The Chief’s Guide to Internal Affairs

 

Manual written by Attorney John M. Collins

of the Municipal Police Institute, Inc.

© 2001

 



Preface

 

This updated version of the Internal Affairs manual will be helpful to virtually every chief, regardless of the size of the department.  From time to time, they will be confronted with the need to conduct an internal affairs investigation. 

 

The area of internal affairs investigations is growing increasingly complex.  This manual attempts to review many of the most common issues confronting chiefs and internal affairs investigators.

 

It is clear that every chief needs to assign, train and support the best qualified officers to the Internal Affairs unit or function.  This should be an essential step in the career path of every officer that shows potential for department leadership.

 

The community policing philosophy depends on the integrity of the police department.  If the public lacks confidence in the agency’s ability and commitment to investigate and prosecute officer misconduct, there is little hope for successful partnerships and problem-solving.

 

                                                Chief John A. Ford, Jr. (Bourne)

President, Massachusetts Chiefs of Police Association, Inc.

 


Forward

 

Only a small percentage of police departments in this state have even one full-time officer assigned to internal affairs.  This means that for most departments, the task of investigating allegations of officer misconduct falls to the chief or other officer that lacks the same level of experience, if not training, of full-time IA investigators.  This manual is written to help all persons conducting IA investigations to understand the basic legal and practical issues involved.  The “Practice Pointers” (in italics) throughout the entire manual are a great source of common sense advice.  As with all evolving areas of the law, consultation with municipal counsel and the offices of the District Attorney, Attorney General and U.S. Attorney is recommended.

 

When it comes to giving advice to all municipal departments, there is no such thing as “one size fits all.”  Chiefs are encouraged to adapt sample policies, procedures and forms to fit their department’s needs.

 

This manual was written by Attorney John M. Collins of the law firm of Collins & Weinberg of Shrewsbury.  Jack Collins is the General Counsel of the Massachusetts Chiefs of Police Association and its private, non-profit, charitable research and training affiliate, the Municipal Police Institute (MPI).  Desktop publishing was done by Cheryl A. Lott and Dawn Dansereau.  Graphic art for the cover as well as the parts of the presentation for the accompanying seminar were provided by Michael J. Collins.

 

Chief George J. DiBlasi (Ret.)
Executive Director

 



Introduction

 

One area of law enforcement that is only recently receiving the kind of attention it deserves is ethics.  We are just beginning to recognize the values of character and ethical decision-making in developing a healthy police agency.  Crucial to this new approach is a coherent and effective system of discipline.  We must start to reemphasize the teaching rather than simply the punitive aspect of discipline.

 

The discipline system used by most police departments as we start the 21st Century resembles the one that has been used with generally poor results for decades.  Some people define insanity as doing the same thing over and over and expecting a different result.  It takes more than changing the catch words to bring about fundamental changes.  Observers on both the management and union “side” often view the phrase “progressive discipline” as an oxymoron.  The most regrettable part is that we really know how to improve things.

 

The challenge is to police ourselves in a way that officers, government officials and the public are all confident is fair and effective.  Rarely do any of these parties have confidence in the present system.  An essential first step involves an effective internal affairs function that can be counted on to investigate complaints impartially and thoroughly.  Other related improvements in the recruitment, selection, periodic evaluation and training of officers must be implemented as well.  Similarly, refocusing the role of supervisors, making them coaches, mentors and role models, and giving them the responsibility and authority to implement minor corrective measures, should be a part.

 

The day will come when everyone will recognize that the imposition of a suspension or discharge is most likely an indictment of the failure of all parties, rarely just the individual officer.

 

In preparation for drafting this manual, numerous internal affairs seminars or conventions were attended.  Meetings with IA officers from around the country (and even internationally) were held in a variety of settings.  As a group, often these officers are among the finest and most dedicated in their agencies.  When given the tools and freedom to do their jobs, IA officers are capable of and committed to uncovering the truth and, where appropriate, presenting a credible case in disciplinary hearings.  They do not need more oversight from citizen commissions or more second-guessing from politicians.  They need and want what all professionals in law enforcement do:  training, equipment, leadership and management’s support.

 

We have to start somewhere.  The day will come when all parties will appreciate the pivotal role IA plays in maintaining a healthy police agency.  All chiefs should support their department’s IA personnel.  Smaller departments should train one or more officers to perform internal investigations.  The Training Council should consider offering a basic IA course.  Its recent emphasis on ethics and moral decision-making is commendable.  Regular in-service refresher courses are also essential in this area. 

 

                                                                                                Jack Collins

 

 


Table of Contents

 

Chapter 1 - Sample  Policy & Procedure. 1-1

I. General Considerations and Guidelines. 1-1

II. Policy. 1-3

III. Procedures. 1-3 

Complaint Procedures. 1-3

Complaint Report Form.. 1-3

Receiving and Recording Complaints. 1-4

A.    General Procedures. 1-4

B.     In Person Complaints. 1-5

C.    Telephone Complaints. 1-6

D.    Complaints Received By Mail 1-6

E.     Departmental Complaints. 1-6

F.     Complaints By Prisoners Or Arrestees. 1-6

G.    Complaints From Governmental Agencies. 1-6

H.    Street Complaints. 1-6

I.      Verification of Receipt 1-6

Investigative Procedures. 1-9

1.     Categories of Complaints. 1-9

2.     Immediate Resolution of A Complaint 1-9

Investigation of Complaints. 1-10

Preliminary Investigations. 1-10

Confidentiality of Internal Affairs. 1-18

Liaison With District Attorney. 1-18

Annual Report 1-18

Chapter 2 - Interrogating Employees. 2-1

I. The Rules. 2-1

Federal Rule. 2-1

Massachusetts Rule. 2-1

IV. Federal Cases. 2-1

III. Massachusetts Cases. 2-2

IV. Other States’ Cases. 2-2

V. Compelling Answers. 2-2

Threat of Discipline. 2-3

Limited Scope of Questions. 2-3

Advised of Immunity. 2-4

VI. Immunity. 2-4

Sources of Immunity. 2-4

Court-Granted Immunity. 2-5

Automatic Immunity. 2-5

“Compelled” Police Reports. 2-7

Other Uses of Compelled Statements. 2-8

Immunity For Federal Crimes. 2-10

VII. Questioning Officers About Off-Duty Conduct 2-12

Privacy and Off-Duty Conduct 2-13

Privacy Rights Theories. 2-14

Off Duty Sexual Misconduct 2-14

Types of Conduct Prohibited. 2-15

Adultery. 2-15

Removal Not Justified. 2-17

Consorting With Prostitutes. 2-18

Relations With Minors. 2-19

Sex By Intimidation. 2-20

Sexually Deviant Behavior. 2-20

Transvestite Behavior. 2-21

VIII. Conduct Unbecoming An Officer 2-22

The Law.. 2-22

Void For Vagueness. 2-23

Right To Privacy. 2-25

IX. Right To Union Representation At An Investigatory Interview.. 2-28

The Weingarten Rule. 2-28

The Weingarten Rule In Massachusetts. 2-29

The Weingarten Rule In Other States. 2-30

The Role of The Union Representative. 2-31

The Right To Legal Counsel 2-33

Liability For Improper Investigations. 2-34

Chapter 3 - Discovery of Internal Affairs Files. 3-1

I. Public Records. 3-1

Exemption (C) 3-4

First Clause. 3-4

Second Clause. 3-5

Unresolved Allegations. 3-6

Resolved Allegations. 3-6

Exemption (F) 3-7

Other State’s Decisions. 3-9

II. Discovery of Privileged Documents. 3-10

Sensitive Investigative Techniques. 3-13

Practice Pointers. 3-13

III. Disclosure In Massachusetts Criminal Cases. 3-14

Rule Changes Proposed. 3-14

Records Not In Prosecutor’s Possession. 3-14

Statements of Percipient Witnesses. 3-15

Other Ia File Material 3-15

Statements of Reluctant Witnesses. 3-15

IV. Discovery In Federal Criminal Cases. 3-16

V. Discovery In Civil Cases. 3-17

Civil Rights Suits. 3-20

Unfairly Prejudicial Evidence Excludable. 3-22

Evidence of Prior Bad Acts Is Inadmissible. 3-24

Inadmissible Hearsay. 3-25

VI. Discovery In Disciplinary Cases. 3-27

Chapter 4 - Employee Searches. 4-1

I. Drug Testing. 4-1

Constitutional Considerations. 4-1

Massachusetts Rule. 4-3

Drug Testing and State Laws. 4-4

Drug Testing – Reasonable Suspicion. 4-4

Drug Testing - Collective Bargaining. 4-5

Drug Testing Procedures. 4-5

II. Searches and Privacy Rights. 4-6

Desks, Lockers and File Cabinets. 4-6

Private Property In The Work Space. 4-9

Searches of Officer’s Person and Residence. 4-9

Searches - Collective Bargaining. 4-10

III. Disclosure of Records. 4-10

IV. Financial Records. 4-11

        Financial Disclosure – Collective Bargaining. 4-13

Medical Records. 4-13

Medical Records – Collective Bargaining. 4-14

V. Illegally Seized Evidence. 4-14

The Rule. 4-14

The Law.. 4-15

Balancing Test 4-15

Deterrent Effect 4-16

Aware Suspect Is Police Officer. 4-17

Societal Cost 4-18

Massachusetts Cases. 4-19

VI. Polygraph Testing. 4-19

Statutory Provisions (M.G.L. C. 149, § 19b) 4-20

The Law Enforcement Exception. 4-20

Criminal Investigations. 4-21

Sanctions. 4-21

Immunity From Prosecution. 4-22

Collective Bargaining. 4-23

Chapter 5 - Early Intervention System.. 5-1

Beneficial Aspects. 5-1

Rationale For Eis. 5-2

Role of Supervisor. 5-2

Documentation and Reporting. 5-3

Documentable Events. 5-3

Union’s Role. 5-3

II. Policy. 5-5

III. Procedures. 5-6

IV. Evaluations. 5-7

Chapter 6 - Conducting Investigations. 6-1

I. Preliminary Evaluation. 6-1

II. Strategy. 6-2

Review Existing Materials. 6-2

Organize The File. 6-3

Pre-Interview Checklist 6-3

Interviewing Accused Officers. 6-5

Assembling The Report 6-5

Cover Letter. 6-5

Complaint Form and Analysis. 6-5

Report Summary. 6-6

Investigation Sequence. 6-6

Evidence. 6-6

Reports and Analysis. 6-6

Photographs. 6-6

Interviews. 6-6

Background Checks. 6-6

Medical Reports. 6-7

Police Reports. 6-7

Media Reports. 6-7

Additional Material 6-7

Chapter 7 - Adjudication. 7-1

I. Disposition Classification. 7-1

II. Supervisory Review.. 7-1

III. Adjudication Report 7-2

Chapter 8 - Use of Force Investigations. 8-1

I. Incidents Covered. 8-1

II. Procedures. 8-1

IA Investigation. 8-3

Deadly Force. 8-4

Non-Deadly Force. 8-4

Chapter 9 - Domestic Violence Investigations. 9-1

I. Restraining Orders. 9-1

General Concerns. 9-1

Suspension and Surrender Orders. 9-1

Hearing To Lift The Suspension and Surrender Order. 9-2

II. Federal Firearms Disabilities. 9-3

Law Enforcement Officers. 9-3

Misdemeanor Crime of Domestic Violence. 9-4

Expungement Or Pardon. 9-4

Partial Restoration of Civil Rights. 9-4

On and Off-Duty Covered. 9-5

Massachusetts Crimes Covered. 9-5

Convictions. 9-5

Not An Ex Post Facto Law.. 9-5

Civil Liability. 9-7

Collective Bargaining Implications. 9-8

Survey Recommended. 9-9

Department’s Response. 9-12

Police Not Exempt 9-12

Domestic Violence Definition. 9-12

Certain Convictions Included. 9-12

No Appeal Procedure. 9-12

Dealing With Firearms Disabled Officers. 9-17

Discipline of A Police Officer Who Is Prohibited From Carrying A Firearm.. 9-17

Constitutionality. 9-17

Just Cause. 9-18

Interference With Contractual Rights. 9-18

Chapter 10 - Public Statement Investigations. 10-1

I. Public Criticism of The Department 10-2

The Law.. 10-2

Balancing of Interests. 10-3

Public Concern Analysis. 10-3

Not A Matter of Public Concern. 10-4

Matters of Public Concern. 10-4

Misconduct 10-5

Unsafe Working Conditions. 10-6

Incompetence. 10-6

Harassment Or Discrimination. 10-7

Compelling Need and No Less Restrictive Means. 10-7

Causation. 10-8

Damage Awards. 10-9

II. Disparaging Remarks. 10-12

III. Courtesy. 10-13

IV. Rule Making. 10-15

The Overbreadth Doctrine. 10-15

The Vagueness Doctrine. 10-16

The “But For” Test 10-17

A Case Study. 10-17

V. Protected Union Speech. 10-22

Case Studies. 10-22

Criticism of Chief - “No Confidence” Vote. 10-26

Criticism of Department 10-26

VI. Whistleblowing. 10-27

Massachusetts Law.. 10-28

Retaliation. 10-28

Employer Liability. 10-29

Model Whistleblowing Notice. 10-29

What Is Whistleblowing?. 10-30

What Constitutes Retaliation?. 10-30

Complaints. 10-31

Chapter 11 - Sexual Harassment Investigations. 11-1

Historical Perspective. 11-1

II. Federal Statute. 11-2

III. State Statute. 11-2

IV. Eeoc Guidelines. 11-2

V. Prima Facie Case. 11-3

Protected Group. 11-4

Same Gender Harassment 11-4

“Unwelcome” Sexual Conduct 11-4

Quid Pro Quo. 11-5

Sexual Favoritism.. 11-5

Hostile Environment Cases. 11-6

Single Incidents. 11-8

Unwelcome Sexual Contact 11-8

Quid Pro Quo Cases. 11-8

Hostile Environment Cases. 11-8

Prior Consensual Sexual Relationship. 11-9

Assessing If Conduct Is Unwelcome. 11-9

Effect On Employment 11-10

Respondeat Superior. 11-11

Employer’s Knowledge. 11-11

Position of Harasser. 11-12

Form of Harassment 11-12

Quid Pro Quo Cases. 11-13

Hostile Work Environment Cases. 11-14

Co-Workers. 11-14

Individual Liability. 11-14

Non-Employees. 11-15

Employer Defenses. 11-15

Grievance Procedures. 11-15

Prompt Investigation and Discipline. 11-16

Other Legal Theories. 11-16

Workers’ Comp Defense. 11-17

Unemployment Benefits. 11-18

Union Remedies. 11-19

Special Litigation Issues. 11-19

Appropriate Discipline. 11-19

Retaliation. 11-20

Damage Awards. 11-20

Suits By Wrongly Accused Persons. 11-23

Sexual Harassment Training. 11-23

VI. Sample Policy. 11-24

VII. Definition of Sexual Harassment 11-25

VIII. Examples of Sexual Harassment 11-26

IX. Procedure. 11-27

Responsibilities of All Employees. 11-27

Sanctions. 11-27

Reporting Procedures. 11-27

Investigations. 11-28

Informal Proceedings. 11-28

Formal Proceedings. 11-28

Confidentiality. 11-28

Other Legal Remedies. 11-29

Chapter 12 - Conflict of Interest
Investigations
. 12-1

I. The Conflict of Interest Law.. 12-1

Bribes. 12-1

Gifts. 12-1

Private Financial Interests. 12-2

Unwarranted Privileges. 12-2

Improper Influences. 12-2

Confidential Information. 12-2

Outside Employment 12-2

II. Financial Disclosure. 12-2

Chapter 13 - Truthfulness. 13-1

I. Lying Prohibited. 13-1

Employment Applications. 13-2

II. Cooperation With Internal Investigations. 13-4

III. Disclosing Impeachment Information. 13-5

Exculpatory Evidence. 13-8

IV. Consequences For Non-Disclosure. 13-9

Timing of Disclosure. 13-15

 


1.      Sample
Policy & Procedure

 

As part of its manual on Policies & Procedures, the Municipal Police Institute, Inc. (MPI) included a sample section entitled “Internal Affairs”.  As with other sections of that manual, this was intended as a sample and not necessarily a model. 

Most departments in Massachusetts do not have even one officer assigned full-time to Internal Affairs (IA).  Often it is the chief, or perhaps a superior officer or detective chosen on an ad hoc basis, that must carry out any internal investigation of alleged officer misconduct.

 

The sample policy was intended to give most departments a starting point or a framework for developing a coherent and consistent approach to internal investigations.  Parts of the sample might fit well with one department and yet require modification for others.  Chiefs should use the sample as a starting point for developing an internal affairs and citizen complaint policy for their department.

 

This chapter reviews and slightly modifies the sample policy and procedure and includes comments and suggestions under the heading of “Practice Pointers”.  Chiefs should involve their staff, the union and municipal counsel in reviewing and adapting the sample for their department’s circumstances.  [Bracketed numbers throughout the Policy & Procedure refer to Accreditation Standards.]

 

I.  General Considerations and Guidelines

 

A relationship of trust and confidence between the employees of this police department and the citizens of the community is essential to the successful accomplishment of law enforcement objectives.  All police employees are expected to conduct themselves, whether on or off duty, in such a manner as to reflect favorably upon themselves and the department.  The consistently high quality of this standard of conduct establishes and maintains the reputation of the department and encourages the support of the community for police purposes and goals.

