HPM 10.2 Internal Investigations Manual Flashcards
What is the Departmental Philosophy for Internal Investigations?
It is the policy of the Department to fully investigate allegations of misconduct. Investigations of allegations shall be done thoroughly, objectively, and in a timely manner. Investigations shall be conducted in a manner which will ensure all applicable protections are afforded. Likewise, all employees will be treated professionally, with dignity and respect.
Are any/all instances of alleged misconduct by departmental employees investigated?
Yes. All instances of alleged misconduct by departmental employeesshall be investigated and, when appropriate, adverse action or rejection during probation initiated.
True or False
Internal Investigations Manual takes precedence over Collective Bargaining Agreements (CBA - Contracts)
FALSE
If the CBA has different processes, the process identified in the CBA (Contract) is controlling.
Are employees required to obey lawful orders or directives from a supervisor, manager OR officer-in-charge?
Yes, this includes orders or directives from a superior which are conveyed by an employee of the same or lesser rank.
What Government Code covers the Public Safety Officers Procedural Bill of Rights Act?
The Public Safety Officers Procedural Bill of Rights Act (POBR) is specified in California G.C. 3300 et seq.
What should Commanders require all involved supervisory and managerial staff to review prior to the initiation of an internal investigation?
Chapter 11, Public Safety Officers Procedural Bill of Rights Act (POBR)
Who should the commander discuss allegations supporting an internal investigation with prior to initiating the investigation?
The assistant chief in the commander’s immediate chain of command. With Division concurrence, an internal investigationshall be initiated.
When an internal investigation begins who should commanders immediately contact?
Commandersshall make immediate notification to the appropriate Division and obtain an investigation control number. Division in turn notifies Office of Internal Affairs. Divisions may implement procedures to permit commands to notify Office of Internal Affairs directly, however an investigation control number must still be obtained from the respective Division.
What 5 itemsshall be included in an internal investigation notification to the Office of Internal Affairs?
1 The investigation control number.
2 Name, rank, and identification number of the employee(s) involved.
3 Date(s) of the alleged incident, the date the Area became aware of the misconduct, and the date the investigation is due to OIA.
4 If rejection during probation is being considered, the date the employee’s probation ends shall also be included.
5 Brief summary of the alleged misconduct or substandard performance.
What is an Adverse Action?
Adverse Action is a disciplinary legal action taken in response to an employee’s misconduct or continued failure to meet the rules of conduct established by law and/or departmental policy.
What is rejection during probation?
The Department may reject any employee during the probationary period for reasons relating to the probationer’s qualifications, for the good of the service, or for failure to demonstrate merit, efficiency, fitness, and moral responsibility.
What is a Miscellaneous Investigation?
A Miscellaneous Investigation is an administrative investigation from which the employee is exonerated, separates from state service, transfers to a new agency, or the conduct does not warrant an adverse action or rejection during probation.
What is a Nexus to Employment and how does it relate to allegations of misconduct?
The Department shall only investigate allegations of misconduct when there is a nexus (or connection) between the act(s) and the individual’s employment with the Department. Such a nexus is necessary to establish the basis for disciplinary or corrective action.
What are the 7 Nexus’ that establish a basis for disciplinary or corrective action?
1 - The act(s) occurred while the employee was on duty, regardless of location or assignment.
2 - All criminal acts by uniformed employees, either on or off-duty.
3 - All criminal acts by non-uniformed employees, either on of off-duty, which constitute a felony or crime of moral turpitude (A crime of moral turpitude is a crime that disrespects and antagonizes societal norms. Typically, crimes involving moral turpitude are done with vicious, evil intent. They contradict rules upheld by polite society to the point where the crime itself is seen as shocking and disgusting).
4 - While off duty, an individual’s employment status is affirmatively established by an overt act. Examples include employees who are subject to enforcement action requesting leniency while identifying themselves as members of the Department, or employees identifying themselves as members of the Department.
5 - An off-duty misconduct with a clear connection to the employee’s continued ability to effectively perform the duties of the employee’s position. For example, a non-uniformed employee with a suspended driver’s license cannot perform duties which require a valid license.
6 - The misconduct is of such a nature that it could bring discredit to the Department.
7 - Normally, mere knowledge of an employment status with the Department is insufficient to establish a nexus.
What is an Administrative Interrogation?
The formal and direct questioning of an employee to determine the facts of an internal investigation. Administrative Interrogationsshall be conducted in compliance with the POBR, applicable collective bargaining agreements and all relative statutes.
True or False
During an Administrative Interrogation, the employee has the right to representation by a person of the employee’s choosing.
TRUE
True or False
Administrative Interrogationsshould be recorded.
FALSE
Administrative Interrogationsshall be recorded.
What is a “Bazemore Admonition or Warning”
A notification to an employee that misconduct for which they are being counseled may be charged in a future Adverse Action if the conduct continues.
Example Bazemore Admonition :
Your conduct on this occasion was unacceptable and will not be tolerated by this department. If you engage in similar conduct in the future, the department will take adverse action against you based on the incidents cited in this memorandum, as well as any future incidents.
True or False
The Bazemore Admonitionshould be included in all Memoranda of Directions which are counseling or remedial in nature.
