Representing Officers Facing Investigation

By Richard Thal, WPPA General Counsel

Investigations of law enforcement officers may occur for a variety of reasons. After a shooting or other critical incident there is always an investigation. Other investigations follow citizen complaints. Regardless of the nature of the incident or allegations that lead to an investigation, local association representatives must act quickly to assist an officer facing investigation. The purpose of this article is to provide you with some general advice so that you may eliminate or minimize employment disputes after an officer has been involved in a critical incident or has been accused of some wrongdoing.(1)

PRELIMINARY MATTERS

The Right to Representation. All WPPA bargaining unit members should know that they have a right to representation during any interview that could lead to disciplinary action or criminal charges. (See box below.) The right to representation is not automatic; the officer must ask for it, so it is important to make sure that WPPA members know that they have a right to representation.

Provide Representation Quickly. When an officer is faced with an allegation that may threaten the officer's career, get to the officer immediately, as he or she might be in jeopardy of being subjected to interrogations. Get the officer out of any threatening environment as soon as possible. If there is evidence of extraordinary stress and trauma, help the officer get professional help and -- if appropriate -- help the officer take a medical leave of absence. Do not let a traumatized officer answer any questions.

Determine How Serious the Situation Is. Evaluate the available evidence immediately so that you can determine the seriousness of allegations or of potential charges. When in doubt about the seriousness of any accusations, err on the side of contacting your business agent. Immediately inquire if the investigation against the officer is criminal, administrative or both. If you think that the allegations may be a basis for criminal charges, make sure that a WPPA attorney is immediately informed of the allegations. Remember that in criminal cases you have no privilege against revealing what another officer has told you.

THE INVESTIGATION

As in any investigation, the first thing to determine is what happened: Who, What, Where, When and Why?

Accuracy/Truthfulness. Nothing is more important than firmly advising the officer that absolute factual accuracy and truthfulness is required at all times. Incomplete or inaccurate facts can doom proper representation and protection for the affected officer.

Written Report to Counsel. In serious cases consider advising the officer to prepare a written report to WPPA or private legal counsel while everything is fresh in his or her memory. Such a report should supplement information included in any relevant police reports. Such a report to counsel may be prepared for and directed to me, to WPPA staff attorney Mark Hollinger, or to WPPA retained attorney Gordon McQuillen. Your business agent will advise you which attorney to use. If you cannot reach your business agent, call the WPPA toll-free number -- 800-362-8838 -- and we will locate an attorney for the officer.

If the accused officer completes a report to counsel, the attorney-client privilege will likely apply to attorney-client communications, but the privilege will not likely apply to communications to anyone else. Therefore, have the report prepared for and directed to counsel.

Corroboration. Contact the witnesses; corroborate the facts while fresh.

Public Relations/Press Strategy. Analyze the public relations issues and determine a specific public relations or press strategy. If the employment-related dispute has not been publicized, it is generally better to not disclose it at all. Self-publication of employment matters raises all kinds of thorny issues, and absent an extreme scenario, it is generally better to remain low profile.

Interviews and Reports. The officer should not answer any questions until he or she has been either Mirandized or provided the Garrity procedure. Request that the Garrity procedure be reduced to writing. Under the Garrity rule, if an officer is ordered to answer questions related to the officer's duties or the officer's fitness for duty, the answers to the questions may not be used against the officer in any criminal proceedings. (See box below.)

Tape Recording. Consider whether tape recording the interview is appropriate. If you think that it is appropriate and management agrees, a recording will eliminate disputes over what was said during the interview.

All Documents. To complete a thorough investigation, you must obtain and copy all of the relevant evidence and documents, i.e., police reports, everything that the officer has written or reviewed, and all other documents that even remotely relate to the dispute. Secure the evidence -- every document and item that are available to you.

Suspensions. If an officer is suspended with pay, determine whether the seriousness of the charges warrants the suspension. If you think that an officer should continue working while management investigates any allegations against the officer, you should develop a strategy designed to get the department to allow the officer to work. Sections 59.26(9) and 62.13(5)(h) of the Wisconsin statutes prohibit a municipality from suspending an officer without pay pending resolution of an appeal. If you think that a member is improperly suspended without pay, contact your business agent so that it can be determined whether the employer is entitled to deprive the employee of pay.

Advise Officers to be Careful. Officers under unfair attack are human; occasionally they may want to lash out at management. Since the performance of an accused officer is usually scrutinized by management, advise the officer not to do anything stupid.

