Professional Documents
Culture Documents
Melendres #1732 Joint Submission Re Proposed Second Supplemental Permanent Injunction
Melendres #1732 Joint Submission Re Proposed Second Supplemental Permanent Injunction
21
22
23
24
25
26
27
28
No. 2:07-cv-02513-GMS
PARTIES JOINT NOTICE OF
THEIR PROPOSALS FOR THE
COURTS SECOND
SUPPLEMENTAL PERMANENT
INJUNCTION
Julia Gomez*
jgomez@maldef.org
Pursuant to the Courts Order of May 31, 2016 (Doc. 1694), the Parties hereby
2 jointly submit their proposals for the Courts Second Supplemental Permanent Injunction
3 regarding policies, training, and other matters to remedy issues identified in the Courts
4 May 13, 2016 Findings of Fact (Doc. 1677). The Parties proposals are attached to this
5 notice in three exhibits. The first exhibit is the proposal of Plaintiffs and Plaintiff6 Intervenor; the second is the proposal of Defendant Arpaio; and the third is a redline
7 comparison of the two proposals, showing changes made by Defendant Arpaio to the
8 Plaintiffs and Plaintiff-Intervenors original proposal.
9
10
11
12
13
14
15
16
17
18
27
28
19
20
21
22
23
24
25
26
1
2
3
4
5
6
7
8
9
Daniel Pochoda
Brenda Muoz Furnish
ACLU Foundation of Arizona
Anne Lai (Pro Hac Vice)
10
11
12
13
16
17
14
15
18
19
20
21
22
23
24
25
26
27
28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
CERTIFICATE OF SERVICE
I certify that on or about June 30, 2016, I filed the foregoing through the Courts
CM/ECF system which will serve a true and correct copy of the filing on counsel of
record.
/s/ Paul Killebrew
161.
The following terms and definitions shall also apply to this Order:
162.
163.
164.
165.
Tester means a person who poses as a civilian making a fictitious complaint for
assessment purposes.
XV.
166.
Supervisor is defined in the Supplemental Permanent Injunction (Doc. 606), 1(mm): Supervisor or
supervisor means a sworn MCSO employee at the rank of sergeant or above (or anyone acting in those capacities)
with oversight responsibility for MCSO personnel.
All policies, procedures, protocols, training materials, and other material required by
this Order are subject to the same process of review and comment by the parties and
approval by the Monitor described in Section IV and paragraph 46 of the first
Supplemental Permanent Injunction (Doc. 606).
A.
168.
Within two months of the entry of this Order, the MCSO shall conduct a
comprehensive review of all policies, procedures, manuals, and other written directives
related to misconduct investigations, employee discipline, and grievances, and shall
adopt new policies or revise existing policies that incorporate all of the requirements of
this Order.
169.
170.
ii.
at MCSO.
c. Investigations into an employees alleged untruthfulness can be initiated by the
Professional Standards Bureau and not only by the Chief Deputy.
d. Any MCSO employee who observes or becomes aware of any act of misconduct
by another employee shall report the incident to a Supervisor or directly to the
Professional Standards Bureau.
e. Where an act of misconduct is reported to a Supervisor, the Supervisor shall
immediately document and report the information to the Professional Standards
Bureau.
f. Failure to report an act of misconduct shall be considered misconduct and shall
result in disciplinary and/or corrective action, up to and including termination.
The presumptive discipline for a failure to report such allegations will be
commensurate with the presumptive discipline for the underlying misconduct.
g. No MCSO employee ranked below a lieutenant will conduct an investigation at
the District level.
h. All forms of retaliation, discouragement, intimidation, coercion, or adverse action
against any person, civilian, or employee because that person reports misconduct,
attempts to make or makes a misconduct complaint in good faith, or cooperates
with an investigation of misconduct are strictly prohibited.
i. Retaliating against any person who reports or investigates alleged misconduct
shall be considered a serious offense and shall result in discipline, up to and
including termination.
j. The MCSO shall investigate all complaints and allegations of misconduct,
including third-party and anonymous complaints and allegations. Employees as
well as civilians shall be permitted to make misconduct allegations anonymously.
k. The MCSO will not terminate an administrative investigation only because the
complainant seeks to withdraw the complaint or is unavailable, unwilling, or
unable to cooperate with an investigation, or because the principal resigns or
retires to avoid discipline. The MCSO will continue the investigation and reach a
finding, where possible, based on the evidence and investigatory procedures and
techniques available.
l. Employees are required to provide all relevant evidence and information in their
custody and control to misconduct investigators. Intentionally withholding
evidence or information from a misconduct investigator shall result in discipline.
m. Employees who are named as a principal in an ongoing investigation of serious
misconduct shall be ineligible for promotion or a salary increase during the
pendency of the investigation.
n. Employees and applicants disciplinary history shall be considered in all hiring,
promotion, and transfer decisions, and this consideration shall be documented.
Employees and applicants whose disciplinary history demonstrates a pattern of
misconduct, or one sustained allegation of a Category 6 or Category 7 offense
from MCSOs disciplinary matrices, shall be presumptively ineligible for hire or
promotion. MCSO shall provide a written justification for hiring or promoting an
employee or applicant who has a history demonstrating a pattern of misconduct or
a previous sustained Category 6 or Category 7 offense. This written justification
shall be included in the employees employment file.
o. Commanders shall review the disciplinary history of all employees who are
transferred to their command upon transfer.
p. The quality of investigators misconduct investigations and Supervisors reviews
of investigations shall be taken into account in their performance evaluations.
q. There shall be no procedure referred to as a name-clearing hearing. All predisciplinary hearings shall be referred to as pre-determination hearings,
regardless of the employment status of the principal.
B.
171.
Misconduct-Related Training
Within six months of the entry of this Order, the MCSO will provide all Supervisors
and all personnel assigned to the Professional Standards Bureau with 40 hours of
comprehensive training on conducting employee misconduct investigations. This
training will include instruction in:
All Supervisors and all personnel assigned to the Professional Standards Bureau also
will receive 8 hours of in-service training annually related to conducting misconduct
investigations.
173.
Within six months of the entry of this Order, the MCSO will provide training that is
adequate in quality, quantity, scope, and type, as determined by the Monitor, to all
employees on MCSOs revised or new policies related to misconduct investigations,
discipline, and grievances. This training shall include instruction on identifying and
reporting misconduct, the consequences for failing to report misconduct, and the
consequences for retaliating against a person for reporting misconduct or participating
in a misconduct investigation.
174.
Within six months of the entry of this Order, the MCSO will provide training that is
adequate in quality, quantity, scope, and type, as determined by the Monitor, to all
employees, including dispatchers, to properly handle civilian complaint intake,
including how to provide complaint materials and information and the consequences for
Within six months of the entry of this Order, the MCSO will provide training that is
adequate in quality, quantity, scope, and type, as determined by the Monitor, to all
Supervisors on their obligations when called to a scene by a subordinate to accept a
civilian complaint about that subordinates conduct.
C.
176.
177.
178.
179.
The Professional Standards Bureau shall maintain a complete file of all documents
within MCSOs custody and control relating to any investigation and related
Upon being notified of any allegation of misconduct, the Professional Standards Bureau
will make an initial determination of the category of the alleged offense, to be used for
the purposes of assigning the administrative investigation to an investigator. After
initially categorizing the allegation, the Professional Standards Bureau will promptly
assign a misconduct investigator.
181.
182.
183.
184.
The Professional Standards Bureau shall review of all investigations assigned outside
the Bureau to determine, among other things, whether the investigation remain properly
categorized and assigned and whether the investigation is being properly conducted.
185.
186.
The Director of the Professional Standards Bureau shall ensure that investigation
assignments comply with MCSO policy and all requirements of this Order, including
those related to training, investigators disciplinary backgrounds, and conflicts of
interest.
187.
Within six months of the entry of this order, the Professional Standards Bureau shall
include sufficient trained personnel to fulfill the requirements of this Order.
188.
Where appropriate to ensure the fact and appearance of impartiality, the Director of the
Professional Standards Bureau may refer administrative misconduct investigations to
another law enforcement agency or may retain a qualified outside investigator to
conduct the investigation.
