Research has repeatedly revealed that a very few individuals commit the vast majority of the serious misconduct experienced within public agencies—from law enforcement to the fire service to public schools. For example, one study in Chicago found that only 4.5% of elementary school teachers and administrators were responsible for the falsification of the standardized test scores of more than 19,000 students.¹ Studies of sexual misconduct by grade school teachers and public university professors have estimated that between 4% and 7% of educators account for all cases of sexual misconduct against students.²

A study examined citizen complaints across 165 law enforcement agencies in the state of Washington, finding that less than 5% of the officers on those agencies were responsible for 100% of the sustained citizen complaints.³ Another study examined 15-years of citizen complaint and internal misconduct data within one urban police department in the state of New York. It found that about 6 percent of the officers employed by the department over those 15 years accounted for almost all of the internal and external allegations of misconduct.⁴

Finally, a third study of “bad apples” in the context of law enforcement examined more than 5,500 citizen complaints against officers on eight police departments from mid-sized cities. It found that 79 percent of the officers on these departments received no sustained complaints at all during the study period, and another 16 percent received only one sustained complaint. Approximately 5 percent of the officers, however, had multiple sustained complaints, with a small group of 47 officers accounting for almost half of all sustained complaints. This small group of 47 officers made up 2 percent of all officers on the eight departments, but generated more than 100 excessive force allegations, 200 discourtesy allegations, and numerous other misconduct complaints.⁵

These are problem-prone employees, often referred to as “bad apples,” and they create havoc within their respective government agencies. They routinely damage relations with the public, bring discredit to their agencies, and place their peers at risk for danger and lawsuits. In this modern age of video cameras everywhere, and YouTube® videos capturing and broadcasting bad behavior, the antics of these problem-prone employees are increasingly on display for the world to see. While removing bad apples has clear benefits for the well-being of the community and the reputation of the agency, many public sector leaders have argued that their ability to terminate these problem employees is being undermined and eroded by the grievance arbitration process.

Over the last few decades, there have been numerous instances of police departments, schools, fire departments, and other government agencies terminating a problem employee for serious misconduct, only to have an arbitrator later reinstate the employee. In fact, at arbitration, public agencies only prevail about 50% of the time, with the other 50% resulting in the arbitrator either vacating or reducing the severity of the punishment the employer gave the employee.⁶ Situations such as these have caused some to question the legitimacy of the workplace grievance arbitration process.

But does the available research reveal a fundamentally flawed arbitration system that inevitably disrupts attempts to discipline or does it indicate a wide-spread failure by supervisors to make disciplinary decisions in a way that is defensible in the face of scrutiny? Current research on grievance arbitration cases does not reveal that arbitrators either ignore the evidence or simply seek to mediate a “middle ground” punishment between the employer and the union. There are clear reasons upon which the arbitrators base their decisions to overturn or reduce punishments. The research on grievance arbitrations has repeatedly revealed that when an arbitrator reverses an employer’s termination decision, the arbitrator almost always clearly articulates a legitimate reason for the reversal, and there is often more than one reason. Most reversals involved true errors made by the employer while investigating or punishing the misconduct, and when employers attempt to appeal the arbitrator’s ruling through the courts, trial and appellate court judges generally uphold the arbitrator’s decision for the same valid reasons originally articulated by the arbitrator.⁷

The Reasons for Arbitration Reversals

Dolan Consulting Group research staff recently conducted an in-depth analysis of 600 cases of public sector employee suspensions and terminations that went to review by some sort of external arbitrator (i.e., union grievance arbitrator, civil service board, state human resources commission, etc.). These cases involved law enforcement agencies, prisons, schools, probation departments, fire departments, emergency medical services agencies, and public works departments. In 50% of the cases the external arbitrator reversed or reduced the employer’s discipline. In analyzing these cases, the Dolan Consulting Group staff was able to identify the five most common reasons given by arbitrators to justify their decisions to reverse or reduce discipline.

Disproportionate Punishment

The most common reason cited for overruling the employer’s discipline was that punishment was distributed unfairly. In most cases this involved situations where two employees, who shared similar past work histories, committed similar acts of misconduct, yet one employee was punished far more severely. Employees must be treated fairly when being given punishments and the only aggravating or mitigating circumstance that can justify different punishment outcomes for the same type of behavior is a recent past record of other misconduct. Arbitrators in the cases we studied overturned punishments if it appeared the severity of the punishment depended on anything else, including the employee’s rank, years of experience, attitude, or lack of remorse.

