Bureau of Independent Review, Semi-Annual Report, July – December 2005

O I G FFICE OF THE NSPECTOR ENERAL MATTHEW L. CATE, INSPECTOR GENERAL BUREAU OF INDEPENDENT REVIEW DAVID R. SHAW CHIEF ASSISTANT INSPECTOR GENERAL HOWARD E. MOSELEY LEAD SPECIAL ASSISTANT INSPECTOR GENERAL ROBERT BARTON STEPHEN MILLER TIM RIEGER SENIOR ASSISTANT INSPECTORS GENERAL SEMI-ANNUAL REPORT JULY - DECEMBER 2005 STATE OF CALIFORNIA C ONTENTS FOREWORD ------------------------------------------------------------------------------------------------ 1 INTRODUCTION ---------------------------------------------------------------------------------------------- 3 OPERATIONS OF THE BUREAU OF INDEPENDENT REVIEW -------------------------------------------- 5 STAFF AND ORGANIZATION-------------------------------------------------------------- 5 ORGANIZATION CHART------------------------------------------------------------------- 9 TRAINING ACTIVITIES -------------------------------------------------------------------10 LIAISON ACTIVITIES ---------------------------------------------------------------------10 ASSESSMENT OF THE MADRID V. WOODFORD REFORMS----------------------------------------------12 IMPACT OF THE BUREAU OF INDEPENDENT REVIEW ON CORRECTIONAL POLICY---------------15 CENTRAL INTAKE UNIT------------------------------------------------------------------15 CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION OPERATIONS MANUAL-------------------------------------------------------------------16 BARGAINING UNIT 6 MEMORANDUM OF UNDERSTANDING, REVIEW AND STIPULATION------------------------------------------------------------------------------17 CRITICAL INCIDENTS --------------------------------------------------------------------------------------19 CRITICAL INCIDENT RESPONSES-------------------------------------------------------19 SUMMARY OF CRITICAL INCIDENTS---------------------------------------------------20 CASE MONITORING ACTIVITIES -------------------------------------------------------------------------35 CRIMINAL AND ADMINISTRATIVE INVESTIGATIONS --------------------------------35 SUMMARY OF CRIMINAL INVESTIGATIONS — JULY-DECEMBER 2005-----------38 SUMMARY OF ADMINISTRATIVE INVESTIGATIONS — JULY-DECEMBER 2005--50 SPECIAL REVIEWS: UPDATE ON THE SPECIAL REVIEW INTO THE DEATH OF INMATE DANIEL PROVENCIO----------------------------------------------------------------------86 APPENDIX A: SENATE BILL NO. 1400 (2004)-----------------------------------------------------------87 APPENDIX B: CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION OPERATIONS MANUAL, ARTICLE 22----------------------------------------------------89 F OREWORD T he Office of the Inspector General is the state agency charged with independent oversight of California’s correctional system. My mission as the Inspector General is to safeguard the integrity of the state’s correctional system—in effect, to act as the eyes and ears of the public in overseeing the state’s prisons. The Bureau of Independent Review was added to the Office of the Inspector General in late 2004. The bureau’s mission is to ensure the integrity of internal affairs investigations into allegations of serious misconduct inside the California Department of Corrections and Rehabilitation. Established as a central component in a court- ordered remedial plan in Madrid v. Woodford, a federal civil rights action against the former California Department of Corrections, the bureau began partial operations in January 2005 and full operations in July 2005. Bureau attorneys and investigators are assigned to provide real-time, on-the-scene oversight of serious investigations carried out by department internal affairs investigators to make sure the investigations are thorough, objective, and timely. Once an investigation has been completed, bureau attorneys work closely with the attorneys of the Employment Advocacy and Prosecution Team and the appropriate hiring authority to ensure that this process is fair and that any discipline imposed is appropriate. One of the chief goals of the Bureau of Independent Review is to make the employee disciplinary process transparent to the public as a means of promoting accountability while complying with applicable privacy laws. Consistent with that purpose, California Penal Code section 6133 calls for the bureau to publish semi-annual reports of its work. The second six months of the bureau’s operations are covered within this report. As the Inspector General, it has been my privilege to supervise the bureau as its attorneys and investigators mature into a professional organization. Under the direction of Chief Assistant Inspector General David Shaw, the bureau’s three regional offices in Rancho Cordova, Bakersfield, and Rancho Cucamonga have been staffed with attorneys and investigators selected through a vigorous statewide recruitment effort. In addition to its monitoring and oversight activities, the bureau, along with staff from the Office of Internal Affairs and the Employment Advocacy and Prosecution Team, has continued to conduct numerous statewide training sessions for investigators, wardens, and employee rights officers within the California Department of Corrections and Rehabilitation. The bureau also continues to fulfill an important role in the department’s reorganization and the development of policy affecting investigations, correctional employee discipline, inmate heath care, and related issues. I would again like to extend my thanks to the many individuals and organizations assisting us during the bureau’s first year of operation. In particular, I would like to thank Special Master John Hagar of the U.S. District Court and Chief Attorney Michael Gennaco of the Los Angeles County Office of Independent Review—upon which the Bureau of Independent Review is modeled—for support and assistance during the bureau’s formation. BUREAU OF INDEPENDENT REVIEW PAGE 1 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA On behalf of their attorneys, investigators, and support staff of the Bureau of Independent Review, I invite you to review this second semi-annual report and provide us with your feedback. The bureau will continue to post reports and other information to the Office of the Inspector General’s website at www.oig.ca.gov. — MATTHEW L. CATE, INSPECTOR GENERAL BUREAU OF INDEPENDENT REVIEW PAGE 2 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA I NTRODUCTION I am pleased to submit our second semi-annual report of the Bureau of Independent Review, Office of the Inspector General, for the period of July 1 through December 31, 2005. This report is presented in accordance with the provisions of California Penal Code section 6133,1 which mandates reporting as needed and on a semi-annual basis. The bureau’s attorneys and investigators are dedicated to ensuring that the governor, the legislature, and the public gain increasing confidence in the competence and fairness of California Department of Corrections and Rehabilitation employee investigative, disciplinary, and appellate processes. Our ultimate goal is to assist the department in preventing misconduct and abuse by promoting integrity, efficiency, and fairness in the adult and juvenile divisions, and to maintain public trust in state government. The bureau enhances the employee disciplinary process by assessing the quality of each internal affairs investigation meeting specified bureau criteria, as well as the appropriateness of proposed disciplinary actions. The bureau then makes recommendations on the disposition of the case, the level of discipline imposed, and the agreement or lack of agreement between its recommendations, the department’s resolution, and the final outcome of the appellate process. At every stage of a monitored case, bureau attorneys work closely with internal affairs investigators, staff attorneys, employee relations officers, and hiring authorities. It is through this cooperation that consensus can ultimately be reached and the goals of fairness and transparency can best be realized. To accomplish its mandate of providing real-time oversight of the internal affairs and employee disciplinary process at the California Department of Corrections and Rehabilitation, the bureau has employed 12 attorneys with extensive backgrounds in criminal law, civil rights, and public employment law. The bureau has also recently added several seasoned investigators to its staff to extend the range of its monitoring activities, with a complement of support staff in each regional office to further its performance. During this reporting period, bureau staff increased its familiarity with the department and gained a more thorough knowledge of the complex operations within the state correctional system. Bolstered with increased knowledge and internal affairs investigative expertise, the bureau has influenced the quality of internal affairs investigations and, as a result, the direction taken by the employee disciplinary process. Although bureau attorneys and investigators work cooperatively with the Office of Internal Affairs and the Employment Advocacy and Prosecution Team, the bureau has both the autonomy and legal authority to independently monitor internal affairs investigations into serious misconduct. Such autonomy and legal authority are central to the bureau’s efficacy in performing its oversight role with a high degree of professionalism. 1 See Appendix A: Senate Bill No. 1400 (2004), an act introducing Penal Code section 6133. BUREAU OF INDEPENDENT REVIEW PAGE 3 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA The bureau’s staff meets routinely with wardens, superintendents, and the executive and investigative staff of department facilities statewide, as well as with parole staff. In addition, the bureau continues to meet with such key external stakeholders as the Prison Crimes Committee of the California District Attorneys’ Association, the California State Sheriffs’ Association, and the Prison Law Office, along with other outside law enforcement agencies across all jurisdictions. As a liaison, the bureau has assisted outside law enforcement personnel in investigations of inmate homicides, narcotics trafficking, and staff assaults, and has also provided critical input toward departmental policy-making decisions. The bureau has regularly participated in the department’s central intake project, which is now close to reviewing all requests for internal affairs investigations throughout the state. In addition, the bureau has recently completed an extensive review of the regulations, laws, practices, and precedents affecting internal affairs investigations and the overall staff disciplinary process. This report represents the statistical data derived both from case monitoring and from the interaction between the bureau and the department over the past reporting period. Because many departmental internal affairs investigations and related administrative disciplinary or criminal prosecutions span two or more reporting periods, some cases may be reported in consecutive reports. In closing, I would like to thank a number of individuals for their support of the Bureau of Independent Review. First and foremost, the bureau has enjoyed the continued endorsement of Inspector General Matthew Cate, who has made the bureau’s full operation a top priority in his administration. The contributions of Judge Thelton Henderson, Special Master John Hagar, and Chief Attorney Michael Gennaco of the Los Angeles County Office of Independent Review have also been invaluable to the bureau’s operations. The bureau also wishes to commend former California Department of Corrections and Rehabilitation Secretary Roderick Q. Hickman; former acting Secretary Jeanne Woodford; retired Assistant Secretary Mark Gantt; acting Assistant Secretary Martin Hoshino; and Assistant Chief Counsel Debra Ashbrook, whose unqualified cooperation has greatly assisted the bureau in establishing itself as a respected organization across the state. — DAVID SHAW, CHIEF ASSISTANT INSPECTOR GENERAL BUREAU OF INDEPENDENT REVIEW PAGE 4 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA OPERATIONS OF THE BUREAU OF INDEPENDENT REVIEW The Bureau of Independent Review developed rapidly during its second six months of operation from July through December 2005, recruiting and hiring additional staff, meeting with other correctional entities and stakeholders, conducting internal and external training, and participating in numerous California Department of Corrections and Rehabilitation policy and legal development activities. The bureau has continued to respond to critical incidents at the state’s correctional institutions, monitoring an increasing number of internal affairs investigations into the most serious misconduct allegations. Those activities and outcomes are summarized later in this report. STAFF AND ORGANIZATION In addition to Chief Assistant Inspector General David R. Shaw, the bureau hired 11 full-time attorneys to staff its three regional offices in Rancho Cordova, Bakersfield, Rancho Cucamonga, and its Sacramento headquarters. Senior attorneys, classified as senior assistant inspectors general, supervise the northern, central, and southern California regional offices. The staff attorneys, classified as special assistant inspectors general, were selected for each office to furnish legal expertise in criminal and civil rights, medical malpractice, and public employment law. These attorneys also have significant experience working with law enforcement, labor organizations, and prosecutorial officials throughout the state. The newest group of employees hired by the bureau includes internal affairs and criminal investigators with experience in such disciplines as correctional investigations, medical and death investigations, public corruption, and computer crimes. These trained investigators assist the attorneys in ways that are integral to the success of bureau operations. Following are brief biographical sketches of the attorneys and investigators serving in the Bureau of Independent Review during this second reporting period, followed by the bureau’s organization chart. HEADQUARTERS — SACRAMENTO, CALIFORNIA David R. Shaw was appointed chief assistant inspector general of the Bureau of Independent Review by Governor Arnold Schwarzenegger in July 2004. Before his appointment, Mr. Shaw served as deputy executive officer of the Victim Compensation and Government Claims Board; executive director of the Governor’s Office of Criminal Justice Planning; chief counsel to the Assembly Public Safety Committee; and deputy district attorney for Sacramento County, where he was cross-designated as a special assistant U.S. Attorney for the Eastern District of California. Mr. Shaw is a colonel in the United States Army Reserve and an adjunct professor at McGeorge School of Law. Howard E. Moseley was appointed lead special assistant inspector general for the Bureau of Independent Review by Governor Arnold Schwarzenegger in January 2005. He previously served as a deputy attorney general in the Criminal Law Division of the California Department BUREAU OF INDEPENDENT REVIEW PAGE 5 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA of Justice. While at the Attorney General’s Office he was a member of the trial litigation team, was appointed the legal liaison for the California Witness Protection Program, and was the primary reviewer of criminal referrals from the California Department of Corrections. Before that, he was a linguist in military intelligence for the United States Army. NORTHERN REGIONAL OFFICE— RANCHO CORDOVA, CALIFORNIA Tim Rieger was appointed senior assistant inspector general of the Bureau of Independent Review, Northern Region, by Governor Arnold Schwarzenegger in May 2005. Before his appointment, Mr. Rieger served as the deputy director and chief counsel for the California Attorney General’s Department of Justice Firearms Division. He also served the California Attorney General for several years as a deputy attorney general in the Criminal Division. Before he began his ten years with the Attorney General’s Office, Mr. Rieger worked as a prosecutor in the Sacramento County District Attorney’s Office. Mr. Rieger is a major in the Judge Advocate General’s Corps, serving in the 22nd Legal Support Organization, United States Army Reserve. Neil Robertson was appointed special assistant inspector general for the Bureau of Independent Review, Northern Region, by Governor Arnold Schwarzenegger in January 2005. Prior to his appointment, Mr. Robertson served as senior tax counsel in the General Counsel Section of the California Franchise Tax Board, where he represented the department in all aspects of public sector employment law and provided legal support to the Criminal Investigations Unit for prosecution of state tax crimes. He also served as staff counsel to the California Department of Corrections, Office of Internal Affairs, and as staff attorney representing law enforcement agents with the California Union of Safety Employees and the California Correctional Peace Officer’s Association. Abel D. Ramirez was appointed special assistant inspector general for the Bureau of Independent Review, Northern Region, by Governor Arnold Schwarzenegger in January 2005. Before his appointment, Mr. Ramirez served as staff counsel for the California Youth Authority, where he represented the department in administrative hearings before the State Personnel Board. Mr. Ramirez also worked as a prosecutor for several years in the Sacramento County District Attorney’s Office and as a deputy probation officer for the Sacramento County Probation Office. Samuel Dudkiewicz was hired as assistant inspector general for the Bureau of Independent Review, Northern Region, in December 2005. Mr. Dudkiewicz served for 30 years in California law enforcement, including 12 years with the Richmond Police Department and 18 years with the Department of Justice, where he served in the Bureau of Investigation, Bureau of Narcotic Enforcement, and was most recently a deputy director in the Division of Gambling Control. Mr. Dudkiewicz is a colonel in the United States Army Reserve. CENTRAL REGIONAL OFFICE—BAKERSFIELD, CALIFORNIA Robert Allen Barton was appointed senior assistant inspector general for the Bureau of Independent Review, Central Region, by Governor Arnold Schwarzenegger in January 2005. Mr. Barton began his career in law enforcement with the Fresno County Sheriff’s Department. After BUREAU OF INDEPENDENT REVIEW PAGE 6 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA obtaining his law degree, Mr. Barton became a deputy district attorney for Kern County, where he worked in the Special Prosecutions Unit and was the supervising deputy district attorney of the Juvenile and Truancy Units, Gang Unit, and Prison Crimes Unit. Mr. Barton has been an adjunct faculty member with California State University, Bakersfield and Bakersfield College, teaching courses in public speaking, criminal law, gangs and crime, and media law. Anna M. Ferguson was appointed special assistant inspector general for the Bureau of Independent Review, Central Region, by Governor Arnold Schwarzenegger in January 2005. Before her appointment, Ms. Ferguson served as a deputy district attorney in Kings County, leading the Drug Crimes, Prison Crimes, Sexual Assault, and Domestic Violence Units. In addition, Ms. Ferguson has worked as a deputy public defender for Tulare County and has several years of civil litigation experience.2 L. Gordon Isen was appointed special assistant inspector general for the Bureau of Independent Review, Central Region, by Governor Arnold Schwarzenegger in January 2005. Prior to his appointment, Mr. Isen served as a deputy district attorney for San Bernardino County, prosecuting major felonies in San Bernardino and Santa Cruz Counties. In addition to his criminal trial work, Mr. Isen served as lead attorney of a white-collar crime unit and as a narcotics team supervisor. Mr. Isen has also served his community as a reserve police officer and as a judge pro tem. Michael G. Allford was appointed special assistant inspector general for the Bureau of Independent Review, Central Region, by Governor Arnold Schwarzenegger in July 2005. Prior to his appointment, Mr. Allford served as a deputy city attorney for the City of Bakersfield, where he was legal advisor to the Bakersfield City Council and served numerous city commissions and boards. Mr. Allford has also worked in private practice representing plaintiffs and defendants in the areas of employment law and land use. Brian Trott was transferred as deputy inspector general for the Bureau of Independent Review, Central Region, in 2005. Mr.Trott previously served as deputy inspector general in the Bureau of Audits and Investigations, Central Valley, since 2001, where he conducted investigations and worked on special reviews and audits. Mr. Trott has over ten years of experience in correctional healthcare and the inmate classification system. SOUTHERN REGIONAL OFFICE—RANCHO CUCAMONGA, CALIFORNIA Stephen Miller was appointed senior assistant inspector general for the Bureau of Independent Review, Southern Region, by Governor Arnold Schwarzenegger in January 2005. Before his appointment, Mr. Miller worked as an attorney for 22 years in private practice, litigating cases involving police misconduct, civil rights, medical malpractice, employment law, and other torts in state and federal court. He also served as a part-time U.S. magistrate judge in the Central District of California presiding over federal criminal matters. Mr. Miller has served as a school board member for a local school district and the County of San Bernardino. He was a reserve 2 Regrettably, Ms. Ferguson left the employ of the Office of the Inspector General for a high-level position with the Kings County District Attorney’s Office. BUREAU OF INDEPENDENT REVIEW PAGE 7 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA peace officer and continues to work as a crew chief/medic on an air rescue helicopter with a local sheriff’s department in Southern California. Sue Stengel was appointed special assistant inspector general for the Bureau of Independent Review, Southern Region, by Governor Arnold Schwarzenegger in January 2005. Prior to her appointment, Ms. Stengel served as western states counsel for the Anti-Defamation League, a national civil rights organization. There she worked with law enforcement, educators, and community groups, combating hate crimes and extremism and preserving religious liberty. She also served as a deputy public defender in Los Angeles County. Ms. Stengel has worked as an instructor for the California Commission on Peace Officer Standards and Training and the Federal Law Enforcement Training Center. Paul Hayashida was appointed special assistant inspector general for the Bureau of Independent Review, Southern Region, by Governor Arnold Schwarzenegger in January 2005. Prior to his appointment, Mr. Hayashida worked as the officer-in-charge of the Complaint Intake and Review Section for the Los Angeles Police Commission’s Office of the Inspector General, where he supervised a team of analysts during their review of hundreds of Los Angeles Police Department internal affairs investigations. He also worked as an associate attorney with Francell, Stickland, Roberts and Lawrence, where he represented the interests of law enforcement agencies and sworn officers in federal and state litigation. Mr. Hayashida served as a sworn member of the Glendale Police Department, retiring after 20 years as a police sergeant with significant patrol, major narcotics, personnel, and internal affairs experience. Basil Richards was hired as deputy inspector general for the Bureau of Independent Review, Southern Region, in November 2005. Mr. Richards was previously employed by the California Department of Corrections since 1989, where he held positions as a correctional officer and sergeant in the investigative services unit. Mr. Richards was also assigned as an investigative sergeant, for which he conducted internal affairs investigations at the institutional level. BUREAU OF INDEPENDENT REVIEW PAGE 8 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA ORGANIZATION CHART – AS OF DECEMBER 31, 2005 Chief Assistant Inspector General David R. Shaw Executive Assistant Myrna Causland Headquarters Northern Region Central Region Southern Region Sacramento Rancho Cordova Bakersfield Rancho Cucamonga Lead Special Senior Assistant Senior Assistant Senior Assistant Assistant Inspector General Inspector General Inspector General Inspector General Tim Rieger Robert Barton Stephen Miller Howard Moseley Special Assistant Special Assistant Special Assistant Special Assistant Inspectors General Inspectors General Inspectors General Inspectors General Anna Ferguson 2 Vacancies Neil Robertson L. Gordon Isen Sue Stengel Abel D. Ramirez Michael Allford Paul Hayashida 2 Vacancies 1 Vacancy 1Vacancy Deputy Assistant Deputy Deputy Inspectors General Inspector General Inspector General Inspector General 3 Vacancies Samuel Dudkiewicz Brian Trott Basil Richards Office Office Office Technician Technician Technician 1 Vacancy 1 Vacancy Cheryl Campbell BUREAU OF INDEPENDENT REVIEW PAGE 9 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA TRAINING ACTIVITIES During the second six months of Bureau of Independent Review operations, special assistant inspectors general and senior assistant inspectors general continued to receive and provide training on protocols, as well as California Department of Corrections and Rehabilitation operations, with emphasis on internal affairs investigations and legal advocacy. In addition, several bureau staff members attended the peace officer standards and training internal affairs investigation course and Los Angeles Police Department detective training course, along with other law enforcement training courses. LIAISON ACTIVITIES Attorneys in each of the regional offices have continued to meet with key personnel at institutions, camps, and district offices within their regions to discuss pending cases and consult on the bureau’s mission and protocols. These contacts have facilitated effective professional relationships with department staff, including staff at the Office of Internal Affairs. The development of these relationships has resulted in the successful implementation of a recent institution-wide notification protocol, which has improved timely communication of critical incidents to the bureau. To introduce bureau operations and the central intake process to a broader audience within the department, staff from the bureau, the Office of Internal Affairs, and the Employment Advocacy and Prosecution Team conducted several regional briefings for wardens, investigative service unit officers, and employee relations officers throughout all regions. Staff attendance at these briefings has been substantial and is enhancing the relationship among all entities. Finally, the bureau continues to meet with the Prison Crimes Committee of the California District Attorneys’ Association and other key stakeholders to refine strategies for better cooperation between institutions and local district attorneys’ offices. Adult and Juvenile Institutions. The bureau maintains regular contact with all adult institutions under the department’s governance. Assigned bureau staff meets with wardens, chief deputy wardens, associate wardens, and other executive staff members, as well as employee relations officers, investigative services unit personnel, institutional gang investigators and lieutenants, and sergeants responsible for conducting inquiries into employee misconduct allegations. This contact has been critical in prompting the department to notify the bureau as soon as critical incidents occur, which has enabled the bureau to deliver a timely, comprehensive response when needed. Office of Internal Affairs. Bureau attorneys and investigators are fully engaged with the Office of Internal Affairs staff at headquarters and in three regional offices. The bureau’s chief assistant inspector general, senior assistant inspectors general, and their Office of Internal Affairs counterparts meet weekly and as needed to address issues of mutual concern. The bureau does not underestimate the value of the continued cooperation of the Office of Internal Affairs, which has resulted in the bureau’s enhancement of investigative and disciplinary processes. BUREAU OF INDEPENDENT REVIEW PAGE 10 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA District Attorneys’ Offices. Because district attorneys prosecute crimes that occur within institutions and facilities, including those committed by department personnel, the bureau regularly communicates with these prosecutors. To that end, each of the bureau’s regional offices held meetings with vital personnel at the district attorneys’ offices in Sacramento, Los Angeles, Kern, Kings, San Bernardino, San Diego, and Monterey Counties. As mentioned, the bureau has also continued to partner with the California District Attorneys’ Association. BUREAU OF INDEPENDENT REVIEW PAGE 11 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA ASSESSMENT OF THE MADRID V. WOODFORD REFORMS As the first year of the Bureau of Independent Review’s existence has drawn to a close, we can report that overall the Madrid v. Woodford3 reforms are working. Key to that success has been the acceptance by the California Department of Corrections and Rehabilitation of the monitoring and oversight of the employee disciplinary process by the bureau as mandated by the federal court and by the recently modified California Department of Corrections and Rehabilitation Operations Manual, Article 22. The following provides a general assessment of the performance of the separate entities involved in investigating allegations of employee misconduct and in carrying out disciplinary action. Tables presented later in this report provide a more detailed assessment of the individual internal affairs cases completed during the reporting period. This first evaluation by the bureau is presented with the understanding that although the bureau has been in existence for a year, full-time monitoring and oversight operations did not begin until July 2005. Executive Management. The California Department of Corrections and Rehabilitation’s executive management staff has willingly embraced integrating the bureau’s activities into the internal affairs investigative and employee disciplinary processes. While this endeavor remains a work in progress, department management—and in particular, the Office of Internal Affairs and the Employment Advocacy and Prosecution Team management staff— has made a sincere and sustained effort to develop an open and cooperative working relationship with the bureau. Office of Internal Affairs. The professional relationship between the bureau and the department’s Office of Internal Affairs continues to grow and mature, both at the regional level and at headquarters. Overall, the bureau has found the special agents of the Office of Internal Affairs to be dedicated and competent investigators who seek truth with a sense of fairness and proportionality in the vast majority of cases they investigate. While some areas—such as completing investigations within the one-year statutory requirement, using proper interrogation techniques to obtain truthful and complete responses, and keeping the bureau informed of critical case events—still need improvement, daily progress is typically seen in these and other areas of concern. Office of Internal Affairs, Headquarters. Pivotal to the positive relationship between the bureau and Office of Internal Affairs headquarters has been the success of the Central Intake Unit, which reviews all requests for investigation submitted by the department’s hiring authorities. Through that process, in which representatives from the bureau, the Office of Internal Affairs, and the Employment Advocacy and Prosecution Team meet weekly to discuss all investigation requests, participants have become familiar with mutual operations and acquired mutual respect. The Office of Internal Affairs executive managers have continued to be active proponents of the bureau’s monitoring and oversight model and have repeatedly transmitted this support to the field. Without their continued support and good will, the relationship between the bureau and the Office of Internal Affairs might be adversarial, in contrast to the cooperative partnership enjoyed today. 