189.
The Professional Standards Bureau will be headed by a qualified Director who is not a
current or former employee of the MCSO. The Director of the Professional Standards
Bureau will have ultimate authority within the MCSO for reaching the findings of
investigations and determining any discipline to be imposed.
190.
The Court will select the Director of the Professional Standards Bureau.
191.
Within two weeks of the entry of this Order, the Parties may each submit to the Court
the names and resumes of three candidates to be considered for the position of Director
of the Professional Standards Bureau.
192.
The Court will consider these candidates but will not be limited to selecting the
Director from among them.
193.
194.
The MCSO will ensure that the qualifications for service as a misconduct investigator
shall be clearly defined and that anyone tasked with investigating employee misconduct
possesses excellent investigative skills, a reputation for integrity, the ability to write
clear reports, and the ability to be fair and objective in determining whether an
employee committed misconduct. Employees with a history of multiple sustained
misconduct allegations, or one sustained allegation of a Category 6 or Category 7
offense from MCSOs disciplinary matrices will be presumptively ineligible to conduct
misconduct investigations. Employees with a history of conducting deficient
investigations will also be presumptively ineligible for these duties.
195.
the facts;
b. approach investigations without prejudging the facts and without permitting any
preconceived impression of the principal or any witness to cloud the
investigation;
c. identify, collect, and consider all relevant circumstantial, direct, and physical
evidence, including any audio or video recordings;
d. make reasonable attempts to locate and interview all witnesses, including civilian
witnesses;
e. make reasonable attempt to interview any civilian complainant in person;
f. audio and video record all interviews;
g. when conducting interviews, avoid asking leading questions and never ask
employees or witnesses any questions that may suggest justifications for the
alleged misconduct;
h. make credibility determinations, as appropriate; and
i. make all reasonable efforts to resolve material inconsistencies between employee,
complainant, and witness statements.
196.
There will be no automatic preference for an employees statement over a nonemployees statement. Misconduct investigators will not disregard a witnesss
statement solely because the witness has some connection to either the complainant or
the employee or because the witness or complainant has a criminal history. In
conducting the investigation, misconduct investigators may take into account the record
of any witness, complainant, or officer who has been determined to have been
deceptive or untruthful in any legal proceeding, misconduct investigation, or other
investigation.
197.
198.
If the person involved in the encounter with the MCSO pleads guilty or is found guilty
of an offense, misconduct investigators will not consider that information alone to be
determinative of whether an MCSO employee engaged in misconduct, nor will it by
itself justify discontinuing the investigation. MCSO training materials and policies on
internal investigations will acknowledge explicitly that the fact of a criminal conviction
has no bearing on whether an MCSO employee engaged in misconduct against the
person, and that the mission of a misconduct investigator is to determine whether any
misconduct occurred.
199.
200.
The Professional Standards Bureau shall maintain a database to track all ongoing
misconduct cases and shall generate alerts to the responsible investigator and his/her
Supervisor and the Director of the Professional Standards Bureau when deadlines are
not met.
201.
203.
11
205.
Where the or Director determines that the findings of the investigation report are not
supported by the appropriate standard of proof, the Commander or Director shall
document the reasons for this determination and shall include this documentation as an
addendum to the original investigation. The investigators Supervisor shall take
appropriate action to address the inadequately supported determination and any
investigative deficiencies that led to it. Commanders and the Director of the
Professional Standards Bureau shall be responsible for the accuracy and completeness
of investigation reports prepared by misconduct investigators under their command.
206.
12
after corrective and/or disciplinary action is taken shall be grounds for demotion and/or
removal from a supervisory position or the Professional Standards Bureau.
207.
208.
209.
210.
13
Director of the Professional Standards Bureau shall also ensure that necessary training
is delivered and that policy, tactical, or equipment concerns are resolved.
211.
The Professional Standards Bureau shall conduct targeted and random reviews of
discipline imposed by Commanders for minor misconduct to ensure compliance with
MCSO policy and legal standards.
212.
F.
213.
Discipline
The MCSO will ensure that discipline for sustained allegations of misconduct comports
with due process, and is consistently applied, fair, and based on the nature of the
allegation, and that mitigating and aggravating factors are identified and consistently
applied and documented.
214.
In order to ensure consistency in the imposition of discipline, the MCSO will review its
current disciplinary matrices and will amend them as necessary to ensure that they:
14
i. provide that the MCSO will not take only non-disciplinary corrective
action in cases in which the disciplinary matrices call for the imposition
of discipline;
j. provide that the MCSO will consider whether non-disciplinary
corrective action also is appropriate in a case where discipline has been
imposed; and
k. require that any departures from the discipline recommended under the
disciplinary matrices be justified in writing.
215.
Each act or omission that results in a sustained misconduct allegation shall be treated as
a separate offense for the purposes of imposing discipline.
216.
217.
Pre-Determination Hearings
218.
Pre-determination hearings will be audio and video recorded in their entirety, and the
recording shall be maintained with the administrative investigation file.
219.
15
employee intentionally withheld the new or additional evidence during the initial
misconduct investigation.
220.
221.
222.
223.
224.
16
225.
226.
The Professional Standards Bureau will ensure that criminal investigators do not have
access to any statements by the principal that were compelled pursuant to Garrity v.
New Jersey.
227.
228.
The entity conducting the criminal investigation decides to close the investigation
without referring it to a prosecuting agency, this decision must be documented in
writing and provided to the Professional Standards Bureau. The Professional Standards
Bureau shall separately consider whether to refer the matter to a prosecuting agency
and shall document its decision in writing.
229.
If the entity conducting the criminal investigation decides to refer the matter to a
prosecuting agency, the Professional Standards Bureau shall review the information
provided to the prosecuting agency to ensure that it is of sufficient quality and
completeness. The Director of the Professional Standards Bureau shall request the
17
If the prosecuting agency declines to prosecute or dismisses the criminal case after the
initiation of criminal charges, the Professional Standards Bureau shall request an
explanation for this decision, which shall be documented in writing and appended to the
criminal investigation report.
231.
The Professional Standards Bureau shall maintain all criminal investigation reports and
files after they are completed for record-keeping
F.
232.
Within six months of the entry of this Order, the Monitor, in consultation with the
Community Advisory Board, will develop and implement a program to promote
awareness throughout the Maricopa County community about the process for filing
complaints about the conduct of MCSO employees.
233.
The MCSO will accept all civilian complaints, whether submitted verbally or in
writing; in person, by phone, or on line; by a complainant, someone acting on the
complainants behalf, or anonymously; and with or without a signature from the
complainant. MCSO will document all complaints in writing.
234.
The MCSO will post and maintain at the reception desk at MCSO headquarters and in
locations at all District stations that are clearly visible to members of the public
permanent placards clearly and simply describing the civilian complaint process. The
placards shall include relevant contact information, including telephone numbers, email
addresses, and Internet sites. The placards shall be in both English and Spanish.
235.
The MCSO will require all deputies to carry complaint forms in their MCSO vehicles.
Deputies will provide complaint forms and information about how to file a complaint to
individuals upon request. Deputies will provide their name and badge number upon
request. If an individual indicates to a deputy that he or she would like to make a
complaint about that deputy, the deputy will immediately inform his or her Supervisor
and ask the Supervisor how long it would take him or her to respond to the scene. The
deputy will then inform the individual that his or her Supervisor can respond to the
18
scene to assist the individual in filing a complaint, if the individual desires and is
willing to wait for the Supervisor to arrive. If the individual responds in the affirmative,
the Supervisor will respond to the scene, assist the individual to the extent assistance is
desired, and provide the individual a copy of the completed complaint form. Otherwise
the deputy will assist the individual to the extent assistance is desired and provide the
individual a copy of the completed complaint form.
236.
The MCSO will ensure that the Professional Standards Bureau facility is easily
accessible to members of the public. There shall be a space available for receiving
walk-in visitors and personnel who can assist the public with filing complaints and/or
answer questions about the complaint investigations process.
237.
The MCSO will also make complaint forms widely available at locations around the
County including: the websites of MCSO and Maricopa County government; the lobby
of MCSOs headquarters; each patrol District; and the Maricopa County government
offices. The MCSO will ask locations such as public library branches and the offices
and gathering places of community groups to make these materials available.
