By John V. Berry, Esq. of Berry & Berry, PLLC
When Federal Law Enforcement Officers (LEOs) are subjected to disciplinary actions by their federal police departments and/or related agencies, our law practice frequently uses a legal approach to attempt to mitigate (lessen) the penalty in these proposed disciplinary actions. The purpose of this article is to take a look at the current application, as of 2010, of the Douglas (mitigation) factors to Federal LEOs facing discipline in the federal sector. The attempt by defense counsel to reduce the severity of the penalty focuses on an attempt by the defense to mitigate proposed penalties in such cases.
Mitigation, for Federal LEOs, is almost always referred to in the context of the Douglas factors, a landmark case in federal personnel law issued in 1981, which specifies 12 factors which can be used to mitigate or to aggravate a proposed disciplinary penalty. Douglas v. Veterans Affairs, 5 M.S.P.R. 280, 305-306 (1981).
What are the Douglas Factors?
The Douglas factors are used to mitigate or aggravate disciplinary actions for Federal LEOs and other federal employees that are proposed for disciplinary action. The factors originally relate back to 1981 in the Douglas case, where the Merit Systems Protection Board examined what issues might come up to mitigate disciplinary penalties. Typically, the issue of mitigation comes up when an officer receives a proposed disciplinary action or termination and I have to come into the officer's case and argue that the penalty being proposed must be mitigated.
To take a step back for the moment, it is key to understand that the Douglas factors are the second part of the disciplinary process; the first being whether or not the allegations themselves are true and can be proven. In the context of federal disciplinary actions, there are always these two parts to a Federal LEO’s disciplinary defense: (1) disprove the facts; and (2) contest the penalty as unreasonable in light of the Douglas (mitigating) factors. While these Douglas factors apply generally to all Federal employees, this article takes a look at how they apply specifically to federal law enforcement in the year 2010.
To start, when evaluating Douglas factor arguments for Federal LEOs, the first step is to consider which of these mitigating factors might apply so that one can argue for a lesser penalty. It is important to note that there are 12 individual factors for consideration and that they should all be reviewed for possible use in a case.
THE 12 INDIVIDUAL DOUGLAS FACTORS
Under each of these 12 factors I have noted whether they are used primarily in mitigation (reduce the disciplinary penalty) or in aggravation (used by departments to increase penalties in these types of disciplinary cases that Federal LEOs are sure to face at some point:
(1) The nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated;
a. This factor tends to be used in aggravation by federal police departments.
b. Typically, in disciplinary actions, departments will use this factor to attempt to increase disciplinary penalties for officers based on their perceived view of the seriousness of the charges. For example, this comes up a lot in charges involving Giglio (candor/truthfulness charges) where police departments attempt to increase disciplinary penalties on this basis.
(2) The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position (mainly used by departments for the aggravation of law enforcement officer/supervisor penalties in disciplinary cases);
a. This factor is used quite commonly by federal police departments in an attempt to aggravate or raise the penalties against federal police officers. For example, see McManus v. Dep’t of Justice, 66 MSPR 564, 566 (1995) (federal correctional officers must conform to a higher standard of conduct than non-law enforcement employees).
b. Most often, a proposed disciplinary or adverse action against a federal law enforcement officer will attempt to tie their police officer position to the disciplinary charges at issue in order to increase a disciplinary penalty. Police officer's misconduct “was extremely serious and inconsistent with his duties and responsibilities as a law enforcement officer.” Watson v. Dep’t of Justice, 64 F.3d 1524, 1530 (Fed. Cir. 1995) (“Law enforcement officers are held to a higher standard of conduct than are other federal employees . . . .”).
c. The extent of this higher standard for federal law enforcement, for purposes of the Douglas factors can vary with the type of federal law enforcement official involved, i.e. supervisory or non-supervisory. Kirk v. Dep’t of Navy 58 MSPR 663, 671-72 (1993).
