Discipline and Offenses

This section will deal with the disciplinary process with the Auxiliary. For minor issues, we should avoid formal disciplinary process. We are a volunteer organization and all of us are here (or should be here) for service to the community and each other. That means we have a certain level of motivation for resolving conflicts and those who are not so motivated will leave the service of their own accord. However, we may occasionally have to deal with various types of issues including (in rough order of seriousness):

  • Personality conflicts and personal disputes
  • Clarification of lines of authority or responsibility/resolution of disputes between different sections or roles
  • Issues of potential harassment or hazing
  • "Conduct unbecoming"
  • Misuse of authority, of equipment or assets
  • Complaints from members of the public or other agencies
  • Review of official conduct such as use-of-force, or decisions made on the field
  • Accusations of criminal conduct related or not related to the Auxiliary

We may also end up participating in disciplinary process within the Sheriff's Office or other agencies (such as witnesses to an official review of the conduct of a deputy or other emergency responder we work with on the field, or participation in a civil or criminal case).

Informal Conflict Resolution

Approach minor conflicts in the following preference order:

  1. Approach someone privately and discreetly.
  2. Use an informal arbitrator or facilitator.
  3. Find a way to tactfully approach an issue in a hotwash or other semi-formal setting.
  4. Escalate the matter within the chain-of-command.

It is the responsibility of officers and NCOs to help guide this process. That's one of the reasons you exist. In many ways, especially in a new organization, some conflict is helpful, because it is in resolving conflicts that we will find holes in our process and establish new procedure for the future.

Volunteers without formal management training may find the following Independent Study courses from EMI helpful:

All three provide college/CEU credit and will work toward a FEMA Professional Development Series certification.

Approach privately

In minor matters and personality conflicts, the first step should be to try to resolve the matter informally between you and them. If, for instance, another volunteer does something which bothers you or you are having difficulty working with someone, if you have a problem with the way a procedure is being handled or believe that something is unfair, approach them privately and discuss the matter. We have to strike a balance between being patient and not letting conflicts fester.

There will always be personality conflicts, people will always have strengths and weaknesses, minor annoying habits, things we like about them and things we do not. When we can ignore such things without compromising the Service, we should simply do so. On the opposite side, in an organization where many of us may participate for years, anything which has the potential to simmer and grow has to be dealt with as gently as possible before it has a chance to do so. Finding that balance is not always easy, but if done correctly, most issues can be resolved this way. The object is to bring something to the other's attention, listen to their side, and provide a chance for something to be changed without embarrassment on either side.

When you should not approach privately

Skip this first step in any of the following cases:

  • The person's behavior makes you feel unsafe
  • There is a danger to life or property
  • On the field where an immediate solution is necessary: there is a time for discussion and a time for orders
  • An outside agency, community complaint, or financial matter is at the center of the issue
  • Criminal conduct is involved
  • Otherwise in any situation where there is a legal responsibility to document what is going on

If the matter is between a superior and a subordinate, it may be wise to note that the discussion occurred and any resolution or change in policy which resulted. This creates a later baseline to go back to if the matter is not resolved and further action needs to be taken. It also demonstrates that you did not ignore a matter brought to your attention.

Email is a convenient tool for private conflict resolution if it is used appropriately.

  • Email pros
    • Convenience, no meeting necessary
    • Creates record
  • Email cons
    • Doesn't convey tone or body language, so causes miscommunication frequently and can inflate conflict
    • Email is easy to copy, forward, and quote out of context; inflates conflict and spreads information which should be confidential
    • With Blind Carbon-Copy, you don't know who else is part of a conversation
    • Because it leaves a record, you can get skewered later for brainstorming or informal proposals that weren't good ideas

Because of the potential for mis-communication, take care in writing an email. You may write a draft, let it sit for a little bit, come back later and re-read it before deciding to send it. If you can, have someone else you trust (e.g. your spouse) read through it; they won't bring the same assumptions and may spot parts that are unclear or which may ruffle feathers. If you use your superior in chain-of-command to read through it, it can be a way to get their feedback and let them know of a matter in a way where they do not have to take official notice (use with care).

