For years, the New York City Police Department has reserved a place within the department that is widely known as the “rubber gun squad”. This “squad” is comprised of individual officers who cannot be put on the street to conduct normal police operations for a variety of reasons.

Many of the officers have been reinstated by an arbitrator or judge, but the department leadership cannot put them back on the street. Agency leaders have concerns about these officers’ ability and/or willingness to protect and serve in a safe manner, not to mention a potential lack of credibility in testifying in court due to past instances of dishonesty. So leaders conclude, “We can’t fire them, we can’t trust them on the street, so we’ll put them in the corner and have them wait out the clock until they retire.”

A 2011 investigative article by the New York Post estimated that the annual cost to taxpayers of keeping these individuals on the payroll was approximately $22 million.[1] Although a 2015 report by the New York Daily News indicated that these numbers were substantially reduced under Commissioner Bill Bratton down to 260 officers, the cost is still substantial.[2]

The NYPD is certainly not alone in this predicament, even though the nation’s largest municipal law enforcement agency’s rubber gun squad is probably the most famous. What often does not gain as much public attention is the fact that countless public safety agencies throughout the country are essentially hiding problem officers, firefighters and other public safety professionals in positions where they are believed to be least likely to trigger liability, threaten public safety and damage the public trust. What is particularly troubling is that many agencies hide these individuals in positions that should be reserved for the best of their personnel—recruiting, training and community relations. This extremely small percentage of agency personnel remain employed and persist in causing stress and strain for supervisors and often lower morale for fellow employees.

In cases like these, agencies should consider whether separation agreements are an effective way of dealing with toxic employees in a way that allows the agency to move forward.

What are Separation Agreements?

Although the terms of a particular agreement may vary, a separation agreement is typically entered into between the agency and the employee that agency leaders consider to be a “bad apple”. The basic terms of these agreements are simple—the employee waives his or her rights to arbitration or court claims related to their employment with the agency and in return the agency pays the employee to walk away from the agency.

For the agency, the thinking behind the agreement is fundamentally that:

• We have failed to thoroughly document this employee’s history of misconduct, have handed him or her annual “get out of jail free” cards in the form of positive performance evaluations, and are therefore unlikely to be successful in arbitration or in a court of law if we try to terminate this employee. This is because, as the saying goes, if it’s not in writing, then it didn’t happen.
• On the other hand, we have a professional and ethical responsibility to prevent this individual from serving in a position where his or her misconduct could result in danger to co-workers and members of the public and the loss of public trust that accompanies it.

Are Separation Agreements Actually Being Utilized by Public Safety Agencies?

Throughout the nation, some public safety agencies are utilizing these agreements. They can be used immediately following a termination decision—in anticipation of a lengthy battle in arbitration or in court—or after an order of reinstatement has come from a court or arbitrator. A few recent examples include:

• In 2017, a terminated Seattle police officer agreed to accept $100,000 to waive her right to challenge her termination before an arbitrator.[3]
• In 2016, an Illinois firefighter agreed to accept $100,000 to waive his right to challenge his termination before an arbitrator.[4]
• In 2017, a Montana deputy accepted $400,000 to waive his right to return to work after he was ordered to be reinstated by a judge.[5]
• In 2017, a Rhode Island firefighter accepted $175,000 to waive his right to return to work after he was order to be reinstated by an arbitrator.[6]

In all of the above cases, the governmental decision-makers publicly argued that it was in the agency’s best interest to pay the financial price necessary to move forward without the employee in question retaining the profound responsibilities of a public safety professional. Obviously, since all of these public safety employees were terminated, it is at least the position of their former employers that they are not fit to serve the community as first responders.

Possibly more common than opting for separation agreements are agency leaders who openly acknowledge that they wanted the employee fired but have capitulated due to the fear of reinstatement. It seems difficult to overstate how damaging it can be to the public trust for leaders to acknowledge that they believe an individual is unfit to serve but they continue to serve nonetheless.

