Peace Officers Bill of Rights Guarantees Case Study Case study critique must be between 3–5 pages (not including the title, abstract, and reference pages)

Peace Officers Bill of Rights Guarantees Case Study Case study critique must be between 3–5 pages (not including the title, abstract, and reference pages) in current APA format and must discuss the major facts of the case. You must tell whether or not you believe the right decisions were made and why. Follow the guidelines listed below:

Identify the important facts in the case study.
What decisions were or were not made in the case study?
Do you believe the decisions or best practices were appropriate?
Discuss any alternative solutions to the problem and support those solutions with additional research (in other words, support your solution with similar cases).
Conclusion
Bibliography
Make sure each section is labeled appropriately (Facts, Decision, Alternative Solution, Conclusion).
Citation style: current APA
All papers must use the following format: Times New Roman, 12-point font, 1” margins from left to right and top to bottom, and double spaced.
Do not forget to review the grading rubric. Law Enforcement Executive Forum
March 2005 –Pp. 1-21
Peace Officers Bill of Rights Guarantees:
Responding to Union Demands with a Management Sanctioned Version
By Wayne W. Schmidt *
History
The genesis of a uniform internal investigative proc
e
du
r
el
a
wwa
st
hef
e
de
r
a
l“
Pol
i
c
e
Of
f
i
c
e
r
s
’Bi
l
lofRi
g
ht
s
”bi
l
l(
POBR)
,s
po
ns
o
r
e
dbyt
hel
a
t
eCong
r
e
s
s
ma
nMa
r
i
oBi
a
gg
i
(D-N.Y.) in the 1971-1972 session. Initially, the bill had over a hundred and twenty
cosponsors. Biaggi, who was wounded ten times during his 23 years of police service,
was the most decorated officer in the history of the NYPD. He was a champion of police
officer safety and occupational rights during his tenure in the Congress. [Note 1]
The bill was reintroduced repeatedly, but was not sent to the floor until 1991. In that
year it passed the U.S. Senate by a 55-to-43 margin but the House did not vote on the bill
before the session ended. By 1995, a revised and more inclusive version were sponsored
in the House and Senate. To mandate compliance by recipients of federal funding, the bill
would amend Title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.
Code§
37
81
)
.Cu
r
r
e
nt
l
yt
hePOBRbi
l
l
sa
r
ena
me
dt
he“
St
a
t
ea
ndLoc
a
lLa
w
Enforcement Discipline, Accountability,a
ndDuePr
o
c
e
s
sAc
t
,
”(
H.
R.
29
67a
ndS.1
27
7,
108th Cong.).
Although a federal version of the POBR has never passed both Houses of Congress, at
least 17 states and one province have enacted Bill of Rights laws: (1)Arizona (2003) §381101, (2) California (1976) Govt. Code §3301, (3) Delaware (1986) Code Ann. 11 §9200,
(4) Florida (1974) Stat. §112.531, (5) Illinois (1983, 2004) Compiled Stat. 50 ILCS 725,
(5) Kentucky Rev. Stat. Ann. §15.520, (6) Louisiana Revised Stat. §2531, (7) Maryland
(1972, 1994) Ann. Code Art. 27, §727-734, (8) Minnesota (1991) Stat. Ann. §626.89, (9)
Nevada (1983, 1989) Rev. Stat. §289.020, (10) New Mexico (1978) Stat. Ann. §29-14-4,
(11) Rhode Island (1976) Gen. Laws §42-28.6-2, (12) Tennessee (1989) Code §38-8-301,
(13) Texas (1997) Local Government Code §143.123, (14) Virginia (1978, 1991) Code
Ann. §9-1-502, (15) West Virginia (1990) Code §8-14A-1, (16)Wisconsin (1989, 1993)
1
Stat. §164.02, and the Canadian Province of Alberta (1990) Police Act/Police Service
Regulation 356/90 (1990).
In the last decade police unions in at least 10 states have attempted to enact a POBR,
including (1) Hawaii, S.B. 2986 (21st Leg. 2002); (2) Kansas, S.B. 214 (77th Leg. 1997);
(3) Massachusetts, H.B. 368 (182nd Leg. 1998); (4) Michigan, S.B. 25 (2001); (5)
Montana, S.B. 44 (1993); (6) North Dakota, S.B. 2368 (57th Leg. 2001); (7)
Pennsylvania, H.B. 376 (S. Res. 1073, 185th Leg. 2001); (8) South Carolina, H.B. 4498
(112th Leg., 1997 Sess.); (9) Utah, H.J.R. 9 §143 (54th Sess. 1999); and (10)
Washington, H.B. 1850 (54th Sess. 1995). [Note 2]
There is no harmony among state POBR versions. Some protect firefighters, deputy
sheriffs, corrections officers and police chiefs; others exclude some or all of those. A few
require members of a disciplinary hearing or appeal board to be sworn peace officers;
others do not. The laws can either supersede or be subordinate to collective bargaining
agreements. Specific rights and prohibitions that are codified in some states are not
mentioned in others.
