Sustained or Exonerated - Who Decides

Separation of Investigative and Adjudicative Functions in Internal Affairs Investigations:

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.

 Points of consideration

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 cdispositions 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.

1. 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.

1. 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.

1. 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.

1. 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.

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