Focus on Leadership...Safe Advice vs. Legal Advocacy...Ignore That Advice...Sometimes!!!
Does your department have the wrong person permanently assigned to the wrong position as a result of legal advice that you now question? If so, you are in good company. To one extent or another, most agencies are burdened with a similar festering situation that may not have truly been necessary.
Most of us have come to both depend upon and covet the advice that we receive from our legal counsel. Given the complexities of today’s workplace, and the many laws that govern personnel practices, it is a careless individual who does not seek out the very best advice possible on the myriad of issues facing today’s law enforcement administrator. With that in mind, however, it is imperative to recognize the limitations, as well as the strengths, that are occasionally demonstrated by our legal advisors, and the sometimes catastrophic organizational consequences of safe advice versus legal advocacy.
It can be argued, with some degree of merit, that our real challenges lie not in dealing with crime and public safety issues, but rather in managing the complex and often contradictory laws that affect the workplace! Beyond the legitimate and worthy situations, there are unfortunately no shortage of instances where problem employees take full advantage of the American Disabilities Act, worker’s compensation rules, anti-discrimination laws and rules, and other types of state and federal programs and statutes to obtain questionable benefits and/or accommodations. Given the fact that most of these programs and statutes favor the applicant, the mere filing of a claim or complaint often places the employer in a defensive position. The need for proactive legal advocacy has never been greater than it is today.
What are some of the most common consequences of safe advice? The problem employee who, based upon medical advice, is accommodated in a position other than which the individual was hired for; both reducing that person’s value to the agency and denying other employees an assignment to the position. The elimination of derogatory information from a problem employee’s personnel file, based upon a grievance, further empowering a troublemaker and sending out a message of administrative impotence to others in the workforce. The problem employee who feigns or exaggerates a medical condition and receives undeserved benefits, but who is not subjected to discipline and/or prosecution; a troublesome and often conspicuous situation that infuriates the good employees and serves as an unfortunate incentive for additional fraud and dishonesty. The promotion of a less qualified individual based upon a negotiated settlement, or threatened civil litigation, where gender and/or ethnicity is alleged to be the reason why the individual was not initially selected for promotion; a situation which can be devastating to the overall workforce and make a mockery of the merit system. The individual hired as a law enforcement officer who, although failing a portion of the selection process, prevailed based upon a civil service appeal; a not uncommon situation found in some of our problem employees. While many situations such as these are based upon absolute legal necessity, there are also many similar situations which are a result of safe legal advice, and which may not have been necessary had true legal advocacy been exercised.
In each of the situations described previously, the safest course of action was the one provided. It is safe and simple to recommend accommodation based upon a reported medical condition; to resolve a grievance by the elimination of a contested comment in an evaluation report; to fail to deal decisively with an employee engaged in medical fraud because of the complexities involved; or to resolve civil litigation by the hiring or promotion of a plaintiff. There are often other factors, which if considered and carefully articulated, may have mitigated and/or eliminated the need for the course of action that was provided in each of the examples. Our legal advisors must possess the energy and professional qualities to explore courses of action beyond the provision of safe advice! The potential long-term negative consequences to the organization, in situations such as those described, demand nothing less. The role of the attorney ends when the advice is provided; the consequences of that advice can last for a long time.
Legal advocacy goes beyond research and advice. It also involves education and oversight to help key personnel recognize what measures need to be taken, and how those measures need to be documented, to increase the likelihood that the department will prevail in the resolution of troublesome situations. It should come as no surprise that counsel for the problem employee, will do everything possible to bolster the employee’s case, and either minimize and/or attempt to have excluded evidence that supports your agency. Legal advocacy should result in situations where proactive and appropriate measures are taken, and those measures – as well as the honorable intentions of the agency – are admitted and found compelling in administrative hearings and/or courts of law.
Beyond the isolated consequences of questionable safe advice, the cumulative consequence of months and years of questionable safe advice can actually result in varying degrees of real and discernable organizational paralysis. Every accommodation, to some extent, results in a loss of latitude for at least one person and one assignment, which if multiplied in a number of instances results in a percentage of the organization over which the executive has a diminished ability to influence. As sad as it may be, it is an absolute reality that accommodations have a tendency towards a ripple effect, and almost always result in similar demands by other employees. As an example, one major law enforcement agency has accommodated so many dispatchers in positions outside of the communications center, that police officers had to be taken off the streets and assigned to the communications center in order to fill the many vacancies!
True legal advocacy is a combination of two factors: an attorney who truly recognizes and cares about the long-term consequences of legal advice, and a partnership between that attorney and the law enforcement executive staff. I wish I could say that all of the attorneys who support our agencies possess the energy and determination to be solid partners and strong legal advocates in helping us achieve maximum flexibility in the management of our departments; unfortunately, such is not always the case. The legal profession is not unlike other professions, where some persons are more qualified than others, and where workloads, energy levels, personal agendas, and attitudes are sometimes factors in the work product. All of these factors influence the quality of the legal advice that we receive.
Most of us can look back at times in our careers where we, without seriously questioning what we were being told, acted upon legal advice which in hindsight turned out to be the wrong thing to do. Today, the wise executive is one who is not reluctant to question potentially troubling advice, to seek second opinions, and instead of asking counsel what to do is more likely to ask the legal advisor how to achieve the objectives of the law enforcement executive. We must also realize that our attorneys are staff advisors and not decision-makers, and that the ultimate course of action is something to be decided by the executive based on a variety of factors.
Before being too critical of our staff attorneys whose advice tends to be on the safe and conservative side, it is wise to engage in some self-reflection. We must ask ourselves if we have done our job in developing and mentoring our legal advisors so as to ensure that there is no misunderstanding as to the role that we expect them to perform. Our legal advisors are just like the rest of us; they want to do a good job and to be responsive to our needs. Make it clear – and demonstrate through your behavior – that you covet the role that they play, expect them to be proactive in helping you find solutions to challenging situations, and that, without eroding your role in having the final say, you truly want them to be your partner in moving the organization in a direction consistent with your vision.
Should we as executives occasionally reject the advice that we are given? Absolutely! Legal issues are just like any other issue; we evaluate the pros and cons, consider what we have to gain and what we have to lose, and choose the course of action which is best for the organization. Although we need to avoid taking foolish and unnecessary risks, there are times when we walk the plank and take some legal risks; sometimes what we have to gain far outweighs what we run the risk of losing. Obviously, we lessen the potential adverse consequences by doing our homework, looking at all sides of the issue, clearly identifying the additional and mitigating factors, and by clearly understanding the multiple consequences of our actions before we take them.
Many other persons, including our legal advisors, play a critical role in much of what we do, but do not bear the ultimate burden of managing our work forces, or dealing with the sometimes catastrophic consequences of bad decisions and poor advice. Give yourself and your organization every possible advantage, and develop your staff in a way that is likely to ensure that is the case. Developing your legal advisors in a manner consistent with your vision, and making it clear – through words and actions – that you desire proactive legal advocacy versus safe decisions is a “must do” for every law enforcement executive.