By Karen J. Kruger, Funk & Bolton, P.A., Baltimore, Maryland, Chair, Legal Officers Section, General Counsel, Maryland Chiefs of Police Association
ommunities expect and deserve their law enforcement officers to be trustworthy and honorable and to act in compliance with the law. When officers fail to do so, it is incumbent on law enforcement leadership to take prompt and appropriate action to correct behavior or to remove unfit personnel. That action may consist of counseling and mentoring, providing additional training, or imposing punishment.
One of the most challenging responsibilities of a chief of police is to impose fair and reasonable discipline in response to employee misconduct. The purposes of effective employee discipline are multifold and include changing the individual employee’s behavior for the better, communicating agency expectations, ensuring officer safety, and restoring public confidence in the agency.
In the past 15 or so years, many agencies have adopted a table of penalties or penalty matrix for various acts of employee misconduct that operates similarly to “sentencing guidelines” used in the federal court system. Typically, the potential offenses are categorized by perceived severity, with enhancement allowances for repetitive violations; thus, deviation from the guidelines is permitted. The matrix is intended to define agency expectations and to ensure that “equal” punishments are given for “equal” offenses, regardless of who the miscreant employee is. They are intended to, and do, limit management discretion. To the extent that discretion is permitted, often there is a lack of guidance about the exercise of the discretion to assist a chief, commanding or supervising officer, or board of review.1
Just like the sentencing guidelines that exit in various court systems, tables of penalties suffer from significant defects. The guidelines are often too simplistic to capture the multifaceted elements of police misconduct. They may set unreasonable expectations, both positive and negative. They allow little room for consideration of the specific facts and circumstances of a given offense or the background, history, attitude, and potential of an individual officer.2
A more thoughtful alternative to a penalty matrix is a consideration of the specific facts that are unique to each case of employee misconduct. By engaging in individual assessments, leaders hand out discipline that is more likely to be fair and effective.
Many federal agencies use a set of considerations called the Douglas factors. These 12 factors were first defined in the 1981 case of Douglas v. Veterans Administration decided by the U.S. Merit Systems Protection Board (MSPB).3
In Douglas, the MSPB identified the following factors that may be relevant when determining the severity of employee discipline:
- The nature and seriousness of the offense and its relation to the employee’s duties, positions, and responsibilities, including whether the offense was intentional, technical, or inadvertent or was committed maliciously or for gain or was frequently repeated;
- The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position;
- The employee’s past disciplinary record;
- The employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability;
- The effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s work ability to perform assigned duties;
- Consistency of the penalty with those imposed upon other employees for the same or similar offenses;
- Consistency of the penalty with any applicable agency table of penalties;
- The notoriety of the offense or its impact upon the reputation of the agency;
- The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question;
- The potential for the employee’s rehabilitation;
- Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, or harassment or bad faith, malice, or provocation on the part of others involved in the matter; and
- The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.4
An agency is responsible for ensuring that a disciplinary penalty is fair and reasonable and has the goal of being effective. These factors provide valuable assistance in making a penalty determination, but not all of these 12 factors may be relevant in a particular case. It is important to note that some factors may constitute mitigating circumstances and weigh in the employee’s favor, while other factors may constitute aggravating circumstances that support a harsher penalty.
The Douglas factors have been criticized for not specifying how much weight to give any particular factor; however, such a precise definition would limit supervisory discretion and relieve supervisory responsibilities. Managers and supervisors should be cognizant of all of these factors and then exercise reasonable judgment about employee discipline—not expect some outside source to make these decisions for them.
In sum, when imposing employee discipline, police chiefs and command staff members should consider the person and the conduct involved, the degree of harm caused by the conduct, and the impact of the conduct on the public trust and then select discipline in a fair manner that is not based on any unlawful discriminatory criteria. The public and the employees place their trust in leaders to make responsible and mature decisions. No formula or matrix can replace true leadership and integrity. The factors listed in this article are intended not to make the decisions, but to offer criteria that are worthy of consideration. ♦
1“Employee Discipline Matrix: A Search for Fairness in the Disciplinary Process,” The Police Chief 63 (October 2006): 132–140, http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=1024&issue_id=102006 (accessed November 20, 2013). See also U.S. Department of Justice, Office of Community Oriented Policing Services, Standards and Guidelines for Internal Affairs: Recommendations from a Community of Practice (2009), 53–54.
2U.S. Department of Justice, Office of Community Oriented Policing Services, Building Trust Between the Police and the Citizens They Serve: An Internal Affairs Promising Practices guide for Local Law Enforcement (2010), 28.
3Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981).
4The Douglas factors are usually applicable in cases involving unacceptable conduct rather than situations involving performance issues. When an individual is removed from federal employment based on unacceptable performance, these factors do not apply. Rather, a federal agency in such cases must be able to demonstrate that (1) the individual’s performance failed to meet the established performance standards in one or more critical elements of his or her position; (2) the agency established performance standards and critical elements and communicated those to the individual at the beginning of the performance appraisal period; (3) the agency warned the individual of the inadequacies of his or her performance during the appraisal period and gave him or her an adequate opportunity to improve; and (4) after an adequate improvement period, the individual’s performance remained unacceptable in at least one critical element. See Towne v. Dept. of the Air Force, 2013 MSPB 81, Docket No. SF-0432-11-0591-1-2, http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=923029&version=926712&application=ACROBAT (accessed November 20, 2013).
Please cite as:
Karen J. Kruger, “Addressing Employee Misconduct: Standards to Consider,” Chief’s Counsel, The Police Chief 81 (January 2014): 14–15.