Jenny Gathright
The Metropolitan Police Department was forced to rehire more than three dozen officers it tried to fire between 2015 and 2021 — and those rehirings led to the District paying those officers $14 million in lost wages, according to a new report from the D.C. Auditor. The rehired officers include an officer who had been fired three separate times and been arrested for assault with a dangerous weapon, and an officer who was found guilty of simple assault in court.
The findings, published Thursday, underscore much of what previous investigations have surfaced: that MPD is often unable to fire officers accused of misconduct, even when it tries, and that the results are costly to the District. D.C. Police Chief Robert Contee responded to the audit — largely agreeing with its conclusions and recommendations — and said he is hopeful that recent changes to D.C.’s police disciplinary process will empower the department to address officer misconduct more successfully. D.C. Auditor Kathy Patterson said in a press release announcing the audit that the D.C. Council needs to be able to clarify disciplinary guidelines for police.
“What we found is consistent with concerns raised by the Police Reform Commission,” said Patterson. “We’re recommending legislation to put elected officials in the driver’s seat on what is and is not behavior that merits termination from MPD.”
Between October 2015 and April 2021, MPD had to reinstate 37 officers that it had tried to fire. During that time, MPD fired 49 officers. That meant that every year during the period studied, MPD was rehiring two officers for every three it had fired. In many cases, a third-party arbitrator that handled an officer’s appeal of their firing forced MPD to take them back because the arbitrator found termination too harsh a punishment. In other cases, the department was forced to rehire the officers because MPD was found to have violated procedure during the officer’s disciplinary process.
The process of getting reinstatements tends to be long and costly. The auditor’s office found that on average, the entire termination and reinstatement process for an officer takes eight years — and D.C. had to pay the reinstated officers an average of $374,000 in backpay. Once you include other costs to the District – like arbitration fees, attorney’s fees, and interest — each reinstatement had an average price tag of $520,000, the D.C. Auditor found.
The auditor reported that 17 of the 37 officers were fired because of misconduct that could be categorized as a “threat to safety,” including physical and sexual violence, mishandling firearms, compromising evidence, or other actions that could include the risk of harm to another person. Those instances of misconduct include an officer who had been fired on three different occasions and been arrested for assault with a dangerous weapon. And they include an officer who was found guilty of simple assault in a D.C. Superior Court case, according to the auditor.
One of those cases was that of Julius Allen, who was fired from MPD in 2010.
In 2009, Allen and another officer, Japheth Taylor, responded to a domestic violence call involving a woman and her boyfriend, according to the auditor’s report. Allen and Taylor left without making an arrest, reclassifying the incident as a “family disturbance.” But a sergeant who had been monitoring the call went to the scene and ended up making an arrest. The sergeant saw photos that a building security officer had taken of the woman’s face, which had a cut and swollen lip. After interviewing her boyfriend, the officer took him into custody. MPD concluded that Allen and his partner at the scene had ignored D.C.’s laws by leaving the scene without making an arrest. It charged both of them with making untruthful statements and neglect of duty. Allen was fired in 2010.
But six years later, an arbitrator’s decision forced the department to rehire Allen. The department paid him $158,884 in backpay. And in the years after his return to the force, Allen was accused of three more cases of misconduct, MPD disclosed to the D.C. Auditor. Those included falling asleep at work, discharging his pistol while he was reloading at home, and an “unjustified takedown” of a person in a jail cell. Allen has since retired from MPD, according to the auditor.
The remaining 20 officers were fired for “administrative” reasons, including a misrepresentation of injuries, time theft, fraud, or other types of misconduct that didn’t involve the risk of harm to another person. Those cases included an officer who got on a train from Baltimore to New York without paying for a ticket, and officers who falsified their home addresses so they could get their kids into a D.C. charter school.
And 15 of those reinstated police officers were on the force as recently as September 2022, the auditor found. Three of them had been initially terminated for misconduct categorized as a “threat to safety.” Six of the officers have been reported for misconduct since they were reinstated.
Among those officers is Wilberto Flores, who was working at MPD during the audit. According to the auditor’s report, Flores was found guilty in criminal court for exposing his genitals to women in a grocery store parking lot in 2010. MPD charged Flores with “conviction of a crime and conduct unbecoming an officer,” according to the audit. MPD fired him in 2011. But ultimately, he was rehired in 2016 and paid $362,461 in backpay.
Since he was returned to the force, Flores has three documented instances of misconduct: crashing an MPD vehicle, failing to turn his body-worn camera after the crash, and parking in a bike lane, according to the audit.
The D.C. Auditor found that the most common reason officers were reinstated was because an arbitrator decided MPD’s punishment was too harsh. But the auditor also found that MPD’s “failure to meet deadlines, follow procedures, and provide adequate evidence” also contributed to officers getting rehired.
