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POLICY: CODE OF HONOR – TRC MP 21.12.22
Code of Honor – (i.e., Code) covers many topics to help educate members of the expressed and implied ethical responsibilities in their positions and jobs as members of this Agency.

 

Excessive Preventable Perf Errors and Non-Scheduled Absenteeism Time
Excel database worksheet for Excessive Preventable Perf Errors and Non-Scheduled Absenteeism Time.

 


QUESTIONS AND ANSWERS (QA)


JOB AIDS (JA)

Discipline Penalty Assess Program
A Discipline Penalty Assess Program worksheet.

 


ARBITRATION AND COURT RULINGS (ARB or COURT)

TRC ARB Police Integrity Case 19.12.12
ISSUES: Reasonable Cause. Employee Misconduct. Multiple Factors. Discussion and Opinion Labor Arbitration Decision, 201114-AAA, [Number redacted], 2017 BNA LA Supp. 201114
  1. First, has the employer relied on a reasonable rule or policy as the basis for the disciplinary action?
  2. Second, was there prior notice to the employee - express or implied - of the relevant rule or policy and a warning about potential discipline?
  3. The third factor for analysis is whether the disciplinary investigation was thoroughly conducted. Were statements and facts fully and fairly gathered without a predetermined conclusion?
  4. Fourth, did the employee engage in the actual misconduct as charged by the employer? In this regard, many cases turn on credibility determinations.
  5. Lastly, are there any countervailing or mitigating circumstances requiring modification if not wholly reversing the discipline imposed? For the reasons that follow, it is concluded the City had reasonable cause to terminate the Grievant.

 

TRC.ARB Grievant Fights Termination After Statutory Aquittal
Issues: Statutory Law v. Arbitrator’s Ruling. FMCS Case Nos. 12/55103-1 and 12/55104-1. January 31, 2019 Learning Points:
  1. The level of proof required to terminate a police officer
  2. The weight given to a Federal Court’s acquittal of a police officer
  3. The importance given to an officer’s past work history in relation to the seriousness of the charged offenses
  4. The clarity of the contract language
  5. The simplicity of the language used in the City’s rules and regulations

 

TRC.ARB. Management Misapplies LCA
Issues: This is a termination case, and the County must prove that the Grievant's termination was for reasonable cause. A review of discipline for alleged employee misconduct requires an analysis of several factors. ARB. Ruling on Police Integrity 19.12.12 ARBITRATOR'S DISCUSSION AND OPINION Labor Arbitration Decision, 201114-AAA, [Number redacted], 2017 BNA LA Supp. 201114
  1. First, has the employer relied on a reasonable rule or policy as the basis for the disciplinary action?
  2. Second, was there prior notice to the employee - express or implied - of the relevant rule or policy and a warning about potential discipline?
  3. The third factor for analysis is whether the disciplinary investigation was thoroughly conducted. Were statements and facts fully and fairly gathered without a predetermined conclusion?
  4. Fourth, did the employee engage in the actual misconduct as charged by the employer? In this regard, many cases turn on credibility determinations.
  5. Lastly, are there any countervailing or mitigating circumstances requiring modification if not wholly reversing the discipline imposed? For the reasons that follow, it is concluded the City had reasonable cause to terminate the Grievant.
  6.  

    TRC.ARB Officer Resigns and Wants Job Back 20.03.03
    ISSUES: Past Practice.White Discrimination.Leaves of Absence.Burden of Proof Labor Arbitration Decision, City of Lorain, 2019-001/004, 139 BNA LA 1717 Background Grievant became a City patrol officer on September 26, 2011 - submitted his resignation effective February 4, 2019. December 17, 2018, Grievant A had decided to take a job with the U.S. Border Patrol, sent the following email to the Chief of Police and all others concerned” where he requested “... a leave of absence for a period of one year ... as is provided for in Section 8.3 of the Lorain Civil Service Commission Rules (“the Civil Service Commission Rules”, Joint Exhibit - 5):

     

    TRC.ARB Performance Evaluations
    Issues: Performance Evaluations. Policy Language Appellants Fraternal Order of Police, Lodge 163 (FOP) and grievant appeal from the Trial Court's order granting a temporary injunction in favor of the City of ... (City). The issue on appeal is whether the Trial Court abused its discretion in granting the injunction prohibiting the appellants from pursuing arbitration.

