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Improving Victoria Police discipline and complaint handling systems:A progress report
Ordered to be printedVictorian Government Printer
June 2011Session 2010-11
P.P. No. 31
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Lett er of transmittal
To
The Honourable the President of the Legislative Council (Vic)
And
The Honourable the Speaker of the Legislative Assembly (Vic)
This report is presented to Parliament in accordance with section 28(2) of the Police Integrity Act 2008. It reviews the implementation by Victoria Police of recommendations made by the Offi ce of Police Integrity for changes to the Victoria Police discipline system in its 2007 report A fair and eff ective Victoria Police discipline system and changes to the Victoria Police complaints management system in its 2008 report Improving Victorian policing services through eff ective complaint handling.
Michael Strong
DIRECTOR, POLICE INTEGRITY
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Contents
Letter of transmittal 3
Contents 4
Executive Summary 7
Introduction 9
Context 9
Previous work by OPI 10
Moving from discipline to professional conduct 10
Local responsibility and empowerment 11
Using complaints to improve service delivery 11
Strengthening the performance management system 11
Purpose 11
Methodology 12
Natural Justice 12
Moving from discipline to professional conduct 13
Previous conclusions and recommendations 13
Progress: Legislative basis for discipline 13
Progress: Administration of discipline legislation 14
Less formal conduct management 14
Use of sanctions 15
Misinterpretation of the civil standard of proof 17
Inaction in the face of criminal proceedings 18
Case study: Impact of criminal proceedings and failure of punitive sanctions 19
Progress: Dismissal 20
Case study: Performance management for an unsuitable employee 22
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Local responsibility and empowerment 24
Previous conclusions and recommendations 24
Progress: Professional Development Committees 25
Frequency of meetings 25
Coordination 26
Acceptance and effectiveness 26
Case study: Professional Development Committee reduces incidents 27
Case study: Professional Development Committee analyses risk 27
Progress: Local management of conduct issues 28
Progress: Data collection and information management 29
Using complaints to improve service delivery 31
Previous conclusions and recommendations 31
Progress: Timeliness 31
Progress: Stakeholder satisfaction 32
Progress: Improving performance and processes 33
Case study: Using complaints to improve service delivery 34
Progress: Improving individual performance 35
Progress: Vexatious and frivolous complaints 36
Strengthening performance management 38
Previous conclusions and recommendations 38
Progress: Review and strengthening of existing system 39
Progress: Linking performance and conduct 41
Progress: Managing underperformance 42
Progress: Training and communication 44
Discipline investigation course 44
Sergeants’ qualifying program and exam 45
Streamlining training and communication 45
A model for ongoing improvement 47
Conclusion 50
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Recommendation 52
Appendix One: Implementation of recommendations 53
A fair and effective Victoria Police discipline system (2007) 53
Legislative amendment 53
Administrative action to be undertaken by Victoria Police 55
Improving Victorian policing services through effective complaint handling (2008) 56
Appendix Two: Surveys 58
Victoria Police Members’ Survey 58
Complainant survey 60
Complaint resolution survey 60
Appendix Three: Summary of survey results 62
Surveys 62
Complainant responses 62
Police responses 63
Appendix Four: Response of Chief Commissioner 66
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Executive Summary
The Offi ce of Police Integrity (OPI) made signifi cant recommendations for changes to the Victoria Police discipline and complaints handling systems in a 2007 report A fair and eff ective Victoria Police discipline system and a 2008 report Improving Victorian policing services through eff ective complaint handling.
In the 2007 report, OPI recommended that Victoria Police replace its traditional, punitive and militaristic police discipline system with a less adversarial, more developmental approach supported by a more eff ective dismissal process for unsuitable employees. OPI reported that such change would require both legislative amendment and improved policies and practices in Victoria Police.
Following OPI’s recommended changes to the legislative framework, a reform bill was introduced into Parliament in September 2008 but did not pass. The lack of legislative change has meant that Victoria Police continues to operate under the outmoded discipline provisions of the Police Regulation Act 1958 (the Act).
In administering the existing legislation in a less formal and adversarial way, as recommended by OPI, Victoria Police has taken steps to have less serious misconduct addressed through informal means rather than through the slow and punitive court-like hearings prescribed by the legislation. Despite this, the unnecessary formality of the Victoria Police discipline system which OPI previously reported was refl ective of the criminal court system, remains in place.
Related to this, dismissal of unsuitable employees remains diffi cult for Victoria Police. As in previous work, OPI again stresses the importance of an eff ective dismissal process to complement a developmental approach to managing standards in Victoria Police.
As recommended by OPI, Victoria Police has increased local responsibility for issues of conduct where dismissal is not justifi ed. Less formal approaches to conduct management are generally quicker and produce more inventive and lasting solutions to behavioural problems. The increased activity of the regionally-based Professional Development Committ ees has led to new and innovative initiatives to address local issues, demonstrating the value of local managers taking responsibility for local issues.
OPI recommended that complaints about service delivery also be handled locally and in a less adversarial manner. This review indicates some improvement in the satisfaction of complainants with the Victoria Police complaint resolution system, although in general complainants remain dissatisfi ed. Service delivery complaints are increasingly sett led through genuine att empts at resolution with a view to improving services. Unfortunately, police satisfaction with the service delivery complaint resolution process has not improved and remains low.
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Following OPI’s earlier recommendations, Victoria Police has strengthened its performance management system. The system requires further refi nement, but OPI is encouraged that Victoria Police has recognised the value of such a system in a professional workforce.
Victoria Police has not yet addressed the link between performance and conduct management, although OPI understands this issue will be addressed as part of a Victoria Police Ethical Health process review internally sponsored by Acting Commissioner Emmett Dunne, Ethical Standards Department. In OPI’s view, the performance management system provides an ideal framework within which to address less serious misconduct issues. While Victoria Police reports that such matt ers are increasingly managed informally, incorporating the management of less serious misconduct into the performance management framework would allow patt erns of less serious misconduct to be addressed as underperformance rather than dismissed as isolated incidents.
Incorporating less serious conduct management into performance management (except where misconduct is serious enough to warrant consideration of dismissal) is required to streamline Victoria Police systems. OPI has provided a more streamlined model for managing standards of conduct, service and performance.
Victoria Police has made clear progress towards implementing the OPI 2007 and 2008 recommendations for a bett er approach to managing professional standards for police. Further work needs to be done to ensure the reforms are fully implemented and achieve sustained cultural change.
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Introduction
ContextAn eff ective policing body that inspires the confi dence of the community it serves requires certain standards to be met. Historically, police and other essential services have maintained standards through the use of paramilitary discipline regimes whereby employees are held to account by rules of conduct. Methods of determining breaches of conduct are traditionally formal and court-like and responses to established breaches are traditionally punitive.
This militaristic style of discipline is echoed in many aspects of police work and culture, from room inspections and marching drills in the academy, to the heavy emphasis on rank structure which pervades the police organisation at all levels.
However, in the current policing context, there is a broad push towards professionalisation. The word ‘professional’ generally relates to the requirements of a particular occupation, in particular the requirement to be learned, skilful or competent.1 To talk of policing as a profession is to recognise the evermore sophisticated knowledge and skill required to meet the expectations of contemporary policing which our rapidly changing community demands.
Professionalisation has ramifi cations for many aspects of policing, including recruitment and education. Some of these challenges have already been met willingly by Victoria Police, particularly in the area of education, where programs are evolving with professionalisation as a recognised goal.
For the maintenance and development of standards in a police organisation, the drive for professionalism means adopting a ‘professional’ approach to ensuring and improving levels of conduct, performance and service delivery. Primarily, this entails a developmental approach rather than a militaristic system of discipline. A developmental approach recognises that professionals must refl ect on what they do, learn from mistakes and improve, not simply comply or obey.
The traditional command and control approach remains necessary for police in emergency and critical incident management. But it is incompatible with the requirement of community policing, where police must exercise broad-ranging discretion and respond to complex problems. As professionals, police are taught to make discretionary decisions based on values and principles, not simply to follow rules.
1 Australian Pocket Oxford Dictionary, sixth edition, 2008
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Previous work by OPIIn 2007 and 2008, OPI produced two reports reviewing systems for promoting professional standards in Victoria Police. The reports were:
1. A fair and eff ective Victoria Police discipline system (2007)
2. Improving Victorian policing services through eff ective complaint handling (2008).
The reports made recommendations which can be grouped under the following four themes:
1. Moving from discipline to professional conduct
2. Local responsibility and empowerment
3. Using complaints to improve service delivery
4. Strengthening performance management.
Moving from discipline to professional conduct
OPI reported that the traditional discipline system of Victoria Police was convoluted, slow, overly formal and punitive. In its own submission to OPI’s 2007 review, Victoria Police identifi ed the major shortcomings in its discipline system at the time as:
• complex
• delayed, often exacerbated by discipline avoidance
• incompatible with community expectations
• diffi cult in terminating employment where necessary
• separated by systems for sworn police and other employees.
This system, OPI reported, was unlikely to achieve positive behaviour change in discipline subjects. OPI recommended a less punitive, more developmental approach to conduct and behavioural management, with a simpler and faster process for resolving discipline matt ers and for terminating employment where appropriate. Unless the conduct in question was of a seriousness to potentially justify dismissal, OPI recommended it be resolved in a less formal manner. In short, OPI recommended that police discipline be equivalent to conduct management for other public sector professionals except where there was a reason, because of the nature of policing, for a diff erence to be maintained.
The approach recommended by OPI is referred to in this report as a developmental approach, because its objective is to improve standards through support, supervision, education or other management strategies, including restorative justice sanctions, as appropriate in each case. It is distinct from a punitive approach which aims to punish wrongdoing. By endorsing a developmental approach in 2007, OPI did not recommend Victoria Police ‘go soft’ on discipline, but that it tackle staffi ng problems
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more eff ectively by treating them as management problems. In fact, the message to managers in OPI’s recommendations was to ‘toughen up’ and not expect the Ethical Standards Department to take responsibility for local management problems.
Importantly, OPI recommended that a developmental approach to managing conduct be accompanied by a robust, speedy and eff ective dismissal process. Removal of those who can not or will not meet expected standards is essential if a developmental approach to ensuring professional standards is to be accepted by the organisation at large.
Local responsibility and empowerment
A key feature of the system recommended by OPI was a greater role for local managers to manage the conduct of their staff . OPI reported that local management action would enable minor misconduct matt ers to be dealt with more quickly and productively without the formality of a protracted investigation and discipline hearing. This was intended to allow the Ethical Standards Department, which previously handled the majority of misconduct matt ers, to concentrate on serious misconduct and corruption matt ers that potentially warrant dismissal.
OPI also recommended training to equip managers to adapt to a developmental approach to conduct, and an information technology solution to support the tracking of standards and allow strategic trend analysis.
Using complaints to improve service delivery
In 2008, OPI reported that the principles underlying the Victoria Police complaint resolution model were sound but that more local oversight and bett er training and communication for those implementing the model were required. The recommendations aimed to ensure the model was implemented more effi ciently and in the spirit in which it was created. This would allow complaints to be used constructively for service delivery improvement.
Strengthening the performance management system
In a professional workforce, performance management is an important tool for ensuring standards and providing for professional development. OPI recommended Victoria Police strengthen its performance management system. OPI also recommended Victoria Police link performance management with conduct or behavioural management, since the two are often inseparable.
PurposeIn this report, OPI revisits its previous recommendations for the discipline and complaint handling systems. It reviews the extent to which Victoria Police implemented the recommendations and whether the recommendations achieved their intended goals.
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The body of the report addresses the recommendations under the four themes identifi ed above while, for easy reference, Appendix One shows progress against individual recommendations. From the outset, this report acknowledges progress made by Victoria Police towards implementing OPI’s recommendations.
