Code of Silence, part 2 of 3

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The “Code of Silence” or similar issue is prevalent in all walks of life.  Most people are reluctant to come forth with information that might hurt a fellow co-worker, many fear retaliation, and others feel safe hiding in the shadows.  I frequently hear cops say, “Why pick on us; the Code applies to lawyers, doctors, clergy and a lot of other professions?”  But, what makes it different in law enforcement is the impact it can have on the personal liberties and well being of civilians. Police employees have authorities given to no other employee in our society. Who else in America can use force, even take a life, or take away someone’s liberty by throwing them in jail without any immediate oversight?  And, usually other police employees are the only witnesses to police conduct or misconduct.

Then, of course, the existence and impact of the Code of Silence has been documented historically more frequently in law enforcement than in any other walks of life, as well.  After the Civil War, the KuKluxKlan Act was enacted in 1868 and the Voters’ Rights Act in 1871.  These came about when Southern sheriff’s and prosecutors looked the other way when blacks were lynched and persecuted by whites.  In the late 1960s the Johnson Study and Kerner Commission studied the urban riots in many American cities and found that the Code of Silence in law enforcement was one of the factors that caused community unrest.  Police sociologists have written about the influence of the Code in law enforcement; Neiderhoffer, Wilson and Skolnick in the 60s and 70s and later with Delattre.  Then, of course, you have the influence of movies and television with shows like Serpico, NYPD Blue, Chuck Norris’ Code of Silence, and the countless other productions.

The Code of Silence either currently exists or the potential for its existence is present in every police agency. It has significant implications on police agency employees who come forward with information adverse to other agency employees.  These employees who have done the right thing and acted professionally are often subjected to various forms of retaliation.  This retaliation frequently ends with the employee, who has done the right thing, being forced out of the agency due to the hostile work environment.  This often can end with these employees taking civil action against the agency.

But is it something that is inherent in and affecting all police agencies?  I don’t think so!  In some agencies it is deeply rooted in the history of the agency.  Many older agencies have three and even four generations of the same family who have been cops. In other agencies you might get a new, reform Chief who does all he or she can to eliminate or minimize the adverse impact of the Code on the agency.  But, unfortunately, these Chiefs don’t stay around too long.  The malcontents and promoters of the Code seem to last forever.  They exert a tremendous amount to influence and they know that the reform Chief is temporary.

On the other hand there are many examples where police employees have stepped forward and given information that results in significant agency changes.  There may be many motivations for these employees.  Some may truly be offended and outraged by the conduct of other employees.  Some may fear they may get caught up in the misconduct and are looking to protect themselves.  Some might see it as a way to step on others in an attempt to gain influence or promotion.  Others may see it as a way to create a change in administration.   

 

The four most reasonable approaches for a police agency to take in addressing the “Code of Silence” is (1) to acknowledge that the Code of Silence exists or the potential for it does exist, (2) have a written prohibition against it, (3) involve the subject in basic, in-service and supervisory training in realistic ways with real life examples, and (4) discipline, when appropriate, an employee who engages in giving false and/or misleading statements during an administrative investigation.   Don’t make the mistake many police administrators have done by replying that it doesn’t exist, has never existed and is simply something Hollywood has created.  Why be made to look foolish?

My next blog on the Code of Silence will delve into the telltale signs within a police agency that indicate that it may be alive and well and flourishing.

Will state social media legislation affect police personnel practices

Last week I published an article on the PATC Newsletter site concerning the current movement by several states who are passing restrictions on employers' use of social media for hiring and employee control.  Most of these are focusing on educational employers, but there are no provisions exempting law enforcement employers.  The following is the article:

How will the current trend to legislate employee rights regarding social media access affect our law enforcement personnel practices?  Not much if we continue to use reasonable and defensible practices.  Recently, six states have passed legislation directly targeting employers’ access to and use of employees’ social media sites.  We should expect that more would do so or be encouraged to do so.  The legislation in New Jersey and Delaware is specifically oriented to educational institutions and Maryland’s is focused on hiring.  But we should look at the elements in three other states that might signal the trend for the future – Illinois, California and Michigan.

