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Peak,  K.  (2016).  Justice Administration; Police, Courts, and Corrections Management.   (8^th ed.).  Upper Saddle River, NJ: Prentice Hall

Michael Scott, the title character of NBC’s long-running comedy The Office, was a regional manager at the fictitious Dunder-Mifflin paper company in Scranton, PA. Scott, along with an ensemble cast of his subordinates, depicted the antithesis of a pleasant and inviting workplace. Scott’s top-down management approach and often highly inappropriate behavior served as the basis of most episodes. Employees of Dunder-Mifflin were stuck at their desks, tied to their corded phones, while Scott on numerous occasions belittled them, including the HR manager, Toby Flenderson, who was frequently depicted as the recipient of Scott’s unpredictable wrath. Leading and managing a diverse workforce, as depicted in The Office, can lead to workplace hostility, low motivation, and low job satisfaction. But, as we will see, it does not have to be so.

 

This chapter—one of the lengthiest in this book and certainly one of the most essential chapters in terms of providing the foundation of administration—examines organizations and the employees within them and how they should be managed and motivated. The underlying theme is that administrators must know their people, and the chapter offers a general discussion of organizations, focusing on their definition, theory and function, and structure. Included are several approaches to managing and communicating within organizations.

 

Also, as indicated in Chapter 1, the initial chapters of Parts 2, 3, and 4 of this book discuss the organization and operation of police, courts, and corrections agencies, respectively. Similarly, countless books and articles have been written about organization and administration in general (many of them in the business and human resources disciplines); therefore, in this chapter, we will attempt to discuss the major elements of organization and administration that apply to the field of criminal justice administration. Then, we review the evolution of organizational theory, including scientific, human relations, systems, and bureaucratic management.

 

Next, we consider the structure of organizations (including concepts such as span of control and unity of command). We then focus on one of the most important aspects of organizations: communication. After defining what constitutes communication, we consider its process, barriers, role, some cultural cues, and the uniqueness of communication within police organizations. Next is a discussion of leadership and primary theories of how to lead the organization; included is an overview of the characteristics and skills of America’s best leaders. Following is a discussion of several classical motivational techniques that are used with employees, which includes major theorists in the field such as McGregor, Maslow, Katz, and Herzberg.

 

Then, we examine some of the unique challenges posed by the coming generation of criminal justice employees—the so-called Generation Y (or Millennial) employees—including the world into which they were born, the influences of technologies on their worldview, their penchant for bodily adornment, and the implications for the criminal justice workplace. The chapter concludes with review questions and exercises in the Deliberate and Decide, Learn by Doing, and Case Study sections.

Defining Organizations

Like supervision and management, the word organization has a number of meanings and interpretations that have evolved over the years. We think of organizations as entities of two or more people who cooperate to achieve an objective(s); it can therefore be a company, business, club, and so forth, which engages in planning and arranging the different parts of the group toward accomplishing a fundamental mission. In that sense, certainly, the concept of organization is not new. Undoubtedly, the first organizations were primitive hunting parties. Organization and a high degree of coordination were required to bring down huge animals, as revealed in fossils from as early as 40,000 years ago.1

 

An organization may be formally defined as “a consciously coordinated social entity, with a relatively identifiable boundary, that functions on a relatively continuous basis to achieve a common goal or set of goals.”2 The phrase consciously coordinated implies management. Social entity refers to the fact that organizations are composed of people who interact with one another and with people in other organizations. Relatively identifiable boundary alludes to the organization’s goals and the public served.3 Using this definition, we can consider many types of formal groups as full-blown organizations. Four different types of formal organizations have been identified by asking the question “Who benefits?” Answers include (1) mutual benefit associations, such as police labor unions; (2) business concerns, such as General Motors; (3) service organizations, such as community mental health centers, where the client group is the prime beneficiary; and (4) commonweal (e.g., those that exist for the public good or welfare) organizations, such as the Department of Defense and criminal justice agencies, where the beneficiaries are the public at large.4 The following analogy is designed to help the reader understand organizations.

 

An organization corresponds to the bones that structure or give form to the body. Imagine that the hand is a single mass of bone rather than four separate fingers and a thumb made up of bones joined by cartilage to be flexible. The single mass of bones could not, due to its structure, play musical instruments, hold a pencil, or grip a baseball bat. A criminal justice organization is analogous. It must be structured properly if it is to be effective in fulfilling its many diverse goals.5

 

It is important to note that no two organizations are structured or function exactly alike, nor is there one best way to run an organization.

The Evolution of Organizational Theory

Next, we discuss the evolution of organizational theory, which is the study of organizational designs and structures, the relationship of organizations with their external environment, and the behavior of administrators and managers within organizations.

 

According to Ronald Lynch,6 the history of management can be divided into three approaches and time periods: (1) scientific management (1900–1940), (2) human relations management (1930–1970), and (3) systems management (1965–present). To this, we would add another important element to the concept of organizations: bureaucratic management, which is also discussed in this section.

 

Scientific Management

Frederick W. Taylor, who first emphasized time and motion studies, is known today as the father of scientific management—a school of management thought that is concerned primarily with the efficiency and output of the individual worker. Spending his early years in the steel mills of Pennsylvania, Taylor became chief engineer and later discovered a new method of making steel; this allowed him to retire at the age of 45 years to write and lecture. He became interested in methods for getting greater productivity from workers and was hired in 1898 by Bethlehem Steel, where he measured the time it took workers to shovel and carry pig iron. Taylor recommended giving workers hourly breaks and going to a piecework system, among other adjustments. Worker productivity soared; the total number of shovelers needed dropped from about 600 to 140, and worker earnings increased from $1.15 to $1.88 per day. The average cost of handling a long ton (2,240 pounds) dropped from $0.072 to $0.033.7

 

Taylor, who was highly criticized by unions for his management-oriented views, proved that administrators must know their employees. He published the book The Principles of Scientific Management in 1911. His views caught on, and soon emphasis was placed entirely on the formal administrative structure; terms such as authority, chain of command, span of control, and division of labor were coined.

 

In 1935, Luther Gulick formulated the theory of POSDCORB, an acronym for planning, organizing, staffing, directing, coordinating, reporting, and budgeting (Figure 2-1). This philosophy was emphasized in police management for many years. Gulick stressed the technical and engineering side of management, virtually ignoring the human side.

 

Figure 2-1 Gulick’s POSDCORB

 

Source: Luther Gulick and LyndallUrwick, Papers on the Science of Administration (New York: Institute of Public Administration, 1937).

 

Figure 2-1 Full Alternative Text

The application of scientific management to criminal justice agencies was heavily criticized. It viewed employees as passive instruments whose feelings were completely disregarded. In addition, employees were considered to be motivated by money alone.

 

Human Relations Management

Beginning in the 1930s, people began to realize the negative effects of scientific management on the worker. A view arose in policing that management should instill pride and dignity in officers. The movement toward human relations management began with the famous studies conducted during the late 1920s through the mid-1930s by the Harvard Business School at the Hawthorne plant of the Western Electric Company.8 These studies, which are discussed in more detail later in this chapter, found that worker productivity is more closely related to social capacity than to physical capacity, noneconomic rewards play a prominent part in motivating and satisfying employees, and employees do not react to management and its rewards as individuals but as members of groups.9

 

In the 1940s and 1950s, police departments began to recognize the strong effect of the informal structure on the organization; agencies began using techniques such as job enlargement and job enrichment to generate interest in policing as a career. Studies indicated that the supervisor who was “employee centered” was more effective than one who was “production centered.” Democratic or participatory management began to appear in police agencies. The human relations approach had its limitations, however. With the emphasis placed on the employee, the role of the organizational structure became secondary; the primary goal seemed to many to be social rewards, with little attention given to task accomplishment. Many police managers saw this trend as unrealistic. Employees began to give less and expect more in return.10

 

Systems Management

In the mid-1960s, features of the human relations and scientific management approaches were combined in the systems management approach. Designed to bring the individual and the organization together, it attempted to help managers use employees to reach desired production goals. The systems management approach recognized that it was still necessary to have some hierarchical arrangement to bring about coordination, that authority and responsibility were essential, and that overall organization was required.

 

The systems management approach combined the work of Abraham Maslow,11 who developed a hierarchy of needs; Douglas McGregor,12 who stressed the general theory of human motivation; and Robert Blake and Jane Mouton,13 who developed the “managerial grid,” which emphasized two concerns—for task and for people—that managers must have. In effect, the systems management approach holds that to be effective, the manager must be interdependent with other individuals and groups and have the ability to recognize and deal with conflict and change. More than mere technical skills are required; managers require knowledge of several major resources: people, money, time, and equipment.14 Team cooperation is required to achieve organizational goals.

 

Several theories of leadership and means of motivating employees have also evolved over the past several decades; we discuss several of them in the following sections.

 

Bureaucratic Management

Criminal justice agencies certainly fit the description of an organization. First, they are managed by being organized into a number of specialized units. Administrators, managers, and supervisors exist to ensure that these units work together toward a common goal (each unit working independently would lead to fragmentation, conflict, and competition). Second, these agencies consist of people who interact within the organization and with external organizations, and they exist to serve the public. Through a mission statement, policies and procedures, a proper management style, and direction, criminal justice administrators attempt to ensure that the organization maintains its overall goals of crime treatment and suppression, and that it works amicably with other organizations and people. As the organization becomes larger, the need becomes greater for people to cooperate to achieve organizational goals.

 

Criminal justice organizations are bureaucracies, as are virtually all large organizations in modern society. The idea of a pure bureaucracy was developed by Max Weber, a German sociologist and the “father of sociology,” who argued that if a bureaucratic structure is to function efficiently, it must have the following elements:

 

Rulification and routinization. Organizations stress continuity. Rules save effort by eliminating the need for deriving a new solution for every problem. They also facilitate standard and equal treatment of similar situations.

 

Division of labor. This involves the performance of functions by various parts of an organization along with providing the necessary authority to carry out these functions.

 

Hierarchy of authority. Each lower office is under the control and supervision of a higher one.

 

Expertise. Specialized training is necessary. Only a person who has demonstrated adequate technical training is qualified to be a member of the administrative staff.

 

Written rules. Administrative acts, decisions, and rules are formulated and recorded in writing.15

 

First, many people today view bureaucracies in negative terms, believing that all too often, officials tell clients “That’s not my job,” or appear to be “going by the book”— relying heavily on rules and regulations, and policies and procedures (“red tape”). Second, they are said to stifle the individual freedom, spontaneity, and self-realization of their employees.16 James Q. Wilson referred to this widespread discontent with modern organizations as the “bureaucracy problem,” where the key issue is “getting the frontline worker … to do ‘the right thing.’ ”17

 

Weber’s ideal bureaucracy, however, as described earlier, was designed to eliminate inefficiency and waste in organizations. As shown for each of the earlier principles, many of the characteristics that he proposed years ago are found in today’s criminal justice agencies as well as in other bureaucracies (e.g., political parties, churches, educational institutions, and private businesses).

 

The administration of most police and prison organizations is based on the traditional, pyramidal, quasi-military organizational structure containing the elements of a bureaucracy: specialized functions, adherence to fixed rules, and a hierarchy of authority. (This pyramidal organizational environment is undergoing increasing challenges, especially as a result of departments implementing community policing, as will be seen in Chapter 4.)

 

Organizational Inputs/Outputs

Another way to view organizations is as systems that take inputs (e.g., committing resources as funds, personnel/labor, and equipment needed for accomplishing a goal or mission), process them, and thus produce outputs (the desired outcome, goods, or services). A police agency, for example, processes reports of criminal activity and, like other systems, attempts to satisfy the customer (crime victim). Figure 2-2 demonstrates the input/output model for the police and private business. There are other types of inputs by police agencies; for example, a robbery problem might result in an input of newly created robbery surveillance teams, the processing would be their stakeouts, and the output would be the number of subsequent arrests by the team. Feedback would occur in the form of conviction rates at trial.

Organizational Structure

Primary Principles

All organizations have an organizational structure or table of organization, be it written or unwritten, very basic or highly complex. An experienced manager uses this organizational chart or table as a blueprint for action. The size of the organization depends on the demands placed on it and the resources available to it. Growth precipitates the need for more personnel, greater division of labor, specialization, written rules, and other such elements.

 

In building the organizational structure, the following principles should be kept in mind:

 

Principle of the objective. Every part of every organization must be an expression of the purpose of the undertaking. You cannot organize in a vacuum; you must organize for something.

 

Principle of specialization. The activities of every member of any organized group should be confined, as far as possible, to the performance of a single function.

 

Principle of authority. In every organized group, the supreme authority must rest somewhere. There should be a clear line of authority to every person in the group.

 

Principle of responsibility. The responsibility of the superior for the acts of his or her subordinates is absolute.

 

Principle of definition. The content of each position, the duties involved, the authority and responsibility contemplated, and the relationships with other positions should be clearly defined in writing and published for all concerned.

 

Principle of correspondence. In every position, the responsibility and the authority to carry out the responsibility should correspond.

 

Span of control. No person should supervise more than six direct subordinates whose work interlocks.18

 

Span of Control and Unity of Command

The last concept in the preceding list, span of control, has recently been revisited in the literature and deserves additional commentary. How many subordinates can a chief executive, manager, or supervisor in a criminal justice organization effectively supervise? The answer will depend on factors such as the capacity of the leader and the persons supervised, the type of work performed, the complexity of the work, the area covered, distances between elements, the time needed to perform the tasks, and the types of persons served. Normally, a police patrol sergeant will supervise 6–10 officers, while a patrol lieutenant may have 4 or 5 sergeants reporting to him or her.19

 

Several authors now argue for even higher spans of control, however, to afford reductions in the distortion of information as it flows through the organization; more rapid, effective decision making and action; fewer functional roadblocks and “turf protection”; greater emphasis on controlling the bureaucracy rather than on customer service; and reduced costs because of the lower number of managers and management support staff. Some also argue that rank-and-file employees favor higher spans of control because they receive less detailed and micromanaged supervision, greater responsibility, and a higher level of trust by their supervisors.20

 

A related, major principle of hierarchy of authority is unity of command, which refers to placing one and only one superior officer in command or in control of every situation and employee. When a critical situation occurs, it is imperative that only one person should be responsible and in charge. The unity of command principle ensures, for example, that multiple and/or conflicting orders are not issued to the same police officers by several superior officers. For example, a patrol sergeant might arrive at a hostage situation, deploy personnel, and give all appropriate orders, only to have a shift lieutenant or captain come to the scene and countermand the sergeant’s orders with his or her own orders. This type of situation would obviously be counterproductive for all concerned. All officers must know and follow the chain of command at such incidents. Every person in the organization should report to one and only one superior officer. When the unity of command principle is followed, everyone involved is aware of the actions initiated by superiors and subordinates. A simple structure indicating the direct line of authority in a chain of command is shown in Figure 2-3.

 

Figure 2-3 Chain of Command

 

Figure 2-3 Full Alternative Text

An organization should be developed through careful evaluation of its responsibilities; otherwise, the agency may become unable to respond efficiently to clients’ needs. For example, the implementation of too many specialized units in a police department (e.g., community relations, crime analysis, media relations) may obligate too many personnel to these functions and result in too few patrol officers. Today, 56 to 90 percent of all sworn personnel are assigned to patrol.21

 

The classic pyramidal design is shown in Figure 2-4. The pyramidal structure has the following characteristics:

 

Nearly all contacts take the form of orders going down and reports of results going up the pyramid.

 

Each subordinate must receive instructions and orders from only one boss.

 

Important decisions are made at the top of the pyramid.

 

Superiors have a specific span of control, supervising only a limited number of people.

 

Personnel at all levels, except at the top and bottom, have contact only with their boss above them and their subordinates below them.22

 

Figure 2-4 Organizational Pyramid

 

Source: Sayles & Strauss, Human Behavior in Organizations, 1st Ed., © 1966. Reprinted and Electronically reproduced by permission of Pearson Education, Inc., Upper Saddle River, New Jersey., p. 349.

