Police accountability legislation is an important first step on longer reform path

From the Beacon, Summer 2020

As this issue of The Beacon was going to press, police reform legislation was gaining momentum at the State House, and lawmakers were closing in on passage of important provisions to create a system for the training and certification of police officers, and making other needed changes to law and policy, such as banning chokeholds, to improve and enhance the accountability of police officers.

This is landmark legislation that would help transform how law enforcement is practiced in Massachusetts, with a long overdue focus on racial equity in our justice system.

The provisions in the bills in the Legislature are important first steps, but much more is needed to ensure that cities and towns have the management authority to ensure that the spirit and the expectations raised in the bill can actually be achieved.

Beyond certification and decertification of officers, state law must be changed so that local governments can effectively implement modern policing methods, and cases of misconduct can be swiftly and properly addressed at the local level, and not be undermined by the obsolete Civil Service system and the state’s regressive collective bargaining rules.

In addition to reforming state laws to empower cities and towns to hold public safety officers accountable, communities need flexibility in hiring and promotions so they can diversify local police, fire and other municipal departments. These are necessary steps to advance racial equity in our public safety system. There is an incredible amount of work that needs to be done, and we look forward to collaborating closely with local and state officials to advance these priorities.

The essential long-term reform priorities include the following:

Civil Service reform
Municipal decisions to discipline police officers for excessive use of force or other misconduct, such as racial discrimination and profiling or refusal to implement departmental policies, should not be appealable to the Civil Service Commission and subject to being overturned administratively. This important reform would provide a timely and effective way for cities and towns to act on misconduct and would complement the responsibilities of the proposed Police Officer Standards and Accreditation Committee. This reform should apply to police, fire and all municipal departments.

In addition, cities and towns should have the authority to remove police and fire departments from Civil Service without special legislation or through protracted negotiations. In addition to improving accountability, departing the Civil Service system would allow communities to make progress in diversifying their public safety workforce by adopting modern recruitment and advancement systems. We urge the governor and Legislature to take into consideration legislation included in the Ten Point Plan released last month by the Massachusetts Black and Latino Legislative Caucus (H. 2292), filed by Rep. Russell Holmes, and legislation filed by Rep. Stephen Kulik in the last session (H. 1410).

Collective bargaining reform
It is indisputable that Chapter 150E, the state’s collective bargaining law for municipal employees, has created a system of unresponsive contract rules that make accountability of public employees for misconduct, particularly police and fire, almost impossible to implement. For a comprehensive analysis, please see this 2017 study of police contracts, published in the Duke Law Journal, which details the many ways that collective bargaining statutes have led to arbitration requirements and other provisions that undermine the ability of municipalities to hold officers accountable for misconduct.

The MMA is asking state leaders to review Chapter 150E and modernize the law to clarify that discipline and termination policies, procedures and actions related to excessive use of force, racial discrimination and profiling, or refusal to implement departmental policies are fundamental management rights and are not permissible subjects of collective bargaining.

Chapter 150E should also be updated to ensure that use-of-force policies, use of body cameras, reporting requirements related to collecting and providing information regarding race, ethnicity and gender, decisions regarding whether to leave the Civil Service system and the replacement of that system, the creation of civilian review boards or other disciplinary review processes, and training on racial equity, implicit bias, de-escalation, and use of force, are basic management rights and not permissible subjects of collective bargaining.

Almost all of the contract rules that undermine accountability have been in place for a long time, added during a very different time and without a full understanding of how the system would evolve. For example, having disciplinary decisions subject to arbitration may sound reasonable, except that the arbitration system has evolved such that it is common practice for an arbitrator to overturn or weaken a disciplinary action – arbitrators have a natural incentive to “find middle ground” so they are rehired in the future – but this is not in the public interest when it comes to use of force or racial bias.

Once in place, it is exceedingly difficult to remove these contract provisions, because new language needs to be agreed to by both parties, and management has been unable to win reform at the bargaining table. The solution is to clarify in state law that the policies, procedures and actions listed above are inherent management rights, and are not subject to collective bargaining under Chapter 150E.

JLMC reform
Cities and towns have long been frustrated by the overreaching conditions and infringements on management decision-making that have been imposed by the Joint Labor-Management Committee over the years. After binding arbitration was repealed by the voters in 1980, the JLMC process was established in state law to provide a closure process for collective bargaining on police and fire contracts. The process has led to significant encroachment on municipal operations, far beyond salary and benefit decisions.

In order for any accountability reform to be effective, the JLMC statute must be clarified to limit the agency’s mediation and arbitration process to salary and benefit decisions only. Arbitrators should not have authority to recommend or impose any provisions that conflict with basic management authority, including discipline and termination policies, procedures and actions related to excessive use of force, racial discrimination and profiling, implementation of departmental policies, use of civilian review boards, use of body cameras, decisions about exiting the Civil Service system, hiring and promotional practices, racial equity training or training in general, and similar management prerogatives.

Qualified immunity
The issue of civil actions against public employees is highly complex and multi-layered, and has been the most talked-about aspect of the pending legislation. The goal of providing individual accountability in our civil justice system is an important one to advance, yet there are many issues to address to avoid unforeseen consequences, such as exposing taxpayers to financial liability. Further, while the intent of the change is to address public safety, the language that is currently in play is very broad and would impact the entire state and local governmental system. The qualified immunity changes as passed by the Senate would impact all municipal employees, far beyond law enforcement, and would also include public entities. Since a public entity is really the taxpayer, it will be essential to reach consensus on the actual impact of the proposed changes before enacting them. MMA is strongly recommending a detailed and comprehensive study to understand and address all aspects of the qualified immunity issue.

Comprehensive reform won’t be easy
We applaud the Legislature and the governor for prioritizing racial equity and police standards, training and accountability legislation in the closing weeks of the legislative session. While the MMA strongly supports this and related legislation, it is important to recognize that these are first steps in a much longer racial equity reform process.

The MMA is raising the Civil Service, collective bargaining and JLMC issues knowing that they will be controversial reforms to advance, yet we are absolutely certain that these further reforms are necessary to ensure that we have modern and accountable policing and a diverse public safety workforce.

Above all, local leaders need to have the tools and authority to ensure that racial equity is central to all aspects of public safety.

Massachusetts is on the right path – the challenge will be to keep moving forward.