In Illinois, 820ILCS55/10(2012), states, “It shall be unlawful for any employer to request or require any employee or prospective employee to provide any password or other related account information in order to gain access to the employee's or prospective employee's account or profile on a social networking website or to demand access in any manner to an employee's or prospective employee's account or profile on a social networking website.”  It does indicate that this is not applicable to employer electronic equipment.  It further states, “Nothing in this subsection shall prohibit an employer from obtaining about a prospective employee or an employee information that is in the public domain or that is otherwise obtained in compliance with this amendatory Act of the 97th General Assembly.”

California 2012 Cal ALS 618 (Chapter 2.5 § 980) states, “This bill would prohibit an employer from requiring or requesting an employee or applicant for employment to disclose a username or password for the purpose of accessing personal social media, to access personal social media in the presence of the employer, or to divulge any personal social media. This bill would also prohibit an employer from discharging, disciplining, threatening to discharge or discipline, or otherwise retaliating against an employee or applicant for not complying with a request or demand by the employer that violates these provisions.”  It has provisions, however, for investigations of allegations of employee misconduct, “(b) An employer shall not require or request an employee or applicant for employment to do any of the following:  (1) Disclose a username or password for the purpose of accessing personal social media.  (2) Access personal social media in the presence of the employer.  (3) Divulge any personal social media, except as provided in subdivision (c).  (c) Nothing in this section shall affect an employer's existing rights and obligations to request an employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding.”

Michigan, in its HB 5523 “Internet Privacy Protection Act,” states, “Sec. 3. An employer shall not do any of the following:  (a) Request an employee or an applicant for employment to grant access to, allow observation of, or disclose information that allows access to or observation of the employee’s or applicant’s personal internet account.  (b) Discharge, discipline, fail to hire, or otherwise penalize an employee or applicant for employment for failure to grant access to, allow observation of, or disclose information that allows access to or observation of the employee’s or applicant’s personal internet account.”  It further has specific sections on employer’s rights, “Sec. 5. (1) This act does not prohibit an employer from doing any of the following:  (a) Requesting or requiring an employee to disclose access information to the employer to gain access to or operate any of the following:  (i) An electronic communications device paid for in whole or in part by the employer.
(ii) An account or service provided by the employer, obtained by virtue of the employee’s employment relationship with the employer, or used for the employer’s business purposes. (b) Disciplining or discharging an employee for transferring the employer’s proprietary or confidential information or financial data to an employee’s personal internet account without the employer’s authorization. (c) Conducting an investigation or requiring an employee to cooperate in an investigation in any of the following circumstances: (i) If there is specific information about activity on the employee’s personal internet account, for the purpose of ensuring compliance with applicable laws, regulatory requirements, or prohibitions against work-related employee misconduct. (ii) If the employer has specific information about an unauthorized transfer of the employer’s proprietary information, confidential information, or financial data to an employee’s personal internet account.”  It further has provisions, “(2) This act does not prohibit or restrict an employer from complying with a duty to screen employees or applicants prior to hiring or to monitor or retain employee communications that is established under federal law or by a self- regulatory organization, as defined in section 3(a)(26) of the securities and exchange act of 1934, 15 USC 78c(a)(26). (3) This act does not prohibit or restrict an employer from viewing, accessing, or utilizing information about an employee or applicant that can be obtained without any required access information or that is available in the public domain.”

We can see that each one of these legislative acts is a little different.  Most allow for some exception if the employer is conducting an investigation about employee misconduct.  If your agency is in one of the states that have enacted this type of legislation, you should consult with your legal staff for specific guidance. 

One interesting aspect of all of these, however, is that it doesn’t preclude obtaining data in the public domain.  Now, if your investigators are up to date and know their stuff, they certainly know how to access this type of data in social media sites without the assistance of the employee or candidate.

This article will address this issue on two fronts.  The first will be the affect during the hiring process for new employees.  And, the second from the perspective of any potential impact to administrative investigations.

