5. Police Disciplinary Action

5.10 Misconduct too serious to be resolved by way of an adverse report or reprimand is dealt with by laying a formal charge before the police disciplinary tribunal. The tribunal consists of a retired judge or senior lawyer. If the charge is proven, the Commissioner of Police may impose the following penalties: reduction in rank, reduction in seniority, reduction in pay, a fine not exceeding $500, or dismissal of the member. (566)

5.11 According to section 5A of the Police Act, the Commissioner of Police may institute the removal of a member of the police only “following an inquiry under section 12 of this Act into alleged misconduct”. Section 12(4) requires the person holding the inquiry to follow the procedure described in the regulations (although the rules of evidence can be relaxed to the extent that the inquiry may receive any relevant information whether or not this information would be admissible in a court of law). The regulations require the “investigation” to be carried out by the police disciplinary tribunal. The combined effect of the Act and regulations is therefore that the police commissioner cannot lawfully dismiss a member from his or her employment unless that member has first been found guilty of a disciplinary offence before the tribunal.(567) The obligation to follow the procedure prescribed in the regulations means that what would otherwise be an independent but not necessarily formal disciplinary inquiry under section 12 of the Act becomes a highly regulated and formal process.

5.12 Indeed, as a result of the Police Regulations, the police disciplinary tribunal hearing process is very similar to the hearing of a criminal prosecution. Regulation 24 says that the procedure at the hearing “shall conform as far as practicable and with any necessary modifications to that followed in District Courts in their summary criminal jurisdiction”. A disciplinary matter is referred to as an “offence” rather than “misconduct”; the tribunal hears the “charge” as opposed to considers the “complaint”. Witnesses may be called to give evidence, and can be tested by cross-examination. If the charge is a serious one, the standard of proof required is high, in effect commensurate with the criminal standard of “beyond reasonable doubt”.

5.13 Regulation 9 sets out a full list of 42 offences of misconduct or neglect of duty on the part of sworn members of police. The offences listed include the following:

5.14 I was told that the charges most commonly laid are those of disgraceful conduct or conduct tending to bring discredit on the police, negligence, and excessive use of force.(568)

5.15 Numerous formal elements to the tribunal process are also specified in the regulations. They include the following conditions:

5.16 The officer also has the right (under common law) to challenge the tribunal process by judicial review proceedings in the High Court.

Disciplinary system for non-sworn staff

POLICE DISCIPLINARY ACTIONS TAKEN

5.19 I was told that between 1995 and 2005 a total of 262 officers appeared before the tribunal (covering all misconduct cases). Of these, 129 resulted in guilty pleas, 25 were withdrawn, 55 did not proceed because the officer accused left the police before the tribunal hearing, and eight were ongoing in November 2005. Only 45 cases actually came before the tribunal, of which 28 were proven and 11 not proven; the remaining six were abandoned.(570)

5.20 I reviewed 313 complaints of sexual misconduct made against 222 police officers. Ninety-six of these complaints, made by 85 complainants against 51 members of police, resulted in some form of internal disciplinary action being taken against the member of police involved, or they were dealt with via the complaint resolution process prescribed under the New Zealand Police Sexual Harassment Policy. Of these 96 complaints, 62 complaints (against 21 officers) were referred for hearing before a disciplinary tribunal. The remainder were dealt with by some lower level sanction ranging from counselling to a reprimand. The outcomes of the disciplinary processes were as follows:

5.22 In summary, counsel assisting submitted to me that the current disciplinary regime for the police is “outdated and stands in the way of good employment practice”; and that, in relation to matters concerning this Commission, the regime neither facilitated fair dealing with complaints against the police nor promoted good performance management practices. Counsel assisting pointed out that a performance-based regime would have provided police management with the opportunity to shift poor performers more rapidly out of the police force if appropriate.(605)

5.23 Counsel for New Zealand Police submitted that, in general, the police supported the thrust of the submission from counsel assisting, and confirmed that it was largely in accordance with the position the police had advanced.(606)

5.24 The New Zealand Police Association, however, did not agree with the submission from counsel assisting. Counsel for the Police Association submitted that I should not accept the suggestion that the current regulations and policy framework are unworkable in relation to the management of poorly performing staff. In the association’s view, “the failings in the area of performance management are largely a result of a failure to implement the system that is currently in place.”(607) Counsel for the Police Association explained that the tribunal was a more formal environment than that which would be encountered by most employees when dealing with issues of discipline, but that did not make the system bad.(608)

5.25 The Police Managers’ Guild agreed that sworn police staff should be subject to the provisions of employment law applicable to other employees in the public sector, based on a code of conduct. However, the guild submitted that the disciplinary tribunal should be retained for matters other than performance management (for example, matters of serious misconduct).(609)

5.26 What follows in this section of my report has been informed by the submissions I received from counsel assisting, taking into account also the submissions of the parties to the inquiry.

THE WIDER EMPLOYMENT CONTEXT

5.30 As advised by counsel assisting,(610) in the normal employment context, case law confirms that natural justice will usually involve the following:

5.31 These obligations and protections provide a sound platform for governing how issues of misconduct are addressed in New Zealand workplaces. In my view, it is important to have very good reasons for supplementing these obligations and protections.

ISSUES ARISING IN RESPECT OF THE POLICE DISCIPLINARY SYSTEM FOR SWORN STAFF

5.35 Police Commissioner Robinson described the police disciplinary framework as “cumbersome”.(611) Indeed, I was disturbed by the sheer volume of paperwork that the system generated and the amount of staff time involved in administering it. For example, I saw two investigations into officers that each comprised 19 files.(612) Dealing with each of these officers spanned several years and would have involved extensive management time.