FALSE
The Bazemore Admonitionshall be included in all Memoranda of Directions which are counseling or remedial in nature.
True or False
The Bazemore Admonition included in a Memoranda of Direction shall be stated verbatim.
TRUE
What is Brady Material?
Brady Material consists of exculpatory or impeaching information that is material to the guilt or punishment of the defendant (Brady vs. Maryland - 1963).
FollowingBrady, the prosecutor must disclose evidence or information that would prove the innocence of the defendant or would enable the defense to more effectively impeach the credibility of government witnesses.
Police officers who have been dishonest are sometimes referred to as “Brady cops.” Because of the Brady ruling, prosecutors are required to notify defendants and their attorneys whenever a law enforcement official involved in their case has a sustained record for knowingly lying in an official capacity. Lists of such officers are known as “Brady lists”. The growing use of Brady, both in the federal and state sectors, is one of the most important changes affecting police officers’ employment.
What is a Memorandum of Counseling?
A Memorandum of Counseling is issued to an employee to formally document supervisory counseling pertaining to misconduct, behavior, or poor performance. A MOCshould not contain a Bazemore Admonition, although this is at the discretion of the Commander.
What is Absence without Leave?
An absence for 5 consecutive working days (voluntary or involuntary) is considered automatic resignation from state service, effective from the last day the employee worked.
What is Progressive Discipline’s intent?
Progressive Discipline is intended to modify an employee’s behavior and should instruct and train the employee to act and perform in accordance with established standards of conduct. Progressive Discipline provides the employee with the tools and awareness to bring their performance to an acceptable level.
What are the expectations for supervisors and managers in regards to Progressive Discipline?
1 - Ensure employees are informed of expectations via briefings, ride-alongs, one-on-one discussions, training days, written acknowledgments of policy review, etc.
2 - Recognize those individuals who are meeting or exceeding standards by providing positive reinforcement and recognition via 100 form comments / commendable CHP Form 2.
What should be done when an employee’s performance or conduct doesnot meet expectations?
The commander should determine if the employee was provided with adequate training or notice of performance expectations. If the employee has been provided with adequate training or notice of performance expectations, progressive discipline should then be utilized.
What are “Preventative Actions” in regards to the Progressive Discipline process?
Preventative Actions are proactive steps that reduce or eliminate the need for corrective or adverse action. It is the supervisor’s responsibility to engage and lead the employee in the right direction, as opposed to merely documenting the actions of the employee.
Examples :
Adequate ongoing training for all classifications.
Clearly defined job duties, conduct, expectations and objectives.
Ensure employees have a positive and respectful workplace communication with chain of command, peers and subordinates. Regular and open discussions with employees on job related issues. Provide privacy when performance or disciplinary discussions occur. Provide discussion opportunities. Provide access to higher-level supervisors or managers if requested for conflict resolution.
What are “Corrective Actions” in regards to the Progressive Discipline process?
Corrective Actions can be written orverbal and are meant to bring an employee’s performance to an acceptable level and prevent continued misconduct or poor performance. Specific directives are provided to the employee. Corrective actions may be initiated by a supervisor, but are usually prepared with the concurrence and approval of the Commander.
What considerations should be evaluated prior to taking Corrective Action?
Read and understand POBR when considering any form of corrective action.
Clearly identify the act or omission that is unacceptable, along with corresponding policy and law.
Be sure to fully understand the nature and extent of the problem.
Gather all pertinent facts relative to the misconduct or substandard performance.
Discuss the issue with the employee before making a decision to take corrective action. However, if adverse action is possible, donot discuss the issue outside of an administrative hearing.
Review the employee’s personnel folder for pertinent history / patterns / prior problems with this misconduct / substandard performance.
What is “Informal Counseling” and how does it differ from “Formal Counseling”?
Informal Counseling is when a manager or supervisor meets with the employee to discuss the misconduct or substandard performance. The primary difference between Informal and Formal is documentation. After Formal Counseling, the employee receives some form of documentation regarding the counseling session. Documentationshallbe discussed with the employee first. Should be documented on the supervisor’s evaluation form (CHP 112) in general terms to document the supervisor’s actions in a work capacity.
Are employees entitled to representation during Informal or Formal Counseling?
No. Both Formal and Informal Counseling are considered routine business communications and are not subject to the grievance process. Employees are not entitled to representation during Formal and/or Informal Counseling. Primary difference between Informal and Formal is that Formal counseling provides the employee with documentation regarding the counseling session.
When is an Adverse Action appropriate?
An Adverse Action is the most severe option in the progressive discipline process. When considering adverse action, all involved supervisors and managers should review HPM 10.2 Chapter 11. Adverse actions should be initiated when the employee does not respond to preventative and/or corrective actions, or the acts of misconduct are severe in nature. Managers and supervisorsshall ensure there is sufficient cause for discipline prior to initiating an adverse action investigation. If the cause is not legally sufficient, or if management has acted arbitrarily, capriciously, or discriminatorily, the manager or supervisor may be subject to disciplinary and legal repercussions.
What are the 6 types of penalties which an Adverse Action may result in?
1 - Formal written reprimand. The lowest penalty level which may be used when an action greater than corrective action is necessary. Itshall be retained in the employee’s personnel file.
