Power Check: New police arbitration system still flawed
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Philadelphia's independent police watchdog says the new arbitration system hasn't improved case outcomes for officer discipline.
Why it matters: Nearly four years after city officials reformed the system to improve accountability and transparency, fired officers continue to be reinstated at a high rate — raising questions about whether real reform is possible.
The big picture: Philadelphia's arbitration has allowed fired officers to return to the force, costing taxpayers millions in lawsuit settlements, back pay and overtime — sometimes for officers who were accused of using excessive force or propositioning a woman for sex while on duty.
- The nation's fourth-largest police force faces the same problems as other departments: Public safety can come at the expense of shielding fired officers from consequences.
State of play: When city officials and the police union renegotiated the contract in 2021, they eliminated the strike system for choosing arbitrators.
- Under that system, arbitrators came from a pool provided by the American Arbitration Association. The city and the union each removed candidates they didn't want before ranking the remaining picks.
- A case was then assigned to the arbitrator ranking highest on the parties' lists.
- The upshot: The system tilted cases toward the same group of arbitrators.
The new system promised to make improvements: The city and police union would select 10 "diverse" and specially trained arbitrators for a new Police Termination Arbitration Board (PTAB).
- They'd first agree on mutually acceptable candidates before appointing their own choices to fill the remaining slots, with an opportunity to remove up to two of their opponents' picks.
Yes, but: A new flaw emerged, per Axios' analysis of findings from the Citizens Police Oversight Commission: Arbitrators who ruled unfavorably for either side were removed from PTAB.
Case in point: Former Philadelphia police officer Peter Berndlmaier became the first test case for the new system.
- Berndlmaier was fired in late 2021 after being criminally charged for allegedly hitting his wife during a vacation.
- Arbitrator James T. Giles, a retired federal judge, found evidence supporting Berndlmaier's dismissal, and upheld it in 2023.
- Five months after that decision came down, the police union booted Giles — one of the city-appointed arbitrators — from the PTAB.
Similarly, in 2022, the city removed union-appointed arbitrator David Reilly, who has a 68% officer reinstatement rate going back to 2011, per CPOC.
- But the rules also allow for arbitrators who are removed from PTAB to be reappointed after two years away.
- Last year, the police union restored Reilly to the panel. (Reilly declined Axios' request for comment.)
What they're saying: These tit-for-tat tactics create a structure under which police officers receive "super due process" not afforded to most government workers, UPenn legal fellow David Rudovsky tells Axios.
- It's like judge shopping. Parties with vested interests in the outcomes naturally pick arbitrators who give them a best chance of winning their cases, Rudovsky says.
- "If you go against the FOP, you're gone. If you go against the city, maybe not. The FOP has been much more aggressive in getting arbitrators kicked."
Behind the scenes: The police union has also fallen short of upholding its promise of equity in the PTAB panel's makeup, CPOC found.
- Currently, the union has five appointed arbitrators compared to the city's three, according to CPOC.
- While the panel technically meets the diversity requirements outlined in the police contract, that's only because all three city-appointed arbitrators are women, people of color, or LGBTQ.
By the numbers: The police union and city split the costs of arbitration. They spent $260,000 on it between 2021 and 2023, per invoices obtained by Axios.
- Of the 11 arbitrators taking cases during that time, two who are currently appointed by the union — Reilly and Robert C. Gifford — collected the bulk of the money — $140,987 — for handling 17 cases. (Gifford didn't respond to Axios' requests for comment.)
- Between the lines: Most invoices obtained by Axios were for pre-PTAB cases, when the strike system increased the likelihood that certain highly ranked arbitrators would receive more cases.
The latest: In recent contract negotiations with the police union, city officials proposed several changes: revising the selection process for PTAB arbitrators, limiting back pay for reinstated officers, lowering the burden of proof for proceedings and creating a pilot program for expedited arbitration.
- CPOC executive director Tonya McClary tells Axios it hasn't been allowed to take part in the contract negotiations despite having its ability to conduct independent investigations at stake.
- "That has been one of my asks," she says. "We have our own general counsel who is capable of being there to carry forward our message and to negotiate, but the city's position is that they represent us, so we are not at the table."
- City police union president Roosevelt Poplar didn't respond to Axios' request for comment.
Zoom out: Other states have found ways to improve their arbitration systems.
- Minnesota selects arbitrators for police misconduct cases, stripping that power from cities and unions.
- Oregon created fixed punishment ranges for specific types of misconduct, which arbitrators must follow when officers are found guilty.
The bottom line: Stephen Rushin, a law professor at Loyola University Chicago, tells Axios arbitration is an effective tool for resolving disputes when there are proper safeguards.
- But it only works if arbitrators are "fully neutral" and don't have "incentive" to compromise or favor one side.
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