Voluntary Adoptions
Concerned that similar legislation would pass in their states, two state associations of
chiefs of police drafted POBR provisions that management could live with. In 1990 the
Colorado Association of Chiefs of Police amended its Professional Standards (1986)
with revisions and additions that address the conduct of internal affairs investigations. In
1992 the Arizona Association of Chiefs of Police published a Model Policy regarding the
rights and responsibilities of law enforcement officers in internal investigations. It was
written in response to several legislative attempts to impose a union-sponsored version in
that state.
On this premise the chair of the Legislative Committee of the International
Association of Chiefs of Police appointed an Internal Affairs Legislation Subcommittee,
to draft a version of POBR law that management would find more acceptable. Although
t
he
r
ewa
sn
oi
mme
di
a
t
ei
nt
e
nt
i
ont
oha
v
et
heI
ACP’
sv
e
r
s
i
oni
nt
r
o
duc
e
di
nt
heCong
r
e
s
s
,
it would be available –as a reference document –in those states where POBR legislation
might be pending.
It should be noted that the final document, though unanimously approved by the
subcommittee, was never adopted by the IACP Legislative Committee itself. Divided by
a single vote difference, a majority of the full committee was so opposed to any POBR
legislation that it rejected the adoption of a management version, even if it was labeled a
“
s
pe
c
i
me
n”doc
ume
nt
.[
Not
e3]
Nevertheless, the work of the subcommittee stands, and the document has been sent to
a few state associations of chiefs of police that have been faced with union versions that
we
r
epe
ndi
ngi
nt
he
i
rs
t
a
t
el
e
g
i
s
l
a
t
ur
e
s
.Thed
oc
ume
n
tha
sbe
e
ni
na“
s
t
e
a
l
t
hmode
”f
o
r
over eight years –it exists, but has not been widely seen until now. It should be
2
remembered that many IACP members remain opposed to any POBR legislation, no
matter how balanced it might be.
As the chair of the Internal Affairs Legislation Subcommittee, I believed then and
now, that the document has value as an alternative to union-sponsored legislation. As the
IACP has learned, sometimes painfully, that uncompromising opposition can lead to
de
f
e
a
t
.[
Not
e4]TheSubc
ommi
t
t
e
e
’
sdoc
ume
ntf
ol
l
ows
,a
si
twa
sor
i
g
i
na
l
l
ywr
i
t
t
e
n.
First, a few comments on how it was written. [Note 5]
Content Philosophy
Americans are captivated by sports events, where one team or athlete wins and the
other team or athletes lose. A few managers view interaction with their subordinates in
the same competitive way. They concede no ground, contest all intrusions, and
concentrate on achieving total victory, even if it diminishes employee morale.
Although competitiveness is an innate trait that is difficult to restrain, the
subcommittee approached the content in a less confrontational way. It decided that it
would recognize employee rights and prohibit management practices based on the
following principles:
1. It would be a responsive statement. Personnel handbooks often address dozens of
topics. The document focused on the principal issues that have been raised in POBR
legislation.
2. Decisional law would be taken into account. If most courts or arbitrators had
generally recognized an enforceable employee right or invalidated a management
practice, the document embodied those holdings. Where courts have split on a right or
practice, the subcommittee offered optional provisions or guiding commentary. An
example is §10, the mandatory polygraph testing of employees, which has been struck
down by courts in a few states, and upheld in many others.
3. It would focus on fundamentals. The objective of a disciplinary investigation is to
gather facts in a nonbiased way. If the recognition of a right or the adoption of a practice
is unl
i
ke
l
yt
oi
mpa
i
rort
ounr
e
a
s
ona
bl
yde
l
a
yt
hei
nve
s
t
i
ga
t
i
v
epr
oc
e
s
s
,t
heuni
on’
s
position usually was accepted. An example was §5-C, allowing an employee to audiorecord an interview or to promptly provide him or her with an audio copy or transcript of
the interview.
