While this article is written especially for those working in the law enforcement field, its principles are equally helpful to all professionals like physicians, engineers or teachers facing professional misconduct allegations. Our firms defends a wide variety of professions, and we consistently find that the similarities among professional discipline processes far outweigh the differences.
If you’ve been involved in policing for a while, you’ve probably come to expect the unexpected. Both externally, and internally.
One of the unexpecteds can be the decision to convene a conduct board into your conduct. You know that others sometimes do outrageous things that no one in senior command learns about, or does anything about, or that at most result in informal proceedings. But then something that is just you doing your duty blows up into a full fledged conduct board. Maybe because of a public complaint, or a third party investigation, or a CO’s decision, or just internal politics. One minute, you’re doing your best to do your job, and the next minute your CO is asking for your badge and service pistol, and assigning you to admin duties, or sending you home with pay, or even seeking to suspend you without pay, because a conduct board is being convened out of formal misconduct charges brought against you.
While I’ve never defended a client charged with criminal offences based on no evidence whatsoever (though sometimes the evidence can be weak), I’ve seen that happen on more than one occasion to my law enforcement clients facing misconduct allegations. Subjective command views of what should or shouldn’t be done in a complex and evolving policing situation transform into formal allegations and fighting to keep your job. All because you were doing your job.
What are you to do? I have eight prime principles for you to follow, developed from what I’ve seen go right or wrong during my years of involvement in law enforcement professional conduct investigations and proceedings.
1. Say Nothing Initially
Easier said than done in a policing environment, I know. And sometimes even capable of being overridden by a direct order from a superior officer, because in administrative disciplinary proceedings you don’t have the same rights to remain silent as you do in criminal proceedings. But if anyone asks you to say anything, do your best to respectfully decline to do so. They can and will hold any unintentional inaccuracies against you later.
If they insist, demand their statutory authority and force them to give you an order. It may offer you some legal protection against self-incrimination. And if you do feel compelled to explain yourself, at least get some legal advice before doing so. I’ve seen many officers have charges of lying to a superior officer in the course of an investigation added to their already weighty allegations, because they weren’t believed when they provided a statement; refusing to provide a statement means at least they can’t add on that extra charge.
2. Get Legal Help
This advice is less obvious than it sounds, as police officers may have a complex web to navigate in order to get the help they need. In my experience there may be inconsistent rules on who gets free help and who does not. And that help might be from a lawyer or non-lawyer representative.
Ideally, you want you own independent lawyer of your own choice. If you are willing to pay out of your own pocket, this is always possible. No police service bans private lawyers from participation in its processes, though the trick will be to find a lawyer with police conduct board experience as conduct boards tend to be a unique hybrid of civil, criminal and administrative proceedings. Each of the civil, criminal and admin legal categories have their own kinds of lawyers, but you really need a lawyer who understands all of them, which means someone with police conduct board experience because it’s one of the few places where those three subjects intersect all the time.
3. Plan for a Long Process
How long? Maybe at least a year or two. The record I’ve seen is thirteen years! Seriously. Some police services are working to shorten those timelines, but timing is largely dependant on whether there is going to be a contested hearing or not. A consent hearing can likely be sorted out in a few months, because often only the sanction is in much debate, and probably one day of hearings will be sufficient. Whereas a fully contested hearing could take up weeks of board time, and resultingly take years to finish if there are multiple breaks in the evidence.
4. Be Prepared for Collateral Consequences
Police misconduct allegations can carry with them potential criminal or civil liability. In theory the order of proceedings should be criminal case first, then conduct board, then civil case. Be aware that what you admit to at your conduct board could be used against you in criminal or civil proceedings, even if it shouldn’t be. Even if superiors don’t directly use your testimony, they still may wind up with derivative use evidence learned only as a result of a further investigation based on what you testified to.
5. Be Prepared for a Lower Standard of Proof
Most police officers are used to dealing with the beyond a reasonable doubt standard of criminal courts, and understand the truly compelling wall of evidence that’s required to discharge a burden of proof upon that standard. Not so with a conduct board that only requires proof on a balance of probabilities. It’s true that the Ontario Police Services Act introduces the standard of “clear and convincing evidence,” and there’s been much debate over whether that's a higher standard than balance of probabilities, but the trend in the jurisprudence seems to say that it’s not.
6. Be Prepared for a Dump Truck of Hearsay Evidence
Unlike courts, administrative tribunals commonly admit hearsay evidence (evidence without a live witness to testify to its authenticity), claiming that it's only a question of weight, not admissibility. RCMP conduct proceedings are now even evolving towards mostly paper cases, where the conduct authority receives complete disclosure of all "evidence" in a file at the same time as the defence, and can then decide a case upon that disclosure. The defence challenging the reliability of paper without a witness to cross-examine can be very difficult.
7. Be Prepared to Testify
Police conduct boards seem to expect to hear the officer’s side of things. Even though you have the right to remain silent, if you don’t at least give your side of the story a board might find there is no contrary evidence, and thus accept everything the CO is presenting against you, especially because the standard of proof is so low.
8. Be Prepared with Sanction Evidence
No matter how confident you might feel about your case, its always prudent to plan for the worst case scenario, which is that a board convicts you of something. You don’t want to be putting all your efforts into proving your innocence, and have no backup evidence like letters of reference, character witnesses or performance reports for a sanction phase which might proceed immediately after a finding of guilt. Because conduct boards are sometimes able to impose the capital punishment of the law enforcement employment world - discharge from the police service - the sanction phase can be even more important than the allegations phase. There is a world of difference between a reprimand and minor pay forfeiture, and losing a career.
Gordon S. Campbell has served as a Member Representative with the RCMP, counsel to the Military Police Complaints Commission, and represents law enforcement officers and other professionals throughout Canada. Find out more at proconductlaw.com.