 

Figure 2-4 Full Alternative Text

Closed versus Open Systems

What we have described thus far about criminal justice organizations is largely consistent with what Weber describes as a bureaucracy and akin to a closed model system. In these organizations, organizational interaction with the outside environment is minimal and this model of bureaucracy is characterized by the presence of some familiar Weberian themes, such as the following: (1) routine tasks are emphasized, (2) a division of labor is central, (3) the means for doing a task are emphasized, (4) conflict in the organization is managed from the top, (5) formal job descriptions are emphasized, (6) an employee’s sense of loyalty is to his or her subunit, (7) the organizational structure is that of a hierarchy, (8) organizational knowledge is only inclusive at the very top, (9) interaction among employees is generally vertical, (10) clear superordinate/subordinate relationships are emphasized, and (11) status is determined by rank.23

 

While a closed system is closely aligned with bureaucratic management, open systems are more closely aligned to human relations management, which we discussed earlier as an employee-centered management approach, focused on participatory management. In contrast to closed systems, open systems focus on the following: (1) nonroutine tasks, (2) specialized knowledge can contribute to common tasks, (3) getting the job done (the ends) are emphasized over the means, (4) organizational conflict is resolved among peers, (5) the sense that all organizational members can contribute to organizational needs, (6) one’s sense of responsibility is to the organization as a whole rather to an employee’s subunit, (7) the organization is seen as a fluidic structure rather than a pyramid, (8) knowledge can be located anywhere in the organization, (9) interaction tends to be horizontal rather than exclusively vertical, (10) interactions between managers and employees tend to be friendly and advice oriented, and (11) one’s status in the organization is dependent upon abilities and reputation, rather than rank.24

Communication within the Organization

Import and Consequence

Communication is obviously important in every segment of our society. As Mark Twain put it, “The difference between the right word and the almost right word is the difference between lightning and lightning bug.”25

 

And to that we might add one more quote, by the noted Italian-American linguist Mario Pei,26 who wrote about the essential nature of proper communication in general:

 

Rightly or wrongly, most people consider language as an index of culture, breeding, upbringing, personality, sometimes even of intelligence, decency, and integrity. Under the circumstances, it is unwise, not to say harmful, to pay no heed to your language. Ignorance or improper use of language can easily interfere with your success and advancement. It can take money out of your pocket.

 

Certainly there is no discipline where communication is more important than that of criminal justice, where people communicate in and through offense reports; in affidavits; via general orders, policies, procedures, rules, and regulations; on the courtroom witness stand; and in competency, parole, or probation hearings. Indeed, it might be fairly said that communication is the foundation of criminal justice organization and administration.

 

Communication also becomes exceedingly important and sensitive in criminal justice organizations because of the nature of information that is processed by practitioners—particularly police officers, who often see people at their worst and when they are in the most embarrassing and compromising situations. To communicate what is known about these kinds of behaviors could be devastating to the parties concerned. A former Detroit police chief lamented several decades ago that “many police officers, without realizing they carry such authority, do pass on rumors. The average police officer doesn’t stop to weigh what he says.”27 Certainly the same holds true today and extends to courts and corrections personnel, especially in view of the high-tech communications equipment now in use.

 

Process and Characteristics

Today, we communicate via e-mail, videoconferencing, smart phones and text messages, satellite dishes, and many other forms. We converse orally, in written letters and memos, through our body language, via television and radio programs, and through newspapers and meetings. Even private thoughts—which occur four times faster than the spoken word—are communication. Every waking hour, our minds are full of ideas. Psychologists say that nearly 100,000 thoughts pass through our minds every day, conveyed by a multitude of media.28

 

Studies have long shown that communication is the primary problem in administration and lack of communication is employees’ primary complaint about their immediate supervisors.29 Indeed, managers are in the communications business. It has been said that

 

[o]f all skills needed to be an effective manager/leader/supervisor, skill in communicating is the most vital. In fact, research has shown that 93 percent of police work is one-on-one communication. Estimates vary, but all studies emphasize the importance of communications in everyday law enforcement operations.30

 

Several elements comprise the communication process: encoding, transmission, medium, reception, decoding, and feedback.31

 

Encoding. To convey an experience or idea, we translate, or encode, that experience into symbols. We use words or other verbal behaviors or nonverbal behaviors such as gestures to convey the experience or idea.

 

Transmission. This element involves the translation of the encoded symbols into some behavior that another person can observe. The actual articulation (moving our lips, tongue, and so on) of the symbol into verbal or nonverbal observable behavior is transmission.

 

Medium. Communication must be conveyed through some channel or medium. Media for communication include sight, hearing, taste, touch, and smell. Some other media are television, telephone, paper and pencil, and radio. The choice of the medium is important; for example, a message that is transmitted via a formal letter from the CEO will carry more weight than the same message conveyed via an administrative assistant’s memo.

 

Reception. The stimuli, the verbal and nonverbal symbols, reach the senses of the receiver and are conveyed to the brain for interpretation.

 

Decoding. The individual who receives the stimuli develops some meaning for the verbal and nonverbal symbols and decodes the stimuli. These symbols are translated into some concept or experience for the receiver. Whether or not the receiver is familiar with the symbols, or whether or not interference such as noise or a physiological problem occurs, determines how closely the message that the receiver has decoded approximates the message that the sender has encoded.

 

Feedback. After decoding the transmitted symbols, the receiver usually provides some response or feedback to the sender. If someone appears puzzled, we repeat the message or we encode the concept differently and transmit some different symbols to express that concept. Feedback that we receive acts as a guide or steering device and lets us know whether the receiver has interpreted our symbols as we intended. Feedback is obviously a crucial element in guaranteeing that the sender’s intended meaning was in fact conveyed to the receiver.

 

An organization’s systems of communication are usually created by establishing formal areas of responsibility and explicit delegations of duties, including statements of the nature, content, and direction of the communications that are necessary for the group’s performance. Most criminal justice administrators prefer a formal system, regardless of how cumbersome it may be, because they can control it and because it tends to create a record for future reference. Several human factors, however, affect the flow of communication. Employees typically communicate with those persons who can help them to achieve their aims; they avoid communicating with those who do not assist, or may retard, their accomplishing those goals; and they tend to avoid communicating with people who threaten them and make them feel anxious.32 Other barriers to effective communication are discussed later.

 

Communication within a criminal justice organization may be downward, upward, or horizontal. There are five types of downward communication within a criminal justice organization:

 

Job instruction. Communication relating to the performance of a certain task

 

Job rationale. Communication relating a certain task to organizational tasks

 

Procedures and practice. Communication about organizational policies, procedures, rules, and regulations (discussed as they relate to police, in Chapter 4)

 

Feedback. Communication appraising how an individual performs the assigned task

 

Indoctrination. Communication designed to motivate the employee33

 

Other reasons for communicating downward—implicit in this list—are opportunities for administrators to spell out objectives, to change attitudes and mold opinions, to prevent misunderstandings from lack of information, and to prepare employees for change.34

 

Upward communication in a criminal justice organization may be likened to a trout trying to swim upstream: With its many currents of resistance, it is a much harder task than to float downstream. Several deterrents restrict upward communication. The physical distance between superior and subordinate impedes upward communication. Communication is often difficult and infrequent when superiors are isolated and seldom seen or spoken to. In large criminal justice organizations, administrators may be located in headquarters that are removed from the operations personnel. The complexity of the organization may also cause prolonged delays of communication. For example, if a corrections officer or a patrol officer observes a problem that needs to be taken to the highest level, normally this information must first be taken to the sergeant, then to the lieutenant, captain, deputy warden or chief, and so on. At each level, these higher-level individuals will reflect on the problem, put their own interpretation on it (possibly including how the problem might affect them professionally or even personally), and possibly even dilute or distort the problem. Thus, delays in communication are inherent in a bureaucracy. Delays could mean that problems are not brought to the attention of the CEO for a long time. The more levels the communication passes through, the more it is filtered and diluted in its accuracy.

 

There is also the danger that administrators have a “no news is good news” or “slay the messenger” attitude, thereby discouraging the reception of information. Unless the superior does in fact maintain an open-door atmosphere, subordinates are often reluctant to bring, or will temper, bad news, unfavorable opinions, and mistakes or failures to the superior.35 Administrators may also believe that they know and understand what their subordinates want and think, and that complaints from subordinates are an indication of disloyalty.

 

For all of these reasons, administrators may fail to take action on undesirable conditions brought to their attention; this will cause subordinates to lose faith in their leaders. Many time-consuming problems could be minimized or eliminated if superiors took the time to listen to their employees.

 

Horizontal communication thrives in an organization when formal communication channels are not open.36 The disadvantage of horizontal communication is that it is much easier and more natural to achieve than vertical communication and therefore it often replaces vertical channels. The horizontal channels are usually informal in nature and include the grapevine, discussed next. The advantage is that horizontal communication is essential if the subsystems within a criminal justice organization are to function in an effective and coordinated manner. Horizontal communication among peers may also provide emotional and social bonds that build morale and feelings of teamwork among employees.

 

Communicating in Police Organizations: Consequence, Jargon, and the Grapevine

Because of their 24/7 work schedules, decentralized nature, unique jargon, and the gravity of what they encounter on the streets, let’s briefly consider communications in policing. Police officers must possess the ability to communicate internally and externally regarding policies and procedures that affect daily operations. The ability of the police to communicate effectively using both oral and written means is also paramount because of the damage that can be done by, say, not completing an offense report properly or failing to convey accurately to one’s supervisors, to the district attorney, or in court what actually happened in a criminal matter. Officers must also be prepared to converse with highly educated people in their day-to-day work.

 

Like people in other occupations and professions, the police have their own jargon, dialect, and/or slang that they use on a daily basis. To the police, an offender might be a “perp” (perpetrator); a “subject” is simply someone of interest whom they are talking with, while a “suspect” is someone suspected of having committed a crime. In an “interview,” the officer attempts to obtain basic information about a person (name, address, date of birth, and so forth), while an “interrogation” involves questioning an individual about his or her knowledge of, or possible involvement in, a crime. Such jargon and slang help officers to communicate among themselves.

 

Such slang (or argot) tends to occur among groups, can differ depending on the location of the groups, changes over time, and is widely used in policing for informal, internal communications. In 1993, the Chicago Tribune noted some common and other criminal justice organizations argot used among Chicago police officers, including “hype,” an intravenous drug user, “501,” a drunk driver (from the Illinois Revised Statues), “smoker,” a stolen vehicle, and “spot,” a location where drugs are sold.37 And while Chicago police officers use the word “head” to describe an arrest, New York City police officers use the word “collar.”38

 

The police also communicate with one another by listening and talking on the police car radio/police officer worn radio, or communicating digitally using a mobile data terminal (MDT). Agencies generally have detailed instructions and dos and don’ts in their policies and procedures regarding the use of a radio. Supervisors must ensure that officers’ radio transmissions are as concise, complete, and accurate as possible; officers are to refrain from making unprofessional, rude, sarcastic, or unnecessary remarks while on their radio; and those who fail to abide by these rules will quickly be admonished or even disciplined.

 

Police communicate on their radios using codes and have done so since the 1920s. The police also communicate with the use of a phonetic alphabet, which was designed to avoid confusion between letters that sound alike, such as when radioing in the name of a person or a license plate number to the dispatcher. For example, a d might easily be confused with a b or an m with an n. So, if radioing in a license plate number that is “DOM-123,” the officer would say “David Ocean Mary 1-2-3.” This eliminates any possible confusion on the receiver’s part.

 

In addition to the several barriers to effective communication just discussed, the so-called grapevine—an informal means of circulating and communicating information or gossip, and so called because it zigzags back and forth across organizations—can also hinder communication. Communication includes rumors, and probably no type of organization in our society has more grapevine “scuttlebutt” than police agencies. Departments even establish rumor control centers during major crisis situations. Increasing the usual barriers to communication is the fact that policing, prisons, and jails are 24-hour, 7-day operations, so that rumors are easily carried from one shift to the next.

 

The grapevine’s most effective characteristics are that it is fast, it operates mostly at the place of work, and it supplements regular, formal communication. On the positive side, it can be a tool for management to gauge employees’ attitudes, to spread useful information, and to help employees vent their frustrations. However, the grapevine can also carry untruths and be malicious. Without a doubt, the grapevine is a force for administrators to reckon with on a daily basis.

 

Oral and Written Communication

Our society tends to place considerable confidence in the written word within complex organizations. Writing establishes a permanent record, but transmitting information this way does not necessarily ensure that the message will be clear to the receiver. Often, in spite of the writer’s best efforts, information is not conveyed clearly. This may be due in large measure to shortcomings with the writer’s skills. Nonetheless, criminal justice organizations seem to rely increasingly on written communication, as evidenced by the proliferation of written directives found in most agencies.

 

This tendency for organizations to promulgate written rules, policies, and procedures has been caused by three contemporary developments. First is the requirement for administrative due process in employee disciplinary matters, encouraged by federal court rulings, police officer bill of rights legislation, and labor contracts. Another development is civil liability. Lawsuits against local governments and their criminal justice agencies and administrators have become commonplace; written agency guidelines prohibiting certain acts provide a hedge against successful civil litigation.39 Written communication is preferred as a medium for dealing with citizens or groups outside the criminal justice agency. This means of communication provides the greatest protection against the growing number of legal actions taken against agencies by activists, citizens, and interest groups.

 

Finally, a third stimulus is the accreditation movement. Agencies that are either pursuing accreditation or have become accredited must possess a wealth of written policies and procedures.40

 

In recent years, electronic mail (e-mail) and text messaging have proliferated as a communication medium in criminal justice organizations. Such messages are easy to use and are almost instantaneous communication—in upward, downward, or horizontal directions. For all their advantages, however, such messages can lack security and can be ambiguous—not only with respect to content meaning but also with regard to what they represent. Are such messages to be given the full weight of an office letter or memo, or should they be treated more as offhand comments?41

 

Other Barriers to Effective Communication

In addition to the barriers just discussed, several other potential barriers to effective communication exist. Some people, for example, are not good listeners. Unfortunately, listening is one of the most neglected and the least understood of the communication arts.42 We allow other things to obstruct our communication, including time constraints, inadequate or excessive information, the tendency to say what we think others want to hear, failure to select the best word, prejudices, and strained sender–receiver relationships.43 In addition, subordinates do not always have the same “big picture” viewpoint that superiors possess and do not always communicate well with someone in a higher position who is perhaps more fluent and persuasive than they are.

 

Cultural Cues

It is important to note that at least 90 percent of communication is nonverbal in nature, involving posture, facial expressions, gestures, tone of voice (“it’s not what you say but how you say it”), and so on.44 People learn to interpret these nonverbal messages by growing up in a particular culture, but not every culture interprets nonverbal cues in the same way.

 

For example, in some cultures, avoiding eye contact by looking at the ground is meant to convey respect and humility. Making what to some people are exaggerated hand gestures may be a normal means of communication in some cultures, and social distance for conversation in some societies may be much closer than it is in the United States. Someone from Nigeria, for example, may stand less than 15 inches from someone while conversing, whereas about two feet is a comfortable conversation zone for Americans. These few examples demonstrate why criminal justice practitioners must possess cultural empathy and understand the cultural cues of citizens from other nations.

 

External Communications: Use of Social Media

You might recall from our earlier discussion in this section that the choice of medium for communications is important. With the proliferation of social media, criminal justice agencies are turning to such platforms as Facebook and Twitter to communicate externally with their constituents.45 Historically, external communications to the public went first to the media, then were pushed out via newspapers, television, and radio. But this type of communication typically is one-sided, with little ability of the public to directly interact with criminal justice agencies.

 

Social media includes a number of varied platforms, including Microblogs (e.g., Twitter), social networking sites (e.g., Facebook), professional networks (e.g., LinkedIn), video sharing (e.g., YouTube), and content-driven communities (e.g., Wikipedia).46 In a 2015 study, the International Association of Chiefs of Police reported that 96 percent of the law enforcement agencies it surveyed used social media, the great majority of which (94 percent) used Facebook.47 Almost 89 percent of those police agencies used Facebook to communicate to the public about criminal investigations, oftentimes seeking the public’s help in the investigation.48 In a statewide study completed in Idaho in 2015, Jacob Kabrud found that law enforcement agencies use Facebook to communicate with the public for a variety of reasons, including public interest posts, crime-related posts, and alert-related posts.49

 

As criminal justice agencies move away from being closed, bureaucratic, insular organizations to those that are more open and responsive to community needs, external communications and interactions with the community become more and more paramount. Social media appears to be the driving force of this communication in the twenty-first century.

Primary Leadership Theories

What Is Leadership?

Over 20 years ago, Peter Drucker, often referred to as the business guru,50 conducted a study of the Los Angeles Police Department; among Drucker’s findings was: “You police are so concerned with doing things right that you fail to do the right things.” Drucker added, “Managers do things right; leaders do the right thing.” Another leadership guru, Warren Bennis, has said essentially the same thing. In other words, administrators cannot be so concerned with managing that they fail to lead.51 We now examine theories underlying leadership and what leaders can do to motivate their subordinates. Probably since the dawn of time, when cave dwellers clustered into hunting groups and some particularly dominant person assumed a leadership role over the party, administrators have received advice on how to do their jobs from those around them. Even today, manuals for leaders and upwardly mobile executives abound, offering quick studies in how to govern others. Although many have doubtlessly been profitable for their authors, most of these how-to primers on leading others enjoy only a brief, ephemeral existence.

