Model Policy on Standards of Conduct
Model Policy
Concepts and Issues Paper
It is the purpose of this policy to provide additional specificity to
the standards of conduct embodied in the law enforcement
officer’s code of ethics and this agency’s statement of
values so that officers of this agency will better understand
prohibitions and limitations pertaining to their conduct and
activities while on and off duty.
The rules of conduct set forth in this policy are not intended to
serve as an exhaustive treatment of requirements, limitations, or
prohibitions on officer conduct and activities established by this
agency. Rather, they are intended to (1) alert officers to some of the
more sensitive and often problematic matters involved in police
conduct and ethics; (2) specify, where possible, actions and inactions
that are contrary to and that conflict with the duties and
responsibilities of law enforcement officers, and (3) guide officers
in conducting themselves and their affairs in a manner that reflects
standards of deportment and professionalism as required of law
enforcement officers. Additional guidance on matters of conduct is
provided in regard to specific policies, procedures, and directives
disseminated by this agency and from officers’ immediate
supervisors and commanders.
Actions of officers that are inconsistent, incompatible, or in
conflict with the values established by this agency negatively affect
its reputation and that of its officers. Such actions and inactions
thereby detract from the agency’s overall ability to effectively
and efficiently protect the public, maintain peace and order, and
conduct other essential business. Therefore, it is the policy of this
law enforcement agency that officers conduct themselves at all times
in a manner that reflects the ethical standards consistent with the
rules contained in this policy and otherwise disseminated by this
agency.
Accountability: In the context of this policy, accountability
means the duty of all officers to truthfully acknowledge and explain
their actions and decisions when requested to do so by an authorized
member of this agency without deception or subterfuge.
1. Obedience to Laws, Regulations, and Orders
a. Officers shall not violate any law or any agency policy, rule, or procedure.
b. Officers shall obey all lawful orders.
2. Conduct Unbecoming an Officer
Officers shall not engage in any conduct or activities on- or off-duty
that reflect discredit on the officers, tend to bring this agency into
disrepute, or impair its efficient and effective operation.
3. Accountability, Responsibility, and Discipline
a. Officers are directly accountable for their actions through the chain of command, to this agency’s chief executive officer.
b. Officers shall cooperate fully in any internal administrative investigation conducted by this or other authorized agency and shall provide complete and accurate information in regard to any issue under investigation.
c. Officers shall be accurate, complete, and truthful in all matters.
d. Officers shall accept responsibility for their actions without attempting to conceal, divert, or mitigate their true culpability nor shall they engage in efforts to thwart, influence, or interfere with an internal or criminal investigation.
e. Officers who are arrested, cited, or come under investigation for any criminal offense in this or another jurisdiction shall report this fact to a superior as soon as possible.
4. Conduct Toward Fellow Employees
a. Officers shall conduct themselves in a manner that will foster cooperation among members of this agency, showing respect, courtesy, and professionalism in their dealings with one another.
b. Employees shall not use language or engage in acts that demean, harass, or intimidate another person. (Members should refer to this agency’s policy on “Harassment and Discrimination in the Workplace” for additional information on this subject)
5. Conduct Toward the Public
a. Officers shall conduct themselves toward the public in a civil and professional manner that connotes a service orientation and that will foster public respect and cooperation.
b. Officers shall treat violators with respect and courtesy, guard against employing an officious or overbearing attitude or language that may belittle, ridicule, or intimidate the individual, or act in a manner that unnecessarily delays the performance of their duty.
c. While recognizing the need to demonstrate authority and control over criminal suspects and prisoners, officers shall adhere to this agency’s use-of-force policy and shall observe the civil rights and protect the well-being of those in their charge.
6. Use of Alcohol and Drugs
a. Officers shall not consume any intoxicating beverage while on duty unless authorized by a supervisor.
b. No alcoholic beverage shall be served or consumed on police premises or in vehicles owned by this jurisdiction.
c. An officer shall not be under the influence of alcohol in a public place, whether on- or off-duty.
d. No officer shall report for duty with the odor of alcoholic beverage on his or her breath.
e. No officer shall report to work or be on duty as a law enforcement officer when his or her judgment or physical condition has been impaired by alcohol, medication, or other substances.
f. Officers must report the use of any substance, prior to reporting for duty, that impairs their ability to perform as a law enforcement officer.
g. Supervisors shall order a drug or alcohol screening test when they have reasonable suspicion that an employee is using and/or under the influence of drugs or alcohol. Such screening shall conform to this agency’s policy on employee drug-screening and testing.
7. Use of Tobacco Products
While on duty, a police officer shall not use a tobacco product unless in a designated area and while not conducting police business. Additionally, officers are not permitted to use tobacco products in a vehicle owned or maintained by this agency.
8. Abuse of Law Enforcement Powers or Position
a. Officers shall report any unsolicited gifts, gratuities, or other items of value that they receive and shall provide a full report of the circumstances of their receipt if directed.
b. Officers shall not use their authority or position for
financial gain, for obtaining or granting privileges or favors not
otherwise available to them or others except as a private citizen, to
avoid the consequences of illegal acts for themselves or for others,
to barter, solicit, or accept any goods or services (to include,
gratuities, gifts, discounts, rewards, loans, or fees) whether for the
officer or for another.
c. Officers shall not purchase, convert to their own use, or
have any claim to any found, impounded, abandoned, or recovered
property, or any property held or released as evidence.
d. Officers shall not solicit or accept contributions for this
agency or for any other agency, organization, event, or cause without
the express consent of the agency chief executive or his or her
designee.
e. Officers are prohibited from using information gained through
their position as a law enforcement officer to advance financial or
other private interests of themselves or others.
f. Officers who institute or reasonably expect to benefit from
any civil action that arises from acts performed under color of
authority shall inform their commanding officer.
9. Off-Duty Police Action
a. Officers shall not use their police powers to resolve
personal grievances (e.g., those involving the officer, family
members, relatives, or friends) except under circumstances that would
justify the use of self-defense, actions to prevent injury to another
person, or when a serious offense has been committed that would
justify an arrest. In all other cases, officers shall summon on-duty
police personnel and a supervisor in cases where there is personal
involvement that would reasonably require law enforcement
intervention.
b. Unless operating a marked police vehicle, off-duty officers
shall not arrest or issue citations or warnings to traffic violators
on sight, except when the violation is of such a dangerous nature that
officers would reasonably be expected to take appropriate action.
10. Prohibited Associations andEstablishments
a. Arresting, investigating, or custodial officers shall not
commence social relations with the spouse, immediate family member, or
romantic companion of persons in the custody of this agency.
b. Officers shall not knowingly commence or maintain a
relationship with any person who is under criminal investigation,
indictment, arrest, or incarceration by this or another police or
criminal justice agency, and/or who has an open and notorious criminal
reputation in the community (for example, persons whom they know,
should know, or have reason to believe are involved in felonious
activity), except as necessary to the performance of official duties,
or where unavoidable because of familial relationships.
c. Except in the performance of official duties, officers shall
not knowingly enter any establishment in which the law of that
jurisdiction is regularly violated
d. Officers shall not knowingly join or participate in any
organization that advocates, incites, or supports criminal acts or
criminal conspiracies.
1. Officers shall not, under color of authority,
a. make any public statement that could be reasonably interpreted as having an adverse effect upon department morale,
discipline, operation of the agency, or perception of the public;
b. divulge or willfully permit to have divulged, any information
gained by reason of their position, for anything other than its
official, authorized purpose; or
c. unless expressly authorized, make any statements, speeches,
or appearances that could reasonably be considered to represent the
views of this agency.
2. Endorsements
Officers may not, under color of authority, endorse, recommend, or
facilitate the sale of commercial products or services. This includes
but is not limited to the use of tow services, repair firms,
attorneys, bail bondsmen, or other technical or professional services.
It does not pertain to the endorsement of appropriate governmental
services where there is a duty to make such endorsements.
Officers shall be guided by state law regarding their participation
and involvement in political activities. Where state law is silent on
this issue, officers shall be guided by the following examples of
prohibited political activities during working hours, while in
uniform, or otherwise serving as a representative of this agency:
a. Engage in any political activity;
b. Place or affix any campaign literature on city/county-owned property;
c. Solicit political funds from any member of this agency or another governmental agency of this jurisdiction;
d. Solicit contributions, signatures, or other forms of support for political candidates, parties, or ballot measures on property owned by this jurisdiction;
e. Use official authority to interfere with any election or interfere with the political actions of other employees or the general public;
f. Favor or discriminate against any person seeking employment because of political opinions or affiliations;
g. Participate in any type of political activity while in uniform.
