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Chapter 13

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1. What is the definition of ethics? Give examples of relative and absolute ethics.

2. What is the meaning of gratuity in the context of police agencies? Why might police officers be permitted to accept them, per the model developed by Withrow and Dailey?

3. In what ways can judges, defense attorneys, and prosecutors engage in unethical behaviors?

4. How may corrections officers be unethical?


Chapter 14

1. What major occurrences accompanied the early development of labor relations in the criminal justice system?

2. What are some of the main principles of shared governance involving the “navigating the waters” of unionization?

3. What are the three basic models used in the states to decide whether and which public sector employees will have collective bargaining rights? How does each of these models operate?

4. What are some of the major disciplinary policies that need to be maintained?  Accepting and dealing with citizen complaints? Maintaining due process requirements?

5. What is positive (progressive) discipline? What would be an example of how it functions? 


Chapter 15

1. Review some of the recent effects of the nation’s fiscal crisis on police, courts, and corrections organizations.

2. Discuss the definition of a budget and its uses.

3. Discuss what is involved in each of the four steps of a budgeting cycle.

4. Identify the potential pitfalls in budgeting issues that criminal justice administrators must address.

13 As the late U.S. attorney general and U.S. Senator Robert Kennedy once informed a law school class where he was guest lecturing, by the time one reaches the point of being a college or university student, hopefully he or she (and, it might be added, everyone who is studying the field of criminal justice) will have a deeply ingrained desire to practice exemplary and ethical behavior. Ethical behavior is often emphasized in postsecondary education in the form of instructors explaining the need for academic honesty. Later, at some point in your life, it will likely be emphasized in terms of how you are to conduct yourself in terms of dealing with others as well as perhaps with the property and responsibility that has been entrusted to you.

“Character,” it might be said, “is who we are when no one is watching.” Unfortunately, character cannot be trained at the police or corrections academy, or in law school, or given to someone intravenously, or in a pill. Character and ethical conduct, for criminal justice personnel, means that they would never betray their oath of office, their public trust, or their badge. Indeed, as is indicated by several practitioners in boxed exhibits throughout this book, character and ethics are sine qua non for these persons—without those attributes, nothing else matters. These qualities constitute the foundation of their occupation and will certainly affect the manner in which they carry out their public safety duties.

At its root, then, criminal justice administration is about people and activities; in the end, the primary responsibilities of administrators involve monitoring subordinates’ activities to ensure that they act correctly relative to their tasks and responsibilities and that these duties and responsibilities are carried out in an acceptable and effective manner. Therefore, this chapter is essentially concerned with what constitutes correct behavior in the administration of criminal justice. Individuals and organizations have standards of conduct. To understand organizations, it is important to comprehend these standards and their etiology.

The chapter opens with a glimpse into the kinds of ethical situations criminal justice employees experience, providing three scenarios based on actual cases. Then, we discuss ethics in general, reviewing philosophical foundations and types of ethics. Next, we examine ethics in policing. Because of the nature of their contacts with the public and the unique kinds of vices, crimes, and temptations to which they are directly exposed, the police are given a high degree of attention; included here are problems such as the “slippery slope,” lying and deception, the receipt of gratuities, and greed and temptation. Also emphasized and examined here is a relatively new and powerful—and possibly career-ending—area of police ethics, which is an outgrowth of the U.S. Supreme Court’s decision in Brady v. Maryland.1 We then also examine ethical considerations as they apply to courts and corrections organizations.

This chapter contains more than a dozen case studies and ethical dilemmas to challenge the reader as well as a consideration of the value of organizational loyalty. The chapter concludes with review questions and exercises in the Deliberate and Decide, Learn by Doing, and Case Study sections.

Ethics, Generally

Philosophical Foundations

The term ethics is rooted in the ancient Greek idea of character. Ethics involves moral principles and behavior, based on ideas about what is morally good and bad, doing what is right or correct, and how people should behave in their professional capacity.

A central problem with understanding ethics is the question of “whose ethics” or “which right.” This becomes evident when one examines controversial issues, such as the death penalty, abortion, use of deadly force, and gun control. How individuals view a particular controversy largely depends on their values, character, or ethics. Both sides on controversies such as these believe that they are morally right. These issues demonstrate that to understand behavior, the most basic values must be examined and understood.

Another area for examination is that of deontological ethics, which does not consider consequences, but instead examines one’s duty to act. The word deontology comes from two Greek roots: deos, meaning duty, and logos, meaning study. Thus, deontology means the study of duty. When police officers observe a violation of law, they have a duty to act. Officers frequently use this as an excuse when they issue traffic citations that appear to have little utility and do not produce any great benefit for the rest of society. For example, when an officer writes a traffic citation for a prohibited left turn made at 2 o’clock in the morning when no traffic is around, the officer is fulfilling a departmental duty to enforce the law. From a utilitarian standpoint (where we judge an action by its consequences), however, little, if any, good was achieved. Here, duty, and not good consequence, was the primary motivator.

Immanuel Kant, an eighteenth-century philosopher, expanded the ethics of duty by including the idea of good will. People’s actions must be guided by good intent. In the previous example, the officer who wrote the traffic citation for an improper left turn would be acting unethically if the ticket was a response to a quota or some irrelevant motive. On the contrary, if the citation was issued because the officer truly believed that it would result in something good, it would have been an ethical action.

Some people have expanded this argument even further. Richard Kania4 argued that police officers should be allowed to accept gratuities because such actions would constitute the building blocks of positive social relationships between the police and the public. In this case, duty is used to justify what under normal circumstances would be considered unethical. Conversely, if officers take gratuities for self-gratification rather than to form positive community relationships, then the action would be considered unethical by many.

Types of Ethics

Ethics usually involves standards of fair and honest conduct—what we call conscience, the ability to recognize right from wrong—and actions that are good and proper. There are absolute ethics and relative ethics. Absolute ethics has only two sides: something is good or bad, black or white; in other words, certain acts are inherently right or wrong in themselves, irrespective of one’s culture. Some examples in police ethics would be unethical behaviors such as bribery, extortion, excessive force, and perjury, which nearly everyone would agree are unacceptable behaviors by the police.

Relative ethics is more complicated because here judgments of what acts are good and bad are relative to the individual or culture and thus can depend on the end or outcome of an action or one’s culture; here, what is considered ethical behavior by one person or culture may be deemed highly unethical by someone else. Not all ethical issues are clear-cut, however, and communities do seem willing at times to tolerate extralegal behavior if a greater public good is served, especially in dealing with problems such as gangs and the homeless. This willingness on the part of the community can be conveyed to the police. A community’s acceptance of relative ethics as part of criminal justice may send the wrong message: that there are few boundaries placed on justice system employees’ behaviors and that, at times, “anything goes” in their fight against crime. As John Kleinig5 pointed out, giving false testimony to ensure that a public menace is “put away” or the illegal wiretapping of an organized crime figure’s telephone might sometimes be viewed as necessary and justified, though illegal. Another example is that many police officers believe they are compelled to skirt the edges of the law—or even violate it—to arrest drug traffickers. The ethical problem here is that even if the action could be justified as morally proper, it remains illegal. For many persons, however, the protection of society overrides other concerns.

This viewpoint—the principle of double effect—holds that when one commits an act to achieve a good end and an inevitable but intended effect is negative, the act might be justified. A long-standing debate has raged about balancing the rights of individuals against the community’s interest in calm and order.

These special areas of ethics can become problematic and controversial when police officers use deadly force or lie and deceive others in their work. Police can justify a whole range of activities that others may deem unethical simply because the consequences result in the greatest good for the greatest number—the utilitarian approach. If the ends justified the means, perjury would be ethical when committed to prevent a serial killer from being set free to prey on society. In a democratic society, however, the means are just as important as, if not more important than, the desired end.

The community—and criminal justice administrators—cannot tolerate completely unethical behavior, but they may seemingly tolerate extralegal behavior if it serves a greater public good.

It is no less important today than in the past for criminal justice employees to appreciate and come to grips with ethical considerations. Indeed, ethical issues in policing have been affected by three critical factors:6 (1) growing level of temptation stemming from illicit drug trade, (2) potentially compromising nature of the organizational culture—a culture that can exalt loyalty over integrity, with a “code of silence” that protects unethical employees, and (3) challenges posed by decentralization (flattening the organization and pushing decision making downward) through the advent of community-oriented policing and problem-solving (discussed in Chapter 4).

Noble Cause Corruption

Bending the Rules

When relative ethics and the principle of double effect, described above, are given life and practiced in overt fashion by the police, the situation is known as noble cause corruption—what Thomas Martinelli7 defined as “corruption committed in the name of good ends, corruption that happens when police officers care too much about their work.” This viewpoint is also known as the principle of double effect. As noted above, it holds that when an act is committed to achieve a good end (such as an illegal search) and an inevitable but intended effect is negative (the person who is searched eventually goes to prison), the act might still be justified.

Although noble cause corruption can occur anywhere in the criminal justice system, we might look at the police for examples. Officers might bend the rules, such as not reading a drunk person his rights or performing a field sobriety test; planting evidence; issuing “sewer” tickets—writing a ticket but not giving it to the person, resulting in a warrant issued for failure to appear in court; “testilying”; or “using the magic pencil,” where police officers write up an incident in a way that criminalizes a suspect (this is a powerful tool for punishment). Noble cause corruption involves a different way of thinking about the police relationship with the law; here, officers operate on a standard that places personal morality above the law, become legislators of the law, and act as if they are the law.8

Such activities can be rationalized by some officers; however, as a Philadelphia police officer put it, “When you are shoveling society’s garbage, you gotta be indulged a little bit.”9

Nonetheless, when officers participate in such activities and believe that the ends justify the means, they corrupt their own system.

Challenges for Administrators, Managers, and Supervisors

Obviously, the kinds of ends-justify-means noble cause behaviors that are mentioned above often involve arrogance on the part of the police and ignore the basic constitutional guidelines their occupation demands. Administrators and middle managers must be careful to take a hard-line view that their subordinates always tell the truth and follow the law. For their part, when red flags surface, supervisors must look deep for reasons behind this sudden turn of events and make reasonable inquiries into the cause.10 They must not fail to act, lest noble cause corruption be reinforced and entrenched; their inability to make the tough decisions that relate to subordinate misconduct can be catastrophic.

A supervisory philosophy of discipline based on due process, fairness, and equity, combined with intelligent, informed, and comprehensive decision making, is best for the department, its employees, and the community. This supervisory philosophy demonstrates the moral commitment employees look for in their leaders and the type that is expected in police service.11

Having defined the types of ethics and some dilemmas, we will now discuss in greater detail some of the ethical issues faced by police leaders and their subordinat

Ethics in Policing

The Root of the Problem: Greed and Temptation

Edward Tully12 underscored a vast amount of temptation that confronts today’s police officers and what police leaders must do to combat it:

Socrates, Mother Teresa, or other revered individuals in our society never had to face the constant stream of ethical problems of a busy cop on the beat. One of the roles of police leaders is to create an environment that will help an officer resist the temptations that may lead to misconduct, corruption, or abuse of power. The executive cannot construct a work environment that will completely insulate the officers from the forces that lead to misconduct. The ultimate responsibility for an officer’s ethical and moral welfare rests squarely with the officer.

Most citizens have no way of comprehending the amount of temptation that confronts today’s police officers. They frequently find themselves alone inside retail business stores after normal business hours, clearing the building after finding an open door or window. A swing or graveyard shift officer can easily obtain considerable plunder on these occasions, acquiring everything from clothing to tires for his or her personal vehicle. At the other end of the spectrum is the potential for huge payoffs from drug traffickers or other big-money offenders who will gladly pay the officer to look away from their crimes. Some officers, of course, find this temptation impossible to overcome.

Exhibit 13.1 Misfortune in Ferguson: The Justice Department Findings

The U.S. Department of Justice investigation of the city of Ferguson, Missouri, found a policing strategy built around writing tickets and assessing fines and fees in order to feed the city budget. The police chief was routinely urged to generate more revenue through enforcement. Officers sometimes wrote six, eight, as many as fourteen citations for a single encounter. In one four-year span of time, approximately 90,000 citations and summonses were issued for municipal violations (the city had a population of about 21,000, about 25% of whom were African American). Indeed, there were outstanding warrants for more than two-thirds of the city’s citizens. Citations were written with abandon and racial discrimination abounded; African Americans accounted for 95 percent of “Manner of Walking in Roadway” and 94 percent of “Failure to Comply” charges. One charge, “Making a False Declaration,” was issued to a man for giving his first name as “Mike” instead of “Michael,” while another was charged for not wearing a seat belt even though he was seated in a parked car. The city’s municipal court was actually run by the chief of police, and thus did not act as a neutral arbiter of the law or a check on unlawful police conduct.13

What factors contributed to this state of affairs?

If you were hired as the city’s new police chief, what would you do in terms of training, policies, and changing agency culture to right this ship? (Referring Chapters Chapters 4–6 will be helpful.)

A Primer: The Oral Interview

During oral interviews for a position in policing, applicants are often placed in a hypothetical situation that tests their ethical beliefs and character. For example, they are asked to assume the role of a police officer who is checking on foot an office supplies retail store that was found to have an unlocked door during early morning hours. On leaving the building, the officer observes another officer, Smith, removing a $300 writing pen from a display case and placing it in his uniform pocket. What should the officer do?

This kind of question commonly befuddles the applicant: “Should I ‘rat’ on my fellow officer? Overlook the matter? Merely tell Smith never to do that again?” Unfortunately, applicants may do a lot of “how am I supposed to respond” soul-searching and second-guessing with these kinds of questions.

Bear in mind that criminal justice agencies do not wish to hire someone who possesses ethical shortcomings; it is simply too potentially dangerous and expensive, from both the perspectives of potential litigation and morality, to take the chance of bringing someone who is corrupt into an agency. That is the reason for such questioning and a thorough background investigation of applicants.

Before responding to a scenario like the one concerning Officer Smith, the applicant should consider the following issues: Is this likely to be the first time that Smith has stolen something? Don’t the police arrest and jail people for this same kind of behavior?

In short, police administrators should never want an applicant to respond that it is acceptable for an officer to steal. Furthermore, it would be incorrect for an applicant to believe that police do not want an officer to “rat out” another officer. Applicants should never acknowledge that stealing or other such activities are to be overlooked.

Accepted and Deviant Lying

In many cases, no clear line separates acceptable and unacceptable behavior. The two are separated by an expansive gray area that comes under relative ethics. Some observers have referred to such illegal behavior as a slippery slope. People tread on solid or legal ground, but at some point slip beyond the acceptable into illegal or unacceptable behavior.

Criminal justice employees lie or deceive for different purposes and under varying circumstances. In some cases, their misrepresentations are accepted as an integral part of a criminal investigation; in other cases, they are viewed as violations of law. David Carter14 examined police lying and perjury and developed a taxonomy that centered on a distinction between accepted lying and deviant lying. Accepted lying includes police activities intended to apprehend or entrap suspects. This type of lying is generally considered to be trickery. Deviant lying, on the contrary, refers to officers committing perjury to convict suspects or being deceptive about some activity that is illegal or unacceptable to the department or the public in general.

Deception has long been practiced by the police to ensnare violators and suspects. For many years, it was the principal method used by detectives and police officers to secure confessions and convictions. Accepted lying is that allowed by law and, to a great extent, is expected by the public. Gary Marx15 identified three methods used by police to trick a suspect: (1) performing an illegal action as part of a larger, socially acceptable, and legal goal; (2) disguising the illegal action so that the suspect does not know it is illegal; and (3) morally weakening the suspect so that the suspect voluntarily becomes involved. The courts have long accepted deception as an investigative tool. For example, in Illinois v. Perkins,16 the U.S. Supreme Court ruled that police undercover agents are not required to administer the Miranda warning to incarcerated inmates when investigating crimes. Lying, although acceptable by the courts and the public in certain circumstances, results in an ethical dilemma. It is a dirty means to accomplish a good end; the police use untruths to gain the truth relative to some event.

In their taxonomy of lying, Barker and Carter17 identified two types of deviant lying: lying that serves legitimate purposes and lying that conceals or promotes crimes or illegitimate ends. Lying that serves legitimate goals occurs when officers lie to secure a conviction, obtain a search warrant, or conceal omissions during an investigation. Barker18 found that police officers believe that almost one-fourth of their agency would commit perjury to secure a conviction or to obtain a search warrant. Lying becomes an effective, routine way to sidestep legal impediments. When left unchecked by supervisors, managers, and administrators, lying can become organizationally accepted as an effective means to nullify legal entanglements and remove obstacles that stand in the way of convictions. Examples include using the services of nonexistent confidential informants to secure search warrants, concealing that an interrogator went too far, coercing a confession, or perjuring oneself to gain a conviction.

Lying to conceal or promote criminality is the most distressing form of deception. Examples range from lying by the police to conceal their use of excessive force when arresting a suspect to obscuring the commission of a criminal act.

“Brady Material”

Consider the following scenario:

At the end of his duty shift, Officer Jones acknowledges a dispatch to assist an animal control unit that is struggling to pick up a large, vicious dog. Because he has social plans after work and believes the incident to be minor in nature, Jones opts instead to drive to the police station and leave for home. The animal control officer, thus acting alone, incurs a number of severe dog bites, $10,000 in medical costs (she has medical insurance), the loss of 2 weeks’ work, and potential long-term injuries. As a result, Jones is contacted by his supervisor to justify his lack of response; he explains that he was en route to the call, but was diverted by seeing what he felt was a robbery in progress that needed “checking out” (no robberies were reported). Largely owing to the animal control officer’s injuries, the matter is referred to the department’s Internal Affairs (IA) office for investigation. Upon being questioned, Jones initially lies to IA investigators, but when pressed for specifics concerning the alleged robbery, Jones finally admits that he thought the dog call was a minor problem and opted to ignore it. He is given 2 weeks’ leave without pay, and placed on a performance review for 6 months.

To Officer Jones, this matter may seem to be ended, a lesson learned for the future. In truth, however, Jones has possibly opened a can of worms from which his career may never recover. Jones lied to both his supervisor and the IA investigators. Police officers are first and foremost required to tell the truth; to do any less can be career-ending. An officer with credibility issues is unable to make cases because he or she can no longer testify effectively in court from that point forward. His or her department is required to advise the prosecutor’s office of this issue—and the prosecutor is required to disclose it to the defense—in every criminal case in which Jones will testify during the remainder of his career. Furthermore, Jones may well have to endure the following type of cross-examination and/or closing argument by the defense attorney:

Ladies and gentlemen of the jury, as you consider the testimony of Officer Jones, whom the prosecution has called as its witness, it is my duty to inform you that you are being asked to believe the testimony of an officer who will lie in his reports.

