City Hall inertia on one-sided police contract

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Reforming the Buffalo Police Department will require changes in the labor contract between the city and its police union. Major changes.

An analysis by Investigative Post found the contract — a behemoth of a document comprising nearly 400 pages of agreements, amendments, arbitration awards and memoranda — is decidedly one-sided in favor of the union. It makes it tough to discipline officers accused of misconduct and deprives the police commissioner of management rights that are a given in many other departments.

Investigative Post also determined that the administration of Mayor Byron Brown, who has lambasted the union contract, has never proposed changes during negotiations to address these problems.

“What I see in the contract is a lot of push and pull about, okay, ‘What are we going to pay you?'” Cole Adams, a local attorney and police reform advocate, told Investigative Post. “Nothing akin to the reforms that have been identified. Not a ghost of that.”

Investigative Post interviewed a half-dozen lawyers familiar with the contract or public service labor law to gain an understanding of the contract. We also talked to the Police Benevolent Association and members of the Buffalo Police Advisory Board, which advises the Common Council on policing issues.

We tried to talk to Mayor Byron Brown, or to his law department, but the mayor’s spokesman — who is also spokesman for the police department — did not acknowledge requests for interviews.

The Investigative Post analysis found the contract:

• Makes it tougher to discipline officers for misconduct than the protections afforded police under state law or the City Charter. There’s a question if those added protections would stand up to a legal challenge if the city were to mount one.
• Prescribes a seniority system that dictates years on the job, not management discretion, determines assignments and overtime. Key positions such as the supervisors of the homicide, narcotics and sex offense units and the training academy are determined by seniority. Overtime practices mandated by the seniority system help explain officer pay that typically approaches $100,000 a year, as well as higher pension costs to the city, as veteran cops approaching retirement pad their pay to boost their pension benefits.
• Mandates that all but 10 of the department’s 740 employees belong to the union, putting inspectors, captains and lieutenants in the sometimes unenviable position of supervising patrol officers who are fellow PBA members. Even police working the Internal Affairs unit, charged with investigating officer misconduct, belong to the union.
• Does not permit performance reviews of officers, which are required if the department is to retain its state accreditation.
• No longer includes a residency requirement for new officers.

The current police contract expired last July. Negotiations toward a new deal, largely stalled for the past year, are scheduled to resume in early August.

As the resumption of those talks approaches, against the backdrop of heightened demands for police reform, the finger-pointing between the Brown administration and the police union has intensified. The mayor has ordered some reforms outside of the purview of the contract, but more substantial changes must be negotiated or litigated.

Geoff Kelly discusses his story on WBEN

Few, however, know the details of what’s in the contract or how its provisions impact police operations.

“My impression is that the only people who really know what the contract says are the union’s lawyers. Maybe some folks in City Hall,” said Jonathan Manes, a former chairman of the Buffalo Police Advisory Board.

Mayor accuses union of obstructing reform, but his administration has been lackadaisical during contract talks

Over the past two months, Brown and members of the Common Council have found a scapegoat for a police department whose actions have twice this summer drawn national attention to the city — all of it negative.

“The police union is on the wrong side of history,” Brown told MSNBC’s Rachel Maddow, in the wake of the June 4 incident in which two Buffalo police officers pushed 75-year-old Martin Gugino to the ground, fracturing his skull.

“They have been a real barrier to the reform of policing in the City of Buffalo.”

The mayor repeated that characterization at a June 10 media event, when he announced a modest package of police reforms.

There’s some truth to Brown’s claim, according to the attorneys Investigative Post consulted. But those experts pointed out that city government — under Brown and previous mayors — is just as responsible for what the contract says, and what it doesn’t say, as the union.

“I’d love to see [the mayor] cite some examples of how the union has been obstructionist to reform or changes,” PBA President John Evans told Investigative Post.

“I don’t know that anything has ever been proposed to us to be obstructionist about,” Evans said.

“The union’s job is not to reform the police department; their job is to protect their members,” said Lee Howard Adler, a Cornell University law professor with five decades experience in labor law, including representing police and fire unions in New York State.

Reform, Adler said, can only be achieved through negotiation. And that requires each side understand the other’s goals and leverage points.

The disciplinary process provides officers with added protections that could be susceptible to a legal challenge

The union’s first priorities, according to Evans, are always the bread-and-butter issues: wages, health insurance and pension benefits. Though union officials argue that suburban departments pay their officers better than the city does, city police make good money. The median salary of police union members in the 2018-19 fiscal year was $96,000; more than 250 cops earned over $100,000, including three who topped $200,000.

The health insurance is generous, and so are the pension benefits — especially as the contract makes it easy for officers to amass overtime in their last years of service, at their highest pay rate, boosting their pensions.

But the union cares about more than wages and benefits. The contract provides protections to its members, too. Key among these, according to Evans, is the seniority system, which determines how vacancies are filled, shifts are assigned, and overtime is awarded.

The union also keeps an eye on anything that can be construed as a term or condition of employment, too, including annual performance reviews and residency requirements.

And, in the current environment — where cases of police brutality have sparked demands for reform nationwide — the union cares about preserving a disciplinary process that makes it difficult to punish officers accused of wrongdoing.

