Occasionally when officers are presented with charges, they choose to resign. They should be informed that a hearing will be held with or without them and they are advised to attend to tell their side of the story. Continuing with the hearing with or without the accused allows the department to make a determination of the charges and to give that result to future employers.
In this hearing, the officer should be able to present evidence and explain any mitigating circumstances that the officer feels would affect the outcome. Sometimes a ranking officer observes something and brings charges against an officer. The department takes the information from the ranking officer and proceeds with proposed disciplinary action. This is not appropriate. All accusations require an investigation just as if they were received from an outside source.
Another practice that used to be widespread was the suspension of an officer without pay until the investigation was completed. This practice is generally not appropriate. In addition to basic fairness, keeping an officer on the payroll gives the department control over that officer.
Emergency suspension without pay can only be justified in the most serious circumstances, such as a serious felony where strong probable cause exists. If it is felt the officer should not have contact with the public, that officer should be assigned to administrative duties. Once this hearing is concluded, a decision will be made as to discipline. In minor cases, discipline should be progressive.
The following lists the steps in progressive discipline as listed in recent union contracts. They include a step or two that has not been traditional. First, a statement of understanding, where the officer acknowledges usually in writing that he/she understands department directives violated. Second, a verbal warning, where the supervisor informs the officer verbally of the violation.
Third, a written warning, where a warning is given in writing that if the violation occurs again, disciplinary action will be taken. Fourth, a written reprimand, which is a letter or memo placed in the officer’s file, which will be used in future decisions (stays in file for a specific period of time). Fifth, a suspension, which is time off without pay. Sixth, a demotion, either a reduction in rank or pay grade or both. Finally, termination, where the officer is immediately fired.
Progressive discipline is used in the case of minor infractions such as being late for an assignment. It allows a chronic violator of very minor violations to be disciplined. To assure uniformity and fairness, many departments classify various violations from least serious to most serious using numbers or letters. With this system, a range of discipline is given in each category.
The vast majority of police officers are terminated for misconduct but officers can be terminated for lack of productivity. There are some basic principles that need to be followed when termination is based on productivity. They include: 1) the officer must be informed that he/she is not performing to standard, 2) standard must be reasonable and attainable, 3) the agency must provide assistance such as training if the officer needs it, 4) the officer must be given reasonable time to improve and 5) all the above must be documented.
Probationary employees and at will employees can be terminated with very little justification and are not entitled to the same due process as the majority of officers who have property rights. But some very good administrative attorneys recommend following similar steps to demonstrate fairness, should the fired employee later allege a constitutional rights violations.
Any serious discipline cases should involve the department’s legal counsel early in the process. The procedures and rights previously discussed have been very limited in scope. A book that will assist supervisors and internal affairs investigators with legal issues is: The Rights of Law Enforcement Officers by Will Aitchison. Now that we have covered the hearing, let’s take a look at some of the legitimate defenses that an accused officer may use.
The first of course is insufficient evidence. In administrative hearings, the standard is normally, preponderance of the evidence, which theoretically means, more than 51 percent. In practice however, it is somewhat higher, more like 70 percent. A more recent standard, used in some union contracts, is clear and convincing evidence. This is higher than preponderance but still lower than beyond a reasonable doubt in criminal cases, which is close to 100 percent.
Another common defense is that they didn’t know how to perform properly. In other words, they had received no training to cover that particular situation. This is the reason that when any major change is made in department directives, training should be part of that change. Another defense somewhat related is that the rules were not clear and unambiguous. The due process issue is often brought up as a defense. This is one reason that investigators and administrators should be clear on any union contracts or civil service or personnel procedures that exist.
Another one of the major defenses used, is that the investigation was not thorough or fair. Thorough is self-explanatory but fair occurs when someone involved in the investigation or at the management level made an inappropriate comment such as, “We will get this officer.” It is critical that, persons involved in a disciplinary process conduct themselves in an absolute professional manner, regardless of their personal feelings.
Other offenses such as punishment disproportionate, past exemplary record, mitigating circumstances, and anti-union bias, are legitimate but occur with less frequency. If the investigation and hearing are conducted properly, the last step in the process is to decide upon punishment, if the offense has been sustained.
The punishment administered should be in conformance with the guidelines set forth in the various categories. The severity within this range will be based upon past discipline. Our goal should be to retain and correct the officer’s behavior through training, counseling, or closer supervision. Some violations are so severe in nature an employer has no choice but to terminate.
Some are criminal violations, the same categories that would not allow hiring of an officer in the first place. Others such as lying, or falsifying a report, require termination. An officer who lies in an official investigation has ruined any chance he/she will be able to testify in court with any credibility. The legal requirement is that the prosecutor must notify the defense counsel of any integrity issues involving the officer scheduled to testify.
While one of the primary purposes of discipline is to correct inappropriate behavior on the part of the officer involved an equally important part is to set the standard for the agency. Every employee or officer will take notice of disciplinary action. Therefore, an agency should keep in mind that punishment is given to deter everyone from misconduct. This brings up another common question regarding how much information should be given out in the department about a case.
If the punishment of this offense is to have a deterrent effect upon others, the information has to get to them in some way. Some departments simply list the results of the investigation and punishment in their daily bulletin or on the bulletin board with or without naming the officer. A few do not report at all. Not reporting has the distinct disadvantage of reducing any deterrent effect and feeding the rumor mill. Probably the only major disadvantage of reporting the discipline is that aggressive news media outlets will make a story out of even the most modest of offenses. Unfortunately, this is the atmosphere law enforcement presently faces.
This series has touched upon the basics of conducting an internal affairs investigation. No officer or department employee should fear being investigated if it is conducted in a professional manner. The police are held to a higher standard and this is as it should be since they enforce the law. We have nothing to fear from accepting complaints, the vast majority of officers conduct themselves in an appropriate manner and we do not want to retain officers who do not. Modern technology such as dash cams, body cams, surveillance video, and widespread use of cell phones, will only make us more professional in our duties.
Joseph Koziol has 25 years of law enforcement experience, served as chief of police for 17.5 years in four different departments in three different states. He retired from Institute of Police Technology and Management in Jacksonville, Fla. He may be reached at firstname.lastname@example.org.