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HomeMy WebLinkAboutStaff Report 154-06TO: FROM CITY ATTORNEY CITY MANAGER AND POLICE CHIEF CMR: 154-06 HONORABLE CITY COUNCIL 6 FROM:City Attorney City Manager Police Chief DATE: SUBJECT: March 13, 2006 ANALYSIS OF AN INDEPENDENT POLICE AUDITOR PROGRAM BACKGROUND On December 12, 2005, the City Council directed the City Manager, City Attorney, and Police Chief to explore the hiring of an Independent Police Auditor to review internal investigations and citizen complaints where allegations of police misconduct are raised. The Council specifically requested the evaluation of a one-year pilot progam in which an Independent Police Auditor would be retained on an as-needed basis. This report provides a summary of the Police Department’s current practice regarding internal investigations; results of research conducted on police auditors in general, as well as those programs in place in California agencies; legal considerations; projected cost implications; and additional issues that will need to be addressed if the Council elects to proceed with a pilot police auditor program. As a foundation for this report, staff has contacted the Police Assessment Resource Center (PARC), International Chiefs of Police (IACP), and the National Institute of Justice (NIJ). Staff has provided information from these organizations in order to facilitate the Council’s decision making process. In addition to this analysis, a recommendation by the City Manager is attached. DISCUSSION Current Process - Currently, the Police Department follows specific procedures regarding citizen complaints and internal investigations. Penal Code section 832.5 requires police agencies to adopt procedures to "investigate complaints by members of the public against the personnel of these departments or agencies..." Citizen complaints consist of any allegation of misconduct or improper job performance against any Department employee that, if true, would constitute a violation of Department policy, federal, state or local law. The most common citizen complaints allege performance issues such as rudeness, poor demeanor or non-substantive procedural errors. Complaints alleging more serious misconduct are rare. Attachment A is the Department’s 060308 syn 0120099 THE HONORABLE CITY COUNCIL March 13, 2006 Page 2 RE: ANALYSIS OF AN INDEPENDENT POLICE AUDITOR PROGRAM "Internal Affairs and Complaint Investigation Guidelines," which provides detailed information about the conduct of investigations. Formal citizen complaints are documented and thoroughly investigated by the employee’s supervisor or by the Internal Affairs Investigation team. There are four dispositions that may be recommended at the conclusion of the investigation: sustained, not sustained, exonerated, and unfounded. ¯ At the conclusion of an investigation, the investigation report is reviewed by Department command staff. If there is a finding of misconduct or any other performance deficiency, appropriate disciplinary action ranging from employee counseling to termination is taken. The complaining party is notified of only the disposition of their complaint. All other information about a specific complaint is considered confidential pursuant to Penal Code section 832.7, and in most cases may not be disclosed without a court order. Internal administrative investigations (IAs) are either initiated via the citizen complaint process or are internally generated. IAs are conducted when the allegations involve misconduct or more significant policy violations, including allegations of excessive use of force, moral turpitude, unsafe vehicle operations, neglect of duty, dishonesty, discrimination or harassment. IAs are investigated by members of the Internal Affairs Team that consists of designated sergeants, a lieutenant, a non-sworn manager, and a representative from the City Attorney’s Office. To avoid conflicts and to provide more transparency, any future criminal investigations involving Department officers will be conducted by the San Jose Police Department, which will then refer the investigations to the Santa Clara County District Attorney’s Office. Over the last six years, the Department has averaged 19.5 complaint investigations and 7.5 IAs per year. Of those, only an average of 2.6 complaints a year and 4.3 IAs were sustained. Attachment B is a six year history of the number of complaints, lawsuits, and internal affairs investigations for the Department. Role of Police Auditor - Valuable sources of information include PARC’s recent report on police oversight, the NIJ’s 2001 report on "Citizen Review of Police" and the IACP’s 2000 document on "Police Accountability and Citizen Review." Using these and other resources, staff has conducted research on the models of oversight used by various other police agencies. Under the models that have been reviewed, the police auditor is either appointed by and reports to the City Manager, or is appointed by and reports to an elected body such as the City Council. Police auditors usually focus on systemic change rather than on resolution of specific cases.1 They review a department’s internal investigation processes and make recommendations as PARC" Review of National Police Oversight Models" for the Eugene Police Commission 2/2005 060308 syn 0120099 THE HONORABLE CITY COUNCIL March 13, 2006 Page 3 RE: ANALYSIS OF AN INDEPENDENT POLICE AUDITOR PROGRAM needed. They also evaluate the effectiveness and accuracy of the department’s findings2 and report on the thoroughness and fairness of the process to the department and the public? They may serve as an alternative to the police department for accepting citizen complaints and may monitor ongoing investigations as needed. Auditors in other California A~encies - There are only four agencies in California that have police auditors: San Jose, Sacramento, Santa Cruz, and Los Angeles County. Each agency has chosen to modify the role, responsibilities and reporting structure according to its particular needs. The following is a summary of each of the programs: San Jose Police Department - ¯Office of Independent Police Auditor ¯Department size: 1,450 sworn officers ,Auditor’s annual budget: $660,000 ¯Established in 1993 ¯Reports to the Mayor and City Council The Independent Police Auditor was the result of a charter amendment that occurred in 1996. The Auditor monitors investigations throughout the process and reviews completed cases. If the Auditor does not agee with findings and is unable to reach resolution with the Police Chief, the Auditor may appeal to the City Manager for final resolution. The Auditor serves as an alternative to the police department in accepting citizen complaints. In San Jose’s model, complaints are classified as formal, command review, policy, procedural, or inquiry. The Auditor ensures complaints are properly classified and has the authority to observe IA interviews, but does not participate in the questioning. Additionally, San Jose’s Auditor produces semi-annual public reports consisting of statistical information about the number, types, and dispositions of complaints/allegations, officer-involved shootings, and types of discipline; makes policy recommendations, and conducts community outreach. In 2004 a total of 335 complaints involving 339 allegations were received, and the auditor reviewed 220 investigations. Out of those investigations, the Auditor disagreed with the disposition in only four cases (two percent) and made recommendations as follows: 1)Recommended a disposition of exonerated be changed to not sustained 2)Changed an allegation 3)Recommended a disposition of exonerated be changed to not sustained 4)Recommended a disposition of exonerated be changed to not sustained 2 IACP "Police Accountability and Citizen Review" Report 11/2000 3 ,, Citizen Review of Police" National Institute of Justice, 3/01 060308 syn 0120099 THE HONORABLE CITY COUNCIL March 13, 2006 Page 4 RE: ANALYSIS OF AN INDEPENDENT POLICE AUDITOR PROGRAM Over the past five years, the average percent of disageement with investigation conclusions/ dispositions has been five percent or less. According to the 2005 mid-year report, 166 complaints including 60 unnecessary force and two officer involved shootings were received. Sacramento Police Department - ¯Police and Fire Department Auditor/Office of Public Safety Accountability ¯Police Department size - 676 sworn officers ¯Annual Budget - Approximately $429,000 ¯Estabtishedin 1999 , Appointed by and reports to City Manager Sacramento’s Police and Fire Department Auditor tracks and monitors high profile or serious complaint cases, reviews completed investigations and advises the City Manager of any deficient investigations. The Auditor also makes recommendations to the Police Chief and City Manager based upon these reviews. The Auditor may respond to critical incidents and has the authority to monitor IA interviews of employees, witnesses and citizens. Like San Jose, Sacramento’s Auditor prepares annual reports to the Council and public providing information on outreach conducted, critical incidents, and statistical information on numbers, types, and dispositions of complaints/allegations and types of discipline levied. During 2004, Sacramento’s Auditor received 57 complaints from citizens and 60 referred by IA including 23 use of force complaints. The Auditor performed 11 formal audits and 80 informal audits. Only one recommendation was made to Manager and Chief. Los Angeles County Sheriff’s Office - ¯Special Counsel to the Board of Supervisors ¯Department Size - 7,000 sworn staff ,,Annual Budget - $ 899,000 ,,Established in 1992 ¯Reports to Mayor and Board of Supervisors Los Angeles County actually has three oversight mechanisms for the Sheriff’s Department: Office of the Ombudsman, Office of Independent Review, and Special Counsel to the Board of Supervisors. The Special Counsel (SC) progam was developed in 1992 after four controversial shootings of African-American and Latino men in 1991. The SC is appointed by the Board of Supervisors and is an attorney. The current SC