By John V. Berry, Esq., www.berrylegal.com
The first step in the resolution of allegations of misconduct by law enforcement officers is for the department or agency to conduct an administrative investigation into the allegations at issue. When a police or other law enforcement officer is subject to this type of investigation it is important for them to obtain legal counsel prior to the administrative interview. The following are the usual steps taken in the investigative process.
Notification of an Investigation
Typically, the first step in the administrative investigation process for a law enforcement officer is a notification by their department of agency that an investigation is being conducted into allegations against him or her. Depending on timing issues, this notice usually precedes the administrative interview. Most law enforcement employers will provide a short notice as to the nature of the investigation. Some law enforcement employers will even provide a copy of the administrative complaint. Even if the law enforcement employer does not provide a full copy of the allegations under investigation, we find that most police officers are able to generally determine the nature of the allegations in an administrative investigation prior to the investigatory interview.
The Administrative Investigation
Following notification, the investigators assigned to an investigation will generally schedule an investigatory interview with the officer involved. This interview will be conducted, in most law enforcement agencies, by their Internal Affairs Unit (IAU). However, many law enforcement agencies are not large enough to maintain a separate IAU or may be large enough but instead decide to assign such investigations to supervisors within the chain of command.
During the interview stage, investigators typically start the interview in one of three ways: (1) they just began asking questions of the officer; (2) they ask the officer to sign a voluntary statement form prior to the interview; or (3) they compel / order the officer to provide a statement (usually doing so by providing a Kalkines Warning, a form referring to the case of Kalkines v. U.S., 473 Ct. Cl. 1391 (Ct. Cl. 1973). Unless the officer is certain that the conduct at issue does not involve related criminal issues, we typically recommend that the officer require the law enforcement agency to order the client to provide a statement.
This is distinguishable from a situation where the agency brings an officer in and starts asking questions of the officer without giving such an order. In that type of situation, where the officer responds voluntarily, he or she can be deemed to have provided a voluntary statement which can then be used in both an administrative and criminal context. If a public employee is required (ordered) to give a statement (and there is evidence of the order), then the statement may usually only be used in an administrative and not an criminal context. If this has the potential to become an issue, it is important for the officer to have counsel advising them prior to the interview, if possible.
Disposition of the Administrative Investigation
When the investigation is concluded, most law enforcement officers typically receive a notice as to whether or not the investigation has been sustained, not sustained or unfounded. The disposition categories vary be law enforcement agency. If not sustained or unfounded, typically that is the end of the matter and the case is closed. However, if an allegation is sustained, the next step for a law enforcement agency is likely to be to propose discipline. If that is the case, it is critical if a law enforcement officer has not already gotten legal representation, to do so as soon as possible.
When a law enforcement officer is facing an administrative investigation it is important to obtain the advice of counsel where potential issues might arise. A law enforcement officer, in most cases, should obtain legal advice prior to the completion of an administrative investigation. Our law firm stands ready to advise individuals on the issues involving these types of legal defense issues. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.