HPM 10.2 Internal Investigations Manual Flashcards
What is the purpose of the internal investigations manual?
To establish policy, and to provide supervisors clear guidelines on internal investigations where adverse action or rejection during probation appears warranted.
When shall internal investigations be undertaken?
All instances of alleged misconduct by department employees, and when appropriate , adverse action or rejection during probation.
Who has the Department extended the protections of the POBR?
All departmental employees, except cadets.
Who has final approval authority for all adverse action penalties?
The Commissioner.
What level of review do Division Commanders handle?
Formal written reprimand up to, and including, five day suspensions.
What level of review does AC Field handle?
Six through 2-day suspensions, or removal of BU 5 personnel from specialty pay positions.
What level of review does AC Staff handle?
Six through 2-day suspensions for headquarters personnel, and rejections during probation for cadets.
What level of review do the Commissioner and Deputy Commissioner handle?
Final review for all suspensions in excess of 2 days, dismissals, demotions, and rejections during probation.
What is the purpose of the Dismissal Review Panel?
To determine if allegations of an employee warrant dismissal. Recommendations are submitted to the Commissioner prior to final decision.
Who investigates adverse actions or rejections during probation, which allege misconduct of cadets?
BIA.
Who investigates adverse actions or rejections during probation, for performance related deficiencies?
Personnel and Training Division.
What are the two primary functions of the BIA Investigation Unit?
Conducting internal investigations. Investigating possible worker’s comp fraud.
What is required prior to requesting assistance from the BIA Investigation Unit?
Permission through channels to the appropriate Asst. Commissioner.
What is the definition of adverse action?
Dismissal, demotion, suspension, or other disciplinary action.
What is not included in the definition of adverse action?
Censurable Incident Report (CHP 2). Memorandum of Correction. Memorandum of findings. Other documentation of supervisory counseling.
What is part of the initial selection process for the various ranks and classifications within the Department?
Probationary period.
What can the appointing power reject a probationer for?
Reasons relating to the probationer’s qualifications, the good of the service, or failure to demonstrate merit, efficiency, fitness, and moral responsibility.
Under what circumstances would a commander consider relieving the employee from his or her duties?
When dismissal or rejection during probation is probable.
Under what circumstances would an employee generally be put on leave of absence with pay?
If the employee is under investigation for a serious offense, or is deemed to be in the best interest of the Department or employee.
A commander may terminate the leave by giving how much notice to the employee in writing?
48 hours.
May a commander remove peace officer powers from a uniformed employee?
Yes, with approval through channels from the appropriate Assistant Commissioner.
What is done when an employee voluntarily resigns in lieu of adverse action or rejection during probation?
The investigation will be completed and sent to BIA where it will be included in the employees personnel file.
May a manager or supervisor exert undue influence, or subject employees to duress, to obtain a resignation?
No
Can an employee be forced to wait prior to submitting his resignation?
No, it is the employee’s right to resign immediately.
When an employee indicates an intention to resign due to an alleged act of misconduct or substandard performance, what should the supervisor do?
Suggest employee to seek advice (union rep., attorney). Give employee reasonable time to consult with an advisor and reach a final decision. Let the employee resign immediately.
What is the definition of internal investigation?
An inquiry by the departmental personnel concerning alleged misconduct or substandard performance that may lead to adverse action.
When can an internal investigation be initiated?
Complaint. Departmental knowledge. Any other source of info.
What is the objective of internal investigations?
Gather facts which will either clear the employee, provide a basis for corrective action, or lead to adverse action.
Who is handles the internal investigation when it involves employees assigned to different commands?
The appropriate Division commander or Assistant Commissioner may designate a primary investigator; however, all commands should provide a representative to assist.
What rank must a primary investigator be?
At least one rank higher than the involved employee.
What is required of an employee if he/she finds out that another agency is conducting any investigation involving departmental personnel (including the employee subject to the investigation)?
Shall immediately notify their commander, this does not apply to infractions.
How shall an investigator conduct an investigation?
In an ethical and professional manner.
How many photos are required to be used on a photo lineup?
6
When should witnesses be interviewed?
Immediately after the investigation is initiated.
What should be done for a witness that requests confidentiality?
Witness information should be placed in an envelope marked “confidential”, and retained by the original command. The witness’ name shall be omitted from all investigative files.
Where is the witness information documented in an internal investigation?
CHP 7, Subject/Witness Summary.
In serious cases, what should be done with witness statements?
They shall be tape recorded.
Can investigators demand any tape recordings made by uniformed employees associated with an alleged event?
Yes, employees can be instructed, under penalty of insubordination, to provide tape the recordings.
When an employees bills are requested to complete an investigation, the employee will be directed to do what with the bill?
Remove all references to monetary amounts billed, charged, or paid. The employee will need to certify that the documents are copies of the actual records.
