AGENDA
ITEM
11 BEB CITY COUNCIL
CALEXICO
AGENDA STAFF REPORT
DATE: July 5, 2023
TO: Mayor and City Council
APPROVED BY: Esparanz chain Weren, it Manager at ali u
PREPARED BY: Victor Legaspi, Interim Chief of Police (l REVIEWED BY: Sandra L. Fonseca, Interim Finance Director SUBJECT: Approval of Inclusion of Additional Updated Fee Schedule to Original Agreement for Professional Services between the City of Calexico and Norman A. Traub & Associates for the Calexico Police Department Approved by City Council on April 24, 2023
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Recommendation:
Approval of Inclusion of Additional Updated Fee Schedule to Original Agreement for Professional Services between the City of Calexico and Norman A. Traub & Associates for the Calexico Police Department Approved by City Council on April 24, 2023.
Background:
On April 20, 2023, the City Council approved a Professional Services Agreement Norman A.
Traub to assist the Calexico Police Department to reduce public concern regarding high-profile incidents.
Discussion and Analysis:
On May 15, 2023, Norman A. Traub submitted a request to the Police Department increasing their consulting fees as follows:
• Consultant's services is $200 per hour plus reasonable expenses. • Provide testimony at a post-investigation hearing, deposition, or trial, the tee is $275 per hour (four hours minimum) plus reasonable AGENDA expenses. The City may place the investigator "on call" for a trial, ITEM deposition, or hearing. In that case, the Consultant shall be compensated for four hours per day at $150 per hour for each of the days that the investigator is directed to be "on call." It is requested that City Council authorize the increase in fees per the attached fee schedule.
Fiscal Impact:
Additional Consulting Fee Costs depending on the amount of hours plus reasonable expenses.
Coordinated With:
None.
Attachments):
1. Letter from Norman A. Traub dated May 15, 2023 with new fee schedule. . Agenda Staff Report - April 20, 2023 Item No. 11.
3. Agreement with Norman A. Traub approved on April 20, 2023. 2 NATA
NORMAN A. TRAUB & ASSOCIATES LLe
Workplace Investigators
CONSULTING AGREEMENT
WORKPLACE INVESTIGATION
THIS CONSULTING AGREEMENT (Agreement") is made and entered into as of May 15, 2023 by and between the City of Calexico ("City") and Norman A. Traub Associates LLC ("Consultant).
RECITALS
The City seeks to engage Consultant to perform Administrative investigations and complete fact-finding regarding allegations of misconduct by city employees.
The Consultant is fully qualified by virtue of his knowledge, experience, licensure, and background to perform the services.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained, the parties agree as follows:
1. Duties. The City hereby agrees to engage the services of Consultant to conduct fact- finding investigations of certain issues. Services shall be confined to the Scope of Services absent written authorization from the City to expand the scope to include additional matters. The consultant shall assign a licensed Private Investigator or Attorney to serve as the investigator.
The City shall provide Consultant with all necessary background information and documents necessary to perform the services, all of which shall remain the property of the City and be returned to the City upon completion of the project. Consultant's report shall be the property of the City to do with as it pleases, and Consultant shall retain no copyright, ownership or other interest in the report upon its submittal to the City.
Consultant shall submit its report to a person designated by the City. Consultant shall maintain as confidential and not disclose to any third party the work product associated with its investigation hereunder.
2. Term.
A. The term of this Agreement shall commence on May 14, 2023. 2625 Townsgate Road Suite 330, Westlake Village, CA. 91361 714-693-3428 www.normtraubassociates.com Email: [email protected] Ca. Private Investigator License 188615
NATA
NORMAN A. TRAUB & ASSOCIATES uLC
Workplace Investigators
B. Nothing in this agreement shall prevent, limit or otherwise interfere with he right of the City, acting through the City's representative or Consultan o terminate this Agreement at any time, with or without cause
3. Compensation. The City agrees to pay Consultant for its services rendered pursuant hereto.
• Investigator services: $200.00 per hour, plus expenses. • Attorney Investigator services $250.00 to $320.00 per hour, plus expenses. • Post investigation hearings, trials, depositions, etc., subpoenaed or requested in writing by the client or if subpoenaed by any party to the investigation, the compensation shall be at $275.00 per hour, four hours minimum plus expenses. When the Investigator is placed in an On-Call status, the fee is $150.00 per hour, a four-hour minimum.
