OE3: Public Employees: Internal Affairs

Internal Affairs

Internal Affairs Investigation Tips

At times, City, County or State Government agencies bow to political pressures and / or the citizens that law enforcement officers serve and investigate their employees in response to complaints made by vocal citizens or fellow employees. In the typical public safety officers, eight, ten, or twelve hour shift, the officer will converse with supervisors and co-workers, complete report forms, book evidence, make dozens of citizen contacts, numerous arrests, and most likely have to respond Code 3 to critical incidents occurring on their watch.

It is therefore inherent that many opportunities arise for their fellow co-workers, citizens, or supervisors to lodge an internally generated complaint against them. Some of these complaints could be as simple as they failed to stop at a stop sign or stop light in the patrol vehicle to excessive force on an arrestee or failing to properly book evidence. Any of these can and will result in the department opening an investigation into their alleged misconduct. The department will then want to interrogate them regarding the above-alleged incident.

Three of the most significant benefits provided by the Peace Officers’ Bill of Rights are:

Right to Representation in any interrogation which could lead to "punitive action".
Right to appeal "punitive action".
You have the right to have the representative of your choice present during questioning.

Punitive Action is:

Written reprimand
Transfer for purpose of punishment
Reduction in salary
Suspension
Dismissal
Demotion
Discovery which may lead to adverse employment consequences

Always remember that the "right to a representative" does not apply:

(a) If the investigation could only lead to counseling or some form of informal verbal admonishment without a notation or permanent record in the public safety officer’s file.

(b) Purely criminal investigation. (c) Unplanned or unscheduled supervisor contact or conversation.

You are entitled to a representative when … a formal statement of charges or a complaint has been filed or lodged against you and an interrogation and / or investigation will be conducted that could result in punitive action as described above. As per NLRB v. J. Weingarten (1975). You have the right to be represented by a representative of your choice (including an attorney) who may be present at all times during the interrogation. If your representative is a fellow law enforcement or public safety officer, he or she cannot be required to disclose the nature of the conversation you have, unless the interrogation focuses upon criminal matters.

After being advised that you are under investigation you should make the following request as per your Weingarten rights. "If this discussion could in any way lead to my being disciplined, terminated, or cause an affect on my personal working conditions, I respectfully request my union representative to be present at this time." At which time most, but not all agencies or investigators will advise you to contact your union labor representative to provide you with representation during the investigation and interrogation. If you are ordered to give a statement without your requested representative as provided by law, demand that it be recorded and / or record it yourself and read the following non-waiver statement: "I have been refused the right to have a representative of my choice. I understand that I am being ordered to make a report or answer questions and if I do not comply with that order, I may be disciplined for insubordination. Therefore, I have no alternative, but to abide by the order. However, by so doing, I do not waive my constitutional rights to remain silent under the 5th and 14th Amendments to the United States Constitution, and the protections of the California Constitution, and the protections afforded me under case law. Furthermore, by submitting to this coerced interview, I am not waiving any right afforded me under the Peace Officer’s Bill of Rights Act, which is found in Government Code sections 3300, et. seq."

If and when it is decided that the interrogation will continue, you have the following pre-interview rights. Your employer must advise of the following:

(a) The name of the investigator(s)

(b) That you are under investigation for possible misconduct

(d) A "Lybarger" or "Garrity" warning, that orders you to talk or face disciplinary action for refusing, however, it provides you with protection from your testimony being utilized in any subsequent criminal investigation action.

(e) You may utilize your own tape-recorder to record the interrogation.

(f) You may review any notes or tapes of prior interviews.

(g) You may request a representative of your choice.

Interrogation Hints

The old adage of "if the boss isn’t talking to you about fishing, then they’re fishing for you", should ring loud and clear to all public safety officers. If your supervisor, lieutenant, captain, etc. should happen to "call you in" from the hallway, parking garage, patrol etc. to "chat," you should always keep in mind the previous information. It does not matter that the department or your supervisor who is speaking to you isn’t referring to your chat, discussion, or interview as an official internal affairs investigation. It doesn’t mean that it is not one. Remember, your right as a public safety officer to representation is not triggered by the department’s or your supervisor’s description of the discussion, chat, or interview, but rather, by the circumstances at hand and your state of mind during the conversation or questioning. If, for any reason, you have a reasonable basis to believe that the chat, discussion, or interview involves any allegations that could result in disciplinary action upon you, you have the right to representation. In addition, you should always take heed of the following hints, which will be reinforced by your Local 3 business representative and / or attorney during internal affairs investigations.

