Casual Conversations, Formal consequences!

More often than not, when a LEO is “under investigation,” the entire agency knows about it! Let’s face it, as a profession we’re are good at respecting the privacy rights of the public, but “scoop” on our co-workers is generally fair game! This article is about the pitfalls of those casual conversations and the ever-churning rumor mill present in so many, if not most, agencies.

Investigations into misconduct should be conducted in a confidential manner for several reasons. First and foremost, LEOs are professionals. An allegation into misconduct of a fellow professional is a serious matter. Therefore, the details, as well as the existence, of an investigation should be closely guarded to the same degree as a sensitive criminal allegation. Just as a false criminal allegation can destroy the reputation of a private citizen, the mere allegation of misconduct, even if unfounded, can signal the end of a LEO’s career.

The second reason to keep these matters confidential is simple; until proven, an allegation is just that and nothing more! Agency administrators are very sensitive to keeping criminal allegations under wraps until investigators possess sufficient probable cause to bring charges against a citizen. The same respect and presumption of innocence should be afforded to LEOs who are under investigation. Sounds like a due process issue to me, but what do I know. I’m just a lawyer!

The third reason to avoid casual conversations about pending investigations is to protect the integrity of the process. Standard investigative techniques mandate that we separate witnesses to avoid tainting their impressions and potential testimony. When the agency is buzzing with rumors and innuendo about an administrative investigation, you risk tainting the information to be gleaned from interviews. Those tainted statements will surface again in personnel hearings, criminal cases and lawsuits. By then, it is too late to “unring” the bell.

Finally, LEOs who are under investigation should beware of any casual conversations with anyone. Remember that Garrity protections apply to statements compelled by management. Any statements you make to a deputy chief who asks you what happened “off the record” may not be protected under Garrity. If this occurs, you will be required to show a court that you subjectively believed that you were required to answer those questions. While I would hope that such “off the record” conversations are not an attempt to entrap you, I was not born yesterday! This is particularly important in any use of force investigation.

So here is my advice for administrators and LEOs who are under investigation as well as any LEO in the agency. For the folks in charge, your agency should have a strict policy to keep any allegation of misconduct confidential. This includes investigations conducted by a criminal division, internal affairs or at the supervisor level. The consequences for failing to keep such allegations confidential should be the same as the consequences for leaking information on a sensitive criminal investigation to the public.

For the LEOs under investigation, speak only to the investigators and your attorney. Nothing good will come from discussing these matters with your co-workers. At the very least, you may taint the very testimony that can exonerate you. In the worst-case scenario, you may place a friend at the center of an investigation that does not concern her. If you are approached by anyone who desires to speak “off the record,” you should respectfully decline the opportunity irrespective of the rank of the person who initiates the conversation. Tell them you are under orders from your attorney not to discuss the matter without counsel present. Any lawyer will give you this instruction once the lawyer is engaged to represent you. If you do not have an attorney to assist with your defense of the allegations, perhaps you should reconsider that decision.

For the rest of the LEOs in the agency, preserve and exemplify the highest standards of our profession by respecting the investigative process. Refuse to engage in the idle banter and rumor sharing and discourage others from doing so. Remember that your “off the record” statement could change the direction of the investigation and become the pivotal piece of evidence in a discipline hearing or trial. How will you defend the fact that your statement was based upon a rumor? Most important, recognize that you could be under investigation tomorrow. What level of professionalism should you expect from your fellow professionals?