fourteenth-report.pdf

Independent Monitoring Team Fourteenth Status Report of the Independent Monitor Delphine Allen, et al., v. City of Oakland, et al. July 31, 2009 to January 13, 2010 Page 96 As discussed above, Task 45 requires that OPD impose discipline that is fair and consistent with the Discipline Matrix. During our most recent audit of Task 45, we observed a more rigorous assessment of mitigating and aggravating factors, including consideration of the member or employee’s discipline history; the consequences of the misconduct; the member or employee’s role in the misconduct; and their acceptance of responsibility and/or remorse. We also found substantial progress in ensuring that discipline imposed is consistent with OPD’s own Disciplinary Matrix. During the most recent audit, we found that substantially fewer cases had variances outside of the proscribed discipline ranges. Only two of the vehicle collision cases had variances and both of these cases included specific written justification for the variances. Eleven of the misconduct investigation cases concluded with discipline that varied from the proscribed ranges. Each of these cases resulted in no discipline being imposed or in discipline imposed that was below the discipline established by the Matrix. Six (55%) of these 11 cases included specific written justification explaining the variances. This included several cases resulting in last chance agreements or retirement in lieu of termination. While we found improvement, we continued to observe instances of inconsistent treatment that undermine OPD’s efforts to establish a fair and consistent disciplinary system. While we noted significant improvement in OPD’s ability and willingness to impose discipline that is fair and consistent, we continued to observe cases where this does not occur, including several cases that fell outside of the period covered by this audit. The cases in which we continued to observe problems with fair and consistent discipline tended to fall into one or both of the following categories: 1) cases involving popular or well-connected officers or commanders including officers and commanders who are given leeway because they are regarded as strong performers or high producers; or 2) cases in which OPD selects and sustains MoR provisions that carry a lower penalty in order to decrease the maximum possible discipline that can be imposed and/or because OPD does not want to “stigmatize” officers with certain findings. We discussed specific cases falling into both of these categories with OPD but are most concerned by cases that fall into the first category, i.e., apparent favoritism. This is because as OPD becomes more adept at applying the Matrix, we are seeing fewer cases that fall into the second category – i.e., inapt MoR designation – but we continue to see apparent favoritism. We have discussed with OPD that notwithstanding the presumptive penalties set forth in the Matrix, OPD has the ability and responsibility to mitigate and aggravate cases outside of presumptive ranges if necessary to reach results that are fair and consistent. The key is to do so using objective factors and to document these factors. Given the extensive revisions that OPD has made to its Matrix, it is unlikely that it will need to impose discipline that falls outside of the presumptive ranges often. Cases of apparent favoritism, although few in number, are of particular concern because actual or perceived favoritism in the disciplinary process makes officers and the community lose trust in the entire system and make it more difficult to uphold disciplinary decisions through appeal and arbitration. Unfair disciplinary decisions also embolden the offending officers to commit misconduct again, sometimes with escalating severity and consequences. Further, in a