By Troy Graham and Allison Steele
INQUIRER STAFF WRITERS
Depending on the point of view, the arbitration system that Philadelphia police officers use to appeal firings and other punishment is either a broken, biased process or the purest form of justice.
It either allows rogue cops to remain on the streets or protects good officers from capricious, often politically motivated judgments.
But because the police union wins most arbitrations, one thing is certain: It is very difficult to fire a Philadelphia officer.
Through arbitration in the last five years, the union has returned about two-thirds of dismissed officers to the force.
In the latest high-profile case, an arbitrator on March 12 overturned the firings of two officers videotaped by a news helicopter kicking and punching three shooting suspects in May 2008. The arbitrator also reduced the suspension of three others to reprimands, and restored a demoted sergeant to his rank.
The case again highlighted the union's long-held advantage in arbitration. Police commissioners and mayors have been complaining about the disparity for years, saying the system needs to be reformed, and one former commissioner even calls the system heavily weighted to favor the union.
"Why? Because they lose?" asked Thomas W. Jennings, a lawyer who has represented the union in arbitration for more than 20 years.
Former Police Commissioner John F. Timoney said he remembered winning just one hearing during his tenure from 1998 through 2001, after he fired an officer for shooting an unarmed motorist.
"That was the one that severed whatever relationship I had with the union," he said. "It's just not a good system, but Philadelphia is a very pro-labor town."
Former Fraternal Order of Police president Richard Costello said that the city simply failed to make its case to the arbitrators, and that it shouldn't blame the system.
"Say I, as a police officer, lock up six or seven narcotics dealers and have most of the cases thrown out," Costello said. "Would I be justified in blaming the Constitution? Or would I be better served by looking at my own police work and at what I could have done better?"
He said the officers videotaped by the Fox29 helicopter were perfect examples of "death by headline," in which a commissioner quickly fires officers to quell public outrage.
The video was broadcast nationally, and brought condemnations from local and national civil-rights leaders. Commissioner Charles H. Ramsey dispensed his punishments within two weeks.
Ramsey said the allegation that he had acted to quiet the outcry was "simply not true."
"We went through this very, very carefully," he said. "The people making that statement were not in the room when that decision was made."
But Jennings said that after the facts had been sorted from the "media blitz," the arbitrator made the right decision.
The union lawyer said that the officers had done what they had been trained to do - strike resisting suspects in the extremities - and that the blows ceased the second the suspects were cuffed. A grand jury that cleared the officers of any criminal charges reached a similar conclusion.
"Is it a violent encounter? Absolutely. It happens every day," he said. "The reality is [the public] wants the cops to do that. They just don't want to see it."
Everett Gillison, the deputy mayor for public safety, said he did not want the public to interpret the arbitrator's decision to mean the officers had acted properly.
"The hell they did," he said. "They did not act the way we want them to. . . . I don't want this to be seen as the city saying they did the right thing. They did not."
Indeed, the arbitrator, Ralph H. Colflesh, did find that some of the officers had stepped over the line - but only slightly.
Colflesh found some of the strikes "superfluous" or administered without due care, but ruled those transgressions to be "minor" and "innocuous" and deserving of only reprimands.
Colflesh, a full-time arbitrator and mediator, has rendered hundreds of decisions on labor and other issues throughout Pennsylvania and New Jersey.
Police said the suspects had fired into a crowd and injured three people before leading officers on a 21/2-mile chase. After cornering the vehicle, officers swarmed the car.
"If one of them had been shot, it would have been, 'They're heroes,' " Jennings said of the officers. "When one of them didn't get shot, they're bums."
Police said the suspects had tossed the gun used in the shooting, though it was later found. All three were acquitted of the shooting at trial, and they are pursuing civil lawsuits against the city.
FOP president John McNesby said Ramsey could have spared time and money by putting the officers on desk duty during the investigation instead of rushing to fire them.
