Policy
1020
Alameda Police Department
Alameda Police Department Policy Manual
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1020.1 PURPOSE AND SCOPE
This policy provides guidelines for the reporting, investigation and disposition of complaints regarding the conduct of members of the Alameda Police Department. This policy shall not apply to any questioning, counseling, instruction, informal verbal admonishment or other routine or unplanned contact of a member in the normal course of duty, by a supervisor or any other member, nor shall this policy apply to a criminal investigation. 1020.2 POLICY
The Alameda Police Department takes seriously all complaints regarding the service provided by the Alameda Police Department and the conduct of its members.
The Alameda Police Department will accept and address all complaints of misconduct in accordance with this policy and applicable federal, state and local law, municipal and county rules and the requirements of any collective bargaining agreements.
It is also the policy of this department to ensure that the community can report misconduct without concern for reprisal or retaliation.
1020.3 PERSONNEL COMPLAINTS
Personnel complaints include any allegation of misconduct or improper job performance that, if true, would constitute a violation of department policy or of federal, state or local law, policy or rule. Personnel complaints may be generated internally or by the public.
Inquiries about conduct or performance that, if true, would not violate department policy or federal, state or local law, policy or rule may be handled informally by a supervisor and shall not be considered a personnel complaint. Such inquiries generally include clarification regarding policy, procedures or the response to specific incidents by the Alameda Police Department. 1020.3.1 SOURCES OF COMPLAINTS
The following applies to the source of complaints:
(a) Individuals from the public may make complaints in any form, including in writing, by email, in person or by telephone.
(b) Any department member becoming aware of alleged misconduct shall immediately notify a supervisor.
(c) Supervisors shall initiate a complaint based upon observed misconduct or receipt from any source alleging misconduct that, if true, could result in disciplinary action. (d) Anonymous and third-party complaints should be accepted and investigated to the extent that sufficient information is provided.
(e) Tort claims and lawsuits may generate a personnel complaint. 1 Alameda Police Department
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Published with permission by Alameda Police Department ***DRAFT*** Personnel Complaints - 2 1020.3.2 COMPLAINT CLASSIFICATIONS
Personnel complaints shall be classified in one of the following categories:
Informal - A matter in which the complaining party is satisfied that appropriate action has been taken by a supervisor of rank greater than the accused member. Informal complaints need not be documented on a Personnel Complaint form and the responsible supervisor shall have the discretion to handle the complaint in any manner consistent with this policy.
Formal
- A matter in which the complaining party requests further investigation or which a supervisor determines that further action is warranted. Such complaints may be investigated by a supervisor of rank greater than the accused member or referred to the Professional Standards Unit, depending on the seriousness and complexity of the investigation.
Incomplete - A matter in which the complaining party either refuses to cooperate or becomes unavailable after diligent follow-up investigation. At the discretion of the assigned supervisor or the Professional Standards Unit, such matters may be further investigated depending on the seriousness of the complaint and the availability of sufficient information. 1020.4 AVAILABILITY AND ACCEPTANCE OF COMPLAINTS
1020.4.1 COMPLAINT FORMS
Personnel complaint forms will be maintained in a clearly visible location in the public area of the police facility and be accessible through the department website. Forms may also be available at other City facilities.
Personnel complaint forms in languages other than English may also be provided, as determined necessary or practicable.
1020.4.2 ACCEPTANCE
All complaints will be courteously accepted by any department member and promptly given to the appropriate supervisor. Although written complaints are preferred, a complaint may also be filed orally, either in person or by telephone. Such complaints will be directed to a supervisor. If a supervisor is not immediately available to take an oral complaint, the receiving member shall obtain contact information sufficient for the supervisor to contact the complainant. The supervisor, upon contact with the complainant, shall complete and submit a complaint form as appropriate.
Although not required, complainants should be encouraged to file complaints in person so that proper identification, signatures, photographs, or physical evidence may be obtained as necessary.
