A Model for Success Discipline in the Municipal Fire and Police Civil Service
What do we hope to achieve with discipline? • Change behaviors so that employees function as we think they should. • Help the department function efficiently, professionally, and cost-effectively.
Effective supervision and letting employees know your expectations. The key to any effective discipline program is:
Discipline begins with the first-line supervisor. The supervisor needs to know: What you expect of him. What behavior problems should be referred to upper level administrators. How that communication should take place.
The Bill of Rightsand Loudermill. Formal disciplinary action against employees in Louisiana requires a full understanding of both.
Stumbling Blocks for Discipline: The Bill of Rights (for both fire and police) says that any formal disciplinary action taken that is not in “complete compliance” with the Bill of Rights “is an absolute nullity.” Loudermill is a Federal case from 1985 that says that public employees have a property interest in their employment. You may not take something of value away from them without due process.
When confronted with actions that may result in disciplinary action: • STOP! Before you engage the employee. Determine if formal disciplinary action might be necessary. If so, • CORRECT! Any actions that need to be corrected immediately. Don’t ask the employee questions about why he did things a certain way. • ADVISE! Let the appropriate individuals know there may be a problem through the method established by the department.
We recommend advising the appointing authority asap when: The media may become involved in the event. • Personal liberties have been violated or laws have been broken. • People outside the department are involved. • The department may be held liable for the employee’s actions.
The immediate supervisor’s responsibility: Problem Behavior STOP! Decision Time Counsel Employee Refer for Disciplinary Action
The Formal Disciplinary Process • Make decision to investigate. • Formal notice of investigation to employee, copy of Bill of Rights. • Place on Administrative Leave With Pay, if necessary.
Conduct the Investigation • Interview witnesses. • Interview employee under investigation. Make recording of all conversations. • Recommend disciplinary action if necessary.
The Loudermill or Pre-Disciplinary Conference. • Order employee (recommend certified letter) to attend pre-disciplinary conference. • Attach all evidence that might be used against him. • Allow him to bring counsel or a representative.
What provides for due process? • Allow the employee to present reasons why you should not take action against him. Allow testimony from other witnesses who might support his point of view. • Carefully consider what he has to say prior to making decision.
Once the decision has been made to discipline: • Provide the employee with the detailed explanation in writing: • Describe the incident, • Describe evidence discovered in the investigation, • Describe department policies and state and/or local laws violated.
The letter advising the employee of the investigation should include: • A statement that indicates how the efficiency of the department was or could have been impaired by the officer’s actions. (Supports good faith, for cause.)
Disciplinary Actions: OSE MODEL FOR SUCCESS
Eight forms will fool-proof your disciplinary process: Critical Incident Investigation Authorization Checklist Notice of Investigation Acknowledgment Form Interview Checklist Notice of Pre-Disciplinary Conference Notice of Disciplinary Action
1.Critical Incident Form Completed by supervisor when he believes , according to established departmental policy, that specific problem behavior needs to be referred to upper levels in the organization for a decision on whether or not to start an investigation. Short, one-page form which describes incident.
2. Investigation Authorization This form authorizes the investigation and communicates critical information to those involved in the process. Shows date investigation began. Shows 60 day target. Shows person(s) authorized to conduct investigation. Shows the decision on whether or not Administrative Leave With Pay will be employed.
3. Investigation Checklist This one page form can be fastened inside the file and serve as a checklist of steps and target dates for the investigation. At the beginning of the investigation, the sixty-day target date will be determined so that all are aware. This form should be initiated by whomever makes the decision to initiate an investigation. Supervisor referring the initial complaint should be notified.
4. Notice of Investigation Memorandum to Employee. This fill-in memo includes all of the essential requirements of the Bill of Rights. The description of the event from the Critical Incident form may be used to describe the incident on this form. When you see *.* on the form letter, simply use the search feature on your word processing program to take you directly to the areas where data should be inserted. Remember to delete *.* and the explanatory text in italics. You may print on your letterhead.
5.Acknowledgment Form This form simply provides proof for your files that the employee being investigated received the notice of investigation and the Bill of Rights.
6.Employee Investigation Interview Checklist This is a form to remind the person conducting the interview of the legal requirements that must be met when conducting the interview under the Bill of Rights.
7. Notice of Pre-Disciplinary Hearing This form letter prompts you to include all necessary information for the Loudermill Hearing. Describe incident. Quote departmental policies violated. Quote appropriate items from LRS 33:2560. Provide date and time when officer is ordered to appear. Attach all evidence that might be used against the employee.
