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Defunding Is One Place Police Unions See Vaunted Powers Limited

June 12, 2020, 6:15 PM

Local governments most likely can drastically cut police budgets and reinvest in social services without needing to negotiate with police unions, which often have been criticized for resisting reform and accountability, labor law professors said.

A government’s decision to “defund the police” by shifting money and public safety responsibilities away from police and to other agencies probably would fall under its inherent management rights, professors said. That means it only would have to negotiate over a defunding plan’s effect on cops—such as reassignments, layoffs, and severance—rather than the plan itself.

Unions certainly could make defunding maneuvers drawn out and politically complicated. For example, some could wield contract language on seniority that would force layoffs disproportionately affecting female and minority officers. But cities have more leeway than private-sector employers to change what union workforces do through their budget authority.

“When people talk about police unions, they conflate the power unions have through collective bargaining agreements with the power unions have politically, which exists even where police don’t have CBAs,” said Joseph Slater, a University of Toledo law professor who’s testified about public-sector labor law to Congress. “An obstacle to any reform will be that political power, independent of labor law rules.”

Local governments likely could wield a similarly free hand to go as far as disbanding their police, legal scholars said. Members of the city council in Minneapolis—where George Floyd, an unarmed black man, died after an officer held a knee against his neck for nearly nine minutes—have vowed to dismantle the city’s police department.

The Fraternal Order of Police and the International Union of Police Associations didn’t respond to requests for comment.

Cop Bargaining Rights Vary

Public-sector labor laws vary widely from jurisdiction to jurisdiction, with states and even some municipalities using their own statutes to govern labor-management relations for government workers. Generally speaking, topics like wages, benefits, and grievance procedures are mandatory subjects of bargaining, such that government employers can’t change them without giving unions the opportunity to negotiate.

Some laws give police the right to collective bargaining, while others provide that right without a corresponding duty on government employers to negotiate with unions. Statutes vary in what issues must or can’t be negotiated. Laws in a few states don’t grant police any bargaining rights.

Police unions in 39 states currently have active collective bargaining agreements, according to Bloomberg Law databases. Those states without police labor deals include Georgia, the Carolinas, Louisiana, and Kentucky.

But even in jurisdictions in which police unions have the broadest legal rights, cops’ government employers have more latitude to unilaterally change working terms than companies do when dealing with private-sector unions, said Anne Lofaso, a West Virginia University law professor who’s co-authored books on private- and public-sector labor law.

“In the public sector, everything comes down to budgets,” Lofaso said. “That’s an important distinction.”

Potential Defunding Measures

Public officials in more than a dozen cities reportedly have discussed plans to cut police spending and reallocate that money to other areas. Los Angeles Mayor Eric Garcetti, for example, has floated reducing the Los Angeles Police Department’s $1.8 billion budget by as much as $150 million, while boosting spending on services to predominantly black communities by $250 million.

Nascent proposals to decrease police budgets run counter to public spending trends over the past four decades, which have seen only police departments and schools escape the sharp fiscal cuts that ravaged other public institutions, said Jeff Keefe, a retired Rutgers University labor-management relations professor who consults with public-sector unions. That budgetary trend has led to more and more responsibilities being heaped on teachers and cops, said Keefe, a researcher at the left-leaning Economic Policy Institute who has studied outsourcing in the public sector.

“We’ve asked them to do everything,” Keefe said.

Part of the logic animating calls to cut police spending and redistribute money and duties to other agencies is to reduce the public’s interactions with armed police officers. But some activists have proposed going further, equating the defunding of police to completely disbanding police departments.

The idea isn’t without precedent. The city of Camden, N.J., dissolved its police department in 2013 over the opposition of its police union and reached an agreement for the county to provide law enforcement services.

CBA Complications

Police defunding measures that take certain duties away from cops could run into a legal obstacle depending on the specificity of a police union’s collective bargaining agreement.

If a labor agreement requires certain work to be performed by union police, then moving those responsibilities to another agency could violate the Contract Clause of the U.S. Constitution, said Stephen Befort, a labor law professor at the University of Minnesota. A police union could seek a court order to stop the transfer of work during the life of the collective bargaining agreement, said Befort, who’s written on the Contract Clause’s implications for unilateral changes to CBAs.

But depending on the duties, shifting responsibilities from police departments could restructure them enough so that they’re no longer bargaining unit work, said Catherine Fisk, a labor law professor at the University of California-Berkeley. If a city’s department of family services handled all domestic violence calls instead of cops, then those workers would be providing services, not law enforcement, Fisk said.

Nevertheless, police union labor deals may complicate the results of police defunding plans.

Police contracts typically apply seniority rules on layoffs, said Stephen Rushin, a criminal law professor at Loyola University in Chicago who studies police accountability. That means younger officers—who are potentially more likely to be women and people of color—would be the first to go under defunding-driven layoffs, he said.

Slashing law enforcement budgets could also lead to more trade-offs in collective bargaining that weaken discipline and oversight if a city can’t meet a union’s demand on benefits or compensation, said Rushin, who wrote a widely cited law review article showing how CBAs have shielded cops from accountability. Such trade-offs have happened in Chicago and San Antonio after cities couldn’t meet demands, he said.

Moreover, police spending cuts that aren’t targeted could have the perverse effect of weakening oversight and investigation of officer misconduct, which are expensive, Rushin said.

“None of this is to say that defunding isn’t a reasonable policy choice in some communities, particularly those that currently over-invest in law enforcement,” he said. “But it is probably not a one-size-fits all solution for the wide variety of woes that afflict American policing.”

With assistance from Robert Combs.

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Bernie Kohn at bkohn@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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