This report supersedes some of OPI’s earlier recommendations for the complaints and discipline systems in Victoria Police. It proposes a model for managing standards in Victoria Police. Where further work is needed, this report does not make further detailed recommendations. Instead, OPI encourages Victoria Police to develop a strategic approach to continuing its progress towards an improved system. Its goal should be a professional standards system that is streamlined and eff ective, which aids the development of those who are suited to police work and removes those who are not.
MethodologyFor this review, OPI:
• consulted approximately 50 police and other staff from relevant areas
• convened a focus group of 11 mid-level managers
• inspected documents and reviewed policies
• observed the meetings of six Professional Development Committ ees
• participated in the fi ve day Victoria Police Discipline Investigation Course
• audited 91 recently-completed service delivery complaint fi les across regions and departments
• analysed data on complaints and incidents in Victoria Police over three years
• surveyed 91 complainants and 91 police members who had recently participated in the complaints resolution process, with a response rate of 41% and 38% respectively. Copies of surveys are att ached at Appendix Two.
The review is also informed by:
• focus group research commissioned by OPI into the views of the public and police (from Constable to Senior Sergeant) about what constitutes unacceptable conduct for police
• an OPI review of a sample of internal police discipline investigations.
Natural JusticeA draft copy of this report was forwarded to the Chief Commissioner, Simon Overland. His response is att ached as Appendix Four.
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Moving from discipline to professional conduct
Previous conclusions and recommendationsOPI’s 2007 report, A fair and eff ective Victoria Police discipline system, concluded that the system for maintaining standards of professional conduct in Victoria Police – the discipline system – was overly formal and punitive. OPI made recommendations for both an improved legislative framework for police discipline and less formal and punitive policies and practices in Victoria Police. OPI also identifi ed that the dismissal processes in Victoria Police were slow and overly complex and recommended organisational goals and individual employee rights could be maintained with a more streamlined process for removing police who were no longer considered suited for the policing role.
Progress: Legislative basis for disciplineFollowing OPI’s 2007 recommendations, the Police Regulation Act Amendment Bill was introduced to the Victorian Parliament in September 2008. The bill was narrowly defeated more than a year later.
The consequence has been the retention of the formal and punitive police discipline framework which OPI reported in 2007 was slow and not conducive to positive behavioural change.
In Victoria Police, discipline continues to be regulated by the Police Regulation Act 1958 (the Act). The Act sets out what constitutes a ‘breach of discipline’ and provides a process for dealing with suspected breaches. It states that discipline proceedings are to ‘be conducted with as litt le formality and technicality as the requirements of [the] Act and the proper consideration of the matt er permit’.2 Despite this, the process specifi ed by the Act is itself quite formal and the terminology of the Act encourages an interpretation of police discipline as a pseudo-criminal process. Firstly, the act of ‘charging’ a person with a discipline off ence unnecessarily aligns matt ers of police conduct with the criminal process. Secondly, the inquiry, called a ‘hearing’ by Victoria Police, implies a court-like occasion at which a person may ‘appear’ or ‘be represented’. The inquiry may also ‘fi nd’ that ‘the charge has been proved’ – an action usually associated with court hearings.
As OPI reported in 2007, this legislative regime has signifi cant negative impact on dealing swiftly and fairly with poor conduct. It blurs the distinction between the
2 Police Regulation Act 1958 s75(3)(b)
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criminal and disciplinary systems. This in turn slows down processes through overly onerous preparation of criminal-like discipline ‘briefs’, misapplied standards of proof and, where criminal behaviour is evident, decisions to defer to court outcomes rather than proceed with disciplinary action in the fi rst instance. It also creates an adversarial relationship between the discipline subject and Victoria Police and encourages the mistaken belief that disciplinary and criminal proceedings can not be run concurrently without creating ‘double jeopardy’ issues. That is, the sense of being tried twice for the same off ence. Finally, it encourages punitive sanctions. A range of punitive sanctions are explicitly provided for under the Act but the Act is silent about developmental responses to unsatisfactory conduct.
Progress: Administration of discipline legislationWhile in 2007 OPI saw legislative change as critical for reforming police discipline, OPI also identifi ed that, even under the existing Act, Victoria Police could improve its administration of the legislation. It appeared that, in some ways, Victoria Police applied unnecessary formality to the process, causing further delay and intensifying the adversarial environment that inhibits positive behaviour change.
OPI recommended in cases of less serious misconduct that a more informal and less punitive approach was preferred. Other barriers to timeliness that needed to be addressed were inappropriate interpretation of the civil standard of proof and deferring matt ers where criminality was evident until after criminal proceedings were fi nished.
Less formal conduct management
In the spirit of OPI’s recommendations for a more developmental, less punitive discipline system, Victoria Police subtitled its Discipline Investigation Manual ‘Restorative Justice rather than Retribution’, with the following explanation:
The Victoria Police Discipline Process is changing from one of Retribution to a process based on Restorative Justice. Where appropriate the focus of the Discipline Process will be on restoring the member back into the workplace.
As part of this philosophy members will not be punished for making honest mistakes provided the members are open and transparent.
There will be an emphasis on welfare, training etc where appropriate.
The notion of ‘making amends’ rather than establishing guilt and exacting punishment accords with OPI’s recommendations for Victoria Police’s system for ensuring and improving professional standards of conduct.
The Discipline Investigation Manual reminds investigators that discipline matt ers are run according to administrative law, rather than criminal law. However, the
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language of the process, presumably in deference to the Act, includes terms such as ‘charge’, ‘guilt’, ‘brief of evidence’, ‘sworn evidence’ and ‘witnesses’. These terms carry very formal and adversarial overtones. Furthermore, Victoria Police continues to run discipline ‘hearings’ rather than the ‘inquiries’ specifi ed by the Act, bringing courtroom overtones into the discipline system.
Although hundreds of cases of substandard conduct are still addressed through formal investigations each year, according to the Victoria Police complaints and incidents database the number of allegations set down for formal discipline hearings each year has decreased from 203 in 2008 to 93 in 2009 and 77 in 2010.
Victoria Police reports some progress in dealing informally with less serious conduct issues by classifying them as Management Intervention Model fi les rather than discipline investigation fi les. The Management Intervention Model is a less formal process modelled on alternative dispute resolution, which is intended to result in developmental outcomes where defi ciencies are identifi ed. The model puts trust in managers to make fair and reasonable decisions regarding the conduct of their staff and to develop solutions to problems.
The following table shows that, as a percentage of total complaint and incident fi les in Victoria Police, investigations for less serious misconduct are decreasing and Management Intervention Model fi les are increasing. It must be noted that the Management Intervention Model is also used for service delivery complaints, so the increase in those fi les is not necessarily due solely to increased numbers of misconduct matt ers being assigned to the model. However, the data does appear to refl ect Victoria Police’s eff ort to deal with more conduct issues less formally.
Table 1: Percentage of total allegations by classification and by year
Classifi cation 2008 2009 2010
Allegations classifi ed for minor misconduct investigations 20% 16% 13%
Allegations classifi ed for the Management Intervention Model 32% 40% 59%
Use of sanctions
The discipline provisions of the Act state that, if ‘the charge has been proved’, one of the following sanctions may be applied:
• reprimand • reduction in rank or seniority
• good behaviour bond • reduction in remuneration
• fi ne • transfer to other duties
• exclusion from promotion • dismissal.
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OPI in 2007 cited the Royal Canadian Mounted Police External Review Committ ee which wrote that punitive sanctions are:
...constructed on an illogical premise: namely that an employee will get progressively bett er by being treated progressively worse.
While OPI’s previous work supported a streamlined dismissal process, OPI emphasised the need to focus on improvement for those who were considered suitable to remain in police roles. Punishment was not expected to produce a positive response.
The following chart is based on data provided by Victoria Police for the calendar years 2005 to 2010 for discipline outcomes excluding dismissals and charges dismissed, struck out or withdrawn. It should be noted a person can have multiple discipline charges and one or more discipline outcomes. The chart demonstrates a gradual increase over time in the number of non-punitive outcomes of discipline hearings.
Figure 2: Discipline outcomes 2005 –2010
0
50
100
150
200
250
87
36
9
40
13
22
2010
60
15
11
810
14
2009
65
18
210
3
29
2008
34
42
515
6
2007
20
3
51
2006
811
245
15
2005
Fined
Reduc in pay/rank/seni rity
Resigned/re red under
Transfer
Other n n-
G d behavi ur b nd
2
111
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A further indicator of change is the use of ‘workplace guidance’ as a disciplinary outcome. According to the Victoria Police complaints and incidents database, in cases where action was taken in response to complaints and incidents, workplace guidance rose from 13% of cases in 2008 to 47% of cases in 2010.
Research commissioned by OPI in 2010-2011 identifi ed that among both police and the broader community ‘the prevailing belief is that the question of unacceptable behaviour ... is far from black and white’. The ‘grey’ nature of unacceptable conduct provides further impetus for a developmental response rather than a punitive sanction such as a reprimand or demotion. A developmental response can address the complexities of an issue in a way that a reprimand, for example, will never do.
OPI understands that some in Victoria Police might be reluctant to relinquish punitive sanctions such as redeployment and demotion. In OPI’s view these punitive responses are not ideal, but may be necessary in the short to medium term as the professionalisation of policing continues to develop. As Victoria Police continues to professionalise its workforce, the need for punitive sanctions should diminish.
Misinterpretation of the civil standard of proof
In 2007, OPI identifi ed one of the problems with Victoria Police’s overly formal discipline system was confusion over the standard of proof used to make decisions and determinations in discipline matt ers. Under the Act, a reasonable belief is suffi cient grounds to establish a discipline breach and take action in response to it. However, OPI reported that many in Victoria Police used the decision of the High Court of Australia in the case of Briginshaw v Briginshaw (Briginshaw) to argue that the balance of probabilities operates on a sliding scale whereby a matt er leading to a more serious outcome requires a ‘higher’ standard of proof. This in turn led many to the view that the level of proof required in a discipline hearing is just a fraction below beyond reasonable doubt, the standard required in a criminal court. OPI’s advice from the Victorian Government Solicitor at the time was that the prevailing interpretation of Briginshaw in Victoria Police was incorrect.
Consultations undertaken for this review indicate that misinterpretation of the standard of proof in discipline matt ers remains. OPI continues to view the way Victoria Police interprets Briginshaw with concern.
The consequence of an inappropriately ‘high’ standard of proof in the administrative realm of discipline is to constrain the organisation from taking action to remedy misconduct issues. It also causes delay because of the time required for a full and formal brief of evidence to be compiled. While the decision-maker must inform himself or herself of relevant facts and opinions, such a formal investigation is not necessarily required to justify management action for less serious cases. Where dismissal is considered a possibility, an investigation must be thorough but need only establish a reasonable belief on the balance of probability, not proof beyond reasonable doubt.
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Inaction in the face of criminal proceedings
Under the Act, if a member of police has been charged with certain criminal off ences, Victoria Police must consult the Director of Public Prosecutions before charging the member with a breach of discipline. Subject to that consultation, pursuing disciplinary action concurrently with criminal action is not precluded. This accords with the broader Victorian Public Service Agreement which states:
Where ... allegations that are the subject of [management of unsatisfactory performance and misconduct] ... are also the subject of a criminal investigation or criminal proceedings, the Employer is not required to delay or cease the process under this clause but the Employer may exercise its discretion to do so.
OPI observed in 2007 that the practice in Victoria Police was not to pursue discipline outcomes for incidents where criminal proceedings were underway until the criminal proceedings were fi nalised.
Reasons given in support of the practice included that it is an ‘abuse of process’, that the discipline subject’s rights at trial would be prejudiced and that pursuing both disciplinary and criminal outcomes would constitute ‘double jeopardy’.