     

    Secret Tape Recording of Supervisors Leads to Termination TRC.LM 16.05.15
    ISSUES: Secret Taping - Sexual Harassment - Burden of Proof - Due Process - Performance Evaluations – Similar-Situated Argyropoulos v. The city of Alton, 539 F.3d 724 (7th Cir. 08/26/2008) Christina Argyropoulos's turbulent tenure as a jailor for the City of Alton Police Department (the APD) lasted just ten months, from July 2002 until she was dismissed in late April 2003. Approximately seven weeks before she was fired, Argyropoulos complained that she had been sexually harassed by a fellow jailor.

     

    TRC.ARB Termination Burden of Proof 19.10.15
    Issues: This case covers (1) the level of proof required to terminate a police officer, (2) the weight given to a Federal Court’s acquittal of a police officer,(3) the importance given to an of f icer’s past work history in relation to the seriousness of the charged offenses, (4) the clarity of the contract language, and (5) the simplicity of the language used in the City’s rules and regulations. FMCS Case Nos. 12/55103-1 and 12/55104-1 Burden of Proof TRC.ARB 19.10.15 The Grievants were employed as police officers and terminated for alleged actions that a federal investigation revealed that the Grievants committed, which was culminated by an undercover sting operation.

     

    TRC.ARB. Termination. Florida City v PBA May 26, 2020
    Issues: Case involved office lying, disrepectful behavior to a supervisor, chargeable accident, and just cause for termination. McCoy Doctrine Upheld ISSUES RAISED: Whether the City terminated Officer Mr. C__ for just cause and otherwise in accordance with the parties’ collective bargaining agreement? Whether the action of the City in terminating the grievant was excessive considering the previous practice of discipline? And, if the termination was not for just cause, what is the appropriate remedy?

     

    TRC.ARB Termination Court Support 19.09.04
    Issues: The Grievants were employed as police officers and terminated for alleged actions that a federal investigation revealed that the Grievants committed, culminating in an undercover sting operation. FMCS Case Nos. 12/55103-1 and 12/55104-1. January 31, 2019 Learning Points:
    1. The level of proof required to terminate a police officer
    2. The weight given to a Federal Court’s acquittal of a police officer
    3. The importance given to an officer’s past work history in relation to the seriousness of the charged offenses
    4. The clarity of the contract language
    5. The simplicity of the language used in the City’s rules and regulations

     

    TRC.ARB Three FireFighers’ Terminations Overturned
    Issues: Harassment. Supervisor’s Responsibilities. Advance Notice Award Date:11/6/2020 Employer: Orange Township, Ohio Union: International Association of Fire Fighters, Local 3816 Case: FMCS 200103-2715 Grievants: Captain 1, Lieutenant 1, FF 2 Actors: FF 1, Captain 2, Fire Chief Overview Part-time FF 1 requested a transfer out of his Work Unit but gave no adverse reasons for doing so. Suspecting something was afoul, the Fire Chief and township management invested and learned that FF 1 was being hazed and harassed by his Captain 1, Lieutenant 1, and FF 2 (i.e., the grievants)…

     

    TRC.ARB. Discourteous Conduct
    Issues: Management Violated a Contract Clause. Employee’s Good Work Record. Frequent and Disrespectful Behavior Labor Arbitration Decision, 4656390-AAA, [Number redacted], 2018 BNA LA Supp. 4656390

     

    TRC.CR FMLA Abuse 10.17. 2020
    Issues: FMLA. Abuse Defined Employee Loses Job for Contract and Intermittent FMLA Abuse Summary Comments: An employer did not violate the Family and Medical Leave Act by firing an employee for suspected abuse of medical leave that was granted because of her intermittent migraine headaches, the U.S. Court of Appeals for the Seventh Circuit ruled July 21 (Vail v. Raybestos Prods. Co., 7th Cir., No. 07-3621, 7/21/08).

