Author: George Perez
Consider this, you are assigned to conduct an internal affairs investigation into an
employee misconduct complaint at your agency. After conducting the
investigation, you are then asked to impose a disposition and even render a
discipline recommendation! In your gut you wonder if this is even acceptable or
a best practice? After all, internal affairs investigations and its processes are hailed
to be impartial, unbiased, peer reviewed, and independent; right?
One question that seems to always surface when I instruct internal affairs
investigations is whether the internal affairs investigator should conduct the
investigation and assign a disposition to his/her investigation as well? Often,
agencies frame this practice as an efficiency due to size of agency, number of
assigned investigators, or simply because it has been their long-standing practice.
I thought I would share some of my professional perspective and research on this
topic that may assist you.
Why? As leaders in law enforcement, we are stewards of justice and trust within
our communities. A pivotal aspect of maintaining this trust is ensuring the integrity
and fairness of our internal affairs (IA) processes. This is true not only for the
community that wants to trust us, but for our employees that trust the process will
be fair, just, evidenced base, and impartial.
So, let’s discuss why IA investigators should not provide a disposition on their own
administrative investigations, supported by case law, and propose actionable
steps to reinforce this perspective.
The Argument Against IA Investigators Making Dispositions
1. Maintaining Objectivity and Integrity
IA investigators are tasked with conducting thorough and impartial investigations
into allegations of misconduct within the police force. Allowing them to also make
dispositions on these investigations could compromise the perceived impartiality
of the process. Both from the complainant’s perspective and the involved officers
too. The primary role of IA is investigative, not adjudicative, to ensure findings are
based solely on facts and evidence.
A case titled "Civil Service Commission v. Carlough" regarding civil service rules
and regulations is a case that we can review because it points to the primary
concern an agency should have when its policy directs IA investigators to assign
a disposition to their own investigations. For instance, this case involves aspects
such as:
Allegations of Misconduct or Improper Procedure: Points of contention include
whether the commission or Carlough is alleged to have violated civil service laws
or regulations. Due Process: Whether Carlough was afforded proper due process
in accordance with legal standards, including notice of any allegations and an
opportunity to respond. Merit-Based Decisions: Whether the Commission's
decisions were made based on merit, as required by civil service regulations.
Appeal and Review: The legal grounds for appeal and the standards of review
used by the court to evaluate the Commission's decisions.
2. Separation of Powers
Just as in the broader legal system, a separation of powers within the internal
investigative process helps prevent conflicts of interest. This separation ensures that the investigation, adjudication, and imposition of discipline are distinct
phases, handled by different individuals or bodies to enhance fairness and
accountability.
National Best Practices and Accreditation Standards
The Commission on Accreditation for Law Enforcement Agencies (CALEA) and
the International Association of Chiefs of Police (IACP) both advocate for policies
and practices that promote transparency and accountability in internal
investigations. These organizations recognize the separation of investigative and
adjudicative functions as a benchmark of professional policing, essential for
meeting accreditation standards.
3. Legal Precedents and Case Law
While specific case law directly addressing IA dispositions is rare, principles can be
drawn from cases emphasizing due process and fair handling of disciplinary
actions. For instance:
• Civil Service Commission v. Carlough, stresses the importance of due
process in administrative actions, suggesting that fairness might be
compromised if the investigator also serves as judge.
• Garrity v. New Jersey (1967), although not directly about IA dispositions,
underscores the importance of protecting the rights of officers during
investigations, hinting at the broader need for procedural safeguards,
which could include separating investigative and adjudicative roles.
Expanding upon these principles, several additional cases and research findings
support the separation of investigative and adjudicative functions within IA to
enhance fairness, objectivity, and due process:
1. Loudermill v. Cleveland Board of Education (1985): This U.S. Supreme Court
decision underscores the requirement of due process before depriving a
public employee of their employment. The Court held that employees have
a right to notice and an opportunity to respond before disciplinary action
is taken. This case reinforces the importance of due process in disciplinary
actions, which by extension supports the need for clear and separate
phases in IA investigations, ensuring that accused officers have fair
opportunities to respond to allegations.
2. Cleveland Board of Education v. Loudermill, is often cited alongside
Loudermill, reinforcing the principle that due process applies to public
employment and disciplinary actions. The specificity of ensuring that
employees have a chance to respond before decisions are finalized aligns
with advocating for a separation of roles within IA processes to avoid biases
and ensure fair hearings.
3. Skelly v. State Personnel Board (1975): A landmark case in California that
established the precedent for what is known as "Skelly rights." These rights
provide public employees with the opportunity to respond to allegations of
misconduct before punitive actions are taken. Skelly rights emphasize the
need for procedural protections in disciplinary processes, supporting the
argument for separating investigative and adjudicative roles to protect
these rights effectively.
4. Research on Procedural Justice: Beyond case law, research in the field of
procedural justice supports the separation of investigative and
adjudicative functions in IA processes. Studies indicate that perceptions of
fairness in disciplinary processes are enhanced when the decision-making
process is transparent, unbiased, peer reviewed, and allows for input from the accused individual (Tyler, 2003). Separating the roles of investigator and
adjudicator can help ensure that these procedural justice principles are
upheld, fostering trust in the process among law enforcement personnel.
Supporting Research and Studies
A body of research and studies underscores the benefits of separating
investigative and adjudicative roles in IA processes. The National Institute of
Justice's publication, "Building Trust Between the Police and the Citizens
They Serve," emphasizes that such separation is a promising practice for
enhancing the credibility and effectiveness of internal investigations.
Similarly, the Police Executive Research Forum has highlighted the
importance of procedural justice, noting that transparent and fair internal
investigation processes are crucial for sustaining officer morale and
community trust.
Moreover, empirical studies, such as those published in the Journal of
Experimental Criminology, reveal that transparency and fairness in IA
investigations can significantly improve public perceptions of police
accountability. These findings suggest that when internal affairs divisions
adopt clear separation of roles, they not only uphold due process but also
contribute to the broader goals of enhancing community relations and trust
in law enforcement.
5. National Institute of Justice Guidelines: The National Institute of Justice (NIJ)
has published guidelines and best practices for conducting internal affairs
investigations, which emphasize the importance of fairness, objectivity, and
transparency. These guidelines suggest that maintaining a clear distinction
between the roles of investigators and decision-makers can help ensure
that investigations are conducted impartially and that disciplinary decisions
are made based on a balanced and thorough review of the evidence.
Together, these cases and research findings build upon the principles highlighted
in Civil Service Commission v. Carlough and Garrity v. New Jersey, offering a vast
legal and ethical justification for the separation of investigative and adjudicative
functions within IA. This separation is critical for ensuring due process, maintaining
the integrity of the investigation process, and upholding the rights of officers
subject to IA investigations.
These cases, among others, suggest a legal and ethical framework that supports
separating the investigative and adjudicative functions within internal affairs to
ensure fairness, objectivity, and due process.
The separation of investigative and adjudicative functions in internal affairs
investigations represents a best practice aligned with national standards and
accreditation requirements. This approach not only ensures a higher degree of
fairness and objectivity in handling allegations of misconduct but also reinforces
the integrity of law enforcement agencies in the eyes of both the public and the
officers they serve. By doing so, law enforcement agencies can continue to build
trust and confidence within the communities they serve as well as the community
of officers within their department.
If you found this article to be helpful, please share it with a colleague that may
benefit from it. If you would like more information on this article or need assistance
developing a policy, email me at InternalAffairsTraining@gmail.com