Handling Complaints Against Police. March 25, 2015

Transcription

1 Handling Complaints Against Police March 25, 2015

2 Your Cooperation is Needed Please mute your phone *6 To ask questions and open your line *6 This will help all of our friends!

3 PSAB s Blended Training Webinars Traditional Classroom Sessions One-on-One Assistance

4 Upcoming Training Webinars Introduction to LinkedIn March 31* Road Asset Management Maintenance April 1* & 8* Natural Gas Pipelines in PA April 19* Working with the District Judges April 15 * Free to PSAB Members ** Evening Session 4

5 Upcoming Classroom Training Your Role as Municipal Secretary/Administrator Police Civil Service Training Establishing a Rental Property Inspection Program The Course in Community Planning The Course in Zoning The Course in Subdivision & Land Development Review The Course in Zoning Administration Reserve Your Seat for 2015! Pennsylvania State Association of Boroughs 2015 Annual Conference April 26-29, 2015 Lancaster, Pa

6 HANDLING COMPLAINTS AGAINST POLICE March 25, 2015 Presented For: Pennsylvania State Association of Boroughs Presented by: Michael McAuliffe Miller Eckert Seamans Cherin & Mellott, LLC 213 Market Street, 8th Floor Harrisburg, PA No statements made in this seminar or in the written materials/ PowerPoint should be construed as legal advice pertaining to specific factual situations.

7 Why Bother To Worry About This? 1. Prevent misconduct within departments. 2. Properly address misconduct, should it occur. 3. Build and maintain community trust and confidence. 4. Create and maintain an ethical work environment. 5. Develop and sustain trust between their organizations and the communities they serve. 7

8 When The Complaint First Comes In 3

9 Do You Have A Complaint Procedure? What s your procedure? Are complaints logged? Are they reviewed by management? Are they reported to Council? 9

10 What Do The Professionals Say? A department must investigate all misconduct complaints, regardless of the source (Investigation of Employee Misconduct, 2007). CALEA Accreditation Standard No states that a written directive must require that all complaints against the agency or its employees be investigated, including anonymous complaints. 10

11 What Do The Professionals Say? Complaints should be accepted in all forms, including in person, in writing, by and web pages, or by telephone. Some agencies have even established 24-hour complaint hot lines (Noble and Alpert, 2009). All department staff must fully understand the Internal Affairs process and the department should make every effort to inform their constituents about the process. All employees should be trained on what to do when a complainant files a complaint, and the department should have a formal way to keep the complainant apprised of the progress of the complaint (Protecting Civil Rights, 2006). 11

12 What Do The Professionals Say? Once a complaint is received, it should be forwarded to the appropriate personnel (i.e., the Internal Affairs unit, staff member who is in charge of Internal Affairs, or immediate supervisor); recorded, preferably electronically; and kept in a separate, secure storage area, apart from other personnel records) (CALEA, 2006, ). As the complaint progresses through the process, it should be tracked, electronically when possible (Noble and Alpert, 2009). Unless a criminal investigation would prohibit it, the subject officer should immediately be notified in writing of the complaint. 12

13 What Does Your Contract Or General Orders Say? Are complaints required to be in writing? If so, why or why not? Must you notify the officer about whom a complaint is made? What does that do to your investigation? What do your SOPs/General Orders say? 13

14 What A Complaint File Should Look Like 1. Complaint. 2. General information, including evidence. 3. Complainant interview. 4. Victim interview, if not the complainant. 5. Witness interview(s). 6. Accused interview. 7. Polygraph results. 8. Findings. 9. Attachments (Garrity, copies of policies, diagrams, photos, etc.). 14

15 What An Outcome Should Look Like 1. Unfounded: the allegation was false or devoid of fact. 2. Exonerated: the act occurred but was lawful and within policy. 3. Not Sustained: the evidence was insufficient to either prove or disprove the allegation. 4. Sustained: the evidence was sufficient to prove the allegation (Investigation of Employee Misconduct, 2001). 15

16 I ve Got a Complaint, Now What? 16

17 Both Sides Now The goal from the municipal side: Notifying the appropriate people Maintaining privilege Avoiding further liability Creating an orderly process 17

18 Both Sides Now The goal from the employee side: Figure out the employee s status Determining if there is some criminal action Maintaining privilege Doing a fair investigation End up with options 18