     

    TRC.CR Freedom of Speech Case Cory v. City of Basehor
    Issues: The case involved an officer who was terminated and later claimed “Whistle Blowing” protection. The court analyzes protected and non- protected speech under Garcetti v. Ceballos, 547 U.S. 410 , 421 , 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006). This case is a must-read case for those who don’t fully understand the Garcetti case involved job speech versus public speech.

     

    TRC.CR McCoy Doctrine UpHeld 21.06.15
    Issues: Concept of Progressive Discipline. McCoy Doctrine. Case Facts Officer was off duty in a local bar with a friend. When another patron walked past, Officer said something to him, and as the patron approached, Officer displayed his police badge and shoved him. The fight that quickly ensued, soon joined by others, was captured on videotape. Officer acknowledged that he struck [the patron] first. The Commission also rejected the factual contention that the Officer engaged the patron to assist the bartender in removing him and his companion from the bar.

     

    TRC.CR Termination. Garcetti v Cabelos 19.09.04c4
    Issues: The Grievants were employed as police officers and terminated for alleged actions that a federal investigation revealed that the Grievants committed, which was culminated in an undercover sting operation. FMCS Case Nos. 12/55103-1 and 12/55104-1. January 31, 2019 Learning Points:
    1. The level of proof required to terminate a police officer
    2. The weight given to a Federal Court’s acquittal of a police officer
    3. The importance given to an officer’s past work history in relation to the seriousness of the charged offenses
    4. The clarity of the contract language
    5. The simplicity of the language used in the City’s rules and regulations

     


    MODEL POLICIES (MP)

    Policy: Attendance and Absenteeism
    The primary purpose of this policy is to ensure the proper and efficient use of public-funded leave benefits. This policy honors the federal Family Medical Leave and Uniformed Services Employment and Reemployment Rights Act.

     

    Citizen Arrests 20.04.27
    TRC.MP Citizen Arrests 20.04.27.edited.wbk

     

    Conflicts of Interest
    Purpose The purpose of this policy is to protect this agency, maintain public trust, and guide members from conduct and behavior that lead to disciplinary action or potential lawsuits.

     

    Policy: Dating and Romantic Relationship
    Purpose This policy shall be applied in a nondiscriminatory manner and is intended to avoid a disparate impact on either sex, same-sex, or sexual orientation. This policy does not intend to discourage friendships between co-workers or between supervisory and nonsupervisory personnel.

     

    Employee’s Speech 18.08.16
    TRC.MP Employee's Speech 18.08.16 edited.wbk

     

    Policy: Forbidden Harassment
    Policy All forms of harassment, sexual or otherwise, are forbidden and unwelcomed offenses against this Department or Office Harassment affects the well-being and productivity of our members, the efficiency and effectiveness of this organization, negatively affects workplace morale, and subjects the Department or Office to potential civil liability. We will have a working environment free from all forms of harassment. Complaints or discovered incidences shall be investigated fairly and impartially. Proven offenses will subject offenders to disciplinary action up to and including termination.

     

    Policy: Interpersonal Relations
    Purpose This policy aims to promote a harmonious work environment and maintain and advance operational efficiency and effectiveness.

     

    Policy: Lactation
    Purpose It is policy to comply with all federal and state laws and regulations concerning breastfeeding and nursing mothers. It assists nursing mothers who want to express and store breast milk at workplaces during business hours.

     

    Policy: Management’s Right Clause
    The Union/Employees recognizes the prerogative of the Employer to operate and manage its affairs in all respects per its responsibilities, lawful power, and legal authority. All matters not expressly covered in the language of this Agreement or by state law shall be administered for the duration of this Agreement by the Employer as the Employer from time to time may determine. Affairs of the Employer concerning such prerogative include, but are not limited to, the following matters:

     

    Policy: Nepotism
    Purpose The following policy is adopted in keeping with our policy to affirmatively promote a work environment free of unlawful discrimination, harassment, conflicts or potential conflicts of interest, appearances of favoritism, and other problems associated with nepotism.

     

    Policy: Productive Use of Compensated Work Time
    Purpose The purpose of this policy is to provide accountability for the efficient, effective, and productive use of compensated Directed and Self-Directed Work Times.