5.36 I accept that an effective system for investigating serious allegations will always be resource-intensive and will generate considerable paperwork. It is also clear to me that the police have struggled to find the best way of managing the disciplinary process. Because of its cost and complexity, taking disciplinary action against a sworn member often takes a long time to get under way and to be completed. The time frames are similar to those in the criminal courts. Those representing accused officers seek to have disclosure of statements and discovery processes completed. There is often a debate about availability of hearing dates, difficulty in appointing a tribunal, and for achieving agreement between the tribunal and the respective counsel as to an appropriate date for the hearing. All of this results in matters taking some time to be heard. Delays can be difficult for all those involved.

5.37 The need to use the formal disciplinary process for cases of sexual misconduct has clearly made it more difficult for the police to deal with such matters than is the case for other employers. This may lead to a reluctance to initiate formal disciplinary proceedings because of the significant cost (both monetary and in terms of the time and energies of senior police officers) of doing so.

Need for the complainant to be identified and to make formal complaint

5.38 In the normal employment context, employers can act upon complaints of misconduct even if the complainant is reluctant to be identified. Moreover, in cases involving the disclosure of serious wrongdoing under the Protected Disclosures Act 2000, an employer has an express duty to protect the confidentiality of the discloser as far as possible. However, the police told me that, because of the quasi-judicial nature of the police disciplinary process, they must have evidence to prove a charge before they can initiate disciplinary action.(613) In many cases, that evidence can be given only by the complainant, who must be willing to testify if necessary at a formal, defended hearing and face cross-examination.

5.39 Identifying the complainant is necessary in any employment situation where misconduct is alleged against an employee – for example, in a case of sexual misconduct of an identifiable individual. However, the additional requirement that the complainant be prepared to give evidence before a formally constituted tribunal may well be a factor in making victims (particularly fellow officers, but also those complainants who are aware of what the process involves) reluctant to come forward and/or to proceed with a complaint. If victims are reluctant to come forward there is greater risk that behaviour (such as offensive language or offensive behaviour) that may not in itself be considered serious enough to warrant the full disciplinary process may not be picked up by the performance management process. Such behaviour may be a good predictor of a risk of more serious misconduct.

Formality of the process and the high standard of evidence and proof

5.40 In any disciplinary proceedings involving an employee, the employer must reach a decision that, on the information available, is reasonably open to the employer to reach. The nature and gravity of the issue necessarily determines the manner in which the employer reasonably satisfies itself of the truth of any allegations made against the employee.(614) This standard is commonly known as the “sliding scale” standard. Applying this approach, the police disciplinary tribunal determines the standard of proof required to prove a charge under the Police Regulations on the basis of the seriousness of the charge. Where a disciplinary charge is based on actions that are also (or have been) subject to a criminal charge then the appropriate standard of proof will usually equate to the criminal standard: proof beyond reasonable doubt.

5.41 This creates two risks for the disciplinary system. First, although a sliding scale standard of proof applies, the nature of the process means that more often than not those involved may assume that the criminal standard of proof applies to the tribunal. This type of assumption appears to be not uncommon among those involved in police disciplinary matters. That is to be contrasted with the more flexible approach taken in the usual employment situation where the employer is entitled to weigh conflicting information and come to a reasonable decision having regard to the nature and gravity of the matter. Secondly, there is a risk that acquittal of an officer on a criminal charge could inhibit management from bringing a disciplinary charge based on the same incident even if the conduct is deserving of action within a disciplinary framework. In my view this approach is too black and white. A jury in a criminal trial may be unlikely to convict for a range of reasons – for example, inconsistent evidence or witness credibility. But that should not preclude the police from forming a view as to the facts of the case for the purposes of disciplinary action, and acting accordingly. Sometimes an allegation may fall evidentially short of the criminal standard of proof for rape or other sexual offending but the conduct established is nonetheless entirely inappropriate and should be the subject of disciplinary action.

5.42 The risks arising from the formality of the process are greater where the complaint is one of sexual assault or harassment. The police disciplinary process, proceeding, as it does, like a criminal trial, has the same traumatic implications for the complainant. It is understandable that some complainants may not wish to put themselves through such a process, particularly after an acquittal in the criminal courts. This would not be necessary if the usual employment disciplinary processes could be followed.

5.43 The evidence before the Commission suggested that the criminal process mind-set of the police influences the investigation of complaints and the prosecution of disciplinary charges. This is not intended as any criticism. Police officers are required to undertake meticulous and rigorous evidential inquiries in order to successfully bring to justice those who have committed criminal offences. General instruction IA111(5) imposes the same high standards of evidence and proof in respect of the investigation of complaints against members under the Police Complaints Authority Act 1988. One can well understand that, being familiar with these processes, the police appear to see it as the only fair way to proceed in disciplinary matters as well.

5.44 However, this approach overlooks the fundamental difference between criminal prosecution, with its limited outcomes (guilty or not guilty), and a performance management system with its wider set of outcomes. An approach that draws upon the mind-set of criminal investigation is less likely to result in disciplinary action in response to information that is uncorroborated, such as a sexual assault complaint, than a less formal process would. I do not consider the fact that the police deal routinely with very difficult people, who are perhaps likely to make false complaints, as a reason justifying a more formal disciplinary process for the police than for other types of employee. The Commissioner of Police as employer should be well able to assess the reliability and credibility of the relevant evidence, after an independent (but not necessarily procedurally formal) inquiry where that is necessary or appropriate.

5.45 The current disciplinary system thus creates a confused amalgam of criminal prosecution and employment law. It implies that the disciplinary process imposes the same evidential obligations and standards as the criminal courts, and that disciplinary offences effectively mirror criminal offences. The tribunal applies the sliding scale standard of proof applicable in any employment situation but in a manner that effectively equates the standard in serious cases to the criminal standard of proof. The procedural formality of the tribunal process exacerbates this.