A complainant shall be provided with a copy of the complaining party's statement at the time it is filed with the Alameda Police Department (Penal Code § 832.7). 1020.4.3 AVAILABILITY OF WRITTEN PROCEDURES
The Alameda Police Department shall make available to the public a written description of the investigation procedures for complaints (Penal Code § 832.5). 2 Alameda Police Department
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Published with permission by Alameda Police Department ***DRAFT*** Personnel Complaints - 3 1020.4.4 HATE COMPLAINTS AGAINST PEACE OFFICERS
Internal complaints or complaints from the public shall be accepted and investigated in accordance with this policy where it is alleged that an officer has in the previous seven years, and since 18 years of age, engaged in membership in a hate group, participated in a hate group activity, or advocated any public expression of hate (Penal Code § 13682). 1020.5 DOCUMENTATION
Supervisors shall ensure that all formal complaints are documented on a complaint form. The supervisor shall ensure that the nature of the complaint is defined as clearly as possible.
All formal complaints should also be documented in a log that records and tracks complaints. The log shall include the nature of the complaint and the actions taken to address the complaint. On an annual basis, the Alameda Police Department should audit the log and send an audit report to the Chief of Police or the authorized designee.
1020.6 ADMINISTRATIVE INVESTIGATIONS
Allegations of misconduct will be administratively investigated as follows. 1020.6.1 SUPERVISOR RESPONSIBILITIES
In general, the primary responsibility for the investigation of a personnel complaint shall rest with the member's immediate supervisor, unless the supervisor is the complainant, or the supervisor is the ultimate decision-maker regarding disciplinary action or has any personal involvement regarding the alleged misconduct. The Chief of Police or the authorized designee may direct that another supervisor investigate any complaint.
A supervisor who becomes aware of alleged misconduct shall take reasonable steps to prevent aggravation of the situation.
The responsibilities of supervisors include but are not limited to:
(a) Ensuring that upon receiving or initiating any formal complaint, a complaint form is completed.
1. The original complaint form will be directed to the Watch Commander of the accused member, via the chain of command, who will take appropriate action and/or determine who will have responsibility for the investigation.
2. In circumstances where the integrity of the investigation could be jeopardized by reducing the complaint to writing or where the confidentiality of a complainant is at issue, a supervisor shall orally report the matter to the member's Bureau Commander or the Chief of Police, who will initiate appropriate action. (b) Responding to all complainants in a courteous and professional manner. (c) Resolving those personnel complaints that can be resolved immediately.
1. Follow-up contact with the complainant should be made within 24 hours of the Alameda Police Department receiving the complaint.
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2. If the matter is resolved and no further action is required, the supervisor will note the resolution on a complaint form and forward the form to the Watch Commander.
(d) Ensuring that upon receipt of a complaint involving allegations of a potentially serious nature, the Watch Commander and the Chief of Police are notified via the chain of command as soon as practicable.
(e) Promptly contacting the Department of Human Resources and the Watch Commander for direction regarding their roles in addressing a complaint that relates to sexual, racial, ethnic or other forms of prohibited harassment or discrimination. (f) Forwarding unresolved personnel complaints to the Watch Commander, who will determine whether to contact the complainant or assign the complaint for investigation. (g) Informing the complainant of the investigator’s name and the complaint number within three days after assignment.
(h) Investigating a complaint as follows:
1. Making reasonable efforts to obtain names, addresses and telephone numbers of witnesses.
2. When appropriate, ensuring immediate medical attention is provided and photographs of alleged injuries and accessible uninjured areas are taken. (i) Ensuring that the procedural rights of the accused member are followed (Government Code § 3303 et seq.).
(j) Ensuring interviews of the complainant are generally conducted during reasonable hours.
1020.6.2 ADMINISTRATIVE INVESTIGATION PROCEDURES
Whether conducted by a supervisor or a member of the Professional Standards Unit, the following applies to members covered by the Public Safety Officers Procedural Bill of Rights Act (POBR) (Government Code § 3303):
(a) Interviews of an accused member shall be conducted during reasonable hours and preferably when the member is on-duty. If the member is off-duty, he/she shall be compensated.
(b) Unless waived by the member, interviews of an accused member shall be at the Alameda Police Department or other reasonable and appropriate place. (c) No more than two interviewers should ask questions of an accused member. (d) Prior to any interview, a member shall be informed of the nature of the investigation, the name, rank and command of the officer in charge of the investigation, the interviewing officers and all other persons to be present during the interview. (e) All interviews shall be for a reasonable period and the member's personal needs should be accommodated.
