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  • Writer's pictureGeorge Perez

Separation of Investigative and Adjudicative Functions in Internal Affairs Investigations

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

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