It was in October 2015 that a white Richfield police officer was captured on video striking a Somali American teenager in the head. Officer Nate Kinsey, who had previously been disciplined for how he used force, was fired over the incident.
But in Minnesota, public employees, including police officers can appeal discipline to an independent arbitrator. The arbitrator in Kinsey’s case changed his termination to a three-day suspension. The city and police union fought it out all the way to the Minnesota Supreme Court, which ruled that Kinsey should get his job back. He’s currently a Richfield police officer.
Critics, including some police chiefs, see Kinsey’s case as an example of how difficult it is for police departments to fire bad cops. But police unions say the state’s system of arbitration just allows officers their right to due process, and that it’s the responsibility of departments to consistently enforce discipline, rather than just try to fire officers when high-profile incidents occur.
The fate of arbitration is set to play out at the state Capitol in the coming weeks, as lawmakers convene for a special session where they’re expected to consider this and other measures to increase police accountability.
What is arbitration?
Since 2013, independent arbitrators in Minnesota have ruled about half the time that police officers who were terminated should get their jobs back or receive lesser discipline, according to data from the state Bureau of Mediation Services, which administers the arbitration process.
Officers who got their jobs back include a Ramsey County sheriff’s deputy accused of beating his K-9 dog and a Sauk Rapids, Minn., officer who used a Taser in what the agency notes was a “troubling investigation.” Arbitrators upheld firings in cases where officers were accused of drug possession or pointed a gun at other officers.
Bureau of Mediation Services Commissioner Jan Johnson said arbitration for essential employees like firefighters and police officers is outlined in state law as the final steps in a grievance process over discipline or termination.
When a union and employer request arbitrators, they’ll get a random list of seven qualified arbitrators, who are independent contractors and not state employees. Each party is then able to go down the list and eliminate arbitrators they don’t agree with. The arbitrators try to decide whether the cases the employers brought to the arbitration justifies the discipline.
“Arbitrators can only rule on the facts presented to them in an arbitration case, they can’t go out there and do independent research,” Johnson said. “So, it’s up to the parties on both sides to do due diligence in presenting their cases.”
Appealing an arbitrator’s decision
Typically, arbitrators have the final say. Although arbitrator decisions can be appealed in the courts, it’s rare.
Kim Sobieck is a staff attorney for Law Enforcement Labor Services, the state’s largest police union. She represented Kinsey, the fired Richfield officer, in his appeals. She said arguments challenging arbitrator decisions in state court like Kinsey’s case are typically very narrowly focused.
“Basically, the arbitrator orders something crazy that’s actually going to interfere with public safety, then the courts could reverse an arbitrator’s decision,” she said.
The police union doesn’t take cases to arbitration where there’s evidence where the employer has just cause for the firing, Sobieck said. But she said many cities don’t do a good job building cases that can meet the threshold of arbitration.
“If you really want to focus on why maybe a bad cop gets their job back, you’ve got to look square at the employer,” Sobieck said.
Sobieck said Kinsey’s experience is one example of how the arbitration system is supposed to work. He has been back on the streets for a year and a half and hasn’t been disciplined for any other incident. Kinsey declined an interview request from MPR News.
But Richfield Mayor Maria Regan Gonzalez said the arbitrator’s decision to reinstate Kinsey undermined the city’s efforts to create a more community-oriented police force.
“How are we going to continue to build trust with our community, when we don’t have the power and the leverage to terminate officers that aren’t on the same page or aren’t a good fit for our community?” Gonzalez said.
The Minnesota Supreme Court’s decision found that the officer’s behavior was “disturbing,” but that the arbitrator did have the right under state law and the union contract to reinstate the officer.
“There are so many police departments like our own that are working extremely hard to make changes at every level to do the right thing,” Gonzalez said. “When we fight and we push and we push to do the right thing, and we don’t have the ability to make that change, it’s disheartening, it’s frustrating, it’s upsetting and it obviously calls for some serious reform.”
Arbitration systems common nationwide
Minnesota is far from alone in allowing police officers to appeal discipline before an arbitrator. The practice is commonplace across the country, said Stephen Rushin, a criminal law professor at Loyola University Chicago.
In looking at police discipline appeals nationwide in the last decade, Rushin found that arbitrators reduced or overturned discipline against the officer about half the time. He said it raises the question of whether arbitrators should have the authority to unilaterally overturn discipline handed down by democratically elected officials.
“What does it mean about our ability to control our police department?” Rushin said. “Those arbitrators aren’t accountable to community members, they aren’t accountable to the voters in the same way that a police chief who is appointed by the city council or a mayor is actually accountable to the public.”
Rushin said being able to weed out bad cops more easily may also benefit the wider police department culture. He said research shows that a small number of officers are often responsible for a significant amount of misconduct, and the presence of those officers makes it more likely that other officers in the department will also engage in professional misconduct.
Providing due process for police officers is important because terminating them can affect their families and livelihood, but Rushin said it’s fair to ask whether police should be treated differently from other professions because of the powers they’re given.
“There is no other profession where we give someone a badge, a gun and the authority and training to utilize deadly force,” Rushin said. “Nor is there any other profession where, as a profession across the country, those government servants who serve and, as you know, serve a civilian population, kill a thousand people a year.”
Maybe one egregious incident is sufficient to convince a chief that an officer isn’t qualified to do the job, rather than requiring documentation of three or four policy violations as is the norm, he said. The public also has an interest in seeing that the process is transparent.
“That person, while they’re on the force and given a gun, they can create significant social harm in that process,” Rushin said. “Because the stakes are so high, we need to make sure that we have a system that recognizes those stakes, and yes, recognizes due process, but also protects the public.”
‘This is really about systems’
State Rep. Kaohly Her, DFL-St. Paul, introduced legislation after Floyd’s killing to change the state’s arbitration system for law enforcement officers. It would take away the ability of the parties to pick arbitrators in cases, and appoint a pool of arbitrators specifically focused on law enforcement discipline cases.
She said communities of color have known for a long time that police officers were held to different standards than others, and Floyd’s death made it more clear that it’s time to act.
“The mother who is worried about her son coming home at night, she's been worrying about it for a really long time,” Her said. ”There are many, many people with these stories and with these experiences that we need to start stepping up and protecting.”
Her’s proposal is supported by cities that have experienced challenges with the arbitration system like Richfield, as well as the Minnesota Chiefs of Police Association. Other police groups including Law Enforcement Labor Services, oppose the change.
Police union executive director Sean Gormley said it’s a solution in search of a problem, and that lawmakers should be aware that legislative proposals made to address issues with Minneapolis police will have huge implications throughout the state.
“I don’t want bad cops. The public doesn’t deserve it,” Gormley said. “But there is a process, we need to adhere to that process.”
Her’s legislation changing the arbitration system passed the House earlier this year but was recently tabled in the Republican-controlled state Senate. She said she hopes her legislation and other proposals around police accountability will move forward during the upcoming special session.
“The way these conversations have been shaped have been either you’re for or against the police,” Her said. “This isn’t about that at all — this is really about systems, when systems aren’t set up to do what we’ve tasked them to do — that’s an injustice to our officers, that’s an injustice to residents.”
Proposals around police accountability at the Legislature range from revamping the state police officer licensing board to changing the legal threshold where a police officer is justified to use deadly force.