An Officer s Guide to Internal Affairs Richmond Police Officers Association January 2014 Alison Berry Wilkinson Berry Wilkinson Law Group
Purpose of Internal Affairs Ensure the integrity of the Department Conduct fair, impartial, complete investigation upon which appropriate recommendations can be made Facilitate prompt disciplinary action or documented vindication Berry Wilkinson Law Group 2
An Overview of the Process Personnel Complaint (See, Policy 1020) Investigation (See, Policy 340.4) Berry Wilkinson Law Group 3
Legal Obligation to Investigate Complaints of Misconduct Penal Code Section 832.5 requires that: A procedure exist to investigate complaints The procedure be made available to the public; and Citizen complaints, and any reports or findings be retained for a period of at least five (5) years Berry Wilkinson Law Group 4
An Overview of the Process Personnel Complaint (See, Policy 1020) Investigation (See, Policy 340.4) Findings and Disposition Notice Berry Wilkinson Law Group 5
Findings and Disposition Notice Policy 1020.7: When the investigation discloses: Sustained: sufficient evidence to establish that the act occurred and that it constituted misconduct. Not sustained: Insufficient evidence exists to sustain or fully exonerate the employee Exonerated: The alleged act occurred, but the act was justified, lawful, or proper. Unfounded: The alleged act did not occur. Berry Wilkinson Law Group 6
An Overview of the Process, Cont. If the allegation is sustained, then: Notice of Intent to Discipline Issues Skelly Hearing Held Final Notice of Discipline Issued Appeal Hearing Convenes if Timely Requested (See RPD Policy 340 for Post-Investigation Procedures) Berry Wilkinson Law Group 7
Things You Should Know When You Are the Subject of An IA Investigation
The Right to Representation Government Code Section 3303(i)
Right to Representation Before the interview, the officer is entitled to the representative of his or her choice, who may be present at all times during the interrogation. Government Code section 3303(i) Berry Wilkinson Law Group 10
Limitations The representative shall not be a person subject to the same investigation. Government Code section 3303(i) The representative must be reasonably available. Upland POA v. City of Upland (2003) 111 Cal. App. 4 th 1294 Berry Wilkinson Law Group 11
Upland POA The officer must choose a representative who is reasonably available to represent the officer, and who is physically able to represent the officer at the reasonably scheduled interrogation. Berry Wilkinson Law Group 12
Upland POA It is the officer s responsibility to secure the attendance of his or her chosen representative at the interrogation. If he or she is unable to do so, the officer should select another representative so that the interrogation may proceed at a reasonable hour. Berry Wilkinson Law Group 13
Factors in Deciding Who Should Provide Representation Source of complaint (internal v. external) Nature/complexity of the complaint Personal involvement or biases Subject officer s history/reputation Involved personalities Politics Your level of experience and willingness to do the necessary preparation and advocacy Berry Wilkinson Law Group 14
Representation Privilege Statutory Communications Privilege is Limited in Scope: The representative shall not be required to disclose nor be subject to any punitive action for refusing to disclose, any information received from the officer under investigation for non-criminal matters Government Code section 3303(i) Berry Wilkinson Law Group 15
CAUTION: If the allegations are potentially criminal in nature, do not use an association representative No privilege Rep may develop a conflict between his/her duty as a police officer and duty as a representative that could result in discipline Alhambra POA v. City of Alhambra Berry Wilkinson Law Group 16
PORAC LDF Plan document http://porac.org/legal-defense-fund/files/plan- Documents-California.pdf (209) 774-5600 (Main) (888) 556-5631 (PORAC members) Berry Wilkinson Law Group 17
The Right to Representation Attaches: When officer is under investigation and subjected to interrogation by his or her commanding officer, or any other member of the employing public safety department, on a matter that could lead to punitive Action Punitive action is defined as any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment. City of Los Angeles v. Superior Court (Labio) Berry Wilkinson Law Group 18
Routine or Unplanned Contacts Interrogation rights under section 3303 do not apply to any interrogation in the normal course of duty, counseling, instruction, or informal verbal admonishment by, or other routine or unplanned contact with, a supervisor or any other public safety officer. Darvish v. City of Inglewood 2003 Cal. App. Unpub. LEXIS 12115 Steinert v. City of Covina (2006) 146 Cal. App. 4th 458 Paterson v. City of Los Angeles (2009) 174 Cal. App. 4 th 1393 Govt C. 3303(i) Berry Wilkinson Law Group 19
Role of the Representative Representative does not have to be silent: The union representative is entitled to assist the employee by eliciting favorable facts and any extenuating circumstances. National Labor Relations Board v. Weingarten 420 U.S. 251 (1975) Berry Wilkinson Law Group 20
Role of the Representative Has the right to speak, object and clarify questions during the interrogation, and to elicit additional information from client Persistent objections/interruptions out of line Permissible conduct is somewhere between mandatory silence and adversarial confrontation Berry Wilkinson Law Group 21
Role of the Employee Department has the right to ask questions; Not in best interest to be adversarial Fact-finding, not argument Stick to the facts, and stick to the truth Admitting mistakes; being reflective Be knowledgeable about policies and procedures Berry Wilkinson Law Group 22
Be Prepared
Review Relevant Information Review your Police Report Review Relevant Policies Ask For More Information if Necessary to Being Prepared: The officer or his/her representative can request to review or obtain documents or other materials beyond the mere nature of the investigation. Pasadena POA v. City of Pasadena confirmed: Although the statute does not compel pre-interrogation discovery, it does not preclude a law enforcement agency from providing such discovery Berry Wilkinson Law Group 24
