Ronal W. Serpas, PhD, Chief; Joseph W. Olson, Legal Officer; and Brian D. Jones, Commander, Office of Professional Standards, Washington state Patrol
wo years ago, the Washington State Patrol's disciplinary process, according to some employees and their unions, was punitive and vindictive, lacked empathy, and seemed designed to "get" employees rather than correct deficiencies. Investigations were taking too long, even for minor complaints.
The agency responded by developing a new disciplinary system that other agencies may wish to consider. Formally adopted in November 2001, the system is designed (1) to allow accused employees to avoid a lengthy investigation either by admitting a mistake, receiving a sanction, and moving on or by volunteering information to exonerate themselves; (2) to deal with minor misconduct at the lowest possible level of the department; and (3) to ensure the predictability, reliability, and validity of punishment attached to certain behaviors and violations.
The system has raised employee morale, improved management's relationship with labor, and led to a dramatic decrease in investigations conducted by the Office of Professional Standards (OPS).
Admit Your Mistake, Pay the Price, and Move On
The old disciplinary system in place at the Washington State Patrol was not unlike the system many agencies rely on. It provided the officers being charged with their Weingarten rights, such as notice, representation, the opportunity to be interviewed and heard, the opportunity to review the evidence against them, and the opportunity to provide mitigation at the Loudermill meeting.1 In most cases, the accused employee was interviewed after being given an order to tell the truth (invoking his or her Garrity rights) and an opportunity to present his or her side of the issue.2 The only time accused employees were contacted regarding the allegations was during the interview.
The new disciplinary process recognizes that employees who have violated policy want the opportunity, at the earliest possible time, to come forward, admit their mistakes, accept a reasonable sanction for those mistakes, and move forward with their careers. It also recognizes that most cases of misconduct involve mistakes of judgment or process and do not rise to the level of ethical or moral transgression that requires severe discipline.
In a settlement agreement process that forms part of the revised disciplinary system, accused employees, through their representatives, are now advised of allegations against them and given the opportunity to come forward and respond to those allegations. The new policy has allowed the agency to settle many disciplinary cases without ever conducting an investigation. This process applies to sworn and professional staff as follows:
(1) After the agency receives a complaint, it checks to ensure that (a) the complaint is against a member of the agency and that (b) the allegations, if true, would constitute a violation of agency regulations.
(2) If the complaint meets those criteria, the captain in charge of OPS makes contact with the bargaining unit representative who represents the accused employee.
(3) The OPS captain informs the employee's representative of the allegations against the employee. The captain advises the representative of the details of the allegations and gives the representative an opportunity to contact the accused employee.
(4) If the representative, after discussion with the accused employee, determines that the employee has committed some act of misconduct, typically the representative will ask the OPS captain what the likely sanction would be if the employee admitted to the misconduct. The OPS captain then consults with the appointing authority (the district or division commander, who will be either a sworn captain and or the professional staff equivalent, and who has the authority to make final judgment concerning misconduct allegations and disciplinary actions) and determines what level of sanction would be imposed against the employee if he or she were to admit misconduct.
(5) The OPS captain then notifies the employee's representative and discusses the potential sanction (and the conversation often includes negotiation over the sanction).
(6) If the parties agree that the admission is open and without reservation, that the penalty (as appropriate) is agreeable to the WSP, the employee's union, and the employee, the case is resolved without conducting a formal investigation into the allegations.
(7) If any new information becomes known to the agency that would require revisiting or investigating the original matter, then the agency would do so immediately.3
(8) There can be no appeal of the agreed-upon sanction.
In 2002 approximately 43 percent of the proven complaints against employees were resolved without completing a formal investigation. After an employee admits misconduct, the case is typically resolved less than 14 days after the acceptance of the complaint. Under the old system, investigations could take months, and the stress and uncertainty of those lengthy investigations often left the accused employee bitter and nonproductive.
Resolve Complaints at the Lowest Possible Level
The revised disciplinary practice also moved the resolution of minor complaints (that is, category 3 complaints such as rudeness, loss of equipment, minor vehicle damage, and efficacy of citation) down to the first-line supervisor. Under the old system, every complaint was fully investigated, and an appointing authority resolved every case. The new system places the responsibility for investigating minor complaints, along with determining and issuing the sanction, at the level of the accused employee's immediate supervisor. Each case is to be treated as either a noninvestigative matter or a formal category 3 complaint.
Noninvestigative matter: When a citizen informs the agency of alleged conduct by an employee that may violate departmental policy, procedures, orders, or regulations, the accused officer's immediate supervisor determines whether the matter warrants a formal administrative investigation. If the alleged misconduct is minor and, if proven true, would require only counseling or minor supervisory intervention, it is to be classified as a noninvestigative matter (NIM), and no formal investigation is to be conducted.
