HomeMy WebLinkAboutPolicy 103 – Internal Affairs InvestigationsOSHKOSH POLICE DEPARTMENT POLICY AND PROCEDURE
TITLE: Internal Affairs Investigations
POLICY SERIES: 103
Effective Date: November 26, 2020
Date Issued: November 11, 2020
Chief of Police: Chief Dean Smith
(Signature on File)
Date Signed: November 11, 2020
CALEA Standard: 1.2.10; 26.1.3; 26.2.1; 26.2.2; 26.2.4; 26.2.5; 26.3.1; 26.3.2; 26.3.3; 26.3.4;
26.3.5; 26.3.6, 26.3.7; 26.3.8
WILEAG Standards: 1.9.1; 1.9.4; 1.9.6
Statutory References: 66.312(3), 66.0511(3), 164.02,
946.66
Final Review Date: 02/19/2019
Review By: Command Staff / PSD Lieutenant
Rescinds Policy Dated: 02/22/2019
SECTION
DESCRIPTION
103.01
General Policy
103.02
Purpose
103.03
Definitions
103.04
Complaint Types and Procedures
103.05
Scope of Internal Affairs Responsibility
103.06
Procedure — Investigating Complaints
103.07
Employee Rights and Responsibilities
103.08
Administrative Meeting
103.09
Case Disposition
103.10
Complaints Against the Chief of Police
103.11
Complaint Time Lines
103.12
Annual Report
103.13
Internal Affairs Records and Investigator
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Formal Citizen Complaint Form
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Investigatory Interview Warning
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Formal Employee Complaint Form
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Supervisor Checklist
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103.01 GENERAL POLICY
The Oshkosh Police Department, its employees and volunteers will be responsive to
the needs and the concerns of the people it protects and serves. In order to
accomplish this goal, the Department will courteously accept, impartially investigate,
and promptly respond to a complaint received from a citizen and/or employee about
Department policies, procedures, and/or actions of its employees or volunteers.
103.02 PURPOSE
A. The purpose of this policy is to establish a procedure that will be followed in
handling complaints against Oshkosh Police Department policies, procedures,
and/or actions of its employees.
B. Any time the Department determines that it is necessary to investigate events
or circumstances that may lead to disciplinary actions, an investigation shall be
initiated. At the onset of any internal affairs investigation, the employee shall
be presumed innocent and the examination of facts shall be conducted in
accordance with the guidelines contained in this policy.
C. All investigations are to be conducted in a fair and impartial manner and will
not only provide for corrective action when appropriate, but will also protect
the Department and its employees from unwarranted criticism when those
procedures or actions questioned are proper.
103.03 DEFINITIONS
A. Employee - Any and all persons employed by the Oshkosh Police Department.
B. Factual Dispute — Issues raised by the complainant relating to the validity of
an arrest or the factual content of the report when there is no other alleged
misconduct on the part of an officer, such as Unprofessional Conduct,
inappropriate use of Force, Discrimination, Harassment, etc.
C. Formal Citizen Complaint Form - Form used to record complaints from
citizens against Department policies, procedures, and/or actions of
Department employees. (See Appendix A 103)
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D. Formal Complaint — A complaint generated by a citizen or department
employee alleging a violation of department and/or city policy, unprofessional
conduct, or unlawful acts and the citizen/employee wants an investigation into
the matter with notification of the results. Generally, complaints are based
upon alleged misconduct or violation of procedure.
E. Formal Employee Complaint Form — Form used to record complaints from
employees regarding Department policies, procedures, and/or actions of other
Department employees. (See Appendix C 103)
F. Informal Complaint — A complaint made by a citizen or department employee
similar to a formal citizen complaint with the exception that the citizen or
employee does not wish to pursue the matter and is only advising the
department for informational purposes without expectation of response.
These complaints will be reviewed by the IA Investigator and could be
reclassified as an internally generated complaint if appropriate.
G. Internal Affairs Investigations — Investigations into conduct whether on or off
duty into possible violations of City of Oshkosh or Oshkosh Police Department
policies, rules, and procedures.
H. Internally Generated Complaint — Violations of laws, policies, procedures or
rules of conduct, occurring either on or off duty, including all potential
disciplinary matters. An investigation will occur if these matters are brought
to the attention of a supervisor or as ordered by the Chief of Police or his/her
designee. Internally generated complaints initiated by a supervisor shall not
require a formal employee complaint form.
I. Supervisor - Those officers of the Oshkosh Police Department holding the
rank of Sergeant and above as well as designated civilian supervisors.
