John V. Berry, Esq., Berrylegal.com
What is Disparate Discipline?
In our legal practice of representing federal, state, county and municipal law enforcement officers (LEOs or officers) in their administrative defense matters, we frequently come across cases where 2 officers have been charged or found guilty of the same type of misconduct, but have given different disciplinary penalties. This is known as disparate discipline. This is a significant problem for law enforcement agencies, and the officers involved. It also can be extremely bad for Department morale.
One example that we frequently see involves the alleged misuse of patrol vehicles for non-official purposes by officers. For instance, we have had cases where we have defended an officer in serious suspension cases for the alleged misuse of a government vehicle for stopping for dinner following (or during) duty in a police vehicle. In these types of cases, we have often been able to use disparate discipline as a defense because of other similar past cases involving other officers where they were either (1) not disciplined; or (2) received minor discipline (e.g. written counseling).
Proving Disparate Discipline
In disparate penalty cases, we argue that disciplinary actions given to officers in similar types of cases must be consistent. In federal LEO cases (and similarly for state, county and municipal police officer cases), to prove disparate discipline as a defense one “must show that there is enough similarity between both the nature of the misconduct and other factors to lead a reasonable person to conclude that the agency treated similarly-situated employees differently . . . . “ Boucher v. U.S. Postal Service, 118 M.S.P.R. 640, ¶ 20 (2012). This type of legal defense has been successful in a number of cases. The key to using this defense is to be (or become) knowledgeable, to the extent possible, about other similar disciplinary cases involving similar misconduct.
When a law enforcement officer faces issues of administrative misconduct, it is important for them to have counsel. Our law firm advises and represents law enforcement officers in administrative defense cases. We can be contacted at Berrylegal.com or by telephone at (703) 668-0070.