Always tell the truth or you may face termination for dishonesty during the investigation. Many law enforcement officers have been terminated for this offense even though the investigation was surrounding a much lesser offense.
Do not answer questions unless they have been asked.
Always tape-record your own interrogation even if the department is taping it themselves.
Do not ramble, answer yes or no to yes or no questions.
Do not volunteer unnecessary information. Unnecessary, unrequested information can lead the investigator to additional questions and / or a deeper investigation or additional charges or witnesses.
Be careful of compound questions. If the investigator’s question requires more than one answer, ask to have the questions restated and / or clarified so each question requires one answer. Always focus on one question at a time.
Maintain your demeanor at all times. Your recorded interview may ultimately be heard by a judge, jury, arbitrator, Civil Service Commission, etc. Maintain professionalism at all times. Remember this is also an opportunity for the department and your supervisors to gain another view of you with regards to your integrity, forthrightness, honesty, and professionalism, as well as it is for a possible negative view.
Remember that the purpose of the investigation is to gather facts. Your job as the officer being investigated is to provide those facts in response to specific questions to the investigation.
If the interrogator questions you with regards to a matter that you have already addressed via writing as in a police report, ticket, or other court document, always refer to the report or other document prior to your verbal response. If at all possible, try and direct the interrogator to those documents for the answer to the question rather than your verbal answer.
Never mount an offense to defend your actions during the interrogation. It is not the proper forum to do so and you may in fact, create more questions and / or deepen the investigation. You will have an opportunity to defend yourself later if necessary.
Always request materials that the investigator is referring to for your personal review during the interrogation.
Do not feel rushed while you are being interrogated. You are free to ask for a break at any time to clear your mind, speak to your representative in private, or to attend to personal necessities.
Standard procedural admonishments may be given to you by management prior to your interrogation. Admonishments such as Miranda, Lybarger, or Garrity, POBR, etc. may be some of these. Established case law requires this type of action and it is your job to not be intimidated by this action.
Remember that you are entitled to a representative of your choice at any point in time during the investigation. Should you not have chosen a representative prior to the interview and during the interview you feel uncomfortable, you may invoke your right to representation under 3303 and 3500.
Under no circumstances do you discuss with fellow officers, or other employees your investigation and/or interrogation. These individuals can be easily brought into the investigation and questioned with regards to your statements. In addition, as with most internal affairs investigations, the public safety officer is generally ordered to not discuss the investigation and/or interrogation with others. To do so after such an order would open the public safety officer to charges of insubordination.
Never waive your Miranda or constitutional rights
Never give a voluntary statement, as there is no reason for it. Voluntary statements will only work to your disadvantage.
Try to stay away from the statement of "I don’t recall," it is canned and generally gives the impression to the investigator that your hiding something. If you don’t know or are unsure simply state that "I don’t know" or "I’m not sure" or I can’t remember exact details, and I would need to refer to my report"

Critical / Emergency Incidents

It is the nature of the beast that public safety officers will at some time during their career be involved in critical incidents. These critical incidents can be described as in-custody deaths, significant use of force (either physical, firearm, baton, or other defensive weapon), shootings, and / or vehicular accidents during emergency response. These types of critical incidents should always be considered as criminal investigations. The involved public safety officer(s) should only speak with a business representative from Local 3 about the incident. The involved public safety officer should not discuss the incident with fellow officers, job stewards or supervisors arriving on scene. However, it is quite alright for the involved public safety officer(s) to relate to the department the direction of flight, suspect description, or any and all other information important to carry out law enforcement necessities to the department, officer and the public safety.

Handling Critical Incidents with Fellow Officers

In instances where a fellow officer from yours or another adjoining department is involved in a critical incident, there are ways that you may assist them during this stressful time. It is highly recommended that you help to attend to their personal needs, lend emotional support, and find out who their legal representation is provided by so they can be contacted immediately. Under no circumstances should you discuss the particulars of the incident with the involved officer. There is no privilege that prevents the discovery of such conversations from the investigating agency of discussions that took place between you and the involved officer or officers. This does not of course include information that needs to be disseminated to any or all law enforcement departments regarding the suspect description, direction of flight, or other information important to the officer and or the public safety.

If you’re involved in a critical incident, you should do the following:

Do not discuss the incident with your fellow officers and / or supervisors
Contact your business representative / attorney immediately
If you are unable to do so, ask one of your fellow officers to contact your representative for you

Operating Engineers Local Union No. 3