By Michael P. Stone and Melanie C. Smith
In situations where peace officers face termination for misconduct, arrangements known as “last chance” agreements have become a popular settlement option. Under one of these agreements, the officer receives a final opportunity to address misconduct and performance problems, in exchange for agreeing to accept termination as the penalty for future misconduct.
While these agreements theoretically save jobs, and are an attractive solution to officers facing termination, they can have their problems. Most importantly, a “last chance” agreement gives an employer complete discretion to determine when the officer has committed future misconduct that violates the agreement, triggering termination.
A recent case tested whether “last chance” agreements comply with a statewide peace officer bill of rights. The case involved an LAPD officer who entered into the “last chance” agreement to avoid a recommended termination for a 2006 incident in which he allegedly harassed and acted disrespectfully towards an on-duty officer from another agency. Under the agreement, he received a 22-day suspension and agreed to “resign” from the Department upon the receipt of any future complaints, sustained by the Chief, for acts of harassment towards officers of an outside agency or failure to cooperate with officers of an outside agency. As a condition of the agreement, he was required to sign a resignation form, which was to be held in abeyance and “accepted” by the Chief if future complaints were sustained.
In 2008, the officer appeared off-duty at a hospital with a severe hand laceration. According to Department officials, he became disruptive in the emergency room, and Sheriff’s deputies were called. The Department initiated a new complaint which the Chief of Police sustained, including a charge that the officer “failed to cooperate” with Sheriff’s deputies. The Chief then determined to “accept” the officer’s resignation. Because the officer “waived” his rights to appeal in the “last chance” agreement, he was summarily removed without any appeal or review.
A Superior Court in Los Angeles struck down the “last chance” agreement. The Court found that a “last chance” agreement involved a permanent waiver of essential due process protections, and thus violated both California’s Peace Officer Bill of Rights and the due process provisions of the Fourteenth Amendment. The Court reasoned that because of the statewide function of a bill of rights, protections under the Bill of Rights could generally not be waived by private agreement.
The Court ordered the City to reinstate the officer with back pay.
Robert Lanigan v. City of Los Angeles, et al., Los Angeles Superior Court, BS123970 (2010).
Michael P. Stone is a Pasadena, California lawyer who has practiced almost exclusively in police law and litigation for 30 years. Melanie C. Smith is an associate with the firm.
This article appears in the December 2010 issue