Arbitration is taking center stage in the city's debate over police reform. But just how likely is it that the process will change?
The death of George Floyd at the hands of Minneapolis police ignited nationwide protests calling for lawmakers, at nearly every level of government, to implement sweeping reforms to policing. Officials in Cincinnati have turned their attention toward arbitration to improve accountability within the police department, a move that is unlikely to yield any significant reform.
On Oct. 13, Mayor John Cranley addressed the city council's law and public safety committee, going on the record to ask councilmembers to prioritize arbitration reform in the collective bargaining agreement between the city and the local police union in the next round of contract negotiations.
A clause of that contract allows independent arbitrators to overturn or lessen disciplinary penalties issued by higher-ups in the department. Cranley wants the contract changed to give the police chief more unilateral authority in disciplinary decisions, a motion that councilmembers unanimously supported.
The current collective bargaining agreement expires in May 2021.
"In any quasi-military, paramilitary organization, you've got to have chain of command," Cranley told the committee.
He is not alone in seeking reform. The United States Conference of Mayors, a nonpartisan organization comprised of 1,400 mayors from cities across the country, released a report criticizing arbitration and calling for the revision of state collective bargaining laws that limit police chiefs' ability to discipline their officers.
This latest call for reform seeks to address a long-standing, nationwide practice that experts and policymakers say undermine the chain of command and weakens accountability within departments.
'Zero sum game'
For decades, arbitration has made it difficult for police chiefs and city managers to adequately discipline officers for incidents of misconduct.
One study of the Houston Police Department, published in 2002, found that approximately 47% of disciplinary penalties were lessened by independent arbitrators. These findings were in line with another study that found that arbitrators reduced penalties for Chicago police officers by nearly half.
While arbitration is commonplace in resolving contract disputes between labor unions and management, in police departments, it creates an adversarial relationship between officers and the chief, said Mark Iris, a researcher at Northwestern University who authored the studies in Houston and Chicago.
"I think everybody involved views it as this zero sum game," he said. "And that is corrosive to the chain of command, big time."
Cincinnati is no stranger to issues of arbitration, either. An investigation by the Cincinnati Enquirer in 2008 found that over a ten-year period, arbitrators reinstated fired officers in 16 of the 18 cases they resolved. Before being reinstated, two of those officers allegedly sexually assaulted a woman in her apartment while she was intoxicated.
An arbitrator's decision to consistently reinstate officers has the effect of emboldening bad actors within police departments, Iris said.
An analysis of Florida law enforcement agencies from 1996 to 2015 found that collective bargaining rights led to a 40% increase in complaints of violent misconduct within the state's sheriff departments.
"The ultimate chief of a police department is the union president," said Howard Henderson, director of the Center for Justice Research in Houston. "And so the loyalty of officers is challenged, right, because they aren't beholden to the community."
Dan Hils, president of the Cincinnati Fraternal Order of Police (FOP), did not respond to requests for comment. But he criticized Cranley's motion in a social media post.
"The Mayor's sole evidence that reform is needed consisted of a few arbitration cases that happened from 1999-2007," Hils wrote in a Facebook post referring to the Enquirer investigation, which Cranley submitted as support for his motion. "For context, in 2007, MySpace was the dominant social network and the iPhone 1 was introduced to the public. If there aren't any more recent examples, perhaps there's not really a problem to reform."
'Protect officers at all costs'
Police unions have largely been able to weather an overall decline in membership that has otherwise plagued labor unions nationwide.
According to data from the Bureau of Labor, public-sector labor unions, which include police unions, have a membership five times higher than that of private-sector unions, with local government workers comprising the highest unionization rate at 39%.
Police unions were created in the early 20th century to improve working conditions for police officers, many of whom were working grueling 12-hour shifts with no off days.
The FOP, the nation's largest police union, boasts a membership of more than 355,000 spread throughout 2,100 local lodges across the country.
Though it is difficult to discern an exact figure, due to the "extraordinarily decentralized" nature of policing in the United States, Iris estimates that approximately 700,000 police officers are employed at 18,000 police departments across the country.
If Iris' estimates are accurate, that means as many as half of all police officers are protected by collective bargaining agreements.
While protecting work conditions may have been these unions' original design, they have since evolved to "protect officers at all costs," said Henderson.
The University of Cincinnati (UC) faced a grievance from the FOP of Ohio for its firing of Ray Tensing, the former university police officer who shot and killed unarmed motorist Samuel DuBose during a routine traffic stop in 2015.
Tensing was indicted on murder and voluntary manslaughter charges, but was ultimately not convicted following two mistrials. In exchange for his resignation, the university paid Tensing over $300,000 in backpay and legal fees, as per an agreement with the FOP.
A spokesperson with the university's Department of Public Safety did not respond to emailed questions from The News Record. However, James Whalen, director of public safety, told student leaders on Oct. 14 that he has not had to fire an officer since joining the university.
Officers can face discipline through judicial proceedings, but prosecutors are often reluctant to pursue charges against police officers unless the evidence is "overwhelming," Iris said.
"First of all, remember, local prosecutors are typically elected or very active politically, you don't want to alienate that voting bloc by indicting officers. And you need the cooperation of the officers as a prosecutor to successfully prosecute your garden variety criminal offenders," he said, adding that juries are also hesitant to convict police officers.
As for civil proceedings, Iris says that "civil liability is a joke," as officers are typically shielded from any kind of financial penalty.
Alphonse Gerhardstein, a Cincinnati-based civil rights attorney who has litigated more than a dozen police misconduct cases, said that public policy does not permit a local government entity to pay punitive damages on behalf of an officer.
"But most of these cases, that would result in a verdict where you have both compensatory damages and punitive damages, have issues after trial that the people representing the officer would want to bring up on appeal," he said. "So, if the family of the deceased or the victim of the misconduct want to get their case resolved and finally get paid after years of struggle, sometimes they'll agree to a settlement where they dismiss the punitive damage claim, but the entity will pay every dime of the compensatory damage claim."
Unlikely to change
Ultimately, arbitration is in the police officer's best interest, Gerhardstein said.
"What we have found, traditionally, is that arbitrators are much more generous to police officers and really don't consider the issue of public trust in their determination of an appropriate discipline," he said. "The system is stacked in favor the officers. And that's unfortunate. And I do hope that will change."
But reforming the arbitration process is an uphill battle.
"When you think about the hundreds of thousands that these unions have, they have been able to push back against every meaningful piece of police reform legislation," Henderson said. "The mayor can't come out and say, 'I want to get rid of police unions,' because they make it seem as if you're against police."
Given how politically outspoken police unions are, officials are often wary of confronting them. Still, the aftermath of Floyd's death has changed that, Iris said, adding that a major overhaul of arbitration, while necessary, is still unlikely.
And Cranley has been quick to concede that fact. "Collective bargaining is a negotiation. Essentially, two parties have to agree to a change," he said. "I don't want to mislead anyone, we're not going to end up with a situation with no arbitration for discipline, or no due process for officers."