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HomeMy WebLinkAbout0004 - POLICE PERSONNEL MISCONDUCT INVESTIGATIONSRed Wing Police Department Policy SUBJECT: POLICY NUMBER • POLICE PERSONNEL, MISCONDUCT INVESTIGATIONS 4 EFFECTIVE DATE June 5, 2009 REFERENCE(S): APPROVED BY: CHIEF ROGER D. POHLMAN COMMENT: It is imperative that the integrity of law enforcement agencies be guaranteed through the use of proper procedures to assure the prompt and thorough investigation of all complaints that allege misconduct by police officers. To insure the integrity of the Red Wing Police Department and the individual employee, it is necessary to thoroughly investigate all reported and alleged misconduct, no matter what the source. This is necessary to protect the good names of innocent employees and to insure that employees who are found to have committed misconduct are dealt with appropriately. PURPOSE: It is the policy of the Red Wing Police Department that all allegations of employee misconduct or criticism of its services be acknowledged and addressed. To succeed in this endeavor, this Policy establishes a comprehensive departmental process to respond to complaints and concerns. Its purpose is to provide individuals with a fair and effective avenue to voice their legitimate grievances, yet to protect departmental employees from false charges of misconduct and wrongdoing. OBJECTIVES: A. To maintain the community's support and confidence in the Red Wing Police Department by providing a process that assures responsiveness to citizen's complaints and concerns. B. To create a process for dealing with complaints and concerns, whether originating internally or externally, that permits police managers to monitor departmental compliance with established departmental rules and procedures and norms. C. To clarify employee rights and the due process protection that will be afforded departmental employees in the investigation of complaints and concerns. Page 1 of 13 POLICE PERSONNEL, MISCONDUCT INVESTIGATIONS -POLICY 4 1 DEFINITIONS: A. CHIEF: The Chief of Police or the Chief's designee. B. COMPLAINT: An allegation of misconduct against an employee of the Red Wing Police Department. C. CONCERN: An inquiry or allegation regarding departmental policy, departmental procedure, or general performance matters. A concern does not include an allegation of misconduct. D. CONTACT: A report by a reporter on the way police services were or were not provided by employees of the Red Wing Police Department or on the specific actions of an employee of the Red Wing Police Department E. DISCIPLINARY ACTION : Oral reprimand, written reprimand, suspension, demotion or discharge. The term "disciplinary action", however, does not include counseling, coaching and/or training provided by the police department or their designee's in matters of performance, whether originating internally or externally, unless the documentation of that activity specifically states it is an oral or written reprimand. F. EMPLOYEE: All voluntary and compensated personnel of the Red Wing Police Department, including the Police Reserves. G. FORMAL STATEMENT: 1. A recorded or stenographic transcription or signed statement of an employee's response to questions, 2. Which is taken as part of an investigation; and 3. Where the formal statement may be used as evidence in a disciplinary proceeding against the employee being questioned. H. MISCONDUCT : A violation of any agency policy and procedure governing conduct of agency members; the use of unnecessary or excessive force; the conviction of any criminal offense; abuse of authority; conduct which violates a person's civil rights; abusive or insulting language or conduct which is derogatory of a person's race, religion, sex, national origin or -sexual preference; sexual harassment; and intimidation or retribution toward a complainant or witness involved in any complaint proceeding. Page 2 of 13 POLICE PERSONNEL, MISCONDUCT INVESTIGATIONS -POLICY 4 PERFORMANCE MATTER: Specific issues or methods related to the provision of police services by an employee of the Red Wing Police Department that are not classified as misconduct due to the following factors: 1. The concern relates to a minor rule violation. 2. The concern is likely to be resolved by training and counseling even if the alleged facts are true. 3. There is no known pattern of similar conduct by the employee; and 4. There is no evidence of bad faith or intent to do wrong. Minor issues such as attitude, demeanor, courtesy, tardiness, and attendance will frequently be classified in this category. J. SUPERVISORY FILE : That file used by an employee's supervisor to record concerns, coaching, commendations, supervisory actions and responses to supervisory actions that will be reviewed in order to complete the employee's annual review as distinguished from the employee's personnel file. 2. AUTHORITY: The Captain or their designee is responsible for monitoring the compliance with this Policy, for recording, controlling, and reviewing all Concerns, Performance Matters, and Complaints, and for coordinating all investigations. 3. PROCEDURES: Regardless of their nature, all Contacts will be documented and then sorted as a Complaint, Concern or Performance Matter. The subsequent procedure will depend on whether the contact is a Complaint, Concern, or Performance Matter. A. INITIATING A CONTACT 1. All Contacts should be documented on a Red Wing Police Department authorized complaint form and shall include the reporter's name, address, telephone number, the name, address and telephone numbers of any witnesses, and a brief description of the facts and circumstances. 