One of the benefits of our Legal Services Plan is the availability of a lawyer to assist you with administrative matters involving discipline. Often that lawyer is me and I wanted to give you some of my observations based on a number of situations I have seen arise with regard to discipline of reserve officers.
Most importantly, every agency is different when it comes to discipline, and what might be true today, or what was true yesterday, may not be true tomorrow or beyond (especially if there is a changing of the guard at the top, in which case a whole new approach to discipline of reserves may come into effect). Some agencies centralize the discipline process and follow a playbook. Other agencies (particularly large ones) leave discipline up to the station commander (or his or her delegates), thus leaving your case up to the luck of the draw as far as who has authority over your employment. Various agencies invoke the discipline process uniformly among full-time and reserve officers, while others (as you will see below) have 2 sets of rules – one for full-time and another one for us. What does all that mean? It means you can never really rely on consistency or fairness – the imposition of discipline can be random, ever-changing and fundamentally unfair.
As many of you know, and unfortunately, reserve peace officers do not get the benefit of the due process protections of the Peace Officers Bill of Rights (technically speaking the “Public Safety Officers Procedural Bill of Rights Act” and often referred to as “PBOR,” which reference I will use in this article). The PBOR is found at Government Code Section 3300 et seq. Section 3301 lists all of the categories of peace officers covered under the PBOR and PC Section 830.6 (which authorizes reserve peace officers) is not one of those sections. Legislative efforts on our part have failed in the past, and this is a subject always worth re-visiting. But be mindful of the fact that there are forces aligned against us when it comes to PBOR rights and that overcoming that legislative hurdle is a tall order to say the least.
Many agencies, realizing the benefits of the PBOR relative to ensuring a fair process when it comes to disciplinary matters involving their reserve peace officers, nevertheless extend the basic protections of the PBOR to their reserves. This includes reasonable notice of a disciplinary matter and/or investigation, the opportunity to be heard, including having a representative present during IA interviews (in some cases counsel if the matter potentially involves criminal liability), as well as the ability to tape record proceedings, submit written statements and so on.
That being said, many agencies do not make any PBOR protections available to reserves and quite frankly can be downright unfair with regard to the disciplinary process when it comes to reserves. How unfair? I have seen cases where reserves are informed of their termination before they are given any notice or opportunity whatsoever to defend themselves. They are simply told to get their stuff and get out.
Which brings me to the title of this article – “we need to be better.” Our full-time sister and brother officers get PBOR protections. They also often get civil service protections, as well as the benefit of union contracts which make it even more difficult to impose discipline on them or to terminate them. When discipline is imposed upon them, the penalties are often less harsh than what would (or does) happen to a reserve for the exact same thing. And good for them. I have no issues with those protections, but I do take issue with the double standard. What gets a slap on the wrist for our full-time colleagues can often mean straight-up termination for us.
What that means is that without these workplace protections, “we need to be better,” both in the way we police when we are on-duty and when we go about our private lives off-duty as well. Just to put it out there: we are held to a higher standard. We need to go by the book, follow policy, be model citizens, and conduct ourselves at the highest levels, always.
The discipline cases which come my way involve all manner of things – both on-duty and off-duty. The littlest of slip-ups can come back to haunt you with your agency. And if your agency is looking to make an example of someone, or if the politics of your agency are out of whack, you can get caught up in that. I don’t want to make folks paranoid as much as emphasize the point of the article. We have to be better because we can’t rely on civil service protection, the PBOR, union reps, lawyers and union contracts to shield us. We really have no legal “rights” when it comes to discipline no matter what anyone says. Yes we can demand things – such as a liberty interest hearing under appropriate circumstances. But that doesn’t always mean will you get it, even if you have the legal right to it – which means you have to go to court, potentially at your own expense (unless you have PORAC LDF), to get a remedy. Bottom line: the best protection is how you behave and how you police.
Use your best judgment, don’t be afraid to make the tough call when you need to (as high stress police emergencies shouldn’t tie you up in knots relative to the implications on your police career – you need to “take care of business” and do your job – but use your judgment and in the time you have to think about your next move, take the extra second if you have it).
Get training, stay trained, read your policy manuals, keep up with the law, be aware of the politics of the day (yes that matters), understand the law and the consequences of your actions, and do what you have to do. When you are out in the world, at restaurants, shopping centers, in your car, behave yourself! I know it may seem obvious, but even when you are off-duty, minor business disputes over a bill, whether or not your omelet was cooked properly, whatever. If you get into it with someone, and they find out you’re a cop, especially nowadays this can turn into a s***storm really quick.
So remember to be “better.” In everything you do, on- and off-duty.
Stay safe everyone.
If you have a question or comment for Jim, please email Jim at firstname.lastname@example.org. Jim René is the General Counsel for the California Reserve Peace Officers Association and a reserve police sergeant for the San Fernando Police Dept. He previously was an LAPD reserve police officer for 15 years.
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