1. Instructor: Marylee Abrams October 7, 2015 * The information and materials presented are provided for educational and informational purposes only! They are not intended to constitute legal advice in any particular situation.

2. 1)True or False – There are no born leaders. 2)True or False – Formal authority does not make a person a leader. Leadership must be earned. 3)True or False – Leadership can be learned. © Abrams & Schmidt LLC 2015 & UMCPI 2015

3. “Being powerful is like being a lady. If you have to tell people you are, you aren’t.” © Abrams & Schmidt LLC 2015 & UMCPI 2015

6. Boss Drives employees Depends on authority Inspires fear Says, “I” Places blame for the breakdown Knows how it is done Uses people Takes credit Commands Says, “Go” Leader Coaches them Depends on goodwill Generates enthusiasm Says, “We” Fixes the breakdown Shows how it is done Develops people Gives credit Asks Says, “Let’s go”

7.  What are the major discipline/performance issues that law enforcement executives face today? © Abrams & Schmidt LLC 2015 & UMCPI 2015

8.  Honesty in official reports  Fabricating evidence  Embellishing testimony  Covering up misconduct  Improper use of force © Abrams & Schmidt LLC 2015 & UMCPI 2015

9.  Code of silence  Off-duty conduct  Lack of integrity  Unreliable investigations  Condoning or supporting improper behavior © Abrams & Schmidt LLC 2015 & UMCPI 2015

11. Accepting complaints is about building community trust. © Abrams & Schmidt LLC 2015 & UMCPI 2015

13. Intake ConcernComplaint Train Counsel Mentor Discuss Supervisory Files Administrative Criminal Minor Policy Serious Policy X ExternalInternal Mail - Phone In-person - Email Media Anonymous © Abrams & Schmidt LLC 2015 & UMCPI 2015

14. State Statutes Union Contracts Labor Law Federal Case Law Data Privacy Law Employment Law Departmental Policy/Procedures The Constitution Criminal Codes State Case Law Legal Framework © Abrams & Schmidt LLC 2015 & UMCPI 2015

15.  Garrity  Voluntary Statements  Weingarten  Loudermill  Tennessen © Abrams & Schmidt LLC 2015 & UMCPI 2015

16.  Enacted in 1991 (626.89).  Applies to all full and part-time officers.  Governs the questioning of officers during an IA investigation.  Does not apply to criminal cases.  Changed in the 2008 session to allow the union attorney and/or the personal attorney of the officer.  Before or during the interview, the subject officer may change their mind and invoke their right to representation. © Abrams & Schmidt LLC 2015 & UMCPI 2015

17.  Involved a 1967 New Jersey “ticket-fixing” investigation.  U. S. Supreme Court ruling that applies to all public employees. © Abrams & Schmidt LLC 2015 & UMCPI 2015

18. Employee Constitutional Rights Employer’s obligation to quickly & thoroughly investigate Rights of the Public © Abrams & Schmidt LLC 2015 & UMCPI 2015

19. A department may compel a statement from an officer under the threat of dismissal only if:  The officer is ordered to answer all questions under threat of disciplinary action.  Questions are specifically, directly and narrowly related to the officer’s duties or the officer’s fitness for duty.  The officer receives a guarantee the statement and the fruits of the statement cannot be used in subsequent criminal proceedings. © Abrams & Schmidt LLC 2015 & UMCPI 2015

20. An “order” to answer questions can be written, oral, or even implied. An employee is considered “ordered” to answer questions or write a report if:  The officer subjectively believes that he/she is compelled to give a statement upon threat of loss of job; and  The officer’s belief is objectively reasonable at the time the statement was made. © Abrams & Schmidt LLC 2015 & UMCPI 2015

21. Use Derivative Use Supreme Court ruled that Garrity provides use & derivative use immunity. However, State Courts are free to interpret their constitutions more broadly than the Federal constitution. © Abrams & Schmidt LLC 2015 & UMCPI 2015

22.  State v. Gault - Two Hennepin County deputies charged with misdemeanor assault. Minnesota Court of Appeals  Mogler v. City of Starbuck – Voluntary statements made by an officer are admissible in a criminal prosecution. © Abrams & Schmidt LLC 2015 & UMCPI 2015

23. POST Rule 6700.2200 – 6700.2600

24. © Abrams & Schmidt LLC 2015 & UMCPI 2015 Investigating Policy Violations I.A. Policy

25. BMS CASE: Teamsters Local #320 and City of Pequot Lakes - Arbitrator Jay C. Fogelberg #13PA 0706 © Abrams & Schmidt LLC 2015 & UMCPI 2015

