Book excerpt: The Future of Policing: 200 Recommendations to Enhance Policing and Community Safety

Chapter 10: Discipline

Due to the powers that police have and the responsibilities they are tasked with, it is imperative that policies, procedures, and guidelines exist to regulate officer behavior. It is critical that police personnel (especially those with sworn powers), act and perform in a manner that is consistent with legal, ethical, and professional expectations. This includes the Law Enforcement Code of Ethics as previously discussed. Processes need to be in place to ensure proper conduct, and to prescribe how violations and complaints will be handled. Commonly referred to as disciplinary processes, these must be comprehensive, timely, fair, and consistent.

The purpose of discipline is to ensure that behaviors and actions are consistent with expectations. If there is a deficiency in officer actions, the disciplinary process should be focused on correcting behavior to ensure future behavior is in compliance with expectations. Punitive actions or punishment are not and should not be the purpose of a disciplinary system. The system should include a variety of methods to correct behavior including counseling, written letters and/or reprimands, training, suspension, demotion, and termination. Which action is best depends on many factors, such as officer history, and the type, circumstances, and severity of transgression. The process should utilize progressive discipline, with discipline becoming stronger or more severe for repeat violations of a similar nature or severe transgressions of a singular nature.

Discipline’s primary focus is to change individual behavior, but it has an impact on others. Discipline involves more than just the subject officer. Other personnel, and sometimes the public is watching what the agency does. This includes whether the agency sustains any charges or rule violations and the type and severity of any disciplinary action taken. While in many agencies, disciplinary action is confidential as part of a personnel record, information still gets out about what action was taken. In other agencies, the information is public record so others definitely know what action was taken. Disciplinary action can serve notice to agency personnel and the community that if violations occur they will (or will not) take action. It impacts the level of rule compliance within the agency and can positively or negatively impact agency culture over time.

Most disciplinary processes are documented in agency directives, governmental policies such as personnel rules, civil service rules and regulations, and/or collective bargaining agreements. Each of these specify how accusations or concerns of rule violations, misconduct, or citizen complaints will be handled. Most processes today are very detailed including time frames, forms, findings, and penalties. All are based on creating a process to ensure that agency personnel abide by and comply with the various rules, regulations, standards of conduct, policies, procedures, directives, and oaths associated with the position.

Several myths exist surrounding police disciplinary processes. One myth believes that officers do not report or file complaints about other officers. This is generally false. The majority of police complaints are internal complaints. In other words, these complaints originate from within the agency and generally focus on either behavior or rules compliance. The second myth is that the agency and/or the chief have total say over the discipline process or even the final decision. This is also false. All disciplinary actions must take place within the context of the disciplinary process. How the investigation is handled and that it must occur within certain time frames impact the process. What decisions can be rendered based on the findings are also controlled by applicable procedures. In many cases, even what types (letters, reprimands, suspensions, demotions, termination, etc.) of discipline and the severity of discipline are controlled by established procedures. In some environments, the chief can only make a recommendation while in other environments, the chief can make the decision. In some cases, the decision is made by a city manager, city personnel department, public safety board, or by a civil service board. And, in most cases, the decision is subject to review and appeal to or by one or more other administrative, quasi-judicial, or judicial bodies. These final decisions may vary greatly from what the chief desires.

Many agencies have implemented different types of disciplinary processes, with different focuses and varying degrees of success. Some agencies have and continue to use a matrix type process that identifies a range of discipline for various offenses and situations. Other agencies, such as the Los Angeles Police Department (LAPD) have implemented mediation programs (Alternative Complaint Resolution–ACR) wherein the citizen complainant and the involved officer meet to discuss the incident. [1] This is usually reserved for minor complaints and is voluntary for both the citizen and the officer. The Los Angeles County Sheriff’s Department (LASD) implemented a program focused on education, training, and learning. The Education Based Discipline (EBD) program focuses on behavioral change through education instead of punishment. [2] Other types of processes that either replace or supplement traditional disciplinary processes include peer review and civilian review boards.

Recommendation 67: A set of written directives must exist to guide and detail general behavior and an overall code of conduct for all agency personnel. It must specifically require all personnel abide by applicable directives, laws, regulations, and expectations.

