CONDITIONAL OFFICIAL REPRIMANDS – GOOD THING OR BAD?
When I first heard about the Conditional OR and how it was to be implemented, I thought, great idea! The logic for it that was first presented was enlightening. The logic is this: The goal of the disciplinary system is to change employee behavior when the Department believes that the employee is engaging in misconduct. Up to now, that was accomplished by a system that mirrored the criminal justice system — punishment. An eye for an eye, a tooth for a tooth and suspension days piled on suspension days. The problem is that the pound-of flesh approach does not work. In most cases, an officer who has been given six months off does not return to work a happy camper or a more productive employee. So, what to do?
The Department (officially, at least) decided to go in another direction. It developed a discipline strategy, based on each individual case, to change the employee’s way of thinking so that the employee realizes his or her error and goes forward a wiser person. If the employee’s thinking cannot be changed, then rather than dealing with a disgruntled, unproductive employee, termination is the answer. So change of behavior becomes the standard, not extracting the proper pound of flesh commensurate with the crime.
The situation presented as an example was this: An officer, close to end of watch, receives a radio call and doesn’t want to go overtime. The officer hits the at-scene button, reports no PR and goes end of watch. The basic radio call kissoff. The PR calls in again, another unit is assigned to handle the call and the PR makes a personnel complaint. The complaint is investigated and adjudicated as sustained by the commanding officer. So far, routine. At this point, the commanding officer calls the officer in for a conversation. He or she informs the officer of the proposed adjudication and enters into a discussion with the officer about the misconduct designed to explain the ultimate effects of his or her actions. For instance, other officers in the division had to carry the officer’s workload, the citizen was let down, the reputation of the divisional response time suffered, etc.
If the officer now understands all of this and realizes the wider implication of kissing off the call, he or she will change. The officer will not do it again because the wider effects of the action are understood; therefore, the reason for punishment (changing the employee’s thinking) evaporates. Extracting the pound of flesh (criminal model) is actually counterproductive. So, there is a meeting of the minds between the CO and the officer. Instead of receiving a five-day penalty, the officer is issued a Conditional OR. The condition is that the officer does not do something similar again, or the penalty will be 10 days the next time. The foundation of this is that the officer and the CO have had a meeting of the minds and the employee has changed. The insurance is the increased penalty if the officer fails to remain enlightened about handling radio calls.
As I said, great idea! Until, that is, the Conditional OR started being imposed with no meeting of the minds. Problems started being reported by officers of having conditional ORs handed to them without discussion. Some had no time limits. Some were vague on what a similar act would be. Some had outrageously heavy penalties, such as downgrades or removal from special assignments if similar acts occurred. All had one thing in common: no involvement of the officer.
For instance, the officer may completely disagree that he or she has done anything wrong. By forcing a Conditional OR instead of the five-day penalty, the officer has no right to a Board of Rights to challenge the sustaining of the personnel complaint. The Conditional OR frustrates the disciplinary scheme of the Los Angeles City Charter. Of course, the officer can request an administrative appeal, but it’s not binding on the Chief of Police.
Another problem is that of tying the hands of another adjudicator down the line to make his or her own decision about another situation involving similar misconduct. For instance, let’s say that an officer works for a commanding officer who sees him or herself as a strong, but fair, disciplinarian, in spite of the fact that this CO’s subordinates see him or her as an out-of-control, dictatorial egomaniac. This CO issues a Conditional OR for a minor piece of misconduct that has a five-year tail for similar misconduct which would result in a 22-day suspension, removal from a coveted assignment and a downgrade. This CO then promotes out of the division. Another commanding officer, wise and well-liked, takes over the division and has it humming at high morale in short order. Four-and-a-half years later, our officer makes a similar mistake with some mitigating circumstances present. The discretion has been removed from our wise leader to do what he or she thinks is best.
Finally, if an officer has a five-year tail, is there an impact on productivity? If you know that you will lose a coveted assignment if the Department believes you have another personnel complaint of a similar nature, will you reduce your citizen contacts to reduce your chances of having another complaint? If you’re an experienced patrol officer, will you try to get off the street and hide in a pogue job until your tail has expired? It might be the best advice from a career standpoint. These are serious questions connected to the Conditional Official Reprimand.
There is going to be a study of the impact of Conditional ORs that will be done by a Department psychologist. It is supposed to be anonymous, and I recommend that if you’re selected as one of his interviewees that you cooperate with him.
I believe that Conditional ORs can be a good thing if done properly. This psychologist’s study should help us understand when they are good and when they are bad. To me, they are valuable when there is a meeting of the minds between the commanding officer and the accused officer. The dialogue is important. If there is no meeting of the minds, then the traditional disciplinary process should take place with all the procedural protections that the law demands.
The Department should hear warning bells when Conditional ORs are just thrown down on the table and implemented as a penalty. We’re back to the pound-of-flesh philosophy of discipline. There are likely to be unintended consequences.
Be legally careful out there.
