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In June 2019, a wave of protests unfurled across the U.S. over police misconduct. The spark was an unprecedented trove of racist and violent Facebook posts by police officers, made public in an easily-searchable database.
In Philadelphia, outrage over the Plain View Project’s findings drew swift calls for action, and the police department ultimately punished several uniformed officers for their online conduct.
One year later, nearly all of those officers are appealing their discipline through the police union’s arbitration process — even those who voluntarily left the department rather than face termination.
Questions also remain unanswered about the heavily cloaked decision making behind the punishments meted out by the department. The civilian-led Police Advisory Commission is looking into the situation, but officials have been slow to provide documents and the commanding officer who oversaw discipline for the 330 officers in the database has refused a sit-down.
Following the weeks of demonstrations that followed the Facebook trove’s release last year, the Philadelphia Police Department sought to terminate 15 officers for their social media posts. Eleven of those officers resigned or retired before they could face formal dismissal. Another nine were dealt month-long suspensions.
Now, all of the officers who lost their jobs, along with six of the suspended officers, have filed grievances.
Grievance arbitration is a common and increasingly controversial process for police departments nationwide — as it has historically allowed many fired officers to win back their badges and return to the force. The practice has been spotlighted again in recent weeks amid uprisings against police violence and racism that followed the killing of George Floyd by Minneapolis Police.
FOP argues resignations were a forced dismissal
Under Pennsylvania labor law, unionized employees typically can’t “grieve” their own resignation or retirement. At a City Council hearing over the Facebook posts last fall, then-interim Police Commissioner Christine Coulter assuaged lawmakers by framing the resignations as more effective than terminations for this very reason.
“The advantage of resigning is the arbitration process is not available for them,” Coulter said. “By resigning, they will never be a police officer again. If they don’t resign and they’re fired, they have every opportunity to try to seek getting their job back.”
But it’s not turning out the way Coulter outlined.
Deputy City Solicitor Andrew Richman said the officers who resigned all claimed their actions were a type of “constructive discharge,” an employment law term for a person who feels their work situation has become so untenable that resignation is the only choice.
Legal observers say proving this argument in court is extremely difficult. Recent cases over constructive discharges have not been favorable to employees making the claim.
“It’s very restrictive,” said Sidney Gold, an employment attorney in Philadelphia. “You have to prove you were working under conditions that were basically intolerable, and that you complained to an employer to improve the situation and that those efforts failed.”
It’s unclear how often police attorneys have argued this claim to arbitrators in the past. The Fraternal Order of Police Lodge 5, the union that represents thousands of Philly police, declined to comment for this story.
Lawmakers are ramping up legislation in Harrisburg that would gut parts of the arbitration process, though critics have cast the reforms as an effort to undermine unions writ large. Without arbitration, FOP leaders argue, officers would have no recourse if they were punished over frivolous complaints or retaliation from supervisors.
Beyond those who lost their jobs and faced long suspensions, a larger group of officers received lesser punishments over their Facebook posts.
City attorneys said 114 officers faced “command level” discipline for their posts. Interim Commissioner Coulter originally told Council last fall there were 148 officers who fell under this category, saying they “did not advocate violence against a group, but violated our policy and posted things that were inappropriate.”
Nearly 20% of the 114 officers accepted the punishment — a maximum of five days suspension, according to city attorneys. A number of others are appealing these minor decisions with the department’s three-person Police Board of Inquiry, which rules on cases of internal discipline. The board has voted to overturn the recommended disciplinary rulings appealed by officers in the seven cases it has to date.
What determined which offenses merited which punishment? Much of that still remains unclear.
When the scandal erupted last summer, the city hired law firm Ballard Spahr to determine which posts were protected by free speech. But ultimately, the decisions were up to the commanding officers in charge of discipline, and the civilian Police Advisory Commission has been trying to audit those decisions with little luck so far.
A year of roadblocks for PPD oversight group
Three police commanders gave interviews to the Police Advisory Commission over the Facebook post investigation, according to executive director Hans Menos. But Chief Inspector Christopher Werner, the charging officer who determined internal discipline in the cases, still hasn’t shown up to answer questions.
When it comes to interviewing commanders about their decision making behind controversial clashes — from the Starbucks arrests to the ICE protests — Menos said the PAC never before had an issue under his watch.
“It’s a huge problem,” Menos said. “Because what is Chief Werner hiding? What is he so concerned about? It’s clear to me that this behavior is not accountable to the residents of the city, let alone the mayor’s executive order.”
Werner was brought on to oversee disciplinary rulings in the Facebook probe after Inspector D.F. Pace was removed from that role due to one of his Facebook posts appearing in the database.
Described as a dogged commander by some in the department, Werner previously supervised several narcotics officers accused of criminal misconduct who were chronicled in the Pulitzer Prize-winning Daily News series “Tainted Justice.” (The other supervisor implicated in the narcotics scandal was former Staff Inspector Joseph Bologna, who was charged with beating protesters earlier this month.) Werner later secured a top detective post under former District Attorney Seth Williams, where he worked for several years before returning to the department.
Under powers bestowed by the mayor, the PAC can subpoena records and interviews from the department related to certain investigations. But the commission has often been criticized as toothless, as it can’t force the department’s decisions to mete out punishment in cases of misconduct.
Moreover, the PPD isn’t always accommodating.
The department has a history of stonewalling civilian oversight that dates back to the commission’s first incarnation in the 1950s. The fallout over the Plain View Project brought yet another stalemate: At City Council hearings on the racist posts last fall, Menos said the department was withholding key documents from its investigation, kneecapping the commission’s review of the department’s disciplinary rulings.
But the decision to withhold some documents and interviews comes, at least in part, from the legal team working in Mayor Jim Kenney’s administration.
Richman, the deputy city solicitor, said some documents and interviews sought by the PAC could compromise impending arbitration matters. Per Richman: “The city’s top priority is making sure that disciplinary decisions are upheld when we litigate disciplinary arbitrations — namely, that fired police officers stay fired because they violated the public’s trust.”
That wouldn’t preclude Werner from at least speaking with the PAC along with an attorney, Menos countered, and just declining certain questions if they ran a legal risk for the city.
“I couldn’t even ask him, ‘Hey Chief Werner, do you feel like you were fair?'” Menos said. “That’s the most benign question.”
The city also declined to make Werner available for an interview with Billy Penn. Since a reporter began asking questions about the PAC’s audit in late May, the city said it has made “significant progress towards working out systems which would allow PAC to obtain documents they have requested from the city.”
Under new reforms, Kenney has vowed to transform the advisory commission into another entity, though it remains unclear what shape that will take.