Assuming that your organization has made a commitment in building or maintaining a healthy work environment free of discrimination and retaliation, the application of Discipline will always be a hot topic for law enforcement around the country. One of the areas that is commonly overlooked is the importance of drafting an unbiased adjudication related to any disciplinary charges or allegations brought against law enforcement personnel or members of the organization. Based on my 33-year experience, I know that at times, officers are terminated or disciplined as a result of inaccurate information provided during disciplinary briefings. In fact, after settling over 200 disciplinary cases, while I was the Officer in Charge of the Los Angeles Police Department Disciplinary Settlements Unit, a good portion of the cases that disciplinary negotiators settled were the result of poor briefings to the chief of police, poor investigations and poor adjudications. Unfortunately, involved personnel who brief chiefs, senior managers or decision makers on sensitive cases are also tasked in reviewing and adjudicating disciplinary investigations. In most of those cases, chiefs or senior managers do not have the time to read the investigation in large law enforcement organizations. Nevertheless, the chief relies on the presenters to highlight important issues and make appropriate recommendations based on a thorough investigation and convincing evidence.
Without a doubt, drafting the adjudication letter or document to support a recommended action or discipline is the most important document that chiefs of police, senior managers or commanding officers should ensure is completed free of bias and predisposed agendas. This management document should reflect the following objectives: (a) find the truth; (b) identify problems; and (c) recommend the most appropriate corrective action, which may or may not include a penalty. A substandard adjudication of charges will not only erode the organization’s legitimacy with the public, but most importantly, it will greatly affect employees’ trust in the organization’s disciplinary system.
During the adjudication process, the letter of adjudication should reflect a summarized examination of the facts contained in the investigation. The adjudicator should utilize this document to communicate a rational conclusion and recommendation based on the evidence presented in the investigation.
The adjudication letter should carefully address the root of the allegation(s). Often, senior managers and commanding officers abstain from addressing the root of the problem failing to address internal conflicts, which can become detrimental future workplace issues in the organization if left unaddressed. Focus, Knowledge, Experience and Decisiveness are the key elements in drafting a comprehensive letter of adjudication, which should reflect the organization’s position to both, the public and the employee, as fair and objective.
Focus
Prior to embarking on the journey of drafting the adjudication letter, the assigned adjudicator should separate from distractions or an environment that is not conducive to accomplishing a thorough and comprehensive document. The adjudicator must remove himself/herself from daily working activities and designate ample time to author this document. Always anticipate possible administrative delays and kickbacks during the review process of the investigation.
Read the investigation and all attached documents to ensure, every piece of document is properly reviewed. Surprisingly, many adjudicators do not read investigations thoroughly but instead rely on investigators’ briefings. This is an unacceptable practice, which often leads to adjudicators having a predisposed bias about the subject of the investigation. Do not lose sight of what the role of an investigator should be. Investigators are fact finders not fact tweakers.
While being mindful of risk management issues, ensure that all pertinent information is included in the adjudication letter. Stay focused on the issues and avoid entering into other areas not related to the investigation. I refer to this investigative or adjudicating practice as, “chasing rabbits.” The era of “I Gotcha,” is a management practice that eventually destroys morale in an organization. It is unethical and it can be perceived as crossing the very thin line between Retaliation and Discipline. Do not cross it! Stay away from fluffy dramatic phrases and stay focused on the alleged misconduct at hand. Do not create issues that are not supported by the investigation.
Knowledge/Experience
Chiefs of police, commanding officers or senior management in general, should be cautious in the selection of supervisory personnel tasked with the assignment of completing the adjudication letter. Personnel assigned to draft this important document should possess the necessary skills, training and experience to carry out the task. Although limited staffing may be a factor in assigning experienced personnel to draft the document, do not compromise the employee and the organization’s interests by shortchanging this process. Be aware that although talented writing is a desirable skill to possess, lack of knowledge and experience may be a major contributing factor in reaching an unfair adjudication.
When confronted with complex subjects that adjudicators may not fully grasp, like workplace issues or a unique area of police work, seek outside resources that are not influenced by internal mandates or protocols toward reaching an unbiased decision.
Decisiveness
Senior managers or commanding officers tasked with the adjudication of the complaint investigation should be guided by the evidence and statements supporting the allegations in the investigation. The adjudication should include a solid rationale to uphold or unfound the allegations. Be decisive in the findings and while making the appropriate recommendations. Stay away from a “Not Resolved” adjudication when all possible. Remember that a “Not Resolved” resolution of the charges is indicative of one of three things, they are:
- Although the investigation was thorough, it lacked evidence to prove or disprove the allegation;
- The investigation was poorly done which excluded pertinent information relative to the adjudication; or
- The adjudicator failed to properly extract the information presented in the investigation to appropriately adjudicate the complaint.
Personnel who have pre-disposed opinions about the outcome of an investigation should not be tasked with drafting the adjudication. It jeopardizes the spirit of the disciplinary system to be fair and objective. It also imperils the organization’s position for any possible defense in the event that the investigation is scrutinized during a legal or administrative review.
It is imperative that personnel drafting the adjudication letter be independent and not be involved in suppressing, modifying, collecting or meddling with evidence related to the investigation. Management briefings involving the investigation should only be attended by personnel with the right to know and need to know. Most importantly, exclude personnel from adjudicating the charges if they already have a predisposed disposition prior to the submission of the investigation.
Be decisive in assigning credibility during the adjudication of a complaint investigation. In pursuit of the ultimate goal, which is the truth of the matter, be attentive to inconsistencies in statements provided by witnesses in the investigation. While assigning credibility, the adjudicator should review all statements and issues included in the investigation. Listen to the recorded interviews and do not assume the investigator paraphrased the witnesses’ statements accurately and without bias.
Be mindful of workplace “clicks” formed in the accused employee’s workplace that collectively can affect the adjudication. Often workplace clicks may already have a predisposed opinion about the guilt or innocence of the subject under investigation. Besides strong supportive evidence, look for neutral parties in the investigation to reach an unbiased, fair and objective decision.
Another practice that often becomes a subject of controversy is when adjudicators give and take away credibility to parties in the investigation. Selective credibility is a practice that should not occur during the adjudication of any investigation. Be aware that once a witness is deemed not credible during the adjudication process, his/her credibility should be judged consistently throughout the rest of the adjudication. Do not assign credibility based on perceptions when there is no evidence to support such foundation. It jeopardizes the integrity of any disciplinary system, but most of all, it demoralizes the spirit of the accused employee ending his/her trust that the investigation was adjudicated in a fair and objective manner.
Finally, a weak adjudication rationale to sustain allegations of minor or serious misconduct will undoubtedly be scrutinized during the legal review or appeal process. Be attentive to the details and question the obvious. Most importantly, do not author documents that have obvious implications that the organization has double standards while adjudicating discipline. Train, train and train, but KEEP AN EYE ON THE TRUTH!