The Cleveland NAACP and two other civil rights groups will file a brief in federal court today to bolster the Department of Justice consent decree with the city of Cleveland. A spokesman says the agreement needs some fixes to be as strong as possible. But the decree may have some limits due to the police contract. Ideastream’s Mark Urycki reports.
The city has tried to make numerous disciplinary actions against police officers in the past, only to have an arbitrator rule in the officer’s behalf. It all depends on the police unions’ contract. Mayor Frank Jackson acknowledged when it was announced last month the decree has limits.
"It doesn’t address collective bargain agreements per se because it’s outside the authority," Jackson said at the time. "We cannot have an agreement imposing that on collecting bargaining or arbitration”
And professor Jonathon Witmer-Rich of the Cleveland Marshall College of Law says that’s a legal grey area. He says day to day procedures and rulers in a contract cannot be thrown out by the consent decree. But rules over unconstitutional behavior are fair game.
“Those orders if they’re based on a finding of a constitutional violation would probably override provisions of a private labor agreement because the labor agreement can’t authorize violations of the constitution. But it’s really a very tricky thing to sort out; there are no clear answers here.”
Last week Cleveland police union leader said parts of the decree do violate their contract. The DOJ finding issued in December addressed an issue over citizen complaints and pointed out that the officers' contract may be an issue:
CDP’s complaint intake process makes it difficult for complainants to successfully make complaints in the first instance. In 2002, we asked that CDP “work with the appropriate union officials to permit the CDP to investigate all citizen complaints, whether signed and written in the complainant’s handwriting or not.”
As a result, OPS investigators must rely on written questions and answers to probe the validity of a civilian’s complaint, to assess inconsistencies in police reports, or to evaluate the officer’s credibility in recounting his or her version of events. Therefore, an effective investigative interview of an officer is impossible. This undermines the investigative process. Additionally, in many of the OPS files we reviewed, it was not clear whether an investigation ever took place or whether the complaint was ever resolved.
However, pursuant to CDP policy, the Division still does not investigate all of the complaints it receives—only those that are signed by the complainant. Thus, CDP will not accept anonymous or third-party complaints.
This process, which appears to be a result of the Collective Bargaining Agreement between the City and the officer’s union, appears to be designed to make it difficult for victims of police misconduct to successfully make complaints. The City must work with the unions to ensure that it is able to investigate all complaints, including from anonymous and third party complainants, whether signed or unsigned.