     

    Policy: Social Media
    Online social media can be highly effective tools for sharing ideas and exchanging information. When lawfully and correctly used, it creates visibility and maintains communications with current and prospective employees and the general public. This policy addresses the use of social media by employees. This Agency adheres to all relevant federal and state laws and regulatory agencies regarding electronic communications.

     

    Policy: Temporary Light-Duty
    Purpose The purpose of this policy is to establish the authority for temporary light-duty assignments and procedures for granting temporary light duty to eligible members and civilian personnel.

     

    Model Use of Force Policy
    NOTICE: Our Use-of-Force policies shall be used for administrative purposes only. It is not considered to establish a higher legal standard of conduct for members in third-party claims. Policy Physical force shall be used only to accomplish a lawful objective (e.g., control a situation, effect an arrest, self-defense, and others' defense) in a lawful manner. The level of force used must be necessary and proportional (i.e., correlated) to the degree of defiance or threat created by the suspect…

     


    EDUCATIONAL MATERIAL (EDU)

    Assessing Officers’ Fitness
    TRC.LM 1.16 Updated 20.03.03 Failing to ensure that officers are fit enough to do their jobs without resorting to excessive force can amount to deliberate indifference. The District of Columbia Federal Appeals Court found the police department deliberately indifferent to physical fitness training of officers, who, out of shape, had to resort to shooting a suspect to protect himself. The Department allowed the officer to go four years without any fitness training. (Award for $425,046). Parker v. District of Columbia, 850 F.2d, 708. 1988 U.S. App. Lexis 8304. 271 U.S. App. D.C. 15 Parker v. District of Columbia, 850 F.2d, 708. 1988 U.S. App. Lexis 8304. 271 U.S. App. D.C. 15.

     

    Cloud Talking
    “A new type of thinking is essential if mankind is to survive and move toward higher levels.” Albert Einstein Cloud Talking is the mental response that comes to mind when you are engaged in a rival conversation. Cloud Talking feels so good to say that you just know that you will experience an unpleasant life-changing event if you say it aloud. Cloud Talking is often a signal to change the conversation to a higher level of thinking. Here is an example:

     

    Conducting a Performance Improvement Interview
    Step One: Give the proper notice to the employee A. Proper notice requires ensuring that the employee is told: 1. Thenatureandextentoftheproblem a. Examples:
    • (Attendance): Your Non-scheduled Absenteeism for the last quarter was 45% above the average.
    • (Behavior):Howyouhandledthatlastcallcouldhavebeenbetter conducted.
    • (Productivity-Efficiency Issue) You routinely take 35% longer than the typical amount of time to complete that task
    • Productivity-Effectiveness Issue) For every two hours of Self-Directed Work Time, your Self-Initiated performance outcome is a ratio of 1:2. The Work Unit average is 2:2.

     

    Creating a Self-Governed Police Culture
    Stan Parlow, J.D. and D.J. Van Meter, Ph.D. Leaders inspire employees to be self-governed. Self-governed employees honor the public's trust; they align their discretionary decision-making, conduct, and behavior with the organization's vision, values, mission, and accomplishments. It is fair to say self-governed employees are more satisfied, productive, require less direct supervision, and reduce employers' risk of vicarious liability. A favorite story about vision and mission alignment occurred in 1962 when President JackKennedyvisitedNASA.Asthestorygoes,heobservedaNASA employee with a broom sweeping an area nearby. The President walked over to the employee and said, "Hi, I am Jack Kennedy; what do you do here?" Without missing a beat, the man replied, "Well, Mr. President, I am here to put a man on the moon." Although some doubt that this conversation ever occurred, it represents a great example of aligning employees' conduct and behavior with an organization's vision and mission.

     

    Standards for Making Consequential Discretionary Decisions
    A law enforcement officer's discretionary decision made national headlines news recently. The officer cited a woman who was driving during the state's Stay-at-Home order. Consequently, the officer's Department Head, State Governor, and a Congressional Representative were forced to answer to the public and the press for his decision. The officer's Department, and the Governor's Stay at Home Order, allowed for officer discretion based on factors and circumstances at the time. However, these sources do not provide standards for evaluating the quality of such decisions. Absence standards for assessing the quality of discretionary decisions; no accountability exists f or the decision results. A copy of the news article is posted on the Membership site (www.vmatrc.org) for members and followers to download.