3 The bureau’s January – June 2005 semi-annual report provides a full discussion of the Madrid v. Woodford litigation, as well as a synopsis of the court’s ruling. BUREAU OF INDEPENDENT REVIEW PAGE 12 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA Office of Internal Affairs, Northern Region. The relationship between the bureau and the Office of Internal Affairs, northern region has been good from the start of the bureau’s monitoring and oversight operations. The managers and agents in the northern region embraced the bureau model early in the process and have made every effort to ensure that our mutual operations and interests are successful. It should be noted that the bureau staff and the Office of Internal Affairs staff have been sharing the same office since the formation of the bureau, allowing for easy face-to-face communication and case consultation. Compliance with the criteria set forth in California Department of Corrections and Rehabilitation Operations Manual, Article 22 has been generally good and the bureau is confident it will continue to improve. Office of Internal Affairs, Central Region. In the central region, management and agents also enjoy a good relationship with the bureau. Because the bureau was not initially co-located with the Office of Internal Affairs due to building space limitations, the working relationship grew more slowly there than in the northern region. The cooperation level between the central region and the bureau has been good in all areas and involves more monitored cases than in any other region. In particular, the central region has produced a significant number of criminal cases in which the Office of Internal Affairs and the bureau have cooperated, allowing for more thorough investigations and better case presentations to local district attorney offices. Office of Internal Affairs, Southern Region. In the southern region, the development of the professional relationship between the Office of Internal Affairs and the bureau has been more challenging than in the other two regions. In sum, there has been general reluctance on the part of some of the southern region agents and supervisors to comply with the bureau’s monitoring and oversight plan as mandated by the federal court and the California Department of Corrections and Rehabilitation Operations Manual, Article 22. Specifically, during the reporting period, certain Office of Internal Affairs agents repeatedly failed to consult with the bureau during investigations, failed to provide final reports, and did not promptly notify or failed entirely to notify the bureau of subject interviews and Skelly hearings. Clearly, without timely notice of critical events in the investigative and disciplinary process, the bureau cannot expect to have a positive impact on the process. Some of these early difficulties may be partially attributable to the lack of consistent leadership in the southern region, which now has been addressed by the appointment of a new special agent in-charge. With the experience that the new special agent in-charge brings to the table, it is anticipated that a greater degree of cooperation with the bureau will be seen in the next reporting period. It should be noted that the professionalism and cooperation of agents in the Division of Juvenile Justice’s southern region was excellent during this reporting period. Employment Advocacy and Prosecution Team, Office of Legal Affairs. During this reporting period, the vertical advocacy model at the California Department of Corrections and Rehabilitation was in its infancy and therefore the bureau did not have as much interaction with vertical advocate staff attorneys as initially expected. The bureau remains convinced that assigning a single staff attorney with employment law experience to prosecute a disciplinary case BUREAU OF INDEPENDENT REVIEW PAGE 13 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA from start to finish is an excellent model. It seems clear, however, that the Employment Advocacy and Prosecution Team needs additional staff attorneys to effectively deal with the high volume of disciplinary cases that arise each year. In several cases the bureau monitored, the administrative discipline caseload appeared to have overtaken the available Employment Advocacy and Prosecution Team resources, with the result that no specific vertical advocate was assigned to the case. In other cases, a vertical advocate was assigned at the last moment and was therefore unprepared to effectively represent the department’s interests during the disciplinary process. The reason for this shortfall in resources appears to be two-fold: the difficulty of recruiting qualified attorneys with litigation experience and the difficulty of keeping those attorneys from leaving to take other legal positions within the department, where presumably, the workload is lighter. The staffing shortage also fosters less-than-ideal supervision and mentoring of new vertical advocates to prepare them for cases that will be litigated at the State Personnel Board. The executive manager of the Employment Advocacy and Prosecution Team is to be commended for providing outstanding support to the bureau during the monitoring period and has effectively transmitted her support to her staff. Hiring Authorities: Wardens, Superintendents, and Regional Administrators. As the hiring authorities within the department become familiar with the bureau (especially the special assistant inspectors general assigned to their facilities) and appreciate the assistance the bureau can provide, they are increasingly contacting the bureau when significant incidents occur. In addition, the bureau is included more often in the post-investigation disciplinary proceedings at the institutions. While a number of significant departures from the bureau monitoring and oversight plan mandated by the federal court and the California Department of Corrections and Rehabilitation Operations Manual Article 22 occurred during the reporting period, cooperation at the institutions is improving. The most common and significant departures from the plan have occurred when hiring authorities have abandoned the disciplinary matrix to achieve a different result than what is mandated in the Department of Corrections and Rehabilitation Operations Manual. While some of these departures from the matrix can be attributed to unfamiliarity with requirements of the new Article 22, other situations have revealed a willingness by some hiring authorities to reach a desired outcome. In particular, the bureau discovered several situations in which it appeared that certain hiring authorities intentionally violated the Department of Corrections and Rehabilitation Operations Manual to prevent disciplinary action from being taken against employees who had engaged in wrongdoing. In these situations, the bureau has reported the situation to the federal court and to the executive management of the Department of Corrections and Rehabilitation for appropriate action. In conclusion, the bureau is encouraged by the progress the Office of Internal Affairs and the Employment Advocacy and Prosecution Team have made during this reporting period and during the bureau’s first year of operation. The bureau recognizes significant progress by the hiring authorities as well. BUREAU OF INDEPENDENT REVIEW PAGE 14 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA IMPACT OF THE BUREAU OF INDEPENDENT REVIEW ON CORRECTIONAL POLICY During the second six months of its operation, the bureau actively participated in policy and legal reform efforts affecting the California Department of Corrections and Rehabilitation. The major policy and procedure projects in which the bureau has participated over the period of this report are presented below. CENTRAL INTAKE UNIT The Central Intake Unit is made up primarily of special agents from the Office of Internal Affairs. Attorneys from the Employment Advocacy and Prosecution Team and the Bureau of Independent Review also regularly participate. Experts from the Health Care Services Division also occasionally participate to supply the unit with specialized knowledge that is often essential for it to make an informed decision. Hiring authorities, other senior management staff members, employment relations officers, and institution investigators are also invited to attend. As part of the intake process, the unit presently assesses each request for investigation, determines whether an investigation should be conducted, and assigns that case to the appropriate investigative unit (for example, the Office of Internal Affairs, the institution’s investigative services unit, or the Office of Civil Rights), depending on the nature and location of the investigation. Conversely, if a complaint does not warrant an internal investigation or fails to identify any misconduct, it is returned to the referring entity for disposition or closure at that level. Since May 4, 2005, the unit has convened weekly to conduct this process. Special agents from the Office of Internal Affairs brief unit members on the facts of each case and provide them with a copy of the internal affairs investigative requests (form 989) and other supporting documentation so that they may determine whether investigations are warranted. Cases opened for investigation are typically assigned to an Office of Internal Affairs regional office but they may also be forwarded to the Office of Internal Affairs headquarters or the Office of Civil Rights, depending on an allegation’s nature and sensitivity. Moreover, a case may be further delegated to an Office of Internal Affairs special agent or institution investigative services unit investigator with specific training in internal affairs investigations. If assigned to an institution investigative services unit investigator, the case is still supervised by a senior special agent from an Office of Internal Affairs regional office. Investigations involving alleged criminal violations, excessive force, inmate death or grave injury, officer integrity, or other serious allegations filed against department supervisors are generally assigned to an Office of Internal Affairs special agent. The bureau is pleased to report that the weekly central intake meetings continue to be extremely successful. This multidisciplinary approach ensures that all requests for Office of Internal Affairs investigations and direct adverse actions submitted by department hiring authorities are thoroughly reviewed by both the department and the bureau. In particular, the timely notice afforded by the central intake process to bureau staff and Employment Advocacy and Prosecution Team staff attorney substantially increases the likelihood of a just outcome within the disciplinary process. Although the adult and juvenile institutions in the southern region did BUREAU OF INDEPENDENT REVIEW PAGE 15 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA not join the central intake process in December 2005 as the Office of Internal Affairs had originally forecasted, the department completed this conversion by February 2006. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION OPERATIONS MANUAL Article 22, Employee Discipline. The bureau has continued to play a significant role in the review and update of the California Department of Corrections and Rehabilitation Operations Manual. The first section of the manual to be revised was Article 22, which encompasses the employee disciplinary process. The members of the bureau and chief staff attorney for the Office of the Inspector General reviewed the department’s proposed changes to ensure legal compliance, clarity of process, and appropriate bureau input and oversight. The court-appointed expert in Madrid v. Woodford also reviewed the proposed changes to corroborate conformity to the court’s orders and objectives in that case. Highlights of the revisions include clarification of the staff attorney model, which ensures the department’s legal representation over the entire internal affairs investigative and disciplinary process. Regular contact between the department and the bureau has been incorporated into the system to fulfill the bureau’s statutory mandates of contemporaneous oversight for investigative sufficiency and disciplinary appropriateness. An executive review process was established to resolve substantive disagreements among staff attorneys, departmental management, and the bureau relative to findings, imposition of disciplinary penalties, and settlement agreements. Among other revisions was a change to the Skelly hearing process, an informal proceeding in which a disciplined employee may respond to a manager outside the investigation’s scope before discipline becomes effective. In the past, the manager who conducted a Skelly hearing was authorized to modify the discipline without consulting with the manager who had imposed it. The new policy provides that the Skelly hearing officer may only submit recommendations in writing to amend, modify, withdraw, or sustain the discipline; the manager who imposed the discipline, however, has the final authority over the nature and extent of the discipline imposed. In addition, the bureau must be given notice before any disciplinary modifications are implemented in a monitored case. In addition to its work on policies integral to the employee disciplinary process, the bureau is reviewing those policies that govern internal affairs investigations, whistleblower retaliation, administrative immunity, subpoenaed witness notification, and incompatible activities. Major stakeholders across all policy revisions have been given the opportunity to review and suggest changes to each proposal, thereby ensuring department-wide consistency and fairness in policy application. The bureau expects that those policies currently under review will be finalized and submitted to the federal court for approval by the end of the calendar year. After extensive review and refinement, the final draft of Article 22 was submitted to the federal court for approval on December 15, 2005 and was accepted on December 22, 2005.4 In its class action order accepting the California Department of Corrections and Rehabilitation Operations 4 See Appendix B: California Department of Corrections and Rehabilitation Operations Manual, Article 22. BUREAU OF INDEPENDENT REVIEW PAGE 16 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA Manual revisions, the court concluded that the revisions “are well supported and that the proposed modifications are an adequate and appropriate operational policy that will serve to implement the discipline matrix and vertical advocacy program.” Article 14, Internal Affairs Investigations: The bureau has also played an important role in the review and update of Article 14 of the California Department of Corrections and Rehabilitation Operations Manual, which covers internal affairs investigations. Working closely with the Office of Internal Affairs, the bureau and chief staff attorney for the Office of the Inspector General conducted an in-depth review and update of this article to ensure legal compliance, clarity of process, and appropriate input and oversight from both the bureau and the staff attorney process. Among the topics delineated in the revised article are the roles and responsibilities within administrative, criminal, retaliation, workers’ compensation fraud, and deadly force investigations conducted by the Office of Internal Affairs. The revised draft of Article 14 was submitted for final review and comment in January 2006. BARGAINING UNIT 6 MEMORANDUM OF UNDERSTANDING: REVIEW AND STIPULATION The federal court in Madrid v. Woodford ordered the special master to investigate whether specified sections of the Unit 6 memorandum of understanding between the California Department of Corrections and Rehabilitation and the California Correctional Peace Officers Association violated, by their terms or practice, the court’s use of force remedial orders. The concern was that certain sections might be impediments to the integrity of the investigatory or disciplinary processes. Through document review and meetings with stakeholders, the special master drafted a stipulation, which has been submitted to the parties for final signature. When the stipulation is approved, statewide training will be implemented. Legal representatives from the bureau and the Office of the Inspector General provided feedback to the participants and will also participate in the statewide training. The review group was made up of court experts Michael Gennaco and Dr. Patrick Maher; counsel for plaintiffs; counsel and one party representative for the California Department of Corrections and Rehabilitation defendants; counsel and one party representative for the California Correctional Peace Officers Association; department labor relations personnel; labor relations personnel from the Department of Personnel Administration; legal representatives from the California Department of Corrections and Rehabilitation and representatives from the Office of the Inspector General. Rather than conduct formal hearings, the group participated in discussions over roughly eight months to achieve a consensus on numerous memorandum of understanding components. While the special master and court experts reviewed several provisions of the memorandum of understanding, the review group focused on sections considered to significantly affect internal affairs investigations and resulting disciplinary actions as they relate to the use-of-force remedial plan. The sections are as follows: 2.10 (Representation on Committees), 9.05 (Letters of Instruction/Work Improvement Discussions), 9.06 (Adverse Action and Citizen Complaint Documents), 9.09 (Personnel Investigations), Appendix #9 (Witness Admonishment), Side letter BUREAU OF INDEPENDENT REVIEW PAGE 17 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA #12 (Regarding Section 9.09 – CDC/CYA Personnel Investigations), and 2004 Addendum (CDC/CYA Access to Incident Videos). The special master prepared a stipulation that was reviewed and edited by the review group. As part of the stipulation, the California Department of Corrections and Rehabilitation and the California Correctional Peace Officers Association submitted proposed training plans to ensure consistent statewide application of the memorandum of understanding. The California Correctional Peace Officers Association will train its job stewards with oversight from the court expert. The department, along with the bureau and Office of the Inspector General’s chief counsel, will put on statewide training “road shows” directed toward staff attorneys; hiring authorities such as wardens and chief medical officers; employee relations officers; Office of Internal Affairs and investigative unit staff at the institutions; Division of Juvenile Justice staff; and inmate appeals coordinators. BUREAU OF INDEPENDENT REVIEW PAGE 18 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA CRITICAL INCIDENTS During the six-month period beginning July 2005, the bureau increased its number of responses to critical incidents. While not all critical incidents result in a criminal or administrative investigation, it is the mission of the bureau to ensure that high-risk incidents are properly handled from inception, if possible, in the event that an allegation of impropriety arises later. Critical incidents are those that involve the significant use of force or that result in the death or serious injury of an inmate or staff member. Correctional officers at the California Department of Corrections and Rehabilitation are trained and authorized to use force, including deadly force, under certain circumstances. Correctional officers routinely encounter situations in which the use of force may be necessary to protect themselves or others, prevent an escape, or control a riot. When the level of force deployed appears to exceed that which is legally justifiable or results in disproportionate injuries to the recipient, however, the circumstances require scrutiny. Use of force that results in an inmate’s serious injury or death may precipitate inquiries or allegations of wrongdoing by legislators, the media, and prisoner’s rights organizations. Often such incidents can result in civil actions against the officers and the department or, less frequently, state or federal criminal charges filed against the officers involved. The death or serious injury of an inmate is also an incident that spurs public interest, particularly relative to the appropriateness of an officer’s actions. As the tables below illustrate, bureau attorneys and deputies responded to 19 of the 20 critical incidents reported during the six-month period from July through December 2005. The tables include the bureau’s assessment of whether the department’s handling of the incident was adequate or inadequate and provide additional information about the response in the “conclusions and notes” column. The distribution of responses among regional bureau offices reflects the inception period of the regional offices and do not necessarily reflect the frequency of serious events in the California Department of Corrections and Rehabilitation institutions served by those offices. Nevertheless, given that the bureau’s inception period limited the number of critical incidents to which it responded, it is reasonable to anticipate that more rollouts to such incidents will occur now that all regional offices are staffed and operational. Ultimately, critical incident responses will be driven by the number of serious incidents in tandem with the timeliness of hiring authorities reporting these incidents to the bureau. CRITICAL INCIDENT RESPONSES 5 JULY AUGUST SEPTEMBER OCTOBER NOVEMBER DECEMBER SUM NORTHERN REGION 0 1 2 0 1 0 4 CENTRAL REGION 2 2 0 7 1 1 13 SOUTHERN REGION 0 1 2 0 0 0 3 BUREAU TOTALS 2 4 4 7 2 1 20 5 Omitted from this table is one critical incident response that occurred in March 2005. BUREAU OF INDEPENDENT REVIEW PAGE 19 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF CRITICAL INCIDENTS — JULY-DECEMBER 2005 SUMMARY OF CRITICAL INCIDENT BUREAU ACTIONS BUREAU ASSESSMENT CONCLUSIONS & NOTES Case No. 05-039 (Central Region) The Bureau of Independent Review Quality of the department’s handling of The district attorney’s office On March 20, 2005, an inmate responded to the institution and met any security/safety issues: Adequate. investigators expressed frustration allegedly kicked his cellmate to death with the district attorney’s office with their inability to access the after both had been drinking inmate- investigators, who assumed primary Quality of the department’s handling of inmate’s medical files in a timely manufactured alcohol. responsibility for the criminal any crime scene: Adequate. The manner. Although the bureau, by investigation. The bureau also department appropriately froze the virtue of its oversight role, has access reviewed the central and medical files to such records, local law crime scene pending the arrival of an of the inmates involved. enforcement does not, pursuant to outside law enforcement agency. Penal Code section 1543. The bureau is reviewing whether legislative Was the bureau promptly notified? Yes. action may be recommended to provide local law enforcement with Were other law enforcement agencies timely access to the medical files of promptly notified? Yes. inmates who are the victims of criminal acts. Murder charges against the cellmate were filed by the district attorney’s office. Case No. 05-040 (Northern Region) The Bureau of Independent Review Quality of the department’s handling of Following the assault, the warden On July 14, 2005, an inmate kitchen responded to the institution and met any security/safety issues: Adequate. indicated that a review of institution worker suddenly and without with the warden and investigative policies and procedures concerning provocation attacked two correctional services unit to discuss the status of Quality of the department’s handling of kitchen workers would be performed. officers, stabbing the first once in the the investigation. The district any crime scene: Adequate. face and once in the neck area, and attorney’s office’s was informed of The institution opened an the second twice in the shoulder area. the incident but did not respond to the investigation into the events leading Was the bureau promptly notified? Yes. A third correctional officer witnessed facility. No other law enforcement up to the assault, which the bureau is the attack and tackled the inmate to agencies were contacted regarding the monitoring. Were other law enforcement agencies the ground. Both correctional officers incident nor did any respond to the promptly notified? Yes. sustained significant injuries, scene. The bureau inspected the resulting in one officer’s inability to scene. return to work to date. BUREAU OF INDEPENDENT REVIEW PAGE 20 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF CRITICAL INCIDENT BUREAU ACTIONS BUREAU ASSESSMENT CONCLUSIONS & NOTES The inmate sustained a dislocated shoulder. Within five minutes of the assault, medical staff responded to the scene and provided emergency medical attention to the officers and the inmate. The crime scene was sealed off and evidence was collected, including a four-and-one-half-inch steel knife-like blade found on the inmate and another four-inch steel knife-like blade in the immediate area. Photos were taken of the area, along with pictures of the injured officers and the inmate. Case No. 05-041 (Central Region) The Bureau of Independent Review Quality of the department’s handling of The Department of Corrections and On July 20, 2005, a control booth arrived at the institution shortly after any security/safety issues: Adequate. Rehabilitation opened a criminal officer discharged a department- the incident had been contained. The investigation into the matter, which issued, non-lethal, 40-mm launcher at bureau viewed the scene and Quality of the department’s handling of the bureau is monitoring. an inmate involved in a large-scale conferred with investigators from the any crime scene: Adequate. riot, striking the inmate in the head. Office of Internal Affairs and the The officer discharged a total of three institution’s investigative services Was the bureau promptly notified? Yes. rounds during the incident. According unit regarding the scope of the to the officer, the inmate was not the incident, evidence preservation, and Were other law enforcement agencies intended target but had been struck in staff interviews. The bureau identified promptly notified? Not Applicable. the head with one round when he further potential evidence at the moved into the line of fire. The scene, including blood stains, for inmate was taken Code 36 by private investigative purposes. ambulance to an area hospital, where a CT scan was taken and six sutures to the inmate’s head were applied. The inmate was returned to the institution the same day. 6 Code 3 is the highest level of medical response and is reserved for life-threatening situations, usually involving the use of emergency lights and sirens by the responding ambulance. BUREAU OF INDEPENDENT REVIEW PAGE 21 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF CRITICAL INCIDENT BUREAU ACTIONS BUREAU ASSESSMENT CONCLUSIONS & NOTES Case No. 05-042 (Central Region) The Bureau of Independent Review Quality of the department’s handling of The department opened a criminal On August 2, 2005, a control booth responded to the incident shortly after any security/safety issues: Adequate. investigation into the inmates’ officer discharged three rounds from a notification was received and conduct during the riot, but no department-issued, non-lethal, 40-mm conferred with the institution’s Quality of the department’s handling of criminal charges were filed by the launcher at inmates involved in a riot. administrative staff, the investigative any crime scene: Adequate. district attorney’s office. One inmate was struck once in the services unit, and a special agent at back of the head, another inmate was the scene from the Office of Internal Was the bureau promptly notified? Yes. The department also opened an struck once in the area of the upper- Affairs. investigation into the control booth left shoulder blade, and a third inmate Were other law enforcement agencies officer’s discharge of the weapon, was struck in the head by a round that The bureau helped to clarify the promptly notified? Not Applicable. which the bureau is monitoring. ricocheted off a table. All three appropriate number of control booth inmates evidenced visible marks officers and other officers required consistent with the 40-mm impact during the release of inmates for rounds. One of the three inmates was meals and ensured that a complete taken Code 3 by private ambulance to and thorough investigation of the the hospital, where a CT scan was incident was conducted. taken and four stitches were administered to close the head wound. This inmate returned to the institution that day. Case No. 05-043 (Central Region) The Bureau of Independent Review Quality of the department’s handling of The sheriff's department indicated On August 5, 2005, after an was notified of the incident shortly any security/safety issues: Not that investigative reports would be anonymous tip, correctional staff after the victim’s body was Assessed. available through the district conducted a security count and found discovered. The bureau responded to attorney’s office in approximately one an inmate dead in his cell. The the institution to observe the scene, Quality of the department’s handling of month. victim’s apparent cause of death was gather relevant facts, and help to any crime scene: Adequate. ligature strangulation. The victim’s identify important issues concerning cellmate was present in the cell when the case. In addition, the bureau Was the bureau promptly notified? Yes. the victim’s body was discovered and requested reports from the was therefore considered a suspect in investigative services unit. Were other law enforcement agencies the inmate’s death. The bureau raised proper crime scene promptly notified? Yes. preservation and witness availability Homicide detectives from the issues with the institution. sheriff’s department were called to investigate. BUREAU OF INDEPENDENT REVIEW PAGE 22 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF CRITICAL INCIDENT BUREAU ACTIONS BUREAU ASSESSMENT CONCLUSIONS & NOTES At the beginning of the investigation, one correctional officer-witness had been permitted to leave institution grounds before being interviewed, although other officer-witnesses were required to remain after their shifts to be interviewed. The institution’s investigative services unit subsequently reached the absent witness by telephone. Case No. 05-044 (Southern Region) The Bureau of Independent Review Quality of the department’s handling of The Department of Corrections and On August 18, 2005, an inmate responded to the institution any security/safety issues: Adequate. Rehabilitation opened criminal and uprising against staff erupted into a immediately when notified of the administrative investigations into the multi-incident riot injuring 25 disturbance, arriving after the inmate Quality of the department’s handling of matter, which the bureau is correctional officers and led to the had been shot with a mini-14 rifle. any crime scene: Adequate. monitoring. death of one rioting inmate. The riot, which originated when a correctional As of the date of this incident, the Was the bureau promptly notified? Yes. officer discovered a Southern institution had been under no Hispanic gang member in possession agreement with the local law Were other law enforcement agencies of a weapon while on the yard, enforcement agency relative to the promptly notified? Yes. triggered inmate assaults on several independent investigation of yard staff. When the assaults by other correctional officers involved in Southern Hispanic gang members deadly shootings. As a result, the spread to an adjacent housing unit and department’s Deadly Force kitchen area, a Code 3 alarm was Investigative Team was designated to sounded. conduct the investigation. By the time the team arrived and took the lead, In the housing unit, inmates were however, it was after midnight and witnessed going from cell to cell, the institution had to call many of the constructing wooden handles into staff members involved (who had weapons. In response, one gone home) to return for interviews. correctional officer fired two 40-mm direct impact rounds at those involved Consequently, by the time the team in the weapons distribution, to no left the scene on the following day, effect. When numerous staff members only six staff members had been entered the housing unit to regain interviewed, due largely to the BUREAU OF INDEPENDENT REVIEW PAGE 23 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF CRITICAL INCIDENT BUREAU ACTIONS BUREAU ASSESSMENT CONCLUSIONS & NOTES control, Southern Hispanic gang number of staff who had sustained members rushed the responding staff injuries during the riot. and attacked them with the wooden handles, resulting in at least 15 staff Although the bureau and the Deadly injuries. Force Investigative Team agreed that the investigation should focus on the One inmate was observed attempting deadly shooting, there was to stab an officer with two wooden disagreement on the scope of the handles but was struck by another overall investigation. The team officer with a baton. A second inmate maintained that the investigation was seen striking an officer on the should focus exclusively on the ground with a wooden handle but was officer’s decision to fire the deadly hit in the lower mid-section by round, with limited inquiry into the another officer with one round fired facts leading up to the use of deadly from a mini-14 rifle. Despite medical force. Given, however, that the team’s assistance, this inmate died of his investigation will undoubtedly form wound. When the mini-14 rifle was the basis of any subsequent fired, all the Southern Hispanic gang administrative investigation, the members stopped fighting and bureau recommended that the team’s surrendered to staff. investigation address the entire incident in the housing unit, including any facts leading up to the officer’s decision to use deadly force. Case No. 05-045 (Northern Region) The bureau reviewed the ward's files, Quality of the department’s handling of It appears that at the time of the On August 31, 2005, a ward covered which indicated he had been on lock- any security/safety issues: Adequate. ward’s suicide, staff perceived his cell windows with paper, in down in his cell for approximately 56 themselves “under siege” by Northern violation of safety protocols. After days preceding his suicide.7 Quality of the department’s handling of Hispanic gang members, leading them several unsuccessful attempts to any crime scene: Not Assessed. to rely on the security detail to obtain a response from him, staff intervene if a ward became disruptive. requested security back-up to enter Was the bureau promptly notified? No. In devising safety enhancements, the ward’s room. Approximately 38 however, staff compromised response minutes after staff initially observed Were other law enforcement agencies time in critical situations by waiting that the ward had covered his room promptly notified? Yes. for the security detail in potentially window and was non-responsive, staff volatile situations involving Northern 7 The Office of the Inspector General’s Bureau of Audits and Investigations completed a special review of this incident and issued a report, which appears on the Office of the Inspector General’s website. BUREAU OF INDEPENDENT REVIEW PAGE 24 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF CRITICAL INCIDENT BUREAU ACTIONS BUREAU ASSESSMENT CONCLUSIONS & NOTES entered the room, where they found Hispanic gang members. the ward hanging with a sheet around his neck. He had no pulse or The facility has instituted a new respiratory activity. Emergency CPR policy addressing wards papering was initiated and the ward was their windows that necessitates an transported to the hospital, where he immediate staff response to intervene was pronounced dead approximately and verify a ward’s condition. one hour after he was discovered hanging in his cell. The ward was identified as a Northern Hispanic gang member. At the time, all Northern Hispanic gang members had been placed on administrative lock-down following several ward assaults on staff. Case No. 05-046 (Northern Region) The Bureau of Independent Review Quality of the department’s handling of The Department of Corrections and On September 6, 2005, an inmate was traveled to the institution upon any security/safety issues: Inadequate. Rehabilitation opened an discovered unresponsive in his cell. learning of the incident to consult The inmate’s body went undiscovered administrative investigation into the His cellmate was removed and, with the Office of Internal Affairs despite 11 counts. matter, which the bureau is although CPR was administered to the regarding an investigative plan. The monitoring. inmate, he was later pronounced dead. bureau also reviewed the deceased Quality of the department’s handling of His cellmate was moved to inmate’s central file and medical any crime scene: Inadequate. Despite administrative segregation and the records, as well as the institution’s the fact the inmate was deceased for area was secured as a crime scene. count slips, building logs, and more than two days prior to discovery, Based on the coroner’s examination, employee timesheets. The bureau staff initiated CPR and removed the the inmate was killed on September 4, recommended that all evidence body from the cell prior to any 2005. Institution staff did not discover relevant to the inmate’s murder be photographs, thus disturbing the crime the dead inmate for two days, despite collected, along with any documents scene. 