The Crescent City Lodge of the Fraternal Order of Police has been fortunate to be involved in the maintenance, revision, and defense of the Police Officer Bill of Rights for the State of Louisiana. Myself, Jim Gallagher, and others have been instrumental in drafting much of the language currently found in the legislation, testifying in front of Legislative Committees, meeting with Legislators, and negotiating with groups whose interests differ from ours like the Louisiana Sheriff’s Association.
The Rights of Law Enforcement Officers While Under Investigation (Police Officer Bill of Rights) can be found in La. R.S. 40:2531. The law applies to Probation and Parole Officers, State Police, campus police employed by a state-supported university, and law enforcement officers employed by any municipality who are under investigation with a view to possible disciplinary action, demotion, or dismissal.
Certainly, this law applies to employees of the New Orleans Police Department. The law does not apply to Deputies employed by the Orleans Parish Sheriff’s Office.
The provisions of this law provide minimum standards applying specifically to any investigation of the covered group of law enforcement officers. This also raises the first interesting question with regard to this law.
Who qualifies as a “law enforcement officer”?
Commissioned, POST certified police officers employed by a municipal police department qualify as law enforcement officers. The same is true of State Troopers, and Probation and Parole Agents.
There have been questions recently about whether police officers employed by a state-supported university who do not work on that university’s campus are covered. For example, the police officers employed by the L.S.U. Medical Center are employed by an arm of a state-supported university. However, they do not work as “campus police” in the truest sense of the term. At the same time, the L.S.U. Medical Center is the campus for medical students enrolled at L.S.U. In the broadest sense, those officers would be included, but if one is trying to exclude individuals from the protection of the statute, an argument could be made. At present, there is no judicial guidance on this issue.
Another question comes up with regard to employees of a municipal police agency who are not commissioned, POST certified police officers. For example, what about dispatchers or 911 call takers? What about Police Technicians? What about Crime Lab Technicians who are not commissioned, POST certified police officers? What about jailers?
One of the main sources of interpretation that we have for the Police Officer Bill of Rights is the Louisiana Attorney General. The Louisiana Attorney General provides legal opinions on questions presented to it by governmental bodies or boards. These opinions are not binding like a decision from the Supreme Court might be. These opinions are considered “persuasive” argument on the topic covered in the opinion. That means that Courts can consider the opinion, but they are not required to agree with it.
The Louisiana Attorney General has opined that whether one qualifies as a law enforcement officer or not is based on function and authority (La. AG Op. 93-52). The AG looked to the Peace Officer Standards and Training Law for guidance and the definition of Peace Officer found therein. This definition, which applies specifically to POST, says a Peace Officer is “any full time employee of the state, a municipality, a sheriff, or other agency, whose permanent duties actually include the making of arrests, the performing of searches and seizures, or the execution of criminal warrants, and is responsible for the prevention or detection of crime or for the enforcement of the penal, traffic, or highway laws of this state.”
The AG stated that this definition only gives guidance about who is a law enforcement officer. The AG is of the opinion that jailers are law enforcement officers, but clerks and radio operators are not. In the AG’s opinion, the dictating factors appear to be the authority to make arrests, issue criminal warrants, effect seizures, etc.
What constitutes an “investigation”?
The Police Officer Bill of Rights clearly states that it applies to law enforcement officers who are under investigation with a view to possible disciplinary action, demotion, or dismissal. This question is essential to the determination of when an investigation begins.
The AG looked to Black’s Law Dictionary for guidance (La. AG Op. 93-52). In 1993, Black’s defined “investigate” as follows: “To follow up step by step by patient inquiry or observation. To trace or track; to search into; to examine and inquire into with care and accuracy; to find out by careful inquisition; examination; the taking of evidence; a legal inquiry.” In 2012, the definition is a little shorter: “1. To inquire into systematically; to make the subject of a criminal inquiry; 2. To make an official inquiry.”
The AG summarizes by stating that “if the investigation requires a close study or systematic inquiry into a situation, the protections afforded an officer under LSA R.S. 40:2531 apply.” The AG further points out that the law requires that this close study or inquiry must be made with a view to possible disciplinary action, demotion, or dismissal.
Furthermore the AG indicates that “possible disciplinary action” should be construed as broadly as possible. In short, the AG indicates that “any action taken by formal investigating authorities, such as the municipal internal affairs department, which could possible affect the job status of the officer requires that the minimum standards of LSA R.S. 40:2531 apply.”
