behavior.

   3. In determining an appropriate remedy, evidence of disparate treatment on the basis of race, sex, national origin, or other protected category, by the officer may be considered an aggravating factor.

   4. In determining an appropriate remedy, no make-whole relief, including back pay, shall be awarded for any period during which a criminal investigation or prosecution, or other legal proceedings, are pending against the officer.

   5. A decision by an arbitrator or hearing officer is subject to judicial review procedures used for other public sector employment decisions.

3. Arbitrator Independence and Training

In cases involving the use of force, arbitrators and hearing officers are expected to play a public role in resolving disputes over officer discipline. To emphasize the need for independent decision-making, arbitrators and hearing officers with appropriate training shall be assigned from a list of arbitrators and hearing officers approved by a government agency such as the California Mediation and Conciliation Service.

III. Accountability in Collective Representation

Finally, we studied and discussed a number of changes to the statutory protections that law enforcement officers enjoy in their selection of a union. We considered more radical reforms than we propose here, and many or all of us believe that more radical change might be desirable. Recognizing the complexity of the issues, however, and not wishing for our other reforms to be scuttled by opposition to the way in which collective representation is structured, we settled, for the moment, on two quite modest proposals.

1. Bargaining Units

In both the private and public sectors, the law provides that a union chosen by the majority of employees in a unit is the exclusive representative of all employees in the unit. This is the principle of majoritarian democracy, but in all majority-rule systems there is the possibility that the majority representative will act contrary to the interests of the minority. In labor law, to reduce the likelihood of such inconsistent interests, the unit that selects a representative should be one that shares a degree of common interests. A great deal of criticism of law enforcement unions has focused on the question whether the union effectively represents the interests of all officers in the unit. Critics have argued that some law enforcement union leaders do not reflect a number of interests in a department. Our proposal does not address the structural basis for all of the criticisms, but it does address one: that monolithic, vertically organized union structures fail to distinguish the different roles and interests of rank-and-file officers and their managers. When a small number of managers and the larger number of officers they supervise are in the same bargaining unit, managers may be reluctant to discipline subordinates, perhaps out of solidarity or for fear of retaliation by the union.

One concern about law enforcement unions in particular is that departments are organized in strict hierarchies, with higher-ranking officers (e.g., lieutenants, and captains) having the authority to supervise and discipline lower-ranking officers. If both supervisory officers and the rank-and-file are in the same bargaining unit and represented by the same union, it can be difficult for a higher-ranking officer to effectively discipline a lower-ranking officer.

To eliminate such conflicts of interest, we propose that law enforcement officers above the rank of sergeant shall not be included in bargaining units of officers at the rank of sergeant or below. Neither officers in units of sergeant and below nor officers in units of higher-ranked officers shall represent officers in the other units in bargaining, grievances, or civil service appeals. This will allow disciplinary processes to work unimpeded. Ranks above sergeant will continue to be represented, but only in the new unit of higher-ranked officers. Managers and supervisors will thus have their own bargaining unit(s).

2. Allow Mid-Term Modification of Use of Force Policy

A pervasive criticism of law enforcement union contracts is that they block reform. For example, if a new police chief responds to public concerns about use of force and adopts a new use of force policy (which, as noted above, is something that police management has the right to do) the union may assert its contract to prevent the new policy from taking effect. Even some reforms commanded by federal consent decrees have not been implemented, critics charge, because of assertions that the decree is contrary to a union contract. Some contracts run for terms as long as five years. Although there is room for legal debate over whether a union contract can prevent implementation of a reform commanded by state or federal legislation or a judicial decree, we think it is important to clarify that regarding use of force, the contract does not supersede new policies. This would be true whether the new use of force policy is adopted unilaterally by a department or responds to legislation or a court ruling.

We therefore propose that the law should clearly state that no term of a law enforcement officer contract, including a “zipper” clause, shall be interpreted to prevent modification of a use of force policy during the term of the agreement. Zipper clauses, like integration clauses in commercial agreements, state that the contract is final and complete and that the parties waive the right to bargain further. They often bar changes to the agreement during its term, unless the parties consent in writing to the change. Some zipper clauses state that all past practices and benefits under a contract are superseded by the terms of the new contract, which can undo the effect of policy changes or arbitration awards that were intended to reform police discipline. To make it easier for management, or a consent decree, to change police practices we propose enacting a law restricting the scope of zipper clauses.

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This package of reforms does not address every problem in law enforcement, or even in law enforcement labor relations.  Many or all of us might or do favor more radical reforms in the law governing law enforcement. But the changes we outline here are things that all public entities and public sector unions in California can embrace as a first step toward ensuring that public safety departments indeed protect public safety.

 

Catherine Fisk, Joseph Grodin, Thelton Henderson, John True, Barry Winograd & Ronald Yank: The authors are listed in alphabetical order. Fisk is the Barbara Nachtrieb Armstrong Professor at Berkeley Law. Grodin is Emeritus Professor of Law at UC Hastings Law and a former Justice of the California Supreme Court and California Court of Appeal. Henderson is Distinguished Visitor at Berkeley Law, retired U.S. District Judge of the Northern District of California, and an expert in civil rights. True is a retired Alameda County Superior Court Judge, a mediator and arbitrator, and formerly was a partner in a San Francisco law firm specializing in the representation of employees and unions. Winograd is an arbitrator and mediator, a Lecturer at Berkeley Law and Past President of the National Academy of Arbitrators. Yank is the former Director of the California Department of Personnel Administration and a lawyer specializing in representing law enforcement and firefighter unions.