11 intervening counts. relevant to the failure to conduct proper counts and the decision to Was the bureau promptly notified? No. house the two inmates together. Were other law enforcement agencies promptly notified? Yes. BUREAU OF INDEPENDENT REVIEW PAGE 25 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF CRITICAL INCIDENT BUREAU ACTIONS BUREAU ASSESSMENT CONCLUSIONS & NOTES Case No. 05-047 (Southern Region) The Bureau of Independent Review Quality of the department’s handling of The bureau monitored the disturbance On September 22, 2005, responded to the institution any security/safety issues: Adequate. and the staff response to the incident approximately 270 Black and immediately, arriving while the and found no evidence of staff Hispanic inmates began to fight in medical technical assistant was still Quality of the department’s handling of misconduct. their housing unit during the evening barricaded in the pharmacy. The any crime scene: Adequate. meal. Because of the number of bureau waited with the warden in the inmates involved, a Code 3 alarm was administration building during the Was the bureau promptly notified? Yes. activated. Housing unit staff lost successful extraction and remained at control of the upper and lower levels the institution until staff controlled Were other law enforcement agencies and the adjacent west side kitchen. the incident. promptly notified? Yes. One correctional officer was barricaded in the staff office of the Because the bureau was unable to upper unit and had to be extracted view the scene on the day of the through the roof hatch. Additionally, disturbance, it surveyed the yard on a medical technical assistant had the following day. secured himself in the housing unit pharmacy until extracted by the crisis response team. Through staff efforts, numerous injured inmates were removed and transported to area hospitals, including two by helicopter and six by ambulance. Two of the inmate injuries appeared to be life- threatening, while staff injuries were minimal. The housing unit became uninhabitable because of extensive damage. It was later learned that the disturbance began in the kitchen over an issue of disrespect between a White and a Black inmate. Case No. 05-048 (Southern Region) The Bureau of Independent Review Quality of the department’s handling of The bureau concurred with On September 29, 2005, an institution was advised of the extraction plans any security/safety issues: Adequate. department that the extractions were conducted a large-scale extraction of and responded to the institution to performed in compliance with policy inmates from their administrative monitor the situation as it unfolded. Quality of the department’s handling of and that no unnecessary force was segregation cells to search for any crime scene: Not Applicable. used. BUREAU OF INDEPENDENT REVIEW PAGE 26 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF CRITICAL INCIDENT BUREAU ACTIONS BUREAU ASSESSMENT CONCLUSIONS & NOTES weapons. This activity followed Was the bureau promptly notified? Yes. receipt of information that the inmates had been arming themselves to take Were other law enforcement agencies control of the unit. Based on this promptly notified? Not Applicable. information, the institution developed a coordinated plan for the extractions and searches. Case No. 05-049 (Northern Region) The Bureau of Independent Review Quality of the department’s handling of This investigation was compromised On September 30, 2005, a large accompanied five special agents from any security/safety issues: Adequate. by the lack of coordination between quantity of narcotics was found in the the Office of Internal Affairs to the the warden and the Office of Internal administrative segregation section of institution. According to a senior Quality of the department’s handling of Affairs concerning the need of the an institution. Specifically, a search of special agent, when the narcotics were any crime scene: Adequate. Office of Internal Affairs to the section recovered 44 grams of initially discovered at the institution, investigate and that of the warden to marijuana in one cell and 45 grams of the Office of Internal Affairs and the maintain institution security. Was the bureau promptly notified? Yes. heroin, 33 grams of marijuana, and 55 institution’s investigative services According to the Office of Internal grams of methamphetamine in unit agreed to conduct surreptitious Affairs, the warden acted prematurely Were other law enforcement agencies another. surveillance of the correctional officer in placing the officer on promptly notified? No. in question and, if possible, arrange administrative time off and should Based on information provided by a for a controlled drug transaction instead have initiated a lock-down of confidential informant, it was alleged involving the same officer. These the institution to conduct searches for that a correctional officer was the plans, however, were obstructed by the narcotics. source of the narcotics, that he had the warden, who immediately placed smuggled them into the institution in the officer on administrative time off, The district attorney’s office declined exchange for money, and that there thereby alerting him that he was to pursue a criminal case against the had been four transactions since late suspected of wrongdoing. officer because the institution’s April 2005. decisions had limited its ability to build a case against him. The Department of Corrections and Rehabilitation opened criminal and administrative investigations into the matter, which the bureau is monitoring. Case No. 05-050 (Southern Region) The Bureau of Independent Review Quality of the department’s handling of The Department of Corrections and On October 11, 2005, a correctional responded to the institution shortly any security/safety issues: Adequate. Rehabilitation opened an BUREAU OF INDEPENDENT REVIEW PAGE 27 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF CRITICAL INCIDENT BUREAU ACTIONS BUREAU ASSESSMENT CONCLUSIONS & NOTES officer reported that a work crew after escape procedures were initiated Quality of the department’s handling of administrative investigation into inmate (low-risk inmates assigned to and remained at the institution to any crime scene: Not Applicable. whether the inmate counts were institution maintenance jobs inside monitor the situation. conducted properly. The bureau is and outside the institution’s secure Was the bureau promptly notified? Yes. monitoring that investigation. perimeter) was not accounted for during his 12:40 p.m. count. At Were other law enforcement agencies approximately 1:45 p.m., another promptly notified? Yes. correctional officer discovered that his car keys were missing and that his car was not in the parking lot. Based on this information, the institution initiated an emergency count at 2:05 p.m. and established that one inmate had, in fact, escaped in the officer’s car. Case No. 05-051 (Central Region) The Bureau of Independent Review Quality of the department’s handling of The institution appropriately managed On October 14, 2005, an inmate was notified of the incident and any security/safety issues: Not the crime scene, and its collection and notified correctional staff that his responded immediately. While at the Assessed. preservation of the physical evidence cellmate was dead. The victim was institution, the bureau addressed was adequate. The institution staff’s unresponsive when staff entered the issues concerning proper crime scene Quality of the department’s handling of decision to advise the inmate of his cell. The victim was removed from management and investigation. The any crime scene: Adequate. Miranda rights was premature, but the cell, transported to the bureau has maintained contact with does not appear to have adversely institution’s clinic and then to a the sheriff's department, established Was the bureau promptly notified? Yes. affected the case. regional medical center, where he was contact with the district attorney’s pronounced dead. According to the office, and reviewed institution Were other law enforcement agencies pathologist, the cause of death reports relative to the incident. promptly notified? Yes. appeared to be strangulation. Homicide detectives with the sheriff's department responded to the institution and assumed control of the investigation shortly thereafter. Case No. 05-052 (Central Region) Upon arriving at the institution, the Quality of the department’s handling of The criminal investigation by the On October 16, 2005, correctional Bureau of Independent Review asked any security/safety issues: Not sheriff’s department has been referred staff stopped a yard fight between two that the crime scene be “frozen,” Applicable. to the district attorney’s office for inmates, one of whom appeared to be suggested that a systematic search for consideration of criminal charges. BUREAU OF INDEPENDENT REVIEW PAGE 28 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF CRITICAL INCIDENT BUREAU ACTIONS BUREAU ASSESSMENT CONCLUSIONS & NOTES having difficulty breathing. Although weapons be undertaken with maps Quality of the department’s handling of an ambulance was summoned, life- and a metal detector, explained any crime scene: Inadequate. saving efforts were unsuccessful and evidence cross-contamination to the victim-inmate was pronounced preclude further compromise to the Was the bureau promptly notified? Yes. dead. The autopsy report identified evidence, and corrected the flawed that the cause of death was cardiac photographic lineup by cropping the Were other law enforcement agencies arrhythmia resulting from stress suspect’s photo. The bureau also promptly notified? Yes. induced by the altercation. suggested that the records of all inmates involved be reviewed by The institution’s immediate response homicide detectives to draft survey to the incident was flawed in several questions for the 68 witnesses. respects. First, staff did not secure the scene of the crime. Second, no After the incident, the bureau met entry/egress log was established for with the institution’s administrative the scene. Third, witnesses were not staff and the sheriff’s department to segregated from one another before suggest remedial measures to improve their interviews relative to the the institution’s future handling of incident. Fourth, the search for a critical incidents. The bureau possible weapon was neither timely recommended the following nor organized. Fifth, the victim’s measures: adopting a memorandum of fingerprints were taken before any understanding between the institution attempt was made to recover DNA and the sheriff’s department evidence from his hands. Sixth, concerning the notification and evidence was seized from the suspect- investigation of criminal acts on inmate by the same staff member who institution grounds; developing a took the fingerprint evidence, raising correctional staff critical incident the possibility of cross-contamination. checklist; implementing an advanced Seventh, the evidence taken from the training program for the institution’s victim and suspect were stored side- investigative services unit staff; and by-side in an unsecured area conducting institution tours for accessible to both the suspect and homicide detectives with the sheriff’s other inmates. department. Case No. 05-053 (Central Region) The Bureau of Independent Review Quality of the department’s handling of The district attorney’s office On October 22, 2005, an inmate was arrived on the scene and contacted the any security/safety issues: Adequate. determined that the evidence did not discovered dead in his cell. The investigators. The bureau support any criminal charges. institution’s investigative services subsequently monitored the Quality of the department’s handling of unit, with the assistance of the district investigation by reviewing relevant any crime scene: Adequate. BUREAU OF INDEPENDENT REVIEW PAGE 29 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF CRITICAL INCIDENT BUREAU ACTIONS BUREAU ASSESSMENT CONCLUSIONS & NOTES attorney’s crime lab, investigated the reports and interviews, obtaining the Was the bureau promptly notified? Yes. case as a possible homicide. The autopsy report, and conferring with investigation determined that both of institution management and the Were other law enforcement agencies the inmates in the cell were district attorney’s office. promptly notified? Yes (crime lab). intoxicated at the time of the incident and that the victim had sustained only minor abrasions. Furthermore, the inmate-suspect denied killing his cellmate. An autopsy revealed that the cause of death was intoxication and heart problems. Case No. 05-054 (Central Region) In addition to monitoring the crime Quality of the department’s handling of The institution managed the crime On October 26, 2005, a correctional scene, the Bureau of Independent any security/safety issues: Adequate. scene, evidence collection and officer responding to an inmate’s call Review observed the collection and preservation, security for the suspect- for help found the inmate’s cellmate preservation of case evidence and Quality of the department’s handling of inmate, and overall investigation in an lying on the cell floor, with visible inquired about the security measures any crime scene: Adequate. adequate and professional manner. injuries and a large amount of blood that had been taken for the suspect- The decision of the investigative under his body. The suspect-inmate inmate. The bureau also contacted the Was the bureau promptly notified? Yes. services unit to interview the suspect- suggested that he had been district attorney’s office relative to the inmate was properly reached after responsible for the cellmate’s injuries. case. Were other law enforcement agencies consideration of all the relevant The injured inmate was transported to promptly notified? Yes. factors and key issues. the institution’s emergency room, The bureau consulted with the then to the hospital, where he was institution’s administrative staff and The district attorney’s office filed later pronounced dead. investigators concerning the decision murder charges against the suspect- of local law enforcement to not inmate. respond to the incident. Plans of the investigative services unit to interview the suspect-inmate, particularly legal requirements governing such interviews and best practices for evidence collection, were also discussed. Case No. 05-055 (Central Region) The Bureau of Independent Review Quality of the department’s emergency Although suicide appeared to be the On October 27, 2005, an inmate was responded to the institution after medical response: Adequate. cause of death, homicide was transported Code 3 after a receiving notification of the attempted nonetheless considered until sufficient BUREAU OF INDEPENDENT REVIEW PAGE 30 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF CRITICAL INCIDENT BUREAU ACTIONS BUREAU ASSESSMENT CONCLUSIONS & NOTES correctional officer found him in his suicide. The bureau subsequently Quality of the department’s handling of evidence could be gathered to cell in a kneeling position hanging reviewed all incident reports and the any crime scene: Adequate. overrule that possibility. The bureau from a bed sheet. The victim’s death certificate. concurred in this finding. cellmate was not in the cell at the time Was the bureau promptly notified? Yes. and no other obvious marks were The bureau also suggested that the detected either on the victim or on his warden implement sentence recall Were other law enforcement agencies cellmate. The institution’s proceedings on the victim. These promptly notified? Not Applicable. investigative services unit processed proceedings allow for the recall the cell and questioned the cellmate. (termination) of an inmate’s sentence The inmate remained in a critical when he or she is diagnosed with a comatose condition on life support terminal illness and has less than six before expiring approximately two months to live, according to a months later. department physician. In this case, recalling the critically injured inmate’s sentence would eliminate the need for custody staff to guard him 24 hours a day while he was on life support. Eliminating the need for custody staff in this and similar situations would save the state significant salary costs. Case No. 05-056 (Central Region) The Bureau of Independent Review Quality of the department’s handling of The department opened a criminal On October 29, 2005, an inmate was not notified of the incident until any security/safety issues: Not investigation into the conduct of the assaulted a correctional officer with a two days later, on October 31, 2005, Assessed. inmate. stabbing weapon. The officer was precluding the bureau’s timely taken off-grounds to an urgent care response to the institution. The bureau Quality of the department’s handling of center and was released after contacted the institution to determine any crime scene: Not Assessed. treatment. the reason for the tardy notification and learned that the institution had Was the bureau promptly notified? No. also failed to notify the department’s administrative officer of the day about Were other law enforcement agencies the incident in a timely manner. promptly notified? Not Applicable. The bureau reminded the institution of the importance of the notification procedures. BUREAU OF INDEPENDENT REVIEW PAGE 31 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF CRITICAL INCIDENT BUREAU ACTIONS BUREAU ASSESSMENT CONCLUSIONS & NOTES Case No. 05-057 (Central Region) The Bureau of Independent Review Quality of the department’s handling of The Department of Corrections and On November 27, 2005, an inmate responded to the institution and any security/safety issues: Inadequate. Rehabilitation opened an committed suicide by means of self- learned that although all security administrative investigation into the induced asphyxiation. The inmate had checks had been implemented in Quality of the department’s handling of matter, which the bureau is been placed on suicide “precaution” accordance with established any crime scene: Not Applicable. monitoring. by medical staff before because he procedures, the video surveillance had attempted to harm himself on recorder had never been activated and Was the bureau promptly notified? No. previous occasions and had, therefore, the recording device was not been placed in a safety cell (rubber functioning properly—clear violations Were other law enforcement agencies room) under constant video of procedures requiring equipment promptly notified? Yes (district surveillance. testing before every shift. attorney investigators). Despite the lack of a functional recorder, however, a working television monitor did display the inmate’s image around the clock. Nonetheless, because the inmate had been placed on suicide “precaution” rather than “watch” (essentially, a lower level of suicide prevention), staff did not continually monitor the television. The bureau recommended that an administrative investigation be conducted concerning the failure to comply with video surveillance procedures. In addition, the bureau expressed concern that the medical staff had placed the inmate on suicide “precaution” rather than “watch,” despite his multiple past suicide attempts. Case No. 05-058 (Northern Region) The Bureau of Independent Review Quality of the department’s handling of In the early morning hours of responded to the institution because any security/safety issues Not November 29, 2005, an inmate of the suspicious circumstances Assessed. informed a correctional officer that he surrounding the death. The bureau could not wake his cellmate. After an conferred with the coroner, who Quality of the department’s handling of BUREAU OF INDEPENDENT REVIEW PAGE 32 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF CRITICAL INCIDENT BUREAU ACTIONS BUREAU ASSESSMENT CONCLUSIONS & NOTES unsuccessful attempt to wake the preliminarily assigned the cause of any crime scene: Inadequate. Despite cellmate verbally, the officer entered death as asphyxiation. The bureau staff acknowledging the inmate was the cell and suspected that the victim also conferred with the members of deceased upon discovery, the body was was dead. The officer activated an the institution’s investigative services removed from the cell prior to proper alarm to summon the nurse, who unit, who had interviewed the crime scene processing. confirmed the death, as evidenced by victim’s cellmate with the assistance the onset of rigor mortis. The victim of two investigators from the district Was the bureau promptly notified? Yes. was transported by gurney to the attorney’s office. institutional emergency room, where Were other law enforcement agencies he was pronounced dead by a medical The bureau noted that staff promptly notified? Yes. doctor. responding to the incident did not administer CPR, as required by Based on the type of injuries department policy, presumably sustained by the deceased inmate, the because the inmate had been dead incident was handled as a possible approximately 24 hours before the homicide. The coroner also coroner’s arrival. The bureau also determined that the circumstances and noted that evidentiary photos were not injuries were suspect. An autopsy was taken before the victim’s body was to be performed to determine the removed from the cell. The deceased cause of death. The victim’s cellmate inmate’s clothing and property had is being retained in administrative been properly preserved. segregation pending the conclusion of the investigation. Case No. 05-059 (Central Region) The Bureau of Independent Review Quality of the department’s handling of The criminal investigation by the On December 20, 2005, two inmates responded to the institution and any security/safety issues: Inadequate. sheriff’s department is complete and initiated a fight in their cell. During examined the institution’s crime scene Victim and suspect were not supposed the district attorney’s office filed the fight, one inmate shouted for preservation efforts. The bureau to be celled together. murder charges against the suspect. medical assistance. Upon arriving, a contacted both the warden and lead nurse observed one inmate attempting homicide detective from the sheriff’s Quality of the department’s handling of to strangle the other with an electric department. any crime scene: Inadequate. Pertinent cord while punching the victim in the evidence was destroyed. head with the other hand. The victim The bureau made efforts to ensure was transported to the hospital and that the crime scene was properly Was the bureau promptly notified? Yes. was later pronounced dead. The preserved until the arrival of the sheriff’s department responded to the sheriff's department and answered Were other law enforcement agencies scene and assumed primary detectives’ questions regarding access promptly notified? Yes. responsibility for the investigation. BUREAU OF INDEPENDENT REVIEW PAGE 33 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF CRITICAL INCIDENT BUREAU ACTIONS BUREAU ASSESSMENT CONCLUSIONS & NOTES to relevant inmate records. The bureau also alerted the warden to various concerns relative to potential staff misconduct for administrative consideration. BUREAU OF INDEPENDENT REVIEW PAGE 34 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA CASE MONITORING ACTIVITIES The bureau began full-time monitoring operations in July 2005 after intensive training of new staff attorneys was completed. During the six-month reporting period ended December 31, 2005, the bureau selected for monitoring 341 cases that met specified criteria and protocols. These cases, which are reported in more detail in the tables below, provide insight into the bureau’s monitoring activities. Internal affairs allegations generally fall into one of two broad categories: criminal or administrative. Cases that do not fall neatly into either of these classifications because they may be pending, involve direct action or inquiries, or constitute rejected or returned cases are classified as “other.” The 341 cases selected for monitoring during the reporting period comprised 74 criminal cases, 210 administrative cases, and 57 cases designated as other. During the same period, the California Department of Corrections and Rehabilitation opened 449 criminal and administrative internal affairs investigations. Consequently, even though the bureau was not fully staffed, it monitored 63 percent of the criminal and administrative cases opened by the Office of Internal Affairs during the six-month reporting period. Although it is the bureau’s overarching goal to report on every case in a timely manner, exceptional circumstances may preclude such reporting. For example, the bureau includes a criminal investigation in its public reports only after the district attorney’s office has reviewed the case. Similarly, it publicly discloses an administrative investigation once the hiring authority has determined the case findings. In broad terms, the bureau retains the discretion to delay reporting of a given investigation to avoid jeopardizing the investigation and any resulting disciplinary action or to avert the potential of placing inmates or staff at risk. Most monitored cases, however, are reported within the six-month timeframe to which they correspond. The following table summarizes criminal and administrative investigations over the second reporting period. CRIMINAL AND ADMINISTRATIVE INVESTIGATIONS NORTHERN REGION OPENED FOR MONITORING JULY 17 AUGUST 29 SEPTEMBER 20 OCTOBER 23 NOVEMBER 32 DECEMBER 13 TOTAL 134 CENTRAL REGION OPENED FOR MONITORING JULY 26 AUGUST 37 SEPTEMBER 20 OCTOBER 16 NOVEMBER 19 DECEMBER 18 TOTAL 136 BUREAU OF INDEPENDENT REVIEW PAGE 35 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA CRIMINAL AND ADMINISTRATIVE INVESTIGATIONS (CONTINUED) SOUTHERN REGION OPENED FOR MONITORING JULY 13 AUGUST 17 SEPTEMBER 5 OCTOBER 3 NOVEMBER 15 DECEMBER 18 TOTAL 71 BUREAU TOTALS OPENED FOR MONITORING JULY 56 AUGUST 83 SEPTEMBER 45 OCTOBER 42 NOVEMBER 66 DECEMBER 49 TOTAL 341 Additional demonstrations of the monitoring statistics are presented in the following charts. The majority (61 percent) of cases the bureau INVESTIGATIONS monitored are administrative. These cases range from allegations of misuse of state resources to dishonesty Administrative (61%) during criminal investigation. They can also encompass the same allegations included in a criminal Criminal (22%) case, but must proceed independently of any criminal Other (17%) investigation. To further such autonomy, administrative allegations associated with criminal activity typically commence at the conclusion of a criminal investigation. 57 74 The second largest group of cases the bureau 210 monitored are criminal. Considered the most serious of bureau-monitored cases, criminal cases represent 74 of the 341 (22 percent) total cases monitored. The remaining 17 percent of the cases monitored are composed of direct employee action, inquiries, pending evaluation, and cases returned to the hiring authorities. These “other” cases generally involve less severe allegations or require no investigative resources to proceed. Nonetheless, the bureau monitors these cases to ensure fairness within the employee disciplinary process. Cases under investigation usually cover multiple allegations. The number of allegations investigated in bureau-monitored cases totaled 708, averaging roughly two allegations per investigation. BUREAU OF INDEPENDENT REVIEW PAGE 36 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA The majority of cases the bureau monitors involve ALLEGATIONS correctional officers, who make up approximately 61% Administrative (73%) of department employees. Because the inherent nature of the correctional environment places officers in situations Criminal (18%) that may require force, misuse of force is one of the most common allegations under investigation and Other (9%) bureau monitoring. The 341 cases monitored by the bureau during the six-month period ending December 31, 2005, involved 488 subject employees. Because the 65 case management system used by the Office of Internal 127 Affairs defines each case by incident, with some incidents involving more than one subject, bureau cases 516 likewise may reflect more than one subject. The bureau usually becomes involved in a case from the time a request for investigation is initially considered by the Office of Internal Affairs at the weekly intake meetings. During these meetings, the Office of Internal SUBJECTS Affairs staff presents the investigation request on behalf of a department hiring authority. Based on the Sworn Staff (83%) allegations, criteria, subjects, evidence, and topics, the Non-Sworn Staff (17%) bureau determines whether to monitor a particular case. Once selected, cases are assessed for the type of monitoring required. The bureau engages in three levels 85 of monitoring for internal affairs investigations. The most serious and time-sensitive allegations are monitored in a real-time, continuous fashion. 