238.
The MCSO will establish a free, 24-hour hotline for members of the public to make
complaints.
239.
The MCSOs complaint form will not contain any language that could reasonably be
construed as discouraging the filing of a complaint, such as warnings about the
potential criminal consequences for filing false complaints.
240.
Within two months of the entry of this Order, complaint forms will be made available,
at a minimum, in English and Spanish. The MCSO will make reasonable efforts to
ensure that complainants who speak other languages (including sign language) and
have limited English proficiency can file complaints in their preferred language. The
fact that a complainant does not speak, read, or write English, or is deaf or hard of
hearing will not be grounds to decline to accept or investigate a complaint.
241.
notice will inform the complainant how he or she may contact the
Professional Standards Bureau to inquire about the status of a
complaint;
b. when the Professional Standards Bureau concludes its investigation, the
Bureau will notify the complainant that the investigation has been
concluded and inform the complainant of the Bureaus findings; and
c. in cases where discipline is imposed, the Professional Standards Bureau
will notify the complainant of the discipline.
242.
243.
244.
245.
The Professional Standards Bureau will conduct regular assessments of the types of
complaints being received to identify and assess potential problematic patterns and
trends.
G.
246.
Transparency Measures
20
rank of principal(s); nature of contact (traffic stop, pedestrian stop, call for
service, etc.); nature of allegation (rudeness, bias-based policing, etc.);
complainants demographic information (age, gender, race, ethnicity, etc.);
complaints received from anonymous or third parties; and principals
demographic information;
c. analysis of whether any increase or decrease in the number of civilian
complaints received from quarter to quarter is attributable to issues in the
complaint intake process or other factors;
d. aggregate data on internally-generated misconduct allegations, broken down by
similar categories as those for civilian complaints;
e. aggregate data on the processing of misconduct cases, including the number of
cases assigned to Supervisors outside the Professional Standards Bureau versus
investigators in the Professional Standards Bureau; the average and median time
from the initiation of an investigation to its submission by the investigator to his
or her chain of command; the average and median time from the submission of
the investigation by the investigator to a final decision regarding discipline, or
other final disposition if no discipline is imposed; the number of investigations
returned to the original investigator due to conclusions not being supported by
the evidence; and the number of investigations returned to the original
investigator to conduct additional investigation;
f. aggregate data on the outcomes of misconduct investigations, including the
number of sustained, not sustained, exonerated, and unfounded misconduct
complaints; the number of misconduct allegations supported by the appropriate
standard of proof; the number of sustained allegations resulting in a nondisciplinary outcome, coaching, written reprimand, suspension, demotion, and
termination; the number of cases in which findings were changed after a predetermination hearing, broken down by initial finding and final finding; the
number of cases in which discipline was changed after a pre-determination
hearing, broken down by initial discipline and final discipline; the number of
cases in which findings were overruled, sustained, or changed by the County
Merit Commission, broken down by the finding reached by the MCSO and the
21
The MCSO shall make detailed summaries of completed internal affairs investigations
readily available to the public to the full extent permitted under state law, in electronic
form on a designated section of its website that is linked to directly from MCSOs
home page with prominent language that clearly indicates to the public that the link
provides information about investigations of misconduct by MCSO employees.
248.
The MCSO Bureau of Internal Oversight shall produce a quarterly public audit report
regarding misconduct investigations. This report shall analyze a stratified random
sample of misconduct investigations that were completed during the previous quarter to
identify any procedural irregularities, including any instances in which:
a. complaint notification procedures were not followed;
b. a misconduct complaint was not assigned a unique identifier;
c. investigation assignment protocols were not followed, such as serious or
criminal misconduct being investigated outside of the Professional Standards
Bureau;
d. deadlines were not met;
e. an investigation was conducted by an employee who had not received required
22
The MCSO shall initiate a testing program designed to assess civilian complaint
intake. Specifically, the testing program shall assess whether employees are providing
civilians appropriate and accurate information about the complaint process and whether
employees are notifying the Professional Standards Bureau upon the receipt of a
civilian complaint.
250.
The testing program is not intended to assess investigations of civilian complaints, and
the MCSO shall design the testing program in such a way that it does not waste
resources investigating fictitious complaints made by testers.
251.
The testing program shall assess complaint intake for complaints made in person at
MCSO facilities, complaints made telephonically, and complaints made electronically
by email or through MCSOs website. Testers shall not interfere with deputies taking
law enforcement action. Testers shall not attempt to assess complaint intake in the
course of traffic stops or other law enforcement action being taken outside of MCSO
facilities.
252.
The testing program shall include sufficient random and targeted testing to assess the
23
The testing program shall also assess whether employees promptly notify the
Professional Standards Bureau of civilian complaints and provide accurate and
complete information to the Bureau.
254.
255.
The MCSO shall produce an annual report on the testing program. This report shall
include, at a minimum:
a. a description of the testing program, including the testing methodology and the
number of tests conducted broken down by type (i.e., in-person, telephonic, and
electronic);
b. the number and proportion of tests in which employees responded inappropriately
to a tester;
c. the number and proportion of tests in which employees provided inaccurate
information about the complaint process to a tester;
d. the number and proportion of tests in which employees failed to promptly notify
the Professional Standards Bureau of the civilian complaint;
e. the number and proportion of tests in which employees failed to convey accurate
information about the complaint to the Professional Standards Bureau;
f. an evaluation of the civilian complaint intake based upon the results of the testing
program; and
g. a description of any steps to be taken to improve civilian complaint intake as a
result of the testing program.
The Community Advisory Board may conduct or retain a consultant to conduct a study
to identify barriers to the filing of civilian complaints against MCSO personnel.
257.
In addition to the administrative support provided for in [cite the amended order], the
Community Advisory Board (CAB) shall be provided with annual funding to support
its activities, including but not limited to funds for a study of the barriers to the filing of
civilian complaints, outreach advertising and website maintenance, stipends for intern
24
support, professional interpretation and translation, and out-of-pocket costs of the CAB
members for transportation related to their official responsibilities. The CAB shall
submit a proposed annual budget to the Monitor, not to exceed $15,000, and upon
approval of the annual budget the County shall deposit that amount into an account
established by the CAB for that purpose.
The following Section of this Order represent additions and amendments to Section X
of the first Supplemental Permanent Injunction, Supervision and Evaluations of Officer
Performance, and the provisions of this Section override any conflicting provisions in
Section X of the first Supplemental Permanent Injunction.
259.
260.
261.
262.
Supervisors shall be responsible for close and effective supervision of deputies under
their command. Supervisors shall ensure that all deputies under their direct command
comply with MCSO policy, federal, state and local law, and this Courts orders.
263.
XVIII.
264.
MCSO shall ensure that when it receives a document preservation notice from a
25
MCSO shall ensure that when it receives a request for documents in the course of
litigation, it shall:
a. promptly communicate the document request to all personnel who might
possibly be in possession of responsive documents
b. ensure that all existing electronic files, including email files and data stored on
networked drives are sequestered and preserved through a centralized process
c. ensure that a thorough and adequate search for documents is conducted, and that
each employee who might possibly be in possession of responsive documents
conducts a thorough and adequate search of all relevant physical and electronic
files
266.
Within three months of the effective date of this order, the MCSO Compliance Division
shall promulgate detailed protocols for the preservation and production of documents
requested in litigation. Such protocols shall be subject to the approval of the Monitor
after a period of comment by the Parties.
267.
MCSO policy shall provide that all employees must comply with document
preservation and production requirements and that violations of this policy shall be
subject to discipline and potentially other sanctions.
26
XX.
269.
ADDITIONAL TRAINING
Within two months of the entry of this Order, the MCSO shall ensure that all
employees are briefed and presented the terms of the Order, along with relevant
background information about the Courts Findings of Fact of May 13, 2016, (Doc.
1677) upon which this Order is based.
27
161.
The following terms and definitions shall also apply to this Order:
162.
163.
164.
165.
