CJUS 530 CASE STUDY CRITIQUE ASSIGNMENT INSTRUCTIONS OVERVIEW After reading the assigned articles/case studies for the Module:

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Law Enforcement Executive Forum March 2005 –Pp. 1-21

Peace Officers Bill of Rights Guarantees: Responding to Union Demands with a Management Sanctioned Version

By Wayne W. Schmidt *

History

The genesis of a uniform internal investigative procedure law was the federal “Police Officers’ Bill of Rights” bill (POBR), sponsored by the late Congressman Mario Biaggi (D-N.Y.) in the 1971-1972 session. Initially, the bill had over a hundred and twenty cosponsors. Biaggi, who was wounded ten times during his 23 years of police service, was the most decorated officer in the history of the NYPD. He was a champion of police officer safety and occupational rights during his tenure in the Congress. [Note 1]

The bill was reintroduced repeatedly, but was not sent to the floor until 1991. In that year it passed the U.S. Senate by a 55-to-43 margin but the House did not vote on the bill before the session ended. By 1995, a revised and more inclusive version were sponsored in the House and Senate. To mandate compliance by recipients of federal funding, the bill would amend Title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S. Code §3781). Currently the POBR bills are named the “State and Local Law Enforcement Discipline, Accountability, and Due Process Act,” (H.R. 2967 and S. 1277, 108th Cong.).

Although a federal version of the POBR has never passed both Houses of Congress, at least 17 states and one province have enacted Bill of Rights laws: (1)Arizona (2003) §38- 1101, (2) California (1976) Govt. Code §3301, (3) Delaware (1986) Code Ann. 11 §9200, (4) Florida (1974) Stat. §112.531, (5) Illinois (1983, 2004) Compiled Stat. 50 ILCS 725, (5) Kentucky Rev. Stat. Ann. §15.520, (6) Louisiana Revised Stat. §2531, (7) Maryland (1972, 1994) Ann. Code Art. 27, §727-734, (8) Minnesota (1991) Stat. Ann. §626.89, (9) Nevada (1983, 1989) Rev. Stat. §289.020, (10) New Mexico (1978) Stat. Ann. §29-14-4, (11) Rhode Island (1976) Gen. Laws §42-28.6-2, (12) Tennessee (1989) Code §38-8-301, (13) Texas (1997) Local Government Code §143.123, (14) Virginia (1978, 1991) Code Ann. §9-1-502, (15) West Virginia (1990) Code §8-14A-1, (16)Wisconsin (1989, 1993)

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Stat. §164.02, and the Canadian Province of Alberta (1990) Police Act/Police Service Regulation 356/90 (1990).

In the last decade police unions in at least 10 states have attempted to enact a POBR, including (1) Hawaii, S.B. 2986 (21st Leg. 2002); (2) Kansas, S.B. 214 (77th Leg. 1997); (3) Massachusetts, H.B. 368 (182nd Leg. 1998); (4) Michigan, S.B. 25 (2001); (5) Montana, S.B. 44 (1993); (6) North Dakota, S.B. 2368 (57th Leg. 2001); (7) Pennsylvania, H.B. 376 (S. Res. 1073, 185th Leg. 2001); (8) South Carolina, H.B. 4498 (112th Leg., 1997 Sess.); (9) Utah, H.J.R. 9 §143 (54th Sess. 1999); and (10) Washington, H.B. 1850 (54th Sess. 1995). [Note 2]

There is no harmony among state POBR versions. Some protect firefighters, deputy sheriffs, corrections officers and police chiefs; others exclude some or all of those. A few require members of a disciplinary hearing or appeal board to be sworn peace officers; others do not. The laws can either supersede or be subordinate to collective bargaining agreements. Specific rights and prohibitions that are codified in some states are not mentioned in others.