Not a “Magic Bullet”

Separation agreements seem to be an underappreciated option at the disposal of frustrated agency leaders who feel helpless in the face of arbitrators and judges who have, or seem poised to, reinstate individuals that they feel pose some threat to the public and agency members. Leaders are prone to protesting that they believe that arbitrators, in particular, go out of their way to reinstate officers even in the face of clearly egregious misconduct. They often feel powerless in determining the composition of the ranks that they lead.

Without either confirming nor challenging this common assertion, the fundamental question emerges: what options to agency leaders have when they believe that they have an obligation to remove a “bad apple” from their ranks? First, they can tolerate the behavior and seek to minimize it by “hiding” the employee to the extent possible. Second, they can terminate the employee with the knowledge that arbitrators or courts might well overturn their decision.  But third, they can negotiate with the employee to separate from the agency in a way that sticks—a way that is contractual and legally binding.

The first two options—either tolerating or terminating and “rolling the dice”—have certainly been tried by public safety leaders throughout the country. And the third option of separation agreements generally involves the payment of substantial sums of money.

But how expensive is it to pay the salary of a public safety professional who could cost the agency millions of dollars at any moment? It seems that agency leaders would be well served to at least consider separation agreements as a less-than-perfect but hopefully better-than-disastrous third option.

About the Author

Matt Dolan is a licensed attorney who specializes in training and advising public safety agencies in matters of legal liability. His training focuses on helping agency leaders create sound policies and procedures as a proactive means of minimizing their exposure to costly liability. A member of a law enforcement family dating back three generations, he serves as both Director and Public Safety Instructor with Dolan Consulting Group.

His training courses include Recruiting and Hiring for Law Enforcement, Confronting the Toxic Officer, Performance Evaluations for Public Safety, Making Discipline Stick®, and Supervisor Liability for Public Safety.

[1] https://nypost.com/2011/03/20/outcast-cops-still-rake-it-in/

[2] http://www.nydailynews.com/new-york/nyc-crime/exclusive-nypd-disciplinary-process-bad-cops-revamping-article-1.2162759

[3] https://www.seattletimes.com/seattle-news/crime/city-attorney-defends-settlement-payment-to-seattle-cop-fired-over-golf-club-arrest/

[4] http://www.chicagotribune.com/suburbs/daily-southtown/news/ct-sta-oak-lawn-settlement-st-1131-20161202-story.html

[5] https://www.bozemandailychronicle.com/news/crime/fired-gallatin-county-deputy-settles-civil-cases-for-k/article_9d1f3981-df2e-5550-98a9-8425196c9221.html

[6] http://www.newportri.com/a0da0e57-1845-5d28-ba7b-a07cff80957b.html

Broken performance evaluation systems damage public safety agencies across the country in two ways. First, they inaccurately give positive documentation to officers that are later used to reverse important disciplinary decisions in court or in arbitration. Second, by selecting “meets expectations,” supervisors are denying performance merits to officers who have earned much greater recognition.

More often than not, it seems that supervisors view the completion of annual performance evaluations to be a tedious chore that they have to undertake once a year with little genuine regard for why we are conducting these evaluations and how they are helping the subordinate, the supervisor or the agency.

This dim view of performance evaluations by supervisors often results from four fundamental problems in the process. So, as public safety professionals, you may want to ask yourself if these common mistakes are harming your agency operations.

1—The Evaluation criteria has no real relationship to day-to-day job responsibilities.

Often the criteria by which officers, deputies, firefighters and other public safety personnel are “graded” is so generic as to be seen as meaningless. These criteria could often apply to the personnel in parks and recreations, the public library or any other facet of government—all important jobs but ones that have no nuts and bolts similarities to the work of a police officer or firefighter. In fact, some local governments essentially create city-wide or county-wide evaluation forms that inevitably fail to take into account the unique “nuts and bolts” of the various jobs included under that umbrella.

If you want your evaluations to be a meaningful communication of how well a patrol officer is coming along (where they have room for improvement and areas where they should keep up the good work) then the criteria should be directly related to their unique job description. Furthermore, ask the question: what do our patrol sergeants expect to see from their people on a given shift? Those are the criteria that should be reflected on the evaluation forms rather than generic categories that essentially amounts to “gets along well with others.”