 

To understand leadership, we must first define the term. This is an important and fairly complex undertaking, however. Perhaps the simplest definition is to say that leading is “getting things done through people.” In general, it may be said that a manager operates in the status quo, but a leader takes risks. Managers are conformers; leaders are reformers. Managers control; leaders empower. Managers supervise; leaders coach. Managers are efficient; leaders are effective. Managers are position oriented; leaders are people oriented. In sum, administrators must be both skilled managers and effective leaders.52

 

Other definitions of leadership include the following:

 

“The process of influencing the activities of an individual or a group in efforts toward goal achievement in a given situation”53

 

“Working with and through individuals and groups to accomplish organizational goals”54

 

“The activity of influencing people to strive willingly for group objectives”55

 

“The exercise of influence”56

 

Conversely, it has been said that the manager may be viewed as a team captain, parent, steward, battle commander, fountain of wisdom, poker player, group spokesperson, gatekeeper, minister, drill instructor, facilitator, initiator, mediator, navigator, candy-store keeper, linchpin, umbrella-holder, and everything else between nurse and Attila-the-Hun.57

 

In criminal justice organizations, leaders take the macro view; their role might best be defined as “the process of influencing organizational members to use their energies willingly and appropriately to facilitate the achievement of the [agency’s] goals.”58 We discuss leaders and managers in greater length later in this chapter and in Chapter 5 (the Mintzberg Model of CEOs).

 

Next, we discuss what kinds of activities and philosophies constitute leadership.

 

Trait Theory

Trait theory was popular until the 1950s, but it raises important questions for us today. This theory was based on the contention that good leaders possessed certain character traits that poor leaders did not. Those who developed this theory, Stogdill and Goode, believed that a leader could be identified through a two-step process. The first step involved studying leaders and comparing them to nonleaders to determine which traits only the leaders possessed. The second step sought people who possessed these traits to be promoted to managerial positions.59

 

A study of 468 administrators in 13 companies found certain traits in successful administrators. They were more intelligent and better educated; had a stronger need for power; preferred independent activity, intense thought, and some risk; enjoyed relationships with people; and disliked detail work more than their subordinates.60 Figure 2-5 shows traits and skills commonly associated with leader effectiveness, according to Gary Yuki. Following this study, a review of the literature on trait theory revealed the traits most identified with leadership ability: intelligence, initiative, extroversion, a sense of humor, enthusiasm, fairness, sympathy, and self-confidence.61

 

Figure 2-5 Traits and Skills Commonly Associated with Leader Effectiveness

 

Source: Yukl, Gary A., Leadership in Organizations, 1st Ed., © 1981, pp. 70, 121-125. Adapted and Electronically reproduced by permission of Pearson Education, Inc., Upper Saddle River, New Jersey.

 

Figure 2-5 Full Alternative Text

Trait theory has lost much of its support since the 1950s, partly because of the basic assumption of the theory that leadership cannot be taught. A more important reason, however, is simply the growth of new, more sophisticated approaches to the study of leadership. Quantifiable means to test trait theory were limited. What does it mean to say that a leader must be intelligent? By whose standards? Compared with persons within the organization or within society? How can traits such as a sense of humor, enthusiasm, fairness, and the others listed earlier be measured or tested? The inability to measure these factors was the real flaw and the reason for the decline of trait theory.

 

Style Theory

A study at Michigan State University investigated how leaders motivated individuals or groups to achieve organizational goals. The study determined that leaders must have a sense of the task to be accomplished as well as the environment in which their subordinates work. Three principles of leadership behavior emerged from the Michigan study:

 

Leaders must give task direction to their followers.

 

Closeness of supervision directly affects employee production. High-producing units had less direct supervision; highly supervised units had lower production. Conclusion: Employees need some area of freedom to make choices. Given this, they produce at a higher rate.

 

Leaders must be employee oriented. It is the leader’s responsibility to facilitate employees’ accomplishment of goals.62

 

In the 1950s, Edwin Fleishman began studies of leadership at Ohio State University. After focusing on leader behavior rather than personality traits, he identified two dimensions or basic principles of leadership that could be taught: initiating structure and consideration (Figure 2-6).63 Initiating structure referred to supervisory behavior that focused on the achievement of organizational goals, and consideration was directed toward a supervisor’s openness to subordinates’ ideas and respect for their feelings as persons. High consideration and moderate initiating structure were assumed to yield higher job satisfaction and productivity than high initiating structure and low consideration.64

 

Figure 2-6 Style Theory

 

Source: Holden, Richard, Modern Police Management, 1st Ed., © 1986, p. 50. Reprinted and Electronically reproduced by permission of Pearson Education, Inc., Upper Saddle River, New Jersey.

 

Figure 2-6 Full Alternative Text

The major focus of style theory is the adoption of a single managerial style by a manager based on his or her position in regard to initiating structure and consideration. Three pure leadership styles were thought to be the basis for all managers: autocratic, democratic, and laissez-faire.

 

The autocratic style is leader centered and has a high initiating structure. An autocratic leader is primarily authoritarian in nature and prefers to give orders rather than invite group participation. Such a leader has a tendency to be personal with criticism. This style works best in emergency situations in which strict control and rapid decision making are needed. The problem with autocratic leadership is the organization’s inability to function when the leader is absent. It also stifles individual development and initiative because subordinates are rarely allowed to make an independent decision.65

 

In the democratic style, the democratic leader tends to focus on working within the group and strives to attain cooperation from group members by eliciting their ideas and support. Democratic managers tend to be viewed as consideration oriented and strive to attain mutual respect with subordinates. These leaders operate within an atmosphere of trust and delegate much authority. The democratic style is useful in organizations in which the course of action is uncertain and problems are relatively unstructured. It often taps the decision-making ability of subordinates. In emergency situations requiring a highly structured response, however, democratic leadership may prove too time-consuming and awkward to be effective. Thus, although the worker may appreciate the strengths of this style, its weaknesses must be recognized as well.66

 

In the laissez-faire style, the laissez-faire leader has a hands-off approach in which the leader is actually a nonleader. The organization in effect runs itself, with no input or control from the manager. This style has no positive aspects, as the entire organization is soon placed in jeopardy. In truth, this may not be a leadership style at all; instead, it may be an abdication of administrative duties.

 

Situational Leadership Theory

Similar to style theory, situational leadership theory (SLT), popularized by Hersey and Blanchard, assumes that leaders are most effective when they are adaptable. Rather than trait theory’s focus on ideal leadership characteristics, SLT suggests that the best leadership style is situationally dependent based on the interaction of task behavior and relationship behavior. Task behavior refers to the extent to which leaders define the roles of members of their group—leaders who essentially tell their group members what to do and when to do it. Relationship behavior, on the other hand, refers to the extent to which leaders form relationships with members of their group—leaders who essentially provide emotional support and psychological strokes.67

 

From the interaction between task behavior and relationship behavior, four leadership styles emerge, each of which ideally surfaces based on the context (or situation) before the leader.

 

“Telling” leaders are high in task behavior and low in relationship behavior. In this scenario, you might imagine a leader barking orders at a correctional officer who repeatedly is not making the grade.

 

“Selling” leaders are high in task behavior and high in relationship behavior. In this scenario, you might imagine a leader who seeks the input from her captain to solve a problem, but in the end, if the input does not match the leader’s ideas on how to solve the problem, the leader will stick to her guns.

 

“Participating” leaders are low in task behavior and high in relationship behavior. In this scenario, the leader uses participatory leadership techniques that create buy-in by organizational members for new initiatives or problem resolution.

 

“Delegating” leaders are low in task behavior and low in relationship behavior. Here, a leader might outline broad goals to a working group and ask group members to devise ways to attain the goals with little interference.

 

The key features of SLT include the interaction between task behavior and relationship behavior, which is dictated by both employee readiness (the extent to which the employee is ready to do the job) and psychological readiness (the extent to which the employee can assume responsibility for getting the job done).68

Characteristics and Skills of America’s Best Leaders

“Good in Their Skin”

Given today’s deep-seated skepticism and distrust of leaders—often justified by public- and private-sector leaders’ ethical violations, fraud, and cover-ups—it may seem that there is a complete dearth of leadership. But who are the leaders making a difference? A national panel sifted through nominations and agreed on a small group of men and women who embody the more important traits of leadership. The survey determined that there is not a lack of leadership, but rather a “wrong-headed notion of what a leader is,” causing leaders to be hired for their style rather than substance and their image instead of integrity. It was also learned that there is no shortage of people with the capacity to lead who are just waiting for the opportunity.69

 

The survey found that twenty-first-century authentic leaders know who they are; they are “good in their skin,” so they do not feel a need to impress or please others. They inspire those around them and bring people together around a shared purpose and a common set of values. They know the “true north” of their moral compass and are prepared to stay the course despite challenges and disappointments. They are more concerned about serving others than about their own success or recognition. By acknowledging their weaknesses, failings, and errors, they connect with people and empower them to take risks. Usually authentic leaders demonstrate the following five traits: pursuing their purpose with passion, practicing solid values, leading with their hearts as well as their heads, establishing connected relationships, and demonstrating self-discipline.70

 

For a less contemporary, classical view of what skills leaders need to possess, we consider the views of Robert Katz.

 

Katz’s Three Skills

Robert Katz, in 1975, identified three essential skills that leaders should possess: technical, human, and conceptual. Katz defined a skill as the capacity to translate knowledge into action in such a way that a task is accomplished successfully.71 Each of these skills (when performed effectively) results in the achievement of objectives and goals, which is the primary task of management.

 

Technical skills are those a manager needs to ensure that specific tasks are performed correctly. They are based on proven knowledge, procedures, or techniques. A police detective, a court administrator, and a probation officer have all developed technical skills directly related to the work they perform. Katz wrote that a technical skill “involves specialized knowledge, analytical ability within that specialty, and facility in the use of the tools and techniques of the specific discipline.”72 This is the skill most easily trained for. A court administrator, for example, has to be knowledgeable in areas such as computer applications, budgeting, caseload management, space utilization, public relations, and personnel administration; a police detective must possess technical skills in interviewing, fingerprinting, and surveillance techniques.73

 

Human skills involve working with people, including being thoroughly familiar with what motivates employees and how to utilize group processes. Katz visualized human skills as including “the executive’s ability to work effectively as a group member and to build cooperative effort within the team he leads.”74 Katz added that the human relations skill involves tolerance of ambiguity and empathy. Tolerance of ambiguity means that the manager is able to handle problems when insufficient information precludes making a totally informed decision. Empathy is the ability to put oneself in another’s place. An awareness of human skills allows a manager to provide the necessary leadership and direction, ensuring that tasks are accomplished in a timely fashion and with the least expenditure of resources.75

 

Conceptual skills, Katz said, involve “coordinating and integrating all the activities and interests of the organization toward a common objective.”76 Katz considered such skills to include “an ability to translate knowledge into action.” For example, in a criminal justice setting, a court decision concerning the admissibility of evidence would need to be examined in terms of how it affects detectives, other court cases, the forensic laboratory, the property room, and the work of the street officer.

 

Katz emphasized that these skills can be taught to actual and prospective administrators; thus, good administrators are not simply born but can be trained in the classroom. Furthermore, all three of these skills are present in varying degrees at each management level. As one moves up the hierarchy, conceptual skills become more important and technical skills less important. The common denominator for all levels of management is human skills. In today’s litigious environment, it is inconceivable that a manager could neglect the human skill

One of the most fascinating subjects throughout history has been how to motivate people. Some have sought to do so through justice (Plato), others through psychoanalysis (Freud), through conditioning (Pavlov), through incentives (Taylor), and still others through fear (any number of dictators and despots). From the Industrial Revolution to the present, managers have been trying to get a full day’s work from their subordinates. The controversy in the early 1990s caused by Japanese businessmen who stated that American workers were lazy certainly raised our collective ire; many U.S. businesspeople and managers would probably agree that better worker motivation is needed. As Donald Favreau and Joseph Gillespie stated, “Getting people to work, the way you want them to work, when you want them to work, is indeed a challenge.”77

 

Many theories have attempted to explain motivation. Some of the best known are those resulting from the Hawthorne studies and those developed by Abraham Maslow, Douglas McGregor, and Frederick Herzberg, all of which are discussed here along with the expectancy and contingency theories.

 

The Hawthorne Studies

Another important theory that criminal justice leaders must comprehend is that of the Hawthorne effect, which essentially means that employees’ behavior may be altered if they believe they are being studied—and that management cares; this was demonstrated in the following research project.

 

As mentioned earlier, one of the most important studies of worker motivation and behavior, launching intense interest and research in those areas, was the Western Electric Company’s study in the 1920s. In 1927, engineers at the Hawthorne plant of Western Electric near Chicago conducted an experiment with several groups of workers to determine the effect of illumination on production. The engineers found that when illumination was increased in stages, production increased. To verify their finding, they reduced illumination to its previous level; again, production increased. Confused by their findings, they contacted Elton Mayo and his colleague Fritz Roethlisberger from Harvard to investigate.78 First, the researchers selected several experienced female assemblers for an experiment. Management removed the women from their formal group and isolated them in a room. The women were compensated on the basis of the output of their group. Next, researchers began a series of environmental changes, each discussed with the women in advance of its implementation. For example, breaks were introduced and light refreshments were served. The normal six-day workweek was reduced to five days, and the workday was cut by one hour. Each of these changes resulted in increased output.79 To verify these findings, researchers returned the women to their original working conditions; breaks were eliminated, the six-day workweek was reinstituted, and all other work conditions were reinstated. The results were that production again increased!

 

Mayo and his team then performed a second study at the Hawthorne plant. A new group of 14 workers—all men who performed simple, repetitive telephone coil-winding tasks—were given variations in rest periods and workweeks.80 The men were also put on a reasonable piece rate—that is, the more they produced, the more money they would earn. The assumption was that the workers would strive to produce more because it was in their own economic interest to do so.

 

The workers soon split into two informal groups on their own, each group setting its own standards of output and conduct. The workers’ output did not increase. Neither too little nor too much production was permitted, and peers exerted pressure to keep members in line. The values of the informal group appeared to be more powerful than the allure of bigger incomes:

 

Don’t be a “rate buster” and produce too much work.

 

If you turn out too little work, you are a “chiseler.”

 

Don’t be a “squealer” to supervisors.

 

Don’t be officious; if you aren’t a supervisor, don’t act like one.81

 

Taken together, the Hawthorne studies revealed that people work for a variety of reasons, not just for money and subsistence. They seek satisfaction for more than their physical needs at work and from their coworkers. For the first time, clear evidence was gathered to support workers’ social and esteem needs. As a result, this collision between the human relations school, begun in the Hawthorne studies, and traditional organizational theory sent researchers and theorists off in new and different directions. At least three major new areas of inquiry evolved: (1) what motivates workers (leading to the work of Maslow and Herzberg), (2) leadership (discussed earlier), and (3) organizations as behavioral systems.

 

Maslow’s Hierarchy of Needs

Abraham H. Maslow (1908–1970), who argued for the application of the humanistic school of psychology—which basically stressed the importance of growth and self-actualization and argued that people are innately good—conducted research on human behavior at the Air University, Maxwell Air Force Base, Alabama, during the 1940s. His approach to motivation was unique in that the behavior patterns analyzed were those of motivated, happy, and production-oriented people—achievers, not underachievers. He studied biographies of historical and public figures, including Abraham Lincoln, Albert Einstein, and Eleanor Roosevelt; he also observed and interviewed some of his contemporaries—all of whom showed no psychological problems or signs of neurotic behavior.

 

Maslow hypothesized that if he could understand what made these people function, it would be possible to apply the same techniques to others, thus achieving a high state of motivation. His observations were coalesced into a hierarchy of needs.82

 

Maslow concluded that because human beings are part of the animal kingdom, their basic and primary needs or drives are physiological: air, food, water, sex, and shelter. These needs are related to survival. Next in order of importance are needs related to safety or security, protection against danger: murder, criminal assault, threat, deprivation, and tyranny. At the middle of the hierarchy is belonging, or social needs: being accepted by one’s peers and associating with members of groups. At the next level of the hierarchy are the needs or drives related to ego: self-esteem, self-respect, power, prestige, recognition, and status. At the top of the hierarchy is self-realization or actualization: self-fulfillment, creativity, becoming all that one is capable of becoming.83 Figure 2-7 depicts this hierarchy.