(f) No member should be subjected to offensive or threatening language, nor shall any promises, rewards or other inducements be used to obtain answers. 4 Alameda Police Department
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Published with permission by Alameda Police Department ***DRAFT*** Personnel Complaints - 5 (g) Any member refusing to answer questions directly related to the investigation may be ordered to answer questions administratively and may be subject to discipline for failing to do so.
1. A member should be given an order to answer questions in an administrative investigation that might incriminate the member in a criminal matter only after the member has been given a Lybarger advisement. Administrative investigators should consider the impact that compelling a statement from the member may have on any related criminal investigation and should take reasonable steps to avoid creating any foreseeable conflicts between the two related investigations. This may include conferring with the person in charge of the criminal investigation (e.g., discussion of processes, timing, implications).
2. No information or evidence administratively coerced from a member may be provided to anyone involved in conducting the criminal investigation or to any prosecutor.
(h) The interviewer should record all interviews of members and witnesses. The member may also record the interview. If the member has been previously interviewed, a copy of that recorded interview shall be provided to the member prior to any subsequent interview.
(i) All members subjected to interviews that could result in discipline have the right to have an uninvolved representative present during the interview. However, in order to maintain the integrity of each individual’s statement, involved members shall not consult or meet with a representative or attorney collectively or in groups prior to being interviewed.
(j) All members shall provide complete and truthful responses to questions posed during interviews.
(k) No member may be requested or compelled to submit to a polygraph examination, nor shall any refusal to submit to such examination be mentioned in any investigation (Government Code § 3307).
No investigation shall be undertaken against any officer solely because the officer has been placed on a prosecutor’s Brady
list or the name of the officer may otherwise be subject to disclosure pursuant to Brady v. Maryland. However, an investigation may be based on the underlying acts or omissions for which the officer has been placed on a Brady list or may otherwise be subject to disclosure pursuant to Brady v. Maryland (Government Code § 3305.5). 1020.6.3 COMPLETION OF INVESTIGATIONS
Every investigator or supervisor assigned to investigate a personnel complaint or other alleged misconduct shall proceed with due diligence in an effort to complete the investigation within one year from the date of discovery by an individual authorized to initiate an investigation (Government Code § 3304).
In the event that an investigation cannot be completed within one year of discovery, the assigned investigator or supervisor shall ensure that an extension or delay is warranted within the exceptions set forth in Government Code § 3304(d) or Government Code § 3508.1. 5 Alameda Police Department
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Each personnel complaint shall be classified with one of the following dispositions:
Unfounded - When the investigation discloses that the alleged acts did not occur or did not involve department members. Complaints that are determined to be frivolous will fall within the classification of unfounded (Penal Code § 832.8).
Exonerated - When the investigation discloses that the alleged act occurred but that the act was justified, lawful and/or proper.
Not sustained - When the investigation discloses that there is insufficient evidence to sustain the complaint or fully exonerate the member.
Sustained - A final determination by an investigating agency, commission, board, hearing officer, or arbitrator, as applicable, following an investigation and opportunity for an administrative appeal pursuant to Government Code § 3304 and Government Code § 3304.5 that the actions of an officer were found to violate law or department policy (Penal Code § 832.8).
If an investigation discloses misconduct or improper job performance that was not alleged in the original complaint, the investigator shall take appropriate action with regard to any additional allegations.
1020.6.5 ADMINISTRATIVE INVESTIGATION FORMAT
Formal investigations of personnel complaints shall be thorough and complete. The memorandum format should start with a list of pertinent information, including, but not limited to: Dates/ Times Occurred, Date/Time Reported, Location of Incident, Complainant, Allegations, Subject Employee(s), Witness Employee(s), Other Witnesses, Attorney(s), and Connected Report. The body of the investigation should essentially follow this format:
Summary: Provide a brief summary of the facts giving rise to the investigation.
Investigation: Give a detailed, chronological account of the investigative steps taken. Include observations made from evidence examinations and comprehsive summaries from all interviews.
