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By PORAC | March 1, 2018 | Posted in PORAC LDF News

Progressive Discipline: It Matters

Attorney at Law
Rains Lucia Stern St. Phalle & Silver, PC

Can a department ignore the concept of progressive discipline? Can it fire an officer for dishonesty even though the person who spearheaded the investigation concluded the officer had been truthful? Can a department set higher standards for one officer than for the rest of his team, then fire him for failing to meet those standards?

For seven years, the officer in this case thrived working on Patrol and received only positive reviews. He led his department in DUI arrests and received awards for his work in catching drunken drivers.

The officer was accepted into his department’s Criminal Investigations Unit. Unfortunately, due to no fault of his own, he worked under three different supervisors during his nine months as a detective. The last supervisor, after working only two months with the officer, gave him his first ever “improvement needed” performance rating. The supervisor later admitted that his department does a poor job of training detectives, letting them “take their training into their own hands.”

This supervisor gave the officer a choice: go back to Patrol or be placed on a Performance Improvement Plan (PIP). The officer chose the PIP. But like so many other aspiring detectives, he found himself hopelessly buried in bottomless paperwork. After three months, he was deemed to have failed the PIP and sent back to Patrol.

Months later, he was placed on another PIP under the guise of bringing him up to standard. His supervisor would later state that if it had been up to him, he never would have instituted the second PIP, pointing out the officer’s history of being a “top gun” in DUIs, “highly regarded” and “one of the top performers” on his team.
The PIP requirements seemed to set the officer up for failure. He was required to make a certain number of FI contacts and write a certain number of tickets each shift. Despite supposedly performing at a substandard level, he was being asked to outperform everyone on Patrol to pass his PIP.

Yet he was doing it. The captain initiated an in-depth inquiry into the FI contacts the officer had claimed on his activity sheet, confirming that the officer had contacted every person listed but had not completed and turned in a physical FI card for each contact. Some of the cards were found in his duty bag and others stuffed in his uniform pockets.

The department fired him, essentially claiming that he was incompetent and lied to his supervisor by failing to fill out all of the cards.
Attorney Julia Fox represented the officer and they took the case to arbitration. Through three days of testimony, they showed that for most of his career, the officer’s performance had not been substandard. In fact, the department acknowledged that an incompetent person wouldn’t have been given the duties the officer had earned over the years. Importantly, he had never been subject to discipline.

Quite damning to the department’s case was testimony from the officer’s immediate supervisor that the PIP standards forced him to perform at a higher level than was required of any other patrol officer. The supervisor cited the officer’s struggle in Detectives and opined that he was suffering from a lack of confidence, a lack of faith and generally getting worn down by the PIP process. Even more importantly, the supervisor, who had led the investigation into the missing FI cards, testified that he did not believe the officer had been dishonest or deceptive, just disorganized.
The department leaned heavily on the dishonesty charge in arguing that progressive discipline was not appropriate in this case because even if he didn’t intentionally fail to turn in the FI cards, his behavior was certainly reckless. The department argued this demonstrated a “fundamental, fatal flaw in judgment” that lesser discipline would not address.

The arbitrator disagreed. There was just cause for some discipline, she felt, but she did not believe he had been dishonest nor was there just cause to terminate him. She pointed out that the PIP standards had him outperforming everyone else, so his ticket writing did not support just cause for termination. She allowed the officer to be disciplined with a 30-day suspension and ordered he be reinstated with back pay.
In her written decision, the arbitrator repeatedly emphasized that this was a “12-year police officer with no prior discipline.” So, does progressive discipline really matter? Yes.
The officer in this case and his family are incredibly grateful to PORAC LDF, RLS and Julia Fox.

About the Author

Nicole Pifari is a member of the Rains Lucia Stern St. Phalle & Silver Legal Defense of Peace Officers Practice Group. She represents officers in administration