There must be a comprehensive set of written documents that detail policies, procedures, standards of conduct and generally how personnel will perform their tasks and conduct themselves. Some of the expectations are generally documented in general directives, standard operational procedures (SOPs), rules and regulations, and codes of conduct. General directives and SOPs usually focus on procedural aspects of how personnel are expected to perform the various tasks assigned to them. Some will be more detailed than others, but they must be sufficiently clear to identify what level of service is expected and what actions are not allowed. It is necessary to identify and document what officers can do, what they cannot do, and how they are to conduct themselves, especially while performing the tasks of the position. Written directives serve to document the agency’s expectations of its personnel as it is the obligation and responsibility of the agency to identify all such guidelines and requirements. Granted, no directive can cover every possibility, eventuality, or situation, but the directive should provide sufficient guidance so there is a general understanding of what is legal, ethical, and professional. Conversely, the concept of discretion should be fully discussed and officers granted the ability to use said discretion within certain parameters.

Documents known as rules and regulations or codes of conduct generally focus on the personal actions of agency personnel. Most agencies have numerous documents that outline how agency personnel should perform and behave. These directives cover such activities as courtesy, behavior, service, appearance, demeanor, fitness for duty, off-duty behavior, untruthfulness, and numerous other aspects associated with possessing police powers. These rules and regulations require behavior that is above that expected of citizens and is directly related to the powers and position of a police officer. In many cases, these rules guide how an officer behaves and how they perform their duties overall as opposed to the specific procedures that guide how a specific task will be completed. While most agencies have these, all agencies should have these in written form. These types of behavioral rules directly relate to the characteristics of agency personnel, and focus on fairness, honesty, integrity, courtesy, and many other characteristics that transcend and impact every action of the officer.

It should be specifically stated that personnel are expected to comply with the directives, rules, regulations, policies, procedures, laws, and the oaths of their office. While it should not be necessary, and sounds strange to have a directive that requires all personnel to comply with all directives, it is nonetheless prudent and necessary to have such a directive. All directives must be appropriately worded to ensure everyone understands what is required and what is recommended. Using words such as “‘shall” or “‘must”’ are more definitive and require compliance. Other words such as “‘may”’ and even “‘should’,” tend to allow for options depending on the situation and circumstances. While it is appropriate for some directives to allow for options or discretion, many directives are mandatory and need to be written as such. This specific admonition and requirement clearly identifies that compliance with expectations is mandatory.

Listen to Scott Cunningham discuss his book on this episode of the Policing Matters podcast:

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Recommendation 68: A written directive must exist that details the disciplinary process.

Most agencies have these, with many being found in civil service rules and/or collective bargaining agreements/union contracts. These written descriptions of the disciplinary process should be comprehensive as they are basically the rules or procedures of how the disciplinary process will function. It is imperative that the procedures be fully documented and described so everyone has fair and full notice of how the process will operate. The directives must outline all aspects including time frames, procedures, employee rights, and management rights. It is imperative that management and supervisors fully understand the procedures as any errors or mistakes, such as missed time frames, can result in a loss of ability to take action regarding an officer’s actions. The directives should be focused on determining the facts of any situation so appropriate decisions can be made. Decisions should take into account the nature of the specific incident, past behavior of personnel involved, and what is fair and balanced for all involved, including the subject officer, the complainant, the agency, and the community.

Recommendation 69: The disciplinary process should be completed in a timely manner.

In order for discipline to be productive, fair, and beneficial, the process must be completed in a reasonable time frame. There is little benefit to the agency, employee, or community if discipline for an action occurs a long time after the action. Since the intent of the disciplinary system is to correct past behavior and positively influence future behavior, it is imperative that these adjustments be made as soon as practical. It should be noted that the time frame discussed herein is different than the time frame to conduct the actual investigation. Here, the focus is upon taking action and actually issuing any appropriate discipline after a comprehensive investigation as occurred. These factors (length of investigation time and quickness to issue discipline) are linked, but they are different.

The time frame for issuing or conducting discipline should be as short as is necessary to ensure that the investigation is complete and to consider what the appropriate level or method of discipline is. In some cases, this may be hours for very minor transgressions wherein the officer understands the transgression, and there is no history of concerns. In other situations that include a more serious transgression or repeated transgressions, a small number of weeks may be required to ascertain the appropriate level of action to be taken. Other factors that must be considered include what actions have been taken for other violations of this nature with similarly situated officers. In other words, the discipline must have some consistency to it.

Recommendation 70: Discipline must be appropriate when matched to the rule violation. It must be consistent but fair to the agency and the individual considering the circumstances.