To further sully Jones’ reputation, the prosecutor’s office may also inform the chief of police or sheriff that they will not take any future cases in which Jones was a witness.19

Questions for you to consider:

What internal (department level, per agency policies and procedures) punishment, if any, would you deem appropriate for Jones in this incident?

(Looking at information presented in Chapter 9, on civil liability): Assume the animal control officer files a civil suit against the city and Jones for his negligence, seeking (1) compensatory damages (medical costs, pain and suffering, loss of wages, etc.) and (2) punitive damages (money due to Jones’ acting in a wanton, malicious, vindictive, or oppressive manner). How much is the animal control officer due?

Such is the current status of policing, a result of Brady v. Maryland (1963),20 with one large Western police agency recently discovering more than 135 of its officers having potential Brady problems in a disciplinary case.21 Brady was convicted of first-degree murder and sentenced to death. He testified at trial about his participation in the crime, but also stated that his companion, Boblit, was the actual murderer. Before trial, Brady’s attorney had requested to see Boblit’s statements. The government provided some of his statements, but did not turn over those in which Boblit actually admitted to the murder. Brady was convicted, and later his attorney, then knowing of Boblit’s statement admitting guilt, filed an appeal. The U.S. Supreme Court stated that Brady was entitled to obtain and use Boblit’s statement, and that the government’s failure to provide the statement amounted to a denial of his right to due process.

Brady thus established that in a criminal case the accused has a right to any exculpatory evidence (sometimes termed “Brady material,” i.e., any evidence in the government’s possession that is favorable to the accused and is material to either guilt or punishment).

Prosecutors

must, therefore, disclose to the defense all exculpatory evidence.22

Today many police agencies take the “Brady officer” matter quite seriously, training officers about its existence, sanctions, and ramifications. They are generating policies and procedures that address this issue, explaining that the agency may be placed in a position where the officer’s termination is the only appropriate outcome.

Finally, agencies are encouraged to review all officers’ personnel files to determine if any of them has a disciplinary history that would seriously impeach his or her credibility as a witness. Any such information should also be made available to the prosecutor before such officers are allowed to testify in a criminal prosecution.23

Gratuities: A Model for Gauging Degrees of Corruption

Gratuities are complimentary gifts of money, services, or something of other value given by one party to another. In policing, on-duty officers are often provided free or reduced-price meals and drinks by restaurants and convenience stores, and some businesses offer officers discounts on services or merchandise. While some agencies consider the offer of gratuities to be simple gestures to reward officers for their (often thankless) tasks, other departments prohibit all such gifts and discounts. In either case, agencies must spell out clearly—and enforce—what its views and practices will be regarding the receipt of gratuities.

There are two basic arguments against police acceptance of gratuities. First is the slippery slope argument, discussed earlier, which proposes that gratuities are the first step in police corruption. This argument holds that once gratuities are received, police officers’ ethics are subverted and they are open to additional breaches of their integrity. In addition, officers who accept minor gifts or gratuities are then obligated to provide the donors with some special service or accommodation. Furthermore, some propose that receiving a gratuity is wrong because officers are receiving rewards for services that, as a result of their employment, they are obligated to provide. That is, officers have no legitimate right to accept compensation in the form of a gratuity. If the police ever hope to be accepted as members of a full-fledged profession, then they must decide whether accepting gratuities is a professional behavior or not.

Police officers who solicit and receive free gifts were categorized by the Knapp Commission in New York City as either “grass-eaters” or “meat-eaters.”24 Grass-eaters are officers who freely accept gratuities and sometimes solicit minor payments and gifts. Meat-eaters, on the contrary, spend a significant portion of the workday aggressively seeking out situations that can be exploited for financial gain. These officers are corrupt and are involved in thefts, drugs, gambling, prostitution, and other criminal activities.

At least in some cases, it seems that taking gratuities may be the first step toward corruption. Gratuities do indeed provide a slippery slope from which officers can easily slide into corruption. The problem is that many officers fail to understand when and where to draw the line. In a different light, one writer25 argues that retail store and restaurant owners often feel indebted to the police and that gratuities provide an avenue of repayment. Thus, gratuities result in social cohesion between the police and business owners, and the acceptance of gratuities does not necessarily lead to the solicitation of additional gratuities and gifts or corruption.

Withrow and Dailey26 recently offered a uniquely different viewpoint on gratuities. They propose a model of circumstantial corruptibility, stating that the exchange of a gift is influenced by two elements: the role of the giver and the role of the receiver. The role of the giver determines the level of corruptibility; in this model, the giver is either taking a position as a

presenter, who offers a gift voluntarily without any expectation of a return from the receiver;

contributor, who furnishes something and expects something in return;

capitulator, who involuntarily responds to the demands of the receiver.

The role of the receiver of the gift is obviously very important as well in the model; the receiver can act as

an acceptor, who receives the gift humbly and without any residual feelings of reciprocity;

an expector, who looks forward to the gift and regards it as likely to be given, and will be annoyed by the absence of the gift;

a conqueror, who assumes total control over the exchange and influence over the giver.

The function of the model, Withrow and Dailey argue, is centered on the intersection of the giver and the receiver; for example, when the giver assumes the role of the presenter and the receiver is the acceptor, the result is a giving exchange and corruption does not occur. However, if the giver and the receiver occupy other roles, corruptibility can progress to higher levels of social harm, which they term hierarchy of wickedness. Bribery results when something of value is given and the giver expects something in return, while the receiver agrees to make his or her behavior conform to the desires of the giver. This model is not clear-cut, however, because the confusion of roles between givers and receivers is inevitable.27

Withrow and Dailey’s model is distinguishable from Kania’s view, discussed above, that the police should be encouraged to accept minor gratuities to foster good relations; rather, Withrow and Dailey encourage the police to consider the role of the giver as well as their own intentions when deciding whether or not to accept a gratuity. In certain circumstances, the exchange of any gratuity is ethical or unethical regardless of its value.28

Figure 13-1 is an example by the U.S. Department of Justice concerning gratuities.

Figure 13-1 U.S. Department of Justice Gratuities Policy

U.S. Dept. of Justice Policy on Gifts and Entertainment

An employee may not solicit or accept a gift given because of his official position or from a prohibited source to include anyone who:

Has or seeks official action or business with the Department;

Is regulated by the Department;

Has interests that may be substantially affected by the performance of an employee’s official duties; or

Is an organization composed mainly of persons described above.

An employee may accept:

Gifts based on a personal relationship when it is clear that the motivation is not his official position.

Gifts of $20 or less per occasion, not to exceed $50 in a year from one source.

Discounts and similar benefits offered.

Most genuine awards and honorary degrees.

Free attendance, food, refreshments and materials provided at a conference or widely attended gathering which an employee attends in his official capacity, with approval.

Gifts based on an outside business relationship, such as travel expenses related to a job interview.

—U.S. Department of Justice.

Source: Adapted from U.S. Department of Justice, “Gifts and Entertainment,” https://www.justice.gov/jmd/gifts-and-entertainment#outside.

Training, Supervision, and Values

Another key element of ethics in policing is the recruitment and training of police personnel. Formal training programs in ethics can help to ensure that officers understand their department’s code of ethics, elevate the importance of ethics throughout the agency, and underscore top management’s support. It is imperative that police administrators see that applicants are thoroughly tested, trained, and exposed to an anticorruption environment by proper role modeling.

No supervision of police officers, no matter how thorough and conscientious, can keep bad cops from doing bad things. There are simply too many police officers and too few supervisors. If there is not enough supervision, then the bad cop will not be afraid. As Marcus Aurelius said, “A man should be upright, not be kept upright.” There must be leadership at every level. Line officers are sincere and hard-working; their leaders need to ensure that core values are part of the department’s operations and become the basis of the subordinates’ behavior.

The organization’s culture is also important in this regard. The police culture often exalts loyalty over integrity. Given the stress usually generated more from within the organization than from outside and the nature of life-and-death decisions they must make daily, even the best officers who simply want to catch criminals may become frustrated and vulnerable to bending the rules for what they view as the greater good of society.

Police agencies must also attempt to shape the standards of professional behavior. Many begin to do so by articulating their values such as “we believe in the sanctity of life” and “we believe that providing superior service to the citizens is our primary responsibility.” Other rules try to guide officers’ behavior such as not lying or drinking in excess in a public place.

Ethics in the Courts

Evolution of Standards of Conduct

The first call during the twentieth century for formalized standards of conduct in the legal profession came in 1906 with Roscoe Pound’s speech “The Causes of Popular Dissatisfaction with the Administration of Justice,”29 discussed in Chapter 7. The American Bar Association (ABA) quickly responded by formulating and approving the Canons of Professional Ethics in 1908 governing lawyers. No separate rules were provided for judges, however.

The first Canons of Judicial Ethics probably grew out of baseball’s 1919 scandal, in which the World Series was “thrown” by the Chicago White Sox to the Cincinnati Reds. Baseball officials turned to the judiciary for leadership and hired U.S. district court Judge Kenesaw Mountain Landis as baseball commissioner—a position for which Landis was paid $42,500 compared with his $7,500 earnings per year as a judge. This affair prompted the 1921 ABA convention to pass a resolution of censure against the judge and appoint a committee to propose standards of judicial ethics.30

In 1924, the ABA approved the Canons of Judicial Ethics under the leadership of Chief Justice William Howard Taft, and in 1972 the ABA approved a new Model Code of Judicial Conduct—rules governing the conduct of judges while acting in their professional capacity; in 1990, the same body adopted a revised Model Code. Nearly all states and the District of Columbia have promulgated standards based on the code. In 1974, the U.S. Judicial Conference adopted a Code of Conduct for Federal Judges, and Congress has, over the years, enacted legislation regulating judicial conduct, including the Ethics Reform Act of 1989. Finally, in October 1977, the American Judicature Society (AJS) established the Center for Judicial Conduct Organizations. The Center compiles materials involving judicial discipline, advisory opinions, disciplinary procedures, codes of judicial conduct, and related court decisions, and is probably best known in judicial circles for its publication, Judicial Conduct Reporter.31

The Judge

Ideally, our judges are flawless. They do not allow emotion or personal biases to creep into their work, treat all cases and individual litigants with an even hand, and employ “justice tempered with mercy.” The perfect judge would be like the one described by the eminent Italian legal philosopher Pierro Calamandrei:

The good judge takes equal pains with every case, no matter how humble; he knows that important cases and unimportant cases do not exist, for injustice is not one of those poisons, which when taken in small doses may produce a salutary effect. Injustice is a dangerous poison even in doses of homeopathic proportions.32

Not all judges, of course, can attain this lofty status. Recognizing this fact, nearly 800 years ago, King John of England met with his barons on the field of Runnymede and, in the Magna Carta, promised that henceforth he would not “make men justices, unless they are such as know the law of the realm and are minded to observe it rightly.”33 See Exhibit 13.2 for information about the “Cash for Kids” Scandal.

Exhibit 13.2 The “Cash For Kids” Scandal

A former county juvenile court judge in Pennsylvania was sentenced to prison for 28 years after being convicted on federal racketeering charges—specifically, sentencing juveniles to a detention facility for minor crimes while accepting more than $1 million in kickbacks from the private company that built and maintained the facility.34

One-fourth of this judge’s juvenile defendants were sentenced to detention centers, as he routinely ignored requests for leniency made by prosecutors and probation officers. Some of the nearly 5,000 sentenced juveniles were as young as 10. One girl, who described the experience as a “surreal nightmare,” was sentenced to 3 months of “hard time” for posting spoofs about an assistant school principal on the Internet. Some juveniles even committed suicide following their commitment.35 The judge was said to have maintained a culture of intimidation in which no one was willing to speak up about the sentences he was handing down. Although he pleaded guilty to the charges, he denied sentencing juveniles who did not deserve it or receiving remuneration from the detention centers.36

The matter—termed Cash for Kids37—also raised concerns about whether juveniles should be required to have counsel either before or during their appearances in court: It was revealed that more than 500 juveniles had appeared before the judge without representation. Although juveniles have long had a right to counsel,38 Pennsylvania, like at least 20 other states, allows children to waive counsel, and about half of these Pennsylvania youths had chosen to do so.39

The subject of judicial ethics seemed to arouse little interest until relatively recently. Indeed, from 1890 to 1904, an era of trusts and political corruption, only a few articles were published on the subject of judicial ethics. By contrast, since 1975, more than 900 articles have appeared in magazines and newspapers on the topic of judges and judicial ethics.

Judges can engage in improper conduct or overstep their bounds in many ways: abuse of judicial power (against attorneys or litigants), inappropriate sanctions and dispositions (including showing favoritism or bias), not meeting the standards of impartiality and competence (discourteous behavior, gender bias and harassment, and incompetence), conflict of interest (bias, conflicting financial interests or business, social, or family relationships), and personal conduct (criminal or sexual misconduct, prejudice, or statements of opinion).40

Following are examples of some true-to-life ethical dilemmas involving the courts:41

A judge convinces jailers to release his son on a nonbondable offense.

A judge is indicted on charges that he used his office for a racketeering enterprise.

Two judges attend the governor’s $500-per-person inaugural ball.

A judge’s allegedly intemperate treatment of lawyers in the courtroom is spurred by a lawyer’s earlier complaints against the judge.

A judge is accused of acting with bias in giving a convicted murderer a less severe sentence because the victims were homosexual.

A judge whose car bears a bumper sticker reading “I am a pro-life democrat” acquits six pro-life demonstrators of trespassing at an abortion clinic on the ground of necessity to protect human life.

These incidents do little to bolster public confidence in the justice system. People expect more from judges, who are “the most highly visible symbol of justice.”42 The quality of the judges determines the quality of justice.

Many judges recoil at the need for a code of judicial conduct or an independent commission to investigate complaints. They dislike being considered suspect and put under regulation. No one likes to be watched, but judges must heed Thomas Jefferson’s admonition that everyone in public life should be answerable to someone.43

Unfortunately, codes of ethical conduct have not served to eradicate the problems or allay the concerns about judges’ behavior. Indeed, as three professors of law put it, “The public and the bar appear at times to be more interested in judicial ethics and accountability than the judges are.”44 One judge who teaches judicial ethics at the National Judicial College in Reno, Nevada, stated that most judges attending the college admit never having read the ABA’s Model Code of Judicial Conduct before seeking judicial office.45 Some judges also dismiss the need for a judicial conduct code because they believe that it governs aberrant behavior, which, they also believe, is rare among the judiciary. According to the AJS, however, during one year, 25 judges were suspended from office and more than 80 judges resigned or retired either before or after formal charges were filed against them; 120 judges also received private censure, admonition, or reprimand.46

The Code of Judicial Conduct strives to strike a balance between allowing judges to participate in social and public discourse and prohibiting conduct that would threaten a judge’s independence. The essence of judicial independence is that judges’ minds, according to John Adams, “should not be distracted with jarring interests; they should not be dependent upon any man, or body of men.”47

Living by the code is challenging; the key to judicial ethics is to identify the troublesome issues and to sharpen one’s sensitivity to them, that is, to create an “ethical alarm system” that responds.48 Perhaps the most important tenet in the code, and the one that is most difficult to apply, is that judges should avoid the appearance of impropriety.

By adhering to ethical principles, judges can maintain their independence and follow the ancient charge Moses gave to his judges in Deuteronomy:

Hear the causes between your brethren, and judge righteously. Ye shall not respect persons in judgment; but ye shall hear the small as well as the great; ye shall not be afraid of the face of man; for the judgment is God’s; and for the cause that is too hard for you, bring it unto me, and I will hear it.49

See Exhibit 13.3 for information about ethics training for federal judges.

Lawyers for the Defense

Defense attorneys, too, must be legally and morally bound to ethical principles as agents of the courts. Elliot Cohen50 suggested the following moral principles for defense attorneys:

Treat others as ends in themselves and not as mere means to winning cases.

Treat clients and other professional relations in a similar fashion.

Do not deliberately engage in a behavior apt to deceive the court as to truth.

Be willing, if necessary, to make reasonable personal sacrifices of time, money, and popularity for what you believe to be a morally good cause.

Do not give money to, or accept money from, clients for wrongful purposes or in wrongful amounts.

Avoid harming others in the course of representing your client.

Be loyal to your client and do not betray his or her confidence.

Exhibit 13.3 Ethics Training for Federal Judges

According to the Code of Conduct for U.S. Judges, Canon 1, commentary, “Deference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges.”

To further those goals, the Federal Judicial Center—the education agency for the federal courts—works closely with the Judicial Conference to provide orientation programs for new judges. By regularly covering ethics, the goal is to heighten judges’ sensitivity to ethical issues and to interpret the sources of ethical rules: statutes and the Code of Conduct for United States Judges. Together they have developed curricula for in-class programs, online formats, and television programs.

An overview is provided of the seven canons of the Code of Conduct. Other specific ethical areas that are covered include conflicts of interest, relationships with a former law firm, and outside activities such as teaching, membership in legal or social organizations, fund-raising prohibitions, and political activities. Greatest attention is devoted to conflicts of interest—particularly financial conflicts—because mistakes seem to occur more commonly here. There is also a detailed discussion of how to fill out the financial-disclosure report. Examples are provided concerning judges who did not, or allegedly did not, follow the rules.

Source: Based on John S. Cooke, “Judicial Ethics in the Federal Courts,” Justice System Journal 28(3) (2007): 385–393.

Prosecutors

Prosecutors can also improve their ethical behavior. Contrary, perhaps, to what is popularly believed, it was decided over a half century ago that the primary duty of a prosecutor is “not that he shall win a case, but that justice shall be done.”51

Instances of prosecutorial misconduct were reported as early as 189752 and are still reported today. One of the leading examples of unethical conduct by a prosecutor was Miller v. Pate,53 in which the prosecutor concealed from the jury in a murder trial the fact that a pair of undershorts with red stains on it were stained not by blood but by paint.

If similar (though not so egregious) kinds of misconduct occur today, one must ask why. According to Cohen,54 the answer is simple: Misconduct works. Oral advocacy is important in the courtroom and can have a powerful effect. Another significant reason for such conduct is the harmless error doctrine, in which an appellate court can affirm a conviction despite the presence of serious misconduct during the trial. Only when appellate courts take a stricter, more consistent approach to this problem, will it end.55

Other Court Employees

Other court employees have ethical responsibilities as well. Primarily known as confidential employees, these are justice-system functionaries who have a special role in the court system and work closely with a judge or judges. These individuals have a special responsibility to maintain the confidentiality of the court system and, thus, have a high standard of trust. For example, an appellate court judge’s secretary is asked by a good friend, who is a lawyer, whether the judge will be writing the opinion in a certain case. The lawyer may wish to attempt to influence the judge through his secretary, renegotiate with an opposing party, or engage in some other improper activity designed to alter the case outcome.56 Bailiffs, court administrators, court reporters, courtroom clerks, and law clerks all fit into this category. The judge’s secretary, of course, must use his or her own ethical standard in deciding whether to answer the lawyer’s question.

