The rate at which third-party arbitrators have been reversing disciplinary actions in police misconduct cases has caught the attention of policy makers throughout the country who are looking at ways to rein in the appeals process.

National studies have shown that it’s not only Hawaii where police administrators have a hard time making discipline stick, including firing officers who have committed egregious misconduct and even been convicted of criminal offenses.

A Civil Beat analysis of 58 arbitration awards issued over the past 25 years shows that discharged officers are reinstated at a rate of nearly 75%. The rate is only slightly lower, 65%, when considering all disciplinary actions, including suspensions and discharges.

“Hawaii appears to be an outlier, but it’s not like it’s much better elsewhere,” said Mark Iris, a lecturer at Northwestern University who studies police arbitration.

Iris is the former executive director of the Chicago Police Board, a civilian oversight agency that reviews the most serious cases of officer misconduct in the city.

Iris published two separate studies on police arbitration, one in 1998 of the Chicago Police Department and another in 2002 of the Houston Police Department. The findings were nearly identical. After reviewing hundreds of cases, Iris found that the arbitrators were reducing the length of suspensions and overturning discharges at a rate of nearly 50%.

Put another way, Iris said, the arbitrators “split the baby with almost perfect fifty-fifty precision.”

Others have found similar trends, including researchers in Minnesota who reviewed public sector arbitration as a whole and police arbitration more narrowly.

Earlier this year, Loyola University professor Stephen Rushin published a study of 624 arbitration awards from police departments across the country. Again, the findings were consistent. Arbitrators reduced or overturned officer discipline in 52% of cases. In those cases involving termination, arbitrators ordered officers to be rehired 46% of the time.

From Iris’s perspective, such high rates of reversal are problematic. As he spelled out in his study of the Chicago Police Department, the ability to discipline officers is crucial for a police chief to correct bad behavior and deter future misconduct.

“The threat of losing one’s job, or losing a week’s or a month’s pay while on suspension is powerful and intimidating,” he said.

But in order for that discipline to be meaningful, Iris warned, it must be real. Penalties that can’t stand up to an appeal quickly lose their efficacy.

“The police subculture is characterized by a strong degree of suspicion and cynicism,” he wrote. “Given such cynicism, in order for a disciplinary system to be effective, it needs to be unambiguously perceived as one capable of making decisions that withstand challenges.”

‘It’s Somewhat Of A Gamble’

The data on arbitration outcomes is limited and comparisons between police departments can be hard to make.

Nationally, comprehensive data on arbitration outcomes is scarce, especially in cases involving officer misconduct. Part of the problem is a lack of transparency.

Police departments and, more specifically, police unions, have gone to great lengths to keep officers’ disciplinary records hidden from public view, including in Hawaii, by filing lawsuits, staging protests and threatening electoral consequences for politicians advocating for more openness.

Only recently did a change in the state’s public records law allow Civil Beat to get access to dozens of previously secret arbitration decisions.

Many decisions, however, may never come to light. Officials in Hawaii routinely lose track of or destroy arbitration awards involving officer misconduct, which means it can be difficult to get a full picture of what exactly is happening in the islands.

Hawaii’s police union, the State of Hawaii Organization of Police Officers, also refuses to provide much clarity. SHOPO closely guards its arbitration records and union officials have been reluctant to discuss arbitrators’ rulings outside of generalities.

Despite the shortcomings, a handful of news agencies throughout the country have been able to gather records showing just how often police chiefs are forced to bring back problem officers.

In 2017, the Washington Post published an investigation of officer firings from 37 of the nation’s largest police departments, including the Honolulu Police Department. The newspaper found the departments had fired 1,881 officers since 2006, but that police chiefs were forced to reinstate 451 of them after they appealed their terminations. In many cases, the decision to rehire was made by a third-party arbitrator.

The Post’s analysis included 33 officers who were fired by HPD, 19 of whom were reinstated on appeal, although the data did not denote whether the reversals came via arbitration or other means, such as a settlement agreement between SHOPO and the department.

The percentage of officers reinstated by HPD as a whole ranked 4th among the other departments included in the analysis. Only San Antonio, Denver and Philadelphia had higher rates of reinstatement.

The Philadelphia Inquirer ran its own story that looked at 170 arbitration awards and settlement agreements involving city officers from 2011 to 2019.

