Police Unions and Officer Privileges.

• Author: Fegley, Tate
• Position: Report

On the evening of June 28, 2008, Officer Paul Abel of the Pittsburgh Police Department was celebrating his wife's birthday. During the celebration, he consumed four beers and two shots of liquor. After leaving the party, Abel claimed to have been sucker punched in his car while stopped at a stoplight. He retrieved his Clock pistol from the trunk of his car and drove in pursuit of his attacker. Driving around the block, he spotted Kaleb Miller, a person he knew from the neighborhood and believed to be the one who punched him. Abel then pistolwhipped Miller on his neck and accidentally shot him in the hand. Witnesses testified that the assailant who punched Abel looked very different from Miller. Abel was later arrested.

Common Pleas judge Jeffrey A. Manning found Abel not guilty of aggravated assault, reckless endangerment, and driving while under the influence of alcohol. Chief Nate Harper, however, considered his conduct to be unacceptable and fired him. With the aid of his employee union, Abel was able to successfully appeal the decision to an arbitrator, who reinstated him to his position as a Pittsburgh police officer within a year of the incident (Sherman and Lord 2009).

In addition to having the benefit of engaging in arbitration to appeal disciplinary actions by his employer, as an officer in the Pittsburgh Police Department and a beneficiary of the contract between the city and the Pittsburgh Fraternal Order of Police, Abel has the benefit of having citizen complaints against him expunged from his record after a certain amount of time, (1) being protected from discipline by civilians, retaining his pay while suspended, and having his legal defense paid for him by the City of Pittsburgh in the event he is sued during the performance of his duties.

Although the fact that police unions (2) have a large impact on police practices and management is widely acknowledged, they have been neglected as a research topic (Walker 2008). The National Academy of Science's comprehensive review of the literature on policing in America in 2004 contains one reference to police unions: "State laws also regulate the collective bargaining rights of organizations representing police employees. State laws regarding the appeal or arbitration of police officer discipline cases have an impact on accountability in local departments" (Skogan and Frydl 2004, 55). Furthermore, Marcia McCormick notes, "Discussions in the legal literature about the way that police culture contributes to misconduct or efforts to stymie reform mention unions mostly in passing, without considering them separate from law enforcement officials" (2015, 59).

However, the relationship between police unions and accountability (3) has begun to receive more attention in the academic literature. Rachel Harmon, for example, recognizes that in the thirty-six states in which police departments are required to bargain with unions prior to imposing any new rule that could affect the terms or conditions of employment, any internal reform meant to address accountability' issues, such as requiring the use of body cameras, must be approved of by the unions. "Collective bargaining therefore functions like an immediate tax on these internal department reforms" (2012, 799). Seth Stoughton argues that many of the rules that affect police practices, such as state laws that govern collective bargaining by public-sector employees, are incidental in that they are not intended to have any effect on police practices. The incidental effects Stoughton considers police unions to cause include rank-and-file officers embracing a more legalistic approach to policing and collective-bargaining agreements specifying grievance procedures that "both discourage and frustrate attempts to discipline individual officers" (2014, 2211).

Stephen Rushin (2017) compiled union contracts for 178 cities with populations greater than 100,000, noting that these contracts cover about 40 percent of municipal officers in states that allow police to collectively bargain. He found that 156 of the 178 contracts studied contained at least one provision that make it more difficult to legitimately discipline officers engaged in misconduct. Some empirical research suggests that provisions in these collective-bargaining agreements may result in greater amounts of misconduct. Dhammika Dharmapala, Richard McAdams, and John Rappaport (2017) exploited a quasi-experiment in Florida where in 2003 the state Supreme Court extended to sheriffs deputies the collective-bargaining rights already enjoyed by municipal police. Employing a difference-in-difference approach, they found that collective-bargaining rights led to a 27 percent increase in complaints of misconduct against the typical sheriffs office.

This paper aims to explain why politicians would find protections an attractive way to compensate police officers, to provide evidence that unionized departments have been more successful in obtaining protections for their members than have nonunionized departments, and to explain how these protections affect the mechanisms for disciplining officers.

The first section provides a brief history of the development of police unions in America and an explanation of why they have obtained the aforementioned privileges. In the second section, I discuss how the privileges obtained by unions undermine the ability of the criminal justice system, civil law, and civilian oversight to hold officers accountable and compare the prevalence of these privileges in large police departments with and without collective-bargaining agreements. The final section looks at the privileges that inhibit the ability of police management and police officer standards and training commissions to discipline officers.

An Economic Analysis of Police Unions

American municipal police officers started to join unions in the late nineteenth and early twentieth century in order to improve pay and working conditions as well as to provide mutual assistance. The Boston Police Strike in 1919 is commonly cited as the event that retarded this process for several decades. Governor Calvin Coolidge responded to the violence during the strike and the looting after it by calling in the National Guard, whose attempt to restore order resulted in nine deaths and twenty-three wounded. Widespread public skepticism regarding the desirability of police unions led to the collapse of all American Federation of Labor-affiliated police unions. (4) Police unions generally did not gain a permanent foothold in American police departments until the 1960s, an effort that Kevin Keenan and Samuel Walker claim was partially a response by rank-and-file officers to U.S. Supreme Court decisions that hampered their ability to fight crime, to civil rights protests against police brutality and discrimination, and to management practices that kept officers out of the departmental decision-making process (2004, 196). Hervey Juris and Peter Feuille cite four factors that served as the impetus for the growth of the police union movement: increased public hostility, lawand-order demands on the police, low pay, and poor personnel practices (1973, 19). "Public hostility" includes the aforementioned Supreme Court decisions, public protests, and calls for civilian review boards. "Law-and-order demands" refer to the increasing levels of crime at the time and the expectation that containing it was the responsibility of the police. Poor personnel practices cited by officers include "the lack of internal civil and constitutional rights for officers being investigated for misfeasance and malfeasance" and "lack of a functional grievance procedure" (Juris and Feuille 1973, 21). Unionization was considered an effective means for addressing these concerns.

Why might these issues arise in the first place? To explain, it may be helpful to highlight some relevant differences between the private and public sectors. In long-run competitive equilibrium, a worker is paid his discounted marginal product. However, this is not necessarily true of workers in the public sector. One thing we can say for certain is that a public-sector employee is paid at least his opportunity cost, but this has no necessary relationship to his marginal productivity in the public sector. Police departments are bureaucratic. One of the defining features of bureaucracy is that it, as an institution, has no profit-and-loss accounting and therefore cannot engage in rational economic calculation (Mises [1944] 2007, 48). Being unable to measure the value of output, police managers are also unable to determine whether the wages paid to police officers reflect their marginal productivity. (5) The inability to measure the value of police output is also relevant in regard to the issue of the demand placed on police to control crime. Because police are a common-pool resource (Rasmussen and Benson 1994; Benson 1998) for which no price is charged, consumers of police services have little incentive to economize on their use of police resources. The result is that more policing is demanded than can be supplied, putting a strain on police resources.

In addition, given their inability to engage in economic calculation and the fact that the revenue does not come from market exchanges, police managers have more discretion than managers in the private sector when it comes to personnel practices; that is, if the police manager creates a work environment that is suboptimal from the perspective of the rank and file, he faces little financial repercussion from losing employees to competitors in the labor market. (6) But if he creates a work environment that is too accommodating for officers at the expense of other concerns (such as by neglecting to faithfully investigate accusations of corruption or other types of misconduct), he also faces relatively less repercussion than would a manager in the private sector. There are constraints at both ends of the...