is also the President of PARC. The SC has access to all persons, documents and records associated with investigations. The SC may request subpoena power from the Board if needed. The SC prepares public reports concerning the 060308 syn O120099 THE HONORABLE CITY COUNCIL March 13, 2006 Page 5 RE: ANALYSIS OF AN INDEPENDENT POLICE AUDITOR PROGRAM progress of the Sheriff’s Department (SD) in managing the risk of police misconduct. The SC provides risk management and liability advice and does not examine individual cases. The SC reviews the system and policies of the LASD to ensure fairness and accountability. This model is considered a performance-based one in that it is evaluative in nature. The Ombudsman reviews unfounded or unresolved citizen complaints that are service oriented and that are usually of a less serious nature. He/she reviews IAs, but does not have independent investigative authority. The Ombudsman may refer the complaint back to the Sheriff’s Department for further review or investigation. The Sheriff makes the final determination. The Ombudsman also offers mediation services and assists citizens in filing complaints Santa Cruz Police Department - o Independent Contract Police Auditor ¯Department size - 100 officers ¯Annual Budget - Approximately $50,000 ¯Established in 2003 ¯Selected by and reports to City Manager The Santa Cruz auditor program was created in 2003 after the City eliminated its Citizen Review Commission. The Independent Contract Police Auditor is charged with reviewing police IA investigations, officer involved shootings, and police department policies and procedures. The Auditor makes recommendations to the Police Chief. Under the Auditor’s authority, he/she may conduct independent investigations, but this has never been done due to budget considerations. Originally the Auditor position was full-time position, but has been reduced to a half-time at a cost of $3,500 per month. Also, the Auditor was asked to conduct community outreach, but because of funding issues, has been precluded from doing so. Santa Cruz averages between 20 and 25 IA investigations a year. Options for Implementation of a Police Auditor Program Staff has identified two preferred methods for the implementation of a police auditor program. These are: 1) an auditor selected by and reporting to the City Council, and 2) an auditor selected by and reporting to the City Manager. Each of these methods has distinct authority and limitations, which are discussed below. Under either reporting relationship, the same information would be provided to the City Council. 1.Auditor Selected by and Reporting to Council There are two options for Council appointed police auditors. The first option would require a charter amendment. A charter amendment would allow Council to appoint an auditor with broad powers to make specific personnel recommendations. A second option would allow Council to 060308 syn 0120099 THE HONORABLE CITY COUNCIL March 13, 2006 Page 6 RE: ANALYSIS OF AN INDEPENDENT POLICE AUDITOR PROGRAM appoint an auditor with limited abilities to make non-specific personnel or policy recommendations. This second option would not require a change to existing charter provisions. While Council has the authority to create offices and to appoint Council Appointed Officers, the creation of a Council Appointed Office to oversee police personnel matters and make recommendations on discipline of police officers would require an amendment to the Palo Alto City Charter. Article III, section 9 of the City Charter allows the Council to "create or abolish offices.., and provide for their manner of appointment, their tenure, and the duties which they shall perform." However, the Charter limits Council’s involvement in individual personnel matters, vesting the responsibility for police hiring and disciplinary decisions in the City Manager. Article IV, section 6(c) of the City Charter provides that the City Manager shall "[a]ppoint all officers, heads of departments and employees of the departments under his or her control, and remove the same for cause, and have general supervision and control over the same, subject to rules and regulations established by the council for a merit system of appointments and promotions." In addition, it is the duty of the City Manager to "[c]oordinate the work of personnel administration in the departments under his or her control . . ." Charter, Article IV, Section 6(m). These sections give the City Manager authority for personnel decisions within the structure provided by the Council approved Merit Rules and the Memorandum of Agreement between the City and the Palo Alto Peace Officers’ Association. An ordinance giving authority to recommend discipline to a Council appointed auditor or body would conflict with the authority of the City Manager. Where authority over individual personnel matters is vested in the City Manager the "intrusion into individual disciplinary proceedings of police department employees and officers.., does conflict with the charter grant of powers to the city manager..." Brown v. City of Berkeley, (1976) 57 Cal.App.3d 223,233. To vest oversight authority of police personnel matters in a police auditor appointed by the City Council, the Charter would need to be amended. Pursuant to Article XI, section 3 of the California Constitution, the Charter may only be amended by a majority vote of the City’s electors. The election must be conducted in the same manner as a general election. Charter, Art. IV, {} 2. In order to be placed on the November 2006 ballot, the proposed language for the Charter Amendment would need to be adopted and the election called prior to the August Council break. Council appointment of an auditor with a more limited role would not necessarily require amendment of the City Charter. The City Council would likely be able to appoint a police auditor who reviews IAs, and makes findings and recommendations regarding the sufficiency of investigations, adequacy of training and other broad recommendations based on his or her review of specific cases. In this role, the auditor would not be able to make specific personnel recommendations, and would not be able to make recommendations or comment on proposed discipline. 060308 syn 0120099 THE HONORABLE CITY COUNCIL March 13, 2006 Page 7 RE: ANALYSIS OF AN INDEPENDENT POLICE AUDITOR PROGRAM 2.Auditor Selected by and Reporting to the City Manager It is within the authority of the City Manager to appoint a police auditor on a contract basis. The Municipal Code gives the City Manager "the authority to appoint deputies and assistants in accordance with control procedures established for that purpose and administered by the department of human resources..." PAMC § 2.08.040(a)(8). A Police Auditor appointed under this authority could be appointed under contract or as a regular employee. A Police Auditor appointed by and reporting to the City Manager would be able to make specific personnel recommendations without an amendment to the Charter. Because such an auditor would be under the supervision of the City Manager, the ability to make personnel recommendations would be a lawful delegation of the City Manager’s authority. Based on the model utilized by other police agencies, the police auditor would monitor and review investigations and make recommendations to the City Manager on the disposition of complaint investigations and proposed discipline. A City Manager appointed police auditor may be present during the interrogation of an officer, but should not be permitted to participate directly in the investigation or ask questions during interviews of officers. Govt. Code § 3303. Limits on Information That Can Be Shared With Council and the Public Pursuant to Penal Code section 832.7, IA investigations are confidential personnel records and, except in limited circumstances, may only be disclosed through the civil or criminal discovery process provided in Evidence Code sections 1043 and 1046. Personnel records that are subject to confidentiality include "any report naming an individual officer and relating to a complaint or investigation of complaint about an event the named officer participated in or perceived and that concerned the manner of the officer’s performance of duty." Davis v. City of San DiegQ, (2003) 106 Cal.App.4th 893, 900. Under current law, a police auditor, regardless of whether he or she reports to the Council or the City Manager, may not share information about specific investigations with members of the public. The Penal Code "imposes confidentiality upon peace officer personnel records and records of citizen complaints, with strict procedures for appropriate disclosure in civil and criminal cases and limited exceptions under which a department ’may disseminate data regarding the number, type or disposition of complaints (sustained, not sustained, exonerated or unfounded) made against its officers if that information is in a form which does not identify the individuals involved." City of Richmond v. Superior Court (San Francisco Bay Guardian), (1995) 32 Cal.App.4th 1430, 1440 (citing Penal Code section 832.7(c)). Likewise, an independent auditor could make periodic reports providing general data and background on the performance of the Police Department. Under any of the options described above, staff intends that the police auditor would make semi-annual or quarterly reports to the City Council. These reports would 060308 synO120099 THE HONORABLE CITY COUNCIL March 13, 2006 Page 8 RE: ANALYSIS OF AN INDEPENDENT POLICE AUDITOR PROGRAM be public, and would contain general descriptions of the investigations reviewed by the police auditor consistent with Penal Code section 832.7. Policy Issues There are a number of policy issues that should be considered in implementing an auditor program. In order to ensure a successful trial program, the following are issues staff believes the Council should address prior to making a decision. 