2 - Salary Reduction within Salary Class Range. May be one or more step reductions down to the minimum salary of the class. Normally imposed in lieu of suspension. Not available for bottom step employees.
3 - Suspension.Shall be specified in working days ranging from one to several pay periods. Considered a temporary separation during which the employee does not work and salary is docked for the specified period.
4 - Involuntary Transfer. Transfer from one Area office to another or a transfer out of a specialized position. Involuntary transfers included in an Adverse Action are subject to State Personnel Board review.
5 - Demotion. Shall occur when continued service is of value, but the employee is not working at the expected performance level. Can be used for a single incident of sufficiently egregious misconduct. May be permanent or temporary.
6 - Dismissal from State Service. For exceptionally serious misconduct that is not correctable through progressive discipline or that immediately renders the employee unsuitable for continued employment. May or may not be preceded by other Adverse Action penalties. Dismissed employees shall not be eligible for state service without prior consent from the State Personnel Board.
A CHP 7E (Internal Investigation Control Log)shall be confidentially maintained at Division offices for a period of _______ from the end of the calendar year.
five (5) years
Who has the primary responsibility for the internal investigation process at the command and Division level?
Commanders have the primary responsibility for the internal investigation process at the command and Division level.
What is the time frame an investigation shall be forwarded to the Office of Internal Affairs?
60 calendar days from the date the Area became aware of the misconduct. In complex cases where the investigation will exceed 60 days, the Division commander should contact the appropriate Assistant Commissioner to request and extension.
Should an employee notify a supervisor when they learn that they or another employee are a subject of an inquiry into allegations of criminal misconduct by another law enforcement agency?
Yes, Whenever any employee of this Department, including the employee subject to an investigation, learns that another law enforcement agency is conducting an inquiry into allegations of criminal misconduct involving a member of this Department, the employeeshall immediately notify a supervisor or manager.
What are the notification requirements when allegations of criminal misconduct are revealed?
When potential criminal misconduct is identified, the commander shall ensure the appropriate Division commander and Office of Internal Affairs are notified. Commanders shall also notify, through channels, the Office of the Commissioner prior to any contact with a prosecuting authority regarding potential criminal misconduct by any departmental employee. This specifically includes informal or hypothetical inquiries that do not disclose the employee’s name or alleged offenses.
What are the two (2) methods of conducting a criminal investigation and corresponding administrative investigation?
1 - Concurrent Investigation. The criminal investigation is conducted simultaneously with the administrative investigation by separate investigators. The primary advantage of concurrent investigations is the administrative investigation can be completed expeditiously.
2 - Consecutive Investigation. The criminal investigation is completed and a decision to reject or file charges is made by the prosecuting authority prior to initiating the administrative investigation. The primary advantage of this method is that it precludes any improper sharing of information, since the criminal investigation is closed prior to information being gathered for the administrative investigation.
True or False
To maintain the separation between investigations, criminal investigatorsshall not participate in administrative investigations.
TRUE
True or False
In general, information gathered during either a criminal or administrative investigation maynot be used in the other investigation.
FALSE
Information gathered during either a criminal or administrative investigationmay be included in the other investigation, as long as it was gathered from a source that both administrative and criminal investigators would have legal access to.
True or False
When an allied agency is conducting a criminal investigation, it’s report may be used by the Department as a starting point for the administrative investigation. For uniformed employees, a copy of the criminal investigation and/or arrest recordshall be included with the administrative investigation. For non-uniformed employees, arrest reports which have not resulted in a conviction cannot be included in the administrative investigation file.
TRUE
Under what circumstances can the Department open a administrative investigation regarding potential criminal misconduct on a non-uniformed employee?
1 - Any criminal misconduct that could lead to a felony conviction.
2 - Any criminal misconduct constituting a misdemeanor involving a crime of moral turpitude.
3 - Any criminal misconduct where the non-uniformed employee established a nexus to the Department.
What guidelines must be followed when an employee is requested to be interviewed by investigators pursuant to a Civil Rights investigation?
1 - The decision to consent to an interview with an outside investigator regarding a civil rights investigation shall be at the sole discretion of the departmental employee (either as a witness to, or the subject of, an investigation).
2 - If such an interview is conducted on state time, a departmental supervisorshall be present.
3 - To preserve the accuracy of the statements, interviews conducted on state timeshall be tape recorded.
Should a formal investigation be undertaken based on a complaint from departmental personnel (including an employee or employee’s spouse)?
A formal investigation resulting from a complaint from within the Department shall not be undertaken without having a basis for believing there is merit to the complaint. Unless the complaint involves a violation of law (threats, retaliatory or other evidence of a crime) departmental resources should not be expended to determine the source of such complaints.
Whose responsibility are internal investigations regarding cadets?
All internal investigations which involve a cadet as the subject, regardless of temporary assignment, are the responsibility of the Academy commander.
Whose responsibility are internal investigations involving employees assigned to special units (i.e drug/vehicle task forces) who do not report directly to a CHP supervisor/manager?
The employee’s departmental commander.
Whose responsibility are internal investigations regarding employee’s on temporary assignments (protective service detail, motor carrier inspection program, watch officer, etc)?