 

In larger departments, the Internal Affairs function will be handled by a specially designated Internal Affairs Section (or some similar name).  In smaller departments, this function may be delegated on an ad hoc basis to the Detective Bureau, an individual officer or even performed by the Chief.  For the purposes of this Policy and Procedure, the term Internal Affairs Section will refer to any of the foregoing as appropriate.  Likewise, the grammatical modifications should be inferred (such as the absence of an officer-in-charge) as a department’s situation warrants.

 

The Internal Affairs function is important for the maintenance of professional conduct in a law enforcement agency.  The integrity of the department depends on the personal integrity and discipline of each employee.  To a large degree, the public image of this department is determined by how well it responds to allegations of misconduct against the department or its officers.

The prevention of misconduct is one of the primary responsibilities of the Internal Affairs function.  It does this by responding to allegations of misconduct against the police department and its employees.  The Internal Affairs Section will be responsible for recording, registering, and controlling the investigation of complaints against employees; supervising and controlling the investigation of alleged misconduct within the department; and, maintaining the confidentiality of Internal Affairs investigations and records.  The Internal Affairs Section will ensure that the integrity of the department is maintained through an internal system where objectivity, fairness and justice are assured by intensive and impartial investigation and review.  By conducting a periodic analysis of misconduct, the Internal Affairs function helps to identify policy, training and supervisory practice that contribute to a climate in which misconduct occurs.

 

The responsibility for supervising, conducting, coordinating, and maintaining the Internal Affairs function of the department lies with the officer-in-charge of Internal Affairs.  All findings will be prepared in writing and presented to the Chief of Police.

 

Allegations of misconduct, even when unfounded, stigmatize the officer individually.  Unfortunately vindictive individuals know this and may file frivolous complaints to get back at officers whom they dislike.  This may adversely affect the officer’s career, his/her family and his/her ability to function most effectively as a member of the department.  The department’s community policing efforts may likewise be jeopardized.

 

Since an Internal Affairs investigation involves allegations against a member of the department, it is essential that the process not only be lawful, but, to the extent allowed by law, confidential as well.  This necessitates strict confidentiality and full adherence to procedure.

 

The objectives of an Internal Affairs investigation are:

1.         Protection of the public;

2.         Protection of the employee;

3.         Protection of the department;

4.         Removal of unfit personnel; and

5.         Correction of procedural and training problems.

 

All alleged or suspected violations of laws, ordinances, by-laws, department rules, regulations, policies, procedures, and orders (verbal or written), must be investigated according to the procedures outlined for each.  These include:

 

1.         Alleged violations reported to the department’s superior officers by other members of the department, or other governmental or law enforcement agencies, either orally or in writing;

2.         Alleged violations, observed or suspected, by department superior officers; and

3.         Citizens’ complaints of alleged police misconduct which are made in person, by letter, by telephone, or anonymously (includes prisoner complaints).

 

No complaint should be rejected solely because it is anonymous, as anonymous complaints can often be a valuable source of information and should be considered on their individual merits. Care must be taken, however, that department employees are not subjected to unjust, frivolous, or capricious complaints.

 

Practice Pointers

 

            The goal of delivering professional police services to a community is not easily achieved.  Building an agency on such foundations as fairness, ethics, integrity and professional service require a long-term commitment and constant vigilance.

 

            Chiefs committed to the community policing philosophy cannot overlook the essential role that internal affairs plays.  A department’s reputation, and a public perception of openness, are key elements in fostering the partnerships so vital to successful community policing.

 

            Citizens must believe that their complaints will be received, evaluated and acted upon fairly.  Likewise, officers are entitled to a process that ensures a fair investigation.  Their career, reputation, livelihood and psychological well-being can be affected adversely by anything less.

 

            A police department is, in many ways, a living entity.  It flourishes or withers, depending upon the care it receives.  Corruption is a consequence of not only bad actions by officers, but also a failure on the part of supervisors and a level of tolerance by the community.  Chiefs must set and enforce high ethical standards.  The investigation and correction of misconduct is the most effective way to preserve an agency’s integrity.

 

            In Massachusetts, generally only the larger cities and the State Police have officers assigned full-time to an internal affairs unit.  The vast majority of municipal police departments have fewer than 30 full-time officers.  This means that most citizen complaints, regardless of their seriousness, are investigated by individuals that may have little or no experience or at least formal training in conducting such investigations. 

 

The rules and procedures in the IA field are technical and change over time.  It is important to keep up to date on changes in the IA laws.  Mistakes can result in dismissal of disciplinary as well as criminal charges.  In addition, large civil damages awards are available to officers that are treated improperly during departmental investigations or disciplinary proceedings.

 

            In very small departments, it is likely that all IA investigations will be done by the chief.  This makes it essential that chiefs be familiar with their department’s Policy and Procedure on Internal Affairs.  Also, they must be sure to keep up to date on the laws governing interviews, evidence gathering and discipline.

 

            Wherever possible, even in small departments, another officer should be trained in internal affairs procedures.  This could prove helpful if the chief is away or temporarily unavailable.  It is also an excellent management training tool.  Likewise, it will raise the overall understanding of the need for IA and will lessen the “us vs. them” mentality that sometimes develops.

 

II.  Policy

 

It is the policy of this department to:

A.                 Investigate all complaints against the department or  a member of the department, regardless of the source of such complaints, through a regulated, fair, and impartial Internal Affairs Program;  [52.1.1]

B.                 Determine whether or not such complaints are valid; and

C.                 Take appropriate action.

 

III.  Procedures

 

                        Complaint Procedures

 

Complaint Report Form

 

a.         A standard complaint report form should be used to record all complaints of misconduct, mistreatment, or unethical practices against police department personnel, whether registered by a citizen, initiated from within the police department, or forwarded by another governmental agency.

b.                  The following information shall be included on the complaint report form:

 

i.                     Date and time of complaint report;

ii.                   Name, address, and telephone number of the     complainant;

 

iii.                  Name, address and telephone numbers of any witnesses to the reported incident;

 

iv.                 Name, rank, badge number (or description) of the employee against whom the complaint is made;

 

v.                   Date, time and location of the reported incident;

 

vi.                 Complainant’s description of the incident which resulted in the complaint;

 

vii.                Signature of complainant;

 

viii.              Signature of parent or guardian if complainant is under eighteen years of age; and

 

ix.                 Name, rank and signature of department employee receiving complaint report.

 

Practice Pointers

 

                        Receiving and Recording Complaints

 

a.         General Procedures

i.                     The officer-in-charge of the station at the time the complaint is made shall be responsible for the efficient receiving and complete recording of any complaint of police employee misconduct made by a citizen in person or received by telephone.

ii.                   Complainants shall not be required to return at another time, go to another location, prepare their own complaint form, swear under oath to the truthfulness of the complaint, submit to a polygraph or acknowledge that making a false complaint is a crime for which they could be prosecuted criminally or sued civilly.

iii.                  A patrol officer or dispatcher that is contacted by a complainant shall direct that persons to a supervisor.  Where required, a supervisor will be sent to meet in the field with such individual.  If there is no supervisor available, the person initially contacted shall attempt to secure sufficient information to complete the complaint form.  The form will be forwarded to a supervisor who shall follow-up as appropriate.

 

iv.                 The utmost courtesy and cooperation should be extended to all citizens registering complaints or otherwise inquiring about complaint procedure.

 

v.                   This initial contact between a complaining citizen and police authorities is a most important stage in the complaint process as the complainant is often tense, angry, and emotionally upset, and the potential for hostility is great.

 

iv.                 No person should be denied an opportunity to register a complaint, nor should any such person be directed to return or call back later.

 

Every complaint report form shall be given an identifying number, so that the processing of complaints can be carefully monitored.  This identifying number will be assigned by the officer-in-charge of Internal Affairs.

 

v.                   If the substance of the employee misconduct warrants it, the officer-in-charge may place the employee on administrative leave for the remainder of his/her shift pending notification of the Internal Affairs section and the Chief of Police.  The employee shall only be relieved from duty otherwise at the direction of the Chief of Police in accordance with statutory and collective bargaining provisions.  [52.1.8]

vi.                 Failure to record or to properly process a complaint as required by this Policy and Procedure shall be considered misconduct.

 

b.         In Person Complaints

 

i.          Citizens making complaints in person should be requested to read over their completed report, to make any necessary corrections or additions and to sign their complaint.

 

            Note:  Some citizens have difficulty in writing, may have limited reading skills, and may not be fluent in English.  Officers should assist those persons in preparing a complaint form.

 

ii.          If a complainant refuses to sign a complaint, a notation to that effect should be made on the complaint form.

 

iii.         If a complaint is intoxicated or appears to be under the influence of drugs, the complaint will still be received.  However, the complainant should be re-interviewed promptly after becoming sober.

 

iv.         Complaints from juveniles will be received.  However, prompt contact should be made with the juvenile’s parent(s) or guardian(s) after accepting such complaint.


 

c.                   Telephone Complaints

 

i.          Citizens making complaints by telephone should be informed that their signed complaint is requested; however, no telephone complaint should be refused or rejected because the complainant does not wish to sign a complaint form or because [s]he does not wish to be identified.  The call should be directed to the officer-in-charge of the station who shall fill out the complaint form based on the information received.

 

d.                  Complaints Received by Mail

 

i.          If a complaint of misconduct or mistreatment by a department employee is received by mail, the allegations shall be incorporated in a standard complaint form and the original communication attached thereto.

 

ii.          If the information so received is insufficient or incomplete, the complainant shall be contacted, if possible, and informed of the department complaint procedure and any necessary additional information obtained.

 

e.                  Departmental Complaints

 

i.          Formal departmental complaints of misconduct against a department employee shall be initiated by the preparation of a standard complaint report form.

 

f.                    Complaints by Prisoners or Arrestees

 

i.          Any prisoner or criminal defendant who alleges misconduct or mistreatment by a department employee shall be advised by the officer-in-charge of the station of his/her right to submit a complaint report form in the usual manner and such complaints should be investigated and processed in the same manner as other citizen complaints.  [However, in such cases a signed affidavit setting out the specific basis for the complaint, is required. – optional]

 

g.                  Complaints from Governmental Agencies

 

i.          When information is received or obtained from other governmental agencies alleging specific acts of misconduct against a department employee, this information shall be recorded on a standard complaint report form and an investigation initiated in the usual manner.

 

h.                  Street Complaints

 

i.          If an officer on the street is approached by a citizen regarding a complaint of alleged misconduct against an employee of the police department, the officer shall inform such person that his/her complaint should be directed to the officer-in-charge of the station.

 

i.                    Verification of Receipt

 

i.          Every person making a complaint against a department employee shall receive a copy of his/her complaint to serve as a receipt verifying that such complaint has been received.  [52.1.5(a)]

 

ii.          When a complaint is made in person, the officer receiving the complaint will ensure that the complainant receives a copy of his/her complaint to serve as a written verification that the complaint has been received.

 

iii.         When a complaint is received over the telephone or through the mail, the officer-in-charge of Internal Affairs shall be responsible to ensure that the complainant is sent a copy of his/her complaint to serve as a written verification that the complaint has been received.

 

iv.         The officer-in-charge of Internal Affairs should send a letter to all persons outside the department that file a complaint.  This initial letter should confirm receipt of the complaint and provide the control number as well as the investigating officer’s name and phone number.  The letter should indicate that the complainant should expect to be contacted by the investigator and tell the person that he or she will be notified of the final outcome of the investigation.


 

Practice Pointers

 

One of the most frequent objections raised by unions and individual officers is against anonymous or unsigned complaints.  Chiefs should address these concerns openly.  Officers should be taught at the academy and during in-service community policing courses about the importance of accepting such citizen complaints.  For example, an agency’s reputation and ability to engender community confidence can be affected aversely where a department refuses to investigate unsigned complaints.  The fact that some citizens may not be comfortable identifying themselves or signing a complaint does not mean the issue is not valid.  The only exception, when it comes to investigating unsigned complaints, might be where the complainant is a criminal defendant.  There the courts have encouraged departments to require the signing of a sworn affidavit, setting out the basis of the complainant’s allegations.  This might help avoid wasting time investigating baseless complaints.  The courts recognize that some defendants might file frivolous complaints simply to have the department provide them with a free investigation to help in their defense of the criminal charges.

 

One of the most frequent objections . . . (Some of the resistance to anonymous, unsigned, or frivolous complaints can be reduced by establishing a system at complaint intake, which reviews the nature of the information included in the complaint control form.  This review is based on a decision by chiefs to establish criteria that when met will trigger an IA investigation.  Failure to meet these criteria will result in notification to the complainant that the complaint will not generate an investigation.

 

Suggested criteria may include that the allegations must at a minimum contain a factual basis and describe behavior, which amounts to misconduct.  The review must include a study of all documentary, dispatch and other departmental records memorializing the incident from which the complaint was generated.  In larger departments the IA Commander should conduct this review.  In departments lacking a dedicated IA staff the Chief may conduct this review.  The commander should forward his/her findings to the Chief with a reference to the specific facts leading to the recommendations to classify the complaint as an allegation not subject to investigation.  These “allegations” should be maintained as a separate file for consideration within the context of an officer’s record.

 

Certainly officers appreciate the value of anonymous tips in drug investigations or other areas of law enforcement.  They also recognize that occasionally it is a procedure used by officers to point out misconduct without identifying themselves.

 

Chiefs should be sure that the public is aware that, while not encouraged, the department will investigate even anonymous complaints.

 

Officers of all ranks should be reminded of the department’s procedures for receiving complaints.  Citizens attempting to make a complaint should not be told to return during certain hours, or to go to another location or facility.

 

                        Investigative Procedures

 

A.  Categories of Complaints

 

a.                   The department has established guidelines regarding which categories of complaints will be handled and investigated by the Internal Affairs Section and which by a shift supervisor, as a part of routine discipline. 

 

b.                  The criteria for determining the categories of complaints to be investigated by Internal Affairs include, but are not limited to, allegations of:  [52.1.1.(b)]

 

i.          Corruption;

ii.          Brutality;

iii.         Use of excessive force;

iv.                 Violation of civil rights;

v.                   Any firearm discharge which results in either property damage or physical injury;

vi.                 Criminal misconduct; and

vi.         Any other matter as directed by the Chief.

 

c.         Criteria for the assignment of an investigation to a shift supervisor or officer-in-charge of the station may include, but are not limited to such offenses as:  [52.1.1(a)]

 

i.          Alleged rudeness;

i.                     Tardiness;

ii.                   Minor cases of rule violations without adverse consequences such as neglect of duty, failure to supervise, or procedural violations; and

iii.                  Minor cases of insubordination.

 

d.         Reports of investigations performed by shift supervisors shall be forwarded and reviewed by the Internal Affairs Section.  [52.1.1(c)]

 

Practice Pointers

 

Chiefs should decide whether this two-tiered system of categorizing complaints is appropriate for their department.  There is a need to document all complaints.  Failure to do so may expose the chief and municipality to civil liability.  It may also result in a failure to detect and respond appropriately to a pattern of misconduct.  On the other hand, it may be unfair to officers to categorize all complaints alike.  Allegations of rudeness during a traffic stop, even if true and recurring, are distinguishable from corruption or criminal conduct.

 

Some departments record all levels of complaints the same, but assign them to different areas for investigation.  More serious allegations are handled by IA personnel, less serious ones by shift supervisors, for example.  This is the approach taken by the sample policy.

 

Another approach is to categorize some complaints as “formal” and others as “informal”.  This may confuse the public and could trivialize parts of the process.  All allegations that reach the level of a complaint should be treated with some degree of formality and consistency.  This will avoid confusion and help assure uniformity in processing and resolving the matters.

 

 

2.         Immediate Resolution of a Complaint

 

a.         In some cases a complaint can be resolved to the complainant’s satisfaction at the time by the shift supervisor or officer-in-charge of the station, in which case this fact should be reported in writing by the shift supervisor or officer-in-charge of the station and, if possible, acknowledged in writing by the complainant.

 

b.         This immediate resolution can often be accomplished if the incident is clearly not of a serious nature, or arises from a misunderstanding or lack of knowledge of the law or of the limitation of a police officer’s authority.

 

c.         Under no circumstances, however, will a justifiable complaint be refused, delayed, or otherwise rejected in this manner.

 

Practice Pointers

 

Officers may be able to resolve some minor “complaints” simply by explaining the law or department policy to an inquiring citizen.  However, caution must be exercised not to intimidate or unduly dissuade a citizen from filing a legitimate complaint.  This is a matter for training and should involve periodic efforts by supervisors to assure compliance.  Where it appears that the policy is not being followed, it may be necessary to direct officers to refer such minor complaints to a supervisor.

 

Instituting a requirement that only supervisors receive complaints may obviate the need for officers to be monitored in efforts to resolve complaints at intake.  A block addressing this circumstance should be included on the department’s Complaint Control Form.  Additionally, the form should provide block for the signature of the complainant indicating resolution.

 

                        Investigation of Complaints

 

Preliminary Investigations

 

a.         The officer-in-charge, or the supervisor on duty when a complaint is made contemporaneously with the alleged incident shall conduct or arrange for a preliminary investigation.  Where the allegations are serious, especially those involving criminal activity, or the issues are complex, the Internal Affairs section should be contacted immediately for advice and possible response.