4. It would be reasonable and balanced. Good personnel practices foster
professional behavior from management and employees. Harsh methods and arbitrary
practices can undermine morale. The fact that no court had yet imposed a restriction on a
management practice was not viewed as determinative. An example was §5-F, setting a
reasonable time limit on the duration of an uninterrupted interview session.
5. It would recognize alternative ways of implementation. The subcommittee was
3
cognizant that rights can be established by statute, charter amendment, ordinance,
personnel or civil service rules and through the collective bargaining process. [Note 6]
6. Civilians would be included within its purview. Many tasks that were
traditionally performed by commissioned peace officers are now fulfilled by civilian
employees. Community service officers may have the authority to issue traffic and
ordinance citations. The director of training and heads of other support divisions could be
unsworn. A retired or injured officer might continue to work as a reclassified civilian.
The lines are blurred, and if protections are afforded to some and not others, morale is
undermined and confusion in the disciplinary process can result, especially when the
incident giving rise to an investigation involves both classes of employees. This approach
differed from the usual POBR law.
7. It would cover both rights and responsibilities. Some rights are conferred on
individuals by the state; others are agreed to by employees and management. Both parties
have responsibilities to each other and to the communities they serve. Section 2, for
example, imposed an affirmative duty to report misconduct and to cooperate in intraagency investigations.
Rights and Responsibilities
of Law Enforcement Personnel
in Disciplinary Investigations
IACP Subcommittee on Internal Affairs Legislation
(1996)
Part One – Basic Rights, Responsibilities and Procedures
1.
2.
3.
4.
5.
6.
7.
8.
Definitions.
Duty to Cooperate and to Report Misconduct.
Time and Place of a Formal Interview.
Statement of the Reasons for a Formal Interview; Identity of
Complainants.
Conduct of Formal Interview Sessions.
Scientific and Financial Examinations.
Personnel Files: Access, Adverse Information and Dispositions.
Miscellaneous Provisions:
A. Arbitration
B. No Retribution
C. Confidentiality
D. Release of Photographs
E. Waivers
F. Immediate Obedience Required
G. Criminal Charges
H. Civil Claims
4
I. Tenure
Part Two – Optional Rights and Procedures
9. Right to Consult an Attorney or Union Representative.
10. Polygraph Examinations.
11. Right to be a Candidate for Public Office.
Prefatory Note
Thi
si
sas
pe
c
i
me
ndoc
ume
nt
,a
ndnota“
Mo
de
l
.
”I
ti
sa
s
s
ume
dt
ha
tt
he
r
ea
r
e
alternative policies and procedures that may be better suited for a particular agency or
state.
Method of Adoption
The procedures which follow can be enabled in a variety of ways, including (a) a state
s
t
a
t
ut
e
,(
b)a“
h
omer
ul
e
”or
di
na
nc
e
,(
c
)ac
i
v
i
ls
e
r
v
i
c
er
ul
e
,(
d)al
a
b
or
-management
“
Me
mor
a
nd
umofUnde
r
s
t
a
ndi
ng
,
”(
e
)pr
ovisions in a collectively bargained agreement,
(f) inclusion in an agency handbook or employee manual, or (g) an Executive Order. The
appropriate method of adoption depends on state law, historical labor practices and
political considerations that may be unique to each jurisdiction.
Method of Compilation
This Statement is in two parts. The first covers those basic rights and responsibilities
that (a) are generally accepted professional practices and/or (b) have been imposed by
“
ma
i
ns
t
r
e
a
m”c
our
tde
c
isions that have arisen in the course of due process appeals and
litigation. The second part contains optional practices or procedures that are operative
currently in some jurisdictions, but not others. They are treated separately because of
their eristic nature.
Part One – Basic Rights, Responsibilities and Procedures
1. Definitions
A.“
Ag
e
nc
y
”me
a
nst
hede
pa
r
t
me
ntoru
ni
tofg
ov
e
r
n
me
ntf
orwhi
c
ha
nof
f
i
c
e
ror
employee, as defined herein, provides occupational or professional services.
B.“
Cr
i
t
i
c
a
lI
nc
i
de
ntRe
por
t
”me
a
nsawr
i
t
t
e
nr
e
por
tr
e
qui
r
e
dt
obec
ompl
e
t
e
da
nd
submitted by an officer to his or her superiors (or written at the request of his or her
superiors) involving:
a. the death or serious injury of an officer, prisoner or suspect; or
b. the use of a firearm or impact weapon on a suspect, prisoner or other
person by the reporting officer or by a fellow officer, or
5
c. the death or injury of a third person during the course of an arrest or
while in pursuit of a fleeing suspect or prisoner, and
d. such other events or incidents designated as critical by the agency that
employs the reporting officer.
