Minnesota’s system for protecting the public from wayward cops — who harm or endanger citizens the large majority of police officers bravely and ably serve — really is “broken and flawed,” just as its critics have said.
In these early months of 2019, disciplinary dysfunction has been on particularly vivid display — just in time for a new governor and Legislature to take notice and do something about it. Apparently, only they can — especially in the wake of a sudden attack of judicial restraint at the Minnesota Supreme Court.
Consider: On Jan. 16, St. Paul Police Officer Brett Palkowitsch was indicted by a federal grand jury in Minneapolis on felony charges of violating the civil rights of an innocent suspect he repeatedly kicked and seriously injured in 2016. St. Paul taxpayers have paid the officer’s victim a record-setting $2 million settlement in compensation. Now Palkowitsch faces a possible 10-year prison term.
Meanwhile, as his case proceeds, Palkowitsch has been suspended from his job on the St. Paul force — with pay, of course.
Surprised that such a chaos-causing cop is still drawing a public paycheck? Don’t be. This is by no means an unheard-of outcome for Minnesota’s public disciplinary system. And this month the Minnesota Supreme Court reaffirmed that it sees no need for change.
The city of St. Paul fired Palkowitsch for the kicking incident — or, rather, it tried to. The officer and his union appealed his dismissal under a binding arbitration process that state law requires every police department in Minnesota to include in its union contract. In 2017, Palkowitsch won. An arbitrator ordered the city to rehire him, and in place of termination imposed a 30-day unpaid suspension on Palkowitsch and another officer involved — indicating that she did see something not quite right about their brutalization of an innocent African-American man.
As I have noted here several times before, such difference-splitting reductions of discipline are not unusual in Minnesota’s arbitration system. Police chiefs sometimes get arbitrators’ okay to jettison problem cops, but other times they don’t. And most of the decisions come down to a judgment call about an officer’s fitness on which reasonable people might differ — but on which one imagines high-ranking police leaders are supposed to have some expertise.
It seems, in any case, that federal prosecutors and grand jurors beg to differ with the arbitrator’s view of the Palkowitsch case.
Meanwhile, however, Minnesota courts can effectively never second-guess arbitrators who so often second-guess the state’s police chiefs and elected local officials.
That decree came Feb. 13 from the state Supreme Court in the case of Richfield Officer Nathan Kinsey.
Richfield fired Kinsey in 2016 after he pushed, slapped and profanely berated a Somali teenager and failed to report the incident — the kind of rough stuff and failure to report that Kinsey had been disciplined and counseled about before. He took the matter to arbitration and was reinstated (with a three-day suspension).
But Richfield, backed by the League of Minnesota Cities, the Minnesota Police Chiefs Association and others, took the rare step of appealing Kinsey’s reinstatement to Minnesota courts. They called the arbitration system “broken” as applied to “police officers, who by the very nature of their positions, hold the trust and safety of the public in their hands … [C]ities and their police chiefs must be allowed to fulfill their affirmative duty to protect public safety by [enforcing] rigorous accountability and transparency standards when [officers] use force on the public.”
Last spring, in something of a surprise, a three-judge panel of the state Court of Appeals agreed with the city and its allies and unanimously overturned the arbitrator’s reinstatement of Kinsey. Even public employment law, that court said, “expressly subordinates the [right to] arbitration … to the rights of Minnesota citizens.”
Sounds plausible when you put it like that.
Well, this month the Minnesota Supreme Court explained otherwise, reinstating Kinsey yet again while reaffirming its decades-old doctrine that un-elected, unaccountable arbitrators’ rulings are essentially all-powerful in Minnesota — immune from any check or balance based on mere “general considerations of supposed public interests.” Judicial review of arbitrators’ decisions must remain “extremely limited” with “every reasonable presumption” favoring “the finality … of the arbitration award.”
Some of the court’s circular logic is dizzying.
It’s apparently important, for example, that “[t]he factual findings of the arbitrator, findings that we give deference to, do not support overturning the arbitration award …” So an arbitrator’s decision must stand because … the arbitrator agrees with it? That’s “extremely limited” review, all right.
Remember, meanwhile, that this is a court that only last summer, in a school desegregation case, decided it is the proper function of Minnesota courts to define an “adequate education” and second-guess (er, review) whether school policies chosen by elected policymakers in the Legislature and governor’s office meet the judiciary’s educational standards. No “extremely limited” sense of courts’ role in that arena.
In fact, the consistent principle seems to be extremely limited respect for the role of policymaking officials whom voters put in place to advance “supposed public interests” — be they legislators, governors and commissioners; or mayors, city council members and police chiefs. Their decisions, it seems, deserve little “deference” from anyone.
Americans preoccupied these days with supposed threats to “democracy” might want to ponder this sort of dilution of the powers they thought they’d placed in the hands of elected representatives.
Meanwhile, policymakers at the State Capitol should remember that they, like police officers, “by the very nature of their positions, hold the trust and safety of the public in their hands.” They should take a close, critical look at the absolute power granted arbitration in police discipline cases today.
D.J. Tice is at Doug.Tice@startribune.com.