“We have had individuals come back on the force who a reasonable man or woman in the street would say, ‘I don’t want that person carrying a gun on my behalf,'” said Patterson, the D.C. Auditor, in an interview with DCist/WAMU. “And so if that is if that is the commonsense reaction to these circumstances and these officers’ stories, then it’s up to policymakers to figure out how to embed that in policy and practice.”
Because of how byzantine D.C.’s disciplinary processes for police are, Patterson said, “that’s a huge challenge.”
D.C.’s disciplinary process for police is, as the auditor’s report described it, “complicated and confusing.” But in general, the process goes like this: First, MPD’s Internal Affairs Division investigates a complaint against an officer. If the investigation finds that the officer committed misconduct, MPD’s Disciplinary Review Division recommends discipline for that officer. If that recommended discipline is a firing, a group called an Adverse Action Panel — also sometimes referred to as a trial board — holds a hearing where the officer and the disciplinary review division can each argue their case. The Adverse Action Panel is a rotating panel of high-ranking officers that can either sustain or overturn the recommendation from the disciplinary review division. If the adverse action panel agrees that the officer should be fired, the officer can appeal that decision to the police chief. If the chief agrees they should be fired, the officer is fired.
But the officer then has further, special recourse through an agreement between the department and the police union. They can turn to an arbitrator — a third-party lawyer chosen from a list that MPD and the police union have previously agreed upon.
There are two key points during this process where reporting has found officers recommended for firing are returned to the force: the adverse action panels, and arbitration.
Last year, a Reveal/DCist investigation found that adverse action panels played a significant role in preventing officers accused of crimes from being fired. The Reveal/DCist reporting found that because of decisions by Adverse Action Panels, officers accused of serious crimes like domestic violence, stalking, and driving under the influence remained on the force even though the disciplinary review division recommended that they be fired after an internal affairs investigation.
Arbitration also plays a significant role. A 2017 Washington Post investigation came up with similar findings as the D.C. auditor: It found that arbitrators forced D.C. to rehire 46% of the officers it tried to fire over the previous decade, resulting in the rehiring of 39 police officers. The Post found that half of those reinstatements happened because MPD missed the deadline for completing their internal investigations.
D.C. Police Chief Robert Contee suggested at a D.C. Council hearing last year that Adverse Action Panels might even be reducing officer’s disciplinary recommendations because the threat of arbitration looms over the decision-making process. He also testified that since becoming chief, he had personally dealt with situations where he wanted to fire officers but was forced to keep them on the job because of a decision made in arbitration.
The auditor’s office also found that MPD leadership was frustrated with arbitration.
“In meetings with [The Office of the D.C. Auditor], current MPD management expressed frustration over the reinstatement of ‘bad cops’ and concern that MPD officers are demoralized when their colleagues are reinstated despite breaking the rules,” the report said. “They suggested that officers may be more likely to engage in misconduct when they believe they have a good chance of overturning any resulting discipline.”
But that old disciplinary system is changing.
Under the previous collective bargaining agreement, MPD agreed to let arbitrators decide the outcomes of terminations that the police union wanted to challenge.
But the new contract MPD agreed on with the D.C. police union in July was the first contract where disciplinary processes were off the negotiating table. Because of legislation passed by the D.C. Council, MPD is now free to set its own disciplinary policies without the union weighing in. The police union challenged the legislation but lost in court.
If the D.C. Council approves a permanent version of that legislation — which it’s expected to do this fall — arbitration will stay out of the police discipline process. Police officers that MPD tries to fire will still have recourse through the District’s Office of Employee Appeals, the office where any D.C. government employee can go to appeal a termination.
In his written response to the auditor’s report, Contee expressed hope that this new system would change things for the better.
“The reinstatement of members who engaged in egregious misconduct that warranted termination has been a source of great frustration for me and my predecessors. Your audit highlighted this problem and the challenges faced by MPD in this regard,” Contee wrote. “I am hopeful that this audit’s recommendations, the newly negotiated collective bargaining agreement that eliminates disciplinary arbitration, and MPD’s new disciplinary process will substantially improve a problem that has plagued the District of Columbia for decades.”
In its report, the auditor made eight recommendations for the District. They included asking the D.C. Council to make clear in the permanent version of police reform legislation that they are eliminating arbitration. The auditor has also recommended the D.C. Council codify penalties for police officers who commit misconduct, and include feedback from D.C.’s police chief in the process. The auditor also wants MPD to analyze its disciplinary data to look for trends in misconduct — and then use that analysis to inform initiatives to reduce officer misconduct.
The agency agreed with all of the auditor’s recommendations except one — the question of clarifying MPD’s disciplinary rules. The department wrote that instead of the D.C. Council codifying these rules through legislation, MPD can clarify its rules on its own.
Previously:
D.C. Police Union Loses Challenge Of Law Reforming Officer Discipline
This story was updated to include comment from Kathy Patterson, the D.C. Auditor.