1. Officers shall not store personal information or belongings
with an expectation of personal privacy in such places as lockers,
desks, departmentally owned vehicles, file cabinets, computers, or
similar areas that are under the control and management of this law
enforcement agency. While this agency recognizes the need for officers
to occasionally store personal items in such areas, officers should be
aware that these and similar places may be inspected or otherwise
entered—to meet operational needs, internal investigatory
requirements, or for other reasons—at the direction of the
agency chief executive or his or her designee.
2. No member of this agency shall maintain files or duplicate
copies of official agency files in either manual or electronic formats
at his or her place of residence or in other locations outside the
confines of this agency without express permission.
This document was designed to accompany the Model Policy on Standards
of Conduct developed by the IACP National Law Enforcement Policy
Center. This paper provides essential background material and
supporting documentation to provide greater understanding of the
developmental philosophy and implementation requirements for the model
policy. This material will be of value to law enforcement executives
in their efforts to tailor the model to the requirements and
circumstances of their community and their law enforcement agency.
Unlike many of the policies developed by the National Law Enforcement
Policy Center, law enforcement agencies should regard the present
policy as pertinent to all members of their agency, not solely to
sworn officers. While sworn personnel may be at greater risk with
regard to many of the issues addressed herein, all members of police
agencies should be cognizant of and may be held equally accountable
for the mandates set forth in this policy.
It has been said that policing is a morally dangerous occupation. Most
officers who have been in line operations for even a limited period of
time can affirm this view. The public is not totally unaware of this
fact either. Indeed, most popular literature and movie depictions of
police work deal extensively with the moral and ethical dilemmas that
officers face on the job. Police officers confront many temptations
and difficult decisions that often involve conflicting notions of what
is right and wrong and what is expected from them. There are several
issues in the police environment that set the stage for such moral and
ethical dilemmas.
Probably the most common among these is the fact that police officers
possess substantial power that can be exerted for the benefit or
detriment of many individuals. The legal right to employ coercive
force to gain compliance of individuals, up to and including the use
of deadly force, makes law enforcement unique among occupations. Such
power is attractive to some persons who wittingly or unwittingly
attempt to coopt police authority for their own advantage. From the
seemingly benign offer of a free cup of coffee for an officer on the
beat to a substantial financial inducement for an officer to
“look the other way,” law enforcement authority is a
source of many temptations that can strain the limits of personal and
professional integrity.
There are other, maybe not so obvious, sources of moral and ethical
conflict in police work. For example, most police officers are
required to deal with many persons and situations that reflect some of
the more demeaning and dehumanizing aspects of life. These situations
can and often do have negative long-term side effects on the
attitudes, opinions, and philosophy of officers who are forced to deal
with them on a day-to-day basis. The impressionable, idealistic young
recruit may, over time, become disillusioned, cynical, or frustrated,
feeling that his or her efforts are ineffectual and unappreciated.
Such officers may be more tempted to adopt a “who cares?”
attitude, to lose the ethical and moral focus that they originally
brought to police work, to bend the rules and possibly become involved
in questionable or illegal conduct.
Frustrations arise from a variety of other sources. For example, many
officers perceive the legal system as being weighted far too heavily
against law enforcement and in favor of criminal suspects. Further,
police officers often see other individuals or segments of society as
flouting or “stretching” the law and getting away with or
even being rewarded for it, while honest cops labor years in
relatively low-paying, often dangerous, and many times thankless jobs.
Finally, one cannot overlook the fact that officers are often caught
in a moral dilemma by the very nature of their profession. Society
asks police officers to control crime and to apprehend perpetrators
while at the same time placing severe restrictions on the manner in
which these can be accomplished. On the one hand, for example,
officers are rewarded for their effectiveness in apprehending
criminals, but, should their zeal cross the bounds established by law,
these same efforts can be punished. These seemingly conflicting
demands may lead some officers to feel that the courts, prosecutors,
defense attorneys, and others in the criminal justice system are
working at odds with them and the good of society. The need to find
the proper balance between protection of society and adherence to the
dictates of individual rights and liberties can be a difficult effort
for many officers, one that often pits means against ends and involves
them in organizational, professional, and personal dilemmas.
In this context, the police officers’ standards of conduct can
become unclear. Matters regarding agency policy, acceptable practices,
and appropriate behavior can be interpreted by officers in differing
ways. Therefore, police agencies must clearly define what is and is
not acceptable conduct. It has long been acknowledged that, to do
their job properly, law enforcement officers must accept and abide by
a high ethical and moral standard that is consistent with the rule of
law they are sworn to uphold. They must also back up those beliefs and
demonstrate their adherence to those values by consistently employing
propriety and discretion in their personal lives that reflects
favorably on themselves as professionals and the law enforcement
agency that they represent. Without this, police agencies cannot
expect to gain the respect and cooperation of citizens that is
essential to the success of policing.
Personal integrity, a conscious decision to do the right thing even in
the face of overwhelming pressure, and recognition of personal
responsibility for one’s actions are all indispensable
ingredients in achieving high levels of professional conduct.
Developing formal values and institutionalizing ethical standards
within the police agency are also essential to this end. These norms
and ethical precepts should serve as guidance to officers when making
decisions about the propriety of specific types of behavior or actions
absent express agency policy. But, while values, codes of conduct, and
ethical standards are important guides, it is also important that
agencies make clear what is acceptable police conduct under specific
situations so that there are no misunderstandings. This is
particularly the case in highly sensitive areas of police operations.
With this in mind, the IACP National Law Enforcement Policy Center
developed the Model Policy on Standards of Conduct, the components of
which are discussed here.
The model policy deals with a limited number of issues from the large
number of possible concerns relating to police conduct. The rules of
conduct addressed in the model policy are not intended to serve as an
exhaustive treatment of requirements, limitations, or prohibitions on
officer conduct and activities. Rather, the issues discussed here are
among those that have traditionally presented the most trouble for
police agencies and officers and are among the most sensitive
traditionally in terms of their impact on law enforcement agencies and
the community.
The model policy’s statement of purpose also notes that it is
intended to specify, where possible, actions and inactions that are
contrary to and that conflict with the duties and responsibilities of
law enforcement officers. And, it is meant to guide officers in
conducting themselves and their affairs in a manner that reflects
standards of deportment and professionalism as required of law
enforcement officers. Not all matters of conduct can be addressed in a
single policy on conduct. Expectations with regard to conduct cut
across many aspects of law enforcement operations. Therefore, officers
should not overlook guidance available through specific policies,
procedures, and directives as well as through the guidance and
recommendations of supervisory and command officers.
A succinct justification and rationale for the development of the
policy on standards of conduct is found in the model policy statement:
Actions of officers that are inconsistent, incompatible, or in
conflict with the values established by this agency negatively affect
its reputation and that of its officers. Such actions and inactions
thereby detract from the agency’s overall ability to effectively
and efficiently protect the public, maintain peace and order, and
conduct other essential business. Therefore, it is the policy of this
law enforcement agency that officers conduct themselves at all times
in a manner that reflects the ethical standards consistent with the
rules contained in this policy and otherwise disseminated by this
agency.
As in the above statement, it is important in any policy to lay the
groundwork or the premise upon which the policy and procedures are
built. This baseline information is perhaps nowhere more important
than in a policy that deals with personal and professional conduct of
officers. Standards of conduct often involve personal liberties,
including freedom of association, freedom of speech, and related
matters that are among the more closely guarded of individual rights.
Most persons feel strongly that these and other matters of personal
conduct should be, within reason, the subject of their own choice and
personal preference. Many resent an employer’s attempts to
dictate the terms of what is deemed appropriate and inappropriate
conduct.
In virtually all working environments and areas of employment, there
are limitations upon an employer’s capacity to dictate the terms
of employment with regard to personal conduct of employees. Of course,
it is reasonable for employers to require that their personnel conduct
themselves with decorum and good taste. However, when it comes to
matters that are perceived to be of a more personal nature, employees
are far more sensitive. In these matters, employers must be even more
sure that the restrictions or limitations they wish to impose are
legally grounded, reasonable, and justifiable as job related.
