Stephen Coleman, Centre for Applied Philosophy and Public Ethics, Charles Sturt University, Australia

“When Police Should Say “NO!” to Gratuities” Stephen Coleman, Centre for Applied Philosophy and Public Ethics, Charles Sturt University, Australia

Working Paper 2003/6 Centre for Applied Philosophy and Public Ethics (CAPPE)

CAPPE Melbourne Department of Philosophy University of Melbourne Parkville 3010. Phone (03) 9344 5125 Fax (03) 9348 2130

CAPPE Canberra GPO Box A260 Australian National University Canberra, 2601 Phone (02) 62125 8467 Fax (02) 6125 6579

The law enforcement officer, representing government, bears the heavy responsibility of maintaining, in his own conduct, the honor and integrity of all government institutions. He shall, therefore, guard against placing himself in a position in which any person can expect special consideration or in which the public can reasonably assume that special consideration is being given. Thus, he should be firm in refusing gifts, favors, or gratuities, large or small, which can, in the public mind, be interpreted as capable of influencing his judgment in the discharge of his duties.1 (Article 9 of the Canons of Police Ethics: Police Code of Conduct, 1991.)

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Stephen Coleman, Centre for Applied Philosophy and Public Ethics, Charles Sturt University, Australia

The issue of police acceptance of gratuities has long been a source of contention. Many writers on police corruption see the acceptance of even the smallest gift or benefit as being the beginning of the end of an honest officer’s career. Others suggest that the acceptance of gratuities does little harm, and that there may in fact be positive benefits in the practice, not just for the officer involved, but for society as a whole. I wish in this paper to examine the practice of the acceptance of gratuities, in order to highlight some particular situations in which the acceptance of gratuities will always cause problems, and thus to bring to notice those situations where police ought to say “NO!” to gratuities.

It should be noted that it is not my intention to exhaustively investigate the practice of the acceptance of gratuities, and to thus describe every situation in which gratuities ought to be refused. Rather it is my intention to draw attention to those types of situations in which the acceptance of gratuities will inevitably lead to problems of one sort or another. I also recognise that in an ideal world there would be no need to question what sorts of gratuities ought to be refused, and what sort accepted, for an ideal world would have no need of such transactions. But given that we live in the real world, where such transactions are valued by both giver and receiver, it seems to me that it is necessary to seek some solution to this problem that recognises that value, while at the same time seeking to avoid the problems that the acceptance of gratuities can cause.

In order to clarify the issues and the problems involved, I will begin with an overview of the main theoretical positions on the acceptance of gratuities, canvassing the main arguments opposing the acceptance of gratuities, and the arguments in favour of their acceptance. It should be noted that wherever I speak of “gratuities”, this term can be taken to include other discounts, gifts and benefits offered to police as well.

1

From the Police Code of Conduct, 1991. Found in PROFESSIONAL L AW ENFORCEMENT C ODES : A DOCUMENTARY COLLECTION p. 96. (J. Kleinig & Y. Zhang compilers and editors 1993).

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Stephen Coleman, Centre for Applied Philosophy and Public Ethics, Charles Sturt University, Australia

Why police should not accept gratuities: (i)The slippery slope to corruption Police corruption is undeniably a serious problem. Some police departments have become so riddled with corruption that the public comes to see every police officer as bent. Many writers have suggested that the first step towards a police officer becoming corrupt is the acceptance of gratuities.2 For example, Lawrence Sherman suggests that there is “a continuum of graft stages”3 from the acceptance of gratuities, to the acceptance of bribes in relation to such things as bar closing hours, to the acceptance of payoffs from gamblers and prostitutes, to eventual involvement in narcotics. He sees both the police officer who accepts a free cup of coffee and the police officer who is involved in drug dealing as corrupt, it is only a matter of the degree of corruption involved. This slide into serious corruption is seen by Sherman and many others as a “slippery slope”. Once an officer is on the slope, then the slide into serious corruption, if not inevitable, is at the very least difficult to stop.

John Kleinig4 points out that there are at least two different types of slippery slope arguments used when asserting that the acceptance of gratuities will lead to corruption, and that both of these types of arguments can be employed in a variety of different ways. The two main types are the logical slope, and the psychological slope, and it is worth taking the time to distinguish the two.

Logical slippery slopes exist when there are no clearly defined boundaries that can be used to draw distinctions between different cases, and thus any line drawn in the sand between two extremes will have some degree of arbitrariness about it. Suppose that a particular company allows its employees to accept “small” gifts from prospective suppliers. How should “small” be defined in those circumstances? Clearly a gift that has

2

For example see Sherman, Becoming Bent: Moral Careers of Corrupt Policemen in MORAL ISSUES IN POLICE WORK 250-267 (F. Elliston & M. Feldberg, eds. 1985). 3 Id. at 259. 4 J. KLEINIG, THE ETHICS OF POLICING, 163-187 (1996).

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Stephen Coleman, Centre for Applied Philosophy and Public Ethics, Charles Sturt University, Australia

no monetary value would be acceptable, and an expensive piece of jewellery would be unacceptable, but there exists a large grey area in between where the acceptability or unacceptability of a gift is not so clear.

