Effective July 1, 2018.
Act 56 of 2017, relating to the Professional Regulation of Law Enforcement Officers by the Vermont Criminal Justice Training Council, has changed the landscape of law enforcement accountability in Vermont. This document is intended to be a brief reference for agency heads and officers, but in no way is intended to be a comprehensive review of the contents of Act 56; it is the responsibility of agency heads to ensure they’re familiar with the law.
The Act becomes effective July 1, 2018.
What constitutes professional misconduct?
Professional misconduct is broken down into three categories:
Category A: Crimes committed both on and off duty. This includes all felonies, all misdemeanors committed on-duty, and a list of misdemeanors committed off-duty.
Category B: Gross professional misconduct “…amounting to actions on duty or under color of authority, or both, that involve willful failure to comply with a State-required policy or substantial deviation from professional conduct…” as defined by the agency’s or Council’s policy. There is a list in the Act, but the list illustrates examples and is not intended to exclude other conduct.
Category C: Misconduct related to Council processes, such as falsifying training records, intentionally exceeding scope of practice for a given certification level, intentional failure to conduct a valid investigation, etc.
Agencies must also report terminations for Category A or B conduct, or resignations, if the officer resigns while under investigation.
What is the agency’s responsibility to investigate?
Act 56 requires that all agencies have what has been termed an “effective internal affairs program” and must conduct a “valid investigation”. The parameters of each are as follows:
Effective internal affairs program
- Accepts complaints from any source
- Assigns an investigator to determine if a violation took place
- Has language in policy or bargaining agreements that establish a code of conduct and a corresponding range of discipline
- Provides fairness in discipline
- Provides for civilian review
- Any investigation conducted pursuant to the agency’s procedures, which must include the effective internal affairs program.
An investigation will not be considered valid if any of the following apply:
- The agency did not adopt the effective internal affairs program
- The agency refuses, without legitimate basis, to conduct an investigation
- The agency intentionally failed to make reports to the Council as required
- The agency attempts to cover up the misconduct and/or does anything to discourage a complainant
- The agency’s executive officer is the officer accused of misconduct
A model policy is available for agencies to download here: http://vcjtc.vermont.gov/content/model-internal-affairs-policy
If, for whatever reason, an agency will not or cannot conduct a valid investigation, it is still the agency’s responsibility to cause the investigation to be made.
If the officer resigns prior to the start of the internal investigation or before it’s completed, the agency is still required to conduct as much of the investigation as possible.
In all cases where the agency head is the subject of the allegation, the Council will cause the investigation to be conducted.
Should the Council receive a complaint of Category A or B misconduct instead of the law enforcement agency, the Executive Director will refer the complaint to the agency head and, for complaints of Category A conduct, the state’s attorney of jurisdiction, except in those instances where the agency head is the subject of the complaint.
The Council will investigate all allegations of Category C misconduct.
Where do the reports go?
All reports of professional misconduct are made to the Council, specifically, to the Executive Director. In the event the E.D. is not available, the report can be made to either the Director of Administration or the Director of Training. Though the first instance of a Category B offense is handled by the agency and is not subject to action by the Council, the report must still be made so that the Council and law enforcement agencies will have the ability to identify second and subsequent offenses.
Reports must be made in writing, by the agency head or designee.
What are the time frames for reporting and what needs to be included with the report?
Category A Offenses: The agency is required to report Category A conduct within 10 days of a finding of probable cause by a court. Related documents--any and all relevant documents associated with the report and/or investigation, including the agency’s investigative report—must be provided with the report.
Category B Offenses: Must be reported within 10 business days after the agency receives the complaint, if deemed credible by the agency head. Related documents--any and all relevant documents associated with the report and/or investigation, including the agency’s investigative report—must be provided when completed.
Category C Offenses: Must be reported within 10 business days after the agency head becomes aware of the misconduct.
What happens to the reports?
The prosecutor for the Council is ultimately responsible for determining whether or not the conduct rises to the level of Professional Misconduct. If the prosecutor decides it does not, the Council takes no further action; if the prosecutor decides it does, then the Council begins the hearing process.
What happens if the prosecutor determines that the conduct rises to the level of Professional Misconduct?
The VT Administrative Procedures Act (APA) requires due process before an officer can be decertified, or be subject to any sort of official sanction by the certification entity, in this case, the Council. Due process consists of notifying the officer of the allegation, the proposed action by the Council, informing the officer of the proposed date/time of any hearing, and affording the officer the opportunity to present a defense. The Council will ensure that agency heads are kept informed as the process moves forward. No action is taken against an officer’s certification until the conclusion of the hearing, or unless the officer waives the right to the hearing and accepts the proposed sanction.
Can the Council suspend an officer’s certification prior to a hearing?
Under fairly narrow circumstances, the Council can suspend an officer’s certification ahead of a hearing if it can be demonstrated that, should the officer retain their certification, it poses an imminent threat to the public.
What sanctions can the Council impose?
Act 56 established a range of sanctions that the Council may impose: written warning, suspension, revocation with the option of recertification at the Council’s discretion, and permanent revocation.
Can the officer surrender his/her certification?
After the hearing, if the Council finds that certification revocation is appropriate, and if the officer is also involved in or is going to begin a labor appeal process, the officer may voluntarily surrender the certification pending the outcome of the process. The Council will revisit the revocation at the conclusion of the labor process, but is not bound by that outcome.
How does an officer appeal the Council’s decision?
By VT law, any appeal of a Council decision must go to the VT Supreme Court.
Is there a public record kept of reports and Council actions?
Act 56 requires the Executive Director to prepare and maintain a public register of all complaints that contains the following:
For reports received but do not rise to the level of professional misconduct:
- The date and nature of the complaint (but not the officer’s identity)
- A summary of the completed investigation
For reports on which the Council will take action, the above information with the additions described below:
- The name and business address of the law enforcement officer
- Formal charges, providing they have been served or a reasonable effort to serve them has been made
- Findings, conclusions, and order of the Council
- Exhibits admitted at the hearing
- Transcript, if made
- Any stipulation filed with the Council
- If applicable, any final disposition by the VSC