 

The preliminary investigation shall normally include, but not be limited to:

 

i.                     Interview the complainant and any witnesses present or readily available.

ii.                   Identify or eliminate all involved police employees, if possible.  This can be done using communication tapes/records, watch line-ups, car assignments, employee photographs, and immediate physical viewing if the allegation involves an on-duty employee within the supervisor’s area of assignment.

iii.                  If warranted by the allegations, obtain photographs and/or chemical tests of accused employees.

iv.                 Record all personal information regarding the complainant and any witnesses including driver’s license and Social Security numbers.

v.                   Make a written record of the substance of the interviews, if not tape recorded.

vi.                 Ensure that the physical evidence is preserved or, at least, photographed.

vii.                If injuries are obvious or alleged, ensure that medical treatment is provided.  Remember that ruling out inquiries of both civilians and employees is also important.  Photographs at this stage are very valuable.  Interview hospital personnel at this stage as the incident and treatment may be fresher in their minds.  Obtain a medical release from the complainant and any witnesses who may also have been injured.

viii.              Collect all documents regarding the incident.  It is easier to preserve the communications tapes at this stage of the investigation than attempt to hunt them down later.  This is also true of computer-aided dispatch printouts.

ix.                 The supervisor conducting the preliminary investigation should indicate on the Personnel Complaint Form that the results of this investigation are available and where located or these results should be forwarded to IAU with the Personnel Complaint Form.

x.                   Supervisors should not have accused employees prepare a special and separate report regarding the incident or a response to the complaint, other than those normally prepared such as the incident, offense or arrest report.

 

Practice Pointers

 

Throughout an investigation, investigators should proceed with an investigative mindset that protects the integrity of a potential criminal investigation in all cases.  Some experts recommend considering all employee witnesses as “subject” employees until all the facts are known.  If there are insufficient facts to make a determination whether to proceed administratively or as a criminal investigation, the matter should be reviewed and coordinated with the prosecutor’s office.  In these cases, the investigator should begin on the “outer edges” and work inward toward the subject employee protecting the integrity of the criminal investigation.  Under these conditions, any decision to compel a witness employee to provide information should first be reviewed with a prosecutor.

 

b.         The officer-in-charge of Internal Affairs investigations shall be responsible for conducting Internal Affairs investigations and shall report directly to the Chief of Police.  [52.1.2]

 

i.          The affected employee shall be provided a written statement of the allegations against him/her (Notification of Charges/Allegations Form) unless the Chief determines that disclosure might jeopardize an investigation.  [52.1.6]

 

Note:  If the employee was not notified by order of the Chief, [s]he must receive written notification prior to any interrogation or administrative or criminal hearing.

 

ii.          The officer-in-charge of Internal Affairs investigations shall be responsible for providing the Chief of Police with status reports on the progress of the investigation every seven (7) days.  These reports shall contain all pertinent information relating to the progress of the investigation.

 

iii.         If the substance of a complaint, if proven, would be of grave nature or is an accusation of a serious crime and immediate action is deemed necessary, the Chief, or the superior officer designated by the Chief, shall be notified forthwith in order that an investigation can be initiated without delay.  [52.1.3]

 

iv.         Before a department employee is questioned or directed to submit a report regarding a complaint, and unless the Chief determines that disclosure might jeopardize the investigation, such employee shall be issued a written statement of the allegations and in either case the employee will be advised of his/her rights and responsibilities relative to the investigation. [52.1.6]

 

c.         Any Internal Affairs investigation must be commenced immediately upon receipt of the complaint and must be completed within thirty (30) days. [52.1.4]

 

i.          If extenuating circumstances preclude completion within thirty (30) days, the officer-in-charge of Internal Affairs shall request an extension from the Chief of Police in writing, and provide written notification to the employee (if previously notified of the complaint and investigation) and complainant of the delay.

 

ii.          If the investigation is not completed within thirty days, the complainant shall be provided a progress report every thirty days until the completion of the investigation.  [52.1.5(b)]

 

iii.         The officer-in-charge of Internal Affairs will submit a monthly report to the chief on the status of all open files.

 

d.         An internal administrative investigation may inquire into a department employee’s on-duty or off-duty conduct if such inquiry is reasonably and directly related to the employee’s performance of duty, if such conduct affects the employee’s fitness or ability to continue in the police service, or reflects discredit on the department.

 

e.         Criminal Proceedings: If it is determined, generally after a preliminary investigation, that allegations against a department employee could result in a criminal prosecution, the accused employee must be granted all applicable constitutional and statutory rights.  The chief shall be notified immediately by the officer-in-charge of the station when in appears that an officer has engaged in criminal activity.

 

i.          Prior to being questioned regarding alleged personal involvement in criminal activity, a department employee shall be given the Miranda warnings, including the right to have an attorney present during any such questioning, prior to custodial interrogation.

 

ii.          After Miranda warnings have been given, any voluntary statement made thereafter could be admissible in a criminal proceeding, and it may otherwise be used for departmental disciplinary purposes.

 

iii.         A department employee who is being questioned about alleged personal involvement in criminal activity which could result in a criminal prosecution, cannot be discharged or otherwise penalized, solely for invoking the right to remain silent as guaranteed by the Fifth Amendment or for refusing to sign a waiver of immunity. [1]  However, as discussed below, an employee may be compelled to answer questions narrowly drawn and related to his/her on or off duty conduct or fitness for duty, and may be disciplined (including discharge) for failure to answer truthfully.

 

Practice Pointers

 

            Chiefs must determine which criminal allegations will be investigated by their department and which by other agencies.  Normally, the department’s detectives would be assigned to investigate a crime that occurred in the department’s jurisdiction (city or town).  In high profile or more complex cases, the involvement of the State Police or appropriate federal law enforcement agency is often advisable.  This also avoids allegations of a conflict of interest or a cover-up.

 

            In most cases, the non-criminal departmental administrative investigation should proceed simultaneously with criminal investigation.  If the chief concludes that the administrative investigation would interfere with the criminal one, the former could be delayed.  Simply because the prosecutor would prefer that the criminal case be concluded before the administrative investigation or disciplinary action take place is not usually a sufficient reason for delaying.

            The criminal investigation should be concluded first since anything uncovered there may be used against the officer in a disciplinary procedure.  It is essential that the criminal investigation not be derailed unintentionally by compelling an officer to answer questions after he or she invokes their right to remain silent.  Transactional immunity precludes prosecuting an officer criminally for matters that are the subject of such a compelled statement.

 

A distinction must be drawn between the administrative investigation of criminal conduct and a criminal investigation that may lead to the prosecution of department members.  Parallel investigations can be successful so long as all participants understand the pitfalls that may arise if the particular roles played by investigators are forgotten.  IA investigators must be aware of, and pay particular heed to the “Chinese Wall” that prohibits the sharing of information gleaned from compelled statements with criminal investigators.  Training designed to provide IA staff with a complete understanding of the law in this area is essential

 

f.          Departmental Disciplinary Action: If it is determined as a result of a preliminary investigation, that allegations made against a department employee could result in departmental disciplinary action, the accused employee is entitled to a fair and objective investigation and resolution of the charges made.

 

i.          All department employees, when requested by the Chief, or by a superior officer designated by the Chief, must respond fully and truthfully to all questions regarding their performance of official duties or their off-duty misconduct which affects their fitness or ability to remain in the police service, and any failure to answer completely and truthfully to such inquires may be punished by appropriate disciplinary action, including dismissal from the department.[2]

 

(a)        The official conducting the interrogation must, at the time of the interrogation, specify if the employee or his/her counsel or representative asks, the precise repercussions (i.e., suspension, discharge, or the exact form of discipline) that will result if the officer fails to respond.[3]

 

ii.          When a department employee, after declining to do so voluntarily by invoking the privilege against self-incrimination, is ordered to submit a report or to answer questions under a threat of the penalty of discipline, that employee shall receive transactional immunity from criminal prosecution for any offenses to which the compelled testimony relates.

 

(a)        The Supreme Judicial Court has held that Article 12 of the Massachusetts Declaration of Rights requires “transactional” immunity to supplant the privilege against self-incrimination when a public employee is being compelled to answer questions concerning possible criminal activities connected with his or her employment.  Transactional immunity grants “immunity from prosecution for offenses to which compelled testimony relates.”[4]

 

iii.                  If the questions specifically, directly, and narrowly relate to the employee’s performance of official duties or his/her off-duty conduct which affects his/her fitness or ability to remain in the police service, and if such employee is informed that [s]he will receive transactional immunity from criminal prosecution, [s]he must answer or face disciplinary action, including dismissal from the department, for refusing to answer such questions.

 

iv.         If an employee so insists, the Chief shall secure a written grant of transactional immunity from the Attorney General’s Office.  An employee may decline to answer questions in a criminal investigation until such documentation is received.

 

g.         Double Jeopardy: No double jeopardy exists when a department employee is found not guilty in court of criminal charges and is then found guilty of departmental charges after a disciplinary hearing, as the department charges are administrative in nature and can be sustained by a “preponderance of the evidence” rather than the criminal court standard of “beyond a reasonable doubt.”

 

h.         When a reasonable person in the officer’s situation might reasonably believe that their answers could lead to discipline, they are entitled to have a union “buddy” or representative present, so long as the inquiry is not delayed unreasonably.  In conducting internal administrative investigations, in the absence of a requirement in a collective bargaining agreement, there is no legal obligation for the police department to provide department employees with an opportunity to consult with an attorney before being questioned on work-related matters.[5]  However, a request for an attorney to be present will be granted if the investigation is not thereby unduly delayed.

 

i.          Except in unusual situations, any interview or questioning should take place during the employee’s regular duty hours.

 

ii.          Any interview or questioning should not be prolonged without reasonable rest periods and the opportunity for meals and such other personal necessities as are reasonably required.

 

iii.         A department employee shall not be improperly harassed or threatened during this period of questioning.

 

i.          In conducting investigations of alleged employee misconduct, all appropriate investigative techniques and methods should be employed, consistent with legal requirements and all necessary concern for the individual rights of the accused employee.

 

i.          An internal administrative investigation should be conducted with the same degree of professional competence as is devoted to a criminal investigation.

 

ii.          Upon orders of the Chief of Police or his/her designee, an employee may be required to submit to a medical or laboratory examination, at the department’s expense.  This examination must be specifically directed and narrowly related to a particular internal affairs investigation being conducted by the department.  [52.1.7(a)]

 

j.          Identification:  A police officer may also be required to be photographed and can be compelled to stand in a lineup for identification in connection with an administrative investigation, and a refusal can be the basis for an additional disciplinary charge of refusal to obey a lawful order.  Such a lineup should be fairly constructed and not be unfairly suggestive and should not be used for an administrative investigation where criminal charges are contemplated.  [52.1.7(b)(c)]

 

k.         Searches

i.          A police officer’s personal property, including his/her home, car and other property, is protected from unreasonable search and seizure under the Massachusetts Constitution, and it is possible that any evidence illegally obtained especially by officers of this department, may not be used as evidence in an administrative proceeding.[6]  Evidence obtained by other police agencies, however, is generally admissible in departmental disciplinary proceedings.

 

ii.          Department property furnished to the officer, such as desks, lockers, or vehicles, since it is clearly understood in advance that an officer has “no expectation of privacy”, may be searched without a warrant.

 

l.          Financial Disclosure: A police officer may be compelled to submit a financial disclosure statement as part of an internal affairs investigation provided such statement is material to the investigation being conducted.[7]  [52.1.7(d)]

 

m.        Under the provisions of G.L. c. 149, s. 19B, police officers may be required to submit to a polygraph or lie detector test in connection with an internal administrative investigation if such test is conducted by a law enforcement agency in the course of a departmental investigation of criminal activity, and under such circumstances, officers may face disciplinary action for refusal.[8] [52.1.7(e)]

 

n.         Recording Interviews: If possible, the complete interview with an employee in all internal administrative investigations should be recorded electronically or by a qualified stenographer.

 

o.         Withdrawn Complaints: If during the progress of an internal investigation, the complainant indicates a desire to withdraw the complaint, every effort should be made to ensure that this decision is made voluntarily, and a signed statement to this effect should be obtained from the complainant.

 

i.          Even though a complaint is withdrawn, a full report of the investigation to date should be prepared for the Chief and his/her approval obtained for the termination or continuation of the investigation.

 

[alternative] i. In all cases, regardless of whether the complaint is withdrawn or the officer resigns in the midst of the investigation, the investigation ordinarily will continue until it is complete and a final disposition is reached.

 

ii.          Any attempt, directly or indirectly, on the part of a department employee to obstruct any internal investigation or to threaten or persuade any complainant to withdraw or abandon his/her complaint, is prohibited and will be treated most severely.

 

            Report of Investigation  [52.1.9]

 

1.         At the conclusion of any administrative investigation, a full

written report shall be prepared for submission to the Chief, which shall include the following:  [52.1.3]

 

A.                 The original complaint report;

B.                 Any additional statements taken from the complainant or statements obtained from witnesses;

C.                 Any statements made or reports submitted by the department employee under investigation;

D.                 A summary of all evidence gathered;

E.                  Any mitigating circumstances; and

F.                  An evaluation of the complaint and a definitive statement as to whether the charges made by the complainant were:

 

i.          Sustained: The complaint was valid and supported by sufficient evidence;

 

ii.          Not Sustained:  There was inadequate or insufficient evidence to either prove or disprove the complaint;

 

iii.         Unfounded:  The allegations were baseless and without foundation; or

 

iv.                 Exonerated:  The complaint was unjustified or unwarranted as the actions of the accused department employee were in compliance with law or in accordance with department policy and procedure.

 

v.                   [Optional]  Filed:  The case is placed on file with no further action.

 

            Note:  Depending on the size of the department, it is better to ask the investigator to limit his or her report to a collection of the facts.  It is preferable to leave the determination or adjudication of violations to a supervisor and the imposition of appropriate discipline to the chief.

 

1.               Upon receipt of the report of investigation, the Chief should take further action as is necessary based upon finding in the particular case.

 

2.               The subject of the investigation shall be promptly notified of the final results of the investigation. If the department employee is cleared of the charges made, [s]he shall be officially exonerated in writing.

 

3.               Every person who has filed a complaint against an employee shall be notified promptly as to the final results of the investigation, personally if possible, or otherwise by mail.  [52.1.5(c)]

 

a.         If a disciplinary hearing is deemed necessary, the complainant shall be notified that his/her testimony will be required at that time.

 

Practice Pointers

 

The result of an internal investigation should be a report.  Depending upon what personnel are assigned to conduct the investigation, the report may consist solely of a collection of evidence or may also include conclusions and recommendations.

 

While there are differing opinions, it appears to be preferable to have certain persons assigned solely to investigation.  Typically, first line supervisors might be asked to look in to the more routine types of complaints.  More seasoned IA investigators or detectives might be assigned to more serious or complex cases.  They handle the assignment very much like other detective work.  Witnesses are interviewed, photos are taken, evidence is gathered, etc.  Their function is limited to gathering the facts.

 

Experience in some departments has shown that leaving such persons free to focus on fact-gathering has several benefits.  There is less likelihood that bias, or even the perception of bias, will creep into the process.  Also, such investigators are not distracted early on in the process by focusing on the final outcome.  The likelihood that such persons might have to work with, or might be in the same bargaining unit as, the subject officer also favor limiting the scope of the assignment.

 

Those higher in the chain of command should be the ones that must decide whether and what rules or laws were violated.  They, or the chief, should be the ones to make recommendations.  An officer’s record and length of service, as well as the way the department has handled similar cases in the past, all factor into the final disposition.

 

In smaller departments, there is less ability to divide the investigation from the conclusions and recommendation aspects.  All three tasks may even fall to the chief in such cases.  Care should be taken to avoid the appearance of being prejudiced or inconsistent.  When one person is forced to be “judge, jury and executioner”, there may be a perception of conflict.  This can be exacerbated when the chief is also the one that investigates the case.  When faced with a serious charge, chiefs in smaller departments should consider asking an outside agency for investigative assistance.  The CPAC unit of State Police detectives assigned to the local DA’s office is often a good choice.  Similarly, a detective from a neighboring department is worth considering in appropriate circumstances.  In unusual cases, the IA unit of the State Police (Headquarters) has been asked by chiefs to conduct more sensitive or complex investigations.

 

Lastly, even in larger departments, the decision of what full-time IA investigators are assigned is worth reviewing periodically.  Chiefs should avoid leaving the entire task, from investigation through conclusions and recommendation, to IA personnel.  While there are exceptions, even the most experienced IA investigators should be limited to no more than reaching conclusions about whether rules or statutes were violated.  The determination of what action is appropriate is one better left to management, and, ultimately, the chief.

 

Regardless of which persons conduct IA investigations, chiefs should be sure that they are properly trained and familiar with the department’s Internal Affairs Policy and Procedure.  The ability to recognize the pitfalls of improper evidence gathering, and tainting or even dooming criminal cases, is critical.

 

 

                        Confidentiality of Internal Affairs

 

1.                  In order to ensure that the individual rights of officers who are the subject of an Internal Affairs investigation are protected, all materials relevant to that investigation shall be kept strictly confidential and under lock and key by the Officer-in-Charge of Internal Affairs.  [52.1.10]

 

2.                  Internal Affairs investigators should note in their reports any instances where witnesses refused or were reluctant to speak with them unless they were assured that their statements would be kept confidential, at least to the extent legally allowed.