1.Adequate funding Based upon our research, staff believes that an auditor would be able to operate with more flexibility and usually will have a broader mission than monitoring/investigating complaints. However, an auditor must have adequate funding to carry out the specific duties that are assigned and to ensure credibility with the community and police department staff. 2.Skills and qualifications of a successful auditor A significant determination of the success of an auditor program is based upon the skills, abilities, and commitment of the one individual who assumes the auditor position. Most police auditors are attorneys. Because of the complexity of law enforcement procedures, mandates and legal considerations, it is critical that a police auditor be familiar with the operations of law enforcement agencies. In addition, continuity of quality may be a problem if there is a turnover in police auditors over short periods of time. 3.Labor considerations Instituting a change in police review requires meeting and conferring with the Palo Alto Peace Officers’ Association (PAPOA). There have been no formal negotiations with PAPOA regarding the police auditor proposal. However, Police Department command personnel have begun preliminary discussions with PAPOA representatives. PAPOA representatives have indicated that they do not see a specific need for a police auditor because the Department has a history of very few complaints and they believe the associated costs could be used for other things. However, the PAPOA representatives agree that the Department and its employees have nothing to hide, and therefore would willing to continue discussions after a final decision has been made by the Council. It should be noted that if the City is unable to reach agreement with PAPOA on the police auditor program, any dispute is subject to binding arbitration pursuant to Article V, section 4 of the Charter. 060308 syn 0120099 THE HONORABLE CITY COUNCIL March 13, 2006 Page 9 RE: ANALYSIS OF AN INDEPENDENT POLICE AUDITOR PROGRAM RESOURCE IMPACT Over the last six years, the Palo Alto Police Department has investigated between four and 12 IAs and between eight and 40 citizen complaints annually. The number of IA investigations is similar to that of the Santa Cruz Police Department. Using that agency for comparison, based on Palo Alto’s range in number of investigations, and assuming the City would contract with a Police Auditor on an as needed basis, costs for review of investigations and processes alone would range between $25,000 to $92,000. This cost estimate does not include any clerical support, supplies or materials. Costs would increase if additional responsibilities such as community outreach were to be added. As noted above, if the Council decides to implement a trial period for an independent auditor and have the auditor make personnel recommendations to the Council, an amendment to the City Charter would be needed. If the vote on a Charter amendment is held during a regular November election, the costs would likely be $200,000. If a special election is held, the election costs would increase sig-nificantly. PREPARED BY:LYNNE JOHNSON Police Chief DONALD LARKIN Sr. Deputy City Attorney CITY MANAGER APPROVAL: ~NK BENEST City Manager CITY ATTORNEY APPROVAL: ~CSt BAUM torney ATTACHMENTS: Attachment A - PAPD Internal Affairs and Complaint Investigation Guidelines Attachment B - Five year history of complaints and Internal Affairs Investigations Attachment C - City Mana~,er s Recommendations 060308 syn 0120099 ATTACHMENT A THE PALO ALTO POLICE DEPARTMENT INTERNAL AFFAIRS AND COMPLAINT INVESTIGATION GUIDELINES TABLE OFCONTENTS DEFINITIONS POLICY STATEMENT INTERNAL AFFAIRS TEAM/CALL OUT PROCEDURES COMPLAINTS FROM MEMBERS OF THE PUBLIC RECEIVING COMPLAINTS SUPERVISOR’S RESPONSIBILITIES WITHDRAWN COMPLAINTS VERIFICATION TIME LIMITATIONS REVIE~V PROCESS INFORMAL INQUIRY INQUIRY REPORT FORM INQUIRY INVESTIGATION INTERNALLY-GENERATED INVESTIGATIONS CONDUCTING ADMINISTRATIVE INVESTIGATIONS INVESTIGATIVE STEPS GOVERNMENT CODE SECTION 3300 NOTIFICATION OF EMPLOYEE(S) REPRESENTATION DURING INTERVIEWS PROVIDING REPORTS PRIOR TO INTERVIEWS CONDUCTING INTERVIEWS OF EMPLOYEES TAPE RECORDING INTERVIEWS DOCUMENTING THE INVESTIGATION INVESTIGATIVE REPORT FORMAT CASE MANAGEMENT CASE FOLDER COMPUTERIZED INVESTIGATION MANAGEMENT CLOSING COMPLAINTS DEPARTMENT EMPLOYEE NOTIFICATIONS COMPLAINANT NOTIFICATION COPIES OF AN INVESTIGATION DISCIPLINARY NOTIFICATIONS A~ND ACTIONS SKELLY PROCEDURE CRIMINAL INVESTIGATIONS ADMINISTRATIVE LEAVE OFFICER INVOLVED SHOOTING CASES ADMINISTRATIVE REVIEW OF COMPLAINTS ADMINISTRATIVE PROCESSES ACCESS TO INTERNAL AFFAIRS RECORDS CONFIDENTIALITY OF PERSONNEL FILES CITY ATTORNEY OFFICE FITNESS FOR DUTY EVALUATION PITCHESS MOTION 1 2 2 3 3 3 4 4 4 5 5 6 6 7 7 8 9 10 10 10 10 11 11 11 13 13 13 14 14 14 14 14 15 15 16 17 17 18 18 18 19 19 19 POLYGRAPH E?-C~MINATIONS. RECORDS RETENTION SEARCHES TIL~INING 19 19 20 20 DEFINITIONS For purposes of this manual, the following definitions will apply: PERSONNEL COMPLAINT: ~m allegation of circumstances amounting to a specific act or omission which, if proven true, would amount to inadequate selwice, misconduct or criminal actions in violation of or any Federal, State or local laws, of the Palo Alto Police Department General Orders, or the City’s Merit Rules and Regulations. POLICY & PROCEDURE COMPLAINT: ~a~ny complaint which pertains to an established policy and procedure, properly employed by a Police Depamnent employee, which the complainant believes is inappropriate or not valid, shall be considered a policy and procedure complaint. A complaint in this category shall be considered to be a complaint against the Police Department and not against the employees involved. ADMINISTRATIVE INVESTIGATION: Any investigation of any alleged violation of the Palo Alto Police Department General Orders and policies and procedures, City of Palo Alto Merit Rules and Regulations, or any Federal, State or local laws conducted against a employee of the Palo Alto Police Department. These investigations may be conducted either by the Internal Affairs Team or supervisors at the Division level. MISCONDUCT: An act or omission by an employee, which if proven true, would normally result in some form of discipline, sanction, or remediation. INFORMAL INQUIRY: Contact with a member of the public regarding an issue of concern of a minor nature or concerning a policy or procedure of the Palo Alto Police Department. Most inquiries can be immediately addressed and resolved to the satisfaction of the member of the public. A concern that is not satisfactorily resolved may become a complaint. Final authority to determine whether an issue is classified as an Inquiry or a Personnel Complaint shall rest with the Chief. CRIMINAL INVESTIGATION: An investigation of any allegation made against an employee, whether on or off duty, which involves alleged criminal activity shall be deemed a Criminal Investigation. An Administrative Investigation will also be conducted separate from the Criminal Investigation. POLICY STATEMENT It shall be the policy of the Palo Alto Police Department to receive complaints and personnel inquiries from members of the public in a courteous and professional manner. Administrative investigations shall be appropriately documented, promptly investigated and/or addressed, and conducted in a timely, legal and ethical manner, strictly adhering to procedural safeguards regarding employee rights. Police Department employees shall demonstrate sincere responsiveness to concerns of members of the public, will inform members of the public that their complaints and inquiries will be taken seriously, and shall meet legal requirements for accepting and investigating complaints. All documented complaints will be deemed a Citizen’s Complaint Investigation, Administrative Investigation, or an Inqui~ Report. This manual consists of the current policies and practices of the Palo Alto Police Department and shall be followed by all Departmem employees. INTERNAL AFFAIRS TEAM The Internal Affairs Team is established under the authority of the Police Chief. The Persormel and Training Lieutenant is the desig-nated Internal Affairs Commander. The Internal Affairs Team is responsible for conducting the most serious personnel investigations involving Police Department employees or those deemed by the Chief of Police. Investigators assigned to the Internal Affairs Team to conduct personnel investigations are authorized to cross all chains of command in conducting those investigations. However, there will always be a person at least one rank or higher than the employee involved in the Administrative Investigation. All completed personnel investigation files are maintained in the Personnel and Training Unit. The Internal Affairs Team is comprised of four Sergeants or three Sergeants and one Lieutenant, a non-sworn manager, and a City of Palo Alto Attorney. The Internal Affairs Commander will act as a liaison with the District Attorney’s Office. (The assignment duration and time cap is outlined in the Specialty AssigTtrnent Policy. Additionally, all members of the Internal Affairs Team will be selected pursuant to the Specialty Assignment General Order.) The Internal Affairs Team will operate on an on-call basis. The Internal Affairs Commander will ensure each employee of the team has attended the P.O.S.T. certified Internal Affairs course and attends Internal Affairs up-date training at least once a year. This team will also act as a resource and can be contacted at any time for assistance with any investigation. CALL-OUT PROCEDURES A employee of the Internal Affairs Team will be available at all times for "in-progress" cases as directed by the Personnel and Training Lieutenant. The Personnel and Training Lieutenant should be contacted through the chain of command when the Internal Affairs Team is required. COMPLAINTS ABO UT EMPLO YEES OR DEPAR ThlENT RECEIVING COMPLAINTS Complaints will be received in any form. They will be taken in person, by telephone, in writing, from a third party and from anons~nous complainants. They may be initiated by members of the public, govenmaental agencies, or from within the Police