By Stuart J. Alterman, Esq., and Arthur J. Murray, Esq.
Since the birth of social media, whenever we lecture to members of law enforcement, the members of my law firm suggest staying off social media until one retires. Whenever we say that, it always results in some modicum of laughter from our audience. While we are being 100 percent sincere when we say it, the laugher tells us that the advice is falling on deaf ears. It would be virtually impossible for any human being to stay off all social media in the 25 or 30 years it takes to secure a service pension.
One of the unfortunate outgrowths of the COVID-19 pandemic has been people spending more and more time on social media due to compelled isolation and social distancing. Unfortunately, that compelled isolation has also left internet trolls with more time on their hands to scrutinize the posts made by members of law enforcement. That has led to an uptick in complaints (anonymous and otherwise) to internal affairs departments over posts made by members of law enforcement.
The fear of backlash from social activists and organized groups (e.g., Black Lives Matter, the Me Too movement, etc.) has resulted in employers meting out exponentially harsher penalties, including removal in most cases, and then taking “nonnegotiable” stances in settlement talks where the member of law enforcement can only get his or her job back through a court order following his or her disciplinary hearing.
Recently, my firm has been successful in getting two different removals reversed to 180-day suspensions for major transgressions made on social media.
In the first, a PBA member was accused of posting the following on Facebook:
I know that I am not the only one sick of seeing black people beating up mostly white men, women, and children. Time for this shit to end, if I see anyone getting beat by anyone I for one am not going to stand by and just watch and record. The time has come to start hitting back (muscle emoji)
In the second, another PBA was accused of posting on Facebook a scene depicting an African American male on the gallows surrounded by Caucasian males and a crowd of onlookers with the written comment:
We need to bring this back.
In both cases, the employer sought removal. Through prior cases, my firm learned the difficult lesson that administrative law judges were not buying defenses based upon the First Amendment, freedom of speech and the exercising of state and federal constitutional rights. Thus, we needed to pivot our legal arguments and create more viable defenses that would survive judicial scrutiny. Surprisingly, rather than being esoteric and coming up with unique legal arguments, we found that the old K.I.S.S. (Keep It Simple, Stupid) strategy has legs. A defense that gained traction was based on a few basic concessions. They included:
The law enforcement officer admitting he or she was stupid for doing what he or she did.
The law enforcement officer admitting he or she was not overly sophisticated in their knowledge of social media.
The employer of the law enforcement officer lacked or had an inadequate social media policy.
The employer of the law enforcement officer either failed to train or inadequately trained the law enforcement officer on social media.
The law enforcement officer did not have a history of social media infractions.
The law enforcement officer did not have a history of claims against him or her alleging discrimination, harassment, hostile work environment or retaliation.
Most importantly, the law enforcement officer was sincerely sorry and remorseful for what he or she posted on social media.
Implementing this strategy required the law enforcement officer to withdraw his or her plea of not guilty to some charges and admit fault prior to the administrative law hearing by entering a plea of guilty to some charges before ever stepping a foot into court. Such a strategy involves a great degree of trust in one’s PBA attorney and involves some level of risk, because the administrative law hearing is essentially rendered a penalty hearing only.
However, if done correctly, the K.I.S.S. strategy has been deemed not only effective with multiple administrative law judges but has also been endorsed by the Civil Service Commission following the filing of exceptions by the employer. In one of the two cases, the administrative judge ruled:
Herein, Respondent seeks to remove Appellant from his employment … because of the egregiousness of his actions, bypassing progressive discipline. Appellant requests that an appropriate analysis using progressive discipline should be invoked. [Appellant] conceded that his action in making this post is deserving of major suspension, training, and even a fitness for duty examination upon reinstatement. He requests consideration of the mitigating factors to show that the ultimate penalty of removal is not warranted under the totality of the circumstances.
Relative to the existence of mitigating factors, [Appellant]’s disciplinary record over twenty-three years is unremarkable, consisting of three prior minor disciplines for time and attendance. This is [Appellant]’s first allegation of discriminatory conduct towards members of protected classes, who worked for the [Respondent]….
Respondent argued that Appellant acted in an unbecoming and discriminatory manner by communicating to his Facebook friends, who included [other Respondent] employees, a racially biased post. Because this post was shared with the public and [Appellant] was easily identifiable as being a [law enforcement officer], respondent submitted that [Appellant]’s conduct brought discredit to the [Respondent]. Accordingly, Respondent contended that [Appellant]’s actions were so egregious that progressive discipline need not be applied.