The courts have, in many cases, upheld the notion that law enforcement
work carries certain unique features that distinguish it from other
types of employment. As such, certain types of conduct and employee
activities are deemed inimical to the efficient and effective
operation of police agencies and can be limited, curtailed, or
modified in some manner. For example, almost every police agency
desires to regulate, at least to some degree, the personal appearance
of its officers, to include hairstyles. Predictably, policies on these
and similar issues have been and are still subjected to legal
challenge. While the subject of personal appearance is not covered in
the present policy on standards of conduct, case law in this regard
carries some lessons that form a good backdrop to the discussion in
this concepts and issues paper. Specifically, police agencies desiring
to regulate hairstyles, especially hair length, have received
considerable support from the courts. The landmark decision in this
area is the 1976 Supreme Court case of Kelley v. Johnson, [1] in which
officers challenged a regulation of the Suffolk County, New York,
Police Department.
The regulation at issue in Kelley governed the style and length of
officers’ hair, sideburns, and mustaches, and also prohibited
beards. The regulation was challenged on the grounds that it violated
the officers’ rights of free expression under the First
Amendment and guarantees of due process and equal protection under the
14th Amendment. The department contended that the regulations were
necessary to ensure uniformity of appearance, thereby making officers
readily recognizable by the public, and that it also contributed to
the agency’s esprit de corps.
The U.S. Supreme Court upheld the police department’s
regulation. The Court noted that the officers might indeed have a
“liberty interest” in their hairstyles that could not be
curtailed by the department absent rational justification. However,
the Court held that uniformity of appearance and the maintenance of
esprit de corps were sufficient rational justifications for imposing
the regulations. Therefore, under Kelley, a hairstyle regulation will
be upheld as long as the department has a “rational
justification” for its enforcement. In this case, the rational
justification is based on the logical connection between the policy
and the promotion of legitimate agency interests (and those of the
public) to protect property and persons.
Clearly from the above example, police policies generally, and
particularly those that have bearing on liberty interests of
personnel, must be based on rational, articulably justifiable grounds
that relate to the promotion of legitimate law enforcement agency
and/or public interests. In addition to meeting these tests, a policy
on employee conduct as well as any other agency policy cannot be
overly broad or overreaching so as to unfairly or unnecessarily impact
personnel. In the same manner, the policy must be specific enough that
officers can reasonably be expected to understand what is expected of
them and to follow its mandates. For example, a hair regulation for
officers should indicate the length and style of hair that is
acceptable and state any exceptions to those rules that may be
applicable, such as in the case of officers who may be working in
undercover capacities. Finally, the policy must be uniformly applied.
There should be no unjustified exceptions to the application of the
policy to individuals within the agency, or it may be reasonably
argued that the policy is arbitrary, capricious, and discriminatory.
These principles should be reemphasized whenever police policies of
any type are formulated and enforced and particularly in cases that
deal with standards of conduct.
The model policy states that officers are responsible for observance
of all laws, regulations, and orders. This may appear at first glance
to be a matter of such a fundamental nature as not to deserve specific
mention in an agency policy. Certainly, police officers are as subject
to the law as any other person. But reality dictates and history has
shown that some officers, whether through misguided zeal or for other
reasons, may come to view themselves and their police colleagues as
exempt from the law on a general, selective, or situational basis.
This element of the policy is intended to stress the importance of the
rule of law for all officers and to hold each officer accountable for
any legal wrongdoing.
In particular, the mandates of procedural due process for accused
persons must remain paramount in the minds of law enforcement officers
as they go about the task of protecting life and property. These legal
protections and individual rights cannot be placed on hold as a matter
of convenience to achieve agency or officer objectives. They must be
recognized as an indispensable and non-negotiable part of law
enforcement in a democratic state, and a recognized cornerstone of
police agency policy. The fact that officers cannot disregard their
own responsibility to the law or circumvent the rights of individuals
as prescribed by law in the course of performing their duties is a
matter that deserves repetition and reinforcement in a policy on
police conduct as well as in the agency’s code of conduct and
core values.
By the same token, the model policy specifically states that officers
shall not violate any agency policy, rule, or procedure and that they
shall obey all lawful orders. The term lawful is included to
acknowledge the uncommon yet potential situation in which an order may
be given that is unlawful and/or that is in violation of agency
policy. An example of an unlawful order is one in which a subordinate
is directed to use excessive force.
The model policy prohibits officers from engaging in “any
conduct or activities on- or off-duty that reflect discredit on the
officers, tend to bring the agency into disrepute, or impair its
efficient and effective operation.” These actions are sometimes
referred to as “conduct unbecoming and officer”(CUBO).
Unbecoming conduct incorporates those acts that may not be
specifically identified by policy but that could reasonably be
regarded as so improper or inappropriate by their nature and in their
context that they are harmful to the agency’s and
officers’ reputations.
One of the problems in defining prohibited conduct is that one cannot
reasonably itemize all forms of conduct that may be considered
damaging to officers or their agency. Attempts by an agency to itemize
all prohibited acts become excessively tedious and invariably overlook
certain types of behavior that would be considered unacceptable. Under
these circumstances, it is more difficult to hold an officer
accountable for improper behavior if it is not listed in the defined
list of prohibited actions. Therefore, CUBO is an attempt to
incorporate the array of improper acts not specifically identified in
the standards of conduct policy. But, to do this effectively, CUBO
must be linked effectively to an agency’s code of conduct and/or
values, and officers should receive training in its meaning.
Some agency administrators may hesitate to incorporate CUBO into their
standards of conduct because it does not identify specific prohibited
acts and presents the possibility that charges brought under this
umbrella could more easily be challenged as being arbitrary. While
this possibility exists, it is also true that most disciplinary
measures relating to conduct violations are subject to similar
challenges based on the alleged transgression’s relevance to the
officer’s job and the efficient and effective operation of the
agency. In all cases of conduct violations, the agency must be
prepared to defend its position based on the connection of the
behavior to negative outcomes on the agency’s officers and
mission. This issue of relevance should be as important to the agency
in standards formulation as it is to officers charged with standards
infractions.
Charges of conduct unbecoming an officer should be brought only when
there is particular reason and a rational justification for enforcing
the standard. Absent such criteria, charges should not be brought
whether specified under CUBO or other conduct prohibitions. As in the
case of the grooming standards (i.e., hair length) brought under
Kelley previously noted, there is normally a presumption that the
regulation is valid. The officer, to overcome this presumption, must
show that “there is no rational connection between the
regulation ... and the promotion of safety of persons and
property.”[2]
In addition to the above, agencies should be particularly cognizant of
the need to enforce CUBO on a consistent and equitable basis. The
agency should recognize that it may be setting precedent in some cases
when disciplining officers for conduct that is not specified in the
agency’s policy and procedure manual. To avoid charges of
disparate treatment, the agency should make every effort to ensure
that similar acts of offending conduct by officers are dealt with
through similar disciplinary measures. Also, to provide officers with
the information necessary to make informed decisions on such matters,
the agency should provide in-service training on an initial basis upon
introduction of the policy and on a periodic basis thereafter.
Officers are reminded in the model policy that they are directly
accountable for their actions through the chain of command to the
agency’s chief executive officer. Further, the model policy
requires that officers “cooperate fully in any internal
administrative investigation conducted by this or other authorized
agency and shall provide complete and accurate information in regard
to any issue under investigation” and, that they “shall be
accurate, complete, and truthful in all matters.”
The importance of these admonitions is lodged primarily in the
recognition that police officers have traditionally been a generally
closed social and professional group. Among the common characteristics
of police officers in this context are silence and solidarity with
respect to attacks on fellow officers. The sense of camaraderie and
cohesiveness that these traits reflect clearly have positive side
effects in many aspects of police work. But, they can also have a
negative influence in some cases where officers face charges of
wrongdoing. The model policy makes it clear that officers owe their
first allegiance and responsibility to the agency that employs them,
and that failure to cooperate in any internal investigation in an
effort to protect oneself or a fellow officer is a separate violation
of policy.
Along these same lines, the model policy states that:
Officers shall accept responsibility for their actions without
attempting to conceal, divert, or mitigate their true culpability nor
shall they engage in efforts to thwart, influence, or interfere with
an internal or criminal investigation.