Department. The employee accepting the complaint shall irmnediately refer the complaint or the complainant to the ranking supervisor or manager on duty in the Division that is the subject of the complaint. If the employee involved in the complaint cannot be inmaediately determined, the employee accepting the complaint should refer the complaint or complainant to the Personnel and Training Lieutenant. The super~,isor should obtain a detailed narrative of the complaint. Every person making a complaint in person shall be instructed to carefully read and sign the admonitions on the Complaint Form addressing consequences of filing a false complaint pursuit to Penal Code 148.6 and Civil Code 47.5. If the complainant declines to sign the Complaint Investigation Form, the complaint will still be taken. If the complaint is received by telephone, the supervisor accepting the complaint should read the admonitions to the complainant and sign the sig-nature block with as notation of the date and time read. If the complainant later appears in person, a second form should be completed and signed by the individual. If the complaint is received by telephone, no recording of the conversation sha!l be made without the consent of the complainant. This does not apply if the conversation is conducted on a City telephone line that has already been publicized as recorded. If a complaint involves a serious in-progess field situation or issues involving fitness for duty, the appropriate Division Captain and the Personnel and Training Lieutenant shall be notified immediately and, in turn, will notify the Chief. If an incident is likely to result in a Criminal Investigation against a Police Department employee, the Personnel and Training Lieutenant and the Division Captain wi!l irmnediately consult with the Chief to determine who will conduct the Criminal Investigation. SUPERVISOR RESPONSIBILITES The supervisor or manager shall: 1)Ensure that any alleged misconduct has ceased. 2)Provide medical attention if needed. 3)Prevent the loss of evidence and statements. 4)Make every reasonable effort to obtain names, addresses and telephone numbers of additional witnesses. in general, the primary responsibility for the investigation of a personnel complaint shall rest with the employee’s immediate supervisor. However, the Police Chief or authorized designee may direct that another supervisor investigate it. If the allegation just occurred and both the officer and complainant are present, the supervisor should obtain enough initial information from the complainant and officer in order to make a preliminary determination of what occurred. A supervisor has the right to obtain information from the employee until the supervisor believes 3 that the officers’ actions could lead to discipline. If at any time a supervisor believes that the officer could be disciplined for his/her actions, the supervisor should cease with any further questioning. Any further questioning of the involved officer should comply with the provisions of the Public Safety Officers’ Procedural Bill of Rights (Governn~ent Code sections 3300 et. seq.). When appropriate, as much evidence as possible should be gathered during the initial receipt of the complaint. Photos should be taken of injuries or damaged property. The supervisor or manager shall obtain a statement from the complainant. Whether handwritten or dictated, the complainant’s signature should be obtained at the conclusion of the statement. Unless the complainant refuses, all statements obtained from the complainant shall be tape recorded, including the initial statement. A refusal however, should be noted on the complaint form. If the statement of the complainant is obtained over the telephone, the complainant will be advised that the conversation is being tape-recorded. The complainant should be provided a copy of his/her original complaint per Penal Code 832.7. In circumstances where the integrity of the investigation could be jeopardized by reducing the complaint to writing or where the confidentiality of a complainant is at issue, a supervisor shall orally report the matter to the employee’s Division Captain!Coordinator, the Personnel and Training Lieutenant, or the Police Chief who will initiate the appropriate action. In all matters where a formal complaint is made, the supervisor or manager will refer it without delay to the Personnel and Training Lieutenant. The Personnel and Training Lieutenant will determine whether the investigation will be conducted by the Internal Affairs Team or will be referred to a Division for investigation. Any supervisor, sworn or non-sworn, assigned to conduct an Administrative Investigation must have successfully completed a P.O.S.T. certified Internal Affairs course or equivalent training. WITHDRAWN COMPLAINTS In cases where the complaining party withdraws the complaint, the decision to continue with the investigation or not shall be made by the Chief of Police. VERIFICATION Upon receiving a complaint, the investigator(s) will determine if Palo Alto Police Department personnel are involved. If Pato Alto Police Department emp!oyees are not involved, the complaining part?, will be referred to the proper agency. The case finding -*ill be "No Finding." TIME LIMITATIONS Pursuant to Government Code Section 3304(d) and 3508.1 the investigation should be completed within one (1) year of discovery of the allegation unless such investigation falls within one of the exceptions delineated within those provisions. 4 REVIEW PROCESS All complaints received by the Personnel and Training Lieutenant will receive an Internal Affairs Investigation case nmnber, a Complaint Investigation case number, or an Inquiry Report case number. The case number and initial information will be logged into the Palo Alto Police Department’s IAPRO Computer Management System. Refer to IAPRO General Order for more information. Depending upon the nature of the allegations and/or personnel involved, the investigation may be conducted by a Division Lieutenant, a Sergeant, or other emp!oyees of the Police Department. The Personnel and Training Lieutenant or his/her designee will evaluate each complaint to determine whether the complaint is of such a minor nature that it should be investigated at the supervisory level or should be assigned to the Internal Affairs Team. Whenever a complaint is sent to the employee’s Division for investigation, a cover memorandum will be prepared by the Personnel and Training Lieutenant. This memo will designate a due date for completion of the investigation and will be routed through the chain of command. The original copy of the investigation will be retained in the Personnel and Training Unit. The Personnel and Training Lieutenant will notify the Chief of all allegations of criminal conduct or serious misconduct by Department employees. The Chief will be given a bi-weekly report of all complaints from the Personnel and Training Lieutenant. This report will include an update on all investigations in pro~ess. The Personnel and Training Lieutenant will notify the Division Captain or Coordinator of pending complaints and!or investigations involving employees of their divisions. INFORMAL INQUIRY An Inquiry is intended to document minor issues that are resolved at the supervisory level to the satisfaction of the citizen initiating the inquiry. The Informa! Inquiry may serve as an early warning indicator, which allows super~isors to address potential problems before they become serious. Examples of Inquiries are: matters of public concern that, on their face, do not allege misconduct or neglect of duty by a employee of the police department misunderstandings minor issues of discourtesy or other conduct unbecoming an officer misinformation of Department Policies and Procedures Examples of matters that may NOT be considered as Inquiries are allegations of: ¯use of force ¯violations of constitutional rights ¯neglect of duty ¯dishonesty ¯sexual harassment or discrimination racial or ethnic harassment or discrimination violation of gifts policy insubordination All Inquiries shall be documented. Supervisors shall initiate corrective action as appropriate, and note the corrective action taken on all Inquiries. In selecting the Inquiry process, the member of the public must be informed that the matter will not proceed as a formal complaint. The Personnel and Training Lieutenant will review inquiry forms when submitted and ensure that the inforn~ation is entered into the IAPRO Computer Management System. Final authority to determine if an Inquiry should be investigated, as a formal complaint shall rest with the Chief. All Inquiry Reports will be purged after one year. A matter will no___~t be handled as an Inquiry, and a formal Complaint investigation will be opened, when the member of the public alleges misconduct or neglect of duD’ that may result in discipline and expresses a desire for an investigation to be conducted. INQUIRY REPORT FORM A supeladsor who receives an Inquiry shall document the Inquiry on the Inquiry Report form. The supeladsor will include a synopsis of the issue or concern and any, resolution, including any corrective action taken. INQUIRY INVESTIGATION An Inquiry ordinarily should be resolved within ten days of the date the Inquiry was received. If the Inquiry is not resolved during the shift when it is received, the Inquiry Report will be forwarded to the appropriate supeladsor, who wil! be responsible for ensuring that the Inquiry is completed and resolved. Once an Inquiry Report is completed and the matter resolved, one copy shall be folavarded to the employee, one copy to the employee’s supelwisor and one copy to the Personnel and Training Lieutenant. Copies routed to the Personnel and Training Lieutenant will be maintained at least for a period of one calendar year from the date of the inquiry. All Inquiry Reports wil! be given a case number and the information will be entered into the IAPRO Computer Management System. Once an Inquiry is resolved, the contents and resolution of an Inquiry will not be used for disciplinary action or used to determine progessive discipline in subsequent sustained complaints or Administrative Investigations. Inquiries will not be referred to in annual appraisals unless the behavior is chronic and!or there is independent corroboration of the incident. The utilization of this process does not imply that the subject employee has in fact committed any transgression described by the person making the inquiry. An employee shall have the option of requesting a formal investigation of the incident if he or she so desires. 