In this article I will discuss my thoughts on this very critical issue based upon decades of experience in addressing not only the issue of liability, but also the issues related to command officer behavior, legal insight, intellect, awareness, and employee skills and suitability.
First, a summary of my background is in order. I became a police captain in the fourteenth year of my career. In fairly rapid fashion, in both the military and civilian worlds, I played an increasingly significant role in overseeing the conduct of those who were in positions of command leadership; persons who possessed some latitude to exercise flexibility in creative or innovative ways. Within the article, I will also provide my thoughts on the three generalized categories of command-officer levels of creativity. Finally, in the spirit of full disclosure and while being proud of several unique and successful programs, I must confess that my high levels of innovation and creativity did not always work out successfully nor as planned. However, overall I think history would describe my track record in this regard as pretty decent.
Liability and Command Officer Performance
I strongly believe that a major factor that separates superb leaders from managers is the ability and inclination to “think outside the box” in responding to ever-changing public safety challenges and opportunities. Based on years of observations, scores of subordinate (usually) command officers, innumerable crime and safety problems and many sleepless nights, I have come to the conclusion that command officers generally fall into one of three categories. First, is the pro-active command officer who is aways looking for and open to non-traditional ways of addressing responsibilities. This is the leader who is naturally inclined to explore creative and innovative methods but is smart enough to recognize various types of pitfalls. Second, is the command officer who, while not much of an innovator, is a solid manager who keeps the command going in a positive direction and ensures that issues are promptly and appropriately addressed. Finally, there is the command officer who realistically is not suitable for the position held. This is the person who usually “goes with the flow” and only exercises special effort and creativity when in the pursuit of self-interest. This article is based in part on my experiences in all three categories.
Liability Considerations
Liability is a very real consideration in everything we do, and because of excessive litigation, it is becoming even more so (especially in California!). Staying within the parameters of well-established norms and standard operating procedures is often the safest course of action. However, this approach is seldom the most effective in addressing challenges or exploiting unique opportunities. Developing unique approaches or programs that are somewhat “outside the box” will often evoke criticism from those persons who often automatically seem to see anything outside the norm in a skeptical manner. The argument that soon follows is the issue of liability. There are typically a multitude of reasons not to do something that is outside the norm, but a real measure of true leadership is the command officer who is able to look beyond the predictable arguments and find appropriate ways of getting things done. Of course, this presupposes that the “outside the box” approach passes the “legal, moral, ethical” smell test.
Past Programs
Not surprisingly, I will describe some of the programs that have been largely successful from my own command experiences. As a long-time supporter of teen explorer programs that are overall successful in strengthening the skills and maturity of young persons, I have used the kids for rooftop crime surveillance, pager callout for public events, crime scenes and other major incidents. Explorer programs can be a reservoir of person power in safe situations where a sworn officer is not required. As a long-time supporter of citizen patrols, I have used them for rooftop surveillance, neighborhood visibility, loose oversight of persons providing court-mandated community service and immediate response to various incidents for traffic and crowd control. As a long-time proponent of specialized adult volunteer programs, I have used uniquely qualified persons as photographers, physicians, specialized surveillance, computer forensics, prostitution stings, stenographers-clerical support, communications system bid & RFP review, evidence-jewelry appraisal, financial audits, juvenile-at risk counselors, translators, employee financial advisors and other specialized tasks for which there was no internal expertise.
Reducing Liability
The potential for liability and subsequent litigation will always be factors, more so in communities with deep pockets and a surplus attorneys. That said, good solid planning, training and documentation can significantly reduce the likelihood of litigation or the degree of any damages in the development of innovative programs. The real key and my long-time strategy have been to anticipate every question a plaintiff’s counsel is likely to ask under cross-examination. I then factor those issues into the planning and execution phases of the innovative program. As my professional skills increased and scar tissue healed, I found satisfaction in the documentation I established with the goal of hopefully having a plaintiffs’ attorney regret having asked for discovery. In addition to the above, ensure that your good intentions and public safety considerations are evident in your documentation.
Employee Suitability
Some of my scar tissue is the result of placing unsuitable employees in charge of sensitive programs, where compliance with carefully crafted guidelines was essential to program success and reducing liability exposure. Without being critical of light-duty employees, the simple fact of the matter is they are most often the most available personnel. Sometimes a special program necessitates taking a full-duty employee away from regularly assigned duties. In the absence of a suitable person for a critical program, it is my best advice that the program should not be pursued until a suitable person becomes available; there is just too much that can go wrong. Among many great experiences, I have also learned some valuable lessons from the negative experiences under my command. Some of the negative experiences have included adult employees having inappropriate relationships with Explorer scouts: an officer, without permission, having police identification cards printed for volunteers; juveniles being assigned to a community clean-up group that was actually a front group for an alleged religious organization; and the diversion of troubled teens to a member of the clergy who was later implicated in a molestation scandal. Fortunately, I have far more examples of positive experiences!
Quality of Legal Advice
First and foremost, always remember that agency lawyers are staff advisors and not decision makers! Equally as important, remember that lawyers are just like the rest of us; some are better and smarter than others. Among my greatest professional regrets was my inclination, early in my command career, to accept advice from lawyers without question. While not suggesting that all lawyers are problematic, the easiest and safest course of action is typically “not to proceed outside the box” for the fear of legal exposure. First, if an adequate reservoir of lawyers exists, try to get a legal advisor who is well-grounded in the law and not afraid to push the envelope a tad, and litigate if necessary. Secondly, in a partnership with counsel, do your homework in anticipating every possible stumbling block, and build the pathways into your proposed program. Finally, implement the program cautiously to ensure that anticipated results are achieved and that both internal and external support is developed.
Be sure to document your good intentions! This investment of time and effort are advantages to public safety and will minimize the chances of litigation. Yes, you are writing for subsequent potential discovery. As previously explained a bit differently, no program is better than a program supervised by the wrong person; pull the plug if necessary and at least there may be a possibility of future resurrection.
Community Involvement
The reader will note a common theme that applies to virtually every concept that I have discussed: community involvement. For youth, the satisfaction of involvement and likelihood of a more successful life are clear to all who have experience with youth volunteer programs. For adults, the participation is always based on support for law enforcement, desire for civic involvement and satisfaction of applying outside skills in support of public safety. I am always troubled by law enforcement executives who fail to implement such programs because of the “liability” factor. Such “leaders” are just plain wrong; and they are doing a disservice to their agencies, their communities, and to the many persons who would enjoy being part of their departments.
Summary
With very few exceptions, the issues of command excellence and successful creativity and innovation are intrinsically linked! The best and most successful leaders are those who see problems as opportunities, who are prone to explore beyond the status quo, who are smart in navigating unconventional approaches, and who recognize that one size does not always apply in the various public safety challenges in today’s complex environments. I hope that my remarks are of value to those leaders who are always open to new approaches in making organizations and communities better and safer places.
Keith Bushey retired from the Los Angeles Police Department as a commander, from the San Bernardino County Sheriff’s Department as a deputy chief, and from the United States Marine Corps Reserve as a colonel. Other law enforcement experience includes having served as a Los Angeles County deputy sheriff, a State of California deputy game warden, and as the Marshal of San Bernardino County. He is an instructor emeritus for the FBI Law Enforcement Executive Development Association and has lectured and written extensively in the areas of leadership, management and ethics. His entire eight booklet Leadership Series is in the public domain and may be downloaded without cost from KeithBushey.com.