5.46 I believe this is conceptually wrong. It does not follow that an officer’s ability to continue as a police officer should remain unquestioned, just because his or her behaviour does not meet the standard of proof of “beyond reasonable doubt” applied in the criminal courts or cannot be established by formal proof in an adversarial tribunal process. Under a modern performance management process, incorporating standard employment law obligations and protections, inappropriate conduct should be capable of investigation using a range of possible methods, and should be subject to the full range of possible sanctions, including dismissal.

5.47 The police submissions on a draft of my report said that cases are most commonly brought before the tribunal where the police wish to consider dismissal of the member. They did not agree that the police fail to distinguish appropriately between disciplinary and criminal matters, and rejected any suggestion of charges not being brought before the tribunal where it would have been appropriate to have done so. Rather, they stressed the need to be confident in a disciplinary situation about whether misconduct has been established to a level commensurate with the seriousness of an allegation (and the potential consequences, including dismissal), which is a common feature of the tribunal’s processes and of employment law.(615)

5.48 There is no dispute about the need to establish whether the misconduct occurred to the necessary legal standard. My concern is that the high standards of formality and proof required by the tribunal process prevent disciplinary matters being pursued with the same degree of rigour and flexibility as happens in other employment situations.

Time limits on bringing charges

5.50 The result is that if the officer is acquitted of the criminal charges, and if disciplinary charges have not been laid within the 12-month period, then police management has little option but to reinstate the officer despite the officer having behaved in a manner that may not meet acceptable standards of personal behaviour expected of a police officer. Again, this situation is an example of where, if the police had a disciplinary system based on a code of conduct, they would still be able to take disciplinary action based on a breach of professional behaviour, even if the criminal charges took time to proceed through the courts, and/or the police officer was acquitted.

Balance of protection

5.55 Were the separate police disciplinary system to be abolished, members of the police who believed they had been unfairly treated or unjustifiably dismissed would be amply protected by their ability to take a personal grievance to the Employment Relations Authority.(616)

Separation of discipline from performance management

5.57 The separation of these functions is highly unusual. Mr Wayne Annan, New Zealand Police General Manager: Human Resources, who had previously worked in several private sector organisations, told me that he had never known an organisation where the disciplinary process was outside the human resource function.(617)

5.58 This systemic disjunction between 1979 and 2006 has caused a range of difficulties associated with the police disciplinary process:

Divergent approaches to dealing with misconduct

5.59 The split between the functions of Professional Standards and Human Resources has encouraged two divergent philosophies and approaches around dealing with misconduct. The Professional Standards section, headed by a senior detective, approaches discipline from within a criminal investigative framework that focuses on whether the allegations are sufficiently supported by credible, admissible evidence to meet a standard of proof equivalent to that of “beyond reasonable doubt” so as to obtain a conviction.

5.60 By contrast, human resource specialists generally prefer to take a problem-solving approach of “let’s understand the problem and deal with the problem.”(618) Mr Annan told me that the human resources approach involves “having some dialogue, listening, understanding what the problem is, looking at the collective patterns that exist, and then without perfect information make some decisions and act on those.”(619)

Need for consistency in dealing with misconduct

5.61 Also associated with the responsibility for disciplinary matters is the issue of national consistency. Under the disciplinary system, district commanders have authority to administer discipline for their own staff and operate their own Professional Standards units. Each district has a Professional Standards group, which carries out its function in various ways. I heard from one district commander who has taken control of the complaint process and manages it himself to ensure that it is done to his requirements.(620)

5.62 The Professional Standards section at the Office of the Commissioner seeks to ensure that there is a consistent approach to dealing with similar misconduct across the country. It reviews the district commanders’ recommendations to issue a reprimand or lay a disciplinary charge before these are submitted to the Commissioner of Police.

5.63 As noted in Chapter 2, in November 2005, in response to concerns raised by my inquiry, I was informed by the police of a proposal to enhance the Professional Standards section, increase its resources, and give it more control over the complaints process at a district level.(621) I was also informed of a direction given by Police Commissioner Robinson that in all future investigations of complaints against police (other than reasonably minor matters deemed appropriate for the District Complaint Resolution(622) process), district commanders were required to consult with the Professional Standards national manager regarding the appointment of an investigating officer. The purpose of this directive was to achieve consistency across districts and to ensure that the principles of independence were appropriately applied.(623)

Dealing with persistent poor behaviour

5.64 I questioned Mr Annan regarding how the police might deal with an officer who consistently behaved in an unsatisfactory manner. He told me that the tribunal is a poor forum for dealing with persistent low-level misconduct, which is far more appropriately addressed by the performance management system. Although it would be possible to draft a charge of “disgraceful conduct”, he said, in reality that would be unlikely to occur because “the energy and efforts that go into these things are so significant that it’s unlikely to happen for those things that would be considered not serious.”(624)

5.65 There is also the issue of the obvious lack of fit between discipline and the performance management process. At present the police have no fair and proper means to dismiss a person who is unsuited for police work save by categorising their actions as misconduct and proceeding with the full force of the disciplinary tribunal process. I have already commented on the disincentives that exist to taking this approach. This appears to have resulted in reliance, instead, on informal processes, such as the Police Association persuading unsuitable officers to leave the organisation. I accept the police’s comment that the two organisations work cooperatively in this regard. But the extent of the police’s reliance on the Police Association to persuade unsuitable staff members to leave is extremely unusual in my experience. It is also undesirable, because it results in a perception that the police union has been ceded the power of the employer; that should belong to the Commissioner of Police.

5.66 These issues will need to be addressed as the integration of the discipline and human resources functions proceeds on from the establishment of a single management structure on 1 July 2006.

Development of an early warning system

5.67 The separation between the disciplinary and performance management systems may also have impeded the development of an effective early warning system (discussed in Chapter 6). I was told in November 2005 that the police were implementing a national early warning system whereby routine assessments are undertaken to determine whether an officer is at risk of doing something that could embarrass the organisation and harm other police members or members of the public.