6 Supervisors and Managers shall periodically review the Inquiry Reports to determine if there are an inordinate number of inquiries associated with a particular policy or employee. Supervisor action in the form of monitoring, retraining, counseling or policy/procedure change will be taken when appropriate. INTERNALLY GENERATED INVESTIGATIONS Each and every employee of the Department shares in the responsibility to insure the highest standards of integrity and conduct. It shall be the responsibility of every member to immediately report misconduct, which he or she obser~es or which comes to his or her attention. Any supervisor in the Police Department has the authority to initiate an Administrative Investigation based on information received from within the Police Department that cause him/her to believe that a violation of the Palo Alto Police Department Policies, City of Palo Alto Merit Rules and Regulations, or any Federal, State or local laws may have occurred. In addition, the Chief may direct the Personnel and Training Lieutenant to initiate an Administrative Investigation. The Chief has the authority to initiate an Administrative Investigation when a complainant has withdrawn a complaint or has failed to cooperate ~vith investigators and he/she believes that additional investigation is warranted. CONDUCTING ADMINISTRATIVE INVESTIGATIONS The purpose of an Administrative Investigation is to discover and document all relevant information or evidence in order to conclusively prove or disprove an allegation of misconduct or neglect of duty. Administrative Investigations may be initiated internally or in response to a complaint from the public. Investigations wilt occur to determine whether there was a violation of the Palo Alto Police Department’s General Orders and policies and procedures, City of Palo Alto’s Merit Rules and Regulations, or any Federal, State or local laws. Administrative Investigations may include but are not limited to the following allegations: unlawful arrests, searches or detentions excessive force unsafe vehicle operations officer-involved shootings damage and/or civil claims against the police department discrimination or harassment rude or unprofessional conduct failure to comply with policies and procedures insubordination neglect of duty conduct unbecoming an officer/employee dishonesty To avoid any conflict of interest, an Administrative Investigation shall not be conducted by an employee or supervisor who is involved in the allegation or incident that is being investigated. In all cases, an Administrative Investigation shall be completed in a fair, timely and impartial manner. Due process rights of the involved employee(s) will be respected at all times. \Vhen conducting an investigation into possible violations of Department policies and procedures, City of Palo Alto Merit Rules and Regulations or other alleged rnisconduct, the assi~aed investigator will obtain statements from involved parties and witnesses, collect all relevant evidence, and thoroughly document the results of the investigation. INVESTIGATIVE STEPS In an Administrative Investigation, the legal standard of proof is a preponderance of the evidence. The following steps should be taken when conducting administrative investigations: Review the complaint or allegation. Determine what rule or regulation, if any, may have been violated if the complaint or allegation is fouiad to be true. Identify what interviews need to be conducted concerning complaining parties and witnesses. Collect all evidence relating to the matter. This may include photo~aphs, medical reports, police reports, communications tapes, duty rosters, disability reports and sketches or diagrams of scenes. Book large items of evidence into the Police Department’s property room. Occasionally situations arise where complaining parties have visible injuries but are not able to come to the Police Department. They may be incapacitated at home, in the hospital, or in jail. In these situations it may be necessary to go to the complainant as soon as practical to take statements and photograph injuries. Obtain any background information regarding the complainant that might be relevant. Such information may include prior contacts with law enforcement. Obtain background information regarding the Department employee against whom the complaint was filed, including prior complaints, performance evaluations, and past disciplinary actions which are relevant to the present matter, including prior warnings or notice regarding misconduct or neglect of duty. Interview witnesses, including non-accused Police Department personnel. Interview accused Police Department personnel consistent with statutory and other procedural safeguards. GOVERNMENT CODE SECTION 3300 If the Department employee is a sworn peace officer, he/she will be advised that the rights afforded him/her by sections 3300 through 3311 of the California Government Code are in effect. The following procedures shall be followed with regard to the accused employee. Although these government code sections specifically apply to sworn Police Officers, all employees of the Palo Alto Police Department will be provided these protections: (a)Interviews of accused employees shall be conducted during reasonable hours and, if the employee is off-duty, the employee shall be compensated. (Government Code 3303(a)) (b)No more than two interviewers may ask questions of an accused employee. (Government 3303 (b)) (c)Prior to any interview, an employee shall be informed of the nature of the investigation. (Gover~maent Code 3303(d)) (d)All interviews shall be for a reasonable period and the employee’s personal needs shall be accommodated. (Government Code 3303(d)) (e)No employee shall be subjected to offensive or threatening language, nor shall any promises, rewards or other inducements be used to obtain answers. However, any employee refusing to answer questions directly related to the investigation may be ordered to answer questions administratively or be subject to discipline for insubordination. Once again, nothing administratively ordered may be provided to a criminal investigator. (Government Code 3303(e)) Absent circumstances preventing it, the interviewer should record all interviews of employees and witnesses. The employee may also record the interview. If the employee has been previously interviewed, a copy of that recorded interview shall be provided to the employee prior to any subsequent interview. (Government Code 3303(g)) (g)If the allegations involve potential criminal conduct, the employee shall be advised of his/her constitutional fights pursuant to Lvbarger. This admonishment shall be given administratively whether or not the employee was advised of these fights during any separate criminal investigation. (Government Cod 3303(h)) (h)All employees subjected to interviews that could result in punitive action shall have the fight to have an uninvolved representative present during the interJew. (Government Code 3303(i)) 9 (i)All employees shall provide a complete and truthful response to questions posed. during interviews. No employee may be compelled to submit to a polygraph examination, nor shall any refusal to submit to such examination be mentioned in any investigation. (Government Code 3307) NOTIFICATION OF EMPLOYEE(S) When a complaint has been filed against a Palo Alto Police Department employee, the employee will be notified in writing of the complaint and informed that an investigation will be conducted. This notification will be done by the Personnel and Training Lieutenant. If the nature of the allegation dictate that confidentiality is necessary to maintain the integrity of the investigation, the involved employee(s) need not be notified of the pending investigation unless and until the employee is interviewed or formally charged. When the investigator is prepared to interview the involved Department employee, the employee will be given a date, time and location for the interview. This notification will be in compliance with the requirements of California Government Code 3303, sections (b) and (c). Every effort will be made to conduct the interview during the employee’s normal duty hours. A copy of the notice or a notation of the date and time of verbal notification will be retained with the case file. The notifications will be sent by the Internal Affairs Team or the Division Captain of the involved employee. REPRESENTATION DURING INTERVIEWS Employees may have a representative or an attorney present during the interview process. The employee is allowed to confer with his/her representative and the representative is allowed to confer with the employee. The employee, however, must be the one to answer the investigator’s questions. The representative shall not be a person subject to the same investigation. PROVIDING OF REPORTS/EVIDENCE PRIOR TO INTERVIE\VS In the interest of conducting an unbiased investigation, statements of complainants and witnesses, evidence collected and investigator’s reports are deemed confidential and will not be provided prior to the interview of an employee under investigation. The employee shall be provided with information regarding the nature of the investigation prior to the interview to aid in the employee’s recall of the incident and to provide for a more accurate statement. Should a second interview be necessary with the person under investigation, a tape recording or a transcript of his/her first interview will be provided to him/her prior to the second interview. CONDUCTING INTERVIEWS OF EMPLOYEES If there is a possibility the Department employee’s conduct is criminal in nature, the employee will first be given the Miranda Warning. The Grant of Immunity Admonition, also known as the Lybarge~ Admonition, will be given to all sworn employees, (subject and witness employees). 