19 Who Do I Notify? 1. Your insurance carrier 2. Your solicitor/special labor counsel 3. If criminal action, the District Attorney 4. You do NOT , tweet or Facebook Right to Know versus Discovery 19

20 What If There Are Criminal Issues? 20

21 Garrity Rights Fifth Amendment - Right against Self-Incrimination. Garrity v. State of New Jersey, 385 U.S. 493 (1967). Garrity held that in administrative proceedings, an employer may compel a statement from a public employee by threatening him or her with dismissal from the job, but the statement may not be used in subsequent criminal prosecutions. It is advisable, therefore, to provide Garrity warnings during an investigation. 21

22 Garrity Rights Similar to Miranda warnings, a Garrity warning advises the employee that failure to fully disclose information that is related to the office held may result in disciplinary action up to and including dismissal. This enables an administrative investigator to obtain complete information without being obligated to share it with the criminal investigator. To avoid any complications associated with Garrity, it is advisable that the criminal investigator s interview of the subject officer be conducted prior to that of the administrative investigator. Some agencies avoid this confusion by waiting until the criminal investigation is completed before beginning the administrative investigation (Noble and Alpert, 2009). 22

23 Confidence In Law Enforcement Act A political subdivision is prohibited from employing any person when the individual has been convicted of any of the following: 1. An offense graded a felony or a serious misdemeanor. 2. Convicted of an offense in another jurisdiction, state, territory or country in accordance with the laws of that jurisdiction, state, territory or country, and the offense is equivalent to an offense specified in paragraph (1) regardless of its grading in that jurisdiction, state, territory or country. 53 P.S

24 Confidence In Law Enforcement Act A law enforcement officer charged with an offense that would prohibit employment under section 3 shall be immediately suspended from employment in law enforcement as a law enforcement officer until final disposition of the charge or upon acceptance into a program of Accelerated Rehabilitative Disposition, whichever occurs first. 53 P.S

25 Confidence In Law Enforcement Act If a judge terminates the participation of a law enforcement officer in a program of Accelerated Rehabilitative Disposition for an offense that would prohibit employment under Section 3 prior to completion in accordance with Pa.R.Crim.P. No. 318 (relating to procedure on charge of violation of conditions), the suspension previously imposed shall be reinstated until final disposition of the charge. 53 P.S

26 Confidence In Law Enforcement Act An employer of an individual who is a law enforcement officer and who is or becomes ineligible for employment as a law enforcement officer pursuant to Section 3 shall immediately terminate the employment of the individual as a law enforcement officer. At any termination proceeding, the introduction of a certified copy of a conviction for indicating that a law enforcement officer has been convicted OF an offense that would prohibit employment under Section 3 shall in and of itself be sufficient evidence to justify the termination of the law enforcement officer. 53 P.S

27 Investigations 8

28 Investigation Sequence Something happens Investigations/Interviews Loudermill* Imposition of Discipline 28

29 Discipline And Discharge The foundation of any discipline for a unionized/ statutorily protected employee is the seven step test for just cause set forth originally in Enterprise Wire, 46 LA 359 (1966). - Notice - Proof - Reasonable Rule or Order - Equal Treatment - Investigation - Penalty - Fair Investigation 29

30 Notice The most fundamental step in any discipline is to demonstrate that the employee had adequate notice of a rule. No J. Edgar Hoover secret files. In the days of electronic mail, this is easy. 30

31 Notice-Where Is The Rule In Question? Review Relevant Documents: CBA Underlying Statutory Provisions Duty Manual, SOPs, GOs Are the CBA, Regs or any other provisions inconsistent? 31

32 Reasonable Rule Or Order The rule adopted must be reasonable. It must not single out one employee unless absolute necessary under the circumstances. There must be a business or operational necessity that you can explain to an arbitrator. 32

33 Reasonable Rule Or Order Do we have to have a rule for everything? What if the rule is simply common sense? What if its in a Manual/SOP/General Order but not the CBA? 33

34 Investigation Unless there completely undeniable facts, there must be an investigation and that investigation must be fair. What does fair mean? It demonstrates a reasonable process that shows due process and an attention to facts. 34

35 Investigation Issues Who is the investigator? Personnel department, solicitor, private investigator, special counsel? Advantages/ disadvantages? What traits do we need to see in an investigator? 35

36 Investigation Map out a strategy for who participates in collecting information and who participates in policy decisions. Interview the employee accused of misconduct. This must be done at some point. What if employee refuses to attend? Can I interview the employee more than once? 36

