Negligent Hiring &
Retention

The agency approved the hire and confirmed the officer at the end of probation; at later points it kept the officer in place, returned the officer to duty or changed the assignment. Each of those decisions was made on a date, by a particular person, with a file in front of that person on that day.

For each decision, the analysis establishes what the file held on that date, what the agency's own written policy called for at that point, and what accepted personnel practice called for, then states where the decision and those standards agree and where they part. Counsel defending the agency receive the same reading from a police practices expert who is retained by both sides, and for them it documents each decision that tracked the written standard on the file then in hand.

Negligent hiring and retention claims, and organizational theories under Section 1983, are counsel's to plead and prove, and the vocabulary they use is collected in the supervision and Monell lexicon. Whether a departure at any decision point meets an element of any claim is outside the report, since legal conclusions remain counsel's and the expert addresses police practices. A missing background item or a required review the file does not show is recorded as a practices finding about that one decision. The line between such a finding and a constitutional violation, or liability, is drawn in the Library's guide to generally accepted police practices.

The reading runs without hindsight. The incident that brought the case is not in the file on the day of the hire, and the analysis does not carry it back into that day or into any decision made before it. Hiring standards and personnel policies can change over a career, so each decision is measured against the edition in force on its own date, not the edition current when the case was filed.

The end of probation is a decision to keep the officer, and the analysis reads it the way it reads the hire: who confirmed the officer, on what date, and which records the confirmation cites, each read as it stood on that date. The field training file behind that confirmation has its own guide, field training records, which covers remediation and the release to solo patrol.

Each later point at which the agency kept the officer is read the same way: after a sustained complaint, after discipline, after an early warning intervention, at a return to duty and at a reassignment. At each, the questions are who decided and on what file, and what the agency's policy required at that point, whether a review, a sign-off or nothing further.

A point can also pass with no decision at all. Where the agency's policy called for a review and the file shows none, the absence is itself recorded, with the date the policy applied and the provision that called for the review. The officer's continued service past that date is stated as what followed, not as a finding about the officer.

The records behind those points are the ground covered by internal affairs review, and how a flag is raised and answered is traced in the guide to early warning systems and supervision. When the question widens from this officer to whether the agency made the same kind of decision about other officers, it becomes a pattern question, and the analysis moves to Monell pattern and practice. Where the misconduct at issue was sexual, the hiring and retention decisions are one part of a wider record, taken up under sexual misconduct under color of authority.