• Surveillances: $120.00 per hour, plus expenses.
Documented expenses include mileage (IRS rate), Portal to Portal travel time, postage, copy services, transcriptions services, report proof service (Approx. $75.00 an hour for normal turnaround and $180 per hour for rush processing), auto rental, and lodging.
Out of area travel requiring lodging, airfare, and travel expenses will be approved in advance by and all travel expenses will comply with agency policy and guidelines. All expenses will be invoiced at direct cost with no mark-up. Invoices will include supporting document (s) reflecting the cost.
Cost estimates for digital forensics can vary greatly. NATA investigators will obtain authorization prior to securing forensic analysis or any other unexpected expense.
4. Independent Contractor Status/Method of Performing Services. The parties to this Agreement agree that Consultant is an independent contractor in business for itself, and that the City is but one of a number of clients for whom Consultant provides professional services. The City is interested only in the results achieved by Consultant.
Consultant will determine the method, details and means of performing the services required by this Agreement.
Service-Related Injury Income Protection. The City and Consultant agree that neither Consultant nor any of its officers or employees is an employee of the City and are not covered by the City's worker's compensation insurance policy. 2625 Townsgate Road Suite 330, Westlake Village, CA. 91361 714-693-3428 www.normtraubassociates.com Email: [email protected] Ca. Private Investigator License 188615
NATA
NORMAN A. TRAUB & ASSOCIATES LIC
Workplace Investigators
6. Payments or Withholding. Consultant shall be solely responsible for all contributions, payments, or withholdings normally made on behalf of an employee including but not limited to, state and federal income taxes, federal social security contributions, California State Disability insurance taxes, and unemployment insurance contributions. The City shall issue Consultant a Form 1099 in connection with the compensation paid hereunder, and Consultant shall pay all required taxes on amounts paid hereunder. Consultant shall indemnify and hold harmless the City, its officers, agents and employees from and against all taxes, penalties, assessments and, interest asserted against Consultant by reason of nonpayment by Consultant of legally due taxes.
Insurance. Consultant shall at its own cost and expense procure and maintain in effect a policy of commercial general liability insurance with $1 million coverage, a policy of errors and omissions insurance, and the investigator shall provide proof of auto insurance in the amount of $1,000,000/$5.000,000 coverage upon request of the City.
These policies shall name City, the Successor Agency to the Former Redevelopment Agency of the City of Calexico, the City Council and each member thereof, members of boards and commissions, every officer agent official, employee and volunteer as additional insureds.
8. Liability. The City agrees to indemnify, hold harmless and defend at its expense, Consultant from any and all claims, actions, losses, damages, charges, expenses or attorney's fees to which Consultant may be subject to arising out of or resulting from the City's use of the report prepared by Consultant pursuant to this Agreement.
Notwithstanding the foregoing, the City's obligation under this Section 8 shall not apply to any punitive or exemplary damages which may be awarded by a court against Consultant; nor shall this paragraph apply to liability incurred by Consultant for actions outside the scope of its services or which result from wrongful or malicious conduct or gross negligence, or through the use of any personal vehicle, all as to which Consultant shall indemnify and hold the City, its officers, agents and employees harmless.