Use sub-headings to separate sections of the investigation when appropriate.
Findings: For every subject employee, address each allegation separately by assigning an appropriate disposition based on the investigation and evidence. Summarize all evidence relevant to the allegation in support of the disposition.
Recommendations: If applicable, and when appropriate, provide a recommendation regarding further action or disposition.
Attachments: Provide a list of all exhibits referenced in and attached to the investigation, including documents, photos, recordings, etc.
1020.6.6 NOTICE TO COMPLAINANT OF INVESTIGATION STATUS The member conducting the investigation should provide the complainant with periodic updates on the status of the investigation, as appropriate.
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Published with permission by Alameda Police Department ***DRAFT*** Personnel Complaints - 7 1020.7 ADMINISTRATIVE SEARCHES
Assigned lockers, storage spaces and other areas, including desks, offices and vehicles, may be searched as part of an administrative investigation upon a reasonable suspicion of misconduct.
Such areas may also be searched any time by a supervisor for non-investigative purposes, such as obtaining a needed report, radio or other document or equipment.
Lockers and storage spaces may only be administratively searched in the member's presence, with the member’s consent, with a valid search warrant or where the member has been given reasonable notice that the search will take place (Government Code § 3309). 1020.7.1 DISCLOSURE OF FINANCIAL INFORMATION
An employee may be compelled to disclose personal financial information under the following circumstances (Government Code § 3308):
(a) Pursuant to a state law or proper legal process
(b) Information exists that tends to indicate a conflict of interest with official duties (c) If the employee is assigned to or being considered for a special assignment with a potential for bribes or other improper inducements
1020.8 ADMINISTRATIVE LEAVE
When a complaint of misconduct is of a serious nature, or when circumstances indicate that allowing the accused to continue to work would adversely affect the mission of the Alameda Police Department, the Chief of Police or the authorized designee may temporarily assign an accused employee to administrative leave. Any employee placed on administrative leave:
(a) May be required to relinquish any department badge, identification, assigned weapons and any other department equipment.
(b) Shall be required to continue to comply with all policies and lawful orders of a supervisor.
(c) May be temporarily reassigned to a different shift, generally a normal business-hours shift, during the investigation. The employee may be required to remain available for contact at all times during such shift, and will report as ordered. 1020.9 RETENTION OF PERSONNEL INVESTIGATION FILES
All personnel complaints shall be maintained in accordance with the established records retention schedule and as described in the Personnel Records Policy. 1020.10 PROBATIONARY EMPLOYEES AND OTHER MEMBERS
At-will and probationary employees and those members other than non-probationary employees may be released from employment for non-disciplinary reasons (e.g., failure to meet standards) without adherence to the procedures set forth in this policy or any right to appeal. However, any probationary officer subjected to an investigation into allegations of misconduct shall be entitled 7 Alameda Police Department
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Published with permission by Alameda Police Department ***DRAFT*** Personnel Complaints - 8 to those procedural rights, as applicable, set forth in the POBR (Government Code § 3303; Government Code § 3304).
At-will, probationary employees and those other than non-probationary employees subjected to discipline or termination as a result of allegations of misconduct shall not be deemed to have acquired a property interest in their position, but shall be given the opportunity to appear before the Chief of Police or authorized designee for a non-evidentiary hearing for the sole purpose of attempting to clear their name or liberty interest. There shall be no further opportunity for appeal beyond the liberty interest hearing and the decision of the Chief of Police shall be final. 1020.11 POST-DISCIPLINE APPEAL RIGHTS
Non-probationary employees have the right to appeal a suspension without pay, punitive transfer, demotion, reduction in pay or step, or termination from employment. The employee has the right to appeal using the procedures established by any collective bargaining agreement, Memorandum of Understanding and/or personnel rules.
In the event of punitive action against an employee covered by the POBR, the appeal process shall be in compliance with Government Code § 3304 and Government Code § 3304.5.
