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ANALYSIS: Contract Review Shows Patchwork of Police Protections

July 10, 2020, 8:38 PM

Many police unions’ collective bargaining agreements in large U.S. cities grant police officers wide-ranging protections as part of the disciplinary process, based on Bloomberg Law’s analysis of more than 50 union contracts. These include the ability of officers to remove reprimands from their records, inspect their personnel files, and appeal decisions made on grievances.

Using Bloomberg Law’s Contract Library of more than 10,000 searchable collective bargaining agreements, our labor data research team scanned the text of CBAs covering police officers in 53 U.S. cities with populations more than 100,000. (Please note that Portland, Maine, in that search, unlike Portland, Ore., does not have a population of more than 100,000.) All of the contracts are currently in effect, although some technically expired in 2019 or 2020 and have not been renewed.

We searched for key terms and phrases that have been identified in the news media and on both sides of the debate about police accountability in the wake of deadly uses of force and subsequent Black Lives Matter protests across the country. Wherever possible, we removed outliers or instances where such terms were used outside of the disciplinary process.

Keyword Searches of 53 Contracts

Here is a disclaimer alert that should surprise nobody: Keyword searching is an inexact science.

We found no contracts that contain the recent hot-button phrase “qualified immunity.” However, the concept of shielding police officers from civil liability could be addressed using other language.

By the same token, there’s nothing to be learned from the fact that “grievance” procedures were found in every contract and that “arbitration” was mentioned in all but four. Only a closer look into the context of those words would provide necessary insight.

It also should be noted that at least 15 states have a Police Bill of Rights in place, and these statewide laws confer onto police officers certain protections that may not show up in their collective bargaining agreement.

With that said, let’s take a look at some of the results.

Removal of Reprimands

As I mentioned above, many of our searches yielded unanimous or near-unanimous returns. It’s where the results were more evenly split where we saw interesting differences among the cities and their police unions.

For example, 43% of the contracts we researched provide for removal of reprimands that have been added to an officer’s personnel file, after a given length of time with an otherwise clean record.

About half of these 23 contracts provide for a range of time spans, based on the severity of the action, while the other half cite a set number of years; typically two or three.

The contracts for police in Albuquerque, N.M., New Haven, Conn., and Green Bay, Wis., are the most forgiving for police officers who have been given a reprimand. They have to wait only one year before having their reprimand expunged. Officers in Des Moines, Iowa, on the other hand, must have a clean record for five years before they can remove evidence of the reprimand from their files.

For contracts with varying time periods, the most commonly implemented range was one to five years. In Tulsa, Okla., the worst reprimands bring a seven-year waiting period before they can be expunged. At the other end of the spectrum is Hartford, Conn., where even the most serious reprimands can be removed from an officer’s file after only two years—and some can be wiped as soon as six months following the action.

Access to Personnel Files

More than half (58%) of contracts specifically grant officers access to their own personnel files and/or Internal Affairs files. Many of these 28 contracts also have clauses that give officers the right to view any disciplinary document before it is added to their personnel files.

The Salt Lake City agreement contains typical language: “Police Officers shall, upon reasonable notice, be provided access to their individual Internal Affairs files or personnel files” under the department’s IA and/or HR guidelines. Furthermore, any document “adverse to Police Officers’ employment may not be entered in their personnel files (which exclude the Internal Affairs files) without the Police Officer having first read and signed the document.” The clause goes on to say that if the officer refuses to sign, the document will be added anyway with the officer’s refusal noted.

Other interesting points include:

—All but four contracts (92%) have provisions giving workers the “right to appeal” rulings on grievances. This appears to include any and all workplace grievances, not just ones involving police misconduct.

—Clauses that mention providing “legal counsel” or “legal protections” for officers were found in 33 contracts (62%).

Deadly Incidents

Some of the most interesting takeaways from these contracts are based on what’s not in them—especially when it comes to disciplinary actions following some type of negative incident.

For example, nearly all contracts (94%) lay out procedures for “disciplining” officers—and I’m sure that the remainder, like all collective bargaining agreements, have some type of language dealing with corrective action for employee misconduct.

But we found only 28 contracts (58%) that specifically outline an “interview” or “interrogation” procedure as part of the disciplinary process following an incident.

And only nine contracts (17%) contain procedures that discuss what happens after a “critical incident,” an “officer-involved” incident, the use of “lethal force,” or the use of “deadly force.”

One of them is in Minneapolis, the city where the death of George Floyd brought the issue of police unions’ protections to the national forefront.

Minneapolis’s agreement discusses several aspects of the aftermath of a “critical incident,” which it defines as either the “use of deadly force” by or against an officer or a “situation in which a person who is in the custody or control of an officer dies or sustains substantial bodily harm.” The agreement includes provisions that provide three days’ paid administration leave; encourage officers to meet with a mental health professional; prohibit officers from discussing the incident (exceptions include talking to investigators or legal counsel); prevent the confiscation of an officer’s firearm in most cases; and oblige officers to consult with the city in the case of any civil lawsuits arising from the incident.

But where Minneapolis is verbose, most other cities are reticent. Forty-four contracts (83%) contain no mentions of deadly force or similar keywords.

Even harder to find is language that mention some kind of “civilian oversight” or “independent review” of police officers’ actions. Related keywords were found in the police contracts of only six cities: Albuquerque; Austin, Tex.; Baltimore; Miami; Portland, Ore.; and St. Louis. The remaining 89% of contracts had no such keywords.

With assistance from William Jeremiah

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