Politics & Policy

A Good First Step toward Holding Unionized Public Employees Accountable in New York

Police officers stand guard during a protest against the death of George Floyd, New York City, June 3, 2020. (Eduardo Munoz/Reuters)
Lawmakers in Albany have started to target the apparatus that shields public employees from responsibility for their actions. There’s more still to be done.

New York’s legislature has taken an important first step by repealing Section 50a of the state’s Civil Rights Law, as part of a raft of proposed law-enforcement reforms. But the state’s government has long been far too protective of the power of public-employee unions to obstruct the investigation, discipline, and firing of misbehaving union members — and it remains to be seen if repealing 50a will change that.

Section 50a provides that the personnel records of a “police officer, firefighter/paramedic, correction officer or peace officer” must be “considered confidential and not subject to inspection or review without the express written consent of such [officer] except as may be mandated by court order.” First enacted in 1976, the rule was mainly intended to protect the disciplinary process from becoming fodder for criminal-defense attorneys to cross-examine cops in unrelated cases. By itself, this is not an entirely unreasonable goal; a public disciplinary process can discourage supervisors from taking any actions that might get written down in a file. Greene County sheriff Peter Kusminsky’s defense of the law gives a sense of the case in its favor:

The law is there to prevent abusive exploitation of personal information contained in officers’ personnel records, particularly within the context of a criminal trial. It is there to preserve fairness in the judicial process and make sure good officers, who may only have a blemish on their record, are able to credibly participate as witnesses for the prosecution. . . . Victims of crimes will be the ones who are truly disadvantaged. . . . It will be very difficult to prevent the introduction of non-probative, inflammatory information gleaned from an officer’s file into the trial process. This will corrupt jury deliberations and inevitably lead to unjust outcomes.

The statute, however, sweeps so broadly that it covers far more than only minor, internal disciplinary matters. It was read in 2018 by the state’s highest court to exempt the personnel records it covers from disclosure under FOIL, the state freedom-of-information statute, even when the names of officers are redacted. Moreover, there are less extreme ways to empower trial judges to keep a lid on the totally irrelevant tangents of defense attorneys.

In practice, Section 50a has been part of a larger apparatus that shields cops and other public employees from being held accountable to their employers and, ultimately, the public they serve. It is impossible, without disclosure of the outcomes of disciplinary proceedings, to evaluate what standards those proceedings are applying or how frequently they are used. Moreover, much of the process for investigating and disciplining public employees around the state is governed not by law at all but by collectively bargained systems that are designed to be opaque and to limit the power of accountable public officials to control their own subordinates. Worse yet, in many cases, the rules governing the collective-bargaining process have not been fully reconsidered in decades; unions simply negotiate a variety of addenda and extensions that make public inspection of the process cumbersome, raising the wall between the insiders who know the system’s rules and the citizens, who are kept in the dark. The state does not even bother collecting most of these agreements from localities, so in many cases, even the government itself does not actually know what it takes to get fired from a government job in New York.

The state’s corrupt political class has typically made these issues worse. Currently, whether employees are covered by a collectively bargained arbitration process depends in good part on local rather than state law. As the Empire Center notes, just last year, “the Senate unanimously passed a bill (S5803) that would make the final determination of disciplinary penalties a subject of collective bargaining. If such a measure ever became law, unions representing police and firefighters could negotiate for the same drawn-out, arbitrator-decided process that has made it difficult for the MTA to fire bus drivers with bad safety records and for New York State to discipline attendants who abuse disabled people.” In other words, S5803 would override the laws in those localities that have refused to submit to arbitration for unionized employees.

The problem is bipartisan. Many of the same progressive Democrats who pushed for the repeal of 50a supported S5803, and were, not long ago, also standing shoulder-to-shoulder with the police union pushing for higher officer pay under the banner of pan-union solidarity. The state Senate’s Republicans, meanwhile, unanimously voted against 50a repeal.

The system can have tragic consequences, and cops are by no means the only problem: A 2019 New York Times review of records of employees of homes for the mentally disabled (who are not subject to Section 50a) concluded:

More than one-third of the employees statewide found to have committed abuse-related offenses at group homes and other facilities were put back on the job, often after arbitration with the worker’s union. . . . Recycling abusive employees has long been an endemic problem. Eight years ago, The Times reviewed thousands of pages of disciplinary files for 233 workers. In a quarter of substantiated abuse cases, employees were transferred to other homes rather than fired, including in cases involving sexual assaults.

A 2012 review by the New York City Department of Education turned up eight examples of employees (four of them tenured teachers) who continued to work in schools even after being found guilty of sexual misconduct. Then-schools chancellor Dennis Walcott blamed the problem on labor arbitrators.

Each time such an arbitrator protects a bad actor from consequences, his decision becomes a precedent that can be cited in later arbitrations. In 2018, the city of Syracuse fired Ted Ackerman, a firefighter, for fleeing the scene of a drunken hit-and-run accident in which an investigator for the district-attorney’s office killed a man. In arguing that Ackerman’s conduct did not amount to a fireable offense, the union detailed how hard it is to get fired:

A witness for the union, however, pointed out that other firefighters have committed serious crimes for which they were sometimes arrested but not fired. In 2011, a Syracuse firefighter was caught emailing pictures of his genitals. In 2012 a firefighter was found drunk on duty, four years after he had been arrested for drinking and driving. In 2013, police removed a firefighter from service as they investigated him for child porn. Two other firefighters were arrested for harassment of their girlfriends. Another was arrested for DWI. Another for domestic assault. One firefighter was accused of forcing his way onto a bus and assaulting the driver. None of those firefighters were fired. All those crimes were detailed in the union legal brief.

The arbitrator gave Ackerman his job back.

Government exists to benefit the governed, and must ultimately be accountable to the voters. Let’s hope New York’s repeal of 50a leads to further steps toward tearing down the walls that shield public servants from responsibility for their actions on the job.

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