In terms of police acceptance of gratuities, it could be argued that although there seems to be a big difference between accepting a cup of coffee and accepting a six figure bribe to look the other way while a murder is carried out, this is not really the case. For there is a logical slippery slope here, given that there is only a small difference between accepting a cup of coffee, and accepting a cup of coffee and a doughnut, and only a small difference between accepting a cup of coffee and a doughnut, and accepting a free meal, and only a small difference between that and a gift, and another small difference to accepting a large gift and another small difference to accepting … a whopping great suitcase full of cash in small denomination, non-marked, non-sequential bills. Thus it could be argued that since there is no clear boundary between accepting a cup of coffee and accepting the suitcase of cash, one ought not accept the cup of coffee. As Kleinig points out,5 arguments like this ignore the fact that while the differences between the individual stages may be insignificant, they do have a cumulative significance. This makes the difference between a cup of coffee and a suitcase full of cash significant, even if we cannot say for sure at what point between them the line between acceptability and non-acceptability is crossed. If a man is bald when he has one hair, and when he has two hairs, and when he has three hairs … this does not mean that he is still bald when he has ten thousand hairs. We may not be able to say with certainty when he is no longer bald, but we can say that a man with ten thousand hairs is not.

Another way of applying the logical slippery slope is to suggest that though the acceptance of a gratuity by a police officer is not a serious wrong, it is nonetheless wrong. Thus the only difference between a police officer who accepts a cup of coffee, and a police officer who accepts a thousand dollar bribe, is the degree of wrongness involved. The suggestion is that by accepting the small gratuity, a police officer has

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Stephen Coleman, Centre for Applied Philosophy and Public Ethics, Charles Sturt University, Australia

shown a willingness to be corrupted, and has thus removed any logical reason for objecting to more serious practices. The only issue that remains to be settled is the length to which they will allow themselves to be corrupted. However, there seems to be a flaw in this argument as well. There is only a difference in the degree of corruptibility between the police officer who accepts a cup of coffee and the police officer who accepts a suitcase full of cash. But there is only a difference in the degree of hairiness between the man with one hair and the man with ten thousand hairs, and we have seen that there is an important difference between them, for one is bald and the other is not. If the analogy between baldness and corruptibility holds, then it would seem that while one of the police is certainly corrupt, there is at least the possibility that the other may not be, for if one hair does not make a man hairy, then one cup of coffee may not make a police officer corrupt.

Psychological slippery slopes are slopes which do have boundaries between cases, unlike logical slippery slopes. However, the psychological slippery slopes are based on the proposition that human beings have a tendency to extend boundaries, and if an absolute proposition is converted to one that is any way flexible, human nature, being what it is, will extend that flexibility to its absolute limits.

The application of this type of slippery slope argument to the issue of police corruption is fairly obvious. If certain practices at the “top” of the slope are allowed (such as the acceptance of the free cup of coffee), then there will be a tendency for police officers to go on to other less acceptable practices as they slide down the slope, until eventually police officers are engaged in wholesale extortion, burglary and drug dealing. Perhaps the most significant difference between this type of argument and the logical slippery slope argument is that the proponents of this type of argument do not have to concede the dubious point that the practices at the top of the slope are in themselves unacceptable. All that is necessary is to show that the allowing of such practices has the tendency to lead to other more unacceptable practices. Nor it is

5

Id. at 175.

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Stephen Coleman, Centre for Applied Philosophy and Public Ethics, Charles Sturt University, Australia

necessary for proponents of this type of argument to suggest that everyone will slide to the bottom of the slope. If only a few police officers slide into serious corruption, then given the seriousness of this problem for the police force as a whole, this would be enough to justify the banning of practices at the top of the slope.

However, there is an empirical question that needs to be answered here. Does the acceptance of minor gratuities lead to more serious corruption, at least in some cases? Sherman certainly thinks so, and his analysis does have some anecdotal support in the writings of those corrupt police who have subsequently told the story of their decline.6 Others writers are rather more dubious. Feldberg for example, suggests that the argument that gratuities lead to corruption, is similar to the argument that marijuana use leads to heroin/cocaine addiction.7 He points out that most police are rather experienced in the arts of inducement and deception, and can certainly tell the difference between a harmless gratuity and open bribery.8 While this may be true, it does not actually show Sherman’s assertion to be false. Just because one can tell the difference between a gratuity and a bribe, does not mean that one will not accept the bribe when it is offered.

I would suggest that there are still at least three problems with the psychological slippery slope argument however. The first is the fact that there is no real proof that the acceptance of gratuities does lead to corruption, despite the anecdotal evidence. Also, if it is true, as Richard Kania suggests,9 that the acceptance of gratuities is a social norm for police, then surely it should be no surprise if the few corrupt police who have told their stories actually engaged in the practice. I am sure that these corrupt police also arrested and interviewed suspects, typed reports, investigated crimes etc. but no one has ever suggested that these practices lead to corruption.

6

See for example Leuci, The Process of Erosion, in P OLICE AND P OLICING : CONTEMPORARY ISSUES 181-187 (D. Kennedy, ed. 1989). 7 Feldberg, Gratuities, Corruption and the Democratic Ethos of Policing: The Case of the Free Cup of Coffee in MORAL ISSUES IN POLICE WORK 267-276 (F. Elliston & M. Feldberg, eds. 1985). 8 Id.