The responsibility remains with the employee’s permanent commander.
What is the timeframe for Adverse Actions to be completed?
1 year. GC 3304 states adverse actionsshall not be undertaken if the investigation is not completed within one (1) year of the Department’s discovery of the allegation by a person authorized to initiate an internal investigation (typically supervisor or above).
Normally the Department shall notify the employee of proposed disciplinary action within a 1 year period of the Adverse Action timeframe. Under what 8 circumstances does the Department not need to notify an employee of proposed disciplinary action?
1 - Pending criminal investigation by another law enforcement agency involving the subject employee.
2 - The employee waives the one-year timeframe in writing.
3 - A reasonable extension is necessary to coordinate a multi-jurisdictional investigation.
4 - The investigation involves more than one employee and requires a reasonable extension.
5 - The investigation involves an employee who is incapacitated or otherwise unavailable (military leave / extended vacation). This includes medical “stay away” orders from physicians/psychiatrists.
6 - The investigation involves a matter of civil litigation and the employee is a defendant. The 1 year time period is then suspended while civil litigation is pending.
7 - The investigation involves a matter under criminal investigation and prosecution, and the complainant is a criminal defendant. The 1 year time period is then suspended while the criminal case is resolved.
8 - The investigation involves an allegation of workers’ compensation fraud by the employee.
Under what circumstances can an internal investigation be re-opened beyond the 1 year timeframe?
Only when :
Significant new evidence has been discovered that is likely to affect the outcome of the investigationand one of the two following conditions exist :
1 - The evidence could not reasonable have been discovered without resorting to extraordinary measures by the Department.
2 - The evidence resulted from the employee’s pre-disciplinary hearing response or procedure.
Adverse action investigations normally must be completed within a 1 year timeframe. How long does the department have to notify an employee with a notice of adverse action?
This refers to the Adverse Action Three-Year Timeframe. Per GC 19635 - No adverse action shall be valid against any state employee for any cause for discipline based on any civil service law of this state, unless notice of the adverse action is served within three years after the cause for discipline, upon which the notice is based, first arose.
True or False
In accordance with GC 19173, a probationary employee must be served with a notice of rejection during probation prior to the last day of the probationary period, allowing time for the pre disciplinary hearing.
TRUE
Who can investigators discuss aspects of investigations with?
Only with person(s) who have an official right AND need to know.
Internal Investigation Information Security
What 4 rules shall be adhered to in order to maintain strict confidentiality of the investigation?
1 - Ensure all discussions, interviews, and interrogations regarding the investigation are conducted in a private location (not in hallways, locker rooms, etc)
2 - Limit the amount of information which is divulged to witnesses to only those facts pertaining to their testimony.
3 - Advise all subjects of internal investigations that it is a confidential personnel matter.
4 - When unattended, ensure all investigative notes, evidence, and any/all other written documentation which pertains to the investigation is secured.
Can an employee under investigation be subjected to visits by press or media personnel without the employee’s express consent?
No
Can the Department provide press or media personnel with a photo of the employee under investigation without the employee’s express consent?
No
Can the Department release residence information or photographs to the press or media if the subject under investigation is criminally prosecuted?
No
Can an Adverse Action stem from a Citizen’s Complaint? If so, does the Citizen Complaint need to be completed and approved per HPM 10.4 - Citizen’s Complaint Investigations Manual before being used as a basis for an administrative investigation?
Yes, Adverse Actions can stem from a Citizen Complaint. Citizen Complaint Investigations should be completed and approved per HPM 10.4 before being used as the basis for an internal investigation. The Citizen Complaint Investigation shall be an exhibit in the administrative investigation file.
Is the Department required to notify CalHR when an employee is placed on administrative leave (aka Department initiated leave of absence)? If so, who notifies CalHR?
Yes. OIA notifies CalHR.
True or False
When removing an employee from administrative leave the Department shall provide the employee with 48 hours notice. For uniformed employees, peace officer powers are simultaneously restored as the administrative leave ends.
TRUE
True or False
Removal of peace officer powers during administrative leave must be approved by the appropriate Assistant Commissioner.
TRUE
True or False
Certain Collective Bargaining Agreements allow the option for an employee to reimburse the Department for the cost of lost or damaged equipment in lieu of an adverse action and/or other corrective action (Censurable Form 2 / MOD etc)
TRUE
True or False
When an employee separates from the Department during an internal investigation, the investigation shall be completed in its entirety and processed.
TRUE
True or False
Employees subject to an internal investigation can be compelled to a polygraph or voice stress analysis
FALSE. If the Commander feels a polygraph or voice stress analysis is necessary, the Commander shall request approval through channels from the Officer of the Commissioner and coordinate through the Office of Internal Investigations. Employees shall not be compelled to submit to a polygraph or voice stress analysis. No disciplinary action or other record (including investigator notes) may be created as a result of an employee’s refusal to submit to a polygraph or voice stress analysis.
How long is evidence related to an Administrative Investigation stored for?
A minimum of 5 years.
What are the conditions that must be met to search an employee’s assigned locker, or other place for storage which are owned or leased by the Department?
