by Jeremy Miller
Quietly during the summer of 2020, the San Francisco Department of Human Resources renegotiated the City and County’s contract with the SFPOA (San Francisco Police Officers Association) and now seeks to have it ratified by the Board of Supervisors. Without a new contract, the MOU (memorandum of understanding) under which the SFPOA currently operates is set to expire in June of 2021.
Currently the renegotiated contract has been approved on first reading by the Board of Supervisors – by a 9-2 vote – and the second reading is set to occur on Dec. 1. If the contract receives a second vote of approval by the Board of Supervisors, it becomes ratified, and the terms it stipulates are applied.
What everyone is after
Two clear intentions were manifested on the part of the negotiating parties in this process. On the part of the City and County, there was the desire for forbearance on a previously negotiated 3 percent raise that was set to take effect between the end of this year and the beginning of next year. In exchange for this magnanimity, or “sacrifice” as the SFPOA would frame it, the City would include an additional 6 percent raise for cops beginning in January of 2022.
For the SFPOA, the clear intention was to lock in a contractual relationship with the City and County of San Francisco that would insulate their members from further emergency cuts – including layoffs – and more importantly from the growing calls for defunding and/or abolishing the police. As such, the renegotiated MOU is for the most part identical to the contract the SFPOA currently operates under.
Mayor London Breed threatened to fire nurses if the contract was not approved.
The main difference is a new controversial parity clause guaranteeing an automatic raise when any other SF public-sector collective bargaining unit negotiates a pay increase larger than that received by police, the raise deferral/augmentation plan and the sunset date of the contract, which would be pushed from next summer to 2023.
Presumably the existence of such a labor agreement could act as a bulwark against the defunding of the department, now more likely subsequent to the passage of Proposition E, and buy the SFPOA some time during which they hope – perhaps delusionally – that the people will forget their desire for a radical reorientation of public safety and just remember how much we love the cops!
Not everyone is satisfied
The pushback to the renegotiated contract has come from a variety of different sources. Beginning with the Board of Supervisors, District 3 Supervisor Aaron Peskin opined that he wanted a “meeting of the minds on police reform.” District 10 (which includes Bayview Hunters Point) Supervisor Shaman Walton attempted to stake out a more strident position, claiming that he would not support any increases to police pay, but later prevaricated stating, “I would love to tie the contract to reform, but it’s not something we can do right now.”
Both cited the failure of the SFPD to implement the majority of the 2016 US DOJ (U.S. Department of Justice) reform recommendations as informing their positions. Outgoing District 1 Supervisor Sandra Lee Fewer demanded a personal apology as her family had been specifically targeted and threatened by former SFPOA president Gary Delagnes.
All three (allegedly under duress from Mayor London Breed who threatened to fire nurses if the contract was not approved) then turned around and voted for the new MOU anyway. The only two supervisors who translated their criticism into votes against the proposed contract were District 5 Supervisor Dean Preston and District 9 Supervisor Hillary Ronen.
Other prominent critics of the SFPOA called out a lack of concessions from the SFPOA in exchange for raises and proffered reform suggestions such as greater transparency in negotiations, a shortening of meet-and-confer times for controversial policy changes and a greater tying of financial remuneration (raises) to prohibitions on police activism, such as a soft strike tactic known as “Blue Flu” which we will discuss further in a moment.
But the strongest and clearest opposition was staked out by the Defund SFPD Now campaign, a joint project by the SF Afrosocialists & Socialists of Color Caucus (Afrosoc) and the Justice Committee of the Democratic Socialists of America(DSA), SF. To distill the position, DSA-Defund called for a rejection of the renegotiated contract – as well as a hearing about the City’s lack of transparency in this process – based on:
- Raises without policy concessions;
- A clause granting police pay and benefits parity with other city workers;
- A national tendency towards greater public participation in police contract deliberations and calls for reforms, and
- The long inglorious history of the SFPOA jealously defending its presumed rights to deal violently with protected populations, including specific emphasis on documented examples of anti-Black racism and homophobia.
In their own words:
“Our demands are simple: the Board first needs to reject this contract, and second, they need to hold a hearing to hold DHR(Department of Human Resources) accountable for their lack of transparency during this most recent contract renegotiation and gather community input on what the City needs to push for in future negotiations with the POA.”
