Part 5: Detailed findings on performance management, values, behaviour, and discipline

Response of the New Zealand Police to the Commission of Inquiry into Police Conduct: Final monitoring report

5.1
In this Part, we look at the changes the Police have made to their performance management and disciplinary systems since the Commission's investigation. We discuss:

5.2
We then discuss what difference these changes to their performance management and disciplinary system have made to:

The Police's Code of Conduct

5.3
The Police's Code of Conduct (the Code) was perhaps the biggest contributor to the Police's improvement since the Commission's report in 2007.

5.4
Before the Code, the Police had to deal with conduct and disciplinary matters through a tribunal. The tribunal could dismiss a "sworn" police officer15 for serious misconduct, but it did not help the Police to manage lower levels of misconduct or poor performance.

5.5
The tribunal was not like anything else in the public sector at the time. The Commission's legal advisor said that the disciplinary regime for the Police was "outdated and stands in the way of good employment practice". The Police were generally supportive of this view, which was similar to the evidence they had put to the Commission.

5.6
The Government had to make changes to the Police Act 1958 and the Police Regulations 1992. These changes set the legal basis for the Police to introduce the Code and disestablish the tribunal system. The Government introduced a Bill to amend the 1958 Act in 2001, but withdrew that Bill in 2006. The Government introduced a new Bill in 2007 and this became law as the Policing Act 2008.

5.7
The Police introduced the Code in February 2008. Unlike the tribunal system, the Code affects all police staff, contractors, consultants, and volunteers, and covers their behaviour both on and off duty. The Commission had envisaged all staff agreeing to the Code by signing it, but when the law changed the Code applied to all police staff whether they had signed it or not. The Police updated and republished the Code in 2015.

5.8
The Code is not an encyclopaedia of rules, but a short document outlining key principles of conduct. The Police use the Code to encourage police staff to use their judgement and common sense in applying the values and the principles of the Code to specific situations.

5.9
The Code's principles include speaking up about inappropriate behaviour, maintaining a healthy and respectful work environment, and not taking advantage of the Police's power.

5.10
The Code states police staff should not have a sexual or intimate relationship with anyone they have met professionally if that person is vulnerable or if there is a power imbalance. The Police have also developed more detailed guidance to help police staff apply the Code in practice.

5.11
The Code allows the Police to focus more on the sorts of behaviours, attitudes, and values they wanted to see reflected in today's police service.

The Police's values

5.12
One of the most fundamental and wide-reaching changes that the Police have made has been the shift to a values-based culture. The official values of the Police are:

Professionalism: We take pride in representing the Police and making a difference in the communities we serve.
Respect: We treat everyone with dignity, uphold their individual rights, and honour their freedoms.
Integrity: We are honest and uphold excellent ethical standards.
Commitment to Māori and the Treaty of Waitangi: We act in good faith of, and respect, the principles of Te Tiriti o Waitangi – partnership, protection, and participation.
Empathy: We seek understanding of, and consider, the experience and perspective of those we serve.
Valuing diversity: We recognise the value different perspectives and experiences bring to making us better at what we do.

5.13
The Police Commissioner told us a culture based on these values was crucial to changing ethics and behaviour in the workplace. He wanted to move the Police away from a "high-fear, low-trust" to a "low-fear, high-trust" culture. The Commissioner said that he encourages staff to discuss why they do their job, rather than simply obeying orders.

5.14
We consider that the Police's move towards a values-based culture is part of their growing maturity in responding to the Commission's recommendations. In the early days, the Police took a compliance approach in addressing the recommendations. Between 2012 and 2014, we saw the Police recognise the need to make more substantial changes.

5.15
We saw evidence of the Police embedding their values throughout their policing work. The Police's values inform and underpin their core job competencies and service delivery model, which focuses on supporting victims and preventing crime. The Police use their values in their approach to discipline and in training modules to reinforce the need for good behaviour. We also heard that values-based training led to an increase in reporting inappropriate behaviour, showing that police staff are linking the values to the behaviour they see around them.

