INTERNAL INVESTIGATIONS Wayne Evans, FSA General Counsel March 15, 2018

Garrity Warnings Administrative investigations Subject of investigation – sworn or non-sworn Fifth Amendment protection

Bill of Rights Administrative and criminal investigations Law enforcement and corrections officers: full-time Sections 112.531 – 112.534, Fla. Stat.

Bill of Rights Interrogation which could lead to discipline. Record interviews. Right to representative. Right to review complaint statements. 180 days to complete investigation. Investigations to inquiries. Interview witnesses first.

Bill of Rights The Initial statement of an officer relates to the investigation of the duty-related incident rather than propriety of officer’s conduct. Therefore, the Bill of Rights does not apply. AGO 90-65

Bill of Rights Statements relating to preservation of crime scene, identification of suspects and witnesses or brief explanation of what occurred, assist in determining agency’s course of conduct in the investigation of the incident. AGO 90-65

Investigations Compliance with Bill of Rights. Investigating Officer must attest to compliance. Attestation clause must be included at conclusion of report.

Deadlines 45 days – presumed inactive; extension may be requested. 180 days to complete investigation. Proposed discipline with 180 days of notice of misconduct. Exceptions – tolling of time period: Waiver by officer. Pending criminal investigation. Officer incapacitated or unavailable. Coordination of other agencies in multi-jurisdictional investigation. State of emergency declared by Governor.

Deadlines Reopening investigation. Significant new evidence. Evidence could not reasonably be discovered previously. Evidence results from officer’s pre-disciplinary response. Disciplinary action completed within 90 days of reopening investigation.

Notice of Proposed Discipline State policies violated. Factual basis. Recommended discipline. Length of any suspension.

Investigative Interview To be provided to deputy immediately prior to interview. All statements : Written, audio, video. Subject officer statements. Incident reports. GPS locator information. All other existing evidence.

Violation of Bill of Rights Notice to investigator. Opportunity to cure. Second notice re: violation Interview ceases pending review.

Compliance Review Panel 3 members: Same discipline ( C.O. or L.E.O.) Any agency in county of S.O. Confidentiality continues. Violation(s) reviewed, not discipline 10 days to conduct hearing unless agreement to delay.

Compliance Review Panel Deputy has burden of proving intentional violation. Preponderance of evidence. Written decision.

Compliance Review Board Consequence of intentional violation. Investigator removed from investigation. Internal investigation re: intentional violation. CJSTC notified of sustained violation.

Compliance Review Board F.O.P. v. City of Gainesville, 148 So. 3d 798 (Fla. 1st DCA 2014) Compliance review panel not available after investigation is complete and officers notified of proposed discipline.

Effective Investigations Avoid “pre-interviews”. Questions – Who? What? When? Where? Why? Avoid opinions, observations.

Effective Investigations Ask for relevant information, witnesses. Summaries – balanced? Re-interview if new charges arise.

Polygraphs Polygraph cannot be required. Polygraph may be voluntary. Farmer v. City of Ft. Lauderdale. 427 So. 2d 187 (Fla. 1983). Polygraph may be voluntary. Credibility & policy violations should not be based solely on results

Investigation by Non-Employing Agency Miami-Dade County v. Dade County Police Benevolent Ass’n, 154 So. 3d 373 (Fla. 3d DCA 2014) Bill of Rights requires internal investigation by employing agency Non-employing agency can conduct an audit or fact- finding that is not intended for disciplinary purposes

Liberty Interest Violation (1) false statement (2) of a stigmatizing nature (3) attending discharge (4) made public (5) by public employer (6) without a meaningful opportunity for employee name clearing. Buxton v. Plant City, 871 F.2d 1037, 1046 (11th Cir. 1989)

Liberty Interest Investigation completed post-termination: (1) offer opportunity to be interviewed (2) send completed investigation to employee and allow written response

Liberty Interest Post-termination comments defamatory to employee may violate liberty interest rights.

Voluntary Resignations Factors to be considered in determining if resignation was voluntary or coerced: (1) whether employee understood consequences of decision (2) time allotted to decide (3) whether employee had a choice about effective date (4) whether decision was made with advice of counsel Hargray v. City of Hallandale, 57 F. 3d 1560, 1567 (11th Cir. 1995)

Voluntary Resignation Employee’s resignation when she learned that she likely would be terminated due to investigation which sustained conduct unbecoming and untruthfulness charges held to be voluntary. Rademakers v. Scott, 350 Fed. Appx. 408 (11th Cir. 2009)

Any Questions?

WAYNE EVANS, Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, FL 32303 850.561.3503 – Phone 850.561.0332 revans@anblaw.com