Preponderance of the Evidence means evidentiary weight that, though not sufficient
to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and
impartial mind to one side of the issue rather than the other. Facts which are, more
likely than not, true.
166.
Supervisor is defined in the Supplemental Permanent Injunction (Doc. 606), 1(mm): Supervisor or
supervisor means a sworn MCSO employee at the rank of sergeant or above (or anyone acting in those capacities)
with oversight responsibility for MCSO personnel.
made;
Retaliation means the act of seeking revenge against someone. However, it is not
167.
XV.
169.
170.
All policies, procedures, protocols, training materials, and other material required by
this Order are subject to the same process of review and comment by the parties and
approval by the Monitor described in Section IV and paragraph 46 of the first
Supplemental Permanent Injunction (Doc. 606).
171.
172.
The MCSO shall conduct a comprehensive review of all policies, procedures, manuals,
and other written directives related to misconduct investigations, employee discipline,
and grievances, and shall provide to the Monitor and Plaintiffs new policies or revise
existing policies that incorporate all of the requirements of this Order.
173.
Such policies shall apply to all misconduct investigations of MCSO personnel which
occur after Court enters this supplemental injunction.
174.
the following.
i.
ii.
176.
Retaliating against any person who reports or investigates alleged misconduct shall be
considered a serious offense and may result in discipline, up to and including
termination.
177.
The MCSO shall make all reasonable efforts to investigate all complaints and
allegations of misconduct, including third-party and anonymous complaints and
allegations. Employees as well as civilians shall be permitted to make misconduct
allegations anonymously.
178.
The MCSO will not terminate an administrative investigation only because the
complainant seeks to withdraw the complaint or is unavailable, unwilling, or unable to
cooperate with an investigation, or because the principal resigns or retires to avoid
discipline. The MCSO will continue the investigation and reach a finding, where
possible, based on the evidence and investigatory procedures and techniques available.
179.
Employees are required to provide all requested evidence and information in their
custody and control to investigators. Intentionally withholding evidence or information
from an investigator may result in discipline.
180.
181.
182.
Commanders shall review the disciplinary history of all employees who are transferred
to their command upon transfer.
183.
184.
There shall be no procedure referred to as a name-clearing hearing. All predisciplinary hearings shall be referred to as pre-determination hearings, regardless of
the employment status of the principal.
B.
185.
Misconduct-Related Training
The MCSO will continue to provide all Supervisors and all personnel assigned to the
Professional Standards Bureau with 40 hours of comprehensive training on conducting
employee misconduct investigations. This training may include, but may not be limited
to:
All Supervisors and all personnel assigned to the Professional Standards Bureau also
will receive 8 hours of in-service training annually related to conducting misconduct
investigations.
187.
Within six months of approval of the training module by the Monitor, the Parties, and
the Court, the MCSO will provide training that is adequate in quality, quantity, scope,
and type to all employees on MCSOs revised or new policies related to misconduct
investigations, discipline, and grievances. This training shall include instruction on
identifying and reporting misconduct, the consequences for failing to report
misconduct, and the consequences for retaliating against a person for reporting
misconduct or participating in a misconduct investigation.
188.
Within six months of approval of the training module by the Monitor, the Parties, and
the Court, the MCSO will provide training that is adequate in quality, quantity, scope,
and type to all employees, including dispatchers, to properly handle civilian complaint
intake, including how to provide complaint materials and information and the
consequences for failing to take complaints.
189.
Within six months of approval of the training module by the Monitor, the Parties, and
the Court, the MCSO will provide training that is adequate in quality, quantity, scope,
and type to all Supervisors on their obligations when called to a scene by a subordinate
to accept a civilian complaint about that subordinates conduct.
C.
190.
191.
192.
The Professional Standards Bureau shall maintain a complete file of all documents
within MCSOs custody and control relating to any investigation and related
disciplinary proceedings, including pre-determination hearings, grievance proceedings,
and appeals to the Maricopa County Law Enforcement Merit Commission or a state
court.
194.
195.
a.
b.
c.
196.
197.
MCSO shall continue to require that if at any point during a misconduct investigation
an investigating Supervisor outside of the Professional Standards Bureau believes that
the principal may have committed misconduct of a serious or criminal nature, he or she
shall immediately notify the Professional Standards Bureau, which shall take over the
investigation.
198.
MCSO shall continue to require that the Professional Standards Bureau shall review of
of all investigations assigned outside the Bureau to determine, among other things,
whether the investigation is properly categorized and whether the investigation is being
properly conducted.
199.
200.
The Commander of the Professional Standards Bureau shall ensure that investigation
assignments comply with MCSO policy and all requirements of this Order, including
those related to training, investigators disciplinary backgrounds, and conflicts of
interest.
201.
To the extent additional training is necessary, within six months of the approval of any
additional training by the Monitor, the Parties, and the Court , the Professional
Standards Bureau shall include trained personnel to fulfill the requirements of this
Order.
202.
Where appropriate to ensure the fact and appearance of impartiality, the Commander of
the Professional Standards Bureau or the Chief Deputy may refer administrative
misconduct investigations to another law enforcement agency or may retain a qualified
outside investigator to conduct the investigation.
203.
204.
205.
206.
207.
208.
The MCSO will ensure that the qualifications for service as an investigator shall be
clearly defined and that anyone tasked with investigating employee misconduct
possesses excellent investigative skills, a reputation for integrity, the ability to write
clear reports, and the ability to be fair and objective in determining whether an
employee committed misconduct.
209.
210.
There will be no automatic preference for an employees statement over a nonemployees statement. Investigators will not disregard a witnesss statement solely
because the witness has some connection to either the complainant or the employee or
because the witness or complainant has a criminal history, but may consider the
witnesss criminal history in evaluating that witnesss statement. In conducting the
investigation, investigators may take into account the record of any witness,
complainant, or officer who has been determined to have been deceptive or untruthful
in any legal proceeding, misconduct investigation, or other investigation. Investigators
will not disregard a witnessess, complainant, or officers statement solely because that
person has been determined to be deceptive or untruthful in any legal proceeding,
misconduct investigation, or other investigation.
211.
Investigators will evaluate any evidence of potential misconduct uncovered during the
course of the investigation, regardless of whether the potential misconduct was part of
the original allegation.
212.
If the person involved in the encounter with the MCSO pleads guilty or is found guilty
of an offense, Investigators will not consider that information alone to be determinative
of whether an MCSO employee engaged in misconduct, nor will it by itself justify
discontinuing the investigation.
213.
214.
The Professional Standards Bureau shall continue to maintain a database to track all
ongoing misconduct cases and shall generate alerts to the responsible investigator and
his/her Supervisor and the Commander of the Professional Standards Bureau when
deadlines are not met.
215.
a.
2
b.
c.
d.
e.
f.
g.
h.
i.
j.
216.
a.
b.
c.
d.
217.
10
218.
219.
For investigations carried out by the Professional Standards Bureau, once the
investigative report is completed, the PSB investigator shall forward the report to the
PSB Commander. The PSB Commander shall be responsible for determining which
policies have been violated based on the facts of the investigative file, and the
preliminary findings for each alleged policy violation. The PSB Commander shall
forward the investigative file to the Chief Deputy. The Chief Deputy shall review the
investigative file, concur or not concur with the preliminary findings, and make a
determination whether the findings may be reviewed for intervention or disciplinary
action. If the Chief Deputy does not concur with the preliminary findings he shall
document the reason as specified in this Policy. If the Chief Deputy concurs with the
11
preliminary finding he shall sign and date the investigative file. If the findings are
sustained, the Chief Deputy shall forward the investigation to the Compliance Division
with direction of what action is to be taken. If the findings are not sustained, unfounded,
or exonerated, the Chief Deputy shall forward the investigative file to the Appointing
Authority.
220.
The Appointing Authority shall make final findings on all administrative investigations.
If the investigative file was forwarded to the Compliance Division for intervention or
disciplinary action, the Appointing Authority will direct the Compliance Division
personnel to ensure that proper action is taken. Upon review of the information
presented by the Compliance Division, if the Appointing Authority does not concur
with the direction provided by the executive chief or the Chief Deputy, he shall
document the reasons as specified in this Policy. If the Appointing Authority concurs
with the direction provided by the executive chief or the Chief Deputy, he shall ensure
that proper action is taken as specified in Office Policy GC-17, Employee Disciplinary
Procedures. Final findings will be made following the procedures outlined in Office
Policy GC-17, Employee Disciplinary Procedures. If the findings were not sustained,
unfounded, or exonerated, the Appointing Authority shall review the investigative file.
