Philly’s negotiating a new police contract. Can it get reforms past the FOP union?

The city says its options are restricted by state laws. Advocates say that’s a bad excuse.

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Philadelphia Fraternal Order of Police President John McNesby; Philadelphia Mayor Jim Kenney (Emma Lee/WHYY)

Philadelphia Fraternal Order of Police President John McNesby; Philadelphia Mayor Jim Kenney (Emma Lee/WHYY)

Mayor Jim Kenney’s administration has until New Year’s Day to finalize a draft of the new union contract for the Philadelphia police force. When the mayor brokered the last contract negotiation in 2017, it was scarcely covered in the media. He touted the final deal as a victory, despite few changes in departmental accountability.

This time around, the PPD contract negotiations are shaping up to be a battleground.

At stake: public trust in a police force that has endured one of its most troubling years in recent memory — and how much power the replacement for ex-Police Commissioner Richard Ross will have to enact reform.

The biggest demand for the new contract from police accountability advocates is changes to the rules around grievance arbitration. A standard part of labor law, arbitration has historically helped fired officers be reinstated onto the force. Droves of disciplinary rulings — including for unquestionably egregious misconduct — have been reversed through this process.

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Philadelphia has made previous efforts to reform the PPD, but arbitration practices have not changed. Kenney refused to elaborate on what he’ll be seeking during the upcoming contract negotiations with the Fraternal Order of Police Lodge 5, the union that represents city officers.

A spokesman for the FOP declined to comment on what the union will push for during the bargaining process, or whether it’s open to reforming arbitration.

“The FOP has resisted any kind of reform in this area,” said David Rudovsky, a civil rights attorney who has sued the city numerous times over police misconduct. “I think they’ll continue to do it. How much the mayor is willing to push on this one with the union, that’s the only hope.”

The challenge is not unique to Philadelphia. In some U.S. municipalities, federal and state governments have intervened to help usher in long-awaited accountability measures for city police.

City leaders: Because of state law, our hands are tied

The city says it’s bound by state laws when it comes to major reform, but advocates and labor attorneys say there’s plenty the city could do to push the union for more accountability.

The law that administration officials most often reference is Act 111, a collective bargaining agreement that codifies rules around arbitration for all police officers and firefighters in Pennsylvania. Other unionized public workers — from teachers to utility workers — have similar protections enshrined in state labor law. The arbitration process works similarly for both.

Tweaking Act 111 would be “the most viable path to change,” given the city’s past attempts at negotiating around arbitration, Lauren Cox, a spokesperson for the city’s Office of Labor Relations, told WHYY and Billy Penn.

“Theoretically, the two parties (FOP and City) could agree to a set of changes during contract negotiations — such as limiting what can be grieved or the power of arbitrators to change the penalty — but that has historically proven to be elusive,” Cox wrote in an email.

Cox specifically said the administration would support expanding the appeal options after a decision is made on any given case. As it stands, after an arbitrator rules to reinstate a terminated officer, both the city and employee have very little recourse to ask for a second opinion.

Sidney Gold, a Philadelphia employment lawyer who represents workers in wrongful termination cases, called the city’s emphasis on changing the commonwealth’s labor laws misguided — and essentially passing the buck.

Modifying Act 111 could endanger due process employment rights for other union workers across Pennsylvania, a state with a long history of trying to limit labor rights.

Gold said the city has the power to argue for new disciplinary precedents around specific types of misconduct — from falsifying paperwork to excessive force to sexual harassment within the department — without changing any laws.

“The city can certainly negotiate the terms of discipline,” Gold said. “I don’t know of any impediment that would prevent the city from imposing some standards.”

A collective bargaining issue — or a management problem?

Last summer, former Commissioner Richard Ross resigned after a lawsuit alleged that he failed to act on sexual harassment complaints made by a female officer, with whom he allegedly had an affair. Ross’ departure seemed to throw the scope of the department’s problems into full relief.

A stronger contract could empower the next police commissioner to clean house — while a contract that maintains the status quo could kneecap their efforts from the start.