In OPI’s view, an employer is often required to address the behaviour of an employee, even where that behaviour is also the subject of criminal action. Taking action in response to a suspected criminal act does not constitute double jeopardy. Double jeopardy is being tried or sentenced twice for the same off ence. The rule does not apply in the civil jurisdiction, let alone the administrative employment environment. Unfortunately, the practice of conducting discipline hearings as quasi-criminal trials encourages the perception of double jeopardy because of the appearance that the discipline proceeding is a form of court hearing.
In 2007, OPI recommended that, following consultation with the Director of Public Prosecutions to ensure the criminal trial would not be prejudiced, Victoria Police should proceed to address substandard conduct rather than delay action until the criminal trial is complete. OPI considered that if Victoria Police had reason to believe the conduct of a police member required att ention, then the organisation had a duty to address that conduct expeditiously.
This review revealed that Victoria Police continues to postpone discipline action until criminal matt ers are fi nalised. OPI understands there are some problems with running discipline hearings (in their current format) prior to the completion of criminal proceedings because of the risk of contaminating evidence. A witness in a disciplinary hearing may be directed to answer questions but this undermines their right in criminal proceedings to remain silent. Nevertheless, as the following case study demonstrates, there are signifi cant risks to Victoria Police if no action is taken prior to the completion of criminal proceedings.
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Case study: Impact of criminal proceedings and failure of punitive sanctions
In February 2006, an incident occurred between a Senior Constable and a person in custody at a suburban police station. OPI investigated and, one year later, the Senior Constable was criminally charged with assault by kicking. At the time he was charged, in February 2007, the Senior Constable was suspended with full pay by Victoria Police.
In October 2007, a court found the Senior Constable guilty of assault by kicking, but chose not to record a conviction against him. The court gave the Senior Constable a six-month good behaviour bond and he resumed normal duties with Victoria Police.
Victoria Police then began discipline proceedings against the Senior Constable. He was charged with ‘an off ence punishable by imprisonment found proven’. In December 2008, more than one year after the court found him guilty, the Senior Constable att ended a Victoria Police hearing on the discipline charge and was issued with a reprimand. The reprimand consisted of a list of possible outcomes with a tick in the box next to ‘You are reprimanded’.
Less than one year after he was reprimanded, the Senior Constable, in November 2009, was again alleged to have assaulted a member of the public in the course of his duties. In February 2010, he was assigned to non-operational duties.
In April 2010, the Senior Constable was again charged with assault and again suspended with full pay. In December 2010, a court convicted him of assault and handed him a suspended gaol sentence. Victoria Police then suspended the Senior Constable without pay and notifi ed him of a discipline inquiry into the criminal charge. The Senior Constable resigned from Victoria Police before the inquiry was held.
In the above case study, Victoria Police twice chose to defer addressing the conduct of the Senior Constable until the criminal charge against him was resolved. That meant the conduct in question for the fi rst incident was addressed two years and 10 months after it occurred.
The decision also meant the Senior Constable was suspended with full pay for two periods of eight months. Suspension with pay for long periods of time is not economical for the organisation and is a poor result for the community. Sworn police positions cannot be backfi lled and the community has fewer police while anyone is suspended. Suspension also does nothing for the development of the employee and some would see suspension with pay as a reward for bad behaviour.
The sanction issued by Victoria Police in response to the fi rst incident appears not to have improved the behaviour of the Senior Constable. If, following the fi rst incident, Victoria Police believed the Senior Constable remained a valuable member of the organisation, a developmental response might have been more eff ective than the sanction of offi cial reprimand, particularly given the reprimand was issued
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nearly three years after the event. If the Senior Constable failed to improve following developmental action, Victoria Police could then have considered dismissal.
If, on the other hand, Victoria Police believed the Senior Constable was not suited to remain as a member of police, its responsibility to the Victorian community should have led to the commencement of a ‘show cause’ dismissal process. The way evidence is presented in this process is less likely to potentially contaminate evidence in criminal proceedings. Either way, Victoria Police must be prepared to make a decision. If, following dismissal, the court did not fi nd the Senior Constable guilty of assault beyond reasonable doubt, it does not follow that a decision to dismiss the Senior Constable would have been unreasonable. Firstly, the court operates on a diff erent standard of proof and, secondly, a person need not be found guilty of an off ence by a court of law to be unsuitable for employment as a member of police.
As an employer, Victoria Police has the power and responsibility to manage the behaviour of individual police on an ongoing basis. This is a remedy not available to criminal courts. Rather than allow its determinations to refl ect the limited range of sanctions that can be imposed by a court, Victoria Police should set appropriate standards of conduct and proactively develop the conduct of all police to ensure they meet those standards.
Progress: DismissalOPI’s 2007 report acknowledged that ‘the remedial discipline model’ can not be used exclusively to deal with all conduct issues. OPI wrote:
Every discipline system will always require elements of the punitive approach to, at least, provide a means to terminate the employment of an unsuitable employee.3
While managers must be held to account for ensuring standards of conduct among their staff , managers should not be expected to develop police who are known to be corrupt or otherwise unsuitable for the job. Therefore OPI stressed in 2007 that a developmental system for conduct management must be balanced by a robust dismissal process. To have one without the other is dangerous and makes a mockery of the developmental process.
Barriers to eff ective dismissal processes identifi ed by OPI in 2007 were formality and complexity, compounded by the existence of multiple pathways for dismissal. Unnecessary formality holds the organisation to account for strict, legalistic processes. Multiple pathways encourage ‘process shopping’. Both increase the risk for Victoria Police that dismissal decisions will be legally challenged and found wanting on the basis of technicalities.
3 A fair and effective Victoria Police discipline system, 2007
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The low number of terminations for sworn members of Victoria Police in recent years supports the conclusion that dismissal remains diffi cult for Victoria Police. The next table shows the numbers of employees dismissed from Victoria Police each fi nancial year since 2002-2003, as stated in Victoria Police’s annual reports.
Table 3: Yearly dismissals from hearings and inquiries in Victoria Police
2002-2003
2003-2004
2004-2005
2005-2006
2006-2007
2007-2008
2008-2009
2009-2010
Dismissals from discipline hearings
2 3 3 3 5 4 3 4
Dismissals from inquiries into convictions
not reported
not reported 0 0 0 not
reportednot
reportednot
reported
Dismissals from inquiries into fi tness for duty
0 0 not reported 0 0 0 0 not
reported
4 5
The numbers above include both sworn and unsworn employees of Victoria Police. OPI is told dismissal numbers for sworn police may be low because of the numbers who resign while under investigation (see Figure 2). However, the table below shows the number of hearings held each year is far greater than the number of employees dismissed as a result of the hearings. Again, this data is collated from Victoria Police annual reports.45
Table 4: Yearly hearings and inquiries in Victoria Police
2002-2003
2003-2004
2004-2005
2005-2006
2006-2007
2007-2008
2008-2009
2009-2010
Discipline hearings held 35 33 35 34 82 53 72 102
Inquiries into convictions 4 2 2 1 5 5 3 7
Inquiries into fi tness for duty 0 0 1 0 0 0 0 not
reported
A comparison of recent public sector misconduct outcomes with traditional police discipline outcomes also suggests dismissal of police is more diffi cult than for non-sworn employees. In early 2010, the People Department of Victoria Police took
4 Reported as numbers dismissed, not specifically from discipline hearings5 Reported as numbers dismissed, not specifically from discipline hearings
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responsibility for addressing misconduct by non-sworn employees in Victoria Police. Previously, misconduct by non-sworn employees was addressed through the same discipline provisions as for sworn police. Between early 2010 and the beginning of March 2011, a total of 11 non-sworn police employees had their employment terminated. The People Department said it expected that number would prove to be unusually high because it had received a ‘backlog’ of matt ers. Of the 11 terminations, one was appealed to Fair Work Australia. It was conciliated with no change to the outcome.
The process used by the People Department for misconduct is aligned to that of the broader Victorian public sector. The increase in Victoria Police terminations under that process suggests there is an effi ciency in the public sector process lacking in the system for sworn police.
The lack of an eff ective dismissal process undermines the eff ectiveness of a developmental approach to professional standards. The kind of impact that can be expected from a developmental system for conduct management without an effi cient and eff ective dismissal process is demonstrated by the case study below.
Case study: Performance management for an unsuitable employee
An individual in Victoria Police was investigated by OPI which concluded he had engaged in corrupt behaviour. Victoria Police held a hearing into the matt er and determined the individual would be transferred and performance-managed.
The individual’s managers expressed anger at the outcome. They considered the individual somewhat ‘notorious’ for corrupt behaviour and believed the individual’s employment should have been terminated.
The managers were particularly concerned that the individual might have supervisory responsibility for other staff .
This case study demonstrates the corrosive eff ect on morale a poor discipline system can have, irrespective of whether the individual in question should have been dismissed. The case study points to a continued need for a robust dismissal system that is well understood by the organisation at large. If employees are to behave according to expected standards and managers are to maintain those standards, they must all know what the expected standards are and see them enforced at an organisational level, through to dismissal where appropriate.
Research commissioned by OPI into perceptions of unacceptable conduct found that police saw the line between acceptable and unacceptable as blurred. In particular, what justifi es dismissal was seen as especially problematic. OPI’s consultations for this review also revealed inconsistent views about what might justify dismissal. Some managers expressed amazement that police were dismissed for transgressions such as drink driving in the past and more recently off ensive emails, while some individuals
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who the managers believed were ‘known’ to be corrupt or violent remained in the job. Whether this indicates inconsistent standards or simply a need for bett er communication about expectations is a matt er for Victoria Police.
Victoria Police has told OPI it is continuing to explore its options for more eff ective dismissal processes under the current legislation and to learn from legal challenges to past dismissals. A simpler process for dismissal – but one that continues to respect procedural fairness – would assist Victoria Police. In fact, a bett er dismissal process is a necessity if Victoria Police is to adopt, and managers are to accept, a developmental approach to conduct management.
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Local responsibility and empowerment
Previous conclusions and recommendationsOPI noted in 2007 that a centralised discipline system where all conduct issues are dealt with by a specialised department encourages local managers to abdicate responsibility. But the role of local managers is crucial to ensuring professional standards, particularly in a system where management action is required to support improvement.
Some have expressed the view that allowing managers to deal with the conduct of the staff they supervise creates a confl ict of interest. For example, in a 2010 OPI survey of complainants involved in the Victoria Police complaints resolution process, the most common suggestion for improvement was to ensure independent investigation of complaints to avoid confl ict of interest. However, to argue that direct line managers may not form opinions about, and take action to address, low-level conduct or behavioural issues among their staff is to undermine the role of the manager.
In Victoria Police, as in the broader public sector, procedural fairness must be applied if a decision has the potential to adversely aff ect the existing interests of a person or body. Procedural fairness allows a person to know the nature of adverse comments made against him or her, have an opportunity to respond and have decisions relating to the adverse comments made by a person who is free of bias.
Provided a manager applies procedural fairness, it is the manager’s right – indeed, responsibility – to make decisions about the conduct and performance of employees under his or her supervision. Managers must have the courage to make hard decisions so long as they are fair and the organisation must support them when they do.
The principles of natural justice are already incorporated into the Victoria Police value of leadership, which requires police leaders to ‘apply fair process’ and ‘make timely decisions that are guided by both values and evidence’. The Victoria Police Manual also reinforces the principles of natural justice in its instructions for performance management. There are already rights of review built into the performance and conduct management systems. Of course, where conduct is serious enough to potentially warrant dismissal, independent investigation by the Ethical Standards Department and, in some cases OPI, is needed.
As OPI identifi ed in 2007, one advantage in having local managers handle service delivery and less serious misconduct issues is that local managers are best placed to understand the individuals involved and the context of any incidents. This helps foster solutions that are appropriately tailored to the issues that arise. The process of
25
resolving local issues should also give local managers insight into issues or trends that need monitoring or may require early intervention. Of course, it is less formal and therefore quicker and more open to constructive dialogue compared with a formal, adversarial hearing.
