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Chief's Counsel

Chief's Counsel: Fairness and Consistency in Disciplinary Actions

By Julie Risher, Public Safety Attorney, Winston-Salem Police Department, Winston-Salem, North Carolina

isciplining personnel is perhaps the least favorite and most difficult aspect of being a police chief. Chiefs must ensure that discipline among employees is fair, lawful, and adequate to address the behavior at issue; is sufficient to protect the agency from liability under a Section 1983 pattern-or-practice or a failure-to-supervise theory; and will prompt the employee to reform. Chiefs have little hope of achieving all of these goals unless effective systems exist to assist them.

Disciplinary Systems
Agencies have tried various methods to ensure consistent and effective discipline.1 One method is to adopt a rigid matrix system. Under this method, any employee who violates a rule will receive the certain punishment assigned to that rule (regardless of the circumstances, the severity of the violation, or the employee's disciplinary history).

Other agencies have adopted a variation of the rigid matrix system that one may describe as a flexible matrix system. This approach assigns to rule violations different punishments (or ranges of punishment) but the matrix includes set factors that, if present, may modify that punishment within a certain range. For example, an employee who violates a given rule but has no prior rule violations may receive a written reprimand, while another employee who violates the same rule and has five prior sustained complaints may receive one day without pay.

A third common approach to discipline may be described as comparative discipline. A chief applying the comparative discipline approach will generally consider the facts of the particular incident, the significance and severity of the violation, the employee's record, and the potential liability exposure the employee's actions pose when determining discipline. The discipline selected derives from consideration of both aggravating and mitigating factors in that particular situation as well as comparison to discipline administered in similar circumstances.

Although each of these approaches has advantages and disadvantages, most administrators prefer the flexibility the comparative system affords. Its main disadvantage is the potential for inequity among cases. But careful development of tracking systems can minimize the disadvantages inherent in a comparative discipline process.

Proportionality and consistency are the watchwords in any successful discipline system. For larger agencies, without well-planned and designed tracking systems it is virtually impossible for any individual to know the facts of all disciplinary cases and the corrective measures employed in each case. In extremely large agencies, the most for which an administrator can hope without an overarching system is consistency within bureaus or divisions if the agency adopts a comparative discipline approach. Any manager applying a comparative discipline approach must rely on searchable record systems to provide information about comparable cases, including discipline administered.

Classification of Offenses
One key consideration in designing such a system is classification of offenses. For example, an agency may have general orders or rules of conduct addressing conduct unbecoming, unsatisfactory performance, and conformance to laws. Suppose Officer A exceeds the posted speed limit without any lawful purpose. Such behavior could be classified as conduct unbecoming, unsatisfactory performance, a failure to conform to laws, or a violation of rules governing operation of vehicles, but is classified in this case as conduct unbecoming. An administrator who is reviewing agency files for comparative discipline purposes may not discover the incident involving Officer A when considering a similar violation by another officer, which the administrator considers a failure to conform to laws but does not consider it conduct unbecoming.

Suppose that two officers, B and C, were discourteous to citizens. This is Officer B's first sustained violation of any sort; Officer C, by contrast, has had eight sustained courtesy violations in the past year. Should their actions be classified under the same rule? Or does Officer C's demonstrated propensity for this conduct indicate that unsatisfactory performance may be the more appropriate classification?

Consider a third example: Officer D fails to complete a search inventory (required by state law) after executing a search warrant. Officer E intentionally falsifies information in a search warrant application and the search warrant is issued based on false information when there in fact is no probable cause. One may classify D and E's actions as conduct unbecoming; as violations of rules addressing arrest, search, and seizure; as failures to conform to laws; or as unsatisfactory performance. Nevertheless, most would agree that Officer E's conduct is more egregious than Officer D's conduct.

Law enforcement administrators should review sustained complaint files under all rule violations applicable to the facts (not just the rule violations selected by the professional standards investigator) to scan for similar conduct that may have been classified under a different rule violation.