8.Notice of Disciplinary Action and PAF Describes Loudermillhearing. Advises of decision on specific disciplinary action to be taken including effective date. Describes incident. Quotes departmental policies violated. Quotes appropriate items from R.S. 33:2560.
General Questions About Police Officers’ & Firefighters’ Bill of Rights
When does an investigation begin and when the term investigation is used, does that mean an internal investigation or any investigation? The term investigation has many uses, so how the word is defined is dependent upon the context within which it is used. For purposes of the application of either the Police Officers’ Bill of Rights or the Firefighters’ Bill of Rights, the principles contained therein should be followed when it becomes apparent that the actions discussed may lead to disciplinary action.
Does an investigation into a vehicle crash involving an employee and investigated by another agency constitute the beginning of an internal investigation? Not necessarily. Was the employee on duty or off? Was the crash involving one of your departmental vehicles? If an employee on duty is involved in an accident with another vehicle, and another entity is conducting an investigation, you should initiate your own investigation soon after the accident. Once their investigation is complete, you may incorporate those findings into your investigation, but their purpose is to determine information about the accident, not whether or not disciplinary action should take place. Also, their findings may not be available to you within the sixty day period, so you may need to proceed without their report should you determine disciplinary action is warranted.
If a criminal investigation has been initiated, can the information obtained be used as the internal investigation, such as; witness statements, video, photos, etc.? Tread very carefully here. We assume that such material may be used to support disciplinary action. If you interview the employee in question, however, you must be aware of the provision of the Bill of Rights which states the following: R.S. 40:2531 1.B.(5)- Police Bill of Rights No statement made by the police employee or law enforcement officer during the course of an administrative investigation shall be admissible in a criminal proceeding. R.S. 33:2181.B.(7)- Firefighter’s Bill of Rights No statement made by a fire employee during the course of an administrative investigation shall be admissible in a criminal proceeding. In other words, if you interrogate the employee being investigated with a view to possible disciplinary action, it might damage an ensuing criminal case.
If an employee is being investigated for a violation of policy, is it required that the employee be interrogated during the investigation? For example, an employee is insubordinate to a supervisor in front of other employees and all witnesses tell the same story. Technically an initial interview with the employee may not be necessary, but it is good business practice to have all the facts before going very far with the disciplinary process. There may have been mitigating circumstances that caused the employee to behave as he did. Regardless of whether you interview the employee early in the process or not, if you are taking something of value away from him you must still go through the Pre-Disciplinary Hearing. You have to send him a letter or memo advising that you are contemplating disciplinary action against him, provide him all the information you might use against him, such as witness statements, and order him to appear at a hearing.
Is it required or recommended that an employee under investigation is read the bill of rights before questioning him, or is providing an employee a copy of the bill of rights at the time the questioning is scheduled sufficient? Technically, unlike Miranda, there is no requirement within the Firefighter or Police Officer’s Bill of Rights that you provide the employee under investigation with a copy of the rights. It is good business practice to do so, however. To be honest, having the Bill of Rights in front of us is more for the administrators than for the employee, because we are the ones who have to make sure that the provisions are followed. We are the ones who have to know the law, inside and out, in order to make sure we can make any disciplinary action stick.
What is the meaning of the word “investigation” within the context of the Bill of Rights? When does an investigation begin that trigger’s the Bill of Rights applicability? In Opinion No. 03-0095, the Attorney General has offered the following guidance for the Police Officers’ Bill of Rights: . . . It is our opinion that if the investigation requires a close study or systematic inquiry into a situation, the protections afforded an officer under LSA-R.S.40:2531 apply. Moreover, one must not overlook the express language of the statute. The term “investigation” is modified by the phrase “with a view to possible disciplinary action, demotion, or dismissal.” Therefore, if any of the three results are possible, then the officer is afforded the protections of LSA-R.S. 40:2531. The same “express language” is used in LSA-R.S. 33:2181 (A)(1), so we advise that the Attorney General’s Opinion is applicable as well to the fire service. Our advice is that if an employee’s actions might result in disciplinary action, the provisions of the Bill of Rights should kick in – certainly before he is questioned about the incident.
Should a liberal definition of “investigation” be applied? Should doubt as to whether a fact finding process constitutes an investigation be resolved in favor of classifying it as such and affording the Bill of Rights notice? As we discussed earlier, providing the employee a copy of the Bill of Rights is not that big of an issue. What is important is whether or not disciplinary action is a possibility. If you want to preserve your opportunity to take disciplinary action, you should begin following the provisions of the Bill of Rights from the beginning. R.S. 40:2531 (Police Officer’s Bill of Rights) provides that the law enforcement officer being investigated shall be informed at the commencement of the interrogation, of the nature of the investigation and the identify and authority of the person conducting the investigation, as well as the identity of all persons present. R.S. 33:2181 (Firefighters Bill of Rights) provides that prior to commencing a formal investigation of a fire employee, the appointing authority shall notify the employee in writing of the nature of the investigation, of the identity and authority of the person conducting such investigation, and of the specific charges or violations being investigated. The Attorney General has also said that the Bill of Rights should be interpreted liberally in favor of the employee, so that it should apply to all questioning, no matter how informal that questioning might be.
