You are not a potted plant
There is more chill wind blowing out of Internal Affairs lately. In addition to some investigators resisting answering the League card questions discussed last month, reports have come in that any other questions from the accused officer’s representative are being resisted. Apparently, the accused officers are supposed to be good little boys and girls and take their medicine silently without protest. Some investigators seem to be exhibiting the attitude that Internal Affairs asks the questions, and there is something insidious going on if the officer’s representative also asks questions. This is an Internal Affairs interview, not a representative interview, is the attitude. Besides, the thought seems to be, don’t worry, you will be treated fairly and if bad things happen to you it is only because you deserve it, so why do you need a representative anyway?
There seems to be a disconnect developing in understanding the purpose of a personnel complaint interview. “The truth of the matter” is printed on the Internal Affair’s coffee cups, and this motto also hangs on their wall. It is a good motto, and most Internal Affairs investigators take it to heart in their investigations. But to get to the truth, you need to hear both sides of the story. It has long been thought by those who represent officers that when IA finally gets around to interviewing the accused officer, who is typically the last one interviewed in the investigation, this is the officer’s opportunity to tell his or her side of the story. After months of living under the order of not to discuss the incident, the officer’s time to finally explain what happened is here. So it isn’t just the Department’s interview, it is also the officer’s interview. That is why shutting the officer or the officer’s representative down is so offensive.
The Department is not the only one entitled to make a record. The U.S. Supreme Court recognized the representative’s value in NLRB v. Weingarten, 420 U.S. 420, when it said, “A single employee confronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors. A knowledgeable union representative could assist the employer by eliciting favorable facts, and save the employer production time by getting to the bottom of the incident occasioning the interview.” The Supreme Court sees the representative as an active member of the process, not a potted plant.
This is an accurate picture of the actual situation that exists in the real world. The representative has discussed the case with the officer and is aware of the facts from the officer’s perspective. The interrogation may not bring out the necessary facts for the commanding officer to make a fully informed judgment as to the guilt or innocence on the allegation. It is the representative’s job to make sure that all facts favorable to the officer are brought out. He or she can’t do that if not allowed to participate in the interview.
The representative’s duties go beyond this, however. The Memorandum of Understanding in Article 10.2 assigns specific duties to any officer representing the interrogated officer. By the way, the MOU has the same effect as the LAPD Manual. In fact, when the Manual and the MOU are in conflict, the MOU takes precedence (3/701.10). Therefore, the representative is mandated, so to speak, by the Manual to do the certain things and conversely the Internal Affairs investigator is violating the Manual when preventing the representative from doing those certain things.
Those things are: 1. Conduct a pre-interview consultation with the employee to ascertain if the employee understands the allegations against the employee. 2. Be present with the employee during the interview for purposes of consultation, advice and clarification and to ensure procedures are followed and the employee’s rights are not violated. Potted plants cannot accomplish these duties. The MOU contemplates active representation.
As a representative you are mandated to know what the allegations are so you can discuss them with the accused officer and ascertain that he or she understands them. Then, as you go into the interview, if the accused needs advice, you are to give it. If you think you need to clarify something by asking a question, you are to ask it. If you see that procedures are not being followed or if the officer’s rights are being violated, you are to speak up and object. That is your assignment per the MOU and if the investigator is preventing you from doing these things, the investigator is the one committing misconduct, not you.
It is best to deal with these issues in a professional manner, but that does not mean that you need to back down. If the Internal Affairs investigator is being unreasonable, request to talk to his or her supervisor. Remember too that under the MOU, officers are entitled to an employee representative and/or an attorney. If you feel that you are getting in over your head, this may be the time for the officer to insist on that right. Currently, 86 percent of the dues-paying members of the League belong to the Legal Plan and are entitled to an attorney for interviews if they feel it is necessary.
The bottom line is that representation is not a passive activity. If you are going to be one, be an effective one. To assist you on this, the League periodically puts on a Basic Representative School and an Advanced Representative School, both supported by the Department. Call (213) 251-4575 to place your name on the list for the next school.
Giving credit where credit is due
This column many times discusses problems that we have involving Internal Affairs. Conversely, if there is no problem, there is nothing to discuss. That fact tends to give the appearance that Internal Affairs never does anything right. However, thousands of interviews go down each year without a hitch. Most IA investigators are mindful of the schedules of representatives and the officers, disclose the allegations and play fair during the interviews.
Recently, Internal Affairs Capt. Vito Palazzolo slowed down an investigation to make sure that the issues of officer’s rights were properly addressed by the city attorney, and Internal Affairs Commander Rick Webb responded in a very empathetic way in handling the scheduling fallout from a personal crises suffered by one of our panel attorneys.
So please keep this in mind in your dealings with personnel complaint investigations. It is likely to go right, but you are there to make sure it does. Thank you to those who go the extra mile to help protect the rights of your brother and sister officers and thank you to the many Internal Affairs who do respect those rights.
And remember, the rights you protect may be your own.
Be legally careful out there.