9. Conflict of Interest. Consultant affirms and warrants that it has no financial, contractual or other interest or obligation that conflicts with or is harmful to the performance of its obligations under this Agreement. Consultant shall not during the term of this Agreement knowingly obtain such an interest or incur such an obligation. 2625 Townsgate Road Suite 330, Westlake Village, CA. 91361 714-693-3428 www.normtraubassociates.com Email: [email protected] Ca. Private Investigator License 188615
NATA
NORMAN A. TRAUB & ASSOCIATES LLC
10. Entire Agreement. This Agreement supersedes any and all other agreements, written or oral, between the parties, and contains all of the covenants and agreements between the parties. Each party acknowledges that no promises, representations, inducements or agreements, oral or otherwise, have been made by any party, or anyone acting on behalf of any party that are not embodied herein. No modification to this Agreement shall be effective unless reduced to writing and signed by both parties.
11. Notices. All Notices permitted or required under this Agreement shall be in writing, and shall be deemed made when delivered to the applicable party's representative as provided in this Agreement. Additionally, such notices may be given to the respective parties at the following addresses, or at such other addresses as the parties may provide in writing for this purpose.
Such notices shall be made when personally delivered or mailed forty-eight (48) hours after deposit in the U.S. mail, first-class postage prepaid, and addressed to the party at its applicable address.
CITY CONSULTANT.
City of Calexico Norman A. Traub & Associates
Police Department 2625 Townsgate Road
420 E 5th St, Westlake Village, CA 91361
Calexico, CA 92231
12. General Provisions
A. The text herein shall constitute the entire agreement between the parties.
B. If any provision or any portion hereof contained in this agreement is held to be unconstitutional, invalid or unenforceable the remainder of this agreement or portion thereof shall be deemed severable and shall not be affected and shall remain in full force and effect provided that the principal purpose of the Agreement is not thereby frustrated.
C. The City is entering into this Agreement by virtue of the professional reputation, experience and competence of Consultant. Hence, the obligations of Consultant 2625 Townsgate Road Suite 330, Westlake Village, CA. 91361 714-693-3428 www.normtraubassociates.com Email: [email protected] Ca. Private Investigator License 188615
NATA
NORMAN A. TRAUB & ASSOCIATES LIc
Workplace Investigators
under this Agreement shall not be assigned or subcontracted, nor shall the rights be delegated without prior written approval of the City.
D. The Consultant shall comply with and adhere to all City policies, rules and regulations, including but not limited to its policies regarding non-discrimination and sexual harassment.
. This Agreement shall be construed under the laws of the State o:
'alifornia. Executed as of the day and vear first above-writter CITY OF CALEXICO, NORMAN A. TRAUB & ASSOCIATES LLC
T. GulAr
By: T. Brock Avery
APPROVED AS TO FORM:
By:
2625 Townsgate Road Suite 330, Westlake Village, CA. 91361 714-693-3428 www.normtraubassociates.com Email: [email protected] Ca. Private Investigator License 188615
AGENDA
ITEM
11 CITY COUNCIL
CALEXICO
AGENDA STAFF REPORT
DATE: April 20, 2023
Mayor and City Council
REVIEWED BY: Sandra I. Fonseca, Interim Finance Director SUBJECT: Authorize City Manager to Sign an Agreement for Professional Services Between the City of Calexico and Norman A. Traub & Associates for the Calexico Police Department Personnel Investigations.
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Recommendation:
Authorize City Manager to Sign an Agreement for Professional Services Between the City of Calexico and Norman A. Traub & Associates for the Calexico Police Department Personnel Investigations.
Background:
Internal affairs investigations are law enforcement agency investigations into their officers' possible misconduct and/or criminal activity. Administrative internal affairs investigations focus on whether an officer has engaged in noncriminal work-related misconduct.
The Calexico Police Department takes seriously all complaints regarding the service provided by the Calexico Police Department and the conduct of its members. The Calexico Police Department will accept and address all complaints of misconduct in accordance with the Calexico Police Department Policy and Procedure and applicable to 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 AGENDA the community can report misconduct without concern for reprisal or ITEM retaliation.
