Article highlights
1. Nearly all U.S. states have frameworks for decertifying peace officers, but there’s no standard process for regulatory investigations, which probe serious misconduct allegations.
2. Regulatory investigators looking into misconduct must remain neutral and thorough. They shouldn’t merely endorse internal affairs findings but probe deeper, focusing specifically on serious misconduct.
3. Misconduct must meet statutory definitions to be considered serious and lead to decertification. Lesser misconduct should be addressed through agency employment actions.
4. Investigators must produce detailed reports, documenting their findings meticulously. These reports significantly influence the final decision and often are the only publicly released information.
5. The integrity of law enforcement relies on objective investigations into serious misconduct. Effective regulatory investigations reassure both the public and law enforcement community about officer safety and accountability.
By Kevin P. Sherburne
Almost every state now has a regulatory framework in place that outlines a process for decertifying peace officers. [1] The established procedures for mandated occupational licensing and the regulatory enforcement of peace officers’ licenses offer both opportunities and challenges in the essential endeavor to enhance public trust in law enforcement and enhance the accountability of peace officers.
The primary recurring themes in the decertification process are the implementation of a regulatory investigation to ascertain whether serious misconduct took place and the creation of written reports summarizing the investigation’s findings. These themes remain consistent despite the varied statutory language each state employs to define serious misconduct as grounds for decertifying peace officers and despite differences in each state’s legislative structure for decertification.
There is a dearth of published material on the topic of peace officer decertification, and there is no existing “code of conduct” or investigatory framework for regulatory investigators. Instead, the expectations of regulatory investigators, as well as how regulatory investigations should be carried out, are left to the discretion of individual agencies. This article discusses foundational blueprint concepts to guide those who oversee regulatory investigations, conduct them and draft reports summarizing their investigative findings. [2]
A serious-minded approach
Allegations of serious misconduct of peace officers often involve distressing facts that trigger a fundamental instinct to seek retribution. Victims, their family members and community activists typically demand immediate action against the officer involved. Media reports on police misconduct go beyond simply reporting the facts, adding editorial commentary and making sweeping public denunciations of the police, which inflame emotional responses from all perspectives. Thankfully, by the time regulatory investigators begin their review of serious misconduct allegations, many of the initial intense emotions may have lessened.
Yet, demands for immediate action from a regulatory agency, particularly those responsible for conducting regulatory investigations, can reignite intense emotions once the public becomes aware of referred allegations of serious misconduct. [3] Further complicating the situation is the officer’s anxiety about potentially losing certification as a peace officer. Given this context, regulatory investigators conducting regulatory investigations that could lead to the decertification of peace officers owe it to both the community and officers under investigation to adopt a dignified, thorough and serious-minded approach to their task.
Maintain neutrality
A dignified approach entails that regulatory investigators should acknowledge the existence of the array of emotions that surround allegations of serious misconduct without prematurely judging the facts. Regulatory investigators must maintain a neutral, objective, and balanced approach.
While many investigators may have a law enforcement background, it is important to remember that the investigator’s role is not to represent or advocate the position of the officer under investigation or the interests of the victim or their family members. The investigator’s responsibility is to maintain neutrality when reviewing the facts within the scope of the investigation into allegations of serious misconduct. This approach is designed to provide due process to the officer under investigation.
Equally as important, maintaining objectivity serves the public interest by promoting transparency and enhancing the accountability of law enforcement.
Probe further
Given that regulatory investigations are as much about disproving allegations of serious misconduct as they are about proving allegations, these investigations must be thorough. Regulatory investigators should not rely solely on the investigative reports of internal affairs investigators or witness interviews conducted by those investigators. They must delve deeper. They cannot serve as rubber stamps, simply endorsing the findings of internal affairs investigations.
Often, there is a significant and material difference between the focus of an internal affairs investigation and that of a regulatory investigation. This is due to the fact that the definitions of misconduct in departmental policies do not always align with the definition of serious misconduct in decertification statutes. As a result of this discrepancy, regulatory investigators will inevitably have follow-up questions that were not considered by the internal affairs investigators, as these issues did not come up during the internal affairs investigation.