What shall an investigator do if they need to obtain documents from other than departmental sources and the employee and/or custodian of records refuses to supply the documents?
The investigator should consider obtaining a subpoena duces tecum to compel production of the desired documents.
Can investigators demand that employees take a polygraph test?
No, but they may request it.
Can an employee’s refusal to submit to a polygraph test be used against him?
No, adverse comments or other record may be made.
Who must approve the use of a polygraph test?
The Commissioner.
All searches and seizures conducted by the investigator must comply with what?
POBR and related case law.
Are employee interrogations required in all internal investigations?
No.
What shall be read to an employee prior to interrogation?
The administrative side of the CHP 8.
When should employee interrogations take place?
After gathering all other available information.
Must an employee be given advanced notice of an interrogation?
Yes, normally done by memorandum, but may be verbal.
What can the employee being interrogated or their representative be allowed to bring to an interrogation.
Their own tape recorder.
What interrogations are investigators required to record?
All complete interrogations shall be recorded.
When shall interrogations be fully transcribed?
For all dismissal cases and those involving serious allegations.
What shall be done if during an investigation of alleged misconduct it is revealed that the employee may have committed a criminal offense?
The applicable authorities (PD, SO) shall be contacted to develop an appropriate course of action.
When an adverse action involves a criminal act, when is the criminal investigation conducted?
First, so the allied agency report may be used by the Department as a starting point in the administrative interrogation.
What happens when alleged misconduct of an employee reveals a criminal offense may have been committed and the crime is within the investigative responsibility of the Department, or the responsible agency refuses to investigate?
Separate criminal and administrative files shall be completed.
If during a criminal investigation the employee refuses to waive his rights, an administrative interrogation should not be conducted until after approval is obtained from the prosecuting authority. If criminal charges are possible, who shall the investigator obtain approval from before contacting the prosecuting authority?
The Office of the Commissioner.
Are civil rights violations criminal or civil in nature?
Criminal.
What guidelines apply if employees are requested to be interviewed by investigators pursuant to a civil rights violation?
The decision to consent to the interview is up to the employee. Is such an interview is conducted on state time, a departmental supervisor will be present. To preserve the accuracy of the statements, interviews conducted on state time will be tape recorded.
Administrative actions resulting from substandard performance shall include what documentation?
Documentation showing the employee repeatedly failed to improve after being advised that his substandard performance must be brought up to an acceptable level. Each corrective interview. Comparisons of others performing tasks under similar conditions. Training results.
What is an internal investigation which does not result in a recommendation for adverse action or rejection during probation.
A miscellaneous investigation.
Who is a misc. investigation forwarded to?
BIA.
How long is a misc. investigation retained by the area?
3 years, except in instances where the employee resigns during the investigation.
Does the employee get a closing memorandum at the conclusion of a misc. investigation?
Yes, but only after routing through BIA and approval by appropriate Asst. Commissioner, or the Office of the Commissioner.
What additional rights are provided to employees during the internal investigation process?
The POBR and applicable collective bargaining agreements.
As written by the legislature, who is protected by the POBR?
All peace officers as defined in 83.1 and 83.2(a)(b) PC, and all state employees designated as peace officers.
Who does the Department extend the protection of the POBR?
The POBR is extended to all departmental employees, except cadets.
What code is the POBR found in?
The Government Code.
Can an employee, on duty or in uniform, be prohibited from engaging, or be coerced or required to engage in political activity?
No.
According to the POBR, what is the definition of punitive action?
Any action which may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.
Per POBR, if an interrogation takes place during the employee’s off-duty time what is the employee entitled to?
Overtime.
Per POBR, what information is an employee subject to interrogation required to be given prior to the commencement of interrogation?
The name, rank, and command of the person in charge of the interrogation, interrogators, and all persons to be present.
Per POBR and Department policy, how many interrogators are allowed at one time?
Two.
Per POBR, is the employee entitled to be told the nature of the investigation prior to its commencement?
Yes, the employee shall be told prior to the interrogation.
Per POBR, when may an employee be threatened with adverse action during the interrogation?
When the employee refuses to respond to questioning, they may be advised that failure to answer could result in adverse action for insubordination.
Per POBR, what type of promise are interrogators prohibited from making?
Promise of reward or immunity from adverse action.
Per POBR, under what condition may the identity, address, or photograph of an employee under investigation be given to the media?
Only with the employees consent.
Per POBR, what is an employee entitled to if a subsequent interrogation is scheduled?
A copy of the prior tape-recording, transcribed notes, and reports or complaints made by investigators or other persons, except confidential info.
Per POBR, what happens to an employee that requests pre-interrogation discovery of notes, reports, complaints, etc.?
It will be denied.
Per POBR, what shall the investigator do if prior to or during an interrogation of the employee, it is deemed that he may be charged with a criminal offense?
