Making Discipline Stick Beyond Arbitrator Review
By Richard R. Johnson, Ph.D. and Matt Dolan, J.D.
To ensure proper and efficient operations, law enforcement leaders must discipline or even remove employees whose behaviors harm the functions and reputation of their organizations. When officers fail to follow rules, laws, or standards of conduct, their departments must proactively address those faults.
Research, however, shows that grievance arbitrators overturn about 50 percent of the law enforcement officer suspensions and dismissals they review.1 Supervisors and outside observers have argued that in some agencies, it can prove difficult to terminate individuals who have engaged in blatant misconduct.2
Despite assertions that reviewers make capricious decisions when considering appeals, most reversals of discipline are in response to several clearly articulable reasons.3 These grounds are usually legitimate and concern the fair and lawful treatment of employees. Therefore, law enforcement executives will benefit from learning about the most common errors that undermine discipline decisions.
Reasons for Arbitration Reversals
Studies of law enforcement officer suspensions and terminations reviewed by an external authority (for example, a union grievance arbitrator or civil service board) reveal common explanations for reversal or reduction of punishment.4
The most common reason arbitrators overrule disciplinary action is unfair distribution of punishment.5 Often, this means two officers with similar work histories commit comparable acts of misconduct, but one receives a harsher penalty. Disproportionate punishment also can refer to discipline that is inconsistent with the severity of the offense, like a minor mistake that results in a serious consequence.
Another regular justification for throwing out discipline is insufficient confirmation of wrongdoing.6 While civil courts use the “preponderance-of-the-evidence” standard of proof, arbitrators generally employ a higher “clear and convincing” standard.7 They often will overturn the cases of employers who rely on a preponderance standard and collect only a modicum of evidence.
Dr. Johnson, a former law enforcement officer, is a researcher with a private training and consulting group in Raleigh, North Carolina.
Mr. Dolan, a licensed attorney, is the director of a private training and consulting group in Raleigh, North Carolina.
Due Process Violations
Arbitrators can reverse discipline if the agency violates the officer’s due process rights while investigating the misconduct, determining culpability, or assigning punishment.8 Statutes and legal precedent afford public employees certain rights within each state.9 These generally include a comprehensive and impartial investigation, notice of the charges against the employee, an opportunity to challenge the charges, and a determination of guilt by an unbiased hearing officer. No matter how serious the transgression or how much evidence exists, if the employer neglects these rights, the arbitrator likely will throw out the discipline.
Failure to follow any aspect of the disciplinary process, such as written policies or the agency’s collective bargaining agreement, is next in frequency as an explanation for reversed discipline.10 For example, administrators may be required to file misconduct charges within established time limits. If the contract permits a union representative’s presence during questioning, investigators must allow this. When inquiries do not meet these requirements, reviewers can overturn an otherwise reasonable decision.
Past Record of Positive Performance
Finally, not including an officer’s positive performance record as a mitigating factor may cause problems during review.11 Arbitrators permit consideration of the employee’s prior misconduct as an aggravating circumstance, so they also expect that typical punishments are slightly reduced for previously satisfactory employees.
Considering these common reasons for discipline reversals, law enforcement agencies can apply several remedies to increase the likelihood that grievance arbitrators will support their decisions.
Discipline matrices, modeled after criminal court sentencing guidelines, consist of a grid of cells with common offenses listed along the left column and number of prior offenses across the top row. Within each cell is a narrow range of possible disciplinary actions for that case, taking into account any past transgressions. Aggravating and mitigating factors help determine the correct consequence.12
“…most reversals of discipline are in response to several clearly articulable reasons.”
Creating such a matrix forces the agency to choose—in advance—the most appropriate typical penalty for common forms of misconduct. It also dramatically increases the likelihood that two individuals with similar backgrounds committing the same act of delinquency will receive equal punishment.13 After instituting a discipline matrix, one state law enforcement agency saw employee grievances decline significantly, likely because the process provided a sense of fairness in the disciplinary process.14
When instituting a discipline matrix, an agency might discover that it handled past acts of misconduct inconsistently or that it mismanaged consequences for a specific incident. It may be necessary to draft a memorandum that “resets the clock” on the discipline process. This type of official memo notifies employees that regardless of the penalty previously dispensed for a particular kind of misconduct, they should expect a new corrective action going forward.15 As long as the memo is reasonable, clear, distributed to all employees, and followed in practice, deviating from past disciplinary procedures can prove defensible in court and in arbitration.
Clear and Convincing Standard
Arbitrators likely will apply the clear and convincing evidentiary standard when reviewing evidence of employee misbehavior. Because of this, employers should do the same. Best described as a higher standard than preponderance of the evidence but a lower standard than proof beyond a reasonable doubt, the clear and convincing standard requires distinct evidence of culpability, not just a stronger likelihood of guilt than innocence.16
Out of caution, agencies should consider holding themselves to the same investigative standards internally as they would in criminal investigations. If law enforcement agencies conduct employee misconduct investigations as rigorously as they do criminal investigations, such that they would stand up to the heightened reasonable doubt standard, they should be in a far better position to defend their findings in arbitration cases in the face of the lower clear and convincing evidentiary standard of review.
“No matter how serious the transgression or how much evidence exists, if the employer neglects these rights, the arbitrator likely will throw out the discipline.”
Because arbitrators often overturn discipline when the process violates one of many complex laws, case decisions, collective bargaining agreement stipulations, department policies, or personnel rules, it may be helpful to create a checklist to refer to while investigating an allegation of wrongdoing. Administrators can print this document, which contains all the important steps, procedures, and time limits that the inquiry must adhere to; laminate it; and place it at the front of every misconduct investigation report binder.