10 Non-sworn employees will NOT be given the Lybarger Admonishment. All non-sworn employees, prior to being interviewed, shall be given the "City of Palo Alto Notice of Investigation." Either the Lybarger form or the Notice of Investigation form should be signed by the involved employee and attached to the investigation. All administrative intelwiews will use the following introductory foianat: m Date, time and location of the intela’iew; m Note that the intela, iew is being tape-recorded; ¯Who is conducting the intela, iew, their current assi~ament, and their rank; ~All persons present during the interview; ~The purpose and nature of the interview; ¯The Grant of Ilrmaunity (Lybarger) Admonition or Notice of Investigation TAPE RECORDING INTERVIEWS Unless a complainant or witness refuses, interview’s of all persons involved in an Administrative Investigation will be tape-recorded. Since Internal Affairs investigations are administrative in nature, recording conversations is not allowed without the knowledge of the person(s) being tape-recorded. The recording device will be kept in open view. All breaks in the tape for any reason will be noted on the tape along with the reason for the break. The time the tape is turned back on will be noted on the tape and, if possible, the time just prior to turning the tape off for the break. The tapes will then be labeled and placed in the case file. During intelwiews with employees, taro tape-recorders should be utilized so the employee can have a copy of the tape immediately. When members of the public decline to be tape-recorded or are unavailable for an interview, a brief written statement of the incident about which they are complaining is recommended. It will also be noted they would not allow their statement to be recorded. DOCUMENTING THE INVESTIGATION All complaint investigations, regardless of the type, will be documented in a written report. The Administrative Investigation of a Department employee’s conduct must be completed in a fair and impartial manner. INVESTIGATIVE REPORT FORMAT All Administrative Investigations will be reported utilizing the following headings: BACKGROUND- This section of the investigation should provide a statement of the events that took place or were in progress at the time of the alleged incident and a 11 summaI3, of what the complainant alleges. The statement should accurately portray the scene. It should include the location, date, time and identity of all persons present. INVESTIGATION- This is the substance of the investigation, includina statements of witnesses and accused employees, tt should include enough pertinent facts to enable the reader to get a full understanding of the complaint and subsequent investigation. In major investigations all critical interviews should be transcribed and attached to the investigation. All other statements can be paraphrased by the investigator with reference given to the tape-recorded statement. VIOLATION/APPLICABLE AUTHORITIES - This section will contain a listing of all alleged violations and applicable authorities. ANALYSIS- This section analyzes each of the alleged violations in light of the evidence collected in the investigation. It answers the question: Does a preponderance of the evidence prove or disprove a violation of the applicable authorities? The analysis should address all major issues or questions relative to the investigation and should address all discrepancies and/or inconsistencies. []ATTACHMENTS - This section will include written and legal documents, photo~aphs, correspondence and material relating to the investigation. CONCLUSIONS- An application of the factual findings to the allegations, including supporting analysis. The conclusions will include references to the appropriate sections of General Orders, other policies and procedures, City of Palo Alto Merit Rules and Regulations, or Federal, State or local law. The conclusions as to each allegation wil! be based on a preponderance of the evidence standard. The conclusions will be: exonerated, unfounded, not sustained, sustained, or no finding. FINDINGS - Every Personnel Investigation will be concluded with one of following dispositions for each charge indicated in the complaint: Exonerated - The acts did occur but were consistent with Police Department’s policies and procedures. Unfounded - The investigation revealed the allegation was false or not factual or the employee was not involved. Not Sustained - The investigation failed to disclose evidence sufficient to prove or disprove the allegation(s) by a preponderance of the evidence. Sustained - The investigation disclosed evidence sufficient to prove the allegation(s) by a preponderance of the evidence. No Findinll - The complainant failed to provide necessary information to further the investigation; the complainant failed to cooperate sufficiently with the investigation in order to complete it; the investigation revealed that another agency was involved and the complaint or complainant has been referred to that agency; or the complainant wishes to withdraw the complaint. 12 CASE M~NAGEMENT Every investigator or supervisor assigned to investigate a personnel complaint shall proceed with due diligence. Recognizing that factors such as witness availability and the complexity of allegations will affect each case, every effort should be made to complete each investigation within thirty (30) days of receipt. If the time line cannot be followed, the investigator must complete the Citizen Complaint Status Report and forward it to the Personnel and Training Lieutenant. Additionally, the assig-ned investigator is responsible for completing the POBAR Case Time Log, which is included in the complaint packet. CASE FOLDER All formal investigation documents will be maintained in a case folder and/or on a secure disk. No investigation should ever be saved on the hard drive of a computer. The assigned investigator shall maintain the case folder as long as the case remains open. This means either locked in a secure cabinet or left with the Personnel and Training Lieutenant in his?her secured office. The case folder will include the following items: original investigative reports; original documents and/or photogaphs; original administrative correspondence; or any other items of evidentiary value; These items will be retained and safeguarded by the case investigator until the investigation is completed. When the investigator completes the investigation, he/she shall folavard the investigation through their chain of command for approval. Once the investigation is approved by the Chief of Police and a disposition has been determined, the investigator is responsible for for~varding all documents, evidence, cassette tapes, and computer disks to the Personnel and Training Lieutenant. The investigator should shred any and all notes and at no time keep any documents relating to the investigation. COMPUTERIZED INVESTIGATION MANAGEMENT The Personnel and Training Lieutenant, along with every supervisor who investigates a complaint, will utilize the IAPRO Computer Management System. This system will document the case number, the date the complaint was received, the date the investigation was assigned, the name of the complainant, the assigned investigator(s), the name of employee, the disposition, and the date the investigation was completed. Additionally, it will contain a list all internal affairs complaint investigations, including those assigned back to the employee’s division. At the conclusion of an investigation all documents and/or evidence will be downloaded onto the system and retained pursuant to the Department’s Personnel File Policy. 13 CLOSING COMPLAINTS When the Chief or his/her designee has finalized a decision regarding a case disposition, the investigation is closed. Appropriate notifications will then be prepared by the Personnel and Training Lieutenant and sent to the employee. The date these closing notifications are sent will be recorded and placed in the case file. DEPARTMENT EMPLOYEE NOTIFICATION Whenever an investigation into a complaint from a member of the public is compIeted, notice will be sent to the Police Department employee affected and his/her Division Captain. This notice will identify the allegation made, findings and/or conclusions of the investigation, and the Administrative Investigation complaint number. COMPLAIN.