Immediately informed of Miranda rights.
Per POBR, upon filing of a formal written statement of charges, or whenever an interrogation focuses on matters which are likely to result in an adverse action, what does the employee have the right to do?
Request representation during the interview.
Per POBR, when is an employee not entitled to representation?
In the normal course of duty. Counseling. Instruction. CHP form 2s. Informal verbal admonishment. Other routine or unplanned contact with a supervisor. During an investigation concerned solely and directly with alleged criminal activities.
Per POBR, is the representative required to be a passive observer?
No, they must be afforded some opportunity to participate in the interview.
Per POBR, Does the interrogator have the duty to bargain with the representative?
No
Per POBR, can an employee be reassigned to a location or duties that are not within the normal scope of their employment?
No.
Per POBR, may an employee refuse to cooperate with other agencies involved in criminal investigations?
If directed by the commander, employees shall cooperate with other agencies. Refusal could be insubordination. This does not apply if the employee is suspected in the alleged crime.
Per POBR, how long does an employee have to file a written response to any adverse comment entered in his personnel file?
3 days.
Per POBR, what are the two exceptions that allow investigators to require employees to disclose items of his/her property, income, assets, source of income, debts, or personal or domestic expenditures.
If obtained or required under state law or proper legal procedure tends to indicate a conflict of interest with respect to the performance of his official duties. When necessary for the employing agency to ascertain the desirability of assigning the employee to a specialized unit in which bribes there is a strong possibility that bribes or other improper inducements may be offered.
Per POBR, under what conditions may an employee have his assigned locker, or other place for storage searched?
In his presence. With his consent. After a valid search warrant has been obtained. Where the employee has been notified that a search will be conducted.
Per POBR, may briefcases in a state owned or leased locker be searched?
A warrant should be obtained where there is an expectation of privacy for a specific container.
Per Department policy, when does an employee have a right to representation?
When a meeting is held with an employee and his superiors for the purpose of eliciting information to support an adverse action.
If the employee requests a representative during non-investigatory meetings where there is no right to representation what should he be told?
There is no right to representation. If they refuse to be interviewed they shall be informed why there is no right to representation and that he will be subject to disciplinary action.
Who can the employee’s representative be?
Can be someone other than designated union representative, but shall not be in the employee’s immediate chain of command.
What is the primary role of an employee representative?
To assure compliance with the rights of the employee.
Can an employee representative be asked to leave an interrogation?
Yes, if the representative is disruptive and the interrogator had re-admonished the representative of the limits of his role.
Can an employee representative make a closing statement at an employee interrogation?
Yes, a brief statement.
Do attorneys have more authority or rights than a representative at an interrogation?
No, same a representative.
At the conclusions of the interrogation, who can the employee representative question?
The employee.
How are alleged violations of POBR initiated by uniformed members?
By legal action in Superior Court.
How are alleged violations of POBR initiated by non-uniformed members?
By the grievance procedure to the third level (Office of the Commissioner).
What option does a BU 5 employee have if they lose or damage departmentally issued equipment?
Can reimburse the Department for the lost or damaged item at current replacement or repair cost.
Can adverse actions be brought against a BU 5 employee that loses or damages state equipment if he agrees to reimbursement?
No
How many days prior to any adverse action, rejection during probation, termination, or transfer between classes of an employee for medical reasons must the appointing power provide the employee with written notice of the proposed action?
At least five days (1 days for managerial employees).
How many different internal investigation formats are there?
Two, the full format and the short format.
When should the short format be used?
For investigations within the approval range of the Division Commander (five days off or less)
Who prepares the final Notice of Adverse Action and Rejections During Probation?
BIA.
What is the Problem Summary in regard to the short format and the full format?
A statement which sets forth all of the acts of misconduct or substandard performance.
Rejections during probation for acts of misconduct shall be prepared in what format?
The same format as an adverse action.
Once the investigation is complete, the initiating command will send one indexed copy of the investigative file to where?
The next level of command for approval.
How long shall adverse actions be retained for?
Five years from the effective date of the action taken.
Who prepares all final Notices of Adverse Action and Rejection During Probation?
BIA
What is the Departments definition of a minor adverse action?
An action which requests a penalty of five days or less or a step reduction in salary for five months or less.
How are suspensions for employees on an alternate schedule computed?
All suspensions are based on a 24-hour day, and eight hour work day.
The time between the employee’s receipt of the final Notice of Adverse Action and the date of the predisciplinary hearing (formerly Skelly hearing) shall be a minimum of how many days?
5 (1 for managerial)
What is an employee require to do with their state issued property when they are suspended or removed from service?
Surrender all state property.
How can an employee who was the subject of a miscellaneous investigation get a copy of the investigation file?
Pursuant to a written request.
