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Updated July 3, 12 p.m.
The Philadelphia Police Department recently benched 72 officers whose offensive Facebook posts were flagged last month in a national database called the Plain View Project. Commissioner Richard Ross promised that some of them would be fired.
But those officers shouldn’t worry too much. In Philadelphia, losing your badge is often temporary — even when the fireable offense ranks far more serious than a Facebook post.
The police lieutenant caught on camera slapping a woman at a 2013 parade in North Philly. The officer fired in 2015 after shooting three men over three years while on duty. The six narcotics officers acquitted of charges in a corruption probe.
All of them got their jobs back through the grievance arbitration process written into the police’s union contract.
The Fraternal Order of Police Lodge 5, the union that represents city cops, has estimated that its attorneys win as high as 90 percent of all grievance cases, which are determined by a single arbitrator’s ruling.
According to police data provided to Billy Penn, more than a third of officers terminated in the last decade were able to get their jobs back through the arbitration process — often, controversially, with back pay. The department has dismissed 224 officers since 2008. While unclear how many filed grievances against the department, arbitrators ultimately granted reinstatement for 77 officers, with a dozen cases still pending.
These numbers have long been a source of frustration for both criminal justice advocates and police department leadership. They say returning tainted officers to the force erodes public trust and weakens the influence of top brass on their rank-and-file. FOP union leaders have argued arbitration isn’t at fault.
How has the system been allowed to go on for so long without reform?
The police contract is up for renewal every three years, but there is little consensus as to how to go about changing the matrix of laws. Former administrators have sought reforms to grievance arbitration and failed.
Mayor Jim Kenney’s administration did not push for major changes to the disciplinary process when it worked out the 2017 contract with the police union. The contract is up for renegotiation again next year.
“The administration will certainly be looking at it ‘eyes wide open’ because there have been a lot of inquiries overall,” said Monica Marchetti-Brock, director of the Office of Labor Relations under Kenney.
‘An act of God’ to keep bad cops fired
Grievance arbitration is enshrined in a 1968 collective bargaining act for Pennsylvania’s police and firefighters. Labor officials describe it as a tradeoff. Because emergency personnel are not permitted to strike, they need another way to resolve contract disputes.
Under Pennsylvania Act 111, the union can engage is what’s called “interest arbitration” for all variety of contractual matters, and union members can file grievances to dispute individual cases with the city — from suspensions and terminations to promotions and overtime.
But Philadelphia’s battle over disciplinary reform goes back even further.
The FOP has provided free legal support to officers whose jobs came under the microscope for corruption or misconduct allegations since at least the early 1950s. After one brutality scandal in 1958, the city established a Police Advisory Board to investigate complaints against officers. While applauded by national reformers, the FOP quickly filed a lawsuit to dismantle the program, arguing that officers would be demoralized by review from the non-uniformed public. The courts eventually defanged the limited power of the board.
Scrutiny of the department would only escalate in the 1970s under former Mayor Frank Rizzo, a former police commissioner who advocated for aggressive law-and-order policing. Complaints skyrocketed during these years, and the Philadelphia Inquirer published a series exposing widespread coverups around internal discipline and criminal investigations within the department.
The grievance process garnered more public attention in the 1980s and 1990s, after numerous departmental scandals landed in the national spotlight. Some even drew indictments from juries — like the former North Philly narcotics unit whose brutality earned them the nickname “the Four Horsemen of the Apocalypse.”
But for cases that didn’t end in convictions, however, it was common for once-fired cops to end up back on the streets.
In 1996, city officials began to make grievance cases public for the first time. One officer asked for his job back after two separate assault charges against women, including beating his female partner. Another was arrested for selling switchblades to an undercover state trooper, whom he called “sleazy.”
The FOP’s legal defense team developed a near-impeccable record appealing cases to reinstate officers, even those who admitted to wrongdoing. It became a maddening reality for police commissioners — and it would change little over the decades.
In 2001, then-Police Commissioner John F. Timoney said it would take “an act of God” to reform the “mind-boggling” appeal process. Under its tight mandates, Timoney himself had been forced to rehire a rogue’s gallery of officers the department had fired for drug use, drunk driving and domestic violence.
Two commissioners later, Charles Ramsey watched his considerable efforts to “melt the badges” of tainted officers be undone by arbitration system.
Ross, the current commissioner, now too contends with potential disciplinary reversals. FOP officials have already vowed to reinstate former Officer Ryan Pownall if he is cleared of murder charges in the 2017 fatal on-duty shooting.
Is the problem the officers, the mayor or…the arbitrators?