It would be improper for a bailiff who is accompanying jurors back from a break in a criminal trial to mention that the judge “sure seems annoyed at the defense attorney” or for a law clerk to tell an attorney friend that the judge she works for prefers reading short bench memos.57

Ethics in Corrections

By virtue of their association with offenders, corrections personnel confront many of the same ethical dilemmas as police personnel. Thus, prison and jail administrators, like their counterparts in the police realm, would do well to understand their occupational subculture and its effect on ethical decision making.

Worley and Worley studied CO misconduct and deviance (which they defined as “behavior that is either against policy or illegal, performed during a CO’s employment”)58 using surveys administered to COs in the Texas prison system. They found that an overwhelming number of COs perceived that their fellow staff members were involved in inappropriate and, in some cases, illegal types of behavior. One of the most often-reported types of deviance was that “some employees have inappropriate relationships with inmates.” Also heavily reported was that “some employees allow inmates to break the rules.”59 The researchers also observed that “every year there are some correctional officers who end their careers in disgrace by engaging in activities that are deemed illegal and/or at the very least highly unethical.”60

According to noted criminal justice ethicist Sam Souryal,61 public corruption is ostensibly a learned behavior—no one is born corrupt, and assuming correctional applicants are carefully scrutinized prior to employment, the logical explanation must be that COs learn corruption in the course of performing their job. Ensuring a work environment that is conducive to an ethical work culture is essential.

In very broad terms, there are two major types of CO deviance: the abuse of power and corruption.62 More specifically, Souryal described the following three general categories of prison corruption:

Acts of misfeasance. These acts are illegitimate acts more likely committed by high-ranking officials who knowingly allow contractual indiscretions that would undermine the public interest and benefit them personally. Misfeasance can also involve outsiders—a building firm, a group of consultants, a planning and research agency, and a law firm hired to defend the agency—who are associated with the correctional facility through a political or professional appointment.

Acts of malfeasance. These acts involve crimes or misconduct that officials knowingly commit in violation of state laws and/or agency rules and regulations. Acts of malfeasance are usually committed by officials at the lower or middle management levels. Acts that might fall in this category include theft; embezzlement; trafficking in contraband; extortion; official oppression; and the exploitation of inmates or their families for money, goods, or services.

Acts of nonfeasance. These are acts of omission or avoidance knowingly committed by officials who are responsible for carrying out such acts. Examples of nonfeasance would include looking the other way when narcotics are smuggled into a prison by inmates or visitors, and failure to report misconduct by other officers out of personal loyalty.63

The strength of the corrections subculture is correlated with the security level of a correctional facility and is strongest in maximum-security institutions. Powerful forces within the correctional system have a stronger influence over the behavior of COs than the administrators of the institution, legislative decrees, or agency policies.64 Indeed, it has been known for several decades that exposure to external danger in the workplace creates a remarkable increase in group solidarity.65

Some of the job-related stressors for COs are similar to those the police face: the ever-present potential for physical danger, hostility directed at officers by inmates and even by the public, unreasonable role demands, a tedious and unrewarding work environment, and dependence on one another to work effectively and safely in their environment.66 For these reasons, several norms of corrections work have been identified—always go to the aid of an officer in distress, do not “rat,” never make another officer look bad in front of inmates, always support an officer in a dispute with an inmate, always support officer sanctions against inmates, and do not wear a “white hat” (participate in behavior that suggests sympathy or identification with inmates).67

Security issues and the way in which COs have to rely on each other for their safety make loyalty to one another a key norm. The proscription against ratting out a colleague is strong. In one documented instance, two officers in the Corcoran, California, State Prison blew the whistle on what they considered to be unethical conduct by their colleagues: Officers were alleged to have staged a gladiator-style fight among inmates from different groups in a small exercise yard. The two officers claimed that their colleagues would even place bets on the outcome of the fights, and when the fights got out of hand, the officers would fire shots at the inmates. Since the institution had opened in 1988, eight inmates had been shot dead by officers and numerous others had been wounded. The two officers who reported these activities were labeled by colleagues as “rats” and “no-goods” and had their lives threatened; even though they were transferred to other institutions, the labels traveled with them. Four COs were indicted for their alleged involvement in these activities, and all were acquitted in a state prosecution in 2001.68

In another case, a female CO at a medium-security institution reported some of her colleagues for sleeping during the night shift. She had first approached them and expressed concern for her safety when they were asleep, and told them that if they did not refrain from sleeping, she would have to report them to the superintendent. They continued sleeping and she reported them. The consequences were severe: Graffiti was written about her on the walls, she received harassing phone calls and letters, her car was vandalized, and bricks were thrown through the windows of her home.69

It would be unfair to suggest that the kind of behavior depicted here reflects the behavior of COs in all places and at all times. The case studies demonstrate, however, the power and loyalty of the group, and correctional administrators must be cognizant of that power. It is also noteworthy that the corrections subculture, like its police counterpart, has several positive qualities, particularly in crisis situations, including mutual support and protection, which is essential to the emotional and psychological health of the officers involved; the “family” is always there to support you.

Guiding Decision Making

One of the primary purposes of ethics is to guide decision making.70 Ethics provides more comprehensive guidelines than law and operational procedures, and answers questions that might otherwise go unanswered. When in doubt, justice administrators and employees should be able to consider the ethical consequences of their actions or potential actions to determine how they should proceed. Guidelines must be in place to assist employees in making operational decisions. Criminal justice leaders obviously play a key role in ethics. Not only must they enforce and uphold ethical standards, they must also set an example and see that employees are instructed in the ethical conduct of police business.

Some experts in police ethics lay problems involving employees’ ethics, and their lapses in good conduct, squarely at the feet of their leaders; for example, Edward Tully71 stated the following:

Show me an agency with a serious problem of officer misconduct and I will show you a department staffed with too many sergeants not doing their job. Leaders must recognize the vital and influential role sergeants play within an organization. They should be selected with care, given as much supervisory training as possible, and included in the decision-making process. Sergeants are the custodians of the culture, the leaders and informal disciplinarians of the department, and the individual most officers look to for advice.

Stephen Vicchio72 added another caveat. Even in communities where all seems to be going well with respect to ethical behavior, trouble may be lurking beneath the surface:

In departments where corruption appears to be low and citizen complaints are minimal, we assume that the officers are people of integrity. Sometimes this is a faulty assumption, particularly if the motivation to do the right thing comes from fear of punishment.

Most efforts to control justice system employees’ behavior are rooted in statutes and departmental orders and policies. These written directives spell out inappropriate behavior and, in some cases, behavior or actions that are expected in specific situations. Written directives cannot address every contingency, however, and employees must often use their discretion. These discretionary decisions should be guided by ethics and values. When there is an ethics or policy failure, the resulting behavior is generally considered to be illegal or inappropriate.

14) Collective Bargaining, Generally

The Nature and Principles of Shared Governance

Three Models

Each state is free to decide whether and which public sector employees will have collective bargaining rights and under what terms; therefore, there is considerable variety in collective bargaining arrangements across the nation. In states with comprehensive public sector bargaining laws, the administration of the statute is the responsibility of a state agency such as a public employee relations board (PERB) or a public employee relations commission (PERC). There are three basic models used in the states: binding arbitration, meet-and-confer, and bargaining-not-required.1

The binding arbitration model is used in 25 states and the District of Columbia. Public employees are given the right to bargain with their employers.2 If the bargaining reaches an impasse, the matter is submitted to a neutral arbitrator who decides what the terms and conditions of the new collective bargaining agreement will be.3 Here, the arbitrator hears the case and makes a decision, acting in place of a trial before a judge or jury. The arbitrator should therefore be unbiased and attempt to pursue an outcome that is fair and reasonable to all parties.

Only eleven states use the meet-and-confer model, which grants very few rights to public employees. As with the binding arbitration model, criminal justice employees in meet-and-confer states have the right to organize and to select their own bargaining representatives.4 When an impasse is reached, however, employees are at a distinct disadvantage. Their only legal choices are to accept the employer’s best offer, try to influence the offer through political tactics (such as appeals for public support), or take some permissible job action.5

The 15 states that follow the bargaining-not-required model either do not statutorily require or do not allow collective bargaining by public employees.6 In the majority of these states, laws permitting public employees to engage in collective bargaining have not been passed.

States with collective bargaining must also address the issue of whether an individual employee must be a member of a union that represents his or her class of employees in a particular organization. In a “closed shop,” employees must be dues-paying members or they will be terminated by the employer. “Open” shops, conversely, allow employees a choice of whether to join, even though the union has an obligation to represent them.

Organizing for Collective Bargaining

If collective bargaining is legally established, the process of setting up a bargaining relationship is as follows: First, a union will begin an organizing drive seeking to get a majority of the class(es) of employees it wants to represent to sign authorization cards. At this point, agency administrators may attempt to convince employees that they are better off without the union. Questions may also arise, such as whether certain employees (e.g., police or prison lieutenants) are part of management and therefore ineligible for union representation.

Once a majority (“50% plus 1” of the eligible employees) have signed cards, the union notifies the criminal justice agency. If management believes that the union has obtained a majority legitimately, it will recognize the union as the bargaining agent of the employees it has sought to represent. Once recognized by the employer, the union will petition the PERB or other body responsible for administering the legislation for certification.

Negotiation

Labor negotiation typically involves a dialogue between labor and management that is intended to develop a written agreement that will bind both parties during the life of the agreement concerning such issues as working conditions, salaries, and benefits. Negotiations at times are also used to prevent or to resolve disputes concerning same.

Management normally prefers a narrow scope of negotiations because it means less shared power; conversely, the union will opt for the widest possible scope. The number of negotiating sessions may run from one to several dozen, lasting from a few minutes to 10 or more hours, depending on how close or far apart union and management are when they begin to meet face to face.

Figure 14-1 depicts a typical configuration of the union and management bargaining teams. Positions shown in the broken-line boxes typically serve in a support role and may or may not actually partake in the bargaining. Management’s labor relations manager (lead negotiator) is often an attorney assigned to the human resources department, reporting to the city manager or assistant city manager and representing the city in grievances and arbitration matters; management’s chief negotiator may also be the director of labor relations or human resources director for the unit of government involved or a professional labor relations specialist. Similarly, the union’s chief negotiator normally is not a member of the organization involved; rather, he or she will be a specialist who is brought in to represent the union’s position and to provide greater experience, expertise, objectivity, and autonomy. The union’s chief negotiator may be accompanied by some people who have conducted surveys on wages and benefits, trends in the consumer price index, and so on.7

Figure 14-1 Union and Management Collective Bargaining Teams

Source: Union and Management Bargaining Teams by Jerry Hoover. Used by permission of Jerry Hoover.

Figure 14-1 Full Alternative Text

In the minds of many chief executives, the agency administrator should NOT appear at the bargaining table; it is difficult for the chief executive to represent management one day and then return to work among the employees the next. Rather, management is represented by a key member of the command staff having the executive’s confidence.

The issues, and the way in which they are presented, will impact how the negotiations will go. In the initial session, the chief negotiator for each party will make an opening statement. Management’s representative will often go first, touching on general themes such as the need for patience and the obligation to bargain in good faith. The union’s negotiator will generally follow, outlining what the union seeks to achieve under the terms of the new contract. Ground rules for the bargaining may then be reviewed, modified, or developed. The attention then shifts to the terms of the contract that the union is proposing. Both sides need to understand what it is they are attempting to commit each other to. Ultimately, unless a total impasse is reached, agreement will be obtained on the terms of a new contract. The union’s membership will vote on the contract as whole. If approved by the membership, the contract then goes before the necessary government officials and bodies for approval.8

In the Event of an Impasse. . .

Even parties bargaining in good faith may not be able to resolve their differences by themselves, and an impasse may result. In such cases, a neutral third party may be introduced to facilitate, suggest, or compel an agreement. Three major forms of impasse resolution are mediation, fact-finding, and arbitration.

Mediation occurs when a third party, called the mediator, comes in to help the opposing parties to settle their negotiations.9 This person may be a professional mediator or someone else in whom both parties have confidence. In most states, mediation may be requested by either labor or management. The mediator’s task is to build agreement about the issues involved by reopening communications between the two sides. The mediator cannot compel an agreement, so an advantage of the process is that it preserves collective bargaining by maintaining the decision-making power in the hands of the involved parties.10

Fact-finding primarily involves the interpretation of facts and the determination of what weight to attach to them. Appointed in the same way as mediators, fact finders also do not have the means to impose a settlement of the dispute. Fact finders may sit alone or as part of a panel normally consisting of three people. The fact-finding hearing is quasi-judicial, although less strict rules of evidence are applied. Both labor and management may be represented by legal counsel, and verbatim transcripts are commonly made. In a majority of cases, the fact finder’s recommendations will be made public at some point.11

Arbitration is similar to fact-finding but differs in that the “end product of arbitration is a final and binding decision that sets the terms of the settlement and with which the parties are legally required to comply.”12 Arbitration may be voluntary or compulsory. It is compulsory when mandated by state law and is binding on the parties even if one of them is unwilling to comply. It is voluntary when the parties undertake of their own volition to use the procedure. Even when entered into voluntarily, arbitration is compulsory and binding on the parties who have agreed to it.

The establishment of a working agreement between labor and management can also become the basis for strife. Questions can arise concerning the interpretation and application of the document and its various clauses, and grievances (discussed earlier) may arise. The sequence of grievance steps will be spelled out in the collective bargaining agreement and typically include the following five steps: (1) The employee presents the grievance to the immediate supervisor, and if satisfaction is not achieved, (2) a written grievance is presented to the division commander, then (3) to the chief executive officer, then (4) to the city or county manager, and, finally, (5) to an arbiter, selected according to the rules of the American Arbitration Association.13

The burden of proof is on the grieving party, except in disciplinary cases, when it is always on the employer. The parties may be represented by counsel at the hearing, and the format will include opening statements by each side, examination and cross-examination of any witnesses, and closing arguments in the reverse order of which opening arguments were made.14

Job Actions

A job action is an activity by employees to express their dissatisfaction with a particular person, event, or condition or to attempt to influence the outcome of some matter pending before decision makers. Employees seek to create pressure that may shift the course of events to a position more favorable or acceptable to them.15 Job actions are of four types: the vote of confidence, work slowdowns, work speedups, and work stoppages.

Vote of confidence. This job action is used sparingly; a vote of no confidence signals employees’ collective displeasure with the chief administrator of the agency. Although such votes have no legal standing, they may have high impact as a result of the resulting publicity.

Work slowdowns. Employees continue to work during a slowdown, but they do so at a leisurely pace, causing productivity to fall. As productivity declines, the unit of government is pressured to resume normal work production; for example, a police department may urge officers to issue more citations so that revenues are not lost. Citizens may complain to politicians to “get this thing settled.”16

Work speedups. These involve accelerated activity in the level of services and can foster considerable public resentment. For example, a police department may conduct a “ticket blizzard” to protest a low pay increase, pressure governmental leaders to make more concessions at the bargaining table, or abandon some policy change that affects their working conditions.

Work stoppages. When a bargaining impasse occurs, a work stoppage—or strike—can constitute the most severe job action employees can undertake. Because it involves the withholding of all employees’ services in an attempt to force management back to the bargaining table, public employees are generally forbidden by state law to strike. Therefore, work stoppages involving public employees are rare, but they do occur and often involve educational systems (such as the 2012 strike involving the Chicago Public Schools and the Chicago Teachers Union, with 26,500 workers accounting for 185,500 days idle).17 In criminal justice agencies, what is seen more often is what is termed in policing the “blue flu,” where a high number of officers claim to be too sick to work (an example of this tactic is the 2014 case in Memphis, Tennessee, where 550 officers (one-fourth of the agency’s total staff) called in sick; the “epidemic” was a response to the city council making deep cuts to city employee benefits.

Labor Relations in Criminal Justice

In 1971, Tucson police legal advisor John H. Burpo authored a book entitled The Police Labor Movement: Problems and Perspectives.19 In the book’s Preface, Burpo stated, “Police labor problems, of which unionization is but one facet, will be the major administrative headache facing the police service during the next decade.”20

Burpo was possibly correct in his assessment. However, many of today’s police, courts, and corrections administrators would argue that he was off by nearly a half century in his view of unionization as posing an “administrative headache” for a decade. Unions obviously are here to stay—and have become involved in all manner of issues, including not only wages and benefits but also working conditions, promotions, staffing levels, bans on smoking in public, even the kinds of vehicles officers drive. And they have contributed much to the rights and privileges that criminal justice employees enjoy and were discussed in Chapter 13.

In this section, we discuss the history, nature, and principles of collective bargaining in criminal justice organizations. Included is a discussion of how criminal justice administrators must “navigate the waters” of unionization in order to coexist with them in today’s criminal justice environment.

The Movement Begins: Policing Then and Now

Early Campaigns

The early development of police unions was met with considerable opposition. For example, in 1919 the Boston police commissioner refused to recognize the union or allow officers to join it, and filed charges against several union officials. Shortly thereafter, on September 9, the Boston police initiated their now-famous (or infamous) 3-day strike, leading to major riots and a furor against the police all across the nation; 9 rioters were killed and 23 were seriously injured. During the strike, Massachusetts governor Calvin Coolidge stated, “There is no right to strike against the public safety by anybody, anywhere, anytime.”

During and after World War II, however, the police unions began to burgeon as charters were issued to a few dozen locals all over the country and organizers began to help enlist the rank and file. Most police chiefs continued speaking out against unionization, but their subordinates were moved by the thousands to join, sensing the advantage in having unions press for higher wages and benefits.21 In a series of rulings, however, the courts upheld the right of police authorities to ban police unions.

The unions were survived in the early 1950s by many benevolent and fraternal organizations of police. Some were patrolmen’s benevolent associations (PBAs), like those formed in New York City, Chicago, and Washington, DC; others were fraternal orders of police (FOPs). Today labor relations remain a critical topic in policing, and a virtual maze of affiliations dots the police labor landscape, with the two largest unions—the Fraternal Order of Police and the National Association of Police Organizations—reporting a combined membership of nearly 570,000 sworn officers in more than 3,300 lodges and agencies.22 Police unions are strongest in the Northeast, Midwest, and West and tend to play a greater role in larger departments. Unions or associations in larger departments tend to have offices with full-time staff members working to advance union causes as well as lobbyists who work the political system for union purposes. Thus, police unions in many jurisdictions are a formidable force with which to be reckoned.