Because of the problem posed by classification of offenses, one designing a comparative discipline system should employ built-in safeguards to discover incidents classified under a different rule violation. One approach is to develop, in addition to a rule violation index, a key fact index. This key fact index would help track common fact patterns that for whatever reason are classified under various rule violations.2 Cross-referencing a key fact index and a rule index, administrators can review previous discipline to assure proportionality and consistency in the pending case.

An employee's disciplinary history must also be considered. Officer A, who exceeded the speed limit, may be ordered to complete corrective counseling for a first violation of the rules governing operation of motor vehicles. But if Officer A has sustained violations for speeding over and over again, it is obvious that the discipline administered has not achieved the desired objective and has been inadequate to reform the behavior. In light of Officer A's discipline history and rule violation history, plus the danger his driving habits pose, a greater a sanction under a more significant rule violation (such as unsatisfactory performance) may be appropriate.

In addition to the concept of being fair in rendering discipline, agency administrators must ensure that they can articulate the basis for any disciplinary differences or disparities if a discrimination issue arises. For example, suppose that male officers have committed all prior violations of a particular rule. Suppose, in addition, that Officer E, a female officer, violates the same rule, but the circumstances are particularly egregious and a citizen suffers significant harm. The agency administrator determines that Officer E should receive substantially more discipline than has ever been awarded for a violation of this rule. The law does not prohibit such a decision, as long as the decision is not based on the officer's gender. The agency administrator must be prepared to articulate the basis for the discipline and must be able to show that, although on its face it appears that the department is treating women different from men, in fact, in this circumstance, the discipline was warranted and that the same discipline would have been awarded had the offending officer been a male with the same disciplinary history.3

Early Warning System
Another key feature in any disciplinary system is an early warning system. Agencies that have not developed such systems might wish to consider model policies before doing so. The key feature of an early warning system is to notify supervisors which of their employees are acquiring a significant number of citizen complaints, rule violations, and so on. An agency must determine whether it wants to include only sustained violations in the early warning system or whether it should also include violations that are not sustained (or closed on other grounds). One advantage of including not-sustained allegations in an early warning system is that often misconduct occurs when the officer and involved citizen are the only witnesses. Without independent corroborating evidence, most agencies close such cases as not sustained. But by excluding not-sustained closures from an early warning system a supervisor may miss an opportunity for early identification of a potential problem.4

The remaining question facing the agency administrators is, for what period of time will the employee's past violations affect future discipline? To answer this question, the agency policy makers must balance the potential liability in negligent-retention and failure-to-supervise lawsuits with the consideration of fairness to the employee. Some agencies have resolved the question by forgiving offenses after a length of time; offenses committed before that time will not be considered in subsequent disciplinary decisions.5 Perhaps the best course is for agencies to establish a general rule such as three years but to permit an administrator to consider the officer's entire disciplinary history when appropriate because of exceptional circumstances. Those drafting such policies should consult their agency's legal advisor for information concerning negligent retention and supervision case law in their jurisdictions.

Agencies face many considerations when implementing a disciplinary system. Vigilant planning when developing tracking systems and careful monitoring upon implementation are imperative if the system is to be fair and to protect the agency from liability. ■

1 This article does not purport to address discipline issues comprehensively. It considers only the three most frequently used approaches to discipline, and the third category (comparative discipline) is discussed in depth.
2 A classic example is the employee who repeatedly violates the same rule. That which could be classified as courtesy may be more appropriately classified as unsatisfactory performance.
3 The Supreme Court has established that upon this showing an employee may advance "a mixed motive" theory. An exhaustive discussion of Title VII is beyond the scope of this article. Administrators having additional questions should contact their police legal advisor.
4 Administrators who are more interested in this issue may want to review the case of Shaw v. Stroud, 13 F 3d 791, 798 (4th Cir. 1994).
5 For example, some agencies apply a three-year period, the result being that rule violations committed more than three years prior to the current violation are not considered in administering discipline.



From The Police Chief, vol. 72, no. 9, September 2005. Copyright held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA.

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