Often the best approach is to have the meeting one-on-one and then use an email to document the decision (in formal terms, referred to as a Memorandum of Understanding or MOU).

From our discussion at the library today, my understanding is that we will implement the following:

  1. All press releases will be approved by [X] and reviewed by at least one other person before submitting.
  2. In order to avoid confusion, all ads for future events, no matter who writes them, will be submitted to the LC Record by [X].
  3. If [X] is not available, call the Chief of Staff.

This technique allows the actual issue to be raised in a format which allows tone of voice and body language to come into play. What is documented is not the initial conflict (negative) but what is being done in the future (positive) and only the agreed alternatives need to be written, not ideas rejected along the way (unless it is specifically important to document why some option was rejected). It also gives the other party a chance to tell you if what they took away from the meeting is different from what you took away from it

Finding an arbitrator or facilitator

If the first step does not resolve the issue or it is not appropriate, the next step is to find one or more persons who can informally sit down with you and the person involved in the conflict. This can be a Chaplain or Chaplain's Assistant, for instance, or another volunteer who is neutral and impartial in the situation. The role of the facilitator is not to gang up on the other party but to help ensure that you are listening to each other, to bounce ideas off of, or to suggest alternatives neither of you have considered. The facilitator is also a witness that the situation is handled fairly. The facilitator can be a superior, but the superior has to keep in mind in that case that their role is not to judge (unless necessary) but to listen and prod the participants to come up with their own solutions. If neither side can or is willing to solve the problem, then the superior must impose one.

Lunch (coffee, whatever) is a good way to make the situation more friendly, less formal and let one side or the other save face.

Semi-formal settings such as a hotwash

A hotwash (informal debrief after an event where people brainstorm about what happened) can be a good way to de-fuse conflict if a comment is worded positively and not directed at a specific individual. Phrase constructively where you can by suggesting a change rather than harping on failure (e.g.: "Maybe we should schedule practice on vehicle caravans before the next deployment," rather than "So-and-so really screwed up the caravan thing and we had to make four u-turns.") The discussion tools in D4H for events, including the "lessons-learned" can be very useful for this as well.

Escalating within the chain of command

If none of the informal processes are working, the issue needs to be escalated within the chain of command: take the matter to your superior and let them sort it out. The superior should sit down with both parties to ensure that both sides are heard and that the resolution is fully understood. The Memorandum of Understanding technique or a formal order from the superior should be used to document the interaction and establish any new procedure needed. Many SOPs and SOGs will start their life in solving and documenting a problem.

Training and Exercise For Conflict Avoidance

The CERT Train-the-Trainer course emphasizes that trainers are the first line of defense in weeding out potential volunteers who do not have the appropriate mindset or who do not 'play well with others'. If a recruit is:

  • losing their temper,
  • letting ego get in the way, or
  • exhibiting attention-seeking behavior

in a team-building project (remember the marshmallow and spaghetti towers?), skills demonstration, or exercise, it is a good clue that they should not be invited in or that, at the least, their application may be best delayed until we see them in more training circumstances or can check references. Disaster deployment will be more stressful than training, likely to make bad behaviors worse, and the last thing we need is a loose warhead with a gun smearing the name of our organization or of the Sheriff's Office. When considering whether to accept an applicant, we must always go back to the criteria on the enlistment/commission recommendation forms and in a particular, "attesting on my own honor to the same": when you recommend a candidate, your honor is on the line.

Sheriff's Office Disciplinary Process

Auxiliary volunteers are considered to be members of the Sheriff's Office and are therefore subject to some of the same disciplinary procedures as reserve or full-time deputies. In general, the Sheriff may always elect to handle a disciplinary matter within the Sheriff's Office rather than within the Auxiliary, and this is particularly likely if either key staff officers are involved or enough key officers are witnesses to a matter that a fair disciplinary process within the Auxiliary is unlikely. In specific, however, there are two Sheriff's Office disciplinary procedures which will always apply to volunteers: immediate suspension for criminal charges and use-of-force review.

