In many jurisdictions in the United States, the final word in disciplinary actions involving police officers is not had by the chief of police, the mayor, or a civilian review board, but by an arbitrator. Using binding arbitration as a means of resolving disputes over attempts to fire or suspend sworn officers is very common, especially in many larger departments. There may be great differences among departments in terms of arbitrators' involvement, for example, which actions are, or are not cognizable before an arbitrator, at what stage in the process does the arbitrator enter the scene, etc. However, a key shared feature is the commitment by both management and the officers, through their unions or associations, to the principle of binding arbitration. Both parties agree to abide by the arbitrators' decisions. The losing party generally has only very narrow grounds to challenge an arbitration decision through a civil suit.(1)
Therefore, in a very real sense, to get a feel for how a police department takes disciplinary action, one must look at the final outcomes of the process. What a police chief or review board may order and what an arbitrator may ultimately decide can be very different.
The objective of this article is to present an empirical evaluation of how a police executive's disciplinary actions against a large pool of officers have been affected by arbitrators' decisions. This study focuses on the Chicago Police Department and covers the years 1990-1993. A total of 328 disciplinary actions were decided by binding arbitration during that period. In addition, under a new process started in July 1993, 205 disciplinary actions have been reviewed by arbitrators for nonbinding advisory opinions as of July 1995. These two distinct data sets demonstrate remarkably similar patterns of outcomes; collectively, the discipline imposed upon Chicago police officers is routinely cut in half by arbitrators. This pattern recurs despite an elaborate, lengthy review process and close scrutiny before the suspension of an officer is ordered.
This extraordinary even-handedness of outcomes raises serious, basic questions about the propriety of the arbitration process. Most studies of arbitration focus on precedential decisions. Although it is rare to have empirical analysis of a universe of decisions from one setting, this study closely scrutinizes one such pool of decisions. This study has particular significance because the underlying cases involve allegations of police misconduct that often arise from the highly charged, high-profile area of excessive force allegations.
POLICE DISCIPLINE AND CIVILIAN REVIEW
Across the United States, the issue of police discipline has been interwoven with the question of civilian review. For years, in many cities, citizens and community groups have pressured municipal authorities to establish civilian review boards. Some of the many jurisdictions which have gone through this debate include Denver,(2) Houston,(3) San Jose,(4) and Boston.(5) The stated rationale is often the same from city to city: citizens' complaints of police misconduct, when investigated by police internal affairs officers, are not handled properly. In calling for civilian review boards in New Orleans and in other Louisiana jurisdictions, the chair of the Coalition of Concerned Black Ministers called the existing police investigative process "a joke. It's a case of the fox guarding the henhouse."(6) A common perception is that the police cannot be trusted to investigate themselves,(7) especially when the allegation is use of excessive force. For exampie., police shootings of several car-theft suspects in Newark, New Jersey led community activists to call for a civilian complaint review board. The activists claimed that the city's Police Director allowed his officers to operate "with impunity."(8) It is argued that only through civilian review, with a panel of citizens responding to public complaints, can the police be held accountable for their actions.(9)
There has been a slow but steady trend to establish civilian review boards in many cities across the United States.(10) There is no single, generally used model of civilian review boards. Panels vary widely in their composition, jurisdiction, and authority. Some jurisdictions have panels composed entirely of citizens while others have panels composed jointly of officers and citizens. In some cities, the panels may undertake their own investigations, while others limit their scope to reviewing the police department's own internal investigations. Some panels have jurisdiction over all allegations of officer misconduct, while others are limited to instances involving allegations of verbal or physical abuse. Ultimately, the most significant variable is the panel's authority to discipline officers. Can the panel, on its own authority, suspend or fire an officer, or can the panel make only a recommendation to the chief of police?
Whether the disciplinary action emanates from the chief of police after the traditional investigation by sworn personnel, or whether the action stems from a citizens' review board, a crucial factor is the appeals mechanism. For discipline to be meaningful, it must be real. Penalties that are perceived as paper actions only, unlikely to withstand the appeals process, are also unlikely to either redirect the errant officer or deter other officers. The police subculture is characterized by a strong degree of suspicion(11) and cynicism.(12) Given such cynicism, in order for a disciplinary system to be effective, it needs to be unambiguously perceived as one capable of making decisions that withstand challenges.
The power to discipline an officer is crucial to police managers. Typically through such action an officer's misconduct can be corrected and other officers can be deterred from similar action. Other resources that can be used by police management to restrain an overly aggressive or errant officer are very limited. Civil service regulations and union contracts not only severely restrict a police chief's ability to reward exemplary performance through promotions, transfers, reassignments, pay increases, or bonuses, but also restrict the police chief's ability to impose sanctions for poor performance. Because police and local prosecuting attorneys cooperate closely, criminal prosecution of officer misconduct is typically limited to a very small number of the most blatant cases.(13) Civil lawsuits against the police for misconduct, filed by persons alleging civil rights violations, are more significant to police management than to individual officers. Typically, a jurisdiction is obligated to provide legal representation to an accused officer in a suit arising from the actions the officer took under color of law, whether on or off duty. The employing jurisdiction is usually obligated to indemnify the officer for any damages awarded in court.(14) An officer may be personally liable only if punitive damages are imposed, which is an infrequent occurrence.
With criminal prosecution, civil suits, and managerial prerogatives severely limited as tools for correcting errant officers, disciplinary action remains the most potent means to get an officer's attention. The threat of losing one's job, or losing a week's or a month's pay while on suspension, is powerful and intimidating.
For rank and file officers, the advent of a civilian review board raises the specter that civilians will be second-guessing ofricers' actions and imposing discipline.(15) For officers, the term "civilian" in this context is almost a pejorative: civilians are outside the police subculture and do not understand the types of people (sociopaths, drunks, etc.) with whom the police must routinely deal.(16) A national police union representative noted that police feel it is difficult for civilians to understand the pressures under which police operate.(17) Police officers find it especially threatening that such second guessing will be done most prominently in cases involving the use of force, which goes to the core definition of a police officer's role.(18)
These arguments have been fought out in city after city across the United States whenever the creation of a civilian review board is proposed. Typically, police unions, associations, and their allies are opposed to creating any such civilian review boards while community organizations and civil rights groups are in support of having such boards. Police union opposition to such boards can be strident. Donald L. Murray, the head of the Boston Police Patrolmen's Association, called the creation of a community appeals board "the ruination of the Boston Police Department. I'm very disheartened. It's a very sad day. And I feel I've been raped and sodomized."(19) In New York City in 1966, the police officers association was crucial in leading the electoral campaign that successfully enacted a charter referendum, strongly opposed by Mayor John Lindsay, to bar any such review board.(20)
There is often a racial dimension to this conflict. In many major cities, Hispanic and black police officers comprise much smaller proportions of the police forces than of the populations within their jurisdictions. In 1992, of the ten largest cities in the United States, only one, Los Angeles, had the same proportion of African-Americans both within the population at large and among its officers. The other nine cities all had significant underrepresentation.(21) For these same cities, the underrepresentation of Hispanic officers was even more pronounced. In 1992, none of these ten cities had a proportion of Hispanic officers that equaled or exceeded two-thirds of the proportion of the city's Hispanic population.(22) This racial divisiveness was illustrated in Houston, when in 1989 the Houston City Council voted, along racial lines, against the establishment of a civilian review board. Council members played down the racial...
Police discipline in Chicago: arbitration or arbitrary?
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COPYRIGHT GALE, Cengage Learning. All rights reserved.
COPYRIGHT GALE, Cengage Learning. All rights reserved.