During the employment aspect in law enforcement we currently access numerous restricted and/or protected areas of a candidate’s personal data.  We require them to tell us about their medical history.  If necessary, they might be required to provide a medical release so we can access their medical histories directly from the medical provider.  We do similar requests for employment history and again, if necessary, request that the candidate sign a waiver to allow the prior employer to divulge this information.  We use our law enforcement position to access the candidate’s driving and arrest histories.  In many cases we access the candidate’s credit history.  All of these are reasonable.  In law enforcement we can show the relationship between these personnel behavior and performance indicators as relevant predictors of future success as a member of our public safety agency.

If the candidate has a social media account, that information is as relevant as those described above.  At LLRMI we have advocated that public safety agency employee candidates sign an affidavit or affirm their activity with any social media site.  Again, if necessary, we would request that the employee candidate allow the background investigator access to this site.  We don’t need their secret password!  We have recommended that the background investigator do this in the presence of the candidate so that explanations can be given directly to the investigator.  A candidate is not going to be screened out simply because s/he has a social media account.  But, sometimes the candidate’s behavior as reflected in the social media site might reasonably warrant further inquiry during the background investigation.

The second area for us in law enforcement is access to an employee’s social media account during an administrative investigation.  Again, at LLRMI, we recommend that your written policy specifically address this issue to put all employees on notice.  None of our public safety agencies are routinely monitoring these types of social media sites.  We certainly have much more to do.  But when it comes to an agency’s notice that something on an employee’s social media site might have the potential to adversely affect the employee’s performance or ability to perform, or might have the potential to adversely affect the agency’s morale, operations or efficiency, we have a duty and responsibility to look into the matter.  Think of the impact that we’ve seen throughout the country when something in an employee’s site hits the local news media or is found by a civil plaintiff or criminal defense attorney.

Again, we don’t need the employee’s password.  If it “directly, specifically and narrowly” relates to the employee’s job performance, we need to simply order them to allow us to have access to the site.  Again, it’s recommended that you conduct any review in the employee’s presence.  This will allow the employee an opportunity to clarify or explain any content in the site.

The Chicago "Code of Sience" civil trial

Last November I testified in the Chicago Police civil trial, Obrycka v. Chicago Police Department and Anthony Abbate (this is more fully described in an excellent article, including my expert report, “Code of Silence” by Americans for Effective Law Enforcement at www.aele.org).  You might recall the original incident that occurred back in 2007.  The videotape of the incident captured a very large off-duty, intoxicated Chicago cop, Abbate, coming behind the bar counter and beating the slight framed female barkeep.  As graphic as the videotape showed, it was an incident that occurs all too often with officers throughout the country when they get drunk and go crazy.  What made this different?

This became the Chicago PD’s Code of Silence watershed.  Why?  The City Attorney argued, unsuccessfully, that this was simply a minor battery involving an off-duty, drunken cop.  The City Attorney fought vigorously to deny any supervisory or agency liability.  The jury and Court found differently.  It resulted in a $850,000 verdict and a finding that the Police Department engaged in a Code of Silence to cover-up the involvement of the officers and supervisors.  That verdict doesn’t include the attorney’s fees and costs that might be three times that amount.

How did this assault become a significant and now reported decision for the Chicago Police Department?  Following the assault, the bar patrons called the PD to report the incident after Officer Abbate left.  The two Chicago officers who responded were told that the offender was an off-duty Chicago cop and that the incident was captured on the newly installed surveillance camera.  They left without looking at the video, attempting to determine more about the officer or notifying their supervisor.  It took four days for them to complete their report that also neglected to report these facts.  Abbate, other detectives and these officers were shown by cell phone records to have been in constant contact with each other.

The Department was caught off guard when the plaintiff attorney released to the press.  The Police Department immediately tried to push the case through the local courts as a misdemeanor crime.  Later, in deposition and in court, the Department and members of the State Attorney’s Office kept pointing fingers at each other in denying any impropriety in this decision.  Both Internal Affairs and the Office of Professional Standards investigated the case.  Abbate eventually was terminated and the initial responding officers received suspensions for not notifying their supervisor; not false reporting or false statements to OPS.

And so what does this mean to you in law enforcement?  Shits happens and it frequently happens when off-duty officers do strange and crazy things.  We can handle that!  But when you try to shine dung, you drag in supervisors and your agency.  A methodical and consistent investigative protocol is the only reasonable way to proceed.