What is the burden of proof to sustain allegations of misconduct against a police employee? Nearly all law enforcement agencies use “preponderance of the evidence” as the burden of proof to sustain allegations. Preponderance of evidence has been defined as more than 50 percent; a tipping of the scales of justice; or more likely than not. Some agencies and public employment settings use a higher burden of proof – clear and convincing evidence. This is somewhere between preponderance and beyond a reasonable doubt or the criminal burden of proof. This higher level is usually found in agencies controlled by a human resources/personnel manager, a civilian review panel, and agencies within educational or hospital settings. Much of the public employment case law and some state administrative rulings require that when the discipline is significant, such as termination, demotion or severe suspension, the burden of proof must be more than a preponderance of the evidence. But, then, you wouldn’t impose this severe level of discipline on a close call. When you’re dealing with one of your employee’s career, great care must be taken to be fair and reasonable.
Where is this burden of proof found in your agency? Surprisingly this question stumps many police administrative investigators and managers. Frequently the burden of proof can be found in personnel codes, civil service procedures, or city charters. But, unfortunately, in many agencies it has not been reduced to writing. The easiest method to document this burden of proof is to include it in your agency manual. It is also wise to prepare an employee handbook to guide new employees on disciplinary and grievance procedures and it can also be included in that type of document.
Must all employees be given a Garrity admonishment when questioned during an administrative investigation? No, is the simplest answer. The Supreme Court cases of Garrity v. New Jersey and the case the following year, way back in the 60s, Broderick v. Gardner essentially stated that police officers do not give up their Constitutional rights by virtue of their employment. The Fifth Amendment states that persons are protected from being forced to testify against their self interests in criminal matters. But that has been interpreted to mean that those rights do not apply to administrative investigations, but the employee must be given immunity from having these compelled statements used against them in any criminal matter in which they are the suspect. The employee, which has been applied to all public employees, must answer all questions by the employer that are specifically, directly and narrowly related to the employee’s ability and fitness to perform his/her job or be subject to discipline up to and including termination for insubordination.
So, there are only two instances when the Garrity admonishment and a compelled statement is required from an employee. The first and most significant reason for this admonishment is when there is some potential that the incident being investigated may be criminal in nature. The admonishment normally protects the employee from having the statement or the “fruits” of the statement being used against him/her during any criminal prosecution of the employee. The second purpose for using this form of compelled statement is when the employee refuses to answer questions without it, even if there is no potential criminal prosecution. So, in most of our administrative investigations, it would not be necessary as most of these allegations, verbal abuse, profanity, attitude, or neglect of duty, are not criminal. However, most agencies provide this form of admonishment to all employees being interviewed during administrative investigations, even witnesses. It doesn’t create any problem, but isn’t necessary.
What does a bifurcated investigation mean in law enforcement? A bifurcated investigation in a law enforcement agency usually concerns the investigation of a criminal matter involving a law enforcement agency employee. These types of investigations usually involve one concerning the criminal aspect and another one directed towards possible administrative violations. Most agencies conduct these within their own agencies. Some even require IA/OPS to do both. This may not be the most effective method for a variety of reasons.
In most agencies criminal conduct by police agency employees is rare. Some say it has never occurred or represents only 1 or 2 percent of the administrative investigations. When this type of incident does occur, it’s essential that you huddle together and make those difficult decisions on how to proceed. You have to consider the public image of the agency, the requirements for both investigations and the welfare of the involved employee. You have to make a decision that will best protect the rights of all persons and ensure a fair and reasonable investigation into the matter, both from the criminal and administrative standpoints.
Bifurcation of the investigations means you have to develop what some refer to as a “Chinese Wall” between the two investigations. In reality, the only possible complication that can arise is the compelled statement of the targeted employee of the criminal investigation. The IA/OPS investigator can be present and/or review the entire criminal investigation. The criminal investigator can use anything developed by the IA/OPS investigation other than the targeted employee’s compelled statement. A tenacious prosecutor who learns that you conducted a compelled statement of the targeted employee will frequently ask you for it. The proper answer is no. The prosecutor will then go to court seeking an order to have you turn it over, which may or may not be granted.
The fairest and most reasonable approach to this bifurcated investigation is to have the criminal investigation conducted by an agency other than your own. This is unacceptable to many police agencies, particularly larger agencies that have a quality detective unit. But having an outside agency conduct the criminal investigation, even in fatal traffic accidents involving police agency vehicles, does not mean you’re unable to conduct the investigation. It simply removes the appearance of evil that you’ll do everything to protect your employee and/or agency. It removes the potential allegation of a “cover-up” at least from your shoulders. It also guarantees that your employee will get all the benefits of the Constitution and not feel obligated to cooperate with the criminal investigation. If your agency is doing the criminal as well as the administrative investigations, the involved employee may feel compelled to cooperate with the criminal investigation, whether that belief is correct or not.
Having the criminal done by an outside agency, however, does not relieve your agency of the potential civil liability. It may not be done broadly enough to meet your administrative needs. You must also conduct the administrative investigation. The decision by a Grand Jury or Coroner’s Inquest doesn’t answer the questions of whether your policy was adhered to or whether there are concerns about tactics, training, equipment and supervision. Now the decision you must make is whether to wait until the criminal investigation is over or conduct your administrative investigation concurrently.
Now you’re facing essentially a political decision and an evaluation of whose interests are being protected. The prosecutor may want you to hold off until the decision is made to file or not file on the employee. Can you afford to wait? What do you do with the employee? Do you care whether the prosecutor files on the employee or whether the employee is convicted? Do those decisions have any meaningful bearing on the needs of your agency and the community being served. If your agency sustains allegations of misconduct by a preponderance of the evidence, does the outcome of an investigation depending on the higher burden of proof beyond a reasonable doubt coupled with the prosecutor’s desire to believe the case is winnable? That’s the hard decision you must make; but fortunately you won’t be faced with that type of decision on a frequent basis. Now, however, is the time to consider what protocol you want your agency to follow.
Is it necessary to have an Early Warning System? Yes; that’s the simple answer. But what is an Early Warning System? Actually there has been a change in the terminology during the past few years. This system is now recommended to be termed an Early Intervention System. It’s probably a term more closely associated with the underlying purpose for this type of system. It, the EIS, is not meant to be a form of discipline. It should be considered a supervisory technique to ensure that employees who may need supervisory help are identified as early as possible. This type of supervisory help or intervention may be the format of counseling, training, redirection or other remedial effort. While the concept began in the 1980s, it didn’t really become relatively common until the very late 1990s and then became a standard for CALEA accreditation in 2002. There are computer programs available from several companies and good programs have been developed by individual police agencies. Some effective systems are simply pen and paper systems. They can be effective in alerting an employee that his/her attitude, behavior or performance must change or adverse consequences could result.
The most difficult aspects of this form of alert system is what incidents are going to be captured, in what number, and over what period of time. You could then consider different assignments and shifts and have different evaluations. There are two complications in the development of this type of system. First, is whether it will be too late in providing notice or can it be made to be time sensitive. A second issue is who is going to be imputing the data or will it be compatible with your current records management system. It’s not an easy system to develop and manage, but the outcome for the employee needing early guidance and the risk management needs of the agency are significant benefits.