Disciplining employees is a necessary part of employment. However, employers often struggle with employees who engage in misconduct, especially where the employer believes the employees should be terminated. Recently, we came across the story of a Florida police officer which highlights the importance of conducting a thorough investigation before imposing discipline.
German Bosque is a Sergeant with the City of Opa-locka’s Police Department. In the nearly 20 years he had worked with the Department, Bosque had been fired at least six times. The terminations were based on a wide range of misconduct including use of excessive force, failing to turn in arrest reports, hiding drugs in a police car, stealing from suspects, falsifying police reports, calling in sick in order to take vacation in Mexico, and engaging in unauthorized police chases, one of which resulted in the deaths of four people. In addition, Bosque himself had been arrested and jailed three times.
Although this misconduct would seem sufficient to support termination, Bosque managed to be reinstated with full back pay each time. Bosque reportedly bragged about his ability to work for a law enforcement system that allows bad cops to remain employed, even when facing criminal charges. Currently, Bosque is at home on paid administrative leave pending another investigation into misconduct charges.
The press covering Bosque’s story identify a variety of reasons why he has been able to win his job back repeatedly. These reasons range from the Police Department’s lack of resources to corruption at the City. However, the City’s failure to investigate Bosque’s misconduct properly provides the most important lesson for public employers. Press reports indicate that the City either mishandled the investigations into Bosque’s misconduct or failed to investigate at all. As a result, the disciplinary charges against Bosque were either dropped or overturned due to insufficient evidence.
A thorough investigation should be conducted when a manager or supervisor reasonably believes that an employee has engaged in misconduct. If the employee appeals the agency’s disciplinary action, the agency will have the “burden of proof”, meaning that it must prove the truth of the allegations supporting the discipline by a preponderance of the evidence, that they are more likely true than false (or more than 50%). Therefore, an investigation should be done to determine if the facts supporting discipline are more likely than not true. A manager’s or supervisor’s reasonable suspicion will not be enough to sustain a disciplinary action.
Thorough investigations include compiling details about the misconduct, including the names of witnesses, dates, times, and locations. Thus, when conducting an investigation, any documents and physical evidence should be gathered and reviewed. This can include letters, emails, witness statements, photographs or videos. In addition, witnesses should be interviewed to discover the factual details of the alleged misconduct. Finally, managers and supervisors should always coordinate with the agency’s human resources or personnel department when conducting workplace investigations regardless of whether an outside investigator will be used. Consulting with human resources/personnel will help determine the scope of the investigation to be conducted and who should conduct the investigation.
Agencies who have questions about conducting investigations should consult legal counsel. You are welcome to contact any one of LCW’s offices. LCW’s workbooks Evaluation and Discipline and Disciplinary and Harassment Investigations also contains tips and guidelines for conducting investigations.