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Managing Police Personnel in Today’s Legal Minefield

Written by Randy Means

This column is often devoted to alerting you to new United States Supreme Court decisions and clarifying frequently misunderstood points of police law, usually in the area of criminal investigative procedure. Of course, it’s important for law enforcement leaders to stay abreast of what good police work looks like. But law enforcement isn’t all about cops and robbers.

In fact, police managers and administrators spend little to no time chasing bad guys. Yours is the world of “corporate police work.” Therefore, we here begin a series of articles devoted to the personnel issues that keep you up at night.

The fastest growing lawsuit in American law enforcement is a claim made by our employee that we’ve not been fair with him. The number of claims under the federal wage and hour laws, all of the federal anti-discrimination laws, and the federal Constitution itself is mind boggling.

When you couple the costs of all that with the aggravation and compounding of “ordinary” liability problems caused by negligent hiring and retention, then throw in the costs of fraudulent disability claims, personnel administration problems probably cost law enforcement more annually than all the search and seizure stuff combined, including excessive force and false arrest claims. We might even be able to include the vehicle operation liability and still make the same point.

What is perhaps worse for you personally is that when problems like these arise, it’s very likely that you will be held directly accountable. It’s not like the historically typical lawsuit involving line officer decisions and actions. This one was our call. It might be the chief, the person in charge of HR, or another administrator, but someone will be blamed. When municipalities pay out big verdicts in these kinds of things, somebody has to take the hit—somebody high up.

It must be said, though, that liability concerns are not the best reason to try to get this stuff right. These are issues with substantive human and legal implications. It does not do them justice to think of them only in terms of liability, or only as procedural pieces of a bureaucratic puzzle. We are duty and honor bound to follow the law, and ethically obligated to treat people fairly. The best reason to do these things right is that it’s the right thing to do.

Personnel Practices

This series will update you on the latest issues, trends, best practices and liability exposures in personnel matters and employee rights, allowing you to prepare your agency, do the right thing, and protect yourself. New technologies like texting and social networking are causing tremendous problems for law enforcement agencies, large and small, across the nation.

The current tattoo fad is creating professional appearance concerns that confound police departments and their policy makers. There have been some landmark cases in the areas of affirmative action and reverse discrimination, and the federal alphabet soup of employment law is ever thickening—the ADA, ADEA, FMLA, FLSA, etc.

“Fitness for duty” used to imply either medical or psychological issues. Now it includes the ability to render credible testimony in a court of law. Do the case names Brady and Giglio sound familiar? Have you ever heard of “acceptable discrimination”? What about shift work disorder? Well get ready, because we will be discussing all of these issues and many more in the upcoming months.

Unfortunately, space and time constraints will preclude in-depth exploration of every critical issue, but we will provide at least a primer and summary. The need for expertise in navigating this minefield cannot be overemphasized. Further reading and classroom training is critical.

Our next article will address the first issues in personnel administration: attracting and hiring the right people. Of course, for a variety of reasons, sometimes including state law, different agencies will use different hiring criteria and processes, and different sequencings of events. But there are certain common denominators that can and will be meaningfully discussed. Subsequent articles will focus on retention and productivity, sick leave and disability management, fitness for duty, First and Fourth Amendment rights of employees, and much more.

Randy Means is a partner in Thomas & Means, a law firm specializing entirely in police operations and administration. He has served the national law enforcement community full time for more than 30 years and is the author of “The Law of Policing,” which is available at LRIS.com. He can be reached directly at rbmeans@aol.com.

Kevin Lowry is a chief with the Nassau County Police Department in New York City. He is a qualified arbitrator of personnel and employment matters and, as an attorney, specializes in those same areas. He has held supervisory and management positions in patrol, investigations and administration. He can be reached at kevin@callacop.com.

Published in Law and Order, Oct 2010

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