Once unions are recognized in a jurisdiction, the relationship between the department and the governmental entity is codified in a contract or memorandum of understanding. The contract specifies the rights and privileges of employees, and it places restrictions on the political entity and police administrators. In effect, the contract has the force of law. The contract can only be changed via renegotiations, which occur generally on a 3-year cycle or by mutual agreement on the part of the union and police management. When there is a dispute over the interpretation of the contract or its administration, the question is sorted out by an arbitrator or sometimes in the courts.23

As noted above, unions can obviously have a major impact on police departments. Their activities and the contract not only affect police administrators but also place limitations or restrictions on supervisors and managers. Thus, it is important for supervisors and managers to understand the collective bargaining process, the implications of the contract, and how supervisors and managers negotiate tasks and responsibilities within the confines of the contract.

Corrections Follows the Precedent

Correctional officers (COs) were probably the last group of public workers to organize. After authorization of collective bargaining in the 1960s and 1970s, correctional administrators feared that unionization would diminish management authority and undermine staff discipline and prison security. Over the years that collective bargaining has been in place for correctional agencies, however, the early fears have not materialized, and the benefits of shared governance by line staff and management have led to better decisions and higher morale. As with the police, negotiations usually involve pay and benefits for correctional employees, including seniority rights, how staff members are selected for overtime, the type of clothing provided to staff by the agency, educational programs, and so on. After a contract is negotiated, each prison or community corrections office must implement and administer it. When disputes about the true meaning of a contract arise, management can make a decision, and the union can file a grievance to argue against it.24

Collective bargaining is now well entrenched in prison and other correctional agency operations, and it will continue to have an impact on policy and practice. There remains some disagreement, however, concerning its implications. Some argue that sharing of power in a correctional setting benefits all parties, and that unions are a powerful voice to the legislature for increases in staffing and budgets. Others maintain that collective bargaining has resulted in a clear distinction between line staff and management, with managers no longer looking out for subordinates because union leadership promotes an adversarial relationship. As James Jacobs and Norma Crotty suggested, collective bargaining “has redefined the prison organization in adversary terms so that wardens are bosses and complaints are grievances.”25

A major issue with corrections unions involves the right to strike. One can only imagine the chaos that would occur if COs strike. Such unlawful strikes have occurred. The most infamous strike action was in New York State in 1979, when 7,000 correctional workers simultaneously struck the state’s 33 prisons. A court found the union in violation of the law, heavily fined the union for the failure of its members to return to work, and jailed union leaders for contempt of court.26 The strike ended 17 days after it began; the corrections officers gained very few concessions, and the salary gains did not offset the fines imposed on the strikers.27

Unionization in the Courts

The movement to exercise the right to bargain collectively, especially when compared with law enforcement and corrections, has been rare in the courts, occurring on a random, localized basis; however, unified court systems exist in which court personnel are organized statewide, as in Hawaii. Many states adhere generally to model legislation on public employee relation commissions, which provide mediation and fact-finding services and make determinations of unfair labor practices. On occasion, these commissions make decisions that greatly affect the management authority of the judiciary over its personnel.

When a collective bargaining unit exists in a court system, the process has all the basic elements found in other systems: (1) recognition (the employing court recognizes that henceforth employees will be represented by their chosen agent); (2) negotiation (there are established methods for arriving at collective bargaining agreements, breaking deadlocks, ratifying contracts, and so on); and (3) contract administration (the day-to-day management of a court is accomplished within the framework of the labor contract).28

Civil Liability: A Primer

Definitions and Legal Foundation

Criminal justice administrators, particularly those working in law enforcement and corrections, certainly understand the potential and actual existence of civil liability—that is, blame assigned to a person or organization because its employees committed negligent or other acts resulting in some type of harm. These administrators very likely reflect their experiences and concerns with litigation in their training, policies and procedures, general orders, and so on.

They also understand that, with the possible exception of professionals working in the medical field, no group of workers is more susceptible to litigation and liability than police and corrections employees. Frequently thrust into confrontational situations, and given the complex nature of their work and its requisite training needs, they will from time to time act in a manner that evokes public scrutiny and complaints. As we will see, the price of failure among public servants can be quite high in both human and financial terms. In addition, some police officers and COs are overzealous and even brutal in their work; they may intentionally or otherwise violate the rights of the citizens they are sworn to protect, detain, or supervise. For these inappropriate actions, the public has become quick to file suit for damages for what are perceived to be egregious actions.

Next, we examine the kinds of inappropriate and negligent behaviors that can lead to civil liability and even incarceration for police and corrections personnel in the justice system; included is a discussion of a major legislative tool that citizens use to seek redress when such activities occur: Title 42, U.S. Code, Section 1983.

Torts and Negligence

It is important to have a basic understanding of tort liability. A tort is the infliction of some injury on one person by another. Three categories of torts generally cover most of the lawsuits filed against criminal justice practitioners: negligence, intentional torts, and constitutional torts.

Negligence can arise when a criminal justice employee’s conduct creates a danger to others. In other words, the employee did not conduct his or her affairs in a manner that avoids subjecting others to a risk of harm and may be held liable for the injuries caused to others.29

Intentional torts occur when an employee engages in a voluntary act that is quite likely to result in injury to another; examples are assault and battery, false arrest and imprisonment, malicious prosecution, and abuse of process.

Constitutional torts involve employees’ duty to recognize and uphold the constitutional rights, privileges, and immunities of others; violations of these guarantees may subject the employee to a civil suit, most frequently brought in federal court under 42 U.S. Code Section 1983, discussed in the next section.30

Assault, battery, false imprisonment, false arrest, invasion of privacy, negligence, defamation, and malicious prosecution are examples of torts that are commonly brought against police officers.31 False arrest is the arrest of a person without probable cause. False imprisonment is the intentional illegal detention of a person not only in jail but also in any confinement to a specified area. For example, the police may fail to release an arrested person after a proper bail or bond has been posted, may delay the arraignment of an arrested person unreasonably, or may fail to release a prisoner after they no longer have authority to hold him or her.32

A single act may also be a crime as well as a tort. If Officer Smith, in an unprovoked attack, injures Jones, the state will attempt to punish Smith in a criminal action by sending him to jail or prison, fining him, or both. The state would have the burden of proof at a criminal trial, having to prove Smith guilty “beyond a reasonable doubt.” Furthermore, Jones may sue Smith for money damages in a civil action for the personal injury he suffered. In this civil suit, Jones would have the burden of proving that Smith’s acts were tortious by a “preponderance of the evidence”—a lower standard than that in a criminal court and thus easier to satisfy.

Section 1983 Legislation

Following the Civil War and in reaction to the activities of the Ku Klux Klan, Congress enacted the Ku Klux Klan Act of 1871, later codified as Title 42, U.S. Code, Section 1983. It states:

Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

This legislation was intended to provide civil rights protection to all “persons” protected under the act when a defendant acted “under color of law” (misused power of office) and provided an avenue to the federal courts for relief of alleged civil rights violations. We will see how Section 1983 can be used against the police.

Lawsuits Against the Police Generally

A police executive once commented to one of the authors, “The decision-making process is not directed so much by the question ‘Is it right or wrong?’ but rather ‘How much will it cost us if we’re sued?’” While that viewpoint may be overstated by quite a lot, nonetheless, the specter of lawsuits certainly looms large over police executives, their supervisors and officers, and their unit of government; and errors in judgment or misbehaviors can be costly.

No one knows for certain how much money is paid by local police agencies each year to settle lawsuits. What is known, however, is that some cities have seen lawsuits against their city’s police force soar. From 2010 through 2014, the 10 cities with the largest police agencies in the United States paid out over $1.4 billion in settlements and court judgments due to lawsuits against police.33 Those same departments were responsible for almost $250 million in payouts due to misconduct cases alone in the year 2014—an increase of nearly 50 percent from 2010.34

Settlements that concern controversial cases involving the use of deadly force by police are particularly costly. The City Council of Chicago recently approved a settlement with the family of Laquan McDonald for $5 million after he was shot and killed by Chicago PD officer Jason Van Dyke in 2014;35 in a recent case in New York City, the city agreed to pay $5.9 million to the family of Eric Garner to settle a wrongful-death claim (Garner had been killed by NYPD officers after an altercation).36 Although obviously very expensive to settle, these outcomes are often preferred to taking the case to court in a long and expensive legal battle—and one in which the jury might award much more money to the plaintiffs.

A relatively new concern about liability among police administrators concerns body-worn cameras (BWCs) for officers. These cameras, which are discussed more in Chapters 6 and 16, are designed to record interactions between police and citizens in the belief that they can help to guard against false allegations of misconduct or abuse. Agency administrators, however, are scrambling to develop policies for the use of such recording devices, in order to address a number of legal issues, including potential privacy concerns.37

Liability of Police Leadership

Another trend is for such litigants to cast a wide net in their lawsuits, suing not only the principal actors in the incident but also agency administrators and supervisors; this breadth of suing represents the notion of vicarious liability or the doctrine of respondeat superior, an old legal maxim meaning “let the master answer.” In sum, an employer can be found liable in certain instances for wrongful acts of the employee.

Using Section 1983, litigants often allege inadequate hiring and/or training of personnel by police leadership, or that they knew, or should have known, of the misconduct of their officers yet failed to take corrective action and prevent future harm. An example is the case of Brandon v. Allen,38 in which two teenagers parked in a lovers’ lane were approached by an off-duty police officer, Allen, who showed his police identification and demanded that the male exit the car. Allen struck the young man with his fist, stabbed him with a knife, and then attempted to break into the car where the young woman was seated. The young man was able to reenter the car and manage an escape. As the two teenagers sped off, Allen fired a shot at them with his revolver. The shattered windshield glass severely injured the youths to the point that they required plastic surgery. Allen was convicted of criminal charges, and the police chief was also sued under Section 1983. The plaintiffs charged that the chief and others knew of Allen’s reputation as an unstable officer; none of the other police officers wished to ride in a patrol car with him. At least two formal charges of misconduct had been filed previously, yet the chief failed to take any remedial action or even to review the disciplinary records of officers when he became chief. The court called this behavior “unjustified inaction,” held the police department liable, and allowed the plaintiffs damages. The U.S. Supreme Court upheld this judgment.39

Police supervisors have also been found liable for injuries arising out of an official policy or custom of their department. Injuries resulting from a chief’s verbal or written support of heavy-handed behavior resulting in the use of excessive force by officers have resulted in such liability.40

Title 18, U.S. Code, Section 242, makes it a criminal offense for any person acting under color of law to violate another person’s civil rights. An example of the use of Section 242 with law enforcement officers is the murder of a drug courier by two U.S. customs agents while the agents were assigned to the San Juan International Airport. The courier flew to Puerto Rico to deposit approximately $700,000 in cash and checks. He was last seen being interviewed by the two customs agents in the airport; 10 days later, his body was discovered in a Puerto Rican rain forest. An investigation revealed that the agents had lured the victim away from the airport and had murdered him for his money, later disposing of the body. They were convicted under Section 242 and related federal statutes, and each agent was sentenced to a prison term of 120 years.41 Section 242 prosecutions remain relatively rare, however (one source indicating that of 13,233 civil rights complaints against police between 1995 and 2015, federal prosecutors only brought charges 4% of the time).42 Prosecutors must prove beyond a reasonable doubt that the officer violated an individual’s civil rights and that he or she had done so “willfully.” Proving intent to juries is often difficult in these cases, and prosecutors are generally reluctant to bring charges against an officer when faced with such high standards of proof.

Duty of Care and Failure to Protect

The public duty doctrine is derived from common law and holds that police have a duty to protect the general public where they have a “special relationship”; this exists, for example, where the officer knows or has reason to know the likelihood of harm to someone if he or she fails to do his or her duty, and is thus defined by the circumstances surrounding an injury or damage. A special relationship can be based on:

whether the officer could have foreseen that he or she was expected to take action in a given situation to prevent injury43 (such as where a police officer released from his custody an intoxicated pedestrian near a busy highway)

departmental policy or guidelines that prohibit a certain course of action44 (such as a case where an officer released a drunk driver who then killed another driver, and the police department had a standard operating procedure manual that mandated that an intoxicated individual likely to do physical injury to himself or others “will be taken into protective custody”)

the spatial and temporal proximity of the defendant–officer behavior to the injury damage45 (an example is where an individual was arrested for drunk driving, taken into custody, found to have a high blood alcohol level, was released 3 hours later, and then had a fatal car accident).

Under the general heading of duty of care are three related concepts: proximate cause, persons in custody, and safe facilities.

Proximate cause is established by asking the question “But for the officer’s conduct, would the plaintiff have sustained the injury or damage?” If the answer to this question is no, then proximate cause is established, and the officer can be held liable for the damage or injury. An example is where an officer is involved in a high-speed chase and the offending driver strikes an innocent third party. Generally, if the officer was not acting in a negligent fashion and did not cause the injury, there would be no liability on the officer’s part.46 Proximate cause may also be found in such cases as one where an officer leaves the scene of an accident aware of dangerous conditions (e.g., spilled oil, smoke, vehicle debris, stray animals) without giving proper warning to motorists.47

Courts generally confer on police executives a duty of care for persons in their custody48 to ensure that reasonable precautions are taken to keep detainees free from harm, to render medical assistance when necessary, and to treat detainees humanely.49 A duty is also owed to persons in custody and while outside a jail setting, such as when arresting or transporting prisoners and mental patients, as well as in booking or interrogation areas.50 Courts have also held that if a prisoner’s suicide is “reasonably foreseeable,” the jailer owes the prisoner a duty of care to help prevent that suicide.

A related area concerns administrators’ need to provide safe facilities. For example, a Detroit jail’s holding cell was constructed so that it did not allow officers to observe detainees’ movements; there were no electronic monitoring devices for observing detainees or detoxification cells, as required under state policy. Therefore, following a suicide in this facility, the court concluded that these conditions constituted building defects and were the proximate cause of the decedent’s death.51

Failure to protect as a form of negligence may occur if a police officer fails to protect a person from a known and foreseeable danger. These claims most often involve battered women, but other circumstances can also create a duty to protect people from crime. Informants, witnesses, and other people who are dependent on the police can be a source of police liability if officers fail to take reasonable action to prevent victimization. The officer’s conduct cannot place a person in peril or demonstrate deliberate indifference to his or her safety. An example is where the Green Bay, Wisconsin, Police Department released the tape of a phone call from an informant, which led to the informant’s death.52 See Exhibit 14.1 for an exercise on failure to protect.

Exhibit 14.1 Liability for Failure to Protect

What, if any, legal obligation is held by the police to protect someone from their estranged spouse who has been served with a legal restraining order? That question was at the crux of a lawsuit from Castle Rock, Colorado, which was ultimately heard by the U.S. Supreme Court. Jessica Gonzales’ restraining order required her husband to remain at least 100 yards from her and their three daughters except during specified visitation times. One evening the husband took possession of the three children in violation of the order; Mrs. Gonzalez repeatedly urged the police to search for and arrest her husband, but they took no immediate action (due to Jessica’s allowing her husband to take the children at various hours). At approximately 3:20 a.m., the husband appeared at the city police station and instigated a shoot-out with the police (he died). A search of his vehicle revealed the corpses of the three daughters, whom the husband had killed. U.S. cities are generally immune from lawsuits, so in this case the Supreme Court was asked to decide whether Jessica Gonzales could sue the city because of inaction by its police officers.53

Questions for Discussion

Were the police morally responsible for the deaths of the three girls?

Were the police legally responsible for their deaths?

If you believe Jessica should be allowed to sue the city, and the police were liable, how much financial compensation should Jessica receive?

(See the Notes section for the outcome.)

Vehicle Pursuits

Basically, with regard to operation of their vehicles, officers are afforded no special privileges or immunities.54 While driving in nonemergency situations, officers do not have immunity for their negligence or recklessness and are held to the same standard of conduct as private citizens. When responding to emergency situations, however, officers are governed by statutes covering emergency vehicles.55 In such circumstances, most jurisdictions afford the police limited immunity for violations of traffic laws; in other words, they are accorded some protections and privileges not given to private citizens, and are permitted to take greater risks that would amount to negligence if taken by citizens.56

In 2007, the U.S. Supreme Court issued a major decision concerning the proper amount of force the police may use during a high-speed vehicle pursuit—when one or more law enforcement officers attempting to apprehend a suspect who is evading arrest while operating a motor vehicle, usually at high speed or using other elusive means. The issue was whether or not the serious danger created by the fleeing motorist and high-speed pursuers justifies the use of deadly force to eliminate the threat; in other words, was the level of force used proportionate to the threat of reckless and dangerous driving? Victor Harris, a 19-year-old Georgia youth, drove at speeds of up to 90 miles per hour and covered 9 miles in 6 minutes with a deputy sheriff in pursuit. The chase ended in a violent crash that left Harris a quadriplegic; his lawyers argued that the Fourth Amendment protects against the use of such excessive force and high-speed drivers having their cars rammed by police (by intentionally stopping a fleeing vehicle in such a manner, a “seizure” occurs for Fourth Amendment purposes). Conversely, the deputy sheriff’s lawyers argued that such drivers pose an escalating danger to the public and must be stopped to defuse the danger (the deputy’s supervisor had authorized the use of the Precision Immobilization Technique [PIT], whereby the officer uses the patrol vehicle to cause the speeder’s car to spin out. PIT was not used in the Harris chase, however). The Court’s 8–1 opinion held that “A police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.”57

In Their Own Words

Administrative Advice from the Field

Name: Samuel G. Chapman

Degrees: Bachelor’s and master’s, criminology, University of California, Berkeley

What CJ-related jobs have you held? Consultant on police functions and use of police dogs; professor emeritus, University of Oklahoma; assistant director, President’s Commission on Law Enforcement and the Administration of Justice, Washington, DC; chief, Multnomah County Sheriff’s Office, Portland, Oregon; police officer, Berkeley, California.