5.16
The Police promote the values prominently in recruitment and recruit training. The television advertisements for the Police's current recruitment campaign have the tag line "Do you care enough to be a cop?" The advertising clearly conveys that the Police want to recruit people with empathy and integrity. The Police College displays values posters in prominent positions, and the Police assess recruits on their values as well as their skills. The Police told us that recruits whose behaviour does not align with their values do not qualify to become police officers.

Policy and training

5.17
Since 2007, the Police have consolidated and rationalised their policies and procedures, reducing the total number from about 2500 to 780. Most policies detail particular operational matters. There is a much smaller number of policies that all staff should be familiar with, such as conflicts of interest, information technology use, and receiving complaints.

5.18
We have reviewed several policies and consider that they are clear and unambiguous and have a suitable amount of detail. The policies support and reinforce the Police's values and the Code. The State Services Commission has positively assessed the Police's work on their policies.

5.19
The Police focus core training on values, the Code, critical policies (such as conflict of interest), and core skills (such as communication). There is refresher training for these areas. Staff also get training for their specific positions and roles. For example, front-desk staff get training on how to respond to a report of sexual assault.

5.20
The training videos and modules we reviewed were well-made, engaging, and reflected the Police's values. The Police included examples of real-life incidents in their training videos and real complaints against them. In our view, this points to a culture of admitting to, and learning from, mistakes and of connecting training with what police staff face in their work.

5.21
Police staff told us that the Police's training is good and relevant to their work. They commented positively on recent tactical communications training, which trains officers to resolve difficult situations peacefully. Officers reported that they had used their new skills to persuade argumentative offenders to co-operate and got good comments from people who usually held poor opinions of the Police.

Reporting inappropriate behaviour

5.22
The Police's Executive Leadership Team are trying to create a culture in which staff feel able to speak up about misconduct and inappropriate behaviour without fear of reprisal. The Code requires staff to report such behaviour.

5.23
The Police have a programme called Speak Up, which encourages staff to challenge and report inappropriate behaviour. Ideally, staff should challenge the behaviour at the time of the incident or later if necessary. If staff do not feel able to challenge the behaviour themselves, they can report it to:

  • a supervisor or manager, up to the Police Commissioner;
  • human resources;
  • the Speak Up helpline, which enables anonymous reporting;
  • the IPCA; or
  • the Police, using the general complaints process.

5.24
The Police offer support for people who have reported inappropriate behaviour. Harassment support officers provide some of this support.

Changes to the disciplinary approach

5.25
When the Police consider that a staff member's conduct may have fallen below the standard the Police expect, the staff member's line manager and a human resources representative conduct a first assessment. At this stage, the manager will find out whether the matter may require disciplinary action or if it is a performance issue. The Police now have a performance management approach to deal with performance issues. This is a significant improvement on the old tribunal system.

5.26
If the matter is serious, the manager will keep the professional conduct team, senior management, and the IPCA informed. The professional conduct team and the IPCA will often have some oversight of complaints investigations, including those that are less serious.

5.27
If the Police suspect that the staff member has broken the law, then the Police must investigate the criminal matter separately from the disciplinary investigation. This usually means disciplinary investigations take a significantly longer time because the Police may need to put such employment cases on hold to avoid prejudicing the criminal case.

5.28
During the investigation, the Police may suspend the staff member or put them on restricted duties. Suspension will usually be with full pay. This is often controversial when the suspension is lengthy, but may be necessary to fulfil the Police's duties as a good-faith employer.

5.29
Police staff see the disciplinary system as fair, although some feel that the Police use the disciplinary system for low-level complaints.

5.30
Most people we interviewed commented that some investigations take too long, but there was no agreement on why they take so long. Although rare, long suspensions of staff members facing criminal charges are costly for the taxpayer. We saw that many of these staff members often resigned after their court cases, effectively ending the employment investigation. We encourage the Police, the Police trade unions, and the State Services Commission to work together to address the barriers to quicker employment investigations.

Managing staff performance

5.31
Since the Commission's inquiry, the Police have transformed their approach to performance management. The State Services Commission considers the approach has met the recommendations set by the Commission.

5.32
The Police have linked performance management to the Police's values and the Code. For example, the Police assess managers and supervisors on their alignment with the values and more conventional performance measures.