If the Appointing Authority does not concur, he shall document the reason as specified
in this Policy. If the Appointing Authority concurs, he shall document the final
findings and return the investigation to the PSB who shall complete the Closed Case
Notification and, if applicable, send the Final Disposition Letter. This notification shall
be made by the PSB within 10 calendar days of receipt of the investigation from the
appointing authority. A copy of each letter shall be placed in the investigative file. The
investigation shall be stored in the PSB.
221.
222.
12
that it is complete and that the findings are supported by the evidence. The Professional
Standards Bureau shall order additional investigation when it appears that there is
additional relevant evidence that may assist in resolving inconsistencies or improving
the reliability or credibility of the findings.
223.
224.
225.
226.
227.
F.
228.
Discipline
The MCSO will ensure that discipline for sustained allegations of misconduct comports
with due process, and is consistently applied, fair, and based on the nature of the
allegation, and that mitigating and aggravating factors are identified and consistently
applied and documented.
229.
In order to ensure consistency in the imposition of discipline, the MCSO will review its
current disciplinary matrices and will amend them as necessary to ensure that they:
13
In cases involving more than one offense, the most serious offense shall establish the
Category of Offense pursuant to MCSOs disciplinary matrices. Other offenses may
then be considered as aggravating circumstances. Each act or omission that results in a
sustained misconduct allegation may be treated as a separate offense for the purposes of
imposing discipline.
231.
232.
Pre-Determination Hearings
14
member of MCSOs command staff will conduct a pre-determination hearing and will
provide the employee with an opportunity to be heard.
233.
Pre-determination hearings will be audio recorded in their entirety, and the recording
shall be maintained with the administrative investigation file.
234.
235.
236.
MCSO policy shall provide that the Appointing Authority conducting a predetermination hearing should apply the disciplinary matrix and set forth clear
guidelines for the grounds on which a deviation is permitted.
a.
b.
c.
237.
E.
238.
239.
15
240.
241.
242.
243.
MCSO shall continue to require that a decision must be documented in writing and
referred to the Commander of the Professional Standards Bureau if the investigator
conducting the criminal investigation decides to close the investigation without
referring it to a prosecuting agency. MCSO shall continue to require that the
Commander of the Professional Standards Bureau separately consider whether to refer
the matter to a prosecuting agency and shall document the decision in writing.
244.
245.
If the prosecuting agency declines to prosecute or dismisses the criminal case after the
initiation of criminal charges, the Professional Standards Bureau shall request an
explanation for this decision, which shall be documented in writing and appended to the
16
The Professional Standards Bureau shall maintain all criminal investigation reports and
files after they are completed for record-keeping, subject to MCSOs document
retention policies.
F.
247.
Within six months of the entry of this Order, the Monitor, in consultation with the
Community Advisory Board, will develop and implement a program to promote
awareness throughout the Maricopa County community about the process for filing
complaints about the conduct of MCSO employees.
248.
The MCSO will continue to accept all civilian complaints, whether submitted verbally
or in writing; in person, by phone, or on line; by a complainant, someone acting on the
complainants behalf, or anonymously; and with or without a signature from the
complainant. MCSO will document all complaints in writing.
249.
The MCSO will continue to post and maintain at the reception desk at MCSO
headquarters and in locations at all District stations that are clearly visible to members
of the public permanent placards clearly and simply describing the civilian complaint
process. MCSO shall continue to have placards that include relevant contact
information, including telephone numbers, email addresses, and Internet sites. The
placards shall be in both English and Spanish.
250.
251.
252.
The MCSO will also make complaint forms available at locations around the County
including: the websites of MCSO; the lobby of MCSOs headquarters; each patrol
District; and the Maricopa County government offices.
253.
254.
The MCSOs complaint form will not contain any language that could reasonably be
construed as discouraging the filing of a complaint.
255.
MCSO will continue to ensure that complaint forms will be made available, in English
and Spanish. The MCSO will make reasonable efforts to ensure that complainants who
speak other languages (including sign language) and have limited English proficiency
can file complaints in their preferred language. The fact that a complainant does not
17
speak, read, or write English, or is deaf or hard of hearing will not be grounds to
decline to accept or investigate a complaint.
256.
258.
The Professional Standards Bureau will conduct an annual assessment of the types of
complaints being received to identify and assess potential problematic patterns and
trends.
Transparency Measures
G.
259.
a.
b.
c.
d.
e.
f.
g.
260.
261.
18
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.
l.
m.
H.
262.
263.
264.
265.
266.
267.
268.
a.
b.
c.
d.
e.
f.
g.
19
276.
XVIII.
277.
MCSO shall continue to ensure that when it receives a document preservation notice
from a litigant, it shall promptly communicate that document preservation notice to all
personnel who might possibly have responsive documents.
278.
MCSO shall continue to ensure that when it receives a request for documents in the
course of litigation, it shall:
a.
b. ensure that all existing electronic files, including email files and data stored on
networked drives are preserved.
c. ensure that a reasonably thorough and adequate search for documents is
conducted, and that each employee who might reasonably be in possession of
responsive documents conducts a reasonable search of all relevant physical and
electronic files.
279.
280.
MCSO policy shall provide that all employees must comply with document
preservation and production requirements and that violators of this policy may be
subject to disciplinary action.
20
c.
d.
e.
XX.
282.
ADDITIONAL TRAINING
Within two months of the entry of this Order, the MCSO shall ensure that all personnel
affected by this order are briefed and presented the terms of the Order, along with
relevant background information about the Courts Findings of Fact of May 13, 2016,
(Doc. 1677) upon which this Order is based.
21
161.
161.162.
The following terms and definitions shall also apply to this Order:
Appointing Authority means the person who is authorized to make employment
related decisions as it relates to intervention and disciplinary actions.
162.163.
163.164.
164.165.
Preponderance of the Evidence means evidentiary weight that, though not sufficient
to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and
impartial mind to one side of the issue rather than the other. Facts which are, more
likely than not, true.
Supervisor is defined in the Supplemental Permanent Injunction (Doc. 606), 1(mm): Supervisor or
supervisor means a sworn MCSO employee at the rank of sergeant or above (or anyone acting in those capacities)
with oversight responsibility for MCSO personnel.
165.166.
166.167.
Retaliation means the act of seeking revenge against someone. However, it is not
retaliation if a MCSO employee takes appropriate disciplinary action against an
employee for violation of a MCSO policy.
167.168.
Tester means a person who poses as a civilian making a fictitious complaint for
assessment purposes.
XV.
168.169.
169.170.
All policies, procedures, protocols, training materials, and other material required by
this Order are subject to the same process of review and comment by the parties and
approval by the Monitor described in Section IV and paragraph 46 of the first
Supplemental Permanent Injunction (Doc. 606).
170.171.
171.172.
Within two months of the entry of this Order, Tthe MCSO shall conduct a
comprehensive review of all policies, procedures, manuals, and other written directives
related to misconduct investigations, employee discipline, and grievances, and shall
adopt provide to the Monitor and Plaintiffs new policies or revise existing policies that
Such policies shall apply to all misconduct investigations of MCSO personnel which
occur after Court enters this supplemental injunction.
173.174.
ii.
175.176.
Retaliating against any person who reports or investigates alleged misconduct shall be
considered a serious offense and may shall result in discipline, up to and including
termination.
176.177.
The MCSO shall make all reasonable efforts to investigate all complaints and
allegations of misconduct, including third-party and anonymous complaints and
allegations. Employees as well as civilians shall be permitted to make misconduct
allegations anonymously.
177.178.
The MCSO will not terminate an administrative investigation only because the
complainant seeks to withdraw the complaint or is unavailable, unwilling, or unable to
cooperate with an investigation, or because the principal resigns or retires to avoid
discipline. The MCSO will continue the investigation and reach a finding, where
possible, based on the evidence and investigatory procedures and techniques available.
