September 2016 Warning Bells article

Administrative Disapproval

Doesn’t sound like anything you want, does it? What is it? How do you get one?  What can you do about it?  You might think from the media hysteria arising out of the Michael Brown, Freddie Gray, Trayvon Martin and other uses of force across the nation that this media attention to uses of force is something new. Not so.

Our current use of force adjudication system arose out of the controversial and equally headline-generating Eulia Love officer-involved shooting in 1979.  The details of this shooting have been described before in this column, but the short story is that Eulia Love was an African-American woman who struck a gas company employee with a shovel when he tried to turn her gas off for failing to pay her bill. He called the police, an ADW crime report was taken and two LAPD officers were called to the scene.  Love was waiving a knife, and when she started to throw it at the officers, they both  fired at her and she was killed.

A media storm resulted, and the Police Commission responded by conducting an investigation and releasing a report on Oct. 4, 1979, that changed the way that uses of force would be adjudicated from that time on.

Previous to that report, a special section of Robbery-Homicide Division conducted the investigation into the officer-involved shooting if there was a hit on the suspect, and a divisional sergeant did the investigation if it was a miss.  The report then went to a Department Shooting Review Board made up of three staff officers.  This board recommended a  finding to the Chief of Police.  They could  find (1) in policy; (2) in policy, but fails to meet Department standards; (3) accidental; or (4) out of policy.  The Chief then rendered a decision and applied discipline if necessary.

In the Love OIS, there was a split decision.  Two board members found the  OIS “in policy” and one found it “out of policy.” Chief Gates, who later stated that it was not the best of shootings, went with the “in policy” decision. He felt that at the moment the officers  fired, they were in danger of great bodily harm from the knife throw. 

Then, as now, there was a great howl from the anti-police groups in the city and a demand that the Chief be  fired. Chief Gates was asked, “How can we make sure nothing like this ever happens in the future?”  “Don’t throw knives at my officers,” was his response.  That did not go over well, and things got really ugly.

All of this uproar convinced the Police Commission at that time that “substantial changes are required in the system of investigating and adjudicating officer-involved-shootings and other use of force incidents.”  The  first thing that they did was to assume direct responsibility for  the adjudication of all officer-involved-shooting incidents. No longer would the Chief decide if an OIS was in or out of policy.  The Police Commission would now make that call.  That was the birth of“ Administrative Disapproval” from the Police Commission.

The 1979 Police Commission made two other major changes in the adjudication of uses of force.  First, they changed the Shooting Review Board to the Use of Force  Review Board and added another staff member and, more importantly for you, a peer member.  There was a recognition by the Police Commission that the officer’s rank needed a voice in the recommendation process, not just management’s.

From that time on, a police officer, sergeant or lieutenant would be  on the board, depending on the rank of the officer under review. It is vital that this peer member be selected in a fair and objective manner to preserve the Commission’s original intent to give the officer a voice on the Board. At the moment, this is up in the air.

Second, the Police Commission changed the way a use of force was looked at to adjudicate its reasonableness. The use of force up to that time had been looked at in its entirety. Tactics were not separated from the use of force itself and that resulted in inconsistent results.  The effect of tactics was not evenly applied from one use of force adjudication to another.  The method of judging a use of force without reference to its components was confusing and unclear. 

The Commission decided that the Use of Force Review Board should evaluate each aspect of an officer-involved-shooting by forming separate evaluations of the components of a use of force.  Thus was born the three categories in use today, each separately adjudicated: drawing and exhibiting the weapon, tactics, and the use of force itself.

It is the intelligent recognition that an offcer can have bad tactics but a good use of force.  The use of force adjudication does not have to be confusingly mixed with tactics.  Each component can be separately considered and adjudicated on its merits.  The present-day Police Commission has taken a step back toward the confusing bad old days by adding the Hayes doctrine to the use of force policy, thereby, once again mixing tactics adjudications with use of force adjudications. (See a full discussion in the August 2015 issue of Warning Bells.)

So, all that being said, what does it mean when the present-day Police Commission tags you with an Administrative Disapproval? Specifcally, it means that they consider that you have “substantially deviated from Department policy  or training without justification.”