5.33
The Police have recently focused on improving leadership skills for staff not in the most senior roles. The Police are putting in place a "High-Performance Framework" for staff development and management. People we spoke to consider that this should help prevent perceptions of bullying behaviour by some managers and supervisors, who in the past may not have had the necessary training to manage their people well.

5.34
Our cohort recognised that performance management is now more robust, and the Police are better at dealing with poor performance. However, they reported that there were still under-performing staff members who went unchallenged by managers.

Early intervention

5.35
Early intervention is an approach intended to address behaviour that could become a problem if not dealt with early. The Police have recently put early intervention into full effect. Most police organisations use this approach. The Police told us that, although they set up their approach later, in their view it is now one of most comprehensive in the world.

5.36
Data analysis can identify candidates for early intervention, although police staff can volunteer for it. For example, the programme will flag an officer when they reach thresholds on a number of measures, such as significantly higher or lower arrest rates than other officers in similar positions or excessive sick leave. An analyst assesses the data to see whether there is a reasonable explanation for the thresholds having been reached. Lastly, the staff member's manager is consulted about the need for early intervention.

5.37
Early intervention is separate from discipline and performance management. Early intervention is confidential and participation is voluntary after the first session. Managers focus on helping staff to identify if there is a reason for concern.

Respect and integrity at the organisational level have improved

5.38
Police staff told us that the work the Police have done in the last 10 years has made the organisation much more professional, with less inappropriate behaviour:

[The Commission of Inquiry] needed to happen – it wasn't just about a few bad apples.
People would get away with a lot, like coming in late, leaving early. Their work would be under par, not interested and people would hold files up to their chin. That has changed significantly over the last six to eight years. There's more direction, this is what you can do, this is what you can't do, this is what we would like you to do, and if you don't do that kind of stuff then you will be held to account.
[The Police] are quick to jump on and stamp out inappropriate behaviour.

5.39
Most of the people we spoke to said that the Police's culture has improved to the point where the behaviours of the past are no longer acceptable. Staff have been positive about changes in the Police's culture, including significantly less drinking of alcohol.

5.40
Police staff told us that the Police now have a "victims-first" culture, with values placed on empathy and diversity. Police staff felt more able to speak up and challenge inappropriate behaviour. By putting importance on the values, the Police helped staff to talk about problem behaviour:

There is still bad behaviour out there but it's more individual, it's not a culture. It's not accepted as a culture. It's just unfortunate that we still have a few individuals that still have that attitude.

5.41
The Police carried out a workforce survey every year from 2010 to 2017. Among many other measures, there are specific ones that gauge staff opinions on respect and integrity in the Police. In 2017, the Police were doing well on three of the measures:

  • Staff in my team respect staff diversity: 86.6% (compared with 73% in 2010).
  • People in my team conduct themselves in accordance with the values expected by the New Zealand Police: 85.2% (compared with 80.1% in 2010).
  • My supervisor behaves in a way that is consistent with the values of the New Zealand Police: 84.1% (compared with 78.1% in 2010).

A safer working environment for women and people from minority groups

5.42
The Police's workforce survey also measures the Police as a safe and respectful place to work16 for female staff and people from minority groups. The survey results for 2017 show that the Police culture has become more positive, with most results higher than the results in 2010. However, most results peaked in 2014 and have been gradually declining since.

5.43
One survey question asks staff whether they have witnessed or experienced harassment, discrimination, or bullying in the workplace in the last 12 months. In 2017, around 16% of men (824) and 20% of women (539) had either witnessed or experienced harassment, discrimination, or bullying. Compared with the 2010 survey results, these results represent a small decrease for men (0.5%) and a slightly larger decrease for women (3.9%).

5.44
Of those respondents, about 29% of women (156) and about 24% of men (196) considered that the Police dealt effectively with the harassment, discrimination, or bullying. This means that about 1011 police staff members with personal experiences of poor behaviour (about 13% of the workforce) did not have confidence that the Police had dealt with it effectively. The confidence of men has declined every year since 2010. The confidence of women is slightly higher than it was in 2010.

5.45
In our view, the reasons for the results on this measure may be different for men and women. In our interviews, some men expressed concern that, although welcome, the cultural change had gone "too far" with the Police potentially punishing staff for low-level or insignificant incidents. Women were more likely to say the Police did not challenge the staff member at fault effectively. We encourage the Police to do more to interpret responses to this question or to consider different wording for the question to give them a clearer understanding of why the responses are different.