 

Figure 2-7 Maslow’s Hierarchy of Human Needs

 

Source: Maslow’s Hierarchy of Human Needs based on Motivation and Personality, edited by Kenneth J. Peak..

 

Figure 2-7 Full Alternative Text

Unlike the lower needs, the higher needs are rarely satisfied. Maslow suggested that to prevent frustration, needs should be filled in sequential order. A satisfied need is no longer a motivator. Maslow’s research also indicated that once a person reaches a high state of motivation (i.e., esteem or self-realization levels), he or she will remain highly motivated, will have a positive attitude toward the organization, and will adopt a “pitch in and help” philosophy.

 

McGregor’s Theory X/Theory Y

Douglas McGregor (1906–1967), who served as president of Antioch College and then on the faculty of the Massachusetts Institute of Technology, was one of the great advocates of humane and democratic management. At Antioch, McGregor tested his theories of democratic management. He noted that behind every managerial decision or action are assumptions about human behavior. He chose the simplest terms possible with which to express them, designating one set of assumptions as Theory X and the other as Theory Y.84

 

Theory X managers hold traditional views of direction and control, such as the following:

 

The average human being has an inherent dislike of work and will avoid it if possible. This assumption has deep roots, beginning with the punishment of Adam and Eve and their banishment into a world where they had to work for a living. Management’s use of negative reinforcement and the emphasis on “a fair day’s work” reflect an underlying belief that management must counter an inherent dislike for work.85

 

Because of their dislike of work, most people must be coerced, controlled, directed, or threatened with punishment to get them to put forth adequate effort to achieve organizational objectives. Their dislike of work is so strong that even the promise of rewards is not generally enough to overcome it. People will accept the rewards and demand greater ones. Only the threat of punishment will work.86

 

The average human being prefers to be directed, wishes to avoid responsibility, has relatively little ambition, and wants security above all. This assumption of the “mediocrity of the masses” is rarely expressed so bluntly. Although much lip service is paid to the “sanctity” of the worker and of human beings in general, many managers reflect this assumption in practice and policy.

 

Theory Y managers take the opposite view of the worker:

 

The expenditure of physical and mental effort in work is as natural as play or rest. The average human being does not inherently dislike work; it may even be a source of satisfaction, to be performed voluntarily.

 

External control and the threat of punishment are not the only means for producing effort to achieve organizational objectives.

 

Commitment to objectives is a function of the rewards associated with their achievement. The most significant rewards—satisfaction of ego and self-actualization needs—can be direct products of effort directed to organizational objectives.

 

Under proper conditions, the average human being learns not only to accept but also to seek responsibility. In this view, the avoidance of responsibility, lack of ambition, and emphasis on security are general consequences of experience, not inherent human characteristics.

 

The capacity to exercise a high degree of imagination, ingenuity, and creativity in the solution of organizational problems is widely, not narrowly, distributed in the population.

 

Under the conditions of modern industrial life, the intellectual potential of the average human being is only partially utilized.

 

What’s interesting to note here are the parallels that you may be realizing between a closed-model organization and McGregor’s Theory X, and an open-model organization and McGregor’s Theory Y.

 

Ouchi’s Theory Z

William Ouchi popularized Theory Z, which essentially takes McGregor’s Theory Y further by emphasizing the importance of participatory decision making in organizations.87 Core elements of Theory Z include collective decision making, job security, generalized (vs. specialized) understanding of organizational goals, an emphasis on training and performance improvement, concern for the employee, and individual responsibility for shared accomplishments.88 As you already may have noted, open-model organizations are congruent not only with McGregor’s Theory Y conceptions of human behavior but also with Ouchi’s Theory Z approach to management.

 

Herzberg’s Motivation-Hygiene Theory

During the 1950s, Frederick Herzberg conducted a series of studies in which he asked workers, primarily engineers, to describe the times when they felt particularly good and particularly bad about their jobs. The respondents identified several sources of satisfaction and dissatisfaction in their work. Then, from these findings, Herzberg isolated two vital factors found in all jobs: maintenance or hygiene factors and motivational factors.

 

Maintenance or hygiene factors are those elements in the work environment that meet an employee’s hedonistic need to avoid pain. These factors include the necessities of any job (e.g., adequate pay, benefits, job security, decent working conditions, supervision, interpersonal relations). Hygiene factors do not satisfy or motivate; they set the stage for motivation. They are, however, a major source of dissatisfaction when they are inadequate.89

 

Motivational factors are those psychosocial factors that provide intrinsic satisfaction and serve as an incentive for people to invest more of their time, talent, energy, and expertise in productive behavior. Examples include achievement, recognition, responsibility, the work itself, advancement, and potential for growth. The absence of motivators does not necessarily produce job dissatisfaction.90

 

Although these needs are obviously related, they represent totally different dimensions of satisfaction.

 

Expectancy and Contingency Theories

In the 1960s, expectancy theory was developed, focusing on certain beliefs that can influence effort and performance. As examples, if an employee believes that his or her efforts will result in a certain level of performance leading to a desired reward, then that employee will likely take action accordingly. Of course, the opposite is true as well: If an employee perceives a low correlation between effort or performance and reward, then the result may well be inaction. Essentially, expectancy theory holds that employees will do what their managers or organizations want them to do if the following are true:

 

The task appears to be possible (employees believe that they possess the necessary competence).

 

The reward (outcome) offered is seen as desirable by the employees (intrinsic rewards come from the job itself; extrinsic rewards are supplied by others).

 

Employees believe that performing the required behavior or task will bring the desired outcome.

 

There is a good chance that better performance will bring greater rewards.91

 

Expectancy theory will work for an organization that specifies what behaviors it expects from people and what the rewards or outcomes will be for those who exhibit such behaviors. Rewards may be pay increases, time off, chances for advancement, a sense of achievement, or other benefits. Managers and organizations can find out what their employees want and see to it that they are provided with the rewards they seek. Walter Newsom92 said that the reality of the expectancy theory can be summarized by the “nine Cs”: (1) capability (does a person have the capability to perform well?), (2) confidence (does a person believe that he or she can perform the job well?), (3) challenge (does a person have to work hard to perform the job well?), (4) criteria (does a person know the difference between good and poor performance?), (5) credibility (does a person believe the manager will deliver on promises?), (6) consistency (do subordinates believe that all employees receive similar preferred outcomes for good performance, and vice versa?), (7) compensation (do the outcomes associated with good performance reward the employee with money and other types of rewards?), (8) cost (what does it cost a person, in effort and outcomes foregone, to perform well?), and (9) communication (does the manager communicate with the subordinate?).

 

Later, in the 1970s, Morse and Lorsch built on McGregor’s and Herzberg’s theories with their theory of motivation called contingency theory. This theory sought to determine the fit between the organization’s characteristics and its tasks and the motivations of individuals. The basic components of the contingency theory are that (1) among people’s needs is a central need to achieve a sense of competence, (2) the ways in which people fulfill this need will vary from person to person, (3) competence motivation is most likely to be achieved when there is a fit between task and organization, and (4) a sense of competence continues to motivate people even after competence is achieved. In essence, we all want to be competent in our work. Contingency theory contends that people performing highly structured and organized tasks perform better in Theory X organizations and that those who perform unstructured and uncertain tasks perform better under a Theory Y approach. This theory tells managers to tailor jobs to fit people or to give people the skills, knowledge, and attitudes they will need to become competent.93

 

Motivation through Job Enrichment

Motivation, among other desirable employee behaviors in an organization, can also be achieved by creating enriched jobs.94 Enriched jobs include the following five characteristics: (1) skill variety (the extent to which a job requires a number of different skills and talents), (2) task identity (the extent to which a job requires completion of an entire piece of work), (3) task significance (the impact of one’s work), (4) autonomy (the level of independence of one’s work), and (5) feedback (the extent of information the employee receives about effective performance).95

 

Redesigning jobs to emphasize the above five characteristics influences three psychological states, which can lead to higher levels of motivation, satisfaction, and productivity, as well as lower levels of employee absenteeism and turnover. These three critical work-related states include the following: (1) experienced meaningfulness of work, (2) experienced responsibility, and (3) knowledge of results.96 In the criminal justice system, a good example of a redesigned job is that of a community policing officer engaged in problem-solving, who when compared to an incident-driven traditional police officer may possess more of the desired elements of a redesigned job.

Preparing for Employees Now and in the Future: Generation Y

Changing Demographics and Mind-Set

American workers, although working longer, are aging and approaching retirement. In fact, over the next 20 years, 10,000 people will turn age 65 each day; 75 million baby boomers (people born between 1946 and 1964) are poised to retire and will leave large gaps in the workforce.97 Certain administrators of the criminal justice system—particularly those in police and corrections (i.e., jails, prisons, probation and parole) agencies—must be prepared for a literal “changing of the guard” that is being realized right now.98 They are already being replaced by persons born in what is termed Generation X, or Gen Xers (those born between 1965 and 1979), as well as the so-called Generation Y (sometimes termed the Millennials, or those born between 1980 and 2000).99

 

Gen Yers were raised in an environment where they received awards just for showing up. Their parents have emphasized self-esteem building and feelings of success rather than keeping score of winners and losers. Generation Y is more team oriented and the most technically literate workers ever to hit the job market; they also prefer to work to live, rather than live to work. Gen Yers think nothing of leaving their job for a year to work as a volunteer in Africa. They already give signs of viewing the workplace as a means to an end and do not allow their career and job title to define them. Gen Y employees want to find immediate fulfillment and respect at the workplace, and are not willing to wait 20 years to pay their dues. They expect educational opportunities both in and outside the job, a balanced work and play life, and recognition on the job.

 

Coming Challenges

How must justice administrators adapt their views and organizational cultures in order to meet these new employees of the future? Should they attempt to mold the Gen Y police officer or prison corrections officer to fit the traditional, “correct” attitude and ways of behaving at the work site? Or should the administrator change his or her approach to leadership in order to attract and keep these coming employees? Matt Kenyon suggests that Gen Yers can make significant contributions in the field of criminal justice, particularly in policing, but administrators must play to the characteristics and strengths of Millennials if they are to be successfully recruited and retained.100 For example, Kenyon suggests police departments develop mentorship programs for Millennials, based on survey research suggesting the Gen Yers tend to be more loyal to agencies when they offer training for leadership positions.101 In addition, Kenyon suggests that departments attempt to encourage conversation, which would allow Millennials to voice their opinions, which could improve departmental policies.102 Essentially, Kenyon is suggesting that police administrators think seriously about adjusting some traditional police structures to accommodate the ever-growing Millennial workforce.

 

Kelly Sharp offered five challenges for administrators in finding, training, and keeping these employees, as well as some recommendations for their body art and technological skills.103

 

Challenge 1: Finding Them—Think electronically. The agency must attract Gen Yers via social media, or some type of police blog if substantial recruitment is to be realized. The agency must have an up-to-date, attractive website and social media presence.

 

Challenge 2: Training Them—The agency’s training program must also be designed to keep Gen Yers, who were raised on video games and television and thus expect rapid access to information and will quickly become bored. Training should be interactive and entertaining, as well as educational, and include the ability to brainstorm with each other and to engage in problem-solving.

 

Challenge 3: Keeping Them—The workplace should be a fun, flexible environment. The days of “do it my way or hit the highway” management style will not suffice. While pay is important to the Gen Y employee, he or she is seeking an environment in which to learn and grow—and one that includes volunteerism and educational opportunities. Gen Yers also prefer feedback that is informal and immediate, so agencies should adjust their evaluation process accordingly.

 

Challenge 4: Body Art—Gen Y employees will likely display a very casual attitude toward unusual body art and piercings among their coworkers—a normal form of expression among Gen Yers. Therefore, the traditional militaristic, standardized look (and dress code) may be jeopardized when every applicant comes decorated with body art. Dress codes may thus have to be rewritten at some point, or at least allow the option of softening the more stringent requirements.

 

Challenge 5: Technology—Gen Y employees, being surrounded by technology since birth, cannot imagine life without it. Indeed, their approaching any task without technologies to use may well baffle them. They were also raised online and inundated with reality TV, so it is natural for them to wish to record and broadcast their lives. The Internet, their smart phones, and their iPods and tablets are viewed in the same manner as earlier generations viewed pen and pencil or typewriters. As a result, administrators may need to rethink policies that prohibit “surfing the Web at work.”

 

As baby boomers retire at rapid rates across criminal justice agencies, Gen Yers are being criticized for some of their “nontraditional” attitudes, such as impatience with existing hierarchies and social contracts that mandate respect between generations.104 But Althea Olson and Mike Wasilewski argue that the criticisms that some administrators have toward Gen Yers may be overly generalized and simply unfair.105 In fact, some of the attributes associated with Millennials might benefit and improve law enforcement, especially their proficiency with technology, creativity, and their questioning of tradition.

 

California POST’s Career Pipeline Program is one way to address an emerging “human resource crisis.”106 This program targets students in grades 5–8 and uses educators and criminal justice employees to teach the values of sportsmanship and citizenship along with vocation-based learning.107 While not a panacea, the Career Pipeline Program is an innovative attempt to create a “hook” into the law enforcement profession. But if one of these pipeline students ultimately finds his or her way into a POST academy, no one should be surprised if the student asks whether his or her police report must be fewer than 140 characters!

 

Becoming a Learning Organization

In sum, the criminal justice workplace is changing in dramatic ways. Understanding the Millennials is important not only for developing future leaders but also for basic workplace effectiveness and employee retention.

 

Agency administrators must promote what is termed a “learning organization” culture, where communication and collaboration are promoted so that everyone is engaged in identifying and solving problems. This culture will enable organizations of the future to continually experiment, improve, adapt to generational differences, and meet the challenges of a more complex role. The learning organization will prize equity, open information, reduced hierarchy, and a culture that encourages personnel being adaptive and seizing opportunities for growth and handling crises.108

 

David A. Tansik and James F. Elliott, Managing Police Organizations (Monterey, CA: Duxbury Press, 1981), p. 1.

 

2. Stephen P. Robbins, Organizational Theory: Structure, Design and Applications (Upper Saddle River, NJ: Prentice Hall, 1987).

 

3. Larry K. Gaines, John L. Worrall, Mittie D. Southerland, and John E. Angell, Police Administration, 2nd ed. (New York: McGraw-Hill, 2002), p. 8.

 

he Employment Relationship

Recruitment and Hiring

Numerous selection methods for hiring police and corrections officers have been tried over the years. Issues in recruitment, selection, and hiring also often involve internal promotions and assignments to special units, such as a special weapons team in a police agency. Requirements concerning age (e.g., the FBI will hire no one older than 37 years), height, weight, vision, education, and possession of a valid driver’s license have all been utilized over the years in criminal justice. In addition, tests are commonly used to determine intelligence, emotional suitability and stability (using psychological examinations and oral interviews), physical agility, and character (using polygraph examinations and extensive background checks).10 More recently, drug tests became a frequently used part of the employee screening process as well (drug tests are discussed more fully later).

 

The critical question for such tests is whether they validly test the types of skills needed for the job. A companion concern is whether the tests are used for discriminatory purposes or have an unequal impact on protected groups (e.g., minorities, the physically challenged). As a result of these considerations, a number of private companies provide valid, reliable examinations for use by the public sector.

 

Disparate Treatment

It should be emphasized that there is nothing in the law that states that an employer must hire or retain incompetent personnel. In effect, the law does not prohibit discrimination; thus, for positions that require driving, it is not unlawful to refuse to hire people who have a record of driving while intoxicated. What is illegal is to treat people differently because of their age, gender, sex, or other protected status, that is, disparate treatment. It is also illegal to deny equal employment opportunities to such persons, that is, disparate impact.11 Federal equal opportunity law prohibits the use of selection procedures for hiring or promotion that have a discriminatory impact on the employment opportunities of women, Hispanics, African Americans, or other protected classes. An example of overt discriminatory hiring is reflected in a court decision in 1987 arising out of a situation in a sparsely populated county in Virginia. Four women sued because they were denied positions as courtroom security officer, deputy, and civil process server because of their gender. Sheriffs had refused to hire the women, justifying their decision by contending that being male was a bona fide occupational qualifier (BFOQ) (i.e., in certain situations it is lawful and reasonable to discriminate because of a business necessity, such as a female corrections facility maintaining at least one female staff member on duty at all times to assist inmates in toileting, showering, and disrobing) for the positions and that because the positions were within the “personal staff” of the sheriff, they were exempt from the coverage of Title VII. The Fourth Circuit overturned a lower court decision, finding that the sheriff did not establish that gender was a BFOQ for the positions and that the positions were not part of the sheriff’s personal staff (the positions were not high level, policymaking, or advisory in nature). Thus, the refusal to hire the women violated Title VII.12 There may, however, be a “business justification” for a hiring policy even though it has a disparate impact. For example, in one case an employer required airline attendants to cease flying immediately on discovering they were pregnant. The court upheld the policy on the ground that pregnancy could affect one’s ability to perform routine duties in an aircraft, thereby jeopardizing the safety of passengers.13

 

A classic example of an apparent neutral employment requirement that actually had a disparate impact on gender, race, and ethnicity was the once-prevalent height requirement used by most public safety agencies. Minimum height requirements of 5 feet, 10 inches or above were often advertised and effectively operated to exclude most women and many Asians and Hispanics from employment.14 Such a requirement has gradually been superseded by a “height in proportion to weight” requirement.

