Prosecuting a disciplinary appeal can be very expensive and time-consuming for agencies. After spending the time and effort to conduct an investigation and determine that discipline is warranted, an agency certainly wants to make sure that the discipline is upheld in the event the employee appeals. Despite hundreds of excellent, objective Internal Affairs investigations across the state, agencies frequently find themselves embroiled in disciplinary appeals in which their investigations are attacked.
Among its many services, Liebert Cassidy Whitmore (LCW) provides an in-depth review of Internal Affairs investigation procedures and preparation of Notices of Intent, and creates customized trainings to agencies in those areas. Our goal is twofold. First, we know how important it is that the agency comply with the POBR. Second, in the event that a disciplinary appeal is filed, a strong investigation report will support the agency’s position. This post addresses four of the most common, yet avoidable, mistakes made during investigations and discipline. Addressing these issues may reduce the chances that your agency will face a disciplinary appeal and, if so, make it more likely that your agency will prevail.
1. Recognize When a Conversation is an Interrogation Triggering POBR Rights
The POBR provides certain rights when a public safety officer “is under investigation and subjected to interrogation…that could lead to punitive action.” (Government Code section 3303.) Those rights do not apply to an “interrogation … in the normal course of duty, counseling, instruction … or other routine of unplanned contact….” The line between which type of conversation is occurring is often unclear, leading to claims that agencies violated POBR during initial conversations with the subject employee before the IA began. Employees who claim that they were interrogated in violation of POBR will ask a hearing officer to suppress any evidence obtained during the interrogation, a remedy that the POBR does allow. LCW offers detailed training for supervisors to recognize the difference between a “routine or unplanned contact” and an interrogation that could lead to punitive action.
2. Nail Down Witness Testimony During the Investigation
Investigators must force each witness to commit to one clearly articulated version of events. This is easier said than done. Some witnesses, either intentionally or just as a result of their communication style, do not answer questions precisely. Investigators must be trained in when to ask leading questions, when to ask open-ended questions, and when to focus on what the witness “recalls” versus asking the witness what happened. During a disciplinary appeal, witnesses who gave unclear answers during the IA may change their story, which can undermine the agency’s ability to have the discipline upheld.
3. Resist the Urge to “Throw the Book at ‘Em”
Your investigator sustains seven findings against a peace officer. What now? Not every charge must be included in the Notice of Intent to Discipline. Agencies should be strategic regarding which charges to include, and should be willing to exclude charges that do not support the discipline overall, or will create counter-productive diversions during an appeal of the discipline.
4. Involve Your Attorney Early in the Investigation Process
The attorney who will defend the agency in the event of an appeal should be involved in strategizing which charges are included in the Notice of Intent. This small investment will pay dividends during a disciplinary appeal. That attorney should also either prepare or review a draft of the Notice of Intent. Early participation allows your attorney to create discipline documents that are well supported by the investigation and that enable the agency to put on a strong case in a disciplinary appeal.