What is the purpose of the predisciplinary or rejection hearing?
Allows the affected employee with an opportunity to respond prior to the implementation of the discipline.
Who normally serves as the predisciplinary hearing officer?
At a minimum, the Division commander or a designated Asst. Chief.
What is the role of the predisciplinary hearing officer?
To serve as an unbiased, non-involved reviewer of the proposed action.
What four issues are to be addressed by the predisciplinary hearing officer?
Was the alleged offense committed? Was the employee responsible, or did they commit the offense? Is the assessed penalty appropriate? Were any new issues raised which are mitigating or merit further investigation?
Does the Service of the Notice of Rejection During Probation need to be made prior to the conclusion of the probationary period?
Yes.
Is a Rejection During Probation constitute and adverse action?
No.
Are probationary employee’s granted the same rights as permanent employees?
Yes, except cadets.
What is the filing deadline for an appeal of an adverse action with the State Personnel Board?
No later than 3 calendar days after service of the adverse action.
What is the filing deadline for an appeal of a Rejection During Probation with the State Personnel Board?
No later than 15 calendar days after the effective date.
What is the case coordinator responsible for?
Takes an active role in the appeal process by ensuring the matter is properly prepared for hearing.
What happens if the appellant fails to appear at their State Personnel Board hearing?
Shall be deemed a withdrawal of appeal, and the decision of the Department becomes final.
Who is authorized to approve settlements and/or stipulated agreements?
Office of the Commissioner.
Are adverse action investigation files part of an employee’s personnel file?
Yes.
Any release of employee information should be coordinated through what unit?
Legal Coordination Unit and BIA
Are miscellaneous investigations subject to public disclosure?
No.
When can a final Notice of Adverse Action be released to the public?
After service is made on the affected employee and the notice is filed with SPB.
What bargaining unit has a separate appeals process for minor discipline issues?
BU 5.
What internal investigation format is used for minor disciplinary actions?
Short format.
What is the imposition of penalty timeline for minor discipline issues?
No earlier than 25 calendar days from the date of service of the final Notice of Adverse Action.
How long does an employee have to request a review of the minor discipline after the final notice of minor discipline is served?
Within 1 calendar days.
Is the predisciplinary hearing officer required to provide a written decision to the employee?
Yes.
How much time does a predisciplinary hearing officer have to respond to an employees written response?
Within 14 calendar days.
How much time does a predisciplinary hearing officer have to respond to an employees verbal response?
Within seven calendar days.
What happens if the predisciplinary hearing officer rescinds the penalty of a minor discipline adverse action?
It is converted to a miscellaneous investigation.
What can the union do if the employee is not satisfied with the decision of the predisciplinary hearing officer?
The union can submit a written request for arbitration within 14 calendar days to BIA.
Who chooses the arbitrator?
The union and the Department jointly choose the arbitrator from a predetermined panel.
Who is the departmental representative at an arbitration hearing?
The applicable Division Chief will select one of the following: Manager of supervisor who complete internal investigation. Division manager or supervisor who reviewed the request for adverse action. A representative from BIA.
Are witnesses allowed to testify at an arbitration hearing?
No, only the departmental representative, the union representative, and the employee.
How many days before the arbitration hearing are the CAHP and BIA required to provide each other with a copy of their documents?
No less than 4 days prior to the arbitration.
How much time does the arbitrator have to make a decision?
Within two calendar days from the time of the hearing.
Is the decision of the arbitrator final?
Yes.
Use of leave credits to discharge a minor discipline penalty will not be approved within how many days prior to the scheduled arbitration hearing?
With 3 days prior.
How can an officer appeal the predisciplinary hearing officer over a written reprimand?
The union may submit a written appeal to the Commissioner within 14 calendar days of the predisciplinary hearing.
How much time does the Commissioner have to respond to the written reprimand appeal?
14 calendar days.
Who participates in the dismissal review panel?
It is a panel of five Department employees from a different division than the employee’s. Two members of the panel shall be the same rank as the employee. The balance of the panel consists of three employees of ascending rank, higher than the rank of the employee. The commander of BIA should act as chairperson.
Are the decisions of the dismissal review panel binding?
No, the Commissioner retains final authority.
When can an employee use leave credits to satisfy 1 % of their penalty involving suspension or step reduction?
An adverse action in the Division commander’s range (five day suspension or less).
Can the employees request to use leave credits be denied?
A penalty in the Division commander’s range will be granted without dispute and the employee shall waive all rights to appeal.
If the employee is subject to an adverse action involving penalties above the Division Commander’s range, can they use leave credits to satisfy their penalty?
They may use leave credits to satisfy up to 5% of the penalty and shall waive all rights to appeal. In most cases these will be granted without dispute.
When must the written request to use leave credits be submitted by?
Prior to the conclusion of the predisciplinary hearing response period.
