In 2017, Act No. 56 of the Vermont Legislature required each law enforcement agency adopt an effective internal affairs program by July 1, 2018. The Vermont Legislature specifically directed an effective internal affairs program must accomplish the following: (1) accept complaints against law enforcement officers from any source; (2) assign an investigator to determine whether there was a violation of agency rule or policy, or State or federal law; (3) if not outlined in a collective bargaining agreement, outline expectations of employment and/or prohibited acts, including a code of conduct and a corresponding range of discipline, and provide due process rights for officers; (4) treat accused officers fairly and decide officer discipline based on just cause, a set range of discipline for offenses, consideration of mitigating and aggravating circumstances and due process rights; and (5) provide for civilian review of officer discipline at least for conduct that must, by law, be reported to the Vermont Criminal Justice Council.
The enclosed model policy has been approved by the Council as sufficient to meet the above requirements. Please note, an agency may adopt all or a portion of this model policy, or even a policy of its own, provided the above requirements are met. (A model complaint form is included for use as the agency deems appropriate). Prior to adopting any internal affairs program policy, even one based on the Council’s model policy, each agency should review 2017 Act No. 56 (available at the below link) and consult with its own legal counsel.
This model policy is approved for dissemination by the Vermont Criminal Justice Council and may be used in full or in part. Users of this policy should be mindful of collective bargaining agreements and specific legal requirements and make appropriate consultations prior to implementation.
Vermont Criminal Justice Council
The purpose of this policy is to ensure the integrity of the (Agency Name) members by establishing an effective internal affairs program to ensure prompt and thorough investigation of alleged or suspected misconduct. Such procedures will:
- Clear the innocent;
- Provide early indicators of possible personnel issues;
- Establish guilt of wrong doers;
- Facilitate prompt and just disciplinary action;
- Uncover defective procedures or material; and
- Provide a mechanism for civilian review.
Based on the premise discipline is a function of command and a well-disciplined law enforcement agency is one which voluntarily and ungrudgingly conforms to policies and regulations, the (Agency Name) will make every effort to facilitate the convenient, courteous, and prompt receipt and processing of complaints. Any member who interferes with, discourages or delays the making of such complaint(s) shall be subject to disciplinary action.
(Agency Name) will investigate all complaints against the agency or its personnel. Anonymous complaints can be difficult to investigate; however, the agency should carefully review each complaint for validation before disregarding it for lack of credibility. It shall be the responsibility of all department members to adhere to this policy.
- The (Agency Head or Designee) is responsible for the internal investigation function of the (Agency Name). The (Agency Head or Designee) will have the functional responsibility for internal investigations and shall report directly to the (Agency Head and/or Appointing Authority). Where the (Designee) is a principle in an incident, the (Agency Head) will oversee the investigation. Where the (Agency Head) is the subject of an investigation, the complaint will be submitted to the appointing authority and the Vermont Criminal Justice Training Council.
- The internal investigation function is responsible for:
- Recording, registering, and controlling the investigation of complaints against members, or the agency itself;
- Supervising and controlling the investigation of alleged misconduct or corruption within the agency; and
- Maintaining the confidentiality of professional standards investigations and records.
- The internal investigations function shall not involve itself with the inadequacies of procedural matters, poorly written reports, matters of dress, or similar violations, except when such violations may be indicative or something more serious. Such concerns are the focus of supervisory staff. Internal investigations are concerned with complaints or information received of personal abuse, domestic or relationship violence or abuse, stalking, sexual assault, other illegal actions, unethical and unprofessional conduct generally classified as follows:
- Commission of any crime defined by Vermont statute or federal law as a felony or misdemeanor. Complaints shall be investigated by the (Agency Head or Designee).
- The acceptance of gifts and gratuities, unprofessionalism or rudeness, favored treatment, or any activity or conduct which is prejudicial to the policy or rules and regulations of the (Agency Name). Complaints may be investigated by the (Agency Head or Designee).
- In every instance, complaints will ultimately be reviewed by the (Agency Head or Designee). A mechanism for review by the (Selectboard or other elected or appointed body) for conduct required to be reported to the Vermont Criminal Justice Training Council shall be established.
- When a member is notified they have become the subject of an internal investigation, the department will issue the member a written statement of the allegation(s) and the member’s duties and rights during an investigation. When members are interviewed relative to an internal investigation, they shall read and sign an administrative interview notification on a form prescribed by the (Agency Name).
III. Complaint Processing
- Complaint Processing
- The (Agency Name) will accept complaints of alleged or suspected violations of law, ordinances, department rules, regulations or policies. These include:
- Those violations reported to any member of the (Agency Name) by other members of the (Agency Name), either orally or in writing; and
- Citizens (including prisoners) in person, by telephone, or by correspondence either signed or anonymous.