1 - In the employee’s presence
2 - With the employee’s consent
3 - After a valid search warrant has been obtained. If requesting a search warrant, the appropriate prosecuting authority should be consulted after notifying the appropriate Assistant Commissioner.
4 - When the employee has been notified that a search will be conducted and the employee has been provided a reasonable opportunity to respond to the location and observe the search.
True or False
Care shall be given when searching briefcases, purses etc., contained in lockers or desks where the employee has a reasonable expectation of privacy for that container and/or the investigation does not involve work related misconduct. In most cases, personal containers may not be searched without a warrant or consent.
TRUE (GC 3309)
Do the provisions of GC 3309 apply to an employee’s desk?
An employee’s desk can normally be entered by a supervisor when looking for a work product. However, when the command has allowed a reasonable expectation of privacy (such as keys to the desk) the provisions of GC 3309 apply.
GC 3309 - Care shall be given when searching briefcases, purses etc., contained in lockers or desks where the employee has a reasonable expectation of privacy for that container and/or the investigation does not involve work related misconduct. In most cases, personal containers may not be searched without a warrant or consent.
True or False
Witness requests for confidentiality may be honored.
FALSE
Statements from departmental employees who are interviewed as witnesses during Internal Investigations _____ be recorded.
SHALL
Are statements from non-departmental witnesses to be recorded during Internal Investigations?
Yes, unless the witness objects to the recording.
What does POBR stand for?
PUBLIC SAFETY Officers Procedural Bill of Rights Act.
True or False
Video recordings may be utilized during Administrative interrogations.
FALSE
Unless previously approved by the Office of the Commissioner, video recordings shall not be used during administrative interrogations.
May surreptitious recording/monitoring/eavesdropping of witnesses be used during an Internal Investigation?
In the interest of public confidence/trust, it should be limited to those situations which indicate it is warranted.
True or False
All interviews and criminal and/or administrative investigations shall be either summarized on a memorandum or transcribed. If an interview or interrogation is transcribed, it does not need to be summarized.
TRUE
Whose responsibility is ensuring the accuracy of a summary of a criminal and/or administrative interrogation?
The lead investigator.
True or False
For the summaries of key witnesses, departmental or otherwise, the investigator should request the witness review and sign the summary memorandum. For witnesses who refused to be recorded, the investigator should request the witness review and sign the summary memorandum.
TRUE
Prior to conducting an interview with an employee regarding a potential criminal act, investigators _____ issue a Miranda Warning to protect the employee’s rights
SHALL
True or False
Members of the Department not accused of misconduct are obligated to fully cooperate with investigators and have an affirmative duty to answer questions during internal investigations. Departmental employees who are witnesses do not have a right to know the nature of the investigation.
TRUE
Are employees normally allowed representation during and investigative INTERVIEW (not interrogation)?
No
True or False
If an employee refuses to be interviewed, whether due to a perception of culpability or for any other reason, the investigator should consult with the chain of command for guidance BEFORE ordering the employee to comply.
TRUE
If the investigator believes at any time during the interview that the employee is either admitting to actionable misconduct or is engaging in misconduct through failure to cooperate, the interview _____ be immediately stopped to protect the employee’s rights. An administrative interrogation may then be required.
SHALL
May an employee be represented by anyone of the employee’s choosing during a criminal interrogation?
Yes
True or False
If another departmental employee is used as a representative during a criminal interrogation, the employee acting as a representative shall not be a person subject to the same investigation (which could include victims, witnesses or supervisors/managers within their immediate chain of command).
TRUE
True or False
While criminal investigators may not participate in an administrative interrogation, an administrative investigator should observe the criminal interrogation. This is desirable if an employee waives Miranda rights during a criminal interrogation and agrees to answer questions.
TRUE
To maintain the separation between criminal and administrative investigations, criminal investigators _____ not participate in administrative interrogations.
SHALL
All administrative interrogations _____ be recorded.
SHALL
True or False
When an employee is under administrative investigation and subject to interrogation regarding matters that will likely lead to adverse action, the interrogation shall be conducted under the provisions of GC 3303 (Public Safety Officers Procedural Bill of Rights)
TRUE
What are the required elements of an official notification to an employee of an administrative interrogation (Notice of Administrative Interrogation)?
1 - The nature (scope) of the interrogation
2 - Rank, Name, and Command of the lead and assistant interrogators.
3 - Date, time and location of the interrogation.
4 - The right to representation.
In most instances, it is reasonable to provide the employee with __ hours of notice prior to an administrative interrogation (Notice of Administrative Interrogation).
24
True or False
If in a rare circumstance, an employee subject to a Notice of Administrative Interrogation may be advised verbally of the information contained in the notice. The verbal notification shall be noted in the investigative file. The employee shall also be served a hard copy of the Notice of Administrative Interrogation prior to the actual interrogation.
TRUE
True or False
If prior to, or during and administrative interrogation, information is presented which suggests the employee may be charged with a criminal offense, the employee shall be immediately informed of their Miranda rights. This is called the “Lybarger Warning”.
TRUE
What is the “Lybarger Warning”?
A Miranda Warning provided to a peace officer prior to or during and administrative interrogation when the conduct in question may result in the peace officer being charged with a criminal offense. By providing the Lybarger Warning the Department may obtain a compelled statement.