Personnel complaints include any allegation of misconduct or improper job performance that, if true, would constitute a violation of department policy or federal, state, or local law, policy, or rule. Personnel complaints may be generated internally or by the public.
All complaints will be courteously accepted by any department member and promptly given to the appropriate supervisor. Although written complaints are preterred, 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. Upon contact with the complainant, the supervisor shall complete and submit a complaint form as appropriate.
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 the law or department policy (Penal Code § 832.8).
Discussion and Analysis:
There would be a time when a complaint would need to be investigated by an outside agency due to its nature. The external agency can help reduce public concern regarding high-profile incidents.
Norman A. Traub & Associates LLC(CONSULTANT) will be the outside agency investigating allegations of misconduct by an employee(s) of the contractor. The Consultant agrees to onduct an investigation and to report the findings to a person designated by the contractor. rder to avoid allegations of bias or influenced investigations, the Consultant shall not drav legal conclusions or provide recommendations regarding potential actions resulting from the investigation.
The investigator shall do the following:
• Meet with Police Department officials to finalize the scope of the investigation. • Distain alrely are lots prepared by linice panteen in tatements of • Interview complainant.
• Interview witnesses.
• Interview the subject of the investigation.
• Assess the credibility of the complainants), witnesses, and the subject. 2 • Digitally record all interviews, when possible, and transcribe all recordings. • Periodically communicate with the designated contact person(s) with updates/progress and other important issues.
• Conduct additional interviews and collect other relevant documents if necessary. • Prepare a fact-finding report.
The city attorney has reviewed the agreement of professional service.
Fiscal Impact
The fee for the Consultant's services is $160 per hour plus reasonable expenses. In the event that the Consultant (l.e., the investigator) is required (by any party in this matter) to provide testimony at a post-investigation hearing, deposition, or trial, the fee is $250 per hour (four hours minimum) plus reasonable expenses. The City may place the investigator "on call" for a trial, deposition, or hearing. In that case, the Consultant shall be compensated for four hours per day at $130 per hour for each day the investigator is directed to be "on call." The City shall be invoiced on a 30-day basis for all services the Consultant provides. Consultant shall be reimbursed for a business license if one is required.
The financial impact of an Internal Affairs Investigation it averages about $1,500.00.
The fee for the Consultant's services is $160.00 per hour plus reasonable expenses. In the event that the Consultant (i.e., the investigator) is required (by any party in this matter) to provide testimony at a post-investigation hearing, deposition, or trial, the fee is $250 per hour (four hours minimum) plus reasonable expenses. The city may place the investigator "on call" for a trial, deposition, or hearing. In that case, the Consultant shall be compensated for four hours per day at $130 per hour for each day the investigator is directed to be "on call." The City shall be invoiced on a 30-day basis for all services the Consultant provides. Consultant shall be reimbursed for a business license if one is required.
Coordinated With:
City Manager
City Attorney
Finance Department
Attachments):
• Norman A. Traub & Associates Memorandum
• Calexico Police Department Policy and Procedure 1010-Personnel Complaints 3 NORMAN A. TRAUB & ASSOCIATES uc
Workplace Investigation Specialists License Pl 28218
2625 Townsgate Road Suite 330, Westlake Village, CA. 91361 714-693-3428 website: www.normtraubassociates.com
Email: [email protected]
October 25, 2022
Jesus Serrano
Chief of Police
Calexico Police Department
420 E. 5 Street
Calexico, CA. 92231 REF: 22-86
Dear Chief Serrano,
Thank you for using our services to conduct a workplace investigation. The following is a draft of an agreement, which may be modified to meet the City's format and included as an exhibit.
The City of Calexico (CONTRACTOR) desires Norman A. Traub & Associates LLC(CONSULTANT) to conduct an investigation of allegations of misconduct by an employee(s) of the CONTRACTOR. CONSULTANT agrees to conduct an investigation and to report the findings to a person designated by the CONTRACTOR. In order to avoid allegations of bias or influenced investigations, the CONSULTANT shall not draw legal conclusions or provide recommendations regarding potential actions resulting from the investigation.
