Being Fired is Not the Same as Staying Fired.
Police Officer discharge cases are often the most difficult cases for Police Departments to win at arbitration, in great part, thanks to the time-honored seven pronged “for just cause,” test set forth by Arbitrator Carroll R. Daugherty. Daugherty’s test is still used today and can be given credit for overturning quite a large number of police officer terminations. A “no” answer to ANY ONE or more of the questions as enumerated below, usually means that just and proper cause did NOT exist. See Enterprise Wire Company and Enterprise Independent Union, 46 LA 359 (1966).
The following explanation in bold clarifies in summary fashion what each of the seven tests described by Daugherty really means:
- Was the employee forewarned of the consequences of his actions?
Usually employers can satisfy this test because every employee is provided with a copy of the employers’ Rules and Regulations, which would likely be sufficient notice and forewarning for the employee.
- Are the employer’s rules reasonably related to efficiency and the performance an employer might expect from his employees?
It is not enough that the rules be communicated to all employees, they must also be reasonably related to the operation of the employer. For example, a rule requiring that all officers dress a certain way, when off duty, would likely fail this test because the way an officer dresses when he is not working is not reasonably related to the operation of the employer.
- Was an effort made prior to discharge to determine whether the employee was guilty as charged?
This test is used to determine whether or not an investigation was conducted. While this may seem like a no brainer, employers often fail this test because they make less than a good faith attempt to investigate all allegations, including all reasonable explanations or defenses. If charges are to be sustained and discipline imposed, it follows that an investigation has to be conducted. Not conducting an investigation or conducting an improper one is tantamount to sentencing a person to a term of incarceration without holding a trial. While the example may seem extreme, the termination of a police officer has the potential of being a killing blow to a career in law enforcement.
- Was the investigation conducted fairly and objectively?
This test evaluates whether or not the investigation was fair and objective. If the investigation is seriously flawed and it’s conduct raises serious concerns about both fairness and objectivity, then the employer will likely fail this test. This includes whether the investigator was biased, whether he or she seriously evaluated all of the evidence available at the time of the investigation, or simply ignored exculpatory or mitigating evidence.
- Was there substantial evidence of the employee’s guilt?
This test evaluates whether the evidence was she said/he said type of evidence or whether the allegations were corroborated by independent witness testimony, video, fingerprint or DNA evidence or an admission by the employee. The proof does not have to be beyond a reasonable doubt, but it does have to support the allegations. Proof in discharge cases should be by overwhelming weight of the evidence. See Hyatt Hotels Palo Alto, 85 LA 11 (Oestreich, 1985).
- Were the employer’s rules applied fairly and without discrimination?
This test is one that employers often get wrong. Even if all of the first 5 tests are met, there are factors that the employer should take into consideration during this test prior to discharging the employee. For example, the employee’s tenure, past discipline, the seriousness of the allegations and whether other similarly situated employees were treated more favorably or less harshly. Another consideration of course is simply whether the employee was given an opportunity to present evidence or mitigation on his behalf or to have a representative present?
- Was the degree of discipline reasonably related to the seriousness of the offense and the employee’s past record?
The Seventh and final test addresses the penalty itself and whether the Penalty is consistent with progressive discipline. Termination as a penalty is excessive discipline that is warranted only in the most serious of offenses.
In conclusion, in Police Officer discharge cases, if the employer has failed to meet one of the seven tests of the “Just Cause” standard, the employer’s personnel action cannot be sustained.
Stephan Lopez is a former police officer and Miami-Dade prosecutor that provides legal representation that is both multi-faceted and knowledgeable to clients facing serious criminal charges. Specifically, he focuses and assists clients in the areas of Criminal Defense, Personal Injury, Property Claims, Family Law, Commercial and Civil Litigation,
The firm also provides representation in the areas of: Civil Rights and Police Misconduct cases, Call us for a FREE consultation at (305) 792-8221.
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