An allegation will be classified as a NIM if it is minor in nature, does not meet the criteria for a formal administrative investigation, and meets any one of the following criteria:
- The accused employee acted in accordance with a department regulation, order, procedure, or policy.
- All available means to identify the employee have been exhausted with negative results.
- A court must adjudicate the legality of a complainant's arrest, citation, notice of infraction, the legality of a warrant, or the legality of seized evidence.
- The complainant requested that no formal administrative investigation be initiated.
- The complainant supported supervisory intervention (counseling, discussion of complainant's concerns with the accused employee, remedial training, or a combination of those things) in lieu of formal investigation.
A NIM does not involve a formal investigation and will not be considered any type of disciplinary sanction. Neither party will attach any other documentation to a NIM. The supervisor of the person who completes a NIM must review it no more than seven working days after that supervisor receives the NIM. A copy of each NIM remains in the files at OPS for two years.
Receipt of three NIMs (excluding any NIMs that reflect that the accused employee acted in accordance with a departmental regulation, order, procedure, or policy) by any employee in a 12-month period will result in a formal investigation of the next complaint of minor misconduct. This practice is designed to ensure the integrity of the complaint process and to make sure that minor problems do not go unaddressed.
Finally, the agency notifies the complainant by letter that the incident has been handled as a noninvestigative matter. Absent a NIM process, many citizen and supervisory contacts that result in counseling would likely go undocumented, and the complaining party would probably never learn how the case had been resolved. NIMs document when employees are conforming to policy, and they help identify candidates for an early warning system.
Formal Category 3 Complaint: If the complainant wishes to file a complaint, and if the allegations are classified as a category 3 complaint (which could include fleet investigations and loss of equipment), the district or division commander, in consultation with the OPS captain, considers possible sanctions. If the commander determines that the sanction, if any, would not exceed a written reprimand, the investigation is referred back to the employee's immediate supervisor for resolution. The investigation proceeds as follows:
(1) The employee's supervisor will fully investigate (take statements and so on) and determine whether the complaint is proven, undetermined, unfounded, or exonerated, or whether the incident is authorized or unauthorized, chargeable or nonchargeable.
(2) If the complaint is proven, or the incident is deemed chargeable or unauthorized, the supervisor will determine and issue the appropriate level of sanction up to and including a written reprimand.
(3) The supervisor's decision will be subject to the grievance process, but no other appeal will be recognized.
(4) The retention period for category 3 sanctions of a written reprimand or less shall be two years unless like or similar misconduct occurs within such two-year period.
(5) The sanction of written reprimand or less shall be imposed in accordance with current practice.
Of the 281 NIMs filed in 2002, approximately 73 percent were cases that demonstrated and documented that Washington State Patrol employees had followed polices and procedures. In the same year, there were 68 formal category 3 complaints investigated, documented, and resolved by the first-line supervisor. Under the prior disciplinary system, all these cases would have been formally investigated under the OPS system, with the final determination made at the appointing authority level.
Several years ago, the Washington State Patrol did not have a published list of likely sanctions linked to allegations of misconduct. Sanctions could range from counseling to termination, and an employee accused of misconduct often had no idea of the possible sanction for category 1 (most serious), category 2, or category 3 (least serious) complaints. Employees believed that some officers who engaged in wrongdoing received stiffer or lighter sanctions than others had received for comparable offenses.
To ensure that disciplinary sanctions are predictable, reliable, equitable, and valid, Washington State Patrol leaders developed a disciplinary matrix (reproduced in figure 1). The disciplinary matrix establishes minimum and maximum penalties for each offense according to its severity and the number of the officer's prior offenses.
|Fig. 1. The Washington State Patrol's employee disciplinary matrix|
|Level||First Offense||Second Offense||Third Offense|
Max. Written reprimand
|Min. Written reprimand|
Max. Written reprimand
|Min. Written reprimand|
|Min. One-working-day suspension|
Max. Five-working-dau suspension
|Min. Three-working-day suspension|
Max. 10-working-day suspension
|Min. Three-working-day suspension|
|Min. Six-working-day suspension|
|Min. 11-working-day suspension|
The appointing authority has the discretion to treat an officer's second or third offense in 12 months as a first offense at a higher offense level. For example, if a proven allegation of category 3 misconduct would represent a trooper's second category 3 offense in nine months, the appointing authority could impose a sanction as high as the maximum under the first category 2 offense (a two-working-day suspension).