When is an investigation necessary? Is it a matter of timing or the nature and substance of the matter under investigation? Affording employees “due process” means that we get all the facts before we take any action. The controlling issue is deciding whether or not it is in the department’s best interest to correct an employee’s behavior by taking disciplinary action. If you want to take formal disciplinary action against an employee, it is imperative that you follow the procedures necessary by law to make sure that it is not over-turned on appeal.
Does every act of a supervisor, or of the appointing authority require an investigation if there is the potential that discipline will follow? Loudermill requires that all the facts be gathered and that the employee be afforded “due process” prior to taking disciplinary action. There is no single way to gather this data, so the use of the term “investigation” can mean many things. Some investigations require extensive statements from witnesses and evaluation of documents, while others may only involve talking to the person involved. What is most important is that when it becomes apparent that disciplinary action might result, the conversation should be taped and the employee should be advised that he is under investigation with a possible view to disciplinary action.
Is there any difference between an internal investigation and an investigation by another agency. Yes. When it becomes obvious that an employee’s actions might result in disciplinary action, the appointing authority should conduct his or her own investigation, independent of what any other agency is doing.
Does the subject matter of the investigation play any role in determining whether the Bill of Rights applies? What makes the difference is whether or not you might want to take disciplinary action as a result of the incident.
When can a supervisor or the Appointing Authority bypass an investigation, or is that not possible? For example: If the issue is direct insubordination, is it nonetheless necessary to utilize the investigatory process and afford Bill of Rights notice? You may bypass following the requirements of the Bill of Rights if you elect to simply counsel the employee or provide a written record of counseling that is not placed in a permanent personnel file. In other words, you may elect not to take formal disciplinary action. If you want to take formal disciplinary action and take something of value away from the employee, you must follow the Bill of Rights and you must afford due process.
If a criminal investigation takes place and evidence is gathered but no charges are filed, but departmental discipline is nonetheless imposed, does the departmental discipline need to be preceded by an investigation independent of the criminal investigation, or can the information be used without notice of the Bill of Rights? In many cases, departments do not investigate their own criminal matters. The burden of proof is not as strong to support disciplinary actions, even termination. We advise appointing authorities to conduct an independent investigation into whether or not disciplinary action is warranted. Criminal charges do not cancel out the requirements for the Bill of Rights. An employee may be terminated, following being afforded the appropriate protections of the Bill of Rights, prior to the conclusion of any criminal case.
Into how much detail must the department supervisor or appointing authority go in giving the rights? Should the supervisor go over the rights listed separately or would it be okay to make a copy of the Bill of Rights available for officer’s review independently? As we discussed, it is easy to confuse the requirements of the Miranda warnings when taking a suspect into custody with the Bill of Rights. Reading the Miranda warnings to a suspect is necessary because of not knowing the educational level or abilities of the suspect. That is not the case with Police Officers or Firefighters. As previously mentioned, the provisions of the Bill of Rights must be followed by the supervisors and administrators. There is really no requirement to educate the employee under investigation on his rights under the law.
Is the 60-day completion time for an investigation limited only to situations in which “a formal and written complaint” is made against an employee? No. The 60-day rule applies at any time that disciplinary action might result.
What constitutes a “formal and written complaint”? For example: Is an accident report involving a motor vehicle accident in a departmental vehicle where the employee is arguably at fault, a complaint? I would assume that the “formal and written complaint” might include any written report or correspondence that describes or reports behavior that may be contrary to the public interest or policy, and/or detrimental to the efficient and safe operation of the department. The report may come from within or outside of the department. An accident report where the employee is at fault would not by itself be considered a written complaint. The department should have a policy in place to investigate all accidents, however. An at-fault accident should generally initiate an investigation.
GENERAL COMMENTS We need to change the focus of our procedures on disciplinary actions from CYA to proactive. The focus should not be on whether or not to conduct an investigation, but on whether or not disciplinary action might be warranted. Develop a departmental policy for disciplinary actions that will ensure that you do not fail, rather than trying to justify or support what you have done.
In Conclusion Our model covers the essentials, and may certainly be modified to suit your purpose. We recommend that you meet with supervisors and administrators to formulate a plan that best meets your needs.