A RISK MANAGEMENT ANALYSIS
The Massachusetts State Legislature has before it H2146, which if passed would
authorize the organization of a “study committee” to conduct research and recommend
legislation to institute a Police Officer Standards and Training (POST) System for
Massachusetts. The purpose of this “white paper” is to examine the issues related to
such an implementation from a risk management perspective for police and municipal
administrators.
One of the most fundamental responsibilities of public leadership is the protection
of the life and safety of citizens. The police service is directly responsible for fulfilling
this responsibility with regard to criminal activity and reckless conduct. This includes
individuals, who have been given police authority. Ensuring the suitability and
appropriateness of police conduct is a duty for which the Massachusetts Courts hold
police and public administrators strictly accountable.
A landmark case establishing civil liability for the negligent retention of unfit police
officers is
Dobos vs Driscoll (404 Mass.634 (1989) 537 N.E. 2d 558 Robert Dobos &
others [1] vs Paul Driscoll & others [2] Supreme Judicial Court of Massachusetts,
Suffolk, October 7, 1988, April 19, 1989)
. In this case Massachusetts State Police
supervisors were sued for a failure to supervise. Their failure resulted in a
Constitutional rights violations. The case was decided in favor of the plaintiff and against
the State Police. Such failure can have very costly consequences. The following is a list
of some notable civil awards.
- The Boston Police have paid out 36M over ten year in damages for police actions stemming from 2000 complaints (Boston Globe 05/15/15)
- The Springfield Police in 2018 were forced to pay 885K in damages for one incident (Mass Live 09/26/18)
- The Brookline Police paid out 718K in settlements for damages (WGBH news 10/16/18)
- The Brockton Police paid out 235K in direct settlements for police actions in one year (Brockton Enterprise 11/09/18)
The Illinois Law Enforcement Training and Standards Board, addressed the rising
trend of police liability in its Law Enforcement Executive Forum in 2007. The forum
noted that the increase was due to the rapidly expanding and increasingly complex role
for law enforcement in our society. They noted that this has been a 50 year trend which
has taken a toll on both police agencies and officers through financial losses and fear of
litigation.
The Pennsylvania Association of Burroughs has identified several vulnerabilities
facing police and municipal administrators with regard to personnel management.
Among these are negligence with regard to hiring and retention of officers. These are
cases in which individuals were either appointed or retained as officers when serious
issues of conduct and integrity became known and were ignored by the hiring authority.
Police and Municipal administrators have a responsibility to ensure that the people they
hire as police officers are suitable for performing those duties, and if they display
conduct demonstrating unsuitability, there is a duty to discharge them.
Internal oversight of police agencies by itself has not been effective. While many
large departments have the capability and expertise to conduct internal police
investigations, these inquiries can be stymied by interference from public officials, often
facing political consequences over the outcomes. In smaller departments, the
resources and expertise for conducting such investigation is often lacking. Many states
have created statewide authorities to address serious issues of misconduct involving
police officers. These authorities are called Police Officer Standards and Training
(POST) authorities. They are charged with ensuring both the quality of training and
conduct for all police agencies throughout the state.
Massachusetts has lagged behind the rest of the nation in the effort to ensure the
suitability of police officers. The Commonwealth is one of six states that does not have
a POST system in place. In Massachusetts, as long as police candidates pass the
written civil service examination and have no record of felony convictions, they are
eligible for hire. Candidates can also rely on both veteran status and residency to move
ahead of other applicants, despite qualifications.
The primary source of scrutiny over these candidates is the hiring authority itself.
Additionally, there are wide disparities in standards and practices, which are largely
dependent upon the preference of the local chief of police, or the municipal executive
authority. Consequently, political influences often play a factor in hiring as does a
candidate’s prior completion of a certified police training academy. Because local
communities are responsible for funding the training of their officers, candidates with
prior academy certification are highly desirable. In some cases, little was known or
documented about prior performance or conduct in another department. In a few cases
this information was ignored. This can lead to problem officers being bounced from
one department to another. With regard to civil liability, this is playing Russian roulette.
The lack of proper screening and tracking of police officers with conduct issues is a
major contributing factor to the increased risk of significant civil liability for
municipalities.
The implementation of a POST system in Massachusetts would establish a
statewide public authority capable of overriding the jurisdiction of municipal executives
in certain limited cases. These would be instances in which police officers, in their
jurisdictions, exhibit issues involving credibility, criminality or brutality. In specific terms,
a POST system in Massachusetts would offer Chiefs of Police and Municipal
administrators the following:
- The resources and expertise to engage in sustained corrective actions, up to and including removal, for those police officers engaged in serious misconduct. These resources would include investigators and legal staff. A POST system would also administer the adjudication process for serious cases of misconduct thereby relieving local administrators of the legal costs and burdens of removing the officer.
- Access to a nationally based record system, which can verify applicant background information to include prior police service, to ensure that the candidates under consideration for hire are not concealing passed issues.
- Expertise to offer, advice and counsel to police chiefs and municipal administrators about best practices with regard to hiring and disciplinary policies; offering online resources to make model policies and standards available, and a monitoring system that would flag changes to federal or state law, providing policy updates as needed.
A POST authority would be charged with ensuring the integrity of the police service
throughout the state. However, its focus would not be the day to day operations of the
local agencies, rather, it would serve as a resource for only those situations in which
serious police misconduct is involved, particularly, where the cost and expertise of
taking action is often too much for the local municipality to bear. A POST system would
provide significant support and protection to municipal law enforcement administrators
in their efforts to root out unsuitable personnel, who present a threat not only to the
general public, but very often to the police officers with whom they serve. A POST
system would also protect rank and file officers from corrupt police managers, offering a
professional authority capable of intervening in cases of serious corruption, harassment
and incompetence.
In general, a POST system could be expected to improve the working conditions
within police departments in the following ways:
- Affirming and improving the integrity of a department’s internal disciplinary process, restoring confidence in the chain of command, thus improving morale
- Providing protections to both police administrators and rank and file officers, who encounter and must contend with corrupt or unprofessional conduct within their agencies
- Preventing the rehire of officers after they have been dismissed by other departments, who may have failed to adjudicate them for misconduct.
Most importantly however, a POST system would provide a significant layer of protection for average citizens, who could be victimized by unprofessional officers and in some cases brutalized by them. As a nation built on law, respect for the law is vital to our survival. Police officers are the visible symbol of the law in our society. Until they are universally respected, because of the high level of their character and performance, respect for the law itself will remain an illusion. POST can help bring such respect a major step closer to full realization. This is why it should be implemented.
Respectfully submitted
Dennis J. Galvin
President
Mass Association of
Professional Law Enforcement
MAPLE 