~qT NOTIFICATION A letter will be mailed to the complainant advising him!her that the investigation has been completed and that a disposition has been reached. This should occur within 30 days of the disposition. The letter will inform the member of the public of the final disposition of the investigation and the restrictions imposed by California Penal Code Section 832.7 and advise him/her to contact the Personnel and Training Lieutenant if he/she has any questions. The Police Department can provide general information regarding the investigation process, but cannot disclose evidence discovered during the investigation or what type of discipline, if any, was imposed. Should a complaining party request a copy of their original written complaint or their taped statements, they will be furnished to them. COPIES OF AN INVESTIGATION At no time should an investigator retain a copy of an investigation. All requests for hard copies of an investigation shall be made through the Personnel and Training Lieutenant. The Personnel and Training Lieutenant is responsible for releasing copies of an investigation to authorized personnel. The Personnel and Training Lieutenant will document who the investigation was released to, ensure that the copy was redacted if necessary, and stamp the copy as a controlled document not for duplication. This information will be retained within the IAPRO Computer Management System. If the Personnel and Training Lieutenant gives an employee a copy of an investigation, the employee shall not make an additional copy for anyone else. All additional requests for copies must go through the Personnel and Training Lieutenant. DISCIPLINARY NOTIFICATIONS AND ACTIONS When an investigation results in findings that the allegations are sustained and those findings are finalized, the action will proceed to disposition, including any disciplinary action that may be imposed. Formal discipline consisting of a written reprimand, suspension, demotion, or termination require due process and the allowance of administrative appeals. In cases involving formal 14 discipline, a Notice of Intent to Discipline will be prepared and served. The employee will be provided with a complete copy of the Administrative Investigation. A notation will be made and placed in the case file reflecting that the emp!oyee investigated received his/her copy. Such Notice of Intent to Discipline letters will be signed by the employee’s Division Captair~/Coordinator and will be forwarded to the employee. SKELLY PROCEDURE The Skellv procedure is an administrative process available to Police Department’s employees prior to the imposition of any formal discipline. The purpose of the Skellv meeting is for the employee to show cause why the proposed discipline should not be imposed. This procedure is held after the employee is given his/her Notice of Intended Discipline letter, which provides a time limit within which to respond and to contest the intended discipline. If contested, the employee will be given a time to meet with the Chief and a representative from Human Resources to discuss the matter. Prior to the meeting, the employee will be provided with discovery materials. The employee may have a representative or attorney present during this meeting. In lieu of a meeting, the employee may respond in writing. A final decision as to discipline will be made by the Chief. The Personnel and Training Lieutenant will receive and retain the written decision by the Chief regarding the results of the Skel151 meeting and will prepare the Notice of Discipline letter, if appropriate, after the employee has been notified of the results of the Skell.y meeting. After the Skellv process is completed, a final Notice of Discipline letter will be prepared and served to the involved Police Department employee. This Notice of Discipline letter will desig-nate the level of discipline to be imposed and when the discipline wi!l begin. Letters of actual discipline will be signed by the Chief. Both the Notice of Intended Discipline and the Notice of Discipline letters will be prepared by the employee’s Division Captain and reviewed by the Personnel and Training Lieutenant in consultation with the City Attorney’ s Office ~,nd Human Resources. Whenever applicable, the affected employee’s chain of command will be notified that a Notice of Discipline letter is forthcoming. This will allow the Division Captain/Coordinator to adjust for orderly staffing. The employee has a right to appeal from the disciplinary action. Depending on the employee’s status and rights under his/her Memorandum of Understanding, the appeal may be according to the City’s Merit Rules and Regulations or to arbitration. CRIMINAL INVESTIGATIONS Cases involving allegations of criminal misconduct will first be investigated by an agency designated by the Police Chief. The Internal Affairs Team will monitor the Criminal Investigation, and they will obtain a copy of all criminal reports for review. 15 A Criminal Investigation will always have priority over any Administrative Investigation. \\Then the Criminal Investigation is completed, it will be incorporated into the administrative case. This includes documenting all items of evidence and obtaining copies of tape recordings. This does not mean, however, that an Administrative Investigation must wait for the criminal case to conclude before starting. Once the Administrative Investigation has begun, information regarding misconduct or other facts surrounding the case will not flow from Administrative Investigation to Criminal Investigation. No information or evidence administratively coerced from an employee will be provided to a criminal investigator. An employee accused of criminal conduct shall be provided with all rights and privileges afforded to a civilian and the employee may not be administratively ordered to provide any information to a criminal investigator. \Vhen a criminal investigation is conducted by an outside agency on an employee of the Palo Alto Police Department, the Internal Affairs Team will conduct an Administrative Investigation into the matter. Palo Alto Police personnel shall not make any recommendations or other~vise attempt to influence outside police agencies and!or the District Attorney’s Office regarding the criminal investigations involving Palo Alto employees. Any law enforcement agency is authorized to release information concerning the arrest or detention of a peace officer, which has not led to a conviction (Labor Code 432.7(b). However, no disciplinary action shall be taken against the accused employee based solely on an arrest or crime report. An independent Administrative Investigation shall be conducted based upon the allegation in the report in accordance with Department policy. ADMINISTRATIVE LEAVE Administrative Leave is non-disciplinary relief from duty for reasons, which are in the best interest of the City (Merit Rules Section 808) or as necessary for compliance with due process requirements during an Administrative Investigation, which may result in disciplinary action (Merit Rules Section 811). Only a Council Appointed Officer (i.e. City Manager, City Attorney, City Clerk or Auditor) may authorize Administrative Leave. However, when a complaint of misconduct is of a serious nature or when circumstances practically dictate that it would impose an unreasonable risk to the Department, the employee, other employees or the public, the Police Chief has the authority to impose emergency, non-disciplinary relief from duty, until authorization for Administrative Leave can be obtained. The Department employee will be advised of the reasons(s) for this action. Employees will not act in any official capacity while on Administrative Leave and are to remain available at their residence by telephone or personal contact during working hours, as determined by the Personnel and Training Lieutenant. Any variation from this must be approved by the Personnel and Training Lieutenant. A memorandum explaining these restrictions will be signed by the employee’s Division Captain/Coordinator and given to the Department employee at the time they are placed on Administrative Leave. A. copy will be included in the Administrative Investigation case file. 16 In certain circumstances, sworn officers may be directed by the Personnel and Training Lieutenant to surrender their badge, Police Department identification, issued weapon and keys to Police Department facilities. All appropriate personnel in the Police Department will be notified when an employee is both placed on and reinstated from Administrative Leave. At such time as any employee placed on Administrative Leave is returned to full and regular duty, the employee shall be returned to their regularly assigned shift with all badges, identification card and other equipment returned. OFFICER INVOLVED SHOOTINGS OR DEATH CASES The responsibility of the Internal Affairs Team in officer involved shootings or death cases is to respond to the scene, to observe the criminal investigation, conduct an Administrative Investigation, determine adherence to policy, and to report observations to the Chief. The followingincidents will result in a response to the scene by the Internal Affairs Team: Whenever an Officer’s firearm is discharged and results in injury or death; Whenever an Officer’s use of force or police action results in death or serious injury; When necessary, as determined by the Chief or Personnel and Training Lieutenant; The Personnel and Training Lieutenant will be notified immediately of any of these incidents. He/she will then assign an investigator to respond. The responding Internal Affairs investigator will monitor the Criminal Investigation. He/she will not interfere with, nor get involved with, the criminal investigation. The Internal Affairs investigator will inspect the scene and conduct whatever cursory investigation necessary to provide an oral report to the Personnel and Training Lieutenant and the Chief. When the Criminal Investigation is completed, a separate Administrative Investigation will be conducted and will include an examination of the complete criminal investigation, physical evidence, Coroner’s report, policy review, and tactics employed. A report will be completed using the same Department format as that for all Internal Affairs investigations. It will document the administrative investigation, any actions taken, and ,,,,’ill be reviewed and approved by the Chief. ADMINISTRATIVE REVIEW OF COMPLAINTS All findings and conclusions involving misconduct investigations will be reviewed and approved by the Chief or his/her designee. Each case will be forwarded to the Chief through the chain of command from the investigator to the Personnel and Training Lieutenant to the employee’s Division Captain/Coordinator to the Chief. 