The level of discipline administered must be such that it demonstrates that the officer’s actions were not consistent with expectations, and should be sufficient to prevent future occurrences. Insignificant discipline is meaningless as it does nothing to shape future behavior. But it might be counter-productive in that it may give the impression of nit-picking or heavy-handedness, and eventually breeds contempt for rules. However, excessive discipline is unreasonable as it is perceived as unbalanced compared to the violation. In many cases, excessive discipline destroys morale, and frequently it is overturned by reviewing authorities if appealed. Having disciplinary decisions reversed or overturned is harmful to management and the entire process. Discipline must be balanced and in order to be truly effective, must be viewed as fair by the totality of personnel.

A concern that is sometimes overlooked is how the disciplinary action will be perceived by the community. Citizens must also perceive the discipline as appropriate considering the violation. If the community believes the discipline is too little for the violation, they may perceive that the officers can get away with anything and the agency will not hold them accountable. This could easily result in a lack of faith and trust in the agency and could result in citizens believing there is no reason to report perceived misconduct. Many feel that this is commonplace, and believe that this encourages officers to break the rules as they know they will not be punished. However, various reviews have indicated that citizen review boards that can look at discipline, generally either support or reduce the agency issued or contemplated discipline. Regardless, it is incumbent upon the agency to educate the community about the disciplinary process and applicable rules and guidelines.

Discipline must be consistent yet fair. Given similar circumstances, and considering officer histories, like discipline should be administered for similar transgressions. This does not mean that all discipline has to be exactly the same for each violation. The circumstances of the transgression and the officer’s history must also be taken into consideration.

For example, there can be a policy that states a second at-fault traffic crash will result in a one-day suspension. If Officer Jones and Officer Smith each have their second at-fault vehicle crash on the same day, giving each the same discipline of a one-day suspension would be consistent, but might not be fair and appropriate. If Officer Jones has been an officer for six months while Officer Smith is a twenty-year officer, the discipline, even though identical, is not the same and would not be considered fair, balanced, or consistent. The reality is that the officers are not in similar circumstances. Care must be exercised in issuing discipline in this manner, as the agency must avoid any appearance of favoritism.

Recommendation 71: The disciplinary system must be based on progressive actions and have training as a key component.

As mentioned, the purpose of a disciplinary system is to ensure that behavior is consistent with expectations. With that understanding and philosophy, changing behavior to meet expectations should be the focus of the actions taken, so as to meet the desired end result of rule and expectation compliance. Also, from a practical consideration, if the officer is not terminated from employment, the agency must try to ensure future performance and behavior matches expectations. Since the officer remains with the agency, mere punishment is not sufficient. Re-training must be used to document that the officer was in fact shown the proper methods so that any future transgressions are not a training issue.

Some transgressions can actually be a training issue. If the officer was never trained, or poorly trained, or has not performed the task in a lengthy period of time, they might not legitimately know or recall how to perform the task as expected. In these cases, training is the best response and should eliminate future transgressions. However, if the officer was properly trained, and has been performing the task, sudden and/or recurring transgressions are generally not a training issue but rather are a disciplinary issue.

Training is one of the best methods to ensure that the officer is aware of desired performance expectations. Virtually all discipline should involve some aspect of training. This might range from a review of the pertinent procedures up to and including attending a remedial training session with proficiency testing. What is best, once again depends on the circumstances, but all discipline should at least include a review of desired expectations.

Progressive discipline should be a foundation of the process. Understanding that education and ensuring compliance with expectations is the goal of the disciplinary process, the least severe punitive actions that would succeed in changing behavior should be used. Disciplinary actions should become more severe as the number and/or severity of transgressions increases. The minimum action necessary that would reasonably ensure future compliance should be used. This has benefits including reasonableness of penalty compared to violation, not over-reacting by being too severe, and encouraging the employee to learn and go forward. Punishment that is too severe runs the risk of alienating the employee so they no longer wish to function as a member of the team, but nonetheless still remain in the agency. Discipline that is perceived as too severe or as unfair is often resisted and, in many cases, is appealed. While appeals can be beneficial, they can delay a final decision, cost time and money, and can in some cases be overturned. If transgressions continue or a single transgression is so severe, then progressively more severe discipline is warranted. Many of these concept-based recommendations inter-relate and work together.

Recommendation 72: A directive should identify the probable range of disciplinary and corrective actions available for various violations. It should also identify those actions, violations, or transgressions that would generally result in termination.

By providing a list of potential disciplinary actions for various transgressions, everyone is made aware of what can happen for various violations. Many agencies have disciplinary matrices that outline different penalties for transgressions that are sometimes grouped into violation classes. Most agencies, however, do not have a written document matching transgressions to possible penalties. The reason is that some agencies believe that such a document would limit their ability to act and that it restricts their freedom and management rights. It is also more difficult to construct as it requires the agency to think more about the disciplinary process in advance, plan accordingly, and to gather input from the community and agency personnel regarding a range of potential actions.