Exercise prudence
Regulatory investigators should also remain focused on their primary tasks. The ultimate goal of a regulatory investigation is to determine whether there is evidence of serious misconduct, according to a specified evidentiary standard. [4] Recognizing that not all misconduct reaches the level of decertifiable misconduct (defined by statute in California as “serious misconduct”) requires prudence, guided by deliberate thought, sound judgment and intellectual practicality. By exercising such prudence in a regulatory investigation, the investigator helps uphold justice.
Regulatory investigators exercise prudence by looking for evidence of specific instances of serious misconduct, rather than casting a wide net. Often, an internal affairs investigative report will contain numerous additional allegations of misconduct that are not relevant or material to the regulatory investigation. Keeping a narrow focus on serious misconduct ensures the regulatory investigation stays on track, as required by law. Additionally, investigators exercise prudence by cautiously evaluating incendiary allegations and evidence before proceeding with further inquiries.
Not all misconduct is serious misconduct
As mentioned previously, many cases may present complex facts and circumstances. The regulatory investigator’s duty to both the community and the officer under investigation is to gather evidence and determine whether that evidence constitutes serious misconduct, and if it meets the statutory requirements for such a determination. Not all misconduct is categorized as serious misconduct. Misconduct that does not rise to the level of serious misconduct should be appropriately addressed through agency employment actions, not through regulatory actions.
Detailed reports
Above all, regulatory investigators must meticulously detail and document their investigative findings in a well-reasoned written report. The contents of this report will primarily inform the ultimate decision-maker’s [5] resolution of the case. It may also be the only information that is released to the public. The effectiveness with which the regulatory investigator explains the investigative methodology, the evidence collected, the analysis of that evidence and the findings can have implications far beyond that single case. Public perceptions of law enforcement and peace officers’ views of regulatory agencies hinge on fair treatment of allegations in a written report.
Ensuring fairness in a written report includes addressing evidence that contradicts the regulatory investigator’s conclusions. In meeting an evidentiary standard, the regulatory investigator must present both the evidence supporting their conclusion and the evidence that does not. A useful method for assessing credibility – adjudicated by courts as necessary – is used by workplace investigators when they measure credibility against any of the following credibility factors: corroboration or lack thereof; opportunity and capacity to observe; consistent or inconsistent statements; past history; plausibility; bias; motive to lie; reputation for veracity or deceit; and demeanor and manner of responding to questions. [6]
It is grossly insufficient to write a one-line sentence summarizing evidence, such as witness statements, stating that there is enough evidence to support a finding that the allegation of serious misconduct is substantiated. Regulatory investigators must ensure that their reports do not make conclusory findings for which no supporting basis in fact or logic is provided.
Many internal affairs investigators do not make findings in their reports and leave that task to a Disciplinary Review Board or other entity. [7] However, the primary role of a regulatory investigator is to make findings. Regulatory investigators must state those findings clearly and concisely, without ambiguity. They should be careful not to equivocate or avoid making a finding, or not make findings on every allegation of serious misconduct. One way to avoid the trap is to list the allegations in one place, such as in an executive summary, and then detail the findings under each allegation in a sequential fashion. The finding should directly respond to the allegation. Lastly, findings should avoid using jargon (especially police jargon) or acronyms and should use plain language as much as possible.
Written reports provide regulatory investigators with an opportunity to demonstrate their objectivity and neutrality. A lack of neutrality can occur when a regulatory investigator neglects to address relevant issues or counterevidence to the conclusion in their analysis. If a regulatory investigator who is a former law enforcement officer fails to comprehensively analyze all of the evidence in a regulatory investigative report, such as considering each bullet fired as an independent use of force, they display a lack of neutrality and bias in favor of the officer under investigation.