I
ti
nc
l
ude
ss
t
a
n
da
r
di
z
e
df
or
ma
tr
e
p
or
t
s(
s
uc
ha
sa
na
g
e
nc
y
’
s“
us
eoff
o
r
c
e
”r
e
por
t
)a
nd
nonstanda
r
di
z
e
dna
r
r
a
t
i
v
er
e
po
r
t
s(
s
uc
ha
sa
n“
i
nc
i
de
ntr
e
p
or
t
”
)
.
C.“
For
ma
lI
nt
e
r
v
i
e
w”me
a
nst
heq
ue
s
t
i
oni
ngo
ri
nt
e
r
r
og
a
t
i
onofa
no
f
f
i
c
e
ro
re
mpl
oy
e
e
as part of a Formal Investigation.
D.“
For
ma
lI
nv
e
s
t
i
ga
t
i
on”me
a
nst
hepr
oc
e
s
sofi
nv
e
s
t
i
g
a
t
i
ngac
ompl
a
i
nt or allegation of
serious misconduct, when the inquiry is ordered by a superior or a management
representative, and where the results might furnish the basis for disciplinary action
against an officer or employee.
E.“
I
nf
or
ma
lI
nt
e
r
v
i
e
w”me
a
nsame
e
t
i
ngbetween an officer or employee and a superior
for the purpose of learning facts or circumstances relating to an incident or event. It
i
nc
l
ude
st
heme
di
a
t
i
onofac
i
t
i
z
e
n’
sors
u
pe
r
v
i
s
or
’
smi
norc
ompl
a
i
nt
.
F.“
Of
f
i
c
e
r
”or“
e
mpl
oy
e
e
”me
a
nsa
nype
r
s
on,(
a
)who has been commissioned or
certified as a peace officer, whether compensated or not, or (b) any compensated civilian
employee of the agency that retains such peace officers, or (c) a civilian employee of the
parent entity who is permanently assigned to an agency that retains police officers.
“
Of
f
i
c
e
r
”d
oe
snoti
nc
l
udepr
i
v
a
t
e
l
ye
mpl
oy
e
ds
pe
c
i
a
lof
f
i
c
e
r
s
.“
Empl
oy
e
e
”doe
snot
include persons who are employed by private sector contractors that provide support
services to an agency or its parent governmental entity.
G.“
Se
r
i
o
usMi
s
c
on
duc
t
”me
a
nsa
na
c
t
,omi
s
s
i
onorot
he
rbe
ha
v
i
orwhi
c
hi
fpr
ov
e
d,
could result in (a) a disciplinary suspension of one or more days, or (b) a punitive
i
nt
e
r
r
upt
i
o
n,l
os
s
,
r
e
d
uc
t
i
on,
orr
e
s
t
r
i
c
t
i
onofa
no
f
f
i
c
e
r
’
spr
i
v
i
l
e
g
e
s
,r
ights or promotional
opportunities, or (c) an involuntary transfer, or (d) a demotion in rank, pay or status, or
(e) other diminution of compensation, or (f) termination.
Commentary
1. Application:Ca
l
i
f
or
ni
a
’
ss
t
a
t
ut
ei
nc
l
ude
sp
ol
i
c
ec
hi
e
f
s
,p
r
o
ba
tionary police officers
a
ndc
o
r
r
e
c
t
i
ona
lo
f
f
i
c
e
r
sb
ute
xc
l
ude
st
e
mpor
a
r
yof
f
i
c
e
r
sa
ndr
e
c
r
ui
t
s
.Fl
or
i
da
’
ss
t
a
t
ut
e
includes full-time state and municipal law enforcement and correctional officers but not
parttime officers or police chiefs. Deputy sheriffs are included within the procedural
protections but lack tenure and can be terminated without cause. The Maryland statute is
limited to officers with arrest powers and includes police chiefs and parttime officers.
The Minnesota and Nevada statutes cover all licensed full or parttime peace officers.
Virginia excludes chiefs of police and the Wisconsin act excludes state officers.
6
The Arizona Model Policy s
t
a
t
e
st
ha
t“
e
v
e
r
yf
ul
l
-time permanent non-supervisory
police employee has a property interest in continued employment which cannot be taken
wi
t
houtd
uepr
oc
e
s
sofl
a
w.