In 2008, OPI recommended the then fl edgling Professional Development Committ ees should be strengthened to provide a point of local ownership for conduct and service delivery issues. Subject to the oversight of the Professional Development Committ ees, OPI recommended local managers accept greater responsibility for conduct issues and service delivery complaints. This would enable the Ethical Standards Department to concentrate on conduct that might warrant dismissal – serious misconduct and corruption – as well as strategic ethical health initiatives. The Ethical Standards Department and OPI would also have a role in monitoring and auditing the Professional Development Committ ees.
Critical to implementation of these recommendations was the urgent need for Victoria Police to improve its information technology systems to enable the collection and analysis of meaningful data to monitor trends and provide early intervention at both a local and whole-of-organisation level.
Progress: Professional Development Committ eesProfessional Development Committ ees comprise senior managers, primarily Superintendents, based locally in each region or department. In 2008, OPI identifi ed Professional Development Committ ees as important management hubs where local issues of conduct and service delivery could be overseen. OPI recommended the committ ees be bett er coordinated and more proactive in their oversight of professional standards.
Frequency of meetings
Following OPI’s 2008 recommendations, the frequency of Professional Development Committ ee meetings has increased. In April 2008, OPI requested eight committ ees to provide minutes of all meetings held since 2006. Only half of those committ ees were able to produce any minutes. In late 2010, OPI again requested Professional Development Committ ee minutes. All regions and several departments, though not all, provided meeting minutes.
In 2008, the eight committ ees reviewed held, on average, only one meeting every six months, according to their minutes. The Crime Department contributed signifi cantly to that number with 18 meetings in 27 months. This was more than all other regions and departments combined. Without the Crime Department, the remaining three departments and four regions held an average of only two meetings each in 27 months. By contrast, most committ ees appeared to meet on a monthly basis in 2010.
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Coordination
As recommended, Victoria Police has now produced an organisation-wide charter for its Professional Development Committ ees. Some standard operating procedures have also been created, but on an individual basis rather than centrally.
OPI’s observation of a number of departmental and regional Professional Development Committ ee meetings confi rmed the committ ees generally follow the charter. All Professional Development Committ ee meetings observed by OPI for this review addressed standing items relating to ethical health.
Victoria Police has also created a central coordination role in the Ethical Standards Department which holds quarterly forums for Professional Development Committ ees. OPI’s observation of committ ee meetings suggests the committ ees see the quarterly forums as useful for sharing initiatives and addressing issues at a broader level.
Acceptance and effectiveness
In 2011, most of the Professional Development Committ ees visited by OPI said they saw value in their meetings. A common area of satisfaction was the opportunity for Superintendents to share problems and solutions. A common area of dissatisfaction was the requirement to manage declarable associations, gifts and benefi ts and secondary employment. In these areas, some committ ees felt their mandate forced them to dedicate too much time to overseeing and approving the activities of individuals, whereas they preferred to take a strategic approach.
One Victoria Police Inspector talked of the value of Professional Development Committ ees:
In my times as secretariat [of the Professional Development Committ ee (PDC)] my observations were that all managers became involved in the PDC with robust discussion and a consistent approach in dealing with fi les that were referred to the PDC. Decisions were made and are consistent across the board. Further, peers were asked to assist in decision making of ‘good work fi les’ providing a recommendation. The advantage of this is that decisions made were taken back to the members at the peer level extremely quickly. It also gave members some management right over what was “a job well done.” I recently saw stats that showed that over the last 3 years our complaints had decreased and we have virtually gone from being the worst performed in the state to the top three. Also perceptions of safety ... show that again we are in the top percentile, a vast improvement. The PDC was one of the strategies put in place 3 years ago to try to address these problems and is well supported by the current Superintendent.
While att ending meetings of the Professional Development Committ ees, OPI observed a number of proactive and strategic initiatives implemented by the committ ees to ensure standards of service delivery and conduct in their areas.
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Case study: Professional Development Committee reduces incidents
One Professional Development Committ ee observed over a period of time that police cars in its area were involved in a high number of traffi c camera incidents. For many of the incidents, the units to which the cars were allocated said they were unable to identify who was driving.
The Professional Development Committ ee made a concerted eff ort to educate police in its area about traffi c incidents. It also made it known that it would take action against units that could or would not identify a driver for a traffi c incident.
Presumably as a result of the Committ ee’s eff orts, traffi c camera infringements involving cars in that area fell substantially.
The above example demonstrates the value of the more frequent and bett er coordinated activities of Professional Development Committ ees in Victoria Police. The committ ee identifi ed a problematic trend and successfully addressed it.
Case study: Professional Development Committee analyses risk
One Professional Development Committ ee initiated a ‘region risk network’ to address workplaces at risk in its area. The Committ ee wished to create an overarching mechanism to identify workplaces at risk and provide support and guidance to managers on intervention options for their workplaces.
The region risk network was intended to use mechanisms already created by the Ethical Standards Department for identifying risk, combined with workplace data and ‘intuitive’ observations from various representatives such as health and safety consultants, audit team members and Ethical and Professional Standards Offi cers. While the Committ ee wished to make use of data, it concluded that the data available was ‘inconclusive and subject to interpretation’ and that collecting and analysing new data would be very labour-intensive.
The Professional Development Committ ee planned to trial the ‘workplaces at risk program’ and share the results with the statewide Professional Development Committ ee forum.
This case study illustrates proactive work that can be done by committ ees that meet regularly to address local standards of conduct and service delivery. The case study also demonstrates the importance to such work of relevant and usable statistics and other information. A challenge faced by all Professional Development Committ ees att empting to track and develop standards in their regions and departments is the lack of useful or accessible data to determine trends and track the impact of new strategies.
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Progress: Local management of conduct issuesIn 2007 and 2008, OPI recommended local managers deal with conduct issues that do not potentially warrant dismissal. The goal was to facilitate the developmental approach to conduct management, which allows behaviour to be improved through supervision and support in an ongoing context.
Since OPI’s recommendations, Victoria Police has allocated increasing numbers of less-serious misconduct investigations to regions and departments for local investigation. The move has met with a mixed response. A number of police working in regions told OPI the investigations provide a further burden on already-overworked managers in the regions. They also said those required to conduct the investigations were not suffi ciently trained. However, OPI’s review of misconduct investigations by the Ethical Standards Department compared with investigations by other staff revealed litt le diff erence in quality between the two groups.
These local investigations have moved some way towards achieving OPI’s recommended goal of identifying local issues for ongoing management. For example, OPI has observed that recommendations for entries in individuals’ performance management records are increasingly common outcomes from these investigations.
As recommended, the Ethical Standards Department has retained responsibility for investigating serious misconduct and corruption matt ers that potentially warrant dismissal. Since then, timelines for investigating serious misconduct and corruption have shown some improvement. For instance, according to Victoria Police records, the number of serious misconduct and corruption allegations investigated in less than 90 days increased from 125 in 2008 to 208 in 2009 and 194 in 2010. However, there are still numerous cases that take inordinately long periods of time. OPI is aware that this issue is considered a high priority by the Assistant Commissioner of the Ethical Standards Department.
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Progress: Data collection and information managementIn both 2007 and 2008, OPI reported that the data collection and information management system used by Victoria Police to track complaints and incidents was inadequate. It captured only very limited data and did not allow the data to be easily interrogated. Access to the system was limited to the Ethical Standards Department. OPI reported that obtaining data from Victoria Police regarding complaints and incidents was diffi cult and slow.
OPI observed in previous reviews that, in the absence of an accessible central information system, units and individuals in Victoria Police tended to create standalone databases to record information relevant to their own work area. This practice meant corporate knowledge was fragmented and strategic assessment of data was limited.
In response to OPI’s recommendations for an information technology solution, Victoria Police sought to develop what it called a System of Early Intervention and Detection. Victoria Police, supported by OPI, made a bid for State Government funding for the new system, but the bid was denied and development of the system did not go ahead. Victoria Police has told OPI it has again recently had a funding bid for a new information technology system rejected.
Without a bett er system for information management, problems identifi ed in OPI’s past reviews remain. For example, during this review OPI found obtaining complaint and incident data from Victoria Police remained diffi cult and slow and data sets initially provided were not complete.
The culture of creating standalone databases also appears to continue. For example, one Superintendent showed OPI his system for electronically managing declarable associations. The system consisted of email folders for each individual with a declared association and points in the folder title to show how many associations the individual had declared. While the eff orts of the Superintendent to maintain an organised and accurate record of associations in his division are commendable, his local solution means the information can be accessed only by him and does not contribute to the corporate body of knowledge.
The negative impact of such practices was demonstrated following the restructure of Victoria Police regions on 1 July 2010. One Professional Development Committ ee was unable to track down records of existing declarable associations in its newly formed region. In early 2011, the committ ee was still unsure about which associations had already been declared in its region. No one could locate local data from the old regions and the records kept centrally by the Ethical Standards Department were not searchable except by name. Until Victoria Police implements more fl exible centralised information management systems and provides access to all relevant managers, it is likely that some important information will continue to be inaccessible or lost.
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Although complaint numbers and even fi le completion timeframes are not good indicators of customer satisfaction or community confi dence, most Professional Development Committ ees visited by OPI made use of complaint statistics in their consideration of the ethical health of their regions or departments. A number also considered the number of outstanding fi les with a view to shortening timelines. One Ethical and Professional Standards Offi cer told OPI that, because of the defi ciencies in the current system, he must spend large amounts of time manually scrolling through the database to check for outstanding fi les.
It is clear Professional Development Committ ees and local managers are restricted by the inadequacies of the current information management system. Bett er data collection and information management systems which allow bett er access to a broader range of information would signifi cantly enhance their role, in addition to creating improved effi ciencies.
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Using complaints to improve service delivery
Previous conclusions and recommendationsService delivery in this report refers to working directly with members of the public. In Victoria Police, complaints about service delivery most often relate to perceived rudeness, over-zealousness or failure to act.
OPI reported in 2008 that the handling of service delivery complaints in Victoria Police suff ered from the same adversarial and punitive approach that characterised the broader discipline system of the organisation. This appeared to aff ect timeliness and stakeholder satisfaction, both of which were poor.
Service delivery complaints in Victoria Police are resolved locally through the Management Intervention Model, introduced in 2005. According to Victoria Police policy, the objective of the Management Intervention Model was and still is:
• To facilitate the expedient resolution of complaints, incidents and issues, thereby ensuring the provision of a highly professional service to the community of Victoria.
• To improve the service, options and outcomes to the public in the handling of complaints and issues.
• To promote the integrity and reputation of employees and the Victoria Police.
• To maintain and enhance professional standards of conduct and the ethical health of the organisation.
The model is distinct from discipline processes because it is intended to involve resolution, not investigation. In 2008, OPI supported the principles of the Management Intervention Model, but was concerned the application and intended goal were poorly understood.
Progress: TimelinessFor this review, OPI examined 91 Management Intervention Model fi les, with the sample spread evenly across the North-West Metropolitan, Southern Metropolitan, Eastern and Western Regions and the Crime Department. The average time taken to resolve a fi le was 80.98 days, compared with 89.21 in 2007. Almost all complaints were received fi rst by the Ethical Standards Department and then delegated to the regions in less than three days.
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Progress: Stakeholder satisfactionFor this review, OPI in late 2010 surveyed 91 complainants and 91 police respondents who had recently been involved in the complaint resolution process. OPI received responses from 36 complainants (40%) and 35 police (39%). The survey replicated OPI’s 2008 survey for the purpose of comparing results over time.
In the 2010 survey, fewer than 50% of respondents in each group indicated they were satisfi ed with their experience of the Victoria Police complaint resolution process. Complainants expressed stronger dissatisfaction than police, with 53% of complainants dissatisfi ed compared with 36% of police. Twenty-fi ve percent (25%) of police chose a neutral response, neither satisfi ed nor dissatisfi ed.
