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.

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.

Procedural Errors

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.

Remedies

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 Matrix

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

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

Reset Memorandums

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.

Procedural Checklist

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.

Conclusion

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.