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Stephen Coleman, Centre for Applied Philosophy and Public Ethics, Charles Sturt University, Australia

The second problem is that even if there is a link between the acceptance of gratuities and later corrupt conduct, if one wants to prevent the later corrupt conduct then it cannot simply be assumed that the best way to do this is to ban the acceptance of gratuities. To speak more generally about the situation, if one knows that X causes Z and that Z is something that you wish to prevent, then it certainly does not immediately follow that to prevent Z we should ban X, for X might also have some positive effects that would be lost if X was banned, and it might well be the case that these positive effects caused by X outweigh the negatives produced by Z. For example, it is a known fact that increasing the level of education of a given community (X) will result in an increase in the suicide rate of that community (Z).10 Does this mean that in order to prevent an increase in the suicide rate, we should keep the level of education generally low? Of course not, for an increase in the level of education produces other benefits that tend to outweigh the increase in the suicide rate. Now in the case of gratuities, while the other benefits are not so immediately obvious, this does not mean that they do not exist. Thus if one wishes to prevent corruption, even if the acceptance of gratuities does lead to later corrupt conduct, this does not mean that one should instantly ban the acceptance of gratuities. A very careful study of the benefits of accepting gratuities would need to be undertaken first, otherwise you risk cutting off your nose to spite your face.

One must also consider the fact that banning gratuities almost certainly won’t guarantee an end to corruption. This is elementary logic. The argument in favour of banning gratuities in its simplest form seems to be “if we allow gratuities, then we get corruption, therefore we should ban gratuities, so we don’t get corruption”. The logical form of this argument would appear to be “If A then B, not A, therefore not B.” As any good first year logic student knows, this is a common logical fallacy, the fallacy of

9

Kania, Should We Tell the Police to Say ‘Yes’ to Gratuities?, in MORALITY IN CRIMINAL JUSTICE: AN INTRODUCTION TO ETHICS 327-339. (D. Close & N. Meier, eds. 1995). 10 E. DURKHEIM, SUICIDE, 163-165 (1975). (Translated by J. Spalding & G. Simpson. First published in English, 1952).

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Stephen Coleman, Centre for Applied Philosophy and Public Ethics, Charles Sturt University, Australia

denying the antecedent. An obvious reply to this objection is to suggest that the banning of gratuities is intended only to reduce corruption, not eliminate it. The success of such a move would depend heavily on the extent to which the acceptance of gratuities does have a tendency to cause corruption, a point which I have noted is yet to be adequately determined. Richard Kania11 implies that there is another problem with the psychological slippery slope argument, by suggesting that the attitude of the recipient determines the ethical status of accepting a gratuity. If he is correct, then it is solely that attitude of the recipient that determines the slipperiness of the slope. I shall return to this point later. (ii)The Democratic Ethos of Policing While he does not accept the slippery slope argument against the acceptance of gratuities, Michael Feldberg nonetheless feels that there is a case for their nonacceptance. His suggestion is that the acceptance of gratuities “can be demonstrated to conflict with the just distribution of social benefits in society”.12 Feldberg reflects on the history of policing, and notes that the forerunners of modern police systems were actually fee-for-service systems of policing.13 Citizens received “only the protection, detection, and restitution of stolen property that they paid for directly”.14 Feldberg had previously discussed the advantages and disadvantages of a fee-for-service system of policing with participants in his US-wide seminars in law enforcement ethics (taught with Professor Howard Cohen) and the consensus amongst the participants of these seminars15 was that the disadvantages of such a system would greatly outweigh the possible benefits. The suggestion was that since police services were seen as a public entitlement, restricting their availability to only those who could afford to pay would create a social injustice. The feeling among the seminar participants was that, if

11

Kania, supra note 9, at 332-338. Feldberg supra note 7, at 270. 13 Feldberg points to the example of the Bow Street Runners in London. Id. at 271. 14 Id. 15 The participants of the seminars were “professional police officers who currently (had) training responsibilities, such as academy classroom instructing, curriculum development, field training, training management, and so forth. Almost all have had experience as ‘street cops,’ many at a supervisory as well 12

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Stephen Coleman, Centre for Applied Philosophy and Public Ethics, Charles Sturt University, Australia

anything, the poor needed police services far more than the middle and upper classes, and that the institution of a fee-for-service system would mean that those who required the services the most would actually receive them the least. Given that in a democracy, public services should be equally available to all, allowing a fee-for-service system for policing would be ‘anti-democratic’.

Feldberg’s suggestion is that the acceptance of gratuities parallels a fee-for-service system. Those businesses (and they usually are businesses) that provide police with better “gratuities” will receive a disproportionate amount of police protection.

If, for example, Officer Smith chooses to take his dinner at restaurant A because he is offered a discount there, then restaurant A receives a disproportionate share of the officer’s presence. His cruiser in the parking lot and his uniformed presence at a table are far greater deterrents to crime than is the general presence of police in society as a whole. Restaurants B, C, D, and E, where the food might be better, but the discount policy not as generous, do not receive a similar benefit of personal police presence for extended periods of time.16

The conclusion of the argument is that while gratuities are not actually bribes, they are at the very least a cousin to bribes in that “they are rewards to the officer in exchange for his or her willingness to perform - or not perform - duties according to the wishes of the payer”.17 However, Feldberg does note that small vices have small effects, that the free coffee and discount meals that police receive seem a minimum compensation for the risks of police work, and that we need not begrudge them.18 He also notes that it is true that police have to eat somewhere, but maintains that police should be as democratic as possible in the distribution of their time, both on and off duty.

as patrol level.” At the time of writing the article, Feldberg and Cohen had presented the seminar “seven times to more than 200 participants”. Id. at 270. 16 Id. at 274. 17 Id. at 275. 18 Id. at 276.