403 Alternatively, critical juncture review is assigned to less time-sensitive allegations. Because both monitoring levels employ the same techniques, cases are not distinguished by monitoring type when reported. Highlights of criminal and administrative cases from July through December 2005 are presented in the following tables.8 Pursuant to California Penal Code section 6133, the tables also include an assessment of the quality of the investigation as either “adequate” or ‘inadequate.” 8 The last and lowest level of case monitoring consists of case tracking. These cases are usually monitored by investigators from the Bureau of Independent Review and are assessed from an exception perspective, meaning that if the case is not progressing, the statute date is approaching, or an element of the case did not proceed as expected, the monitoring level may be raised. Because of the low level of monitoring, investigations monitored at the case- tracking level are not reported in the tables. B UREAU OF INDEPENDENT REVIEW PAGE 37 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF CRIMINAL INVESTIGATIONS — JULY-DECEMBER 20059 SUMMARY OF CRIMINAL INCIDENT BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES Case No. 05-060 (Southern Region) On June 10, 2005, the Bureau of Quality of the investigatory process: Both the district attorney’s office and In July, 2003, a non-sworn employee Independent Review met with the Adequate. the Attorney General’s Office of the California Department of special agent and senior special agent declined to file criminal charges in Corrections and Rehabilitation was assigned to the case by the Office of this case. appointed to a county grand jury. On Internal Affairs. On June 17, 2005, April 27, 2004, the painter’s the bureau attended the investigator’s The department opened an supervisor sent a memorandum to the presentation of the investigative administrative investigation into this Office of Internal Affairs, outlining findings to the district attorney’s matter, which the bureau is his belief that the employee had office. monitoring. received his state salary for time when he was not on authorized grand jury business. The supervisor alleged that the employee had submitted false jury duty excuse letters to the department to justify his absences. Case No. 05-061 (Central Region) Because the criminal investigation Quality of the investigatory process: The district attorney’s office rejected On March 9, 2004, a control booth into the incident began well before the Adequate. the case for criminal prosecution. officer opened a cell door, allegedly Bureau of Independent Review was permitting the inmate-occupant to be operational, the bureau began The department opened an assaulted by other inmates. It was monitoring the investigation after its administrative investigation into the further alleged that later the same day inception. The bureau elected to matter, which the bureau is the officer again opened the inmate’s monitor the investigation because of monitoring. cell door, resulting in a second fight. the serious nature of the allegations. An uninvolved inmate witnessed these assaults, as well as a separate Because the cell door mechanisms attack on a different inmate, which have historically malfunctioned at this had also been precipitated by the institution, the bureau recommended same officer in the same manner. further study of the problem. Case No. 05-062 (Central Region) The Bureau of Independent Review Quality of the investigatory process: The bureau found that the On April 10, 2004, an employee monitored the investigating agent’s Adequate. investigation conducted by the Office allegedly requested that several progress on the criminal case and of Internal Affairs was thorough and 9 Text in bold format indicates that the bureau has previously reported on a particular case, which is being updated in the present report. BUREAU OF INDEPENDENT REVIEW PAGE 38 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF CRIMINAL INCIDENT BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES female inmates show him their suggested an investigative strategy. timely, despite the substantial delay breasts. Two of the three alleged attributable to the DNA analysis. victims denied the occurrence, but a To ensure that this subject is never Because the Department of Justice fourth inmate alleged that the subject- rehired by the department, the bureau test results were negative for employee raped her. Evidentiary confirmed that the subject-employee’s DNA/seminal fluid analysis, the samples from the cell floor were file reflects that his resignation was criminal case was closed and was not submitted to the Department of tendered while an internal affairs referred to the district attorney’s Justice laboratory for DNA/seminal investigation was pending. office due to insufficient evidence. fluid analysis. During the internal The bureau concurred with this affairs investigation into the appraisal because the only evidence allegations, the subject employee of misconduct would have been the resigned from the department. uncorroborated testimony of the victim. An administrative case was not opened because the subject-employee resigned in light of other allegations of off-duty sexual misconduct. Case No. 05-063 (Central Region) The Bureau of Independent Review Quality of the investigatory process: The employee was charged by the On June 23, 2004, a correctional noted an inaccuracy in the hiring Adequate. district attorney’s office with two officer was discovered in a sexually authority’s request for investigation counts of unlawful sexual acts with an compromising position with an and asked that it be corrected. The inmate. The employee pleaded guilty inmate. bureau also maintained contact with to one of the felony counts and the the district attorney’s office. court sentenced him to probation with 240 days of custody. The department opened an administrative investigation into this matter, which the bureau is monitoring. Case No. 05-064 (Central Region) The Bureau of Independent Review Quality of the investigatory process: The bureau concurred with the On July 1, 2004, an inmate with a consulted with the investigator Adequate. department that no misconduct could history of suicidal gestures attempted assigned by the Office of Internal be established but that errors in suicide by hanging, after which the Affairs to discuss investigative professional judgment had occurred inmate was housed in administrative strategy, contacted the staff attorney on the part of personnel in the segregation and prescribed 20 mg. of assigned by the Employment Correctional Clinical Case BUREAU OF INDEPENDENT REVIEW PAGE 39 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF CRIMINAL INCIDENT BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES Olanzapine, an antipsychotic drug, to Advocacy and Prosecution Team to Management Services Unit relative be administered under direct facilitate production of the inmate’s both to the choice of antipsychotic observation. Two weeks later, the medical records, and reviewed the 48- medication and the inmate’s inmate died of an overdose. page final investigative report. institutional placement. There were Postmortem blood testing disclosed a also deficiencies in the institution’s toxic level of Olanzapine. documentation of the inmate’s medications and cell searches, which permitted the inmate to hoard the medication without detection. The hiring authority, in this case the Health Care Services Division, indicated that it would recommend steps to clarify for staff the difference between “observation status” and “suicide watch.” The hiring authority also recommended that a higher priority be assigned to cell searches of inmates with a history of suicide attempts and that medication precautions should be emphasized to psychiatric technicians in training. Case No. 05-065 (Central Region) The Bureau of Independent Review Quality of the investigatory process: The district attorney’s office On July 6, 2004, a parole agent consulted with the assigned Adequate. conducted further case review and allegedly logged onto one of the investigator and met with the district subsequently filed a misdemeanor office computers and accessed the attorney’s office. charge against the parole agent for criminal history of a parolee who had furnishing confidential information to been assigned to another parole agent an unauthorized person. to obtain a copy of the parolee’s criminal history for a friend. The The case was set for jury trial on friend used the criminal history in September 15, 2005. The district family court during a child custody attorney’s office dismissed the case hearing involving the parolee. before trial, citing concern with the credibility of a primary witness. The department opened an administrative investigation into the matter, which the bureau is BUREAU OF INDEPENDENT REVIEW PAGE 40 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF CRIMINAL INCIDENT BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES monitoring. Case No. 05-066 (Northern Region) The Bureau of Independent Review Quality of the investigatory process: Because the overall evidence of On August 2, 2004, a private citizen did not begin monitoring this case Adequate. misconduct was weak, the case was reported to the Office of Internal until after the investigation was not prosecuted by the district Affairs that his Labrador retriever had completed and the report had been attorney's office, nor was been fatally shot on July 10, 2004, by forwarded to the hiring authority. The administrative discipline pursued by a correctional lieutenant. The citizen bureau assumed a monitoring role the hiring authority. also reported the incident to the because a significant period of time sheriff’s office. It was further alleged had elapsed from the time the case that the lieutenant was dishonest was forwarded to the hiring authority when questioned by the sheriff’s in February 2005 without significant investigators. activity. The bureau met with the warden and his staff attorney to discuss the merits of the case and the delay. Case No. 05-067 (Central Region) The Bureau of Independent Review Quality of the investigatory process: The bureau agreed with the On October 18, 2004, it was alleged met with the special agent and the Adequate. investigator’s decision to narrow the that a sergeant and several officers senior special agent assigned by the scope of the case to the two subjects had conspired to have an inmate Office of Internal Affairs. The bureau directly responsible for the yard and assaulted by other inmates in the reviewed all of the interviews and later concurred with the decision not administrative segregation unit. The reports, as well as the video of the to refer the case to the district allegation was based primarily on the incident, which indicated a 90-second attorney’s office due to insufficient officers’ delayed response to a fight delay in the tower officers’ reaction. evidence of criminal misconduct. between the inmate-victim and two other inmates in the yard. The criminal investigation was both thorough and timely. The department also opened an administrative investigation into the matter, which the bureau is monitoring. Case No. 05-068 (Northern Region) The Bureau of Independent Review Quality of the investigatory process: Because the case relied primarily on On November 9, 2004, it was alleged reviewed the hiring authority's request Adequate. the uncorroborated statements of that a correctional officer was for investigation and discussed the inmates, the bureau concurred with involved in selling tobacco and drugs case with the special agent assigned. the investigator that it would be BUREAU OF INDEPENDENT REVIEW PAGE 41 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF CRIMINAL INCIDENT BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES to inmates. During the course of the investigation, difficult to prove. the main witness, an inmate, was moved to another institution and was The criminal investigation was unavailable to develop further forwarded to the district attorney’s evidence through means of office but was rejected for surveillance or recordings. The prosecution due to insufficient special agent was unsuccessful in evidence. The correctional officer gaining further information through nevertheless resigned his position other means. with the department. Case No. 05-069 (Central Region) The Bureau of Independent Review Quality of the investigatory process: The district attorney’s office filed On January 13, 2005, an institution met with a special agent from the Inadequate. Not all of the relevant charges of forgery and petty theft. instructor was alleged to have Office of Internal Affairs to suggest evidence was collected. submitted a falsified travel expense an interrogation strategy for the The subject-employee pleaded no claim for an off-site training event. subject-employee and informed the contest to the petty theft charges The subject-employee had requested agent that if the case were selected for and was sentenced accordingly. reimbursement for the use of his jury trial, the prosecutor would need a personal vehicle to and from the copy of the cancelled check to prove Because the investigation initially training event, but the institution that the subject-employee had taken lacked proof that the subject- discovered that the subject-employee unlawful possession of state money. employee had actually received had received a ride from a co-worker. The bureau also reviewed the final state funds, the bureau found the investigative report. investigation was timely but not thorough. The department also opened an administrative investigation into the matter and the agent obtained the necessary proof in that case, which the bureau is monitoring. Case No. 05-070 (Central Region) The Bureau of Independent Review Quality of the investigatory process: The case was rejected for prosecution On February 18, 2005, a correctional met with the investigator, attended Adequate. by the district attorney’s office due to officer allegedly physically assaulted witness interviews, suggested case concerns that it could not be proven another correctional officer while strategies, and contacted the district beyond a reasonable doubt. both were on duty. The victim alleged attorney’s office concerning the that the assailant had punched his arm referral. The bureau found the investigation to and “karate-chopped” his forearm, be thorough and timely. resulting in bruises and numbness in BUREAU OF INDEPENDENT REVIEW PAGE 42 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF CRIMINAL INCIDENT BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES his fingers. Moreover, the subject- The department opened an employee allegedly interfered in the administrative investigation into the ensuing investigation by the Office of matter, which the bureau is Internal Affairs. monitoring. Case No. 05-071 (Central Region) The Bureau of Independent Review Quality of the investigatory process: There was insufficient evidence of On March 9, 2005, it was alleged that confirmed the applicable statute of Inadequate, due to untimeliness. criminal misconduct to refer the correctional officers had intimidated limitations date in the case and matter to the district attorney’s office. an inmate for cooperating with an communicated to the Office of Because of the untimely completion investigation by the Office of Internal Internal Affairs the attendant urgency of the criminal investigation, the Affairs. to conclude the investigation. Office of Internal Affairs had inadequate time to complete the The bureau’s attention to the statute administrative investigation, which of limitations helped to ensure that the the bureau is monitoring. investigation was not irreparably compromised. Case No. 05-072 (Northern Region) The Bureau of Independent Review Quality of the investigatory process: The district attorney’s office declined On March 19, 2005, a correctional began to monitor this case after it had Adequate. to prosecute this case. officer gave an inmate a confidential been substantially completed. The document concerning the housing bureau was consulted in the The department opened an status of another inmate and stated to administrative case, however, and administrative investigation into the the first inmate that the second inmate worked with the investigator and matter which resulted in the “needed to be taken care of” (or reviewed the interviews, reports, and termination of the principal subject, words to that effect), thereby files. which the bureau monitored. conspiring with the first inmate to have the second inmate assaulted. Four additional correctional officers allegedly participated in the conspiracy to have the inmate-victim assaulted. Case No. 05-073 (Central Region) The Bureau of Independent Review Quality of the investigatory process: The investigation was timely and On April 11, 2005, a correctional reviewed the investigative reports and Adequate. comprehensive. officer allegedly engaged in sexual interviews, consulted with the Office misconduct with an inmate. It was of Internal Affairs, and contacted the The subject-employee entered into a also alleged that the correctional district attorney’s office to discuss the plea agreement with the district officer had smuggled narcotics into case. attorney’s office and pleaded guilty to BUREAU OF INDEPENDENT REVIEW PAGE 43 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF CRIMINAL INCIDENT BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES the institution. The bureau attempted unsuccessfully one misdemeanor count of to persuade the district attorney’s unauthorized communication with an office to handle the case more inmate. aggressively, given the strong evidence in support of both felony The subject-employee subsequently charges for unlawful sexual resigned. misconduct with an inmate and unlawful communication with an inmate, even though evidence supporting narcotics smuggling was less strong. Case No. 05-074 (Northern Region) The Bureau of Independent Review Quality of the investigatory process: The subject-employee pleaded guilty On April 28, 2005, a confidential met with the special agent assigned, Adequate. to furnishing a controlled substance to informant revealed to the institution’s discussed an investigative plan, and a prisoner. investigative services unit that a reviewed the investigator's interviews senior radiological technician was in of the witnesses and the subject- The employee was subsequently possession of methamphetamine on employee. terminated. prison grounds with the intent to sell the methamphetamine to an inmate. During surveillance operations approximately 22 grams of suspected methamphetamine were seized. The subject-employee was subsequently booked into jail and charged by the district attorney’s office. Case No. 05-075 (Central Region) The Bureau of Independent Review Quality of the investigatory process: This matter was rejected for On May 10, 2005, allegations were consulted with the investigator Adequate. prosecution by the district attorney’s made that a correctional officer had assigned to the case and reviewed the office, despite the fact that the been involved in an overly familiar investigator’s interview of the investigation was thorough and relationship with an inmate. subject-employee. timely. Nevertheless, the subject- employee resigned. After initial rejection of the case by the district attorney’s office, the Despite additional case leads, the bureau suggested further areas of bureau concurred with the inquiry and assisted in the department’s decision to close the investigator’s interactions with the case without re-referral to the district BUREAU OF INDEPENDENT REVIEW PAGE 44 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF CRIMINAL INCIDENT BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES district attorney’s office. attorney’s office. During the course of this investigation, a taped telephone call indicated that another officer might have improperly advised the subject- employee that she was under investigation. Based on this recording, the department opened a separate investigation. The bureau is now monitoring the separate investigation on the additional subject. Case No. 05-076 (Northern District) The Bureau of Independent Review Quality of the investigatory process: The bureau concurred with the In the months preceding May 24, met with the special agent to discuss Adequate. internal affairs decision to close the 2005, a surgeon employed by the the investigative plan, consulted with investigation. department allegedly engaged in the special agent as the investigation sexual misconduct with five separate progressed, and reviewed the final The investigation was thorough, as inmates. It was alleged by another report before the case was closed. evidenced by internal affairs’ staff surgeon that the subject- exhaustive pursuit to gain relevant employee was sexually abusing information regarding the allegations inmates during routine clinical despite the lack of cooperation by the evaluations. The complainant claimed complainant. that he knew of at least five inmates who could verify this allegation. During the course of the investigation, the Office of Internal Affairs attempted to obtain a list of the alleged victims from the complainant to pursue the investigation. The complainant, however, resigned his position after only four weeks of employment with the department, failed thereafter to return phone calls, and moved from his residence. The Office of Internal Affairs interviewed all staff members who BUREAU OF INDEPENDENT REVIEW PAGE 45 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF CRIMINAL INCIDENT BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES had worked with the subject- employee but none corroborated the allegations and no victims were ever identified. Case No. 05-077 (Northern Region) The Bureau of Independent Review Quality of the investigatory process: The district attorney’s office elected On June 9, 2005, a correctional met with the investigator to discuss a Adequate. not to prosecute the case. officer discovered a department case strategy in light of the psychologist and an inmate engaged psychologist’s refusal to be The psychologist resigned her in a sexual act. interviewed and also reviewed the position with the department. final reports. Case No. 05-078 (Southern Region) The Bureau of Independent Review Quality of the investigatory process: During a briefing attended by the On June 29, 2005, a non-custody was briefed by the institution’s Inadequate. warden, the investigative services supervisor was observed entering an investigative services unit on the unit, the internal affairs investigator, inmate housing area in which she had incident and actions were taken to By the time the district attorney’s and the bureau, it was first revealed no authorization. A correctional secure both the evidence and the office filed felony drug charges that the supervisor had been allowed sergeant witnessed the supervisor subject. against the supervisor, the to use a restroom, unescorted, during walk toward several inmates and investigator had not yet notified her initial detention. The bureau allegedly drop an object. When the The bureau expressed concerns prosecutors about the Miranda expressed concern that the employee sergeant recovered the object, he regarding the length of time the violation surrounding the supervisor’s could have used this opportunity to observed that it was a vial of supervisor was detained while waiting invocation of her right to an attorney discard evidence, including narcotics. methamphetamine. for the investigator to arrive. that had occurred during her The investigator acknowledged this interrogation. The bureau met with constituted a significant investigative The employee was detained in a When the internal affairs investigator the investigator and his supervisor to lapse, but the warden assured the conference room during the two- to arrived, the bureau advised him to communicate its concern about the bureau that the matter would be three-hour period before an internal view the scene, examine the evidence, failure to report this information to addressed through staff counseling affairs investigator could response to and speak to eye-witnesses prior to prosecutors and the investigator and training. the institution. interviewing the supervisor. In indicated that he would contact the addition, the bureau suggested that the district attorney’s office immediately The supervisor pleaded guilty to When the investigator arrives, he investigator search the supervisor’s to remedy the situation. When the smuggling narcotics into the proceeded to immediately interview car and residence to establish whether bureau later conferred with the institution, a violation of Penal Code the supervisor without viewing the she had intended to sell the narcotics investigator, he reported that he had section 4573, and to possession of scene, examining evidence, or or retain them for personal use. disclosed only the existence of the methamphetamine, a violation of speaking with eye-witnesses. interview and the fact that the suspect Health and Safety Code Section The bureau learned that the had invoked, not that a Miranda 11377. As a result, the supervisor’s Shortly after the interview began, the investigator had obtained the violation had likely occurred. employment was terminated. investigator emerged from the incriminating statement from the BUREAU OF INDEPENDENT REVIEW PAGE 46 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF CRIMINAL INCIDENT BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES interview room, stated that the supervisor after she had invoked her The bureau contacted the prosecutor supervisor had admitted there were right to an attorney. The bureau to discuss the case. The prosecutor drugs in her house, and expressed his cautioned that if the investigator stated unequivocally that all the intent to obtain a search warrant for intended to use the statements in a circumstances surrounding the the premises. warrant affidavit he needed to clearly supervisor’s invocation during her establish the manner in which they interview should have been reported had been obtained to avoid by the investigator, as required by “misleading the magistrate.” law. A search warrant was eventually procured for the supervisor’s residence without using the incriminating statements. Drugs and other evidence supporting over familiarity with inmates were seized in the house. Finally, the bureau expressly requested that it be allowed to review the final investigative report before it was sent to the district attorney’s office. Despite this request, the investigator informed the bureau only after the report had been dispatched to the district attorney’s office. The report mentioned the supervisor’s incriminating statements to the investigator during the interview, but did not mention the circumstances under which they had been obtained, namely, in violation of her invocation of her right to an attorney; nor did the report mention that the interview had been recorded. Case No. 05-079 (Southern Region) The Office of Internal Affairs initially Quality of the investigatory process: On June 30, 2005, a correctional informed the Bureau of Independent Inadequate. lieutenant received information from Review that the case would have to be an inmate that another correctional closed because there was no video Despite a recommendation from the BUREAU OF INDEPENDENT REVIEW PAGE 47 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF CRIMINAL INCIDENT BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES lieutenant was allegedly having a recording to corroborate the bureau, the Office of Internal Affairs sexual relationship with one of the misconduct. The bureau, however, failed to interview the inmate who inmates. In addition, the informant recommended that the other witnesses made the original complaint. reported that the subject-employee identified in the initial report be Furthermore, the possibility of and the inmate had engaged in sex interviewed before making a obtaining video-recorded evidence of after the subject-employee’s normal determination to close the case. the misconduct was precluded when work hours. Despite indications that those the hiring authority placed the interviews had occurred, the Office of subject-employee on administrative Internal Affairs reported that no time off in another case. corroborative evidence had been obtained and the case was closed. Case No. 05-080 (Central Region) The Bureau of Independent Review Quality of the investigatory process: The investigation was timely and On July 7, 2005, it was alleged that a consulted with the assigned special Adequate. comprehensive. The bureau concurred non-custody employee became agent, monitored the investigation, with the decision that there was pregnant as a result of a relationship and reviewed all reports and insufficient credible evidence to with an inmate and that the subject- interviews. On reviewing the final sustain criminal charges. The original employee was also suspected of report, the bureau recommended areas complainant was the subject’s smuggling contraband into the prison of further investigation, which the husband, who subsequently recanted for inmates. special agent agreed to undertake. The his allegations. special and senior special agents consulted the bureau before making The investigation nonetheless the decision not to refer the matter to disclosed certain policy violations the district attorney’s office. regarding transporting mail and hobby items for inmates. As a result of this finding, an administrative investigation commenced, which is being monitored by the bureau. BUREAU OF INDEPENDENT REVIEW PAGE 48 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA (This page intentionally blank) BUREAU OF INDEPENDENT REVIEW PAGE 49 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE INVESTIGATIONS — JULY-DECEMBER 200510 SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT Case No. 05-081 (Central Region) The Bureau of Independent Review Quality of the investigatory process: This investigation failed to identify On July 2, 2003, a correctional received this case for monitoring after Inadequate. and pursue a key witness, examine captain was alleged to have recruited the investigative report was submitted critical missing documents, and inmates to spy on other staff members to the hiring authority and after the Were any allegations sustained? No. recognize the significance of to collect evidence of misconduct for statute of limitations for sworn staff Was the bureau consulted? Yes. equivocal statements made by one of use against them. It was further had expired. After reviewing the Did the bureau concur? No. the subjects. A supplemental alleged that when two lieutenants and report and meeting with the investigation was conducted and a an associate warden learned of the investigator, the bureau expressed a supplemental report was filed. situation they called a meeting with number of concerns to the Office of the alleged inmate “informants,” after Internal Affairs about the Although various parties debated which the associate warden attempted investigation, including the protracted about who would act as hiring to conceal the captain’s misconduct. It delay in completing the investigation. authority, all were aware that the was further alleged that a staff During consultations with the warden, subject intended to retire, yet took no member, who was targeted by the additional problems with the report steps to expedite the process. captain for surveillance and who were identified, indicating the need Consequently, the subject retired submitted a complaint, received an for further investigation. before the hiring authority could or adverse change in work assignments. would act. The bureau closely examined a key interview in the investigation and After the subject retired, the hiring transcribed passages that appeared to authority rendered a finding that there establish incontrovertibly that a chief was insufficient evidence to support deputy warden provided false an allegation of dishonesty. The information in an official document. bureau strongly disagreed with the The statute of limitations had not yet hiring authority’s finding of expired on this conduct. Confusion insufficient evidence. regarding who would assume responsibility to