 

Nonetheless, other existing physical agility tests serve to discriminate against women and small men with less upper-body strength. One wonders how many push-ups a police officer must do on the job or be able to do to perform his or her duties adequately, or how many 6-foot walls, ditches, and attics officers must negotiate. (Occasionally, preemployment physical abilities testing becomes ludicrous. For example, one of the authors once allowed a recruiter from a major western city to recruit students in an upper-level criminal justice course. The recruiter said the city’s physical test included scaling a 6-foot wall; however, he quickly pointed out that testing staff would boost all female applicants over it.)

 

Litigation is blossoming in this area. In a western city, a woman challenged the police department’s physical abilities test as discriminatory and not job related, prompting the agency to hire a Canadian consultant who developed a job-related preemployment agility test (currently used by the Royal Canadian Mounted Police and other agencies across Canada) based on data provided by officers and later computer analyzed for incorporation into the test. In other words, recruits were soon tested in terms of the physical demands placed on police officers in that specific community. (No push-ups or 6-foot walls are included.)15

 

Discrimination may also exist in promotions and job assignments. As an example of the former, a Nebraska female correctional center worker brought suit alleging that her employer violated her Title VII and equal protection rights by denying her a promotion. The woman was qualified for the higher-level position (assistant center manager for programming), and she also alleged that the center treated women inequitably and unprofessionally, that assertiveness in women was viewed negatively, and that women were assigned clerical duties not assigned to men. The court found that she was indeed denied a promotion because of her sex, in violation of Title VII and the equal protection clause of the Fourteenth Amendment; she was awarded back pay and front pay biweekly until a comparable position became available, general damages, and court costs.16

 

With respect to litigation in the area of job assignments, four female jail matrons who were refused assignments to correctional officer positions in Florida even though they had been trained and certified as jail officers were awarded damages. It was ruled that a state regulation prohibiting females in male areas of the jail was discriminatory without proof that gender was a BFOQ.17 However, a particular assignment may validly exclude one gender. An assignment to work as a decoy female prostitute demonstrates a business necessity for women.18

 

How Old Is “Too Old” in Criminal Justice?

State and public agencies are not immune from age discrimination suits, in which arbitrary age restrictions have been found to violate the law. In Florida, a police lieutenant with the state highway patrol with 29 years of service was forced by statute to retire at age 62. The Equal Employment Opportunity Commission brought suit, alleging that Florida’s statute violated the Age Discrimination in Employment Act (ADEA). The court held that age should not be a BFOQ because youthfulness is not a guarantee of public safety. Rather, a physical fitness standard would better serve the purpose of ensuring the ability to perform the tasks of the position.19

 

Indeed, the U.S. Supreme Court rejected mandatory retirement plans for municipal firefighters and police officers.20 Until 1985, the city of Baltimore had relied on a federal police officer and firefighter statute (5 U.S.C. 8335b), an exemption to the ADEA, to establish age limits for appointing and retiring its fire and police officers; the city also contended that age was a BFOQ for doing so. The U.S. Supreme Court said that although Congress had exempted federal employees from application of the ADEA, another agency cannot just adopt the same standards without showing an agency-specific need. Age is not a BFOQ for nonfederal firefighters (or, by extension, police officers). The Court also established a “reasonable federal standard” in its 1984 decision in EEOC v. Wyoming,21 in which it overturned a state statute providing for the mandatory retirement of state game wardens at age 55; it held that the ADEA did not require employers to retain unfit employees, only to make individualized determinations about fitness.

 

Criminal Justice and Affirmative Action

Probably no single employment practice has caused as much controversy as affirmative action—actions or policies favoring persons or groups who have suffered from discrimination, particularly in employment or education. The very words bring to mind visions of quotas and of unqualified people being given preferential hiring treatment.22 Indeed, quotas have been at the center of legal, social, scientific, and political controversy for more than four decades.23 However, the reality of affirmative action is substantially different from the myth; as a general rule, affirmative action plans give preferred treatment only to affected groups when all other criteria (e.g., education, skills) are equal.24

 

The legal question (and to many persons, a moral one) that arises from affirmative action is, When does preferential hiring become reverse discrimination (where, it is argued, the aforementioned affirmative action policies have resulted in unfair treatment for members of majority groups)? The leading case here is Bakke v. Regents of the University of California25 in 1978, in which Allan Bakke was passed over for medical school admission at the University of California, Davis, partly because the school annually set aside a number of its 100 medical school admissions slots for “disadvantaged” applicants. The Supreme Court held, among other things, that race could be used as a criterion in selection decisions, but it could not be the only criterion.

 

In a series of cases beginning in 1986,26 the Supreme Court considered the development and application of affirmative action plans, establishing a two-step inquiry that must be satisfied before an affirmative action plan can be put in place. A plan must have (1) a remedial purpose to correct past inequities, and (2) there must be a manifest imbalance or significant disparity to justify the plan. The Court, however, emphasized that such plans cannot completely foreclose employment opportunities to nonminority or male candidates.

 

The validity of such plans is generally determined on a case-by-case basis. For example, the District of Columbia Circuit Court held in 1987 that an affirmative action plan covering the promotion of African Americans to management positions in the police department was justified because only 174 of the 807 positions (22 percent) above the rank of sergeant were filled by African American in a city where 60 percent of the labor market was African American.27 Twenty-one past and present nonminority male detectives of the Metropolitan Police Department who were passed over for promotion challenged the department’s voluntary affirmative action plan designed to place “special emphasis” on the hiring and advancement of females and minorities in those employment areas where an “obvious imbalance” in their numbers existed.28

 

The plaintiffs believed that their failure to be promoted was attributable to illegal preferential treatment of African Americans and women (reverse discrimination) that violated their rights under Title VII and the due process clause of the Fifth Amendment. The court held that the nonminority and male employees of the department failed to prove that the plan was invalid; a considerable body of evidence showed racial and sexual imbalance at the time the plan was adopted. Also, the plan did not unnecessarily trammel any legitimate interests of the nonminority or male employees because it did not call for displacement or layoff and did not totally exclude them from promotion opportunities.29

 

In summary, then, whenever a criminal justice employer wishes to implement and maintain job requirements, they must be job related. Furthermore, whenever a job requirement discriminates against a protected class, it should have a strong legitimate purpose and be the least restrictive alternative. Finally, attempts to remedy past hiring inequities by such means as affirmative action programs need substantial justification to avoid reverse discrimination.30

 

Property Rights in Employment

The Fourteenth Amendment to the U.S. Constitution provides in part that

 

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.

 

Furthermore, the Supreme Court has set forth four elements of a due process claim under Section 1983: (1) A person acting under color of state law (2) deprived an individual (3) of constitutionally protected property (4) without due process of law.31

 

A long line of court cases has established the legal view that public employees have a property interest in their employment. This flies in the face of the old view that employees served “at will” or until their employer, for whatever reason, no longer needed their services. The Supreme Court has provided some general guidance on how the question of a constitutionally protected property interest is to be resolved:

 

To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined [emphasis added].32

 

The Court has also held that employees are entitled to both a pretermination hearing (setting forth the reasons and supporting evidence prompting the proposal to terminate the employee) and a posttermination notice,33 as well as an opportunity to respond, and that state legislators are free to choose not to confer a property interest in public employment.

 

The development of a property interest in employment has an important ramification: It means that due process must be exercised by a public entity before terminating or interfering with an employee’s property right. What has been established, however, is that a probationary employee has little or no property interest in employment; for example, the Ninth Circuit held that a probationary civil service employee ordinarily has no property interest and could be discharged without a hearing or even “good cause.” In that same decision, however, the court held that a woman who had passed her 6-month probationary period and who had then been promoted to a new position for which there was a probationary period had the legitimate expectation of continued employment.34

 

Normally, however, policymaking employees (often called exempt appointments) possess an automatic exception to the contemporary property interest view. These personnel, often elected agency heads, are generally free to hire and fire those employees who are involved in the making of important decisions and policy. Examples of this area include new sheriffs who appoint undersheriffs and wardens who appoint deputy wardens. These subordinate employees have no property interest in their positions and may be asked at any time to leave the agency or revert back to an earlier rank.

 

The property right in one’s employment does not have to involve discipline or discharge to afford an employee protections. The claim of a parole officer that he was harassed, humiliated, and interfered with in a deliberate attempt to remove him from his position established a civil rights action for deprivation of property.35 This decision, against the Illinois Department of Corrections, resulted from allegations that the department engaged in “a deliberate and calculated effort to remove the plaintiff from his position by forcing him to resign, thereby making the protections of the personnel code unavailable to him.” As a result, the plaintiff suffered anxiety and stress and eventually went on disability status at substantially reduced pay.36

 

The key questions, then, once a property right is established, are: (1) What constitutes adequate grounds for interference with that right and (2) what is adequate process to sustain that interference?37

 

Pay and Benefits

The Fair Labor Standards Act (FLSA) has had a major impact on criminal justice agencies. One observer referred to the FLSA as the criminal justice administrator’s “worst nightmare come true.”38 Enacted in 1938 to establish minimum wages and to require overtime compensation in the private sector, amendments were added in 1974 extending its coverage to state and local governmental employees and including special work period provisions for police and fire employees. In 1976, however, the U.S. Supreme Court ruled that the extension of the Act into traditional local and state governmental functions was unconstitutional.39 In 1985, the Court reversed itself, bringing local police employees under the coverage of the FLSA. In this major (and costly) decision, Garcia v. San Antonio Transit Authority,40 the Court held, 5 to 4, that Congress could impose the requirements of the FLSA on state and local governments.

 

Criminal justice operations take place 24 hours per day, 7 days per week, and often require overtime and participation in off-duty activities such as court appearances and training sessions. The FLSA comes into play when overtime salaries must be paid. It provides that an employer must pay employees time and a half for all hours worked over 40 per week. Overtime must also be paid to personnel for all work in excess of 43 hours in a 7-day cycle or 171 hours in a 28-day period. Public safety employees may accrue a maximum of 240 hours of compensatory or “comp” time, which, if not utilized as leave, must be paid on separation from employment at the employee’s final rate of pay or at the average pay over the last 3 years, whichever is greater.41 Furthermore, employers usually cannot require employees to take compensatory time in lieu of cash.

 

A recent decision by the U.S. Supreme Court favored administrators in this regard, however. A county in Texas became concerned that after employees reached their cap on comp time accrued, it would be unable to afford to pay them for overtime worked. So, the county sought to reduce accrued comp time and implemented a policy under which the employees’ supervisor set a maximum number of compensatory hours that could be accumulated. When an employee’s accrued amount of comp time approached that maximum, the employee would be asked to take some compensatory time off so as to reduce his or her number of comp hours. If the employee did not do so voluntarily, the supervisor would order the employee to use his or her comp time at specified times. This policy was challenged in the Court by 127 deputy sheriffs. The Court held that nothing in the FLSA prohibited employers from instituting such a policy.42

 

An officer who works in the night shift must now receive pay for attending training or testifying in court during the day. Furthermore, officers who are ordered to remain at home in anticipation of emergency actions must be compensated. Notably, however, the FLSA’s overtime provisions do not apply to persons employed in a bona fide executive, administrative, or professional capacity. In criminal justice, the Act has generally been held to apply to detectives and sergeants but not to those of the rank of lieutenant and above.

 

A companion issue with respect to criminal justice pay and benefits is that of equal pay for equal work. Disparate treatment in pay and benefits can be litigated under Title VII or statutes such as the Equal Pay Act or the equal protection clause. An Ohio case involved matron/dispatchers who performed essentially the same job as jailers but were paid less. This was found to be in violation of the Equal Pay Act and, because discriminatory intent was found, Title VII.43

 

Other criminal justice employee benefits are addressed in Title VII, the ADEA, and the Pregnancy Discrimination Act (PDA). For example, it is illegal to provide less insurance coverage for a female employee who is more likely to use maternity leave or for an older employee who is more liable to use more coverage. In addition, an older person or a woman could not be forced to pay higher pension contributions because he or she might be paying in for a shorter period of time or would be expected to live longer. Regarding pregnancy, the PDA does not require an employer to discriminate in favor of a pregnancy-related condition. It demands only that the employer not treat pregnancy differently from any other temporary medical condition. For example, if an agency has a 6-month leave policy for officers who are injured or ill from off-duty circumstances (on-duty circumstances would probably be covered by workers’ compensation), that agency would have to provide 6 months’ leave (if needed) for a pregnancy-related condition.44

 

Criminal Justice and a Safe Workplace

It is unclear what duties are owed by public employers to their employees in providing a safe workplace. Federal, state, and local governments are exempted from the coverage of the Occupational Safety and Health Act (OSHA), in 29 U.S.C. 652. Nonetheless, criminal justice work is often dangerous, involving the use of force and often occurring in locations outside governmental control. Therefore, workplace safety issues in criminal justice are more likely to revolve around adequacy of training and supervision than physical plants.45

 

The Supreme Court has noted the unique nature and danger of public service employment. In one case, the Court specifically stated that an employee could not bring a Section 1983 civil rights action alleging a workplace so unsafe that it violated the Fourteenth Amendment’s due process clause. In this matter, a sewer worker was asphyxiated while clearing a sewer line. His widow alleged that the city knew the sewer was dangerous and that the city had failed to train or supervise the decedent properly.46

 

Other federal courts, especially the federal circuits, however, have ruled inconsistently on the safe workplace issue. One federal circuit held that a constitutional violation could be brought if it was proven that the city actively engaged in conduct that was “deliberately indifferent” to the employee’s constitutional rights.47

 

However, the Fifth Circuit held differently in a Louisiana case, based on a failure to comply with a court order to have three officers on duty at all times in a prison disciplinary unit.48 Here, a prison correctional officer in Baton Rouge was the only guard on a dangerous cellblock. While attempting to transfer a handcuffed inmate, the guard got into a scuffle with the inmate and was injured, although not severely. However, he claimed that he received insufficient medical attention and that as a result he became permanently disabled and that the institution “consciously” and with wanton disregard for his personal safety conspired to have him work alone on the cellblock. He invoked 42 U.S.C. 1983 in his charges, claiming that the institution acted in an indifferent, malicious, and reckless manner toward him, and that he suffered “class-based discrimination.” The court held that the guard had no cause of action (no federal or constitutional grounds for litigation).

 

Liability for an employee’s injury, disability, or death is a critical concern for criminal justice agencies. In particular, police and correctional officers often work in circumstances involving violent actions. Although state workers’ compensation coverage, disability pensions, life insurance, and survivor pensions are designed to cover such tragedies, such coverage is typically limited and only intended to be remedial. On the other hand, civil tort actions in such cases can have a devastating impact on governmental budgets. Clearly, this is a difficult and costly problem to resolve. It is an area with moral dilemmas as well. For example, what should be done with a prison intelligence unit that has knowledge of an impending disturbance but fails to alert its officers (who are subsequently injured)? And, might a police department with knowledge that its new police vehicles have defective brakes fail to take immediate action for fear that its officers will refuse to drive the vehicles, thus reducing available personnel?

Constitutional Rights of Criminal Justice Employees

Freedom of Speech and Association

Many criminal justice executives have attempted to regulate what their employees say to the public; executives develop and rely on policies and procedures designed to govern employee speech. On occasion those restrictions will be challenged; a number of court decisions have attempted to define the limits of criminal justice employees’ exercise of free speech.