These articulated demands create a jump-off point for an investigation into two very timely and pertinent questions. What is the relationship between the SFPOA and the public? How do these relations impact questions of force/accountability and defund/abolition?
The San Francisco Police Officers Association was incorporated in 1946. Originally it neither engaged in collective bargaining nor did it engage in political campaigns. In its earliest incarnation the SFPOA was akin to a fraternal organization, like a Moose Lodge specifically for cops.
Its first major foray into politics occurred in 1953 when the SFPOA pushed for and secured a City charter amendment that changed the process of how police officer wages were determined. Prior to this point, no raise was possible without a successful citywide ballot initiative, or in other words the police had to appeal to the people for any raise to be paid by their tax money! Hmmm…
Throughout the 1960s and the early 1970s the SFPOA engaged the political process through the ballot for some pension improvements, but perhaps the most significant event was the creation in 1970 of the “Bluecoats,” a clique within the SFPOA, headed by the notorious Jerry Crowley. The Bluecoats had a razor-sharp focus on wages, benefits and “working conditions.”
In essence, they wanted to change their social club qua non-profit organization into an employee rights and collective bargaining unit. In 1972, when the Bluecoats acceded to power in the organization, they did just that.
Three years later in 1975, in an ultimately successful gambit for a 13 percent pay raise, the SFPOA conducted the first and only police strike in the history of San Francisco. They got their raise but at the expense of souring relations with the City and the public. In response, many of their previous political gains in the areas of wages and pensions were stomped on by a spurned City.
This state of affairs persisted until 1992, when the City granted the (at that point broke) SFPOA its first collective bargaining agreement. The person truly behind this change of affairs was a street cop turned bulldog negotiator – not to mention full on racist and serial defender of police atrocity – then vice president and subsequently longest serving president of the SFPOA, Gary Delagnes.
Largely as a result of his maneuvers, the San Francisco Police Officers Association went from near bankruptcy (in the ‘90s) to its current financial status, which includes nearly $11 million in assets and an annual budget of just over $4 million. Not bad for a social club.
The combination of City and County recognition as the police majority bargaining agent with this new financial largesse created the conditions where despite convention – and at points possible violation of state and federal tax code – the SFPOA has been able to punch politically far above its weight class, engaging in expensive election campaigns.
In its Proposition H push for Tasers in 2018, it spent nearly $400,000 in documented campaign contributions. And in 2019, SFPOA conducted a ridiculously expensive, factually fraught and eventually unsuccessful campaign to prevent Chesa Boudin from becoming district attorney, clocking in at a whopping $650,000!
Finally the SFPOA has, for decades now, claimed membership in the San Francisco labor establishment, thus inheriting the protection this entails in a strong union town like San Francisco. But do they deserve it? Are they really a union? What does the City get out of the contract? Let’s start with the last question and work our way back.
The City’s angle
The City seems to derive two primary benefits from its MOU with the SFPOA. The first is a benefit which, though intangible, is nevertheless highly significant to elected officials. From the 1970s until today, notwithstanding currently shifting ideological tides, one of the quickest ways to become politically anathema has been to be labeled “soft on crime.”
Because the SFPOA will immediately claim that anything they don’t want, e.g., accountability to the public, will create a rise in crime – even if pesky things like the FBI’s Uniform Crime Reports or other law enforcement data-informed tools clearly disprove the assertion – lawmakers will seek to appease the police association so as to dodge public blame should any crime occur in their jurisdiction. If this sounds like political extortion, it’s because that’s exactly what it is.
The second benefit is the no-strike provision. It is not accidental that in the current contract, this is the very first operative clause. San Francisco clearly abhors the thought of a reprise of 1975.
But should a police strike be such a concern? Looking to the opposite coast may be instructive here. For nearly seven weeks beginning in the end of December 2014 the New York City police department conducted a work slowdown (soft strike) as an expression of resentment against the criticism they received behind the choking death of Eric Garner, as well as in response to the shooting death of two NYPD officers, Wenjian Lu and Rafael Ramos. This call was widely attributed to the Police Benevolent Association, NYC’s equivalent of the SFPOA, as a means of revenge.
But far from being a scourge on New York City, many breathed a sigh of relief. In subsequent analysis, not only did low level arrests go dramatically down, but so did crime itself! This led some scholars and professionals to theorize that a feedback loop existed between “proactive policing” and major crime or, to translate, the existence of overly aggressive and oppressive policing creates fissures in the community that are breeding grounds for crime.