The reality is that if done correctly, such disciplinary matrices can provide good information to agency personnel and the community about normal ranges of actions to be taken. This advance notice assists with fairness and consistency concerns generally. In his article “Police Employee Disciplinary Matrix: An Emerging Concept,”, Jon Shane states, “the purpose of a disciplinary matrix is to leave the police department with a predictable, progressive, and uniform guide for dispensing discipline that accounts for the seriousness of the infraction, the prior disciplinary history of the officer involved, and the aggravating and mitigating circumstances.” [3]

The matrix should also provide a range of disciplinary actions to account for seriousness of the violations, officer history, frequency of violations, as well as mitigating and aggravating circumstances. It should also indicate that repeat violations of the same or similar type of rules would be considered. This avoids an officer from having four counseling sessions for four different rule violations in a short period of time. A disciplinary matrix can also be perceived as fairer by the employees since they know what the range and likely disciplines will be. There is also less variation in the issued discipline between different cases, which causes less resistance to the entire disciplinary process. These documents and processes, if done correctly, can benefit the officer, the agency, and the community.

Realizing the purpose of a disciplinary process is to correct and change behavior, and that progressive actions should be taken when feasible, sometimes behaviors or violations are so egregious that only severe disciplinary action is appropriate. For some violations, no amount of training or punitive action would suffice to change behavior or ensure that subsequent behavior or decisions do not re-occur. In some cases, the violation is so damaging, that the agency has lost trust and confidence in the officer and their ability to act as expected. In these cases, the officer can no longer perform as a police officer. The disciplinary process should identify those violations that would generally result in termination.

Being a police officer requires that personnel can be depended upon to act legally, ethically, professionally, fairly, and impartially in all matters. Since officers act alone in most situations, their judgment, decision-making, knowledge, and actions must be as expected and within commonly accepted parameters. The chief, the community, and other agency personnel must be able to depend on the officer to do the right thing, especially when no one else is looking. Citizen freedoms and liberties are at stake. So are the reputation of the agency, community trust in the profession and the agency, and the ability of the agency to function with community support.

Violations that involve honesty, integrity, adherence to laws, and the ability of the officer or agency to competently perform the duties of the position are very severe. They threaten the core concepts of legitimacy, trust, support, procedural justice, and violate the oath of office. Examples of such severe violations include untruthfulness or false statements, planting or tampering with evidence, excessive force with serious injury, theft, assisting criminals improperly, accepting bribes or payoffs, and being charged with certain crimes.

Once an officer has been found to have committed any of these offenses, they have lost the ability to competently perform as an officer because they cannot be trusted. In many cases, it is the officer’s word against that of a citizen regarding if a crime was committed and that could impact the citizen’s liberties. The agency, the courts, and the community must be able to rely on what the officer states or writes in a report. If there is any question of truthfulness, legality, or ethical behavior, then the officer becomes worthless to the agency.

Certain court decisions (Brady, [4] Giglio [5] and subsequent cases) have held that if an officer has been found to have been untruthful in any matter, then that raises questions about their character and their ability to testify truthfully. Accordingly, such information must be provided to the prosecutor who must provide the information to the defense attorney. This results in many prosecutors determining that they cannot trust the testimony of such an officer, and therefore they will not use them as a witness in any cases. If an officer cannot testify in court, then the agency cannot let them be involved in the investigation of any criminal cases.

In situations like this, and based on a comprehensive investigation that results in a finding of guilt, the officer should be terminated from employment. Other steps regarding certification and notice should also be taken, but it is imperative that the officer be removed from the agency and profession.

Recommendation 73: Officers should have a pre-disciplinary hearing/meeting prior to the implementation of any significant discipline.

Prior to making a final decision regarding the imposition of significant discipline, the officer should have the opportunity to speak to a command-level person, preferably the one that will either make the decision or make a final recommendation to the chief. This provides the involved officer an opportunity to explain their actions, offer mitigating circumstances, and offer any other pertinent information they want to voice or have considered. For purposes herein, significant discipline includes demotion, suspension, or termination. The command officer or chief should consider this information, and if warranted conduct additional investigation, prior to making a final decision. The officer should also be able to have someone with them to help articulate the desired information. This process helps to ensure that the officer has the opportunity to present any information they believe relevant prior to the final decision being made. For any discipline, but especially significant discipline, it is best to ensure that all information is heard before the final decision and imposition of any decision.