103.04 COMPLAINT TYPES AND PROCEDURES
A. Requests for a Supervisor
1. Any employee who is asked by a citizen to speak/meet with a
supervisor or make a complaint regarding the Department shall
immediately contact an on duty supervisor.
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2. Any supervisor advised by an employee that a citizen wishes to meet
with/speak with a supervisor or make a complaint shall evaluate when
the appropriate time will be to meet with/speak with the citizen.
B. Formal Complaints
1. The Oshkosh Police Department shall accept, record, and investigate all
formal complaints made against employees regarding alleged violations
of the city employee handbook, department rules of conduct, policies,
directives, memorandums, and/or employees.
a. All formal citizen complaints shall be recorded on the
department's Formal Citizen Complaint Form (Appendix A
103).
b. All formal employee complaints shall be recorded on the
departments Formal Employee Complaint Form (Appendix C
103)
c. Citizens who do not wish to sign or complete the Formal Citizen
Complaint Form or wish to make a formal complaint over the
phone may still request a formal investigation into their
complaint.
d. The Oshkosh Police Department will investigate anonymous
formal complaints.
e. Any sworn supervisor may accept a formal complaint and shall
document the complaint on the appropriate complaint form.
i. In the event that a complainant is obviously impaired the
supervisor will obtain their contact information and
advise them that they will be contacted at a later time to
determine if they are no longer impaired and able to
make a complaint.
2. Upon receipt of a formal complaint the supervisor shall initiate an entry
in the Blue Team computer system and direct that complaint to the IA
investigator. The original copy of the appropriate complaint form shall
be routed to the IA investigator.
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3. Upon receiving the complaint, the IA Investigator shall
a. Notify the employee's supervisor, Bureau Captain, and Chief of
Police of the complaint against the employee.
b. Notify the complainant in writing as soon as possible that the
complaint has been received and is being investigated.
c. Should the investigation of the complaint take longer than 45
days, the complainant shall be notified in writing of the status of
the complaint and the reason for delay in completing the
investigation.
d. The complainant will be informed that they will be advised in
writing as to the outcome of the investigation and if they have
additional questions to contact the IA Investigator.
e. The IA Investigator shall notify the employee that a complaint
has been made against them in writing and send him/her a copy
of the complaint form, unless doing so may jeopardize an
investigation.
f. The IA Investigator shall notify the employee of the outcome of
any complaints made against them.
4. Procedures for making formal citizen complaints as well as a
prohibition against filing a false complaint shall be made available to
the public through the department's website and posted in the lobby of
the Safety Building.
C. Informal Complaints
1. If a supervisor receives an informal complaint and the investigating
supervisor can satisfactorily resolve the matter without formal
discipline he/she may do so.
2. If after reviewing the incident the supervisor determines the informal
complaint is unfounded, there will not be an entry into Blue Team.
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3. The investigating supervisor shall record details of the informal
complaint (unless the complaint is deemed unfounded) and any actions
taken in Blue Team and submit the entry to the IA Investigator.
4. Informal complaints which rise to the level of an internally generated
complaint as described in section C must follow the guidelines in
Section C.
5. If a Blue Team Entry is made regarding an informal complaint, the
employee involved shall be notified.
D. Internally Generated Complaints
1. Complaints that make allegations of corruption, brutality, misuse of
force, breach of civil rights, and criminal misconduct must be
documented and referred to the IA Investigator.
2. Allegations of this nature require immediate notification to the Chief of
Police.
3. Non -citizen complaint allegations including but not limited to:
tardiness, unauthorized absence, insubordination and unsatisfactory
performance may be investigated by line supervisors. The investigation
shall be entered in Blue Team and the IA Investigator notified.
103.05 SCOPE OF INTERNAL AFFAIRS RESPONSIBILITY
A. Any investigation initiated by the Department to determine the possibility of
or to establish the basis for disciplinary action, whether such investigation is
initiated by a formal, informal or internally generated complaint, shall require
investigation by the Internal Affairs (IA) Investigator or another assigned
supervisor. IA investigations shall be conducted in accordance with
guidelines herein provided.
B. Unless otherwise designated by the Chief of Police, the Professional Standards
Lieutenant shall be the IA investigator for the department.
C. Authority of the Internal Affairs Investigator (IA) is an extension of the Office
of the Chief of Police and the IA Investigator acts as the direct representative
of the Chief of Police with authority commensurate to that responsibility
regardless of rank. All employees of the Department shall respond to the
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requests or orders from the IA Investigator, just as they would respond to
requests or orders from the Chief of Police.