Voluntary Adoptions

Concerned that similar legislation would pass in their states, two state associations of chiefs of police drafted POBR provisions that management could live with. In 1990 the Colorado Association of Chiefs of Police amended its Professional Standards (1986) with revisions and additions that address the conduct of internal affairs investigations. In 1992 the Arizona Association of Chiefs of Police published a Model Policy regarding the rights and responsibilities of law enforcement officers in internal investigations. It was written in response to several legislative attempts to impose a union-sponsored version in that state.

On this premise the chair of the Legislative Committee of the International Association of Chiefs of Police appointed an Internal Affairs Legislation Subcommittee, to draft a version of POBR law that management would find more acceptable. Although there was no immediate intention to have the IACP’s version introduced in the Congress, it would be available –as a reference document –in those states where POBR legislation might be pending.

It should be noted that the final document, though unanimously approved by the subcommittee, was never adopted by the IACP Legislative Committee itself. Divided by a single vote difference, a majority of the full committee was so opposed to any POBR legislation that it rejected the adoption of a management version, even if it was labeled a “specimen” document. [Note 3]

Nevertheless, the work of the subcommittee stands, and the document has been sent to a few state associations of chiefs of police that have been faced with union versions that were pending in their state legislatures. The document has been in a “stealth mode” for over eight years –it exists, but has not been widely seen until now. It should be

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remembered that many IACP members remain opposed to any POBR legislation, no matter how balanced it might be.

As the chair of the Internal Affairs Legislation Subcommittee, I believed then and now, that the document has value as an alternative to union-sponsored legislation. As the IACP has learned, sometimes painfully, that uncompromising opposition can lead to defeat. [Note 4] The Subcommittee’s document follows, as it was originally written. First, a few comments on how it was written. [Note 5]

Content Philosophy

Americans are captivated by sports events, where one team or athlete wins and the other team or athletes lose. A few managers view interaction with their subordinates in the same competitive way. They concede no ground, contest all intrusions, and concentrate on achieving total victory, even if it diminishes employee morale.

Although competitiveness is an innate trait that is difficult to restrain, the subcommittee approached the content in a less confrontational way. It decided that it would recognize employee rights and prohibit management practices based on the following principles:

1. It would be a responsive statement. Personnel handbooks often address dozens of topics. The document focused on the principal issues that have been raised in POBR legislation.

2. Decisional law would be taken into account. If most courts or arbitrators had generally recognized an enforceable employee right or invalidated a management practice, the document embodied those holdings. Where courts have split on a right or practice, the subcommittee offered optional provisions or guiding commentary. An example is §10, the mandatory polygraph testing of employees, which has been struck down by courts in a few states, and upheld in many others.

3. It would focus on fundamentals. The objective of a disciplinary investigation is to gather facts in a nonbiased way. If the recognition of a right or the adoption of a practice is unlikely to impair or to unreasonably delay the investigative process, the union’s position usually was accepted. An example was §5-C, allowing an employee to audio- record an interview or to promptly provide him or her with an audio copy or transcript of the interview.

4. It would be reasonable and balanced. Good personnel practices foster professional behavior from management and employees. Harsh methods and arbitrary practices can undermine morale. The fact that no court had yet imposed a restriction on a management practice was not viewed as determinative. An example was §5-F, setting a reasonable time limit on the duration of an uninterrupted interview session.

5. It would recognize alternative ways of implementation. The subcommittee was

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cognizant that rights can be established by statute, charter amendment, ordinance, personnel or civil service rules and through the collective bargaining process. [Note 6]

6. Civilians would be included within its purview. Many tasks that were traditionally performed by commissioned peace officers are now fulfilled by civilian employees. Community service officers may have the authority to issue traffic and ordinance citations. The director of training and heads of other support divisions could be unsworn. A retired or injured officer might continue to work as a reclassified civilian. The lines are blurred, and if protections are afforded to some and not others, morale is undermined and confusion in the disciplinary process can result, especially when the incident giving rise to an investigation involves both classes of employees. This approach differed from the usual POBR law.

7. It would cover both rights and responsibilities. Some rights are conferred on individuals by the state; others are agreed to by employees and management. Both parties have responsibilities to each other and to the communities they serve. Section 2, for example, imposed an affirmative duty to report misconduct and to cooperate in intra- agency investigations.