2. The Contact shall be forwarded to the Captain of the Red Wing Police Department. The Captain shall assign a case file number to every Contact, and shall communicate that case file number to the Page 3 of 13 POLICE PERSONNEL, MISCONDUCT INVESTIGATIONS -POLICY 4 appropriate supervisor. The Captain will also provide copies of this document to the following persons: a. Chief. b. The Supervisor of the affected employee(s). 3. The Supervisor who receives the Contact, after consulting with the Captain, shall classify the Contact as one of the following based on the definitions contained in this policy: a. A Performance Matter b. A Complaint C. A Concern B. CONTACTS CLASSIFIED AS PERFORMANCE MATTERS: 1. If the Contact is classified as a Performance Matter, the accused employee's supervisor receiving the Contact shall review the accused employee's supervisory file to see whether there is a pattern of similar performance matters, whether supervisory actions such as counseling, coaching and/or training and mentoring have been taken, and whether the officer or employee has responded positively to those supervisory actions. 2. If there is a pattern of similar performance matters in the employee's file, and/or repeated failure to respond appropriately to supervisory action, the contact shall be classified as a Complaint, and the Complaint procedures required by this Policy shall be followed. 3. If there is no pattern of similar performance matters in the employee's file, the supervisor shall discuss the incident with the employee(s) involved in the incident. a. The Supervisor may contact the reporter, if necessary, to acquire a firm understanding of the alleged facts. b. The focus of the discussion with the employee(s) involved will be to discuss alternatives, if any, that might have led to a more positive outcome. C. The supervisor may choose to mentor or counsel the employee. Page 4 of 13 POLICE PERSONNEL, MISCONDUCT INVESTIGATIONS -POLICY 4 d. The supervisor may choose to complete a coaching form to discuss with the employee and consider to assign further training. 4. The supervisor shall record in the employee's supervisory file whatever supervisory action is taken and the employee's response to those actions. No specific findings shall be recorded in the supervisory file relative to the Performance Matter. The intent is to document meaningful discussion between supervisors and employees on how a given situation might have been handled differently, if appropriate. 5. Employees shall be notified of entries supervisors make in their supervisory file. 6. Employees shall have access to their individual supervisory files. 7. Supervisors who have a need to know will have access to individual supervisory files. 8. The contents of an employee's supervisory file may be shown to the employee at the time of the employees' annual review at the employee's request. 9. Any on-going performance concerns that supervisors may have should be included in the employee's written annual evaluation. C. CONTACTS CLASSIFIED AS A COMPLAINT: 1. When the Contact is classified as a Complaint, the Captain will arrange for investigative assignment and notifications as required under this Policy. a. When the Captain or their designee receives the Complaint, the Complaint shall be assigned for investigation. b. The individual assigned to investigate a Complaint shall conduct the investigation and make a report according to the requirements in Section 4 of this Policy. C. If the Complaint is alleged against the Captain, the Complaint shall be forwarded to the Chief for determination of who the investigator shall be. If the Complaint is against the Chief, the Captain shall consult with the City Page 5 of 13 POLICE PERSONNEL, MISCONDUCT INVESTIGATIONS -POLICY 4 Administrator or City Attorney for determination of who the investigator shall be. 2. Employee Statements: a. Employees shall not be subject to taking a formal statement until the following actions have been taken: 1. A signed statement has been taken from the person alleging facts which, if proven true, would constitute a basis for disciplining the employee. 2. In certain instances, a Complaint signed by the Chief based on facts made known to the Chief, even where those facts are received from an anonymous source, shall serve as the required signed statement under the provision. In those instances, the Chief shall be deemed the complainant. 3. The employee has been given a summary of the allegations, which shall include a brief description of the events from which the Complaint arises, the facts giving rise to the alleged misconduct and the specific rule or regulation which may have been violated if the facts alleged are found to be accurate. b. Conduct of meeting where a Formal Statement is to be taken: 1. An employee shall be notified in writing of the time and place where a formal statement is to be taken. The written notice shall include notice of the provisions of sub -clause 2, 3 and 4 of this clause. a. Any such meeting shall be held during the employee's regularly scheduled shift, whenever possible. 