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Stephen Coleman, Centre for Applied Philosophy and Public Ethics, Charles Sturt University, Australia

Feldberg’s ‘anti-democratic’ argument is indirectly criticised by Kania.19 He points out that direct police services are already unevenly distributed in society. There are some members of society who are heavy users of police services, and some who rarely, if ever, require direct police presence. While police service is extended equally in the abstract, the reality is quite different. He suggests that heavy users of police services feel a sense of debt for their heavy usage, and so wish to repay this debt to the police in some way. Hence the offering of gratuities. This a point to which I will return later. (iii)The Public Perception Much of the writing on the issues of police gratuities emphasises the problem that gratuities cause in relation to the public image of police, yet there have been very few studies of the public attitude to police acceptance of gratuities. Most studies only examine police attitudes to acceptance of gratuities. A study that has surveyed the attitude of the public to police gratuities was the one conducted by Tim Prenzler and Peta Mackay,20 published in 1995. Their study attempted to assess the attitude of the people of Brisbane, Australia to the subject of police acceptance of gratuities.

The results of their survey were extremely interesting, especially in the light of the background to the study. Brisbane is the capital city of the Australian state of Queensland. Several years before this study was undertaken, the Queensland police force was wracked by a massive corruption scandal, which sparked off a Royal Commission into police corruption in Queensland. The report of this commission (known as the Fitzgerald inquiry) found evidence of massive endemic corruption in the Queensland police force, and made over one hundred recommendations to the government of the time.

Despite this background, and the commonly imputed link between the acceptance of gratuities and later corrupt activities, Prenzler and Mackay’s study found only 31% of

19

Kania, supra note 9, at 330. Prenzler & Mackay, Police Gratuities: What the Public Think, 14 C RIM . J UST . E THICS 15-25 (Winter/Spring 1995). 20

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Stephen Coleman, Centre for Applied Philosophy and Public Ethics, Charles Sturt University, Australia

respondents were opposed to police accepting gratuities in all situations.21 However, 76% of respondents were opposed to police accepting regular free coffee, cold drinks or discounted meals while on duty.22

Probably the most significant result in the study was found in the reasons that the respondents gave for their non-approval of the acceptance of gratuities. 59% said that it created the expectation that a favour or service would follow,23 48% said that they thought it made the officer look like they were corruptible,24 and 47% thought that the acceptance of a gratuity would lead to other more serious forms of corruption.25 These results suggest that, at least in the public eye, the acceptance of gratuities is the start of a slippery slope. Prenzler and Mackay themselves conclude that the only solution for police is to accept a ‘no gratuities’ code.26

The main reason for this is that police actually need to have public support if they are to carry out their duties efficiently. A public perception that police are corrupt, whether true or not, will have a deleterious effect on police performance. To avoid this problem, police need to avoid even the appearance of corruptibility.

Why police should accept gratuities: (i) The Building Blocks of Positive Social Relationships Richard Kania suggests that under certain circumstances, police in particular, and also other justice officials, ought to be encouraged to accept gratuities. He grounds this suggestion on the fact that most people who offer such gratuities do not have as their purpose the corruption of the police force, but instead that they feel they owe some sort of debt to the police, and are attempting to repay that debt by the means that they

21

Id. at 22. Id. 23 Id. at 23. 24 Id. 25 Id. 26 Id. at 18. 22

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Stephen Coleman, Centre for Applied Philosophy and Public Ethics, Charles Sturt University, Australia

have at their disposal. Kania quotes the example of a short order cook who provided him with a free meal.27 This cook felt a sense of indebtedness to the police for the security they brought by frequent visits to his establishment. While this was a service that the police were routinely obliged to provide, this did not detract from the personal indebtedness that the cook felt. His response; a personal one, a free meal.

As I mentioned before, police services are not distributed equally. Some citizens are heavier users than others, and Kania suggests that it is generally the heavier users of Police services who offer gratuities to police. In general, the intention of the offers is not to induce police to later corruption, but to thank police for the task that they have already done. Kania suggests that an analogy with tipping is appropriate.28 He suggests that tip recipients recognise that they are being tipped for services already rendered, and that neither the tipper nor the tipped feel any future obligation from the transaction. The gratuities that are offered to police in these sorts of situations, should be seen as tokens of an ongoing legal and ethical relationship, suggests Kania, and they should be accepted by police “as the building blocks of positive social relationships between our police and the public”.29

When gifts or gratuities are offered in these sorts of situations, where the intention of the giver is only to thank the police for the services already provided, and the intention of the recipient is merely to build up the good relations between the public and the police, Kania thinks there is no ethical problem with the acceptance of gratuities. It is only in situations where the provider of the gratuity is attempting to build up a ‘credit’ for future use, that such transactions are problematic. Even in those situations Kania believes that it is ethical for the police to accept the gratuities, provided that they are not received in that way, but rather are received as expressions of gratitude. He suggests that “the perception of the recipient toward the exchange is more critical than that of the

27

Kania, supra note 9, at 330. Id. 29 Id. at 328. 28

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giver in the categorisation of an exchange as ethical or unethical”.30 If the gratuity does not alter the way that the police officer carries out their duty, then it is ethical for the officer to receive the gratuity. Gratuities accepted in this way are merely the building blocks of good social relations between the police and those with whom they have regular contact.