 2—Requiring Additional Documentation Based on the Quality of the “Grade” Given

Most men and women drawn to public safety are not in it for the paperwork. They already feel that they are buried in administrative tasks as it is. Why would we communicate to them that a “needs improvement” grade or an “exceeds expectations” grade will trigger a new round of paperwork assignments while a “meets expectations” grade requires basically no documented justification whatsoever? The unintended consequence of such a system is to encourage supervisors to “circle down the middle”—regardless of the subordinate’s performance—in order to avoid documentation that is not only time-consuming but requires the supervisor to recall specific incidents of misconduct or exemplary work spanning 12 months.

If you want to require documentation to support ratings, consider requiring the same amount of documentation regardless of the quality of the grade. The desire to avoid paperwork is a powerful incentive to overlook performance problems as well as excellence. Removing that inherent incentive to “circle down the middle” may be a necessity.

3—Averaging Scores Across the Board

There are some areas of public safety work that are essential to an individual’s ability to safely fulfill their obligation to the agency and the community. And a severe deficiency in one area does not necessarily mean that there are similar deficiencies across other areas of daily work performance.  However, an overall positive evaluation may well be an inaccurate reflection of the fact that the severe deficiency in one particular area could result in significant discipline, including termination, if there is not substantial improvement.

For instance, a patrol deputy could show up promptly for every shift in appropriate attire, show pro-activity in initiating stops for serious traffic violations, respond promptly to calls for service and do so with little or no complaints from the public as a result of the fact that he is professional in his dealings with the public. The only problem is that he is a dangerously incompetent driver. He “needs improvement” in his skills as a driver and his accidents and close calls are duly documented on his performance evaluation. But his overall grade as a deputy is “meets expectations” due to his proficiency in other areas.

Can an individual’s deficiencies in a key safety area be so significant that an overall “meets expectations” is not a fair reflection of their need to address performance issues? Furthermore, could these deficiencies be so significant in one key area that it is unethical for an agency to allow him to remain employed in his current capacity without substantial improvement? It seems obvious that the answers to these questions is a clear yes.

If you want to give individuals a general sense of how they are performing overall, while they may exceed expectations in some areas but need improvement in others, consider the caveat that a “needs improvement” in particular key areas renders an overall grading of “meets expectations” as an impossibility. Fundamentally, a patrol deputy is expected to demonstrate proficiency in following lawful directives, driving ability, firearms proficiency, professional communication with the public and adherence to protocol related to officer safety in making stops and responding to calls for service. It would seem impossible that a deputy could consistently fail in one of these areas while simultaneously meeting a supervisor’s standards set forth for the position of deputy. Your evaluations should reflect this common-sense reality.

 4—Tying Merit Pay Raises to Obtaining a Particular Grade

The idea of tying pay raises to performance sounds like a good one. Well-intentioned local political leaders are often enthusiastic to pass rules and legislation requiring, for instance, that only those who “exceed expectations” in their performance be justly rewarded with a pay raise. They assume this will encourage public safety personnel to strive for excellence and ensure that excellence is rewarded.  The reality tends to be starkly different.

Very quickly, merit pay raises are seen by those within the agency as an overdue pay raise for all department members. Therefore, a supervisor’s decision to indicate anything lower than “exceeds expectations” is nothing short of taking money out of somebody’s pocket. The reluctance of supervisors to accurately identify performance problems in this environment is often predictable.  Supervisors often reason that, “I know she’s not getting the job done and she’s causing more problems than she solves when she’s working…but we haven’t had a pay increase in five years and I’m not going to take money out of her pocket”. 

So, an employee who is the source of constant problems now has a piece of paper from her subordinate stating that she is doing great. And that piece of paper may well become very relevant if the agency decides to deny her a promotion, suspend her or even terminate her at some point in the future. “If she’s been such a problem”, the argument will be in court or in arbitration, “then why did the agency consistently grade her as an excellent employee?”

If there is funding available for merit pay raises, agency leaders should consider advocating an across the board pay increase in light of the nation-wide prominence of the unintended consequences associated with tying pay increases to positive performance evaluations. Inflating evaluation grades across the agency can have extremely detrimental effects when agency leaders attempt to make disciplinary decisions down the road.