Compared with the results from OPI’s 2008 survey, the satisfaction level of complainants showed signifi cant improvement. The graph below shows the percentage of complainants and police who were satisfi ed with the Victoria Police complaint resolution process according to OPI’s 2008 and 2010 surveys. While police satisfaction has remained relatively stable, complainant satisfaction has increased relatively sharply.
Figure 5: Satisfaction with Victoria Police service delivery complaint resolution
0%2008 2010
5%
10%
15%
20%
25%
30%
35%
40%
Source: OPI surveys 2008 and 2010
Figure 6 shows the percentage of complainants and police who were dissatisfi ed with the Victoria Police complaint resolution process according to OPI’s 2008 and 2010 surveys. Once again, while police dissatisfaction has remained relatively stable, complainant dissatisfaction has reduced noticeably.
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Figure 6: Dissatisfaction with Victoria Police service delivery complaint resolution
0%2008 2010
10%
20%
30%
40%
50%
60%
70%
80%
Source: OPI surveys 2008 and 2010
Progress: Improving performance and processesAs OPI wrote in 2008, complaints are an opportunity to improve. However, the Police Regulation Act 1958 aligns police complaints with discipline. The Act provides for complaints to be made about the conduct of police. It does not provide for complaints about general service delivery which might not relate to the conduct of a police member.
Further, the legislation requires a complaint to be made before the organisation’s power to require police to answer questions in the discipline arena is triggered. The Act states that Victoria Police may only direct police to answer all questions if it does so:
…for the purpose of an investigation into a complaint concerning a possible breach of discipline... 6
This legislative framework for police complaints encourages Victoria Police to see complaints as information relating to the conduct of police rather than, for example, an expression of dissatisfaction from a person or group. The diff erence is subtle, but it is important for complainants and for police who might be the subject of complaints.
The word ‘complaint’ in Victoria Police is used to include all instances of defi cient conduct, from misconduct to corruption, regardless of how they are brought to light. This detracts from the signifi cance of the outcome or resolution sought by a complainant who is a member of the public. It also aligns the complaints resolution
6 Police Regulation Act 1958 s86Q(1)
34
process with the discipline system, encouraging an adversarial relationship between police and complainants.
In 2008, OPI reported there was litt le evidence to suggest managers used service delivery complaints as an opportunity to improve customer satisfaction, individual performance or general policing services. In its 2010-2011 review of complaint fi les, OPI found a number of positive examples where complaints were used as an opportunity to improve public satisfaction and police performance.
Case study: Using complaints to improve service delivery
A woman complained that she had called police about a suspected prowler in her neighbour’s yard and ‘no one even bothered to show up’. The woman said she had mental illness and felt she was being disregarded because of it.
The Victoria Police resolution offi cer who dealt with the complaint acknowledged the woman’s mental illness when she told him about it and he assured her that police were not previously aware of it and would not have used it against her even if they knew of it.
The Sergeant who resolved the complaint discovered that police did att end the scene. However, they did not communicate with the woman who had reported the suspected prowler, which was why she later complained of police inaction.
The Sergeant took action to improve communication in similar circumstances in the future and the complainant appeared satisfi ed with the Sergeant’s frank explanation of what happened and what he had now done about it.
The Sergeant in this case did not focus simply on whether the complaint was ‘substantiated’ or whether anyone was at fault. He showed sensitivity and concern for the complainant’s situation and was proactive in improving future service delivery without blaming individuals for what was essentially a process issue.
However, there are other fi les that featured less concern for improving service delivery or the perception that would remain in the mind of the complainant after the fi le was closed. For example, some fi les appeared to be considered resolved as soon as it was established that the police involved were exonerated from any wrongdoing. This is not a question of bias in the investigative process; OPI’s concern with these cases is that no eff ort is made to learn from complaints, improve service levels and address the expectations of complainants. Encouragingly, in some such cases, managers overseeing the fi les sent them back to resolution offi cers for further action.
35
Progress: Improving individual performanceDespite apparent gains in customer satisfaction, police satisfaction with the complaint resolution process does not appear to have improved and in many cases, police continue to react negatively to the process.
The vast majority (76%) of police respondents to OPI’s 2010 survey indicated there was no change to how well they did their job following the complaint resolution process. Five police indicated they did their job worse than before and three indicated they did their job bett er. These results show no signifi cant change since 2008, when 77% of police respondents said there was no change to their performance.
During this review, OPI observed some resentment towards the Management Intervention Model by police who might be the subject of complaints. This resentment was echoed in OPI’s survey responses, suggesting police are frustrated by what they see as ‘black marks’ against their names. Five police respondents (14%) elected to comment negatively on the impact of the complaint on their record, reputation or self-esteem. Some comments were:
... if the complaint is not founded, as in my case, then it should be wiped from my HR fi le.
And:
The process ruined my confi dence and I am very nervous and cautious when dealing with the public. I think that it is unfair that I have this matt er recorded against my name even though it was found not substantiated. The whole process needs to be reviewed in order to advise members that unfounded matt ers will never be accessible.
During this review, OPI observed confl icting views in Victoria Police about the purposes for which complaint information can and can not be used. The Discipline Investigation Course states that complaints against a person are not used in promotional decisions; some individual police claim that, in practice, they are. One group told OPI that complaints against a person are not used at all for discipline outcomes; others said they form part of the ‘envelope of priors’ that is handed to a hearing offi cer after a conclusion has been reached but before a sanction has been imposed. In a discipline fi le examined for this review, OPI observed complaint fi les used in a probity check by the Ethical Standards Department ‘for the purpose of discipline proceedings’. The Assistant Commissioner of the Ethical Standards Department told OPI investigators complaint data may be used as part of a risk assessment process for individuals seeking assignment to sensitive or high risk areas or those seeking promotion to higher ranks. A lack of understanding about how complaints data is used and inconsistent use of complaints data are likely to contribute to police resentment towards the complaints resolution process.
36
Currently, Victoria Police requires all service delivery complaints to be allocated against the name of at least one subject member. In OPI’s view this is not necessary and creates resentment among frontline police involved in service delivery. An alternative approach would be to have some complaints, for example failure to respond to a call out, recorded against a locality. If, while resolving the complaint, the resolution offi cer believed police misconduct or underperformance was an issue, or indicated a trend in the conduct of particular police, he or she could still take appropriate action. To some extent referral from the complaints process to the performance management process already occurs and is supported by Victoria Police. For example, in a lett er to OPI in 2008, Victoria Police stated:
If the [complaint] fi le establishes that there is a recurrent service delivery issue then the Management of Under-performance Policy can be initiated.
A less resentful att itude towards service delivery complaint resolution by police should help to further increase complainant satisfaction which, though improved, remains low at only 32%.
Progress: Vexatious and frivolous complaintsThe apparent resentment towards the complaints process on the part of police in OPI’s 2010 survey also appears linked to frustration over perceived frivolous or vexatious complaints. The most common suggestion for improvement to the complaints process from police respondents was to fi lter or deal diff erently with frivolous and vexatious complaints. For instance, nine police said the complaint against them was frivolous or vexatious and one indicated the complaint was ‘bogus’. Two said the complainant was simply venting. In total, 14 police respondents (40%) indicated the complaint against them did not justify the resolution process applied or a permanent record against their names.
Police responses demonstrated some very diff erent att itudes to minor complaints, some receptive and constructive, others showing frustration. For example:
The complaint surrounded a misunderstanding of what I said. I contacted the complainant and explained it bett er. No apology was required.
Compared with:
Did nothing wrong - frivolous complaint by a vexatious person who is infl uenced by ... Some worker who sits down and listens to the whinging ... and helps [the complainant] to write lett ers that sully the names of good police offi cers.
37
And:
Some complaints are so irrelevantly trivial that it is obvious the complainant is unaware of legislation, policy or procedure and, moreso, unaware that police often work under pressure or stressful situations. These points should be made clear to a complainant before their trivial comments or concerns are taken any further. Even to a MIM [Management Intervention Model] fi le level. There must be a level of tolerance and understanding from the public if police are to perform their duties eff ectively.
Complainants in 2010 also had widely divergent views about the seriousness of their complaints. It appeared from the complaint fi les viewed by OPI that some complainants were surprised to be contacted by police intending to resolve their complaint. Some complainants reportedly apologised for causing trouble and admitt ed they were merely ‘venting’. However, a number of complainants who responded to OPI’s survey indicated they felt aggrieved because police considered their complaints trivial. Some complainants appeared to expect a more formal and rigorous ‘investigation’ of their complaint than the Management Intervention Model provides.
It appears to be a litt le-known fact that the Ethical Standards Department already fi lters out frivolous complaints. It has no writt en policy to do so, but in practice Victoria Police records, but does not classify, complaints if they are obviously frivolous. It is common for complaint handling bodies to be allowed this discretion.
OPI’s review of complaint fi les indicated the vast majority of complaints to Victoria Police are now made in an online form. The form provides no information for complainants and therefore does not encourage self-fi ltering by people who might be temporarily angry or unsure about complaining and it does not inform potential complainants of what to expect should they make a complaint.
Just as it is important for police to take public complaints seriously, it is important for the public to know how best to make a complaint, what may be expected and what the consequences may be of a vexatious or false complaint. Many complaint handling bodies provide writt en information for potential complainants. For example, the Australian Federal Police has a brochure for people unhappy with their treatment by the organisation. The brochure includes the consequences for making vexatious complaints and information about what to expect. There is an opportunity for Victoria Police to improve communication around the complaints process to manage the expectations of both the public and the police.
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Strengthening performance management
Previous conclusions and recommendationsPerformance management involves formalising strategies for individual employees to track their contributions towards organisational objectives and personal career goals over the course of a year. In the Victorian public service, all permanent employees and some contracted employees require a performance plan. In any organisation, police or otherwise, performance management should:
• support formal performance-related dialogue between employees and managers and encourage regular feedback against agreed goals
• enable employees and managers to track, monitor and record performance achievements and identify where performance does not meet expectations
• assist employees and managers to identify individual development requirements which will add value to their performance and where performance does not meet expectations
• inform annual decision-making on employee salary progression.
In 2007, OPI reported that the performance management system in Victoria Police did not provide the continuous assessment process usually embodied in such systems. Assessments were done only once every two years. OPI recommended Victoria Police review its performance management system with a view to creating a system that recognised strengths, assisted development and identifi ed early measures to address actual or potential performance diffi culties.
OPI also identifi ed a need for the performance management system in Victoria Police to be more closely linked to the discipline system. The reason was, in part, that both conduct and performance are best dealt with through local management action (except where there is evidence of serious misconduct or corruption). It therefore makes sense to address them through a single management process. But the recommendation to align performance management and conduct management also stemmed from recognition that performance and conduct are not always distinct – in fact, they are often linked and sometimes inseparable.
Conduct may be generally defi ned as:
…the manner in which a person behaves…7
7 Oxford dictionaries online
39
Section 86A(a) of the Police Regulation Act 1958 defi nes conduct as:
…an act or decision or the failure or refusal ... to act or make a decision in the exercise, performance or discharge, or purported discharge ... of a power, function or duty which the member has as ... a member of the force …
By defi nition, conduct is not much diff erent from performance which is defi ned as:
…the action or process of performing a task or function…8
Or:
…a task or operation seen in terms of how successfully it is performed …9
Poor conduct, or misconduct, is usually seen in the form of an incident whereas performance tends to relate to the quality of ongoing work activity. However, a patt ern of poor conduct can become a performance issue and the poor performance of a single task could be considered misconduct.
Essentially, both conduct and performance in the employment context relate to an employee’s behaviour or actions. Both relate to how tasks are carried out. In a profession like policing which involves much face-to-face communication with the community, conduct and performance are almost impossible to separate. For example, when a Constable makes an arrest he or she may be required to use force. The extent of the force used in such a case relates to the manner in which the Constable behaves (conduct) and also how successfully the arrest is carried out (performance).
