10 steps to lowering the rate of public sector discipline and avoiding lawsuits

I am honored to represent several thousand Georgia law enforcement officers and firefighters. My firm has represented more than 70 officers following shootings or in-custody deaths. We handle employment, licensing board, and disciplinary appeals. As an attorney since 1999, I have represented private corporations including one with 22,000 employees, as well as private and public sector employees. These companies seem to be able to function, under stressful circumstances and quite efficiently, without writing up, suspending, and firing employees on a regular basis.

Lately I find myself asking, “Why are so many LEOs and firefighters written up, suspended, and fired?” This is a critical question when law enforcement and firefighters are having a difficult time recruiting and retaining talent.

How the private sector handles discipline

The private sector in the United States employs almost 127 million people. [1] Firefighters and law enforcement officers total approximately 1.8 million. [2] It is a notable and relatively rare event for private sector employees to be suspended, or even written up, much less terminated. These companies seem to be able to function – under stressful circumstances and quite efficiently – without writing up, suspending and firing employees on a regular basis.

When first hired, private sector employees may receive, on the high end, a day or two of orientation and an employee manual. Police and fire recruits receive hundreds of hours of training with minimum standards and voluminous SOP manuals for their agency, codes of conduct and government employee manuals. So why can’t we seem to go a week without reading about the suspension or firing of an LEO or firefighter? Apparently, more training does not equal less discipline.

Does the difficulty and stress of the work performed by public sector employees lead to more errors that require discipline? Probably not. Private sector employees work on extremely strict deadlines with performance pressure, and companies may fail if the employees perform poorly. Public sector employees are called upon to make “split-second judgments in circumstances that are tense, uncertain, and rapidly evolving,” [3] where the mountain of manuals, memos and guidelines may take a backseat to intuition, improvisation and bravery. A private sector employee who thinks outside the box will likely be rewarded with a bigger bonus, while a public sector employee may be rewarded with a counseling session or time off without pay even though they cannot predict their schedules, their duties or the people who stand in the way of their success on a daily basis.

Do we hold public sector employees to a higher standard?

The theory of “we hold public sector employees to a higher standard” to explain higher discipline rates fails. That’s an excuse and generally not true. For example, courtesy toward people served is critical in both environments; the difference lies in how violations are handled. A rude receptionist will receive more training, a counseling session and be monitored more closely. Discipline, including termination, may occur if these remedial steps do not correct the problem. However, a rude officer risks being suspended or terminated irrespective of the manner in which they were treated on the scene by their “customer.” The private sector does not view the receptionist as a disposable commodity or view the taking of money from an employee’s paycheck as a first-level solution. The public sector does.

It is astonishing that this continues in an environment when law enforcement agencies and fire and emergency services are fighting a war of attrition and sagging recruiting. According to an NBC poll, law enforcement recruiting is down all over the United States. Here are my recommendations for best practices that may lower the rate of discipline issues in the public sector:

1. If several people commit the same violation, it is a training, supervision, or management problem – agencies must fix the underlying problem.
2. Most errors are the result of inadequate training or communication. Use your internal investigations to get to the root cause of the problem. The medical field and airline industry use root cause analysis to understand why a rule or policy violation occurred. Too many internal investigations are solely focused on the end goal of catching people in a policy violation.
3. Make taking pay away from the people you recruited, selected, trained, work to retain and in whom you invested thousands of dollars and your trust, the last resort.
4. NEVER be flippant or casual about suspending or firing someone. Snide remarks like, “A few days off would do them some good” or, “We’ll just hire another one to take his place” are evidence of arrogance and ignorance, not leadership. Never forget that officer or firefighter must explain to a spouse or child why their paycheck is short. Take it seriously or take yourself out of the equation.
5. Ensure your process to suspend or terminate someone is fair, thorough, and free from personal bias. My principal piece of advice to command level public sector employees is simple: NEVER fire or discipline someone when you are angry, having a bad day, or tired. You can always fire them tomorrow.
6. Have the courage to listen when people in your organization are screaming for help about a supervisor or manager. Public sector employees understand fairness – they are the guardians of due process and discretion when enforcing the law. One bad supervisor or manager can destroy an agency, deflate morale and get you and your agency sued – successfully.
7. Expect employees to make mistakes. Rare is the person who makes errors born of malice.
8. Take exit interviews seriously and follow up to get details. I have seen things that are nothing short of horrible like one personnel file that grew by over 60 pages after the officer resigned. This is amazing and inexcusable.
9. Take “name clearing sessions,” “pre-disciplinary hearings,” and Loudermill hearings seriously. Listen to what people say and encourage them to speak. Whether required or not, these proceedings are the last opportunity for your agency to learn of a serious problem. I have successfully sued agencies that ignored the opportunity to address issues and prevent a lawsuit by listening prior to taking adverse action.
10. Communicate with people openly and do not let the “chain of command” get in the way of common sense. I have seen the chain of command used as a weapon when an employee was justifiably seeking help because they were being treated poorly, and at times in an unlawful manner, by a supervisor.

There is too much at stake in keeping good, caring, competent, dedicated, brave, and honest public servants on the street. It’s not about egos or the time it will take to do things differently. It takes a few minutes to write an order suspending someone. It takes longer to perform a root cause analysis to determine why the behavior or incident took place.

Agencies that practice these principles have better success at recruiting and retaining staff and morale than their peers. If these reasons don’t convince you, they are also sued less often.

Change takes time and effort. Your officers and firefighters deserve your time and effort. I’ve told many journalists during interviews when they are ready to bash law enforcement, “If you don’t like the current crop of law enforcement officers, wait until you see the second string when recruiting standards drop in order to fill positions.” There’s too much at stake to keep doing things “the way we’ve always done it.” Stay safe.

References

1. U.S. Census Bureau. 2016 SUSB Annual Data Sets: U.S. and States Totals, (last revised Dec. 4, 2018).

2. The numbers are a total estimate from the year 2017 for law enforcement officers and the year 2015 for firefighters. See Federal Bureau of Investigation, Criminal Justice Information Services Division, Uniform Crime Reporting Program: 2017 Crime in the United States – Table 70 (indicating 670,279 sworn officers with a total of 13,128 law enforcement agencies reporting in 2017); see also National Fire Protection Association, The U.S. Fire Department Profile Through 2015 Fact Sheet (Indicating 1,160,450 firefighters – 345,600 career and 814,850 volunteer – for the year 2015).

3. See Graham v. Connor, 490 U.S. 386, 396-97 (1989).