Policing in today’s climate is more challenging than ever. Over the last several years, and especially within the last six months, communities have changed expectations of their police departments regarding everything from methods of engagement, defunding, increased transparency, to use of force policy. Police departments must be ready to engage the community in open conversations to understand and meet these new expectations in order to improve trust and legitimacy as well as to decrease, or at least mitigate, liability. And to maintain community trust, departments must also be very adept at policing their own. But does this mean that police discipline needs to become more punitive to fall in line with the renewed expectations of community members? Perhaps, surprisingly to some, best practices would indicate it should not. Actually, implementing a disciplinary framework that is less punitive in many ways, while perhaps counterintuitive, is of paramount importance in ensuring that officers are treated fairly and equitably while simultaneously maintaining community trust.
Almost three decades ago, Chief Darrel Stephens, while serving in St. Petersburg, devised an internal affairs model that was well ahead of its time that he later also implemented within the Charlotte-Mecklenburg Police Department. The model is adaptive for agencies of most any size and for incidents ranging from courtesy complaints to excessive uses of force (Stephens, 2011).
The model moves away from providing a prescribed action regarding sustained violations but rather views each incident on its unique set of facts. And while some employees may find a level of comfort in the “mandatory sentencing” provided by a disciplinary matrix, if implemented effectively, an internal affairs policy that handles each matter as a unique event may be seen for what it truly is; a fairer, more equitable approach to police discipline that takes into full account both aggravating and mitigating circumstances.
Stephens’ (2011) model places emphasis on changing officer behavior with a training focus (when appropriate) rather than making police discipline a strictly punitive paradigm. Under this education-focused model, “mistakes of the head” are treated differently from “mistakes of the heart.”
Disciplinary Decision Model
Each department must decide how internal affairs will work to produce detailed and thorough investigations that will withstand increasingly external scrutiny. When an allegation is sustained through such investigation, deciding the best course of action is often the most difficult component of the case flow. Chief executives’ balance between departmental and public interests are never more important than in disciplinary decisions. But what should the department consider when making these decisions without a firm traditional disciplinary matrix? The Stephens model considers the following.
There is a stark difference in employees who make an error in judgement and those who intentionally commit policy violations for their own gain and/or with a lack of regard for citizens and fellow officers (Stephens, 2011). While this education-based behavior modification-focused model is not completely punitive, officers that tarnish the badge for selfish reasons must be dealt with in a manner that maintains (or restores) the trust and legitimacy of the organization. And typically, officers within the department who are not inclined to make intentional errors and who have knowledge of the situation will be appreciative of disciplinary action that is commensurate with such policy (or law) violations. Conversely, those who make procedural errors typically need less punitive action, such as training, to change behaviors. While citizens do not expect perfection, they do expect accountability.
Degree of Harm
When making disciplinary decisions, it is prudent to consider the degree of harm caused by the policy violation(s) (Stephens, 2011). Degree of harm may be considered in many ways from fiscal to the action’s effect on legitimacy. Over the course of
a career, officers will make mistakes. However, the degree to which those mistakes cost tangibly and intangibly must be considered in disciplinary proceedings. An officer who, for instance, is at fault in a bad crash may cost the department in both repair costs and civil settlements. However, officers who commit egregious law violations may put the legitimacy of the entire department in jeopardy, thus eroding community trust.
Intentional vs Unintentional Errors
Much like the concept of Graham v. Connor, officers often deal with rapidly unfolding situations that are dynamic in nature (Graham v. Connor, 1989). Often employees have scant information with which to make critical decisions. When making disciplinary decisions, it is prudent to see the action in question from the officer’s perspective at the time of the policy violation. Did his or her perspective seem in line with departmental expectations based on the limited information? If so, the violation may be unintentional and, thus, warrant less punitive measures. Intentional errors, however, are more in line with self-serving decisions that purposely move contrarily with policy and the department’s values. These types of violations typically would lead to more punitive outcomes, including termination.
Newer officers are certainly more apt to make mistakes than more experienced officers. Also, officers in new assignments are more inclined to make an honest error than those more experienced in the role. Weighing an employee’s experience when making disciplinary decisions is fair and pragmatic. When experience (or lack thereof) is a mitigating factor, and without other aggravating factors, often education is sufficient to address the behavior and bring the employee into compliance (Stephens, 2011). Remember, the goal is not to be punitive, but to change the behavior that constituted the policy violation.
