WHAT’S THE BEST EMPLOYMENT DECISION FOR OFF-DUTY POLICE OFFICERS ARRESTED FOR DUI/OWI?
by Lou Reiter
©2014 Lou Reiter, Co-Director, PATC Legal & Liability Risk Management Institute (www.llrmi.com)
“What’s the best employment decision for off-duty police officers arrested for DUI/OWI?”
This was one of the options for a research paper topic for the over 100 participants who opted to challenge the National Professional Certification for IA/OPS Investigators and Supervisors at our recent Internal Affairs Conference in Las Vegas. This Certification Program has been a very successful program initiated by the Legal and Liability Risk Management Association of the Public Agency Training Council.
Actual practice of handling off-duty officer DUI/OWI arrest incidents seems to show that there is no consistent method for handling this personnel decision. Some agencies seem to have a zero tolerance policy and terminate any officer in this situation regardless of the eventual court proceedings. Other agencies wait until the outcome of any judicial proceedings and, if convicted, will terminate the officer. Some agencies have reported that it will result in a suspension ranging from ten or more days to a couple of months.
The early research papers submitted by our Certification candidates seem to fall into two distinct groups. The first group felt that the officer who is arrested for off-duty DUI should be terminated. The rationale advanced hinges on three specific issues.
The first of the three issues is this conduct would violate the oath of office and the Police Officers Code of Conduct. Part of that Code is the sentence that states the officer “…shall maintain an unsullied personal life as an example to all.” If an officer violates this axiom of ethical behavior, this group felt it should signal that this would be a continuing flaw in the officer’s performance.
A second common point of rationale from these authors who favor termination is that this type of arrest would normally result in the suspension of the officer’s driving privilege, particularly if the officer refuses to take any required chemical or breath test, and would severely curtail the officer’s ability to perform the basic task of his/her position. These authors believed that the agency should not be required to accommodate the officer’s inability to drive.
A third issue from this group is the potential that an incident like this could destroy the officer’s credibility and interfere with any subsequent court testimony. This would be particularly true of any incidents involving intoxication arrests.
All of these are valid points raised by the authors of these research papers who favored termination.
The second group, however, contended that it would depend on a lot of other factors. This group felt that it would depend on the outcome of the criminal proceedings. The arrest might not be prosecuted for a variety of reasons. Or the court proceedings could result in a decision that would not be deemed to be a conviction. If the charge was reduced to reckless driving that would now reduce the stigma of the DUI. Or it could be adjudicated as a non-conviction for a variety of other reasons such as attendance at a DUI school. Then, at that point also, the officer might be acquitted.
Some in this second group felt it might depend on the past practices of the agency. What if the agency regularly accepted candidates for the job who had a prior DUI before becoming a member of the agency? How has the agency dealt with other intoxication related incidents involving employees? Did these always result in termination? This arrest might be a symptom of an alcoholism dependency that could be addressed by the agency’s Employee Assistance Program and rehabilitation resources.
This same group also felt that the officer involved could take a leave of absence for the period of his license’s suspension or make other arrangements to get to and from work and be assigned to some task not requiring driving agency vehicles. Would it be reasonable to accommodate the officer particularly if the agency had done this for officers involved in other off-duty incidents that limited his/her ability to perform the assigned task?
This second group pondered the issue of testimonial credibility and the Brady/Giglio implications. Does the agency have assignments where future testimony of this officer would not be required? Some courts have decided that this issue of credibility might be overcome in time or by trial testimony rehabilitation like for any witness in a criminal trial.
Not addressed by the authors in both groups was the potential that some officers who are stopped off-duty and have been drinking might be given ‘professional courtesy.’ Whether it’s right or wrong is not the issue here. It’s what position will your department take should it come to your attention. In these cases there will probably be little, if any, evidence to go on.
Personnel issues are some of the most difficult decisions for supervisors and administrators. Zero tolerance policies sound great, but have proven to be difficult to enforce and are easily broken for well-meaning and, in some cases, not so well meaning reasons. It’s best to have these discussions before you have to make this hard decision involving off-duty officer DUI/OWI incidents!
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.