  • The Sheriff may always elect to handle discipline within the Sheriff's Office and will likely do so if:
    • Key officers of the Auxiliary are directly involved
    • Enough key officers are involved as witnesses or as part of an investigation that an appropriate number of officers cannot be obtained for judge or jury on a court-martial within the Auxiliary.
    • The matter is sufficiently grave that public interest requires the Sheriff to handle the matter directly.
  • The Sheriff's Office will always handle the following matters:
    • The Lawrence County Sheriff's Office has a policy that any member of the LCSO shall be suspended from duty when criminal charges are filed against them and shall remain suspended until the charges are dropped or the member is cleared. This policy applies to Auxiliary volunteers as well and may happen while other disciplinary processes are ongoing.
    • Use-of-Force reviews when an volunteer is involved in a physical altercation (on or off duty) and especially when deadly force is involved
    • When criminal charges result from actions taken on duty.

Use of Force Review

The Sheriff's Office has a policy requiring a Use-of-Force Review when a deputy is involved in the use of deadly force on or off duty. Auxiliary volunteers come under this policy and it does include the presentation of a weapon when it is not used (e.g. you draw your weapon and hold someone at gunpoint for the arrival of a peace officer). There is a less involved process for less-than-deadly force such as the use of pepper spray or stun gun. If the use-of-force is clear, such as dealing with an intruder in your home in the dead of night, the review process should be short and straight-forward. The public will associate any use of force by Auxiliary members with the Sheriff's Office, however, so the Sheriff always has a responsibility to look into the matter.

If you are involved in such a use-of-force, you should notify your superior in chain-of-command as soon as physically possible. If you are off duty, such as a defensive shooting, you should do the following:

  • Notify the appropriate law enforcement if you have not already
  • Notify the responding officer that you are a member of the Sheriff's Auxiliary, that you were off-duty, and that you will need to undergo a Use-Of-Force review
  • Request that you be allowed to contact your superior or the Sheriff's Office or that the responding officer contact the LCSO and notify the Sheriff of the situation
  • Request a copy of their report as soon as it is available and ensure that one is sent to the LCSA/LCSO
  • Contact your attorney. We may be able to provide a list of attorneys who have stated that they would be willing to work with use-of-force incidents.

The responding officer may very well take the weapon involved in the incident for examination. You should be able to get a receipt. The LCSA/LCSO will attempt to send an officer as soon as possible to advise you on the review process and take your statement. You may also request the services of an Auxiliary Chaplain at any time. If you are only given the 'one phone call' contact your attorney if you have one and have them contact the LCSO. If you do not have an attorney, contact your superior in the LCSA or the Sheriff and inform them that you require an attorney.

Sheriff's Office in the LCSA disciplinary process

When the Sheriff takes a direct role in LCSA discipline, the LCSO may either handle the entire matter within the Sheriff's Office, or they may provide one or more deputies or attorneys as investigators, judge, or jury in the Uniform Code of Military Justice (UCMJ) process described in the next section.

Formal Process/Uniform Code of Military Justice

When a formal disciplinary process needs to be initiated for conduct in uniform or for prohibited off-duty conduct, the Auxiliary's process is based on the Uniform Code of Military Justice: the same rules used by the military and uniformed service branches. Missouri's version of the UCMJ is defined by Missouri Revised Statutes Chapter 40 (RsMO 40), "Military Justice", and is required for the Missouri National Guard (when not in Federal service) and Missouri State Guard. As we are required in our organization documents to be designed to operate within a State Guard structure when necessary, following Chapter 40 in our own operation makes our system compatible with the state process and prevents us from having to reinvent the wheel.

Because the UCMJ--- and even Missouri's simplified version--- is large, complex, and covers situations which we will in all likelihood never be faced with, we will define our own processes and exceptions to the UCMJ as we go, documenting them in our Volunteer Handbook, in our SOPs/SOGs, and in formal statements from previous cases. When there is a Sheriff's Office or Auxiliary policy on a matter, we follow it first, then go to Chapter 40 for matters where we do not have a defined process. This is the same way, for instance, that Robert's Rules of Order is used by organizations: our rules first, then fall back on Robert's Rules.