1. Special Investigators - Should an investigation require additional
personnel, the Chief of Police may direct that other personnel be
temporarily transferred to Internal Affairs. Such transfers shall be for
that period of time necessary to successfully complete the investigation.
2. Rights Reserved - The Chief of Police may direct any supervisor to
conduct or review a special internal affairs investigation. This
procedure may be implemented to investigate cases of extreme
sensitivity; cases that if standard procedures were followed, would
provide a conflict of interest; or cases that are expected to require
extensive time and resources for successful completion of an
investigation.
D. Internal Affairs will conduct administrative investigations of allegations of
misconduct. When the alleged misconduct is criminal, the Internal Affairs
Investigator will monitor the progress and the outcome of the authorities'
investigation into the criminal charge to determine if the alleged conduct
involved is a violation of Department rules, regulations or published orders.
Lack of evidence substantiating a criminal charge will not automatically
preclude disciplinary actions arising out of a subsequent IA investigation into
a possible violation of written Department guidelines.
1. Discovery of Criminal Misconduct - If the investigation concerns
misconduct that might also result in criminal charges against the
employee, the investigator shall halt the investigation and notify the
Chief of Police. The Chief of Police will determine whether the IA
investigation will continue or be suspended until the outcome of a
criminal investigation is determined.
E. Internal affairs will also be involved in other reviews that are not directly
generated by an outside source, but rather are initiated within the Department
as a quality control measure or in defense of a civil proceeding.
1. Civil Investigation (CI) -Internal affairs may conduct a civil
investigation with the assistance of the City Attorneys office to prepare
a defense to any suit filed against the City as a result of acts of omission
or commission by a Department employee. Copies of such
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investigations shall be available to any employee named as a defendant
in the suit.
2. Shooting Incidents (SI) - Internal affairs will conduct an administrative
investigation into all cases of a Department employee discharging a
firearm or being shot, whether on or off duty. Discharging a weapon
for legal sporting purposes, authorized firearms training, and
authorized dispatch of injured wildlife is exempt from investigation.
3. Use of Force Leading to Serious Injury or death
a. When an employee's actions lead to serious injury, IA shall be
notified and conduct an internal investigation. The actual scene
of these incidents will be investigated by departmental personnel
not involved in the incident itself or an outside agency. The
Chief of Police or his/her designee shall determine who will
conduct the investigation. See Policy 169 —Officer Involved
Critical Incident or Death.
b. When the officer designated as the IA Investigator for the
department is involved in the occurrence of an incident subject to
an IA investigation, the Chief of Police, or his designee shall
designate another supervisor to fill the role of IA investigator for
the duration of the investigation of the incident.
4. Harassment - The IA Investigator or Supervisor upon receiving a
complaint of harassment shall report to the Chief of Police, who will
report to the Human Resources Department for the City of Oshkosh per
Policy 117 - Harassment. For additional guidance, please refer to the
City of Oshkosh Harassment Policy adopted by the Common Council
and published in the Employee Handbook.
F. Referral for Supervisory Review - Upon receipt of complaints of minor
misconduct, the Internal Affairs Investigator may refer those complaints to the
employee's supervisor for investigation and follow-through.
103.06 PROCEDURE - INVESTIGATING COMPLAINTS
Two types of investigations may take place, administrative or criminal. In instances
where an internal affairs and criminal investigation are being conducted
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simultaneously the investigations will be conducted independently of each other.
The Chief of Police will designate an investigator for any criminal investigations.
A. Internal Affairs Investigations - Investigations into conduct whether on or off
duty into possible violations of City of Oshkosh or Oshkosh Police Department
policies, rules, and procedures.
1. Any employee who is the subject of an internal affairs investigation
shall be notified in writing of the allegation and their right to
representation during any interview.
2. If the IA Investigator wishes to compel an employee to answer
questions related to the performance of their official duties, the
investigator shall read the employee the Oshkosh Police Department
Investigatory Interview Warning advising the employee of their rights
established by Wisconsin Statute 164.02 and United States Supreme
Court Ruling Garrity v. New Jersey, 385 U.S. 493 (1967).
3. During an interview for internal affairs purposes, no Miranda rights are
required. Any statements provided after the Oshkosh Police
Department Investigatory Interview Warning is provided cannot be
used in a criminal proceeding.
