On May 15, 2016, the NOPD put a revised disciplinary penalty schedule into effect. Alleged violations which occurred prior to May 15, 2016 will be governed by the old disciplinary penalty schedule. Alleged offenses occurring on or after May 15, 2016 will be guided by the new disciplinary penalty schedule. The changes to Instructions from an Authoritative Source are worth noting for officers and supervisor who might be tasked with conducting formal disciplinary investigations.
An Instruction from an Authoritative Source is any instruction which would govern the actions of a police officer. Most commonly, the rules and regulations found in the NOPD Operations Manual are Instructions from an Authoritative Source. Verbal orders from a superior officer are Instructions from an Authoritstive Source. Instructions can go beyond that. For example, CAO memorandum apply to all city employees (unless they specifically state otherwise), so they are Instructions from an Authoritstive Source. Operations Bureau Policies are Instructions from an Authoritstive Source for officers assigned to the Operations Bureau, but not officers assigned to ISB or MSB.
There have always been two rules governing Instructions from an Authoritative Source. Before May 15, 2016, the two rules governing Instructions were Rule 4, Performance of Duty, Paragraph 2, Instructions from an Authoritative Source and Rule 4, Performance of Duty, Paragraph 4(c)(6), Failure to comply with any instructions, oral or written, from any authoritative source. The penalties for these administrative violations were roughly the same. One was Letter of Reprimand to 3 days and one was Letter of Reprimand to 5 days. The May 15, 2016 revision makes two important changes.
Rule 4, Paragraph 2 is still Instructions from an Auoritative Source. However, Rule 4, Paragraph 2 is now a “C” offense. In the new every rule paragraph has its own letter scheme, a “C” offense means a sustained violation would result in a 2-10 day suspension. The presumptive penalty is 5 days. The penalty with mitigating circumstances can go down to 2 days and the penalty with aggravating circumstances can go as high as 10 days. That is a pretty big jump from the prior penalty of R-3. There is also a penalty for refusing to give a statement in an administrative investigstion, which carries a presumptive penalty of termination.
Rule 4, Paragraph 4(c)(6) is changed to Rule 4, Paragraph 4(b)(6). Rule 4, Paragraph 4(b)(6) is a “B” penalty. A level “B” offense carries a presumptive penalty of 1 day. The penalty with mitigating circumstances is Letter of Reprimand and the penalty with aggravating circumstances is 2 days. So, basically, Rule 4, Paragraph 4(b)(6) has a penalty of R-2, which is less than the prior penalty of R-5.
The delineation between the two rules is that Rule 4, Paragraph 2 is intended to address more flagrant disregard of the rules or insubordination. Rule 4, Paragraph 4(b)(6) is intended to address negligent violations of whatever instruction happens to be at issue. Therefore, the penalty for the flagrant disregard of an order carries a more severe penalty than the purely negligent disregard of an order.
The problem as I see it is that Rule 4, Paragraph 2 was always the go-to Instructions violation. This has to change in order to apply the rules as intended and avoid serious penalties that might not be warranted by the circumstances. It is important for supervisors conducting an internal investigation to make sure the correct rules are in play. It is also important for supervisors to know that they can find one charge not sustained, exonerated, or unfounded and include an additional sustained violation, if necessary. For example, if Rule 4, Paragraph 2 is inappropriate, one could find Rule 4, Paragraph 2 unfounded and Rule 4, Paragraph 4(b)(6) sustained as an additional sustained violation. That would help to ensure that come penalty time, the accused officer would not be hit with a “C” penalty when a “B” penalty would be more appropriate.
Every accused officer is entitled to legal representation during a disciplinary investigation. Witness officers are also entitled to legal representation during a disciplinary investigation. The FOP Legal Defense Plan provides its members with representation as a witness or an accused officer. I want to encourage FOP members to call their FOP attorney as soon as they learn of an internal investigation and every step of the way. I know that officers are generally unfamiliar with the disciplinary procedures. It is helpful to have someone with you who understands the procedures and is on your side.
All FOP members are welcome to call me about any disciplinary issues. I am available for questions about non disciplinary issues as well. No disciplinary investigation is too unimportant or silly. Due to progressive discipline, a stupid violation can lead to a serious penalty. In addition, the FOP Salary Reimbursement Option is only available to Legal Defense Plan members who are represented by an FOP attorney during the course of the investigation. In addition, it is extremely helpful to have been involved with an investigation from the beginning if the case is going to result in a Civil Service appeal.