Now you see them. Now you don't. Such is the ephemeral nature of officers' disciplinary records at the Metro-Dade Police Department. Thanks to the strenuous negotiating efforts of the Police Benevolent Association (PBA), the union that represents Metro-Dade cops, black marks are periodically purged from departmental personnel files.
According to Jose Arrojo, assistant general counsel for the PBA, this has been the department's standard method of operating for more than two decades. As long as an officer does not repeat a given offense within two years A be it a violation of departmental rules or a federal, state, or municipal infraction, no matter how severe -- any punishment meted out is erased, obscured with Liquid Paper, actually, as if it never existed. In contrast, commendations are kept dating back to an officer's first year as a rookie.
It's like getting points on your driver's license that you lose after a while. "That's a beautiful way to look at it," Arrojo affirms.
Teri Guttman Valdes, another PBA attorney, says the goal is to protect an officer's rights so that past errors or lapses in judgment are not used as justification for unduly harsh punishment in the event of future indiscretions. She offers a hypothetical example of how purging works: A Metro-Dade officer is disciplined for missing a court appearance in 1990, and in 1991 for being involved in a traffic accident. In 1992 the 1990 infraction would be removed. "Going to court is not related to driving your car, so the earlier record would be pulled," Guttman Valdes explains.
The PBA, she adds, has negotiated similar arrangements with other Dade municipalities. In Hialeah, for instance, informal discipline such as written reprimands and counseling sessions are extracted from personnel files every two years. Suspensions, however, are retained. Until recently, records of counseling were removed from all county personnel files. Several local police departments, including Florida City and Metro-Dade, routinely remove harsher disciplinary measures, including suspensions. "I think you can interpret it as an officer being rewarded for good behavior," Guttman Valdes notes.
"That is absolutely asinine," counters Adora Obi Nweze, president of the Miami branch of the National Association for the Advancement of Colored People (NAACP). "I think an officer ought to be able to review their file at any point in time, and if they see something that did not occur, they should be able to insert their own response. But certainly a paper trail is required on any employee no matter what kind of job you have."
There is a paper trail of sorts. County officials maintain a separate, unpurged, personnel file for each police officer. A public record, this file is open to scrutiny by anyone -- except Metro-Dade supervisors. In keeping with the collective bargaining agreement with the PBA, a sergeant dealing with a trouble-making employee is not supposed to refer to the county file. "If he really wanted to look at it, he could, but his effort would be for naught," says Jose Arrojo, pointing out that in deciding on how to administer discipline, the supervisor would be prohibited from taking into account prior disciplinary actions that had been purged from the file kept by the department, even though that information remained in the county's file.
While the practice has obvious advantages for officers with blemished pasts, its benefits for the public are less clear. "There's kind of a mixed reaction to this from the American Civil Liberties Union," observes Robyn Blumner, executive director of the ACLU of Florida. "On the one hand we believe in due process [for the officer], and on the other hand we're concerned about police misconduct and police brutality and keeping an abusive officer off the force once there has been an established pattern of misconduct. Is two years too short of a period of time before you purge a personnel file? I don't know."
Neil Chonin thinks it's too short. "Wouldn't you want to evaluate an officer's entire record when deciding on discipline [for a case of police misconduct]? It seems to me you would," asserts Chonin, a civil rights attorney who has successfully sued both Metro-Dade's and the City of Miami's police departments for improper use of force. (Chonin represented Michael Johnson, who was shot by City of Miami police and left for dead during the Liberty City riots in 1980; Miami commissioners agreed to pay Johnson a $525,000 settlement. Steven Tillman, whom Chonin also represented, became a quadriplegic after he was shot in the neck by a Metro-Dade cop in 1986; he was awarded $450,000 by a federal jury.)
Maj. Madeline Pearson says she did not bother to check out rumors that an officer who transferred into her district in 1991 had sexually harassed female co-workers at his previous posting, because she was convinced he deserved a fresh start. (The charges against Ofcr. Brian Montero were detailed in last week's New Times, in a sidebar to the cover story.) Since his transfer, at least one additional unrelated misconduct charge against the officer has been sustained.
The NAACP's Obi Nweze characterizes as "senseless" the county's practice of maintaining separate personnel files. "If there is a paper trail anywhere, there should be the same paper trail everywhere," she argues. "It suggests some motive for hiding something. It's definitely unprofessional and doesn't add up."
The department itself is worried about the legalities of purging files. Last year Florida Attorney General Robert Butterworth issued an opinion stating that "a municipality, which maintains employee personnel files that include notices of proposed and actual disciplinary action, may not remove and destroy disciplinary notices, with or without the employee's consent, during the course of resolving collective bargaining grievances, except in accordance with the retention schedule adopted by the municipality and the consent of the Division of Library and Information Services of the Department of State."
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Prompted by that opinion, Metro-Dade re-examined its record-keeping policies. A modification of the policy was announced early this year in a memo signed by Richard Freund, the county's director of personnel services. No longer would records of minor discipline be removed from county personnel files. Instead they would be stamped "No longer in effect." The police department also resolved to stop sanitizing its personnel files.
The PBA objected, pointing out that the change violated a standard operating procedure that already had been accepted as part of the collective bargaining process. The union's protest prompted Assistant County Attorney Lee Kraftchick to re-evaluate the implications of the attorney general's opinion. By April Kraftchick had come up with a compromise: Personnel files kept by the police department should be considered "working papers," and as such could be subject to change. Documents could be inserted and documents could be removed. Personnel files maintained by the county would be defined as the "official" files and would conform to the county's record-keeping policy.
The merits of Kraftchik's argument are unclear. According to the state's records-retention schedule, a notice of final disciplinary action must be maintained for at least 50 years. (Internal affairs investigations that result in suspension or other formal discipline may be destroyed after five years, as long as the record of final action is safeguarded.) Other police departments, such as Coral Gables, which is not represented by the PBA, routinely purge investigations according to the state schedule. A record of any investigation and its outcome remain in an officer's personnel file for 50 years, however, says Maj. Robert Murrhee.
Nevertheless, Michael Braverman, general counsel for the PBA, argues that the Metro-Dade Police Department's records-cleansing procedures fall within the scope of that state law. "The reality of the fact is that there is a much higher standard for law enforcement [than for the general public] because there are multiple files kept on an officer, and the official file is never purged," Braverman says. "Ninety percent of the public doesn't even deal with the public records law.