Report 2021-105 Recommendation 41 Responses

Report 2021-105: Law Enforcement Departments Have Not Adequately Guarded Against Biased Conduct (Release Date: April 2022)

Recommendation #41 To: San Bernardino Police Department

To ensure that it adequately investigates possible biased conduct and implements effective corrective actions, San Bernardino Police should ensure that by January 2023 it has formalized policies - such as through discipline matrices or broader discipline guidelines - specifying options for corrective actions beyond punitive discipline that are designed to change officer behaviors associated with biased conduct. The department should require that, when appropriate, these corrective actions—such as training and education—be part of the discipline that officers receive when they are found to have engaged in biased conduct.

Annual Follow-Up Agency Response From September 2023

The Department understood the original recommendation was to formalize policies "such as through discipline matrices or broader discipline guidelines" when correcting biased behavior. The Department responded that Senate Bill 2 would make discipline matrices with a nonpunitive level of discipline out of policy since the Department does not tolerate bias of any kind. The State Auditor's response clarified that the recommendation was not to develop a discipline matrix but to ensure the Department's discipline policy require consideration of nonpunitive corrective action whenever such actions may help address possible biased behavior. The Department has implemented the recommendation by adding language to The Professional Standards Bureau Procedures Manual that requires consideration of nonpunitive outcomes, such as education-based training to promote corrective behavior.

California State Auditor's Assessment of Annual Follow-Up Status: Pending

San Bernardino Police did not provide its updated procedure manual demonstrating that it has incorporated requirements to consider nonpunitive corrective action when warranted.

1-Year Agency Response

The Department does not use discipline matrices. Senate Bill 2 requires that law enforcement agencies employ peace officers who hold current and valid Basic POST Certificates. Additionally, it requires that POST revoke certificates based on serious misconduct, including, "Demonstrating bias on the basis of any legally protected status." Consequently, developing a matrix that identifies various degrees of discipline or training based on an investigation concluding that an officer used bias conduct is not in line with San Bernardino Police Department standards, as any bias will not be tolerated.

California State Auditor's Assessment of 1-Year Status: Pending

San Bernardino Police's response does not accurately reflect our recommendation. As we describe in the report, in some circumstances involving biased conduct, strong punitive discipline—such as termination—is warranted. However, in other circumstances, such as when an officer's conduct is influenced by implicit biases, a more beneficial approach may be corrective action—such as training—that is meant to change the officer's behavior. This is consistent with guidance from both US Department of Justice and state civil service guidelines, which state that the goal of discipline should be not to punish officers, but to correct their behavior—and creative alternatives to traditional punitive discipline may be most effective in doing so. Contrary to San Bernardino Police's assertion in its response, we do not recommend that the department develop a discipline matrix, nor do we recommend that San Bernardino Police avoid taking punitive discipline when it is warranted. Our recommendation is that the department ensure that its discipline policies require consideration of nonpunitive corrective actions whenever such actions might effectively help address possible biased behavior, even in conjunction with punitive discipline.

6-Month Agency Response

The Department is reviewing this recommendation to determine the most appropriate response.

California State Auditor's Assessment of 6-Month Status: Pending

60-Day Agency Response

The Department is researching best practices to develop this policy.

California State Auditor's Assessment of 60-Day Status: Pending

All Recommendations in 2021-105

Agency responses received are posted verbatim.