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Facebook Posting Case Settles

Posted on Wednesday, December 01, 2010 at 04:27PM
Posted by Alison Berry Wilkinson

A wise man once said: “An agreement reached is always better than an imposed result.” The reason: Each party has ownership of the outcome that puts the dispute to rest. While compromise can sometimes taste a tad bittersweet, it is generally palatable because the end-product was produced by working together rather than throwing stones at each other. In every battle, even those in which victory is achieved, each side suffers debilitating injuries.

This magazine regularly publishes the victories achieved after adversarial proceedings, which could leave the false impression that “going to war” always achieves great results. No one publishes articles about the cases that settled, or the cases that were lost, nor about the collateral damage caused by the battle campaigns waged in cases that are victorious.

Don’t get me wrong—sometimes confrontation and a “scorched earth” approach to a discipline appeal are necessary. But it should be a last resort. Settlement is a concept that should always be explored at every stage of every proceeding, even where the possibility of settlement is remote. Only when settlement is not possible should adversarial proceedings occur. And when they occur, the member should go in with eyes wide open having been fully advised of the likelihood of success on the merits, and the potential consequences of winning the battle but losing the war.

The benefits of a good settlement were touted in the LDF Chairman’s column last month. What was not mentioned were the difficulties of crafting a settlement. “Getting to yes” or “getting past no” requires work, flexibility and creativity. Identifying what is important to each side and constructing a balanced proposal that addresses the fundamental interests affected by both sides are key. But the investment is always worth the result. If you go to war anyway because an adequate settlement could not be negotiated, at least the effort was made to resolve the dispute. Where settlement can be reached, it often has great long-term value.

Here is a recent example: The Case of the Unexpected Publication of a Private Facebook Posting.

In what was thought to be a private exchange of postings on a recent controversial police event, an officer made a comment that was misconstrued by a “friend” of the “friend” on whose Facebook page the posting was made. The dissemination of that misconstrued posting by the “friend of the friend” sparked outrage and complaints from the community. The Department initiated an investigation and proposed a suspension for conduct that brought disrepute upon the Department.

A multitude of legal defenses to the proposed discipline were available that might very well have voided the Department’s ability to impose discipline. These defenses included the officer’s free speech rights on a matter of public concern, whether an appropriate nexus to the job had been established given that the individual made the posting during his off-duty time and never identified himself as a law enforcement officer (but his name had been recognized by a reader of the posting) and violations by the Department of its confidentiality obligations when it publicly published the sustained findings in order to quell the negative publicity from the event. An all-out offensive on appeal may well have vindicated the officer completely. But the fact remained—the comment was unfortunate, the content subject to misinterpretation and it garnered harsh criticism within the community.

Labor and management both had strong opinions about the appropriateness of the discipline recommendation, with both sides feeling confident that their position was right. A number of lengthy telephone calls were exchanged, and many meetings held that flushed out the positions. In the end, recognizing that the consequences of a protracted, hard-fought battle would impact both sides, an agreement was reached requiring that the officer research and draft a social media policy for dissemination and training rather than receive a disciplinary suspension.

The concept of “education-based discipline” has surged recently, and was the subject of a presentation at the recent IACP convention. While some aspects of that program are controversial, the fundamental underlying principle that discipline should be corrective rather than punitive has been an important staple in the LDF panel attorney’s toolbox for obtaining fair and productive resolutions to misconduct cases.

Everyone makes mistakes, including both labor and management. The real question is: What is the appropriate response to the error, whether it be committed by management or by the officer? Is this something that can be translated into a constructive outcome or are there mistakes where there is no way to bridge the divide?

I have always believed that it is the LDF panel attorney’s responsibility to fully advise the member of the available options, the risks and benefits of each possible outcome, and to leave the choice in the hands of the individual member. No doubt everyone knows that I play to win if we go to war, and that it will be an aggressive proceeding that will likely result in heavy casualties on both sides. But, if the choice is to settle, my job is to construct a fair agreement that balances the competing interests and to seek terms that are as favorable as reasonably possible and permits the parties to put the dispute behind them and move forward. I was glad to have been able to accomplish that in The Case of the Unexpected Publication of a Private Facebook Posting. For more details on this case, see the news reports on the initial comments (http://www.ktvu.com/news/24334872/detail.html) and the public announcement of discipline (http://www.ktvu.com/news/22516072/detail.html).

ABOUT THE AUTHOR: The Berry Wilkinson Law Group is dedicated to providing effective, quality representation to public safety employees in civil, criminal, disciplinary, and collective bargaining matters. Formerly a partner at Rains, Lucia & Wilkinson, Alison continues to actively and aggressively advocate on behalf of peace officers statewide.

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