I would suggest that there are problems with Kania’s interpretation here, especially with regard to his ‘tipping’ analogy. The first problem is that people who routinely receive tips come to expect those tips, and in some cases even demand them. Seeing police gratuities in this way will inevitably lead to trouble, a problem that I do not think Kania fully recognises. When discussing the problems that can be caused if an officer misinterprets an offer from a merchant, Kania mentions the following case.

Having become accustomed to free meals at one restaurant, an officer returned there some time after being assigned to another beat. The bill for the full price was presented, and the officer did not have sufficient cash to pay. He had to summon another officer there to help him out with the payment. What he had been taking as a ‘gratuity’ or ‘gift’ had been an ‘investment’ that the manager no longer had to keep up.31

While Kania appears to think the biggest problem in this story is the officer’s misinterpretation of the restaurant’s offer, I am equally worried about the officer expecting the gratuity, to the extent that he did not have the money to pay. What ‘debt repayment’ arrangement might have been arrived at if there had not been another officer present who could assist with payment of the bill? I would suggest that it is situations like this that can certainly lead to corruption. The second problem with the tipping analogy is the suggestion that there is no future orientation in the exchange. I think this is not always the case. If I give you a generous tip for example, then I may well expect better than average service from you in the future. Even if the tip is not generous, I may feel that a certain level of tipping is

30

Id. at 335.

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required to ensure that I receive even adequate service in the future. Both of these seem to be problems if the analogy is stretched to policing. If someone ‘tips’ the police generously, then it is likely that they are seeking to build up credit for the future, and it would, I think, be unethical for the police to accept such gratuities. These would be attempts to corrupt police. This is especially the case where the ‘tipper’ asks at the same time for the officer’s personal pager number (or equivalent), but also applies in cases where the generous ‘tips’ are offered to all officers. If someone feels that they need to provide gratuities to the police in order to receive adequate policing service, then this is reminiscent of the fee-for-service objection proposed by Feldberg. Both ‘overtipping’ and feeling required to ‘tip’ seem problematic, though neither seems to me to be quite as bad as the case of the police expecting gratuities, which can certainly lead to corruption.

Another suggestion, that I will not explore further here, is the suggestion that police should see the acceptance of tips as a threat to their status as professionals. Professionals do not receive tips, so if police wish to be seen as professionals, then they should not accept tips either.

Kania’s argument in favour of the acceptance of gratuities can also be criticised on other grounds. He suggests that if the gratuity does not alter the way that the police officer carries out their duty, then it is ethical for the officer to receive the gratuity. But the acceptance of gratuities may well affect the way a police officer carries out their duty without them even realising it. If the fact that certain establishments offer gratuities causes a police officer to spend more time at those establishments, to the detriment of others, then the acceptance of gratuities has affected the way that the police officer does their job, even if only in a subtle way. This harks back to Michael Feldberg’s antidemocratic argument against the acceptance of gratuities.

31

Id. at 337.

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(ii) The False Sense of Corruption John Kleinig points out another reason why it might be reasonable to allow police to accept at least some gratuities. If the slippery slope to corruption has been overemphasised in police training, then those officers who accept gratuities might feel that they are already corrupted, and that there is no reason not to proceed to other worse practices,32 since the over-emphasis on the slippery slope tends to make an officer who does accept something as simple as a cup of coffee, feel like they have just taken a large bribe. If an officer feels that they are already compromised, then they might find it easier to make more significant compromises later, since they feel that they have nothing to lose. As Kleinig points out, this problem can be avoided by ethics trainers emphasising Feldberg’s ‘anti-democratic’ argument, rather than the corrupting slippery slope argument. An officer who feels that they have allowed an unequal distribution of police resources by accepting a free cup of coffee, is less likely to feel that they have something to hide than one who feels that they have succumbed to corruption.33

When Police Should Say “NO!” to Gratuities Having discussed the theory of the acceptance of gratuities, I wish now to turn to the practicalities of the matter. I want to discuss five types of situation which are particularly problematic for police, and to suggest that in these types of situation gratuities should always be refused, even when the policies of the local police department would allow their acceptance. I also wish to outline the problems in devising a policy regarding the acceptance of gratuities, and to explain why most such policies are at the same time both too restrictive and too permissive.

The five situations that I want to examine are: (i) when gratuities are offered because the recipient is a police officer; (ii) when gratuities are offered on a regular basis; (iii) when the value of the gratuities offered is disproportionate to the services rendered; (iv) when the person offering the gratuity is under the impression that certain services will only be

32 33

J. KLEINIG, supra note 4, at 180-181. Id.

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provided if a gratuity is offered, and (v) when the person offering the gratuity is not authorised to do so. (i) Gratuities offered because the recipient is a police officer There are many situations where people offer gifts or benefits to those who have helped them, or to those who have performed a service on their behalf. Such interactions are a part of human relationships, and in most situations are quite unproblematic. I might give a bunch of flowers to the neighbour who has looked after my children while I have rushed out to a forgotten appointment, or buy a box of chocolates for the friend who has helped me to move house. These situations can also include cases where the person who has served me has actually received payment for that service. An example of this might include giving a bottle of wine to the plumber who has come to my house in the middle of the night to fix my blocked sewer. However, when these situations involve police officers, they become more problematic, since the line between gratitude and attempted bribery is not always clear.