Rights and Responsibilities of Law Enforcement Personnel in Disciplinary Investigations

IACP Subcommittee on Internal Affairs Legislation (1996)

Part One – Basic Rights, Responsibilities and Procedures

1. Definitions. 2. Duty to Cooperate and to Report Misconduct. 3. Time and Place of a Formal Interview. 4. Statement of the Reasons for a Formal Interview; Identity of

Complainants. 5. Conduct of Formal Interview Sessions. 6. Scientific and Financial Examinations. 7. Personnel Files: Access, Adverse Information and Dispositions. 8. Miscellaneous Provisions:

A. Arbitration B. No Retribution C. Confidentiality D. Release of Photographs E. Waivers F. Immediate Obedience Required G. Criminal Charges H. Civil Claims

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I. Tenure

Part Two – Optional Rights and Procedures

9. Right to Consult an Attorney or Union Representative. 10. Polygraph Examinations. 11. Right to be a Candidate for Public Office.

Prefatory Note

This is a specimen document, and not a “Model.” It is assumed that there are alternative policies and procedures that may be better suited for a particular agency or state.

Method of Adoption

The procedures which follow can be enabled in a variety of ways, including (a) a state statute, (b) a “home rule” ordinance, (c) a civil service rule, (d) a labor-management “Memorandum of Understanding,” (e) provisions in a collectively bargained agreement, (f) inclusion in an agency handbook or employee manual, or (g) an Executive Order. The appropriate method of adoption depends on state law, historical labor practices and political considerations that may be unique to each jurisdiction.

Method of Compilation

This Statement is in two parts. The first covers those basic rights and responsibilities that (a) are generally accepted professional practices and/or (b) have been imposed by “mainstream” court decisions that have arisen in the course of due process appeals and litigation. The second part contains optional practices or procedures that are operative currently in some jurisdictions, but not others. They are treated separately because of their eristic nature.

Part One – Basic Rights, Responsibilities and Procedures

1. Definitions

A. “Agency” means the department or unit of government for which an officer or employee, as defined herein, provides occupational or professional services.

B. “Critical Incident Report” means a written report required to be completed and submitted by an officer to his or her superiors (or written at the request of his or her superiors) involving:

a. the death or serious injury of an officer, prisoner or suspect; or b. the use of a firearm or impact weapon on a suspect, prisoner or other

person by the reporting officer or by a fellow officer, or

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c. the death or injury of a third person during the course of an arrest or while in pursuit of a fleeing suspect or prisoner, and

d. such other events or incidents designated as critical by the agency that employs the reporting officer.

It includes standardized format reports (such as an agency’s “use of force” report) and nonstandardized narrative reports (such as an “incident report”).

C. “Formal Interview” means the questioning or interrogation of an officer or employee as part of a Formal Investigation.

D. “Formal Investigation” means the process of investigating a complaint or allegation of serious misconduct, when the inquiry is ordered by a superior or a management representative, and where the results might furnish the basis for disciplinary action against an officer or employee.

E. “Informal Interview” means a meeting between an officer or employee and a superior for the purpose of learning facts or circumstances relating to an incident or event. It includes the mediation of a citizen’s or supervisor’s minor complaint.

F. “Officer” or “employee” means any person, (a) who has been commissioned or certified as a peace officer, whether compensated or not, or (b) any compensated civilian employee of the agency that retains such peace officers, or (c) a civilian employee of the parent entity who is permanently assigned to an agency that retains police officers.

“Officer” does not include privately employed special officers. “Employee” does not include persons who are employed by private sector contractors that provide support services to an agency or its parent governmental entity.

G. “Serious Misconduct” means an act, omission or other behavior which if proved, could result in (a) a disciplinary suspension of one or more days, or (b) a punitive interruption, loss, reduction, or restriction of an officer’s privileges, rights or promotional opportunities, or (c) an involuntary transfer, or (d) a demotion in rank, pay or status, or (e) other diminution of compensation, or (f) termination.