Let’s say Buffalo Police Commissioner Byron Lockwood decided to fire Lieutenant Michael DeLong, who directed a profane tirade at a woman recording an encounter between police and a man with substance and mental health issues on June 28.

Or, let’s say, the commissioner decided to discipline Officers Aaron Torgalski and Robert McCabe, the officers who shoved Martin Gugino to the ground.

All three officers were suspended without pay. (Torgalski and McCabe also face second-degree assault charges.) But that’s just the start of the disciplinary process outlined by the police contract.

If the commissioner decides to fire or discipline an officer, he must first present the reasons for doing so in writing within a year of the incident.

The officer, with union representation, then has 10 days to accept or dispute the charges and the proposed discipline.

At this stage, the parties can try to bargain to some middle ground: a suspension, perhaps, or a reassignment. Most discipline cases are resolved that way, Evans said. The union might accept a suspension where the officer clearly has some culpability.

“Officers do make mistakes,” Evans said.

If the union believes the officer did not make a mistake, or no middle ground is reached, the union can call for a formal review. The conflict then goes before a state labor arbitrator, who comes to Buffalo every couple months to hear whatever grievances the department brass and the union have not been able to resolve.

After the case is heard by the arbitrator, there’s one more opportunity for a negotiated settlement of the case. If there’s no agreement, the union will call for full arbitration.

“That doesn’t usually happen over a car accident,” Evans said. “That’s usually something more severe.”

There’s another hearing, in which opposing lawyers present evidence and witnesses. In about a month, the arbitrator will render a binding decision.

All of that takes time, and an officer can only be suspended without pay for 30 days, per the contract and state law. So at some point the officer probably will have returned to paid duty.

In effect, the police commissioner can’t fire an officer for misconduct once the officer passes probation; that authority rests with an independent arbitrator.

The entire process, as laid out in the contract, offers protections that exceed what state civil service law affords officers, according to Adler, the Cornell law professor. Under state law, for example, arbitration of disputes is not necessarily binding, nor is it performed by a neutral third party. Under state law, the arbitrator can be appointed by the mayor or the commissioner. And the mayor or the commissioner can disregard the arbitrator’s decision.

Adler noted that court decisions in New York City and Schenectady have affirmed the power to discipline police officers rests with the commissioner, if a city’s charter says it does, superseding the state Taylor Law and any negotiated contractual provisions.

That, Adler said, could be a leverage point for the city.

“In a time like this, when the political space is closing so quickly for the cops — in the defunding era, where that term is even a part of the conversation — police unions have to make a different kind of political and strategic assessment than they used to make,” Adler said.

Seniority system prevents abuses, but also ties the hands of management in making key supervisory appointments

Evans calls the seniority system “basically the basis of our existence.”

In the past, Evans said, shift assignments, promotions and overtime were often used as tools to reward or punish officers.

The seniority system was introduced in the 1986 contract, negotiated by Mayor Jimmy Griffin’s administration. That contract is the foundational document for the current agreement. The system is meant to protect officers from “vindictiveness and politics,” Evans said, by denying the commissioner and his command team carte blanche to assign officers as they see fit.

Job openings are filled by seniority. The department maintains a monthly transfer list that specifies job openings: a patrol officer in B District, a detective in homicide, a lieutenant in E District, and so on. Officers interested in a position put in for a transfer and seniority, and seniority alone, determines who gets the job.

Promotions are handled differently. Officers take a civil service exam and when a job opens up, the commissioner picks from among the three highest-scoring candidates.

Everyone else — front-line supervisors including inspectors, captains and lieutenants, as well as members of the Internal Affairs unit — belongs to the PBA.

The commissioner can’t appoint the supervisors of key units, such as homicide and narcotics. If a cop has seniority over others seeking the position, the job is his for the taking, regardless of what the commissioner wants.

Similarly, overtime opportunities are doled out by seniority. The mechanism for determining who has first shot at available overtime hours is sometimes complicated, but the principle and the outcome is simple: The most senior officers get first crack at earning extra pay.

This reward has the effect of increasing the city’s pension obligations: The most senior officers earn the most overtime at the highest rate of pay in their final years on the job, which determine their pension.

The city spent almost $9 million in police overtime in 2018-19, on top of nearly $55 million in salaries. The current year’s budget allocates $8 million for overtime on top of $54 million in salaries.

Providing police more training — for example, in de-escalation techniques intended to reduce violent encounters — largely boils down to overtime pay. The union is happy to make its officers available for more training, Evans said, and its current contract proposal includes dedicated training days. But, realistically, training results in increased overtime. The city, short on money, has balked at the expense. The result has been less training.

Police leadership argue that seniority inhibits their ability to determine the best use of its personnel. But Evans said the union will never give it up. He told Investigative Post it’s the contractual protection the union guards most fiercely.

While police make an average of $96,000 a year, they’re not subject to performance reviews the state wants implemented

“Part of the difficulty with the union contract is some of the important parts are what’s not written in there,” said Manes, the former co-chair of the Buffalo Police Advisory Board.