Because of the inextricable link between performance and conduct, and in the interests of streamlining processes, OPI recommended greater alignment between the performance and conduct management systems. OPI recommended Victoria Police look at the New Zealand model for an example of how to link performance and conduct management.
Progress: Review and strengthening of existing systemSince OPI made its recommendations for Victoria Police to review and strengthen its performance management system, Victoria Police has:
• replaced its previous system with the Professional Development and Assessment system (August 2008)
• conducted a post-implementation review of the Professional Development and Assessment system with recommendations for improvement (August 2009)
8 Oxford dictionaries online9 Oxford dictionaries online
40
• produced an addendum to the post-implementation review with further recommendations (June 2010)
• made a corporate commitment to improving the Professional Development and Assessment system (December 2010) and
• produced a plan for ‘Moving Forward’ which included a timeline for implementing proposed improvements to the Professional Development and Assessment system (February 2011).
The Professional Development and Assessment system introduced to Victoria Police in 2008 aims to:
• Develop a culture focused on the performance and professional development of all employees.
• Identify opportunities for development and therefore build individual and organisational capability to meet the policing needs of the community.
• Increase alignment between individual performance and Victoria Police strategic and organisational goals. To develop role clarity, responsibility and accountability.
• Facilitate feedback and communication between assessors and employees.
• Enable employees to receive acknowledgement, recognition and where applicable facilitate salary progression...
The system also provides a process for dealing with underperformance.
The increased frequency with which police have their performance assessed under the Professional Development and Assessment system is an improvement. Police are now assessed annually whereas under the previous system assessment took place only once every two years. As with the broader public sector, managers in Victoria Police must now fi nalise assessment criteria for performance plans within two months of the start of the assessment period and provide timely feedback throughout the period as and when required. As a minimum, managers must provide formal recorded feedback at the middle and end of a performance assessment cycle.
Unfortunately, Victoria Police’s post-implementation review of the Professional Development and Assessment system concluded that the Professional Development and Assessment system was not well-accepted or well-used. Consultations during the course of this review reinforced that conclusion, although a number of individuals in supervisory roles at Victoria Police expressed the opinion that acceptance and use of the system were improving over time.
A key area for improvement identifi ed by the Victoria Police review was the willingness of managers to provide feedback and have diffi cult conversations. The review found police generally received a low level of feedback about their work compared with employees in the broader public sector. Police also felt they had relatively low levels of
41
help to learn and grow professionally. The Professional Development and Assessment database showed 64% of employees received either no feedback or late feedback.
The corporate commitment made by Victoria Police in December 2010 to strengthen the Professional Development and Assessment system aimed to improve:
• information technology
• accountability
• role modelling
• feedback and goal-sett ing.
OPI supports the objectives of the proposed improvements, particularly role modelling and feedback training and notes the reliance on managers for the Performance Development and Assessment system to operate eff ectively.
Victoria Police’s implementation plan for improvements to the system also signals changes to make the Performance Development and Assessment system more user-friendly by reducing the input required. OPI supports improvements to the usability of the system, provided any changes do not compromise the objectives of the system to foster development and meaningfully assess performance.
Progress: Linking performance and conductLinking performance and conduct is about streamlining systems and bringing less serious behavioural problems into the manager’s domain in a way that allows ongoing management and development.
OPI did not fi nd any evidence that, as recommended, Victoria Police considered the New Zealand model for integrating conduct issues with human resources. However, individuals in Victoria Police expressed the opinion to OPI that greater integration would improve outcomes.
The current Victoria Police Manual recognises there might be diffi culty in separating issues of conduct and performance, but it does not go so far as linking or merging the conduct management and performance management systems. Instead it provides advice about how to choose between the two systems. The manual states:
The underperformance policy ... [is] only to be applied where underperformance has been identifi ed as the primary issue and not where disciplinary action under VPMP [Victoria Police Manual Policy] Complaints and discipline is more appropriate.
And:
...management action that is a reasonable alternative to discipline proceedings should be considered as the circumstances warrant...
42
The manual thus refl ects the fact that, while the connection between performance and conduct is clear, Victoria Police performance management and conduct management systems are separate. However, in practice Victoria Police has taken steps to link the two.
Firstly, the focus group run by OPI said that, increasingly, the outcomes of discipline proceedings are remedial in nature. These remedial outcomes include essays, training, volunteer work and so on. They are designed to refl ect the types of developmental approaches that might be applied under the performance management framework.
However, where such sanctions are imposed by a hearing offi cer without a relationship with or a close understanding of the individual involved, the appropriateness of developmental sanctions may be questioned and was questioned in OPI’s focus group of mid-level managers. Such an approach also lacks any ongoing supervision of the behavioural issue that gave rise to the discipline proceedings in the fi rst place.
Secondly, the Professional Development Unit of Victoria Police said there were increasing numbers of misconduct cases that result in determinations to take action through the Professional Development and Assessment system.
Some in Victoria Police have warned that it is important such recommendations do not upset the process of the Professional Development and Assessment system and be seen to usurp the role of the manager or impose management strategies on the manager without consultation. Again, if management action is likely to be the outcome of a disciplinary process, it would seem sensible to put the entire process in the hands of the manager from the outset, rather than conduct a lengthy, formal and adversarial investigation and hearing only to return the issue to the care of the manager at the end of the process.
If behavioural issues that do not constitute serious misconduct or corruption and do not potentially justify dismissal were handled through the performance management system instead of the traditional discipline system, Victoria Police would shortcut the path to remedial action. It would also ensure strategies developed to address questionable conduct were appropriate to the employee, the manager and the local context.
Progress: Managing underperformanceManagement of underperformance is a process required of managers whose staff are not meeting performance standards. It is a process that occurs within the framework of the Professional Development and Assessment system. The process is very diff erent from the formal discipline system and in fact epitomises the developmental approach that OPI envisaged in 2007 for managing conduct that appears substandard but would not warrant dismissal.
According to the Performance and Development Unit, the main purpose of the management of underperformance process is to identify areas of performance
43
requiring improvement and to put strategies in place to develop employees to enable them to perform at an acceptable level.
The Victoria Police Manual states:
Issues of under-performance must initially be addressed by local workplace counselling i.e. the manager/supervisor must make every att empt to raise the standard of performance to the expected level by informal counselling and assistance...
The Victoria Police Manual Guidelines for Managing Underperformance state:
If initial informal att empts to improve performance have not resulted in improvement, then formal local performance intervention processes must be commenced.
If local performance intervention does not successfully address underperformance, a six step process is initiated, including a meeting and a performance improvement plan, ongoing monitoring, assessment against the plan, departmental action and an inquiry into ‘fi tness for duty’. One potential outcome of a fi tness for duty inquiry is termination.
The number of inquiries into fi tness for duty actually conducted by Victoria Police is very low. In March 2011, one inquiry was soon to take place. The most recent inquiry before that occurred in 2004. Records held by the Performance and Development Unit showed only six inquiries have been held in total.
While the number of fi tness for duty inquiries held may be taken to indicate that management of underperformance is successful, the Performance and Development Unit recognised that the low number of hearings can indicate process problems as well. The Performance and Development Unit said a signifi cant number of fi les submitt ed to the unit for inquiry were returned without proceeding to inquiry because the prescribed performance management processes were not followed closely enough to support proceeding to a hearing. It is for Victoria Police to determine the extent to which this was due to overly prescriptive processes, lack of training or reluctance to follow processes.
Some police with whom OPI consulted for this review expressed concern regarding performance-managing employees who continually perform just below the level at which they could be dismissed. This performance management diffi culty is no doubt not unique to police. It emphasises the importance of having clear expectations and the courage to address cases where standards are below what is expected.
OPI supports Victoria Police’s Management of Underperformance process, while again noting its reliance on properly trained and courageous managers. OPI views the management of underperformance process as an opportunity to manage conduct as well as performance issues.
44
Progress: Training and communicationThe eff ectiveness of the Professional Development and Assessment system is dependent on the knowledge and skills of managers. To suggest all behavioural issues, whether they are viewed as performance or conduct, should be addressed through that system places enormous importance on managers. Managers are largely responsible for implementing the process and for many of them the developmental approach to managing conduct and performance is a departure from what they are used to. Therefore, as recognised in OPI’s previous reports, a key risk of the developmental approach to maintaining professional standards is inadequate training of managers.
Discipline investigation course
The Discipline Investigation Course run by the Ethical Standards Department is a fi ve day training course, aimed primarily at Sergeants. Before a Sergeant may conduct a discipline investigation, he or she must have completed the Discipline Investigation Course.
Appropriately, the course is regularly amended in response to participant feedback and policy change. Currently, as well as traditional discipline as provided for under the Act, the course covers dispute resolution, complaint resolution under the Management Intervention Model and the Professional Development and Assessment system (introduced to the course in August 2010).
Providing a single training course to navigate and draw connections between the performance, conduct and complaints systems is useful, although to suggest they are all forms of ‘discipline’ is counter-productive. The complexity of the course itself is a refl ection of the complexity of Victoria Police’s various systems for maintaining standards.
Some misunderstanding of various systems and policies encountered during this review demonstrate that the Discipline Investigation Course has not reached its full potential audience. For example, a number of Management Intervention Model fi les examined by OPI for this review revealed a fl awed understanding of the purpose of the model and the outcomes available. These fi les used terms such as ‘investigation’ rather than ‘resolution’ and contained outcomes such as ‘unsubstantiated’ or ‘exonerated’ rather than ‘resolved’ or ‘not resolved’. Some fi les contained statutory declarations from police and ‘witnesses’.
45
Table 7: Estimated number of participants in the Discipline Investigation Course
Year Participants
2006 90
2007 150
2008 300
2009 300
2010 300
As the table above shows, the annual number of participants in the course has increased since OPI’s 2007 report, according to estimates by the Ethical Standards Department. However, limited resources directed to the course mean that only a small percentage of those who should att end were able to do so. In 2009-2010, there were 1,982 Sergeants in Victoria Police and 578 Senior Sergeants. The numbers suggest there are many Sergeants and Senior Sergeants in Victoria Police who have not completed the Discipline Investigation Course.
Sergeants’ qualifying program and exam
Since OPI’s 2007 and 2008 reports, Victoria Police has reintroduced a pre-promotional Sergeants’ course, a training program which qualifi es successful participants for promotion to Sergeant level. Victoria Police had such a course some years ago, but it was discontinued at the time of OPI’s previous reviews. In the interim, Sergeants were expected to undergo relevant training after being appointed. Victoria Police recognised that the required training was often not completed in a timely manner.
The new pre-promotional Sergeants’ program includes topics relevant to managing performance and conduct, such as ‘courageous conversations’, for example, which develops feedback skills. Feedback provided to Victoria Police by participants in the program has been positive, especially regarding the relevance of the content to participants’ work. Similarly, during OPI’s consultations with Victoria Police representatives for this review, the overwhelming reaction to the return of the pre-promotional Sergeants’ course was positive.
To be eligible to apply for a Sergeants’ position, a Senior Constable must also now pass an exam. The fi rst such exam was held in September 2010. Forty percent (40%) of potential applicants did not pass the exam stage. Such an exam adds extra rigour to the selection process for Sergeants. This is particularly important in a standards assurance system that is heavily dependent on managerial ability.
Streamlining training and communication
Because an important part of the Sergeants’ job is managing performance and resolving complaints, the content covered in the Discipline Investigation Course would be ideally included in the Sergeants’ program. If that content was covered in the pre-
46
promotional Sergeants’ program, then what is currently the Discipline Investigation Course could operate as a short annual refresher.
OPI acknowledges that this may be diffi cult to achieve because the duration of the Discipline Investigation Course is fi ve full days and the Sergeants’ program already has a broad syllabus. The implications for the Sergeants’ program should it adopt the full content of the Discipline Investigation Course would be signifi cant.
