By: Allison N. Genard, Esquire
Published on: Mon 11th Apr, 2022 By: Campbell Durrant, P.C.
In a world with constantly and rapidly changing technology and deteriorating confidence in police, local politicians have a lot on their plate when it comes to police discipline. There is a constant tug of war between supporting the police department and holding officers accountable to bolster citizen trust in the police and the municipalities that control them. Outside of being involved in municipal governance, many people do not realize the types of misconduct that arise within a police department. For instance, a California Appeals Court recently upheld the termination of two police officers who were caught playing Pokémon Go while on duty when they refused to respond to a call for backup and then lied about what they were doing. Supervisors discovered this misconduct when reviewing dashboard camera which contained the officers’ conversations about ignoring the radio calls and discussing Pokémon. Locally, the City of Philadelphia has been embroiled in litigation and arbitration for over two years after it terminated fifteen police officers for racially offensive social media posts. More recently, Lancaster fired two police officers for submitting fraudulent vaccine cards. These types of misconduct are not limited to big cities and appear in municipalities of all sizes, along with the accompanying media attention such behavior causes.
It is imperative that Townships stay up to date on the complex and involved nature of police discipline. This article highlights the various elements and considerations at play from knowledge of misconduct, through investigation, and deciding discipline.
When it comes to police misconduct, Township decisions should include several policies in the discipline process. Before drafting and revising policies, any applicable Collective Bargaining Agreements, Civil Service Rules and Regulations, Township Codes, and federal and state laws should be reviewed for compliance. If the policies cover both union and non-union employees, the policies must account for different manners in which these employees are treated. Consultation with labor counsel can ensure there are no impermissible contradictions or clauses.
The starting point should be the procedure for receiving and investigating complaints of misconduct and protections for individuals reporting misconduct. The policy should set forth how complaints of police misconduct can be reported. It should provide instructions on where the complaints should be submitted, what information must be included in the complaint, and who is responsible for reviewing the complaint and ensuring that it is given to the correct person for the next step of determining who will be performing the investigation. The policy should then highlight who will make the decision whether the investigation will be conducted internally or externally. Finally, it should make it clear that retaliation against individuals making complaints is strictly forbidden. It is not recommended that the policy set out strict rules for when internal or external investigations should be conducted. The decisionmakers should have some discretion as to whether the investigation will be conducted internally or externally. A Township should not agree to any contract or policy language limiting the time frame for investigating complaints as this could result in a Township being barred from disciplining and terminating an officer that engaged in horrific misconduct merely because a lapse of time between the event and when it was reported. Likewise, a Township should not agree to include rigid progressive discipline contract language that removes discretion of more severe forms of discipline for more severe misconduct when an employee has a clean discipline history.
Townships should update technology policies at a minimum every year. The grounds for discipline related to personal social media and technology use both on and off duty should be clear and communicated to all officers. The Township should also include language prevent or discourage officers from including symbols of the Township, including uniforms and badges, in personal social media accounts as their statements could be attributed or be perceived to be endorsed by the Township.
Townships should also have a body worn and dashboard camera policy, including potential discipline related to the dashboard and body camera footage. Municipalities must bargain over the impact of use of random dashboard and body camera footage review for discipline. Specifically, Arbitrator Stephen Helmerich held that the City of Pittsburgh violated the Pennsylvania Labor Relations Act when it refused to bargain prior to implementing a policy that did not allow officers to view footage before giving statements on critical incidents and allowed supervisors to randomly review dashboard and body camera footage of officers for performance standards, which could result in discipline. The Arbitrator also found that the City did not violate the law when it came to officer privacy, ambiguity on when the cameras should be turned on and off, or in creating differences in application of the mandate to use these cameras on police officers, such as patrol officers and detectives. Therefore, if a Township has the ability to utilize body worn and dashboard cameras in its police force, policies should reflect the expectations and parameters for use and bargained for use in discipline.
The last essential element to policies is training. Townships should be conducting, offering, or providing training on social media, technology, and discipline policies. Officers should be aware of the expectations of professional and personal social media and technology use and consequences of misconduct. Transparency and accountability are vastly important in an era of increased observation, scrutiny, and publicity of police officers and the municipalities that employ them. Effective and enforced policies protect these officers and municipalities.