When a formal disciplinary matter occurs, there are some immediate responsibilities to handle as quickly as possible:

  • Act to preserve any evidence which will bear on the matter (e.g. witnesses, documents, reports, electronic records) which may otherwise be lost or destroyed.
  • Obtain a formal statement of the complaint from whoever is initiating it ("complainant" or "initiating party").
  • Notify the defendant that a complaint has been initiated and advise them of their rights (see Article 31B Rights).
  • Notify your immediate superior.
  • Notify appropriate staff of a formal proceeding (Senior NCO for enlisted, Executive Officer for officers) or their superiors if they are the target of the complaint. They will determine if and when the matter needs to go further up the chain to the Commander or Sheriff's Office.

Commander's Mast

In the middle of a deployment or emergency, this initial process can be handled by a Commander's Mast. A Commander's Mast is an official meeting during a deployment conducted by the Commander (Acting Commander, or the Sheriff) where certain formal matters can be heard. This process is based on the traditional Navy "Captain's Mast" but is more or less our own process. Matters which may be heard by a Mast include:

  • Issuing promotions or awards
  • "Battlefield" enlistment or temporary ("brevet") promotions which need to be approved later.
  • Handle disciplinary matters which may be resolved within the chain-of-command (no court martial necessary); Often referred to as "Article 15" proceedings, and described later in this course, these are limited to minor matters and only limited punishments.
  • Review (or initiate the review of) a field decision to relieve a specialist such as a medical, safety, or range officer of their post and replace them (always requires a hearing).
  • Initiate a formal investigation
  • Determine temporary actions which need to be taken until the matter is resolved, e.g. if the volunteer must be suspended from duty, removed from the site/facility, or (in very serious matters, such as assault) temporarily confined. In the latter case, confinement will almost always be for hand-off to Sheriff's Office or other civil authority as they will be beyond our jurisdiction
  • A vote by existing officers to recommend a new officer to the Sheriff for commission

The Commander may call witnesses to speak to a matter before the Mast. If the matter is too serious to be handled in the chain-of-command (it requires a court martial or must be handled by the Sheriff's Office), the evidence gathered shall be documented and made part of the record, it may be used to decide whether or not to proceed on an offense, but may not be used to render a final judgement. In the Auxiliary, a hearing at a Commander's Mast may be used to satisfy the requirements of pretrial investigation under RsMO 40.114. The accused and complainant shall also be allowed to call witnesses at a Mast, subject to the requirements of the Service. If the witnesses cannot be called during the Mast (e.g. unavailable or on duty), their statements shall be taken as soon as is practical after the Mast is concluded.

A Mast may not dismiss a volunteer from service. The volunteer may be temporarily suspended pending later review.

Principles of Disciplinary Process

Throughout the disciplinary process, there are some principles which must be preserved. The accused may:

  • Hear and view the accusation(s) in full along with supporting evidence
  • Present evidence and, if appropriate, witnesses in the volunteer's defense
  • Ask questions or request an advocate to advise the volunteer on the disciplinary process and to act on the volunteer's behalf in any proceedings
  • Exercise their Article 31b rights (e.g. Right To Remain Silent, RsMO 40.112).
  • Subject to the requirements of the Service, of chain of command, and of the disciplinary process, protect the confidentiality of the matter until and unless a formal statement is entered into the volunteer's personnel record or other formal action is enacted.

Article 31B Rights (RsMO 40.112)

From http://www.carson.army.mil/LEGAL/tds/article31-rights.html :

  • Article 31 Rights include the general nature of the suspected offense. Legal specifications are not necessary, lay terms are okay. You must be specific enough so that the suspect understands what offense you are questioning him/her about (RsMO 40.108).
  • The suspect's right to remain silent (RsMO 40.112).
  • The consequences of making a statement.
  • Although it is not necessary that the advisement be verbatim, it is best to read the rights directly from a rights advisement card or as directed/available in your branch of service.

Even though Article 31 does not include a right to counsel (that comes from the Constitution) it is listed on the rights advisement card & must be included when reading a suspect his/her rights (RsMO 40.114).