- Those violations observed or suspected by supervising or command officers;
- Any alleged or suspected breach of integrity or case of moral turpitude from whatever source it may be reported or developed;
- Any situation in which a citizen has been injured or killed by an officer, whether on duty or not;
- Any situation involving the discharge of firearms by an officer with the following exception(s):
- Unintentional discharge of a department owned weapon which does not involve death, injury or property damage.
- Euthanizing injured animals.
- Firearms Training or other legitimate firearms events.
- Assisting any member of the (Agency Name) by investigating cases of personal harassment, threats, false accusations, or continued situations, which may be harmful to the (Agency Name) member.
- Any time a citizen complaint or other investigation directed at a member requires the member to participate in a lineup, submit to a medical or laboratory examination, submit a financial disclosure, provide photographs for a lineup, or submit to a polygraph examination;
- If the conduct alleged is of a criminal nature or may become criminal in nature, the (Agency Head or Designee) may contact an outside agency to conduct an independent investigation separate from the internal investigation.
- Citizen complaints will not be investigated if received more than (number of days) days after the alleged incident except if the complaint involves alleged criminal activity or the complainant can show worthy cause for not coming forward sooner.
- The (Agency Name) will accept complaints of alleged or suspected violations of law, ordinances, department rules, regulations or policies. These include:
- All complaints received in person or via telephone will follow the procedures as set forth in this policy. Exceptions are anonymous complaints where the (Agency Head or Designee) will fill in the known information on the appropriate agency form and forward as required.
- Persons who wish to file a formal complaint against any member of the (Agency Name) shall immediately be directed to a supervisor (preferably) or, if none available, an on-duty member at the time the complainant appears. The supervisor or designated member will provide the complainant with their name, rank and other appropriate contact information for identification purposes.
- Members will treat a complainant courteously and with respect and civility, recognizing the difficult position people who file complaints against law enforcement may feel they are in. If a member takes the initial complaint, they shall discuss the matter with no one other than a supervisor and preferably only the (Agency Head or Designee) for internal complaints.
- Should the complainant, after speaking with the (Agency Head or Designee), or if not available another member, and being advised of the complaint procedure, insist on filing their complaint personally with a higher authority, appropriate arrangements to refer the complainant to that higher authority shall be provided.
- Following a verbal discussion as to the substance of the complaint, the (Agency Head or Designee) shall furnish the complainant with a blank copy of an approved complaint form. The (Agency Head or Designee) providing the form to the complainant must advise them they have 14 days to complete and return the form to continue the process. If the citizen has impediments to completing a written statement, the (Agency Head or Designee) shall offer to record the statement and/or write the statement on the complainant’s behalf.
- The (Agency Head or Designee) shall complete the appropriate portion(s) of the complaint form, noting the date and time the complaint was received from the complainant.
- The (Agency Head or Designee) will complete the internal investigation form and shall include a brief comment relative to the complainant's apparent rationality and demeanor. Should they suspect the complainant is under the influence of an intoxicant or drug, or is suffering from a psychological disorder, or evidence any other trait or condition bearing on the complainant’s credibility, these conditions and descriptions shall be noted together with any other pertinent remarks. Should the complaint be received over the phone, the call should be recorded whenever possible.
- In those instances where a complainant has alleged the use of excessive force by a member, the (Agency Head or Designee) taking the complaint shall carefully note the presence of any unusual marks, bruises or abrasions on the person or the complainant. They shall record all such injuries by the use of color photography or video and collect witness contact information whenever possible.
- After reviewing all available material pertaining to the complainant, the (Agency Head or Designee) taking the complaint shall indicate the name of the member who is under investigation together with their rank and current assignment.
- The Internal Investigation Complaint Form shall be forwarded, either in person or by sealed envelope, to the (Agency Head or Designee) if collected by another member.
- In cases alleging criminal conduct on the part of a member and after a decision by the (Agency Head or Designee) to do so, the (Agency Head or Designee) will advise the State's Attorney's Office, Vermont Attorney General’s Office and/or any other appropriate Department/Agency of the nature of the complaint. The (Agency Head or Designee) will maintain liaison with the State's Attorney's Office, Vermont Attorney General’s Office and/or any other appropriate Department/Agency and may seek legal advice and assistance in case preparation.
- The (Agency Name) shall maintain a record of all complaints. The records activity is a function of the internal investigations component and is an exception to personnel records to the extent the investigative work product will be filed separately and will be under the control of the (Agency Head or Designee).
To maintain confidentiality, records pertaining to internal investigations shall be properly secured by the individuals responsible for the internal investigations function.
- After a complainant has contacted the (Agency Name) regarding an alleged violation, the (Agency Head or Designee) will respond to the complainant, acknowledging the complaint has been received and is being investigated. This responsibility lies with the (Agency Head or Designee).
