Baltimore City Council has the power to improve policing, will they use it?

Baltimore City Councilman Ryan Dorsey, frustrated by the recent collective bargaining agreement between the city and the union that represents officers of the Baltimore Police Department (BPD) in the rank of lieutenant and below, lashed out on twitter at the officers of the BPD. He referred to them as “really just occupying mercenaries” for their stance during negotiations.

Mr. Dorsey was upset that the labor contract failed to achieve the city’s two main objectives: allowing civilians to be members of police disciplinary hearing boards and eliminating the costly shift schedule of four 10-hour days on and three days off.

Mr. Dorsey also absolved himself of any responsibility for the disappointing outcome, proclaiming in a tweet to me directly that the “City Council is no way part of collective bargaining.” I have a suggestion, Mr. Dorsey: Stop the insults and the handwringing — and act.

There are two reasons for my suggestion. The first is that the officers’ union, Lodge 3 of the Fraternal Order of Police (FOP), is doing what labor unions do — trying to reach the best deal for its members. The second is that the City Council has the power to give the police commissioner the authority to place civilians on disciplinary hearing boards and to eliminate the four-by-10 shift schedule. The problem lies with the council’s reluctance to act, not with the union’s intransigence.

In a letter dated Nov. 4, 2016, Assistant Attorney General Kathryn Rowe concluded that the City Council could pass an ordinance authorizing the police commissioner to appoint up to two voting or non-voting civilian members on hearing boards as allowed by state law without the consent of the FOP. After such an ordinance is enacted it would be up to the city’s labor commissioner to decide whether to submit the issue of civilian membership to collective bargaining. If the labor commissioner chose not to do so, the decision to place civilians on hearing boards would rest solely with the police commissioner, not with the union.

Empowering the police commissioner to return the department to a five day a week, eight-hour shift schedule requires nothing more than an ordinance amending the municipal labor relations article of the city code to exclude the issue of shift schedules from the scope of collective bargaining as an “exclusive management right.” That would leave the decision on shift schedules in the hands of the police commissioner, where it belongs.

State law provides that impasses in collective bargaining between the city and the FOP over issues relating to “direct compensation” must be resolved through binding arbitration. The definition of direct compensation, however, expressly excludes issues related to “deployment and scheduling.”

State law specifies that all other matters “governing or relating to labor relations or collective bargaining” between the city and uniformed officers of the BPD shall be governed by the municipal labor relations article of the city code. Consequently, nothing precludes the City Council from enacting an ordinance placing issues relating to deployment and scheduling outside the scope of collective bargaining.

Alternatively, the council could provide that, in the event of an impasse in collective bargaining over an issue pertaining to deployment and scheduling, the City Council will make the final decision on the matter. Either way, the City Council is not nearly as helpless as Mr. Dorsey claims.

The current collective bargaining agreement between the city and the FOP is a short-term one, expiring on June 30. There is time to pass ordinances giving the police commissioner the unilateral authority to place civilians on disciplinary hearing boards and to eliminate the four day, 10-hour schedule before a new collective bargaining agreement takes effect.

There is something you can do, Mr. Dorsey: Try to persuade your colleagues on the City Council to place limits on collective bargaining that respect the legitimate rights of officers to negotiate over the terms and conditions of their employment without interfering with the ability of the police commissioner to run the department as he or she reasonably sees fit.

City Solicitor Andre Davis recently complained that the FOP has the City Council in a “chokehold.” Yes, but the reason for that has more to do with politics than with the law.

David A. Plymyer retired as Anne Arundel County attorney in 2014 and also served for five years as an assistant state's attorney for Anne Arundel County. His email is dplymyer@comcast.net; Twitter: @dplymyer.

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