act as hiring authority further delayed imposition The bureau’s scrutiny of this of discipline until after the chief investigation identified training issues deputy warden retired. related to Office of Internal Affairs 10 Text in bold format indicates that the bureau has previously reported on a particular case, which is being updated in the present report. BUREAU OF INDEPENDENT REVIEW PAGE 50 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT interview techniques. While the The bureau’s intervention prevented bureau’s persistence prevented this the case from being closed case from completely “slipping prematurely and resulted in its referral through the cracks,” continuing back to the Office of Internal Affairs delays ultimately frustrated the for further investigation. The bureau’s disciplinary process. analysis proposed a theory that could have been employed to extend the statute of limitations and also identified specific statements that implicated the chief deputy warden in dishonesty during an investigation. Case No. 05-082 (Northern Region) The Bureau of Independent Review Quality of the investigatory process: The investigation was complete and On October 14, 2003, it was alleged obtained relevant documents for Adequate. timely. The report disclosed that a lieutenant had filed a workers’ review and conferred with the hiring insufficient evidence to support the compensation claim for a back injury, authority’s return to work Were any allegations sustained? No. charge of fraud against the employee. but was subsequently seen engaging coordinator, who was monitoring the Was the bureau consulted? No. The bureau concurred with this in physical activities that were workers’ compensation case for the Did the bureau concur? Yes. assessment. potentially inconsistent with his institution. alleged injuries. Disciplinary Charges: Not applicable. Case No. 05-083 (Central Region) The Bureau of Independent Review Quality of the investigatory process: A Skelly hearing was held for the On December 5, 2003, a control booth determined that staff did not collect Inadequate. officer who failed to obtain the officer allowed two cellmates out of all of the relevant evidence in the warden’s approval before using the their cell to talk with him. The case. In particular, they failed to Were any allegations sustained? Yes. 37-mm weapon, as required by officer’s conduct violated institution search the inmates for remaining Was the bureau consulted? Yes. institutional policy. The bureau security protocols, which require the alcohol. Consequently, the bureau Did the bureau concur? Yes. concurred with the hearing officer’s presence of a floor officer before recommended that key staff members recommendation to reduce the penalty inmates can be released from their receive evidence collection training. to a letter of reprimand in light of the Disciplinary charges: Yes. cell. When the two inmates became warden’s statement that he would Was the bureau consulted? Yes. disruptive and refused to return to The bureau also consulted with the have approved the use of the weapon their cell, the administrative officer- special agent assigned to investigate regardless. Penalty level: Appropriate of-the-day approved a plan that had the case regarding ways to expedite Was the bureau consulted? Yes. been proposed by the facility the investigation. Although the Relative to the other subject- lieutenant to extract the inmates with incident involved multiple subjects, employees, the hiring authority and Was the case appealed? No. a team of officers armed with 37-mm the bureau advised against relying on the department’s staff attorney launchers and sponge rounds. A fight that as a basis for tolling the decided not to pursue this case given BUREAU OF INDEPENDENT REVIEW PAGE 51 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT erupted during the extraction and administrative statute of limitations Was a settlement reached? No. recent State Personnel Board numerous sponge rounds were fired and recommended instead that the decisions that called into question from the launcher. Eventually, one investigation be completed within the Quality of the disciplinary process: their ability to extend the statute of inmate surrendered and officers standard limitation period of one year. Adequate. limitations, as well as discrepancies in subdued the other inmate, placing him the administrative reports. Under the face down on the ground. The facility The bureau later met with the subject- Was discipline later modified? circumstances, the bureau found that lieutenant then ordered a “cease fire,” employee’s hiring authority and the Unknown. the hiring authority’s decision was but two correctional officers fired staff attorney assigned to the case to reasonable. additional sponge rounds, at least one discuss the appropriate administrative of which struck the subdued inmate. charges and corresponding The injuries to the inmate included disciplinary measures. The two broken fingers and a laceration to institution’s employee relations the neck/back area. It was determined officer and the assigned Employment that the inmates had consumed Law Unit staff attorney were briefed illegally manufactured alcohol. on the statute of limitations issue. The bureau’s assessment of the administrative statute of limitations in this case was disputed by the Office of Internal Affairs. Based on the bureau’s analysis, the time to initiate this action had expired before the bureau began to monitor the case. The Office of Internal Affairs justified its delay in completing the investigative report based on the statutory exception for investigations involving multiple subjects. The bureau determined, however, that the delay was attributable not to the existence of multiple subjects but rather to the failure of the Office of Internal Affairs to prioritize its caseload. Case No. 05-084 (Central Region) The Bureau of Independent Review Quality of the investigatory process: The bureau determined that the report During the latter part of 2003 and verified the applicable statute of Adequate. was timely and comprehensive. throughout 2004, it was alleged that a limitations and the request for warden used the institutional state investigation, suggested an Were any allegations sustained? Yes. Because the warden’s intent was not BUREAU OF INDEPENDENT REVIEW PAGE 52 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT discount to buy food for employee investigative strategy to the case Was the bureau consulted? Yes. to take state funds, the bureau and the recognition luncheons, children’s day agent, and reviewed the final report. Did the bureau concur? Yes. Office of Internal Affairs concluded festivities, and various wardens’ The bureau urged regional that criminal charges were not meetings by coding these purchases administration to issue a statewide Disciplinary charges: Appropriate. warranted. Although the bureau as “inmate” food on state requisition memorandum prohibiting institutional Was the bureau consulted? Yes. concurred that the subject had no forms. An improper loan of state misuse of state funds/purchasing wrongful intent and discipline levied funds was also alleged because state power to furnish incentives to staff. Penalty level: Appropriate. should therefore be proportionate, its funds were not reimbursed until some Was the bureau consulted? Yes. recommendation for training has been time after food service had been ignored. provided. Was the case appealed? No. The bureau suggested investigative Was a settlement reached? No. strategy to the case agent and also encouraged regional administration to Quality of the disciplinary process: issue a statewide memorandum and Adequate. facilitate training across institutions on misuse of state funds/purchasing Was discipline later modified? power to furnish incentives to staff. Unknown. Case No. 05-085 (Central Region) The Bureau of Independent Review Quality of the investigatory process: The Office of Internal Affairs did not During 2004, it was alleged that an began to monitor this case after the Inadequate. refer the case to the district attorney’s inmate performed sexually explicit statute of limitations had expired. The office because of insufficient dances for a subject-employee in bureau reviewed the final Were any allegations sustained? No. evidence, a decision in which the exchange for contraband. investigative report and consulted Was the bureau consulted? Yes. bureau concurred. The administrative with the hiring authority. Did the bureau concur? Yes. reports were delivered to the institution one week before the statute of limitations was to expire. The bureau found the report to be thorough but not timely. The hiring authority did not sustain the charges due to lack of witness credibility. The bureau concurred with this assessment because the complaining witness was found to be deceptive under a computerized voice stress analysis and failed to fully provide the information requested. BUREAU OF INDEPENDENT REVIEW PAGE 53 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT Case No. 05-086 (Central Region) The Bureau of Independent Review Quality of the investigatory process: The district attorney’s office declined On March 9, 2004, it was alleged that reviewed reports and interviews of the Adequate. to file criminal charges. The an officer had intentionally or investigation. It also consulted with administrative investigation was negligently allowed inmates out of the agent assigned, the employee Were any allegations sustained? Yes. completed before the bureau’s their cells, which resulted in a fight. relations officer, and the hiring Was the bureau consulted? Yes. involvement. The bureau became No serious injuries resulted. authority. Along with the Office of Did the bureau concur? Yes. involved primarily to alert the Internal Affairs, the bureau employee relations officer to the time- recommended that the institution take Disciplinary charges: Appropriate. sensitive nature of the case because of additional action to repair any cell Was the bureau consulted? Yes. statute of limitations issues, doors that were malfunctioning due to particularly given recent State mechanical errors. The bureau also Penalty level: Appropriate. Personnel Board decisions. The alerted the employee relations officer Was the bureau consulted? Yes. employee relations officer did not file about the pressing need to expedite the adverse action—which sought a the case to avoid expiration of the Was the case appealed? Yes. ten-day suspension because of the statute of limitations. employee’s negligence—in a timely Was a settlement reached? No. manner. An ensuing Skelly hearing The bureau contacted the hiring Was the bureau consulted? Yes. upheld the ten-day suspension. The authority early on in the case to Did the bureau concur? Yes. subject filed an appeal; given the ensure that the statute of limitations recent State Personnel Board deadline was met. While the case was Quality of the disciplinary process: decisions, however, the staff attorney pending, the State Personnel Board Inadequate. did not pursue the case because the finalized decisions on rules governing statute of limitations had expired. The the statute of limitations in cases Was discipline later modified? bureau agreed that this position was involving both criminal and Unknown. reasonable. administrative Office of Internal Affairs investigations. As a result of the effect on this case and other similarly affected cases, the bureau assisted in additional statewide training of employee relations officers. Case No. 05-087 (Central Region) The Bureau of Independent Review Quality of the investigatory process: The floor officer originally had a 10- On May 12, 2004, it was alleged that reviewed information from previous Adequate. day suspension without pay imposed, correctional officers had opened doors cases to determine whether a pattern but after Skelly hearing it was reduced improperly, failing to follow proper existed with the control officer. The Were any allegations sustained? Yes. to 3 days. That discipline was safety procedures and permitting rival bureau monitored the internal affairs Was the bureau consulted? Yes. appealed. The control booth officer inmates the opportunity to fight. This investigation and consulted with the Did the bureau concur? Yes, with originally had discipline imposed of BUREAU OF INDEPENDENT REVIEW PAGE 54 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT was the first such complaint against assigned agent. He completed his the original penalty; not with the 15 days suspended without pay, did the floor officer and the third time the investigation on February 28, 2005. reductions. not request a Skelly hearing, but did control booth officer had been The bureau contacted the staff appeal the discipline. The bureau involved in this type of incident. attorney and employee relations Disciplinary charges: Adequate. concurred with the original proposed Previous incidents in which inmates officer, advised them of a possible Was the bureau consulted? Yes. penalties but not the reductions. The were improperly released from cells statute of limitations problem, and bureau was concerned about the and subsequently fought occurred on was told that the department believed Penalty level: Adequate. employee relations officer reducing March 12, 2003 and August 20, 2003. sufficient time was tolled and that Was the bureau consulted? Yes. penalty time without obtaining a The control officer received employee they would prevail on appeal to the stipulation in return. This was done in counseling records for both incidents. State Personnel Board. The bureau Was the case appealed? Yes. this case without consultation with the The investigation determined that met and consulted with the staff bureau. Training on basic settlement there is a problem in the unit with bar- attorney and the hiring authority Was a settlement reached? Case negotiation tactics is now being box malfunctions, but procedures regarding discipline and the eventual Dismissed implemented. were in place to avoid the problem. outcome. Was the bureau consulted? Yes Did the bureau concur? Yes, in The underlying investigation was The bureau attempted to advise the view of the statute violation. timely and thorough. The fault lies department of the pending statute with the institution for getting the problem, but at the time, the case law Quality of the disciplinary process: case to the Office of Internal Affairs was not final and the employee law Inadequate. late and then failing to act in a timely unit for the department was still manner once the report was delivered optimistic of prevailing on the issue. Was discipline later modified? Not to them. The bureau also identified the need Applicable. for training for both the staff attorneys The institution still had two and a half and employee relations officers on the months to act to avoid missing the issue of current law and practice statute date. However, the institution regarding statute of limitations issues. was still under the belief that the brief Training has now commenced. amount of time spent on examining the case for criminal action would toll The bureau noted the problem of not the statute. As the bureau advised, requiring hiring authorities to act in a that belief was erroneous. timely fashion once completed internal affairs reports are delivered to Administrative discipline in the form them. As a result, new Article 22 of an employee counseling record had revisions were made to provide been issued to one subject before the guidelines on this issue. bureau’s involvement, which would have precluded additional discipline The bureau determined that one of the in any event. subjects had already received an BUREAU OF INDEPENDENT REVIEW PAGE 55 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT employee counseling record before Nevertheless, the investigation the bureau’s involvement and revealed, the hiring authority found, therefore additional discipline was and the bureau concurred, that the unavailable. officers did not have malicious intent The bureau made recommendations but instead were negligent in relative to correcting the following procedures to avoid the malfunctioning equipment and incident. procedures in the unit in which the incident occurred. The bureau informed the employee relations officer that in the future, cases of this nature should not be settled without consultation with the bureau. It should be noted that this case arose when the bureau and its responsibilities were relatively new to many of the institutions. In any event, the bureau determined that recent State Personnel Board decisions would cause discipline in this matter to exceed the statute of limitations. Case No. 05-088 (Central Region) The Bureau of Independent Review Quality of the investigatory process: The hiring authority imposed On June 13, 2004, an off-duty monitored the investigation. Adequate. termination on the subject-employee. correctional officer was arrested for The bureau concurred in the hiring the willful discharge of a firearm and The bureau reviewed all the Were any allegations sustained? Yes. authority’s decision. assault with the intent to inflict great relevant reports and consulted with Was the bureau consulted? Yes. bodily injury. The incident occurred the officer’s hiring authority, the Did the bureau concur? Yes. The officer’s employment has since while the officer was attending a institution’s employee relations been terminated. party. A fracas erupted among the officer, and the district attorney’s Disciplinary charges: Appropriate. guests, and witnesses alleged that the office. Was the bureau consulted? Yes. officer pulled out a handgun and fired three rounds overhead. Witnesses also The bureau recommended direction Penalty level: Appropriate. alleged that, without provocation, the for the administrative investigation Was the bureau consulted? Yes. officer repeatedly kicked another and assisted the employee relations guest in the head and chest, after officer in expediting dismissal in Was the case appealed? No. which the victim lost consciousness light of the officer’s criminal plea of and was transported to a nearby guilty. Was a settlement reached? No BUREAU OF INDEPENDENT REVIEW PAGE 56 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT medical center. The victim received Quality of the disciplinary process: treatment for a split eyelid, Adequate. lacerations, and bruising. Was discipline later modified? The district attorney’s office Unknown. subsequently accepted the officer’s criminal plea of guilty to negligent discharge of a firearm. Case No. 05-089 (Central Region) The Bureau of Independent Review Quality of the investigatory process: The bureau concurred with the On June 24, 2004, an inmate who had began to monitor the investigation Adequate. department’s decision that there was been denied parole accused a Law well after its inception, but assumed insufficient evidence to sustain an Enforcement and Investigations Unit the responsibility because of the Were any allegations sustained? No. adverse action against the investigator of having committed serious nature of the allegations. Was the bureau consulted? Yes. investigator. perjury at the inmate’s parole hearing. Did the bureau concur? Yes. The investigation was initiated because a recent parolee claimed that he was repeatedly solicited by the inmate to murder the inmate’s former parole agent. As a result, the investigator was assigned to assess the threat to the parole agent. The investigator testified before the Board of Prison Terms regarding his findings and the inmate was denied parole. Case No. 05-090 (Northern Region) The Bureau of Independent Review Quality of the investigatory process: The allegations of providing false On July 12, 2004, an employee reviewed the request for investigation, Adequate. information during a State Personnel allegedly provided false testimony the case report, and the investigative Board hearing were not sustained and fraudulent documents in a State file. The bureau also discussed the Were any allegations sustained? No. because there was no evidence of Personnel Board hearing. disposition of the case with the Was the bureau consulted? Yes. falsification. employee relations officer. Did the bureau concur? Yes. The bureau also reviewed the investigative report to determine whether all the appropriate factors were considered when the hiring BUREAU OF INDEPENDENT REVIEW PAGE 57 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT authority closed the case. Case No. 05-091 (Central Region) The Bureau of Independent Review Quality of the investigatory process: The investigation by the Office of In August 2004, an institution verified the accuracy of the Adequate. Internal Affairs was timely and allegedly learned that a correctional allegations and when the statute of complete. Because the probationer officer was living with a former limitations would preclude filing an Were any allegations sustained? Yes. accepted full responsibility for the inmate who was then on probation. administrative action. The bureau met Was the bureau consulted? Yes. illegal items seized and the officer On March 16, 2005, investigators with the assigned investigator, made Did the bureau concur? Yes. denied knowledge of the contraband, conducted a probation search at the investigative recommendations, and there was insufficient evidence to residence and found illegal narcotics, reviewed the final report and Disciplinary charges: Appropriate. prove that the officer was involved in drug paraphernalia, and a stolen interviews by the Office of Internal Was the bureau consulted? Yes. the illegal activity. weapon. The probationer was arrested Affairs. The bureau also met with the on new felony charges. Further department staff attorney assigned to Penalty level: Appropriate. Nevertheless, administrative action review of records at the institution the case and the employee relations Was the bureau consulted? Yes. was taken against the officer for her revealed that the probationer placed officer to discuss the administrative willful relationship with the 14 phone calls to her family using the charges to be filed and the appropriate Was the case appealed? No. probationer (and former parolee) and subject’s office phone. discipline to be applied. failure to follow the order not to The correctional officer was ordered Was a settlement reached? Yes. impede investigation. not to discuss her case with anyone The bureau offered suggestions to the Was the bureau consulted? Yes. pending the conclusion of the employee relations officer for further Did the bureau concur? Yes. The administrative action against the investigation, yet the officer investigation to prove the officer’s correctional officer sought to suspend disregarded that order and attempted contact with the probationer. Quality of the disciplinary process: her for a period of 60 days. Following to influence the investigation by Adequate. the Skelly hearing, the case was contacting the outside police agency The bureau also facilitated the settled instead for a 30-day regarding the search at her home. meeting between the department’s Was discipline later modified? suspension. The bureau agreed that staff attorney and the hiring authority Unknown. the resolution was reasonable in light to discuss the charges. of the evidence and potential defenses. Case No. 05-092 (Southern Region) The Bureau of Independent Review Quality of the investigatory process: On June 3, 2005, the department’s On August 5, 2004, a multi-agency visited the scene and met with the Inadequate. Deadly Force Review Board task force, which included parole local law enforcement investigators concluded that the department agents agents assigned to the Law who investigated in the incident. The Were any allegations sustained? No. involved were fully in compliance Enforcement Investigations Unit, was bureau also attended the presentation Was the bureau consulted? Yes. with the department’s use-of-force conducting a surveillance to locate a to the Deadly Force Review Board. Did the bureau concur? No. policy when they discharged their homicide suspect, who was also a service weapons to stop what they parolee-at-large. When the task force The bureau was concerned that the perceived as a life-threatening attack members attempted to approach the parole agents fired numerous rounds by a parolee-at-large, who was a BUREAU OF INDEPENDENT REVIEW PAGE 58 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT parolee-at-large (who had just entered at the parolee-at-large despite the principal suspect in a murder his car), the parolee-at-large drove potential danger to patrons and investigation. On June 18, 2005, the onto the pedestrian walkway fronting employees of businesses in the director approved the Deadly Force a strip mall toward two police officers surrounding environment. The outside Review Board finding. Based on the who were on foot. Several task force agency investigation indicated that the issues regarding the discharge of officers, including two parole agents, task force bullets struck four firearms where innocent citizens were fired at the parolee-at-large, at which businesses, resulting in one bystander at risk, the bureau disagreed that the time the car crashed into parked being struck in the chest and one agents’ actions were “fully in vehicles. The parolee-at-large was agent being grazed in the head by compliance” with policy. discovered to have been wounded by gunshot. The bureau noted that the the officers and was later pronounced Law Enforcement Investigations Unit The bureau is discussing the issues dead at a local hospital. presentation to the Deadly Force raised in this case with the department Review Board failed to include as part of a comprehensive review of After the shooting, a citizen in one of specific information about the rounds the Deadly Force Review Board the strip mall businesses was fired by the department agents, process and use-of-force policy. discovered with a gunshot wound to including where the rounds landed the chest. Her wound was found to be and whether the department agents non-life-threatening. A third parole were cognizant of the businesses agent sustained a superficial graze nearby when they employed deadly wound to the head. The local law force. enforcement agency secured the crime scene and investigated the shooting. Case No. 05-093 (Central Region) The Bureau of Independent Review Quality of the investigatory process: The investigation was completed in a On August 24, 2004, it was alleged consulted with the case agent, at Adequate. timely, thorough manner. The hiring that correctional officers participated which time most of the investigation authority determined that there was in, witnessed without reporting, or had already been completed on the Were any allegations sustained? No. insufficient evidence to warrant instigated an assault on an inmate that criminal case. The bureau reviewed Was the bureau consulted? Yes. disciplinary action. The bureau resulted in a broken tooth. This reports and interviews in which all Did the bureau concur? Yes. concurred. The hiring authority will administrative case followed a officers denied the allegations. The instruct health care services to rectify criminal investigation that produced bureau reviewed additional entry dental exams so that they reflect insufficient evidence to present to the information and records that could actual dental disposition, thereby district attorney’s office. Despite have accounted for the inmate’s avoiding future ambiguity. numerous opportunities to do so, the broken tooth, in that the inmate had complaining inmate did not report the been involved in other cell fights incident after it allegedly occurred. It around that time. Unfortunately, the is possible he may have broken the inmate’s dental inventory exam upon tooth during other documented fights entry to the institution, like all initial BUREAU OF INDEPENDENT REVIEW PAGE 59 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT he had with inmates. inmate dental exams, tallied only existing teeth based on root intactness. As a result, no documentation could be produced to isolate when damage was sustained. The bureau consulted with the hiring authority and employee relations officer. The bureau requested that the hiring authority recommend a change in dental inventory procedure and practice. The warden sent a letter on this subject to dental services. Case No. 05-094 (Northern Region) The Bureau of Independent Review Quality of the investigatory process: The correctional officer resigned On September 1, 2004, a correctional met with the employee relations Adequate. before the investigation’s conclusion. officer was criminally charged with officer and staff attorney to discuss The employee relations officer agreed indecent exposure. the tolling of the statute of limitations. Were any allegations sustained? Yes. to maintain the investigative report in Was the bureau consulted? No. the correctional officer’s personnel The bureau ensured that the Did the bureau concur? Yes. file. investigation was completed and maintained in the correctional Disciplinary charges: None. The officer’s personnel file to preclude the subject resigned prior to the officer’s reinstatement to the conclusion of the investigation/ department. Case No. 05-095 (Central Region) The Bureau of Independent Review Quality of the investigatory process: Because the bureau began to monitor On September 5, 2004, a correctional reviewed the investigative report, the Adequate. this case only after the investigation officer was convicted in a criminal transcript of the subject-employee’s was completed, it did not assess the prosecution for violations of Penal interview, and underlying evidence. It Were any allegations sustained? Yes. propriety of the investigation. When Code sections 415 (disturbing the also conferred with the employee Was the bureau consulted? Yes. the hiring authority consulted with the peace) and 148 (resisting arrest) after relations officer and staff attorney Did the bureau concur? Yes. bureau, it indicated that it would a domestic violence incident. regarding the quality of the evidence likely seek a 10 percent salary developed, appropriate administrative Disciplinary charges: Appropriate. reduction for 12 months against the charges, and range of discipline. The Was the bureau consulted? Yes. subject-employee. The bureau bureau also reviewed the settlement concurred but indicated that the documentation. Penalty level: Appropriate. discipline was the minimum BUREAU OF INDEPENDENT REVIEW PAGE 60 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT The bureau’s role was limited in this Was the bureau consulted? Yes. acceptable. The hiring authority then case because of the hiring authority’s reduced the discipline to a 5 percent failure to notify the bureau of critical Was the case appealed? Yes. salary reduction for 12 months, a events in the disciplinary process, disposition that the bureau regards as such as service of the adverse action Was a settlement reached? Yes. inappropriately lenient. on the subject-employee and the Was the bureau consulted? No. Skelly hearing. Did the bureau concur? No. Quality of the disciplinary process: Inadequate. Was discipline later modified? Unknown. Case No. 05-096 (Southern Region) The Bureau of Independent Review Quality of the investigatory process: The investigator maintained minimal On September 10, 2004, an in-cell recommended that the Office of Inadequate. contact with the bureau and failed to assault occurred at an administrative Internal Affairs broaden the scope of notify it of scheduled interviews. segregation unit, resulting in an the investigation beyond failure to Were any allegations sustained? No. Except for the initial meeting, the inmate’s death. The single suspect in complete the double-celling form. Was the bureau consulted? Yes. investigator essentially completed the the homicide was the victim’s The bureau recommended that the Did the bureau concur? No. investigation without notifying the cellmate. During the course of the investigation include interviews of bureau of the case progress. As a homicide investigation, it was staff members who had been in During the consultation, the bureau, result, the bureau’s discussions with discovered that upon the victim’s contact with the inmates during the vertical advocate, and hiring authority the investigator had been minimal arrival in administrative segregation, nearly three weeks they were celled agreed to pursue additional when the policy conflict was a correctional lieutenant and together to determine whether either investigation. However, these avenues discovered and the bureau had no correctional sergeant failed to follow had spoken about or had been spoken were never pursued, and for reasons other input until the case was established administrative segregation to regarding cellmate compatibility. unknown to the bureau, the hiring completed and submitted to