- Whenever practical and possible, the (Agency Head or Designee) shall provide the complainant with periodic status reports pertaining to the progress of the investigation.
- At the completion of the investigation the (Agency Head or Designee) will advise the complainant of the findings:
The allegation/investigation is supported by sufficient evidence to justify a reasonable conclusion of a violation of law or department regulation(s).
Insufficient evidence exists to either prove or disprove the allegation/investigation.
All information firmly supports the allegation is false. The member involved is totally cleared/absolved of any misconduct.
- Proper Conduct - The incident occurred, but was lawful and proper. The member involved is totally exonerated of any misconduct.
- Policy Failure - The incident occurred, but was lawful and proper in accordance with policy and procedure, however a review of such policies and/or additional training may be necessary to prevent future allegations of misconduct. The department member is totally exonerated of any misconduct.
- Misconduct Not Based Upon the Complaint, Sustained - Substantiated misconduct not alleged in the complaint.
- Members who are subject to an internal investigation will not discuss the matter with any individuals except the assigned investigator(s) and supervisors who have a direct involvement in the inquiry process.
- Any member who is aware of an internal issue and possesses relevant information to that inquiry is required to bring it to the attention of their supervisor or the assigned investigator(s). A failure to do so, even if not specifically asked for, may result in significant disciplinary action.
- Matters subject to an internal investigation shall only be discussed with subject members, witnesses, and supervisors with an authorized involvement in such matters.
- All information, documents, recordings, and other material relevant to an internal investigation shall be considered confidential and privileged. The assigned investigator(s) shall take all reasonable and necessary precautions to maintain the confidentiality of such items and ensure that it’s provided only to supervisors within the chain of command who have a direct and authorized involvement in the internal investigation process.
- The (Agency Name) shall maintain liaison with the State’s Attorney’s Office, Vermont Attorney General’s Office or other appropriate Agency/Department in investigations involving alleged criminal conduct on the part of a member. No action may be taken by members conducting such an inquiry that in any way interferes with or compromises a criminal investigation.
- Supervisors have a responsibility to discover inefficiency or misconduct at its earliest stages and should not rely on a higher authority in the organization when issues are within the scope of their own authority.
- The (Agency Head or Designee) shall notify the involved member of a citizen complaint and/or internal investigation unless such notification could compromise the investigation. At the time of the notification, the member shall receive in writing a statement of the allegation(s) and their rights and responsibilities relative to the investigation. When it is determined the notification should be made, it must be determined whether the member will receive administrative or constitutional rights.
- When a member is advised of administrative rights, the member is required to answer all questions fully and truthfully, and disciplinary action, including dismissal, may be imposed for a refusal to answer.
- In cases where the (Agency Name) desires to have the option of using any statements made by the member in a subsequent criminal proceeding, then:
- The member must be advised of their Miranda rights;
- The member must be advised no adverse disciplinary or administrative action will be taken based upon a refusal to answer any questions;
- In any case where the option to use incriminating statements must be retained, the investigating authority shall have the member complete a Miranda Warning.
- Voluntary statements or confessions made by an employee while being questioned would be admissible in criminal proceedings.
- No member shall become involved in an investigation in any manner unless expressly requested to do so by the (Agency Head or Designee).
- Disciplinary Authority
- A supervisor may impose an emergency suspension against a member when there are indications that the member has been consuming alcohol and/or is under the influence of drugs. An emergency suspension under their authority would be considered a temporary administrative action due to a member's physical or psychological fitness for duty.
NOTE: Any person so suspended shall be instructed to report to the (Agency Head or Designee) as soon as reasonably practicable, unless circumstances dictate a different course of action. The supervisory member imposing or recommending the emergency suspension will report at the same time.
- Supervisory personnel may recommend and take the following disciplinary measures (Refer to Collective Bargaining Agreements Where Appropriate):
- Oral reprimand;
- Written reprimand;
- Emergency suspension; and
- Written recommendations for other penalties.
Final authority and responsibility for discipline rests with the (Agency Head or Designee). The (Agency Head or Designee) retains the prerogative and right to sanction or withhold any disciplinary action until such time as any appeal has been concluded. (Refer to any collective bargaining agreements).
- Special Tests
- An on-duty supervisor is required to direct a member to submit to an evidentiary breath test when the level of inebriation is a factor directly related to duty performance or to operating a departmental vehicle.
- An accused employee may request a breath test or polygraph test if they believe such a test would be beneficial to their defense.
- At the direction of the (Agency Head or Designee), and the expense of the agency, members may be required to submit to tests or disclosures when it is specifically directed and narrowly related to an internal affairs investigation regarding the member. Failure to follow a direct order of this nature may result in a separate disciplinary action against the member.