5.68 Having an integrated approach to human resource management and staff discipline will assist the technological development and operation of the early warning system. At the moment the complaints database is not part of the human resources database so the human resources staff do not have access to it.(625)

5.69 The police did not accept that the separation of human resource management and discipline had impeded the development of early warning systems. However, they confirmed that the integration of the two sections will include amalgamating the relevant databases and developing appropriate strategies for early intervention.

Letters of appreciation sent to officers facing disciplinary charges who disengage

5.70 The Commission heard evidence of another matter caused by the separation of human resources and professional standards data into separate information “silos”. Human resources staff had sent out standardised letters of appreciation generated from the human resources database to police officers who had resigned or disengaged from the police while disciplinary charges were in train (disengagement is discussed further below).

5.71 In some cases I reviewed, officers who were referred for disciplinary charges after an investigation into alleged sexual misconduct but who disengaged before the hearing were subsequently sent standard letters from police management thanking them for their years of “dedicated” or “faithful” service; in reality, they were leaving under a cloud because of their alleged misconduct.(626) For example, an officer who faced four disciplinary charges for alleged sexual misconduct under the provisions of the Police Regulations and who disengaged before the tribunal hearing received a letter from the police expressing appreciation:

5.72 These letters caused me two points of concern. The first was that the message they gave to the departing officers was one of tolerance of their inappropriate conduct. Such letters could be used in a retiring officer’s curriculum vitae and give misleading information to other employers. My second concern was that, had the complainants seen these letters, they could have inferred from them a cultural or institutional lack of appreciation of the seriousness of the situation under which these officers were disengaging.

5.73 After having drawn attention to these letters during this inquiry, I was told in November 2005 that the police were now no longer sending standard letters of thanks to people who were disengaging or retiring with disciplinary or criminal matters pending.(628) I was informed that the alert system for avoiding these standardised letters being sent out was still a manual one because the human resources staff did not have access to the complaint database held by Professional Standards.(629) I would be very concerned if this practice were still continuing because of lack of administrative oversight and poor human resources systems.

Views on division of responsibilities and their integration

5.74 In its submission on my draft report, the Police Managers’ Guild accepted that there is inconsistency in the police about who is responsible for performance matters involving sworn staff. The guild commented that some districts see it as a Human Resources responsibility, others as a Professional Standards responsibility. The guild does not have a view either way, but asked whichever group was given responsibility for that group to develop and promulgate clear guidelines.(630)

5.75 The Police Association strenuously opposed any move to bring discipline of sworn members under the responsibility of the human resources general manager, on the basis that sworn members are not simply employees and, presumably, that they should not be disciplined by non-sworn staff. The association considered that disciplinary matters should remain the responsibility of the Professional Standards section, which should be given better resources, skills, and procedures for the task.

5.76 My view is that the separation of functions has done little to assist the police to deal effectively with poor performance or misconduct amongst officers. Although a formal, adversarial approach may be satisfactory for the criminal jurisdiction, it is not effective in an employment context when dealing with misconduct.

5.77 The police themselves accepted the need for the two functions to be integrated. The first stage in remedying the separation of function occurred on 1 July 2006, when the Professional Standards national manager began to report to the Human Resources general manager. The police noted that integration of the Human Resources and Professional Standards sections would have occurred earlier had the proposed code of conduct been introduced as a consequence of the Police Amendment Bill (No 2).

5.78 The police told me that the integration will lead, in time, to greater sharing of information between the human resources and disciplinary sections, and will ensure that Human Resources retains oversight of the steps taken after internal inquiries – whether performance-based or disciplinary.(631) Although I am pleased to note this development, I regard it as only a start. I remain concerned about the effectiveness of the police performance management and disciplinary system processes. The two functions will need to be fully integrated in all aspects of their operations and systems to ensure the integration is truly effective.

5.79 In my view the police would benefit from an independent review of the two functions to ensure that the integrated systems and processes are adequate, standardised, and managed to a standard that is consistent with best practice in the public sector. I believe that the State Services Commission, as the agency with overall responsibility for public sector management, should undertake this review.

Disengagement

5.83 The position is different for a member of the Police Superannuation Scheme (PSS), which replaced the GSF as the superannuation scheme for police members joining after 1992. Under the PSS a member who resigns is treated in the same way as one who retires. The fact that PSS members can leave the police with their full superannuation entitlement, whenever they wish, is seen by the police as almost certainly the reason why applications to disengage have decreased significantly in recent years.(632) Disengagements under section 28 fell from 244 in 1999 to 95 in 2005. At the same time resignations increased steadily over this period from 49 in 1999 to 205 in 2005.

5.84 For those members who are still members of the GSF, all applications for disengagement are now considered by the human resources general manager, who has the delegated authority to accept or decline applications to disengage. I was told by Mr Annan that when he considers an application for disengagement under section 28 from a member who is also under investigation for a disciplinary or criminal matter, he is advised of concurrent disciplinary action by Professional Standards, and takes into account whether the application was made before the applicant knew he or she was being investigated, and whether the application is in any way linked with the complaint that has been made about the member. Where it is apparent that either situation exists, Mr Annan said that the application would ordinarily be declined.(633)

5.85 I was also told that this has not always been the case,(634) and that was apparent from a number of the files I studied. The files indicated that, provided medical certificates properly supported the application, the member was generally able to disengage and claim full pension entitlements and severance pay. I saw examples on the files where members disengaged prior to the tribunal hearing, particularly when they realised that they were likely to face a significant penalty such as dismissal.(635)

5.86 The Police Association pointed out that disengagement is a right that any officer who joined the police before 1992 can claim provided that there is proper supporting evidence (for example, medical certificates). I accept that. However, officers could disengage on medical or psychological grounds such as stress arising from or exacerbated by the officer’s own misconduct and/or its reporting. For example, one officer who was the subject of a rape allegation, and was then served disciplinary charges, disengaged on the same day the disciplinary charges were served on him. Counsel for the police made a submission on this case:

5.87 Complainants in such cases could be left with a sense of injustice when advised the disciplinary matter could not be taken further because the alleged offender had disengaged and was no longer a member of police (criminal proceedings not being in contemplation).