 

Although the right of freedom of speech is one of the most fundamental of all rights of Americans, the Supreme Court has indicated that “the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.”50 Thus, the state may impose restrictions on its employees that it would not be able to impose on the citizenry at large; however, these restrictions must be reasonable.51

 

There are two basic situations in which a police regulation may be found to be an unreasonable infringement on the free speech interests of officers.52 The first occurs when the action is overly broad. A Chicago Police Department rule prohibiting “any activity, conversation, deliberation, or discussion which is derogatory to the Department” is a good example, because such a rule obviously prohibits all criticism of the agency by its officers, even in private conversation.53 A similar situation arose in New Orleans, where the police department had a regulation that prohibited a police officer from making statements that “unjustly criticize or ridicule, or express hatred or contempt toward, or which may be detrimental to, or cast suspicion on the reputation of, or otherwise defame, any person.”54 The regulation was revised and later ruled constitutional.55

 

The second situation in which free speech limitations may be found to be unreasonable is in the way in which the governmental action is applied. Specifically, a police department may be unable to demonstrate that the statements by an officer being disciplined actually adversely affected the operation of the department. A Baltimore regulation prohibiting public criticism of police department action was held to have been unconstitutionally applied to a police officer who was president of the police union and had stated in a television interview that the police commissioner was not leading the department effectively56 and that “the bottom is going to fall out of this city.”57

 

A related area is that of political activity. The most protected type of speech is political speech. However, governmental agencies may restrict the political behavior of their employees—and the U.S. Supreme Court has upheld the constitutionality of laws that do so.58 Exhibit 3.2 discusses how the Hatch Act operates at the federal, state, and local levels.

 

Exhibit 3.2 Not “Politics As Usual”: The Hatch Acts59

All federal executive branch and civil service employees (except the president and vice president) are subject to the Hatch Act, which limits partisan political activities of governmental employees. Federal employees who are “further restricted”—working in several key federal law enforcement agencies—cannot run for office in a partisan election, solicit, or encourage political activity of those doing business with their agency, or use their official authority to affect the outcome of an election. In addition, political contributions may not be received from subordinates, and covered employees may not participate in political fund-raising, canvass for votes, or endorse or oppose a candidate in political literature. They may, however, vote in all partisan elections and express opinions on political topics, work in nonpartisan campaigns, attend political meetings, donate money to political parties and candidates, and sign nominating petitions.

 

State and local agency employees are also covered by the law, often known as “Little Hatch Acts,” if they perform duties connected to programs financed totally or in part by federal funds—that is, in programs funding homeland security, training, employment, overtime, community development, emergency preparedness. Such employees may, however, run for public office in nonpartisan elections, hold office in political organizations, and actively campaign for candidates for public office (as well as engage in drafting speeches, write letters, contribute money to political organizations, and attend political fund-raisers).

 

The Office of Special Counsel investigates alleged Hatch Act violations by federal employees, and the state or local levels of government will investigate those of their employees.

 

Although it may appear that Supreme Court decisions have lain to rest all controversy in this area, such has not been the case. Two recent cases show lower courts opting to limit the authority of the state to restrict political activities of their employees. In Pawtucket, Rhode Island, two firefighters ran for public office (mayor and city council member), despite a city charter provision prohibiting all political activity by employees (except voting and privately expressing their opinions). The Rhode Island Supreme Court issued an injunction against enforcing the charter provision, on the ground that the provision applied only to partisan political activities.60 In a similar Boston case, however, the court upheld the police department rule on the basis that whether the partisan–nonpartisan distinction was crucial was a matter for legislative or administrative determination.61

 

In a Michigan case, a court declared unconstitutional, for being overly broad, two city charter provisions that prohibited contributions to or solicitations for any political purpose by city employees.62 Clearly, although the Supreme Court seems to be supportive of governmental attempts to limit the political activities of its employees, lower courts seem just as intent to limit the Supreme Court decisions to the facts of those cases.

 

Could a police officer be disciplined, even discharged, because of his or her political affiliations? The Supreme Court ruled on that question in a case arising out of the Sheriff’s Department in Cook County, Illinois.63 The newly elected sheriff, a Democrat, fired the chief deputy of the process division and a bailiff of the juvenile court because they were Republicans. The Court ruled that it was a violation of the employees’ First Amendment rights to discharge them from nonpolicymaking positions solely on the basis of their political party affiliation.64

 

Nonpolitical associations are also protected by the First Amendment; however, it is common for police departments to prohibit officers from associating with known felons or others of questionable reputation, on the ground that “such associations may expose an officer to irresistible temptations to yield in his obligation to impartially enforce the law, and . . . may give the appearance that the police are not themselves honest and impartial enforcers of the law.”65

 

However, rules against association, as with other First Amendment rights, must not be overly broad. A Detroit Police Department regulation prohibiting associating with known criminals or persons charged with crimes, except in connection with regular duties, was declared unconstitutional. The court held that it prohibited some associations that had no bearing on the officers’ integrity or public confidence in the officer (e.g., an association with a fellow church member who had been arrested on one occasion years ago, or the befriending of a recently convicted person who wanted to become a productive citizen).66

 

Occasionally, a criminal justice employee will be disciplined for improper association even though it was not demonstrated that the association had a detrimental effect on the employee or the agency. For example, a Maryland court held that a fully qualified police officer who was a nudist could not be fired simply on that basis.67 On the other hand, a court upheld the discharge of an officer who had had sexual intercourse at a party with a woman he knew to be a nude model at a local “adult theater of known disrepute.”68

 

An individual has a fundamental interest in being free to enter into certain intimate or private relationships; nevertheless, freedom of association is not an absolute right. For example, a federal district court held that the dismissal of a married police officer for living with another man’s wife was a violation of the officer’s privacy and associational rights.69 Other courts, however, have found that off-duty sexual activity can affect job performance. When a married city police officer allegedly had consensual, private, nonduty, heterosexual relations with single adult women other than his wife in violation of state law criminalizing adultery, the adultery was not a fundamental right. Thus, the officer’s extramarital affairs were not protected and the intimate relationship affected the public’s perception of the agency.70

 

In another case, a police officer became involved with a city dispatcher who was the wife of a sergeant in the same department. The adulterous officer became eligible for promotion and scored high on the exam. The chief, confirming via an investigation that the officer had in fact been involved in an adulterous relationship with the dispatcher, refused on that basis to promote the officer, as he “would not command respect and trust” from rank-and-file officers and would adversely affect the efficiency and morale of the department. The Texas Supreme Court held that the officer’s private, adulterous sexual conduct was not protected by state or federal law; the U.S. Supreme Court denied the appeal.71

 

Finally, the U.S. Court of Appeals for the Sixth Circuit held that a police department could conduct an investigation into the marital sexual relations of a police officer accused of sexual harassment.72 In this case, there were allegations that the married officer had sexually harassed coworkers and had dated a gang member’s mother. The department investigated the accusations, and the officer and his wife brought a Section 1983 action, alleging that the investigation violated their constitutional rights to privacy and freedom of association. The court held that the agency’s investigation was reasonable, and, furthermore, that the police department would have been derelict in not investigating the matter.

 

In summary, police administrators have the constitutional authority to regulate employees’ off-duty associational activities, including off-duty sexual conduct that involves a supervisory–subordinate relationship and associations that impact adversely employees’ ability to do their jobs or impair the effectiveness and efficiency of the organization.73

 

The First Amendment’s reach also includes means of expression other than verbal utterances. The Supreme Court upheld the constitutionality of a regulation of the Suffolk County, New York, Police Department that established several grooming standards (regarding hair, sideburn, and moustache length) for its male officers. In this case, Kelley v. Johnson,74 is discussed below.

 

Searches and Seizures

The Fourth Amendment to the U.S. Constitution protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In an important case in 1967, the Supreme Court held that the amendment also protected individuals’ reasonable expectations of privacy, not just property interests.75

 

The Fourth Amendment usually applies to police officers when they are at home or off duty in the same manner as it applies to all citizens. Because of the nature of their work, however, police officers can be compelled to cooperate with investigations of their behavior when ordinary citizens would not. Examples include searches of equipment and lockers provided by the department to the officers. There, the officers have no expectation of privacy that affords or merits protection.76 Lower courts have established limitations on searches of employees themselves. The rights of prison authorities to search their employees arose in a 1985 Iowa case, in which employees were forced to sign a consent form for searches as a condition of hire; the court disagreed with such a broad policy, ruling that the consent form did not constitute a blanket waiver of all Fourth Amendment rights.77

 

Police officers may also be forced to appear in a lineup, a clear “seizure” of his or her person. Appearance in a lineup normally requires probable cause, but a federal appeals court upheld a police commissioner’s ordering of 62 officers to appear in a lineup during an investigation of police brutality, holding that “the governmental interest in the particular intrusion [should be weighed] against the offense to personal dignity and integrity.” Again, the court cited the nature of the work, noting that police officers do “not have the full privacy and liberty from police officials that [they] would otherwise enjoy.”78

 

Self-Incrimination

The Supreme Court has also addressed questions concerning the Fifth Amendment as it applies to police officers who are under investigation. In Garrity v. New Jersey,79 a police officer was ordered by the attorney general to answer questions or be discharged. The officer testified that information obtained as a result of his answers was later used to convict him of criminal charges. The Supreme Court held that the information obtained from the officer could not be used against him at his criminal trial because the Fifth Amendment forbids the use of coerced confessions.

 

In Gardner v. Broderick,80 a police officer refused to answer questions asked by a grand jury investigating police misconduct because he believed his answers might tend to incriminate him. The officer was terminated from his position as a result. The Supreme Court ruled that the officer could not be fired for his refusal to waive his constitutional right to remain silent. The Court added, however, that the grand jury could have forced the officer to answer or be terminated for his refusal provided that the officer was informed that his answers would not be used against him later in a criminal case.

 

As a result of these decisions, it is proper to fire a police officer who refuses to answer questions that are related directly to the performance of his or her duties provided that the officer has been informed that any answers may not be used later in a criminal proceeding. Although there is some diversity of opinion among lower courts on the question of whether an officer may be compelled to submit to a polygraph examination, the majority of courts that have considered the question have held that an officer can be required to take the examination.81

 

Religious Practices

Criminal justice work requires that employees of police, corrections, and even some court organizations be available and on duty 24 hours per day, 7 days a week. Although it is not always convenient or pleasant, such shift configurations require that many criminal justice employees work weekends, nights, and holidays. It is generally assumed that one who takes such a position agrees to work such hours and to abide by other such conditions (e.g., carrying a weapon, as in a policing position); it is usually the personnel with the least seniority on the job who must work the most undesirable shifts.

 

There are occasions when one’s religious beliefs are in direct conflict with the requirements of the job. Conflicts can occur between work assignments and attendance at religious services or periods of religious observance. In these situations, the employee may be forced to choose between his or her job and religion. One of the authors is acquainted with a Midwestern state trooper whose religion posed another related cause of job–religion conflict: His religion (with which he became affiliated after being hired as a trooper) banned the carrying or use of firearms. The officer chose to give up his weapon, and thus his job. A number of people have chosen to litigate the work–religion conflict rather than accept agency demands.

 

Title VII of the Civil Rights Act of 1964 prohibits religious discrimination in employment. The Act defines religion as including “all aspects of religious . . . practice, as well as belief, unless an employer . . . is unable to reasonably accommodate to an employee’s . . . religious . . . practice without undue hardship on the conduct of the employer’s business.”82 Thus, Title VII requires reasonable accommodation of religious beliefs, but not to the extent that the employee has complete freedom of religious expression.83 For example, an Albuquerque firefighter was a Seventh Day Adventist and refused to work Friday or Saturday nights because such shifts interrupted his honoring the Sabbath. He refused to trade shifts or take leave with (as vacation) or without pay, even though existing policy permitted his doing so. Instead, he said that the department should make such arrangements for coverage or simply excuse him from his shifts. The department refused to do either, discharging him. The court ruled that the department’s accommodations were reasonable and that no further accommodation could be made without causing an undue hardship to the department. His firing was upheld. The court emphasized, however, that future decisions would depend on the facts of the individual case.84

 

Religious practices can also conflict with state law. For example, a circuit court held that the termination of a Mormon police officer for practicing plural marriage (polygamy) in violation of state law was not a violation of his right to freely exercise his religious beliefs.85

 

Another issue relating to religious expression concerns the display of religious items on one’s uniform. In a Texas case, a police veteran wished to wear a small gold cross pin on his uniform as well as on plainclothes attire “as a symbol of his evangelical Christianity.” The agency forbade officers from doing so unless approved by the police chief; the chief offered the plaintiff several other accommodations, such as wearing a cross ring or bracelet instead of the pin, or wearing the pin under his uniform shirt or collar. Refusing such accommodations, the plaintiff was fired for insubordination. The Fifth Circuit Court of Appeals upheld his firing, agreeing that a police uniform “is not a forum for . . . expressing one’s personal beliefs,” that the constitution is not violated when a department bars religious symbols, and that the plaintiff had “myriad alternative ways to manifest this tenet of his religion.”86

 

Finally, policies prohibiting the wearing of beards have also been challenged on First Amendment grounds. Two devout Sunni Muslim police officers challenged the Newark, New Jersey, Police Department’s banning of beards, arguing that in their religion the lack of a beard is a “major sin”; they also noted that the department had made several medical exemptions to the policy (some officers were allowed to grow beards because of a skin condition called folliculitis barbae, which affects up to 60 percent of African American men; this condition is exacerbated by shaving). The Third Circuit Court of Appeals accepted the plaintiff’s arguments and struck down the no-beards provision as it applied to the Muslim officers. The court determined that because the department granted exemptions for nonreligious reasons, closer scrutiny was warranted; the court concluded that the policy simply could not stand up under that scrutiny.87

 

Sexual Misconduct

To be blunt, criminal justice employees have ample opportunity to become engaged in sexual affairs, incidents, trysts, dalliances, or other behavior that is clearly sexual in nature. History and news accounts have shown that wearing a uniform, occupying a high or extremely sensitive position, or being sworn to maintain an unblemished and unsullied lifestyle does not mean that all people will do so for all time. Some people are not bashful about their intentions: Several officers have told us they aspired to police work because they assumed that wearing a uniform made them sexually irresistible. On the civilian side, there are police “groupies” who chase police officers and others in uniform.

 

Instances of sexual impropriety in criminal justice work can range from casual flirting while on the job to becoming romantically involved with a foreign agent whose principal aim is to learn delicate matters of national security. There have been all manner of incidents between those extremes, including the discipline of female police officers who posed nude in magazines. Some major police departments have even been compelled by their mayors to recruit officers for their sexual preference (i.e., homosexuality).

 

This is a delicate area, one in which discipline can be and has been meted out as police managers attempt to maintain high standards of officer conduct. It has also resulted in litigation because some officers believe that their right to privacy has been intruded on.

 

Officers may be disciplined for impropriety involving adultery and homosexuality. Most court decisions of the 1960s and 1970s agreed that adultery, even when involving an off-duty police officer and occurring in private, could result in disciplinary action88 because such behavior brought debilitating criticism on the agency and undermined public confidence in the police. The views of the courts in this area, however, seem to be moderating with the times. A case involving an Internal Revenue Service agent suggested that to uphold disciplinary action for adultery, the government would have to prove that the employing agency was actually discredited.89 The U.S. Supreme Court more recently appeared to be divided on the issue of extramarital sexual activity in public employment. In 1984, the Sixth Circuit held that a Michigan police officer could not be fired simply because he was living with a woman to whom he was not married (a felony under Michigan law).90

 

The issue of homosexual activity as a ground for termination of public employees arose in an Oklahoma case, in which a state law permitted the discharge of schoolteachers for engaging in “public homosexual activity.”91 A lower court held the law to be unconstitutionally restrictive, and the Supreme Court agreed.92 Another federal court held that the firing of a bisexual guidance counselor did not deprive the counselor of her First or Fourteenth Amendment rights. The counselor’s discussion of her sexual preferences with teachers was not protected by the First Amendment.93

 

Residency Requirements

In the 1970s and 1980s, interest in residency requirements for governmental employees heightened, especially in communities experiencing economic difficulties.94 Many governmental agencies now specify that all or certain members in their employ must live within the geographical limits of their employing jurisdiction. In other words, employees must reside within the county or city of employment. Such residency requirements have often been justified by employing agencies, particularly in criminal justice, on the grounds that employees should become familiar with and be visible in the jurisdiction of employment and that they should reside where they are paid by the taxpayers to work. Perhaps the strongest rationale given by employing agencies is that criminal justice employees must live within a certain proximity of their work in order to respond quickly in the event of an emergency.