- Examples of specific requests that may be made of members during an investigation include, but are not limited to the following:
- Polygraph examinations
- Medical, psychiatric, or laboratory examinations, including chemical tests
- In-person line-up
- Submission of financial disclosure or other personal papers
- Search of equipment used by the employee regarding the performance of their official duties
- Interview Rights
- All interviews will be conducted while the member is on duty, unless the seriousness of the investigation is of such a degree an immediate interview is required.
- The accused member being interviewed shall not be subjected to offensive language or threatened with transfer, dismissal or disciplinary action. No promise or reward shall be made as an inducement to answer any questions.
- Members will be afforded an opportunity for appropriate representation relative to the complaint made prior to being interviewed. (refer to collective bargaining agreements)
- Investigating Member’s Responsibilities
- Consistent with existing departmental policy, the investigating member assigned to a complaint is authorized to employ all recognized investigative methods in conducting a meaningful investigation of a complaint filed against a member of the (Agency Name).
- The impact of an internal investigation on the integrity of the (Agency Name) and on employee morale necessitates a speedy resolution to such issues. The investigating member is responsible for the completion of an assigned investigation within (Days Pursuant to Agreement) days of said assignment. Status reports are required every (Days Pursuant to Agreement) days. There may be exceptions to the (Days Pursuant to Agreement) limit, but such extensions may only be granted in cases where extenuating circumstances exist.
- The (Agency Head or Designee) will complete a report when the investigation is completed. The investigator will conclude their report with one of the following categories:
The allegation/investigation is supported by sufficient evidence to justify a reasonable conclusion of a violation of law or department regulations.
Insufficient evidence exists to either to prove or disprove the allegation.
All information firmly supports the allegation is false. The department member involved is totally cleared/absolved of any misconduct.
Proper Conduct - The incident occurred, but was lawful and proper. The department member involved is totally exonerated of any misconduct.
Policy Failure - The incident occurred, but was lawful and proper in accordance with department policy and procedure; however, a review of such policies and/or additional training may be necessary to prevent future allegations of misconduct. The department member is totally exonerated of any misconduct.
MISCONDUCT NOT BASED UPON THE COMPLAINT, SUSTAINED – Substantiated misconduct not alleged in the complaint.
D. When the act complained of is a crime and the evidence is such that had the action been by a private person would have resulted in arrest, the investigating member will explain the circumstances to the (Agency Head or Designee) and request a decision as to whether:
- The accused member should be arrested forthwith; or
- A warrant for arrest should be applied for; or
- Whether criminal action should be delayed pending further investigation and consultation with the State’s Attorney’s Office and/or Attorney General’s Office.
E.The final investigative report will be forwarded to the (Agency Head or Designee), along with any recommendations for alternate action, made in writing.
- Review and Disposition by the (Agency Head or Designee).
- After due consideration of all information pertaining to the complaint and investigation, including recommendations by the investigating member, the (Agency Head or Designee) shall decide upon the disposition of the complaint.
- The (Agency Head or Designee) will notify the investigated member and other appropriate persons the final adjudication and disposition.
- The (Agency Head or Designee) will notify the complainant of the final determination of the complaint.
- All records pertaining to citizen complaints and internal investigations shall be maintained in a secure file.
- The (Agency Head or Designee) shall prepare an annual summary of internal investigations at the end of each calendar year. The report shall be statistical in nature and shall not identify any member by name. The summary report shall contain information relating to:
1. The number of investigations
2. The adjudication of those investigations
3. Disciplinary action
4. Any other pertinent information.
- Search of agency owned storage, vehicles and workspaces
- A member's assigned (lockers, vehicles, workspaces, storage cabinmates, etc.) is the property of the (Agency Name), and as such, no grant of property right or privacy is expressed or implied. All agency owned (lockers, vehicles, workspaces, storage cabinmates, etc.) are the property of the (Agency Name) whether assigned or non-assigned and may be subject to search.
- Except in exigent circumstances, only the (Agency Head or Designee) may authorize a search of an individual employee's assigned (locker, vehicle, workspace, storage cabinmate, etc.).
- During any authorized search, at least one supervisory member shall be present, along with the investigating member and the employee who has been assigned or is using that (locker, vehicle, workspace, storage cabinmate, etc.) if possible.
- Policy Failure
- When adjudicating a complaint, it may be found a citizen has a valid and justifiable grievance, but the member involved acted properly within the prescribed policy.
- In such cases, the investigating member shall recommend the appropriate adjudication as it relates to the employee and prepare, in conjunction with the (Agency Head or Designee) an additional section to the narrative report entitled "Policy Failure."
- The investigator's report shall specify:
- The specific policy involved.
- The harm done to the complainant or the problem that it caused.
- Any recommended changes to the existing policy to prevent future problems of the same nature.
D. If the (Agency Head or Designee) concurs with the investigator's conclusions regarding the policy failure, he/she shall assign a person to be responsible for preparing the appropriate policy change.