the hiring procedures that required them to authority ultimately determined the authority. review the appropriate housing needs Because the investigator disagreed investigation to be sufficient. of inmates being placed into with the bureau’s recommendation, he The investigator interviewed only the administrative segregation. interviewed only the two subjects in two subjects and his interviews were Specifically, before housing these this case. During the interviews, it inadequate. He failed to ask about inmates together, they failed to review became apparent that three separate training or probe the subjects’ the central files of both inmates to policies addressing procedures for the knowledge of policies and evaluate case factors, security same double-celling inmates exist at procedures. concerns, and disciplinary behavior to the institution: two conflict and the ensure their compatibility. third is ambiguous regarding staff According to the investigator, the Furthermore, they failed to interview responsibilities for ensuring that department’s staff attorney was BUREAU OF INDEPENDENT REVIEW PAGE 61 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT the inmates before housing them cellmates are compatible and for briefed throughout the case and never together and failed to complete a completing the form. As a result, the indicated that additional information double-celling form, acknowledging bureau recommended that the was necessary. It appears that the that the review had been completed. investigator determine the subjects’ investigator and department’s staff knowledge of and experience with the attorney were in agreement regarding policy that they believed governed the scope of this investigation from its their actions and the policy that took inception. The final decision not to precedence at the time of the death pursue the case, however, was made and whether the lieutenant’s ultimate in part because the investigation responsibility was to ensure that lacked the information the bureau policies and procedures were originally suggested was necessary to followed. This information was not obtain. obtained in the investigation. When the investigations were completed, the bureau consulted with the department’s staff attorney and employee relations officer, among whom the consensus was that the investigation had been insufficient and that further action was needed. Without pursuing further action or consulting the bureau, the hiring authority deemed the investigation sufficient and did not sustain the allegations. The department’s staff attorney supported the hiring authority’s decision because the policy had been routinely violated (a warning to staff is required before enforcing such policies) and, because after being celled together for a period of time, neither inmate had raised an incompatibility issue with staff. In further support of this position, the department’s staff attorney cited BUREAU OF INDEPENDENT REVIEW PAGE 62 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT several factors not found in the investigation. Case No. 05-097 (Central Region) The Bureau of Independent Review Quality of the investigatory process: The bureau concurred with the hiring On September 11, 2004, it was verified the statute of limitations date Adequate. authority’s judgment that the alleged that a correctional officer after reviewing the investigation file investigation produced evidence engaged in an overly familiar and the completed investigation Were any allegations sustained? Yes. insufficient to support allegations relationship with an inmate, trafficked report. The bureau then consulted Was the bureau consulted? Yes. other than those relating to misuse of in narcotics, and misused state food with the hiring authority. Did the bureau concur? Yes. state food. The bureau concurred that while assigned to a facility dining a letter of instruction was the hall. Disciplinary charges: Appropriate. appropriate level of discipline. Was the bureau consulted? Yes. Penalty level: Appropriate. Was the bureau consulted? Yes. Was the case appealed? No. Case No. 05-098 (Central Region) The Bureau of Independent Review Quality of the investigatory process: The investigation was thorough and On October 5, 2004, it was alleged consulted with the agent assigned to Adequate. timely. The investigation failed to that an associate warden had provided the case and reviewed all case reports reveal credible evidence of confidential information to and interviews. The bureau consulted Were any allegations sustained? No. wrongdoing to sustain the allegation. unauthorized individuals. with the staff attorney and hiring Was the bureau consulted? Yes. The hiring authority did not sustain authority regarding action on the case. Did the bureau concur? Yes. the allegation, a decision with which the bureau concurred. Case No. 05-099 (Southern Region) Although the death in this case Quality of the investigatory process: The bureau and the Office of Internal On October 8, 2004, an inmate died occurred on October 8, 2004, the Inadequate. The nine-month delay in Affairs disagree on whether the after significant force was applied by department did not initiate an starting an investigation was not statute of limitations was tolled by the multiple correctional officers. investigation on its own. After the appropriate. investigation conducted by the Officers were bitten by the inmate Bureau of Independent Review’s sheriff’s department. Notwithstanding during the altercation. A spit mask repeated requests, the department Were any allegations sustained? Yes. the disagreement, the Office of was placed on the inmate and the finally agreed to initiate an Was the bureau consulted? No. Internal Affairs made a commitment extent to which he was exposed to investigation on June 23, 2005. to complete the investigation as if pepper spray before the mask was Furthermore, an investigator was not Disciplinary charges: Appropriate as there were no tolling. They are to be applied, and whether he was assigned until July 11, 2005. Such an to medical technical assistant. commended for taking this action. decontaminated, was in dispute. unreasonable delay seriously Was the bureau consulted? No. compromised the ability of the special During initial interviews, the BUREAU OF INDEPENDENT REVIEW PAGE 63 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT When the inmate was transported to agent to conduct a thorough and Penalty level: Appropriate as to questions were not sufficiently the emergency medical clinic by a complete investigation. medical technical assistant. probing. The agent asked leading facility ambulance, the medical Once the investigation was initiated Was the bureau consulted? No. questions and by the questions asked technical assistant drove the the bureau attended interviews and could have been accused of creating ambulance instead of remaining in the recommended areas of questions and Was the case appealed? No. defenses for the officers, or of back of the ambulance with the inquiry. Some of the suggestions were steering the investigation toward a inmate as required. On arrival at the finally accepted in some of the Was a settlement reached? Yes. desired result. These and other emergency medical facility it was medical areas of inquiry. Was the bureau consulted? No. concerns were observed and verified recognized that the inmate was in full by the staff attorney who also cardiac arrest. Quality of the disciplinary process: attended the interviews. The bureau Inadequate. expressed concerns about these On May 20, 2005, the coroner’s office improper interview techniques. This issued its autopsy report. It concluded Was discipline later modified? case, and other cases, led the Office that the cause of death was Unknown. of Internal Affairs to conduct training “Methamphetamine toxicity, restraint in the area of interviewing techniques maneuvers, and other unestablished factors.” The medical examiner also It should be noted that on the day described his meticulous dissection of following the interview, the agent the neck and stated, “These injuries conducted additional interviews with are potentially and possibly fatal marked improvement, for which he is injuries of the anterior neck to be commended. While there is still associated with restraint asphyxia due room for more improvement, the to compression of the neck. agent demonstrated a genuine desire to improve and learn. A review of the written reports prepared by the officers who used During the initial discussion of this force failed to provide an explanation case, local Office of Internal Affairs for how neck injuries could have been personnel indicated that “medical” inflicted. cases were not investigated by local agents and that the investigations A written policy required a medical were conducted by a specialized unit technical assistant to ride with the at Office of Internal Affairs inmate while he was being headquarters. Office of Internal transported to a medical facility. Affairs management has advised that During the investigation a medical medical cases are indeed investigated technical assistant provided repeated by local agents. Clarification and detailed oral statements claiming therefore needs to be provided to local he had ridden in the back of the Office of Internal Affairs offices. BUREAU OF INDEPENDENT REVIEW PAGE 64 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT ambulance with the inmate to the medical facility and had performed The department failed to notify the life-saving procedures during that bureau when a Skelly hearing was to time. The oral statements contradicted be held and as a consequence the the written reports that were Skelly hearing was held without the submitted immediately after the bureau’s presence. At the Skelly incident. The medical technical hearing, the hiring authority and the assistant was terminated for making medical technical assistant entered untruthful statements during the into a settlement agreement, whereby investigation. the medical technical assistant’s disciplinary action was reduced from termination to a letter of reprimand. Once it was learned that the department had failed to provide notice to the bureau in the Skelly process and had failed to involve the bureau in the agreement that reduced the termination to a letter of reprimand, the bureau brought the failures to comply with Article 22 to the attention of the department and the federal court. The bureau strongly disagrees with the hiring authority’s decision to reduce the disciplinary action in this case from dismissal to a letter of reprimand. This action was inexplicable and completely disregarded the court-approved disciplinary matrix. Case No. 05-100 (Southern Region) The Bureau of Independent Review Quality of the investigatory process: The bureau received a copy of the On October 15, 2004, a parole agent conducted an initial case conference Adequate. Deadly Force Review Board’s finding was involved in a shooting while with the internal affairs investigator. that the agent was fully in compliance attempting to arrest two parolees-at- A local law enforcement agency Were any allegations sustained? No. with the department’s use-of-force large. conducted an investigation of the Was the bureau consulted? Yes. policy. The recommendation was BUREAU OF INDEPENDENT REVIEW PAGE 65 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT parolees’ acts, but did not investigate Did the bureau concur? Yes. approved by the department director the agent’s conduct, nor did the on June 13, 2005. The bureau department investigate the agent’s concurred in this decision. actions. Instead, the Office of Internal Affairs submitted the local law enforcement agency’s report to the district attorney’s office for prosecutorial review. The bureau attended the Deadly Force Review Board presentation. Case No. 05-101 (Southern Region) The Bureau of Independent Review Quality of the investigatory process: The hiring authority consulted with On October 28, 2004, a ward filed a met with the investigator to establish Adequate. the bureau about the allegations, but grievance alleging that a youth an investigative plan. The bureau not about the level of discipline to be correctional officer had verbally attended numerous interviews Were any allegations sustained? Yes. imposed. abused him and used excessive force throughout the investigation and Was the bureau consulted? Yes. while restraining him, twisting his discussed the final report with the Did the bureau concur? Yes. The hiring authority sustained the fingers and jamming his arm behind investigator. Nevertheless, the allegations regarding the youth his back. As a result, the ward investigation was not completed and Disciplinary charges: Appropriate. correctional officer’s failure to report sustained a fracture of his right hand. delivered to the hiring authority until Was the bureau consulted? Yes. the use of force but did not sustain the It was also alleged the youth just before the one-year statute of allegations of excessive use of force. correctional officer failed to report the limitations was to expire. Penalty level: Appropriate. The bureau agreed with this use of force. Was the bureau consulted? No. assessment. The hiring authority was unaware of both the correct calculation for the Was the case appealed? No. The youth correctional officer one-year statute of limitations and the received a 5 percent pay decrease for imminence of that date. The bureau Quality of the disciplinary process: three pay periods. After the initial informed the hiring authority of the Adequate, but only because of the consultation with the hiring authority, actual statute date. The bureau also level of intervention by the bureau. the department failed to maintain provided the hiring authority with the contact with the bureau concerning most recent version of the disciplinary the level of discipline, the adverse matrix. action, or the Skelly hearing. The case was closed without further bureau input. Case No. 05-102 (Central Region) The Bureau of Independent Review Quality of the investigatory process: The administrative investigation was On November 3, 2004, a correctional ensured the accuracy of the Adequate. timely and comprehensive. The hiring officer allegedly assaulted a fellow allegations and the determination of authority issued a letter of instruction BUREAU OF INDEPENDENT REVIEW PAGE 66 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT officer by touching the other officer’s the statute of limitations date. The Were any allegations sustained? Yes. to the subject. Given both the hair, describing it as “greasy,” voicing bureau monitored the investigation, Was the bureau consulted? Yes. subject’s remorse and the victim’s a racial slur about Hispanics having reviewed the final Office of Internal Did the bureau concur? Yes. desire to drop the case, the bureau greasy hair, and smacking his head. Affairs report, and met with the staff concurred that this penalty was attorney, hiring authority, and Disciplinary charges: Appropriate. reasonable. employee relations officer to discuss Was the bureau consulted? Yes. the appropriate charges and range of penalties. The bureau met with the Penalty level: Appropriate. hiring authority and staff attorney to Was the bureau consulted? Yes. discuss the appropriate charges and penalty. Was the case appealed? No. The victim later stated that he Was a settlement reached? Yes. regretted having reported the incident Was the bureau consulted? Yes. and no longer wanted to pursue the Did the bureau concur? Yes. matter. Nevertheless, the bureau recommended that the department Quality of the disciplinary process: take appropriate steps to prevent Adequate. future occurrences and establish that racial slurs will not be tolerated. Was discipline later modified? Unknown. Case No. 05-103 (Northern Region) The Bureau of Independent Review Quality of the investigation: The investigation was timely and On November 9, 2004, it was alleged reviewed the investigation request and Adequate. thorough. The case relied heavily on that a correctional officer was discussed investigative strategy with inmate statements and testimony. The involved in selling tobacco and drugs the Office of Internal Affairs special Were any allegations sustained? Yes. Office of Internal Affairs special to inmates. agent. The inmate-witness was no Was the bureau consulted? Yes. agent unsuccessfully attempted to longer incarcerated at the institution Did the bureau concur? Yes. gain additional information through and was consequently unavailable to other means. The correctional officer participate in the investigation. The Disciplinary charges: None. The resigned before an adverse action was bureau reviewed both the final subject-employee resigned prior to the issued. administrative and criminal reports issuance of an adverse action. and agreed with the analysis. Case No. 05-104 (Northern Region) The Bureau of Independent Review Quality of the investigatory process: The correctional officer received a On November 17, 2004, an inmate examined the investigative interviews Adequate. Letter of Instruction and was required was discovered hanging from a rafter conducted by the Office of Internal to complete additional training on in an institution. A correctional Affairs and the actions of the hiring Were any allegations sustained? Yes. procedures related to inmate death BUREAU OF INDEPENDENT REVIEW PAGE 67 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT officer failed to immediately summon authority. Was the bureau consulted? Yes. and medical procedures. medical assistance, as required by Did the bureau concur? Yes. institutional protocol, and did not Allegations against the sergeant and initiate life saving measures Disciplinary charges: Appropriate. lieutenant were also sustained and established by the operations manual. Was the bureau consulted? No. they received additional training on In addition, it was alleged that a procedures related to inmate death sergeant and a lieutenant failed to Penalty level: Appropriate. and medical procedures. provide the correctional officer with Was the bureau consulted? No. clear direction or instruction to cut the inmate down and attempt Was the case appealed? No. resuscitation. Was a settlement reached? No. Was the bureau consulted? No. Quality of the disciplinary process: Adequate. Was discipline later modified? Unknown. Case No. 05-105 (Central Region) The Bureau of Independent Review Quality of the investigatory process: The investigation was thorough and On November 18, 2004, a sergeant reviewed the internal affairs reports Adequate. timely. The hiring authority found allegedly committed gross negligence and monitored the investigation. The that charges against the subject could in failing to ensure inmate safety. bureau also attended the subject Were any allegations sustained? No. not be sustained based on insufficient Inmates alleged that a suicide victim interview. The bureau met with the Was the bureau consulted? Yes. evidence. The bureau concurred with had informed the subject that she was case agent, employee relations officer, Did the bureau concur? Yes. this assessment, but recommended suicidal, but that the subject ignored and staff attorney to discuss the case that the department review the her and told her to stop lying or against the subject. medical standard of care. receive a rules violation. The inmate subsequently hanged herself by a noose in her cell. Case No. 05-106 (Northern Region) The Bureau of Independent Review Quality of the investigatory process: No allegation was sustained and no On November 30, 2004, an inmate responded to the institution within an Adequate. action was taken in this case. The was the victim of a vicious stabbing hour of the stabbing and shooting. bureau concurred with the decision by another inmate on a main exercise The bureau monitored the Were any allegations sustained? No. that the use of deadly force was yard, necessitating the use of deadly investigation from the initial stage Was the bureau consulted? Yes. within department policy and that no force by a correctional officer. In an and reviewed the video tapes of the Did the bureau concur? Yes. misconduct was involved by the BUREAU OF INDEPENDENT REVIEW PAGE 68 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT attempt to stop the assault and protect incident, the request for investigation, officer. the life of the fleeing victim-inmate, and the case files. The bureau Disciplinary charges: Not applicable. an officer fired one .223 warning attended the witness and subject Was the bureau consulted? Yes. round from his state-issued Mini 14 interviews, reviewed the reports, and rifle into the grass at the base of his consulted with the hiring authority. tower. The warning shot did not stop the assault in progress and the officer fired one additional .223 round at the aggressor’s upper torso as he chased the victim-inmate with a stabbing instrument in his hand. Another officer, observing the assault from across the yard, simultaneously fired a department-issued non-lethal 40-mm launcher at the aggressor, but it is unknown whether the round struck the aggressor. The aggressor sustained a lethal gunshot wound to his right rib area. Medical staff immediately started emergency CPR on the inmate, but at approximately 12:04 p.m., he was pronounced dead by a department physician. The victim sustained one stab wound to the right side of the neck and two stab wounds to the right side of the chest. The inmate was transported to a local trauma center for further medical evaluation and treatment. He eventually recovered from his wounds and was returned to the facility. Case No. 05-107 (Southern Region) The Bureau of Independent Review Quality of the investigatory process: The bureau received a copy of the On December 20, 2004, two parole conducted an initial case conference Adequate. Deadly Force Review Board agents shot and killed an armed with the internal affairs case agent. recommendation that the agent was BUREAU OF INDEPENDENT REVIEW PAGE 69 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT parolee-at-large while trying to arrest The local law enforcement agency Were any allegations sustained? No. fully in compliance with the him. This incident was investigated submitted the local law enforcement Was the bureau consulted? Yes. department’s use-of-force policy. The by an outside law enforcement agency report to the district attorney’s Did the bureau concur? Yes. recommendation was approved by the agency, as well as by the department. office for prosecutorial review and to department director on June 13, 2005. the department for review by the The bureau concurred in this decision. Deadly Force Review Board. The bureau attended the Deadly Force Review Board presentation. Case No. 05-108 (Northern Region) The Bureau of Independent Review Quality of the investigation: The investigation was complete and On December 22, 2004, it was alleged reviewed all preliminary evidence and Adequate. addressed critical proactive measures that a sergeant had used unnecessary met with the Office of Internal Affairs to avoid the use of force. No charges force that was likely to injure an special agent to discuss the Were any allegations sustained? No. were sustained against the subject. inmate. Specifically, after requesting investigative plan and interview The bureau concurred with this the inmate to submit to handcuffing, strategies. The bureau reviewed the finding. The bureau assisted in he forced the inmate to the ground final report and also met with the staff facilitating discussions on possible despite the fact that the inmate had his attorney, chief deputy warden, and policy changes for officers using hands behind his back. The inmate employee relations officer to discuss handcuffs before counseling in open sustained injuries to his neck and the investigation. These discussions environments within the institution. knees. culminated in the decision that while The chief deputy warden agreed that the correctional officer’s conduct did additional staff training in this area is not warrant disciplinary measures, it needed and will follow up on this called for further training on the need. importance of handcuffing inmates before counseling them in an open environment. Case No. 05-109 (Northern Region) The Bureau of Independent Review Quality of the investigatory process: The hiring authority determined that On December 24, 2004, a correctional examined the request for Adequate. there was insufficient evidence to sergeant relayed to an associate investigation, case file, case reports, sustain any allegation and no action warden a conversation wherein and notes. The bureau also discussed Were any allegations sustained? No. was taken. The bureau concurred with another correctional sergeant case strategy and case perspective Was the bureau consulted? Yes. this decision. allegedly admitted to kicking an with the Office of Internal Affairs Did the bureau concur? Yes. inmate in the head. At the time he was agent. After the case ruling, the kicked, the inmate was handcuffed, bureau discussed lessons learned with subdued, and lying prone on the floor. the investigator. The subject sergeant claimed that the BUREAU OF INDEPENDENT REVIEW PAGE 70 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT inmate was shouting to other inmates and he kicked him to quiet him down. Case No. 05-110 (Southern Region) The special agent and the Bureau of Quality of the investigatory process: The three correctional officers were On December 25, 2004, it was alleged Independent Review staff attorney Inadequate. all served notices of termination and that an inmate stepped out of his cell met concerning the matter to discuss the bureau will continue to monitor and told a correctional officer that he the statute of limitations and the Were any allegations sustained? Yes. the terminations as they proceed wanted to commit suicide. The inmate investigative plan and to review Was the bureau consulted? No. through the appeals process. then voluntarily took a prone position certain relevant records. The bureau on the walkway in front of the cells. indicated an interest in attending Disciplinary charges: Appropriate. The agent to whom this matter was Numerous inmate witnesses reported interviews of the subjects, but this did Was the bureau consulted? No. assigned did not conduct a timely that the correctional officer grabbed not occur because the agent to whom investigation despite numerous the prone inmate by the ankles and this matter was assigned failed to Penalty level: Appropriate. reminders by the bureau. No real dragged him down the tier toward his provide advance notice of when any Was the bureau consulted? No. substantive work was performed in cell with an additional correctional of the interviews were to be held, with the case by the special agent from officer assisting. It was further alleged the exception of one follow-up Was the case appealed? Yes, as to two March 24, 3005 until August 16, that the inmate was thrown into his interview. subjects. 2005, at which time the special agent cell and then kicked by one of the learned that the inmate had been officers. The officers allegedly then Once it was determined that the agent Was a settlement reached? Yes, as to granted parole and was classified as a failed to obtain assistance for the to whom this matter was assigned had one subject. parolee-at-large. inmate despite the suicidal ideation. failed to follow the monitoring plan, Was the bureau consulted? No. Shortly after being returned to his that failure and the need to comply Once the report was finally cell, the inmate slashed his arm and with the monitoring in the future were Quality of the disciplinary process: completed, it was discovered that subsequently required sutures. The brought to his attention, and to the Inadequate. The original penalty level there were significant differences officers were charged with failing to attention of his supervisors. was later reduced without bureau between the proposed report and what report the use of force and engaging consultation. was actually said by witnesses in in an intentional code of silence to some of the statements that had been cover up the incident. After receiving Was discipline later modified? obtained initially. None of the medical attention the inmate was Unknown. discrepancies pointed out by the placed on suicide watch and was bureau were resolved or corrected in subsequently discharged from custody the final report. as scheduled. Finally, the bureau was not consulted One of the three subjects admitted in by the hiring authority or staff his interview that he had used attorney regarding the investigative inappropriate force on the inmate findings and penalties, nor was the when he dragged him down the tier bureau provided with the notices of by his ankles. The same subject adverse action or of the Skelly BUREAU OF INDEPENDENT REVIEW PAGE 71 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT admitted he failed to properly respond hearings. to the inmate's statements that he wanted to commit suicide. The Originally, all three of the subjects subject also admitted that the three were served notices that terminated officers had failed to properly report their employment. The termination of the use of force. one officer was reduced from termination to a 60-day suspension without pay as a result of the Skelly hearing. The bureau was not consulted about this reduction in penalty, nor were the required forms completed in this case, in violation of the department operations manual, Article 22. Case No. 05-111 (Central Region) The Bureau of Independent Review Quality of the investigatory process: The officer resigned, pending the On January 15, 2005, a correctional monitored the investigation and Adequate. adverse action. Based on its review, officer is alleged to have engaged in consulted with the assigned agent, the bureau determined that the Office an overly familiar relationship with an staff attorney, and hiring authority. Were any allegations sustained? Yes. of Internal Affairs investigation was inmate. The officer reportedly The bureau also monitored the related Was the bureau consulted? Yes. both timely and thorough. admitted to unauthorized criminal investigation. Did the bureau concur? Yes. communication with the inmate. The bureau ensured that the Disciplinary charges: Adequate. investigation was completed and Was the bureau consulted? Yes. maintained in the correctional officer’s personnel file to preclude the Penalty level: Adequate. officer’s reinstatement to the Was the bureau consulted? Yes. department. Was the case appealed? No. Was a settlement reached? No. The bureau also assisted in forwarding the case for review to the Quality of the disciplinary process: district attorney’s office and Adequate. The subject-employee subsequently monitored the related resigned pending termination. criminal case, which resulted in a conviction. Case No. 05-112 (Northern Region) The Bureau of Independent Review Quality of the investigatory process: The clinical psychologist refused to On February 14, 2005, the reviewed the investigative reports and Adequate. be interviewed for the investigation, BUREAU OF INDEPENDENT REVIEW PAGE 72 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT investigative services unit interviewed interviews. submitted a letter of resignation dated Inmate 1, who reportedly had Were any allegations sustained? Yes. February 2005, and agreed not to seek information regarding two staff Was the bureau consulted? No. further employment with the members who were allegedly Did the bureau concur? Yes. department. The investigation was involved in overly familiar completed in March 2005. The relationships with inmates. Disciplinary charges: Not applicable. allegations against the clinical The subject-employee resigned. psychologist were sustained. During a follow-up interview with the inmate, he admitted to having an The correctional officer cooperated overly familiar relationship with a with the investigation, admitted the correctional officer. Inmate 1 also misconduct, submitted a letter of claimed that a clinical psychologist resignation dated February 2005, and was involved in an overly familiar agreed not to seek further relationship with Inmate 2. Inmate 1 employment with the department. The indicated that he believed that Inmate investigation was completed in March 2 was involved in a sexual 2005. The allegations were sustained. relationship with the clinical psychologist. Inmate 2 was paroled in The bureau concurred with both January 2005. findings in the case. During questioning, the correctional officer admitted having engaged in a sexual relationship with Inmate 1 and corroborated that the clinical psychologist was also involved in an overly familiar relationship with Inmate 2. Case No. 05-113 (Northern Region) The Bureau of Independent Review Quality of the investigatory process: The associate warden pleaded guilty On February 