Residents in West Philadelphia were livid when they learned in April that the two police officers who had mistakenly shot and critically injured a black delivery man, Philippe Holland, in 2014, were being loosed back onto city streets. Four civic groups near the shooting area jointly organized a recent town hall meeting at a local church to vent directly at top brass.
“I don’t understand why the commissioner doesn’t have the right to relieve them of their duties entirely,” said Julie Roberts-Phung, an attendee and volunteer with activist group South Philly Families for Racial Justice.
The officials on stage mostly shrugged – their hands were tied by union arbitration protocols.
“That’s where the Fraternal Order of Police would come in,” said Deputy Commissioner Robin Wimberly, referring to the police union.
To many across the country, it’s a familiar-sounding situation. An innocent black man is shot by police and the officers involved seem to face few consequences. Criminal justice reform advocates and several sitting police commissioners have long blamed their inability to address issues like officer-related shootings in part on language in the city’s union contract – which is currently being renegotiated – that they say protects bent cops.
“The current contract and the provisions that have been in place for many years, in terms of police discipline, have led to a situation in which officers that were properly disciplined by the department are able to get their jobs back through the arbitration process,” said Penn Professor David Rudovsky, who has sued the city over police misconduct. “We've said for many years that the city ought to take a tougher position on these negotiations.”
While it’s only one element of increasing police accountability, as the Holland shooting demonstrates, the arbitration process outlined in the police contract can lead to situations that rankle criminal justice activists.
Union reps filed a grievance over attempts to discipline the two officers in the Holland shooting. Ultimately, they would be suspended for less than a month, “retrained” and put back in service. In that and many other cases, the FOP sought to overturn administrative punishments and restore officers’ back pay, with overtime, after the conclusion of the arbitration process.
Former Philadelphia Police Commissioner Charles Ramsey vowed to “melt the badges” of officers accused in a sprawling narcotics corruption scandal. But his efforts to dismiss those officers similarly collapsed before arbitration panels, and some of the police involved were subsequently promoted up through the ranks of the PPD.
Police accountability advocates pointed to contract language that gives the FOP a big say in who is picked to oversee the grievance process. The current contract recommends the use of guidelines set by the American Arbitration Association that call for the “mutual selection” of an arbiter. The city and the FOP each pick one member of a three-member board and have equal say over the third. The FOP uses this process, advocates say, to hold out for sympathetic mediators.
While that process is not unusual for ordinary labor contracts, advocates say police should be held to different arbitration standards given their extraordinary power over the general public. Another recommendation was to shorten the length of the three-year contract to allow for more opportunities bring work rules in line with other criminal justice reforms.
Others have pointed to the city’s problematic use of two conflicting boards to investigate police shootings, the findings of which are often central to disciplinary disputes. One of those, the Police Board of Inquiry, made up of a panel of police officers, is written into the collective bargaining agreement.
“You look back over the years on arbitration results and what you find is a pattern of reinstatement of officers who have committed serious acts of misconduct,” Rudovsky said. “We’ve said for many years that the city ought to take a tougher position in these arbitrations. If you don't take a tougher stance there, they have a responsibility to address this in the contract negotiations.”
Larry Krasner, who is running for district attorney as a Democrat and has sued police over misconduct allegations, agreed that some change was needed – although he declined to get into specifics.
“With great authority comes great accountability. And that principle applies just as much to the Philly DA as it applies to the members of the Philly PD,” he said. “How can we even talk about law and order unless it applies equally throughout law enforcement?”
(Krasner’s Republican opponent, Beth Grossman, said that it was “questionable whether a district attorney even has legal standing to involve him or herself in FOP contract negotiations,” adding that the DA can choose to decline to prosecute cases involving problematic officers.)
But even with the city’s collective bargaining agreement with the force up for revision, that looks unlikely to change any time soon. Negotiations are handled through a third-party mediator, limiting the city’s direct input. And there is little political pressure for Mayor Jim Kenney or other officials to push for major changes – many elected officials are wary of crossing politically influential FOP chapters across the state.
“I don't know that that's going to happen,” current Philadelphia Police Commissioner Richard Ross said, during a council hearing on the possibility of police contract reforms. “I would, at best, be cautiously optimistic – and I wouldn't even go that far.”
The negotiations themselves largely happen out of sight and with little fanfare, with parties sequestered in a downtown hotel. Although activists recently ambushed Managing Director Michael DiBerardinis in City Hall over another officer-involved shooting, a Philadelphia Magazine op-ed admonished activists for largely failing to organize around contract negotiations. The column was one of the only mentions in local media about the new police contract.
Philadelphia City Council, meanwhile, has little power over police administration and only a few members have made public any desire to see contract reforms.
"I’m on record saying it’s important to look at how arbitration is handled in the contract in order to consistently and fairly enforce standards of conduct,” said Council member Helen Gym. “Everyone – police officers as well as the public – benefits when officers who commit serious misconduct are not returned to the force. This is not a common problem, but it is a recurring one, and it should concern all of us.”
Gym’s colleagues have rarely used their bully pulpit to push for change. Members of City Council assembled for a Wednesday gun violence prevention event organized by 2nd District Councilmember Kenyatta Johnson. But few others – including Johnson, Council President Darrell Clarke and Public Safety Committee Chair Curtis Jones – would discuss the police contract publicly.
“Councilman Johnson has been focused on a major gun violence prevention initiative,” said staffer Joshu Harris. “The police negotiations are important, but Council has no role in them.”
While Kenney spokesperson Lauren Hitt said the city has a longstanding policy of not discussing ongoing labor negotiations in the press, she said both the mayor and police department were committed to broader reforms.
“Both Mayor Kenney and Commissioner Ross believe that strengthening community-police relations is one of their primary responsibilities,” she said, adding that contract negotiation “is by no means the only route for substantive reform.”
Hitt said the city has implemented 61 of 83 recommendations offered by the Department of Justice to reduce police use of deadly force. These included updating the use of force policies, recruit and in-service training, reestablishing the Police Advisory Commission to monitor reforms and creating new “independent” unit within the department that will investigate deadly force incidents. Hitt pointed to decreasing use of stop-and-frisk and officer-involved shootings – which declined from 62 in 2007 to 23 last year – as an indication that these reforms were working.
To Hitt’s point, many police accountability measures can be achieved outside of the contract itself. But one of the major recommendations within the DOJ report – bringing in an outside agency to handle officer-involved shootings – was blocked, in part, because of the collective bargaining agreement.
FOP President John McNesby, who endorsed Kenney's mayoral run, and Vice President Roosevelt Poplar did not respond to repeated requests for comment.