True or False
Public Safety Officers Procedural Bill of Rights provides the right for employees to submit a written response within 30 days to any adverse comment entered into the employee’s personnel file, including a censurable CHP 2, Memorandum of Direction, or Memorandum of Findings. A copy of the employee’s response shall be attached to all copies of the investigation, including the copy retained by the Officer of Internal Affairs (OIA).
TRUE
True or False
An employee’s separation from the Department prior to the completion of the internal investigation shall not impact the investigation and documentation level.
TRUE
The Commissioner has final approval authority for all administrative investigations. Who has the Commissioner delegated final review of an administrative investigation to?
(3 Levels depending on adverse action penalty)
Division Commander - Adverse Action with a penalty of :
- Formal written reprimand
- Suspension of one (1) to five (5) working days or equivalent monthly step reduction.
Assistant Commissioner - Adverse Action with a penalty of :
- Suspension of six (6) to twenty (20) working days or equivalent monthly step reduction
- Removal from a specialty pay position (BU 5).
Commissioner or Deputy Commissioner - Adverse Action with a penalty of :
- Dismissal
- Demotion
- Suspension in excess of twenty (20) days or equivalent monthly step reduction.
- Rejection during probation
- Non-punitive termination
When is an employee required to surrender state property (ID card, badge, cap piece, state owned police equipment)?
When the employee is suspended or removed from service (either temporary or permanent).
When are uniformed employee’s peace officer powers removed/suspended?
During a temporary or permanent separation from the Department.
How are subpoenas handled in regards to a uniformed employee on suspension?
The immediate supervisor or designated agent should refuse to accept the service in accordance with PC 1328(d). An Area commander may make arrangements to have another employee testify, seek a postponement, etc.
Which Bargaining Unit(s) allow the use of leave credits in lieu of serving an adverse action penalty or portion thereof?
BU 5
What are the limitations for use of leave credits for BU 5 members in lieu of serving an adverse action penalty?
For suspensions of five (5) days or less, the employee may use leave credits to satisfy the entire suspension period. This also includes five (5) months or less step reductions.
For suspensions of six (6) days or more, the employee may use leave credits to satisfy up to one-half of the suspension period. This also includes six (6) months or longer step reductions.
Define the Public Safety Officers Procedural Bill of Rights Act (POBR) (GC 3301).
The Public Safety Procedural Bill of Rights Act (POBR) specifies elements of procedural rights that must be afforded to public safety officers. By Departmental policy, these rights are extended to all employees with the exception of cadets. All public safety officers and all state employees designated as peace officers are protected by the statutes
(PC sections 830.1, 830.2, 830.3, 830.31, 830.32, and 830.33 cover peace officer definitions).
Which Departmental job classification does POBR not extend rights to?
Cadets
Which Penal Codes cover Peace Officer Definitions?
PC 830.1, PC 830.2, PC 830.3, PC 830.31, 830.32, and 830.33
True or False
Per GC 3302 except otherwise provided by law, or whenever on duty or in uniform, no public safety officer shall be prohibited from engaging, or be coerced or required to engage, in political activity.
TRUE
True or False
Per GC 3302, no public safety officer shall be prohibited from seeking election to, or serving as a member of, the governing board of a school district.
TRUE
GC 3303 covers the administrative interrogation rules when that interrogation could lead to punitive action. What are the 16 conditions that an administrative interrogation must be conducted under?
1 - GC 3303 (a) The interrogation shall be conducted at a reasonable hour, preferably when the employee is on duty or during the employee’s normal waking hours unless the severity of the investigation requires otherwise.If conducted during an employee’s off-duty time, the employee is entitled to overtime and shall not be released from employment for any work missed
2 - GC 3303 (b) Prior to the interrogation, the employee shall be informed of the rank, name, and command of the person in charge of the interrogation, the interrogators and all persons to be present.
3 - GC 3303(b) Interrogations shall be conducted in private. All questions directed towards the employee shall be asked by and through no more than two interrogators at one time.
4 - GC 3303(c) The employee shall be informed of the nature of the investigation prior to any interrogation.
5 - GC 3303(d) The interrogation session shall be for a reasonable time period taking into consideration the gravity and complexity of the issues being investigated.
6 - GC 3303(d) The employee under interrogation shall be allowed to attend to their own physical necessities.
7 - GC 3303(e) The employee shall not be subjected to any offensive language or threatened with punitive action, except than an employee refusing to respond to questions or submit to an interrogation shall be informed that failure to answer questions related to the investigation may result in punitive action.
8 - GC 3303(e) No promise of reward shall be made to an employee as an inducement for answering any questions.
9 - GC 3303(3) The employee under investigation shall not be subjected to visits by the press or news media without his/her express consent, nor shall his/her address or photograph be given to the news media without his/her express consent.
10 - GC 3303(f) No statement made during interrogation by a public safety officer under duress, coercion, or threat of punitive action shall be admissible in any subsequent civil proceeding.
11 - GC 3303(g) The complete interrogation of the employee may be recorded. The employee shall have the right to bring their own recording device. If the employee requests a copy of the recording made by investigators it shall be granted along with a copy of the employee’s investigation gfile given pursuant to Title 2, CCR 52.3.