Dan Bressler, an independent contractor, shall conduct the investigation. Mr. Bressler is a licensed private investigator with the State of California. He is not an employee of the CONTRACTOR and is not entitled to Worker's Compensation benefits or any benefits afforded to employees of the CONTRACTOR.
CONSULTANT will provide the CONTRACTOR with a certificate of insurance with an endorsement naming the CONTRACTOR as additional insured.
CONSULTANT shall be responsible for any act of omission, errors or negligence on its part. It shall not be responsible for similar acts or inaction by the CONTRACTOR.
The investigation is limited to the specific Scope of Investigation. Other issues that may arise during the investigation shall be brought to the attention of the CONTRACTOR.
The Scope of the Investigation shall not be exceeded without written authorization from the CONTRACTOR.
1 NORMAN A. TRAUB & ASSOCIATES uLc
Workplace Investigation Specialists License PI 28218
2625 Townsgate Road Suite 330, Westlake Village, CA. 91361 714-693-3428 website: www.normtraubassociates.com
Email: [email protected]
SCOPE OF THE INVESTIGATION
CONTRACTOR has retained CONSULTANT to conduct an independent investigation to gather the facts regarding a Citizen's Complaint that a Police Department Sergeant violated Police Department policies regarding his findings in a complaint investigation, harassment of the complainant and his conduct during a citizen encounter at the Calexico Police Station.
The investigator shall:
• Meet with Police Department officials to finalize the scope of the investigation; • Obtain all relevant documents including: complaints, written statements of witnesses and reports prepared by Police Department officials; • Interview complainant;
• Interview witnesses;
• Interview the subject of the investigation;
• Assess the credibility of the complainant(s), witnesses and the subject; Digitally record all interviews, when possible, and transcribe all recordings; • Periodically communicate with the designated contact person(s) with updates/progress and other important issues;
• Conduct additional interviews and collect other relevant documents if necessary; • Prepare a fact-finding report.
Mr. Bressler shall submit a comprehensive written report. The report will provide an executive summary of the findings, the methodology used, a discussion of the evidence obtained, how credibility issues were resolved and detailed findings of the investigation.
The findings are limited to the points set forth above, in the section entitled "Scope of Investigation." The investigators shall not reach any legal conclusions, or speculate regarding the legal significance of any claim or defense, or make recommendations for discipline.
The CONTRACTOR and its Counsel are solely responsible for providing the legal analysis and advice necessary to respond to the investigative report.
The following terminology may be used (at the Contractor's discretion) to describe the findings of the investigations:
2 NORMAN A. TRAUB & ASSOCIATESuc
Workplace Investigation Specialists License PI 28218
2625 Townsgate Road Suite 330, Westlake Village, CA. 91361 714-693-3428 website: www.normtraubassociates.com
Email: [email protected]
Unfounded - The investigation clearly established that the allegation(s) is not true.
Exonerated - The investigation clearly established that the conduct occurred but did not violate agency policies.
Not Sustained -There is insufficient evidence to determine whether the alleged misconduct occurred.
Sustained - The alleged conduct occurred.
RATE SCHEDULE FOR INVESTIGATION SERVICES
The fee for Consultant's services is $160 per hour plus reasonable expenses. In the event that Consultant (i.e., the investigator) is required (by any party in this matter) to provide testimony at a post-investigation hearing, deposition or trial, the fee is $250 per hour (four hours minimum) plus reasonable expenses. The City may place the investigator "on call" for a trial, deposition or hearing. In that case, Consultant shall be compensated for four hours per day at $130 per hour for each of the days that the investigator is directed to be "on call." The City shall be invoiced on a 30-day basis for all services provided by Consultant. Consultant shall be reimbursed for a business license if one is required.
Either party with 30 days' advance notice to the other party may terminate this Agreement.