5.88 The police pointed out that, in the cases in question, disciplinary proceedings had been launched with a view to dismissing the offending members from the police. If those members chose to leave of their own accord, then the objective of the exercise was achieved. The police said that there was nothing inherently objectionable about resolving applications for disengagement on their merits, and permitting members who had demonstrated that they were unfit to continue in the police to leave before the disciplinary process had run its course. Every disengagement had to be supported by proper documentation, including certificates from independent medical practitioners. Nevertheless, the police said that in each of these cases the formal complaints made were still determined (and inevitably upheld) by both the police and the PCA, thereby vindicating the complainants.(637)

5.89 I accept that police members who appeared to have left with large sums through disengagement were in fact receiving payments that represented capitalisation of many years of contributions. The payments were not any form of bonus or golden handshake. Police members of the GSF, as with other public servants who leave before their retirement date, are entitled to receive back their contributions plus interest, and (depending on their length of service) are entitled to the employer’s contribution as well.

5.90 My concern is that allowing the voluntary departure of the members (as opposed to their dismissal), and the consequent abandonment of disciplinary proceedings, gave complainants the message that their complaints were being swept under the carpet and that the officers were incurring no penalty at all for their misconduct. In many instances, the timing of the disengagement and the fact that it was permitted on the grounds of stress arising from or exacerbated by the disciplinary charges themselves gave the appearance that the police management was relieved at the departure of a troublesome officer and avoidance of a time-consuming and costly tribunal process; meanwhile, the officer concerned was able to take with him superannuation contributions from the commissioner and other benefits. I do not wish to suggest that there was anything improper about this. However, it created a perception that the outcome was mutually beneficial for the police and the officer concerned, and in some cases, a perception of collusion – the police “looking after their own”. Two of the submitters who appeared before me were very concerned that the alleged offender in each of their cases had been able to disengage from the police without going through the disciplinary process.(638) The message to complainants from all of this was a harsh and hurtful one.

5.91 I do not agree that it is an acceptable outcome for a member facing disciplinary proceedings to disengage rather than face the tribunal on the sole basis that he or she meets the test for disengagement. The fact that a complaint under the Police Complaints Authority Act 1988 (PCA Act) may later be upheld will be small comfort to a complainant in the absence of any disciplinary penalty. In my view, when an employee who has been accused of serious misconduct seeks to resign, the employer should have the option of declining to accept the resignation in order to see a disciplinary process through to formal dismissal – on the basis that the misconduct is too serious not to have some sanction. In my experience, that is common practice in the public sector and some professions.(639)

ADEQUACY OF THE CURRENT DISCIPLINARY SYSTEM

5.93 New Zealand Police said that the reasons for the present arrangement were unclear. It was likely that it had its origins in the nature of the office of constable, by which police officers are not “normal” employees but enjoy considerable independence. However, the police submissions during the hearings confirmed that the present arrangements are not necessary to preserve the independence of the office of constable.(641)

5.94 More importantly the police said that the disciplinary system draws no distinction between misconduct that reflects bad behaviour and that which reflects poor performance. They told me that there are disciplinary options that do not require the tribunal’s involvement, that performance issues can be addressed as part of routine supervision, and that the police have always been attuned to the possibility that conduct perhaps falling short of provable criminal conduct may nonetheless indicate entirely inappropriate behaviour and need to be dealt with accordingly. But they accepted that the tribunal is a poor forum for addressing persistent low-level misconduct because, no matter how badly a police officer performs and how many warnings he or she receives, under the present law he or she cannot be sacked for incompetent performance alone.(642)

5.95 The police submitted that there appeared to be little justification for the continuation of such an anomalous employment regime, and that very few other employment relationships provided such a significant additional safeguard to employees, or such a steep additional hurdle for an employer.(643) Employment-based mechanisms for dealing with issues of performance are therefore an essential reform.(644)

5.96 Several witnesses from the Police Association and New Zealand Police who appeared before this Commission argued, on the other hand, that the current disciplinary system was justified. Their arguments for its retention can be summarised as follows:

5.97 The Police Association submitted that the disciplinary tribunal system is appropriate for the police environment because police officers occupy a particularly difficult position in society in that their employer is also an investigator and prosecutor. For these reasons the association believes that it is imperative that those who know and understand the issues that confront police officers deal with matters of discipline. Mr Greg O’Connor, President of the New Zealand Police Association, maintained that it is a matter of natural justice for someone who faces a career-ending allegation to have that allegation properly investigated, particularly if the allegation is strenuously denied.(645) The current disciplinary system is “a framework to ensure that Police follow a process that provides natural justice for the employee”.(646)

5.98 The association also made the point that the Commissioner of Police has a very low level of dismissal of non-sworn staff in the organisation, despite the fact that for non-sworn staff the police do not need to go through the tribunal process.(647) Evidence presented by the association suggested that the problem lay as much with poor performance management practices by supervising officers as with any deficiency in the tribunal process. In its evidence the association also told me that there is an understandable and logical way in which trained detectives conduct investigations, and these officers find it difficult to distinguish between criminal investigations and employment investigations because sometimes they are the same thing in the sense that an employment investigation arises out of a criminal investigation.(648)

My views on the system

5.100 I agree with Police Commissioner Robinson that the need to charge the member with a disciplinary offence under the Police Regulations, and have the charge heard before the disciplinary tribunal, is both cumbersome and anachronistic. The formality of the tribunal process reinforces the difficulties caused by the standard of proof, and appears to lead some of those involved in the system to assume that the standard of proof applying for proving any breach of the regulations is the same as it is in the criminal law. The fact that cases of sexual assault and abuse are particularly difficult cases to prove in the criminal court does not mean that they should not be pursued for disciplinary purposes.

