A Law Unto Itself

Police Contract Undermines Law and Order

Collective bargaining for police officers presents a number of problems for local governments. First, there is the obvious challenge of arriving at a fiscally sustainable package of wages and benefits with union officials who seek to maximize compensation for their own members, a difficulty that is common to all collective bargaining. But aside from that, there is the challenge of applying the collective bargaining process to police work. There is every reason to believe that collective bargaining undermines discipline in police forces throughout the state

Law enforcement is the first duty of government at any level, and police work demands a high degree of physical courage, intelligence, fairness and discretion from police officers. While much of police work may be routine, even dull, any police officer “on the beat” may be forced to make what is literally a life-and-death decision with only seconds or less consider his or her options. A police officer is expected to investigate crimes, make arrests, and in rare cases may be called on to fire on and kill an assailant. The work is essential to the functioning of a free society, but the potential for abuse of police authority is very real and the consequences of such abuse — or even honest misjudgments — can be grave: harassment, false arrests, the hardship of a criminal trial, even tragic deaths such as that of Aiyana Stanley-Jones.

With so much at stake the maintenance of discipline and a strong chain of command is essential. Given the importance and the dangerous nature of their work, police officers deserve our respect and gratitude, but by the same token there must be no doubt that those same police officers are servants of the public and ultimately accountable to the public for their actions.

Yet the instant that collective bargaining turns from wages and benefits to working conditions, which is unavoidable under state labor law, the union is in a position where it can exercise a dangerous degree of influence over decisions that ought to be made by higher ranking police officers and civil authorities. For an example of the problems that collective bargaining presents for police departments, consider the agreement covering police officers in Canton Township.

To start, the collective bargaining agreement provides that police officers who happen to be involved in union business (not just elected union officials) are granted “reasonable” time during working hours to conduct union business without losing pay. In other words they may conduct union business while being paid for police work.

In addition, police officers in Canton benefit from special rules when they are investigated for a state or federal offense or in the aftermath of an automobile accident resulting in death or serious injury. The officer is to be given a summary of charges against him or her, and any order to make a statement must be in writing. There is no language in the contract indicating that these rules are limited to incidents that occur while on duty.

The contract does include language that on the surface looks like a strong statement of the township’s prerogatives in running the police department: “Nothing in this Agreement shall be construed as delegating to others the authority conferred by law on the Employer, or in any way abridging or reducing such authority.” But important provisions scattered throughout the contract undermine that authority.

The city is allowed to establish “reasonable” work rules, but the union has the right to challenge these through the grievance procedure. Disciplinary actions against police are complicated by rules that limit how long a disciplinary record will remain in an officer’s personnel file, and disciplinary decisions are also subject to grievances.

The grievance process itself is problematic: the final step of any grievance process is submission to an arbitrator from the Michigan Employment Relations Commission, the Federal Mediation and Conciliation Service, or the American Arbitration Association, a private organization. The union chooses which of these three entities will provide an arbitrator. (This arbitration is distinct from PA 312, which settles the content of an entire collective bargaining agreement when the union and government cannot agree to terms.)

Arbitration of work rules and discipline by a private entity is entirely inappropriate for police departments because a private arbitrator has an incentive to split differences. If an arbitrator angers the union or the employer too often, he or she is unlikely to be selected for future cases. The availability of arbitration means that the union can thwart law enforcement policies it disagrees with and can set aside disciplinary decisions, weakening the control that local government would otherwise have, and ought to have, over its police force.

Finally, the contract states that it supersedes all inconsistent rules and regulations. “Insofar as any provision of this Agreement shall conflict with any ordinance or resolution of the Township, the Agreement shall prevail.” This turns law enforcement on its head; the contract is a law unto itself.

Civilian control over police is not without its problems; local officials may not fully appreciate the dangerous and stressful nature of police work. Police officers may resent having their actions second-guessed by attorneys and politicians. Local officials generally ought to give police officers a healthy benefit of the doubt. But whether the standards that the community establishes for police officers be strict or lenient, the setting and enforcement of standards for police conduct is a duty that must be performed by local officials under the scrutiny of citizens themselves. The work that police do is too central to government and the stakes, life or death in some instances, are too high; oversight of law enforcement is a role that should never be bargained with a union or delegated to arbitration.

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Paul Kersey is director of labor policy at the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, Mich. Permission to reprint in whole or in part is hereby granted, provided that the author and the Center are properly cited.