 

3.                  No statement regarding an Internal Affairs investigation will be made or issued to the public or media unless the charges have been sustained and action has been taken or initiated against the officer or employee.

 

4.                  A copy of the completed investigation summary should be kept in a summary file in the office of the Chief of Police and will be the only source of public information about citizen complaints, other than the statistical log which may be prepared and published annually by the Chief of Police.

 

                        Liaison with District Attorney

 

1.         Any Internal Affairs investigation which may, or does, result in criminal charges being brought against an officer shall require the District Attorney’s or Attorney General’s office to be appraised of the case for the purpose of advising on legal issues and ultimate prosecution, if necessary.  Contact shall be made through the officer-in-charge of Internal Affairs.

 

                        Annual Report

 

1.         The Chief of Police should publish, in the Department’s Annual

Report, a summary of complaint statistics (both citizen complaints and internal affairs), indicating the number of complaints filed (by type of complaint), and the outcome of the investigations undertaken (by outcome classification).  In addition, the Annual Report should outline the procedures the public may follow in filing a complaint.  [52.1.11, 52.1.12]

 


2 - Interrogating Employees

 

Police officers may be questioned during the course of a departmental investigation.  Where they answer questions voluntarily, their statements may be used in disciplinary as well as criminal proceedings.  They may, like any other citizen, invoke their right not to incriminate themselves.  Even if they do so, however, officers may be ordered to answer certain questions related to their duties or fitness for duty.  Such compelled statements, given under threat of job sanctions, may still be used in departmental disciplinary actions.  However, in Massachusetts, those officers receive immunity from criminal prosecution for matters covered by such compulsory interrogation.

 

            A department has no obligation to ask questions of an officer that is the subject of an internal affairs investigation.  Should disciplinary action be planned, however, an officer must be given a pre-disciplinary hearing or opportunity to make a statement.  An employee would be faced with a choice which, while troublesome, would not constitute a violation of the officer’s constitutional rights.[9]  Alternatively, the officer could speak, but any statements could be used against him or her in a criminal proceeding.

 

IV.  The Rules           

 

                        Federal Rule

 

The Fifth Amendment to the United States Constitution prohibits persons from being compelled to be a witness against themselves.  Public employees that make statements under threat of discharge or serious job sanctions cannot have such statements, or the fruits of such statements, used against them in a criminal proceeding.  This is what is referred to as use or derivative use immunity.

 

                        Massachusetts Rule

 

In Massachusetts, our Constitution requires more.  Police officers that are compelled to make a statement under threat of discharge or serious job sanctions are entitled to immunity from prosecution for the entire transaction which the interrogation involves.  This is called transactional immunity.

 

V.  Federal Cases

 

Although the breadth of immunity is wider in Massachusetts, many of the principles are similar under federal and state law in the area of compelled employee interviews.  Therefore, a review of relevant federal case law is helpful.

 

The U.S. Supreme Court ruled, in the 1967 case of Garrity v. New Jersey, that it was a violation of the Fifth Amendment to order police officers to answer questions and to use their incriminating statements in a criminal prosecution.[10]  In that case, officers were ordered to answer questions during a ticket-fixing investigation.  They were told that failure to respond would result in a termination.  The officers’ answers were used to convict them of criminal offenses.

 

The court ruled that neither such compelled statements, nor the “fruits” of such statements, could be used against the officers in a subsequent criminal prosecution.  This is referred to as “use” and “derivative use” immunity.

 

The following year the U.S. Supreme Court issued a decision in a similar case, Gardner v. Broderick[11].  There the court reversed the discharge of an officer that was fired for refusing to waive the constitutional guaranty against self-incrimination.

 

In Gardner, the court noted that it would be permissible to order an officer, on threat of dismissal, “to answer questions specifically, directly, and narrowly relating to the performance of his official duties, without being required to waive his immunity with respect to the use of his answers or the fruits thereof in a criminal prosecution of himself. . .”

 

VI.  Massachusetts Cases

 

The Massachusetts Supreme Judicial Court (SJC) has interpreted this state’s constitution as requiring more than the U.S. Constitution when public employees are compelled to answer questions under threat of loss of their job or other serious sanctions when their responses could incriminate them criminally.  In its 1988 decision in Carney v. City of Springfield, the SJC ruled that transactional (not simply use or derivative use) immunity is required whenever a police officer (or other government worker) is compelled to answer potentially incriminating questions.[12]

 

VII.  Other States’ Cases

 

Virtually all states, except Massachusetts, adhere to the federal rule and require only use (or derivative use) immunity when public employees are compelled to answer potentially incriminating questions under threat of job loss or serious employment sanctions.

 

The following are examples of cases from other states:

 

·        Federal appeals court upholds compulsory questioning of police officers, demanded by their superiors as part of an administrative investigation of potentially criminal conduct.[13]

·        Fact that police officer had been ordered to give a statement to internal affairs investigators did not immunize him from a parallel criminal prosecution. Officer was entitled to use immunity, not transactional immunity.[14]

·        Appeals court rejects claim that dept. must grant transactional immunity to employee questioned about criminal conduct.[15]

·        U.S. Supreme Court upholds a limited grant of immunity to witnesses compelled to incriminate themselves (testimonial immunity); transactional immunity not constitutionally required.[16]

 

VIII.  COMPELLING ANSWERS

 

An employee may be disciplined (including dismissal[17]) for refusing to answer properly framed questions.  In order to compel an officer to answer questions during an internal affairs investigation, several steps are required.  The officer must be ordered to answer questions under threat of discipline (job loss or at least very serious discipline).  The questions asked must be specifically, directly and narrowly related to the officer’s duties or fitness for duty.  Also, some courts require that the officer must be advised that there will be no criminal prosecution for the subjects involved in the questioning.

 

Note:  Off-duty officers, including those on leave or suspension (and even the union president[18]) can still be ordered to report for IA questioning.

 

                        Threat of Discipline

 

The amount of discipline threatened must be serious in order to implicate transactional immunity.  In addressing the required level of threatened discipline sufficient under Garrity (for use or derivative use immunity), various federal courts have required that officers face a threat of discharge or at least a “substantial economic penalty”.[19]  For example, simply threatening to transfer an officer, or to impose a short suspension, would not suffice.

 

An employer must specify the precise repercussions (e.g. discharge, lengthy suspension, etc.) that will result from a failure to respond.[20]  The SJC made a great deal out of the failure of the Springfield Deputy Chief to be more specific when explaining what level of discipline would result from the officer’s refusal to answer questions.  When repeatedly asked to specify the consequences, the Deputy responded simply “departmental disciplinary proceedings”.  This the court found inadequate.

 

                        Limited Scope of Questions

 

Echoing the Supreme Court’s wording in Gardner, the SJC in Broderick v. Police Comm’r of Boston, specified that questions must be narrowly drawn and specifically related to an officer’s job or fitness for duty.[21]

 

A similar requirement has been imposed in cases from other jurisdictions:

 

·        Fire chief could not require firefighter to answer questions about complaint of off-duty sexual contact with 12 year old.[22]

·        State trooper given $50,000 and reinstatement; improperly terminated for refusing polygraph questions pertaining to his sex life.[23]

·        Department’s inquiry into officer’s off-duty relationship with female violated his “zone of privacy”; refusal to answer questions justified.[24]

·        Failure to provide list of friends at alleged drug parties was insubordination; discharge not an excessive penalty.[25]

·        Scope of questioning limited to official duties by New York Court.[26]

·        Tennessee high court reinstates captain discharged for failure to answer questions unrelated to duties.[27]

·        Department may continue to question accused employee after charges are filed.[28]

·        Union president, on leave, was still required to report to internal affairs office to answer questions.[29]

·        Employee must answer job-related questions or forfeit employment; no Fifth Amendment privileges applicable to interrogation, but answers not admissible in a criminal prosecution.[30] 

 

                        Advised of Immunity

 

In Massachusetts, before an officer may be compelled to answer potentially incriminating questions, he or she must receive an adequate assurance of immunity from criminal prosecution.  This is the conclusion reached in Carney and echoed in two other related cases involving the Springfield Police department decided at the same time.[31]  An employee may insist upon a written grant of immunity before he or she may be compelled to answer potentially incriminating questions.

 

The decisions in other states do not always require that officers be so advised:

 

·        NC Supreme Court holds that an employer is not required to warn an employee that his answers to a disciplinary interview are not admissible in a criminal prosecution.  Employee was lawfully terminated for noncooperation, despite the fact the admonition failed to mention use immunity.[32]

·        “Garrity” rule upheld in Texas; reliance on Harris v. New York misplaced. Accused employee must answer relevant questions or be fired.[33]

·        “Garrity” warnings must be given before disciplining an employee for failure to answer a supervisor’s questions.[34]

·        Missouri court upholds “Garrity” warnings.[35]

·        Officers may take Fifth Amendment in criminal case where they are merely witnesses; only department can give Garrity immunity.[36]

 

IX.  Immunity

 

                        Sources of Immunity

 

Immunity under Massachusetts law can result from a variety of sources.  Only a Judge in the Supreme Judicial Court, Appeals Court or Superior Court in Massachusetts has the statutory authority to give an express grant of immunity.[37]  (see “Court Granted Immunity,” below.)  However, court decisions in this state and elsewhere have enforced promises of immunity given by other government officials.  If an employee insists, however, in Massachusetts, a written grant of immunity from the Attorney General must be secured before an officer is compelled to answer potentially incriminating questions.

 

In Massachusetts, an officer may refuse to answer if all that is provided is a letter from a single District Attorney (D.A.) promising not to prosecute an officer for matters involved in an internal investigation.  This was the conclusion reached by the Supreme Judicial Court in its 1995 decision in Baglioni v. Chief of Police of Salem.[38]  Since the D.A. did not have the ability to grant statewide immunity, the chief would either have to secure similar commitments from all the other District Attorneys or one from the Attorney General.

 

Federal courts and state courts elsewhere interpreting Garrity are split over whether an employee must be given an actual guaranty of immunity before an employer may compel responses.  Some courts find that there is no need for such affirmative guaranties since use or derivative use immunity attaches automatically in compelled response situations.[39]  Most courts, however, hold that whenever questioning could possibly lead to criminal charges, an employer must give an affirmative guarantee of immunity and warn the officer that failure to answer will subject the officer to discipline for insubordination (discharge or serious job sanctions).[40]

 

Practice Pointers

 

It is unlikely that Massachusetts Courts would find that immunity attached simply because an officer was ordered to submit a report or to answer a question and provided an incriminatory response.  However, to avoid problems in this area, all superior officers should be made aware of the law governing immunity for completed statements.  They should be instructed never to make assurances of immunity unless explicitly told to do so by the chief.

 

                        Court-Granted Immunity

 

In Massachusetts, G.L. c. 233, §§ 20C – 20H govern the procedure, scope, implications and enforcement of judicially-granted immunity.  The following is a summary of the provisions of that section.

 

§ 20C Immunity from Prosecution; Privilege Against Self-Incrimination

 

A witness may not refuse to produce documents or evidence, nor refuse to testify on the grounds of self-incrimination before a grand jury or in a criminal procedure, in the Superior, Appeals or Supreme Judicial Court, if he or she has been granted (transactional) immunity by a justice of the Supreme Judicial, Appeals or Superior Court.

 

§ 20D Crimes Subject to Immunity

 

More than forty crimes or categories of offenses are eligible for a judicial grant of immunity.

 

§ 20E Application for Immunity

 

The Attorney General or any District Attorney may apply for immunity.  A hearing is required.  The witness must have refused, or be likely to refuse, to produce evidence or testify on the grounds of self-incrimination.  The grant of immunity is in writing and becomes effective once the witness invokes the privilege against self-incrimination.

 

Copies of any request must be provided (unless waived) to the Attorney General and all District Attorneys.

 

§ 20G Scope of Immunity

 

            Transactional immunity is provided.  The compelled evidence or testimony may not be used against the witness in a criminal or civil court case in Massachusetts, except to prosecute for perjury or contempt while giving the compelled evidence or testimony.

 

            § 20H Contempt of Court

 

            Refusal to produce evidence or to testify after receiving immunity is punishable in the house of correction for up to one year, or until the witness complies, whichever occurs first.

 

                        Automatic Immunity

 

When an employee is compelled to answer questions under the threat of termination or serious job sanctions, it appears that in some situations immunity may attach even without an authorized or formal grant of immunity.  This would be the case where, for example, an officer initially exercises his or her privilege against self-incrimination and is subsequently ordered to answer under threat of serious job sanctions or termination.  While an argument can be made that only persons authorized by statute may grant immunity, this has not been the holding in various federal or other states’ cases.  In 1993, the Federal Appeals Court in the 8th Circuit restated the holding in Garrity that employees who are compelled to answer their employers questions automatically acquire use immunity for their answers.[41]  In fact, even in Carney,  the SJC noted that it “assumed without deciding” that had the officer answered the Deputy’s questions under threat of discipline and relied on his assurances of immunity, he would be entitled automatically to immunity.

 

In the prosecution of Officers Koon and Powell in connection with the Rodney King incident, the Court was convinced that immunity attaches automatically whenever a police officer is compelled to give an incriminating statement.[42]

 

The issue of whether immunity attaches automatically in Massachusetts was addressed in the 1986 SJC case of Commonwealth v. Harvey.[43]  There a police officer-defendant attempted to have the court exclude his statements that he made without invoking his privilege against self-incrimination.  The officer’s claim was based on Article 12 of the Massachusetts Constitution rather than his 5th Amendment rights under the U.S. Constitution.  The court concluded that, “in the absence of compulsion, we are not persuaded to rule that the privilege is self-executing.”  Note:  In Harvey, had the officer initially refused to answer questions and then changed his mind under a threat of termination or serous disciplinary consequences, the court probably would have reached a different conclusion.  In that case, even in the absence of a formal grant of immunity from the Attorney General or all the District Attorneys, immunity most likely would have attached.  Since this case preceded Carney, the court was only faced with a request for use or derivative use immunity.

 

In the 1995 case of Baglioni v. Chief of Police of Salem, the Supreme Judicial Court was confronted with whether to enforce a promise of immunity given to a police officer by a single District Attorney.  There the District Attorney sent the chief a letter promising not to prosecute officers involved in an investigation into malicious damage to a police officer’s locker and the filing of a false report.  The officers refused to speak, claiming the District Attorney lacked authority to grant them immunity sufficiently broad to protect them from self-incrimination.[44]  The court noted that a single D.A. lacked the authority to grant statewide immunity.  Moreover, it noted that once the officers rejected the District Attorney’s authority to grant fully-effective immunity, they could not obtain that immunity by relying on the D.A.’s promise.  The court stated, “reliance in such circumstances would not be reasonable.” 

 

In a 1987 Illinois case, the court ruled that a promise to an employee that his statements to internal affairs and his resignation would avoid criminal charges was not binding on the prosecutor.[45]  There the conviction was held not a violation of due process.

 

Practice Pointers

 

In an 1899 (yes 1899) decision, the SJC ruled that a police detective’s promise of immunity during a criminal investigation, in exchange for a person’s testimony, was not a bar to indictment.[46]

 

Reliance on assurances of immunity from the chief and town counsel was found to be reasonable in the 1996 SJC decision of Commonwealth v. Dormandy.[47]  The court recognized that neither the chief nor the town counsel had any statutory authority to grant immunity.  However, it noted that in the past it had, “upheld promises made by a district attorney or one representing the district attorney’s office to a defendant who detrimentally relied on the promise.”[48]  In Dormandy the town counsel went to great lengths to assure the officer that his rights under Carney were protected.  The court felt compelled to honor that commitment.  To do otherwise, it noted, “would be to thwart the fundamental principle that the sovereign is to be held to the highest ethical standards.”  Thus the dismissal of the indictment against Dormandy was ordered.

 

In Dormandy the court declined to decide whether and to what extent a district attorney could grant transactional immunity.  It recommended that the legislature address the issue.

 

Under certain circumstances, because the “sovereign must adhere to the highest degree of ethics”[49], the court could decide that fairness requires enforcing a single D.A.’s promise of transactional immunity.  Similarly, it is possible that a court would enforce a promise of immunity made by a chief in good faith so long as an officer, also in good faith, relied on that promise and gave a compelled statement.  In light of the Baglioni, Dormandy and Silverio cases, courts will be suspicious of whether the chief and officer were reasonable in their beliefs.

 

                        “Compelled” Police Reports

 

Officers may be compelled to answer questions or to complete reports so long as the questions are specifically, directly, and narrowly related to the performance of their official duties or fitness for duty.  Court appeals rarely involve immunity issues resulting from written police reports.  However, some unions have recommended that officers insert a preamble before all departmentally required reports.  The aim is to secure immunity for officers, precluding criminal prosecution for matters addressed in such reports.  Courts are not likely to honor such self-serving efforts at securing immunity.

 

Some union-crafted preambles also attempt to preclude the use of all reports in departmental disciplinary cases.  Such efforts are similarly unlikely to succeed.

 

The following is a example of the latter type.

 

“It is my understanding that this report is made for administrative, internal police department purposes only and will not be used as part of an official investigation.  This report is made by me after being ordered to do so by lawful supervisory officers.  It is my understanding that by refusing to obey an order to write this report that I can be disciplined for insubordination, and that punishment for insubordination can be up to and including termination of employment.  This report is made only pursuant to such orders and the potential punishment/discipline that can result for failure to obey that order.”