Commentary

1. Application: California’s statute includes police chiefs, probationary police officers and correctional officers but excludes temporary officers and recruits. Florida’s statute includes full-time state and municipal law enforcement and correctional officers but not parttime officers or police chiefs. Deputy sheriffs are included within the procedural protections but lack tenure and can be terminated without cause. The Maryland statute is limited to officers with arrest powers and includes police chiefs and parttime officers. The Minnesota and Nevada statutes cover all licensed full or parttime peace officers. Virginia excludes chiefs of police and the Wisconsin act excludes state officers.

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The Arizona Model Policy states that “every full-time permanent non-supervisory police employee has a property interest in continued employment which cannot be taken without due process of law.” However, the procedures set forth in the policy are not restricted and apply to any “employee.”

The Colorado Standards apply to all “peace officers.”

These provisions apply to all peace officers, whether full or parttime, whether tenured or nontenured, whether paid officers or volunteers, and includes the chief of the agency. It includes court bailiffs and jailers who are peace officers. It excludes private sector persons who possess a special-police commission — such as store and hotel detectives, railroad special agents, bail bond enforcement agents, private process servers, etc. It also applies to “civilian” employees, except those who are paid by private contractors.

2. Triggering Events: Informal interviews are outside the scope of these provisions, until such time as serious misconduct is suspected. Union leaders and their lawyers have long maintained that a compelled written report can be as intrusive as a formal interrogation. An officer’s responses in a written report can jeopardize his or her career and expose him or her to civil liability in the same way as the answers to questions posed in a formal interview. Written reports are addressed in Section 9 of the document, as an optional right.

3. Included Penalties: These provisions follow court decisions that have recognized that there may be a significant penalty associated with non traditional disciplinary action, such as a transfer to an unpopular post or unit, the denial of a secondary employment permit, a prohibition against desirable overtime assignments or an involuntary shift change that disrupts an officer’s family life. Just as the exposure to disciplinary action is a part of the professional life of law enforcement and correctional personnel, they ought to be subjected to adverse action only when basic due process has been fully accorded to them.

4. The definition of a “critical incident” may be omitted if Optional Section 9 is not included.

2. Duty to Report Misconduct and to Cooperate with Intra-agency Investigations.

A. Every officer and employee has a duty to report promptly any and all information concerning any acts or events which constitute serious misconduct, or a violation of state or federal criminal laws, or a substantial conflict of interest, or a corrupt or fraudulent transaction or practice, or any other serious abuse of office, when committed (a) by any other officer or employee of his or her agency or its parent governmental entity, or (b) any person having business dealings with that agency or the parent entity, or (c) by any other person possessing peace officer powers [in this state].

The knowing failure of any officer or employee to report such acts or events shall be

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cause for termination or such lesser sanctions that might be appropriately imposed.

Unless otherwise directed, the information shall be given in written format to the chief executive of the agency, except that criminal matters may be referred directly to the appropriate prosecutor.

An officer or employee who complies fully and promptly with the above reporting requirements shall not be subject to any disciplinary or other adverse personnel action, provided the allegations are reasonably believed to be true.

B. Every officer and employee has a duty to cooperate fully with an internal investigation of misconduct, whether serious or minor, unless and until he or she becomes a suspect in a criminal investigation. Absent such a focus, every officer and employee must answer questions asked by a superior or investigator in a truthful and forthright manner, without equivocating or otherwise attempting to avoid disclosure of relevant information.

Commentary

“Serious misconduct” is defined in Section 1. The other activities contained in 2-A are taken from N.Y. Executive Order No. 39 [Part IV-1] (1996) which is applicable to all Executive Branch officers and employees. They parallel a similar provision in the Arizona Model Policy [Part II-B] (1992).