Recommendation 74: A review of the public nature of disciplinary records should be conducted.

This review should include what disciplinary records are public, what are protected as personnel records (or other classifications), and what records can be released to the public. Different states have different guidelines, with some states granting the municipality the discretion to decide what is public and what is not. In some states, the entire disciplinary record of an officer is public, while in other states only very limited information is public. These various laws, rules, and guidelines create a hodge-podge of situations that are difficult for agencies and communities to navigate.

There should be some degree of uniformity and consistency to ensure that the rights of officers are protected while at the same time protecting the interests of the citizens. The officers have a reasonable expectation that any small transgression does not hold them up to public ridicule or make it more difficult for them to accomplish their lawful duties. The citizens have a reasonable expectation of knowing that their public servants are competent and comply with the rules and regulations pertaining to how police personnel perform their duties. There should be a careful review of applicable laws and guidelines, with input from officer groups, management, government, and the community, and then informed changes should be made as appropriate and beneficial.

Recommendation 75: A disciplinary notice should be sent to the state certification body regarding all discipline.

Currently, most state certification bodies are not made aware of the vast amount of disciplinary actions taken by agencies. This is partially due to the fact that the vast majority of actions are minor such as counseling, training, or written documentation of some type. And in most situations, there is no need for further action as the discipline administered has served its purpose to transform behavior. But, in many cases, even severe discipline such as suspension or demotion, and in some cases termination, are not reported to the state certification body. This is predominantly due to the fact the state certification body only acts on a certification if they are made aware of a serious issue or if the officer is terminated from an agency. In some cases, the certification body does not act on the officer’s certification unless they apply for a job elsewhere within the jurisdiction of the certification body. Partially, this is due to workload and staffing. Most certification bodies are lightly staffed. So the decision is made that certifications are only reviewed if needed, such as if the officer applies to another agency in the jurisdiction. If the officer is terminated but never applies for another position in the jurisdiction, then why waste the time acting on the certification? The problem is this does not help the profession, other agencies, or the citizens at large.

Such notice to the certification body would include a summary of the incident, what kind of investigation was conducted, the agency finding, and what actions were taken by the agency. This notice would enable the certification body to be aware of and capture all discipline generally, but also specifically on all personnel who are certified by the body. If desired, the certification body could request the entire incident investigation and disciplinary documents for further review and action as deemed appropriate. This would enable the certification body to more closely monitor certified personnel, take action when or if an agency failed to do so, track misbehaving personnel across agencies, and provide general data and information about violations for statistical and training purposes.

While this would add significant workload to the certification bodies, it is a reasonable and necessary step to ensure the public and profession are protected. It would reduce some of the issues that the profession is facing, and it is a reasonable cost of doing business. It would also provide some consistency at least at a state level. Agencies would also face additional workload but it would be relatively minor and basically consist of sending various forms and paperwork to the certification body. Some agencies might balk at this process arguing that it takes away some of the agency’s ability to handle its own personnel issues. But the reality is the agency could still take the actions it deems appropriate as long as it is reasonable. The bottom line is there is little reasonable argument for not doing this while there are numerous benefits supporting this change.

Recommendation 76: Annual disciplinary summaries should be published.

Each agency should be required to review and analyze its disciplinary process and activity on an annual basis. It should also be required to publish the results of the analysis so the public understands the issues surrounding the discipline process and the steps the agency took to correct and enhance behavior. The analysis should be a numerical analysis of all disciplinary actions taken. It should include what actions were taken for what violations and the numbers of each violation type and disciplinary action. It would not list individual officers or cases, but rather look at the process and agency as a whole to determine patterns. These patterns would include work component, time of day, week of day, and so on. The report should also include what actions were taken based on the violations and patterns revealed. This might include changes in training, equipment, policy, procedures, or other actions. Reports of these types are helpful to the community and the agency in guiding decisions regarding how to continually improve agency and officer performance and service. It can also serve as an excellent tool to educate the public about the disciplinary process.

References

1. Los Angeles Police Department. n.d. Internal Affairs Group.

2. Stephens DW. (2011). Police Discipline: A Case Study for Change. New Perspectives in Policing, June:12.

3. Shane JM. (2012). Disciplinary Matrix: An Emerging Concept. Police Quarterly, 15 (62).

4. Brady v. Maryland. 1963. 373 U.S. 83, 87 (U.S. Supreme Court, May 13).

5. Giglio v. New Jersey. 1967. 385 U.S. 493 (U.S. Supreme Court, January 16).