“If Kenney appoints a commissioner who is a reformer, but doesn’t get the agreement right, the new commissioner’s ability to implement reforms will be limited,” said John Hollway, executive director of the Quattrone Center for the Fair Administration of Justice at Penn Law.

Kenney has promised to announce Ross’ replacement before the end of the year. Whoever lands the role will have to contend with an agency its own commanders describe as broken and dysfunctional. Former PPD Commissioner Charles Ramsey publicly railed about officers getting their jobs back after he vowed to melt their badges.

SEPTA Transit Police Chief Thomas Nestel has terminated more officers for misconduct than his predecessors, but many have been reinstated nonetheless.

Another way Kenney could fight for a better police department? Push for more outside oversight of police operations. Advocates note that the city’s few problematic officers often have long histories of transgressions before they’re fired.

Rudovsky, the civil rights lawyer, said the PPD could theoretically change how it conducts internal affairs investigations without any outside intervention. Historically, however, the department has shielded its internal investigations from the public. Even the mayor’s civilian oversight panel, the Police Advisory Commission, is kept in the dark.

“Unless the police department owns the problem of discipline and actually does discipline officers who should be disciplined, it’s very difficult to control police misconduct,” said Rudovsky.

How other cities have handled police reform

Is there anything Philly can do to increase accountability outside of the union contract? In some cities, the federal government has forced troubled police departments to enter into consent decrees or adopt voluntary agreements for broad reforms.

A consent decree that took effect in Chicago this March was brokered after Illinois Attorney General Lisa Madigan sued the city’s police department in federal court over allegations of civil rights violations, particularly against black and Latino residents.

The agreement requires the Chicago PD to change how it reports use of force incidents and conducts disciplinary investigations. It does not address the grievance arbitration process, which, like in Philadelphia, has resulted in fired cops routinely returning to the force.

The consent decree is not a silver bullet. It can’t override provisions in a contract, and it only requires Chicago to make a “best effort” to eradicate contract provisions that impede transparency and accountability.

It’s not toothless, however. Violating the consent decree can result in contempt of court changes, fines and possible jail time.

“This is an opportunity for real change,” said Craig Futterman, a clinical law professor at the University of Chicago Law School.

In Seattle, where a consent decree has been in place since 2012, civil rights advocates are hopeful that a recent court ruling could reopen negotiations between the city and its police union, which agreed on a new contract late last year.

U.S. District Judge James Robart found in May that the contract fails to address officer accountability when there’s misconduct, saying the city has to “formulate a methodology for assessing the present accountability regime” to be in compliance.

The decision came after an arbitrator found that an officer fired for punching a handcuffed woman inside a police cruiser should instead be suspended for 15 days. The highly-publicized incident was captured by dash cam footage from inside the vehicle.

“[Police officers] are public servants. They’re public employees. And they work for us. And being that they’re public employees and they work for us, we have a right to accountability,” Rev. Harriet Walden, who co-chairs Seattle’s Community Police Commission, told WHYY and Billy Penn.

‘It’s our job to be unrealistic in our demands’

The federal government has intervened in Philadelphia’s police accountability reforms before.

In 2015, following another scandalizing year for the PPD, the city and police entered into a voluntary reform process with the U.S. Department of Justice. A total of 91 recommendations came out of the federal review. Kenney’s administration says the department has implemented all but two — video recording interviews of officers involved in on-duty shootings, and unifying the two oversight boards that independently review the shooting investigations.

The DOJ changed course after President Trump took office, and no final report came out of the process. Asked about a consent decree or other oversight in the future, the mayor’s office said it would not be opposed.

“We certainly would not rule out such a collaborative governance approach utilizing recommendations, but there are no specific plans to do so at this time,” said Cox, the city spokesperson.

Big changes or not, the pressure on Kenney to push back against the police union reflects a change in the city’s political climate in recent years. Rev. Mark Tyler, of the interfaith group POWER, one of the organizations behind the contract protest in Philadelphia, said the mayor had committed to meeting with advocates soon.

“When you talk about reform, demands always start off seeming unreasonably high,” Tyler said.

“At the height of slavery, people calling for total abolition were told they were unreasonable, that abolition should be more gradual and realistic … It’s our responsibility to be unrealistic in our demands.”

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