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Police Officer Discipline

Police Officer Discipline. Tim J. Cain, J.D., M.B.A., LL.M. ILEA Staff Attorney. Disciplining LEOs. Indiana Code §36-8-3-4 provides the framework for the discipline of law enforcement officers in Indiana. The 10 statutory bases for disciplining LEOs are:

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Police Officer Discipline

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  1. Police Officer Discipline Tim J. Cain, J.D., M.B.A., LL.M. ILEA Staff Attorney

  2. Disciplining LEOs Indiana Code §36-8-3-4 provides the framework for the discipline of law enforcement officers in Indiana. The 10 statutory bases for disciplining LEOs are: 1. Conviction in any court of a crime; 2. Neglect of duty;

  3. Disciplining LEOs 3. Violation of department SOPs; 4. Neglect or disobedience of orders; 5. Incapacity; 6. Absence without leave; 7. Immoral conduct;

  4. Disciplining LEOs 8. Conduct injuries to the public peace or welfare; 9. Conduct unbecoming an officer; and 10. Any other breach of discipline.

  5. Disciplining LEOs The one statutory reason that may NOT be used as a basis for LEO discipline: Politics!

  6. Disciplining LEOs I.C. §36-8-3-4(c): A chief or town marshal may suspend a LEO up to 5 days without pay. Any suspension without pay exceeding 5 days requires action by the safety board.

  7. Disciplining LEOs I.C. §36-8-10-11(b): A sheriff may suspend a LEO up to 15 days without pay. Any suspension without pay exceeding 15 days requires action by the merit board.

  8. Disciplining LEOs I.C. §36-8-10-11: Although the procedural rules of disciplining sheriff’s deputies is far less detailed than the statutory procedure for city and town officers, it is suggested that the procedures for disciplining city/town LEOs be followed for disciplining sheriff’s deputies.

  9. Disciplining LEOs I.C. §36-8-3-4(c): Board must send written notice of suspension, demotion, or dismissal before chief’s suspension expires. The notice of suspension, demotion, or dismissal should include certain information: -Date of the notice; -Specification of the crime(s) or SOP(s) violated;

  10. Disciplining LEOs -Specification of the LEO’s conduct; -Statement that the LEO may request an evidentiary hearing; -A warning that the request must be received within 5 days; - A statement that the hearing will be held within 30 days of the request;

  11. Disciplining LEOs -A statement that failure to request the hearing will waive important rights; -An advisement that the LEO should seek out legal advice; and -The contact information for the person to whom the request should be delivered.

  12. Disciplining LEOs I.C. §36-8-3-4(c): If a timely request for hearing is received from the LEO then the board must send to the LEO a notice of hearing. The notice of hearing must include certain information: -The date, time, and place of the hearing; -A specification of the crime(s) or SOP(s) violated;

  13. Disciplining LEOs -Specification of the LEO’s conduct; -A statement that the LEO may be represented by counsel at the hearing; -A statement that the LEO may call witnesses on his behalf; - A statement that the LEO may cross-examine all witnesses called by the board;

  14. Disciplining LEOs -A statement that the LEO is entitled to request all evidence that will be presented against him/her; and -A statement that the LEO may have any subpoenas he wants served on his behalf.

  15. Disciplining LEOs I.C. §36-8-3-4(c): I.C. §36-8-10-11(a): The notice of hearing must served upon the LEO no less than 14 days before the hearing.

  16. Disciplining LEOs I.C. §36-8-3-4(c): If the LEO is facing criminal charges, the board may place her/him on indefinite administrative leave pending the outcome of the criminal case. The board will determine if the indefinite administrative leave is with or without pay, but if without pay and the LEO is acquitted of the criminal charges, then the board may award back pay to the LEO.

  17. Disciplining LEOs I.C. §36-8-3-4(c): I.C. §36-8-10-11(d): The board has the ability to issue subpoenas for witnesses and evidence. If such subpoenas aren’t obeyed, the clerk must file a written report to the local circuit court for enforcement.

  18. Disciplining LEOs I.C. §36-8-3-4(c): The board conducts the hearing, swears in witnesses and receives evidence from both sides. Evidentiary hearings for discipline of LEOs is less formal that traditional court proceedings. The guiding principle to be followed is to afford the LEO and the Department a full and fair opportunity to hear and present evidence, direct and cross examine witnesses and evidence, and to fully present his, her, or its case.

  19. Disciplining LEOs I.C. §36-8-3-4(c): The only bases for excluding evidence at the hearing should be: -the evidence is irrelevant or immaterial -the evidence is unreasonably burdensome -the evidence is repetitious

  20. Disciplining LEOs I.C. §36-8-3-4(c): Both sides should be permitted to make opening and closing statements. At the conclusion of the hearing the board may request the parties to submit proposed findings of fact, but the decision of the board regarding discipline of the LEO must be rendered in writing within 90 days of the hearing or last submission of proposed findings of fact.

  21. Disciplining LEOs I.C. §36-8-3-4(c): If the LEO desires, the board’s decision may be appealed to the local circuit or superior court, at which time all formal court rules must be followed. The losing party may prosecute appeals as provided by law. Upon the ultimate determination of the final appeal, if the ruling is in favor of the LEO, then the board must pay to the LEO back wages plus any other amounts determined by the courts.

  22. Cases on LEO Discipline Sullivan v. City of Evansville, 612 N.E.2d 559 (Ind.App. 2000): Constitutional procedural due process requires the opportunity for a full and fair hearing conducted in good faith before an impartial body.

