It might seem odd to say but the discipline of police officers has features very much in common with an iceberg: Most of the reality is below the surface and often never seen. So it is with the public’s understanding of how and why police officers are disciplined. This especially true when an arbitrator rules on the contested discipline of a police officer in a high-profile case.
An April 2015 report of a court-ordered investigation into the discipline of police officers in Oakland, California, offers clear and comprehensive insight into every officer’s discipline and the related arbitration decisions in that city over the previous five years.
The investigation found the City only “won” only about one-quarter of the cases it presented to arbitration. Blame for the won-loss record was laid squarely at the feet of the City’s case investigation, preparation, and presentation. Significantly, arbitrator error was not cited as a reason for the City losing any case.
The Oakland court ordered the study in the wake of much publicity and litigation following the decision of an arbitrator to reinstate an officer fired after shooting and killing an unarmed civilian. In particular, the court was concerned about the effect that the “failed arbitration” could have on the department’s disciplinary process. However, the investigator’s report was subject to limited media coverage, especially when compared to the initial reporting that typically occurs in suspected abuses of police authority and misconduct.
The court-appointed investigator engaged in a careful and thorough examination of 26 arbitration decisions occurring over the five-year period. Analyzed were not only the arbitration decisions but also complete disciplinary files leading up to the arbitration hearing; all relevant correspondence; the arbitration transcript; the parties’ post-hearing briefing; and the arbitrator’s decision. This led to the review of 150 potential disciplinary files. In total over 10,000 pages of material were reviewed.
In brief, arbitrators upheld the imposed discipline in seven of 26 cases. Of the 19 cases where the arbitrator did not uphold the disciplinary action, discipline was vacated entirely in 11 cases. Of the other eight cases, one-half of the disciplinary actions were reduced to reprimands, and the other half had reductions in the imposed suspensions (amount of time off without pay). The report exposed the deficiencies in the investigations and case presentations that yielded the decisional results.
The investigator’s analysis employed a method rarely used in evaluating arbitration decisions in that the investigator not only read the decisions but the underlying evidence. Identified in the report were several reasons for the city’s lack of success in arbitration, including failures to call union witnesses, call expert witnesses, request pre-hearing discovery, and to litigate aggressively. Also identified was a “dysfunctional relationship between the police department and city attorney’s office.”
In making his recommendations, the investigator noted recent changes that already had yielded two of three recent disciplines being upheld in arbitration and one disciplinary action being reduced. No recent disciplinary action had been vacated.
Notably, there was no suggestion that arbitration be abandoned; nor was there any finding that the earlier cases were wrongly decided. The focus, instead, was on improving the City’s investigation process as well as arbitration case preparation and presentation. In other words, the output of the process can be no better than the input.