26.  Planning the investigation  Notifications  Investigative Skills  Evidence  Interviews (Complainant, Officer Witnesses, Subject Officers)  Untruthfulness - Brady/Giglio © Abrams & Schmidt LLC 2015 & UMCPI 2015

27.  Workplace Searches  Report Writing  Report Structure  Finding of Fact  Data practices and the IA © Abrams & Schmidt LLC 2015 & UMCPI 2015

28. The Discipline Process © Abrams & Schmidt LLC 2015 & UMCPI 2015

29.  Procedural - how discipline is imposed - the process  Substantive - the reasons for taking disciplinary action. © Abrams & Schmidt LLC 2015 & UMCPI 2015

30. Procedural Due Process: © Abrams & Schmidt LLC 2015 & UMCPI 2015

31.  Advanced notice of the charges.  An opportunity to contest the charges.  An opportunity to be heard (put on a defense).  A final decision by an impartial decision maker. © Abrams & Schmidt LLC 2015 & UMCPI 2015

32. In the event a department decides to take discipline that will affect property/liberty rights of an employee, the employee must receive:  Written/oral notice of charges.  An explanation of employer’s evidence.  An opportunity to present his or her side of the story. © Abrams & Schmidt LLC 2015 & UMCPI 2015

33. General guidelines, two questions arise whenever a law enforcement officer has been disciplined:  Does the officer have a property or liberty interest in the job which has been affected by the disciplinary action?  If so, did the employer accord the officer the necessary procedural process prior to depriving the officer of the property interest. © Abrams & Schmidt LLC 2015 & UMCPI 2015

34. Substantive Due Process: © Abrams & Schmidt LLC 2015 & UMCPI 2015

35. All disciplinary action must be based on a defined set of behavioral standards which are:  Reasonable.  Communicated to all employees.  Capable of objective interpretation.  Related to agency goals and objectives.  Based on what is and is not acceptable behavior. © Abrams & Schmidt LLC 2015 & UMCPI 2015

36.  Notice of expected job behaviors.  Guidance for how to perform agency functions.  Set standards for employee evaluations.  Establish a culture of integrity and ethical standards.  Disciplinary standards and regimentation.  Advanced notice of what is acceptable and not acceptable. © Abrams & Schmidt LLC 2015 & UMCPI 2015

37.  The determination of whether individuals are entitled to due process through a property interest in their jobs is generally made through the concept of just cause. © Abrams & Schmidt LLC 2015 & UMCPI 2015

38. 1. Notice: Prior to the imposition of discipline, employee must have notice of rules and expectations. © Abrams & Schmidt LLC 2015 & UMCPI 2015

39. 2. Reasonable Rules and Orders  Cannot be inconsistent with CBA’s  Cannot be arbitrary or capricious © Abrams & Schmidt LLC 2015 & UMCPI 2015

40. 3. Investigation  Must be thorough  Must be timely  An opportunity to respond  Union Representation © Abrams & Schmidt LLC 2015 & UMCPI 2015

41. 4. Fair Investigation  Result must not be a forgone conclusion © Abrams & Schmidt LLC 2015 & UMCPI 2015

42. 5. Proof  Level of Proof ( substantial evidence)  More serious allegations = More proof required © Abrams & Schmidt LLC 2015 & UMCPI 2015

43. 6. Equal Treatment  Equal treatment must be balanced against just application © Abrams & Schmidt LLC 2015 & UMCPI 2015 Equal Treatment Just Application

44. 7. Penalty  Must be fair  Many factors to consider © Abrams & Schmidt LLC 2015 & UMCPI 2015

45. The Discipline © Abrams & Schmidt LLC 2015 & UMCPI 2015

49.  Deliberate  On-purpose  Planned  Calculated  Premeditated © Abrams & Schmidt LLC 2015 & UMCPI 2015

50.  What every employer should consider prior to making a disciplinary decision? © Abrams & Schmidt LLC 2015 & UMCPI 2015

52.  Need to maintain discipline and harmony.  Need to maintain and protect confidentiality.  Need to ensure proper performance of duty.  Need to ensure efficient operation of the agency. © Abrams & Schmidt LLC 2015 & UMCPI 2015

53.  Need to provide essential public service.  Need to protect the public.  Need to maintain public trust and confidence in the agency and employees. © Abrams & Schmidt LLC 2015 & UMCPI 2015

54. The Appropriate Penalty © Abrams & Schmidt LLC 2015 & UMCPI 2015

55. For updates on labor and employment law matters, visit our blog: www.minnesotalaboremploymentlawblog.com The information and materials presented are provided for educational and informational purposes only! They are not intended to constitute legal advice in any particular situation. © Abrams & Schmidt LLC 2015 & UMCPI 2015