Also, and to a lesser extent, disproportionate punishment referred to a punishment that was disproportionate in severity to the act of misconduct. In other words, it involved a minor act of misconduct that was given a severe punishment rather than a minor punishment or retraining in the spirit of progressive discipline.

Insufficient Evidence

The second most common justification for overturning employer discipline involved insufficient proof of misconduct. While courts usually utilize the “preponderance of the evidence” standard of proof in civil cases, including workplace grievance lawsuits, arbitrators generally use a higher standard of proof. When reviewing employer discipline involving suspensions or terminations, arbitrators tend to use the “clear and convincing” evidentiary standard, which is a higher standard of proof than a preponderance of the evidence. If an employer utilizes the lower standard of proof when determining whether an employee committed a particular act of misconduct, the employer risks having the discipline overturned by an outside arbitrator.

Due Process Violations

The third most common reason arbitrators overturn a public employer’s discipline is that the employer violated the employee’s due process rights when investigating the employee misconduct, determining guilt, or assigning punishment. Public employees are afforded certain rights within each state by statute and legal precedent. These rights generally include a complete and impartial investigation, notice of the charges against the employee, an opportunity to challenge the charges, and a determination of guilt by an unbiased hearing officer. No matter how serious the employee’s misconduct, and no matter how much evidence there is against the employee, if the employer violates these rights, the discipline is likely to be overturned.

Procedural Errors

Procedural errors, such as failing to follow written policies or the agency’s collective bargaining agreement, came next in frequency as a justification to overturn an employer’s discipline. If an employer fails to follow any of its own written procedures for handling employee discipline, it risks having its discipline overturned. The same is true for violations of its collective bargaining agreement with its employee’s union. If there is a time limit for filing misconduct charges, for example, then this time limit must be met. If the contract permits employees to have a union representative present during questioning, then a union representative must be contacted and be present. A failure to follow these procedural requirements can result in the overturning of otherwise reasonable discipline.

Employee’s Past Record of Good Performance and Other Mitigating Circumstances

To a much lesser extent, other mitigating circumstances were mentioned by arbitrators as additional justifications for overturning an employer’s discipline. The most common of these was the employee’s past record of good performance. When issuing punishments, arbitrators expected employers to show lenience toward employees with lengthy employment histories of outstanding past performance. Arbitrators also expected employers to demonstrate some form of harm that resulted from the employee’s misconduct in order to justify the punishment. Finally, arbitrators tended to review the circumstances surrounding the misconduct by what was objectively reasonable from the perspective of the employee at the time, rather than the reality of facts that were determined later.

Making Discipline Stick

Dolan Consulting Group staff have taken the findings from this research study and developed an evidence-based course to not only educate public employers about these five reasons for discipline reversals, but also provide strategies for ensuring that discipline is delivered in a fair manner that will stand up to external arbitrator review. Called Making Discipline Stick, this new course is designed to assist supervisors, human resources professionals, attorneys, agency executives, and union leaders in the public sector by increasing their knowledge about what most frequently causes discipline to be overturned. When arbitrators give a written justification for their decision, they often provide cautions or advice to the employer about how the case should have been handled. This course uses these very words and insights from the arbitrators to help public sector agencies improve the fairness of their disciplinary processes and increase the likelihood the employee discipline they hand down will remain in place after arbitrator review.

Conclusion

Research has firmly revealed that the vast majority of serious misconduct in public agencies is committed by a small number of “bad apple” employees, usually only about 5% of an agency’s employees. Unfortunately, due to five common errors, when corrective action and discipline is employed to address the conduct of these bad apples, this discipline is overturned about half of the time. As a result, the corrective action fails in its purpose, and sometimes the problem employee becomes more emboldened, believing that he or she is impervious to discipline from the employer.

In order to prevail when faced with external review by some sort of arbitrator, employers need to ensure that employee misconduct is investigated fairly and that punishment decisions are consistent with the rules followed by the courts and arbitrators. Employers need to ensure that their punishments given are consistent, fair, and proportionate to the severity of the misconduct. They need to ensure that they gather sufficient evidence to meet the “clear and convincing” evidentiary standard when dispensing suspensions or terminations. Employers need to observe and protect all of the employee’s due process, statutory, and contractual rights. They must also consider the employee’s prior work performance record and the facts of the case as they appeared to the employee at the time.