This requirement is intended to expand on the requirement for
truthfulness and cooperation from officers, particularly during
internal investigations. But in addition to being truthful in response
to questions that may be posed to them in an investigation or other
matter, officers are expected to accept responsibility for
inappropriate or improper conduct without attempting to cover up their
mistakes or misdeeds. Attempts to withhold information necessary for
the conduct of an internal investigation, or to interfere or influence
such an investigation for one’s own protection or to protect
another, should be considered a separate violation of policy.
In fact, failure to fully cooperate in a purely administrative
investigation can form the basis for disciplinary action up to and
including termination of employment. In such investigations, officers
must be informed of this fact prior to questioning as well as the fact
that anything they say may not be used against them in a subsequent
criminal proceeding. However, it should be noted that where officers
are the subject of a criminal investigation, officers are under no
duty to cooperate. Police officers have the same constitutional rights
to remain silent and to consult with an attorney as do civilians in
such situations.
Finally, with regard to issues of accountability and responsibility,
the model policy recommends adoption of the requirement that officers
“who are arrested, cited, or come under investigation for any
criminal offense in this or another jurisdiction shall report this
fact to a superior as soon as possible.” Most often this issue
arises when an officer is arrested or cited in another jurisdiction
where the incident would not normally be reported to the employing
agency. This information—either as a single incident or in the
context of repeated problems—may have bearing upon an
officer’s ability to serve as a law enforcement officer
generally or in specific assignments within the police agency.
Therefore, agencies should require that any such criminal arrests,
citations, or investigations be reported to a superior in a timely
manner.
Establishment of a working environment that is constructive and
supportive is one of the better means of developing esprit de corps
among employees and motivating them toward maximum personal and agency
achievement. Dissension, squabbling, and in-fighting among staff
members creates a dysfunctional working environment that can have
serious negative implications for law enforcement efforts—an
occupation where teamwork is so vital. All working environments
experience some degree of discord on one level or another. The
workplace is not always a bastion of civility, and some degree of
friction between personalities can be expected. However, an employee
can reasonably expect, and indeed should require, a workplace free
from harassment and discrimination. The model policy contains two
provisions that address this area of concern:
a. Officers shall conduct themselves in a manner that will foster
cooperation among members of this agency, showing respect, courtesy,
and professionalism in their dealings with one another.
b. Employees shall not use language or engage in acts that demean,
harass, or intimidate another person. (Members should refer to this
agency’s policy on “Harassment and Discrimination in the
Workplace” for additional information on this subject.
The issue addressed in the model policy is intended to reinforce the
need for general civility and the idea that professionalism and
respect toward fellow workers are at the heart of a healthy,
productive police organization. An extreme example of a breakdown in
conduct between employees involves instances of harassment and
discrimination in the workplace, an issue that is also addressed in
the policy. Workplace harassment and discrimination not only expose
the organization and offending personnel to civil liability as well as
possible prosecution under state and federal law, but also have other
destructive effects on the police organization. Harassment has serious
debilitative effects on its victims and creates disruptions to
productivity. Many good employees often quit as a result of such
harassment or develop a pattern of lost or unproductive time while on
the job. Workplace harassment and discrimination are antithetical to
the precepts of a professional law enforcement agency designed to
uphold the law and the rights of all persons. Harassment and
discrimination in the workplace are crimes as well as the basis for
internal administrative discipline and, as such, run counter to the
values and ethics of law enforcement.
Finally, with regard to workplace harassment and discrimination,
executives must consider that an employee who harasses a fellow
employee may also be carrying those same behavior patterns into the
community that he or she serves. It is not hard to image the types of
charges that could be leveled against an officer and his/her law
enforcement agency should this prejudicial attitude be manifested
within the community. The types of persons who display harassing and
discriminatory types of behavior within their agencies among their
colleagues are generally not suitable for law enforcement careers.
The issue of harassment and discrimination within the workplace is a
highly complex and evolving field of law and one that has routinely
created some of the greater concerns for police personnel management.
Agencies should address these issues in a separate comprehensive
policy on this matter and remain cognizant of the broader
applicability of workplace harassment and discrimination law. [3]
Interaction with the public is the police officer’s central
focus. A positive police-community relationship is essential for
gaining the public’s confidence in the police and cementing
their support in crime prevention and criminal apprehension. Research
has confirmed what all police officers know from experience: that the
public is the primary resource for successful criminal apprehension
and crime prevention. Without public support and cooperation, the job
of law enforcement is substantially more difficult and far less
successful.
But public support and cooperation with the police do not come
naturally. They are built upon mutual respect, a relationship that is
largely the product of fair treatment by the police. The police image
among citizens is delicate and often fickle. It is generally the
product of a single or a few brief personal encounters with the police
or the product of what are perceived as reliable stories passed on by
friends or acquaintances who have had such experiences. Even a single
negative public encounter can have a ripple effect, particularly in
areas where police presence is more conspicuous and/or prevalent, such
as in high-crime areas. Unfortunately, the public retains memories of
bad incidents concerning the police far longer than it remembers
favorable ones, and negative incidents can often undo or seriously
damage long-standing positive police-community relationships.
All of the above indicate that good conduct of the police toward the
public is not only proper from a professional and ethical standpoint
but is “smart policing” as well. It is not simply a public
relations tool: it is or should be a conscious attempt to nurture
community good will and respect for the police so that the
public’s contributions to crime control can be fully realized.
To this end, the model policy specifies several general rules of
conduct that if followed by officers on a consistent basis when
dealing with the public should assist in building and maintaining
public support.
Specifically, the model policy states the following:
a. Officers shall conduct themselves toward the public in a
civil and professional manner that connotes a service orientation and
that will foster public respect and cooperation.
b. Officers shall treat violators with respect and courtesy,
guard against employing an officious or overbearing attitude or
language that may belittle, ridicule, or intimidate the individual, or
act in a manner that unnecessarily delays the performance of their
duty.
c. While recognizing the need to demonstrate authority and
control over criminal suspects and prisoners, officers shall adherer
to this agency’s use-of-force policy and shall observe the civil
rights and protect the well-being of those in their charge.
The model policy addresses the issues of consumption of alcoholic
beverages and legal use of drugs whether over the counter or as
prescribed by a physician. Use of drugs illegally as a controlled
substance is an issue that is addressed in the model policy under the
heading of adherence to laws and is not further discussed here.
The use of alcohol while on duty (with limited exceptions) is almost
universally prohibited by police agency policy. Disciplinary measures
based upon unauthorized on-duty use are almost always upheld by the
courts. The model policy addresses this concern primarily in the first
two statements in section IV.A.6. In particular, the policy states
that “Officers shall not consume any intoxicating beverage while
on duty unless authorized by a supervisor.” This prohibition
recognizes that officers on undercover assignments or on certain types
of surveillance, sting, or similar operations may have to consume
alcoholic beverages as part of their role.
The policy also prohibits the serving or consumption of alcohol
“on police premises or in vehicles owned by this
jurisdiction.” This is generally intended to address situations
in which on-duty or off-duty officers may consume alcohol for informal
celebrations or other similar events, but it also includes other
circumstances in which alcohol may be served or consumed. Police
premises are generally open to the public, and the potentiality of
citizens witnessing police officers consuming alcohol on
duty—whether or not this is in fact the case and irrespective of
the circumstances or the quantity of alcohol in question—is not
conducive to the image of a professional police organization. There
are also liability considerations associated with officers consuming
alcohol on police premises whether formally or informally sanctioned
by the agency should accidents or similar incidents occur as a result.
While the consumption of alcohol by on-duty officers is almost
universally disallowed, departmental regulation of off-duty alcohol
consumption, and disciplinary action for such use, involves more
difficult questions.
The model policy addresses the issue of off-duty alcohol consumption
by stating that:
a. an officer shall not be under the influence of alcohol in a
public place, whether on or off duty,
b. shall not “report for duty with the odor of alcoholic
beverage on his or her breath,” and
c. shall not “report to work or be on duty as a law
enforcement officer when his or her judgment or physical condition has
been impaired by alcohol, medication or other substances.
Item (a) above is intended primarily to protect the image of the
police agency against charges of inappropriate officer conduct while
off duty just as the issue of on-duty consumption of alcohol is
addressed elsewhere. The question could easily and legitimately be
raised by members of the public about the professionalism and
stability of an officer who lacks the self restraint and good judgment
to appear in public in an inebriated condition. There is also the
potentially serious problem of an officer in a public setting being
required to take emergency police action while under the influence of
alcohol. Items (b) and (c) are also intended to address this issue.