 

Prior to 1976, numerous challenges to residency requirements were raised, even after the Michigan Supreme Court ruled that Detroit’s residency requirement for police officers was not irrational.95 In 1976, when the U.S. Supreme Court held that Philadelphia’s law requiring firefighters to live in the city did not violate the Constitution, the challenges subsided. The cases now seem to revolve around the question of what constitutes residency. Generally, the police officer must demonstrate that he or she spends a substantial amount of time at the in-city residence.96 Strong arguments have been made, however, that in areas where housing is unavailable or is exceptionally expensive, a residency requirement is unreasonable.97

 

Moonlighting

The courts have traditionally supported criminal justice agencies placing limitations on the amount and kind of outside work their employees can perform.98 For example, police department restrictions on moonlighting range from a complete ban on outside employment to permission to engage in certain forms of work, such as investment counseling, private security, and teaching police science courses. The rationale for agency limitations is that “outside employment seriously interferes with keeping the [police and fire] departments fit and ready for action at all times.”99

 

In a Louisiana case, however, firefighters successfully provided evidence that moonlighting had been a common practice for 16 years before the city banned it. No firefighters had ever needed sick leave as a result of injuries acquired while moonlighting, there had never been a problem locating off-duty firefighters to respond to an emergency, and moonlighting had never caused a level of fatigue that was serious enough to impair a firefighter’s work. With this evidence, the court invalidated the city ordinance that had sought to prohibit moonlighting.100

 

Misuse of Firearms

Because of the need to defend themselves or others and be prepared for any exigency, police officers are empowered to use lethal force when justified. Although restricted by the Supreme Court’s 1985 decision in Tennessee v. Garner101 (deeming the killing of unarmed, nondangerous suspects as unconstitutional), the possession of, and familiarity with, firearms remains a central aspect of the contemporary officer’s role and function. Some officers take this responsibility to the extreme, however, becoming overly reliant on and consumed with their firepower.

 

Thus, police agencies typically attempt to restrain the use of firearms through written policies and frequent training in “Shoot/Don’t Shoot” scenarios. Still, a broad range of potential and actual problems remains with respect to the use and possible misuse of firearms, as the following shows.

 

In the face of extremely serious potential and real problems and the omnipresent specter of liability suits, police agencies generally have policies regulating the use of handguns and other firearms by their officers, both on and off duty. The courts have held that such regulations need only be reasonable and that the burden rests with the disciplined police officer to show that the regulation was arbitrary and unreasonable.102 The courts also grant considerable latitude to administrators in determining when their firearms regulations have been violated.103 Police firearms regulations tend to address three basic issues: (1) requirements for the safeguarding of the weapon, (2) guidelines for carrying the weapon while off duty, and (3) limitations on when the weapon may be fired.104

 

Courts and juries are becoming increasingly harsher in dealing with police officers who misuse their firearms. The current tendency is to “look behind” police shootings to determine whether the officer acted negligently or the employing agency inadequately trained and supervised the officer/employee. In one case, a federal appeals court approved a $500,000 judgment against the District of Columbia when a police officer who was not in adequate physical shape shot a man in the course of an arrest. The court noted that the District officer had received no fitness training in 4 years and was physically incapable of subduing the victim. The court also noted that had the officer been physically fit and adequately trained in disarmament techniques, a gun would not have been necessary. In his condition, however, the officer posed a “foreseeable risk of harm to others.”105

 

Courts have awarded damages against police officers and/or their employers for other acts involving misuse of firearms: An officer shot a person while intoxicated and off duty in a bar,106 an officer accidentally killed an arrestee with a shotgun while handcuffing him,107 an unstable officer shot his wife five times and then committed suicide with an off-duty weapon the department required him to carry,108 and an officer accidentally shot and killed an innocent bystander while pursuing another man at night (the officer had had no instruction on shooting at a moving target, night shooting, or shooting in residential areas).109

 

Alcohol and Drugs in the Workplace

Alcoholism and drug abuse problems have taken on a life of their own in contemporary criminal justice; employees must be increasingly wary of the tendency to succumb to these problems, and administrative personnel must be able to recognize and attempt to counsel and treat these problems.

 

Indeed, in the aftermath of the early 1990s beating death of Malice Green by a group of Detroit police officers, it was reported that the Detroit Police Department had “high alcoholism rates and pervasive psychological problems connected with the stress of policing a city mired in poverty, drugs, and crime.”110 It was further revealed that although the Detroit Police Department had paid $850,000 to two drug-testing facilities, the department did not have the counseling programs many other cities offer their officers. A psychologist asserted, “There are many, many potential time bombs in that department.”111

 

It is obvious, given the extant law of most jurisdictions and the nature of their work, that criminal justice employees must be able to perform their work with a clear head, unaffected by alcohol or drugs.112 Police departments and prisons will often specify in their manual of policy and procedures that no alcoholic beverages be consumed within a specified period prior to reporting for duty.

 

Such regulations have been upheld uniformly because of the hazards of the work. A Louisiana court went further, upholding a regulation that prohibited police officers from consuming alcoholic beverages on or off duty to the extent that it caused the officer’s behavior to become obnoxious, disruptive, or disorderly.113 Enforcing such regulations will occasionally result in criminal justice employees being ordered to submit to drug or alcohol tests, discussed next.

 

Drug Testing

The courts have had several occasions to review criminal justice agency policies requiring employees to submit to urinalysis to determine the presence of drugs or alcohol. It was held as early as 1969 that a firefighter could be ordered to submit to a blood test when the agency had reasonable grounds to believe he was intoxicated, and that it was appropriate for the firefighter to be terminated from employment if he refused to submit to the test.114

 

In March 1989, the U.S. Supreme Court issued two major decisions on drug testing of public employees in the workplace. Skinner v. Railway Labor Executives Association115 and National Treasury Employees Union v. Von Raab116 dealt with drug-testing plans for railroad and U.S. Customs workers, respectively. Under the Fourth Amendment, governmental workers are protected from unreasonable search and seizure, including how drug testing can be conducted. The Fifth Amendment protects federal, state, and local workers from illegal governmental conduct.

 

In 1983, the Federal Railway Administration promulgated regulations that required railroads to conduct urine and blood tests on their workers following major train accidents. The regulations were challenged, one side arguing that because railroads were privately owned, governmental action, including applying the Fourth Amendment, could not legally be imposed. The Supreme Court disagreed in Skinner, ruling that railroads must be viewed as an instrument or agent of the government.

 

Three of the most controversial drug-testing issues have been whether testing should be permitted when there is no indication of a drug problem in the workplace, whether the testing methods are reliable, and whether a positive test proves on-the-job impairment.117 The Von Raab case addressed all three issues. The U.S. Customs Service implemented a drug-screening program that required urinalysis for employees desiring transfer or promotion to positions that were directly involved in drug interdiction, where carrying a firearm was necessary, or where classified material was handled. Only 5 of 3,600 employees tested positive. The Treasury Employees Union argued that such an insignificant number of positives created a “suspicionless search” argument; in other words, drug testing was unnecessary and unwarranted. The Supreme Court disagreed, ruling that although only a few employees tested positive, drug use is such a serious problem that the program could continue.

 

Furthermore, the Court found nothing wrong with the testing protocol. An independent contractor was used. The worker, after discarding outer garments, produced a urine specimen while being observed by a member of the same sex; the sample was signed by the employee, labeled, placed in a plastic bag, sealed and delivered to a lab for testing. The Court found no “grave potential for arbitrary and oppressive interference with the privacy and personal security of the individuals” in this method.

 

Proving the connection between drug testing and on-the-job impairment has been an ongoing issue. Urinalysis cannot prove when a person testing positive actually used the drug. Therefore, tests may punish and stigmatize a person for extracurricular drug use that may have no effect on the worker’s on-the-job performance.118 In Von Raab, the Court indicated that this dilemma is still no impediment to testing. It stated that the Customs Service had a compelling interest in having a “physically fit” employee with “unimpeachable integrity and judgment.”

 

Together, these two cases may set a new standard for determining the reasonableness of drug testing in the criminal justice workplace. They may legalize many testing programs that formerly would have been risky. Von Raab presented three compelling governmental interests that could be weighed against the employee’s privacy expectations: the integrity of the workforce, public safety, and protection of sensitive information. Skinner stated that railroad workers also have diminished expectations of privacy because they are in an industry that is widely regulated to ensure safety.119

Rights of Police Officers

Delineated earlier were several areas (e.g., place of residence, religious practice, freedom of speech, search, and seizure) in which criminal justice employees, particularly the police, may encounter treatment by their administrators and the federal courts that is quite different from that received by other citizens. One does give up certain constitutional rights and privileges by virtue of wearing a justice system uniform. This section looks at how, for the police at least, the pendulum has swung more in the direction of the rank and file.

 

In the last decade, police officers have insisted on greater procedural safeguards to protect themselves against what they perceive as arbitrary infringement on their rights. These demands have been reflected in statutes enacted in many states, generally known as the Peace Officers’ Bill of Rights (POBR). This legislation mandates due process rights for peace officers who are the subject of internal investigations that could lead to disciplinary action. These statutes identify the type of information that must be provided to the accused officer, the officer’s responsibility to cooperate during the investigation, the officer’s right to representation during the process, and the rules and procedures concerning the collection of certain types of evidence. Following are some common provisions of state POBR legislation:

 

Written notice: The department must provide the officer with written notice of the nature of the investigation, summary of alleged misconduct, and name of the investigating officer.

 

Right to representation: The officer may have an attorney or a representative of his or her choosing present during any phase of questioning or hearing.

 

Polygraph examination: The officer may refuse to take a polygraph examination unless the complainant submits to an examination and is determined to be telling the truth. In this case, the officer may be ordered to take a polygraph examination or be subject to disciplinary action.

 

Officers expect to be treated fairly, honestly, and respectfully during the course of an internal investigation. In turn, the public expects that the agency will develop sound disciplinary policies and conduct thorough inquiries into allegations of misconduct.

 

It is imperative that administrators become thoroughly familiar with statutes, contract provisions, and existing rules between employer and employee so that procedural due process requirements can be met, particularly in disciplinary cases in which an employee’s property interest might be affected.

 

Police officers today are also more likely to file a grievance when they believe their rights have been violated. Grievances may cover a broad range of issues, including salaries, overtime, leave, hours of work, allowances, retirement, opportunity for advancement, performance evaluations, workplace conditions, tenure, disciplinary actions, supervisory methods, and administrative practices. The preferred method for settling officers’ grievances is through informal discussion: The employee explains his or her grievance to the immediate supervisor. Most complaints can be handled in this way. Those complaints that cannot be dealt with informally are usually handled through a more formal grievance process, which may involve several different levels of action.

deral Courts: Organization and Administration

The U.S. Supreme Court: Its Jurists, Traditions, and Work

Courtroom Participants: Judges and Advocates

Established in 1788, the U.S. Supreme Court is the highest and one of the oldest courts in the nation. It is comprised of nine justices: one chief justice and eight associate justices. Like other federal judges appointed under Article III of the Constitution, they are nominated to their post by the president and confirmed by the Senate, and they serve for life.15 Each new term of the Supreme Court begins, by statute, on the first Monday in October.

 

Not just any lawyer may advocate a cause before the high court; all who wish to do so must first secure admission to the Supreme Court bar. Applicants must submit an application form that requires, under Supreme Court Rule 5, that applicants have been admitted to practice in the highest court of their state for a period of at least 3 years (during which time they must not have been the subject of any adverse disciplinary action), and they must appear to the Court to be of good moral and professional character. Each applicant must file with the clerk a certificate from the presiding judge or clerk of that court attesting that the applicant practices there and is in good standing, as well as the statements of two sponsors affirming that he or she is of good moral and professional character. Finally, applicants must swear or affirm to act “uprightly and according to law, and support the Constitution of the United States.”16

 

Inside the Court: Revered Traditions and Practices

The Supreme Court Building, constructed in 1935, has 16 marble columns at the main west entrance that support the portico; on the architrave above is incised the words “Equal Justice Under Law.” The building’s chamber measures 82 feet wide by 99 feet long, rising 44 feet above the dark African marble floor. Gold leaf and red adorn the ceiling recesses. Twenty-four massive columns of silver gray Italian marble line walls of ivory mined in Spain. High on the walls, four 36-foot-long marble friezes depict the great classical and Christian lawgivers. A large clock is suspended high above the bench to remind the sometimes too verbose advocate that time marches on. Behind the bench are nine high-backed chairs and a flag. The clerk’s desk is at the left end of the bench, and counsel tables are in front of and below the bench. Squarely in the middle, facing the chief justice, is the lectern used by attorneys while addressing the Court. On the lectern are two lights—a white one comes on when the speaker has 5 minutes remaining and a red one is the signal to stop.17 Millions of visitors to the U.S. Supreme Court have been struck by the sight and the power of the building and its primary occupants. Justice Robert Jackson once described the Court’s uniqueness, saying, “We are not final because we are infallible, but we are infallible because we are final.”18

 

In many respects, the Court is the same institution that first met in 1790. Since at least 1800, it has been traditional for justices to wear black robes while in session. White quills are placed on counsel tables each day that the Court sits, as was done at the earliest sessions of the Court. The “Conference handshake” has been a tradition since the late nineteenth century. When the justices assemble to go on the bench each day and at the beginning of the private conferences at which they discuss decisions, each justice shakes hands with each of the other eight—a reminder that differences of opinion on the Court do not preclude the overall harmony of purpose. When the Court is in session, the chief justice always sits in the middle, with four associate justices on either side. The justice who is senior in terms of service sits on the chief’s immediate right as the justices face out; the justice who is second in seniority sits on the chief’s left; thereafter, the justices are seated alternately right and left according to the amount of time served. The junior justice is always on the chief justice’s extreme left.19

 

In 2017, Neil Gorsuch was confirmed as the 113th justice of the U.S. Supreme Court, filling the vacant seat of Justice Scalia, who passed away in early 2016. Gorsuch’s confirmation was not without controversy as Republicans were able to facilitate the waiver of the required 60 U.S. Senate votes, which paved the way for the confirmation with a final vote tally of 54–45. While Gorsuch is now seated on the Supreme Court, there are over 400 other federal judge positions that can be filled over the next presidential term. This gives the president the ability to swing the courts back to a more conservative manner. Because judgeships in federal courts are nominated, rather than elected, this allows the president and Senate (both largely “elite” in the fiscal/power sense) to widely change the scope of legal reality, without the public’s direct input into the process.

 

Caseload and Conferences

The Court does not meet continuously in formal sessions during its 9-month term. Instead, the Court divides its time into four separate but related activities. First, some period of time is allocated to reading through the thousands of petitions for review of cases that come annually to the Court—usually during the summer and when the Court is not sitting to hear cases. Second, the Court allocates blocks of time for oral arguments—the live discussion in which lawyers for both sides present their clients’ positions to the justices, and where justices question lawyers. During the weeks of oral arguments, the Court sets aside its third allotment of time, for private discussions of how each justice will vote on the cases they have just heard. Time is also allowed for the justices to discuss which additional cases to hear. These private discussions are usually held on Wednesday afternoons and Fridays during the weeks of oral arguments. The justices set aside a fourth block of time to work on writing their opinions.20

 

The Court has complete discretion to control the nature and number of the cases it reviews by means of the writ (order) of certiorari—an order from a higher court directing a lower court to send the record of a case for review. The Court considers requests for writs of certiorari according to the rule of four; if four justices decide to “grant cert,” the Court will agree to hear the case. Several criteria are used to decide whether a case requires action: First, does the case concern an issue of constitutional or legal importance? Does it fall within the Court’s jurisdiction—which is, simply put, the power or authority given to a court by law to hear certain kinds of cases (the Supreme Court can only hear cases that are mandated by Congress or the Constitution)? Does the party bringing the case have standing—a strong vested interest in the issues raised in the case and in its outcome?21

 

The Court hears only a tiny fraction of the thousands of cases it is petitioned to consider (approximately 1%). When it declines to hear a case, the decision of the lower court stands as the final word on the case. Adding to the Court’s workload is a steady growth in congressional and state legislation that requires judicial interpretation and an increasing number of constitutional and other issues that can be reviewed in the federal courts.22 After the Court decides to hear a case, a vote is taken, and the senior justice of the majority assigns the case to one of the other justices or him (or her)self. Justices write approximately 70 percent of their opinions on their own; the remainder is written by law clerks (each justice has four), typically top graduates from Ivy League law schools.23 At times, the justice who writes the majority opinion will provide an oral summary at a public session of the court.

 

Exhibit 7.1 Oyez! Oyez! Oyez!

Students of the U.S. Supreme Court are encouraged to check out Oyez.org, a free law project housed at the Illinois Institute of Technology Chicago-Kent College of Law. The objective of Oyez is to make the U.S. Supreme Court accessible by utilizing text, images, audio recordings, and video. The initial idea for such a project began in the 1980s, and the project has grown considerably through various grants. To date, Oyez.org has digitized the oral arguments of each U.S. Supreme Court case since audio recordings were first introduced in proceedings in 1955. The project provides information about cases, the justices, current news, and a 360-degree visual tour of the Court as described earlier in this chapter.