2. The employee shall be entitled to have an attorney or union representative of the employee's choosing present during the meeting. a. Where the employee has initially elected to appear without an attorney or union representative, the employee may subsequently make a request for such Page 6 of 13 POLICE PERSONNEL, MISCONDUCT INVESTIGATIONS -POLICY 4 representation and the meeting shall be adjourned for a reasonable period of time to allow the employee to obtain the presence of an attorney or union representative. 3 The meeting during which a Formal Statement is to be taken from an employee shall be recorded. a. The employee shall also be entitled to record the meeting, if the employee so elects. b. The employee shall be entitled to a copy of the tape recording of the meeting, if requested in writing. 4. The employee shall be advised that any admission made in the course of a Formal Statement may be used as evidence of misconduct or as a basis for discipline. 5. The employee shall be entitled to receive a copy of any Formal Statement made by the employee and shall initial the Formal Statement acknowledging that a copy has been received. D. CONTACTS CLASSIFIED AS CONCERNS: 1. When the Contact is classified as a Concern, the Captain shall determine whether the Concern involves issues of broad departmental implications or isolated issues. a. Where the issues involved in a Concern are isolated to the unit over which the Supervisor has authority and control, the Supervisor may respond to the question. . b. Where the issues involve a Concern that has broader department implications, the Captain will investigate and make recommendations to the Chief. C. When investigated within the unit, the Concern and a copy of the report outlining the follow-up investigation and recommendation shall be referred to the Captain, who shall make recommendations and forward a copy to the Chief for review and determination. Page 7 of 13 POLICE PERSONNEL, MISCONDUCT INVESTIGATIONS -POLICY 4 d. The nature and scope of the investigation of a Concern and the resulting report shall be determined by the Supervisor and the Captain. If at any time during the course of the investigation it becomes apparent that discipline of an employee may result, the Concern must be reclassified as a Complaint and the Complaint procedures must be followed. E. NOTIFICATION TO REPORTER: 1. Performance Matter: Upon the determination that a Contact will be handled as a Performance Matter, the Captain shall notify the reporter in writing of receipt of the Performance Matter and the fact that it has been assigned to a supervisor for resolution. 2. Complaints: Upon the receipt of a Contact and determination that it will be handled as a Complaint, the Captain shall notify the reporter in writing of receipt of the Complaint, its impending investigation, the name of the individual in charge of the investigation, and outline the investigation process. 3. Concerns: Upon the determination that the Contact will be handled as a Concern, the Captain shall notify the reporter in writing that the Contact has been classified as a Concern and that it has been referred to staff personnel for investigation or further development of the issues raised and definition of the appropriate policies and procedures of the Department. 4. COMPLAINT INVESTIGATIONS CONDUCTED: A. The Captain or their designee shall determine who conducts an investigation, unless the complaint is alleged against the Chief or the Captain as noted above 1. Generally a supervisory employee, shall investigate all incidents or Complaints. The Captain may elect to conduct any investigation and need not designate a formal investigator for that purpose. 2. The Chief may determine that any Contact shall be dealt with as a Complaint and may determine the appropriate means of investigating such matters, including any of the following: a. Investigation by the Captain. b. Investigation by supervisory personnel; or Page 8 of 13 POLICE PERSONNEL, MISCONDUCT INVESTIGATIONS -POLICY 4 C. Investigation by a designated person or a designated outside agency. B. The Captain shall initiate a Complaint Investigation by: 1. Notifying the reporter as indicated above in section E. Notification to Reporter 2. When necessary, forwarding the necessary documents to the supervisory member conducting the investigation or designated investigating body. 3. Notifying the employee(s) who are subject to the investigation of its existence and impending investigation. a. This requirement may be waived if any such notification would jeopardize the conduct of the investigation; however, a notification must occur prior to the formal interview of any employee who is the subject of the investigation. b. The notification to any employee(s) who is subject to an investigation shall include the following information: 1. Notice of the investigation and the individual assigned to conduct the investigation. 2. Notice of the employee's right to representation in any interviews to be conducted as part of the investigation. 3. A reference to the employee's labor union contract and the Police Officer's Discipline Procedure Act concerning additional rights the employee might have in the investigation process. 4. The specific rule or regulation the employee's conduct may have violated if the alleged Complaint is sustained. 5. A brief factual description of the details of the Complaint. 