More than three violations in a severity level will automatically move any subsequent violations to the first offense in the higher level. Multiple violations involving the same incident will each receive a determination (proven, undetermined, or unfounded), but only one sanction will be issued for the incident. The OPS commander and appointing authorities have the latitude to explore negotiated settlements such as last-chance agreements, suspended sentences, reduction in pay, or other innovative approaches.
After the new disciplinary process was reviewed and approved by the chief, the system was presented to the bargaining units. Because the Washington State Patrol Troopers Association (WSPTA), which represents the agency's 965 troopers and sergeants, had been the most outspoken bargaining unit about the perceived unfairness of the old disciplinary system, the new process was first presented to the WSPTA for review and comment at a meeting of labor and management. The WSPTA representatives approved the new system with minor modifications and signed a memorandum of understanding (MOU) with the WSP. The new disciplinary system (the settlement agreement process, NIM process, and disciplinary matrix) has worked so well that it has been fully incorporated in the recently completed WSPTA collective bargaining agreement.
Agency representatives met with the other labor groups, presented the MOU that had been signed with the WSPTA, and asked other bargaining units to take advantage of this new disciplinary process as well. At the time of this article, all but three of 17 labor groups have adopted the MOU.
Once the unions had agreed to the new disciplinary process, the agency began training its sworn and professional staff on the new process. The new responsibilities and authority of the first-line supervisors formed a key subject of the training. The supervisors received training from OPS on the new disciplinary process in the areas of processing complaints, making consistent decisions, and documenting those decisions.
The WSP has also provided training to the union shop stewards regarding the disciplinary process. The purpose of this training was to ensure that the shop stewards know what to expect when one of their members is accused of misconduct and what opportunities they and their members have for resolving that misconduct at the lowest possible level or prior to a formal investigation.
The new disciplinary process was in full implementation by January 1, 2002. During 2002 there were 244 investigations of complaints initiated and adjudicated against members of the WSP. Of those complaints, 123 (50 percent) resulted in a proven finding of misconduct. Of the cases with a proven finding, 70 (57 percent of proven cases) were processed through the settlement agreement process. Of the 70 cases that were settled, 34 (49.5 percent) were resolved before any investigation began; 17 (24 percent) were resolved before an investigation ended; and 19 (27 percent) were resolved during the review by the appointing authority in the Loudermill process.
What these results show is that 51 (73 percent) of the settlement agreements reached in 2002 were handled before an investigation was completed, substantially reducing the amount of OPS investigator time devoted to conducting these investigations. Settlement agreements not only save investigative time and resources but also dramatically reduce administrative time and money spent transcribing tapes and preparing and reproducing reports.
According to the department's estimates, the average internal investigation costs the department a minimum of $5,000, not counting the costs incurred by unions who represent their members in these matters. The 34 cases that were settled in lieu of any investigation saved the Washington State Patrol at least $170,000.
Across the agency, disciplinary cases declined by 17 percent, and citizen-initiated complaints declined by 22 percent in 2002. Remarkably, this drop in citizen complaints coincided with sharp increases in roadside contacts (up 21 percent to a total of 1,442,087 contacts), DUI arrests (up 35 percent), speeding citations (up 57 percent), aggressive driving citations (up 77 percent), felony and misdemeanor drug arrests resulting from traffic stops (up 52 percent), and executions of warrants as a result of trooper activity (up 37 percent). At the same time, interstate highway fatality collisions were down 24 percent and injury collisions statewide were down 4 percent.
Cases investigated and closed by first-line supervisors dropped by 25 percent, thereby giving first-line supervisors more time to actually supervise and work with their employees.
A total of 48 cases resulted in suspensions. Of those, 28 were suspensions of commissioned employees, only one of whom chose not to engage in the settlement agreement process. There were 20 suspensions of merit system employees, of which nine chose not to engage in the settlement agreement process (one of the nine is a member of a bargaining unit that has not agreed to the settlement agreement process). Of the nearly 2,300 employees of the WSP, only 10 persons, representing approximately 0.4 percent of all employees, received a disciplinary sanction resulting in at least a suspension outside of the settlement agreement process.♦
1NLRB v. Weingarten, 420 U.S. 251 (1975); Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985).
2Garrity v. State of New Jersey, 385 U.S. 493 (1967).
3The agency recognizes the possibility that an employee could admit to alleged misconduct and thereby avoid an investigation that could uncover other, more serious misconduct. During supervisor training and discussions with the unions, the Washington State Patrol has stressed to managers, supervisors, and shop stewards the need to ensure that an employee participating in the settlement agreement process has been involved only in the misconduct alleged and is not merely using the process as an easy way out. The agency continually reviews its safeguards against this possibility.