12 - GC 3303(g) The employee shall be entitled to a transcribed copy of any notes made by a stenographer and to reports or complaints made by investigators or other persons, except those which are deemed to be confidential.
13 - GC 3303(h) If prior to or during the interrogation, it is deemed that he/she may be charged with a criminal offense, the employee shall immediately be informed of their constitutional rights (“Lybarger Warning” aka Miranda).
14 - GC 3303(i) Upon filing of a formal written statement of charges, or whenever an interrogation focuses on matters which are likely to result in punitive action against an employee, that employee shall, at his/her request, have the right to be represented by a representative of his/her choice who may be present at all times during such interrogation. The representative shall not be a person subject to the same investigation.
15 - GC 3303(i) This section shall not apply to any interrogation of a public safety officer in the normal course of duty, counseling, instruction, or informal verbal admonishment by, or other routine or unplanned contact with a supervisor or other public safety officer, nor shall that section apply to an investigation concerned solely and directly with alleged criminal activities.
16 - GC 3303(j) No employee shall be loaned or temporarily reassigned to a location or duty assignment if a sworn member of his or her department would not normally be sent to that location or would not normally be given that under assignment under similar circumstances.
What does GC 3304(a) state?
GC 3304(a) states that no public safety officer shall be subjected to punitive action, or denied promotion, or be threatened with any such treatment, because of the lawful exercise of the rights granted under POBR (Public Safety Officers Procedural Bill of Rights) or the exercise of any rights under any existing administrative grievance procedure.
Is an employee required (if he/she has been directed by his/her commander) to cooperate with other agencies involved in criminal investigations?
Yes. That employee may be charged with insubordination if he/she fails to comply. GC 3304(a)
True or False
GC 3304(b) states that no punitive action, nor denial of promotion on grounds other than merit shall be undertaken by any public agency against any public safety officer who has successfully completed the probationary period that may be required by his or her employing agency without providing the public safety officer with an opportunity for administrative appeal.
TRUE
What does GC 3304(f) state?
If, after investigation and any pre-disciplinary response or procedure, the public agency decides to impose discipline, the public agency shall notify the public safety official in writing of its decision to impose discipline, including the date that the discipline will be imposed, within 30 days of its decision, expect if the public safety officer is unavailable for discipline.
What two criteria must be met notwithstanding the one-year time period to re-open an investigation against a public safety officer? (GC 3304(g)
1 - Significant new evidence has been discovered that is likely to affect the outcome of the investigation
2 - One of the following conditions exist :
– The evidence could not reasonably have been discovered in the normal course of investigation without extraordinary measures by the agency.
– The evidence resulted from the public safety officer’s pre-disciplinary response or procedure.
What does GC 3304.5 state?
An administrative appeal instituted by a public safety officer under POBR (Public Safety Officers Procedural Bill of Rights) shall be conducted in conformance with rules and procedures adopted by the local public agency.
What does GC 3305 state?
No public safety officer shall have any comment adverse to his/her interest entered in their personnel file without the officer having read it first and signed the document. If the officer refuses to sign, that fact shall be noted on the document and signed or initialed by the employee.
How long does an employee have to file a written response to any adverse comment entered in the employees personnel file. Note : The written response shall be attached to, and shall accompany the adverse comment in the employees personnel file.
30 Days
What does GC 3306.5 state?
Every employer shall, at reasonable times and intervals, upon the request of a public safety officer, during usual business hours, with no loss of compensation to the officer, permit that officer to inspect personnel files that are used or have been used to determine that officer’s qualifications for employment, promotion, additional compensation or termination or other disciplinary action.
What does GC 3307 state?
No public safety officer shall be compelled to submit to a lie detector test against his/her will. No disciplinary action or other recrimination shall be taken against an employee who refuses to submit to a lie detector/polygraph test, nor shall any comment be entered anywhere in the investigator’s notes or anywhere else that the public safety officer refused to take, or did not take a lie detector/polygraph test, nor shall any testimony or evidence be admissible at a subsequent hearing/trial or proceeding (judicial OR administrative) to the effect that the public safety officer refused to take, or was subjected to, a lie detector test.
What does GC 3307.5 state?
No public safety officer shall be required as a condition of employment to consent to the use of his/her photograph or identity as a public safety officer on the internet for any purpose if that officer reasonably believes that the disclosure may result in a threat, harassment, intimidation, or harm to that officer or his/her family.
What does GC 3308 state?
No public safety officer shall be required or requested for purposes of job assignment or other personnel action to disclose any item of his/her property, income, assets, source of income, debts or personnel or domestic expenditures (including those of his/her household). EXCEPTIONS are permitted if such information is obtained or required under state law or proper legal procedure tends to indicate a conflict of interest with respect to the performance of the officer’s official duties. A second exemption permits a request when necessary for the employing agency to ascertain the desirability of assigning the employee to a specialized unit in which there is a strong possibility that bribes or other improper inducements may be offered.
What does GC 3309 state?
No public safety officer shall have his/her assigned locker, or other place for storage, searched unless the search is conducted under any one of the following circumstances :
a - In the officer’s presence
b - With the officer’s consent
c - With notification to the employee that a search will be conducted
d - After a valid search warrant has been obtained
e - This section shall apply only to ockers or other space for storage that are owned or leased by the Department
What does GC 3309.5 state?