 

Interested in finding information about a landmark U.S. Supreme Court case, such as Miranda v. Arizona? Just go to Oyez.org and type in the case in the search bar. From there, you will have the ability to listen to the oral arguments from the case (with sentence-by-sentence transcription), the facts of the case and case summary, information about the case advocates, and a link to the full opinion of the Court.

 

Source: Data from https://www.oyez.org.

 

Administration

The chief justice orders the business of the Supreme Court and administers the oath of office to the president and vice president upon their inauguration. According to Article 1, Section 3, of the Constitution of the United States, the chief justice is also empowered to preside over the Senate in the event that it sits as a court to try an impeachment of the president. The duties of the chief justice are described more fully in Chapter 8.

 

The clerk of the Court serves as the Supreme Court’s chief administrative officer, supervising a staff of 30 under the guidance of the chief justice. The marshal of the Court supervises all building operations. The reporter of decisions oversees the printing and publication of the Court’s decisions. Other key personnel are the librarian, the public information officer, and the justices’ law clerks.24

 

U.S. Courts of Appeals

Judges, Jurisdiction, Caseloads

The Evarts Act of 1891 created the structure and the original nine circuits of the U.S. Courts of Appeals; it also created the circuit judge positions. Today there are 13 courts of appeals (or circuit courts) for the federal court system. Eleven of the circuits are identified by number, and another is called the D.C. Circuit. The U.S. Court of Appeals for the Federal Circuit, which hears cases across the country based on specific subject matter, is the thirteenth appeals court in the federal circuit (see Figure 7-1). A court of appeals hears appeals from the district courts located within its circuit, as well as appeals from decisions of federal administrative agencies.

 

Figure 7-1 Geographic Boundaries of the U.S. Courts of Appeals and U.S. District Courts

 

Source: United States Courts of Appeals and United States District Courts, www.uscourts.gov/images/circuitmap.pdf.

 

Figure 7-1 Full Alternative Text

The courts of appeals are staffed with 179 judges nominated by the president and confirmed by the Senate. As with the U.S. district courts, discussed below, the number of judges in each circuit varies, from six in the First Circuit to 29 in the Ninth, depending on the volume and complexity of the caseload. Each circuit has a chief judge (chosen by seniority) who has supervisory responsibilities. Several staffers aid the judges in conducting the work of the courts of appeals. A circuit executive assists the chief judge in administering the circuit. The clerk’s office maintains the records. Each judge is also allowed to hire three law clerks. In deciding cases, the courts of appeals may use rotating three-judge panels. Or, by majority vote, all the judges in the circuit may sit together to decide a case or reconsider a panel’s decision; however, such en banc hearings are rare.25 The caseload of the courts of appeals is about 52,700 per year, the lowest it has been in 20 years26—a little more than half being civil in nature, 20 percent being criminal, and the remainder originating from administrative agencies.27 If the decision of one of the U.S. Courts of Appeals is denied review by the U.S. Supreme Court, the decision of the circuit court stands. And if a case is heard by the U.S. Supreme Court from an appeals court, and because of a Court vacancy, the U.S. Supreme Court vote results in a 4–4 tie, the decision of the appeals court stands.28 See Exhibit 7.2 for a description of the D.C. Circuit.

 

Exhibit 7.2 D.C. Circuit: The Second Most Powerful Court in the Land

Any discussion of the federal court system would be incomplete without elaborating on the District of Columbia Circuit Court of Appeals (known as the D.C. Circuit). Often described (and widely regarded) as the second most powerful court in the United States (after the U.S. Supreme Court), the D.C. Circuit’s reputation is well earned because it often decides cases having national implications, ranging from environmental regulations and national security policy to drinking water standards and clean air. It even has jurisdiction over the federal government’s bureaucracy; indeed, a number of federal and administrative statutes and agencies designate the D.C. Circuit as the appropriate forum for challenging federal agency orders and rules. Trade associations, labor unions, and other such organizations often appear before this court’s distinguished panel of one chief judge and eight associate judges.32

 

Finally, the D.C. Circuit is viewed as a springboard for one to be appointed to the highest court in the nation. Indeed, the bench of the D.C. Circuit once was the locus for Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Antonin Scalia, and Clarence Thomas.33

 

District court judges are assisted by an elaborate supporting cast of clerks, secretaries, law clerks, court reporters, probation officers, pretrial services officers, and U.S. marshals. The larger districts also have a public defender. District judges also are assisted by federal magistrate judges, who are appointed by majority among the judges within the district. Federal magistrate judges have a variety of duties, including overseeing certain cases, issuing search and arrest warrants, setting bail, and so on34 Another important actor at the district court level is the U.S. attorney; there is one U.S. attorney in each district, along with assistant U.S. attorneys. The work of district judges is significantly assisted by 352 bankruptcy judges, who are appointed for 14-year terms by the court of appeals in the district where it is located.35 There are about 80,000 criminal cases filed per year over the last several years in the U.S. district courts, down from a high of over 100,000 in 2011.36

 

U.S. District Courts

Judges, Jurisdiction, Caseloads

Congress created 94 U.S. district courts, of which 89 are located within the 50 states. There is at least one district court in each state (some states have more, such as California, New York, and Texas, all of which have four). Congress has created 677 district court judgeships for the 94 districts. As with the other federal court judges discussed previously, the president nominates district judges, who must then be confirmed by the Senate; they then serve for life unless removed for cause. In the federal system, the U.S. district courts are the federal trial courts of original jurisdiction for all major violations of federal criminal law.29

 

The jurisdiction of U.S. district courts is not as simple as it sounds though. For example, some cases can have jurisdiction in both state courts (discussed more thoroughly later in this chapter) and federal courts. In this case, the plaintiff may bring the case to either the state court or federal court system. If state court is chosen, the defendant may exercise his or her option to “remove” to federal court.30 And under “diversity jurisdiction,” where parties to a state case are located in different states, U.S. district courts can have original jurisdiction.31

 

Exhibit 7.3 U.S. Foreign Intelligence Surveillance Court: Behind Closed Doors

While not a designated district court, when it comes to powerful courts, the FISC is certainly one of them. This court, in theory, hears and authorizes warrants for electronic surveillance of dangerous instigators or spies within the United States. While it is not entirely unusual for specific court hearings to be closed to the public, there have been concerns about the scope of what goes on behind the closed doors of the FISC. The government is the only party allowed to present cases to the FISC and since very few opinions are made public, criticisms have been leveled at the court for being a “rubber-stamp” for widespread, publicly unknown surveillance practices.37

 

Judicial Conference of the United States

The Judicial Conference of the United States is the administrative policymaking organization of the federal judicial system. Its membership consists of the chief justice, the chief judges of each of the courts of appeals, one district judge from each circuit, and the chief judge of the Court of International Trade. The conference meets semiannually for only 2-day sessions, generally at the U.S. Supreme Court building in Washington, DC, but most of the work is done by about 25 committees, such as the Space and Facilities Committee, the Committee on Audits and Administrative Office Accountability, and the Information Technology Committee.38 The chief justice makes committee appointments, which are generally renewable 3-year, staggered terms to minimize the amount of turnover.39

 

The Judicial Conference directs the Administrative Office of the U.S. Courts (discussed in the following section) in administering the judiciary budget and makes recommendations to Congress, concerning the creation of new judgeships, increase in judicial salaries, revising federal rules of procedure, and budgets for court operations. The Judicial Conference also plays a major role in the impeachment of federal judges.40 And while impeachment seems to be the conventional wisdom for removing federal judges, others argue that nowhere is it stated that impeachment is the only method for removing federal judges.41

 

Administrative Office of the U.S. Courts

Since 1939, the day-to-day administrative tasks of the federal courts have been handled by the Administrative Office of the U.S. Courts (AO), a judicial agency. The director of the AO is appointed by the chief justice of the Supreme Court and reports to the Judicial Conference. The AO’s lobbying and liaison responsibilities include presenting the annual budget request for the federal judiciary, arguing for the need for additional judgeships, and transmitting proposed changes in court rules. The AO is also the housekeeping agency of the judiciary, responsible for allotting authorized funds and supervising expenditures.42

 

In his recent Director’s Message, AO director James C. Duff outlined a number of initiatives within the AO, including a space reduction effort that utilizes shared workstations for a more mobile workforce. Space reductions, according to Director Duff, are necessary to reduce rent and conserve more of the AO’s authorized budget.43 The message also articulated improvements to the judiciary’s information technology program in the face of growing threats to cybersecurity

Law and litigation affecting criminal justice employees can arise out of federal and state constitutions, statutes, administrative regulations, and judicial interpretations and rulings. Even poorly written employee handbooks or long-standing agency customs or practices may create vested rights. The ripple effect begun by improper or illegal hiring, training, discipline, or discharge can lead not only to poor agency performance and morale but also to substantial legal and economic liability. It should become apparent in the following overview and the court decisions that follow that utilizing good common sense as well as a sense of fairness will go a long way toward preventing legal problems in the employment relationship.2

 

It should also be noted that the Civil Rights Act of 1991, like its predecessors, may result in further amended versions and changes in public and private sector employment; however, it will take several years for significant decisions to wind their way through the courts for a final determination by the Supreme Court of the intent and reach of the Act. Therefore, this section focuses on presenting the issues rather than on attempting to settle the law in these areas.

 

Fair Labor Standards Act (FLSA; at 29 U.S.C. 203 et seq.). This Act provides minimum salary and overtime provisions covering both public and private sector employees. Part 3(a) contains special provisions for firefighters and police officers. I discuss the FLSA more fully later.

 

Title VII of the Civil Rights Act of 1964 and its amendments (42 U.S.C. 2000e). This broadly based Act establishes a federal policy requiring fair employment practices in both the public and private sectors. It prohibits unlawful employment discrimination in the hiring process, discharge, discipline, and working conditions and the unlawful provision of benefits based on race, color, religion, sex, and national origin. Its provisions extend to “hostile work environment” claims based on sexual, racial, or religious harassment.

 

Equal Pay Act [29 U.S.C. 206(d)]. This legislation provides an alternative remedy to Title VII for sex-based discrimination in wages and benefits when men and women do similar work. It applies the simpler Fair Labor Standards Act procedures to claims. Note that the Equal Pay Act does not mean “comparable worth”—an attempt to determine wages by requiring equal pay for employees whose work is of comparable worth even if the job content is totally different. Exhibit 3.1 discusses a major related piece of legislation enacted in 2009.

 

Exhibit 3.1 Attacking Pay Discrimination: The Lilly Ledbetter Fair Pay Act

Women today who work full time in the United States are paid 80 cents for every dollar paid to men; the gap is even wider for women of color.3 However, in 2009 a major piece of legislation was enacted that provides women the right to seek legal redress when they believe their job duties and wages, being comparable to men’s in their workplace, are lacking in parity.

 

Lilly Ledbetter, a female supervisor at a Goodyear plant in Alabama, learned that her salary was substantially lower than 15 male managers who did similar work and had equal or less seniority. She filed a complaint with the Equal Employment Opportunity Commission (EEOC), her case went to trial, and the jury awarded her back pay and approximately $3.3 million in compensatory and punitive damages. However, a federal appeals court overturned the jury verdict on the ground that her case was filed too late.4

 

Because the appeals court’s decision ran against a long-standing congressional goal of eliminating discrimination in the workplace, within two years both the U.S. House and Senate passed, and in January 2009 President Obama signed, the Lilly Ledbetter Fair Pay Act, helping to ensure that individuals subjected to unlawful pay discrimination are able to assert their claims.5

 

While having a major influence in the private sector, the law’s effect has been felt in the public sector as well. For example, the law has granted wage parity at a police department in Pennsylvania;6 a university in Pennsylvania, involving salaries of male and female professors;7 and a university in Louisiana, involving tenure-track professors in different departments who performed similar duties.8

 

The Pregnancy Discrimination Act of 1978 [42 U.S.C. Section 2000e(k)]. This Act is an amendment to the scope of sexual discrimination under Title VII. It prohibits unequal treatment of women because of pregnancy or related medical conditions (e.g., nausea). The Act requires that employers treat pregnant women like other temporarily disabled employees. The U.S. Supreme Court decided a major case in 1991 that limited employers’ ability in excluding women who are pregnant or of childbearing years from certain jobs under a fetal protection policy.9

 

Age Discrimination in Employment Act (29 U.S.C. 623). This Act generally prohibits the unequal treatment of applicants or employees based on their age, if they are age 40 years or older, in regard to hiring, firing, receiving benefits, and other conditions of employment.

 

Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. 12112). The goal of this legislation is to remove barriers that might prevent otherwise qualified individuals with disabilities from enjoying the same employment opportunities as persons without disabilities. Before the ADA, the Rehabilitation Act of 1973 (see 29 U.S.C. 701) and its amendments prevented similar disability discrimination among public agencies receiving federal funds. The ADA is discussed more fully later.

 

Section 1983 (codified as Title 42, U.S. Code Section 1983). This major piece of legislation is the instrument by which an employee may sue an employer for civil rights violations based on the deprivation of constitutional rights. It is the most versatile civil rights action and is also the most often used against criminal justice agencies. Section 1983 is discussed in more detail in Chapter 14.

 

In addition to the legislative enactments and state statutes that prohibit various acts of discrimination in employment, there are remedies that have tremendous impact on public sector employees. Tort actions (a tort is the infliction of a civil injury) may be brought by public sector employees against their employer for a wide variety of claims, ranging from assault and battery to defamation. Contractual claims may grow out of collective bargaining agreements, which may include procedures for assignments, seniority, due process protections (such as in the Peace Officers’ Bill of Rights, discussed later), and grievance procedures. Often the source of the right defines the remedy and the procedure for obtaining that remedy; for example, statutes or legal precedents often provide for an aggrieved employee to receive back pay, compensatory damages, injunctive relief, or punitive damages.

1. Robert H. Chaires and Susan A. Lentz, “Criminal Justice Employee Rights: An Overview,” American Journal of Criminal Justice 13 (April 1995): 259.

 

2. Ibid.

 

3. American Association of University Women, The Simple Truth about the Gender Pay Gap, Fall 2016, pp. 1, 3, http://www.aauw.org/aauw_check/pdf_download/show_pdf.php?file=The-Simple-Truth.

 

4. National Women’s Law Center, “Lilly Ledbetter Fair Pay Act,” January 29, 2013, http://nwlc.org/resources/lilly-ledbetter-fair-pay-act/; also see National Women’s Law Center, “The Lilly Ledbetter Act Five Years Later – A Law That Works,” January 29, 2014, http://nwlc.org/resources/lilly-ledbetter-act-five-years-later-law-works/.

 

5. Ibid.

 

6. See Mikula v. Allegheny County of Pennsylvania, 583 F.3d 181 (3d Cir. 2009), where a grants coordinator was paid $7,000 less per year than a male counterpart.

 

7. See Schengrund v. Pennsylvania State University, 705 F.Supp.2d 425 (M.D. Penn. 2009).

 

8. Herster v. Board of Supervisors of Louisiana State University, No. 13–139–JJB, 2013 WL 2422893 (M.D. La. June 3, 2013).

 

9. United Autoworkers v. Johnson Controls, 111 S.Ct. 1196 (1991).

 

10. Kenneth J. Peak, Policing America: Challenges and Best Practices, 7th ed. (Upper Saddle River, NJ: Prentice Hall, 2012), Chapter 4, generally.

 

11. Chaires and Lentz, “Criminal Justice Employee Rights,” p. 260.

 

12. U.S. v. Gregory, 818 F.2d 114 (4th Cir. 1987).

 

13. Harris v. Pan American, 649 F.2d 670 (9th Cir. 1988).

 

14. Chaires and Lentz, “Criminal Justice Employee Rights,” p. 267.

 

15. Ken Peak, Douglas W. Farenholtz, and George Coxey, “Physical Abilities Testing for Police Officers: A Flexible, Job-Related Approach,” The Police Chief 59 (January 1992): 52–56.

 

16. Shaw v. Nebraska Department of Corrections, 666 F.Supp. 1330 (ND February 1987).

 

17. Garrett v. Oskaloosa County, 734 F.2d 621 (11th Cir. 1984).

 

18. Chaires and Lentz, “Criminal Justice Employee Rights,” p. 268.

 

19. EEOC v. State Department of Highway Safety, 660 F.Supp. 1104 (ND Fla.: 1986).

 

20. Johnson v. Mayor and City Council of Baltimore (105 S.Ct. 2717, 1985).

 

21. 460 U.S. 226, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983).