The odor of alcohol on the breath of any officer who reports for work
should constitute sufficient basis alone to remove the officer from
duty irrespective of how much alcohol the officer consumed.
Item (c) above is also meant to protect the agency and the public
against the potential of officers reporting for work or being on duty
whenever their judgment has been impaired by alcohol or other
substances. Alcohol and certain forms of prescription and
non-prescription medication affect individuals differently.
Additionally, alcohol and certain medications taken in conjunction
with one another can markedly diminish judgment, perception, and/or
reactions. This may render the officer unfit to perform essential
functions of the job and constitute a danger to him- or herself or
others. The model policy employs this admonition as a caution to
officers, prior to reporting to work, to avoid the use of any drug,
including alcohol, that could negatively affect their performance.
Furthermore, the policy requires that officers “report the use
of any substance, prior to reporting for duty, that impairs their
ability to perform as a law enforcement officer.” This places a
burden upon officers for self-control and self-appraisal, considering
that they are often in the best position to assess their performance
capabilities. While many officers may avoid reporting impairment for
fear of repercussions, it is useful to place officers on notice that
they are personally responsible for reporting to work in a fit
condition and that they will be held accountable for negative
consequences stemming from their consumption of alcohol and/or
medication.
A measure of the burden for ensuring that on-duty officers are not
impaired by drugs or alcohol falls upon their first-line supervisors.
Therefore, the policy directs that
Supervisors shall order a drug or alcohol screening test when they
have reasonable suspicion that an employee is using and/or under the
influence of drugs or alcohol. Such screening shall conform to [the]
agency’s policy on employee drug-screening and testing.
The above requirements and admonitions are considered to be reasonable
restrictions upon officers to protect themselves, others, and the
interests of the police agency. Some law enforcement agencies may wish
to add additional or more stringent restrictions on the off-duty use
of alcohol and prescription drugs. For example, some agencies place
restrictions on officer consumption of alcoholic beverages within a
specific time of reporting for duty—a practice that has been
employed by some other types of employers to include commercial
airlines for their flight crews. Still other police administrators
take the position that officers reporting for duty with any amount of
alcohol in their bloodstream are operating at diminished levels of
proficiency. This, they argue, coupled with the potential need for
these officers to employ deadly force, creates an unacceptable risk to
the agency and the public. While it is difficult to argue against more
restrictive policies of this nature, the same argument could be used
with regard to any substance that impairs, no matter how slight, the
judgment and reaction of officers.
A near-zero tolerance approach to this issue is difficult to manage
administratively, and measures designed to enforce such rules risk
overstepping the legitimate interests of agencies to control their
personnel. Advocacy of zero tolerance or near-zero tolerance for
alcohol risks opening a much broader array of issues that can further
complicate the matter. For example, a difficult question arises when
an officer’s ongoing off-duty use of alcohol so debilitates the
officer that, although sober when reporting for work, his or her
performance has been impaired by alcohol-related illnesses. By the
same token, even common cold medicines, such as those containing
codeine and antihistamines, can diminish many individuals’
judgment and perception.
In the end, one must place the lion’s share of the
responsibility for controlling this matter on the shoulders of
individual officers and their immediate supervisors to ensure that
their performance is in keeping with acceptable agency standards. In
addition, agency administrators should not lose sight of the fact that
alcoholism (should that be involved) may be regarded as a handicap
under federal and state law, and policies promulgated or actions taken
in this context must take this into account.
The model policy prohibits police officers from using tobacco products
unless they are used in a designated smoking area and only when
officers are not conducting police business. Smokeless tobacco
products, such as snuff or chewing tobacco, are included as well as
cigarettes, both because of the health risks involved as well as the
poor public image they impart of police officers. Officers are also
not permitted to use tobacco products in a vehicle owned or maintained
by the law enforcement agency. This restriction is based on several
factors, to include concern over the appearance of officers smoking on
duty in public; concern for the health and well-being of both smoking
officers and those who may be subjected to their secondhand smoke in
the vehicle; and to a far lesser degree, the negative effect cigarette
smoke has on vehicle cleanliness.
In the first regard, smoking by officers while on duty has always been
perceived as a public relations or public image problem. In fact, the
common and time-honored policy of many departments prohibiting smoking
in patrol cars or while on duty in public places may in many instances
be traced to a concern over the public perception of the department
rather than to health issues. This is a problem that predates the
current focus on the adverse health effects of smoking by many years.
It has long been a feeling among law enforcement executives that a
uniformed officer with a cigarette dangling from his or her mouth
presents an image to the public that is not acceptable to the
department, hence the frequent incidence of prohibitions against
uniformed officers smoking in public.
Now, as smoking increasingly becomes perceived by the public as
something detrimental to the health of both smokers and nonsmokers,
smoking by officers while on duty has become and will continue to be a
matter of increased departmental attention. In this regard, the
Environmental Protection Agency (EPA) has made it clear that the
inhalation of secondhand smoke by non-smokers has a “serious and
substantial public health impact” on nonsmokers. According to
the EPA, about 3000 nonsmokers die annually in the United States due
to lung cancer caused by secondary smoke. The EPA also found that
secondary smoke was responsible for a significant number of cases of
pneumonia, bronchitis, and other respiratory infections, as well as
leading to the development or aggravation of asthma.
Of equal importance are the effects of smoke on the health and
productivity of police officers themselves. Even before the EPA issued
its landmark report, many health-conscious police agencies had made
their own decisions on the risks and negative impact of smoking on the
health of their officers and fellow employees. Many of those agencies
took steps to limit smoking on duty, and many more today are
prohibiting smoking both on and off duty for newly hired officers.
First among agency concerns is the fact that a law enforcement
officer, in the course of his or her employment, will be required to
perform certain demanding physical tasks that will require
cardiovascular endurance. Cigarette smoking is a substantial inhibitor
to the development and maintenance of this physical condition. Second,
police agencies in general have come to recognize the significant
financial and professional value of career officers. Cigarette smoking
is a serious health risk that increases the possibility of
officers’ contracting debilitating diseases preventing them from
completing their full term of career employment.
Historically, U.S. courts have been willing to grant law enforcement
organizations some legal leeway in situations in which the efficient
functioning of the department, and therefore, public safety is
implicated. In view of the documented health reasons alone connected
with the use of tobacco products, restrictions on smoking in the law
enforcement environment will most likely withstand legal challenges
directed against them. [4]
Abuse of power by law enforcement officers can take many forms to
include the use of excessive force, denial of civil rights, and
related acts. These types of acts are dealt with separately in the
model policy. The present discussion deals primarily with those acts
or inactions committed by police officers for purposes of financial
gain, privilege, or advantage not otherwise available to them as
private citizens.
The abuse of power or position is one of the more serious of conduct
violations that can be leveled against a law enforcement officer. Such
violations range in severity from acceptance of nominal tokens of
appreciation to the systematic exploitation of persons or
organizations for gain. The history of law enforcement is replete with
examples of this form of abuse of power, some of which have grown
within police agencies to near-systemic corruption. The early 1970s
reports of the Pennsylvania Crime Commission and the New York City
Knapp Commission are examples of investigations that identified
wide-scale corruption in two of this nation’s larger police
departments. Fortunately, such large-scale abuses are rare. But it is
from the small, seemingly benign acts that take advantage of police
power or position that an environment of tolerance grows within
agencies, sometimes leading to more frequent and egregious
transactions. From this historical perspective and with the intent of
avoiding even the appearance of impropriety, the model policy assumes
a position of zero tolerance for corruption.
The model policy addresses six issues relative to the abuse or
potential abuse of police power and position. In particular, the model
policy requires first, that
Officers report any unsolicited gifts, gratuities, or other items of
value that they receive and ... provide a full report of the
circumstances of their receipt if directed.
This reporting requirement is designed to ensure that all such items
come to the attention of the law enforcement agency. Even though
officers are prohibited from receiving gifts, gratuities, and similar
items, such items may nevertheless be received by them through the
mail or by other means on an unsolicited basis. The requirement that
officers report these items helps to ensure that their receipt
receives official notice, thus protecting the officer from allegations
of misconduct and providing the agency with the opportunity to take
any action deemed appropriate. Under provisions of the model policy,
officers are also prohibited from using their authority or position
for financial gain, for obtaining or granting privileges or favors not
otherwise available to them or others except as a private citizen, to
avoid the consequences of illegal acts for themselves or for others,
or to barter, solicit, or accept any goods or services (to include,
gratuities, gifts, discounts, rewards, loans, or fees) whether for the
officer or another.