What advice do you have concerning police liability? Police departments must take civil rights litigation seriously. Actually, civil rights lawsuits are seen by many as an occupational hazard in policing. When a lawsuit has been filed, the allegations should be evaluated by the government’s attorneys. Fact-finding may disclose that the allegations appear to have little merit. It could be that the lawsuit is of dubious substance, really seeking what is called a “convenience settlement”—a defendant’s paying the plaintiff a dollar amount less than what the defendant’s costs would be to prepare for trial. But if after fact-finding it appears that the department and its officers are culpable, the defense team should start settlement negotiations early. The defense should make a meaningful offer, keeping it in the range of settlements for cases of a similar sort elsewhere. At the same time, the defense (both the government and the officer) must commence their discovery, with the goal of minimizing loss should the case eventually go to trial. Settlements that occur just before trial are invariably costly. The defense team should also evaluate the courtroom record of the plaintiff’s law firm and opposing attorneys, since some firms are more competent than others. Fact-finding will often indicate that a case is realistically defensible. If so, the defense team may decide to reject a convenience settlement and prepare for trial. This will cause the plaintiffs to evaluate whether to expend resources and time in pursuing a case that they are not likely to win. When the defense decides to stand up and fight, it establishes the jurisdiction as a “hard target” and sends a message that lawsuits with little merit are going to be forcefully defended. Whoever is named to defend officers and police agencies must be skilled in handling civil rights cases. It is a grave mistake for the government to take a “bargain basement” approach by assigning staff attorneys who have little or no experience working with these highly technical types of litigation. The police can fight back by suing those who sue them, but this means hiring counsel, which is expensive. And even if the lawsuit is successful and brings a dollar judgment against the defendant, such a defendant is usually poor and thus unable to meet any financial judgment levied against him or her. The government’s best defense against an adverse judgment in a civil rights lawsuit is to thoroughly train and regularly retrain its police personnel, and to supervise them well. Also, the police department’s rules, regulations, policies, and procedures must be kept current. Then, if officers perform as trained and properly under departmental guidelines, a persuasive defense can be mounted against any allegations of misconduct.

Source: Used with permission from Samuel G. Chapman.

Liability of Corrections Personnel

The liability of corrections workers often centers on their lack of due care for persons in their custody. This responsibility concerns primarily police officers and civilians responsible for inmates in local jails.

When an inmate commits suicide while in custody, police agencies are frequently—and often successfully—sued in state court under negligence and wrongful death claims. The standard used by the courts is whether the agency’s act or failure to act created an unusual risk to an inmate. A “special duty” of care exists for police officers to protect inmates suffering from mental disorders and those who are impaired by drugs or alcohol. Foreseeability—the reasonable anticipation that injury or damage may occur—may be found when inmates make statements of intent to commit suicide, have a history of mental illness, are in a vulnerable emotional state, or are at a high level of intoxication or drug dependence.58

Suicides are not uncommon among jail inmates; each year, more than 300 jail inmates take their own lives.59 Inmate suicide rates have also been found to be higher in small jails and highest in small jails with lower population densities.60 State courts generally recognize that police officials have a duty of care for persons in their custody.61 Thus, jail administrators are ultimately responsible for taking reasonable precautions to ensure the health and safety of persons in their custody; they must protect inmates from harm, render medical assistance when necessary, and treat inmates humanely.62

Several court decisions have helped to establish the duties and guidelines for jail employees concerning the care of their charges. An intoxicated inmate in possession of cigarettes and matches started a fire that resulted in his death; the court stated that “the prisoner may have been voluntarily drunk, but he was not in the cell voluntarily … [he] was helpless and the officer knew there was a means of harm on his person.” The court concluded that the police administration owed a greater duty of care to such an arrestee.63 Emotionally disturbed arrestees can also create a greater duty for jail personnel. In an Alaskan case, a woman had been arrested for intoxication in a hotel and had trouble talking, standing, and walking; her blood alcohol content was 0.26 percent. Two and a half hours after her incarceration, officers found her hanging by her sweater from mesh wiring in the cell. The Alaska Supreme Court said that the officers knew she was depressed and that in the past few months, one of her sons had been burned to death, another son had been stabbed to death, and her mother had died. Thus, the court believed that the officers should have anticipated her suicide.64

In New Mexico, a 17-year-old boy was arrested for armed robbery; he later told his mother that he would kill himself rather than go to prison and subsequently tried to cut his wrists with an aluminum can top. The assistant chief executive ordered the officers to watch him, but he was found dead by hanging the following morning. The state supreme court held that the knowledge officers possess is an important factor in determining liability and negligence in such cases.65 In a New Jersey case in which a young man arrested for intoxication was put in a holding cell but officers failed to remove the leather belt that he used to take his life, the court found that the officers’ conduct could have been a “substantial” factor in his death.66

As mentioned earlier, courts have also found the design of detention facilities to be a source of negligence—where a Detroit holding cell limited officers’ ability to observe inmates’ movements, and no detoxification cell or electronic monitoring devices were used; a suicide in such circumstances may constitute a “building defect” and a finding of proximate cause.67 In another incident, an intoxicated college student was placed in a holding cell at the school’s public safety building. Forty minutes later, officers found him hanging from an overhead heating device by a noose fashioned from his socks and belt. The court found the university liable for operating a defective building and awarded his parents $650,000.68

The behavior of jail personnel after a suicide or attempted suicide may also indicate a breach of duty. Officers are expected to give all possible aid to an inmate who is injured or has attempted suicide. Thus, when officers found an inmate slumped in a chair with his belt around his neck and left him in that position instead of trying to revive him or call for medical assistance, the court ruled that this behavior established a causal link between the officers’ inaction and the boy’s death.69

It is clear that correctional administrators must ensure that their organizations are cognizant of their legal responsibilities and their expanded custodial role in dealing with their detainees.

Disciplinary Policies and Practices

By virtue of their relatively high numbers and frequent contacts with the general public, a great majority of complaints and disciplinary actions in criminal justice will involve law enforcement personnel, and thus the following discussion centers on police behaviors. However, occasionally, as seen in Exhibit 14.2, the taint of corruption and abuse can also involve corrections personnel.

Exhibit 14.2 Deputies Indicted in Corruption Probe

Nearly 20 current and former Los Angeles County sheriff’s deputies were arrested recently following a 2-year federal probe into corruption and inmate abuse in the county jail system. Several grand jury indictments and criminal complaints alleged the unjustified beating of inmates, unjustified detention, and a conspiracy to obstruct a federal investigation. Included were civil rights violations that included excessive force and unlawful arrests.

The investigation revealed that the jailers’ behavior had become institutionalized to the point that some employees of the Sheriff’s Department considered themselves to be above the law. Deputies also attempted to conceal an informant who was providing photos and information to the FBI while locked up, leading to additional charges of conspiracy to obstruct justice. Two sergeants also allegedly confronted an FBI agent at her home in an attempt to intimidate her into revealing details concerning the investigation.70

The public’s trust and respect are precious commodities and can be quickly lost with improper behavior by criminal justice employees and the improper handling of an allegation of misconduct. The public expects that criminal justice agencies will have sound disciplinary policies, and make every effort to respond to citizens’ complaints in a judicious, consistent, fair, and equitable manner.

Employee misconduct and violations of departmental policy are the two principal areas in which discipline is involved (see Exhibit 14.3).71 Employee misconduct includes those acts that harm the public, including corruption, harassment, brutality, and civil rights violations. Violations of policy may involve a broad range of issues, including substance abuse and insubordination, as well as minor violations of dress and lack of punctuality.

Exhibit 14.3 Example of Agency Policy Governing Officer Conduct

Following is a section of the Pine Bluff, Arkansas, Police Department Policy & Procedures Manual as it pertains to officers’ conduct:

IV. PROCEDURES

GENERAL CONDUCT

OBEDIENCE TO LAWS, REGULATIONS, AND ORDERS

Officers shall obey the constitutional, civil and criminal laws of the city, state, and federal government.

Officers shall obey all lawful orders.

VIOLATIONS INCLUDE, BUT ARE NOT LIMITED TO:

Committing a willful violation of constitutional civil rights that demonstrates reckless disregard.

Committing non-exempted infractions of traffic codes (e.g., driving over the speed limit, failing to observe traffic control devices, parking in unauthorized locations, failing to wear seat belts, etc.)

Inflicting punishment or mistreatment (includes both physical as well as mental) upon a prisoner or person in custody or detention or any other member of the public.

Non-exempted violations of any local, state or federal criminal or civil codes or ordinances.

Refusing or failing to protect a prisoner’s civil rights when such need is made known or should have been known by a competent officer.

Unprivileged publication of a false statement intending to harm the reputation of another member of this agency or any person in general (slander if done verbally and libel if put in written form).

Using excessive force to hold, affect an apprehension, arrest or detain any person.

Using prohibited devices, procedures, tactics or techniques to affect a holding, apprehension, arrest or detention of another.

CONDUCT UNBECOMING AN OFFICER

Honesty, efficiency, and integrity are the first guidelines for a law enforcement officer’s conduct. All law enforcement officers must remember that they are employed to serve the citizens of this jurisdiction. The public is entitled to courteous efficient response to requests for law enforcement services.

Law enforcement officers, whether on or off duty, shall be governed by ordinary and reasonable rules of good conduct and behavior and shall not commit any act which could adversely affect the department.

Officers shall not make known to any person any order or information which they have knowledge of or have received, unless it is in the performance of official duty and given to a person entitled to have the information.

All officers when off duty, but in uniform, shall conduct themselves as though they were on duty.

Members shall conduct themselves (on duty as well as off duty) in a manner that does not damage or have the probable expectations of damaging or bringing the public image, integrity or reputation of the Pine Bluff Police Department into discredit, disrepute or impair its efficient and effective operation.72

Source: Adapted from Pine Bluff, Arkansas, Police Department, Pine Bluff Police Department Policy & Procedures Manual, Policy. Used with permission.

Due Process Requirements

The well-established, minimum due process requirements for discharging public employees include that employees must:

Be afforded a public hearing.

Be present during the presentation of evidence against them and have an opportunity to cross-examine their superiors.

Have an opportunity to present witnesses and other evidence concerning their side of the controversy.

Be permitted to be represented by counsel.

Have an impartial referee or hearing officer presiding.

Have a decision made based on the weight of the evidence introduced during the hearing.

Such protections apply to any disciplinary action that can significantly affect a criminal justice employee’s reputation and/or future chances for special assignment or promotion. A disciplinary hearing that might result in only a reprimand or short suspension may involve fewer procedural protections than one that could result in more severe sanctions.73

An example is a Chicago case involving a patrol officer who was transferred to what he deemed a less desirable work area. The court determined that the transfer was in retaliation for his political activities, in this case also involving his First Amendment free speech rights being violated, and that he was thus entitled to civil damages. The court stated, “Certainly a demotion can be as detrimental to an employee as denial of a promotion.”74

On the contrary, however, no due process protection may be required when the property interest (one’s job) was fraudulently obtained. Thus, a deputy sheriff was not deprived of due process when he was summarily discharged for lying on his application about a juvenile felony charge, which would have barred him from employment in the first place.75

In sum, agency rules and policies should state which due process procedures will be utilized under certain disciplinary situations; the key questions regarding due process are whether the employer follows established agency guidelines and, if not, whether the employer has a compelling reason not to do so.

At times, the administrator will determine that an employee must be disciplined or terminated. What are adequate grounds for discipline or discharge? Grounds can vary widely from agency to agency. Certainly, the agency’s formal policies and procedures should specify and control what constitutes proper and improper behavior. Normally, agency practice and custom enter into these decisions. Sometimes administrators will “wink” at the formal policies and procedures, overlooking or only occasionally enforcing certain provisions contained in them. But the failure of the agency to enforce a rule or policy for a long period of time may provide “implied consent” by the employer that such behavior, although officially prohibited, is permissible. (In other words, don’t allow an employee to violate the agency’s lateness policy for 3 months and then decide one day to summarily fire him.) Attempts to fire employees for behavior that has been ignored or enforced only infrequently at best may give rise to a defense by the employee.

Generally, violations of an employee’s rights in discharge and discipline occur (1) in violation of a protected interest, (2) in retaliation for the exercise of protected conduct, (3) with a discriminatory motive, and (4) with malice.76

A Tradition of Problems in Policing

Throughout its history, policing has experienced problems involving misconduct and corruption. Recent incidents such as the shooting deaths of unarmed, young, African American males as well as major corruption scandals (e.g., officers ripping off drug dealers and even dealing drugs themselves; attempting to cover up their acts of violence; see the following for recent examples: http://www.alternet.org/drugs/5-outrageous-cases-drug-war-police-corruption-week) have led many people to believe that police misbehavior is greater today than ever before.

Without question, police administrators need to pay close attention to signs of police misconduct, respond quickly, and enact policies to guide supervisors in handling disciplinary issues. Such policies should ensure that there is certainty, swiftness, fairness, and consistency of punishment when it is warranted.

Automated Records Systems

A number of police agencies have automated their personnel processes in an effort to establish a better system for tracking and sanctioning personnel actions.77 Specifically, an automated records system involves use of technologies to assist police administrators to more equitably receive, investigate, and arrive at proper dispositions concerning employee complaints and commendations. Within minutes, the database provides supervisors with 5 years of history about standards of discipline for any category of violation. A variety of reports can be produced, showing patterns of incidents for the supervisor.

Determining the Level and Nature of Action

When an investigation against an employee is sustained, the sanctions and level of discipline must be decided. Management must be careful when recommending and imposing discipline because of its impact on the morale of the agency’s employees. If the recommended discipline is viewed by employees as too lenient, it may send the wrong message that the misconduct was insignificant. On the other hand, discipline that is viewed as too harsh may have a demoralizing effect on the officer(s) involved and other agency employees and result in allegations that the leadership is unfair. This alone can have significant impact on the esprit de corps or morale of the agency.

In addition to having a disciplinary process that is viewed by employees as fair and consistent, it is important that discipline be progressive and that more serious sanctions be invoked when repeated violations occur. For example, a third substantiated instance of rude behavior may result in a recommendation for a 1-day suspension without pay, but a first offense may be handled by documented oral counseling or a letter of reprimand. The following list shows disciplinary actions commonly used by agencies in increasing order of severity.

Counseling. This is usually a conversation between the supervisor and employee about a specific aspect of the employee’s performance or conduct; it is warranted when an employee has committed a relatively minor infraction or the nature of the offense is such that oral counseling is all that is necessary. For example, an employee who is usually punctual but arrives at a briefing 10 minutes late 2 days in a row may require nothing more than a reminder and a warning to correct the problem.

Documented oral counseling. This is usually the first step in a progressive disciplinary process and is intended to address relatively minor infractions. It occurs when there are no previous reprimands or more severe disciplinary action of the same or a similar nature.

Letter of reprimand. This is a formal written notice regarding significant misconduct, more serious performance violations, or repeated offenses. It is usually the second step in the formal disciplinary process and is intended to provide the employee and agency with a written record of the violation of behavior; it identifies what specific corrective action must be taken to avoid subsequent, more serious disciplinary steps.

Suspension. This is a severe disciplinary action that results in an employee being relieved of duty, often without pay. It is usually administered when an employee commits a serious violation of established rules or after written reprimands have been given and no change in behavior or performance has resulted.

Demotion. In this situation, an employee is placed in a position of lower responsibility and pay. It is normally used when an otherwise capable employee is unable to meet the standards required for the higher position, or when the employee has committed a serious act requiring that he or she be removed from a position of management or supervision.

Transfer. Many agencies use the disciplinary transfer to deal with problem employees; they can be transferred to a different location or assignment, and this action is often seen as an effective disciplinary tool.

Termination. This is the most severe disciplinary action that can be taken. It usually occurs when previous serious discipline has been imposed and there has been inadequate or no improvement in behavior or performance. It may also occur when an employee commits an offense so serious that continued employment would be inappropriate.

Positive and Negative Discipline

When policies and procedures are violated, positive or negative disciplinary measures may be imposed. Although different in their philosophy, both seek to accomplish the same purpose: to correct negative behavior and promote the employee’s voluntary compliance with departmental policies and procedures.

A positive discipline program (also known as positive counseling) attempts to change poor employee behavior without invoking punishment. An example of positive discipline or counseling is when an employee (“John”) has been nonproductive and nonpunctual, has caused interpersonal problems with coworkers, and/or has other problems on the job. To this point, John has been in control of the situation—on the offensive, one might say—whereas the supervisor (“Jane”) and his coworkers have been on the defensive. John is jeopardizing the morale and productivity of the workplace, but the preferred approach is to try to salvage him because of the agency’s investment in time, funds, and training.

Finally, Jane calls John into her office. She might begin with a compliment to him (if indeed she can find one) and then proceed to outline all of his workplace shortcomings; this demonstrates to John that Jane “has his number” and is aware of his various problems. Jane explains to him why it is important that he improve (for reasons related to productivity, morale, and so on) and the benefits he might realize from improvement (promotions, pay raises, bonuses). She also outlines what can happen if he does not show adequate improvement (demotion, transfer, termination). Now having gained John’s attention, she gives him a certain time period (say, 30, 60, or 90 days) in which to improve; she emphasizes, however, that she will be constantly monitoring his progress. She might even ask John to sign a counseling statement form that sets forth all they have discussed, indicating that John has received counseling and understands the situation.

Note that Jane is now on the offensive, thereby putting John on the defensive and in control of his destiny; if he fails to perform, Jane would probably give him a warning, and if the situation continues, he will be terminated. If he sues or files a grievance, Jane has proof that every effort was made to allow John to salvage his position. This is an effective means of giving subordinates an incentive to improve their behavior while also making the department less vulnerable to successful lawsuits.

Negative discipline is some form of punishment. It is generally used when positive efforts fail or the violation is so serious that punishment is required. Negative discipline varies in its severity and involves documented oral counseling, a letter of reprimand, demotion, days off without pay, or even termination.

Types and Causes

Complaints may be handled informally or formally, depending on the seriousness of the allegation and the preference of the complainant. A formal complaint occurs when a written and signed and/or tape-recorded statement of the allegation is made and the complainant asks to be informed of the investigation’s disposition. Figure 14-2 provides an example of a complaint form used to initiate a personnel investigation.

Figure 14-2 Police Department Formal Personnel Complaint Report Form

Figure 14-2 Full Alternative Text

An informal complaint is an allegation of minor misconduct made for informational purposes that can usually be resolved without the need for more formal processes. When a citizen calls the watch commander to complain about the rude behavior of a dispatcher but does not wish to make a formal complaint, the supervisor may simply discuss the incident with the dispatcher and resolve it through informal counseling as long as more serious problems are not discovered and the dispatcher does not have a history of similar complaints.

Studies show that the majority of complaints involve verbal abuse, discourtesy, harassment, improper attitude, and ethnic slurs.78 It is also known that minority citizens are more likely to file complaints of misconduct and to allege more serious forms of misconduct.79

Receipt and Referral

Administrators should have in place a process for receiving complaints that is clearly delineated by departmental policy and procedures. Generally, a complaint will be made at a police facility and referred to a senior officer in charge to determine its seriousness and the need for immediate intervention.

In most cases, the senior officer will determine the nature of the complaint and the employee involved; the matter will be referred to the employee’s supervisor to conduct an initial investigation. The supervisor completes the investigation, recommends any discipline, and sends the matter to the Internal Affairs Unit (IAU) and the agency head for finalization of the disciplinary process. This method of review ensures that consistent and fair standards of discipline are applied.