There is obviously the potential for gifts, gratuities and discounts to be offered to a law enforcement official, such as a police officer, in an attempt to influence the way in which that officer does their job. It may be that the discount or benefit is offered so as to attempt to convince the officer to spend more time at a particular establishment than at others. Or it may be that the discount or benefit is offered in an attempt to convince the officer to overlook certain actions or inactions undertaken by the one offering the benefit.

Whatever the motivation behind the gratuity being offered, any situation where the gratuity is being offered because the recipient is a police officer must be considered to be suspect. Realistically there can only be two motivating factors here. Either the person offering the gratuity is attempting to influence the officer in some way (large or small), in which case the gratuity should, of course be rejected. Or the person offering the gratuity feels that they have to offer a gratuity to a police officer. This hearkens back to the tipping analogy, where people feel that they are required to tip if they expect to 16

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receive any sort of service at all. The public has already paid for police service through their taxes, and should not feel required to make additional payments to the police in the form of gratuities.

Thus gratuities offered to a police officer because they are a police officer ought to always be rejected, either because they are being offered as an attempt to bribe the officer in some (albeit usually small) way, or because they are being offered through the (hopefully) mistaken feeling that it is necessary to offer something to the police in order to get any sort of service at all.

Two things should be noted here. First, there is a difference between a gratuity being offered to someone who happens to be a police officer, and that same gratuity being offered because that person is a police officer. Let me give an example to illustrate this point. Suppose a police officer has a relative who owns a restaurant, and that relative invites all the members of his immediate family to eat for free at that restaurant as often as they like. Free meals are thus being offered to a person who happens to be a police officer, but the free meals are being offered because that police officer is a relative of the owner, not because they are a police officer. It would be quite different if the restaurant was owned by someone who was not a relative, who made it know that police could eat for free in his restaurant. That would then be a case of gratuities being offered because a person is a police officer (in this case probably as an attempt to get more police to eat there, with the likelihood that this would make the restaurant less prone to disturbances, and a less inviting target for thieves).

The second thing that should be noted is that simply because a gratuity is offered to other people who are not police officers, this does not necessarily mean that it is reasonable for police to accept it. For example, a gratuity offered only to police and uniformed security guards is certainly no better than a gratuity offered only to police, and even a gratuity offered to all emergency services personnel is still in some sense being offered to a police officer only because they are a police officer. My point is 17

Stephen Coleman, Centre for Applied Philosophy and Public Ethics, Charles Sturt University, Australia

simply that if a gratuity is being offered because the recipient is a police officer, then it should always be refused, and that this is a test of what should always be refused, not of what ought to always be accepted. (ii) Gratuities offered on a regular basis Another situation in which police ought to always refuse to accept gratuities is when those gratuities are offered on a regular basis. It is quite common for gratuities offered to police to fit into both of these first two categories: offered because they are police, and offered on a regular basis. Examples include such things as free drinks, free or discounted meals, free entry to clubs, and so on. Even when these gratuities are not being offered solely because the recipient is a police officer, I think that there is still a case for refusing them, if they are offered on a regular basis.

The three main problems with gratuities being offered on a regular basis, are that they can come to be expected (as was the case in the previously quoted example from Kania34), that the acceptance of gratuities on a regular basis is likely to run foul of Feldberg’s anti-democratic objection,35 and that the acceptance of gratuities on a regular basis tends to create a relationship between the giver and the receiver, which has the effect of creating a conflict of interest for the police officer where none previously existed.

I have already mentioned the problems that occur when gratuities come to be expected, or even demanded, by the recipient. This can only happen in situations where those gratuities are given on a regular basis. Thus if police do not accept any gratuities that are offered on a regular basis, these particular problems will not occur.

Acceptance of gratuities on a regular basis will also tend to fall foul of Michael Feldberg’s “anti-democratic” argument.36 Since the regular acceptance of gratuities tends

34

Kania, supra note 9, at 337. Feldberg supra note 7. 36 Id. 35

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Stephen Coleman, Centre for Applied Philosophy and Public Ethics, Charles Sturt University, Australia

to cause a modification of the behaviour of those accepting the gratuities, this practice will tend to cause the uneven (and unfair) distribution of police resources in society. Those establishments and individuals who tend to favour the police with better gratuities on a regular basis, are likely to see more police, and thus gain extra protection from the extra police presence. While such an effect is likely to be small at the level of the individual officer, the effect is more significant if it is examined on a service wide basis. There is also the undeniable fact that regular acceptance of gratuities can undermine the public perception of police, as shown by Prenzler and Mackay.37The impression that extra police presence can be bought for the cost of a cup of coffee or a greasy hamburger is certainly not an impression that I think the police should cultivate.

