Is Arbitration A Fair Way To Decide Police Firings?

Story published: August 10, 2020.

In 2017, Duluth Police Officer Adam Huot dragged a Native American man, Brandon Houle - who passively resisted arrest - through a city skywalk.

The footage was captured on body cameras worn by Huot and two other officers present. At the end of the skywalk, Houle's head hit a metal door frame as Huot dragged him through.

Huot, a nine-year veteran at the time, never reported it. Instead, another officer filed the report. After an internal investigation, Police Chief Michael Tusken fired Huot, who had other complaints on his record, including a reprimand the equivalent of one day's pay. But the Duluth Police Union filed a grievance, and the case was overturned by an arbitrator, who gave Huot his job back, with a suspension. The city and police department appealed that decision, but ultimately lost their case.

"If the police chief in the organization doesn’t have the authority to take away a position as important as this in society, and leaves this to arbitration, I think that’s problematic," Duluth Police Chief Michael Tusken told Almanac earlier this summer. He was not speaking specifically about this case, but about the role of arbitration.

"I think arbitration has its place - if it’s union contracts, if it’s minor disputes, I think it’s fine. If we are looking at gross misconduct, if we are looking at violations of our code of conduct, I think there should be a different route and a different path for us to take," he said.

Supporters say arbitration is fair. A book titled More Than We Have Ever Known About Discipline and Discharge In Labor Arbitration looked at 2,000 cases of arbitration in the state - not all of them police cases. Researcher and co-author Steve Befort said arbitrators upheld firings 52% of the time.

"To the extent that almost half the decisions arbitrators reinstate officers, I can understand why police chiefs aren’t happy about that," he said.

Befort, who teaches employment law at the University of Minnesota, also said that there are generally three reasons why an arbitrator might reinstate someone. One reason revolves around whether or not the investigation was done fairly. Another might be that the allegation wasn't backed up by video recordings. Third, the punishment may not fit the crime - and might not warrant a discharge.

But critics say arbitration needs to be evaluated.

"We have a broken arbitration system for police officers, where essentially 50% or more officers [who] are fired for serious betrayals of public trust, serious use of force violations, win their job back in arbitration," said state Representative Michael Howard (D-Richfield). "These aren’t minor issues. We had an officer who struck a Somali teenager and accosted a group of his friends, and lied about it, and did not report it. That officer was terminated by the city and won his job back with a three-day suspension," he said.

Current negotiated contracts mean arbitrators will continue to be selected based on input from both the employer and employee or labor union. But last month, lawmakers enacted a round of police reforms in a special session. One of the reforms changed the selection process. In the future, the Bureau of Mediation Services will randomly select arbitrators and will require them to only see police cases. That will mean anyone currently doing arbitration cases involving police will have to forego other types of cases in the future or leave police arbitration work altogether.

That change could remove arbitrators with years of experience and knowledge. Mark Schneider is chief counsel for the Law Enforcement Legal Services Union, representing 10,000 members in the state. He said he's in favor of more accountability, but that should also extend to police leadership.

"I don’t represent Officer Chauvin, or any Minneapolis police officer. What we know is there were all those complaints [against Chauvin]. All those complaints should have been investigated by his supervisors or the police chief, and they internally made a decision that that wasn’t appropriate," he said.

In 2019, Taylor Kueng (who identifies as gender non-binary) witnessed the arrest of two Black men in downtown Minneapolis. Taylor and their friend filmed the incident until they were both also arrested by police. One year later, a different video implicated their brother, former officer Alex Kueng, in the police killing of George Floyd. Discover how one family has been impacted by two different videos that captured police force. 

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