Approved by: Date: _
Title:
T. Brock Avery
General Manager
Norman A. Traub & Associates LLC
2625 Townsgate Road, Suite 330
Westlake Village, CA. 91361
3 Policy Calexico Police Department
1010 Calexico PD Policy Manual Revised December 2019
Personnel Complaints
1010.1 PURPOSE AND SCOPE
This policy provides guidelines for the reporting, investigation and disposition of complaints regarding the conduct of members of the Calexico 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. 1010.1 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 Calexico 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. 1010.2 POLICY
The Calexico Police Department takes seriously all complaints regarding the service provided by the Calexico Police Department and the conduct of its members.
The Calexico 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.
1010.3 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 Copyright Lexipo), LLC 2020/01/10, All Rights Reserved. Personnel Complaints - 638 Published with permission by Calexico Police Department Calexico Police Department
Calexico PD Policy Manual Revised December 2019
Personnel Complaints
considered a personnel complaint. Such inquiries generally include clarification regarding policy, procedures or the response to specific incidents by the Calexico Police Department. 1010.3.1 COMPLAINT CLASSIFICATIONS
Personnel complaints shall be classified in one of the following categories:
Informal - A matter in which the Shift Supervisor is satisfied that appropriate action has been taken by a supervisor of rank greater than the accused member.
Formal - A matter in 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 Internal Affairs 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 Internal Affairs Unit, such matters may be further investigated depending on the seriousness of the complaint and the availability of sufficient information. 1010.3.2 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. 1010.4 AVAILABILITY AND ACCEPTANCE OF COMPLAINTS
1010.4.1 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.
1010.4.1 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 Copyright Lexipol, LLC 2020/01/10, All Rights Reserved. Personnel Complaints - 639 Published with permission by Calexico Police Department Calexico Police Department
Calexico PD Policy Manual Revised December 2019
Personnel Complaints
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 his/her statement at the time it is filed with the Calexico Police Department (Penal Code § 832.7).
1010.4.3 AVAILABILITY OF WRITTEN PROCEDURES
The Calexico Police Department shall make available to the public a written description of the investigation procedures for complaints (Penal Code § 832.5). 1010.5 DOCUMENTATION
Supervisors shall ensure that all formal and informal complaints are documented on a complaint form. The supervisor shall ensure that the nature of the complaint is defined as clearly as possible.
All complaints and inquiries 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 Calexico Police Department should audit the log and send an audit report to the Chief of Police or the authorized designee.
1010.6 ADMINISTRATIVE INVESTIGATIONS
Allegations of misconduct will be administratively investigated as follows. 1010.6.1 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 Shift Supervisor 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 Copyright Lexipol, LLC 2020/01/10, All Rights Reserved. Personnel Complaints - 640 Published with permission by Calexico Police Department Calexico Police Department
Calexico PD Policy Manual Revised December 2019
Personnel Complaints
is at issue, a supervisor shall orally report the matter to the member's Division 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 Calexico Police Department receiving the complaint.
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 Shift Supervisor. (d) Ensuring that upon receipt of a complaint involving allegations of a potentially serious nature, the Shift Supervisor 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 Shift Supervisor for direction regarding their roles in addressing a complaint that relates to sexual, racial, ethnic or other forms of prohibited harassment or discrimination.
Forwarding unresolved personnel complaints to the Shift Supervisor, 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:
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.).
(i) Ensuring interviews of the complainant are generally conducted during reasonable hours.
1010.6.1 ADMINISTRATIVE INVESTIGATION FORMAT
Formal investigations of personnel complaints shall be thorough, complete and essentially follow this format:
Introduction - Include the identity of the members, the identity of the assigned investigators, the initial date and source of the complaint.
Synopsis - Provide a brief summary of the facts giving rise to the investigation.
Summary - List the allegations separately, including applicable policy sections, with a brief summary of the evidence relevant to each allegation. A separate recommended finding should be provided for each allegation.