3. Time and Place of a Formal Interview.

Whenever an officer or employee is under investigation for serious misconduct, and is subjected to a formal interview at the request of management or a designated member of his agency, the interview will be conducted under the following conditions:

A. It will be scheduled at a reasonable time, preferably when the officer or employee is on duty or immediately preceding or following his tour of duty, unless the seriousness of the inquiry is such that an immediate interview is desired. If the officer or employee is not on duty (or is on suspension), he or she shall be entitled to his usual compensation for call-back duty.

B. The interview shall take place at (a) the usual duty station of the officer or employee, or (b) at the regular premises of the person in charge of the interview. Where the interview is to be conducted by personnel from two or more investigating agencies, it shall take place at the premises of one of the investigating parties. Unusual circumstances pertaining to an investigation will justify scheduling the interview at an appropriate time and place that is convenient to the investigating parties, such as when the incident giving rise to the inquiry involves officers from multiple jurisdictions.

C. Management’s failure to comply with the foregoing procedures will not excuse an officer or employee’s failure to attend the interview, but may form the basis of a

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legitimate grievance.

Commentary

The Arizona Model Policy prohibits home interviews. Colorado Standard §170.10 mandates the adoption of a written directive concerning (a) the place, duration, conduct, and documentation of IA interviews and (b) who is authorized to represent the accused officer.

The Colorado Commentary prohibits threats, offensive language, and promises or rewards. It provides that officers are entitled to a copy of the audiotape or transcript. The Commentary also says:

The interview should be conducted at a reasonable hour, preferably at a time when the peace officer is on duty, or during the normal waking hours for the peace officer, unless the seriousness of the investigation requires otherwise. If such interview does occur during off-duty time of the peace officer being interviewed, the peace officer should be compensated for such off-duty time in accordance with regular department procedures, and the peace officer shall not be released from employment for any work missed.

4. Statement of the Reasons for a Formal Interview; Identity of Complainants.

A. An officer or employee shall be informed of the name and rank, title or position and agency of employment of all persons who participate in asking questions at a formal interview.

B. An officer or employee who submits to a formal interview shall be informed :

a. of the general nature of the inquiry;

b. of the names and identities of any and all persons who have signed statements alleging misconduct by the concerned officer or employee, or alleging misconduct by another officer or person. The name of a complainant who refuses to make a public complaint, such as a confidential informant or an unrevealed undercover investigator, need not be released to the officer or employee, provided a superior informs the officer or employee that the complainant has requested anonymity.

C. Superiors may question an officer or employee about the contents of a letter, telephone call or other communication made by an unknown person, but must, on request, furnish the officer or employee with a verbatim copy of the letter or a transcript of the telephone call or other communication. If an exact transcript was not kept, the officer shall be provided with a written synopsis of the allegations. Management may “sanitize” the contents of the letter, call or communication by deleting those portions of the document that do not pertain to the current inquiry, or which allege misconduct by other persons not present at the formal interview.

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Commentary

Under subsection 4-B, management is not required to provide an accused officer or employee with a copy of a signed complaint and/or witness statement. The name(s) and identities of complainants must be revealed, if known, unless the complainant has requested anonymity or the complainant is an undercover investigator.

Under subsection 4-C, if the complaint is made by an unknown person, the concerned officer or employee must be furnished a verbatim copy of the communication. A verbatim copy can be a transcription of the letter or other communication, rather than a photocopy, to prevent the accused officer or employee from recognizing the handwriting or typewritten style of the sender.

5. Conduct of Formal Interview Sessions.

A. At a formal interview, on the request of an officer or employee being interviewed, no more than two persons shall ask questions during any segment of a interview, although the interview process may involve multiple segments. If more than two interviewers are physically present at the same time, the officer or employee may decline to reply.

A person who records or transcribes an interview session is not an “interviewer.” Management may authorize additional persons to simultaneously audit an interview via audio and/or video monitor devices placed elsewhere.

B. Officers and employees who are interviewed in noncriminal matters shall be treated with dignity and respect. They must not be subjected to angry accusations, shouts, ridicule, unlawful threats or harassment. They shall not be improperly offered a “reward” for their responses. However, the persons conducting the interview may remind an officer or employee that he or she has a duty to answer pertinent, job-related questions and can be disciplined or terminated for a failure to do so. An offer of immunity from disciplinary action or from criminal prosecution is not a improper reward, provided the offer is in writing or the offer is audiotaped.