The findings were similar in that the Inquirer determined that nearly 70% of cases appealed by the police union resulted in a reduction in punishment, whether it was reinstatement or reducing the length of a suspension.

According to the newspaper’s analysis, many of those cases were settled before being decided by an arbitrator. Of those that were, the data published by the news agency showed that fewer than 50% of disciplinary actions were upheld.

Last year, the San Antonio Report published an article that analyzed 71 officer terminations within the San Antonio Police Department. The news organization found that of the 23 cases that went to arbitration only 13 were upheld. Another 20 officers were reinstated by the police chief after an appeal, but before the case could be decided by an arbitrator.

San Antonio Police Chief William McManus told the Report that the reason he opted to return the officers to duty was so that he could dictate the terms of their reinstatement rather than leave it up to someone outside of the department.

“It’s somewhat of a gamble,” McManus said. “I would rather be able to control that than take my chances with the arbitrator.”

A Vexing Policy Question

There are any number of reasons why so many suspensions and discharges are overturned.

Some blame the unions for wielding too much power over the disciplinary process while others take aim at the departments for conducting flawed and overreaching investigations.

The arbitrators, too, are not immune from criticism.

Among the arguments is that they rely too heavily on past decisions and historical leniency in addressing misconduct, especially in cases of domestic violence and sexual misconduct.

Arbitrators have also been accused of splitting their decisions so as not to appear too pro-union or pro-management, hoping that their evenhandedness will result in them getting hired again.

Philip Stinson is a professor at Bowling Green University who studies officer misconduct and crime committed by the police. He said arbitrators often must work within the framework that’s in front of them, whether it’s a collective bargaining agreement or a department’s own policies.

More often, he said, it is agency officials that can’t seem to follow their own rules.

“It’s easy to make the unions out to be the bad guys, but I think you have to look a little deeper and see the rationale that the arbitrator cites for their decisions,” Stinson said. “There are a lot of mistakes that are made and it’s completely inexcusable.”

Rushin, meanwhile, says it can be hard to draw sweeping conclusions from the numbers.

In his own study, Rushin found that the 52% reversal rate offers evidence supporting the theory that arbitrators tend to gravitate toward compromise. But that figure alone, he said, doesn’t tell the whole story.

Each case that goes before an arbitrator is unique and there can be many reasons cited for overturning or reducing an officer’s punishment. There’s also a lot of variation by department, which is evident in the differences between the appeals seen in Hawaii’s police agencies and those found in Texas or Washington, D.C.

The real question that needs to be asked, Rushin said, is: How often should arbitrators be overturning a police chief’s disciplinary decisions?

“To me that’s the one of the most vexing policy questions,” he said.

Rushin found that across the country most arbitrators weren’t reversing disciplinary actions due to procedural defects or a lack of due process, such as by not offering an officer a chance to respond to the allegations made against them in a termination proceeding.

In many cases, the arbitrators supplanted the judgments of police chiefs and other city leaders, often saying that the punishment was too harsh or out of step with what’s been meted out in the past.

In other cases, the arbitrators simply didn’t agree with the facts, even those that were vetted by internal affairs investigators, departmental administrators and other oversight entities, such as a police commission or human resources appeals board.

That gives a lot of power to arbitrators, Rushin said, and can feel “anti-democratic.”

He pointed to Minnesota and Oregon, two states that have pushed to reform police arbitration.

In Minnesota, arbitrators will now be selected from a panel of gubernatorial appointees rather than by the union and the employer, a process that critics say provided financial incentives to issue split decisions.

Oregon, on the other hand, passed legislation that placed limits on arbitrators’ ability to change punishments by forcing them to abide by disciplinary matrices developed by departments.

Minnesota’s reforms came after Derek Chauvin, a white Minneapolis police officer, killed George Floyd, a Black man, by kneeling on his neck during an arrest. Video of Floyd’s death sparked nationwide calls for racial justice and police accountability.

It also spurred numerous inquiries into Chauvin’s own disciplinary history — which was substantial — and forced lawmakers to grapple with the fact that half of all fired police officers in the state were reinstated by arbitrators.

“As communities we have to look ourselves in the mirror and recognize that any procedural protection that we think is producing bad results didn’t just become law or get included in union contracts on their own,” Rushin said.

“Our city and state leaders agreed to those provisions and if we object to them then we need to hold those leaders accountable to change them. So to me, this is a matter of politics and a matter of accountability on the part of our local and state government officials.”