During any administrative appeal, evidence that an officer has been placed on a Brady list or is otherwise subject to Brady
restrictions may not be introduced unless the underlying allegations of misconduct have been independently established. Thereafter, such Brady evidence shall be limited to determining the appropriateness of the penalty (Government Code § 3305.5). 1020.12 RESIGNATIONS/RETIREMENTS PRIOR TO DISCIPLINE
In the event that a member tenders a written resignation or notice of retirement prior to the imposition of discipline, it shall be noted in the file. The tender of a resignation or retirement by itself shall not serve as grounds for the termination of any pending investigation or discipline (Penal Code § 13510.8).
1020.13 PRE-DISCIPLINE EMPLOYEE RESPONSE
The pre-discipline process is intended to provide the accused employee with an opportunity to present a written or oral response to the Chief of Police after having had an opportunity to review the supporting materials and prior to imposition of any recommended discipline. The employee shall consider the following:
(a) The response is not intended to be an adversarial or formal hearing. (b) Although the employee may be represented by an uninvolved representative or legal counsel, the response is not designed to accommodate the presentation of testimony or witnesses.
(c) The employee may suggest that further investigation could be conducted or the employee may offer any additional information or mitigating factors for the Chief of Police to consider.
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Published with permission by Alameda Police Department ***DRAFT*** Personnel Complaints - 9 (d) In the event that the Chief of Police elects to cause further investigation to be conducted, the employee shall be provided with the results prior to the imposition of any discipline.
(e) The employee may thereafter have the opportunity to further respond orally or in writing to the Chief of Police on the limited issues of information raised in any subsequent materials.
1020.14 POST-ADMINISTRATIVE INVESTIGATION PROCEDURES
Upon completion of a formal investigation, an investigation report should be forwarded to the Chief of Police through the chain of command. Each level of command should review the report and include his/her comments in writing before forwarding the report. The Chief of Police may accept or modify any classification or recommendation for disciplinary action. 1020.14.1 CHIEF OF POLICE RESPONSIBILITIES
Upon receipt of any written recommendation for disciplinary action, the Chief of Police shall review the recommendation and all accompanying materials. The Chief of Police may modify any recommendation and/or may return the file to the Bureau Commander for further investigation or action.
Once the Chief of Police is satisfied that no further investigation or action is required by staff, the Chief of Police shall determine the amount of discipline, if any, that should be imposed. In the event disciplinary action is proposed, the Chief of Police shall provide the member with a pre- disciplinary procedural due process hearing (Skelly) by providing written notice of the charges, proposed action and reasons for the proposed action. Written notice shall be provided within one year from the date of discovery of the misconduct (Government Code § 3304(d)). The Chief of Police shall also provide the member with:
(a) Access to all of the materials considered by the Chief of Police in recommending the proposed discipline.
(b) An opportunity to respond orally or in writing to the Chief of Police within five days of receiving the notice.
1. Upon a showing of good cause by the member, the Chief of Police may grant a reasonable extension of time for the member to respond.
2. If the member elects to respond orally, the presentation may be recorded by the Alameda Police Department. Upon request, the member shall be provided with a copy of the recording.
Once the member has completed his/her response or if the member has elected to waive any such response, the Chief of Police shall consider all information received in regard to the recommended discipline. The Chief of Police shall render a timely written decision to the member and specify the grounds and reasons for discipline and the effective date of the discipline. Once the Chief of Police has issued a written decision, the discipline shall become effective. 9 Alameda Police Department
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Published with permission by Alameda Police Department ***DRAFT*** Personnel Complaints - 10 1020.14.2 DIVISION COMMANDER RESPONSIBILITIES
Upon receipt of any completed personnel investigation, the Bureau Commander of the involved member shall review the entire investigative file, the member's personnel file and any other relevant materials.
The Bureau Commander may make recommendations regarding the disposition of any allegations and the amount of discipline, if any, to be imposed.
Prior to forwarding recommendations to the Chief of Police, the Bureau Commander may return the entire investigation to the assigned investigator or supervisor for further investigation or action.
When forwarding any written recommendation to the Chief of Police, the Bureau Commander shall include all relevant materials supporting the recommendation. Actual copies of a member's existing personnel file need not be provided and may be incorporated by reference. 1020.14.3 NOTICE REQUIREMENTS
The disposition of any civilian’s complaint shall be released to the complaining party within 30 days of the final disposition. This release shall not include what discipline, if any, was imposed (Penal Code § 832.7(f)).