"There's got to be some middle ground in how police are investigated," McNesby said. "It can't be a whitewash, but it can't be a witch-hunt, either."
The union welcomed the officers back to work Friday during a happy hour at FOP headquarters on Spring Garden Street while a smattering of protesters gathered across the street.
Capt. Gregory Malkowski, commander of the police Labor Relations Unit, said there were times when the commissioner must take quick action before an investigation is complete.
"You have to weigh the circumstances," he said. "There are some cases where, do you want that person working as a police officer for one more day if the accusations are true?"
The union said it wins some sort of victory in 90 percent of arbitrations. Malkowski said that "depends on whose eyes you're looking at it from."
He said many of the union's victories included some punishment for the officers, such as the ones in the Fox29 case left with reprimands.
In firings, Malkowski said, the union has won about two-thirds of the cases since 2005.
Since then, the department has fired 127 officers, he said. Forty-two got their jobs back through arbitration, and 23 did not. Four officers did not grieve their firings, and 58 cases have not been resolved.
"It just doesn't seem to come out in a way that shows the balance you would expect," Ramsey said.
Malkowski acknowledged a distinct advantage for the union. The handful of lawyers who represent officers in arbitration have remained largely the same for 15 years or more, he said, while the Police Department has cycled through 13 lawyers in just the last three years.
"I'm in no way pointing fingers at the lawyers, because they do good work," Malkowski said. "But if we had some of the same attorneys going against these guys, I think it would level the playing field a bit."
Arbitrators are lawyers who provide their services through the American Association of Arbitration. They are picked from a list of three, with both sides striking a name if they cannot agree. Critics say arbitrators, who are paid as independent contractors, can get blackballed for ruling against the union.
"To stay on that list, almost implicitly they have to be pro-union," Timoney said. "There's an inherent conflict in the system. . . . It's kind of a wink and nod by everyone involved."
Arbitration is commonly available to unionized workforces, but Timoney and others have argued that the police should operate more like the military, with a formal inquiry similar to a court-martial.
Arbitrations, which include testimony and cross-examinations, should be mere reviews of a commissioner's decision, they argue.
"I don't have a problem with some sort of appeal to a decision," Ramsey said. "The question is whether that should be arbitration, and I think there are a lot of problems with that."
Jennings disavowed the criticism and said the union's advantage came from another source.
"You've got to remember something: We pick the fights," he said. "There's hundreds of cases that never get to arbitration."
He also dismissed the contention that arbitrators are afraid to be blackballed by the union, noting the city could do the same.
"I've been doing this for 38 years, and there's only four arbitrators I'd never use again," Jennings said. "Everyone in the city can tell you who the four are, because I've railed against them."
And he said the Police Department is not the military, and should not be treated as such.
"The Supreme Court said . . . 20 years ago in a case, 'Get over it.' They're employees," he said. "You don't have collective bargaining in the Army. You don't get to grieve your colonel's orders."
Gillison said he wished the arbitrators would consider the messages their rulings sent to the public, just as Ramsey said his decisions had to take into account the "best interests of the Police Department at large."
"Taking a person's job is a very serious matter," Ramsey said. "The credibility of the agency is at stake in some of these high-profile cases."
As an example of an egregious arbitration ruling, Gillison has pointed to the reinstatement of an officer fired for receiving consensual oral sex on duty.
"If that doesn't shock your conscience, then what is the standard you're going to use?" he asked. "What really matters if the officer is going to blow off calls to do something that pleasures himself?"
Jennings countered that the officer had been on his lunch break, and that "dozens" of officers had been caught having sex on duty. The officer was fired merely because reporters learned about it, he said.
"He embarrassed the department, and they had to do something, and it's much easier to fire him," Jennings said.
Jennings did concede one point. The union, he said, is "extremely militant."
"Which is a good thing, from my point of view," he said. "They do a lousy, dangerous job . . . and they get thrown to the wolves when it's convenient to throw them to the wolves."