"GYPSY COPS" AND AGENCY LIABILITY
by Matthew Dolan, Attorney
©2014 Matthew Dolan, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)
The term “gypsy cop” is often used to describe the problem officer who wanders from agency to agency over a period of years or even decades—leaving behind them substantial damage to the morale, reputation and finances of the departments on which they have served. It is certainly true that good officers may look to join a new agency during the course of their career for reasons related to family life, career advancement or better compensation. Many departments have recruited and retained lateral hires as officers who have proved to be great assets in their new roles. Lateral programs can and have been successful for many high-performing officers looking for a change.
However, the reason for the frequent movements of the wandering problem officers tends not to be an affirmative choice but a necessity. It is the result of the fact that past agencies have terminated them, forced them into resignation or disciplined them to the point where the officer saw the “writing on the wall” and resigned. These same individuals then apply to new agencies as certified officers with law enforcement experience, and the problem continues in a new department.
The appeal of the gypsy cop. Why would an agency hire an officer who has bounced from agency to agency—particularly when clear indicators of problem behavior are known to past employing agencies? One reason is the short-term economic benefit of a certified officer who can be placed into service without the cost of training and certification typically incurred when taking on an applicant who does not possess a law enforcement background. The thinking behind the hiring of a certified officer in spite of past problems is that it is less expensive. The officer does not have to be trained through an academy and certified. The individual is ready to hit the streets almost immediately—meaning that another cop is on the street and money has been saved.
But this is an extremely short-term money saver. The liability risks associated with an individual who has a demonstrated propensity for misconduct and/or performance issues in law enforcement are certain to outweigh the few thousand dollars saved at the time of hiring. One egregious and possibly dangerous decision by the problem officer in the use of force or any multitude of other high risk areas of law enforcement can result in liability costs to the department that will exponentially surpass the aforementioned savings. Hiring these problematic wanderers is not a cost saver—it is an invitation to liability, stress and loss of social capital.
The Failure to Investigate and Verify. Apart from the misguided theory that hiring a gypsy officer is an effective means of solving an agency’s budgetary constraints, the decision to hire may result from the fact that many officers’ past problems are not identified by the latest agency to take them on. That is to say, either there is no background investigation to speak of, or that the investigation is less than thorough.
Here again the issue of cost and resources emerges. Agencies often believe that they do not possess the resources necessary to complete thorough background investigations on all of their applicants. Although there are certainly agencies across the country who find themselves short of the financial and human assets involved in a thorough background investigation, making the decision to hire and arm an individual without the appropriate vetting is more likely to create a liability in the department than it is an asset.
Can we afford to conduct the background? Can we afford to leave the position vacant? These are common questions posed by a cash-strapped agency seeking to fill an open position. But two equally important questions to ask, particularly in the context of wandering problem officers with discoverable past issues, are: Can we afford not to conduct the background? Are we better serving the community by waiting to fill the position with a vetted applicant rather than rolling the dice?
The Failure to “Speak Up”. Throughout the country, many public safety leaders are refusing to cooperate with fellow agencies in the completion of applicant background investigations with respect to past employment. This common refusal tends to come in spite of the fact that there is a binding release and authorization for such information which has been signed by the applicant.
Why aren’t these leaders who possess critical knowledge of the applicant’s character alerting fellow law enforcement officers of the facts that would lead to the conclusion that the applicant is not fit for a position in law enforcement? Why are personnel files riddled with disciplinary write-ups and IA investigations not being turned over? Why are chiefs and sheriffs not indicating to background investigators, “he is not rehireable by this agency and I cannot recommend him for that position”?
Typically, the answer is that Human Resources or Legal Counsel have instructed agency leaders not to disclose and not to discuss. Why? Because doing so may result in lawsuits. What kind of lawsuits? No one seems to know. Both case law and media reports are filled with accounts of toxic officers—many of them fitting the description of gypsy cops—who are causing agencies and supervisors to be brought into lawsuit after lawsuit, stemming both from their toxic actions in the field and within the department. But where are the cases of public safety leaders divulging personnel records and giving straightforward statements of an individual’s suitability for work in law enforcement and, thereby, exposing the agency to significant liability? [i] And even if there were some slight risk that speaking up will result in some type of lawsuit being filed, when should those concerns ever outweigh the vital concerns related to the integrity of the public safety profession?
A Challenge to the Public Safety Profession. The cases are not new. The problem is not a newly-emerging one. The risks associated with these hiring decisions are known or certainly should be known. The critical issue is not just one of liability management but of leadership: Whether agency leaders are willing to (1) take the time and resources necessary to conduct adequate background investigations in spite of the fleeting financial temptation and outside pressure to hire gypsy cops, and (2) have the fortitude to “speak up” when another agency provides a valid waiver & release and asks for help in making a critical personnel decision. Meeting this leadership challenge is integral to protecting the integrity of the men and women chosen to serve and protect.
[i] In some cases, the past agency may have entered into a separation agreement with the officer, under which both parties are bound to a non-disparagement clause. However, even in such a circumstance, there should be no contractual promise not to allow agencies access to the relevant personnel file.