 

Practice Pointers

 

            The use of such preambles can be annoying and confusing.  The fact that persons outside of the department make use of the police reports makes the problem even more difficult.  Chiefs should make an effort either to eliminate or at least neutralize these preambles.

 

            It is not difficult to neutralize such report preambles.  A general order or departmental memo, or some reference in a department’s Policy and Procedure, should suffice.  A sample is included in the Appendix of this manual.  The goal is to make it clear that report writing is a routine part of police work.  Officers must complete reports whenever certain events occur or as required by various laws, rules or procedures.  Wherever an officer reasonably believes that the contents of a report will tend to incriminate him or her, this should be called to the attention of the party requesting the report or to the officer’s supervisor.  An explanation of the possible uses of police reports, as well as a discussion of how immunity works, should be included.

 

            So long as such an appropriate explanation is provided, a chief may order officers to omit these preambles from routine departmental reports.

 

            Only when officers that invoke their privilege against self-incrimination are ordered to prepare a report should they be allowed to include a preamble relating not to discipline but to criminal prosecution.  In that case, it is not unreasonable for an officer to insert some mention that this is a compelled statement and that immunity has been promised.

 

                        Other Uses of Compelled Statements

 

The constitutional protection against self-incrimination applies only to the use of compelled statements in a criminal prosecution of the officer making the statement.  The compelled statement may, however, be used for several other purposes.  In general, the failure to give Miranda warnings does not violate an officer’s rights so long as he or she is never charged with a crime.[50]  However, a plaintiff who was repeatedly questioned in violation of his Miranda rights was able to sue for damages for a violation of his 5th Amendment rights.[51]

 

The U.S. Supreme Court has upheld a limited grant of immunity to witnesses compelled to incriminate themselves (testimonial immunity); it ruled that transactional immunity was not constitutionally required.[52]

 

So long as the proper grant of immunity from criminal prosecution is in place, an officer’s compelled statement may be used:

·        in departmental disciplinary proceedings;[53]

·        in a civil suit where the officer and/or the municipal employer are defendants;[54]

·        in criminal prosecutions of others;[55] and

·        by a grand jury investigating police officers.[56]

 

In Kastigar v. United States[57], the Supreme Court established the principles to be applied when the government seeks an indictment and trial of a person previously granted use immunity with regard to his compelled sworn testimony.  In Kastigar, the Court stated:  “Once a defendant demonstrates that he has testified, under a ... grant of immunity, to matters related to the ... prosecution, the ... authorities have the burden of showing that their evidence is not tainted by establishing that they have an independent, legitimate source for the disputed evidence.”  The burden of proof “imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.”[58]  However, the Court also stated that the Fifth Amendment “grants neither pardon nor amnesty” to those who testify under a grant of immunity.[59]  Rather, the Fifth Amendment allows the government to prosecute so long as it uses evidence derived entirely from independent sources.

 

In a 1996 Suffolk County Superior Court case, Commonwealth v. Marotta, the issue of use of immunized testimony in grand jury and a subsequent criminal prosecution was addressed.[60]  Marotta, a Boston Police Officer, stopped motorists and demanded cash in exchange for not towing their vehicle. 

 

Initially, when a single citizen complaint was received, IA asked the department’s Anti-Corruption Division if it wished to pursue a criminal investigation.  When ACD declined, a “Carney Form” was sent to the officer by IA.  It ordered him to submit a report about the incident, but also advised him that a report would not be required if he invoked the privilege against self-incrimination.  It also explained that if a report was filed, it would not be used against him in any criminal proceedings, but that he could be prosecuted based on other evidence, i.e., he would be provided with “use immunity” with respect to the report.  The officer submitted a report about the incident in which he started that he stopped the motorist but that he had not demanded or taken money from the motorist. 

 

When a second citizen complaint was received, ACD decided to investigate for possible criminal violations and told IA to cease its investigation.  For 7 months, ACD investigated.  When no further allegations of wrongdoing surfaced, ACD decided to discontinue its investigation and to forward the file, including Officer Marotta’s “Carney” response to the Commissioner for administrative adjudication.

 

Soon thereafter a third complaint was made.  ACD then requested a cessation of the administrative proceedings and reopened the criminal investigation.  The investigation, after reviewing 600 citations and interviewing 300 motorists, uncovered 22 cases where the officer had demanded and taken, or had attempted to take money from such motorists.

 

The court concluded that the Commonwealth had demonstrated beyond a reasonable doubt that the evidence used in the investigation and indictment of the Officer Marotta came wholly from legitimate, untainted sources.  Therefore, the evidence was properly admitted.

 

A prosecutor may also require a department to turn over copies of compelled statements, even though they may not be admissible in a criminal prosecution of the officer.[61]  While Massachusetts appellate courts have not addressed the issue, courts elsewhere are divided on what a prosecutor may do with such compelled statements or their fruits.  The prosecutor in the Oliver North case, for example, was required to prove that all necessary testimony must be free of any taint from the immunized statement.[62]  The Federal Appeals Court ordered the District court in the North case to hold a full hearing to ask about the content as well as the sources of the grand jury and the trial witnesses’ testimony.  Proceeding witness by witness, line by line, the prosecutor was required to show that no use whatsoever was made of any of the immunized testimony either by the witnesses or by the prosecutor in questioning each witness.  The Appeals Court concluded that if the prosecution introduced trial evidence that failed this test, a new trial was required.  If the grand jury evidence was similarly tainted, the indictment would have to be dismissed.

 

In Marotta, the defense cited United States v. North for the proposition that presentation to the grand jury of “tainted” evidence obtained in violation of a grant of immunity should result in a dismissal of the indictment, even if it was used in a non-evidentiary capacity, i.e., merely to refresh memory of a witness, to focus the investigation to the exclusion of other suspects, to initiate prosecution or to interpret evidence.[63]  The appropriate remedy for non-evidentiary use of immunized testimony is, it should be noted, a matter of dispute among the various federal circuits.[64] 

 

In Serrano, the First Circuit Court of Appeals stated that the approach taken by the Eight Circuit in McDaniel, amounts to a rule that would “in effect grant a defendant transactional immunity once it is shown that government attorney or investigators involved in the prosecution were exposed to the immunized testimony.”[65]  (emphasis in original).  Because Kastigar expressly states that a grant of immunity short of transactional immunity can still be constitutional if the grant is coextensive with the Fifth Amendment, the First Circuit “[did] not think this purpose is automatically frustrated by the government’s mere exposure to immunized testimony.”[66]  The court rejected the notion that all non-evidentiary use necessarily violates the Fifth Amendment or that the “purpose [of the Fifth Amendment] is automatically frustrated by mere exposure to immunized testimony.”[67]  The Court added:  “We agree with the Second Circuit that a prosecutor is not foreclosed merely because the ‘immunized testimony’ might have tangentially influenced the prosecutor’s thought process in preparing for the indictments and preparing for trial.”[68]  Thus, the First Circuit does not consider the non-evidentiary or tangential use of immunized testimony to be grounds for dismissal.

 

A different result than that reached in the North case was also reached in the Rodney King case.[69]  The 9th Circuit Court of Appeals ruled that all that was required was that the prosecution prove that the substance of the testimony of any witness exposed to a compelled statement was based on a legitimate source independent of the immunized testimony.  (Note:  The 9th Circuit is the most overturned circuit in the country!)

 

In a California case, decided under that state’s equivalent of Garrity, the court ruled that a prosecutor could see an officer’s compelled statement and could use it to help convince a victim to testify.[70]

 

                        Immunity for Federal Crimes

 

Transactional immunity granted to an officer from state prosecution also protects the officer from having compelled statements, or the fruits of such statements, used in a federal prosecution.  In Baglioni v. Chief of Police of Salem, the Massachusetts Supreme Judicial Court noted that “a grant of (transactional) immunity by a State is effective in extending the different protections against self-incrimination that the State and Federal Constitutions, respectively, require.  The officers have no right to insist on transactional immunity from federal prosecution.”

 

In Murphy v. Waterfront Com’n of New York Harbor,[71] the United States Supreme Court held that a state witness may not be compelled to give testimony which may be incriminating under federal law unless the compelled testimony and its fruits cannot be used in any manner in a criminal prosecution against him.  Moreover, the Court held that in order to implement this rule and accommodate the interests of the state and the federal government in investigating and prosecuting crime, the federal government must be prohibited from making any such use of compelled testimony and its fruits. 

 

The Court stated , “Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence.”[72]  “This exclusionary rule, while permitting the state to secure information necessary for effective law enforcement, leaves the witness and the federal government in substantially the same position as if the witness had claimed his privilege in the absence of a state grant of immunity.”[73]  Similarly, a foreign state must grant, at minimum, use immunity, whenever another state has compelled testimony.

 

            Conversely, it is logical to conclude that if the federal government grants immunity to a federal witness, a state may not use the testimony or its fruits.

 

            The SJC’s 1995 decision in Matter of Pressman concluded that a federal grant of immunity affords only use or derivative use immunity in both federal and state court criminal prosecutions.[74]  There the Board of Bar Overseers (BBO) sought to discipline an attorney based on his immunized testimony given during a federal criminal trial.  The attorney was the former Mayor of Chelsea.  He was granted use and derivative use immunity by the Federal District Court judge.  The case involved kick-backs from bookies and the acceptance of illegal payments in connection with a mall project in the City of Chelsea.

 

            The SJC considered the public policy implications involved and concluded that the federal grant of use immunity prevented only the use of the witness’ statements (or fruits thereof) in a state or federal criminal prosecution.  The disciplinary action of the BBO was not criminal in nature.  The use of the attorney’s statements in the disciplinary proceeding “would not be used to punish the lawyer in a criminal sense, but rather to preserve the integrity of the bar.”[75]

 

Although the U.S. Supreme Court has yet to address this issue, at least two federal circuit courts of appeal have concluded that the federal authorities are not required to give transactional immunity, even where a public employee would be entitled to transactional immunity in his or her state.

 

In the First Circuit, which governs Massachusetts among other states, the Circuit Court of Appeals, while acknowledging that every sovereign, state or federal, must recognize immunity granted by another sovereign, concluded that the federal government is not required to grant the same type of immunity as the state would grant if it were seeking testimony.[76]  Consequently, the Court of Appeals held that the federal authority’s grant of use immunity was sufficient to compel testimony, notwithstanding that the Commonwealth of Massachusetts would have granted transactional immunity.

 

            In the Ninth Circuit, the Court of Appeals, in similar fashion, held that although the Oregon constitution would require that a witness be granted transactional immunity in order to supplant the privilege against self-incrimination, the federal court could compel testimony by offering use immunity.[77]  In so holding, the Court stated,

 

The federal grant of use immunity is sufficient to overcome the Fifth Amendment privilege against self-­incrimination.  See Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 1661, 32 L.Ed. 2d 212 (1972).  The fact that Oregon sees fit to provide broader immunity is irrelevant where the question arises in federal court in response to a federal charge.  See In re Bianchi, 542 F.2d 98, 101 (1st.  Cir. 1976).  As Chief Marshall long ago pointed out, ‘[i]t is of the very essence of supremacy, to remove all obstacles to [the federal government’s] action within its own sphere and so to modify every power vested in subordinate governments, as to exempt its own operations from their influence.’  McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 427, 4 L.Ed. 579 (1819).  More recently, the Supreme Court rejected the idea that more lenient state laws should govern in federal prosecutions because ‘any such rule is flatly inconsistent with the Supremacy Clause of the Constitution, Article VI, cl. 2.)’  United States v. Antelope, 430 U.S. 641, 650, note 13, 97 S.Ct. 395, 1400 note 1-3, 51 L.Ed. 701 (1977).  Thus, although the Supremacy Clause permits the federal government to extend immunity against state prosecutions, ‘states, of course, do not have a corresponding power to impose their immunity grants upon the federal government.’  United States v. McDaniel, 449 F.2d. 832, 839 note 3 (8th Cir. 1971); see United States v. Interborough Delicatessen Dealers Ass’n., 235 F. Sup. 230, 231 (S.D.N.Y. 1964).

 

Practice Pointers

 

Immunity is rarely needed or granted in internal affairs investigations.  Most cases rely on evidence and statements from sources other than the accused officer.  However, because of the complexities and potential consequences, chiefs should be cautious in this area.  Consultation with labor counsel and a representative of the D.A.’s or A.G.’s office (or both) is advisable.

 

When it becomes clear that it will be necessary to order an officer to answer questions during the course of an IA investigation, several steps should be followed:

 

-        Determine the topics and scope of inquiry;

-        Be sure questions are narrowly drawn and focus on an officer’s work-related conduct or fitness for duty;

-        Consult with labor counsel, the D.A.’s and A.G.’s office;

-        Request the A.G.’s office to prepare a written promise not to prosecute.

-        If a federal crime could be involved, consult with the U.S. Attorney’s office, likewise requesting a promise not to prosecute or at least not to use the statement or its fruits in a criminal proceeding;

-        If the officer refuses to answer properly worded questions and invokes his or her privilege against self-incrimination, produce the letter(s) assuring there will be no criminal prosecution (in Mass) or any use of the statements or their fruits (in Federal cases).

 

Simply securing these “grants of immunity” will not preclude a criminal prosecution if they are not used by the Chief or superior officer conducting the IA questioning.  Some chiefs may prefer to obtain such letters “just in case”.  This would allow the questioning to proceed more smoothly, Should an officer invoke the privilege against self-incrimination, the letter(s) could be produced.  If they are not needed, there is no requirement that they be shown to the officer or his/her counsel.

 

In the event that an agreement not to prosecute has not been secured, an officer is free to refuse to answer incriminating questions.  This does not mean that the interrogation must stop.  When the officer invokes the privilege against self-incrimination, other non-incriminating questions may still be asked.

 

Courts will be reluctant to find that immunity has attached in the absence of an agreement from the Attorney General or all the District Attorneys.  Only where the officer reasonably relies on an assurance of immunity from the chief, counsel, or other official conducting the questioning, is it possible that a court will honor that promise.  The law enforcement community is generally aware of the courts rulings concerning the role of the Attorney General and District Attorneys.  Therefore, courts will be skeptical when faced with claims that officers were unaware of the proper procedure and their rights to refuse to speak until such a written assurance was secured.

 

Chief should avoid making promises they may not be able to keep.  Once an employee invokes the Fifth Amendment, only the most serious emergency could possibly justify ordering the officer to answer incriminatory questions without securing an “immunity” agreement from, the A.G. or all the D.A.’s.  However, should such an emergency arise, and an officer rely on the chief’s assurances and provide incriminating information, it is likely that the courts would honor the chief’s promise so long as the officer’s reliance appeared reasonable.

 

X.  Questioning Officers About Off-Duty Conduct

 

An employee generally is required to answer questions concerning his or her off-duty conduct, provided such questions are narrowly drawn and reasonably related to his or her fitness to serve as a police officer, and provided that no violation of the officer’s contractual, statutory or constitutional rights is involved.  Where serious criminal conduct is alleged, for example, the scope of questioning will be much broader than in situations where simple rule infractions and/or minor misconduct under the category of conduct unbecoming an officer are involved.

 

A leading case concerning questioning police officers about off-duty conduct is Broderick v. Police Commissioner of Boston.[78]  In Broderick, the Commissioner ordered officers to submit written reports concerning their conduct at a police gathering (union convention) at a Rhode Island hotel.  Allegations included swimming, diving and running through the pool area and hotel lobby nude; assaults on hotel patrons; loud foul language; exploding fireworks; stealing liquor; and not paying for meals.

           

The court rejected the claim that the Commissioner’s scope of inquiry was limited to the officers’ on-duty conduct.  The court read Gardner as requiring that such “inquiry must not be general and exploratory in nature but must be limited to the specific infraction under investigation . . .  Nor should the state phrase general and vague questions in a broad dragnet approach”.[79] The Court quoted Gardner as justifying more stringent rules for law enforcement personnel since a police officer “is directly, immediately, and entirely responsible to the city or State which is his employer . . .  He is a trustee of the public interest, bearing the burden of great and total responsibility to his public employer.”[80]

 

            The Court interpreted “relating to the performance of his official duties” in Gardner as encompassing both on and off-duty conduct concerning “matters of and concerning an individual’s fitness for public service.”[81]  The court declined to limit the inquiries where the officers’ actions “might constitute outrageous, even illegal, conduct.”[82]

 

            This quasi-official purpose for being in Rhode Island led the court to conclude that the conduct was something more than purely private activity.  As a rule of thumb, the court indicated it would uphold questions relating to private conduct if affirmative answers to those questions would be grounds for disciplinary action.

 

                        Privacy and Off-Duty Conduct

 

A police department may discipline an officer who engages in off-duty conduct in violation of the department’s rules and regulations.  Courts consistently find that a department has a legitimate interest in preserving its public image of trust and respect.  An officer’s off-duty actions may bring discredit to the officer or department, may adversely affect an officer’s ability to perform his or her job, and may result in poor job performance.  Courts are willing to uphold discipline for off-duty misconduct where it can be shown that the rule promotes one or more of the following legitimate public purposes:

 

·        efficient functioning of the department;

·        public adherence to the orders of police officers;

·        respect for police officers individually and collectively; and

·        societal harmony and public morality.