Copyright Lexipol, LLC 2020/01/10, All Rights Reserved. Personnel Complaints - 641 Published with permission by Calexico Police Department Calexico Police Department
Calexico PD Policy Manual Revised December 2019
Personne/ Complaints
Evidence - Each allegation should be set forth with the details of the evidence applicable to each allegation provided, including comprehensive summaries of member and witness statements.
Other evidence related to each allegation should also be detailed in this section.
Conclusion - A recommendation regarding further action or disposition should be provided.
Exhibits - A separate list of exhibits (e.g., recordings, photos, documents) should be attached to the report.
1010.6.2 ADMINISTRATIVE INVESTIGATION PROCEDURES
Whether conducted by a supervisor or a member of the internal Affairs 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 Calexico 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. (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).
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 Copyright Lexipol, LLC 2020/01/10, All Rights Reserved Personnel Complaints - 642 Published with permission by Calexico Police Department Calexico Police Department
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of that recorded interview shall be provided to the member prior to any subsequent interview.
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.
() 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). 1010.6.4 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. 1010.6.5 DISPOSITIONS
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).
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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.
1010.6.6 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.
1010.7 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). 1010.7.1 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
1010.8 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 Calexico 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. 1010.11 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 Copyright Lexipol, LLC 2020/01/10, All Rights Reserved. Personnel Complaints - 644 Published with permission by Calexico Police Department Calexico Police Department
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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. 1010.11.1 DIVISION COMMANDER RESPONSIBILITIES
Upon receipt of any completed personnel investigation, the Division Commander of the involved member shall review the entire investigative file, the member's personnel file and any other relevant materials.
The Division 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 Division 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 Division 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. 1010.11.2 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 Division 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.
If the member elects to respond orally, the presentation may be recorded by the Calexico 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 Copyright Lexipol, LLC 2020/01/10, All Rights Reserved. Personnel Complaints - 645 Published with permission by Calexico Police Department Calexico Police Department
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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. 1010.11.3 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)).
1010.11.4 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)).
1010.11 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. 1010.12 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 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. 1010.13 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 Copyright Lexipol, LLC 2020/01/10, All Rights Reserved. Personnel Complaints - 646 Published with permission by Calexico Police Department Calexico Police Department
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of misconduct have been independently established. Thereafter, such Brady evidence shall be limited to determining the appropriateness of the penalty (Government Code § 3305.5). 1010.14 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.
(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.
1010.15 RETENTION OF PERSONNEL INVESTIGATION FILES
All personnel complaints shall be maintained in accordance with the established City of Calexico and Calexico Police Department records retention schedule and as described in the Personnel Records Policy.
Copyright Lexipol, LLC 2020/01/10, All Rights Reserved. Personnel Complaints - 647 Published with permission by Calexico Police Department NORMAN A. TRAUB & ASSOCIATES uc
Workplace Investigation Specialists License PI 28218
2625 Townsgate Road Suite 330, Westlake Village, CA. 91361 714-693-3428 website: www.normtraubassociates.com
Email: [email protected]
October 25, 2022
Jesus Serrano
Chief of Police
Calexico Police Department
420 E. s'" Street
Calexico, CA. 92231 REF: 22-86
Dear Chief Serrano,
Thank you for using our services to conduct a workplace investigation. The following is a draft of an agreement, which may be modified to meet the City's format and included as an exhibit.
The City of Calexico (CONTRACTOR) desires Norman A. Traub & Associates LLC(CONSULTANT) to conduct an investigation of allegations of misconduct by an employee(s) of the CONTRACTOR. CONSULTANT agrees to conduct an investigation and to report the findings to a person designated by the CONTRACTOR. In order to avoid allegations of bias or influenced investigations, the CONSULTANT shall not draw legal conclusions or provide recommendations regarding potential actions resulting from the investigation.