Take Corrective Action. Sometimes during the preliminary stages of an investigation, an officer will recognize that he or she may have made an inadvertent error, such as an incorrect date on a report. Generally, it is better to take quick action to correct any errors, especially if it is a factual error. Mistakes should be acknowledged and then corrected as soon as possible.

Appeal Rights. If discipline against an officer is imposed, appeal rights vary depending on which contractual or statutory appeal rights the officer is entitled to. It is important that you know contractual time limits for the filing of a grievance if the discipline can be appealed through the grievance procedure. When an appeal must be to a police and fire commission or other citizen review board, the accused officer may consult with a WPPA attorney. However, the rights that officers enjoy under our statutes are private and individual.

CONCLUSION

Properly investigating a law enforcement employment dispute is among the most important aspects of overall representation of an officer. If done correctly, it will generate the necessary information for a proper evaluation of any subsequent charges and representation at any discipline hearing.

An Officer's Right to Representation

Under the Law Enforcement Officers' Bill of Rights and the Municipal Employment Relations Act, Wisconsin law enforcement officers are guaranteed the right to notice of the purpose of the investigation and the right to representation during disciplinary interviews. The Bill of Rights provides:

164.02 Interrogation. (1) If a law enforcement officer is under investigation and is subjected to interrogation for any reason which could lead to disciplinary action, demotion, dismissal or criminal charges, the interrogation shall comply with the following requirements:

(a)The law enforcement officer under investigation shall be informed of the nature of the investigation prior to any interrogation.

(b) At the request of any law enforcement officer under interrogation, he or she may be represented by a representative of his or her choice who, at the discretion of the officer, may be present at all times during the interrogation.

(2) Evidence obtained during the course of any interrogation not conducted in accordance with sub. (1) may not be utilized in any subsequent disciplinary proceeding against the law enforcement officer.

164.03 Recrimination. No law enforcement officer may be discharged, disciplined, demoted or denied promotion, transfer or reassignment, or otherwise discriminated against in regard to employment, or threatened with any such treatment, by reason of the exercise of the rights under this chapter.

164.04 Rights not to be diminished. The rights under this chapter shall not be diminished or abridged by any ordinance or provision of any collective bargaining agreement. These rights may be supplemented and expanded by ordinance or collective bargaining agreement in any manner not inconsistent with this chapter.

If you are not sure whether a bargaining unit member that you represent could face potential discipline or criminal charges concerning a matter, you or the officer may simply ask the investigator whether discipline or criminal charges might result. If the interviewer states that neither discipline nor criminal charges will result, then the officer has no right to(and needs no) representation.

If you are representing a bargaining unit member, you have the right to participate and offer reasonable input. City of Appleton, WERC Dec. No. 27135-A (1992). In that case, the City violated the employee's right to be assisted by "effective union representation" when management told the union representative that he could not interrupt an investigatory interview.



Garrity: An Officer's 5th Amendment Right To

Not Be Coerced Into Self-Incrimination



In 1966, the United States Supreme Court established the Garrity rule. Under this rule your department cannot discipline an officer for refusing to answer questions or submit a report unless the department first complies with basic Garrity requirements. These requirements are summarized on page five of your WPPA pocket calendar, which states:

Investigative Report/Interview

Whenever you are ordered to complete an investigative report, you should submit with the report the following, or a similar, statement:

On _____ at _____ I was ordered to submit this report by _____ and I submit this as a condition of my continued employment. It is my understanding the report will be used only for internal purposes and cannot be used for any other proceeding. I request I be allowed to contact a representative of my choosing to discuss this matter.

I reserve my rights to remain silent under the 5th and 14th Amendments. I rely on the protection given me under Garrity v. New Jersey, 38 US 493 (1967) should this contravene my rights and should this report be used against me in any additional proceeding.

Whenever you are ordered to answer questions in an investigatory interview, you are entitled to representation and to certain rights under the Garrity rule. These rights include:

1. You are entitled to representation if you reasonably believe that your responses could lead to a disciplinary action against you.

2. Questions asked of you must be specifically, directly and narrowly related to your duties or your fitness for duty.

3. You should receive a guarantee that your statements will not be used against you in any criminal proceeding.

The above information is in your pocket calendar so that you can refer to it if you need to. I advise you to keep it with you whenever you are on duty.


1. 1. The guidelines in this article are an adaptation of guidelines set forth by Attorney J. Michael McGuinness in a 1999 paper entitled "The Investigation of a Law Enforcement Employment Case and Preliminarily Advising the Officer." McGuinness presented his paper in April 1999 to the Legal Rights and Legislative Seminar of the National Association of Police Organizations (NAPO).