 

            Some departments enumerate what types of off-duty conduct is prohibited.  (Specific listing of off-duty conduct restrictions must be bargained for.)[83]  Others use the prohibition against conduct unbecoming an officer as the grounds for disciplinary action.  Both approaches generally meet with court approval.  In either case, officers bringing constitutional challenges usually allege that such regulations are void and unenforceable since they either are void for vagueness, overbroad or interfere with the officer’s right to privacy.  (See § VII “Conduct Unbecoming an Officer” for a discussion of such constitutional issues.)

 

                        Privacy Rights Theories

            When officers urge courts to hold that their right to privacy has been infringed, they generally do so by relying on what is called the natural rights theory of privacy.  Others speak of a “shadow rights” theory because the right to privacy is impliedly looming in the shadows of the Bill of Rights.

 

            The first ten amendments — called the Bill of Rights — were drafted at the same time as the U.S. Constitution.  Their purpose was to enumerate specific rights or freedoms of persons in the United States which could not be infringed upon by the federal government.  The Fourteenth Amendment was later added to extend these prohibitions to actions of the state governments.  With the Bill of Rights as the foundation of the rights and protections, there has been much debate whether the framers of the Constitution intended that the list of protections be exhaustive, or if they were only a starting point for determining additional worthwhile protections.

 

            Those who argue that a freedom of privacy exists, contend that the other rights contained in the Bill of Rights detail the essential freedoms which are instilled into the lives of all U.S. residents, and that the freedom of, or right to privacy, is every bit as essential to one’s concepts of ordered liberty as are other Bill of Rights protections.  Then having argued the value or validity of the right to privacy, they contend that it is provided for by way of reference, through the Ninth Amendment.  Essentially, natural rights theorists argue that the Ninth Amendment’s language, which says “the enumeration of certain rights [in the first ten amendments] shall not be construed to deny or disparage others retained by the people”,[84] reinforces the proposition that the Bill of Rights does not contain an exhaustive list of personal freedoms.  This theory was given credence in the case of Griswold v. Connecticut[85], when the Supreme Court, in a concurring opinion, asserted that additional rights not mentioned in the Constitution were also protected against interference by the government.

 

            The difficulty then, is determining what are those unmentioned rights which are to be afforded protection.  Surely, a judge should not be able to determine the fundamental nature of a right based on his or her own perceptions.  Providing some guidance, the Supreme Court, in Powell v. Alabama,[86] directed lower courts to inquire into whether the proposed right is “of such a character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions . . . .”

 

                        Off Duty Sexual Misconduct

 

            The Supreme Court, using the above-mentioned test, has found sexual conduct to be a fundamental right to privacy in two leading cases.  In each the nexus or connection appeared to be that the activities in question occurred in the privacy of the home.  In Stanley v. Georgia[87], the court held that the mere possession of questionably obscene material in one’s home is not a crime because a person has a right to privacy within his or her home.[88]  Another case where the Supreme Court found certain sexual activities to be protected was in Griswold v. Connecticut.[89]  There the issue was whether or not the state could regulate a couple’s use of contraceptives in the marital bedroom.  The court held it could not.  In its reasoning, it stated that the marital relationship is as old as our civilization and the state cannot infringe upon the fundamental privacy rights of the marital bedroom absent a showing of a compelling need and the availability of no less intrusive means to meet that need.

 

Practice Pointers

 

            Where illegal sexual activity is involved, officers may be questioned about their off-duty conduct.  While the standards are changing to reflect changes in social norms (e.g., adultery in larger communities where an officer’s conduct is less notorious), disciplinary actions against police officers for several types of off-duty sexual conduct are most often upheld by courts or arbitrators.

 

            As with any disciplinary action, chiefs should be sure that the department’s rules and regulations are up to date and that officers have signed receipts for them.  A department’s Legal Advisor should be consulted to determine issues of immunity as well as what types of off-duty conduct have been the subject of discipline and subsequent review by a court or arbitrator.

 

                        Types of Conduct Prohibited

 

            Disciplinary actions against police officers for off-duty sexual conduct often fall into one of several general categories:

 

·        adultery;

·        consorting with prostitutes;

·        relations with minors;

·        sex by intimidation; and

·        sexually deviant behavior.

 

                        Adultery

 

            Adultery is defined as voluntary sexual intercourse of a married person with a person other than the offender’s spouse.[90]  As the following cases illustrate, courts generally uphold discipline involving police officers in an adulterous relationship.     

 

Where an officer had an extramarital relationship with another police officer in his department, he was terminated for violating a departmental regulation which prohibited officers from participating in immoral or otherwise indecent conduct.  In that case, Wilson v. Swing[91], the officer alleged that his first amendment right to association had been violated.  The court, relying on Kelly v. Johnson[92], said the officer did not have the same First Amendment rights as the general public.  Given the lesser degree of protection afforded police officers, the court found the infringement was justified because any officer who participates in an adulterous activity can bring shame and disrespect to the department.  Such disrespect, said the court, could also hamper the department’s effectiveness, and could create disciplinary and morale problems within the department.

 

            In Faust v. Police Civil Service Comm.[93], a police officer was discharged for adultery which occurred in a  public park while he was in plain clothes and off-duty.  The officer argued that his Constitutional right to privacy had been violated.  The court disagreed and said that the state had a compelling interest in sustaining public respect for police officers.  The court pointed to the fact that police officers are often required to enter into residents’ private homes while on duty.  To protect the image and integrity of the police department, the court indicated that there could be no tolerance for improper activities which could jeopardize the department’s effectiveness.  This case is important also for its determination that the sexual conduct need not be illegal to be actionable.

 

            In Smith v. Price[94], a police officer brought an action claiming a deprivation of his constitutional rights of association and privacy in connection with his discharge.  He also contended that the department regulation prohibiting conduct unbecoming was unduly vague and unenforceable.  There Officer Smith was married and residing in a town adjoining Athens, Georgia, where he worked.  One day, while visiting his girlfriend, he was shot by the woman’s former lover.  The officer was suspended for ten days and told any future violations would lead to his termination.  Sometime later, it was brought to the attention of the officer’s superiors that the extramarital affair had continued for more than a year subsequent to the prior reprimand.  The court held that the regulation was permissible and that the facts of the case provided a sufficient basis for the dismissal.

 

            In Darby v. Coleman[95], the police chief was accused of participating in an adulterous relationship.  The chief contended that the regulation only prohibited adultery which was known by the public.  The court disagreed.  It held that private as well as public immorality constitutes conduct unbecoming an officer and can be the basis of discipline without any indication whatsoever that the adulterous relationship adversely affected the efficiency or morale of the other members of the department.

 

            One of the most bizarre adultery cases occurred in Fabio v. Civil Service Commission[96].  There, a police officer, while having an affair with his sister-in-law, encouraged his wife to engage in an extramarital affair herself with a fellow officer in the department.  The court held that this relationship would greatly tarnish the general public’s perception of law enforcement officials, and therefore, his dismissal was warranted.[97]

 

            In addition to being able to regulate an officer’s off-duty sexual conduct involving civilians, it is likewise possible to restrict or prohibit off-duty sexual relationships among heterosexual couples who both work for the police department, both sworn or non-sworn employees.

 

            In Wilson v. Swing[98], an officer challenged his termination for conduct unbecoming an officer for partaking in an extramarital affair with another police officer.  The challenged regulation stated that officers “shall conduct their private and professional lives in such a manner as to avoid bringing the department into disrepute.  [They are] . . . prohibited from engaging in any immoral or indecent conduct, or association with known prostitutes, gamblers, known criminals, individuals of questionable character and reputation, or frequenting places of questionable reputation”.[99]

 

            The officer challenged the regulation on freedom of association, vagueness and over breadth grounds.  He alleged that the phrase “immoral or indecent conduct” in the regulation provided no guidance as to exactly what conduct was proscribed.  The court disagreed.  It held that adultery is not the type of association which is protected by the Constitution.  The “immoral” language in the regulation was not overbroad or vague because a person of ordinary intelligence would have little difficulty concluding that adultery violated the rule.  The court went on to say that the rule specifies various types of conduct which violate the regulation.  While not expressly mentioned, it was in keeping with other prohibited conduct which should have put the officer on notice that his conduct was unacceptable.

 

            One of the earliest cases of conduct unbecoming for off-duty sexual conduct arose in the 1920 case of Wolfe v. Sanders.[100]  In that South Carolina case, a sheriff had an adulterous relationship with a police officer’s wife.  Neighbors had seen the sheriff entering the woman’s home at various times of the day and brought it to the attention of his superiors.  At the time, the department had no specific prohibition of such conduct.  Nonetheless, the court concluded that the sheriff’s actions rose to a level of “official misconduct” since he had violated the marital relations of another officer and breached the public trust in doing so.  A key factor, said the court, was the need for the public continually to permit police officers to enter into their residences without fear or apprehension.  His activities were found to have undermined the department’s good reputation.

 

                        Removal Not Justified

 

            In most cases where the court has found that an officer’s removal was unjustified, the decision has been based on improper procedures, such as due process, equal protection or other misapplication of the law.  In other cases, courts have struck down the regulation on freedom of association or on vagueness grounds.  It is possible that, over time, courts may become more reluctant to uphold discipline in these cases as community values change.

 

            A police officer who is accused of adultery cannot be disciplined without being provided a hearing where he or she is able to admit or deny the allegations.  In Zueck v. Nokomis,[101] an officer who was dismissed for adultery was never given a chance to rebut the allegations or given the name of the person with whom allegedly he was having an extramarital affair.  Finally, when he did get a hearing, he did not learn the name of the citizen making the allegations until the hearing itself was underway.  The court held that the city council hearing at which the officer was discharged was insufficient and ineffectual because the officer was denied due process.

 

            Another justification for not validating a discharge for off-duty sexual conduct has been the court’s grappling with the somewhat tenuous nexus between an officer’s off-duty conduct and the department’s objective of maintaining a positive reputation for honesty, integrity and morality in the community.

 

            Courts have stated that among the factors to be considered in determining the validity of a termination will be the size of the community, community morality standards (as perceived), the nature and extent of the officer’s conduct, the openness of the activity, e.g., adultery, and the language in the regulation which proscribes the conduct.

 

            In Briggs v. N. Muskegan Police Dept.,[102] a married police officer was dismissed for cohabiting with a married woman.  He claimed that his constitutional right to associate freely and his right to privacy were both infringed.  The court held that the grounds asserted by the department — adverse effect on his ability to perform his job, immoral conduct, tarnished reputation of the department, etc. — were all insufficient.  The court placed the greatest emphasis on the fact that the primary reason for the officer’s discharge was the department’s concern that the community would frown on the officer’s conduct and think less of the department as a whole.  Such a reason, said the court, did not outweigh the officer’s constitutional rights.

 

            A more recent example of the court’s intention to loosen the regulation of police officers’ socially acceptable off-duty sexual conduct, is the case of Grubka v. Dept. of Treasury[103].  While this case involves the Treasury Department, nonetheless, it serves as a good example of how a court attempted to resolve a disciplinary case in light of a community’s acceptance, or tolerance, of conduct which may have been considered immoral years ago.  In Grubka the IRS demoted the Chief of Quality Review for allegedly engaging in sexual misconduct which tarnished the good name and efficiency of the department.  It claimed that he violated the employee handbook section which regulated the development of subordinates.  It read:

[You are] responsible for the Equal Employment opportunities and development of subordinates, by effectively manag[ing] all aspects of their employment responsibilities.  The uniform standards require that you foster a positive EEO climate and demonstrate personal commitment to EEO principles by actively supporting and working toward all IRS goals.[104]

 

            The alleged acts of misconduct involve the employee’s kissing and hugging of two female subordinate-trainees at a company Halloween party.  The party was optional, took place away from the office, and occurred after hours.  Moreover, the evidence indicated that in one case the trainee initiated the kiss, and in the other, the kiss and hug were staged for a photograph.

 

            While the court upheld the validity of the regulation against vagueness challenges, it refused to find that the employee’s conduct at the party jeopardized his reputation or the efficiency of the department.  To violate such a regulation, the sexual conduct would need to cause a reasonable person to find the conduct very inappropriate.  What is inappropriate, said the court, is to be determined by looking at:

 

-        the conduct itself;

-        the nature of the relationship between the individuals;

-        the employee’s position;

-        the place where the conduct took place; and

-        the openness of the conduct.[105]

 

            A disciplinary action may also be struck down where the department has not been enforcing the regulation even-handedly.  In Smith v. Price[106], an officer was dismissed for neglect of duty, failure to report the theft of his gun, and his involvement in an extramarital affair.  The married officer had been told by his superiors to stop seeing his girlfriend on duty.  The officer agreed, and then continued to see her secretly.  The court held that the termination was justified on neglect of duty grounds.  It cautioned, however, that it would have invalidated the termination if it had been based solely on the affair because the department had a prior practice of looking the other way and not punishing other officers for similar violations of the regulations.

 

            Other instances where the terminations were not upheld occurred where it was ruled that a police chief had wide latitude to refuse to enforce a regulation[107], a police officer’s unfaithful conduct produced no detrimental effect on his position[108], and where the officer’s extramarital affair was found to be within his constitutionally protected “zone of privacy”.[109]

 

                        Consorting with Prostitutes

 

            Relations with prostitutes have consistently been found to justify an officer’s termination.  While the use of prostitutes is clearly against the law, many officers have challenged their terminations for using prostitutes on the premise that their activities are protected under privacy or association freedoms.  Since most prostitution cases involving police officers do not involve the giving or taking of money, it is, therefore, not technically criminal prostitution. 

 

            In the 1992 New York case of Ruiz v. Brown,[110] an officer was discharged for repeatedly consorting with known prostitutes.  The officer asserted that his constitutional right to privacy was abridged since there was no payment of monies for sexual services.  The municipality argued that the officer violated the regulation prohibiting officers from fraternizing with persons of questionable reputations or known criminals.  The court upheld the dismissal, claiming that the regulation was not an unconstitutional infringement on privacy nor was it unduly vague.

 

            A similar scenario existed in Freeman v. City of Mobile.[111]  There, a police officer was charged with many sexually deviant acts involving prostitutes, his wife, and others.  The court held that the officer’s association with prostitutes, standing alone, was sufficient grounds for termination, and that there was no constitutional right to associate with any and all types of individuals once one becomes a police officer.[112]

 

            Absent a clear prohibition against relations with persons who are otherwise known to be prostitutes, courts have still upheld dismissal under the broad prohibitions afforded the phrase “conduct unbecoming an officer.”  In Civil Service Comm. v. Livingston[113], the departmental regulations only expressly prohibited adulterous behavior.  The discharged officer claimed that his “friendship” with a prostitute was not prostitution and, because neither was married, it was not adultery.  The court held that there were implicit behaviors which are prohibited when done by police officers.  Such behaviors will justify termination where they indicate a substantial short-coming in the officer’s ability to perform his or her job effectively and efficiently.  Here, the court said promiscuous relations between a known prostitute and a police officer could alter the officer’s allegiances and place him in a precarious position which would affect his ability to perform his job. 

 

            A police department which has allowed certain relationships to exist (e.g., during undercover operations), may require that the relationship with known criminals or prostitutes end at any given time.  Such was the case in King v. Chicago.[114]  A city of Chicago police officer was charged with violating a department regulation proscribing “any action or conduct which impedes the department’s efforts to achieve its policy and goals or brings discredit upon the department.”

 

            What was unusual about this case is that the officers were told to infiltrate a prostitution ring and act as pimps.  After conducting the investigation, the officers were told to cease and desist their relations with the prostitutes.  However, the officers allegedly continued their relations and may have received pimp money after the sting was completed.  The court held that regardless of whether or not money was given to the pimp-officers after the sting, the officers’ continued fraternization after being told to desist constituted an actionable violation of the above-mentioned rule.   It was irrelevant, said the court, that the officers had previously been requested to get to know the prostitutes.[115]

 

                        Relations with Minors

 

            Disciplinary action is generally upheld in cases involving off-duty sexual relations with a person under the age of consent.  In Fleisher v. Signal Hill[116], an officer who had been on probation admitted to having sexual relations with his underage girlfriend.  The court upheld the dismissal and stated that the officer’s poor judgment detracted from his ability effectively to perform police work and violated the conduct unbecoming prohibition.  Similarly, in Creagh v. City of Mobile Police Department[117], a police officer was suspended for six months for disorderly or immoral conduct unbecoming an off-duty police officer.  The officer initially had been charged criminally with rape of a sixteen year old minor, but was acquitted because the state was unable to meet its burden of proof.  The officer claimed that the acquittal necessitated that he not be reprimanded for his befriending the young woman.  The city and the court disagreed.  The court held that the simple fact that officer was at the girl’s house on several occasions sufficiently evinced inappropriate conduct of a police officer amounting to conduct unbecoming.[118]

 

            When the allegation of sexual misconduct involves a minor, the court will almost always uphold the officer’s discharge.  It may do so even when there is no actual sexual misconduct.  All that may be needed to dismiss the officer is the appearance of impropriety.  For example, in the 1991 case of McHenry v. City of E. Saint Louis[119], the court upheld the dismissal of an officer who allowed a runaway to live with him.  The runaway, a ward of the state, was a fourteen year old girl.  She lived at the officer’s house from the time of her apprehension in March of 1974 through mid-August of that same year.  Once her presence became known, the officer was charged with statutory rape, and was promptly dismissed for conduct unbecoming.