This restriction addresses the majority of concerns of police
administrators with regard to an officer’s use of authority for
financial gain. It prohibits situations such as accepting special
access to and treatment at public events or gatherings; negotiating
with officers from the same or another jurisdiction to overlook
violations of the law for themselves, their friends, or members of
their family; or asking for, engaging in barter for or accepting
outright any goods, services, or similar gains. These are only
examples of possible scenarios covered by this directive, which is
designed to address a broad waterfront of situations in which officers
could willfully or inadvertently benefit from their position or
authority.
Some will argue that a complete ban on the acceptance of goods,
services, and favors is too far reaching and fails to recognize that
gestures are sometimes made by citizens as tokens of appreciation
without any expectation of special treatment. Each agency must make
its own decision regarding what it will tolerate in this area. But as
a matter of principle, it should be made clear to officers that they
are in a high-profile position within the community as a
representative of local government and are given a special level of
trust and authority not available to persons in any other occupation.
As such, they will be faced with situations in which persons or groups
may, intentionally or unintentionally, attempt to coopt their
authority and influence them for unauthorized purposes. The simple cup
of coffee or a discounted meal from a friendly restauranteur may be
nothing more than a courteous gesture or token of appreciation.
However, it may also incorporate subtle manipulation intended to
extract favors from officers, such as spending more time in and around
the establishment than would normally be necessary or permitted.
Moreover, even simple gestures by business owners or individuals,
provided and accepted on a routine basis, can easily lead officers
down the slippery slope from appreciation to expectation. Within time,
simple gestures can grow into significant gifts or rewards and become
an anticipated part of officer compensation, or be regarded as
perquisites of the job. With this subtle and gradual change of an
officer’s attitude comes a relatively easy transition into
development of an expectation that such privileges or benefits will be
forthcoming. When they are not, they may be requested or even
demanded. The acceptance of “perks” from the public can
degenerate into a downward spiral that leads to, in a worst-case
scenario, establishment of a culture of corruption within the law
enforcement agency.
Many agencies have adopted the zero-tolerance approach to this matter
in view of the above concerns and realities. In addition, they
recognize that the acceptance of gratuities and the like presents a
bad image of the officers and the agency to the public. Citizens who
witness or learn of officers receiving special treatment or gratuities
can understandably feel a degree of resentment toward not only the
officers involved but the police agency as a whole. They may question
the degree to which favoritism influences the decision-making process
of officers in general, whether law enforcement resources are provided
equitably and fairly within the community, even whether the apparently
simple gesture may reflect a more pervasive degree of corruption
within the police agency. The ability of law enforcement to deal with
public safety effectively is greatly diminished when such actions
erode the confidence of the public in their law enforcement agency.
In the above context, the model policy also prohibits officers from
purchasing, “converting to their own use, or having any claim to
any found, impounded, abandoned, or recovered property, or any
property held or released as evidence.” Here again, the issue is
one primarily of appearances. In situations involving the above,
charges could be made that officers are engaged in a subterfuge by
procuring property unnecessarily or inappropriately with personal
intentions for its use or acquisition. Such appearances should not be
permitted to germinate. However, this does not preclude the agency
from selling at public auction or in other acceptable ways dispensing
of abandoned, recovered, or related property after a reasonable amount
of time and following legitimate and earnest attempts to locate
owners.
Officers are also limited in the manner in which they can solicit
funds as part of or on behalf of the police organization. The model
policy states that
Officers shall not solicit or accept contributions for this agency or
for any other agency, organization, event, or cause without the
express consent of the agency chief executive or his or her designee.
Some jurisdictions have experienced problems with persons soliciting
funds from the community and those who claim to be doing so on behalf
of their police organization. This directive is intended to impose
controls over all fund-raising activities so that legitimate
activities can be sanctioned and managed by the agency.
Another issue in this realm of concern is addressed in item IV.A.8.e.
of the model policy, which states that
Officers are prohibited from using information gained through their
position as a law enforcement officer to advance financial or other
private interests of themselves or others.
Concerns in this area can take a number of forms. For example,
officers or other employees working in sensitive areas of the agency
may sell criminal history records or other restricted information to
commercial concerns as part of background investigations. Officers
working in part-time jobs for security firms, process servers, or
others may use confidential or other sensitive information developed
by the agency to promote their interests and those of unauthorized
outside parties. These are only a few of the many possible examples of
unauthorized uses of police information that may benefit the financial
interests of police employees.
Finally, the model policy takes the position that “officers who
institute or reasonably expect to benefit from any civil action that
arises from acts performed under color of authority shall inform their
commanding officer.” Officers may initiate civil lawsuits or
otherwise become party to civil actions against persons with whom they
have had dealings in the course of their employment and from which
they could realize monetary compensation. In some cases for example,
officers may bring actions for physical injuries, infliction of
psychological injuries, improper subjection of the officer to legal
process (e.g., malicious prosecution), actions that are injurious to
the officer’s professional status and reputation (as in the case
of defamation suits), or similar actions. [5] While these lawsuits are
not common and officers have the right to bring such actions, the
model policy directs that involved officers notify their commanding
officer in such cases. This will allow the agency to become aware of
cases in which officers appear to be abusing this right or conspiring
to use this legal avenue solely for personal gain or punishment of
others.
Actions taken under color of authority by off-duty police officers
have traditionally been an arena ripe with problems both for police
administrators and individual officers. The breadth of those problems
hinge on a number of factors within the police agency which include
but are not limited to (a) whether officers are considered peace
officers under state statute or case law on a 24-hour basis within
their own jurisdiction and whether that extends to other jurisdictions
within their state where employed; (b) whether they are required by
their agency to remain armed while off duty or do so by agency custom
or practice in the absence of specific policy; (c) whether agency
policy governs when and how officers should respond to violations of
the law in an off-duty capacity in their own jurisdiction and other
jurisdictions of the state; and (d) the degree to which the agency
maintains control of off-duty employment of its officers. To the
degree that the forgoing are not regulated by statute, case law or
agency policy, situations involving actions taken by off-duty officers
will remain problematic.
The Model Policy on Standards of Conduct is not designed to address
these widely varied issues. The National Policy Center has established
a Model Policy on Off-Duty Conduct that may be of assistance to
agencies in resolving some of the forgoing issues. The present policy
is designed to address only one aspect of this issue involving the
inappropriate use of police powers.
The model policy provides two specific directives in this regard.
First, the policy prohibits officers from
Using their police powers to resolve personal grievances (e.g., those
involving the officer, family members, relatives, or friends) except
under circumstances that would justify the use of self defense,
actions to prevent injury to another person, or when a serious offense
has been committed that would justify an arrest. In all other cases,
officer shall summon on-duty police personnel and a supervisor in
cases where there is personal involvement that would reasonably
require law enforcement intervention.
While many officers are armed while off-duty, they are generally out
of uniform and/or driving unmarked privately owned vehicles and thus
not readily identifiable as law enforcement officers to the public or
even some of their own colleagues. Additionally, most officers do not
wear soft body armor while off-duty and do not have access to a police
radio or other on-duty types of equipment. All these factors can place
off-duty officers in awkward situations. With these factors in mind,
the model policy provides some direction designed to limit the
exposure of officers to danger and the agency to charges of civil
liability.[6]
Beyond these personal safety considerations, the intent of this policy
statement is to avoid instances that may involve conflicts of interest
and that would consequently tend to negatively influence
officers’ judgment. Generally speaking, an officer should not
invoke police powers for the purpose of resolving personal grievances
or those of family or friends. An exception to this is when the
officer, friends or family become victims of a crime or when the
violations of law are so serious as to require immediate action.
For example, an off-duty officer becomes engaged in a conversation
with a neighbor over loud music from a party at the neighbor’s
home. The officer resides in the jurisdiction where he is employed
and, by statute, may take police action while off-duty. The neighbor
becomes abusive and uncooperative and refuses to turn down the music.
At that point the officer identifies himself as a police officer and
issues a noise citation to the offending party with a threat that
failure to comply will result in arrest.