5.101 It may well be the case, as suggested by the Police Association, that those who manage the performance of front-line police are not particularly adept at following best practice. If so, I would suggest that the disciplinary process exacerbates this situation, because, whereas normal employment law requires an employer to follow a fair process when dealing with poor performance (for example, in giving clear instructions about the expected level of performance, giving timely warnings about poor performance, and providing opportunities for staff to respond with improved performance), the police system requires only that management prove a single “charge” in a formal setting, typically to a high standard of proof. In other words, the system is punitive and adversarial, and works against performance management that is based upon constructive and facilitative processes.

OPTIONS FOR REFORM

5.103 Police Commissioner Robinson suggested to me in evidence that even under a system governed by a code of conduct there would be scope to retain a formal disciplinary tribunal for some cases, for instance for serious allegations of misconduct where there are significant factual disputes and/or credibility issues, or where there are allegations of criminal offending.(649) The draft code of conduct for sworn members included provision for a national disciplinary panel that would make classification decisions when a matter first surfaced, for instance whether the officer’s behaviour was a performance issue, a misconduct issue, or an issue that involves criminality. If the matter were classified as serious, with dismissal as a possible penalty, the officer concerned would have the ability to make representations to a decision-maker and independent person.(650)

5.104 The Police Association supported the introduction of a code of conduct. But it also favoured retaining the tribunal, with various procedural reforms, to provide an avenue for independent inquiry into allegations of conduct that is not plainly criminal but that might, if established, give rise to criminal charges – for example, complaints about the use of excessive force. The association proposed the following procedural reforms:

5.105 Despite these proposals, it is my firm view that retaining the police disciplinary tribunal in any form would be a retrograde step. Retaining the tribunal only for the most serious matters would add nothing but further complication to the process for managing serious misconduct by sworn members. The well-established principles of employment law provide more than adequate protections for employees of the police, including in cases where misconduct is sufficiently serious to warrant the intervention of the criminal law. The question of criminality is for the courts; the employment-related consequences of the conduct are a matter for the Commissioner of Police as employer.

Safeguarding procedural integrity and fairness

5.106 In their submissions on a draft of this report, the police accepted that the requirements in the regulations that an adversarial hearing be convened, and that the proceedings resemble a criminal trial, are unnecessary in the employment context and should be abolished. They also agreed that the 12-month limitation for disciplinary proceedings could no longer be justified. Their only concern was to preserve the legal obligation to establish misconduct to a level commensurate with the seriousness of the allegation. To this end, they urged retention of independent involvement (albeit without any of the formal trappings of the existing system) in those cases where it would prove to be a help rather than a hindrance.(652)

5.107 In my view, a well-functioning human resources system operating within the normal employment law context would ensure both a due level of inquiry into allegations of misconduct, so that the public can have confidence in all members of the police force, and a procedure that is fair to the employee and meets the requirements of natural justice. Abolishing the tribunal would enable a more flexible approach to such inquiry, while still enabling the Commissioner of Police, as employer, to have the necessary independent factual assurance before taking serious action against a member (as is required by section 12 of the Police Act in a case involving dismissal).

Interface with the complaints system

5.110 I also note, in respect of complaints, that the PCA has the power under sections 27(2) and 28(2)(b) of the PCA Act to recommend to the police commissioner that disciplinary proceedings be taken against a member after a complaint investigation.

The case for interim reform

5.111 The Police Amendment Bill (No 2) was intended to streamline and strengthen disciplinary processes for police staff who fall short of the required standards.(652) The bill provided for the abolition of the tribunal, and the police told me that it would have given them a legal base for a code of conduct and the means of tackling poor performance using modern human resource practices.

5.112 In explaining the changes that would have arisen from the new system under the bill, Police Commissioner Robinson told me,

5.113 The Police Association told me that it had made representations to the Minister of Police in November 2005 on the bill. In its submission to the minister, the association stated that its view was unchanged since 2001, when the bill was first introduced; in particular, the association believed the bill was “an exaggerated response” to the four specific issues of concern that the bill addressed.(654) The association told me in December 2005 that it believed that the bill should be abandoned and had made a submission to the Minister of Police to that effect.(654)

5.114 In March 2006 the bill, which had been before Parliament since 2001 was withdrawn, after the announcement by the Minister of Police that the Police Act 1958 and the Police Regulations 1992 were to be reviewed.(655)

5.115 I am very concerned that the review of the Police Act will take a long period of time and will delay the vitally urgent reform that is needed of the current disciplinary system. The review of the Act is comprehensive, and will not be finalised until at least 2008. I believe it is imperative that interim changes are made, pending the outcome of the review.

5.116 The interim changes I propose would involve Government revoking (by executive action) those provisions of the Police Regulations that establish the disciplinary tribunal system, and adopting in its place a system based upon a code of conduct. I believe that a suitable code of conduct should govern the discipline of sworn staff, as it does for non-sworn staff. (The issue of the need for a code of conduct for sworn staff is addressed in more detail in Chapter 6 and gave rise to recommendation R38.) Dealing with misconduct by non-sworn staff is more straightforward because they have a code of conduct in place.

5.117 Revoking the relevant regulations would allow discipline to be dealt with by the Commissioner of Police under his general powers as an employer, as envisaged by sections 5(4) and 5A of the Police Act. Pending completion of the review of the Act, those sections would remain subject to the obligations in the Act itself in relation to termination. Importantly, those obligations include section 12(2), which provides that dismissal of a member can occur only after an independent (but not necessarily procedurally formal) inquiry. In short, it would enable the police to adopt a best practice State sector disciplinary process.

