Don’t get the wrong idea. NOPD is still conducting disciplinary investigations. I am also not addressing the end of a disciplinary investigation for the purposes of the Police Officers Bill of Rights. This is about how disciplinary investigations effect promotions and impact a decision to retire or resign.
It is pretty clear when an investigation begins. There is a date on the DI-1 which initiates the investigation. A better question is when the investigation ends. Part of the problem is that there are numerous signals which can be misinterpreted. For example, the NOPD likes to have officers sign for a form entitled “Notice to Law Enforcement Officer Under Investigation of Pre-Disciplinary Hearing or Unfounded or Unsustained Disposition.” The NOPD takes the position that this form signals the end of the investigation for purposes of the Police Officers Bill of Rights. The problem is that this form only contains the investigator’s recommended disposition. Only the Superintendent of Police, as the appointing authority, can make a final call on a disposition. In addition, the date on the form for a disciplinary hearing is a date selected by the investigator based on some system. The investigator really has no involvement in setting the hearing date and is only involved in the hearing if the hearing officer wants to have them as a witness. The Police Officers Bill of Rights discussion on this matter is a complicated one. Since this is not the purpose of this article, suffice it to say that this does not signal the end of the investigation for the purpose of promotion or RUI status (even if the allegations are found to be not sustained, unfounded, or exonerated).
If the charges are found to be not sustained, unfounded, or exonerated, the investigator’s recommendations still need to go up the chain of command. Each person in the chain of command has the option of issuing a “cover letter” changing the disposition. If everyone in the chain of command agrees with the not sustained, unfounded, or exonerated disposition, then the decision is forwarded to be updated in the database. If everyone has signed off on a not sustained, unfounded, or exonerated disposition, then the matter is concluded once the records are updated. Technically, the records do not need to be updated for the matter to be final, but that is the best way for an officer to know.
If any of the charges have been sustained or there was a “cover letter” then the officer is subsequently issued a Notice of Disciplinary Hearing. This notice contains a summary of the alleged violation, the date, time, and place of the hearing, and the identity of the hearing officer. Again, not getting into the argument of when an investigation is concluded for the purposes of the Police Officer Bill of Rights, the issuance of this form is not the end of the investigation for the purposes of promotions or RUI status.
Usually a week or two after being issued the Notice of Disciplinary Hearing, the NOPD conducts a pre-disciplinary hearing. At that hearing, an officer is given the opportunity to respond to the sustained allegations. At the conclusion of the hearing, the hearing officer will inform the officer of his recommended disposition and recommended penalty. The hearing officer also has the option of changing the investigator’s recommended disposition from sustained to not sustained, unfounded, exonerated, or duplicate. This does not signal the end of the investigation for the purposes of promotions or RUI status.
Once a pre-disciplinary hearing is conducted, the hearing officer’s recommendations go up the chain of command. Anyone above the hearing officer in the chain of command can change the recommended disposition or the recommended penalty with a “cover letter.” Eventually, the Superintendent (or his designee) will sign off on the hearing officer’s recommendation. Once the Superintendent signs off on the case, it is completed. The records are then updated in the database. If a charge was ultimately sustained, PIB is responsible for generating a disciplinary letter specifying the legal cause for the discipline which is signed by the Superintendent. At some point afterward, the officer is instructed to report to PIB to sign for the letter.
For promotions, you are ineligible for promotion if:
- you are the accused officer in a pending DI-1 investigation or
- you have a sustained DI-1 which resulted in a suspension (not Letter of Reprimand) within one year. The one year starts on the date the investigation was commenced (date on the DI-1).
An officer who resigns or retires during the course of the investigation is considered RUI (retired/resigned under investigation). Being RUI can have any number of adverse consequences such as not being able to get another job in law enforcement or not being issued an NOPD retired identification.
How do you know what the deal is? Sometimes people are under investigation and do not know they are under investigation. The NOPD is under no obligation to inform an officer of a pending investigation. Go to PIB and request a copy of your short form regularly. The short form is the most reliable way to determine whether or not there is anything pending.
Contact one of the FOP attorneys if you have any questions on this topic.
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