Finally, a protocol for IA interviews
Most of the time, Internal Affairs investigators and representatives of accused officers getalong. After all, it is a state law that requires personnel complaint investigations and it is a state law that requires the right to representation. By law the interview will be done and the officer gets a representative. Why fight?
However, there are some folks that just don’t get it and get wrapped up in unnecessary power trips. Truth be told—on both sides of the aisle. Let me acknowledge right off the bat that the overwhelming experience of myself and most representatives is that Internal Affairs investigators and divisional personnel complaint investigators act in a very reasonable manner, but it only takes a few to poison the water barrel.
I have been advocating for years that we needed a protocol that everyone could live with to reduce the conflicts that inevitably arise in this sometimes highly emotional field of endeavor. It has finally happened. Why? I think that Chief Beck has realized through the anger shown during contract negotiations and through the 10,000 Volt survey that the discipline system has little respect from the troops. Although, we have been largely stonewalled in trying to change the process itself, the Chief saw the wisdom in reducing conflict at the beginning of the system. So some common ground was hammered out that resulted in Bureau Order No. 1 of 2015.
The order starts out by recognizing the stress both of IA investigators and officers. It says this. “Investigators often encounter many challenges when striving to complete an investigation within the five month compliance date. Nevertheless, it is important to consider the stresses and hurdles that employees who are subject to an interview must overcome, and should make every reasonable effort to make them feel at ease.” That’s a good thought. Both sides are feeling the pressure.
Scheduling the interview was often one of the points of contention, especially after the 10-day rule was put out by Internal Affairs. It started as a hard rule that the interview had to be completed within 10 days of the officer’s notification that there would be an interview. Some IA investigators would schedule the interview on the 10th day and too bad if that didn’t fit into the officer or representatives schedule. The officer was ordered to appear. In one case, the investigator wouldn’t change the interview schedule by two hours to allow the officer’s attorney to finish another interview so he could represent the officer.
Some investigators refused to talk to the attorney to arrange an interview time holding that it was the officer who was being ordered and scheduling representation was his or her problem. That unnecessarily complicated things because the two people with the most complicated schedules are the League attorney and the IA investigator. The order handles the problem in this way. “It is the goal to accomplish interviews within 10 business days of the employee receiving notice to contact the investigator. Once an employee has identified his/her preferred representative or attorney, the investigator should work directly with the designated representative to schedule the interview.” Furthermore, the order says that interviews should be scheduled when the officer is on duty.
The place of the interview was also a frequent bone of contention. Officers sometimes were embarrassed to be interviewed at their station because of the rumors it would engender, others were intimidated when summoned to the bowels of Internal Affairs at the Bradbury. Some investigators refused to go to an attorney’s office and wanted interviews, for their convenience, to always take place at their office. The preferences of the officer were all too often ignored. The order establishes that the feelings of the officer should be taken into account. It says this. “Although the investigator will ultimately determine the location of the interview, investigators should consider reasonable requests to conduct the interview at a location of the employee’s choice. These may include the employee’s work location, the office of the employee’s representative, attorney, or union, or any Internal Affairs office.”
Unfortunately, there were times when the first contact from Internal Affairs was a “be there or else” order. Also, unfortunately, there were plenty of times when officers ignored emails or messages from Internal Affairs investigators to contact them. Neither is a good thing. The order sets forth how these situations should be handled. “Investigators should attempt to schedule interviews that are mutually convenient for the employee, his/her representative and the investigator prior to ordering the employee to be present to be interviewed. In the rare circumstances where time is of the essence, and it is determined it is appropriate to order the employee to be interviewed, the investigator must ascertain if there is a valid reason the employee has not responded to prior emails or other forms of communication requesting contact to schedule an interview (i.e., vacation, days off, etc.). Ordering an employee to be interviewed should be considered a ‘last resort,’ not the norm.”
