Repeal Oakland City Charter’s Binding Arbitration Protection for Police Officers and Fire Fighters
The time has come for Oakland to remove some or all binding arbitration protection for uniformed police and fire disciplinary matters and compensation. Arbitrator decisions overrule decisions by the Chief of Police, City Administrator, and the Police Commission.
Binding arbitration is enshrined in the Oakland City Charter as Section 910 “Arbitration for Uniformed Members of the Police and Fire Departments”. The disciplinary part of that section protects bad cops. The compensation part makes it impossible to reduce compensation.
Binding arbitration does not work for police disciplinary disputes. Bad police officers get off too often, too easily. Policing regulations are difficult to enforce.
The protection it gives police and fire uniformed employees against arbitrary and capricious supervisors is outweighed by the damage to the public from bad cops and unenforced accountability.
Recent New Yorker article: “When the St. Paul Pioneer Press reviewed appeals involving terminations from 2014 to 2019, it discovered that arbitrators ruled in favor of the discharged police and corrections officers and ordered them reinstated forty-six per cent of the time. (Non-law-enforcement workers were reinstated at a similar rate.) For those demanding more accountability, a large obstacle is that disciplinary actions are often overturned if an arbitrator finds that the penalty the department meted out is tougher than it was in a similar, previous case—no matter if the penalty in the previous case seemed far too lenient.”
A labor arbitrator who does not handle police or fire disputes, explained to me that arbitrators by training often “split the baby”. That works fine in civilian employee grievance situations but when the police chief or the Police Commission wants an officer fired for something like excessive use of force and the officer’s attorney wants the officer reinstated with back pay, too often the officer gets reinstated with some loss of pay. Another reason arbitration is not suitable for police disciplinary disputes is that arbitrators want to get re-hired. So, they naturally try to “balance” their rulings even though they should not. From a University of Pennsylvania law article: “From an accountability perspective, this mindset can be highly problematic if it results in arbitrators feeling compelled to frequently reduce the termination of unfit officers to mere suspensions”.
Two weeks ago the Washington DC city council revoked binding arbitration for police disciplinary issues effective for new police contracts. Its police chief supported the DC council decision.
But in Oakland and some other California cities, binding arbitration is guaranteed by the city charter. The charter can only be changed by the voters.
In the late 70’s Jerry Brown as governor signed a bill prohibiting strikes by police and fire. In turn, all of the Oakland municipal unions supported the police and fire associations in getting binding arbitration for both compensation and all other personnel matters locked into the charter because the civilian employee unions have the right to strike for compensation. Civilian city employees rely on the binding arbitration for all other personnel matters that they get thru their contracts with the city. They go to arbitration after other department and civil service appeals. The alternative for them and the uniformed police and firefighters is going to court. Police and fire uniformed employees would still have that right if the charter section were deleted in part or in whole.
Several years ago, Palo Alto removed their charter binding arbitration compensation protection for uniformed services. Not long after, they negotiated a compensation cut for firefighters.
To change or revoke any of the binding arbitration in the charter will require the approval of the Oakland voters. The only way to get that on the November ballot at this late date is for the City Council to approve its placement on the ballot before the summer recess.
Years ago, then Oakland Council Member Nancy Nadel (District 3) attempted to bring the issue up for discussion with fellow council members. Dead silence from her fellow council members.
Some years later, Oakland City Council Member Pat Kernighan (District 2) placed an item on the agenda to discuss this. The item was withdrawn a week later without discussion.
During a prior city fiscal crisis Oakland City Attorney John Russo and Oakland City Auditor Ruby raised the issue of revoking only the compensation part of the charter section. Binding arbitration for compensation in practice means arbitrators match Oakland compensation to neighboring cities such as SF and Berkeley. That makes it very difficult to lower compensation. That proposal never made it past a media release.
In 2016 Oakland District 1 Council Member Dan Kalb tried to make revocation of only the disciplinary section part of Measure LL establishing the Police Commission. He tried again a few weeks ago in the negotiations for the revised Police Commission charter measure. He got his hat handed to him both times.
The most influential opposition is not from the Oakland Police Officers Association and the Fire Fighters Association. It is from the civilian city unions.
A staff member of one of the larger Oakland municipal unions explained it to me: His union board believes that any weakening of the non-compensation binding arbitration charter language would be a “slippery slope” leading to the weakening of contractual binding arbitration for non-compensation issues for all city employees.
The Oakland city union leaders have to decide whether a small risk to their members’ binding arbitration protection is worth the certainty of greatly increasing police accountability.
This won’t need complex drafting. It’s mostly hitting the delete key on a subsection of the city charter in whole or in part.
What it will take is the moral backbone of our council members and the civilian union leaders to do the right thing.