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Police Discipline: Part Three, Effective Discipline

Part three of this series examines the disciplinary process, those steps that occur after the completion of the internal affairs investigation. It reviews those things that need to be in place for a successful disciplinary system. It does not discuss positive discipline but only the process that can result in the various forms of punishment and other corrective measures.

Part three touches on only major constitutional issues. There are many other legal implications controlling; police officer’s bill of rights, state constitutions, civil service or merit rules, and personnel rules of the individual organizations. Let’s review what needs to be in place for a successful disciplinary process.

 

Foundation Elements

The leader of any police organization has a vision of what that organization should be like. That vision is often spelled out in one or two sentences referred to as a mission statement. This sets the overall priorities guiding how officers should function. Flowing from the mission statement are goals and objectives. Goals carry out the mission statement and are broad and timeless in their application.

A simple example would be to prevent crime. They help set priorities and guide planning and budget decisions. Objectives are specific as to what should be done and are always measurable. For example, to reduce residential burglaries by 10 percent this year compared to the last year. From these elements flow the tools used to enforce proper conduct and performance.

The first of these tools is well-written policy. Policies cover everyday operations. It’s a general guide for the most recurring situations. It’s permanent, yet has flexibility, in that an officer can deviate from policy if the situation is justified. For example, a department’s policy might read, officers should enforce minor narcotics violations they observe.

An officer might legitimately not enforce that policy at a large public function where hundreds of violations were occurring in plain sight, if the enforcement would probably cause disturbances, beyond control of the police resources available. Policy provides organizational guidelines and is a major part of training. This ensures uniformity of actions by officers.

Procedure is the next element needed. Procedures are the steps that we follow in standard activities, often referred to as SOP. They are more restrictive than policy but can be deviated from when the situation requires. The next elements are rules and regulations. They do not allow deviation. Rules prohibit, regulations require. Example of a rule would be, “Officers shall not use excessive force in the performance of their duties.”

An example of a regulation would be, “Uniformed officers will carry two fully loaded magazines, with department issued ammo, when on duty.” A violation of rules or regulations will result in disciplinary action. This action may be anything from a verbal warning to termination, depending upon the violation and frequency.

Rules and regulations must be written in a clear, concise, and understandable language. Officers should of course be aware of policy, procedure, rules, and regulations. Departments try to assure this by issuing detailed manuals and having the officers sign a form stating they have read, understood, and have no questions. This practice is not adequate. Policy, procedure, rules, and regulations should be continually reviewed in training, at roll call, and in bulletins. Included in this training should be the disciplinary procedures utilized by the agency.

Officers sometimes resist investigation of a minor incident and through a lack of cooperation, commit a major violation. It is paramount that everyone understand that in an administrative investigation, Garrity applies and officers must answer questions fully and honestly.

Garrity was discussed previously, but it’s important to note that while Garrity protects an officer from his/her statement being used in criminal proceedings, those administrative statements may be used in civil proceedings or against other officers, and of course can be used for department charges. Let us now proceed with the disciplinary process starting with the completed report of the investigation.

At this point, there will be a review of the evidence to determine proper classification and type of disciplinary action if appropriate. Common classifications are: 1) Unfounded, where the officer was justified and within policy or incident did not occur; 2) Not Sustained, where insufficient evidence exists to determine if there was a violation; 4) Sustained, where the violation occurred as alleged; and 5) Policy Failure, where there was a negative outcome not covered by department directives and thus officer cannot be held accountable.

This step in the process in a large department is often done by staff personnel who report recommendations to the top administrator. In medium and small departments, it may be done by the top administrator. Some departments have instituted some form of peer review, in place of or addition to the staff review.

Typically, a small committee of three or four officers of the same rank, with one higher ranking officer acting as chairman added, reviews the evidence and make a non-binding recommendation, to the head administrator. One might think that officers of the same rank tend to be lenient in the recommendations. This is not the case most of the time.

This hearing can vary widely based upon locations controlling statutes. However, certain rights must be assured of the accused, before disciplinary action can be taken. The primary of these is a name clearing hearing. This is commonly referred to as a Loudermill hearing. Based on a case, Cleveland Board of Education v Loudermill, in which a bus driver was terminated for lying on his application but was never given an opportunity to explain.

This type of hearing can be very formal or quite casual. The person holding the hearing should be unbiased and have not decided in advance that the employee is guilty. The accused employee should be given timely notice prior to the hearing with the nature of the complaint, specific charges alleged, a summary of the evidence, and the possible policy rules regulations violated. The officer should also be made aware of the maximum discipline that could be considered. Time and location of the hearing would also be included.

This series will be concluded in the September issue of LAW and ORDER.

 

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 jskoziol@att.net.



Published in Law and Order, Sep 2016

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