At the time, Boston police Commissioner Michael Cox’s comment seemed innocuous.
“I think if we fire somebody, they should stay fired,” he said during an appearance earlier this month on GBH’s Boston Public Radio, in response to a question about police officers using arbitration to reverse their termination.
Now, in the aftermath of city officials announcing the firing of three Boston police officers — two of whom made inappropriate comments on social media about the Jan. 6 insurrection, and a third whose list of alleged violations is 38 pages long — Cox’s words will be put to the test.
If history is any indication, the dismissals of former sergeant Shana Cottone, and patrolmen Joseph Abasciano, and Michael Geary are anything but a done deal. Attorneys for Cottone and Abasciano say the two will appeal their terminations. Geary’s attorney declined to comment. (Officers can appeal through arbitration, which is grounded in a collective bargaining agreement, or the civil service process, which is a creation of state law.)
Other Boston police officers who have been fired have overturned their dismissals through arbitration to get reinstated. Of the force’s current sworn officers, five were rehired through arbitration, according to the department.
One case is well known in Boston — and to the commissioner, in particular.
David C. Williams was fired twice from the department: The first time was in 1999, in connection with the 1995 beating of Cox, who was then a fellow police officer; and the second time in 2012 after an internal investigation found he used unreasonable force while arresting a man in the North End three years prior.
Williams was rehired after each firing. Last year, he made more than $250,000 as a Boston police detective, according to city payroll records.
Baltazar DaRosa was fired in 2010 for violating department rules in connection with a 2005 slaying. He was rehired in 2012 after being acquitted of charges of being an accessory to the killing. An arbitrator ruled DaRosa was unjustly fired, and he was reinstated with back pay. He made $191,000 as a Boston cop last year.
Other officers were fired and rehired through arbitration after a drunken driving charge, using a racial slur, or for sexually harassing a Police Department employee.
During her mayoral campaign in 2021, Michelle Wu advocated for eliminating binding arbitration for Boston police in cases of certain serious offenses, saying that over 13 years, arbitrators overturned nearly three-quarters of BPD disciplinary decisions and nearly one-third of firings.
John Clifford, a municipal labor attorney, said arbitration — like any other type of litigation — is “a roll of the dice.”
The process is led by arbitrators selected by both sides in a case, typically from a list from the American Arbitration Association, Clifford said. If arbitrators are perceived to be leaning toward labor or toward management, the other side will not select them, he added.
When working toward a decision, arbitrators will examine the reasons why an officer was fired and determine if the department followed policy and protocol. They also weigh what employers have done in the past with similar cases.
“If an employer didn’t terminate someone for the offense in question in the past, the arbitrator is probably going to say you can’t change the rules and terminate someone for the same conduct,” Clifford said.
The challenge that cities like Boston face, he said, is having to dish out punishment based on older policies despite pushing to change the rules regarding police misconduct to reflect the times.
And while municipalities can challenge arbitration decisions in court, Clifford said courts tend to be very deferential to arbitrators.
“Candidly, the arbitrator is the expert,” he said.
Boston isn’t alone — police firings are reversed in departments across the country. A 2017 Washington Post report found the nation’s largest police departments fired at least 1,881 officers for misconduct over a multiyear period, and that more than 450 of those fired officers were reinstated after appeal.
The process, said former Boston police commissioner Ed Davis, “certainly does affect the ability of police managers and city administrators to remove people from service.”
“But it’s the process that’s been decided upon after decades of court cases and legislation,” said Davis, who led the department from 2006 to 2013. Government administrators, he said, will say arbitration “is slanted in favor of employees and that’s understandable. But it’s the only system we have right now.”
The state’s new Peace Officer Standards and Training Commission, which was formed in 2021 in the wake of George Floyd’s murder, can decertify police, a power that could trump an arbitration decision.
State law says, “Neither any agency, nor sheriff, nor the executive office of public safety nor any entity thereunder shall employ a decertified officer in any capacity, including but not limited to, as a consultant or independent contractor.”
Abasciano, Geary, and Cottone all appear on the state’s list of not certified officers as of Feb. 20. Cottone and Abasciano’s listings predate their firings and are labeled as “excused leave” and “disciplinary matter,” respectively. Geary is on the list for being terminated or suspended.
Still, Robert Bloom, a Boston College law professor, said that in many cases, it’s hard to keep officers from winning back their jobs.
Police unions tend to have a lot of power, he said, and these specific cases appear to hinge, at least in part, on First Amendment issues like freedom of speech. He said that could complicate the mayor’s efforts “to clean up some of the bad apples.”
The allegations against Cottone, who spearheaded resistance against Wu’s vaccination mandate for city workers, are numerous and various, according to a written summary of an internal affairs investigation The Boston Globe obtained. They include her allegedly failing to assign a protection detail to the mayor’s house, leaving her area of responsibility without obtaining proper staff coverage, disobeying orders, and undermining the authority of her fellow officers in public spaces, including city pizza shops and protests outside of Wu’s home.
Cottone, who made more than $185,000 from the city after being placed on administrative leave in early Jan. 2022, has said her firing was the culmination of a political witch hunt.
Meanwhile, William E. Gens, an attorney representing Abasciano, argued that his client’s termination was flawed procedurally and substantively.
“The entire process was conducted in violation of a state statute that limits these investigations and procedures to one year,” he said. “This one went over two years.”
Abasciano, who made more than $278,000 from the city after being placed on administrative leave in Jan. 2021, was fired over a series of tweets relating to the Jan. 6th insurrection in Washington, part of which he witnessed in person. His tweeted statements included: “It is time for choosing. Are you a traitor or are you a Patriot?” and “I fear this Treasonous election has killed the republic.”
A deputy police superintendent ruled that Abasciano’s tweets call into question his ability to perform his duties fairly and without bias, according to a written discipline determination. The official also found they “reflect most unfavorably on the department as they support the Capitol riots and insurrection of the United States government.”
Gens asserted the tweets at the heart of the case are “well within the bounds of free speech” and did not violate any social media policy of Boston police.
”It’s obviously a free speech case, based upon statements he tweeted as a private citizen,” he said.
Like Abasciano, Geary was also fired after he made an online comment related to the Jan. 6 riots. Specifically, he used the phrase “rats get bats” in one Facebook comment on an FBI post soliciting information about individuals involved in the insurrection.
He also made offensive online comments about Breonna Taylor, a 26-year-old Black EMT from Louisville, Ky., who was fatally shot in 2020 by police officers during a no-knock warrant action. While Geary admitted to making the comments, department charges related to those statements were not sustained by an internal police hearing officer, who explained there were procedural problems with how the charge was brought against Geary.
Geary’s statements, according to a department ruling, “hindered the department’s continued efforts to building a trusting relationship with all members of the community at a time when policing is under intense scrutiny.”
Geary, whose termination last fall was only made public last week, was paid $83,000 from the city last year, according to payroll records.
Jeremiah Manion of Globe staff contributed to this report.
Danny McDonald can be reached at firstname.lastname@example.org. Follow him on Twitter @Danny__McDonald.