4. Information obtained through criminal investigations may be used in
internal affairs investigations.
5. Internal affairs investigatory interviews may be audio recorded. If the
interview is being recorded the employee being interviewed shall be
notified of the recording prior to the start of the interview.
B. Criminal Investigations - Investigation into conduct when criminal
prosecution is possible and statements made by the employee are to be used in
a criminal proceeding. The interviewer shall:
1. When interviewing an employee regarding a criminal investigation the
investigator shall:
a. If applicable advise the employee of their Miranda rights.
b. Advise the employee that if he/she invokes their right not to
answer questions, no adverse administrative action will be taken
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based upon the exercising of this right. (Garner vs. Broderick, 392
U.S. 273 (1968)).
2. If the employee decides to answer questions at this point, the responses
may be used in both criminal and disciplinary proceedings.
C. Complaints received 60 or more days following an incident.
1. These complaints will be reviewed for merit, and may be processed
through a formal investigation should there appear to be merit to the
complaint.
2. Complaints not investigated will be discussed with the employee and a
note to file will be placed in the employee's working file.
D. Factual disputes and disputes over the validity of an arrest decision.
1. A supervisor shall review the incident report.
2. If the determination is made that the dispute is based solely on the
factual content of the report or of an arrest decision, the complainant
should be advised to;
a. Submit a written attachment to the incident report documenting
their recollection of the incident. A supplement to the report
shall by complete with the complainant's written attachment
included, and/or;
b. Contest the matter in the court of jurisdiction.
3. The supervisor shall document the factual dispute by making an
informal complaint entry in Blue Team.
E. Paid Administrative Leave
1. Officers involved in an officer involved shooting, officer involved death,
or officer involved serious injury may be placed on paid administrative
leave or modified assignment by the Chief of Police or designee while
an IA investigation is conducted.
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2. Employees who are the subject of an IA investigation may be placed on
paid administrative leave or modified assignment pending the outcome
of the investigation at the discretion of the Chief of Police or designee.
103.07 EMPLOYEE'S RIGHTS AND RESPONSIBILITIES
A. All Department supervisors are responsible for ensuring that
complaints are processed in accordance with the City Employee
Handbook and Department rules and regulations.
B. No employee shall interfere, in any manner, with an investigation
conducted by Internal Affairs.
C. Officer(s) named in a formal citizen complaint shall not have any
further contact with the complainant or witnesses without first
consulting with a supervisor.
D. Confidentiality of internal affairs investigations.
1. Without expressed authorization from the Chief of Police, Department
employees shall not share, discuss, or reproduce any information
relevant to an internal affairs investigation with any person except the
internal affairs investigator, employee's legal counsel, or designated
representative during the period of investigation.
E. Representation of Employees.
1. Employees involved in an internal affairs investigation are entitled to
the following;
a. The employee will be informed of their right to representation
and to have the representative present during all interviews.
b. The investigator will not proceed with the interview unless
employee refuses representation.
c. The employee has the right to legal counsel in the case of a
criminal investigation.
i. The attorney or representative may ask questions.
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ii. The attorney or representative may not interfere with the
interview or turn it into an adversarial proceeding.
F. Employee's right to concede to the facts of an internal affairs
investigation.
1. The employee must be advised of the complaint, and that some form of
discipline will result if the allegation is sustained, up to and including
termination.
2. With the approval of the Chief of Police or designee an employee may
waive a complete internal affairs investigation.
G. Submission to Tests, Procedures
1. During the course of an IA investigation an employee who is the subject
of the investigation may be required to submit to the following:
a. Medical or laboratory examinations;
b. Photographs;
c. Audio or video recordings;
d. Participate in a line-up;
e. Submit financial discloser statements; and/or
f. Instruments for the detection of deception.
2. Requirements of employees to submit to one of the above requirements
will be covered at the expense of the department and only if directly
related to an ongoing IA investigation.
H. Reporting of Police Contacts
1. Employees who are arrested, cited or come under investigation for any
criminal offense or ordinance violation in this or any other jurisdiction
shall report this fact to a sworn supervisor as soon as practicable.
2. Employees who become aware of another employee who has violated
department policy, state/federal laws, or local ordinance shall notify a
supervisor as soon as practical.
3. Supervisors will ensure all information received related to these events
is reported to the appropriate bureau captain.
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4. If an employee or any of his immediate family becomes involved in a
situation requiring police attention, the employee shall summon
another officer to handle the matter unless it constitutes an emergency.