In these and similar scenarios, the model policy requires that the
officer refer the matter to an on-duty officer rather than issue the
citation or make an arrest. However, in the same situation, should the
neighbor become physically assaultive to the officer, or his friends
or family, the officer would be justified in taking necessary action
to include the possibility of making an arrest. A supervisor should
also be summoned in such cases in order to ensure third-party
impartiality and the authority necessary to make judgments and resolve
differences. From the viewpoint of officer and public safety, the
model policy also states that
Unless operating a marked police vehicle, off-duty officers shall not
arrest or issue citations or warnings to traffic violators on sight,
except when the violations is of such a dangerous nature that officers
would reasonably be expected to take appropriate action.
This prohibition is based on the fact that the identity of
out-of-uniform officers in unmarked vehicles is not easily determined
by motorists or other third parties. The chance for mistaken identity
provides fertile ground for a variety of dangerous situations. These
include the possibility that a motorist who an off-duty officer is
attempting to stop may mistakenly assume that he or she is being
accosted.
In early 1998, the superintendent of one of the nation’s largest
police agencies resigned his position in the wake of accusations that
he had maintained a long-standing friendship with a known felon. This
illustrates an old problem area for law enforcement agencies affecting
officers at all levels.
Many departments seek to prevent employees form associating with
“undesirable” persons, other than in official
capacities—that is, those who have a notorious criminal
reputation or history that could present a potential threat to the
department’s reputation and effectiveness or present the
potential of compromising the officer. This is generally considered a
matter of legitimate departmental interest, and a policy prohibiting
such associations may therefore be upheld by the courts. However, as
with most issues that affect individual rights, there are limitations
that must be observed and that have been built into the model policy.
Where restrictions or prohibitions on such relationships exist within
police organizations, questions often arise as to whether the rule
serves a legitimate governmental interest, whether it impinges upon an
employee’s constitutional right to freedom of association, and
where the balance falls between the two competing interests.
First, restrictions of this nature should not be overly broad. A
policy that fails to provide specific guidance as to the types of
associations that are prohibited may be held void for reason of
vagueness. For example, a policy that merely prohibits association
with “undesirables” would probably be considered too broad
and vague. As with the other policy issues discussed in this document,
the department should be prepared to give specific, articulable
reasons why association with a named class of individuals will damage
the department’s reputation or otherwise interfere with the
department’s mission.
Second, the policy should provide an exception for family
relationships or other associations that are similarly unavoidable.
Most courts would not uphold a policy, for example, that prevents an
officer from associating with his or her spouse or parents.
Finally, the policy should provide an exception for contents
legitimately made in the line of duty. The nature of police work
requires that officers deal with persons who, under traditional moral
standards, would be considered undesirable as routine company. These
include situations where officers are cultivating informants or
working undercover assignments. The model policy addresses issues of
prohibited associations by stating that
Officers shall not knowingly commence or maintain a relationship with
any person who is under criminal investigation, indictment, arrest, or
incarceration by this or another police or criminal justice agency,
and/or who has an open and notorious criminal reputation in the
community (for example, persons whom they know, should know, or have
reason to believe are involved in felonious activity), except as
necessary to the performance of official duties, or where unavoidable
because of familial relationships.
This statement incorporates the three areas of concern previously
discussed. The wording of the policy does not necessarily preclude
officers from associating with persons solely because they have a
criminal record. This is not advisable for police officers and many
agencies may wish to discourage it. But association with persons who
have served their sentence and who have reentered society, and who
otherwise are pursuing legitimate occupations is consistent with the
letter and intent of the model policy. On the other hand, should the
individual’s past criminal history be so notorious and infamous
as to cast doubt on that person’s reputation after having
reentered society, and/or there is question concerning the
individual’s continued connection to criminal enterprises, there
would be legitimate grounds for the agency to prohibit such
association unless it is work related or the individual in question is
an immediate family member. In short, whenever there are questions
concerning the reputation of persons with whom officers associate,
officers are well advised to restrict or eliminate their associations
with such individuals and/or to discuss the matter with an appropriate
supervisor.
The model policy also prohibits arresting, investigating, or custodial
officers from commencing “social relations with the spouse,
immediate family member, or romantic companion of persons in the
custody of the agency.” The same may also be said for persons in
the custody of other criminal justice agencies. This directive is
designed to remove the appearance of impropriety involving officers
involved in such cases. For example, it may reasonably be claimed that
an officer’s judgment and objectivity could be clouded by such
associations or that the officer’s credibility in general or
court testimony, in particular, may be similarly tainted. Such
associations my also give rise to other speculation to include the
pre-arrest relationship of the officer to the person in question and
the possible interplay of the relationship to the arrest.
With regard to associations involving business establishments, the
model policy suggests two restrictions. The first of these states that
“except in the performance of official duties, officers shall
not knowingly enter any establishment in which the law of that
jurisdiction is regularly violated.” Again, the issue involved
here is the protection of the image and reputation of officers and
their agencies. Officers who, outside of the scope of their
employment, enter gambling establishments, houses of prostitution, or
any location that has a reputation for illegal activity risk sparking
speculation about the officer’s integrity, judgment,
impartiality, and professionalism.
Finally, the model policy prohibits officers from “knowingly
join[ing] or participat[ing] in any organization that advocates,
incites, or supports criminal acts or criminal conspiracies.”
While uncommon, there are cases in which officers have affiliated
off-duty with such organizations. The policy includes organizations
that not only support criminal acts or conspiracies but also any that
advocate such acts. Affiliation with so-called “hate
groups” such as white supremacists, anti-Semites, militants, and
other extremists that espouse and/or support criminal acts or criminal
conspiracies are among those that run counter to the core values of
law enforcement. Any affiliation of officers with such groups has a
significant debilitating effect on the reputation of offices and their
law enforcement agency.
The model policy covers several concerns with respect to public
statements made by officers. Perhaps the most controversial of these
is the first directive in section IV.B.1 of the policy, which reads
Officers shall not, under color of authority, make any public
statement that could be reasonably interpreted as having an adverse
effect upon department morale, discipline, operation of the agency, or
perception of the public.
Police personnel in recent years have become increasingly willing to
make adverse public statements regarding their departments. While
police agencies may wish to limit or control such statements, the
essence of the problem, of course, is the constitutionally guaranteed
right to free speech. The extent to which a department may regulate
speech by its personnel depends upon many factors and is a complex
point of law to which only limited guidance has been given by the
courts. Generally speaking, however, the basis for any discussion of
the subject must distinguish between speech of a
“personal” versus a “public” nature. For
example, if an employee makes statements detrimental to the
department, the department may be able to take disciplinary action as
long as the statements are of “personal interest” only. If
however, the statements deal with matters of “public
concern,” then the department may take action against the
employee only if the “public concern” is outweighed by the
interest of the public employer “in promoting the efficiency of
the public services it performs.” [7]
Supposedly, something is a mater of public concern if it relates to
“any matter of political, social, or other concern to the
community.” [8] Unfortunately, the deciding line
between that which
is of “personal interest” only and that which is a matter
of “public concern” is very vague, and, as with other
free-speech issues, the outcome depends largely on the political
makeup of the court considering the question. In general, however,
personal insults directed at superiors and complaints regarding the
individual treatment of the complaining employee are often considered
matters of “personal interest” for which action may be
taken, [9] whereas complaints about, for example, the alleged misuse of
public funds or similar acts of official misconduct by superiors are
likely to be regarded as matters of “public concern,”
however intemperate or outrageous they may be. In the long run,
whether the matter is one of “personal interest” or
“public concern” is a question of law to be decided by the
judge. [10]
Another aspect of the freedom-of-speech issue is reflected in the
following statement of the model policy:
Officers shall not, under color of authority, divulge or willfully
permit to have divulged, any information gained by reason of their
position, for anything other than its official, authorized purpose;
or, unless expressly authorized, make any statements, speeches, or
appearances that could reasonably be considered to represent the views
of this agency.
The first part of this directive is clearly intended to protect
confidential information from being released without authorization or
to be used by officers for any purposes other than those for which
they were intended. This may include but is not limited to the use of
such information for private purposes or in conjunction with outside
business endeavors, (such as private security or private investigative
operations), that could benefit from information contained in criminal
history and related departmental files.