While this decision-making model may be a different way of thinking for some chief executives, one area where this model merges with tradition is through progressive discipline. When considering the facts at hand, determining if the employee has had previous retraining in the area of violation or has had similar incidents is important in the progressive discipline process. This is where otherwise non-punitive measures may turn punitive. Even regarding merely procedural errors, repeated mistakes may be indicative of overall performance issues. Departments would do well to have a solid performance plan that works to retrain and retain when possible. However, the hard truth is that police work is demanding and not everyone is capable of doing the job. If there is a certain area where an employee does not have the ability to consistently perform at standard, then perhaps a move to a more specialized non-sworn position or another profession altogether may be in order.
These are often the most difficult decisions for chief executives because, while these violations are not singularly egregious, they are nonetheless intolerable.
Processing Internal Affairs Complaints in a Procedurally Just Manner
And while arriving at difficult disciplinary decisions is one of the toughest parts of a chief executive’s role, another very important component of the internal affairs process is ensuring all employees are treated with professionalism throughout the process. We expect officers to treat all citizens with dignity and respect and officers should be afforded the same fair treatment internally. According to the U.S. Department of Justice, Community Oriented Policing Services, procedural justice involves the tenants of fairness, transparency, voice, and impartiality (https://cops.usdoj.gov/prodceduraljustice). The following discuss the internal affairs process through the lens of procedural justice.
IA staff should explain to employees the allegation(s) and remind officers that all complaints are handled consistently and that they will have an opportunity to provide an appropriate rebuttal to any allegations of policy violations. Investigators are encouraged to build a rapport with accused employees throughout the investigation and be accessible in case questions arise regarding the investigative process.
IA staff should keep officers in the communication loop regarding investigations. Undergoing an internal investigation is typically stressful for officers, even when there is a high probability of clearance. IA staff should check in with officers regularly to apprise them of the progress of the investigation and ensure officers that the internal lines of communication are open. Officers should know that the IA process is not conducted in secrecy but rather as openly and transparently as the investigation dictates. Especially when employees will likely be subject to discipline in a disciplinary proceeding, they should have access to the completed investigation before a final decision is rendered so that they may understand why the complaint was determined to be sustained. Being transparent in this manner is also a valuable component of fairness.
Officers, of course, typically provide statements within IA investigations. Asking open ended questions to officers during interviews and allowing employees to be completely heard may very well help them view the process as what it is; an inquiry to find the truth and to take appropriate corrective action. Just as in citizen encounters, officers that have a voice in the process and feel that have been heard completely, are more apt to view the process as fair and objective.
It is commonly known that citizen complaints must be judged on the facts specific to the case at hand and not the complainant’s unrelated criminal record. In much the same vein, while an officer’s previous record must be taken into account to align with progressive discipline, past policy violations that are unrelated to the behavior in the sustained violation at hand must be considered in context and not drive the disciplinary decision. This emphasizes to officers that the organization understands the complexity of police work and that moving past honest errors in the lifetime of a career is possible.
Discipline within police agencies is of paramount importance both internally and externally and is one of the most complex components of police management and leadership. Utilizing a sound decision-making model such as the one presented herein is vital in ensuring that officers are treated professionally, and that discipline within the organization is fair and consistent. This can lead to higher morale and positive retention. When officers are treated in a procedurally just manner and they understand the value of a disciplinary philosophy that takes into account the many variables of the very difficult work they do, they are much more apt to see the disciplinary process as fair and equitable and one that focuses on correcting behaviors through appropriate training and education rather than a strictly
Graham v. Conner, 490 U. S. 386 (1989)
Stephens, D. W. Police Discipline: A Case for Change. U. S. Department of Justice, National Institute of Justice https://nij.ojp.gov/library/publications/police-discipline-case-change (2011).
Charlotte-Mecklenburg Police Department, “Directive 100 – 104: Discipline Philosophy”, Interactive Directives Guide, Charlotte, N.C.: Charlotte-Mecklenburg Police Department, 2001.
Dr. Rich Austin has been the Chief of the Milton Police Department since January 2017. Prior to that, he retired as a captain from the Charlotte-Mecklenburg Police Department where he held various assignments during his 25+ year career, including assignments as an internal affairs investigative sergeant and internal affairs commander. He is also the former Training Director for the North Carolina Internal Affairs Investigators Association. He may be reached at email@example.com