178.179.
179.180.
180.181.
Commanders shall review the disciplinary history of all employees who are transferred
to their command upon transfer.
182.183.
183.184.
There shall be no procedure referred to as a name-clearing hearing. All predisciplinary hearings shall be referred to as pre-determination hearings, regardless of
the employment status of the principal.
B.
184.185.
Misconduct-Related Training
Within six months of the entry of this Order, Tthe MCSO will continue to provide all
Supervisors and all personnel assigned to the Professional Standards Bureau with 40
hours of comprehensive training on conducting employee misconduct investigations.
This training may include, but may not be limited to: will include instruction in:
All Supervisors and all personnel assigned to the Professional Standards Bureau also
will receive 8 hours of in-service training annually related to conducting misconduct
investigations.
186.187.
Within six months of the entry of this Order of approval of the training module by the
Monitor, the Parties, and the Court, the MCSO will provide training that is adequate in
quality, quantity, scope, and type, as determined by the Monitor, to all employees on
MCSOs revised or new policies related to misconduct investigations, discipline, and
grievances. This training shall include instruction on identifying and reporting
misconduct, the consequences for failing to report misconduct, and the consequences
for retaliating against a person for reporting misconduct or participating in a
misconduct investigation.
187.188.
Within six months of the entry of this Order approval of the training module by the
Monitor, the Parties, and the Court, the MCSO will provide training that is adequate in
quality, quantity, scope, and type, as determined by the Monitor, to all employees,
including dispatchers, to properly handle civilian complaint intake, including how to
provide complaint materials and information and the consequences for failing to take
complaints.
188.189.
Within six months of the entry of this Order approval of the training module by the
Monitor, the Parties, and the Court, the MCSO will provide training that is adequate in
quality, quantity, scope, and type, as determined by the Monitor, to all Supervisors on
their obligations when called to a scene by a subordinate to accept a civilian complaint
about that subordinates conduct.
C.
189.190.
190.191.
191.192.
192.193.
The Professional Standards Bureau shall maintain a complete file of all documents
within MCSOs custody and control relating to any investigation and related
disciplinary proceedings, including pre-determination hearings, grievance proceedings,
and appeals to the Maricopa County Law Enforcement Merit Commission or a state
court.
193.194.
Upon being notified of any allegation of misconduct, the Professional Standards Bureau
will make an initial determination of the category of the alleged offense, to be used for
195.196.
196.197.
MCSO shall continue to require that iIf at any point during a misconduct investigation
an investigating Supervisor outside of the Professional Standards Bureau believes that
the principal may have committed misconduct of a serious or criminal nature, he or she
shall immediately notify the Professional Standards Bureau, which shall take over the
investigation.
197.198.
MCSO shall continue to require that tThe Professional Standards Bureau shall review
of all investigations assigned outside the Bureau to determine, among other things,
whether the investigation remain is properly categorized and assigned and whether the
investigation is being properly conducted.
198.199.
199.200.
The Commander Director of the Professional Standards Bureau shall ensure that
investigation assignments comply with MCSO policy and all requirements of this
Order, including those related to training, investigators disciplinary backgrounds, and
conflicts of interest.
200.201.
To the extent additional training is necessary, within six months of the approval of any
additional training by the Monitor, the Parties, and the Court entry of this order, the
Professional Standards Bureau shall include sufficient trained personnel to fulfill the
requirements of this Order.
201.202.
Where appropriate to ensure the fact and appearance of impartiality, the Commander
Director of the Professional Standards Bureau or the Chief Deputy may refer
administrative misconduct investigations to another law enforcement agency or may
retain a qualified outside investigator to conduct the investigation.
202.203.
The Professional Standards Bureau will be headed by a qualified Director who is not a
current or former employee of the MCSO. The Director of the Professional Standards
Bureau will have ultimate authority within the MCSO for reaching the findings of
investigations and determining any discipline to be imposed.
203.204.
The Court will select the Director of the Professional Standards Bureau.
204.205.
Within two weeks of the entry of this Order, the Parties may each submit to the Court
the names and resumes of three candidates to be considered for the position of Director
of the Professional Standards Bureau.
205.206.
The Court will consider these candidates but will not be limited to selecting the
Director from among them.
206.207.
207.208.
The MCSO will ensure that the qualifications for service as an misconduct investigator
shall be clearly defined and that anyone tasked with investigating employee misconduct
possesses excellent investigative skills, a reputation for integrity, the ability to write
clear reports, and the ability to be fair and objective in determining whether an
employee committed misconduct. Employees with a history of multiple sustained
misconduct allegations, or one sustained allegation of a Category 6 or Category 7
offense from MCSOs disciplinary matrices will be presumptively ineligible to conduct
misconduct investigations. Employees with a history of conducting deficient
investigations will also be presumptively ineligible for these duties.
208.209.
b. approach investigations without prejudging the facts and without permitting any
preconceived impression of the principal or any witness to cloud the
investigation;
c. identify, collect, and consider all relevant circumstantial, direct, and physical
evidence, including any audio or video recordings;
d. make reasonable attempts to locate and interview all witnesses, including civilian
witnesses;
e. make reasonable attempts to interview any civilian complainant in person;
f. audio and video record all interviews;
g. when conducting interviews, avoid asking leading questions and never ask
employees or witnesses any questions that may suggest justifications for the
alleged misconduct;
h. make credibility determinations, as appropriate; and
i. make all reasonable efforts to resolve material inconsistencies between employee,
complainant, and witness statements.
209.210.
There will be no automatic preference for an employees statement over a nonemployees statement. Misconduct Iinvestigators will not disregard a witnesss
statement solely because the witness has some connection to either the complainant or
the employee or because the witness or complainant has a criminal history, but may
consider the witnesss criminal history in evaluating that witnesss statement. In
conducting the investigation, misconduct investigators may take into account the record
of any witness, complainant, or officer who has been determined to have been
deceptive or untruthful in any legal proceeding, misconduct investigation, or other
investigation. Investigators will not disregard a witnessess, complainant, or officers
statement solely because that person has been determined to be deceptive or untruthful
in any legal proceeding, misconduct investigation, or other investigation.
210.211.
211.212.
If the person involved in the encounter with the MCSO pleads guilty or is found guilty
of an offense, misconduct Iinvestigators will not consider that information alone to be
10
213.214.
The Professional Standards Bureau shall continue to maintain a database to track all
ongoing misconduct cases and shall generate alerts to the responsible investigator and
his/her Supervisor and the Director Commander of the Professional Standards Bureau
when deadlines are not met.
214.215.
d. the names of all other MCSO employees who witnessed the incident;
e. the misconduct investigators evaluation of the incident, based on his or
her review of the evidence gathered, including a determination of
whether the employees actions appear to be within MCSO policy,
procedure, regulations, orders, or other standards of conduct required of
MCSO employees;
f. in cases where credibility determinations must be made, explicit
credibility findings, including a precise description of the evidence that
supports or detracts from the persons credibility;
g. in cases where material inconsistencies must be resolved between
complainant, employee, and witness statements, explicit resolution of
the inconsistencies, including a precise description of the evidence
relied upon to resolve the inconsistencies;
h. an assessment of the incident for policy, training, tactical, or equipment
concerns, including any recommendations for how those concerns will
be addressed;
i. if a weapon was used, documentation that the employees certification
and training for the weapon were current; and
j. documentation of recommendations for initiation of the disciplinary
process.
215.216.
216.217.
12
and recommend one of the following dispositions for each allegation of misconduct in
an administrative investigation:
a. Unfounded, where the investigation determines, by clear and convincing
evidence preponderance of the evidence, that the allegation was false or not
supported by factalleged misconduct did not occur or did not involve the
principal employee;
b. Sustained, where the investigation determines, by a preponderance of the
evidence, that the alleged misconduct did occur is supported by the evidence
and justify a reasonable conclusion of a policy violation;
c. Not Sustained, where the investigation is unable to determinedetermined, by a
preponderance of the evidence, whether the alleged misconduct occurredthat
there was insufficient evidence to prove or disprove the allegation or if the
initial complaint lacked sufficient details and the complainant was unable to be
reached for follow-up;
d. Exonerated, where the investigation determines, by a preponderance of the
evidence, that the incident occurred, but the actions of the employee were
within policy guidelinesthat the alleged conduct did occur but did not violate
MCSO policies, procedures, or training.; or
e. Sustained violation not based on original complaint, where the investigation
determines, by a preponderance of the evidence, that misconduct did occur that
was not alleged in the original complaint but that was discovered during the
misconduct investigation.