It is unlawful for any public safety department to deny or refuse any public safety officer the rights and protections guaranteed to them by this chapter. The superior court shall have initial jurisdiction over any proceeding brought by any public safety officer against any public safety department for alleged violations of this chapter.
What does GC 3310 state?
Any public agency which has adopted, through action of its governing body or its official designee, any procedure which at a minimum provides to peace officers the same rights or protections as provided pursuant to this chapter shall not be subject to this chapter with regard to such a procedure.
What does GC 3312 state?
Notwithstanding any other provision of law, the employer of a public safety officer may not take any punitive action against an officer for wearing a pin or displaying any other item containing the American flag unless that officer is provided a written notice that includes ALL of the following:
- A statement that the pin or item violates an existing rule, regulation, policy or local agency agreement or contract regarding the American flag.
- A citation to the specific rule, regulation, policy or local agency agreement or contract that the pin or item violates.
- A statement that the officer may file an appeal against the employer challenging the alleged violation pursuant to applicable grievance or appeal procedures adopted by the department or public agency that otherwise comply with existing law.
True or False
An employee’s right to a representative shall not apply to any questioning of an employee in the normal course of duty, counseling, instruction, informal verbal admonishments, or other routine or unplanned contact with a supervisor or fellow employee.
TRUE
True or False
If, during a contact, information surfaces which indicates the employee is likely to be subject to an adverse action, the solicitation of information shall immediately cease, and the employee shall be informed of the right to representation. If a representative is requested, the meeting should be postponed to allow the employee a reasonable opportunity to obtain representation.
TRUE
True or False
Supervisors and managers must remain cognizant of the employee’s perception of the nature of an interview or meeting. A belief on the employee’s part that adverse action is being considered, irrespective of the interviewer’s designs or intentions may be sufficient grounds to warrant granting representation rights. As such, before refusing a request for representation, it is recommended that commanders and supervisors consult with the Office of Employee Relations (OER) or the Office of Internal Affairs (OIA) for additional guidance (with the concurrence of Division, as appropriate).
TRUE
True or False
To preclude any potential violation of POBR, directing an employee to prepare a memorandum (describing the employee’s version of the matter in question) when an adverse action is warranted is prohibited. However, subsequent to an interview, an employee may be directed to prepare a memorandum, after consulting or obtaining assistance from a representative, for the purpose of clarifying specific issues. In addition, this prohibition does not apply when the employee has been provided with a written interrogatory and afforded the opportunity to consult with a representative during its completion.
TRUE
True or False
An employee is not entitled to a representative when the investigation is solely and directly concerned with criminal activities. During criminal investigations, employees are entitled to criminal representation.
TRUE
When an employee requests a specific representative, is the Department required to reasonably accommodate the request?
When an employee requests a specific representative, he/she shall be accommodated if reasonably possible. The representative may be someone other than a designated bargaining unit representative. If the employee chooses someone who is unable or unwilling to attend within a reasonable period of time and another employee representative is available, the interrogation should not be postponed. The involved employees must then use another employee representative who is available.
What is the primary role of the employee’s representative?
The primary role of the employee’s representative is to assure compliance with the rights provided the employee. Specifically, the representative role includes:
a. Help assure compliance with POBR, clarify responses, elicit facts favorable to the employee, object to questions clearly outside the scope, and, if requested, provide a brief closing statement at the conclusion of the interview.
b. While the representative is present to assist the employee, and may attempt to clarify facts, the investigator is free to insist on hearing the employee’s own account of the events.
c. Investigators should be prepared for objections or discovery requests by the employee representative.
d. This policy does not preclude the release of information during an interrogation at the discretion of the interrogator(s), when it is deemed that such release is a necessary element of a thorough and complete interrogation.
Is a representative required to disclose any information received from the employee whom they represent regarding non-criminal matters?
No. The representative shall not be required to disclose, nor be subject to any adverse action for refusing to disclose, any information received from the employee under investigation for noncriminal matters.
Is a representative allowed to take on a role of more than a passive observer, to the point where they are disruptive or transform the interview into an adversarial contest?
No, The interrogation shall be handled in a setting of cooperation amongst the interrogators, the employee, and the employee’s representative. Although not relegated to the role of a passive observer, the representative cannot be disruptive or transform the interview into an adversarial contest.
Is a representative allowed to ask questions during or near the end of an interrogation regarding the interrogator(s) opinions as to the involved employee’s culpability and/or veracity (truthfulness or accuracy)?
Yes. Representatives may ask questions during or near the end of an interrogation regarding the interrogator(s) opinions as to the involved employee’s culpability and/or veracity.
What is the acronym for SAAP and what does it aim to accomplish?
Stipulated Adverse Action Process.
To expeditiously resolve employee discipline issues when the employees accept responsibility for misconduct.
- Prevents unnecessary delays and mitigates the negative impact on departmental employees resulting from prolonged investigative processes.
- Minimizes disruptions to command operations while permitting the Department to take timely corrective action to address acts of employee misconduct.
What form does the SAAP (Stipulated Adverse Action Plan) use?
CHP 7S