26, 2005, an associate reviewed the request for investigation, Adequate. to driving under the influence in warden was involved in a non-injury case reports, and case file. The bureau criminal court. vehicle accident. He attempted to flee also spoke with the employee Were any allegations sustained? Yes. the scene but his vehicle became relations officer and institution staff Was the bureau consulted? Yes. The associate warden’s behavior was trapped in a ditch. When contacted by regarding the final outcome. Did the bureau concur? Yes. determined to be “other failure of law enforcement officers, he was good behavior.” The discipline was uncooperative and refused to submit Disciplinary charges: Appropriate. mitigated to six days of suspension to alcohol testing. He eventually Was the bureau consulted? No. based on the associate warden’s BUREAU OF INDEPENDENT REVIEW PAGE 73 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT submitted to a blood test that otherwise impressive career. indicated his blood alcohol level was Penalty level: Appropriate. nearly three times the legal limit. Was the bureau consulted? No. Before the State Personnel Board hearing, the parties agreed to drop a Was a settlement reached? Yes. sustained allegation of Was the bureau consulted? No. “intemperance” based on an understanding of administrative case Quality of the disciplinary process: law. Adequate. Was discipline later modified? .Yes Case No. 05-114 (Northern Region) The Bureau of Independent Review Quality of the investigatory process: The investigation was timely and On March 1, 2005, an inmate alleged reviewed the request for investigation, Adequate. complete. The report revealed that a correctional counselor was reviewed the investigative report, and insufficient and contradictory possibly engaged in an overly familiar conferred with the investigator to Were any allegations sustained? No. evidence regarding the allegations. relationship with another inmate. It discuss strategies and explore possible Was the bureau consulted? No. Moreover, the alterations on the unit was also alleged that the correctional avenues for obtaining additional Did the bureau concur? Yes. classification committee forms counselor had violated institutional evidence. appeared to be legitimate. security policies by providing the second inmate with confidential The correctional counselor retired in departmental documents relating to March 2005 before completion of the inmate classification issues. The investigation. inmate-complainant also alleged that the correctional counselor altered classification chronologies, modifying specific case factor issues outside the purview of the classification committee chair person. He believed that second inmate could use these documents to retaliate against other staff members. Case No. 05-115 (Central Region) The bureau became involved after the Quality of the investigatory process: The Skelly hearing was held and the On March 2, 2005, a correctional administrative investigation was Adequate. case was closed without further officer was arrested for spousal abuse, completed when it corroborated the action. Given the poor quality of the assault with intent to commit great accuracy of the statute of limitations Were any allegations sustained? Yes. victim’s testimony at the preliminary bodily injury, and mayhem. The date and the request for investigation. Was the bureau consulted? Yes. hearing, the bureau concurs with the BUREAU OF INDEPENDENT REVIEW PAGE 74 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT subject allegedly broke through his The bureau met with the staff attorney Did the bureau concur? Yes. determination to take no action. estranged wife’s apartment door to and hiring authority to discuss the confront her and her boyfriend. A appropriate charges and penalty. Disciplinary charges: Appropriate. fight ensued between the subject and Was the bureau consulted? Yes. the boyfriend, resulting in injuries to the boyfriend. Penalty level: Not Applicable. Was the bureau consulted? Yes Was the case appealed? No. Was a settlement reached? No. Quality of the disciplinary process: Adequate. Was discipline later modified? Unknown. Case No. #05-116 (Central Region) The Bureau of Independent Review Quality of Investigation: Adequate. The Office of Internal Affairs On March 2, 2005, a correctional reviewed all criminal reports and investigation was timely and officer was charged with burglary by consulted with the district attorney’s Any allegations sustained? Not thorough. The subject-officer resigned the local sheriff’s department. office and the arresting agency. applicable, because the subject pending adverse action and his resigned before the hiring authority personnel file was so noted. The bureau facilitated communication received the final report. among the Office of Internal Affairs agent, district attorney’s office, and arresting agency. The bureau was instrumental in having law enforcement’s follow-up investigation resubmitted to the district attorney’s office. The bureau discussed the case with the Office of Internal Affairs and reviewed all interviews and reports in the administrative investigation. The bureau also consulted with the hiring authority and employee relations BUREAU OF INDEPENDENT REVIEW PAGE 75 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT officer. Case No. 05-117 (Central Region) The Bureau of Independent Review Quality of the investigatory process: The Office of Internal Affairs On March 10, 2005, a correctional monitored the Office of Internal Adequate. investigation was timely and officer allegedly requested a female Affairs investigation and met with the complete. Although the inmate denied inmate’s contact information before assigned agent to suggest Were any allegations sustained? Not any sexual activity with the officer, she was paroled. Following her investigative strategy. The bureau Applicable. The subject-employee the officer resigned before the release from the institution, he reviewed police reports relative to the resigned. administrative investigation was contacted the former inmate. She use of the subject’s vehicle, as well as concluded. subsequently resided with him at his final reports from the Office of hotel room and borrowed his car. She Internal Affairs. The bureau ensured that the officer’s was arrested for driving while under employment file reflected that the influence of alcohol, driving on a resignation was tendered pending the suspended license, and running a red investigation. light. Case No. 05-118 (Northern Region) The Bureau of Independent worked Quality of the investigatory process: The investigation was thorough and On March 19, 2005, a correctional with the investigator and reviewed Adequate. timely. The allegations were sustained officer gave an inmate a confidential interviews, reports, and the files. against the correctional officer document concerning the housing Were any allegations sustained? Yes. accused of releasing confidential status of another inmate and stated to Was the bureau consulted? Yes. information. The correctional officer the first inmate that the second inmate Did the bureau concur? Yes. was terminated from the department. “needed to be taken care of” (or No allegations against the remaining words to that effect), thereby Disciplinary charges: Appropriate. four officers were sustained. conspiring with the first inmate to Was the bureau consulted? No. have the second inmate assaulted. Allegedly, four additional correctional Penalty level: Appropriate. officers participated in the conspiracy Was the bureau consulted? No. to have the inmate-victim assaulted. Was the case appealed? Yes. Was a settlement reached? No. Was the bureau consulted? No. Quality of the disciplinary process: Adequate. Was discipline later modified? Unknown. BUREAU OF INDEPENDENT REVIEW PAGE 76 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT Case No. 05-119 (Central Region) The Bureau of Independent Review Quality of the investigatory process: The Office of Internal Affairs On April 4, 2005, a correctional reviewed the police reports from the Adequate. investigation was thorough and officer was arrested for suspected criminal case and consulted with the timely. The district attorney’s office domestic violence. Office of Internal Affairs agent Were any allegations sustained? No. ultimately declined to file criminal assigned to the administrative case. Was the bureau consulted? Yes. charges. The administrative The bureau also consulted with the Did the bureau concur? Yes. investigation revealed serious district attorney’s office and arresting credibility problems with the agency, discussed investigative complaining party. The officer strategies with the internal affairs involved was fully cooperative in agent, and reviewed the final Office both investigations. The hiring of Internal Affairs report. The bureau authority did not sustain the also consulted with the warden and administrative allegations, a decision employee relations officer on with which the bureau concurred. proposed action. Case No. 05-120 (Southern Region) The Bureau of Independent Review Quality of the investigatory process: The bureau met with the hiring On April 6, 2005, while searching an held its initial case conference with Adequate. authority for the sergeant and officer inmate before admitting him into the the Office of Internal Affairs and the on June 20, 2005 and with the hiring clinic, a medical technical assistant staff attorney to discuss the issues in Were any allegations sustained? No. authority for the medical technical detected a possible weapon in the the case. The Office of Internal Was the bureau consulted? Yes. assistant on June 23, 2005. The inmate’s waistband and attempted to Affairs discovered that the captain Did the bureau concur? Yes. bureau concluded that the internal control him. The inmate struck the had submitted an initial version of his affairs investigation did not support medical technical assistant in the head incident report and was also allowed sustaining charges against the staff and body. A registered nurse came to to submit a second, more lengthy and members, largely because of the the medical technical assistant’s aid more detailed incident report. The inconsistencies in the captain’s as the fight spilled out of the clinic Office of Internal Affairs also statements. and onto the yard. The observation discovered that the captain’s internal officer witnessed the fight, sounded affairs interview statement was not The hiring authority exonerated both the alarm, and dropped chemical consistent with the information the sergeant and the officer. The agents. The inmate warded off the contained in the reports and with what bureau disagreed with this staff members and crawled into the witnesses said they heard the captain disposition. The hiring authority did clinic. The first responding staff say on the day of the incident. not sustain the allegations against the member was a captain, who Furthermore, the captain’s statements medical technical assistant. The controlled the inmate. The captain contradicted the warden’s statement bureau disagreed with this alleged that the medical technical reporting what the captain had told disposition. assistant came into the clinic and the warden on April 6, 2005. kicked the inmate in the chest. The The bureau discussed with the Office BUREAU OF INDEPENDENT REVIEW PAGE 77 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT captain also alleged that a sergeant of Internal Affairs and the hiring and correctional officer, who escorted authority whether the captain’s the inmate to the program office, used inconsistent statements warranted excessive force on the inmate. The investigation. The bureau was unable captain reported his observations to to obtain a commitment from the the warden. Based largely on the department that the matter warranted captain’s observations, the warden a request for investigation. placed the medical technical assistant, the sergeant, and the officer on administrative time off . The union reacted strongly to this decision because it had been made before staff members completed their reports. Case No. 05-121 (Southern Region) The Bureau of Independent Review Quality of the investigatory process: The correctional officer’s On April 26, 2005, a correctional requested and reviewed information Inadequate. employment was terminated and he officer was allegedly seen exiting a concerning the lack of evidence waived any appeal. The bureau room from which an odor of preservation, the failure to relieve the Were any allegations sustained? Yes. concurred with this outcome. marijuana was detected. A sergeant correctional officer, the initial Was the bureau consulted? Yes. reported the incident to the watch sobriety tests, and the obtaining of a Did the bureau concur? Yes. commander, who did not relieve the urine sample rather than a blood officer for nearly four hours. The sample. Disciplinary charges: Appropriate. correctional officer was eventually Was the bureau consulted? Yes. taken to a facility for a urine sample. The bureau reviewed the institution’s The correctional officer allegedly overall response to the situation and Penalty level: Appropriate. provided a false sample that was not met with the institution to ensure that Was the bureau consulted? Yes. saved. He later provided a valid procedures are in place to sample that tested positive for appropriately respond to such Was the case appealed? No. marijuana. incidents in the future. Was a settlement reached? No. Quality of the disciplinary process: Adequate as to the officer terminated. Was discipline later modified? Unknown. Case No. 05-122 (Northern Region) The Bureau of Independent Review Quality of the investigatory process: Further training and instruction was On April 30, 2005, a correctional received and reviewed the request for Adequate, although it would have provided. The bureau concurred with BUREAU OF INDEPENDENT REVIEW PAGE 78 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT sergeant failed to notify the duty investigation and the case summary. been preferable to have tested the this outcome. lieutenant of a use-of-force incident. The bureau also conferred with a veracity of the explanation through The sergeant allegedly did not initiate lieutenant about the sergeant’s interviews and investigation. the required use-of-force reporting disciplinary action and questioned the procedures and instructed a decision by the Office of Internal Were any allegations sustained? No. correctional officer who was involved Affairs not to investigate. Was the bureau consulted? Yes. to prepare a report concealing the use- The lieutenant stated that the hiring Did the bureau concur? Yes. of-force incident. authority understood the department’s decision not to investigate the matter, in short because it was the opinion of the Office of Internal Affairs that the sergeant’s instructions to the correctional officer simply resulted in the use of an incorrect form and was not an attempt to conceal the matter. Case No. 05-123 (Central Region) The Bureau of Independent Review Quality of the investigatory process: The Office of Internal Affairs On May 22, 2005, a correctional obtained and reviewed the underlying Adequate. investigation was timely and officer was arrested by the California police reports. The bureau monitored complete. The subject pleaded guilty Highway Patrol for violation of Penal the administrative investigation, Were any allegations sustained? Yes. in the criminal case and was Code section 192(3), vehicular maintained contact with the assigned Was the bureau consulted? Yes. ultimately sentenced to two years and manslaughter, and Vehicle Code investigator, contacted the district Did the bureau concur? Yes. four months in prison for vehicular section 23153(a), felony driving attorney’s office for information, and manslaughter. The subject-employee under the influence. The district advised the Office of Internal Affairs Disciplinary charges: Not Applicable. resigned from employment. attorney’s office filed the case. The of the criminal case progress. The The subject-employee resigned. subject-employee pleaded guilty on bureau contacted the institution to August 4, 2005 to Vehicle Code verify that the resignation was noted section 23153(a), plus multiple victim in the subject-employee’s personnel enhancements, plus Penal Code file with adverse action pending. section 192c(3), for a prison exposure of five years, eight months. Case No. 05-124 (Central Region) The bureau met with the assigned Quality of the investigatory process: Because the subject pleaded guilty to On May 31, 2005, a local police investigator about investigative Adequate. misdemeanor battery against a department arrested a correctional strategy and reviewed police reports spouse, a firearm restriction was officer for spousal abuse. Before the and the final report from the Office of Were any allegations sustained? Yes. imposed by the court, prohibiting his bureau’s involvement, he pleaded Internal Affairs. The bureau also met Was the bureau consulted? Yes. employment as a peace officer. guilty to misdemeanor battery against with the employee relations officer Did the bureau concur? Yes. BUREAU OF INDEPENDENT REVIEW PAGE 79 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT a spouse, in violation of Penal Code and staff attorney to move the case The bureau found the investigation to section 243(e). expeditiously toward the officer’s Disciplinary charges: Appropriate. be timely and complete. When the dismissal because of the subject’s Was the bureau consulted? Yes. bureau alerted the department to the firearm restriction resulting from his subject’s firearm restriction, the criminal plea. Penalty level: Appropriate. department terminated the subject’s Was the bureau consulted? Yes. employment. The bureau suggested investigative strategy, contacted the staff attorney, Was the case appealed? No. and recommended that the hiring authority expeditiously terminate the Was a settlement reached? No. subject in light of his firearm restriction. Quality of the disciplinary process: Adequate. Was discipline later modified? Unknown. Case No. 05-125 (Northern Region) The Bureau of Independent Review Quality of the investigatory process: The investigation was timely and On June 9, 2005, a correctional examined the request for investigation Adequate. thorough. The psychologist submitted officer discovered a psychologist and and case file. The bureau also met her resignation through her attorney. an inmate engaged in a sexual act. with the investigative agent regarding Were any allegations sustained? No. case strategy in light of the subject- Was the bureau consulted? No. psychologist's refusal to be Did the bureau concur? Not interviewed. The bureau reviewed and Applicable. concurred with the final criminal and administrative reports. The bureau consulted with the case agent, investigative services unit, employee relations officer, and hiring authority. Case No. 05-126 (Central Region) The Bureau of Independent Review Quality of the investigatory process: The administrative investigation into On June 23, 2005, it was alleged that monitored the investigation, met with Inadequate the allegations of smuggling a correctional officer traded tobacco the agent assigned and the hiring contraband in exchange for sexual and other contraband with inmates in authority, and reviewed reports and Were any allegations sustained? No. acts was timely and complete. exchange for sexual favors. The same interviews. The bureau alerted the The subject-employee resigned. subject was later allegedly discovered department to potential problems with Relative to the subsequent incident BUREAU OF INDEPENDENT REVIEW PAGE 80 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT in a sexually compromising situation the statute of limitations deadline. involving alleged sexual acts, the with a female inmate. The inmate bureau was compelled to repeatedly alleged reciprocal acts of oral encourage the investigative agent to copulation. finish the investigation in a timely manner and to schedule a subject interview. The Office of Internal Affairs did not recognize the need to prioritize the administrative investigation relative to the second incident because it determined that charges were not likely to be sustained by the hiring authority. The bureau believed that this decision lay with the hiring authority and, moreover, that the investigations needed to be completed in a timely manner. At the bureau’s urging, the agent established an interview for the subject, who resigned on the day of the interview. The bureau confirmed that the employment file reflected that his resignation had been tendered pending an investigation. Case No. 05-127 (Northern Region) The Bureau of Independent Review Quality of the investigation: The correctional officer received a 10 On July 4, 2005, an off-duty reviewed the request for investigation Adequate. percent reduction in salary for 12 correctional officer was involved in a and case summary. The case was months. The bureau concurs with this single vehicle accident when he referred back to the institution for Were any allegations sustained? Yes. action. crashed his vehicle into a drainage direct action. The bureau met with the ditch. The responding officer employee relations officer and chief Disciplinary charges: Appropriate. observed that the correctional officer deputy warden to discuss adverse had red eyes and blurred speech. The action. Based on the department Penalty level imposed: Appropriate. correctional officer originally denied matrix, the correctional officer was he had consumed alcohol but later issued an adverse action calling for a Was the case appealed? No. admitted to having had one drink. The 10 percent reduction in salary for 12 BUREAU OF INDEPENDENT REVIEW PAGE 81 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT correctional officer was arrested with months. The action went into effect Quality of the disciplinary process: a blood alcohol level of .33 percent on November 30, 2005, and the Adequate. and reported his arrest to the employee did not file an appeal with institution on July 8, 2005. the State Personnel Board. Was discipline later modified? No. Case No. 05-128 (Northern Region) The Bureau of Independent Review Quality of the investigatory process: The hiring authority did not sustain On July 8, 2005, a sergeant reported reviewed the request for investigation, Adequate. any allegation and no action was take that an inmate alleged he was case files, and reports. The bureau against the correctional officer. approached by a correctional officer also discussed the case with the Were any allegations sustained? No. who told him to remain silent employee relations officer and hiring Was the bureau consulted? Yes. regarding an investigation involving authority at the institution’s monthly Did the bureau concur? Yes. two other correctional officers. case meeting. Case No. 05-129 (Northern Region) The Bureau of Independent Review Quality of the investigation: The bureau encouraged the Office of On or about July 28, 2005, it was reviewed the request for investigation Adequate. Internal Affairs to complete the alleged that a non-custody supervisor and case summary, discussed the investigation and forward it to the was engaged in over familiarity and investigative strategy with the Office Were any allegations sustained? Yes. hiring authority for the supervisor other misconduct with two inmates. It of Internal Affairs special agent, and personnel file, should she attempt to was also alleged that the supervisor met with the chief deputy warden, Disciplinary charges: Not Applicable. reinstate with the department after her brought drugs into the institution. employee relations officer, and staff Employee resigned prior to the resignation. attorney. conclusion of the investigation. Case No. 05-130 (Central Region) The Bureau of Independent Review Quality of the investigatory process: Because of the unique features of this On July 29, 2005, a correctional was briefed on this case before its Adequate. case, it was determined that the officer claimed to have been battered submission to central intake and warden could not be involved, which by an inmate. The inmate was taken reviewed the incident package and the Were any allegations sustained? No. caused a significant delay. Given the to a sergeant’s office. The sergeant inmate’s grievance. Was the bureau consulted? Yes. nature of the investigation conducted, allegedly removed the handcuffs from Did the bureau concur? Yes. the bureau concurred that a letter of the inmate without first ascertaining instruction was the appropriate why the inmate had been cuffed. Both discipline; however, no such letter that sergeant and another sergeant could be issued due to the expiration allegedly learned about the battery but of the applicable time limit. did not submit reports. The inmate claimed that he was forced to kneel The hiring authority elected to treat and apologize to the correctional the allegations as supervisory issues. officer. All subjects received on-the-job training relative to reportable incidents. BUREAU OF INDEPENDENT REVIEW PAGE 82 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT Case No. 05-131 (Southern Region) The institution informed the Bureau Quality of the investigatory process: The bureau learned that the chief On August 1, 2005, an inmate of Independent Review of the Inadequate, as to the actions of the medical officer approved discipline summoned officers, indicating that his cellmate’s death on the night it medical technical assistant. for the medical technical assistant but cellmate was having difficulty occurred and indicated that there was without properly reviewing the breathing. Officers took the cellmate no evidence of foul play. It was not Were any allegations sustained? Yes. incident package or completely to the housing unit medical clinic, until the institution’s staff called the Was the bureau consulted? No. understanding the facts of the case. where he began to vomit and had a bureau about the autopsy results that Did the bureau concur? Because discipline was imposed seizure. When he stopped breathing the bureau was informed of the Insufficient information. without a thorough case review, the and staff failed to locate his pulse, interview with the inmate who had bureau referred the case to the CPR was initiated. After the cellmate summoned the officers and the fact Quality of the disciplinary process: regional health care administrator. was transferred to the institution that he and the cellmate had engaged Inadequate. infirmary, paramedics arrived. He was in “punching games.” The bureau was since informed that pronounced dead that evening. The Because the situation was not the hiring authority determined the inmate had visible bruises on his It also appears that the sheriff’s investigated, it is unclear whether the case should be handled as a body. department was not called until level of discipline, an employee supervisory and training issue. The several days after the incident, even counseling record, was appropriate or bureau will continue to monitor this When interviewed the night of the though the incident involved potential inappropriate in this case. matter and will update the case when death, the inmate who summoned the criminal charges, which would later appropriate. officers informed staff that he and his be referred to the district attorney’s cellmate had played “punching office. games” with each other. At the autopsy two days later, the coroner Had the bureau known the night of told staff about trauma to the the cellmate’s death about the cellmate’s body which was not “punching games,” it would likely apparent from the bruising. have responded to the institution immediately and suggested that the The medical technical assistant who sheriff’s department also be notified examined the inmate suspected of immediately. homicide on the night of the death did not record any injuries on the form for The bureau contacted the chief medical report of injury/unusual medical officer at the institution, occurrence. communicating the bureau’s concerns with the medical issues and According to reports submitted by recommending that he review the file. other responding staff, however, the inmate was taken for examination The bureau pursued the discrepancies because he had visible injuries. Also, between the medical technical BUREAU OF INDEPENDENT REVIEW PAGE 83 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT later that night, staff members took assistant’s report and the reports photos of the injuries. The incident submitted by other responding staff. reports reflect that when the incident When the institution failed to commander noted the discrepancy adequately address those issues, the between the responding staff’s reports bureau referred the case to the and the medical report, a second regional health care administrator. medical report was requested. Throughout the case, the chief medical officer at the institution failed to maintain contact with the bureau or follow up with additional information when it was requested. BUREAU OF INDEPENDENT REVIEW PAGE 84 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE BUREAU ACTION BUREAU ASSESSMENT CONCLUSIONS & NOTES INCIDENT Case No. 05-132 (Northern Region) The bureau recommended that the Quality of the investigatory process: At the time of the ward’s suicide, staff On August 31, 2005, a ward covered facility implement a streamlined Adequate. members perceived themselves to be his cell window in violation of safety procedure for entering cells to reduce “under siege” by Northern Hispanic protocols. Upon entry, the ward was the likelihood of a recurrence. Were any allegations sustained? Case gang members, which led to their found with a sheet around his neck. pending. reliance on a security detail to He was declared dead at the scene. The Office of the Inspector General’s intervene whenever one of these Bureau of Audits and Investigations wards became disruptive. In devising The ward was identified as a Northern issued a special review in this case. ways to enhance staff safety, Hispanic gang member and, at the however, staff response time to time, all Northern Hispanic gang serious situations became members were placed on significantly compromised. administrative lock-down following several ward assaults on staff. The facility has instituted a new policy addressing the issue of wards covering their windows that calls for an immediate staff response to determine a ward’s condition. BUREAU OF INDEPENDENT REVIEW PAGE 85 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SPECIAL REVIEWS The Bureau of Independent Review will sometimes determine that a special review into a particular subject or incident warrants more comprehensive treatment than would ordinarily be reflected in a semi-annual report. The Special Review into the Shooting of Inmate Daniel Provencio on January 16, 2005 at Wasco State Prison, published in June 2005, and the review conducted jointly by the Bureau of Audits and Investigations and the Bureau of Independent Review, Special Review into the Death of Correctional Officer Manuel A. Gonzalez, Jr. on January 10, 2005 at the California Institution for Men, published in March 2005, are two examples. The full text of all special reviews can be viewed on the Office of the Inspector General’s website at www.oig.ca.gov. • Update on the Special Review into the Shooting of Inmate Daniel Provencio on January 16, 2005 at Wasco State Prison In June 2005, the bureau conducted a special review into the circumstances surrounding the death of inmate Daniel Provencio at Wasco State Prison. On January 16, 2005, after an inmate fight erupted during the evening meal, Provencio was struck in the head by a direct-impact sponge projectile from a 40-mm launcher fired by a correctional officer. Provencio lapsed into a coma and died on March 4, 2005. The bureau became involved immediately following the incident to ensure the timeliness, thoroughness, and objectivity of investigations conducted by several entities, as well as to identify possible systemic policy or training deficiencies, procedural violations, or other factors that may have contributed to Provencio’s death. In the special review, the bureau issued six specific recommendations to address the findings. In response, the department provided a corrective action plan designed to address the recommendations. The corrective action plan had been substantially implemented as of this report’s publication. The only major recommendation that has not been fully resolved relates to defining the roles and responsibilities of each departmental investigative entity designated to participate in use-of-force investigations. BUREAU OF INDEPENDENT REVIEW PAGE 86 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA APPENDIX A: SENATE BILL No. 1400 (2004) An act to add Section 6133 to the Penal Code, relating to corrections. [APPROVED BY GOVERNOR SEPTEMBER 24, 2004. FILED WITH SECRETARY OF STATE SEPTEMBER 24, 2004.] LEGISLATIVE COUNSEL’S DIGEST SB 1400, Romero. Corrections: Internal Affairs. Existing law provides for the administration of a system of state prisons under the Department of Corrections within the Youth and Adult Correctional Agency. Existing law establishes the office of the Inspector General, who is responsible for reviewing departmental policy and procedures for conducting audits of investigatory practices and other audits, as well as conducting investigations of the Department of Corrections and related state offices, as specified. Existing statutory and case law provides for some of the procedures by which public employees may be disciplined. Existing law limits the release of certain types of information relating to public employment, including special provisions that protect against the release of information concerning complaints against peace officers, including correctional officers in state prisons. This bill would establish the Bureau of Independent Review within the Office of the Inspector General to provide public oversight of investigations conducted by the Department of Corrections and the Department of the Youth Authority, and to issue reports, as specified, to the Governor and the Legislature. The people of the State of California do enact as follows: SECTION 1. Section 6133 is added to the Penal Code, to read: (a) There is created within the Office of the Inspector General a Bureau of Independent Review (BIR), which shall be subject to the direction of the Inspector General. (b) The BIR shall be responsible for contemporaneous public oversight of the Youth and Adult Correctional Agency investigations conducted by the Department of Corrections’ Office of Investigative Services and by Internal Affairs for the Department of the Youth Authority. The BIR shall also be responsible for advising the public regarding the adequacy of each investigation, and whether discipline of the subject of the investigation is warranted. The BIR shall have discretion to provide public oversight of other Youth and Adult Correctional Agency personnel investigations as needed. BUREAU OF INDEPENDENT REVIEW PAGE 87 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA (c) (1) The BIR shall issue regular reports, no less than annually, to the Governor and the Legislature summarizing its recommendations concerning its oversight of Youth and Adult Correctional Agency allegations of internal misconduct and use of force. The BIR shall also issue regular reports, no less than semiannually, summarizing its oversight of Office of Investigative Services and Internal Affairs investigations pursuant to subdivision (b). The reports shall include, but not be limited to, the following: (A) Data on the number, type and disposition of complaints made against correctional officers and staff. (B) A synopsis of each matter reviewed by the BIR. (C) An assessment of the quality of the investigation, the appropriateness of any disciplinary charges, the BIR’s recommendations regarding the disposition in the case and when founded, the level of discipline afforded, and the degree to which the agency’s authorities agreed with the BIR recommendations regarding disposition and level of discipline. (D) The report of any settlement and whether the BIR concurred with the settlement. (E) The extent to which any discipline was modified after imposition. (2) The reports shall be in a form which does not identify the agency employees involved in the alleged misconduct. (3) The reports shall be posted on the Inspector General’s Web site and otherwise made available to the public upon their release to the Governor and Legislature. BUREAU OF INDEPENDENT REVIEW PAGE 88 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION OPERATIONS MANUAL, SECTION 3, ARTICLE 22, EMPLOYEE DISCIPLINE 33030.1 Policy All disciplinary action shall be imposed in a fair, objective, and impartial manner, and the California Department of Corrections and Rehabilitation (Department) shall consistently apply accepted principles of due process and progressive discipline when corrective or adverse action is imposed. 