Lastly, and perhaps most significantly, the regular acceptance of gratuities creates a relationship between the giver and receiver, where no such relationship previously existed. This inevitably involves police in a conflict of interest in any future situation that involves the people who have offered those gratuities. Conflict of interest in policing is a significant and under-acknowledged problem, and deserves far more attention than it has previously been given. It is this issue that really lies at the heart of the banning of gratuities in the International Police Code of Conduct, quoted at the beginning of this paper. “Thus, he should be firm in refusing gifts, favors, or gratuities, large or small, which can, in the public mind, be interpreted as capable of influencing his judgment in the discharge of his duties”.38 The relationship created between the giver of the gratuity and the receiver of that gratuity, rather than the actual value of the gratuity itself, is what is seen as problematic here, for it is that relationship that may have the tendency, or may be perceived to have the tendency, to influence the judgement of the police officer in the course of his duties.

All of these problems can be solved by police simply refusing to accept any gratuities that are offered on a regular basis.

37 38

Prenzler and Mackay, supra note 20. Supra note 1, at 96.

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Stephen Coleman, Centre for Applied Philosophy and Public Ethics, Charles Sturt University, Australia

(iii) Value of gratuities offered disproportionate to services rendered Another clear problem for police in accepting gratuities, is when the value of the gratuity offered is disproportionate to the service rendered by police. For example, one can imagine an officer called to a minor burglary at a department store, who is told by the owner to take an expensive leather jacket as a thank you gift. When the value of the gratuity is disproportionate to the service rendered, as in a case like this, then it is clear that the gratuity can really only be interpreted as an attempt to bribe the police, to build up credit for the future as it were, and thus the gratuity should, of course, be rejected. I include the brief discussion here, only for the sake of completeness. (iv) Gratuity offered to secure certain services, Police can encounter situations where a person is, or appears to be, under the impression that either (a) it is necessary for them to offer a gift or gratuity of some sort in order to secure the provision of certain police services, or (b) that offering a gift or gratuity would help to secure the provision of extra police services. This may be the case even where those services would be supplied regardless of whether a gratuity is offered, or even where police are obliged to provide those services. While it is obviously problematic for a police officer to only provide those services if a gratuity is offered (i.e. for the officer to require the “payment” of a gratuity before offering to provide those services), it can seem less problematic for an officer to accept a gratuity when they know that the services would be provided in any case, whether the gratuity was offered or not. Consider the following case, which illustrates this point.

A police officer attends a burglary, where uninsured goods of a substantial value have been stolen from a store. The police officer examines the scene of the crime in the presence of the store owner, and determines that entry to the store was obtained by breaking a rear window. Upon examination of the window, the officer notices what appears to be a clear set of fingerprints upon the glass adjacent to the point of entry, and comments on this fact to the store owner. The owner immediately offers a small gift to the officer, “as a measure of thanks”, and then suggests that the fingerprint branch be called to the scene to record those fingerprints, and to see if that information could be used to attempt to track down the perpetrator and recover the goods. The officer knows that policy requires that fingerprint branch be called to the scene as soon as possible, and was about to inform the store owner of this fact before 20

Stephen Coleman, Centre for Applied Philosophy and Public Ethics, Charles Sturt University, Australia

the owner had offered their gift. The officer accepts the gift (since it has not altered the way in which they have carried out their duty) and then calls the fingerprint branch and asks them to attend the scene of the crime. While the acceptance of the gift has not altered the way in which the officer in this case has done their duty, I think it is clear that acceptance of a gift in such a case would tend to create the impression that the offering (and acceptance) of the gift was the reason that the officer had immediately called the fingerprint branch. In other words, the store owner is likely to form the mistaken impression that the offering of the gift was necessary in order to secure the additional police services provided in this case.

Police departments need to guard against the impression that extra services can be bought in such a way, for two reasons. The first reason is that fee for service systems of policing, of which this could be considered a type, are anti-democratic, as has already been noted by Feldberg.39 The second reason is that by appearing to be offering special services in return for any sort of payment (in this case payment of a small gift), an officer is helping to create the public impression that they are corruptible, as noted by Prenzler and Mackay.40

One of the problems for any public official is the fact that they must not only carry out their duties impartially, but they must also appear to be carrying out their duties impartially. Even though the store owner is mistaken in their impression that the offering of a gift has helped to secure speedy attendance of the fingerprint branch, police must be at pains to ensure that such a mistaken impression is not given the chance to arise. Thus police ought to refuse any gratuity where a person is, or appears to be, under the impression that either (a) it is necessary for them to offer a gift or gratuity of some sort in order to secure the provision of certain police services, or (b) that offering a gift or gratuity would help to secure the provision of extra police services.

39 40

Supra note 7. Supra note 20.

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Stephen Coleman, Centre for Applied Philosophy and Public Ethics, Charles Sturt University, Australia

(iv) Gratuity offered by unauthorised person A final problem in the acceptance of gratuities, rarely mentioned, is the problem of gratuities being offered by those who are not actually authorised to offer them. Kania’s example of the short order cook seems to be an appropriate example here.41 At no point in his discussion does Kania even examine the possibility of whether the short order cook is actually authorised to give a free meal to a police officer. I think it is reasonable to assume that he is not. Thus in accepting the free meal, the police officer is effectively condoning, and even collaborating in, a theft. Police officers are supposed to be impartial guardians of the law, and thus must not condone or collaborate in thefts in the form of unauthorised gratuities, benefits, gifts or discounts. If a gratuity is offered by someone not authorised to offer it, then the police officer should always refuse it, whatever its value.

