The recent appointment of a new Boston police commissioner has generated fresh hope that long-standing demands for structural reforms in the way the Boston Police Department manages its public safety imperative will finally take hold. Fair warning. Even with a police commissioner committed to reform, progress will be beyond reach if the Boston police unions get their way in the ongoing negotiations of new collective bargaining agreements. To realize her promised agenda of police reform and fulfill the mandate of Bostonians who elected her, Mayor Michelle Wu and Commissioner Michael Cox must take a firm stance in the weeks ahead.
Three of Wu’s signature issues are at stake in these negotiations. The elimination of the unfair and unnecessary police monopoly on certain paid details, the reduction of exorbitant overtime costs maintained at the expense of other public safety priorities, and the restoration of accountability for police misconduct are high on the list of essential reforms that must be accommodated in any new collective bargaining agreement with the police unions. In the absence of a public window into the negotiations, Bostonians will not know until the deal is done whether their hopes for reform have been defended or surrendered. Given this lack of transparency, they must seize every opportunity to speak out clearly and forcefully against concessions that would sacrifice progress to the self-serving demands of the police unions.
While public debate has often focused on budgetary concerns, there is an urgent need to address police misconduct. The case for greater accountability is not open to serious debate; the discipline problem is vast and well-documented. The Globe’s 2020 investigation of discipline within the BPD corroborated what observers of the department have known all along: Boston police officers escape punishment for misconduct far more than even minimum standards of accountability should permit. The discipline process is broken — and the fix must not be foreclosed by concessions to the police unions in the new collective bargaining agreements.
Under the current contract, police officers have the right to submit contested discipline decisions to binding arbitration. Binding arbitration, a key feature of the police unions’ demands, grants arbitrators the power to modify or overrule the police commissioner’s discipline decisions. In theory, binding arbitration is a labor-friendly concept that protects Boston police officers from arbitrary discipline decisions. In practice, however, the unconditional right to binding arbitration defeats police accountability.
Under the current regime, the scales are tipped in favor of police officers, giving them a winning hand that is incompatible with the imperative to enforce accountability for misconduct. According to statistics presented at a Boston City Council hearing in 2020, arbitrators in Boston police discipline cases overturned nearly three-quarters of the commissioner’s discipline decisions. The city cannot justify adherence to such a flawed process at the expense of meaningful accountability, especially when a viable, less problematic alternative exists. Police officers, like all public employees in Massachusetts, have the right to challenge unfair disciplinary actions against them by appealing to the Civil Service Commission.
The limited availability of judicial review to mitigate the bias in favor of police officers compounds the binding arbitration problem. A court cannot grant primacy to the police commissioner’s judgment on the appropriate response to police misconduct. Even if an arbitrator’s decision is wrong on both the law and the facts, there is little a court can do to ensure that officers are held to account for their misdeeds. As the Massachusetts Supreme Judicial Court recently ruled in a case involving an officer fired twice for serious misconduct, the law requires deference to an arbitrator’s decision, except in narrowly defined circumstances that rarely affect the outcome.
To achieve the goal of reimagining of public safety as demanded by the people of Boston, the department must cure the inertia and neglect of duty that has allowed police misconduct to flourish without consequences. The police commissioner must also have the tools to root out bad actors and end the culture of impunity with all the vigor and seriousness he has promised. The elimination of binding arbitration of discipline decisions will go far in bringing this goal within reach. The people of Boston must support Wu in holding the line on this crucial step in the contract negotiations. Progress demands nothing less.
Geraldine S. Hines is a former associate justice of the Massachusetts Supreme Judicial Court.