I am __________, (first sergeant of the) _________, _________ (military installation). I am investigating the alleged offense(s) of ___________, of which you are suspected. Before proceeding with this investigation, I want to advise you of your rights under Article 31 of the Uniform Code of Military Justice. You have the right to remain silent, that is, to say nothing at all. Any statement you do make, either oral or written, may be used against you in a trial by court-martial or in other judicial, nonjudicial or administrative proceedings. You have the right to consult with a lawyer prior to any questioning and to have a lawyer present during this interview. You have the right to military counsel free of charge. In addition to military counsel, you are entitled to civilian counsel of your own choosing at your own expense. You may request a lawyer at any time during this interview. Have you previously requested counsel after advisement of rights? (If the answer is yes, stop. Consult your JAG Office before proceeding).

If you decide to answer questions during this interview, you may stop the questioning at any time. Do you understand your rights? Do you want a lawyer? (If the answer is yes, cease all questioning). Have you already consulted an attorney about this matter? (If the answer is yes, stop questioning). Are you willing to answer questions? Do you understand that your are free to end this interview at any time?

Next Steps

The initial communication should outline the complaint, advise the suspect of their rights, outline the process which will be followed, and tell them what the next steps shall be (e.g.):

This communication DOES NOT CONSTITUTE a formal statement of charges. The next steps shall require the Commander, upon consultation with relevant authority, to determine whether these matters rise to a level requiring formal discipline, what charges, if any, shall be proffered, and what level of formal process is appropriate to resolving the matter in the best interests of the Service. The Commanding Officer has the authority to suspend the volunteer from service pending formal proceedings (or for up to two weeks) and is taking that authority under advisement.

In the background, the officer should start the process of gathering information about the complaint and building a record. Remember at this point that the suspect's confidentiality should be preserved where possible. The possibility of Undue Influence (RsMO 40.126) shall specifically be avoided:

Undue Influence: any statement made by a superior officer which might prejudice their subordinates against the accused. In other words, if the Commander says to the Chief of Staff, "He's guilty and he needs to be punished for it," that is undue influence.

Types of Proceeding

Next, a meeting must be conducted to determine what level of discipline to pursue.

Non-Judicial Punishment

Limited to:

  • confinement on diminished rations,
  • restriction to certain specified limits,
  • arrest in quarters,
  • correctional custody,
  • extra duties,
  • forfeiture of pay (not applicable),
  • detention of pay and reduction in grade
  • .

The extent of these punishments depends on the grade of the officer imposing punishment and the grade of the accused. As a volunteer group, the volunteer can always walk away. Imposition of punishment (e.g. extra duty, extra training) has to be voluntary and based on the alternative of being dismissed from service.

Prior to the imposition of nonjudicial punishment, an accused is entitled to notification:

  • that the imposition of nonjudicial punishment is being considered;
  • a description of the alleged offenses;
  • a summary of the evidence upon which the allegations are based;
  • notification that the accused has the right to refuse the imposition of punishment;
  • and any rights the accused has if NJP is accepted.

Court Martial

For more serious offenses, or if the accused refuses Non-Judicial Punishment, the matter must go to a court-martial.

Summary Court Martial (RsMO 40.065)

  • simplified procedure
  • minor incidents of misconduct
  • conducted by one officer
  • limited punishment (fine of not more than $25, reduction to next lower grade, costs)
  • accused must consent to Summary Court Martial

Special Court Martial (RsMO 40.060)

  • enlisted accused only
  • military judge, trial counsel (prosecutor), defense counsel
  • minimum of three officers as a jury
  • enlisted accused may request jury composed of >= one-half enlisted personnel (Missouri differs from UCMJ)
  • accused may request trial by judge alone (no jury)
  • sentence limited to fine of no more than $100, reprimand, reduction of non-commissioned officer to any lower grade, bad-conduct discharge, any combination of above, costs

General Court Martial (RsMO 40.055)

  • military judge, trial counsel, defense counsel
  • minimum of five officers as jury
  • enlisted accused may request jury composed of >= one-half enlisted personnel (Missouri differs from UCMJ)
  • an officer or enlisted accused may also request trial by judge alone
  • maximum penalty may include fine of up to $200; reprimand; dismissal; dishonorable or bad conduct discharge; reduction of a non-commissioned officer to any lower enlisted grade, any combination of above, costs
  • pretrial investigation under RsMO 40.114 (Article 32, UCMJ), must be conducted, unless waved by accused