103.08 ADMINISTRATIVE MEETING
A. For all cases in which formal discipline is recommended, the Chief of
Police or designee shall schedule an administrative meeting.
B. An administrative meeting is provided to the employee prior to
imposition of discipline so that they may offer any information in
mitigation or explanation of the behavior for which disciplinary action
may be imposed.
C. Notice of Administrative Meeting
1. The Chief of Police shall schedule an administrative meeting prior to the
final determination of appropriate discipline to be administered.
2. The employee shall be provided a minimum notice of 48 hours,
excluding weekends and holidays.
3. The employee shall attend the administrative meeting as scheduled or
submit a written request to waive the meeting. Approval of this request
shall rest with the Chief of Police.
103.09 CASE DISPOSITION
A. Upon completion of the investigation, the IA Investigator shall forward
the case finding to the Chief of Police. The case finding shall be
classified as follows:
1. Sustained - The allegation is supported by sufficient proof.
2. Partially Sustained — Some elements of the allegation are supported by
sufficient proof.
3. Not Sustained - The evidence is not sufficient to prove or disprove the
allegation.
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4. Unfounded - The allegation is false or otherwise not based on valid
facts.
5. Exonerated - The incident that occurred or was complained against was
lawful and proper.
6. Misconduct not based on the original complaint - The evidence
supports the action for violations of policy, procedure, or law
discovered during the investigation of the complaint that may be
sustained, not sustained, unfounded or exonerated.
7. Factual Dispute — There is no misconduct on the part of the employee.
The complainant's concerns are strictly related to the factual content of
the report or to the validity of an arrest decision.
B. The Chief of Police shall review the report and, in writing, either concur
or not concur with the findings and the recommendations of the IA
Investigator.
1. If the Chief of Police concurs, he/she shall decide the appropriate
disposition of a case.
2. If the Chief of Police does not concur, he/she shall return the report to
the investigator with his/her reasons for non -concurrence, and direct
what further action should be taken in the case.
C. Upon final disposition of the case, the IA Investigator shall notify, in
writing, the complainant and the accused of the Department's findings.
D. Upon completion of the investigation and the employee is not
exonerated; the Chief of Police or his/her designee shall administer
appropriate and final discipline that can range from training to
dismissal from the Department.
E. If the disciplined employee wishes to contest the Chief's action, he/she
has the option of following the grievance procedure.
1. For sworn officers this procedure is set forth in the current labor
agreement between the collective bargaining unit and the City of
Oshkosh.
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2. In a case of suspension, demotion, and/or dismissal, if the
employee is a sworn officer, the officer may appeal the action to
the Police and Fire Commission.
3. Non -sworn employees will follow procedures in the City
Employee Handbook.
103.10 COMPLAINTS AGAINST THE CHIEF OF POLICE
If a supervisor receives a formal citizen complaint against the Chief of Police, the
supervisor will forward that complaint to the Assistant Chief of Police who in turn
will forward the complaint to the City Manager for his or her review.
103.11 COMPLAINT TIME LINES
A. Investigation of formal complaints shall be complete within 45 days of being
filed, unless the Chief of Police orders the investigation be completed sooner.
B. Exceptions to the 45 day restriction will be limited to those occasions when the
employees, witnesses or complainants are unavailable due to illness, vacation
or other similar circumstances, or when the complexity of the complaint
requires more extensive investigation than is allowed under the 45 day time
limitation.
C. In the event the investigator is unable to complete the investigation within the
prescribed time limits, the investigator shall request an extension in writing
outlining why the request is needed.
D. When a supervisor is assigned to complete an IA investigation, he or she shall
within five days, contact the complainant to identify themselves as the
investigating supervisor and to determine if they have any further information
related to the complaint.
E. Internal affairs investigations are deemed completed when the Investigative
Report and Investigative Findings Report have been completed and routed to
the command staff by the IA Investigator.
103.12 ANNUAL STATISTICAL SUMMARY
The Internal Affairs Investigator shall compile annual statistical summaries of
Internal Affairs investigations and conduct an annual review to determine any
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patterns, tendencies, etc. that may need to be addressed. This report shall be
provided to the Chief of Police and published each year in the Oshkosh Police
Department's Annual Report. This report shall be accessible on the department's
website.
103.13 INTERNAL AFFAIRS RECORDS
The IA investigator shall assign all IA investigations an IA number and document the
investigations in the IA Pro computer system. A file of all formal IA investigations
will all be kept in a secured location in the Office of the Professional Standards
Lieutenant.
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