Abolishing the police won’t get rid of the police union, under court ruling

Minneapolis Police Federation President Lt. Bob Kroll. Photo by Max Nesterak/Minnesota Reformer.

Even if the Minneapolis City Council succeeds in getting voters to allow it to replace the Police Department in 2021, it may wind up with the same cops represented by the same police union, or risk breaking state law.

In 2019, the Minnesota Supreme Court ruled Brainerd engaged in unfair labor practices when it abolished its five-member full-time fire department and replaced it with an unpaid, volunteer force, eliminating its union in the process.

In Firefighters Union Local 4725 vs. City of Brainerd, the court ruled that eliminating a collective bargaining unit by terminating all covered employees is prohibited.

If that decision were to hold in the case of Minneapolis Police, the city might be forced to rehire the very officers represented by the same police union that has drawn so much criticism.

The Brainerd case presents “a problem and a big problem” for those seeking to dismantle the Police Department, said Marshall Tanick, who represented the firefighters.

After the police killing of George Floyd, nine of 12 members of the City Council publicly vowed to defund the Minneapolis Police Department in early June. On June 26, the City Council unanimously voted to send a charter amendment to the Charter Commission that would give voters a chance to approve dissolution of the Police Department, replacing it with something new.

Under the proposed amendment, the Police Department would be replaced with a Department of Community Safety and Violence Prevention, with a possible division of peace officers, with a “holistic, public health-oriented approach.”

The Charter Commission delayed ruling on the amendment, which will prevent it from seeing the ballot this year, but five city council members said they aim to bring forward an amendment to the Charter at the next general election in 2021.

The Brainerd case potentially complicates any effort to overhaul the Police Department or the union that represents cops.

In the Brainerd case, the firefighters union sued the city, alleging that by eliminating union jobs during its reorganization, the city engaged in unfair labor practices banned by the Public Employment Labor Relations Act. The Supreme Court agreed.

“The Brainerd case stands for the proposition that a government body can’t abrogate its union without going through certain procedures,” Tannick said.

He said there are two possible ways to get around the decision. First, if the union were to decertify itself, meaning voluntarily dissolve, which is unlikely.

Or, by a vote of the people.

But even then, Tannick said, he’s unsure it would pass legal muster: “The citizens can’t violate the law,” he said. For instance, changing the city charter wouldn’t allow Minneapolis to impinge on, say, the Bill of Rights.

“The notion that we’ll have a charter change and that will take care of it is not necessarily true when you’re dealing with a certified union,” he said.

Minneapolis Charter Commission Chair Barry Clegg, who is an attorney, argues if the City Council eliminates the Police Department, the city would either commit an unfair labor practice, or “perhaps worse,” end up with the same police union representing a new division of public safety officers — with current police officers called back to work in order of seniority.

“That’s not reform, that’s negotiating with the Police Officers Federation of Minneapolis wearing a different colored uniform,” Clegg said. “(We) need more time to come up with an amendment that will not violate Minnesota law.”

An analysis of the charter amendment by the city attorney’s office for the Charter Commission said the same union would likely represent those new public safety officers.

Clegg said the city was getting legal analysis of such issues from the ACLU hours before the Charter Commission was scheduled to vote on the council’s proposed charter amendment last week.

“We need more time to come up with an amendment that will not violate Minnesota law,” he said while explaining why he and the commission voted to take another 90 days to study the council’s proposal.

Commissioner Gregory Abbott said the biggest obstacle to police reform is the union, and if the whole point is to bypass the union by abolishing the Police Department, state law prevents that.

The city would still have to negotiate with the union over the terms of employment, he said.

“In short, it will take many months, if not years for change to occur, and we would be dealing with the same officers and the same union as before,” he said. “I don’t think there’s a charter amendment out there that can solve the Police Federation problem. The only way forward I think in terms of fundamental reform is collective bargaining with our employees through the collective bargaining process.”