In sum, regulatory agencies and their investigators should ensure that:
- Investigators are objective and impartial
- Investigations are thorough
- Investigators focus on serious misconduct
- Investigators document a thorough and well-reasoned analysis in a written report
- Investigators make clear and concise findings.
Regulatory agencies, regulatory investigators, internal affairs investigators, peace officers, command staff and the community each play a role in ensuring integrity and transparency in law enforcement. It’s vital that these groups collaborate to ensure an honorable future for law enforcement. Only peace officers engaged in serious misconduct need to worry about regulatory investigations with the potential for decertification. By effectively addressing serious misconduct, both the public and the law enforcement community can be reassured that thorough regulatory investigations contribute to the safety of officers and community members alike.
Topics for discussion
1. How can we ensure that our internal investigations are as thorough and unbiased as possible, thereby enhancing public trust in our department’s ability to regulate itself?
2. What strategies can we implement to ensure that our officers understand the difference between serious misconduct that could lead to decertification and lesser misconduct that should be addressed through other agency actions?
3. How can we improve the clarity and transparency of our investigative reports so that they effectively communicate our findings and procedures, both within our department and to the public?
References
1. On January 1, 2023, California law enforcement agencies started reporting serious misconduct allegations to the California Commission on Peace Officer Standards and Training (“CA-POST”) pursuant to the mandates of Senate Bill-2 (“SB-2”), under which California joined 47 other states in both requiring all peace officers to be certified, thus allowing for the ability to revoke peace officers’ certifications. Deepak Premkumar and Shannon McConville, “Historic Law Aims to Improve Police Accountability and Transparency,” Public Policy Institute of California Blog Post (2/25/2022). SB-2 became effective January 1, 2022, and mandated reporting of serious misconduct starting January 1, 2023. See California Penal Code Section 13509(a). California law defines serious misconduct as decertifiable misconduct. See California Penal Code Section 13510.8(b).
2. This article does not provide a legal analysis of how a court may review the sufficiency of a regulatory investigation or adequacy of an investigative report.
3. The time when an investigation becomes public will vary according to each state. In California, the investigation becomes public upon completion of an investigation and scheduling of review of the investigation’s findings before the Peace Officer Standards Accountability Advisory Board. See California Penal Code Section 13510.85(a)(2).
4. In California, revocation of a peace officer’s certification requires clear and convincing evidence of serious misconduct. See California Penal Code Section 13510.85(a)(4). In California, the standard for internal affairs investigations is the much lower preponderance of the evidence standard.
5. In California, the Commission renders the ultimate decision.
6. Equal Employment Opportunity Commission (“EEOC”) Enforcement Guidance, “Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice Number 915.002 (6/18/1999). Internal affairs investigators should utilize these credibility factors in their investigative reports.
7. In California, many Disciplinary Review Boards (“DRB”) fail to provide basic analysis, instead opting to tick a box on a form with a conclusory decision about an internal affairs investigative report (e.g., sustained, not sustained, exonerated). Such perfunctory acts may be one reason why so many decisions are overturned by arbitrators or during Skelly hearings. In addition, many law enforcement department policies are broad and address a wide spectrum of prohibited behavior. Where such policies, for example, proscribe criminal conduct and conduct that may bring the department disrepute and an investigator or DRB merely checks a box that the policy was violated without explaining which particular provision was violated, a regulatory investigator cannot decipher what the finding was. How internal affairs investigations are conducted in California and how policies are written will likely evolve in the next year or two based on the effect and implementation of SB-2.
About the author
Kevin P. Sherburne is a law enforcement consultant at CA-POST and is assigned to the Peace Officer Standards Accountability Division where he conducts regulatory investigations into allegations of serious misconduct. Mr. Sherburne is a retired FBI Special Agent and squad supervisor. He graduated from Santa Clara University and received his J.D. from The American University, Washington College of Law, where he was a law review editor. He clerked for federal judges in Virginia and Washington, D.C. and practiced law in Washington, D.C. The views and opinions in this article are those of the author and do not reflect the official policy or position of CA-POST.
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