”Howe
v
e
r
,t
hepr
oc
e
du
r
e
ss
e
tf
or
t
hi
nt
hepol
i
c
ya
r
enot
r
e
s
t
r
i
c
t
e
da
nda
p
pl
yt
oa
ny“
e
mpl
oy
e
e
.
”
The Colorado Standards a
ppl
yt
oa
l
l“
pe
a
c
eof
f
i
c
e
r
s
.
”
These provisions apply to all peace officers, whether full or parttime, whether tenured
or nontenured, whether paid officers or volunteers, and includes the chief of the agency.
It includes court bailiffs and jailers who are peace officers. It excludes private sector
persons who possess a special-police commission — such as store and hotel detectives,
railroad special agents, bail bond enforcement agents, private process servers, etc. It also
a
ppl
i
e
st
o“
c
i
v
i
l
i
a
n”e
mpl
oy
e
e
s
,e
xc
e
ptt
hos
ewhoa
r
epa
i
dbypr
i
v
a
t
ec
ont
r
a
c
t
or
s
.
2. Triggering Events: Informal interviews are outside the scope of these provisions,
until such time as serious misconduct is suspected. Union leaders and their lawyers have
long maintained that a compelled written report can be as intrusive as a formal
int
e
r
r
og
a
t
i
on.Anof
f
i
c
e
r
’
sr
e
s
po
ns
e
si
nawr
i
t
t
e
nr
e
p
o
r
tc
a
nj
e
opa
r
di
z
ehi
so
rhe
rc
a
r
e
e
r
and expose him or her to civil liability in the same way as the answers to questions posed
in a formal interview. Written reports are addressed in Section 9 of the document, as an
optional right.
3. Included Penalties: These provisions follow court decisions that have recognized
that there may be a significant penalty associated with non traditional disciplinary action,
such as a transfer to an unpopular post or unit, the denial of a secondary employment
permit, a prohibition against desirable overtime assignments or an involuntary shift
c
ha
ng
et
ha
tdi
s
r
u
pt
sa
nof
f
i
c
e
r
’
sf
a
mi
l
yl
i
f
e
.J
us
ta
st
hee
xp
os
u
r
et
odi
s
c
i
pl
i
na
r
ya
c
t
i
oni
s
a part of the professional life of law enforcement and correctional personnel, they ought
to be subjected to adverse action only when basic due process has been fully accorded to
them.
4.Thede
f
i
ni
t
i
ono
fa“
c
r
i
t
i
c
a
li
nc
i
de
nt
”ma
ybeomi
t
t
e
di
fOpt
i
ona
lSe
c
t
i
on9i
sn
ot
included.
2. Duty to Report Misconduct and to
Cooperate with Intra-agency Investigations.
A. Every officer and employee has a duty to report promptly any and all information
concerning any acts or events which constitute serious misconduct, or a violation of state
or federal criminal laws, or a substantial conflict of interest, or a corrupt or fraudulent
transaction or practice, or any other serious abuse of office, when committed (a) by any
other officer or employee of his or her agency or its parent governmental entity, or (b)
any person having business dealings with that agency or the parent entity, or (c) by any
other person possessing peace officer powers [in this state].
The knowing failure of any officer or employee to report such acts or events shall be
7
cause for termination or such lesser sanctions that might be appropriately imposed.
Unless otherwise directed, the information shall be given in written format to the chief
executive of the agency, except that criminal matters may be referred directly to the
appropriate prosecutor.
An officer or employee who complies fully and promptly with the above reporting
requirements shall not be subject to any disciplinary or other adverse personnel action,
provided the allegations are reasonably believed to be true.
B. Every officer and employee has a duty to cooperate fully with an internal
investigation of misconduct, whether serious or minor, unless and until he or she
becomes a suspect in a criminal investigation. Absent such a focus, every officer and
employee must answer questions asked by a superior or investigator in a truthful and
forthright manner, without equivocating or otherwise attempting to avoid disclosure of
relevant information.
Commentary
“
Se
r
i
ousmi
s
c
ond
uc
t
”i
sde
f
i
ned in Section 1. The other activities contained in 2-A are
taken from N.Y. Executive Order No. 39 [Part IV-1] (1996) which is applicable to all
Executive Branch officers and employees. They parallel a similar provision in the
Arizona Model Policy [Part II-B] (1992).
3. Time and Place of a Formal Interview.
Whenever an officer or employee is under investigation for serious misconduct, and is
subjected to a formal interview at the request of management or a designated member of
his agency, the interview will be conducted under the following conditions:
A. It will be scheduled at a reasonable time, preferably when the officer …
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