1020.14.4 NOTICE OF FINAL DISPOSITION TO THE COMPLAINANT The Chief of Police or the authorized designee shall ensure that the complainant is notified of the disposition (i.e., sustained, not sustained, exonerated, unfounded) of the complaint (Penal Code § 832.7(f)).
1020.15 CRIMINAL INVESTIGATION
Where a member is accused of potential criminal conduct, a separate supervisor or investigator shall be assigned to investigate the criminal allegations apart from any administrative investigation.
Any separate administrative investigation may parallel a criminal investigation.
The Chief of Police shall be notified as soon as practicable when a member is accused of criminal conduct. The Chief of Police may request a criminal investigation by an outside law enforcement agency.
A member accused of criminal conduct shall be advised of his/her constitutional rights (Government Code § 3303(h)). The member should not be administratively ordered to provide any information in the criminal investigation.
The Alameda Police Department may release information concerning the arrest or detention of any member, including an officer, that has not led to a conviction. No disciplinary action should be taken until an independent administrative investigation is conducted. 1020.16 REQUIRED REPORTING TO POST
The Chief of Police or the authorized designee shall notify POST on the appropriate POST form within 10 days of certain officer personnel events, including but not limited to (Penal Code § 13510.9):
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Published with permission by Alameda Police Department ***DRAFT*** Personnel Complaints - 11 (a) Termination or separation from employment or appointment. Separation from employment or appointment includes any involuntary termination, resignation, or retirement.
1. A POST affidavit-of-separation form shall be executed and maintained by the Alameda Police Department and submitted to POST as required by Penal Code § 13510.9 and 11 CCR 1003.
(b) Events that could affect an officer's POST certification, such as:
1. Complaints, charges, or allegations of misconduct serious misconduct (as defined by Penal Code § 13510.8).
2. Findings of civilian review boards boards.
3. Final dispositions of any investigations investigations.
4. Civil judgments or court findings based on conduct, or settlement of a civil claim against an officer or the Alameda Police Department based on allegations of conduct by an officer officer.
The Chief of Police or the authorized designee shall be responsible for providing POST access to or duplication of investigation documentation (e.g., physical or documentary evidence, witness statements, analysis, conclusions) for up to two years after reporting of the disposition of an investigation (Penal Code § 13510.9).
1020.16.1 NOTIFICATIONS TO POST FOR SERIOUS MISCONDUCT The Chief of Police or the authorized designee shall report allegations of serious misconduct by an officer to POST and the report shall include the following (11 CCR 1207):
(a) Name of the Alameda Police Department
(b) Administrative case number
(c) Name, current address, and phone number of the complainant, if available (d) Name, POST ID, current address, and phone number of the involved officer (e) A summary of the alleged misconduct including:
1. A narrative of the allegations
2. Date and time of incidents
3. Location of occurrence
4. Any witness information, if available
5. Summary of arrest or indictment of involved officer
(f) A change in employment status of the involved officer (e.g., administrative leave, suspension, termination)
(g) Name and contact information of the assigned investigator The Chief of Police or the authorized designee shall provide updates of the investigation to POST every 90 days until the final disposition in the method designated by POST (11 CCR 1207). 11 Alameda Police Department
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Published with permission by Alameda Police Department ***DRAFT*** Personnel Complaints - 12 Upon completion of the investigation, the Chief of Police or the authorized designee shall submit to POST the final disposition of the investigation as well as investigation materials and the officer's service record as provided by 11 CCR 1207.
1020.16.2 ADDITIONAL NOTIFICATIONS TO POST FOR SERIOUS MISCONDUCT Additional notification shall be made to POST (11 CCR 1207):
(a) If the imposed disciplinary action is pending appeal or other review through an administrative or judicial proceeding:
1. The Alameda Police Department shall provide the name of the body conducting the proceeding.
2. The status of the proceeding, if known.
(b) If criminal charges are pending:
1. The name of the court having jurisdiction over the criminal charges against the officer.
2. The status of the criminal case, if known.
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