6. If the accused employee is a licensed peace officer, the notice shall contain the following advisories: Page 9 of 13 POLICE PERSONNEL, MISCONDUCT INVESTIGATIONS -POLICY 4 a. The employee shall be entitled to have an attorney or union representative of the employee's choosing present during the meeting in which a Formal Statement is taken. Where the employee has initially elected to appear without an attorney or union representative, the employee may subsequently make a request for such representation and the meeting shall be adjourned for a reasonable period of time to allow the employee to obtain the presence of an attorney or union representative. b. The meeting during which a Formal Statement is to be taken from an employee shall be recorded. The employee shall also be entitled to record the meeting, if the employee so elects. The employee shall be entitled to a copy of the tape recording of the meeting, if requested in writing. C. The employee shall be advised that any admission made in the course of a Formal Statement may be used as evidence of misconduct or as a basis for discipline. 4. An Investigation shall be conducted and a report submitted within 30 days of the filing of the Complaint, unless the Captain or the Chief finds good cause for an extension. The investigator shall thoroughly investigate all allegations contained in the Complaint and any other potential misconduct discovered in the course of the investigation. The report shall be made by the investigating Supervisor (or designated person or agency) in the following format: a. Reporter identifying information b. Alleged Violation C. Identity of Employee(s) involved d. Witness List e. Background information Page 10 of 13 POLICE PERSONNEL, MISCONDUCT INVESTIGATIONS -POLICY 4 f. Statements g. Facts Found h. Summary and Conclusions as to whether misconduct occurred Recommendations C. Review 1. Supervisory personnel will forward all completed investigations to the Captain for review. 2. The Captain will notify the Chief of the completed investigation. 3. The Chief, upon review of the file, may order further investigation before making a decision of finding. Further investigation may include continued investigation into the existing facts, into the discovery of new facts or allegations or witnesses, or into allegations against other employees. The Chief may postpone making a decision of finding until any related criminal charges are resolved. If the decision is postponed or otherwise delayed, the Chief shall notify the reporter and the accused employee of the postponement. D. Findings 1. Upon the completion of the Complaint investigation, the Chief will make one of the following findings: a. Sustained — The accused employee committed all or part of the alleged acts of misconduct. This means that a fair preponderance of the evidence obtained in the investigation established that the accused employee committed all or part of the alleged acts of misconduct. b. Not Sustained — The investigation produced insufficient information to clearly prove or disprove the allegations. C. Exonerated — the alleged act occurred, but was justified, legal, and proper. d. Unfounded — the alleged act did not occur. Pagel 1 of 13 POLICE PERSONNEL, MISCONDUCT INVESTIGATIONS -POLICY 4 e. Misconduct Noted — acts of misconduct were discovered during the investigation that was not alleged in the Complaint. 2. In making the finding, the Chief will review written findings of fact including a summary of the acts constituting misconduct and the specific statute, policy, rule, regulation or procedure violated. 3. If a Complaint is sustained or misconduct noted, the Chief may take one of the following recommendations or sanctions: a. Coaching and/or training and/or counseling b. Oral Reprimand C. Written Reprimand d. Suspension e. Demotion f. Discharge E. Final Disposition: 1. The Captain, as directed by the Chief, will: a. As allowed by law, notify all reporters in writing of the result of the internal investigation. b. Notify employees who were the subject of the investigation, in writing, of the Chief's finding. C. Notify the appropriate collective bargaining unit if required by contract. F. Appeals: 1. When a sustained (or misconduct noted) disposition is final, the accused employee may appeal the disposition pursuant to the provisions of the employee's labor agreement, the City's Personnel Rules, and, if applicable, through the Minnesota Veteran's Preference Act. 2. The Chief will be the employee authorized to accept appeals of Complaints when the appeal is made by a reporter. Such appeals Page 12 of 13 POLICE PERSONNEL, MISCONDUCT INVESTIGATIONS -POLICY 4 must be submitted in writing within 20 calendar days of the date the reporter is notified of the Chief's finding or the date the reporter is notified of the final disposition, whichever is later. The Chief, will meet with the reporter who filed the appeal and will explain the procedures and findings, as allowed by law. 3. The Complaint investigation may be reopened upon the discovery of substantial new evidence. G. Release of Information: 1. Any release of information in connection with the investigation of any Complaint against an employee of the Red Wing Police Department shall be in accordance with the current state statutory requirements of the Minnesota Government Data Practices Act. 5. CONFLICTS This Policy is not intended to replace existing City procedures for handling complaints, nor is the Policy intended to amend any existing collective bargaining agreements. 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