It means, for another thing, that it messes up your TEAMS. It will be shown as an Administrative Disapproval.  The good news is that the Police Commission does not have any power to discipline.  The discipline of police officers, by City Charter, rests in the sole authority of the Chief. All the Police Commission can do is to declare the use of force to be Administratively Disapproved.  This is then sent back to the Chief for disposition of penalty.

The Chief can do one of three things, and none of them are to overrule the Police Commission’s classification of administrative Disapproval.  The Chief can order extensive re-training, give you a Notice to Correct or open a personnel complaint against you.

In layman’s terms, the Chief is saying this: “I can’t condone what you did, but I understand why you did it, so I am going to have you re-trained.” Or, “I don’t like what you did, but I am not really too upset so don’t do it again, and I am going to give you a Notice to Correct to make sure that you understand.” Or, “I am upset that you did this and you are going to pay, so I am initiating a personnel complaint against you!” 

The personnel complaint can go from an Official Reprimand to suspension days to a Board of Rights for termination. It depends on how upset the Chief is about the nature of the Administrative Disapproval.

What you can do about it depends on what is being done to you. It can get a little complicated. Let me take them one at a time.

Administrative Disapproval – extensive re-training

This can be appealed by requesting an administrative appeal. It must be done within 20 calendar days of service on you. It is a hearing in front of a civilian hearing officer.  The Department has the burden of proof that you violated policy or training without justification, but the hearing officer’s decision is only advisory on the Chief. If you win at the hearing, eight times out of ten the Chief will overrule the hearing officer and impose the same penalty.  These hearings are  filed and handled by the Officer Representation Section.

Administrative Disapproval – notice to correct

This can be appealed by  filing a grievance within 20 calendar days of service.  The grievance is reviewed by your captain, Employee Relations Section, and then the Police Commission, and if still not satisfied, it goes to arbitration.  The good news is that the arbitrator’s decision is binding on the Chief. If you win, you win. Grievances are handled by a Director. Contact the Director that is assigned to your division.

Administrative Disapproval – personnel complaint

The appeal here is determined by the nature of the punishment. If the Chief imposes an admonishment or Official Reprimand, the appeal is an administrative appeal, the same as for extensive re-training. Contact the Officer Representation Section and get it  filed within 20 calendar days.

If the nature of the punishment is between one and 22 suspension days, you can opt for a Board of Rights. It must be drawn within  five calendar days of service. Contact the League immediately. If you are a member of the League’s Legal Plan, you will be assigned an attorney. If not, a business agent will handle the board.  This is called an opted Board of Rights.  The downside is that once you opt for a Board of Rights, the number of suspension days is off the table. In other words, if you opt for a Board of Rights to challenge a  five-day suspension, the Board, depending on the evidence, can give you 20 days off , or even terminate you. (Rare, but possible.)

On the other hand, if you are willing to admit guilt but just think that the number of suspension days is out of line, you can appeal the degree of punishment at an administrative appeal. The good news is that the number of suspension days that you are appealing cannot be increased.  The bad news is that the hearing officer’s opinion is only advisory on the Chief. Back to the eight out of 10 hearing officer decisions being overruled. Again, contact the Officer Representation Section and get it  filed within 20 calendar days.

Finally, if the Chief is ordering you to a Board, which he has to do if he wants you terminated, there is no choice. You must draw the Board within  five calendar days, or Internal Affairs will draw it for you. Contact the League immediately. If you are in the Legal Plan, an attorney will be assigned. If not, a business agent will be assigned to represent you.

If you are successful in being found not guilty, either in the administrative appeal or the Board of Rights, the Administrative Disapproval does not disappear. Remember it is a Police Commission adjudication, not an adjudication from the Chief. What will happen is that it will be shown in your TEAMS as Administrative Disapproval –Not Guilty. Practically speaking, it should have no effect on your career since the command staff is aware that the Department does not consider that you have done anything wrong.

It is, of course, best not to get an Administrative Disapproval in the  first place. It is difficult to be perfect, and there is latitude in the system for innocent mistakes (most of the time), but knowing the rules and tactics are your best defense. When that fails, call us, we will help you  fight.

Be legally careful out there.

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