However, training for managers in conduct and performance management and complaint resolution should not be optional. The education and training challenges described here are further arguments for streamlining conduct and performance management in Victoria Police into a single, simple system. In short, if the system was simpler, the required training would take less time.
47
A model for ongoing improvement
OPI’s 2007 and 2008 recommendations and Victoria Police’s implementation of them acknowledge that standards of employee conduct and performance are, in the fi rst instance, the domain of the manager. If misconduct is serious enough to potentially warrant dismissal then an independent investigation is appropriate, but otherwise a developmental approach bett er refl ects the needs of a professional organisation.
Service delivery complaints are also best dealt with locally rather than by a central department, but it must not be assumed that service delivery complaints will always refl ect poorly on an individual and that all complaints can therefore be subsumed into the performance management system.
Victoria Police has made notable progress towards local management of conduct, performance and complaints through increased use of the Management Intervention Model for service delivery complaints and minor conduct matt ers and referrals from the discipline system for remedial action at the local level. However, what remains is a convoluted collection of systems rather than the simple, streamlined processes which OPI’s recommendations sought to achieve.
To streamline its processes and take the fi nal step towards a standards assurance system commensurate with other public sector professions, Victoria Police must address the link between conduct and performance.
If there are concerns about an individual’s behaviour, the key person to respond to those concerns is the individual’s manager, regardless of whether the concerns are viewed as conduct or performance. If there are concerns about a person’s suitability to remain a member of Victoria Police, whether because of misconduct or underperformance, there should be only one pathway through which that person may be dismissed.
The model depicted below in Figure 8 refl ects a more contemporary process for addressing substandard performance and conduct. In this model, conduct and performance are one, except for incidents that involve suspected serious misconduct, corruption, or chronic underperformance, all of which might justify dismissal. Service delivery complaints dealt with by local management action may bring to light performance and conduct issues, but these may not always refl ect poorly on an individual. Indeed, how someone responds to a complaint may indicate a high level of professionalism and commitment to improving service delivery, all of which refl ect positively on performance. Of course, some service delivery complaints may be an early indicator of poor behaviour that, if not responded to in a performance management sense, could lead to deteriorating standards or even serious misconduct and corruption.
48
Figure 8: Standards assurance and improvement model
Performance improvement
Referral
Input
Outcom
es O
utcomes
Serious misconduct
and corruption
Local management action
Professional Development Committee
Formal conduct/performance review
Formal investigation
Input to the Professional Development Committee includes:
reward and recognition, for example service excellence, compliments etc.
delivery complaints
resolved at local level
Outcomes from the Professional Development Committee include decisions to:
opportunity
management
or underperformance for formal conduct review.Other action includes implementation of decision from formal conduct review
Outcomes from the formal conduct / performance review include decisions to:
management
Allegation
Under this model, Victoria Police may continue to manage performance through its Professional Development and Assessment system, which continues to undergo refi nement. That system should record professional responses to service delivery complaints as well as complaints that refl ect poorly on performance. The system already ensures managers give individuals a fair opportunity to remedy underperformance before it becomes chronic and indicates incapacity to remain a member of police. Under the model, misconduct that does not warrant dismissal is also managed under the performance management system with broad oversight by the Professional Development Committ ee.
As is currently the case, suspected serious misconduct and corruption should be reported to the Ethical Standards Department and, if necessary, independently investigated by that Department or in some cases OPI. If the employee fully acknowledges the serious misconduct, a full investigation may not be necessary.
49
If following investigation or admission the Ethical Standards Department reasonably believes serious misconduct has occurred, the issue to determine will be what sort of response is appropriate. If a person is to be transferred, demoted, or risks being dismissed, the matt er should go to a formal conduct and performance review. If the matt er can be addressed through performance management, it should be referred back to the local manager to deal with.
Except for the role of the Professional Development Committ ee, this model is typical of the process in public sector and other professions. In the majority of cases it negates the need for the formal hearings currently provided for under the Police Regulation Act 1958 or Victoria Police policy. It therefore represents signifi cant streamlining of the Victoria Police system.
Under this model, only those matt ers that have the potential to impact on an individual’s employment status need to have a formal review conducted by the Chief Commissioner or his delegate. Although the provisions have proven problematic, the current legislative framework under section 68 of the Act provides for procedural fairness. Following the outcome of the review, there is a right of appeal to the Police Appeals Board. OPI has concerns about existing appeal processes. These are addressed in a forthcoming report dealing with fl exible work practices.
Finally, information technology and education are key supports for reform in this area. Fortunately, creating a simpler, streamlined system for standards assurance can only make it easier for Victoria Police to streamline its information technology systems and education programs.
50
Conclusion
Reforming something as fundamental and ingrained as police discipline can not be done in haste. It is therefore not surprising that Victoria Police has not yet achieved the simple, streamlined and professional system for conduct, performance and complaints envisaged by OPI in 2007 and 2008. Rather than allow its recommendations to stagnate and possibly become outdated, OPI has reviewed progress against the recommendations and updated its position on conduct, performance and complaints management in Victoria Police.
OPI acknowledges and is encouraged by the steps taken by Victoria Police in response to OPI’s earlier recommendations. Areas of improvement include some aspects of the complaint handling system. Although that system requires further att ention, the new training and education program for Sergeants and Senior Sergeants, the reviews and amendment of the Professional Development and Assessment system, the increased activity and coordination of the Professional Development Committ ees, and some att empts to resolve minor conduct issues informally through local management are all steps in the right direction.
At the same time, some very important areas have not received suffi cient att ention from Victoria Police since OPI last examined them in 2007 and 2008. In particular, there has been litt le if any progress on the slow, formal and punitive discipline process still used for most conduct issues. The failure of effi cient and eff ective dismissal processes and the inadequate information technology systems relating to complaints and conduct management have also not been addressed.
While each of these individual areas is important, Victoria Police must prioritise streamlining its systems. Where new systems or policies are introduced they should replace and simplify what was there before, not add to the existing complexity. In this vein, the model presented by OPI off ers a simpler replacement system, not another process to be added to the mix.
It is acknowledged that wholesale change for Victoria Police depends to some extent on legislative amendment. In the interim, Victoria Police can further improve its response to misconduct and underperformance under the existing legislative framework.
The current Victorian Parliament has the opportunity to support the professionalisation of Victoria Police by updating the discipline provisions of the Police Regulation Act 1958. Refocusing the Act away from punitive discipline and towards improving professional standards of conduct is an important step in building more productive att itudes to conduct issues.
51
OPI’s proposed model for ensuring and improving professional standards of conduct and performance and managing complaints is consistent with the systems already in place in many public sector agencies and other professions. The model emphasises the importance of performance management. Steps already taken by Victoria Police to improve performance management by its supervisors are a foundation upon which further eff orts to support and empower managers can be built.
Some police may fear change and the consequences of shifting att ention away from ‘breaches of discipline’. Shifting responsibility for some matt ers away from the Ethical Standards Department is seen by some as going soft on the discipline associated with command and control – an essential feature of emergency operational policing. However, the existing formal and punitive process for dealing with Victoria Police discipline breaches has been shown to be ineff ective in removing unsuitable employees from the job or improving the conduct and performance of those remaining in the job. It is no longer appropriate for the increasingly professional Victoria Police organisation.
In reality Victoria Police already depends upon performance management. The fact it is sometimes not done well does not mean it should not be done at all. No centralised system for detecting and punishing ‘discipline breaches’ will eliminate the need for strong local management to manage and develop professional standards across the organisation. In Victoria Police, as in all organisations, maintaining standards is everyone’s business.
52
Recommendation
OPI recommends:
1. Victoria Police provide writt en advice to OPI by 30 October 2011 regarding what and when short and long-term strategies will be implemented to continue its transition to a streamlined system for managing standards of conduct, performance and service delivery, and address the issues identifi ed in this report.
53
Appendix One: Implementation of recommendations
A fair and eff ective Victoria Police discipline system (2007)
Legislative amendment
RecommendationImplemented (YES, NO, PARTLY)
Comment
1. Eff ect should be given to the following principles on which a new discipline system should be built:
Bill defeated in Parliament
a) Reducing or eliminating the diff erences between the discipline arrangements for police and other employees. Disciplinary processes applicable to police should be equivalent, as far as possible, with those applicable to other public sector employees, except where a benefi t or disadvantage is clearly justifi ed by the needs and requirements of the offi ce of constable or the particular needs of policing
NO
b) Reducing the number of sanctions and increasing performance development with a focus on rehabilitation
NO
c) Increasing local decision-making and responsibility for discipline matt ers NO
d) Linking the discipline system with the performance management system NO
e) Reducing complexity and speeding up processes NO
f) Streamlining dismissal processes NO
g) Streamlining and simplifying review rights NO
2. Establishment of a disciplinary process for Victoria Police that has two parts:
a) Remedial processes for use for all police misconduct and poor performance issues other than where the police conduct justifi es termination
b) Dismissal processes where the police conduct justifi es termination
NO
3. Establishment of a framework for the remedial management part of the disciplinary system that sets basic parameters within which the Chief Commissioner can determine procedures to give eff ect to the new scheme
NO
54
4. Establishment of a limited right of review where a member believes management remedial action is unfair or inconsistent with the legislative framework
NO
5. Introduction of a streamlined dismissal process where a member is obliged to ‘show cause’ why dismissal should not occur regarding a breach of discipline which either:
a) Amounts to serious misconduct and which, due to the nature of the conduct, makes continuation in Victoria Police inappropriate, or
b) Is a repeat of similar conduct which has previously been the subject of the remedial part of the disciplinary process and it is considered that further use of the remedial process is unlikely to be successful in assisting the offi cer and, due to that conduct, the offi cer is unsuitable to remain part of Victoria Police; and which applies to:
i. Misconduct by probationary offi cers; and
ii. Members who have been charged with an off ence punishable by imprisonment and that case is found proven; and
iii. Possibly, members terminated for being unfi t for duty
NO
9. Provision for the Chief Commissioner to issue a declaration that if successful in any claim for harsh, unjust or unreasonable dismissal, an individual should not be entitled to reinstatement but could receive an award of compensation
NO
10. Amendment of section 86Q of the Act to allow its use even though no complaint has been lodged concerning the member’s conduct
NO
11. Removal of the legislative requirement that the Commissioner specifi cally approve resignations NO
12. Exclusion of any statement made as part of any remedial management action from dismissal, criminal or civil proceedings, without precluding the use of documentation, such as Management Action Plans, in any management related proceedings including dismissal proceedings where remedial management action has failed. Provide a fi ve year sunset during which period the need for the protection can be reviewed so it can be extended if considered necessary.
NO
13. Ensure the proposed Police Registration Board, should it be adopted, have power to determine matt ers of registration statues, separate from the internal discipline arrangements within Victoria Police, which remain the sole province of the Chief Commissioner
NO
55
Administrative action to be undertaken by Victoria Police
RecommendationImplemented (YES, NO, PARTLY)
Comment
1. Review the current system for assessing competency and managing underperformance. The aim of the review should be to provide an eff ective system for regular opportunities to appraise the performance of individual police and one that allows:
a) Identifi cation of strengths to assist the individual’s skill and career development and advancement through the ranks; and
b) The early identifi cation of measures that address actual or potential performance or behavioural diffi culties, and will assist the individual to overcome those diffi culties.
YES
2. Undertake a review of data collection systems to ensure the reformed discipline system is supported by a data collection system that enhances performance management tasks and is user-friendly
YES
Victoria Police is aware of the shortcomings of its data collection systems, but has yet to implement a new system
3. Arrange in the short term for the assessment of complaints and incidents to remain a central function, but ensure it is delegated to the regional or local level once the local area is suffi ciently skilled to undertake the process and ensure:
a) That the assessment process is overseen by a regional Professional Development Committ ee that reports centrally on a regular basis; and
b) That the assessment process is subject to oversight by Victoria Police centrally and by OPI.
