Bargaining in Blue: New Jersey court rules Newark police union must agree to disciplinary changes

Bargaining in Blue, a monthly newsletter from Ballotpedia, provides news and information on police collective bargaining agreements (CBAs), including the latest news, policy debates, and insights from Ballotpedia’s analysis of police CBAs in all 50 states and the top 100 cities by population.

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In this month’s edition of Bargaining in Blue, we examine the role of police unions in developing disciplinary procedures for law enforcement officers. We review a state appellate court ruling requiring union involvement in establishing disciplinary procedures in Newark, New Jersey; arguments from scholars and the media on union participation in crafting disciplinary procedures for law enforcement officers; and insights on the topic from Ballotpedia’s analysis of police CBAs in all 50 states and the top 100 cities by population.

In this edition:

On the beat: New Jersey court rules Newark police union must agree to disciplinary changes
Around the table: Arguments from the negotiating table, scholars, and the media on the role of police unions in developing disciplinary procedures for law enforcement officers in CBAs
Insights: A closer look at discipline for law enforcement officers in CBAs and key takeaways from Ballotpedia’s analysis

On the beat

New Jersey court rules Newark police union must agree to disciplinary changes

A state appellate court ruled on October 3, 2023, that the city of Newark, New Jersey, cannot modify discipline policies for law enforcement officers without consulting the police union.

Following a three-year probe into allegations of police harassment of minority residents in Newark, the U.S. Department of Justice (DOJ) found in 2014 that the Newark Police Department had “engaged in a pattern of ‘unconstitutional stops, searches, arrests, use of excessive force and theft by officers,’” according to Patch. The resulting consent decree, reached by the fedeal govenment and the city of Newark in 2016, directed Newark to implement certain changes to police department policies, such as revising search and seizure policies, implementing de-escalation requirements, and deploying body-worn cameras. The agreement also directed modifications to other disciplinary procedures, use-of-force policies, training, and oversight.

In response to the consent decree, the police union argued that the city and union must agree on changes to disciplinary procedures for law enforcement officers. The police union filed a complaint with the New Jersey Public Employment Relations Commission (PERC), which ruled that disciplinary procedures must be collectively bargained. The city of Newark then appealed the decision to the Superior Court of New Jersey, Appellate Division.

Judges Thomas W. Sumners and Lisa Perez Friscia argued, “The [consent decree] did not authorize the City to unilaterally impose disciplinary procedures and sanctions against the Unions’ members and sidestep its collective bargaining obligations.” The state appellate court ruling affirmed the decision of the PERC and the requirement for the city and union to agree on changes to disciplinary procedures for law enforcement officers.

Want to go deeper?

Around the table

Arguments about union involvement in developing disciplinary procedures for law enforcement officers

Law professor Jonathan H. Adler argued in a 2020 Reason article that the role of police unions in shaping disciplinary procedures prevents officers from being held accountable for misconduct. Adler claimed that such collective bargaining agreements establish protections that impede efforts to increase police officer accountability:

Recent academic research further demonstrates that police disciplinary procedures established through union contracts obstruct accountability and … collective bargaining for police officers appears to increase police misconduct. This is not surprising. Through collective bargaining, police unions demand protections from disciplinary procedures that would not otherwise be approved, oppose consent decrees and other measures to increase police accountability, and (given the power of police unions in state and local politics) they receive relatively little pushback.

Reporters Kim Barker, Michael H. Keller, and Steve Eder wrote a 2021 article for The New York Times that highlighted perspectives from police union representatives arguing that police union involvement in developing disciplinary procedures ensures protections and due process rights for police officers:

Union leaders defend the disciplinary protections, saying that police work is difficult, and that rules help ensure that chiefs don’t impose discipline because of political pressure or personal biases. Public outcry, they said, can unfairly influence a city’s decision to fire an officer accused of excessive force.

Insights

Newark CBA on discipline for law enforcement officers

The Fraternal Order of Police Newark entered into a collective bargaining agreement with the city of Newark, New Jersey, on January 1, 2018. The CBA outlines certain provisions related to discipline and discharge of law enforcement officers, but ultimately grants the city the right “to suspend, demote, discharge or take disciplinary action for good and just cause according to law.”

Article 29 of the CBA between the city of Newark and the Fraternal Order of Police Newark states the following:

Section 1.

IT is agreed that nothing herein shall in any way prohibit the City from

discharging or otherwise disciplining any employee regardless of seniority, for good and

just cause

Section 2.

Any actions taken by the City under this Article shall be subject to Article 4,

Grievance and Arbitration, when applicable law permits.

Section 3.

A complaint charging a violation of the internal rules and regulations established

for the conduct of a law enforcement unit shall be filed no later than the 45th day after

the date on which the person filing the complaint obtained sufficient information to file the

matter upon which complaint is based. The 45 day time limit shall not apply if an

investigation of a law enforcement officer for a violation of the internal rules or

regulations of the law enforcement unit is included directly or indirectly within a

concurrent investigation of that officer for a violation of the criminal laws of the state.

The 45 day limit shall begin on the day after the disposition of the criminal investigation.

The 45 day requirement of this paragraph for the filing of a complaint against an officer

shall not apply to the filing of a complaint by a private individual.

A failure to comply with said provisions as to the service of the complaint and the

time within which a complaint is to be filed shall require a dismissal of the complaint.

Key takeaways on discipline in CBAs

Ballotpedia’s analysis of police CBAs in all 50 states and the top 100 cities by population featured the following information about discipline in police CBAs, as of December 2021:

There are 20 state CBAs and 40 city CBAs that specify how law enforcement officers will be disciplined for misconduct
There are 6 state CBAs and 39 city CBAs that do not specify how law enforcement officers will be disciplined for misconduct
There are 22 states and 17 cities that do not have police CBAs
There are 2 states and 5 cities in which the request for information on police CBAs was denied or information could not be verified