This perspective, though not uncontested, dovetails with a lot of what defund, community control and abolition advocates have been saying for a long time. In a similar vein, this summer in Los Angeles it appears that another soft strike tactic, the “Blue Flu,” may have been used over the July 4th weekend.
This is a tactic whereby officers evade the no-strike provision of their contract by acting in concert taking sick days all at the same time so as to greatly diminish the police (wo)man power on particular days. The same question remains: When faced with the scourge of over-policing, is that really such a bad thing?
The big question: use of force
The City’s contract with the SFPOA is governed under the Meyers Milias Brown Act, usually referred to as the MMBA. This is the law in California governing public sector collective bargaining. The MMBA stipulates that the parties are to be able to “meet and confer in good faith” around a discrete set of issues, specifically “wages, hours, and working conditions.”
Because use of force carries life and death implications for both police officers and the general public, it was determined decades ago by California courts as to not fall within the scope of working conditions.
The SFPOA has for decades now adopted a broad definition of “working conditions” that include topics clearly not contemplated by the legislative intent of the MMBA. Some have even been adjudicated in the courts as outside of the scope.
Use of force is the most important of these. The “meet-and-confer” requirement says that changes in any of the covered areas cannot be made without negotiations between the City and the bargaining agent for the employees, in this case the SFPOA. These negotiations can take months and/or years.
This process has been used extensively as a filibuster to prevent significant reforms demanded by the people from taking place. A recent article, “Supes to vote on cops contract – as new records show history of blocking reform” by Tim Redmond, the former SF Bay Guardian editor and founder of 48 Hills, exposes some of the ways in which the SFPOA has abused this process.
But the illegitimacy of demanding meet-and-confer over use of force is unique. Because use of force carries life and death implications for both police officers and the general public, it was determined decades ago by California courts as to not fall within the scope of working conditions. To quote the controlling case from 1978, San Jose Peace Officer’s Assn. v. City of San Jose:
“The danger posed to a police officer by a suspected criminal must be balanced against difficult considerations of when an escaping criminal should pay the price of death for ignoring a peace officer’s command to stop. Viewed in this context, the safety of the policeman, as important as it is, is so inextricably interwoven with important policy considerations relating to basic concepts of the entire system of criminal justice that we cannot say that the use of force policy concerns ‘primarily’ a matter of wages, hours or working conditions.”
Despite this crystal clear decision by the 1st District Court of Appeals, the SFPOA has constantly requested meet-and-confer privilege on every proposed change of use of force policy and the City has, for the most part, cravenly acquiesced to these unjustified demands. Classic recent examples of this belligerent usurpation of use of force decision making powers are 1) the three meet-and-confer sessions held subsequent to the Police Commission ban on chokeholds and 2) the years long demands to meet and confer surrounding the issuance of Tasers to SFPD.
This fudging of the “scope of representation” can cut both ways though. Many of the reform minded critics suggest using the current political impasse to force concessions around all 272 US DOJ reforms and institute a new transparency regime such as envisioned in Supervisor Hillary Ronen’s recently proposed legislation requiring that “written materials and live meetings, including ‘meet and confers,’ between the POA and DHR be made available to the public.”
They cite the fact that such concessions and reforms have been won in other major cities such as Chicago and Philadelphia. John Crew’s Nov. 19 article in this paper, “SF Police Officers Assoc.: ‘We’d sign off on USDOJ reforms tomorrow!’ in exchange for pay raises,” is a wonderful exposition of this position.
However, just as we must argue that use of force is clearly beyond the scope of representation, the SFPOA can make claims that some of these demands also fall outside of the scope of representation. Despite recent assertions by the current SFPOA president Sgt. Tony Montoya that “We’d be willing to sign off on many of them tomorrow if it was put before us to do that,” no explanation has been proffered as to why this has not already occurred, or for that matter why the SFPOA should even have a say on several of the reforms.
These contradictions suggest a different course of action, but first let’s put to rest a very important question: Is the SFPOA a union?
Union or not
In the current MOU that governs the SFPOA, the self-referential term “union” appears a whopping four times. These should be removed as it has never truly been one. In 1946 the SFPOA was incorporated as a nonprofit corporation or 501c3. This is what it operated as for the next 62 years.