PARTLY
Local police are empowered to resolve local complaints informally at the local level without reference to a central point, but formal classifi cation remains a central function
4. Establish management methods to rectify and resolve substandard behaviour, conduct or performance issues, instead of formal hearing processes. For these purposes it should ensure that:
a) There are clear objectives as to its purpose (consistent with the principles outlined above)
b) There is a Management Action Plan in each instance where any action is determined to be necessary
c) There is a process for internal review if a member considers management remedial action is unfair or inconsistent with the legislative framework.
PARTLY
5. Establish processes that fi nalise disciplinary matt ers promptly, but where criminal matt ers are likely to be involved, consult with the Offi ce of Public Prosecutions to ensure that the disciplinary matt er will not prejudice the criminal matt er.
NO
6. Consider the New Zealand model for the integration of the human resources and discipline functions within Victoria Police to determine whether it would provide a clearer and more consistent focus on both functions.
NO
56
Improving Victorian policing services through effective complaint handling (2008)
RecommendationImplemented (YES, NO, PARTLY)
Comment
1. That Victoria Police implement a three-tiered classifi cation system for dealing with complaints and incidents along the following lines:
• Service delivery issues. These matt ers are to be dealt with by local managers through alternative dispute resolution processes. The object of the process is to improve public confi dence in policing and to ensure policing services are responsive to local community needs. The Professional Development Committ ee is responsible for overseeing resolution processes and ensuring matt ers are dealt with in an open, fair and timely way. The Professional Development Committ ee is responsible for preparing regular reports of its activities and regional customer satisfaction and public confi dence indicators.
• Misconduct not warranting dismissal. These matt ers are to be investigated at a Regional level. The object of the process is to identify any individual or systemic performance management issues and, where appropriate, to introduce performance management action plans. The Professional Development Committ ee is responsible for overseeing investigation processes and ensuring appropriate action is taken to address any misconduct issues.
• Misconduct warranting or potentially warranting dismissal. These matt ers are to be investigated by ESD. The object of the process is to identify those police whose conduct is incompatible with him or her remaining a member of Victoria Police and to institute a faster, more streamlined dismissal process for these individuals.
NotesEither the Professional Development Committ ee or ESD can classify a complaint or incident, and, if in the course of dealing with a complaint or incident fresh information indicates a matt er should be re-classifi ed, either the Professional Development Committ ee or ESD can re-classify a matt er.
Where a member of police has been the subject of recurrent service delivery issues, it will be appropriate to investigate whether the member is underperforming and requires a performance management plan.
Where a member of police has consistently breached provisions of a performance management plan or has failed to improve her or his performance, it will be appropriate to investigate whether the member’s conduct warrants dismissal.
YES
57
2. That Victoria Police: • Develop a Committ ee Charter and Standard
Operating Procedures for the Professional Development Committ ees
• Establish a central coordination role to encourage performance standards and improvements of the Professional Development Committ ees
• Ensure Professional Development Committ ees develop annual business plans with key performance measures
• Develop a Professional Development Committ ee performance monitoring framework
PARTLY
A charter, some standard operating procedures and a central coordination role have been developed; annual business plans with key performance measures and a performance monitoring framework were not provided to OPI
3. That ESD cease its direct involvement in service delivery issues. Whilst retaining responsibility for overseeing the assessment and classifi cation of all matt ers, ESD delegate to Professional Development Committ ees the responsibility for the assessment and classifi cation of complaints and incidents that are made direct to local policing services, other than misconduct issues warranting or potentially warranting dismissal. ESD should focus on identifying misconduct that warrants dismissal. They should also adopt a more vigorous role in overseeing and auditing Professional Development Committ ees.
PARTLY
4. That Victoria Police, as a matt er of urgency, invest in a robust information technology system for the classifi cation and management of complaints and incidents. The system should be overseen by ESD and, subject to suitable accountability measures, should be accessible to local managers, so that they can monitor the progress of complaint resolutions and misconduct investigations, and identify local trends and early intervention opportunities.
NO
5. That Victoria Police develop and implement training and communication strategies aimed at informing police about changes to the systems and approaches dealing with:
• Matt ers suitable for alternative dispute resolution; • Misconduct investigations; and • The integration of these systems into performance
assessment and management.Further, that consideration be given to providing Resolution Offi cers with accreditation linked to specialist training in mediation, confl ict resolution and managing underperformance.
PARTLY
58
Appendix Two: Surveys
Victoria Police Members’ SurveyThe Offi ce of Police Integrity is conducting a review of changes made to the Victoria Police complaints and discipline processes, including the Management Intervention Model. Records indicate that you have been involved in the complaint management process. It would be helpful if you could participate in a survey designed to assist the review. Your frankness in answering the questions would be appreciated.
Please note that your participation in the survey is voluntary and your answers will remain anonymous.
1. Was the complaint resolution process explained to you after you were notifi ed about the complaint?
Yes No Can’t Recall
2. Did you have contact with the complainant during the resolution?
Yes No Can’t Recall
3. Were the details of the complaint outlined to you?
Yes No Can’t Recall
4. Were you given an opportunity to put your side of the story to the resolution offi cer?
Yes No Can’t Recall
5. Did you feel you were listened to by the resolution offi cer?
Yes No Can’t Recall
6. Rate how you feel about this complaint resolution process.
1 2 3 4 5
Waste of Time Worthwhile
Please explain
………………………………………………………………………………………………
………………………………………………………………………………………………
59
7. Were you notifi ed of the result of the complaint?
Yes No Can’t Recall
8. Did you feel that you were treated fairly by the resolution offi cer?
Yes No Can’t Recall
9. (a) Were you requested to apologise to the complainant in any way?
Yes (go to part b.) No (continue to question 10.) Can’t Recall
(b) Did you apologise?
Yes No Can’t Recall
(c) If no, please explain why
………………………………………………………………………………………………
………………………………………………………………………………………………
10. Rate how the experience aff ected the way you do your job now.
1 2 3 4 5
Not as well as before No change I do the job bett er
11. Do you have suggestions for improving the complaint resolution process?
Yes No
Please explain
………………………………………………………………………………………………
………………………………………………………………………………………………
12. Any other comments
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
Thank you for taking the time to complete this survey.
60
Complainant survey
Complaint resolution survey
The Offi ce of Police Integrity is conducting a review of changes to the Victoria Police complaints and discipline processes, including the Management Intervention Model which is used to reach a resolution between parties involved in a complaint about police service delivery.
Your complaint has been chosen at random to form part of this review. I would like to ask you a number of questions about the process from your perspective. The review is only examining the complaint handling process and will not be re-investigating complaints.
The questions will only take a short time to answer. Your participation is voluntary and your answers will remain anonymous.
1. (a) Was the complaint resolution process explained to you after you were contacted about the complaint?
Yes (go to part b.) No (continue to question 2.) Can’t Recall
(b) If yes, what were you told?
………………………………………………………………………………………………
………………………………………………………………………………………………
2. (a) Did you have contact with the police member/s that you complained about during the resolution process?
Yes (go to question 3.) No (continue to part b.) Can’t Recall
(b) If no, would you have liked to have had contact?
Yes No Can’t Recall
3. Were you given an opportunity to put your side of the story to the offi cer assigned to deal with your complaint?
Yes No Can’t Recall
4. Did you feel the offi cer assigned to deal with your complaint listened to you?
Yes No Can’t Recall
61
5. Rate how you feel about this complaint resolution process.
1 2 3 4 5
Waste of Time Worthwhile
Please explain
………………………………………………………………………………………………
………………………………………………………………………………………………
6. Did you feel that the offi cer assigned to deal with your complaint treated you fairly?
Yes No Can’t Recall
7. What were you told about the outcome of your complaint?
………………………………………………………………………………………………
………………………………………………………………………………………………
8. Did you receive any paperwork about the complaint process or the outcome?
Yes No Can’t Recall
9. Do you have suggestions for improving the complaint resolution process?
Yes No
Please explain
………………………………………………………………………………………………
………………………………………………………………………………………………
10. Would you make another complaint about the police if you felt you had reason to?
Yes No Can’t Recall
If no, why not?
………………………………………………………………………………………………
………………………………………………………………………………………………
11. Any other comments
………………………………………………………………………………………………
………………………………………………………………………………………………
Thank you for taking the time to fi ll out this survey.
62
Appendix Three: Summary of survey results
SurveysFor the purpose of this report OPI replicated the surveys used in the 2008 report.10
Total responses: Complainants (C)=36; Police (P)=35
Complainant responsesA total of 36 complainant responses were received.
Seventeen complainants said they had the Management Intervention Model process explained to them. Nine said they did not, nine could not recall and one did not answer that question. Almost all (32) said they did not have contact with the member(s) complained about. Of these, around half (17) said they would have liked to have contact.
Twenty-three complainants said they received writt en correspondence about the complaint process or the outcome of their complaint. Twenty-four said they had suggestions for improving the complaint resolution process. The most common suggestion made by complainants was to have complaints investigated by an independent person. The only other suggestion made by multiple complainants was to resolve complaints in a more timely manner.
The next fi gure shows complainant satisfaction with the process from 1 (waste of time) to 5 (worthwhile).
10 Office of Police Integrity 2008 Improving policing services through effective complaint handling pp41-46
63
Figure 1: Complainant satisfaction levels
0
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
1 52
No.
of r
espo
nden
ts
3 4
There was a strong correlation between being ‘listened to’ and the perception of fair treatment. Eleven complainants felt they were not listened to. Nine of those felt they were not treated fairly while two felt they were treated fairly. Twenty-four complainants felt they were listened to. Of those, 21 felt they were treated fairly and three felt they were not treated fairly.
Despite some complainants’ obvious dissatisfaction with the process, the majority (28) said they would complain again if they believed they had cause to do so.
Police responsesA total of 35 police responses were received.
Twenty-two police said they had the Management Intervention Model process explained to them after being notifi ed of the complaint against them. Ten said they did not and three could not recall.
Twenty-six police said they had the details of the complaint outlined to them, six said they did not, two could not recall and one chose not to answer that question.
Three police said they had contact with the complainant during the process, one could not recall and 31 said they did not have contact.
Six police said they were not given an opportunity to put their side of the story to the resolution offi cer. Of those, fi ve did not feel they were listened to by the resolution offi cer and one did not respond. Twenty seven police said they were given an
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opportunity to put their side of the story to the resolution offi cer. Of those, two did not feel listened to and 25 felt they were listened to by the resolution offi cer.
Four said they were not treated fairly, four couldn’t recall, one did not answer and 26 said they were treated fairly by the resolution offi cer.
The next fi gure shows police respondents’ satisfaction with the process from 1 (waste of time) to 5 (worthwhile). Three police chose not to answer that question.
Figure 2: Police satisfaction levels
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Twenty-nine police said they were not asked to apologise. One could not recall, one chose not to answer that question and four said they had been asked to apologise. All four who reported being asked to apologise said they did not apologise.
The next fi gure shows how police feel they do their job after the complaint resolution experience, from 1 (not as well as before) to 5 (I do the job bett er). Two police chose not to answer that question.
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Figure 3: Performance after complaint resolution
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1(Not as wellas before)
5(I do the job
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No.
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Eighteen police said they had suggestions for improving the complaint resolution process. The most common suggestion (made 12 times) was to fi lter out or deal sooner with trivial and vexatious complaints. A number indicated they felt aggrieved that a trivial or vexatious complaint was taken seriously enough to be recorded against them. Some police indicated on the survey (fi ve) and in phone calls to OPI (two) that they were unaware of any complaint against them. Two police suggested the complaint resolution process is biased against police.
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Appendix Four: Response of Chief Commissioner
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