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Pressure to Terminate
Managing Partner Scott Tiedemann and Associate Allen Acosta recently penned the article “Pressure to Terminate” for the May/June 2021 issue of Sheriff & Deputy Magazine. The piece provides sheriffs critical tips on protecting the integrity of internal investigations—particularly during periods when the public is demanding that a deputy be terminated and criminally charged for their on-the-job actions. Further, the article shares how to provide transparency to the public while maintaining due process for the officer involved.
PRESSURE TO TERMINATE
Public response to use of force and misconduct negatively fast-tracks due process
With cell phones in almost everyone’s hands today, cameras are omnipresent. And so at the click of a button, controversial use-of-force incidents can be broadcast to people all over the world in seconds. There’s scarcely time for a sheriff to plan their agency’s response to an incident, and the public may demand that a deputy involved be terminated immediately and criminally charged. Elected leaders also feel the heat and sometimes pressure the sheriff to do as the public demands.
In confronting these rapidly evolving events, a sheriff must balance the competing interests at stake. The public has a vital interest in fair and equitable police practices and may reasonably expect that deputies engaging in misconduct be held accountable. But most deputies have job protections, and sheriffs must account for a deputy’s constitutional rights when implementing discipline or terminating their employment.
The courts, administrative bodies, and arbitrators have years to scrutinize a sheriff’s decision to terminate a deputy, long after the public’s anger has subsided. Thus, a department’s failure to conduct a fair and impartial investigation and provide a terminated deputy with his or her constitutional due process may have the unintended effect of allowing the deputy to avoid discipline altogether. By protecting the integrity of an internal investigation and affording accused deputies due process in the short term, sheriffs can best serve the public’s interest in the longer term and hold culpable deputies accountable for their misconduct.
Pretermination due process hearings
In the seminal 1985 Cleveland Board of Education v. Loudermill (470 U.S. 532) decision, the U.S. Supreme Court held that tenured public employees have a constitutionally protected property interest in their employment, and thus have a due process right to a meaningful pretermination hearing.
The purpose of this hearing is to provide an “initial check against mistaken decisions— essentially, a determination that the charges against the employee are true and support the proposed action.” At a minimum, a meaningful pretermination hearing requires that the employee be given notice of the charges, an explanation of the employer’s evidence, and an opportunity to present their side of the story.
While a decision-maker at the pretermination hearing, such as the sheriff, may be familiar with the case, that decisionmaker should not decide to terminate before the hearing happens. A prior determination to terminate an employee renders the hearing illusory and does not satisfy the constitution’s due process requirements, according to circuit court decisions Matthews v. Harney County School District No. 4 and Washington v. Kirksey. For this reason, a decision-maker must remain open-minded and refrain from publicly commenting on the alleged misconduct or committing to any particular disciplinary action.
Post-termination due process hearings
If termination is deemed warranted after the pretermination hearing, the employee is also entitled to a post-termination evidentiary hearing before a neutral hearing officer or board, the right to counsel, and the right to call and cross-examine witnesses.
At a post-termination hearing, the terminated employee is likely to challenge the fairness or accuracy of the investigation and suggest it was rushed or influenced by political considerations. For these reasons, sheriff’s offices should ensure that investigators have wide latitude to conduct a thorough investigation. The investigator can be a supervisor, a human resources or personnel employee, an outside consultant, a private investigator, or an in-house or contract attorney.
Public statements and records disclosures
Due process takes time, and this may frustrate and dissatisfy the public and elected officials. Because of this, a sheriff must find ways to communicate with the public and respond to valid concerns about police misconduct without jeopardizing ongoing investigations or discipline.
Depending on the jurisdiction, many details of an ongoing investigation cannot legally be disclosed. The national trend appears to be toward greater disclosure of law enforcement personnel and disciplinary history. In California, deputies’ personnel records, including records of the imposition and appeal of discipline, are generally confidential and not subject to public disclosure. In 2018, the state enacted S.B. 1421, which made specific categories of personnel records subject to disclosure: records of a deputy-involved shooting, of a use of force resulting in death or great bodily injury, of a sexual assault by a deputy involving a member of the public, and certain records of dishonesty. And in 2020, New York state repealed Section 50-a of New York’s Civil Rights Law, which made police disciplinary records confidential and not subject to public inspection or review.
Still, at least 20 states have laws that provide special protections to law enforcement and prevent public employers from disclosing disciplinary records. Another 15 allow limited disclosure of law enforcement personnel records. The remaining jurisdictions treat records of an ongoing investigation as confidential.
Departments can build public trust by releasing as many records as legally possible without undermining an ongoing case. But even if few or no records may be disclosed, departments can still build trust by informing the public about the process, especially the anticipated timeline for completion.
Maintaining employee morale
Though often warranted, increased public scrutiny has the effect of reducing the number of qualified recruits and increasing the number of veteran deputies choosing to retire. Deputies are concerned about losing their careers in the course of a day, even if they act lawfully or make good-faith mistakes. Conducting internal investigations by the book and providing deputies with the requisite due process has the added benefit of signaling to dep ties that internal investigations are requisite due process has the added benefit of signaling to deputies that internal investigations are handled fairly and without regard to political pressure. Legally permissible disclosure of information to deputies helps them better understand what happened, so that it is less likely they will draw incorrect conclusions.
- Providing deputies with the requisite due process ensures that any termination or disciplinary action is not vulnerable to reversal and best protects the public’s interest in holding deputies accountable for misconduct.
- Pretermination due process hearings require that employees be informed of the reasons for, and evidence supporting, the termination and are given an opportunity to tell their side of the story.
- Decision-makers should not comment about the alleged misconduct or the appropriateness of termination. Due process requires that decisionmakers remain open-minded before the hearing.
- Following termination, the employee is entitled to a post-termination evidentiary hearing with an impartial hearing deputy or body.
- Agencies should aim to communicate with the public to inform them that an investigation is underway and that no comments can be made while the investigation is ongoing. Still, the agency should release records related to the incident that are subject to public disclosure under state public information/records laws.
Scott Tiedemann is managing partner of Liebert Cassidy Whitmore, California’s largest public sector and nonprofit labor and employment law firm. He advises public safety agencies across California on personnel issues, including internal affairs investigations, responding to a critical incident, and the training standards for peace officers. Allen Acosta is an associate at the Los Angeles office of Liebert Cassidy Whitmore. A former prosecutor, he advises public agencies on labor and employment matters and has represented public safety agencies in disciplinary proceedings and litigation in state and federal courts.
As seen in Sheriff & Deputy, a National Sheriffs’ Association publication, ©2021. (pp. 58-60)