Dan Bressler, an independent contractor, shall conduct the investigation. Mr. Bressler is a licensed private investigator with the State of California. He is not an employee of the CONTRACTOR and is not entitled to Worker's Compensation benefits or any benefits afforded to employees of the CONTRACTOR.
CONSULTANT will provide the CONTRACTOR with a certificate of insurance with an endorsement naming the CONTRACTOR as additional insured.
CONSULTANT shall be responsible for any act of omission, errors or negligence on its part. It shall not be responsible for similar acts or inaction by the CONTRACTOR.
The investigation is limited to the specific Scope of Investigation. Other issues that may arise during the investigation shall be brought to the attention of the CONTRACTOR.
The Scope of the Investigation shall not be exceeded without written authorization from the CONTRACTOR.
1 NORMAN A. TRAUB & ASSOCIATES LL
Workplace Investigation Specialists License PI 28218
2625 Townsgate Road Suite 330, Westlake Village, CA. 91361 714-693-3428 website: www.normtraubassociates.com
Email: [email protected]
SCOPE OF THE INVESTIGATION
CONTRACTOR has retained CONSULTANT to conduct an independent investigation to gather the facts regarding a Citizen's Complaint that a Police Department Sergeant iolated Police Department policies regarding his findings in a complaint investigatior larassment of the complainant and his conduct during a citizen encounter at th Calexico Police Station.
The investigator shall:
• Meet with Police Department officials to finalize the scope of the investigation; • Obtain all relevant documents including: complaints, written statements of witnesses and reports prepared by Police Department officials; • Interview complainant;
• Interview witnesses;
• Interview the subject of the investigation;
• Assess the credibility of the complainant(s), witnesses and the subject; • Digitally record all interviews, when possible, and transcribe all recordings; • Periodically communicate with the designated contact person(s) with updates/progress and other important issues;
• Conduct additional interviews and collect other relevant documents if necessary; • Prepare a fact-finding report.
Mr. Bressler shall submit a comprehensive written report. The report will provide an executive summary of the findings, the methodology used, a discussion of the evidence obtained, how credibility issues were resolved and detailed findings of the investigation.
The findings are limited to the points set forth above, in the section entitled "Scope of Investigation." The investigators shall not reach any legal conclusions, or speculate regarding the legal significance of any claim or defense, or make recommendations for discipline.
The CONTRACTOR and its Counsel are solely responsible for providing the legal analysis and advice necessary to respond to the investigative report.
The following terminology may be used (at the Contractor's discretion) to describe the findings of the investigations:
2 NORMAN A. TRAUB & ASSOCIATES LIc
Workplace Investigation Specialists License PI 28218
2625 Townsgate Road Suite 330, Westlake Village, CA. 91361 714-693-3428 website: www.normtraubassociates.com
Email: [email protected]
Unfounded - The investigation clearly established that the allegation(s) is not true.
Exonerated - The investigation clearly established that the conduct occurred but did not violate agency policies.
Not Sustained -There is insufficient evidence to determine whether the alleged misconduct occurred
Sustained - The alleged conduct occurred.
RATE SCHEDULE FOR INVESTIGATION SERVICES
The fee for Consultant's services is $160 per hour plus reasonable expenses. In the event that Consultant (i.e.., the investigator) is required (by any party in this matter) to provide testimony at a post-investigation hearing, deposition or trial, the fee is $250 per hour (four hours minimum) plus reasonable expenses. The City may place the investigator "on call" for a trial, deposition or hearing. In that case, Consultant shall be compensated for four hours per day at $130 per hour for each of the days that the investigator is directed to be "on call." The City shall be invoiced on a 30-day basis for all services provided by Consultant. Consultant shall be reimbursed for a business license if one is required
Either party with 30 days advance notice to the other party may terminate this Agreement. 05/12/2073
Title: City Manager
T. bradfuy
T. Brock Avery
General Manager
Norman A. Traub & Associates LLC
2625 Townsgate Road, Suite 330
Westlake Village, CA. 91361
3