The Problems of Creating a Gratuities Policy Before finishing, I would like to examine some of the problems in formulating a policy on the acceptance of gratuities, and to make some suggestions as to how these problems might be overcome. The ideal of any policy is to allow the acceptance of those gratuities which will be beneficial to the police officer’s work, in line with Kania’s suggestion that the gratuities build positive social relations between the police and the public,42 while at the same time excluding those gratuities that will pose problems for policing. The problem with most codes that allow the acceptance of certain gratuities is that they are at the same time too permissive, and too restrictive. Let me illustrate this with some examples.

Suppose we have a police department who have a “no gratuities” code, which prohibits acceptance of any gratuities, gifts or benefits whatsoever. One problem with such a code is that it can be carried to ridiculous lengths. A former student of mine once told me a story of his work with a government department that investigated corrupt conduct.

41 42

Kania, supra note 9, at 337. Id. at 329.

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Stephen Coleman, Centre for Applied Philosophy and Public Ethics, Charles Sturt University, Australia

Their policy was complete refusal of gratuities. This department held a Christmas dinner at a nearby restaurant, and at the end of the meal were served coffee, with “complimentary chocolates”. The head of the department insisted that the chocolates had to be refused, since they had not been paid for, much to the anger of the owner of the restaurant, who insisted that the chocolates were given to anyone who ordered coffee.

A more serious problem with a “no gratuities” code is the fact that there will certainly be situations where this code would actually inhibit the police officer’s performance of their job. Imagine an officer who goes to the home of a victim of violent crime, in order to get a statement from the victim. The victim is badly shaken, and asks the officer to have a cup of tea with them while making the statement. The “no gratuities” code, will mean that the officer must refuse the cup of tea, which is likely to put the victim offside straight away. It might be suggested that the officer refuse the tea, but take a glass of water, but this really doesn’t solve the problem, since even water has some value. In cases like this, the actual value of the gratuity offered (i.e. the value of a single tea bag) is far more symbolic than real. I think that in situations like this, the police officer should accept the cup of tea, as in all likelihood they will actually get a better statement from the victim if they do. But this would mean abandoning the “no gratuities” code in favour of a code which allows acceptance of gratuities such as this.

So let us consider a gratuities code that allows the acceptance of a light refreshment, such as a cup of tea or coffee. This would allow the officer to accept the cup of tea from the victim of violent crime, but would also allow the acceptance of gratuities on a regular basis from businesses. A 24 hour petrol station that provides free drinks to police might well receive the benefit of extra police presence due to this service, to the detriment of other nearby establishments who are equally deserving of police time. If the other establishments feel that they must also provide free drinks for police in order to gain equal police presence, then we have a situation where people are effectively paying for police presence. This situation may also develop into a bidding war for better police 23

Stephen Coleman, Centre for Applied Philosophy and Public Ethics, Charles Sturt University, Australia

protection: one place offers free coffee, so the other offers coffee and a doughnut, so the first offers sandwiches as well …

Perhaps the answer is a policy that forbids the acceptance of gratuities from businesses. But there are some situations where it seems appropriate to accept gratuities from businesses, such as the previously described case of taking a statement from a victim of violent crime, while there are also some situations where individuals might benefit from offering regular gratuities to police, such as the lone security guard who always offers the police coffee from his thermos. Prohibiting acceptance of gratuities from businesses would prevent police from accepting the first of these, but allow the acceptance of the second, which seems to be precisely the situation that should be avoided.

Other codes attempt to get around the problem of gratuities by placing a limit on the value of gratuities that can be accepted. The biggest problem with such a code is that the value of a cup of coffee or tea is so small that these codes would always allow its acceptance, yet the regular provision of free drink can cause problems for police, as we have already seen. A further problem for such policies on the acceptance of gratuities is that there seem to be some situations where it is appropriate for police to accept gifts that are of significant value. Imagine a homicide detective who has been working on a particular case for several years. In this time he has had regular contact with the victim’s family. Eventually the case is cracked, and the perpetrator is brought before the court, found guilty, and sent to jail. The victim’s family then sends a case of wine to the detective, as thanks for all the work that he has done over the last few years. It seems to me that it would be reasonable for the detective to accept this gift, which is certainly given in recognition of services already performed, rather than in expectation of services to be rendered in the future. Yet most gratuities polices would force the detective to refuse this sort of gift; a code that based acceptance on the value of the gift would certainly force refusal. Clearly there is a need for a code that will prevent acceptance of inappropriate gratuities, but will allow the acceptance of genuine displays of gratitude.

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Stephen Coleman, Centre for Applied Philosophy and Public Ethics, Charles Sturt University, Australia

I would suggest that the only answer to these sorts of problems is to create a code that allows the police officer to exercise their own judgement about the acceptance of gratuities. Such a code would need to specify the sorts of gratuities that should be refused, and should outline the sorts of situations where they might be accepted. Since one of the major problems with the acceptance of gifts and gratuities is their hidden nature, such a code should also include provision for the recording and audit of gifts of significant value.

Police are entrusted with significant powers, and are expected to exercise sound judgement, within guidelines in a wide variety of circumstances. I would suggest that the best way to deal with the problem of gratuities is to provide police with guidelines in this area, and then let them exercise their judgement in this area as well.

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