By taking the time necessary to ensure that these steps are followed, public sector leaders can improve the fairness of their employee disciplinary processes, and dramatically increase the likelihood that an arbitrator will fully support the employee discipline that is given – making discipline stick for the sake of the agency’s mission, the overwhelming majority of employees and the public they serve.

 

References

¹ Jacob, B. A., & Levitt, B. A. (2003). Rotten apples: an investigation of the prevalence and predictors of teacher cheating. The Quarterly Journal of Economics, 118(3), 843-877.

² American Association of University women (2001). Hostile Hallways. Washington, DC: AAUW Educational Foundation; Stein, N. D., Marshall, N. L., & Tropp, L. R. (1993). Secrets in Public: Sexual Harassment in Our Schools. Wellesley, MA: Wellesley Centers for Women.

³ Dugan, J. R., & Breda, D. R. (1991). Complaints about police officers: A comparison among types and agencies. Journal of Criminal Justice, 19, 165–171.

⁴ Harris, C. J. (2010). Pathways of Misconduct. Durham, NC: Carolina Academic Press.

⁵ Terrill, W., & Ingram, J. R. (2016). Citizen complaints against the police: an eight city examination. Police Quarterly, 19, 150-179.

⁶ Mesch, D. J. (1995). Grievance arbitration in the public sector. Review of Public Personnel Administration, 14(4), 22-36.; Mesch, D. J., & Shamayeva, O. (1996). Arbitration in practice: a profile of public sector arbitration cases. Public Personnel Management, 25(1), 119-132.

⁷ Blancero, D., & Bohlander, G. W. (1995). Minimizing arbitration “reversals” in discipline and discharge cases. Labor Law Journal, 46(10), 616-621; Bohlander, G. W., & Blancero, D. (1996). A study of reversal determinants in discipline and discharge arbitration awards: the impact of just cause standards. Labor Studies Journal, 21(3), 3-19; LaVan, H. (2007). Arbitration of discipline in the public sector: case characteristics and party behaviors predicting case outcomes. Journal of Collective Negotiations, 31(3), 199-214.

One could easily argue that the field of law enforcement is currently experiencing a legitimacy crisis in the United States. Gallup Poll data, the most reliable source of data we have, has shown that for the last several years, citizen confidence in their local police has been rather low. In the first quarter of 2016, only 58% of persons surveyed indicated that they had confidence in their local police. When asking only African-Americans, only 28% indicated that they had confidence in their local police. Compare this to 1968 when 77% of all Americans had confidence in their local police. Today, 40% of whites, and 73% of African-Americans believe that the police treat blacks and Hispanics less fairly than they do whites. Furthermore, 44% of all Americans currently rate the honesty and ethical standards of police officers as “low” or “very low.”¹ Clearly about half of Americans have less than favorable opinions of the police today, and these negative attitudes are even stronger among African-Americans.

What can be done to reverse this trend? This was the question we at the Dolan Consulting Group asked when we developed our Winning Back the Community course. We examined several decades of research related to citizen satisfaction with the police, reading through more than one hundred published studies. These studies have consistently revealed five factors that contribute to the development of citizen dissatisfaction with the law enforcement profession, which we cover in our Winning Back the Community course. The strongest predictor of dissatisfaction, however, is having personally had a prior negative contact with the police. Every published study of citizen satisfaction with the police has found this to be true, and the quality of prior police contacts makes up 50% of an individual’s attitude toward the police.²

What is a Negative Contact?

After learning that a negative police contact had such a significant impact on citizen confidence in all police, we sought to determine what constitutes a negative contact. We were able to find several studies that looked at citizen satisfaction within the context of specific types of police-public interactions. We located and reviewed four studies that examined citizen satisfaction with traffic stop encounters.³ We also reviewed two studies that involved non-crime calls for service, and five studies that surveyed the satisfaction of crime victims after they reported their victimization to the police.⁴ All eleven of these studies showed similar results. Across all studies, the following were the characteristics that reduce citizen satisfaction with police-citizen interactions:

• The officer yelled at me or spoke in an angry tone
• The officer was verbally abusive
• The officer swore at me or called me a derogatory term
• The officer was sarcastic or seemed uninterested in my problem
• The officer remained silent and didn’t try to answer my questions
• The officer called me by my first name or by a nickname

Across all of the studies, the factors that increased citizen satisfaction with police-citizen interactions included:

• The officer was courteous and polite
• The officer introduced himself and explained the reason for the interaction
• The officer called me “sir” or “ma’am,” or by my title and last name (i.e., “Mr. Johnson”)
• The officer listened to what I had to say and empathized with me
• The officer tried to help and explained the reason for his or her actions

 

No matter whether the person surveyed was a driver stopped for a traffic violation, a complainant in a disturbance call, or a victim of a crime, the results were the same. What mattered most to all of these citizens was how the officers spoke to them. Whether or not the officer was polite, spoke in a respectful manner, verbally showed sincere concern, and empathized were all more important to the citizen than response time, whether or not they received a ticket, whether or not their assailant was apprehended, or whether they got their stolen property back.

The research evidence is clear: citizen confidence and satisfaction in the police is influenced most by the quality of the citizen’s recent contacts with the police. The research is also clear that what matters most in whether or not these contacts are perceived as negative or positive by the citizen is the demeanor displayed by the officer. Officer demeanor with citizens, therefore, is of paramount importance. While officers’ displays of discourteous demeanor with the public are nothing new, the increased visibility of these poor interactions is new, and it is driving down confidence in the police nationwide. Due to the proliferation of camera phones and instant worldwide exposure via the internet, poor demeanor on the part of individual officers is instantly visible to everyone. The legitimacy of our profession may be suffering from a thousand little cuts caused by unnecessarily negative demeanor on the part of some officers.

Addressing Discourteous Officer Demeanor

While officer displays of discourteous demeanor have a significant impact on the public’s confidence in the police, research regarding citizen complaints has consistently revealed that officer discourtesy is the most common type of complaint filed.⁵ What can law enforcement leaders do to improve police-citizen contacts?

The first place to start would be training, as no officers should be held accountable for failing to do what they have not been properly equipped to do. Have you trained your officers how to deal with verbally confrontational citizens? Since it is a fact that officers are required to use their verbal communication skills thousands of times more often than their use of force skills, and more citizen complaints each year result from officer communication than occur from use of force, why do we spend so little time training for verbal communication under stress? Just like with our scenario-based Simunitions® or “Redman” training, officers should routinely be put through difficult communication scenarios and required to perform under stress. Physical presence and verbal commands are certainly part of the legitimate use of force tools available to officers, so verbal communication skills should be combined with other forms of scenario-based use of force training as physical force is not always the outcome of encounters with uncooperative citizens.

Verbal conflict training is crucial. Law enforcement-specific interpersonal communications training should be mandatory for all new officers, and made a part of continuous in-service training. The Dolan Consulting Group offers training in Surviving Verbal Conflict that teaches officers how to engage with difficult citizens and survive the encounter with their career, and the reputation of their agency, intact. In addition to formal training, short roll call training sessions can occur through the use of YouTube® videos. YouTube (sadly) has hundreds of example videos of police-citizen interactions that can be shown and evaluated at roll call. While most of these are examples of what not to do, there are a few examples of excellent officer demeanor and communication skills. These videos can be shown at roll call and then the shift supervisor can lead a brief discussion about what the officer did, what could have been done differently, and what their own agency’s expectations would be concerning this interaction.

After training, next come clear policies. Clear policies need to be established that specify how officers are to communicate with citizens when representing the agency. Such policies could require that officers, unless prohibited by an emergency situation, identify themselves and state the reason for the interaction with the citizen when detaining citizens or arriving at calls. Policies should outline the manner in which officers are to address citizens (i.e., “Ms. Smith” or “Ma’am”) and what types of references are forbidden (i.e., “bro” or “cuz”). Again, the Surviving Verbal Conflict course can assist personnel in outlining policies dictating verbal communication standards.

Finally, there is accountability. Considering the impact bad officer demeanor can have on overall citizen confidence with the police nationwide, it is important that officers know these complaints will be taken seriously. Repercussions for violating agency policies on interpersonal communication should first focus on correcting the behavior. This can be accomplished through additional training such as the formal training mentioned above, or having the officer repeat the complaint scenario in writing and with a trainer until the officer demonstrates proficiency in being able to handle the encounter within policy guidelines. When dealing with a toxic employee who ends up being resistant to corrective actions and re-training, progressive discipline (sometimes to the point of termination) may be necessary.

