Police Arbitration and the Public Interest
Harvard BlackLetter Law Journal
Arbitrators have been blamed for promoting unaccountable policing by reversing discipline in proven misconduct cases. Although studies have shown great success rates for cops in arbitration, they do not address the legal causes for that success. This paper identifies three factors that permit arbitrators to lawfully rule for rogue officers. The first factor is arbitral failure to incorporate the public interest when assessing discipline because they are not legally obliged to do so. The second is the procedural discretion arbitrators have to exclude incriminating evidence under the labor contract. And the third is Supreme Court doctrine that limits the ability of judges to vacate arbitral awards that are repugnant to justice. The article shows that the rules that facilitate arbitral unaccountability to the public were created for the private sector workplace where the public’s interest is not implicated when a worker violates public laws or workplace rules. Wholesale adoption of private sector arbitration rules in the context of police discipline has insulated cops who present a danger to the communities they serve and the departments they represent. These private sector rules allow arbitrators to make disciplinary decisions grounded in optimistic predictions about officers’ psychological suitability for the job, although they are not qualified to make such assessments. Because the legal landscape for enforcing police arbitration decisions is unsuited to protecting the public from bad officers, the article argues for removal of arbitrators from the disciplinary process. Adjudicated cases show that the nuances of policing, and the difficulties of knowing police officers’ mental states, require that publicly accountable individuals have final authority for police discipline.
Stephen A. Plass, Police Arbitration and the Public Interest, 37 HARV. B.L. LAW J. 31 (2021).