Some critics have argued that the PPD, one of the oldest municipal police departments in the country, has deeply ingrained cultural issues that foster misconduct among a minority of officers. Those base habits are then reinforced, the thinking goes, by a union contract that protects perpetrators from consequence.
Others say the issue is in the complicated grievance process itself. Not Chuck Wexler, executive director of the Washington-based Police Executive Research Forum.
It’s the arbitrators that are the problem, he says.
Wexler cited the reinstatement of Lt. Jonathan Josey, who slapped a woman in 2013, as a particularly egregious example of bad arbitration. After a frame-by-frame review of video of the incident, the arbitrator decided it showed the woman slipped on a can — and fell on her own at the exact moment Josey’s arm made contact with her face.
[youtube url=”https://www.youtube.com/watch?v=9MSmaSkAqL0″ caption=”Video%20of%20the%20alleged%20’slapping’%20%2F%20slip-on-a-can%20incident” /]
“Officers should be afforded their rights as unionized workers,” Wexler said. “At the same time, how did the arbitrator get to that decision and restore the officer? It’s very cynical.”
Collective bargaining agreements mandate arbitrators be selected by both sides. While “interest arbitration” dealing with contracts is determined by a panel of three arbitrators — one selected by the city, one by the union and one neutral arbiter agreed on by both parties — grievance cases are handed by just one person.
Who picks this judge and jury?
Marchetti-Brock, the director of Kenney’s labor relations department, said both the city and union select from a list of arbitrators provided by the American Arbitration Association. Each party chooses their arbitrators based off their past rulings, among other factors, and the association makes the final call.
Arbitration hearings, which are closed to the public, function like informal bench trials, featuring opening statements, testimonies and evidence. But they aren’t bound by state legal codes. Arbitrators can admit evidence that would otherwise be excluded from court by the Pennsylvania Rules of Evidence.
Wexler says the process relies too much on the arbitrator’s whims — and that the police union has too much influence over the selection process.
“They don’t get selected if they don’t support certain positions,” Wexler said. “The process in and of itself is flawed.”
The FOP Lodge 5 declined to comment for this story, and calls to three of the union’s arbitrators went unreturned. In the past, union officials have blamed poor investigations by police department officials and attorneys.
From the city’s perspective, Marchetti-Brock says arbitrators follow the Just Cause standards — the golden rule for modern labor disputes. There are seven questions to weigh under a Just Cause consideration, and the labor director said each case should be weighed individually.
“Could the disciplinary policy be tightened? Of course,” Marchetti-Brock said. “But I think that it’s not the reason that these officers get their jobs back.”
Contract wars: Mayor vs. FOP
Union contracts codify a broad range of labor issues, from wage increases to pensions to overtime. The arbitration process is just one piece of the puzzle that gets renegotiated between the city and the various municipal unions every few years.
Civil rights advocates like attorney David Rudovsky, who has sued the city multiple times over police misconduct, argue that the administration can and should take a tougher position on these negotiations around officer discipline.
Few administrations have put pressure on — let alone been successful at — changing the grievance process.
Back in 1992, when the city enacted austerity measures to avoid financial collapse, municipal unions weathered a major financial blow as then-Mayor Ed Rendell tried to right a sinking ship. Two contract negotiations later, in 1998, Rendell sought to cut the union’s right to appeal officer terminations to “eradicate corruption” in the department. The union’s response: Increase salaries for officers. Those pay bumps came, but arbitration reforms did not.
In the mid-2000s, Mayor Street assembled a task force to look at ways to reform the system so bad cops would stay off the force. Like many task forces, it yielded few results. Under Mayor Michael Nutter, the biggest police union contract update was the one that eased residency requirements, allowing officers who’d racked up five years of service to live outside the city.
Mayor Jim Kenney’s administration argues its hands are tied in reforming the grievance process. Marchetti-Brock said any changes would be subject to approval from the union-selected interest arbitration panel.
The Kenney administration signed its first contract with the FOP in 2017, which secured some concessions on pensions but no major changes on disciplinary issues.
“If we’re asking for something, the other side may want something in return,” Marchetti-Brock said. “Sometimes it’s not a dollar amount — it could be a managerial right that we’re not willing to give up.”
The FOP, which endorsed Kenney in 2015, also holds clout in local politics, and does not pull punches on its declared enemies. The union’s political action committee recently erected billboards along I-95 calling for the ouster of District Attorney Larry Krasner, who isn’t up for re-election until 2021.
The Kenney administration will finalize and share its proposals six months before the upcoming contract deadline in June 2020, Marchetti-Brock said. Asked whether disciplinary reforms would be prioritized this time, she wouldn’t commit.
The most she would offer was a hedge: “I can tell you that I think everyone is considering it.”
WHYY’s Ryan Briggs contributed research to this report.