Conclusion

To improve citizen confidence with the police nationally, and in each individual community, law enforcement agencies need to emphasize training in interpersonal communication skills, help officers hone these skills, create policies that require use of these skills, and hold officers accountable when they fail to utilize these skills. The cumulative effect of unprofessional officer demeanor is not unlike the principles of the “broken windows” theory. Broken windows theory suggests that small signs of physical decay, if left unrepaired, lead to apathy among the area residents. This apathy eventually permits further physical decay, which signals to criminals that social norms are loosely enforced here, emboldening them to commit more crime in the area. Just like this chain of events eventually snowballs from a single broken window or abandoned car to open drug dealing and street shootings, perhaps a negative contact with the police is the first step toward the lack of support for the police that we are seeing today in so many communities.

When a single officer engages in unprofessional demeanor with a citizen, the research shows that this negatively impacts the attitude toward all police for that citizen, and any citizens who witnessed the encounter (including on the internet or in the news). If no negative repercussions are experienced by that officer for the event, that officer is emboldened to repeat the behavior in more interactions with citizens, and the officer’s peers are also emboldened to behave the same way when they see there are no consequences from their department. As this unprofessional demeanor spreads, it has a cumulative effect on the public as more and more citizens lower their impressions of law enforcement officers. If unprofessional demeanor is not addressed in a serious way, the law enforcement profession loses social capital among the general public and the media, and when high profile incidents occur – such as the lethal application of force – there is a lack of support and trust for the police.

 

References

¹ Jones, J. M. (June 19, 2015). In U.S., Confidence in the Police Lowest in 22 Years. Omaha, NE: Gallup. Available at: http://www.gallup.com/poll/183704/confidence-police-lowest-years.aspx

² See for example: Dai, M., & Johnson, R. R. (2009). Is neighborhood context a confounder?: Exploring the effects of citizen race and neighborhood context on satisfaction with the police. Policing: An International Journal of Police Strategies & Management, 32(4), 595-612; Reisig, M. D., & Parks, R. B. (2003). Neighborhood context, police behavior, and satisfaction with police. Justice Research and Policy, 5(1), 37-65; Wu, Y., Sun, I. Y., & Triplett, R. A. (2009). Race, class, and neighborhood context: Which matters more in measuring satisfaction with police? Justice Quarterly, 26(1), 125-156.

³ Johnson, R. R. (2004). Citizen expectations of police traffic stop behavior. Policing: An International Journal of Police Strategies and Management, 27(4), 487-497; Reisig, M. D., & Chandek, M. S. (2001). Effects of expectancy disconfirmation on outcome satisfaction in policecitizen encounters. Policing: An International Journal of Police Strategies and Management, 24(1), 88-99; Shelley, T. O., Hogan, M. J., Unnithan, N. P., & Stretesky, P. B. (2013). Public opinion and satisfaction with state law enforcement. Policing: International Journal of Police Strategies and Management, 36(4), 526-542; Skogan, W. G. (2005). Citizen satisfaction with police encounters. Police Quarterly, 8(3), 298-321; Woodhull, A. V. (1995). Police verbal responses form public image. Police Journal, 68(2), 155-158.

⁴ Johnson, R. R. (2012). Unpublished data from a survey for the Raleigh, North Carolina Police Department; Skogan, W. G. (2005). Citizen satisfaction with police encounters. Police Quarterly, 8(3), 298-321; Brandl, S. G., & Horvath, F. (1991). Crime victim evaluation of police investigative performance. Journal of Criminal Justice, 19(2), 109-212; Hirschel, D., Lumb, R., & Johnson, R. (1998). Victim assessment of the police response to burglary. Police Quarterly, 1(4), 1-20; Martin, M. E. (1997). Policy promise: community policing and domestic violence victim satisfaction. Policing: International Journal of Police Strategies and Management, 20(3), 519-531; Poister, T. H., & McDavid, J. C. (1978). Victims’ evaluation of police performance. Journal of Criminal Justice, 6(2), 133-149; Reisig, M. D., & Chandek, M. S. (2001). Effects of expectancy disconfirmation on outcome satisfaction in police-citizen encounters. Policing: An International Journal of Police Strategies and Management, 24(1), 88-99.

⁵ Terrill, W., & McCluskey, J. (2002). Citizen complaints and problem officers: Examining officer behavior. Journal of Criminal Justice, 30, 143-155; Harris, C. J. (2009). Exploring the relationship between experience and problem behaviors: A longitudinal analysis of officers from a large cohort. Police Quarterly, 12(2), 192-213.