The Investigative Process

D. W. Perez80 indicated that all but a small percentage of the 17,000 police agencies in the United States have a process for investigation of police misconduct. Generally, the employee’s supervisor will conduct a preliminary inquiry of the complaint, commonly known as fact-finding. Once it is determined that further investigation is necessary, the supervisor may conduct additional questioning of employees and witnesses, obtain written statements from those persons immediately involved in the incident, and gather any evidence that may be necessary for the case, including photographs. Care must be taken to ensure that the accused employee’s rights are not violated. The initial investigation is sent to an appropriate division commander and forwarded to IAU for review.

Making a Determination and Disposition

Categories

Once an investigation is completed, the supervisor or IAU officer must make a determination as to the culpability of the accused employee and report this to the administrator. Each allegation should receive a separate adjudication. Following are the categories of dispositions that are commonly used:

Unfounded. The alleged act(s) did not occur.

Exonerated. The act occurred, but it is lawful, proper, justified, and/or in accordance with departmental policies, procedures, rules, and regulations.

Not sustained. There is insufficient evidence to prove or disprove the allegations made.

Misconduct not based on the complaint. Sustainable misconduct was determined but is not a part of the original complaint. For example, a supervisor investigating an allegation of excessive force against an officer may find that the force used was within departmental policy but that the officer made an unlawful arrest.

Closed. An investigation may be halted if the complainant fails to cooperate or if it is determined that the action does not fall within the administrative jurisdiction of the police agency.

Sustained. The act did occur, and it was a violation of departmental rules and procedures. Sustained allegations include misconduct that falls within the broad outlines of the original allegation(s).

Once a determination of culpability has been made, the complainant should be notified of the department’s findings. Details of the investigation or recommended punishment will not be included in the correspondence. As shown in Figure 14-3, the complainant will normally receive only information concerning the outcome of the complaint, including a short explanation of the finding along with an invitation to call the agency if further information is needed.

Figure 14-3 Citizens’ Notification-of-Discipline Letter

Figure 14-3 Full Alternative Text

Grievances

Criminal justice employees may complain—have a grievance, which is a real or imagined wrong or other cause for complaint about job-related matters. Following is an overview of the general process that exists for handling grievances.

Grievance procedures establish a fair and expeditious process for handling employee disputes that are not disciplinary in nature. Grievance procedures involve collective bargaining issues, conditions of employment, and employer–employee relations. More specifically, grievances may cover a broad range of issues, including salaries, overtime, leave, hours of work, allowances, retirement, opportunities for advancement, performance evaluations, workplace conditions, tenure, disciplinary actions, supervisory methods, and administrative practices. Grievance procedures are often established as a part of the collective bargaining process.

As indicated above, the preferred method for settling employees’ grievances is through informal discussion, in which the employee explains his or her grievance to the immediate supervisor. Most complaints can be handled through this process. Complaints that cannot be dealt with informally are usually handled through a more formal grievance process, as described next. A formal grievance begins with the employee submitting the grievance in writing to the immediate supervisor, as illustrated in Figure 14-4.

Figure 14-4 Employee Grievance Form

Figure 14-4 Full Alternative Text

The process for formally handling grievances will vary among agencies and may involve as many as three to six different levels of action. Following is an example of how a grievance may proceed:

Level I. An employee’s grievance is submitted in writing to a supervisor. The supervisor will be given 5 days to respond. If the employee is dissatisfied with the response, the grievance moves to the next level.

Level II. At this level, the grievance proceeds to the chief executive, who will be given a specified time (usually 5 days) to render a decision.

Level III. If the employee is not satisfied with the chief’s decision, the grievance may proceed to the city or county manager, as appropriate. The manager will usually meet with the employee and/or representatives from the bargaining association and attempt to resolve the matter. An additional 5–10 days is usually allowed for the manager to render a decision.

Level IV. If the grievance is still not resolved, either party may request that the matter be submitted to arbitration. Arbitration involves a neutral outside person, often selected from a list of arbitrators from the Federal Mediation and Conciliation Service. An arbitrator will conduct a hearing, listen to both parties, and usually render a decision within 20–30 days. The decision of the arbitrator can be final and binding. This does not prohibit the employee from appealing the decision to a state court.

Failure to act on grievances quickly may result in serious morale problems within an agency.

Appealing Disciplinary Measures

Appeals processes—frequently outlined in civil service rules and regulations, labor agreements, and departmental policies and procedures—normally follow an officer’s chain of command. For example, if an officer disagrees with a supervisor’s recommendation for discipline, the first step of an appeal may involve a hearing before the division commander, usually of the rank of captain or deputy chief. The accused employee may be allowed labor representation or an attorney to assist in asking questions of the investigating supervisor, clarifying issues, and presenting new or mitigating evidence. The division commander often has 5 days to review the recommendation and respond in writing to the employee.

If the employee is still not satisfied, an appeal hearing before the chief executive is granted. This is usually the final step in appeals within the agency. The chief or sheriff communicates a decision in writing to the employee within 5 to 10 days. Depending on labor agreements and civil service rules and regulations, some agencies extend their appeals of discipline beyond the department. For example, employees may bring their issue before the civil service commission or city or county manager for a final review. Employees may also have the right to an independent arbitrator’s review of the discipline. The arbitrator’s decision is usually binding.

Alerting to Problems: The Early Intervention System

It has become a truism among police leadership that about 10 percent of their officers cause 90 percent of the problems. Indeed, some research has indicated that as little as 2 percent of all officers are responsible for 50 percent of all citizen complaints. However, there might also be times, for various reasons, when officers who are normally stellar performers act in ways that are uncharacteristically inappropriate. Therefore, the early identification of and intervention with employees engaging in misconduct or performance problems can be vital to preventing ongoing and repeated incidents—and possibly leading to personal injuries with citizens and lawsuits. A mechanism exists to assist police leaders in these tasks.

Early intervention systems (EIS) are a tool being adopted at an increasing rate by law enforcement agencies of all sizes and types. These systems are usually in the form of an electronic database, although some agencies find paper files are effective.

Information collected in EIS concerning officers’ behaviors will help to identify problematic behaviors early on. Some of the more common kinds of information collected by EIS are use of sick leave, the number and type of community complaints, and the number and type of use-of-force incidents.81 EIS, therefore, functions most effectively when used to help identify and address problems before officers get into serious trouble (e.g., before formal complaints or lawsuits arise and before an officer’s well-being is compromised).

It is important to note that first-line supervisors are really the key to successful use of EIS. They are typically the first to observe potentially problematic behavior among their officers and are typically involved in the intervention process when required. For that reason, the chief executive also has a major role within EIS, ensuring that those first-line supervisors are prepared for this major aspect of their role (i.e., being able to analyze system data—see Figure 14-5), willing to formally approach officers about personal or other problems that may be affecting their work, and following up with appropriate intervention options).82

Figure 14-5 A sample administrative database, taken from actual records, from L.E.A. Data Technologies, http://www.leadatatech.com/reports/admin/Complaint-Summary-Totals . Used with permission.

Figure 14-5 Full Alternative Text

Not to Be Overlooked: Internal Complaints and Problems

Generally when looking to identify problem police and corrections officers, their administrators and supervisors focus on citizens’ excessive force complaints and related actions. However, there are some officers who might interact well with citizens but fail to meet internal departmental standards, generating internal complaints—as indicated earlier, those complaints filed against employees by persons within the organization, either peers or supervisors. Or, there may be officers who are rude to citizens and generate the most use-of-force complaints—and who also generate internal complaints by neglecting their duties, being insubordinate to their supervisors, failing to be at work punctually, and so on. Therefore, agency administrators and supervisors should also seek to determine the extent of internal complaints and the relationship between internal complaints and citizen complaints.83

Indeed, research indicates that officers demonstrating behavioral problems with citizens are also those officers who are identified by their peers or supervisors. In addition, while complaints generated by citizens generally peak early in one’s career and then decline thereafter, internal complaints (although at lower rates than citizen complaints) quickly peak but then maintain a steady level across one’s career84—indicating that misbehavior that involves internal departmental standards can be a problem that lasts many years.

The Recreational Marijuana Conundrum: To Smoke or Not to Smoke?

With the spread of legalized marijuana use—both for medical and recreational purposes—across the United States, a question that is already being posed is whether or not criminal justice employees—particularly the police (who, from 2000 to 2014 alone, made from 600,000 to 775,000 marijuana arrests per year)85 should or will be permitted to use it when off-duty. This is a thorny issue, especially given that marijuana use has been one of the primary disqualifiers of police applicants for many years—some agencies in the past disqualifying would-be officers for using marijuana within the past 5 years (it is still common for agencies to bar applicants who have used marijuana over the past 3 years).

How should police leaders view this matter, in general? How should agency policy be drafted? Following are some points to consider. First, although officers might reside in a state where marijuana use is legal, marijuana remains a Schedule 1 substance under the Controlled Substances Act (which means it is determined by the Food and Drug Administration to have no medical use). Therefore, until its legal status is changed, officers would be violating federal law by using it.

Another viewpoint is that while officers could use marijuana without being in violation of their state law, they would still be subject to their agencies’ conduct policies, which generally prohibit the use of certain drugs. Therefore, if the officers’ use of marijuana was discovered, they could be disciplined or terminated.86

Finally, a potential hurdle is drug testing that cannot distinguish between past and current use. Police officers must of course be able to prove at any time that they are not under the influence of any substance. However, today’s marijuana tests do not discriminate between current and past intoxication—tests of hair, urine, blood, and saliva indicate ingestion days, weeks, even months after usage; so even if an agency allowed its officers to use cannabis recreationally while off-duty, contemporary testing protocol probably still makes it difficult if not impossible to prove they were not intoxicated while on-duty.87

In sum, police leaders probably will continue taking a hard-line approach against in-service officers’ use of cannabis at any time; however, agencies can always ease their requirements for applicants. Such was the case in Seattle, Washington: the police department formerly required that applicants not have used marijuana for 3 years. Now the rule is no use with at least 1 year before joining the force.88 The option of relaxing standards of past marijuana use may soon be spreading, as recruiting pools and positions become more difficult to fill and agencies begin to realize that societal attitudes are also relaxing. As examples, the U.S. Drug Enforcement Administration bars those who have experimented with or used narcotics from becoming agents, but it can make exceptions “for applicants who admit to limited youthful and experimental use of marijuana.”89

15) First Things First: Enhancing Budgets and Financial Stewardship

Possessing insight into the world of fiscal affairs requires more than merely knowing how to ask for and spend monies. Therefore, next we discuss some peripheral but nevertheless important matters that bear heavily on the task of budgeting, discussed later.

Knowing What the Job Entails—and What the Competition Is Doing

To possess financial insight and confidence, criminal justice administrators must first know what the job entails in order to provide optimal service to the community and meeting overall agency demands. Toward that end, a workload analysis should be completed at least every 3 years to ensure the agency has adequate staff to address the needs of the community and allow for strategic planning. A workload analysis, simply put, is a measure of an agency’s staffing and deployment needs based on the demands for service that the community places on it; in policing, for example, such analysis would consider such tasks as responding to calls for service (CFS), attending training and community/departmental meetings, meal breaks, going to court, transporting prisoners, and so on. Then, with that information, staffing levels, shift schedules, beat configuration, and other related aspects of policing are better developed. (Note: In policing, many agencies strive to mimic a “recommended officers per 1,000 population” or a “national standard” for staffing; however, it is generally not useful to use such information for determining staffing needs.3 Note, too, that for police, CFS are used instead of crime rates as workload indicators. Typically, only a small percent of a police department’s CFS are crime-related in nature; much more common are CFS for order-maintenance duties. Therefore, it is far better for a police leader to divide officers’ time into CFS, administrative duties, and community policing and problem-solving, and use these statistics rather than the crime rate to justify staffing requests.4)

For the courts, a workload analysis might include some or all of the following: caseload type (e.g., criminal, civil, juvenile, industrial), assignment, amount of time spent on each case, draft opinions, the final work product must be closely reviewed by other judges within the division, participation in meetings and committee work, customer service, human resources issues, keeping current on the law, continuing legal education, public speaking/community outreach, and bar and legal association activities.5

In corrections, particularly prisons, staffing levels should take into account such factors as the classification system, the division of labor among types of facilities, methods of operation and service delivery, inmate programs and activities, and the status of facility physical plants.6

Of course, all three components should take into account the respective agency’s mission and goals, organizational structure, policies and procedures, any union agreements and consent decrees (discussed in Chapter 14), contracted services, and so on. Although such an analysis can be very complicated, there are a number of resources available to assist in this endeavor.7

Once the staffing levels have been identified, the agency should compare its salary and benefits package to other agencies in the surrounding area. For most employees today, money alone is not a motivator; however, the absence of money can be a de-motivator. Employees soon learn how their salaries and benefits stand in comparison with other nearby agencies, and thus it is important for the agency to keep pace with the pay schedule in its labor market lest their employees leave for what they perceive as greener pastures. A simple telephone survey can be conducted of similar agencies in the area. Such surveys should include the base rate of pay, insurance, and other benefits for each community by position. Also, take into account shift configuration (e.g., eight-, ten-, or twelve-hour work schedules) and any perks such as take-home vehicles, recruitment bonuses, educational incentives, and shift differential pay.8

Strategies for Enhancing the Bottom Line: Growth, Grants, and Civilianization

Following are several suggestions for enhancing and stretching the budget. Although these measures will not be successful in all jurisdictions and at all times, criminal justice leaders should be sensitive to their potential as “winning strategies.”

First is population growth, which often occurs when middle-class persons move into a city’s existing area or into newly annexed areas. While middle-class residents do not typically experience high crime rates, such citizens are normally well informed, concerned about their safety and police services, and thus command greater police, courts, and corrections services. In addition, annexation (the incorporation of new territory into the domain of a city, country, or state) will sometimes bring growth to police staffing.9

Many criminal justice administrators have developed expertise in augmenting their operating budgets with different types of grants. In policing, many times expensive capital improvement budget items—upgraded communications technology including the more powerful 800 MHz radios, dispatching systems, mobile data terminals, and laptops for police vehicles—are funded by grants. Capital budgets also included expenditures for buildings, vehicles, and property. The more expensive items are typically funded by bonds and the less expensive items by grants, general funds, or asset-forfeiture funds. Police departments can access a variety of external funding sources, including state and federal grants, foundations, and business groups.10

Like the police, judges and prison administrators have a surprising number of funding sources available to the enterprising grant writer. Following is an overview:

Justice Assistance Grants (JAG) program. JAG is a broad-based, competitive program with 29 funding areas; its funding is intended as “seed money” to start new programs, and funding ranges from 1 to 3 years.11

Bureau of Justice Assistance. BJA has funding opportunities for treatment programs and specialty courts, drug testing and equipment, and intensive outpatient programs.12

Office of Justice Programs. OJA provides a variety of types of grants geared toward implementing strategies that involve identifying the most pressing crime-related challenges and to provide information, training, and coordination for addressing these challenges.13

The Violence Against Women Reauthorization Act of 2013.14 VAWA has grant programs for addressing domestic violence, dating violence, sexual assault, and stalking.15

The Office of Juvenile Justice and Delinquency Prevention (OJJDP). OJJDP provides a variety of grants for research, training, and technical assistance; funding of new projects; and dissemination of information.16

In addition, most states have an administrative office, department of public safety, and other entities that can provide funding for a variety of purposes. There are caveats with receiving “free money” from grants, however, and criminal justice leaders should heed the adage “beware of feds bearing gifts.” The major problem is simply that if local officials accept federal funding—particularly for hiring additional employees—they also promise to retain these employees and keep current staffing levels after the federal contributions expire. However, some agencies simply fail to plan adequately for the phaseout of federal assistance; then, after what is typically 3 years of grant funding, the agencies can find themselves struggling to locate the funds to do so.

A beginner’s step-by-step guide for writing competitive grants is available at: http://www.policegrantshelp.com/grants101/.17

Finally, there has been a long-standing debate about whether or not to use, or expand, civilianization in criminal justice. Such debate is particularly acute in policing, as many unions, chiefs, and mayors prefer to expand the ranks of sworn personnel. Since they are not required to undergo the same comprehensive training as uniformed police, however, civilian employees can replace sworn officers in many tasks while ultimately commanding a lower salary (as well as few, if any, fringe benefits). In addition, civilianization can allow citizens to become more knowledgeable about their police and familiar with problems affecting the community.18

Other Causes of Budget Expansion: Sensational Incidents, Mobilized Stakeholders, Strategic Planning

The occurrence of major crime events—hopefully in a jurisdiction other than yours—can also bring about a loud call for more criminal justice resources. The reporting of mass killings, the murder of a police officer or judge, random shootings at schools, and so on, certainly carry an emotional element and can be a powerful rationale for making budget requests. Even when the crime rate is decreasing, violent crimes may fuel citizens’ and politicians’ fears.

Regarding the mobilizing of stakeholders, criminal justice leaders should never forget that there exists a natural constituency of neighborhood groups, civic organizations, and business groups that are concerned about crime.19

Finally, in addition to being a political document, as indicated above, the criminal justice agency budget is also a planning document. Strategic planning also became a much more integral aspect of the administrator’s job since the recession. Indeed, if unlimited funds were available, planning would not be needed. The aforementioned financial crisis also had a profound effect on the ability of such agencies to plan strategically for staffing and other needs. As a result, today’s agencies must view planning as more important than ever for determining staffing needs and in getting the resources to meet these needs.

Many people have difficulty understanding the concept of and need for strategic planning as it relates to finances and the future. So, take for example a high school senior who is pondering where to attend a college or university. Some preliminary questions to ponder would include: what are my aptitudes and interests? What kinds of careers fit those aptitudes and interests? How do I achieve that goal? And to achieve that goal, can I afford to go to an out-of-state school? Are scholarships available to me? Will I have to work part- or full time while in school? Can I get family help? Will I be able to afford (or even need) a car while in school? How will I pay for books, tuition, housing, and other living expenses? This is strategic planning for the short and long term.

This exercise is not unlike that of a criminal justice executive who wishes to have some better plan of taking the agency where it needs to go. Strategic planning thus means seeing both the big picture and its operational implications. Strategic thinking is, therefore, compatible with strategic planning. Both are required in any thoughtful strategy-making process and strategy formulation.20 Strategic planning is also a leadership tool and a process; it shapes and guides what an organization is, what it does, and why it does it, with a focus on the future.21

Excellent examples of strategic planning abound; for example, see the strategic plan of the U.S. Department of Justice for 2014–2018 at: https://www.justice.gov/sites/default/files/jmd/legacy/2014/02/28/doj-fy-2014-2018-strategic-plan .22

Exhibit 15.1 Using Planning, Smart Policing, and Force Multipliers in Camden, New Jersey23

The city of Camden, New Jersey, was struggling for survival even before the Great Recession. In addition to being the nation’s poorest city (36% of residents living in poverty), its violent crime rate was more than five times that of the nation. Drug and gang crimes abounded, and 40 percent of its violent crimes were committed by youths. Many veteran as well as new officers were laid off or demoted, while others saw their salaries cut, and the agency’s budget was cut by 25 percent. The police chief began seeking ways to restructure the department so as to use a smart policing strategy with remaining officers, and the first move was to eliminate or reduce specialized units and move administrative and investigative personnel to the streets. Technologies were introduced to move to a “smarter” approach that would be a force multiplier. A real-time tactical operations center was created and a gunshot location system initiated in the city’s high-incident areas. Automated license-plate readers were used to detect stolen vehicles associated with criminals.