Best created in cooperation with legal counsel, the checklist serves as a reference and reminder to personnel conducting the investigation. It also might assist the individuals responsible for determining culpability or deciding on the applicable punishment by reminding them of their obligations and boundaries when making rulings in each case.
Corrective action applied to employee misconduct fails in its purpose if not upheld on appeal. To prevail in review, agencies must investigate allegations fairly.
Leaders need to apply discipline consistently and impartially, proportionate to the severity of the transgression. In turn, investigators should ensure that they gather sufficient evidence to meet the clear and convincing evidentiary standard while observing and protecting the employee’s due process, statutory, and contractual rights. The decision also must consider the employee’s prior work performance record as either a mitigating or aggravating factor.
By following these guidelines, law enforcement agencies can improve the likelihood that an arbitrator will fully support their decision—making discipline stick for the sake of the agency’s mission, its employees, and the public they serve.
“After instituting a discipline matrix, one state law enforcement agency saw employee grievances decline significantly, likely because the process provided a sense of fairness in the disciplinary process.”
Dr. Johnson may be reached at email@example.com
1 Helen LaVan and Cameron Carley, “Analysis of Arbitrated Employee Grievance Cases In Police Departments,” abstract, Journal of Collective Negotiations 14, no. 3 (September 1985): 245-260, accessed March 19, 2019, http://triggered.edina.clockss.org/ServeContent?url=http%3A%2F%2Fbaywood.stanford.clockss.org%2FBWCN%2FBAWOOD_BWCN_14_3%2F4UGN582GFYHYJJ5E.html; Helen LaVan, “Public Sector Employee Discipline: Comparing Police to Other Public Sector Employees,” Employee Responsibilities and Rights Journal 19, no. 1 (May 2007): 17-30, accessed March 18, 2019, https://www.researchgate.net/publication/47354507_Public_Sector_Employee_Discipline_Comparing_Police_to_Other_Public_Sector_Employees; and Helen LaVan, Marsha Katz, and Cameron Carley, “The Arbitration of Grievances of Police and Firefighters,” abstract, Public Personnel Management 22, no. 3 (Fall 1993): 433-444, accessed March 19, 2019, https://journals.sagepub.com/doi/10.1177/009102609302200307.
2 Mark Iris, “Police Discipline in Chicago: Arbitration or Arbitrary?” Journal of Criminal Law and Criminology 89, no. 1 (Fall 1998): 215-244, accessed March 19, 2019, https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6990&context=jclc; and Mark Iris, “Police Discipline in Houston: The Arbitration Experience,” abstract, Police Quarterly 5, no. 2 (June 2002): 132-151, accessed March 19, 2019, https://journals.sagepub.com/doi/10.1177/109861102129198075.
3 Lisa B. Bingham and Debra J. Mesch, “Decision Making in Employment and Labor Arbitration,” abstract, Industrial Relations 39, no. 4 (October 2000): 671-694, accessed March 19, 2019, https://www.researchgate.net/publication/228236795_Decision_Making_in_Employment_and_Labor_Arbitration; and Helen LaVan “Arbitration Of Discipline in The Public Sector: Case Characteristics and Party Behaviors Predicting Case Outcomes,” Journal of Collective Negotiations in the Public Sector 31, no. 3 (January 2007): 199-214, accessed March 19, 2019, https://www.researchgate.net/profile/Helen_Lavan/publication/240302763_Arbitration_of_Discipline_in_the_Public_Sector_Case_Characteristics_and_Party_Behaviors_Predicting_Case_Outcomes/links/55c4a41a08aebc967df373c3.pdf.
4 Bingham and Mesch; LaVan and Carley; LaVan; LaVan, Katz, and Carley; and Debra J. Mesch and Olga Shamayeva, “Arbitration in Practice: A Profile of Public Sector Arbitration Cases,” abstract, Public Personnel Management 25, no. 1 (March 1996): 119-132, accessed March 19, 2019, https://journals.sagepub.com/doi/10.1177/009102609602500110.
7 Richard C. Kearney and Patrice M. Mareschal, Labor Relations in the Public Sector, 5th ed. (Boca Raton, FL: CRC Press, 2014).
8 Bingham and Mesch; LaVan and Carley; LaVan; LaVan, Katz, and Carly; and Mesch and Shamayeva.
9 Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985).
10 Bingham and Mesch; LaVan and Carley; LaVan; LaVan, Katz, and Carley; and Mesch and Shamayeva.
12 Siegrun Fox Freyss, Human Resource Management in Local Government: An Essential Guide, 3rd ed. (Washington, DC: ICMA Press, 2009); and Jon M. Shane, “Police Employee Disciplinary Matrix: An Emerging Concept,” Police Quarterly 15, no. 1 (March 2012): 62-91, accessed March 19, 2019, https://www.researchgate.net/publication/258180222_Police_Employee_Disciplinary_Matrix_An_Emerging_Concept/download.
13 Shane; and Russell J. Skiba and Daniel J. Losen, “From Reaction to Prevention: Turning the Page on School Discipline,” American Educator 39, no. 4 (Winter 2015-2016): 4-44, accessed March 19, 2019, https://www.aft.org/ae/winter2015-2016/skiba_losen.
14 Ronal W. Serpas, Joseph W. Olson, and Brian D. Jones, “An Employee Disciplinary System That Makes Sense,” abstract, Police Chief, September 2003, 22-28, accessed April 23, 2019, http://www.policechiefmagazine.org/an-employee-disciplinary-system-that-makes-sense.
15 Fox-Freyss; and David Walsh, Employment Law for Human Resource Practice, 5th ed. (Boston, MA: Cengage Learning, 2015).
16 Colorado v. New Mexico, 467 U.S. 310 (1984).