     

    Five Standards for Making Good Discretionary Decisions
    Management must trust that their members will make good discretionary decisions. Decisions concerning actions aren’t entirely controlled by specific laws, rules, set policies, or procedures. Decisions promote the intended meaning of “spirit” of our laws, rules, policies, or procedures. Positive answers to these five questions (i.e., standards) assess the “goodness” of any discretionary decision.

     

    Freedom of Speech Case VMATRC.LM 20.07.05
    Note: This case provides a comprehensive review of the laws governing employees' Freedom of Speech and the heavy burden these police officers faced when using Freedom of Speech protections to cover up their disloyal actions against their Chief of Police. File Name: 04a0133n.06 Filed: November 29, 2004 No. 03-3915 U.S.C.A. 6TH CIRCUIT Plaintiffs-Appellants, v. CITY OF MENTOR, RICHARD A. AMIOTT, JULIAN M. SUSO, EDWARD WALSH, and RICHARD HENNING, Defendants-Appellees. Plaintiffs Steven Graham, Daniel Grein, and Timothy Baker appeal the grant of summary judgment in favor of the City of Mentor ("Mentor"), its police chief, its city manager, and one current and one former city council president on plaintiffs' claim, brought according to 42 U.S.C. § 1983, for violation of their rights under the First and Fourteenth Amendments. The plaintiffs argue that: 1) they were discharged in retaliation for exercising their First Amendment rights; 2) the Mentor police rules are an unconstitutional prior restraint on speech, and 3) the police chief and city manager conspired to deprive the plaintiffs of their civil rights.

     

    A New Level of Thinking for Police Management
    A new type of thinking is essential if mankind is to survive and move toward higher levels," Albert Einstein. Police agencies across the country are at the epicenter center of a perfect storm. A storm that has been building for over 180 years. Each time the police management system fails to remove a dysfunctional or toxic (DTOX) officer from its ranks, this storm has gained momentum. Each failure makes it that much more difficult and dangerous for honorable officers to do their jobs; and more comfortable for those in charge of social policy to deny the responsibilities and failures of their positions. Throughout history, DTOX officers have never represented the 99% of the officers who honor their sworn oath daily. They are Honorable Peace Officers (HPO).

     

    Past Practices
    Who has never heard an employee ask this question? “We’ve done it this way forever; so, why do we have to change now?” While longevity is a decisive element in establishing a past practice, past behavior is not a Past Practice. Past behavior evolves into a Past Practice (in labor law) when it satisfies four conditions:
    1. Clarity – (i.e., clearness, coherence, uniformity)
    2. Consistency – (i.e., repetitious, regularity, reliability)
    3. Mutuality – (i.e., shared knowledge and acceptance between parties)
    4. Longevity – (i.e., a long enough period that employees, in general, rely on them)

     

    Police Misconduct 85000 Cases
    We found 85,000 cops who’ve been investigated for misconduct. Now you can read their records. USA TODAY is leading a national effort to obtain and publish disciplinary and misconduct records for thousands of police officers…

     

    Police Mission
    Mission The first step toward developing a Performance-Directed Organization is to define the proper mission. The organization's mission is a statement of why the organization exists. The mission is the standard by which the correctness and the effectiveness of all decisions and actions can be evaluated. The second step is to ensure that your members understand the mission and align their conduct and behavior with it. Mission defines the organization's business purpose. Consequently, defining an accurate statement of mission is one of management's most important responsibilities. The Purpose of Mission The purpose of a well-defined mission is to align all thoughts and actions towards a unified accomplishment (i.e., outcome, result). An adequately defined mission creates a vision of the outcome and provides alternate means to accomplish the mission. Law enforcement agencies can learn an essential lesson from American Railroad companies concerning the importance of having the proper mission and its effect on vision.

     

    The Dreaded D Word and the Highway of Life
    Leaders delegate tasks when team members have the necessary knowledge and work skills for successful task accomplishment. The willingness to delegating authority becomse more critical as leaders assume more responsibilities, yet delegation often becomes the Dreaded "D" word for leaders. Why? We think that the answer lies in the concept of control.

     


    ADDITIONAL INFORMATION