September, 2010 Warning Bells Article

Teams II for Management

According to the Harvard study that was otherwise very complimentary about the progress of the LAPD, over 60% of our officers fear that they will be punished for making an honest mistake. Translated, this means that there is not a high degree of trust in the discipline system. Translated again, this means that over 83% of LAPD officers feel that it is necessary, even in these hard economic times, to subscribe to the League’s legal plan that provides them with attorneys to help them deal with the discipline system.

The problem with not dealing with this fear is that the citizens of Los Angeles may be the losers. Officers need to feel confident that if they are doing the right thing, they will be backed by their Department. If they do not, then proactive policing suffers. When proactive policing suffers, criminals are free to practice their evil ways without interference. That results in more crime. Therefore, confidence in the disciplinary system is important.

We now have a new Chief of Police who is of the boots-on-the-ground variety. There is no doubt that he cares for the welfare of the troops. He not only does ride-alongs, but he sometimes works as the second officer in a car. We also have a new Inspector General. She has a prosecutor’s background and extensive experience monitoring the Consent Decree, and understands the problems facing the officer on the street. On top of all this, we have two new Police Commissioners currently getting their feet wet, whom — we hope — did not come on board with preconceived notions of what is happening at the “new LAPD.”

This means that maybe, just maybe, we can start to address the problem that the Harvard study uncovered: Why do over 60% of our officers fear that they will be punished for making an honest mistake?

Wrapped up in this fear is the perception that Internal Affairs is the “dark side” of the force. This is a perception that has been fed by the actions of some in Internal Affairs, and the flame has been fanned by some in command positions.

The League has had meetings with Chief Beck, Inspector General Bershon and members of the Police Commission, and we complain about things that we think are wrong with the way the Department treats its police officers. They are generally sympathetic and ask for specifics. We tell them what has happened most recently, but information tends to be narrative and limited to the memories and experiences of those present.

Because there are so many discipline investigations going on, spread among so many officers, abuses gain a local notoriety but are not collected in one place. Are abuses isolated aberrations, or are they systemic? Do they reflect Department policy, or the policy of one division or bureau? That is the question we have no data to answer.

The supposed purpose of TEAMS II is to identify problem officers so that management can take appropriate action before the officer gets in serious trouble or causes expensive legal problems involving City liability. To that end, exhaustive databases are kept on you and compared 24/7, by a computer that never sleeps, to the statistical averages of your peers.

When you are three standard deviations different from the average, you receive an action item. The purpose of the action item is to have management determine if you are “dangerous” and to correct you if you are (or might be). Maybe this same kind of system could be used to detect management policies and/or managers who are “dangerous.” If TEAMS II is good for the goose, shouldn’t it be good for the gander?

The League Board of Directors recognized the problem and has implemented a new system of notifications for the Inspector General to document issues of concern for future contract use, to litigate recurring issues and to document all of the little things that create labor friction that the IG never hears about.

The purpose of this new system is to document instances where officers are mistreated by the discipline system. I would also like to add that we want to document instances where management has gone out of its way to be fair. What we want to end up with is an accurate picture of how fairly officers are being treated by the disciplinary process. This is essentially a system that concerns itself with the disciplinary process, not necessarily the result. In other words, if an investigation was done fairly and a Board of Rights was conducted respecting the rights of the officer, but the Board arrives at a decision which is wrong, that is not what this system is concerned with. There is a court system to deal with that situation.

The League’s concern is that the discipline process is fair — from interview through Board of Rights. The Department has the right and the obligation to investigate allegations of misconduct. It also has the duty and obligation to conduct a fair investigation to determine the truth of the matter. You are held to high standards and so is the Department.

The focus, then, should be on topics relating to the process, such as anything that frustrates an officer’s right to representation, unfair interview techniques, concealing evidence that would assist the officer, violations of the Peace Officers Procedural Bill of Rights Act, violations of the disciplinary sections of the MOU and so on. In other words, the fact that your captain has sustained the complaint against you is not the focus, but the fact that he only gave you two hours to provide a Skelly response would be. The fact that a Board of Rights found you guilty is not the focus, but the fact that the advocate withheld evidence, or only provided it at the last minute, would be. The fact that you have been transferred against your will is not the focus, but being transferred for hidden punitive reasons would be.

This program is not meant to take the place of the grievance system, administrative appeals or other labor remedies. In fact, it is not a remedy. It is only a database of a different kind involving the discipline process. Like TEAMS II, it is meant to be a tool. We hope that the Police Commission pays some attention to it, but they are not obligated to do so.

In my view, the cardinal sin is interfering with an officer’s right to representation. This may be done in many ways, such as advising an officer that they do not need a representative, setting inflexible dates that are in conflict with the officer’s representative’s schedule, insisting on proceeding with interviews in the wee hours of the morning when no attorneys would be available and on and on. The reverse side of this coin is the frustration visited on busy Internal Affairs investigators by officers who ignore their e-mails and calls to set up interviews. If your hands aren’t clean, we probably can’t help you. Return those calls.

The Department policy on this point states this: “With the exception of the usual provisions under Miranda in criminal investigations, you are not obligated to inform officers of their right to a representative. However, in the interest of saving yourself time and appearing fair, it’s a good practice to remind officers that they are entitled to a representative when you call them to make the interview appointment; this is especially true for new officers who might not know of their right to representation. Never tell an officer that he/she doesn’t need a representative, or that he/she doesn’t have a right to a representative” [Complaint Investigations: A Guide for Supervisors, page 38, emphasis added.]

Is this policy always followed? The League needs to know.

The League wants to monitor the integrity of the information that is sent to the Inspector General so that it will be funneled through the League’s legal section for review and assigned a number before it is forwarded to the IG. Time does not permit us to do an extensive investigation into the facts of each incident reported to us, so we will be dependent on your police experience to give us just the facts, and only the facts. If there is documentation that supports your facts, we would also appreciate it if you would include that.

The reports to the IG will be made under the confidentiality accorded to personnel records. Names of individual officers will not commonly be used except where necessary to identify the incident — the focus will be on what happened.

These reports are not meant to be personnel complaints and reporting an incident to us does not relieve you of your duty to report misconduct to the Department per the manual.

Our intention is to keep the IG and Police Commission up to date on the condition of officer treatment by the discipline system, not to report misconduct, so please do not confuse this system with your obligations to report things under the LAPD Manual. You can be sure that management will not consider a report to the League as a defense for failing to report type allegations of misconduct against you.

The starting point is to notify the League legal section when an incident occurs. This can be done by mail (LAPPL, 1308 W. 8th Street, #200, Los Angeles, CA 90017); by e-mail at GaryIngemunson@lappl.org; or by phone at (213) 251-4575.

We will evaluate the information and forward those incidents that meet the criteria. Remember, when an investigator/supervisor goes above and beyond to be fair, we want to hear about that, too.

Be legally careful out there.

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