 

            At the criminal trial, the officer was acquitted of statutory rape.  The court found no evidence to indicate that any sexual relations had occurred between the officer and the young girl.  Regardless, the officer was dismissed from the department and the disciplinary action was upheld by a court.  The court ruled that it is totally inappropriate for a police officer to allow an impressionable young woman to reside in his home alone with him.  To justify its holding, the court made two comments.  First, the officer neglected his law enforcement duties when he failed to turn the girl over to the Department of Social Services (DSS).  Second, it will hereinafter almost always find that an officer’s conduct harms the efficiency and reputation of the department, where it even appears that an officer had sexual relations with a minor.

 

                        Sex By Intimidation

 

            There exist a few cases where a police officer has been terminated for having consensual sexual relations with a person who later alleged that the relationship was based, at least in part, on the fact he was a police officer.

 

            In Puzick v. Colorado Springs,[120] a probationary police officer brought to her superior’s attention the fact that she and a superior officer had engaged in off-duty sexual relations.  The male officer was suspended for thirty days.  The court said that regardless of whether she was intimidated into sex, the other officer should not have had sex with the woman because it was against departmental regulations and because such activities could negatively impact the officer’s future ability to command.

 

            In Matter of LaFond[121], two women said they were intimidated into sex by a police officer.  The sexual activities took place in a municipal swimming pool after hours.  The relations took place both during and off-duty.  The court, without weighing the evidence, stated that while intimidation would justify termination, the officer had admitted to improperly being at the pool after hours and that alone justified his termination.

 

            Where an off-duty police officer intimidated a woman into having sex with him, one court concluded that such conduct alone justified his dismissal from the department even though the intimidation was not directly premised on the officer’s position as a police officer.  In Matter of Raynes,[122] a police officer who had been an outstanding officer for nearly twenty years was discharged for sexual misconduct.  The officer argued that the two positions were wholly separate and his conduct in one should have no bearing on his police job.  The officer was accused of sexually abusing a female client of his hypnosis business while off-duty.  The court held this conduct, even though outside of work, still warranted his termination.

 

            These cases indicate that a court may uphold terminations of officers for unbecoming conduct somewhat irrespective of whether the accusations are true or are proven sufficiently to secure a criminal conviction where the conduct is also criminal in nature.  Instead, the court merely inquires as to (1) whether there is a reasonable possibility that the activity occurred, and (2) whether there exist additional grounds which, when aggregated, could justify termination or other disciplinary action — absent the sexual misconduct in question.

 

                        Sexually Deviant Behavior

 

            Cases have arisen in two areas of what some consider sexually deviant behavior.  They are homosexuality and transvestite cross dressing.

 

Homosexuality

 

            While it may be unconstitutional to preclude homosexuals from the police force, it is not unconstitutional to discharge a police officer for conduct unbecoming if he or she solicits homosexual acts of fellow officers.  In Warren v. Asheville[123], a police officer asked his housemate and fellow officer if he would perform fellatio on that officer.  He further asserted to his housemate that he would enjoy it.  The other officer was outraged and brought the officer’s action to the attention of  the chief who promptly discharged im forhim for conduct unbecoming an officer.

 

            The court held that the officer did not have a constitutional right to privacy to solicit homosexual activities.  The department had no obligation to endorse or condone the officer’s advances when made to a fellow officer.  Such advances, the court said, could certainly create internal animosity among fellow officers.

 

            It is equally constitutional to discharge an officer who is alleged to have had nonconsensual, sexual relations with a mentally impaired person.  This principle was upheld in Bailey v. Bd. on Police Std.[124]  There, an officer who had been on the force for only eight months was discharged for his alleged frequent engagements in deviant sexual relations with his retarded brother.  The officer denied the allegations, and argued that the allegations stemmed from occurrences, the most recent of which occurred over two years prior to his appointment as an officer.  Nonetheless, he was discharged.  At trial, the court held that:

[certain] conduct creates such a danger to the efficient operation of the department and constitutes a gross deviation from the standard of care that a reasonable officer would observe, that the officer should be promptly terminated.

 

            The court went on to say that the mere allegations of such improper conduct will amount to “cause” to dismiss.

 

                        Transvestite Behavior

 

            Under the rubric of effectiveness and efficiency, a court upheld the dismissal of a police officer who had a habit of wearing women’s clothes in public while off-duty.[125]  The officer challenged his dismissal on the grounds that it violated his freedom of expression.  The city alleged that the officer must be unstable.  It argued that no normal, well-balanced male officer would parade around town wearing women’s clothes and undergarments.  The officer introduced psychiatric evidence that his transvestite behavior was a benign condition and not detrimental to his mental health.  Nonetheless, the court held that the officer’s very odd conduct could be detrimental to the discipline and effectiveness of the department and, therefore, upheld his dismissal.

 

Other Inappropriate Conduct

 

            Finally, courts have upheld dismissals of officers for conduct unbecoming based on sexual misconduct grounds where the alleged sexual misconduct was either (1) practically harmless, or (2) hardly related to departmental efficiency.  For example, an officer was discharged for giving an innocent motorcycle ride to a young lady while the married officer was off-duty.[126]  In Swank v. Smart[127], a married police officer in a small western Illinois town was riding on his motorcycle while off duty.  While at a busy convenience store/gas station area he met two young college women.  After talking for several minutes, the officer agreed to give one of the women a ride on his motorcycle.  The officer was on his private motorcycle, in street clothes, and off-duty.  At no time did the officer solicit sex or even talk sexually with his passenger.  Instead, it was a short innocent ride; nothing more.  Nonetheless, the officer was discharged and the court upheld the discipline.  (Note:  Without more, the likelihood of a Massachusetts court upholding such discipline is questionable.)

 

XI.  Conduct Unbecoming An Officer

 

                        The Law

 

The validity of a conduct unbecoming rule is not necessarily negated as the result of its arguably general or overbroad nature.  As the U.S. Supreme Court stated in Arnett v. Kennedy: “[I]t is not feasible or necessary for the Government to spell out in detail all the conduct which will result in [discipline].  The most conscientious of codes that define prohibited conduct of employees includes ‘catchall’ clauses prohibiting employee ‘misconduct,’ ‘immorality,’ or ‘conduct unbecoming’.”[128]

 

It is axiomatic that police officers must not act in a manner that is inconsistent with the trust that the public places in them by virtue of their sworn office.  Violations of the public trust constitute, at a minimum, conduct unbecoming a police officer as that term is applied in the rules and regulations manual.  The nature of this trust has been discussed in numerous court decisions, but perhaps the most concise definition in a Massachusetts decision is found in Police Commissioner of Boston v. Civil Service Commission: 

 

Police officers must comport themselves in accordance with the laws that they are sworn to enforce and behave in a manner that brings honor and respect for rather than public distrust of law enforcement personnel.  They are required to do more than refrain from indictable conduct.  Police officers are not drafted into public service;  rather, they compete for their positions.  In accepting employment by the public, they implicitly agree that they will not engage in conduct which calls into question their ability and fitness to perform their official responsibilities.[129]

 

In McIsaac v. Civil Service Commission, the Massachusetts Appeals Court held that a regulation prohibiting conduct unbecoming a police officer was not unconstitutionally vague or overbroad when applied to an officer who negligently handled a firearm while intoxicated and verbally abused other officers.[130] The departmental rule defined unbecoming conduct as “[t]he commission of any specific act or acts of immoral, improper, disorderly or intemperate personal conduct which reflects discredit upon the officer himself, upon his fellow officers or upon the Police Department.”  Although the Court noted that there might be some difficulty in applying this rule in “fringe situations,” as applied to the officer’s misconduct in this case, the rule is neither uncertain nor unconstitutional.  The Court stated:  “An officer of the law carries the burden of being expected to comport himself or herself in an exemplary fashion.  In that context, the adjectives ‘immoral,’ ‘improper,’ ‘disorderly,’ and ‘intemperate’ have meaning.  Negligent handling of a firearm while drunk and aggressive verbal abuse (this is not a case of reasoned criticism or expression of a point of view) of police officers is in common understanding improper, disorderly, and intemperate.  Such conduct is surely an embarrassment to a police force and, hence, does not become a police officer.”

 

The Court in McIsaac also cited numerous other cases in which rules and regulations prohibiting unbecoming conduct survived constitutional challenge.[131]  Contrast this case with the case of Bence v. Breier, in which a “conduct unbecoming” standard was held to be impermissibly vague when applied to the speech of police officers, involving the posting on several bulletin boards of a letter they had written to their city’s labor negotiator outlining a proposed bargaining demand.[132]

 

The discharge of an officer for conduct unbecoming a police officer for fighting with a fellow officer was upheld by the Massachusetts Supreme Judicial Court.[133]  While off-duty, Officer Raynard nearly struck a fellow officer, John Clark, with his car,.  After pulling over, a struggle between the two officers ensued in “full view of the public” in which Clark was injured.  A further altercation between the two occurred at the police station.  In affirming the termination of Raynard, the Civil Service Commission determined that there were “no compelling and convincing extenuating circumstances presented in mitigation of” Raynard’s behavior and that Clark “in no way caused or contributed to the occurrences.”

 

In Commissioner of Civil Service v. Municipal Court of Brighton, the Supreme Judicial Court concluded that even though a police officer had been acquitted in criminal court on various forgery charges, he could nevertheless be disciplined for conduct unbecoming a police officer.[134]

 

Additional examples of misconduct that is within the scope of a charge of conduct unbecoming an officer (and, more likely than not, also within the scope of a more specific rule of prohibited conduct) include: 

 

-        using profanity in interviewing a witness;

-        excess absenteeism;

-        violation of a restraining order;

-        unnecessary display of a firearm;

-        engaging in sexual intercourse in a police cruiser;

-        commission of a criminal offense;

-        disrespect for a supervisor;

-        driving at a high rate of speed through a residential neighborhood; and

-        lying during an investigation.

 

Practice Pointers

 

            The vast majority of off-duty discipline cases have involved conduct which is of a criminal and/or sexual nature.  This is probably related to the fact that unless an off-duty officer’s conduct is more than a technical rule violation, an arbitrator or court is unlikely to uphold disciplinary action.  Moreover, since many off-duty offenses are prosecuted under an allegation of conduct unbecoming an officer, all but the more serious violations are likely to fail for practical as well as constitutional reasons.

 

                        Void for Vagueness

 

            Unless a reasonable officer is able to know in advance what conduct is prohibited, a rule or regulation will be void and unenforceable as being void for vagueness.[135]  When a department relies on a charge of conduct unbecoming an officer, rather than on a rule specifying exactly what kind of conduct is prohibited, a challenge that the charge is void for vagueness may be raised.  Occasionally a claim is made that the rule is vague as applied to an individual officer so as to be arbitrary or capricious.

 

            The phrase conduct unbecoming an officer dates back to the 18th century.[136]  In its 1974 decision in Parker v. Levy, the U.S. Supreme Court upheld the constitutionality of such charge in a military context.[137]  There a black training Sergeant told a group of recruits that Vietnam was a “white-man’s war” and discouraged their participation.  Because the Sergeant reasonably should have known that his conduct would have been objectionable, the court upheld the charge against a void for vagueness challenge.  In doing so, the court cautioned that it would not uphold a similar rule in a civilian context.  However, teaching a recruit how to break and enter, and to tap phones, warranted a suspension.[138]  The Military Appeals Court upheld the conduct unbecoming charge against a lieutenant who had sexual relations with a trainee in its 1986 decision.[139]  Because of the quasi-military nature of police work, many state court decisions, including those from Massachusetts, have upheld the use of a conduct unbecoming charge in police disciplinary cases.[140] 

 

            There are three primary grounds for challenging the alleged vagueness of conduct unbecoming rules.  First, several cases have argued that because society’s standards of unacceptable conduct change with the times, so too should the benchmark behaviors against which police officers are judged.[141]  Second, officers have argued that there are an infinite number of possible scenarios which would not easily be categorized as acceptable or unbecoming.  Therefore, they contend that reliance on past decisions would provide insufficient guidance as to whether a certain activity would be in violation of the rule.[142]  Third, the subjective nature of the breadth accorded by the court to the phrase “conduct unbecoming” gives police departments unfettered discretion in enforcing the regulation.[143]  Such discretion, they contend, substantially decreases the likelihood of even-handed application of the regulation.  Depending on the chief’s opinion of the officer, they say, one officer could be disciplined for the same conduct which, when engaged in by another, might go unpunished.  To date, the overwhelming majority of courts, including those of Massachusetts, have found conduct unbecoming a valid and enforceable regulation.  Conduct unbecoming is not an unconstitutionally vague charge according to the federal court which upheld a 30-day suspension of a police officer who while off-duty made rude remarks to bank employees.[144]  Another federal court rejected all constitutional challenges and upheld the discipline of a police officer for an act of adultery.[145]

 

Practice Pointers

 

            A department’s rule concerning conduct unbecoming an officer, in order to pass constitutional muster, must be narrowly drawn sufficient to meet the notice requirements of the due process clause.  A rule will be subject to challenge as being void for vagueness if it is not sufficiently clear that it avoids arbitrary and discriminatory enforcement and provides fair warning of prohibited conduct.[146]  When one could reasonably ask whether the officer knew or should have known that his conduct would certainly be violative of the rule, the rule may be void for vagueness.

 

            It is not sufficient that a department’s rule bans certain conduct which almost anyone would deem improper.  It must also be sufficiently clear to officers whether the conduct in which they are about to engage is violative of the rule.  For example, while everyone would agree officers must not engage in criminal activities themselves, there might not be general agreement concerning an off-duty officer’s presence in or near a location where there is potential for some unlawful conduct on the part of others.  Certainly one could not bar officers from attending concerts or fireworks displays; however, officers should be aware that their presence at a gathering of predominantly off-duty or retired offers from their own or other department could increase their chances of being found guilty of conduct unbecoming where conduct becomes criminal or otherwise publicly offensive.  The latter might include instances of sexual, racial or other forms of discrimination where the officers’ fitness for duty might be brought into question.

 

            When an officer is out of state, the rules become even more susceptible to a vagueness challenge.  Without the powers of arrest, and in a lawful social setting -- even where other off-duty officers may be present -- not connected with their official police duties (e.g., not at a police convention or training program), it will be difficult to prosecute successfully a charge of conduct unbecoming an officer for anything but an intentional and outrageous or criminal action.  Unless a specific rule requires otherwise, mere bad judgment in not leaving a concert or other place where consumption of alcohol or drugs by others may lead to a disturbance probably will not be sufficient to charge off-duty officers with conduct unbecoming.  Certainly a different result will obtain where it can be shown that an off-duty officer’s alcohol consumption led him to engage in unlawful conduct, for example.

 

                        Right to Privacy

 

            There is no specific reference to a right of privacy in either the Federal or Massachusetts Constitution.  However, since the 1960’s, courts have been referring to such constitutional right in deciding a variety of cases in the non-law enforcement area.  The U.S. Supreme Court, in its 1973 decision of Roe v. Wade, stated that privacy rights emanate from the Fourteenth Amendment’s concepts of personal liberty.[147]  It did not specify, however, whether such right was fundamental or minor.  To the extent that courts are willing to analyze disciplinary challenges on a constitutional basis, it will be critical to determine whether the right to privacy is deemed a fundamental or simply a minor constitutional right.  Great protection is afforded fundamental rights.  A department would have to show a compelling need in order to justify prohibiting conduct which fell in the zone of an officer’s right of privacy if the court were to treat such right as fundamental.  In fact, the department would be required to demonstrate that no less intrusive means of achieving its objective was available.  On the other hand, where a minor constitutional right is involved, the department need only show that the rule bears some rational relationship to some legitimate public purpose in order to justify regulating particular conduct.

 

            Courts do not readily rule either statutes or rules unconstitutional on vagueness grounds.  In its 1972 decision in the case of Colton v. Kentucky, the U.S. Supreme Court noted: 

 

. . . the root of the vagueness doctrine is a rough idea of fairness.  It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of contact are prohibited . . . [148]

 

            A common sense approach is used by courts in deciding whether a rule is so vague as not to warn employees of what conduct is likely to result in discipline.  In its 1993 decision in Civil Service Commission v. Letter Carriers, the U.S. Supreme Court stated;

 

. . . [T]here are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the provisions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest . . . the general class of offense to which . . . (the provisions are) . . . directed to plainly within (their) terms . . . (and they) will not be struck down as vague, even though marginal cases could be put where doubts might arise . . . [149]

 

            This is not to say that courts will not throw out disciplinary cases where it is clear that an officer was not in a position to know that the complained of conduct was wrong or where another rule more appropriately covered the situation.  For example, a Maryland officer was  charged with bringing the department into disrepute (one of the elements of most conduct unbecoming charges) for failing to warn her fellow officers that the person they were arresting was armed.[150]  In that case the notice of charges was deemed inadequate where it simply incorporated an incident report instead of spelling out the reasons.  The court reversed the termination, ruling that an element of due process was the need for specificity.

 

            An officer who expressed anger for the chief’s failure to send her to a training program was found insubordinate but not guilty of conduct unbecoming, where the department’s manual did not list the rule of conduct unbecoming an officer.[151]

 

            The firing of an assistant chief for conduct unbecoming was overturned where there was no evidence that he violated a department rule or policy since there were no guidelines and he had never been warned, or otherwise placed on notice, that what he was doing was wrong.[152]  There the assistant chief had been associating with a known heroin addict without any apparent law enforcement purpose.  However, he claimed that he spent time with her trying to develop her as an informant.  In fact, he previously told a state police officer that this was what he was doing.

 

            A series of New Jersey cases have upheld the viability of conduct unbecoming charges.

