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LABOR AND EMPLOYMENT LAW: What Does It Take to Fire a Bad Cop?

By Tyler Adams

Public opinion over the effectiveness and adequacy of police discipline has spiked in recent years. This has brought increased media attention to alleged police misconduct. Unfortunately, due to the media’s propensity for circulating sensational headlines, they rarely provide complete and accurate accounts of the details of police misconduct arbitration decisions. Most importantly, the media fail to capture what factors arbitrators actually consider when deciding whether to uphold police discipline. This article explores those details and examines what factors are most important to arbitrators in adjudicating cases of alleged police misconduct.

This analysis includes 92 arbitration awards published between 2011 and 2015 regarding police officers discharged for misconduct. Of these 92 awards, arbitrators upheld discharges in 49 cases and overturned discharges in the remaining 43. Arbitrators’ rationale for overturning discharges fell into two categories: procedural factors related to due process and mitigating factors concerning the discharge’s factual context.

Due process factors. Due process in police discharge cases relates to two issues: whether the department proved it had just cause for discharge, and whether the pre-discharge procedure satisfied the collective bargaining agreement.

A principal reason why arbitrators overturn police discharges is the failure to prove just cause. The meaning of just cause is derived from principles of fundamental fairness that evolved over time through the decisions of arbitrators. It is rarely defined in collective bargaining agreements or arbitral decisions.

Most collective bargaining agreements contain a just cause provision. Agreements between police departments and police unions place the burden of persuasion on the department to prove just cause. Some contracts articulate elements of just cause analysis, but they vary in content. Many do not specify a quantum of proof for just cause.

Insufficient investigation is a principal reason why discharges are overturned. Even if a department conducts a thorough investigation, its discharge decision may be overturned if the arbitrator concludes the evidence did not prove guilt. In many police discharge cases, guilt is not an issue; either the officer admitted wrongdoing or the evidence is too overwhelming to dispute. However, arbitrators will not find just cause if the department cannot prove that the officer committed the alleged offense.

Police discharges are also often overturned on procedural grounds, such as failure to observe a termination process specified by state law or the collective bargaining agreement. Police officers also often enjoy due process rights granted by a Law Enforcement Officers’ Bill of Rights found in collective bargaining agreements or state statutes. Procedural shortcomings include lack of notice that the alleged misconduct was prohibited, failure to observe a statute of limitations, and other procedural missteps unique to the specific provisions of a collective bargaining agreement.

Mitigating factors. In most cases overturning discharges, arbitrators cite mitigating factors favoring reinstatement. In 29 of the 43 decisions in which an arbitrator overturned a discharge, the arbitrator cited mitigating factors unrelated to the officer’s guilt.

One of the most important mitigating factors is an officer’s prior disciplinary record. A positive work history can be helpful to persuade an arbitrator to overturn a discharge. Conversely, officers with poor disciplinary histories are less likely to be reinstated.

In many cases, arbitrators reinstate police officers because they conclude discharge is too severe a punishment for the alleged offense. In 13 of the 43 decisions overturning discharge, the arbitrator believed discharge too severe under the circumstances. Possibly, arbitrators think discharge is a particularly severe consequence because officers with a termination or suspicious resignation in their work history may never find another job in law enforcement. Indeed, in the context of police discipline, many arbitrators consider discharge to be the “death penalty.” However, a determination that discharge was an excessive punishment is almost always made in light of other mitigating factors.

Although disparate treatment (i.e., the discharged officer was treated differently than other officers who committed similar misconduct) is frequently argued and considered by arbitrators, it rarely succeeds in getting a discharge overturned. Discharges are likely to result from serious misconduct that has not previously occurred or that was previously disciplined by discharge.

One particularly salient factor is the willingness of the officer to admit wrongdoing and accept personal responsibility. However, some arbitrators interpret acceptance of responsibility as an admission of guilt supporting the discharge. While admitting to wrongdoing and accepting responsibility can support a police officer’s case for reinstatement, it can also be used by arbitrators to uphold the department’s discharge. The decisions nevertheless suggest that it normally is in an officer’s best interest to admit conduct and accept responsibility when under disciplinary investigation.

Generally, discharged police officers are more likely to be reinstated if they can present a credible narrative to the arbitrator. Upholding public trust in the criminal justice system is of paramount importance to arbitrators in the context of police discipline. An officer’s candor during a disciplinary investigation can be important to arbitrators deciding whether to uphold a discharge. Because the appearance of trustworthiness in police officers is so important to their public responsibilities, arbitrators also consider whether the offense that led to an officer’s discharge involved dishonesty. Examples include offenses in which an officer misreported working hours and on-duty activities, lied during an official investigation, and feigned an injury for workers’ compensation. Officers guilty of dishonest misconduct are less likely to be reinstated than those guilty of other forms of misconduct, including excessive force.

Factual context of the discharge. Arbitrators regularly consider the context of the alleged offense. This includes whether the offense occurred while the officer was on duty or off duty and whether the alleged misconduct involved a civilian’s mistreatment.

The majority of cases analyzed involved on-duty misconduct. The alleged offense occurred on duty in 65 of the 92 cases. Of those 65, the discharge was upheld in 32 decisions.

Officers discharged for off-duty misconduct were less likely to be reinstated. Of the 27 cases in which the alleged offense occurred off duty, the discharge was upheld in 17 decisions.

The police misconduct cases that receive the most media attention involve mistreatment of citizens. Indeed, the manner with which police treat civilians is at the very core of the controversy concerning the adequacy of police discipline. Police officers can be discharged for their abuse of suspects, inmates, or even innocent bystanders.

Of the 92 cases analyzed, 36 involved citizen mistreatment. This includes only cases in which citizens were abused by on-duty officers. It does not include, for example, cases involving off-duty domestic violence. Of those 36 cases, the discharge was upheld in 17 decisions. The arbitrator concluded that the officer was guilty of the alleged mistreatment in 23 of those 36 cases. When a conclusion of guilt was made, the discharge was upheld in 16 decisions. These findings suggest that a mere allegation of civilian involvement does not itself significantly influence the likelihood of reinstatement. However, officers found guilty of mistreatment are unlikely to be reinstated.

ABA SECTION OF LABOR AND EMPLOYMENT LAW

This article is an abridged and edited version of one that originally appeared on page 133 of Labor & Employment Law, Fall 2016 (32:1).

For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

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Tyler Adams received his JD from the University of Minnesota Law School in 2017 and was the lead managing editor of the ABA Journal of Labor & Employment Law.