This was one of the research paper topic options for the
over 100 participants who opted to challenge the National Professional
Certification for IA/OPS Investigators and Supervisors at our recent Internal
Affairs Conference in Las Vegas. This
Certification Program has been a very successful program initiated by the Legal
and Liability Risk Management Association of the Public Agency Training
Council.
Actual practice of handling of off-duty officer DUI/OWI
arrest incidents seems to show that there is no consistent method for handling
this personnel decision. Some agencies
seem to have a zero tolerance policy and terminate any officer in this
situation regardless of the eventual court proceeding. Other agencies wait until the outcome of any
judicial proceeding and, if convicted, will terminate the officer. Some agencies have reported that it will
result in a suspension ranging from ten or more days to a couple of months.
The early research papers presented by our Certification
candidates seem to fall into two distinct categories. The first group felt that the officer who is
arrested for off-duty DUI should be terminated.
The rationale advanced hinges on three specific issues.
The first is that this conduct would violate the oath of
office and the Police Officers Code of Conduct.
Part of that Code is the sentence that states the officer “…shall
maintain an unsullied personal life as an example to all.” If an officer violates this axiom of ethical
behavior, this group felt it should signal that this would be a continuing flaw
in the officer’s performance.
A second common point of rationale from these authors who
favor termination is that this type of arrest would normally result in the
suspension of the officer’s driving privilege, particularly if the officer
refuses to take any required chemical or breath test, and would severely
curtail the officer’s ability to perform the basic task of his/her position. These authors believed that the agency should
not be required to accommodate the officer’s inability to drive.
A third issue from this group is the potential that an
incident like this could destroy the officer’s credibility and interfere with
any subsequent court testimony. This
would be particularly true of any incidents involving intoxication arrests.
All of these are valid points raised by the authors of these
research papers who favored termination.
A second group, however, contended that it would depend on a
lot of other factors. This group felt
that it would depend on the outcome of the criminal proceedings. The arrest might not be prosecuted for a
variety of reasons. Or the court
proceedings could result in a decision that would not be deemed to be a
conviction. If the charge were reduced
to reckless driving that would now reduce the stigma of the DUI. Or it could be adjudicated as a
non-conviction for a variety of other reasons such as attendance at a DUI
school. Then, too, the officer might be
acquitted.
Some in this second group felt it might depend on the past
practices of the agency. What if the
agency regularly accepted candidates for the job who had a prior DUI before
becoming a member of the agency? How has
the agency dealt with other intoxication related incidents involving employees? Did these always result in termination? This arrest might be a symptom of an
alcoholism dependency that could be addressed by the agency’s Employee
Assistance Program and rehabilitation resources.
This same group also felt that the officer involved could
take a leave of absence for the period of his license’s suspension or make
other arrangements to get to and from work and be assigned to some task not requiring
driving agency vehicles. Would it be
reasonable accommodate the officer particularly if the agency had done this for
officers involved in other off-duty incidents that limited his/her ability to
perform the assigned task?
This second group pondered the issue of testimonial
credibility and the Brady/Giglio implications.
Does the agency have assignments where future testimony of this officer
would not be required? Some courts have
decided that this issue of credibility might be overcome in time or by trial
testimony rehabilitation like for any witness in a criminal trial.
Not addressed by the authors in both groups was the
potential that some officers who are stopped off-duty and have been drinking
might be given ‘professional courtesy.’
Whether it’s right or wrong is not the issue here. It’s what position will your department take
should it come to your attention. In
these cases there will probably be little, if any, evidence to go on.
Personnel issues are some of the most difficult decisions
for supervisors and administrators. Zero
tolerance policies sound great, but have proven to be difficult to enforce and
are easily broken for well meaning and, in some cases, not so well meaning
reasons. It’s best to have these discussions
before you have to make this hard decision involving off-duty officer DUI/OWI
incidents!