37 Investigation Sources of Proof: Personnel files, shadow files, business records (calendars, time cards, videos, reimbursement requests), phone records, s, reports, class records, swipe card records, logs. 37

38 Weingarten Rights Have the right to have a fellow bargaining unit member present during any questioning that has the potential to lead to disciplinary action against that employee. Can it be a union attorney? 38

39 Investigation Prepare ahead of time. What s your batting order for interviews? How are you going to record information (and why is that important)? Notes, summaries, declarations, statements, taped interviews. 39

40 Investigation 2 people at each interview. Tell them why the interview is happening and what their role is going to be. Tell them who you are and why you are here. Explain how the information gathered will be used. Do not promise complete confidentiality. Explain the consequences if the truth is not told. 40

41 Investigation What, when, where and how. Who was involved or present? Who knows what happened even if not present? Chronological sequence of events. Could it have been avoided? Were rules being followed? Does this happen often or in a pattern? Describe prior incidents. Any notes, records or recordings? What else should I know about this event? 41

42 Investigation One question at a time and no compound questions. Make the employee go through the sequence of events and evaluate how credible his/her information is. Ask the really tough questions at the right time. Ask questions that can be substantiated by other testimony. You can interview more than once, if necessary. 42

43 Fair Investigations And Due Process Constitutional Requirements: Fourth Amendment - Protection against unreasonable Search and Seizure. Fourteenth Amendment - Due Process Rights of an Employee. Loudermill. 43

44 Loudermill Hearing Notice. Explanation of the Evidence. Opportunity to Respond. Can be conducted face to face or in writing. Good personnel practice even where no union employees are involved. 44

45 Loudermill Hearing The public employer must make this hearing a pre-determination hearing (i.e., the decision must not have already been made). The employee is not required to cooperate and has no duty to tell his or her side of the story. Of course, he s not entitled to any presumption of innocence either. Required only when the employer is considering potential discipline that constitutes a deprivation of a property interest (e.g. termination or unpaid suspension). If the misconduct in question is a potential criminal violation, Garrity warnings can be given and the employee can be ordered to answer the employer s questions. 45

46 Loudermill Hearing What Loudermill does not require: Disclosure of all evidence gathered to date. Production of witness statements. Production of any other evidence that may exist. 46

47 Loudermill Hearing Can you Loudermill more than once if further potential lies or misconduct are revealed? 47

48 Fair Investigations And Due Process What do arbitrators think of a disciplinary process where due process is missing or defective? 48

49 Proof It s not what you know, it s what you can prove that counts. An arbitrator doesn t have a 15-year history with a poor performer. Determine the quality or quantity of evidence. Is there corroborative evidence? How widespread is the conduct? 49

50 Proof Okay, you ve got evidence, work backwards. How will it be attacked? Bias my Supervisor was out to get me. Mistake. Prejudice. Me-too-ism another guy did the same thing and was not punished. 50

51 Equal Treatment Aren t all employees different? Why shouldn t I be able to discipline differently? But I am new here, I had no idea about our customs. 51

52 Penalty Identify the penalty. Identify who took the action. Identify the statutory basis for taking the action. Describe the misconduct itself. Refer with specificity to Loudermill process. 52

53 Penalty Cite sections of relevant law under which employee will be disciplined this is crucial. Identify when the discipline will be imposed. Specify the grounds for appeal. 53

54 What Are The Considerations For An Appropriate Penalty? Don t pile on discipline. Review work rules. Review and consider mitigating circumstances. Review comparable cases. Review previous discipline. Consider years of service. 54

55 What If The Officer Quits? Even if the subject officer resigns prior to, or during, an investigation into his or her conduct, the law enforcement executive should consider investigating the complaint as if the officer was still employed, resources permitting (Internal Affairs Guidelines, 2008). 55

56 An Arbitrator s View Of A Discipline Case 56

57 An Arbitrator s View Union/Contract Issues: Just Cause for all discipline and/or discharge decisions is required. Employee/Union have right to grieve any such decisions. Burden of proof is on the Employer in any arbitration hearing. Right to Union representation (unless waived) if meeting is investigatory or if discipline is to be imposed under contracts. 68

58 An Arbitrator s View Assuming that Enterprise Wire is met, how do I decide this case? Was there progressive discipline or was the offense significant enough that serious discipline is warranted? 58

59 Thank you! 72