I have chosen this essay topic based upon my personal professional experience as a Deputy Sheriff from a large agency, later working for another small agency for ten years, followed by my current employment with a mid-sized rural agency. I have worked in internal affairs for slightly over three years, in a bifurcated system with both an administrative internal affairs division and also a criminal internal affairs division.
During the course of my career, I have conducted internal administrative investigations for the agency I was employed by, I have conducted external administrative investigations at the request of other agencies, and I have participated as a witness in both investigations conducted internally and as a witness in investigations conducted by an external investigator. The following are my observations, as a result.
- Public review/perception if impartiality.
- Minimal bias of the involved employee.
- Greater capacity to keep the information gained in the investigation, confidential.
- Greater expertise in investigative activities for small agencies
- Improved potential for civil review under civil litigation.
- Policies of an agency may be outdated or training outdated and an outside review may expose such a deficiency.
- Lack of familiarity with the police agency that the outside investigator is asked to conduct the investigation for.
- Lack of familiarity with policies relating to the agency that the outside investigator is asked to conduct the investigation for.
- Lack of familiarity with any applicable labor agreements relating to Internal Investigations process and handling of such investigations for an agency that is requesting an outside investigator to conduct the investigation for.
- Potential internal lack of trust by the staff being investigated by an outside investigator.
- Lack of ability to hold the outside investigator accountable to a thorough and detailed investigation and / or required timelines for completion.
I will begin with a discussion regarding the “Pro’s” of requesting an administrative investigation be conducted by an external investigator.
Having external investigators conduct internal investigations results in a different public optic or view of the investigation results. While the occasional viewpoint of law enforcement may be of the “Blue Line” or officers covering misconduct because of the comradery of law enforcement, I believe the general populous believes in the honesty and integrity of law enforcement officers and thus, an external investigator only serves to enhance this view. The idea that an external agency conducted the investigation can be seen in a two fold perspective. One that the agency is willing to be examined by an external entity and secondly that the actions were reviewed by an external entity and thus the outcome of the review has greater reliability as being non-bias or having any misconduct overlooked, ignored or wrongfully found to be justified or supported by policy. Furthermore, an external investigator may not have pre-disposed bias against the employee who is alleged to have violated policy. The external investigator (in theory) will not have prior experiences or exposure to the employee who is alleged to have violated policy and therefore will not have preconceived ideas regarding the alleged conduct.
An additional consideration may be that an external investigator should have less exposure to other co-workers or employees of the agency under investigation and therefore will be more adept at the ability to refrain from inappropriately disclosing information that otherwise should be kept confidential, while the investigation is on-going. This will serve to protect the reputations of those who are alleged to have violated policy and provide stability to the investigation by avoiding unnecessary rumors within the agency.
While according to information I learned during the National Internal Affairs Certification course indicates that most American police agencies are small in size, this creates a limitation upon the small agency’s ability to maintain qualified investigators for both internal administrative investigations and complex criminal investigations. Using an external investigator can provide for more thorough and defensible investigations, should further litigation occur. Many small agencies do not have the ability or luxury of having a highly qualified interviewer / investigator who would be knowledgeable in the challenges if an internal investigation, particularly when the administrative investigation has a criminal misconduct nexus. There are unique differences in an administrative investigation that include the use of Garrity Warnings versus Miranda Warnings that most officers are well versed in. In addition, there are considerations of truthfulness and career ending impacts for small acts of dishonesty or damage to integrity from the Brady and Giglio Rulings.
Many administrative investigations are also subject to civil litigation for both acts of misconduct by employees but also for allegations against the employer of wrongful discharge. Such civil litigation includes the review of investigations by learned persons such as Human Resources Directors and civil counsel for the employee, the agency, and perhaps outside civil counsel seeking financial remedy for the allegedly wronged person. Examples include employees of law enforcement agencies who use force and are then alleged to have used excessive force that may have resulted in visible injuries or other injuries that are not visible to include mental distress. Other examples may be of the vindictive or discriminatory nature, where a terminated employee may allege that the discipline or termination decision by the agency leaders, was made based upon some protected status such as racial or gender discrimination, rather than truly based upon misconduct and actual violations of policy. A good and thorough administrative investigation will serve to protect both the agency, the employee, and the public from such scrutiny.
Lastly, another “Pro” point of view is an update of policies or training. Most recently, the use of choke holds as a means of control, was banned universally in US law enforcement. The potential for a small agency to have a high risk, low frequency incident that results in national public review, still exists in small agencies and the need for current practices in both policy and training is a must, even for small agencies. An outside investigator who is well versed in current standards has the potential to expose such deficiencies in both policy and training.
Regarding the potential “Con’s” of asking an outside investigator to conduct an administrative investigation, some weaknesses in such an idea still exist.
To begin with, an outside investigator may not be familiar with the agency, the challenges faced by the agency for various reasons, or the operations and practices of the agency. If the investigator were from a much larger agency with greater resources, the investigator must be cognizant of the difference from what the investigator is familiar with versus the limitations of the smaller agency. These impacts challenge the external investigator to become familiar with the agency he or she is asked to investigate. When examining an incident, the investigator must take into consideration the circumstances of the employee in question, when the incident occurred. The investigator cannot assume that another officer would have been readily available or psychological services or support would have been readily available or that the employee had been previously trained to handled that particular type of incident. It is incumbent upon the external investigator to learn about the agency and the employee prior to entering deeply into the investigation.
In addition, an outside administrative investigator must familiarize themselves with the applicable policies of the agency or conduct he or she is asked to investigate. The investigator must not, “take it as granted” or believe that a policy on a particular issue exists or is even clearly outlined. The investigator must review the requesting agencies policies, study them, and be clear regarding the intent and meaning of the policies as the investigation progresses.
Also, an outside administrative investigator must be familiar with and follow any current labor agreements from the outside agency that has requested the services of an outside investigator. As the investigation progresses, the outside investigator must comply with any labor agreements that bind the employer regarding the investigative process such as time limitations, representative requirements or restrictions, required opportunities to review evidence. Otherwise, the investigation could be subject to appeal and during the civil review process, any discipline that has been deemed appropriate, may not be fulfilled after the appellate process.
Some agency leaders may be concerned regarding an outside administrative investigator being trusted to complete a thorough, fair, and impartial investigation. This lack of trust can erode morale within the organization and confidence in the leadership of the organization as the “rank and file” staff believe that the internal staff are not trusted by the leadership to conduct an administrative investigation. The “rank and file” may perceive the outside investigator as serving as a “head hunter” for the agency leadership, expecting that the outside investigator will only fulfill the wishes of the agency leadership, particularly when trust with the leadership is already questionable.
Lastly, another “Con” consideration would be that the leadership of an agency who has requested that an outside agency or investigator conduct an administrative investigation, would not have any direct communication with the investigating body, on a necessarily regular basis. Nor would the agency have the ability to truly know the quality of the investigative services to be received or the thoroughness of the investigation, until the investigation has been completed. From my experience, I have heard of agencies having spent significant public funds to ensure a fair and impartial investigation was conducted only to find that they received a sub-par product. It is also a necessary consideration that actions by the leadership or administration of the agency may be immediately necessary upon the discovery of some information learned during the course of an administrative investigation, such as administrative leave pending the outcome of an investigation, if more egregious information is learned. And ultimately, the requesting agency may not have any ability to hold the outside agency to any needed time limitations for completion of the investigation and are at the mercy of the outside investigator for the final report.
These are just a few of the considerations that I believe are important factors when considering the impacts of requesting that an outside entity be enlisted to conduct an administrative investigation in today’s environment.