The Latest Assault on Your Rights!
A few months ago, the League found it necessary to file a lawsuit against the Department alleging a pattern on the part of Internal Affairs to, among other things, deprive League members of their right to representation (see the Warning Bells article in the June issue of Thin Blue Line for details). In that lawsuit, the Department is currently refusing to cooperate with depositions and the League is taking the Department into court and asking for sanctions.
This week, Internal Affairs’ efforts to curtail your rights reached new heights of outrage. We have always believed that when Internal Affairs orders a League member to appear at a particular time and place to answer questions upon pain of insubordination, this member is in potential danger of punitive action. Making false and misleading statements, failure to report misconduct, insubordination and violation of a thousand other rules in thick LAPD manuals are only a captain’s opinion away from becoming allegations of misconduct.
So, when an officer is ordered to appear at a Board of Rights and submit to questions from an Internal Affairs advocate, two captains and a representative of an accused officer, the League sees little difference between this and any other personnel investigation. Consequently, upon the request of an officer (who belongs to the Legal Plan), we will assign an attorney to represent the officer and protect his or her rights. This has never presented a problem, but recently that changed.
The League does not choose sides in those cases where League members are in opposition to each other. We are about protecting the process. If League members are in conflict, we will appoint different counsel for each of them. It is our belief that each officer is entitled to the protection of the process, whether in a personnel complaint interview, a Board of Rights, an administrative hearing or Superior Court.
In a recent Board of Rights case, the League supplied a lawyer for the accused officer and, in prosecuting this officer, Internal Affairs ordered several other officer witnesses to appear in front of the Board to testify. These so-called “witness officers” requested their own attorneys because several of the officers were plaintiffs in lawsuits against the Department, and allegations of misconduct were flying back and forth among different groups of officers. There was little or no trust on the witness officers’ part that they themselves would not become misconduct targets. In fact, some already were.
At their request, the League assigned each witness officer the panel attorney of their choice, as we have many times in the past for other officers. But this time it was different. The officers were informed by Internal Affairs that attorneys would not be allowed in the Board room to represent them while they testified.
We sent the attorneys anyway. Some were stopped by Internal Affairs before they could get into the Board room to make a record of their objections. Others were successful in their efforts to get inside and demanded to be heard. Still, others had to shout over the shoulders of Internal Affairs, who was blocking their access to the Board room to register their displeasure with the Board.
Their objections did not matter; they were excluded by the Board and the officers were forced, under threat of insubordination, to testify without representation. This was unprecedented, but in view of the other tactics being employed by Internal Affairs that resulted in the first lawsuit, maybe it should have been expected.
Again, we are expressing no opinion for or against any of the officers involved, and that includes the accused officer. The attorney provided to him has the sole responsibility to legally protect his client and is obligated to do whatever he deems necessary to accomplish this. It is the process of the right to representation for all League members that the League is trying to protect.
It is also not the fault of the Internal Affairs officers who are directed by upper management to enforce these high-level decisions. This is a quasi-military organization, and they must follow the direction of the command structure of Internal Affairs. They are caught in the middle.
We will get to the legal part of this in a minute, but let’s think about the moral and ethical statements that Internal Affairs management is making by barring attorneys from being with officers forced to testify at a Board of Rights. What is it that they object to? What is it that they are planning to do to the officer that requires the elimination of the officer’s representation? True, some of the testifying officers have lawsuits pending against the Department. Is this their plan to get a free deposition that can later be used to impeach the officer and they don’t want any interference by an attorney to block sneaky questions?
One would think that where an employee is uncomfortable about testifying, an employer (with no ill intent toward the employee) would be glad to have an attorney present who could explain what was happening and advise the employee. An employer (with no ill intent) has nothing to fear from an attorney and even benefits from the sense of fairness engendered in the employee by the employer’s above-board, straightforward actions. Contrast this with what employees must think when their attorney has the Board room door slammed in their face and the employees are forced against their wills to take the witness stand with no support. In other words, if the Department is going to be fair and above board, what does it matter if there is counsel in the room with the officer? There will be nothing to object to. Of course, that is true only if the Department is going to be fair and above board. That is the catch.
There are no privacy issues since the attorney only goes in with his or her client and exits when they do. No other parts of the Board are observed by the witness officer or the attorney. Nevertheless, the rule of no attorney representation was imposed.
This resulted in a circuslike atmosphere as League panel attorneys tried to provide representation to their assigned officers. One attorney was told that it has always been policy that no attorneys were allowed in Boards of Rights to represent witness officers. This attorney had personally done this before so he knew this was not true. It did not matter. The attorney went into the Board room anyway and objected to the Board over Internal Affairs’ objection. The attorney was excluded from the Board room while the Board called its city attorney for advice. The attorney later gained admittance as a support person, but was not allowed to speak. The next League panel attorney was not even allowed admittance to the Board room by Internal Affairs. The one after that, being blocked at the door, shouted his objections over the advocate’s shoulder to the Board members inside. He was excluded. A fifth League panel attorney pushed his way into the Board room, telling the advocate who ordered him to stay outside, “I don’t work for you.” He made his arguments, but was excluded anyway. And so it went.
What is the legal side of all this? The neutralization of the Public Safety Officers Procedural Bill of Rights Act (POBRA) has been attempted before. It was attempted in Berkeley (where else?). There, they have a citizen panel that conducts complaint investigations. The chief of police orders the officer to submit to questioning, and then a civilian panel holds an evidentiary hearing on the complaint. Berkeley argued that since they were not the officer’s employer, PBRA Section 3303 did not apply. The appellate court differed. It said this: “When police officers are made to appear for interrogation or a fact finding hearing by order of their employer and under penalty of disciplinary sanction up to and including dismissal for failing to comply, this is tantamount to being subjected to interrogation by the officer’s commanding officer, or another member of the employing public safety department” (Government Code Section 3303). Berkeley Police Association v. City of Berkeley (2008) 167 Cal. App. 4th 385 (emphasis added). In fact, LAPD officers are compelled to be at the Board of Rights and are interrogated by a representative of Internal Affairs and two LAPD command officers.
Is punitive action possible? Of course. On top of state law, there is also the MOU: “Any interview of an employee in connection with an investigation that the employee reasonably believes may result in disciplinary action against the employee, will entitle the employee to a representative of the employee’s choice” (Article 10.1). If an MOU section conflicts with the manual, the MOU takes precedence (Manual Section 3/701). Supervisors shall know and comply with the MOU (Manual Section 3/701.20). Commanding officers shall ensure there is adherence to the MOU (Manual Section 3/701.30). It would appear that Internal Affairs and Department management are violating the manual! Now what? Who to call?
There seems to be no other course of action but to file another lawsuit and that is what the League was forced to do. All the League wants is fair treatment for officers who are challenged with doing the most difficult job in the world: police work. The Department and Police Commission demand that officers treat civilians fairly. Who demands that police officers be treated fairly? The League does, but it would be nice to have some help from our leaders.
As I write this, the newspapers report another LAPD officer has received a $3 million judgment for LAPD management abuse. Isn’t it time that someone hears the warning bells and puts a stop to the mistreatment of our officers? If not because it’s right, then at least because it’s cheaper?
Be legally careful out there.