Conflicts would sometimes arise at the interviews. Internal Affairs investigators complained that they would arrive for an interview at the scheduled time and have to wait while the attorney conferred with the officer, something they felt should have been done in advance. Attorneys, on the other hand, would complain that IA wouldn’t tell them what the allegation was so they could prepare in advance and then bring documents to the interview that the officer had not reviewed. The order addresses this problem as follows. “It is the goal for interviews to commence at the time they are scheduled. However, if the investigator has documents and/or videos he/she would like the employee to review prior to the interview, and the material was not previously identified and/or available for the employee and his/her representative to review, time must be provided either prior to the scheduled interview time or during the interview for the employee and his/her representative to review the materials.”
Although the order tells us that investigative strategy is up to the individual investigator, consideration should be given to informing the employee, at the time of the scheduling of the interview, of the existence of any associated reports he/she may have completed (although the investigator is not required to provide copies, just DR or booking numbers so the officer can pull the reports).
At one time, IA investigators were advised by their management that they didn’t have to answer the questions on the League card at the beginning of interviews and that the League card was repetitious. And furthermore that this was an Internal Affairs interview, not an employee reps interview, so statements from the representatives should be limited. This caused some serious fights in the interview between investigators and reps since reps had been asking these questions for the previous 15 years or so without objection. In the end, after a little head banging between the League and the Department, the Department shortened their lead in and the League changed the card to ask one question instead of four. (See, we can get along!)
The order says this. “At the beginning of the interview, if the employee is a sworn officer he/she should be allowed to ask the following question to clarify the Lybarger admonition, ‘If I refuse to answer your questions, will I be subject to discipline that could be as much as discharge or removal from office?’ The employee should then be allowed to make a statement explaining why they will give a statement.”
As for our fear of being reduced to a silent potted plant during the interview instead of a representative, the order makes the purpose of the interview clear. “[T]he interview is not only a fact-finding process for the investigator, but also an opportunity for the employee to tell his/her side of the story. To accomplish this, at the end of the formal questioning by the investigator, the employee should be asked if he/she has any information to add to his/her statement, and he/she should then be allowed to do so. The employee representative or attorney may assist the employee in this process by asking the employee follow up questions.”
The order recognizes the right to representation and states that “a reasonable amount of time should be allotted for an employee to obtain a representative of his/her choice.” And no one should be discouraged from obtaining representation. The order is firm. “Under no circumstances should an accused employee be discouraged from seeking representation or from having the representative present at all times, or be told that he/she doesn’t need a representative, or that he/she doesn’t have a right to a representative.”
This new order should go a long way toward reducing the tensions caused by that email or phone call from IA that tells an officer that they are about to be introduced to the discipline system. I would like to thank Deputy Chief McCarthy, Commander Maislin, and Commander Blake for their understanding of the problems and their willingness to try and make things better.
Can it work? A couple of days ago, I received a frantic call from the office of one of our attorneys. An officer the attorney had been representing had been ordered in for an interview with Internal Affairs in two hours, with or without an attorney. The attorney was in other interviews and could not attend, but the order would not be changed. As it happened, I was in a meeting with Commander Maislin of Internal Affairs at that very time. I related the circumstances to him and he stepped into the hallway to make a phone call. When he returned, he advised me that the officer would be allowed a reasonable time to obtain a representative and the officer need not appear at the ordered time. Yes. It can work.
Everyone needs to be reasonable and the rules in Bureau Order 1-15 take into account both sides of the interview issues that commonly arise. Remember, interviews on personnel complaints are mandated by state law and the right to representation is mandated by state law. Both sides have to be there, let’s follow the rules and make the process as smooth as possible.
When you get that email or call from IA, act on it immediately. Call the League, or ORS, and get the ball rolling to obtain representation. Do not wait until the last minute! When the time for the interview is set, arrive as prepared and ready to go as possible. If you are prepared and professional, the Internal Affairs investigator is more likely to respond professionally. If they do not, call the League, and always…
Be legally careful out there.