Always Tape Record Under 3303(g): Complete interrogation may be recorded Officer has the right to bring a recording device and record any and all aspects of the interrogation Can the officer or the department video record the interview? Surreptitious recordings prohibited Rattray v. City of National City, 36 F.3d 1480 (9th Cir. 1994) Coulter v. Bank of America, 28 Cal.App.4th 923 (1994) Berry Wilkinson Law Group 25
Know Who is Going to Be at the Interview Before the interview, the officer is entitled to know: The name of the officer in charge Name(s) of interrogating officer(s) Name(s) of others attending Government Code section 3303(b) Berry Wilkinson Law Group 26
Know What the Investigation is About Before the interview, the officer must be informed about: Whether the investigation involves criminal conduct (Government Code 3303(h)) The nature of the investigation Government Code section 3303(c) states: The public safety officer under investigation shall be informed of the nature of the investigation prior to any interrogation. Berry Wilkinson Law Group 27
Nature of the Investigation It is the receipt by the officer of adequate content and long enough in advance of the interrogation to understand what the charges specifically are and to prepare an adequate response. Berry Wilkinson Law Group 28
Nature of the Investigation To say that an interrogation could be established for a particular time, the officer simply notified that [an interrogation] would take place and then be handed the written charges as he/she walked in the door would be ludicrous... Harlan Veal, Judge San Mateo County Superior Court DiVincenzi v. City of Foster City Berry Wilkinson Law Group 29
Be Honest
Employee Role During Interview: Be Truthful Be concise Be direct Listen to the question Don t embellish Don t Exaggerate Do not lie Answer the question Stay focused Berry Wilkinson Law Group 31
Choose the Right Road: Avoid Career Disaster Berry Wilkinson Law Group 32
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During the Investigation The Rules of the Game
Interrogation Conditions Under 3303(a), the interrogation must occur: At a reasonable hour When the officer is on-duty or during normal waking hours If officer is off-duty, must be compensated Under 3303(d): Session shall only be for a reasonable period given the gravity and complexity of the events Officer has the right to attend to own personal physical necessities Berry Wilkinson Law Group 36
Interrogation Rights To be questioned by and through no more than two interrogators at one time (3303(b)) Under 3303(e) the investigators cannot: Subject the officer to offensive language Threaten the officer (except with insubordination if refuses to answer questions) or promise reward Subject the officer to the media without his or her consent Release home address or photograph to the media Refuse to allow the officer to attend to personal physical necessities Berry Wilkinson Law Group 37
Admonishments Miranda Warning Under Government Code section 3303(h), if the officer could be charged with a criminal offense, he or she shall be immediately informed of his or her constitutional rights. Lybarger/Garrity Admonishment An order to give a statement A warning that discipline could result from the failure to give a statement A promise that the statement and the fruits of the statement will not be used in a subsequent criminal prosecution against the employee Berry Wilkinson Law Group 38
Lybarger Admonishment Because the statement is compelled under pain of insubordination or other threat of disciplinary action, the Lybarger/Garrity admonishment provides limited protection in both: State court civil actions Federal and state criminal prosecutions Berry Wilkinson Law Group 39
Spousal Privilege Riverside County Sheriff s Department v. Zigman, 169 Cal. App. 4th 763 (2008) Other Privileges: Attorney-Client Doctor-Patient Priest-Pentitent Union Representative Privilege (Limited) Berry Wilkinson Law Group 40
Orders Not to Talk Order not to talk while IA pending does not violate the 1 st Amendment LAPPL v. Gates Must be narrowly drawn Prohibits discussion only during IA not after Did not prohibit discussion with rep or atty Did not prohibit talking with officers about matters outside the investigation Rationale: the interest in conducting a credible investigation and restoring public faith outweighs the 1 st amendment Berry Wilkinson Law Group 41
Other Investigation Issues Second Interviews: 3303(g) Officer shall have access to the recording of the first interview prior to any further interrogation Reassignment: 3303(j) No public safety officer shall be loaned or temporarily reassigned to a location or duty assignment if a sworn member of his or her department would not normally be sent to that location or would not normally be given that duty assignment under similar circumstances Berry Wilkinson Law Group 42
Locker & Storage Searches Gov t C. 3309 prohibits searching lockers or other spaces for storage that are assigned to the officer and owned or leased by the employing agency, unless The officer is notified beforehand; or The officer is present; or The officer gives consent; or Pursuant to a valid search warrant Mullican v. City of Ontario 2004 Cal. App. Unpub. LEXIS 3868 Berry Wilkinson Law Group 43
Personal Finances & Property Government Code section 3308 No public safety officer shall be required or requested to disclose any item of his property, income, assets, source of income, debts or personal or domestic expenditures (including those of any member of his family or household) Except: where required for conflict of interest purposes; or assignment to specialized unit with a strong possibility that bribes or other improper inducements may be offered. Video6_Cell Phone_Indiana Berry Wilkinson Law Group 44
Lie Detector Tests Government Code 3307 Cannot be compelled Comments on refusal prohibited No testimony or evidence is admissible at any subsequent judicial or administrative hearing that the officer refused to take or was subjected to a lie detector test Voluntary Lie Detector Tests Yates v. County of Contra Costa (Unpublished) Berry Wilkinson Law Group 45
THE END Alison Berry Wilkinson Berry Wilkinson Law Group 4040 Civic Center Drive, Suite 200 San Rafael, CA 94903 Telephone:415.259.6638 alison@berrywilkinson.com