Respondent further argued that under the zero tolerance for discriminatory conduct, removal is the appropriate discipline. While there is a zero-tolerance policy, removal is not the only recognized discipline to address unacceptable discriminatory conduct…. An employee who violates the policy is subject to appropriate discipline that may include: “referral for training, referral for counseling, written or verbal reprimand, suspension, reassignment, demotion or termination of employment.” …
However, under the circumstances herein, there are other “legitimate circumstances” that mitigate against the ultimate penalty of removal. The Policy Prohibiting Discrimination in the Workplace made no reference to social media use and as a law enforcement officer, [Appellant] received no social media training…. While making no excuse for the conduct, the record showed [Appellant] committed one act, while at home on a personal computer. Therefore, [Appellant]’s lack of social media training is a legitimate mitigating circumstance that weighs against removal in this instance.
Herein, [Appellant] accepted responsibility and submits to major discipline. These factors bode well in making him a receptive candidate for diversity and tolerance training if he was to be reinstated. Weighing all aggravating and mitigating factors and the proofs presented, including [Appellant]’s lack of any major disciplinary history over a twenty-three-year career, and the totality of the nature and circumstances of [Appellant]’s behavior resulting in the five sustained charges herein, major discipline, but not removal is warranted.
In the other case, a second administrative judge ruled:
Respondent seeks Appellant’s removal from his position as a [law enforcement officer]. Respondent argues that [Appellant]’s conduct is so egregious, it prohibits him from being able to perform his duties in a fair and impartial manner and jeopardizes the safety of the inmates and his fellow officers.
Appellant agrees he deserves major discipline in this matter. However, he does not believe he deserves to be terminated because he has no history of discriminatory conduct and has always been a fair officer. He has a prior disciplinary history for major discipline when he was a rookie and various minor discipline, but they are remote, and he has had no discipline in the last thirteen years. In the many years he has been with the [Respondent], he has never had any issues with … anyone. He also does not agree that he would have any difficulty responding to help … African American[s] … despite his Facebook posting and comment and job description. Through the years working at the [Respondent], he has helped fellow police officers … and has never discriminated against anybody as far as helping them. [Appellant] knows what he posted was wrong and he should not have posted it. It was a mistake in judgement and a stupid thing to do. [Appellant] wanted to apologize to all who were offended. [Appellant] is willing to undergo additional training and is willing to undergo a fitness for duty evaluation if so ordered, before returning to work.
… It is difficult to reconcile the fact that respondent is seeking to remove [Appellant], a subordinate officer, for posting a racially offensive post that a superior officer “liked” … [and was not removed].
[Appellant]’s work history included a chronology of discipline he has received on previous occasions. [Appellant] received one major discipline of a six-month suspension on March 11, 2002. He has received other minor discipline as follows: on July 31, 2002, he was late for work and received a written reprimand; on April 1, 2004, he received a five-day suspension for offensive writing; on January 17, 2007, he received a one-day suspension for a missing forty-caliber round; and on March 17, 2007, he received a one-day suspension for a missing pair of handcuffs. After the March 17, 2007, discipline, [Appellant] has had no other discipline until the incident at issue in this case, more than thirteen years later. The major discipline of the six-month suspension [Appellant] received was remote in time and occurred when he was still a rookie. Appellant has been [on the job] for eighteen and a half years and has received no discipline at all for the past thirteen and a half years. He also has received a Letter of Commendation.
[Appellant] has never been charged with or been the subject of any prior complaints regarding discrimination, harassment, or hostile work environment by any[one].
Although [Appellant]’s conduct in this case warrants major discipline, the [Respondent]’s lack of a formal written policy on the acceptable use of social media by its … officer[s] is problematic and should be considered as a mitigating factor in this case. If the [Respondent] intends to seek the ultimate penalty of removing an officer from their position after many years of service, there has to be a policy explaining what type of social media use is appropriate and what type of social media use is prohibited and there must be training provided to the rank and file … officers on the subject. The number of recent cases involving … officers disciplined for social media postings indicate the need for a written policy describing the parameters for acceptable and unacceptable social media use as well as the need for training in this regard.
I conclude that [Appellant]’s misconduct does not warrant removal.
In both cases, the Civil Service Commission endorsed the initial decision of the administrative law judges and reversed the removals. Thus, no matter how egregious the social media infraction, a PBA attorney may still be able to salvage your job, but don’t take this as a license to post what some may find to be violative content. If you think the post might not be OK, don’t post it.