5.46
Figure 12 shows how staff responded to the survey question: "I am confident that I could raise concerns I had related to workplace harassment, bullying or discrimination, without fear of reprisal". In 2017, more police staff feel they can raise such concerns than in 2010. However, the proportion of staff feeling that they could do this has reduced since 2014. Female police staff are less confident about raising concerns.

Figure 12
Police staff members' confidence in raising concerns about harassment, bullying, or discrimination without fear of reprisal, 2010 to 2017

Source: New Zealand Police workplace survey 2017. In 2017, there were 7777 respondents.

5.47
In our view, the workplace survey shows that the Police need to build police staff members' trust and confidence in the Police's ability to manage poor behaviour and attitudes. Failure to do so risks undermining the Speak Up programme.

Speaking up and making internal complaints

5.48
The Commission found that a staff member speaking up about poor behaviour could find themselves out of favour with their colleagues. The prevailing culture in the Police was one of not "telling" on people who were part of the police "family". The Commission reported that this environment encouraged a "wall of silence" that meant some police staff went unchallenged and behaved badly.

5.49
In 2017, our cohort and other people we spoke to told us that there was far less tolerance of inappropriate behaviour among colleagues:

I feel like the times have changed, from when I first started until now, in that people are willing to talk up or speak up instead of just ignoring poor behaviour.
I think the hush, hush has gone. There would be too many people now who would speak up, who would raise their concerns.
If there's a rogue among us, we'll out them.

5.50
Police staff had good awareness of the Police's Speak Up programme. Many staff members were happy to call out low-level inappropriate behaviour as it happened, particularly sexist or racist comments. Staff also saw Speak Up as a formal and confidential way for those who may not wish to declare an issue to senior staff in their own police station. Staff felt speaking up or making a complaint usually had fewer consequences than in the past.

5.51
Although there was broad support for Speak Up, some people we spoke to said younger recruits were the main people who used it. For example, one person we spoke to commented that speaking out was just the normal way of keeping up good standards where they worked. When they moved to a police station with mostly longer-serving staff, using Speak Up was discouraged.

5.52
Police staff also had different views on whether reporting to a senior member of staff was a worthwhile choice. Longer-serving police staff said that if they could not speak directly to the staff member involved they preferred to report the behaviour to a senior officer. Those staff felt that going straight to Speak Up could risk an overreaction. Other staff felt a minority of senior staff did not act on the information they received.

5.53
In our view, Speak Up is working effectively. However, the Police need to do more in getting staff to understand what is acceptable and unacceptable workplace behaviour. People we spoke to said that the biggest differences in tolerance were about "black humour" and low levels of racist and sexist language, and that local managers could hold the line better.

5.54
The number of complaints by police staff about other police staff raised outside of the Speak Up programme is low. Police staff made 64 complaints between 1 January 2011 and 31 March 2017. The Police upheld 21 of these complaints, did not uphold 38, and two complainants withdrew their complaints. The Police were still looking into the other three complaints.

5.55
Of the complainants, 44 were men, five were women, and the remaining 15 complainants did not have their gender recorded.

5.56
The top reasons people complained were:

  • investigation failure;
  • bullying or harassment;
  • attitude or language;
  • breach of policy; and
  • conflict of interest.

5.57
Two staff members complained about sexual misconduct. Many of the other complaints categories have none or just one recorded complaint.

5.58
We heard mixed views from staff about how effectively the Police deal with internal complaints. Where we spoke to someone who had been the subject of a complaint, they said that the Police's investigation was fair and independent. Most police staff we spoke to commented positively on the confidential nature of investigations, the Police's thorough approach, and the speed of investigations:

You don't feel like you're a criminal. [The Police] are open, transparent about why they're doing it.
The Police take it seriously but they will also take both sides of the story into consideration.

5.59
A few of the people we spoke to had more negative views, including that the Police treated staff harshly on occasion, took too long on the investigation and created extra stress, and did not tell the subject of the complaint the result of the complaint.