218.
13
shall review the investigative file and concur or not concur with the preliminary
findings. If the bureau chief concurs with the findings, he shall sign and date the
investigative file and then forward it to the executive chief for review. The executive
chief shall review the investigative file, concur or not concur with the preliminary
findings, and make a determination whether the findings may be reviewed for
intervention or disciplinary action. If the executive chief does not concur with the
preliminary findings, he shall document the reason. If the executive chief concurs with
the preliminary finding, he shall sign and date the investigative file. If the findings are
sustained, the executive chief shall forward the investigation to the Compliance
Division with direction of what action is to be taken. If the findings are not sustained,
unfounded, or exonerated, the executive chief shall forward the investigative file to the
Appointing Authority.
217.219.
For investigations carried out by the Professional Standards Bureau, once the
investigative report is completed, the PSB investigator shall forward the report to the
PSB Commander. The PSB Commander shall be responsible for determining which
policies have been violated based on the facts of the investigative file, and the
preliminary findings for each alleged policy violation. The PSB Commander shall
forward the investigative file to the Chief Deputy. The Chief Deputy shall review the
investigative file, concur or not concur with the preliminary findings, and make a
determination whether the findings may be reviewed for intervention or disciplinary
action. If the Chief Deputy does not concur with the preliminary findings he shall
document the reason as specified in this Policy. If the Chief Deputy concurs with the
preliminary finding he shall sign and date the investigative file. If the findings are
sustained, the Chief Deputy shall forward the investigation to the Compliance Division
with direction of what action is to be taken. If the findings are not sustained, unfounded,
or exonerated, the Chief Deputy shall forward the investigative file to the Appointing
Authority. the investigator shall forward the completed investigation report to the
Director. The Commander or Director shall review the report to ensure that it is
complete and that the findings are supported using the appropriate standard of proof.
The Commander or Director shall order additional investigation when it appears that
there is additional relevant evidence that may assist in resolving inconsistencies or
14
The Appointing Authority shall make final findings on all administrative investigations.
If the investigative file was forwarded to the Compliance Division for intervention or
disciplinary action, the Appointing Authority will direct the Compliance Division
personnel to ensure that proper action is taken. Upon review of the information
presented by the Compliance Division, if the Appointing Authority does not concur
with the direction provided by the executive chief or the Chief Deputy, he shall
document the reasons as specified in this Policy. If the Appointing Authority concurs
with the direction provided by the executive chief or the Chief Deputy, he shall ensure
that proper action is taken as specified in Office Policy GC-17, Employee Disciplinary
Procedures. Final findings will be made following the procedures outlined in Office
Policy GC-17, Employee Disciplinary Procedures. If the findings were not sustained,
unfounded, or exonerated, the Appointing Authority shall review the investigative file.
If the Appointing Authority does not concur, he shall document the reason as specified
in this Policy. If the Appointing Authority concurs, he shall document the final
findings and return the investigation to the PSB who shall complete the Closed Case
Notification and, if applicable, send the Final Disposition Letter. This notification shall
be made by the PSB within 10 calendar days of receipt of the investigation from the
appointing authority. A copy of each letter shall be placed in the investigative file. The
investigation shall be stored in the PSB.Where the or Director determines that the
findings of the investigation report are not supported by the appropriate standard of
proof, the Commander or Director shall document the reasons for this determination
and shall include this documentation as an addendum to the original investigation. The
investigators Supervisor shall take appropriate action to address the inadequately
supported determination and any investigative deficiencies that led to it. Commanders
and the Director of the Professional Standards Bureau shall be responsible for the
accuracy and completeness of investigation reports prepared by misconduct
investigators under their command.
219.221.
15
after corrective and/or disciplinary action is taken shall be grounds for demotion and/or
removal from a supervisory position or the Professional Standards Bureau.
220.222.
221.223.
222.224.
223.225.
16
concerns, the Director of the Professional Standards Bureau shall also ensure that
necessary training is delivered and that policy, tactical, or equipment concerns are
resolved.
224.226.
The Professional Standards Bureau shall conduct targeted and random reviews of
discipline imposed by Commanders for minor misconduct to ensure compliance with
MCSO policy and legal standards.
225.227.
F.
226.228.
Discipline
The MCSO will ensure that discipline for sustained allegations of misconduct comports
with due process, and is consistently applied, fair, and based on the nature of the
allegation, and that mitigating and aggravating factors are identified and consistently
applied and documented.
227.229.
In order to ensure consistency in the imposition of discipline, the MCSO will review its
current disciplinary matrices and will amend them as necessary to ensure that they:
17
In cases involving more than one offense, the most serious offense shall establish the
Category of Offense pursuant to MCSOs disciplinary matrices. Other offenses may
then be considered as aggravating circumstances. Each act or omission that results in a
sustained misconduct allegation may shall be treated as a separate offense for the
purposes of imposing discipline.
229.231.
The Appointing Authority Director of the Professional Standards Bureau shall make
preliminary determinations of the discipline to be imposed in all cases, other than those
handled at the District level, and shall document his or herall disciplinary decisions in
writing, including the presumptive range of discipline for the sustained misconduct
allegation, the employees disciplinary history, all mitigating and aggravating factors
considered, and all recommended non-disciplinary corrective action.
D.
230.232.
Pre-Determination Hearings
231.233.
Pre-determination hearings will be audio and video recorded in their entirety, and the
recording shall be maintained with the administrative investigation file.
18
232.234.
233.235.
234.236.
MCSO policy shall provide that the Appointing Authority a commander conducting a
pre-determination hearing should apply the disciplinary matrix and set forth clear
guidelines for the grounds on which a deviation is permitted. A commander may not
consider as grounds for mitigation or reducing the level of discipline prescribed by the
matrix:
a. his or her personal opinion about the employees reputation;
b. the employees past disciplinary history (or lack thereof), except as provided in
the disciplinary matrix;
c. whether other employees charged with similar conduct received lighter discipline
or whether others were jointly responsible for the misconduct.
235.237.
19
E.
236.238.
237.239.
238.240.
239.241.
The Professional Standards Bureau will continue to ensure that criminal investigators
conducting a criminal investigation do not have access to any statements by the
principal that were compelled pursuant to Garrity v. New Jersey.
240.242.
20
criminal offense, and that the purposes of the administrative investigation process differ
from those of the criminal investigation process.
241.243.
MCSO shall continue to require that a decision must be documented in writing and
referred to the Commander of the Professional Standards Bureau if the
investigatorentity conducting the criminal investigation decides to close the
investigation without referring it to a prosecuting agency, this decision must be
documented in writing and provided to the Professional Standards Bureau. MCSO shall
continue to require that tThe Commander of the Professional Standards Bureau shall
separately consider whether to refer the matter to a prosecuting agency and shall
document theits decision in writing.
242.244.
243.245.
If the prosecuting agency declines to prosecute or dismisses the criminal case after the
initiation of criminal charges, the Professional Standards Bureau shall request an
explanation for this decision, which shall be documented in writing and appended to the
criminal investigation report.
244.246.
The Professional Standards Bureau shall maintain all criminal investigation reports and
files after they are completed for record-keeping, subject to MCSOs document
retention policies.
F.
245.247.
Within six months of the entry of this Order, the Monitor, in consultation with the
Community Advisory Board, will develop and implement a program to promote
awareness throughout the Maricopa County community about the process for filing
complaints about the conduct of MCSO employees.
21
246.248.
The MCSO will continue to accept all civilian complaints, whether submitted verbally
or in writing; in person, by phone, or on line; by a complainant, someone acting on the
complainants behalf, or anonymously; and with or without a signature from the
complainant. MCSO will document all complaints in writing.
