Not Even the Chief Respects the Discipline System
Last week, two administrative appeal rulings from the Chief came across my desk. The hardworking representatives for the officers had won them at the hearing offi cer level, but the Chief of Police rejected both of the hearing o cer’s recommendations. Unfortunately, this is not unusual.
Both due process and the Public Safety Offi cers Procedural Bill of Rights Act demand that the Department give an offi cer who has suff ered punitive action a right to an appeal. Th at is the source of the Administrative Appeal that is in the MOU at Section 9. An administrative appeal is a hearing in front of a hearing o cer where sworn testimony is given and evidence is taken.
The problem is that the MOU Administrative Appeal is only advisory on the Chief of Police. Since it was the Chief who decided the offi cer was guilty and imposed the punitive action on the offi cer in the fi rst place, the Chief has to in eff ect admit that he was wrong about the offi cer’s discipline to accept a hearing offi cer’s ruling in favor of the officer. Hmmm… that would seem to violate the unwritten prime rules of LAPD policy. Rule No. 1: The Department is always right. Rule No. 2: When the Department is wrong, see Rule No. 1. In spite of this, Los Angeles City Charter section 1070 (a) requires that an accused officer be afforded “a full, fair, and impartial hearing before a Board of Rights.” [emphasis added] and the courts have ruled that administrative appeals are due process hearings. “At a minimum, an individual entitled to procedural due process should be accorded: written notice of the grounds for the disciplinary measures; disclosure of the evidence supporting the disciplinary grounds; the right to present witnesses and to confront adverse witnesses; the right to be represented by counsel; a fair and impartial decision maker; and a written statement from the fact fi nder listing the evidence relied upon and the reasons for the determination made.” (Burrell v. City of Los Angeles, supra, 209 Cal. App. 3d 568, 577 [emphasis added]
In the last MOU, the League negotiated civilian hearing offi cers for administrative appeals. Th e civilians are selected by the Police Commission and are mostly lawyers who have years of experience handling administrative hearings including Boards of Rights. Th e thought was that hearing offi cers that are captains and above are in the direct chain of command of the Chief and owe their next assignments and promotions to his good graces, whereas civilians do not. That seemed to be a step forward in the “impartial” direction. Th e Department, however, refused to allow civilian hearing officers in administrative hearings involving downgrades. That means that downgrades are heard by captains and above and other administrative appeals by civilians. No statistics are kept on the results of downgrade hearings, but in recent memory only two downgrades have been recommended to be overturned by command staff hearing offi cers and the Chief overruled one of them. The odds on successfully challenging a downgrade are not good.
Better statistics are kept on administrative appeals heard by civilian hearing o cers. Since civilians have started serving as hearing offi cers, the offi cers have received more favorable rulings from the hearing offi cer than the original penalty 58 percent of the time. However, when those favorable recommendations reach the Chief, he has overruled 80 percent of them. This demonstrates a near contempt for civilian hearing offi cers and the administrative appeal process itself.
In previous Warning Bells articles, the fact that the Chief has overruled Board of Rights rulings mid-board and the fact that two previous Board of Rights hearing officers have filed separate lawsuits alleging retaliation from the Chief for their refusal to terminate officers in defiance of the Chief’s recommendation, show that Boards of Rights are in no better position than MOU Section 9 administrative hearings. Judging by his apparent need to interfere with the Board of Rights process, the Chief does not trust nor respect these proceedings either.
Th is puts the discipline system in an interesting position. On the one side, the Chief has no respect for it because it does not rubber-stamp his every decision. On the other side, the offi cers have no respect for it because it rubber-stamps enough of his decisions to rob them of the feeling that the system is fair.
It would seem that we should all return to the founding fathers’ decision that there should be a “fair and impartial” system. How we get there from where we are now is the question. Th e discipline system is broken. Th e League heard this loud and clear from its membership during the rati cation meetings. Strict discipline is not the question. Organizations can easily handle a strict disciplinary system if its members perceive it as fair. However, if it is perceived as biased, unpredictable and riddled with favoritism, morale tumbles and productivity plummets. And the offi cers’ morale is at a low ebb and productivity is down.
How do you fix this? Maybe it can’t be fi xed. No matter how much the Chief claims to want his captain hearing offi cers to be fair, he won’t be believed by the average offi cer on the street (nor by the average captain!). The Chief has not demonstrated his commitment to a fair and unbiased system.
Th e League has proposed a revamping of the system with written protections for o fficers that do not interfere with the need to administer discipline. Almost all have been rejected. It is apparent that any agreement that requires the surrender of any management power is going to have to be pried from their cold, dead hands, to borrow a phrase. Th at is unfortunate.
The Chief could be a hero by demanding that the offi cers be treated fairly and be given fair and impartial appeals, and by openly enforcing that policy. That means putting checks and balances into the system in writing. Checks and balances that would give hearing offi cers the confi dence that they can make independent rulings based on the evidence without career damage and the evidence from the Chief of Police that he will enforce and respect their rulings. Even if it means admitting that he made a mistake. Ultimately, as it has been stated before, it is not who is right, but what is right, that counts.
Be legally careful out there.