What are these minimum standards by which investigations of police officers are to be conducted?
1. The police employee under investigation shall be notified at the commencement of any interrogation of:
- the nature of the investigation;
- the identity and authority of the person conducting the investigation; and
- the identity of all persons present at the time of any interrogation.
It is important to note that the law requires the officer be notified of these things “at the commencement of interrogation.” This is not necessarily the commencement of the investigation.
2. Any interrogation of a police officer shall be for a reasonable period of time and allow for reasonable periods of rest and personal necessities of the officer.
In other words, no marathon interrogations while depriving that officer of sleep, food, etc.
3. All interrogations of a police officer shall be recorded in full. The officer can not be prohibited from obtaining a copy of that recording or a transcript of that recording upon their request.
4. The police officer
- whether being questioned as a target or witness has the right to be represented by counsel, representative, or both;
- the officer shall be granted up to thirty (30) days to obtain such representation, during which time all questioning must be suspended.
- the officer’s counsel shall be allowed to offer advice to the employee or officer and make statements on the record regarding any question asked of the employee or officer at any interrogation, interview, or hearing in the course of the investigation.
5. No statement made by the police officer during the course of an administrative investigation shall be admissible in a criminal proceeding.
6. The investigation needs to be completed within 60 days.
One could probably write a book on this one paragraph. I can assure you that many legal briefs have been written on this topic. Following is my summary:
The investigating agency has 60 days to complete an administrative investigation of an employee. The investigator can also petition the Civil Service Commission for an extension of that time limit, up to an additional 60 days. There is some debate about whether that is the case in New Orleans since New Orleans is not subject to Municipal Fire and Police Civil Service law and does not have a Municipal Fire and Police Civil Service Board, but I will save that discussion for a later day.
With the extension, the investigating agency has up to 120 days to complete an administrative investigation. These time restraints do not apply to criminal investigations, but they do apply to the administrative investigation of criminal allegations. For example, if you are going to be charged by the District Attorney with La. R.S. 14:67, that investigation is not hampered by the time limitations found within LSA R.S. 40:2531(b)(7). If your employer is investigating you for a possible violation of Rule 2, Moral Conduct, to wit: R.S. 14:67, then that investigation is subject to the time restrictions found within LSA R.S. 40:2531(b)(7).
It is important to note that the provisions of LSA R.S. 40:2531(b)(7), commonly known as the 60 day rule, are the only provisions of the Police Officer Bill of Rights not applicable to criminal investigations.
The investigation begins when it begins, but no later than 14 days from the receipt of a formal, written complaint. This allows a few days for the investigating agency to taken in the complaint, conduct whatever intake functions are necessary, and assign the complaint for investigation. In New Orleans, it is usually safe to go by the date on the DI-1. The DI-1 is the result of the intake process.
A bigger question exists about investigations that begin before a DI-1 is initiated or in other agencies with different practices). The Louisiana Attorney General indicates that an investigation begins “when an authorized person begins to make inquiry or collect evidence concerning a situation with an officer where the end result is “with a view to possible disciplinary action, demotion, or dismissal.””
An investigation ends when the officer under investigation is notified of a pre-disciplinary hearing, or a determination of an unfounded or unsustained complaint. Exactly what constitutes this notice is the subject matter of another debate and will hopefully be settled by a Court. I can say that the New Orleans Police Department’s position is that the investigation ends when the officer under investigation is given a form entitled “Notice to Law Enforcement Officer of Pre-Disciplinary Hearing or a Determination of an Unfounded or Unsustained Complaint.” It is my position that this form is insufficient and the investigation is ended when the officer is issued a form titled “Notification of Disciplinary Hearing.”
LSA R.S. 40:2531(b)(8) specifically applies to Louisiana State Police, but is substantially similar to the provisions of LSA R.S. 40:2531(b)(7) discussed above.
What remedies are provided by the Police Officer Bill of Rights?
LSA R.S. 40:2531(C) provides the employee’s remedies if the minimum standards discussed above are not met. The law states that “There shall be no discipline, demotion, dismissal, or adverse action of any sort taken against a police employee or law enforcement officer unless the investigation is conducted in accordance with the minimum standards provided for in this Section. Any discipline, demotion, dismissal, or adverse action of any sort whatsoever taken against a police employee or law enforcement officer without complete compliance with the foregoing minimum standards is an absolute nullity.”