Favorable and upheld discipline is dependent upon effective and thorough investigation and preservation of due process rights. The starting point for discipline is to identify the suspected misconduct, who is involved, and any conflicts of interest between the individual accused of misconduct and those potentially investigating the misconduct. Another consideration is whether the Township has qualified internal human resources or management employees to conduct an internal investigation.
With this information, command staff, management, and elected officials can decide whether the investigation should be conducted internally or externally. Some obvious examples of when an external investigation should be conducted are when a member of the command staff is accused of misconduct, the misconduct involves Township management or elected officials, criminal conduct, sexual harassment, or a highly publicized allegation of use of force or corruption. If the misconduct involves criminal conduct, the investigation of the criminal conduct should be conducted by an external law enforcement agency. The Township should utilize labor counsel or a private investigation company to conduct an external investigation. Regardless of whether the investigation is done internally or externally, the Township should keep its labor counsel involved and informed on the investigation.
Once the course for the investigation is chosen, it must be allowed to occur without interference of Township employees or elected officials. Investigators should be cognizant of all areas for investigation, including text messages, direct messages on social media platforms, and private emails. The expansion of communication forms has resulted in numerous sources of information that are often overlooked but can make or break an investigation and subsequent disciplinary decision. The investigator must gather all documents and evidence and review the information before starting interviews. The investigator should interview all available witnesses, including the accused. Garrity warnings should be given to any interviewee that asserts Fifth Amendment rights. If that witness still refuses to answer questions after being given Garrity warnings, then that witness should be disciplined for refusing to cooperate with the investigation. Township management and elected officials should stay informed throughout the investigation of the developments and process.
Due Process Requirements:
When the alleged misconduct has been founded and the investigation mostly completed, the Township must give the accused an opportunity to be heard to satisfy his or her Loudermill rights. Township officials should consult labor counsel about the status of the investigation prior to the Loudermill hearing to discuss the evidence and process for the hearing. During the hearing, the Township must inform the individual of the substantiated misconduct and provide an opportunity to respond and present evidence in his or her favor. The Loudermill hearing should occur before any final decision is made on discipline and should be an honest opportunity for the accused to respond. The officer must also be advised of his or her right to union representation under Weingarten. The investigator must conduct a good faith investigation into any information provided by the accused during or after the hearing. Holding a sham hearing where there is no honest consideration of the accused statement and evidence will leave room for future cross-examination and weakness in defending any disciplinary decision.
After the investigation has been concluded, the investigator should present the findings of fact to Township management, elected officials, and labor counsel. The decisionmakers must consider the applicable level of discipline commensurate with the misconduct, progressive discipline contract language, applicable Township Codes, Civil Service Rules and Regulations, policies, prior discipline for similar misbehavior, the offender’s disciplinary history, and arbitration awards when determining the discipline that will be given to the officer. The discipline should reflect the seriousness of the misconduct in conjunction with the individual’s prior discipline. Allowing someone to “get a pass on this one” or “taking it easy” sets a dangerous precedent that locks the Township in next time someone commits similar offenses. Township elected officials and management should be involved in the decisions on discipline. Justified and appropriate discipline will better survive grievances, arbitration, and lawsuits.
The last component of the discipline process is Act 57. In 2020, the Pennsylvania Legislature passed Act 57, 44 Pa.C.S. § 7301, et seq. Act 57 requires municipalities to keep records of police discipline, complaints against an officer, circumstances surrounding an officer’s separation from the department, and any criminal charges against police officers. A municipality must submit a separation report to MPOETC within 15 days of an officer’s separation from the police department, including the reason for separation and any discipline for certain enumerated types of misconduct. The Act was designed to prevent trouble officers from hopping from department to department. The municipality risks penalties for failing to submit complete reports. Another consideration is that MPOETC and possibly other entities will be able to evaluate how a municipality is handling discipline and misconduct within its department from these reports. Accuracy and completeness are of the utmost importance.
Townships have several factors to consider when investigating and disciplining police officers. The most important thing is to take complaints of misconduct seriously. The proper investigation of misconduct and appropriate discipline creates a practice of accountability and helps the public build confidence in its police force and municipality. For more in depth information on this topic, contact your labor counsel.