247.249.
The MCSO will continue to post and maintain at the reception desk at MCSO
headquarters and in locations at all District stations that are clearly visible to members
of the public permanent placards clearly and simply describing the civilian complaint
process. MCSO shall continue to haveThe placards shall that include relevant contact
information, including telephone numbers, email addresses, and Internet sites. The
placards shall be in both English and Spanish.
248.250.
The MCSO will require all deputies to carry complaint forms in their MCSO vehicles.
Deputies will provide complaint forms and information about how to file a complaint to
individuals upon request. Deputies will provide their name and badge number upon
request. If an individual indicates to a deputy that he or she would like to make a
complaint about that deputy, and time and circumstances permit, the deputy will
immediately inform his or her Supervisor and ask the Supervisor how long it would
take him or her to respond to the scene. The deputy will then inform the individual that
his or her Supervisor can respond to the scene to assist the individual in filing a
complaint, if the individual desires and is willing to wait for the Supervisor to arrive. If
the individual responds in the affirmative, and time and circumstances permit, the
Supervisor will respond to the scene, assist the individual to the extent assistance is
desired, and provide the individual a copy of the completed complaint form. Otherwise
the deputy will assist the individual to the extent assistance is desired and provide the
individual a copy of the completed complaint form.
249.251.
The MCSO will ensure that the Professional Standards Bureau facility is easily
accessible to members of the public. There shall be a space available for receiving
walk-in visitors and personnel who can assist the public with filing complaints and/or
answer questions about the complaint investigations process.
250.252.
The MCSO will also make complaint forms widely available at locations around the
County including: the websites of MCSO and Maricopa County government; the lobby
of MCSOs headquarters; each patrol District; and the Maricopa County government
22
offices. The MCSO will ask locations such as public library branches and the offices
and gathering places of community groups to make these materials available.
251.253.
The MCSO will establish a free, 24-hour hotline for members of the public to make
complaints.
252.254.
The MCSOs complaint form will not contain any language that could reasonably be
construed as discouraging the filing of a complaint, such as warnings about the
potential criminal consequences for filing false complaints.
253.255.
MCSO will continue to ensure that Within two months of the entry of this Order,
complaint forms will be made available, at a minimum, in English and Spanish. The
MCSO will make reasonable efforts to ensure that complainants who speak other
languages (including sign language) and have limited English proficiency can file
complaints in their preferred language. The fact that a complainant does not speak,
read, or write English, or is deaf or hard of hearing will not be grounds to decline to
accept or investigate a complaint.
254.256.
23
determine the status of his or her complaint, and MCSO will provide the status.
256.
257.
258.
259.
Transparency Measures
24
25
number of employees who have had more than one sustained allegation of
major misconduct in the previous 12 months, broken down by the number of
sustained allegations; and the number of criminal prosecutions of employees,
broken down by criminal charge.
260.
The MCSO shall make detailed summaries of completed internal affairs investigations
readily available to the public to the full extent permitted under state law, in electronic
form on a designated section of its website that is linked to directly from MCSOs
home page with prominent language that clearly indicates to the public that the link
provides information about investigations of misconduct by MCSO employees.
261.
The MCSO Bureau of Internal Oversight shall produce a quarterly public audit report
regarding misconduct investigations. This report shall analyze a stratified random
sample of misconduct investigations that were completed during the previous quarter to
identify any procedural irregularities, including any instances in which:
a. complaint notification procedures were not followed;
b. a misconduct complaint was not assigned a unique identifier;
c. investigation assignment protocols were not followed, such as serious or
criminal misconduct being investigated outside of the Professional Standards
Bureau;
d. deadlines were not met;
e. an investigation was conducted by an employee who had not received required
misconduct investigation training;
f. an investigation was conducted by an employee with a history of multiple
sustained misconduct allegations, or one sustained allegation of a Category 6 or
Category 7 offense from MCSOs disciplinary matrices;
g. an investigation was conducted by an employee who was named as a principal
or witness in any investigation of the underlying incident;
h. any interviews were not recorded;
i. the investigation report was not reviewed by the appropriate personnel;
j. employees were promoted or received a salary increase while named as a
principal in an ongoing misconduct investigation;
k. a final finding was not reached on a misconduct allegation;
26
The MCSO shall initiate a testing program designed to assess civilian complaint
intake. Specifically, the testing program shall assess whether employees are providing
civilians appropriate and accurate information about the complaint process and whether
employees are notifying the Professional Standards Bureau upon the receipt of a
civilian complaint.
263.
The testing program is not intended to assess investigations of civilian complaints, and
the MCSO shall design the testing program in such a way that it does not waste
resources investigating fictitious complaints made by testers.
264.
The testing program shall assess complaint intake for complaints made in person at
MCSO facilities, complaints made telephonically, and complaints made electronically
by email or through MCSOs website. Testers shall not interfere with deputies taking
law enforcement action. Testers shall not attempt to assess complaint intake in the
course of traffic stops or other law enforcement action being taken outside of MCSO
facilities.
265.
The testing program shall include sufficient random and targeted testing to assess the
complaint intake process, utilizing surreptitious video and/or audio recording, as
permitted by state law, of testers interactions with MCSO personnel to assess the
appropriateness of responses and information provided.
266.
The testing program shall also assess whether employees promptly notify the
Professional Standards Bureau of civilian complaints and provide accurate and
complete information to the Bureau.
267.
268.
The MCSO shall produce an annual report on the testing program. This report shall
include, at a minimum:
a. a description of the testing program, including the testing methodology and the number
of tests conducted broken down by type (i.e., in-person, telephonic, and electronic);
27
The Community Advisory Board may conduct or retain a consultant to conduct a study
to identify barriers to the filing of civilian complaints against MCSO personnel.
270.
In addition to the administrative support provided for in [cite the amended order], the
Community Advisory Board (CAB) shall be provided with annual funding to support
its activities, including but not limited to funds for a study of the barriers to the filing of
civilian complaints, outreach advertising and website maintenance, stipends for intern
support, professional interpretation and translation, and out-of-pocket costs of the CAB
members for transportation related to their official responsibilities. The CAB shall
submit a proposed annual budget to the Monitor, not to exceed $15,000, and upon
approval of the annual budget the County shall deposit that amount into an account
established by the CAB for that purpose.
The following Section of this Order represent additions and amendments to Section X
of the first Supplemental Permanent Injunction, Supervision and Evaluations of Officer
Performance, and the provisions of this Section override any conflicting provisions in
Section X of the first Supplemental Permanent Injunction.
272.
28
273.
274.
275.
Supervisors shall be responsible for close and effective supervision of deputies under
their command. Supervisors shall ensure that all deputies under their direct command
comply with MCSO policy, federal, state and local law, and this Courts orders.
276.
XVIII.
277.
MCSO shall continue to ensure that when it receives a document preservation notice
from a litigant, it shall promptly communicate that document preservation notice to all
personnel who might possibly have responsive documents.
278.
MCSO shall continue to ensure that when it receives a request for documents in the
course of litigation, it shall:
a. promptly communicate the document request to all personnel who might
possibly reasonably be in possession of responsive documents.
b. ensure that all existing electronic files, including email files and data stored on
networked drives are sequestered and preserved through a centralized process.
c. ensure that a reasonably thorough and adequate search for documents is
conducted, and that each employee who might possibly reasonably be in
possession of responsive documents conducts a thorough and adequate
reasonable search of all relevant physical and electronic files.
29
279.
Within three months of the effective date of this order, the MCSO Compliance Division
shall promulgate detailed protocols for the preservation and production of documents
requested in litigation. Such protocols shall be subject to the approval of the Monitor
after a period of comment by the Parties.
280.
MCSO policy shall provide that all employees must comply with document
preservation and production requirements and that violatorsviolations of this policy
shall may be subject to disciplinary action.e and potentially other sanctions.
XX.
282.
ADDITIONAL TRAINING
Within two months of the entry of this Order, the MCSO shall ensure that all
employees personnel affected by this order are briefed and presented the terms of the
Order, along with relevant background information about the Courts Findings of Fact
of May 13, 2016, (Doc. 1677) upon which this Order is based.
30