  23. Cases on LEO Discipline Garcetti v. Ceballos, 547 U.S. 410 (2006): The First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern, but does not prohibit an employer to impose discipline for an employee’s expressions made pursuant to official responsibilities.

  24. Cases on LEO Discipline Borough of Duryea v. Guarnieri, 564 U.S. ___ (2011): When an employee is paid a salary so that he will contribute to the agency’s effective operation begins to do or say things that detract from the agency’s effectiveness, the governmental employer must have some power to restrain the offensive behavior.

  25. Cases on LEO Discipline Small v. Board of Safety of the Town of Monroeville, 513 N.E.2d 196 (Ind.App. 1987): Although not stated specifically in the statute as a basis for LEO discipline, Indiana has long held that a LEO may be demoted or discharged if the governmental entity has a legitimate economic reason.

  26. Cases on LEO Discipline Pfifer v. Town of Edinburgh, 684 N.E.2d 278 (Ind.App. 1997): If the LEO is to be demoted or discharged under the ‘economic exception’, it must be based on an elimination of the position (called “position-based”), not on the person (called “person-based”). If “position-based”, no notice or hearing is required.

  27. Cases on LEO Discipline Kocia v. City of Hammond, 920 N.E.2d 818 (Ind.App. 2010): A “position-based” demotion or dismissal requires a showing of a departmental reorganization, the moving of operations to another (non-law enforcement) governmental agency, or the elimination of positions by the governmental agency.

  28. DISCIPLINARY STATEMTENTS • Investigation begins: • May be conducted by internal affairs or an outside agency. • SOPs may require review by an administrative board or internal review board.

  29. DISCIPLINARY STATEMTENTS CAUTION! SOPs or supervising officer may demand an immediate (before shift ends) statement be made, often to the hackneyed cries of “Garrity!”

  30. DISCIPLINARY STATEMTENTS Garrity v. New Jersey, 385 U.S. 493 (1967): A LEO may be forced to give a statement that would otherwise incriminate himself in a criminal proceeding if the giving of such a statement is a condition of continued employment. However, any such statement cannot be used against the LEO in any criminal proceeding, and is thereby granted use immunity.

  31. DISCIPLINARY STATEMTENTS What Garrity v. New Jersey does NOT say: • 1. WHEN a statement must be made; • 2. WHAT information must be included in a statement; and • 3. HOW long the statement must be.

  32. DISCIPLINARY STATEMTENTS CAUTION! • Even though a Garrity statement cannot be used against an officer in criminal cases, it can (and will) be used against a LEO in any subsequent civil case.

  33. DISCIPLINARY STATEMTENTS Gardner v. Broderick, 392 N.E.2d 273 (1968): A LEO may not be forced to sign a waiver of his constitutional immunity against self-incrimination, and cannot be dismissed from office solely for such a refusal.

  34. DISCIPLINARY STATEMTENTS Lilley v. City of Carmel, 527 N.E.2d 224 (Ind.App. 1988); Pope v. Marion County Sheriff’s Merit Board, 301 N.E.2d 386 (Ind.App. 1973): “Incapacitated” refers to the LEO’s ability to carry out law enforcement duties. For example, being intoxicated while on duty prevents the LEO from driving, employing a firearm, etc.

  35. DISCIPLINARY STATEMTENTS “Conduct unbecoming an officer” refers to the LEO’s fitness for holding the position or his ability to discharge its duties. Connell v. City of Logansport, 397 N.E.2d 1058 (Ind.App. 1979)[obscene, abusive, threatening language to a superior officer]; Atkinson v. City of Marian, 411 N.E.2d 622 (Ind.App. 1980)[lying to a superior officer in an internal affairs investigation for theft]; City of North Vernon v. Brading, 479 N.E.2d 619 (Ind.App. 1985)[one insufficient funds check, for which restitution was immediately paid, does not constitute ‘conduct unbecoming’].

  36. DISCIPLINARY STATEMTENTS Mediate v. City of Indianapolis, 407 N.E.2d 1194 (Ind.App. 1980): An administrative determination by a safety board that a LEO committed a criminal act does not depend on a conviction by a criminal court for that act.

  37. DISCIPLINARY STATEMTENTS I.C. §5-8-4-1: If a LEO tenders a resignation he/she is not permitted to withdraw it without consent.

  38. DISCIPLINARY STATEMTENTS BEST ADVICE: CONTACT A COMPETENT LAWYER A.S.A.P.

  39. DISCIPLINARY STATEMTENTS • Public Safety Statement: • A brief statement made by the officer solely to ‘protect’ the public. • Used by detectives to begin investigation. • Used by the department for press release.

  40. DISCIPLINARY STATEMTENTS Public Safety Statement: • BREVITY • GENERALITY

  41. Revocation of Certification I.C. §5-2-1-12.5: The Indiana Law Enforcement Training Board may revoke a LEO’s certification as a law enforcement officer for any one of the following reasons: A. The LEO has been convicted of a felony or of two (2) or more misdemeanors indicating she/he is potentially dangerous or violent or has a propensity to violate the law;

  42. Revocation of Certification I.C. §5-2-1-12.5: B. The LEO has been found not guilty of a felony by reason of mental disease or defect; C. The LEO’s certificate was issued in error or was issued on the basis of information later determined to be false.

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