At no point in time was it recognized by the National Labor Relations Board (NLRB) as a union. In 2008, under the leadership of Gary Delagnes, the SFPOA hired a mercenary attorney by the name of John Tennant to dissolve the nonprofit status. At the time, there was speculation – including by rank-and-file police officers – that the dissolution of the nonprofit status was engineered to protect certain directors, such as Mr. Delagnes, from liability for financial malfeasance.
I would speculate that it was probably also recognized that nonprofit status opened up other areas for scrutiny, such as prohibitions on tax-exempt organizations engaging in political activity, or the fact that there exist – albeit rarely used – legal mechanisms by which the general public can hold nonprofits accountable for a wide range of bad behavior.
Pay no mind to the recent blabberings of Rudy Gonzalez.
Upon the dissolution of the nonprofit, the SFPOA became a private membership association, something which exists in a bit of a legal grey area but generally means nothing more than an exclusive club. What tends to confuse people is that the SFPOA does engage in the primary activity of unions, which is collective bargaining.
But the distinction is significant because, if we countenance the SFPOA as a union, we risk triggering unearned public sympathy. In such a state, if we attempt to push back hard against their claimed “rights,” we open ourselves to being castigated as union-busters.
Threat of this designation tends to dampen the political will of electeds to challenge police associations and fraternities to the detriment of the public they are supposed to serve. This needs to end.
Again, the SFPOA has never been recognized by the NLRB, has threatened and terrorized the San Francisco Labor Council for years – pay no mind to the recent blabberings of Rudy Gonzalez – and, most importantly, police are nonsensical additions to the general designation of labor. Management works for paychecks, yet they are not considered labor.
Whenever labor has historically taken radical action, who has broken it up and literally executed workers? Police have. This relationship is baked in.
Police are not workers; they are a paramilitary arm of state. Yet they are a paramilitary arm of state that commands collective bargaining rights with the City and County – and herein lies both the cognitive dissonance and a glimmer of hope.
The way forward
As discussed earlier the relations between the SFPOA and the City and County of San Francisco are governed by California’s Meyers Milias Brown Act. Embedded in this complex legislation is a provision that allows for discriminatory granting or refusal of collective bargaining rights to law enforcement, turning on the question of whether the granting of said rights is in the “public interest.”
State law (GOV § 3508(a)) states in part that the governing body (the Board of Supervisors in this case) may “by resolution or ordinance adopted after a public hearing, limit or prohibit the right of employees in these positions or classes of positions to form, join, or participate in employee organizations where it is in the public interest to do so.”
It does, however, add the caveat that this governing body cannot prohibit full time “peace officers” from collectively bargaining via employee organizations which “concern themselves solely and exclusively with the wages, hours, working conditions, welfare programs, and advancement of the academic and vocational training in furtherance of the police profession.” But because the SFPD via the SFPOA has never limited itself to these exclusive concerns, it opens itself up to denial of the right to participate in employee organizations based on the public interest test.
Previously it has been suggested that we engage in tough negotiations and demand concessions from a notoriously racist and revanchist cop club. Maybe instead we should heed the words of Maya Angelou – ridiculously parroted by Supervisor Shaman Walton to justify his faith that Mayor London Breed would fire nurses in a pandemic if we didn’t approve the SFPOA contract: “When someone shows you who they are, believe them the first time.”
Maybe we should take the position that the SFPOA has exhaustively proven that it operates against the public interest and that, on the basis of said interest, collective bargaining rights should be denied. By statute, the police would then have an opportunity to create a new bargaining agent which explicitly confined itself to the actual scope of representation.
This way, instead of begging a den of crooks to be honest, police could be told that in order to protect their economic interests they have to start from that honest place. And then without the distraction of endless meet-and-confer and/or frivolous litigation, we could get to the real business of public safety, which appears more and more to be an “exit strategy” with an eye towards abolition.
Defund is a good starting place – and much easier to achieve when police are not granted undue influence over policy or undue deference as members of a pretend union. Also, and I cannot emphasize this enough, as some of the only members of society authorized to use lethal force, police occupy a unique position vis-à-vis the public.
If we close our eyes and decline to regulate their collective bargaining, before we know it the bargaining chips on the table start to eerily resemble our lives.
Jeremy Miller is co-director of the Idriss Stelley Foundation, part of the POOR Magazine family, organizer with the Black Alliance for Peace and a graduate of San Francisco State University. He can be reached at firstname.lastname@example.org.