George Floyd’s death in 2020 sparked significant debate regarding police reform in America, which continues today. The investigation of Derek Chauvin, the police officer responsible for Floyd’s death, discovered that he had previously faced at least 18 misconduct complaints, but he received only two written reprimands.[1]
While this fact did not go unnoticed, insufficient attention was paid to the collective bargaining agreement that enabled this apparent lack of accountability.[2] Debates on police reform have largely focused on banning certain law enforcement techniques and restructuring police departments. But union contracts are an often-overlooked source of improving policing and discouraging poor policework. Reforming union contracts is necessary to improve transparency, encourage high-quality policing and remove officers who fail to meet expectations.
Collective bargaining agreements are contracts between a union and an employer that establish the terms and conditions of employment for a group of workers. Police departments, like other public employers, are often unionized, with patrol and command officers regularly classified as separate bargaining units with their own union contracts. While these agreements cover similar issues, the terms can vary, even within the same department.
Many police collective bargaining agreements contain restrictions on how, when and if a police officer can face discipline for misconduct. Almost all union contracts make the issue of discipline subject to arbitration, which creates an opportunity for disciplinary decisions to be reviewed and potentially overturned.[3] Some curb the period in which discipline can be investigated or issued. Contracts can also limit how long records of disciplinary action remain in an employee’s personnel file. Some contracts forbid previous discipline from factoring into promotion or retention decisions.
These provisions appear designed to protect police officers from wrongful disciplinary action. But in practice, they can create barriers to holding officers accountable for their actions on the job. As a result, problematic employees are often permitted to remain in positions for which they are unsuited, posing a potential risk to the public and undermining the overall effectiveness of a police department. This is also harmful to the upstanding police officers who must work in an environment that includes unfit colleagues.
Academic studies have found that collective bargaining agreements can be correlated with increased misconduct and abuse of power. A 2018 University of Oxford study found that the scope of protections offered to police officers by their collective bargaining agreements had a direct correlation to police violence against citizens.[4] Similarly, a 2019 University of Chicago study found that the expansion of collective bargaining rights to sheriff deputies in Florida gave rise to a 40% increase in cases of violent misconduct.[*] A 2021 paper suggested that providing collective bargaining rights to law enforcement was accountable for roughly 10% of “the total non-white civilian deaths at the hands of law enforcement between 1959 and 1988.”[5] It also found that granting bargaining privileges to police offered “no meaningful impact on the numbers of officers killed in the line of duty,” suggesting that union-negotiated protections for officers failed to offer an offsetting benefit to their costs.[6]
Considering the correlation between union contracts and police misconduct, one relevant question is whether collective bargaining reforms could improve police accountability. To gain a better understanding of what areas could be improved through legislation, the Mackinac Center obtained 25 police collective bargaining agreements from municipalities throughout Michigan. These contracts come from a broad geographic cross-section of the state. We reviewed them for policies that impact municipalities’ ability to discipline officers who have regularly engaged in misconduct.
Our review suggests that most collective bargaining agreements in Michigan contain terms that are problematic for transparency, adequate discipline and stewardship of taxpayer dollars. In our sample set, we found:
[*] It should be noted that these violent incidents are rare. The 40% increase represents an increase of just one additional incident every five years. Dhammika Dharmapala, Richard H. McAdams and John Rappaport, “Collective Bargaining Rights and Police Misconduct: Evidence From Florida” (University of Chicago, August 2019), 4, https://perma.cc/N3F6-4GUD.