5.118 It appears, then, that my proposal for interim reform largely accords with the police views, because an independent (but not formal) inquiry could continue to occur in serious cases as required by the Police Act. The process would be more straightforward, and would better integrate with performance management processes. I would expect, as a result, better performance management within New Zealand Police and the ability for the organisation to more appropriately discipline sworn members of the police who engage in sexual activity that gives cause for concern.

RECOMMENDATIONS

Footnotes for this Section

559. Mr Wayne Annan, New Zealand Police General Manager: Human Resources, Brief of evidence, 17 November 2005, p. 10.

560. Superintendent Stuart Wildon, New Zealand Police National Manager: Professional Standards, Brief of evidence, 21 November 2005, p. 9.

561. Superintendent Stuart Wildon, New Zealand Police National Manager: Professional Standards, Brief of evidence, 21 November 2005, p. 9.

562. Superintendent Stuart Wildon, New Zealand Police National Manager: Professional Standards, Brief of evidence, 21 November 2005, pp. 9 and 10.

563. New Zealand Police, General instruction IA122, “Disciplinary Action”, last published July 2002.

564. The performance appraisal process involves an assessment of an employee’s performance against both the functional requirements of their position and the police competency framework. The appraisal process is designed to consider not only the results produced by a particular employee, but also how those results have been achieved.

565. New Zealand Police, General instruction IA131, “Counselling”, last published July 2002.

566. Police Act 1958 sections 5(7) and 5A.

567. New Zealand Police, Closing submissions, 16 December 2005, p. 31.

568. Superintendent Stuart Wildon, New Zealand Police National Manager: Professional Standards, Brief of evidence, 21 November 2005, pp. 10 and 11.

569. Regulations 9(12), 9(40), and 9(5) respectively; Superintendent Stuart Wildon, New Zealand Police National Manager: Professional Standards, Brief of evidence, 21 November 2005, p. 11.

570. Detective Superintendent Malcolm Burgess, Brief of evidence, 29 November 2005, Appendix 9.

571. Operation Loft files LT 80, LT 86, LT 94, LT 104, LT 131, LT 133, LT 142, LT 149, LT 163, and LT 187.

572. Operation Loft files LT 104 and LT 133.

573. Operation Loft file LT 86.

574. Operation Loft files LT 80, LT 94, LT 131, and LT 149.

575. Operation Loft file LT 187.

576. Operation Loft files LT 142 and LT 163.

577. Operation Loft files LT 149, LT 161, and LT 190. One of these officers also had a complaint against him proven (LT 149).

578. Operation Loft files LT 67, LT 96, and LT 138. (The officer who is the subject of LT 96 had also previously received an adverse report as a result of a sexual harassment complaint. He is also the subject of LT 116.)

579. Operation Loft file LT 67.

580. Operation Loft file LT 67.

581.Operation Loft file LT 116. This officer is also the subject of LT 96.

582. Operation Loft file LT 138.

583. Operation Loft files LT 1, LT 91, LT 125, LT 126, LT 139, and LT 141. (The officer who was the subject of LT 91 had previously had a sexual harassment complaint made against him, which had been resolved.)

584. Operation Loft file LT 139.

585. Operation Loft files LT 1, LT 125, and LT 126.

586. Operation Loft files LT 91 and LT 141. (Another complainant had also made a complaint of sexual harassment against the officer who was the subject of LT 91. This complaint was resolved under the sexual harassment procedures.)

587. Operation Loft files LT 88, LT 116, LT 124, and LT 208. (The officer who was the subject of LT 116 is also the subject of LT 96, and is also included in the statistics relating to the number of officers that resigned before a disciplinary hearing.)

588. Operation Loft file LT 208.

589. Operation Loft files LT 88 and LT 116. (The officer who was the subject of LT 116 resigned prior to a disciplinary hearing into charges resulting from other complaints (LT 96).)

590. Operation Loft file LT 124.

591. Operation Loft files LT 30, LT 75, LT 120, LT 146, and LT 147. (The complainant in LT 30 also complained about the behaviours of another police member in LT 3 and as a result of this complaint the police member was counselled.)

592. Operation Loft file LT 75.

593. Operation Loft file LT 87.

594. Operation Loft files LT 3, LT 115, LT 136, LT 150, LT 167 (two officers were counselled as a result of one person’s complaint), LT 169, LT 188 (six members of police were counselled as a result of one person’s complaint), LT 212, and LT 216 (two officers were counselled as a result of one person’s complaint).

595. Operation Loft file LT 188.

596. Operation Loft file LT 216.

597. Operation Loft file LT 212.

598. Operation Loft file LT 169.

599. Operation Loft files LT 136 and LT 167.

600. Operation Loft files LT 115 and LT 150.

601. Operation Loft file LT 3.

602. Operation Loft file LT 188.

603. Operation Loft files LT 39, LT 91, and LT 201. (The officer who was the subject of LT 91 was also the subject of other sexual harassment complaints. He disengaged prior to a disciplinary hearing in relation to these complaints.)

604. Operation Loft files LT 103, LT 123, LT 154, and LT 199. (These complaints are not included in the 96 complaints mentioned in the first sentence of the current paragraph because the members’ resignation or disengagement was completed before any disciplinary action was taken.)

605. Ms Mary Scholtens QC, Counsel Assisting the Commission of Inquiry into Police Conduct, Submissions in relation to issues surrounding the police disciplinary framework, 8 December 2005, p. 13. (For comment on the provision of references to quotations, submissions, and other information provided by the parties, refer to “Notes for readers” in the Appendices.)

606. New Zealand Police, Transcript of hearing, 8 December 2005, p. 24.

607. New Zealand Police Association, Closing submissions, 16 December 2005, p. 6.

608. New Zealand Police Association, Closing submissions, 16 December 2005, p. 6.

609. Police Managers’ Guild, Submissions in response to draft report, 9 May 2006, p. 5.

610. Ms Mary Scholtens QC, Counsel Assisting the Commission of Inquiry into Police Conduct, Submissions in relation to issues surrounding the police disciplinary framework, 8 December 2005.