The second element of this policy directive is intended to control
unauthorized statements that my be interpreted by those outside the
agency as representing official agency policy. Normally, all policy
and position statements are provided to the media and others through
the chief executive officer, the public information officer, or
another designated spokesperson. Other officers who may appear in
public either in uniform or as clearly designated members of the
police agency must ensure that their comments with regard to their
work and the agency are within the parameters of policy established by
the agency for the release of information. [11] The final element of the
model policy in this are of concern relates to restrictions on
endorsements by officers. The policy states that
Officers may not, under color of authority, endorse, recommend, or
facilitate the sale of commercial products or services. This includes
but is not limited to the use of tow services, repair firms,
attorneys, bail bondsmen, or other technical or professional services.
It does not pertain to the endorsement of appropriate governmental
services where there is a duty to make such endorsements.
This directive prohibits the promotion of products or services by any
personnel who are clearly identified with their employing agency as a
law enforcement officer. It is inappropriate for a governmental agent
to do so in most capacities as it may imply governmental sanctioning
of and support for specific products and services. This is both
misleading and may provide an unfair trade advantage to competing
product manufacturers or service providers. It may also give the
impression that the officer and/or the agency is receiving
remuneration for such endorsements and/or that they vouch for and
stand behind product or service quality and customer satisfaction.
In some instances, officers may be approached by product or service
providers for testimonials or endorsements. However, the
officer’s identification with their employing jurisdiction and
police agency may give the improper impression that these entities
also stand behind these products. Finally, it could be argued by some
that recommendation of products and services directly to individual
consumers by a police officer carries a degree of coercion that is
improper even if unintended.
Such endorsements and recommendations do not apply to recommendations
concerning governmental services when authorized by the law
enforcement agency. For example, this may include recommendations
regarding the use of family counseling or crisis intervention
services, health clinics, social welfare or housing assistance
services, or similar municipal, county or state services.
Political activity is also generally regarded as a matter of free
speech. As such, there are limitations on what law enforcement
administrators can do to restrict their officers’ political
activity. The demarcation line in limiting such activity is based
generally upon whether or not the activity in question is being
performed by the officer during working hours, while in uniform or
while otherwise serving as a representative of the law enforcement
agency. The model policy makes this distinction and also indicates
that state law, where applicable, will take precedent over model
policy recommendations.
It has now been well-established that the First Amendment prohibits
officials from discharging or threatening to discharge public
employees solely for not supporting the political party in power,
unless the party affiliation is an appropriate requirement for the
position involved. [12] While such patronage has been considered
appropriate for high-level policy-making personnel within agencies, it
has been considered inappropriate for actions against lower-level,
non-policy-making personnel. [13]
Thus, during working hours, while officers are in uniform, or
otherwise serving as representatives of their law enforcement agency,
the model policy prohibits them from engaging in the following
political activities:
Placing or affixing any campaign literature on city- or county-owned property.
Soliciting political funds from any member of the law enforcement agency or another governmental agency of the employing jurisdiction.
Soliciting contributions, signatures, or other forms of support for political candidates, parties, or ballot measures on property owned by the jurisdiction.
Using official authority to interfere with any election or interfere with the political actions of other employees or the general public
Favoring or discriminating against any person seeking employment because of political opinions or affiliations
This component of the model policy addresses an issue that is not
traditionally or routinely regarded as a matter of employee conduct
but one that can become involved in investigations of improper
conduct. The need to access officers’ desks, lockers, file
cabinets, storage areas, assigned vehicles, or other areas can also
come into play with respect to line inspections, in searching for
evidence that officers may have stored inappropriately from a crime
scene, in the search for missing property, or in other regards.
Officers do not normally have any expectation of privacy in the
aforementioned types of areas that are owned by or under the control
of the law enforcement agency. However, absent any notice to this
effect by management, officers may develop a presumption of personal
privacy in such areas—particularly if there is a generally
accepted or long-held tradition or custom within the agency of
observing or granting such privacy—that may become binding upon
the agency unless explicitly countermanded.
Agency administrators who wish to reserve the right to gain access to
agency-owned or -controlled property that is or can be used to house
the personal property of officers should make their intentions clear
in written agency policy. The model policy recommends the following
language for this purpose:
Officers shall not store personal information or belongings with an
expectation of personal privacy in such places as lockers, desks,
departmentally owned vehicles, file cabinets, computers, [14] or similar
areas that are under the control and management of this law
enforcement agency. While this agency recognizes the need for officers
to occasionally store personal items in such areas, officers should be
aware that these and similar places may be inspected or otherwise
entered—to meet operational needs, internal investigatory
requirements, or for other reasons—at the direction of the
agency chief executive or his or her designee.
The second component of this area of the model policy involves the
unauthorized storage of agency documents outside the confines of the
police department. For example, it is not uncommon to find an occasion
that police officers and criminal investigators in particular have
accumulated and/or stored files relating to criminal cases at home.
This is often in conjunction with work officers are conducting
off-duty on cases that are long-standing or that in some manner need
extra attention. Over time, the accumulation of records can increase
and include sensitive or confidential materials as well as the
original or sole copy of documents that if misplaced, lost or
destroyed could cause critical problems. Once outside the confines and
security of the police agency, documents may also fall into the wrong
hands or, should the officer be dismissed or leave employment of the
agency, the documents may be difficult to recover. With these and
related problems in mind, the model policy restricts this practice in
stating that
No member of this agency shall maintain files or duplicate copies of
official agency files in either manual or electronic formats at his or
her place of residence or in other locations outside the confines of
this agency without express permission.
1 Kelley v. Johnson, 425 U.S. 238, 96 Sct. 1440 (1976).
2 Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. 1440 (1976).
3 On March 4, 1998, the U.S. Supreme Court ruled in Oncale v.
Sundowner Offshore Services, Inc. Et. Al. (No. 96-568) that severe and
pervasive harassment between members of the same sex can be actionable
under the same law (i.e., Title VII of the 1964 Civil Rights Act) that
originally intended to deter male discrimination and harassment
against women on the job. For additional information on the entire
issue, see the Model Policy on Harassment and Discrimination in the
Workplace, IACP National Law Enforcement Policy Center, IACP, 515 N.
Washington St., Alexandria, VA 22314.
4 For a more detailed treatment of this subject, see for example,
“Smoking in the Workplace,” Policy Review, Volume 4,
Number 3, IACP National Law Enforcement Policy Center, IACP, 515 N.
Washington St., Alexandria, VA 22314.
5 For a complete treatment of such actions, see for example, Charles
E. Friend, J.D.; Police Rights: Civil Remedies for Law Enforcement
Officers, Callaghan and Co., Wilmette, Ill. (1987).
6 For a comprehensive treatment of policy on off-duty powers of
arrest, see, for example, the Model Policy on Off-Duty Conduct: Powers
of Arrest, IACP National Law Enforcement Policy Center, IACP, 515 N.
Washington St., Alexandria, VA 22314.
7 Pickering v. Board of Education, 391 U.S. 563 (1968).
8 See Connick v. Myers, 461 U.S. 138 (1984).
9 See, for example, Pickering v. Board of Education, 391 U.S. 563
(1968); Ohse v. Hughes, 816 F.2d. 1144 (7th Cir. 1987).
10 For a more detailed discussion of this topic, see, for example,
“Free Speech and Departmental Policies,” IACP National Law
Enforcement Policy Center, Policy Review, Volume 5, Number 2, June
1993, IACP, 515 N. Washington St., Alexandria, VA 22314.
11 For more information on this and guidelines on media relations by
officers and others see, for example, the Model Policy on Police-Media
Relations, IACP National Law Enforcement Policy Center, IACP, 515 N.
Washington St., Alexandria, VA 22314.
12 See Elrod v. Burns, 427 U.S. 347 (1976); and Branti v. Finkel, 445
U.S. 507 (1980).
13 See Rutan v. Republican Party of Illinois, 110 S.Ct. 2729 (1990).
Note that this does not apply to policy-making employees, nor does it
apply to employees who hold “confidential” positions. See,
for example, Soderstrum v. Town of Grand Isle. 925 F.2nd 135 (5th Cir.
1991) where a new chief discharged the confidential secretary of the
old chief.
14 For more explicit information on this subject, see the Model Policy
on Electronic Messaging published by the IACP National Law Enforcement
Policy Center, IACP, 515 N. Washington St., Alexandria,