Yet, despite their best efforts, the severe budget cuts and loss of personnel resulted in rising crime rates. With fewer officers on the streets, criminals became more brazen, while citizen fear of crime, city homicides, and CFS escalated. Eventually, the city felt compelled to begin discussing a plan for consolidating its force with county agencies—a change that would save the city $14 million per year. A plan was devised whereby nearly 300 city officers would be laid off, but about half of them could be hired into the new agency through an application process. The city and county did indeed consolidate in 2013.

The key lesson to be learned from the Camden experience as other jurisdictions attempt to develop proactive responses to crime is that technology is not a substitute for police officers being deployed on the streets.

or many people, and for a long period of time, the courts have been viewed as having a “special status” as the third branch of government, possessing “the duty to protect access to justice for all … to uphold the Constitutions of our state and nation and the laws … to protect individuals’ rights.”24 Indeed, courts are not opposed to suing their governing boards if believing they are not being funded sufficiently or in a sound fashion.25

Today, however, the recent recession has taught judges and court administrators that money trumps any special status they might hold with state or local legislators (normally a handful of whom are truly expert in budgetary matters and must be lobbied and sold on the budget request). These lawmakers are inundated with budget requests, and too often they are presented a budget request by judges in a manner perceived as an entitlement. Today, therefore, judges should invite key legislators to meet and observe courts in action, explain where the courts fit within the state’s entire budget, and have plenty of data to justify their request

hinking about Fiscal Reform: California Voters Reduce, Reinvest Prison Expenditures

Today about 2.25 million Americans are incarcerated in the United States, 1.5 million of whom are in adult correctional facilities.27 Of the total corrections expenditures, about $80 billion per year, 80 percent is spent on maintaining these institutions.28 Indeed, corrections spending is the third largest category of spending in most states, behind education and health care, and about one-fifth of the states spend more on corrections than on higher education.29

This is felt to be unsound fiscal policy: that states’ financial fortunes would be stronger if they invested in education and other areas that can boost long-term economic growth, and less in maintaining high prison populations. A number of states are reconsidering their corrections policies, looking at sentencing reforms that would save money and incarcerate only those who need to be confined. California is one such state.

In November 2014, with the support of 60 percent of voters, Californians approved Proposition 47, the “Safe Neighborhoods and Schools Act,” which contained a number of criminal justice reforms for reducing the state’s prison population and redirecting the savings. Proposition 47:

reclassified seven types of nonviolent drug and property offenses (included were petty theft, receiving stolen property and forging/writing bad checks when the amount involved is $950 or less) from felonies to misdemeanors for future offenders (however, current offenders in prison could petition for resentencing), shortening the maximum penalty from a prison sentence to 1 year in jail.

mandated the state calculate the savings from the reforms each year and deposit them in a dedicated fund.

required the savings deposited in the aforementioned fund could only be used for three purposes: 65 percent for mental health, drug treatment, and diversionary programs; 25 percent to support at-risk youth; and 10 percent for victim services.

Estimates are that the law will likely cut the state’s prison population by several thousand inmates, while saving hundreds of millions of dollars annually.30

The Budget

In this section, we focus on the more intricate parts of budgeting, to include elements, types (with several examples provided), formulation, and execution. Included is a brief explanation of the role of auditing.

A Working Definition

The word budget is derived from the old French word bougette, meaning a small leather bag or wallet. Initially, it referred to the leather bag in which the Chancellor of the Exchequer carried documents stating the government’s needs and resources given to the English Parliament.31 Later, it came to mean the documents themselves. More recently, budget has been defined as a plan stated in financial terms, an estimate of future expenditures, a policy statement, the translation of financial resources into human purposes, and a contract between those who appropriate the funds and those who spend them.32 To some extent, all of these definitions are valid.

In addition, the budget is a management tool, a process, and a political instrument. It is a comprehensive plan, expressed in financial terms, by which a program is operated for a given period. It includes (1) the services, activities, and projects comprising the program; (2) the resultant expenditure requirements; and (3) the resources available for their support.33

It is “a plan or schedule adjusting expenses during a certain period to the estimated income for that period.”34 Lester Bittel added:

A budget is, literally, a financial standard for a particular operation, activity, program, or department. Its data are presented in numerical form, mainly in dollars—to be spent for a particular purpose—over a specified period of time. Budgets are derived from planning goals and forecasts.35

Although these descriptions are certainly apt, one writer warns that budgets involve an inherently irrational process: “Budgets are based on little more than the past and some guesses.”36

As noted above, financial management of governmental agencies is clearly political. Anything the government does entails the expenditure of public funds.37 Thus, the most important political statement that any unit of government makes in a given year is its budget. Special-interest groups, the media, politicians, and the public, with their own views and priorities, often engage in arm-twisting during the budgeting process.

Key Elements: The Budget Cycle, Formulation, Approval, Execution, Audit

Administrators must think in terms of a budget cycle—simply put, how long a budget lasts, which is a time frame that can vary from agency to agency. In government (and, therefore, all public criminal justice agencies) the budget cycle is typically set on a fiscal-year basis. Some states have a biennial budget cycle; their legislatures, such as those in Kentucky and Nevada, budget for a 2-year period. Normally, however, the fiscal year is a 12-month period that may coincide with a calendar year or, more commonly, will run from July 1 through June 30 of the following year. The federal government’s fiscal year is October 1 through September 30. The budget cycle is important because it drives the development of the budget and determines when new monies become available.

The budget cycle consists of four sequential steps, repeated every year at about the same point in time: (1) budget formulation, (2) budget approval, (3) budget execution, and (4) budget audit.

Depending on the size and complexity of the organization and the financial condition of the jurisdiction, budget formulation—which involves the preparation of a budget so as to be able to allocate funds in accordance with agency priorities, plans, and programs, and to deliver necessary services—can be a relatively simple or an exceedingly difficult task; in either case, it is likely to be the most complicated stage of the budgeting process. The administrator must anticipate all types of expenditures—that is, payment for goods or services, to settle a financial obligation indicated by an invoice, contract, or other such document—and predict expenses related to major incidents or events that might arise. Certain assumptions based on the previous year’s budget can be made, but they are not necessarily accurate. One observer noted that “every expense you budget should be fully supported with the proper and most logical assumptions you can develop. Avoid simply estimating, which is the least supportable form of budgeting.”38

To illustrate, let us assume that a police department budget is being prepared in a city or county having a manager form of government. Long before a criminal justice agency (or any other unit of local government) begins to prepare its annual budget, the city or county manager and/or the staff have made revenue forecasts, considered how much (if any) of the current operating budget will be carried over into the next fiscal year, analyzed how the population of the jurisdiction will grow or shift (affecting demand for public services), and examined other priorities for the coming year. The manager may also appear before the governing board to obtain information about its fiscal priorities, spending levels, pay raises, new positions, programs, and so on. The manager may then send department heads a memorandum outlining the general fiscal guidelines to be followed in preparing their budgets.

On receipt of the guidelines for preparing its budget, the heads of functional areas, such as the chief of police or sheriff, have a planning and research unit (assuming a city or county is large enough to have this level of specialization) prepare an internal budget calendar and an internal fiscal policy memorandum (Table 15-1 shows an internal budget calendar for a large city police department). This memo may include input from unions and lower supervisory personnel. Each bureau is then given the responsibility for preparing its individual budget request.

Table 15-1 Budget Preparation Calendar for a Large City Police Department

What Should Be Done By Whom On This Date

Issue budget instructions and applicable forms City administrator November 1

Prepare and issue budget message, with instructions and applicable forms, to unit commanders Chief of police November 15

Develop unit budgets with appropriate justification and forward recommended budgets to planning and research unit Unit commanders February 1

Review unit budget Planning and research staff with unit commanders March 1

Consolidate unit budgets for presentation to chief of police Planning and research unit March 15

Review consolidated recommended budget Chief of police, planning and research staff, and unit commanders March 30

Obtain department approval of budget Chief of police April 15

Forward recommended budget to city administrator Chief of police April 20

Review recommended budget by administration City administrator and chief of police April 30

Approve revised budget City administrator May 5

Forward budget document to city council City administrator May 10

Review budget Budget officer of city council May 20

Present to council City administrator and chief of police June 1

Report back to city administrator City council June 5

Review and resubmit to city council City administrator and chief of police June 10

Take final action on police budget City council June 20

Source: U.S. Department of Justice, National Advisory Commission on Criminal Justice Standards and Goals, Police (Washington, DC: U.S. Government Printing Office, 1973), p. 137.

In small police agencies with little or no functional specialization, the chief or sheriff may prepare the budget alone or with input from other officers or the city finance officer. In some small agencies, chiefs and sheriffs may not even see their budget or assist in its preparation. Because of tradition, politics, or even laziness, the administrator may have abdicated control over the budget. This puts the agency in a precarious position indeed; it will have difficulty engaging in long-term planning and spending money productively for personnel and programs when the executive has to get prior approval from the governing body to buy items such as office supplies.

The planning and research unit then reviews the bureau’s budget request for compliance with the budgeting instructions and the agency’s priorities. Eventually, a consolidated budget is developed for the entire agency and submitted to the chief executive, who may meet with the planning and research unit and bureau commanders to discuss it. Personalities, politics, priorities, personal agendas, and other issues may need to be addressed; the chief or sheriff may have to mediate disagreements concerning these matters, sometimes rewarding the loyal and sometimes reducing allotments to the disloyal.39 Requests for programs, equipment, travel expenses, personnel, or anything else in the draft budget may be deleted, reduced, or enhanced. The budget is then presented to the city or county manager. At this point, the chief executive’s reputation as a budget framer becomes a factor. If the chief executive is known to pad the budget heavily, the manager is far more likely to cut the department’s request than if the chief or sheriff is known to be reasonable in making budget requests, engages in innovative planning, and has a flexible approach to budget negotiations.

The city or county manager consolidates the police budget request with those from other department heads and then meets with them individually to discuss their requests further. The manager directs the city finance officer to make any necessary additions or cuts and then to prepare a budget proposal for presentation to the governing body. The general steps in budget development are shown in Exhibit 15.2.

Exhibit 15.2 Steps in Budget Development

Following is a description of how the $1.96 billion budget for the California Highway Patrol (CHP) is typically developed. According to the budget section, “It is an all-year and year-on-year process” that begins at the level of the 8 divisions and 103 area offices/dispatch centers, where budget requests originate. The requests are dealt with one of three ways: (1) funded within the department’s base budget, (2) disapproved, or (3) carried forward for review by CHP personnel.

At the division level, managers review the area requests, make needed adjustments, and submit a consolidated request to the budget section at headquarters. This section passes input from the field to individual section management staff (e.g., planning and analysis, personnel, training, and communications) for review. Budget section staff meets with individual section management staff. Within 2 or 3 months, the budget section identifies proposals for new funding that have department-wide impact and passes them on to the executive level.

The commissioner and aides review the figures along with those from other state departments and agree on a budget to submit to the governor. The governor submits this budget to the legislature, which acts on it and returns it to the governor for signature.

Source: Excerpt from “Working Out a Budget” by Hal Rubin from Law and Order. Copyright © 1989 by Hendon Publishing Company. Used by permission of Hendon Publishing Company.

The courts have a similar budgetary process. In a large court, the process may include five major procedures: (1) developing an internal budgetary policy, (2) reviewing budget submissions, (3) developing a financial strategy, (4) presenting the budget, and (5) monitoring the budget. Figure 15-1 illustrates the relationship of the steps in the judicial budget process.

Figure 15-1 Steps in a Judicial Budgetary Process

* Particularly applicable in a large court, much less so in a small court.

Figure 15-1 Full Alternative Text

With the city or county manager’s proposed budget request in hand, the governing board begins its deliberations on the budget for the entire jurisdiction. The city or county manager may appear before the board to answer questions concerning the budget; individual department heads also may be asked to appear. Suggestions for getting monies approved and appropriated include the following:

Have a carefully justified budget.

Anticipate the environment of the budget hearing by reading news reports and understanding the priorities of the council members. Know what types of questions elected officials are likely to ask.

Determine which “public” will be at the agency’s budget hearing and prepare accordingly. Public issues change from time to time; citizens who were outraged over an issue one year may be incensed by another the next.

Make good use of graphics in the form of pie charts and histograms, but be selective and do not go overboard. Short case studies of successes are normal and add to the impact of graphics.

Rehearse and critique the presentation many times.

Be a political realist.40

After everyone scheduled has spoken, the city or county council will direct the manager to make further cuts in the budget or to reinstate funds or programs cut earlier, and so on. The budget is then approved. It is fair to say that at this stage, budgeting is largely a legislative function that requires some legal action, as a special ordinance or resolution approving the budget is passed each year by the governing board.

The columns in Table 15-2 indicate the budget amount requested by the chief of police, the amount recommended by the city manager, and the amount finally approved by the city council.

Table 15-2 Police Operating Budget ($) in a Community of 100,000 Population

Description FY 2016–2017 Expenses FY 2017–2018 Expenses FY 2018–2019 Police Request City Manager City Council

Salaries/wages

Regular salaries 28,315,764 28,392,639 32,221,148 32,221,148 32,221,148

Overtime 1,976,165 1,564,421 1,902,875 1,902,875 1,422,875

Severance pay 456,712 452,465 454,936 -0- -0-

Holiday pay 790,952 1,182,158 1,396,958 1,396,958 1,396,958

Callback pay 1,205,947 1,326,534 1,476,925 1,395,241 1,395,241

Subtotals 32,745,540 32,918,217 36,916,222 36,916,222 36,436,222

Employee benefits

Retirement 6,345,566 6,485,888 8,069,521 8,069,521 8,069,521

Group insurance 2,256,663 2,467,406 2,752,718 2,752,718 2,752,718

Life insurance 86,797 106,164 234,590 234,396 234,396

Disability insurance 1,452,885 1,588,686 2,346,909 2,346,038 2,024,398

Uniform allowance 376,079 386,827 392,750 392,750 392,750

Medicare 154,730 160,868 200,058 198,739 198,739

Long-term disability 22,583 42,974 96,517 96,517 96,517

Subtotals 10,695,303 11,238,813 14,093,063 14,090,679 13,769,039

Services and supplies

Office supplies 124,357 98,292 102,485 102,485 102,485

Operating supplies 454,563 296,569 540,661 540,661 540,661

Repair/maintenance 496,922 390,941 466,118 466,118 466,118

Small tools 98,508 1,576 24,175 24,175 24,175

Professional services 674,263 580,359 668,765 668,765 668,765

Communications 574,757 446,200 784,906 784,906 784,906

Services and supplies

Public utilities 222,935 232,773 242,008 242,008 242,008

Rentals 162,840 192,294 226,071 226,071 226,071

Vehicle rentals 1,668,416 2,193,926 2,363,278 2,363,278 2,169,278

Extradition 40,955 44,411 40,000 40,000 40,000

Other travel 8,649 10,123 46,500 46,500 46,500

Advertising 4,662 4,570 8,100 8,100 8,100

Insurance 656,360 1,190,257 1,884,921 1,884,921 1,884,921

Books/manuals 32,285 24,813 24,404 24,404 24,404

Employee training 94,029 60,851 -0- -0- -0-

Aircraft expenses -0- -0- 30,000 30,000 30,000

Special inventory 22,527 26,465 30,000 30,000 30,000

Other services and supplies 2,386,201 2,039,651 2,386,201 2,386,201 2,386,201

Subtotals 7,723,229 7,834,071 9,868,593 9,868,593 9,868,593

Capital outlay

Machinery and equipment 1,144,301 204,964 -0- -0- -0-

Totals 52,308,373 52,196,065 60,877,878 60,875,494 60,073,854

The third stage of the process, budget execution, has several objectives: (1) to carry out the organization’s budgeted objectives for the fiscal year in an orderly manner, (2) to ensure that the agency undertakes no financial obligations or commitments other than those funded by the city or county council, and (3) to provide a periodic accounting of the administrator’s stewardship over the agency’s funds.41

Supervision of the budget execution phase is an executive function that requires some type of fiscal control system, usually directed by the city or county manager. Periodic reports on accounts are an important element of budget control; they serve to reduce the likelihood of overspending by identifying areas in which deficits are likely to occur as a result of change in gasoline prices, extensive overtime, natural disasters, and unplanned emergencies (such as riots). A periodic budget status report tells the administrator what percentage of the total budget has been expended to date (Table 15-3).

Table 15-3 A Police Department’s Budget Status Report ($)

Line Item Amount Budgeted Expenses to Date Amount Encumbered Balance to Date Percentage Used

Salaries 16,221,148 8,427,062.00 -0- 7,794,086.00 52.0

Professional services 334,765 187,219.61 8,014.22 139,531.17 58.3

Office supplies 51,485 16,942.22 3,476.19 31,066.59 39.7

Repair/maintenance 49,317 20,962.53 1,111.13 27,243.34 44.8

Communications 392,906 212,099.11 1,560.03 179,246.86 54.4

Utilities 121,008 50,006.15 10,952.42 60,049.43 51.4

Vehicle rentals 1,169,278 492,616.22 103,066.19 573,595.59 51.9

Travel 23,500 6,119.22 2,044.63 15,336.15 34.7

Extraditions 20,000 12,042.19 262.22 7,695.59 61.5

Printing/binding 36,765 15,114.14 2,662.67 18,988.19 48.4

Books/manuals 12,404 5,444.11 614.11 6,345.78 48.8

Training/education 35,695 19,661.54 119.14 15,914.32 55.4

Aircraft expenses 15,000 8,112.15 579.22 6,308.63 57.9

Special investigations 15,000 6,115.75 960.50 7,922.75 47.2

Machinery 1,000 275.27 27.50 697.23 30.3

Advertising 4,100 1,119.17 142.50 2,838.33 30.8

The prudent criminal justice administrator normally attempts to manage the budget conservatively for the first 8 or 9 months of the budget year, holding the line on spending until most fiscal crises have been averted. Because unplanned incidents and natural disasters can wreak havoc with any budget, this conservatism is normally the best course. Then the administrator can plan the most efficient way to allocate funds if emergency funds have not been spent.

