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.
