ninth-report.pdf

Independent Monitoring Team Ninth Status Report of the Independent Monitor Delphine Allen, et al., v. City of Oakland, et al. May 13, 2006, to November 30, 2006 Page 81 with other agencies and months of internal deliberations regarding a variety of issues, including appropriate penalty ranges. Before the Matrix was finalized, Chief Tucker reviewed, adjusted, and approved it. The Chief has expressed his commitment to implementing a disciplinary system that is fair and consistent and that uses a variety of means to correct behavior. The Matrix, properly implemented, helps ensure that the discipline system is transparent and objectively applied. The Matrix lists rule violations contained in the Department’s Manual of Rules and sets out specific criteria for calculating discipline recommendations. For each rule violation, the Matrix provides a specific, progressively higher penalty range for first, second, and third offenses. Each of the ranges includes a lower limit, midpoint, and upper limit penalty. The Department’s Discipline Officer is required by policy to determine the appropriate penalty by reviewing disciplinary histories and obtaining mitigating and aggravating information from supervisors, and make a disciplinary recommendation to the Chief. According to OPD’s discipline policy, the Discipline Matrix is to be “administered in a systematic and equitable manner to all personnel,” in order to “ensure fair and consistent implementation of discipline within the Oakland Police Department.” The policy expressly preserves the Chief’s discretion to impose any level of discipline he deems appropriate to achieve these goals. During this reporting period, we evaluated OPD’s implementation of the new disciplinary system by reviewing the discipline recommendations and decisions in every sustained case involving conduct occurring on or after December 6, 2005, the date the new policy was implemented. There were 29 relevant cases. In reviewing these cases we observed a number of practices that in our judgment undermine the Department’s efforts to establish a disciplinary system that is fair and consistent. Many of these practices have occurred because the Department has decided that a number of the current penalties and formulas, if applied, would result in unduly harsh discipline. In the majority of cases we reviewed, the Department selected and/or sustained violations that did not fit the facts of the alleged misconduct. Without exception, this practice resulted in lower discipline levels than if the Matrix had been applied as written. We also found that, in cases with multiple violations, OPD incorrectly calculated the correct presumptive penalty. The Matrix requires that in cases with more than one sustained violation, penalties be added together. However, in cases we reviewed, these calculations were often in error, again resulting in lower disciplinary recommendations than if the Matrix had been applied as written. We also observed instances of discipline recommendation memoranda with inaccurate accounts of an employee’s disciplinary history. These memoranda stated that members or employees had no disciplinary records or less serious ones than they actually had. By understating the actual disciplinary history, these inaccurate memoranda served to justify a lower level of discipline than would otherwise have been appropriate. OPD asserts that this practice of imposing penalties lower than the ranges contemplated by its disciplinary policy is not cause for concern but is rather the Chief's attempt to correct what he views to be overly punitive penalties. In OPD's view,