5.60
Overall, our view is that the low number of internal complaints is a positive sign of improving organisational health. Because police staff can complain to the Police or directly to the IPCA, we do not consider that the low numbers of complaints are because police staff do not have ways to complain.

5.61
However, despite the accessibility of the complaints process for police staff, some were still reluctant to make a formal complaint about a colleague. Police staff cited several reasons, including regional variation in following the process and a view that workplace gossip meant that nothing was a secret.

5.62
Some staff did not complain because they had lost faith in the Police to act against people who were repeatedly unprofessional. This means that the number of complaints could be under-reported – not because staff cannot complain but because they do not see the point. The Police need to address this concern to improve staff confidence.

Applying the Police's disciplinary and performance management approaches

5.63
We looked at the Police's data on disciplinary cases from 2008 to 2016.

5.64
The Police have several categories to describe disciplinary results. For our analysis, we have grouped them as follows:

  • Warnings. There are two levels of warning – warning and final warning. The Police can proceed directly to a final warning in some misconduct cases.
  • Dismissal. The highest disciplinary action. It can be used if staff do not respond to warnings. Some cases can be significant enough for the Police to dismiss the staff member in the first instance. In our analysis, we have included staff who resigned from the Police during the investigation of a complaint made against them.

5.65
Putting the disciplinary data in context, in 2016 less than 1% of the Police's staff received formal warnings. Another 0.5% were dismissed by the Police or had resigned.

5.66
Figure 13 shows the number and type of disciplinary cases for the years 2008 to 2016. We have included 2008 as the starting point. This was the year that the Police introduced the Code and brought in changes to replace the tribunal. Figure 13 shows that the Police issued the highest number of warnings in the first year of the Code and the new system. Since then, the number of warnings has fallen by around a third and remained at about 100 cases a year since 2013.

Figure 13
Number of disciplinary cases with result, and use of expectation setting, 2008 to 2016

Source: New Zealand Police.

5.67
The number of dismissals rose more slowly. This was most likely because of the time it took for staff to progress from the initial warning stage to the final warning stage.

5.68
We have also included expectation setting in Figure 13. Expectation setting is not a disciplinary action, but the Police formally record it when they use it. Its purpose is for the Police to set clear expectations for staff who have committed less serious breaches of conduct, so that they do not repeat the behaviour or problem. The Police will take expectation setting into account when determining any disciplinary action.

5.69
The Police's use of expectation setting began in 201117 and has increased significantly since then. The most use was between 2013 and 2015. This increase of use in expectation setting for staff indicates that the Police have become more confident about tackling problems at an earlier stage. This is a positive result, because the earlier tribunal system did not support a differentiated approach to managing staff behaviour.

5.70
The data correlates with what staff told us about the Police challenging behaviour that had not been challenged in the past. This shows that the Police are enforcing the high standards they have set.

5.71
We also looked at what difference the Police's early intervention approach was making. The people we interviewed were very positive about the approach. We also how the Police were feeding data into the early intervention system, for example when off-duty staff allegedly committed an offence. The Police will monitor the outcome of such allegations, which they may deal with subsequently as disciplinary cases.

5.72
Although the Police have limited evidence on which to draw firm conclusions, some early results suggest early intervention is working as intended. We heard that there is an increasing number of self-referrals and that staff have responded positively to the use of early intervention. One study by the Police shows that early intervention is helping to reduce the same type of complaints from being made by 88%.

5.73
We consider that the Police's values, culture, processes, and confidence in tackling poor behaviour have improved enough that the behaviours of the past are not likely to happen again. However, there is still a small risk that some factors, such as a group of like-minded people and ineffective supervision, could coincide to create problems. The Police need to continue to address these issues in the way some managers carry out the Police's policy to strengthen staff confidence. In doing so, even more police staff will feel able to challenge undesirable behaviour. We discuss the Police's plans to improve performance management in Part 7.

15: A sworn police officer has specific policing powers.

16: By safe, the Police mean staff demonstrate respect and integrity. The Police see those two qualities as essential in creating a safe and respectful working environment, especially for female staff and those in minority groups.

17: Before 2011, the Police used the term "professional conversations". Only small numbers of professional conversations were recorded by the Police in the years 2008 to 2011.