Finally, budgets are subject to an audit, which means “to verify something independently.”42 The basic rationale for an audit of a budget—which is an objective examination of the financial statements of an organization, either by its employees or by an outside firm—was described by the controller general of the United States as follows:

Governments and agencies entrusted with public resources and the authority for applying them have a responsibility to render a full accounting of their activities. This governmental accountability should identify not only the object for which the public resources have been devoted but also the manner and effect of their application.43

After the close of each budget year, the year’s expenditures are audited to ensure that the agency spent its funds properly. Budget audits investigate three broad areas of accountability: financial accountability (focusing on proper fiscal operations and reports of the justice agency), management accountability (determining whether funds were utilized efficiently and economically), and program accountability (determining whether the unit of government’s goals and objectives were accomplished).44

Furthermore, financial audits determine whether funds were spent legally, the budgeted amount was exceeded, and the financial process proceeded in a legal manner. For example, auditors investigate whether funds transferred between accounts were authorized, grant funds were used properly, computations were made accurately, disbursements were documented, financial transactions followed established procedures, and established competitive bidding procedures were employed.45 Justice administrators should welcome auditors’ help to identify weaknesses and deficiencies and correct them.

Budget Formats

The three types of budgets primarily in use today are the line-item budget (or object-of-expenditure budget), the performance budget, and the program (or results or outcomes) budget. Two additional types, the planning–programming–budgeting system (PPBS) and the zero-based budget (ZBB), are also discussed in the literature but are used to a lesser extent. These terms are defined and discussed later in this chapter.

The Line-Item Budget

Line-item budgeting (or item budgeting) is the most commonly used budget format. It is the basic system on which all other systems rely because it affords control. It is so named because it breaks down the budget into the major categories commonly used in government (e.g., personnel, equipment, contractual services, commodities, and capital outlay items); every amount of money requested, recommended, appropriated, and expended is associated with a particular item or class of items.46 In addition, large budget categories are broken down into smaller line-item budgets (in a police department, examples include patrol, investigation, communications, and jail function). The line-item format fosters budgetary control because no item escapes scrutiny.47 Table 15-2, shown earlier, demonstrates a line-item budget for police, as do Tables 15-4 for a court, 15-5 for probation and parole, and 15-6 for a state prison organization. Each demonstrates the range of activities and funding needs of each agency. Note in Tables 15-2, 15-5, and 15-6 how a recession affected budgets and requests from year to year in many categories, resulting in budget reductions and even some total eliminations of items previously funded. Also note some of the ways in which administrators deviated from their usual practices to save money (e.g., the police budget shows that the department found it to be less expensive to lease patrol vehicles than to buy a huge fleet).

Table 15-4 Operating Budget for a District Court in a County of 100,000 Population

Category Amount ($)

Salaries and wages

Regular salaries 3,180,792

Part-time temporary 19,749

Incentive/longevity 70,850

Subtotal 3,271,391

Employee benefits

Group insurance 270,100

Worker compensation 18,470

Unemployment compensation 33,220

Retirement 612,211

Social security 15,605

Medicare 23,503

Subtotal 973,109

Services and supplies

Computers and office equipment 62,865

Service contracts 5,000

Minor furniture/equipment 2,000

Computer supplies 15,000

Continuous forms 8,000

Office supplies 86,066

Advertising 8,550

Copy machine expenses 80,000

Dues and registration 8,000

Printing 64,000

Telephone 106,000

Training 12,000

Court reporter/transcript 535,000

Court reporter per diem 465,000

Law books/supplements 19,000

Jury trials 575,000

Medical examinations 180,000

Computerized legal research 120,000

Travel 4,500

Subtotal 2,423,981

Child support

Attorneys and other personnel 266,480

Court-appointed attorneys 1,656,000

Grand juries 88,600

Family court services 1,762,841

Total 8,974,823

Table 15-5 Probation and Parole Budget ($) for a State Serving 1 Million Population

Description FY 2016–2017 Actual FY 2017–2018 Agency Request FY 2018–2019 Governor’s Recommendation Legislature Approved

Personnel 26,741,104 28,290,523 26,620,991 26,540,222

Travel 824,588 824,588 824,588 802,689

Operating expenses 2,307,020 2,395,484 2,307,020 2,256,787

Equipment 20,569 8,379 8,379 8,379

Loans to parolees 8,500 8,500 8,500 8,500

Training 18,073 18,073 18,073 18,073

Extraditions 400,000 400,000 400,000 285,000

Client drug tests 224,962 224,962 224,962 224,962

Home arrest fees 224,005 224,005 224,005 228,005

Community programs 100,000 100,000 100,000 87,500

Residential confinement 896,709 1,000,709 896,709 887,663

Utilities (paid by building lessors) Totals 31,765,530 33,495,223 31,633,227 31,347,780

Table 15-6 Operating Budget ($) for a State Medium Security Prison with 500 Inmates

Description FY 2016–2017 Actual FY 2017–2018 Agency Request FY 2018–2019 Governor’s Recommendation Legislature Approved

Personnel

Salaries 10,051,095 10,370,979 10,186,421 10,105,533

Worker’s compensation 284,362 243,462 401,198 298,016

Retirement 2,142,010 2,174,968 2,215,674 2,196,028

Recruit tests 89,447 101,528 85,692 84,972

Insurance 874,330 888,250 1,013,000 1,000,175

Retirement insurance 60,963 61,872 65,917 65,349

Unemployment compensation 12,003 12,383 12,162 12,065

Overtime 265,856 -0- -0- -0-

Holiday pay 250,519 258,500 254,643 251,936

Medicare 69,965 85,140 82,225 80,948

Shift differential 185,925 201,011 188,553 186,828

Standby pay 12,465 12,807 12,641 12,526

Longevity pay 28,095 28,095 28,095 28,095

Subtotals 14,327,035 14,438,995 14,546,221 14,322,471

Services and supplies

Operating supplies 280,672 477,495 280,647 414,859

Communications/freight 8,877 10,314 10,023 10,023

Printing/copying 40,900 87,222 29,016 41,527

Equipment repair 24,385 23,542 24,817 24,817

Vehicle operation 40,405 41,601 41,016 41,016

Uniforms—custody 218,122 205,976 203,237 213,856

Inmate clothing 142,436 284,790 142,430 166,167

Equipment issued 40,403 23,236 25,451 27,086

Inmate wages 66,645 102,815 65,572 82,309

Food 1,695,897 2,299,838 1,695,759 2,065,403

Postage 14,738 16,793 14,036 14,738

Telephone 44,808 43,802 42,130 44,808

Subscriptions 682 801 1,425 801

Hand tools 210 486 213 213

Subtotals 2,619,180 3,618,711 2,575,772 3,147,623

Special equipment 216,863 64,088 22,557 23,661

Grounds maintenance 250,098 409,003 238,560 285,843

Inmate law library 28,564 40,115 26,419 41,836

Special projects 103,237 16,887 16,887 16,887

Gas and power 1,054,478 1,086,604 1,005,823 1,204,335

Water 120,390 129,377 102,266 127,171

Garbage 160,035 201,240 162,436 162,436

Canine unit 23,936 4,521 8,260 4,543

Total 18,903,816 20,009,541 18,705,201 19,336,833

Table 15-6 Full Alternative Text

The line-item budget has several strengths and weaknesses. Its strengths include ease of control, development, comprehension (especially by elected and other executive branch officials), and administration. Weaknesses are its neglect of long-range planning and its limited ability to evaluate performance. Furthermore, the line-item budget tends to maintain the status quo; ongoing programs are seldom challenged. Line-item budgets are based on history: This year’s allocation is based on last year’s. Although that allows an inexperienced manager to prepare a budget more easily, it often precludes the reform-minded chief’s careful deliberation and planning for the future.

The line-item budget provides ease of control because it clearly indicates the amount budgeted for each item, the amount expended as of a specific date, and the amount still available at that date (see, e.g., Table 15-4).

Virtually all criminal justice agencies are automated to some extent, whether the financial officer prepares his or her budget using a computerized spreadsheet or a clerk enters information into a database that will be uploaded to a state’s mainframe computer. Some justice agencies use an automated budgeting system that can store budget figures, make all necessary calculations for generating a budget request, monitor expenditures from budgets (similar to that shown in Table 15-7), and even generate some reports.

Table 15-7 Example of a Police Performance Budget

Category Amount

Units/activities

Administration (chief) Subtotal $

Strategic planning $

Normative planning $

Policies and procedures formulation, etc. $

Patrol Subtotal $

Calls for service $

Citizen contacts $

Special details, etc. $

Criminal investigation Subtotal $

Suspect apprehension $

Recovery of stolen property $

Transportation of fugitives, etc. $

Traffic services Subtotal $

Accident investigation $

Issuance of citations $

Public safety speeches, etc. $

Juvenile services Subtotal $

Locate runaways/missing juveniles $

Arrest of offenders $

Referrals and liaison, etc. $

Research and development Subtotal $

Perform crime analysis $

Prepare annual budget $

Prepare annual reports, etc. $

The Performance Budget

The key characteristic of a performance budget is that it relates the volume of work to be done to the amount of money spent.48 It is input–output oriented, and it increases the responsibility and accountability of the manager for output as opposed to input.49 This format specifies an organization’s activities, using a format similar to that of the line-item budget. It normally measures activities that are easily quantified such as the number of traffic citations issued, crimes solved, property recovered, cases heard in the courtroom, and caseloads of probation officers. These activities are then compared with those of the unit that performs at the highest level. The ranking according to activity attempts to allocate funds fairly. Following is an example from a police department: The commander of the traffic accident investigation unit requests an additional three investigators, which the chief approves. Later, the chief might compare the unit’s output and costs to these measures before the three investigators were added to determine how this change affected productivity.50 An example of a police performance budget is provided in Table 15-7.

The performance budget format could be used in other justice system components as well. The courts could use performance measures, such as filing cases, writing opinions, disposing of cases, and accuracy of presentence investigations.

Advantages of the performance budget include a consideration of outputs, the establishment of the costs of various justice agency efforts, improved evaluation of programs and managers, an emphasis on efficiency, increased availability of information for decision making, and the enhancement of budget justification and explanation.51 The performance budget works best for an assembly line or other organization where work is easily quantifiable, such as paving streets. Its disadvantages include its expense to develop, implement, and operate because of the extensive use of cost accounting techniques and the need for additional staff (Figure 15-2 illustrates the elements used to determine the cost of providing police services); the controversy surrounding attempts to determine appropriate workload and unit cost measures (in criminal justice, although many functions are quantifiable, such reduction of duties to numbers often translates into quotas, which are anathema to many people); its emphasis on efficiency rather than effectiveness; and the failure to lend itself to long-range planning.52

Figure 15-2 Elements in the Total Costs for Police Services

Source: U.S. Department of Justice, National Institute of Justice, Measuring the Costs of Police Services (Washington, DC: 1982), p. 20.

Figure 15-2 Full Alternative Text

Determining which functions in criminal justice are more important (and should receive more financial support) is difficult; therefore, in terms of criminal justice agency budgets, the selection of meaningful work units is difficult and sometimes irrational. How can a justice agency measure its successes? How can it count what does not happen?

The Program Budget

The best-known type of budget for monitoring the activities of an organization is the program budget, developed by the RAND Corporation for the U.S. Department of Defense. This format examines cost units as units of activity rather than as units and subunits within the organization. This budget becomes a planning tool; it demands justification for expenditures for new programs and for deleting old ones that have not met their objectives.

Police agencies probably have greater opportunities for creating new community-based programs than do the courts or corrections agencies. Some of these include crime prevention and investigation, drug abuse education, home security, selective enforcement (e.g., drunk driving) programs, and career development for personnel. Each of these endeavors requires instructional materials or special equipment, all of which must be budgeted. For example, traffic crash investigations (TCI) may be a cost area. The program budget emphasizes output measures. Outputs for TCI include the number of accidents handled and enforcement measures taken (such as citations issued, driving under the influence of alcohol and/or drugs (DUI) and other types of arrests made, and public safety speeches given). If the budget for these programs were divided by the units of output, the administrator could determine the relative cost for each unit of output or productivity. The cost of TCI, however, entails more than just the TCI unit; patrol and other support units also engage in this program.

Thus, the program budget is an extremely difficult form to execute and administer because it requires tracking the time of all personnel by activity as well as figuring in the cost of all support services and supplies. For this reason, criminal justice agencies rarely use the program budget.53 Some advantages of the program budget, however, include its emphasis on the social utility of programs conducted by the agency; its clear relationship between policy objectives and expenditures; its ability to provide justification for and explanation of the budget; its establishment of a high degree of accountability; and its format and the wide involvement in formulating objectives, which lead employees at all levels of the organization to understand more thoroughly the importance of their roles and actions.54

Examples of police and court program budgets are presented in Tables 15-8 and 15-9, respectively.

Table 15-8 Example of a Police Program Budget

Program Area Amount

Crime prevention Subtotal $

Salaries and benefits $

Operating expenses $

Capital outlay $

Miscellaneous $

Traffic crash investigation Subtotal $

Salaries and benefits $
Operating expenses $
Capital outlay $
Miscellaneous $

Traffic crash prevention Subtotal $

Salaries and benefits $
Operating expenses $
Capital outlay $
Miscellaneous $
Criminal investigation Subtotal $
Salaries and benefits $
Operating expenses $
Capital outlay $
Miscellaneous $

Juvenile delinquency prevention Subtotal $

Salaries and benefits $
Operating expenses $
Capital outlay $
Miscellaneous $

Special investigations Subtotal $

Salaries and benefits $
Operating expenses $
Capital outlay $

Miscellaneous, Etc. $

Table 15-9 Example of a Court’s Program Budget

Program Area Amount

Adjudicate criminal cases Subtotal $

Adjudicate felony cases Total $

Adjudicate misdemeanor appeals Total $

Adjudicate civil cases Subtotal $

Adjudicate major civil cases Total $

Adjudicate minor civil cases Total $

Adjudicate domestic relations cases Total $

Adjudicate juvenile cases Subtotal $

Adjudicate delinquency and dependent and neglect cases Total $

Adjudicate crimes against juveniles Total $

Provide alternatives to adjudication Subtotal $

Divert adult offenders Total $

Divert juvenile offenders Total $

Provide security Subtotal $

Handle prisoner transport Total $

Provide courtroom security Total $

Source: U.S. Department of Justice, National Institute of Law Enforcement and Criminal Justice, Financial Management (Washington, DC: The American University, 1979), p. 41.

PPBS and ZBB Formats

General Motors used the PPBS as early as in 1924,55 and the RAND Corporation contributed to its development in a series of studies dating from 1949.56 By the mid-1950s, several states were using it, and Secretary Robert McNamara introduced PPBS into the Defense Department in the mid-1960s.57 By 1971, a survey revealed, however, that only 28 percent of the cities and 21 percent of the counties contacted had implemented PPBS or significant elements of it,58 and in 1971 the federal government announced that it was discontinuing its use.

PPBS is a decision-making tool that links the program under consideration to the ways and means of facilitating the program. It is thus “a long-term planning tool, better informing decision makers of the future implications of their actions, and is typically most useful in capital projects.”59 PPBS treats the three basic budget processes—planning, management, and control—as coequals. It was predicated on the primacy of planning.60 This future orientation transformed budgeting from an annual ritual into a “formulation of future goals and policies.”61 The PPBS budget featured a program structure, ZBB, the use of cost-budget analysis to distinguish among alternatives, and a budgetary horizon, often 5 years.62

Associated with PPBS, the zero-based planning and budgeting process requires managers to justify their entire budget request in detail rather than simply to refer to budget amounts established in previous years.63 That is, each year, all budgets begin at zero and must justify any funding. Following Peter Phyrr’s use of ZBB at Texas Instruments, Governor Jimmy Carter adopted it in Georgia in the early 1970s and then as president implemented it in the federal government for fiscal year 1979. An analysis of this experience at the Department of Agriculture indicates that although its use saved $200,000 in the department’s budget, it costs at least 180,000 labor hours of effort to develop.64

It is important to note that few organizations have budgets that are purely one format or another; therefore, it is not unusual to find that because of time, tradition, and personal preferences, a combination of several formats is used.

In Their Own Words Administrative Advice from the Field

Name: Terri Genin

Current position/City/State: Finance Manager, Madison Police Department, Madison, Wisconsin

College attended/academic major/degree(s): University of Illinois/Nursing/B.S.N.

My primary duties and responsibilities in this position include: development, analysis, and management of the $63,500,000 annual police operating budget, oversight of payroll and purchasing functions, and management of multiple state and federal grants. Responsibilities also include serving on the department’s Management Team and providing professional analytical expertise in the department’s strategic planning efforts.

Personal attributes/characteristics that have proven to be most helpful to me in this position are: creativity combined with the ability to breakdown plans into small components that are more readily funded than large initiatives.

My three greatest challenges in this administrative role include:

Police organizations rotate command level employees on a regular basis. This rotation often results in commanders with limited financial skills that have responsibility for obtaining and managing various resources, including finances. The end result is a constant need to be training police command staff in how to be successful in managing money and obtaining support for their initiatives.

Elected officials often have an extremely unrealistic point of view in regards to what a police department can do to adapt to dwindling financial resources. It is very challenging to clearly explain what is realistically possible without creating barriers for future needs. In addition, the constant focus of elected officials on “boots on the street” often results in lack of resources for critical support areas, such as technology, which are necessary for officers to be effective in their work.

The ongoing environment of annual budget cuts has created considerable challenges in all aspects of policing. Officers and other police employees are continually being asked to provide more service with less resource options. This can often result in competition for resources and an increased level of frustration as highly motivated employees are limited in providing optimal service by a lack of funds.

Personal accomplishments during my administrative career about which I am most proud are: (1) coordinating the transition of payroll and scheduling from paper to a computerized system; (2) developing clear, concise reporting systems to effectively provide information to elected officials so that they have developed confidence in, and an understanding of, how police overtime is utilized. This has eliminated considerable acrimony and provided a framework for authorization to implement new initiatives; (3) updating grant tracking systems so that numerous federal and state grants are coordinated across several disciplines and audit reviews have resulted in positive feedback.

Advice for someone who is interested in occupying an administrative position such as mine would be: get to know rank-and-file employees, as they often have great information about potential improvements and/or new possibilities. Listen well and ask a lot of questions so that you are well prepared to explain thoroughly when others raise questions of you. Be creative. There is often more than one way to obtain resources and/or needed support for programs and initiatives, so explore a wide variety of options and timelines to obtain resources. Sometimes very simple “fixes” are more helpful to an officer than complex programs and/or purchases. Take the time and effort to educate rank-and-file officers on process and limitations as they relate to administrative functions, as this will result in greater “buy in” and reduced frustration.

Peak,  K.  (2016).  Justice Administration; Police, Courts, and Corrections Management.   (8th ed.).  Upper Saddle River, NJ: Prentice Hall

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