17 ADMINISTRATIVE PROCESSES ACCESS TO INTERNAL AFFAIRS RECORDS Only those employees of the Police Department authorized by the Chief will be allowed access to Internal Affairs records. Those are: Person Investigated: Employees may review their own personnel files; however, they may not review any confidential internal affairs records that are not considered to be personnel files. Investigators: .Any sworn staff assigned to the Internal Affairs Team may review another employee’s Internal Affairs records for the purpose of effectively completing an investigation. Outside Request: Any request by either an outside agency or other source to review a employee’s Internal Affairs records by an outside agency must be approved by City Attorney in accordance with California Penal Code Section 832.7, California Evidence Code Section 1043, or pursuant to a Federal or State Court Order. Police Department’s Supel~isoDT Personnel: Any supervisor may review an employee’s internal affairs records on a "need to know" basis with the prior approval of the Personnel and Training Lieutenant. The Personnel and Training Lieutenant will ensure that the Police Department employee reviewing the file is authorized to do so. CONFIDENTIALITY OF PERSONNEL FILES All investigations of personnel complaints shall be considered confidential sworn and non- sworn personnel files. The contents of such files shall not be revealed to other than the involved employee or authorized personnel except pursuant to lawful process. In the event that an accused employee (or the representative of such employee) knowingly makes false representations regarding any internal investigation and such false representations are communicated to any media source, the Department may disclose sufficient information from the employee’s personnel file to refute such false representations. (penal Code 832.5) All formal personnel complaints shall be maintained for a period of not less than five (5) years. (Penal Code 832.5.) All non-citizen (i.e. those that ori~nate internally) initiated complaints shall be maintained no less than two (2) years. (Government Code 34090 et. Seq.) 18 CITY ATTORNEY’S OFFICE The City Attorney’s Office will be contacted by the Personnel and Training Lieutenant whenever there is a legal or procedural question involving an Administrative Investigation. In cases of formal discipline where there is a likelihood of suspension, demotion, or termination, a complete copy of the investigation and draft Notice of Intended Discipline will be routed to the City Attorney’s Office for review and opinion. The City Attorney’s Office also gives assistance with formulating disciplinary settlement agreements, monitoring Skellv meetings, and defending arbitration actions. FITNESS FOR DUTY EVALUATION When a Palo Alto Police Department employee has been relieved from duty for physical or psychological reasons, a fitness for duty evaluation may be conducted at the direction of the Chief or his/her desig-nate. This evaluation will be coordinated and monitored by the Personnel and Training Lieutenant. Any medical bills for fitness for duty evaluations will be approved by the Personnel and Training Lieutenant. The evaluations should only be undertaken where there are severe job related physical or psychological factors. Refer to the "Fitness for Duty" General Order for specifics. In the event that a Department employee refuses to submit to a fitness for duty evaluation, the Personnel and Training Lieutenant will officially order hirrriher to undergo the evaluation. A continued refusal will be treated as a violation of a direct order and a disciplinary investigation can be instituted. PITCHESS MOTION A Pitchess Motion (California Evidence Code Section 1043) is a legal process to access an officer’s personnel records. The Personnel and Training Lieutenant is the Department’s designated Pitchess Officer. It is his/her responsibility to work in cooperation with the City Attorney’s Office in seeing that all Pitchess Motions are handled as prescribed by law. POLYGRAPH EXAMINATIONS As per Section 3307 of California Government Code, personnel involved in internal affairs investigations cannot be compelled to take a polygaph examination. A poly~aph examination may be offered in the course of the investigation; however refusals to take an examination will not be noted in any reports, nor used against an employee at any administrative hearings. RECORDS RETENTION Documents involving an Administrative Investigation will be maintained according to the records retention policies of the Palo Alto Police Department. At the conclusion of the time frames outlined in Palo Alto Police Department General Order: Section 1026, all Internal Affairs 19 records, and corresponding documentation in the Personnel File may be purged unless designated otherwise by the Chief or his!her designee. SEARCHES Any employee exhibiting objective sb~’nptoms of intoxication or influence and any employee involved in a shooting, death from police action or injury/fatal traffic collision may be administratively ordered to submit to a blood, breath, or urine test.The results of such compelled testing shall be restricted to the Administrative Investigation. Any employee may be compelled to disclose personal financial information pursuant to proper legal process; if such information tends to indicate a conflict of interest with official duties; or, if the employee is assigned to or being considered for a special assi~maent with a potential for bribes. (Government Code 3308) Employees shall have no expectation of privacy when using telephones, computers, radios or other communications provided by the Department. Assigned lockers and storage spaces may only be administratively searched in the employee’s presence, with the employee’s consent, with a valid search warrant or where the employee has been given reasonable notice that the search will take place. (Government Code 3309.) All other departmentally assigned areas (e.g. desks, space, assigned vehicles) may be administratively searched by a super~dsor, in the presence of an uninvolved witness, for non- investigative purposes. (e.g. obtaining a needed report or radio). An investigative search of such areas shall only be conducted upon a reasonable suspicion that official misconduct is involved. In all other cases where there is doubt as to whether a particular search would be permissible without a search warrant or valid consent, the City Attorney’s Office will be contacted for advice. TRAINING Personnel assigned to the Internal Affairs Team will be provided with specialized training and orientation. As soon as possible, new investigators will attend a P.O.S.T. approved Internal Affairs Investigator’s course. Additionally, to facilitate better investigations at the Division level, the Personnel and Training Lieutenant will arrange periodic training for all Sergeants and Lieutenants. 2O r ATTACHMENT B Attachment C To:City Council Subject:Police Review Recommendation: ]:n respect to additional review of police internal investigations or citizen complaints, it is recommended that the City Council approve one of two recommendations: Maintain the current practice of conducting internal investigations of citizen complaints or Police Department-generated complaints regarding officer misconduct, or investigations by the District Attorney of allegations of police criminal misconduct. OR 2.Authorize for a one year trial period an additional layer of review by a team comprised of the City Attorney, City Auditor, and Human Resources Director. Rationale for Haintaininq Current Practice The Palo Alto Police Department has very few citizen complaints. For example, last year the Department investigated eight citizen complaints and five internal investigations (TA). The Police Chief and City Manager do not believe that this small number of complaints justify and outside police auditor. Staff did contact the Police Assessment Resource Center (PARC) and PARC does not believe that these small numbers justify an outside police auditor. Rationale for ~[nitiatinq Additional Layer of Review for One Year Trial ]:f the Council believes that the City should further scrutinize investigations of citizen complaints and other :[A’s of officer misconduct, then the City Manager recommends a trial project providing an additional level of review. The advantages to this suggested approach are the following: 1, Proportional to the Problem The additional layer of review is proportional to the magnitude of the problem. As opposed to some Police agencies in California or elsewhere in the country, we do not have a large problem. However, the findings of the team, whether it agreed or disagreed with the IA, and its recommendations to the Police Chief and City Manager would help us further our goal of constantly improving officer and department performance. A summary of cases, findings and recommendations would be provided to the City Council and to the public on a twice a year basis. (This is the practice in San _lose.) 2. Incremental Approach The suggested approach is incremental. If after the one year trial we find it inadequate, the Council can escalate the approach by hiring an outside auditor. Tt is always easier and more prudent to try out a measured approach and then escalate it than to immediately try out a very aggressive program and then de- escalate it when it is deemed to be over-blown (e.g., Downtown North Traffic Calming Project.) 3. Cost-Effective Utilizing the team of City Attorney, City Auditor and Human Resources Director does not increase hard costs at a time when we are struggling with a constrained budget and reduced staffing at all levels. Hiring an outside police auditor is estimated to cost $25,000 to $92,000 on a yearly basis plus approximately $200,000 in one-time funds if there is a charter election. 4. Labor Relations Instituting any kind of additional police review requires under state law meeting and conferring with the Palo Alto Police Association (PAPOA). Staff had previously met informally with PAPOA regarding the additional level of review as recommended. While PAPOA had concerns about the involvement of the City Auditor, PAPOA seems willing to try out the pilot project. A formal meet and confer process would still have to occur. While it is true that the outside police auditor (whether reporting to the City Manager or City Council) has the appearance of "independence," the recommended team approach is comprised of three members (two of whom are independent of the City Manager). In addition, the summary reports of the team would be provided to the Council and the public. Based upon the advantages cited above, it is recommended that the Council either maintain the current practice or approve the additional layer of review for a one-year trial period. 2