instructor: marylee abrams october 7, 2015 * the information and materials presented are provided...
TRANSCRIPT
Instructor: Marylee AbramsOctober 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.
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.
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“Being powerful is like being a lady. If you have to tell people you are, you aren’t.”
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© Abrams & Schmidt LLC 2015 & UMCPI 2015
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”
What are the major discipline/performance issues that law enforcement executives face today?
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Honesty in official reports Fabricating evidence Embellishing testimony Covering up misconduct Improper use of force
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Code of silence Off-duty conduct Lack of integrity Unreliable investigations Condoning or supporting
improper behavior
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© Abrams & Schmidt LLC 2015 & UMCPI 2015
Accepting complaints is about building community trust.
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© Abrams & Schmidt LLC 2015 & UMCPI 2015
Intake
Concern Complaint
TrainCounselMentorDiscuss
SupervisoryFiles
Administrative Criminal
MinorPolicy
SeriousPolicy
X
External
Internal Mail - Phone
In-person - Email
Media
Anonymous
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StateStatutes
Union Contracts
Labor Law
Federal Case Law
Data Privacy
Law
EmploymentLaw
DepartmentalPolicy/Procedures
TheConstitution Criminal
CodesStateCase Law
Legal Framework
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Garrity Voluntary Statements Weingarten Loudermill Tennessen
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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.
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Involved a 1967 New Jersey “ticket-fixing” investigation.
U. S. Supreme Court ruling that applies to all public employees.
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EmployeeConstitutionalRights
Employer’sobligation to quickly & thoroughly investigate
Rights of the Public
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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.
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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.
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• 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.
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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.
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© Abrams & Schmidt LLC 2015 & UMCPI 2015
POST Rule 6700.2200 – 6700.2600
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InvestigatingPolicyViolations
I.A. Policy
BMS CASE: Teamsters Local #320 and City of Pequot Lakes - Arbitrator Jay C. Fogelberg #13PA 0706
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Planning the investigation Notifications Investigative Skills Evidence Interviews (Complainant, Officer Witnesses,
Subject Officers) Untruthfulness - Brady/Giglio
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Workplace Searches Report Writing Report Structure Finding of Fact Data practices and the IA
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The Discipline Process
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Procedural - how discipline is imposed - the process
Substantive - the reasons for taking disciplinary action.
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Procedural Due Process:
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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.
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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.
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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.
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Substantive Due Process:
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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.
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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.
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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.
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1. Notice:
Prior to the imposition of discipline, employee must have notice of rules and expectations.
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2. Reasonable Rules and Orders
Cannot be inconsistent with CBA’s Cannot be arbitrary or capricious
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3. Investigation
Must be thorough Must be timely An opportunity to respond Union Representation
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4. Fair Investigation
Result must not be a forgone conclusion
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5. Proof
Level of Proof ( substantial evidence) More serious allegations = More proof
required
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6. Equal Treatment
Equal treatment must be balanced against just application
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EqualTreatment
JustApplication
7. Penalty
Must be fair Many factors to consider
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The Discipline
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Deliberate On-purpose Planned Calculated Premeditated
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What every employer should consider prior to making a disciplinary decision?
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© Abrams & Schmidt LLC 2015 & UMCPI 2015
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.
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Need to provide essential public service. Need to protect the public. Need to maintain public trust and confidence
in the agency and employees.
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The Appropriate Penalty
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For updates on labor and employment law matters,
visit our blog:www.minnesotalaboremploymentlawblog.co
m
• 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