(3) The employee’s past disciplinary record (mainly used by departments for the aggravation of law enforcement officer/supervisor penalties in disciplinary cases);
a. This factor can be used as mitigating in nature or as an aggravating factor. The key in mitigation is to show that the federal police officer does not have a disciplinary record, or in the alternative, does not have one involving similar alleged misconduct as the one currently alleged.
(4) The employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability;
a. This is a significant mitigating factor for federal law enforcement officers, and one that we argue quite often on their behalf. Typically, in federal police officer cases, this is one of the best methods for an officer to attempt to mitigate disciplinary penalties by focusing on their background, successful career and performance, commendations from the department or the public and their awards.
(5) The effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s work ability to perform assigned duties;
a. This Douglas factor is almost always used by federal police departments to attempt to aggravate a proposed penalty. However, the allegations of loss of trust towards federal law enforcement officers must be specific and detailed. Departments tend to make mistakes in regards to this particular Douglas factor in disciplining police officers.
(6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses;
a. Typically, this factor is one that we argue in favor of mitigation on behalf of the officer involved. In particular, it is usually a given, depending on the particular federal sector police department involved, that some individuals on the department will have been charged and found guilty of similar administrative misconduct. If there are prior cases involving similar charges where the police official or officer involved received a lower penalty than what is being proposed for the officer pending discipline, we usually argue this as a basis for mitigation and seek a lower penalty for the officer that we are representing.
(7) Consistency of the penalty with any applicable agency table of penalties;
a. Typically, this is a factor argued by the Agency to justify their penalty. These tables of penalties are usually broad and can cover many kinds of broadly categorized misconduct charges. Therefore, this Douglas factor is usually argued by management to support a particular penalty or their position in a case.
(8) The notoriety of the offense or its impact upon the reputation of the agency;
a. This is a factor used to aggravate the penalty. Typically used in cases where a large number of individuals are aware of the disciplinary charges in the case or where the news media becomes aware of the situation and reports on it. I have found that this factor is commonly misused to attempt to raise the penalty in a disciplinary case.
(9) The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question;
a. This is a significant mitigating factor that is used quite frequently in our firm’s defense of federal law enforcement officers. Typically, it is clear that an alleged charge relates to duties or actions that the officer was never tried in or perhaps received training to the opposite of what the charges and/or allegations contend. This factor is key to mitigating discipline when we represent federal law enforcement officers on appeal in either the Merit Systems Protection Board or in arbitration.
(10) The potential for the employee’s rehabilitation;
a. This Douglas factor is important in disciplinary action cases for federal law enforcement officer clients. The potential for rehabilitation is a critical factor relied upon by administrative judges and arbitrators in mitigating discipline in cases involving federal law enforcement officers. Often times this factor comes into play with federal law enforcement officer cases where the officer has reported their own misconduct, before the Department itself is aware of any wrongdoing. If this has occurred, there is a strong legal argument for mitigating discipline in the case for the officer.
(11) Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter; and
a. This is a significant factor for mitigation for a federal law enforcement officer, and a general catch all mitigating factor. See Brown v. Dep’t of Treasury, 61 MSPR (1994). It can be used to explain a particular set of misconduct as involving personality issues and conflicts between an officer/supervisor and their superior or other miscellaneous mitigating factors in a case.
(12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.
a. This factor is very significant in that there might very well be other types of penalties, other than the one proposed, for an officer. Often times, one could argue that an officer or law enforcement supervisor’s penalty should be mitigated and that training be provided instead. The key is to stress that the penalty being proposed does not fit the misconduct in terms of addressing future misconduct. This is becoming a major factor in cases presently.
Of these 12 Douglas factors, there are a number of them that come up more often than others, given the nature of the federal law enforcement officer profession. In practice, it is important to highlight the law enforcement professional years of service, performance record, citizen and department based commendations.
There are many more details that can up in an individual officer's case. Please contact our law firm at www.berrylegal.com if you have any questions about how these Douglas factors might affect a case or situation that is applicable to you. Remember, it is always key to obtain legal counsel when evaluating a particular Douglas factor argument because each factor applies differently in individual cases.