A common concern in union contracts is limits on the retention period of disciplinary records. According to our review, 48% of contracts contained some type of restriction on the retention of disciplinary records beyond a certain length of time. Of these contracts, 58% require such records be removed automatically after a fixed period, while 42% require it if requested by the officer.
Record retention policies vary jurisdiction to jurisdiction. Some require the removal of all disciplinary records within a fixed amount of time, commonly two years, absent additional disciplinary action during that period.[*] Others adapt the time records must be retained based on the severity of the discipline involved.[†] Some require records to be removed after a fixed period but only on request.[‡] One contract demands disciplinary records be removed from personnel files after a length of time regardless of whether there is subsequent discipline.[§]
The deletion of disciplinary records from personnel files makes it difficult to properly discipline officers with a history of misconduct. Most union contacts require discipline to be levied only for just cause. An employee facing discipline can challenge it as inappropriate. For the discipline to be upheld, it typically must meet the seven tests established in a 1966 legal decision called In re Enterprise Wire Co and Enterprise Independent Union.[7] Those tests include:
Retention of records directly impacts the seventh test, which aims to judge whether the discipline imposed is proportional to the misconduct. In evaluating discipline, an arbitrator will consider the employee’s disciplinary history to determine whether a particular punishment is warranted. This is specifically true in union contracts where an employer has agreed to use progressive discipline.
Progressive discipline is a system under which an employee is disciplined in a series of escalating punishments. Although the precise requirements differ from contract to contract, a progression of discipline might look something like this:
It is common for certain misconduct to bypass stages of this process. As an example, a police officer who has a positive drug test while on duty often triggers a suspension, followed by termination for a second offense. Similarly, officers who violate a collective bargaining agreement’s no-strike policy may be subject to termination without the application of progressive discipline.[††] Nevertheless, progressive discipline remains the most common approach for all but the most significant disciplinary violations.
This poses a problem when coupled with the mandatory removal of disciplinary records. An officer with a history of absenteeism, excessive force complaints or even insubordination, for example, could avoid more severe discipline simply because records of his prior conduct have been removed from his personnel file. This weakens a police department’s ability to impose the most appropriate discipline for repeat offenders, which in turn makes it harder to eventually terminate those officers.
That is not to say that there is no merit to restricting the use of prior disciplinary records. Some limitation is reasonable — an officer with 25 years of admirable service should not be placed at a higher level of progressive discipline due to minor misconduct in his or her first year of service, for instance. But this interest must be balanced, particularly in the context of public safety, with an officer’s duty to protect and serve the public.
An officer’s disciplinary history can be a helpful tool in holding officers accountable and ensuring the highest quality policing. Contract terms that hide this history hinder a department’s ability to deal with officer misconduct in a thorough and fair way. It increases the number of officers with troubled histories who remain employed and authorized to use legal force in public. Although minor infractions should not unduly influence future disciplinary decisions, prior serious misconduct should be considered when disciplining troublesome officers.
Misconduct that management should always consider in making disciplinary and termination decisions could include dishonesty in past investigations, perjury, excessive use of force, drug or alcohol use on duty, improper use of a firearm and other similarly serious matters. These behaviors bear directly on an officer’s ability to perform their duties in a responsible manner and are of unique concern for police departments. Discipline related to inappropriate or illegal behavior that threatened the safety of the public or lessened the credibility of the police force should be treated differently than more mundane violations of departmental rules.
Municipalities could also do away with progressive discipline entirely, empowering management to issue discipline commensurate with the offense. An arbitrator could then view an officer’s entire disciplinary record, regardless of the severity of past acts, to determine whether it aggravates or mitigates the conduct at issue and adjust discipline accordingly. Either approach eliminates the bulk of the issues with restrictions on the use of disciplinary records, while still providing officers facing unjust discipline the ability to formally challenge that discipline.
[*] These included contracts in Clinton Township (two years with no additional discipline), Eastpointe (two years with no additional discipline, maximum of four years with additional discipline), Novi (two years, absent “substantial reason” otherwise, for both command and officer contracts) and Wyoming (two years without additional discipline).
[†] These include contracts in Midland (a range of one to four years with no additional discipline, depending on the severity of the discipline involved) and Royal Oak (range of one year to six years, depending on the severity of the discipline).
[‡] These include contracts in Bay City (three years, on request, if there is no present or future need for the record), Grand Rapids (two years with not additional discipline upon request), Taylor (one to two years depending on the severity of the discipline, with no additional discipline, to be removed on request) and Troy (15 to 30 months depending on the severity of the discipline, with no additional discipline, to be removed upon request, for both command and officer contracts).
[§] This is a contract in Marquette that requires records be removed two years after the city knew or should have known of the incident.
[**] These are paraphrases of the seven tests. For the original wording, see “In re Enterprise Wire Co and Enterprise Independent Union,” 46 LA 359 (March 28, 1966), https://perma. cc/UE8S-R6PT.
[††] Participating in a labor strike is illegal under state law for public employees in Michigan. MCL § 423.206.
[7] “In re Enterprise Wire Co and Enterprise Independent Union,” 46 LA 359 (March 28, 1966), https://perma.cc/UE8S-R6PT.