 

-        Two officers got into an actual fight and exchanged gun fire.  Fortunately no one was injured.  The court noted that a finding of misconduct by a police officer need not be predicated on the violation of any particular department rule or regulation.[153]

-        An off-duty officer that was driving drunk was obviously unable to respond to emergencies and uphold the law could be disciplined for conduct unbecoming.[154]  The court found that the officer had deviated from the high standard of care imposed on police officers and implicit in all department regulations.

-        The finding of conducting unbecoming need not be predicated upon the violation of a particular law or regulations.[155]

-        It was conduct unbecoming to refuse to cooperate in an examination to determine the officer’s sobriety following an off-duty accident.[156]  The court noted that the charge need not be predicated upon the violation of any particular rule or regulations.  It may be based merely on the violation of the implicit standard of good behavior which devolves upon one who stands in the public eye as an upholder of that which is morally and legally correct.

 

The following are examples of how courts in other jurisdictions have treated charges of conduct unbecoming an officer:

 

-        A suspension was proper for an off-duty police captain who used profanity and got in a fight with a teenager.[157]

-        It was unnecessary to show a nexus to a city employee’s job who was terminated for conviction of incest.[158]

-        An off-duty firefighter who was caught shoplifting could be disciplined and the fact that the store failed to prosecute him was irrelevant.[159]

-        The wording of the conduct unbecoming charge required the department to prove that conduct actually impaired departmental efficiency or caused disrepute so therefore the New Mexico Appellate Court held that the city must show that a police officer’s off-duty domestic dispute with his wife affected his employment before disciplinary action was appropriate.[160]

-        Off-duty alcohol related domestic violence was conduct unbecoming an officer which justified termination.[161]

-        “Conduct unbecoming” must be an actual rule before an employee may be disciplined for this charge.[162]

-        The constitutionality of conduct unbecoming was upheld and was not defective for vagueness.[163]

-        Fighting while on-duty warranted a suspension and provocation was no defense to this charge.[164]

 

Practice Pointers

 

One court noted that the phrase conduct unbecoming is an elastic one.  It has been defined as “any conduct which adversely affects the morale or efficiency of the bureau . . . (or) which has a tendency to destroy public respect for municipal employees and confidence in the operation of municipal services.”[165]

 

The rule prohibiting conduct unbecoming an officer is intended to encompass numerous acts of misconduct which do not necessarily fall squarely within the scope of a more specific rule.  Reliance on a specific rule is, of course, preferable in disciplinary proceedings.  However, since it is virtually impossible to define and specify in advance all acts in which police officers should not engage, the need for a general rule, such as conduct unbecoming, cannot be avoided.

 

Two factors are particularly appropriate in determining whether a conduct unbecoming rule may serve as a legitimate basis for taking disciplinary action against a police officer.  First, whether there is a reasonable connection between the conduct at issue and the officer’s fitness to perform police duties.  Second, whether the conduct is of a type which common knowledge, training, or departmental practice indicate is inappropriate, thereby providing the officer with notice that disciplinary action may be the consequence of committing the act.

 

When it is cited as a basis for proposed disciplinary action, specific details regarding the alleged acts of misconduct should be provided in the notice to the officer.  These would include, at a minimum, the time, date, place, and nature of the misconduct.  For example: “You are charged with conduct unbecoming an officer to wit:  On [date], at approximately [time], in the Dispatch Center of the Police Station and in the presence of several members of the public, you engaged in a loud verbal altercation with Dispatcher Smith and in the course of that altercation you used profanities and racial slurs.”

 

            Chiefs should be careful not to overuse the rule against conduct unbecoming.  In the past courts paid great deference to the internal operations of law enforcement agencies.  As the quasi-military character begins to dissipate, it is possible that courts will be inclined to review discipline more in line with non-police agencies’ standards.

            There are several internal problems that may result from the improper use of the charge.  As with any discipline that is overturned, the officer could be made to look like a hero.  This is especially so if the department perceives the officer was being treated unfairly.  A chief might be perceived as lazy by an arbitrator or court, not to mention members of the department, by relying on such a catch-all charge.  Also, when another more specific charge is available, the use of conduct unbecoming may set a bad precedent and make it more difficult in future cases to document the exact nature of the improper conduct.

 

            When challenged, a chief should be able to point out the relationship between an officer’s conduct and the underlying purposes of the charge. Even if the charge might appear to be vague on its face, the chief should show that any reasonable officer should know that the complained of conduct was improper.  Pointing out how the reputation of the department was actually damaged would help.  Similarly, explaining how the department’s morale or efficiency was harmed is worthwhile.

 

            Reviewing how an officer learns the principles of the law enforcement profession will help an arbitrator or court to conclude that a reasonable officer should know that certain conduct was prohibited.  This could include submitting a copy of relevant academy and in-service training material.  Also, a copy of relevant orders, publications, rules, and policies and procedures would be appropriate.  Even including a copy of the Law Enforcement Code of Ethics has been found helpful in such cases.

 

XII.  Right to Union Representation at an Investigatory Interview

 

                        The Weingarten Rule

 

In the landmark decision of National Labor Relations Board v. Weingarten,[166], the U.S. Supreme Court held that an employer committed an unfair labor practice in violation of the National Labor Relations Act (NLRA) when it denied an employee’s request to have a union representative present at an investigatory interview which the employee reasonably believed might result in disciplinary action.  In reaching this conclusion, the Court affirmed the National Labor Relations Board’s determination that the denial of union representation at such an investigatory interview interferes with the employee’s right under § 7 of the NLRA “to engage in…concerted activities for…mutual aid and protection.”  The Court also noted that, in prior decisions of the National Labor Relations Board, including Quality Manufacturing  Co.,[167] and Mobil Oil Corp.,[168] the following limits were imposed on the right to union representation:

 

1.      The right arises only in situations where the employee requests representation.  Thus, an employee may forgo this right and participate in an investigatory interview without union representation.

 

2.      The right to representation is limited to situations where the employee reasonably believes that the investigation will result in disciplinary action.  Thus, for example, routine discussions between an employer and an employee involving the giving of instructions or training or needed corrections of work techniques will not trigger the right to representation since they do not result in adverse disciplinary action.

 

 

3.      The employee’s exercise of the right to union representation may not interfere with legitimate employer prerogatives.  Thus, the employer is free to carry on its investigation without interviewing the employee if the employee insists on representation.

 

 

4.      The employer has no obligation to bargain with the union representative at the investigatory interview.  The representative is there to assist the employee, not to transform the interview into an adversarial proceeding, although the Court suggested that a “knowledgeable union representative could assist the employer by eliciting favorable facts….”

 

 

Note:  In 1988, the New Rochelle (New York) Police Association’s demand that an officer cannot be compelled to testify at a departmental hearing concerning the officer’s conduct was ruled a non-mandatory subject of bargaining.[169]

 

The Weingarten Rule in Massachusetts

 

The Weingarten Rule is based upon an employee’s rights under § 7 of the National Labor Relations Act to engage in concerted activities for mutual aid and protection.

 

The public employee collective bargaining law in Massachusetts provides employees with a similar statutory right.  M.G.L. c. 150E, § 2 provides, among other things, that employees have the right  “to engage in lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection, free from interference, restraint, or coercion.”

 

In applying the rights set forth in M.G.L. c. 150E, § 2, the Massachusetts Labor Relations Commission has adopted the principles of the Weingarten case and has held that an employee has the right to request union representation at an investigatory interview which the employee reasonably believes might result in discipline.[170]

 

The Labor Relations Commission has provided the following additional guidance with respect to the appropriate “contours and limits” of the Weingarten Rule:

 

1.      The right to union representation is a right that may be exercised only by the employee who is to be interviewed.  The employee has the right to seek union representation or to forego that right and participate in the interview process unassisted.  In the absence of an individual employee’s request for representation, the union may not demand, on the basis of M.G.L. c. 150E, § 2, to be present at the interview of that employee.  Therefore, in Commonwealth of Massachusetts, 9 MLC 1567 (1983), the Labor Relations Commission concluded that,  “the Union’s interest in participating in investigations is derivative of the right of the individual employee, and dependent on the assertion of that right by the individual”, and it dismissed a prohibited practice charge based upon the employer’s denial of a blanket request by the union to attend all investigatory interviews even in the absence of requests for representation by affected employees.

 

2.      The right to union representation at an investigatory interview does not come into play unless the employee requests union representation, although a valid request may be inferred from an employee’s questions or comments.  Thus, in City of Fitchburg,[171] the LRC hearing officer concluded that a police officer who stated, “Shouldn’t I have someone here with me?” when ordered to answer questions during an administrative investigation had validly requested representation even though the words “union” or “representation” were not specifically mentioned.

 

 

3.      There is no right to union representation unless the meeting with the employer is investigatory in nature and the employee reasonably believes that the investigation will result in discipline.  “A meeting is investigatory in nature when the employer’s purpose is to investigate the conduct of an employee and the interview is convened to elicit information from the employee or to support a further decision to impose discipline.”  Commonwealth of Massachusetts[172]. 

 

 

Therefore, in Commonwealth of Massachusetts,[173] Labor Relations Commission held that an employee was not entitled to union representation where the meeting with the employer was intended to discuss job performance and methods for improving that performance and where the employer gave assurances to the employee that disciplinary action was not contemplated.  Additionally, the employer was justified in disciplining the employee for insubordination for refusing an order to attend a meeting with the employer where the employee had been given repeated assurances that the meeting was not investigatory in nature and would not result in disciplinary action;  the employee’s insistence on union representation under such circumstances was unreasonable and would not excuse the employee’s insubordination. Similarly, in City of Peabody,[174] the Labor Relations Commission concluded that where a superior officer simply requested a police officer to come to his office after the officer had re-submitted a required report, the superior officer did not violate the officer’s Weingarten rights when he refused to allow the officer to have a union representative present at the meeting.  Nor did the superior officer violate M.G.L. c. 150E when he ordered that a previously submitted report be re-submitted without the previously included references to giving the union and the union’s attorney copies of the report.

 

4.      Citing the Weingarten decision, the Labor Relations Commission noted that the function of the union representative at an investigatory interview is to  “clarify the facts,”  to “elicit favorable facts,” and to otherwise assist an employee “who may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors.”  However, the employer need not bargain with the union representative at an investigatory interview; neither may the union representative interfere with legitimate employer prerogatives by virtue of its participation. [175]

 

                        The Weingarten Rule in Other States

 

The application of the Weingarten rule is generally followed by most states as well as in the case of federal workers.  The following cases are examples of how the rule has been applied elsewhere:

 

-        Supreme Court holds that a federal employee who is a member of a bargaining unit is entitled to the presence of his union representative at an interview, conducted by the Office of Inspector General. Although the OIG is not a part of the management hierarchy, discipline could result from the interview.[176]

-        Federal court issues an injunction preventing management from introducing a use-of-force incident report in the disciplinary hearing. Superiors required the involved officer to complete the report without the presence of the union attorney. Court put compelled reports in the same category as formalized IA interviews.[177]

-        Illinois Supreme Court upholds the termination of a sergeant who refused to speak with the sheriff without her union rep. Present. Justices conclude that Weingarten is not applicable because the interview was “informal” and nondisciplinary.[178]

-        Divided state labor board holds that an EMT was entitled to Weingarten representation at an interview to have his picture taken, and to answer a questionnaire.[179]

-        Arbitrator concludes that the Weingarten decision has no application to an immediate suspension and an order to leave the premises. The employee had a duty to obey and was not entitled to consult with his union representative at that time.[180]

-        Riverside deputy, accused of beating illegal immigrants, sues the Sheriff Dept., because he was required to complete an “incident” report without the assistance of counsel.[181]  Note: See 1997 U.S. Dist. Lexis 13797 for the decision in that case.

-        Michigan arbitrator extends Weingarten Rights to a written report that was requested by a supervisor. Officers need not assert their rights; management must inform subordinates of their right to representation if the inquiry can lead to discipline.[182]

-        Appellate court upholds termination of trooper who refused to give a statement because the union rep was not present. He should have obeyed the order and filed a grievance.[183]

-        Arbitrator concludes that the Weingarten decision requires management to delay an employee interview until a labor rep. Is present, whenever the employee “reasonably believes” that disciplinary action might be taken. The fact that management chooses to characterize an interview as “nondisciplinary” is not controlling.[184]

-        Michigan appellate court holds that Weingarten applies.[185]

-        The Weingarten decision protects members of a bargaining unit, and does not protect nonunion members, unless the bargaining agreement specifically includes them. That decision said “when no union is present, however, the imposition of Weingarten rights wrecks havoc...” An employer does not have to deal collectively with an otherwise unrepresented worker.[186]

-        Iowa holds that public employees are entitled to a union rep’s presence at a disciplinary interview or interrogation.[187]

-        New Hampshire Public Employment Labor Relations Commission has adopted Weingarten rights for public employees.[188]

-        New York and West Virginia have declined to follow Weingarten.[189]

-        Weingarten does not give an employee the right to have a labor rep present when a strip-search is conducted.[190]

-        Trial judge holds that officers may consult with union reps before completing a shooting report; prior policy continued.[191]

-        Florida reaffirms that Weingarten applies to public employees.[192]

-        Pennsylvania applies Weingarten decision; officer has right to union representation during disciplinary interrogation.[193]

-        Right to representation by union representative upheld in Florida.[194]

-        Trial judge holds that officers may consult with union reps before completing a shooting report; prior policy continued.[195]

-        California follows Weingarten decision.[196]

-        Federal appeals court reaffirms Weingarten holding and extends it to counseling sessions about the employee’s job performance, which was a “preliminary stage in the imposition of discipline.”[197]

-        Right to representation by union representative upheld in Florida.[198]

-        Weingarten rule limited to union members; non-union workers are not entitled to an employee rep at a disciplinary interview.[199]

 

The Role of the Union Representative

 

Although the Supreme Court’s Weingarten decision affirmed the right of an employee to have a union representative present during an investigatory interview which the employee reasonably believes might result in disciplinary action, the Court did not specifically determine the extent of the role to be played at the interview by the union representative.  The Court did note, however, that the representative was there to assist the employee and not to transform the interview into an adversarial process, although the Court further acknowledged that the representative could also be of assistance to the employer by eliciting favorable facts.  The Labor Relations Commission has adopted the principles set forth in the Weingarten decision.  Some clarification as the role of the union representative at an investigatory interview has been provided by the decision of the Massachusetts Supreme Judicial Court in Massachusetts Correctional Officers Federated Union v. Labor Relations Commission.[200]

 

In the Massachusetts Correctional Officers case, the SJC specifically held that a public employer did not violate an employee’s right to union assistance when it prohibited the union representative from questioning the employee after the employer completed its inquiries.  The Court rejected the union’s argument that, in failing to permit the representative to question the employee directly, the employer unlawfully restricted the permissible scope of a union representative’s role in an investigatory interview.  The Court noted that the representative had been allowed to assist the employee by his presence at the interview and by his summation, in which he clarified the employer’s information on the incident under investigation after eliciting facts from the employee outside the interview room.

 

In affirming the decision of the Labor Relations Commission that the employer had not violated M.G.L. c. 150E, the Court stated:

“Nothing in the statute [M.G.L. c. 150E] or relevant case law provides an employee with a right to have a union representative question the employee directly in an investigatory interview conducted by the employer.  See Commonwealth of Mass., 9 M.L.C. 1567, 1571 (1983) (‘The employer need not bargain with the union representative at an investigatory interview;  neither may the union representative interfere with legitimate employer prerogatives by virtue of its participation’).  The Court in  Weingarten…stated that a union representative ‘could assist the employer by eliciting favorable facts.’   In this case, the representative was not silenced but rather was permitted to elicit privately and then present all facts favorable to the employee.  The employee was not entitled to have a union representative question her where the employer did not find such questioning conducive to ‘getting to the bottom of the incident occasioning the interview.’…We conclude that the [Labor Relations] commission did not violate Weingarten principles or G.L. c. 150E, § 10 (a ) (1), in circumscribing the contours of the union representative’s participation in an investigatory interview while still permitting him to speak and ‘relate accurately the incident being investigated, or ... raise extenuating factors.’”

 

Practice Pointers

 

1.      The “right” to union representation at an investigatory interview that reasonably may result in disciplinary action against an employee is not specifically mentioned in Section 7 of the National Labor Relations Act or Section 2 of the Massachusetts Public Employee Collective Bargaining Law.  Administrative agencies (the National Labor Relations Board and the Massachusetts Labor Relations Commission) have found this right to be a component of the specific statutory right of employees to engage in concerted activities for mutual aid and protection.  Since the scope of this right is subject to further administrative interpretation and clarification, employers should document fully all actions taken in the course of administrative investigations and should be prepared justify those actions before a reviewing agency or court if necessary.  

 

2.      An employer is not required to allow a union representative to be present at an investigatory interview of an employee unless the employee requests such representation or the department’s collective bargaining agreement provides for it.  A request for representation need not be made in any particular manner to be valid, and it may be inferred from the employee’s comments or questions at the interview (e.g., “Shouldn’t I have someone here with me?”).

 

 

3.      An employer is not required to allow a union representative to be present every time there is a discussion with an employee.  The so-called Weingarten right to union representation applies only to interviews which the employee reasonably believes will result in discipline.  Routine discussions involving job performance and interviews where assurances of no disciplinary action are provided to the employee do not trigger a right to union representation.

 

 

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