For example, right now the police department can’t do annual performance reviews of its officers. The reason they think they can’t, Manes said, is because the contract does not explicitly permit them. So implementing such reviews could be construed as changing the terms and conditions of employment for police officers. And the contract and the numerous arbitration decisions appended to it over 30 years suggest that any such changes must be negotiated with the union.

“The silence of the contract means they can’t do it without bargaining for it,” Manes said.

“We’ve always been against them,” Evans said, explaining the union’s fear that annual performance evaluations might be used politically, to punish some officers and reward others for reasons apart from job performance.

That said, Evans acknowledged that performance reviews are on the bargaining table in the current negotiations.

“It’s something we’re open to discussing,” he said.

The city doesn’t simply want performance evaluations. It has no choice but to pursue them.

However, the Brown administration was largely an absentee in contract negotiations until just recently, according to Evans. After being stalled by the city for more than a year, Evans said, talks are set to resume in early August.

“There’s been a back-and-forth, but it’s mostly excuses about why they can’t provide a counter-proposal,” Evans said.

The talks are currently in mediation, Evans said, which is one step removed from binding arbitration. An arbitrator will generally only address fundamental contractual matters — wages and benefits — and not deeper policy issues such as performance evaluations, residency requirements and disciplinary procedures.

The residency requirement, intended to incorporate new officers into the community they serve, has expired

The contract that expired a year ago included a residency requirement: Every newly hired officer was required to live in the city for seven years.

When that contract expired, so did the residency requirement. As a result, the last two classes to graduate from the police academy and be hired into the department can live anywhere they want.

That has created an awkward situation, Evans said, where rookies are not bound by the same constriction as officers with more years on the job. And he faulted the city for allowing it to expire.

Orlando Dickson, a current member of the Police Advisory Board, said renewing and strengthening the residency requirement is a key demand among police reformists. Residency contributes to the city’s economy and tax base. It also makes officers neighbors with the people they are meant to protect and police, which humanizes both parties.

“Ultimately the concept of residency is just as valuable to the cops as to the city,” said Adler, the Cornell law professor: The city wants it and they’ve lost it. It’s another point of leverage.

The union, Evans said, is willing to re-establish the requirement. But if the city wants concessions on that and performance reviews, he said, they need to come to the table.

The onus is on the Brown administration to be proactive in negotiating changes in contract that advance reform

Adams, the  Buffalo attorney who analyzed the contract, said its complexity struck her “as a huge red flag.” A contract might include dense legal language, she said, but it should be straightforward and well organized. The police contract’s disorganization and impenetrability are itself an obstacle to reform, she said.

The second red flag she saw was the contract’s one-sidedness.

“A good union contract definitely has the language, the voices, of two people engaged in an adversarial process,” Adams said.

One of those voices is missing from the city’s police contract, she said.

She found plenty of measures protecting police officers in the contract and its ancillary documents, once she had pieced them together. But she found no language about protecting what she called “the health of the citizenry,” which is a duty of the police department enumerated in the City Charter.

Adams attributed that failure in part to the city being financially outgunned by the police union. The union currently has about $3 million on hand, according to its latest public disclosures. It spent more than $200,000 on legal fees in 2019.

On the city side of the bargaining table is the Corporation Counsel’s office, which must handle all the city’s legal affairs and contract negotiations. It’s not a level playing field, Adams said.

But it’s more than a matter of being outgunned.

Elected officials argue the state’s Taylor Law makes the police contract nearly impossible to crack open, but Adler and Adams insist that’s not true. Moreover, there’s little evidence that the city has ever tried to negotiate real reform or even expressed an intention or a coherent plan to do so, according to Adams.

Instead, she said, the contract reflects a consensus between the city and the police union to maintain the city’s policing policies, fundamentally unchanged, for the past 30 years.

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That’s a political consensus, according to Adler, and it happens everywhere: Elected officials are wary of alienating powerful police unions, and union officials are wary of alienating their rank-and-file members — especially when police departments face the sort of scrutiny and criticism they face now.

“Police unions or any union would not know how to do anything but circle the wagons in situations like this,” Adler said. “If a union president sticks their neck out too far, it’ll get chopped off by the membership. It’s a democratic organization.”

Timing of negotiations and protests present a unique opportunity to implement changes that promote reform

The job of police reform, Adler said, falls to the community, its elected leadership, and the city’s police oversight bodies. Buffalo has three of those, and only one — the Buffalo Police Advisory Board — has presented a package of police reforms.

Some of those reforms — such as a citizen review panel, with the power to discipline cops, review the police budget, and suggest policy changes — might require changes not only in the police contract but in state and local law.

De’Jon Hall, a member of the Police Advisory Board, said that’s no reason not to pursue the measure.

“Local governments have significant and broad powers when it comes to ensuring the safety of the public that supersede contractual obligations,” he said.

Some elected officials seem to be coming around to that point of view.

“If we’re looking for a new model, this contract negotiation is an opportune time,” Council President Darius Pridgen said at a June 25 meeting of the Common Council’s Police Oversight Committee.

“There are some issues that need to be a part of the contract,” he said. “I don’t want to hear about what can’t be done.”

Geoff Kelly