C. Unless otherwise mutually agreed upon, no officer or employee shall be questioned for more than [50] minutes, without being given a rest break of at least [10] minutes.

D. An officer or employee is entitled to (a) elaborate on a response, or to (b) clarify or explain an answer, or (c) to refute a negative implication which arises during the interview or arose at a previous session.

E. If and when an inquiry is or becomes a criminal investigation, an officer or employee is entitled to remain silent and not answer incriminating questions until and unless he or she is advised that use immunity will apply. An officer or employee who is offered limited use immunity from criminal prosecution, by those conducting the

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interview, shall answer fully and truthfully all questions posed at that interview, when required to do so. Even in the absence of an admonition concerning limited immunity, use immunity presumptively attaches by operation of law, whenever an officer or employee is compelled to be a witness against oneself in a criminal investigation.

F. Unless waived by the parties, there shall be a verbatim record made of all formal interviews. The record may be by videotape, audio tape or stenotype transcription by [an independent court reporter]. If the interview is being conducted by the agency that employs the officer or employee being interviewed, the officer or employee is entitled to make his own audio recording of the proceedings, unless superiors arrange for two simultaneous recordings to be made and to offer one copy for the officer.

Commentary

1. Courts have annulled the punishment given officers who have been subjected to abusive internal interrogations. See Oddsen v. Board of Fire & Police Cmsnrs., 321 N.W.2d 161 (Wis. 1982). Moreover, when an abusive interview has taken place, judges may assume erroneously that management was politically motivated, and the court may look for a technical reason to set aside all sanctions.

Just as important, superior officers and internal investigators should reflect the same professional attitudes and demeanor that is required of their subordinates.

2. The Arizona Model Policy requires that an interview be conducted in a professional manner and prohibits ridicule, mockery or outrageous conduct. The Colorado Standard prohibits threats, harassment or a promise of reward.

3. The Arizona Model Policy has a 90 minute interrogation period; because most people are used to a 50 minute classroom period, the lower duration was selected. The proposed federal version requires a “reasonable period” for the interview and rest breaks. Because “reasonable” is subject to wide interpretation, this document opts for a finite maximum of 50 minutes.

4. Subsection 5E restates the principles of law devolving from Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616 (1967) <http://laws.findlaw.com/us/385/493.html>; Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913 < http://laws.findlaw.com/us/392/273.html > (1968); and Unif. Sanit. v. Cmsnr., 392 U.S. 280, 88 S.Ct. 1917 <http://laws.findlaw.com/us/392/280.html > (1968). The presumptive nature of the immunity was recognized in Confederation of Police v. Conlisk, 489 F.2d 891/at 895 (7th Cir. 1974) and subsequent cases pertaining to the use of compelled statements.

The Massachusetts Supreme Court has held that public employees who are interrogated in a disciplinary investigation are entitled to full and final immunity from prosecution. See Carney v. Springfield, 403 Mass. 604, 532 N.E.2d 631 (1988), and two companion cases. No other courts have adopted the view that “transactional immunity” applies. The U.S. Supreme Court favors the limited version; see Zicarelli v. State

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Investigating Cmsn., 406 U.S. 472, 92 S.Ct. 1921 <http://laws.findlaw.com/us/406/472.html> (1972).

5. The Arizona Model Policy and the Colorado Standard require an officer to pay for the cost of a transcript. He is permitted to tape the interview himself so long as the process is not disruptive.

6. Scientific and Financial Examinations.

A. An officer or employee may be required to be photographed or videotaped or participate in a lineup for the purposes of identification by witnesses or complainants.

B. Absent valid medical or religious reasons, an officer or employee may be required to submit to a medical, laboratory or other scientific examination at the sole expense of the agency. Unless restricted by law, an officer or employee …