611. Police Commissioner Robert Robinson, Brief of evidence, 28 November 2005, paragraph 32.

612. Operation Loft files LT 3 and LT 86.

613. Superintendent Stuart Wildon, New Zealand Police National Manager: Professional Standards, Brief of evidence, 21 November 2005, pp. 7–8.

614. The leading legal authority for this proposition is Khawaja v Secretary of State for the Home Department [1983] 1 All ER 765, 784.

615. New Zealand Police, Submissions in response to draft report, 20 June 2006, p. 86.

616. The Employment Relations Authority is an investigative body that operates in an informal way to resolve employment relationship problems. It looks into the facts and makes a decision based on the merits of the case, not on legal technicalities. Before conducting an investigation the authority will consider whether it is possible to resolve the problem by mediation. (Refer http://www.ers.dol.govt.nz/problem/authority/)

617. Mr Wayne Annan, New Zealand Police General Manager: Human Resources, Transcript of hearing, 18 November 2005, p. 33.

618. Mr Wayne Annan, New Zealand Police General Manager: Human Resources, Transcript of hearing, 18 November 2005, p. 28.

619. Mr Wayne Annan, New Zealand Police General Manager: Human Resources, Transcript of hearing, 18 November 2005, p. 28.

620. Superintendent Mark Lammas, District Commander, Central, Brief of evidence, 15 November 2005, p. 5.

621. Police Commissioner Robert Robinson, Brief of evidence, 28 November 2005, p. 6.

622. The District Complaint Resolution system was developed by the Police Complaints Authority as an effective means of resolving a problem arising between a member of the public and the police. It is used where a complaint of a non-serious nature is made, for example a complaint of poor attitude as opposed to criminal behaviour. This is discussed in Chapter 4.

623. New Zealand Police, Memorandum from Police Commissioner Robinson to Office of the Commissioner executive and district commanders, 24 November 2005.

624. Mr Wayne Annan, New Zealand Police General Manager: Human Resources, Transcript of hearing, 18 November 2005, p. 30.

625. Mr Wayne Annan, New Zealand Police General Manager: Human Resources, Transcript of hearing, 18 November 2005, p. 17.

626. For example, Operation Loft file LT 126.

627. Operation Loft file LT 1.

628. I note that in their June 2006 submissions in response to the draft report, New Zealand Police submitted the following: “It is far from uncommon for employees who are leaving a job, even under difficult circumstances, to receive kind words and thanks from their employer, especially where they have held their position for many years.” (New Zealand Police, Submissions in response to draft report, 20 June 2006, p. 96) I did not receive any evidence in support of this assertion, and my experience in the public sector suggests otherwise.

629. Mr Wayne Annan, New Zealand Police General Manager: Human Resources, Transcript of hearing, 18 November 2005, p. 17.

630. Police Managers’ Guild, Submissions in response to draft report, 9 May 2006, p. 5.

631. New Zealand Police, Submission re Integration of Professional Standards and Human Resources, August 2006.

632. Mr Wayne Annan, New Zealand Police General Manager: Human Resources, Brief of evidence, 18 November 2005, p. 13.

633. Mr Wayne Annan, New Zealand Police General Manager: Human Resources, Brief of evidence, 18 November 2005, p. 13.

634. Mr Wayne Annan, New Zealand Police General Manager: Human Resources, Brief of evidence, 18 November 2005, p. 13.

635. For example, Operation Loft files LT 1, LT 91, LT 139, and LT 141.

636. For example, Operation Loft file LT 1; Submission from Ms Kristy McDonald QC, Counsel for New Zealand Police, 12 July 2005, p. 7.

637. New Zealand Police, Submissions in response to draft report, 20 June 2006, p. 94 and p. 96.

638. Submitters D and E, Operation Loft files LT 1 and LT 126.

639. For example, the Institute of Chartered Accountants of New Zealand has a rule to deal with such circumstances.

640. Police Commissioner Robert Robinson, Brief of evidence, 28 November 2005, p. 11.

641. New Zealand Police, Closing submissions, 16 December 2005, p. 31. Constabulary independence is discussed in more detail in Chapter 3, paragraphs 3.263 to 3.266.

642. New Zealand Police, Closing submissions, 16 December 2005, p. 32.

643. New Zealand Police, Closing submissions, 16 December 2005, p. 31.

644. New Zealand Police, Submissions in response to draft report, 20 June 2006, pp. 85–86 and 89.

645. Mr Greg O’Connor, President, New Zealand Police Association, Transcript of hearing, 5 December 2005, pp. 85–86.

646. New Zealand Police Association, Closing submissions, 16 December 2005, p. 6.

647. Mr Ross Crotty, Barrister, Brief of evidence, 5 December 2005, pp. 3–5.

648. Mr Ross Crotty, Barrister, Transcript of hearing, 5 December 2005, p. 28.

649. Police Commissioner Robert Robinson, Brief of evidence, 28 November 2005, pp. 12 and 13.

650. New Zealand Police, Draft Code of Conduct for Sworn Members of the New Zealand Police, [February 2002].

651. New Zealand Police Association, Submission in response to draft report, 14 June 2006, p. 5.

652. New Zealand Police, Submissions in response to draft report, 20 June 2006, pp. 3–7, 11–12, 92–93.

653. Explanatory note, Police Amendment Bill (No 2) , p. 2.

654. Police Commissioner Robert Robinson, Brief of evidence, 28 November 2005, p. 12.

655. New Zealand Police Association, Memo from Greg O’Connor, President, to the Hon Annette King, Minister of Police, on the Police Amendment Bill (No 2) , 28 November 2005, p. 1.

656. New Zealand Police Association, Closing submissions, 16 December 2005, p. 7.

657. Hon Annette King, Minister of Police, news release, “Police Act to be reviewed”, 7 March 2006.