33030.2 Purpose To ensure effective and efficient departmental operations and employee adherence to reasonable and acceptable rules of conduct and performance. 33030.3 Employee Performance Standards 33030.3.1 Code of Conduct As employees and appointees of the Department, we are expected to perform our duties, at all times, as follows: • Demonstrate professionalism, honesty, and integrity; • Accept responsibility for our actions and their consequences; • Appreciate differences in people, their ideas, and opinions; • Treat fellow employees, inmates, wards, parolees, victims, their families, and the public with dignity and respect; • Respect the rights of others and treat them fairly regardless of race, color, national origin, ancestry, gender, religion, marital status, age, disability, medical condition, pregnancy, sexual orientation, veteran status, or political affiliation; • Comply with all applicable laws and regulations; • Report misconduct or any unethical or illegal activity and cooperate fully with any investigation. 33030.3.2 General Qualifications All employees are subject to the requirements as specified in the California Code of Regulations (CCR), title 2, section 172, General Qualifications, which states, in pertinent part, the following: All candidates for, appointees to, and employees in the state civil service shall possess the general qualifications of integrity, honesty, sobriety, dependability, industry, thoroughness, accuracy, good judgment, initiative, resourcefulness, courtesy, ability to work cooperatively with others, willingness and ability to assume the responsibilities and to conform to the conditions of work characteristic of the employment, and a state of health, consistent with the ability to perform the assigned duties of the class. BUREAU OF INDEPENDENT REVIEW PAGE 89 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA 33030.3.3 Law Enforcement Code of Ethics Peace officers employed by the Department are held to a higher standard of conduct on and off duty, as specified in the Law Enforcement Code of Ethics and the peace officer oath. The Law Enforcement Code of Ethics is as follows: As a law enforcement officer, my fundamental duty is to serve the community; to safeguard lives and property; to protect the innocent against deception, the weak against oppression or intimidation and the peaceful against violence or disorder; and to respect the constitutional rights of all people to liberty, equality and justice. I will keep my public and private life unsullied as an example to all and will behave in a manner that does not bring discredit to me or my Department. I will maintain courageous calm in the face of danger, scorn, or ridicule; develop self-restraint; and be constantly mindful of the welfare of others. Honest in thought and deed in both my personal and official life. I will be exemplary in obeying the law and the regulations of my department. I will never act officiously or permit personal feelings, prejudices, political beliefs, aspirations, animosities, organizational associations or friendships to influence my decisions. With no compromise for crime and with relentless prosecution of criminals, I will enforce the law courteously and appropriately without fear or favor, malice or ill will, never employing unnecessary force or violence and never accepting gratuities. Confidential information received in my official capacity shall remain undisclosed unless disclosure is necessary in the performance of my duty. I will never engage in acts of corruption, bribery, insubordination or the obstruction of justice, nor will I condone such acts by other peace officers. I will immediately report acts of misconduct by staff of my department and cooperate with all legally authorized agencies and their representatives in the pursuit of justice. I know that I alone am responsible for my own standard of professional performance and will take every reasonable opportunity to enhance and improve my level of knowledge and competence. I recognize the badge of my office as a symbol of public faith, and I accept it as a public trust to be held so long as I am serving as a law enforcement officer. I will constantly strive to achieve these objectives and ideals, dedicating myself before all present to my chosen profession... law enforcement. 33030.4 Definitions Adverse Action - A documented action, which is punitive in nature and is intended to correct misconduct or poor performance or which terminates employment. Affected Employee - An individual who is the subject of adverse action. Appointing Power - The Secretary of the Department. Assistant General Counsel (AGC) - An individual responsible for managing the Employment Advocacy and Prosecution Team (EAPT) in the Department’s Office of Legal Affairs. BUREAU OF INDEPENDENT REVIEW PAGE 90 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA Bureau of Independent Review (BIR) – A unit within the Office of the Inspector General responsible for contemporaneous public oversight of the Department’s investigative and disciplinary processes. . Charging Package (Also known as the “Skelly package”) – All documentation used to substantiate the charges in the action and which is presented to the employee with the Preliminary or Final Notice of Adverse Action. This material may include but is not limited to the following: the investigative report; applicable policies, procedures, and Government Code sections; records of training the employee has attended; job descriptions; and duty statements and/or post orders that are related to the charges. This package does not include the CDCR Form 402, Hiring Authority Review of Investigation, and CDCR Form 403, Justification of Penalty. Chief Assistant Inspector General (CAIG) – An individual responsible for the operation and functions of the BIR. Corrective Action - A documented non-adverse action (verbal counseling, in-service training, on-the-job training, written counseling, or a letter of instruction) taken by a supervisor to assist an employee in improving his/her work performance, behavior, or conduct. Designated Cases – Those cases assigned to the Vertical Advocates, including matters involving staff integrity and/or dishonesty, abuse of authority, sexual misconduct, use of force in which an inmate suffers death or serious injury, use of deadly force, serious allegations made against supervisors, and high profile or dismissal cases assigned to the Vertical Advocate by the AGC. Employee Counseling Record - A written record of counseling, documented on a CDC Form 1123, between a supervisor and subordinate which provides formal instruction about laws, rules, policies and employer expectations. Employee Relations Officer (ERO)/Disciplinary Officer – An employee designated by the Hiring Authority to coordinate adverse actions. Employment Advocacy and Prosecution Team (EAPT) - The team, formerly known as the Employment Law Unit, responsible for operation of the Vertical Advocacy Model in the Department’s Office of Legal Affairs. Executive Review – A secondary, management-level review conducted to resolve a significant disagreement(s) regarding an investigative finding, proposed disciplinary penalty, or settlement agreement. Hiring Authority – The Undersecretary or General Counsel or any Chief Deputy Secretary, Executive Officer, Chief Information Officer, Assistant Secretary, Director, Deputy Director, Associate Director, Warden, Superintendent, Health Care Manager, Regional Health Care Administrator, or Regional Parole Administrator authorized by the appointing power to hire, discipline, and dismiss staff under his/her signature authority. The Administrator at the Richard A. McGee Correctional Training Center shall serve as the Hiring Authority for Correctional Officer Cadets. The appointing power is a hiring authority, for purposes of this Article. In-Service Training (IST) - Formal training conducted departmentally and/or at the direction of the Hiring Authority and usually conducted away from the employee’s work site. Letter of Instruction (LOI) - A written document, which outlines requirements for an employee to advance his/her job performance or conduct to an acceptable level. BUREAU OF INDEPENDENT REVIEW PAGE 91 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA Notice of Adverse Action - Notification to the affected employee of the charges against him/her, the adverse action penalty, and the effective date. Office of Internal Affairs (OIA) - The entity within the Department with authority to investigate allegations of employee misconduct. On the Job Training (OJT) - Training conducted by a supervisor (or a designated employee with the required expertise under the direction of a supervisor) at the job site while the employee is working. Preliminary Notice of Adverse Action – Notification required of some Hiring Authorities in accordance with the Bodiford Settlement Agreement, to an affected employee regarding charges against him/her and the intent to impose adverse action. This notification summarizes the specific subsections of the Government Code that have been violated, as well as the actions that constituted the violation. For Hiring Authorities mandated to serve a Preliminary Notice of Adverse Action, the charging package shall also be served with this notice. Senior and Special Assistant Inspectors General (SAIG) – Attorneys employed by the BIR who report to the CAIG. Skelly Hearing - An informal proceeding in which the employee, together with his or her representative, is provided a predeprivation opportunity to respond to management regarding the charges in the Notice of Adverse Action. The employee may present any arguments for amending a pending adverse action before the action becomes effective. Skelly Hearings are required at the request of the affected employee for the following: adverse actions; rejections during probation; non-punitive actions resulting in the employee’s dismissal or demotion; and transfers for purposes of punishment and/or in conjunction with an adverse action. Skelly Letter – A document transmitted to an affected employee, following the Skelly Hearing, stating the Hiring Authority’s final decision regarding the imposition of a disciplinary penalty. Skelly Officer - A noninvolved manager, usually at the level of a Correctional Administrator, who will make a recommendation to the Hiring Authority after a Skelly Hearing to amend, modify, withdraw, or sustain the pending adverse action. The Skelly Officer must be a management employee above the organizational level of the disciplined employee’s supervisor unless that person is the employee’s appointing power in which case the appointing power may respond to the employee or designate another person to respond. Unless the affected employee waives his/her right to have a noninvolved manager serve as the Skelly Officer, the Skelly Officer shall not be the person who completed the CDCR Form 989, Internal Affairs Investigation Request; who signed the employee’s Notice of Adverse Action; or who participated in the decision to take adverse action. Summary of Adverse Action – A summary compiled by the ERO/Disciplinary Officer of allegations of misconduct, from the evidence contained in an investigative report and other documents. Vertical Advocacy Model – A system that ensures legal representation for the Department during the entire investigative and employee disciplinary process in order to hold staff accountable for misconduct by way of thorough and complete internal investigations, principled decision-making and assessment of the investigations, and consistent and appropriate discipline. BUREAU OF INDEPENDENT REVIEW PAGE 92 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA Vertical Advocate – An EAPT attorney assigned to one or more specific Hiring Authority locations to consult with the investigators and Hiring Authorities concerning investigative findings, disciplinary decisions, and to prosecute designated cases. 33030.5 Responsibility 33030.5.1 Appointing Power The appointing power shall ensure implementation and compliance with the Department's employee discipline policy and programs. 33030.5.2 Hiring Authority Each Hiring Authority shall be responsible for the following: • Taking adverse action whenever warranted by an employee’s behavior/conduct; • Ensuring adverse actions are imposed in a fair, objective, and impartial manner and are consistent with this policy, the principles of just cause, and due process; • Submitting CDCR Forms 989 to the OIA including those cases in which direct adverse action is taken without an investigation; • Reviewing investigative reports, determining investigative findings, and completing CDCR Form 402; • Determining and justifying appropriate penalty level for employee misconduct by utilizing the Employee Disciplinary Matrix and completing the CDCR Form 403; • Executing and causing the Notice of Adverse Action to be served on employees; • Consulting with the Vertical Advocate, for designated cases, and the SAIG for cases the BIR is monitoring, regarding sufficiency of investigations and appropriateness of penalty; • Consulting with the Vertical Advocate, for designated cases, and the SAIG for cases the BIR is monitoring, before agreeing to any modification, stipulation, or withdrawal affecting the proposed action and before approving any settlement agreement; • Participating in Executive Review, as necessary, and forwarding material, as appropriate, for Executive Review; • Informing the Vertical Advocate, for designated cases, and the SAIG, for cases the BIR is monitoring, of any new case developments. Each Chief Deputy Secretary, shall be responsible for the following: • Participating in Executive Review, as necessary; • Coordinating with the CAIG and the AGC on matters referred for Executive Review; • Elevating high-profile cases to the Secretary and Undersecretary, as necessary. The Chief Information Officer and General Counsel and each Assistant Secretary, Executive Officer, Director, Deputy Director, and Associate Director, shall be responsible for the following: • Facilitating and participating in Executive Review, as necessary; • Coordinating with the CAIG and the AGC on matters referred for Executive Review; • Coordinating with and informing the appropriate Chief Deputy Secretary, Undersecretary, or Secretary regarding high-profile cases being monitored by the BIR BUREAU OF INDEPENDENT REVIEW PAGE 93 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA and especially for cases where there is significant disagreement regarding a penalty level and/or settlement agreement; • Approving requests for Administrative Time Off (ATO); • Elevating cases to the appropriate Chief Deputy Secretary, Undersecretary, and Secretary, as necessary. 33030.5.3 Supervisors and Managers Each supervisor and manager shall be responsible for the following: • Supervising the performance, behavior, and conduct of subordinate staff and imposing corrective action as necessary; • Filing documentation related to corrective action in the employee’s supervisory file; • Reviewing the employee’s supervisory file for documentation of any corrective actions for similar misconduct occurring within one (1) year, prior to the imposition of corrective or adverse action; • Referring alleged misconduct and requests for investigation or adverse action to the Hiring Authority immediately following discovery of facts which may constitute misconduct; • Serving as a Skelly Officer, as necessary. 33030.5.4 ERO/Disciplinary Officer The ERO/Disciplinary Officer shall be responsible for the following: • Monitoring and coordinating the adverse action processes; • Drafting Notices of Adverse Action, in consultation with the Vertical Advocate for all non-designated cases; • Arranging for proper service and review of adverse action documentation; • Providing a copy of the declaration of service and serving all adverse actions to affected employees; • Assisting the Vertical Advocates in hearing preparation for designated cases , including service of subpoenas on witnesses; • Scheduling and attending Skelly Hearings and assisting the Skelly Officer with administrative duties as requested; • Representing the Hiring Authority in all non-designated cases and supporting the Vertical Advocate in all designated cases before the State Personnel Board (SPB); • Coordinating with the Hiring Authority, Vertical Advocate, SPB representatives, affected employees and employee representatives, and other individuals and entities as appropriate; • Maintaining an accurate log of all formal discipline served and providing copies of the log and all documents relevant to pending actions quarterly to the Office of Personnel Services Employee Discipline Unit; • Maintaining an accurate log of all contacts by employees at the worksites (for which the ERO/Disciplinary Officer is responsible) regarding contacts about potential testimony and subpoenas the employee has received; BUREAU OF INDEPENDENT REVIEW PAGE 94 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA • Retaining adverse action documentation, including CDCR Forms 403, in the Adverse Action File. 33030.5.5 Vertical Advocate The Vertical Advocate shall be responsible for the following: • Monitoring and coordinating the adverse action process for all designated cases, from the onset of an investigation; • Calculating statute of limitations expiration dates; • Consulting with and advising the Hiring Authority and ERO/Disciplinary Officer on all cases, as requested by the Hiring Authority; • Providing legal consultation for all designated cases to the assigned investigator, including developing the investigative plan, preparation of investigative interviews and attending investigative interviews as appropriate to assess witness demeanor and credibility; • Providing legal consultation to the Hiring Authority on all designated cases and coordinating with the SAIG, for cases the BIR is monitoring, regarding application of the Disciplinary Matrix to determine the appropriate penalty; • Drafting Notices of Adverse Action (in consultation with the ERO/Disciplinary Officer and the SAIG) for all designated cases; • Participating in Executive Review, as necessary; • Attending Skelly Hearings for all designated cases; • Representing the Department for designated cases in disciplinary matters before the SPB; • Drafting settlement agreements for all designated cases; • Assisting the Hiring Authority and ERO/Disciplinary Officer in drafting settlement agreements and reviewing the form and substance of each proposed settlement agreement drafted by the Hiring Authority and/or the ERO/Disciplinary Officer, prior to the Hiring Authority entering into any settlement; • Coordinating with the SAIG, for cases the BIR is monitoring, at each step of the investigative and disciplinary process; • Coordinating with the Hiring Authority, SPB representatives, and other individuals and entities as appropriate; • Maintaining accurate records of assignments and documenting in the legal database all communications with the Hiring Authority and SAIG regarding disciplinary penalties; the Skelly Hearing; the Skelly Officer’s recommendation; the outcome of Executive Review; settlement agreements; SPB Hearings; and any appellate proceedings; • Documenting in the legal page of the CMS all communications with the investigator Hiring Authority, and SAIG regarding investigative reports and investigative findings. 33030.5.6 Office of Personnel Services, Human Resources Personnel Services staff and/or local personnel staff shall be responsible for the following: BUREAU OF INDEPENDENT REVIEW PAGE 95 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA • Processing adverse actions as indicated by the Hiring Authority on the Notice of Adverse Action; • Filing and retaining Final Notices of Adverse Action in employee official personnel files for three (3) years unless the retention period is reduced by the Hiring Authority after the Skelly Hearing or otherwise agreed to by stipulated settlement. Office of Personnel Services, Employee Discipline Unit, staff shall be responsible for the following: • Collecting and maintaining the official departmental copies of all adverse action documents separate and apart from those held in the Official Personnel files; • Maintaining statistical information and generating reports on adverse actions using the Case Management System; • Drafting adverse actions and representing the Department before the SPB for nondesignated cases emanating from the Headquarters Offices and Divisions, Juvenile Justice Divisions, and all Parole Regional Offices. 33030.6 Managerial Employees Supervisors or managers appointed after January 1, 1984, as a designated managerial employee, but who are not in a career executive category, are subject to the provisions in Government Code section 3513 et seq. (Ralph C. Dills Act). The managerial employee may be disciplined for any cause except for a cause constituting prohibited discrimination as found in Government Code sections 19700 through 19703. 33030.7 Peace Officer Procedural Bill of Rights All employees designated by the Penal Code as peace officers, both probationary and permanent, are fully guaranteed their Peace Officer Procedural Bill of Rights (Government Code sections 3300 through 3311) during any adverse action procedure, including related interviews and investigations. 33030.8 Causes for Corrective Action Not all inappropriate behavior will require the imposition of disciplinary action. In some cases, corrective action and documentation may be more appropriate and must generally be issued within thirty (30) calendar days of discovering inappropriate behavior or poor performance. [For use of force incidents, Letters of Instruction must generally be issued within thirty (30) days from when the Institution Executive Review Committee concludes its review of the incident.] The purpose of corrective action is to help an employee change problem behavior or performance before discipline is necessary and may be imposed for any employee conduct or performance that is correctable by means of counseling and/or training (up to and including a Letter of Instruction). Corrective action may precede adverse action or an adverse action penalty may include corrective action. For peace officers covered by the Bargaining Unit 6 Agreement, behaviors that resulted in corrective action may not be used as cause for adverse action but may be cited in an adverse action for subsequent violations to prove the employee knew about a BUREAU OF INDEPENDENT REVIEW PAGE 96 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA statute, regulation, or procedure or to prove that the employee has engaged in a pattern of violating a statute, regulation, or procedure within the past year. Corrective actions may also be used to rebut the employee’s claim that he/she did not know about a statute, regulation, or procedure and/or expectation. 33030.8.1 Types of Corrective Action 33030.8.1.1 In-Service Training (IST) When IST is ordered, the supervisor or manager shall complete section one of the memorandum form “Order for Formal IST or Documentation of OJT.” Orders for IST shall direct the employee to report to the IST Training Manager, Assistant IST Training Manager, or other departmental training officer for completion of specific IST by a specified date. When formal training is ordered, the employee is responsible to report to the appropriate Training Manager and complete the training prior to the due date set for the completion of the training. Orders for formal IST and completed IST documentation shall be filed in the employee’s supervisory file. 33030.8.1.2 On the Job Training (OJT) When OJT is ordered, the supervisor shall complete section two of the memorandum form “Order for Formal IST or Documentation of OJT” and shall complete the CDC Form 844, In- Service Training Sign-In Sheet. The employee shall be given the opportunity to sign the CDC Form 844 to indicate his or her participation in discussion and acknowledge receiving and understanding the training provided. Orders for OJT and completed OJT documentation shall be filed in the employee’s supervisory file. 33030.8.1.3 Employee Counseling Record The supervisor or manager shall meet with the employee and discuss his or her conduct or performance level and complete a CDC Form 1123, Employee Counseling Record. In the Action Plan section of the CDC Form 1123, the supervisor or manager shall indicate any training the supervisor or manager has provided to the employee or indicate training directed to the employee to attend, specifying the training the employee is required to complete and the length of time the employee is allowed to complete the training. The employee shall be given the opportunity to sign for a copy of the CDC Form 1123. Follow-up discussions with employees who receive a CDC Form 1123 shall occur and shall be documented and placed in the employee’s supervisory file. The CDC Form 1123 shall be filed in the employee’s supervisory file. 33030.8.1.4 Letters of Instruction An LOI may not deprive employees of pay or benefits (e.g., removal from a position, loss of differential pay). The LOI shall be prepared on a memorandum and shall (1) state the expected performance standards to be met; (2) provide a plan to meet expected performance; and (3) indicate time frames to meet the expectation. The memorandum shall be as follows: • Entitled “Letter of Instruction;” • Clearly addressed to employee; • Clearly state the nature and circumstances of the problem; • Cite previous discussions with employee; BUREAU OF INDEPENDENT REVIEW PAGE 97 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA • Include an explanation of why the employee’s conduct is considered inappropriate, and what conduct would have been appropriate; • Clearly state exactly what standards of performance are expected from the employee; • Include results of face-to-face discussion; • Develop a plan and set a date, not to exceed one year, by which the employee is to meet the expected performance. The LOI shall be signed by the supervisor and presented to the employee for his/her signature. A copy of the signed LOI shall be provided to the employee. The Hiring Authority shall sign the space "Approved for Placement in Personnel File." A copy of the LOI shall be forwarded to the ERO/Disciplinary Officer and to the local personnel office for placement in the employee's official personnel file and the employee’s supervisory file. Follow-up discussions with employees who receive an LOI shall occur and be documented and filed in the employee’s supervisory file. [See Otto v. Los Angeles Unified School District (2001) 89 Cal. App. 4th 985] 33030.8.2 Initiating Corrective Action The responsible supervisor/manager shall review the employee’s supervisory file for documentation of any prior corrective actions for similar misconduct occurring within the past one (1) year. The one-year period runs from the date of issuance of the corrective action (e.g., LOI). Corrective actions that are beyond the one-year period shall not be considered in this review. If prior corrective actions exist, supervisors/managers shall review each corrective action to determine if referral for adverse action is more appropriate than issuance of another corrective action. 33030.8.3 Documentation Retention • Orders for and documentation regarding completion of OJT and IST and CDC Forms 1123 shall be retained in the employee supervisory file for one (1) year from date of issuance. • LOIs shall be retained in the employee’s personnel and supervisory files for one (1) year from the time management should reasonably have known of the incident resulting in the LOI or once all of the requirements in the LOI have been met, whichever is earlier. • The Hiring Authority may set forth certain conditions of performance to be completed by the employee for a specified period of time prior to consideration of the early removal of the document. • If an employee submits a rebuttal to an LOI, the rebuttal shall be retained with the LOI in the employee’s personnel file or the supervisory file. 33030.9 Causes for Adverse Action Pursuant to Government Code section 19572, each of the following constitutes cause for discipline of an employee, or of a person whose name appears on any employment list: (a) Fraud in securing appointment. (b) Incompetency. BUREAU OF INDEPENDENT REVIEW PAGE 98 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA (c) Inefficiency. (d) Inexcusable neglect of duty. (e) Insubordination. (f) Dishonesty. (g) Drunkenness on duty. (h) Intemperance. (i) Addiction to the use of controlled substances. (j) Inexcusable absence without leave. (k) Conviction of a felony or conviction of a misdemeanor involving moral turpitude. A plea or verdict of guilty, or a conviction following a plea of nolo contendere, to a charge of a felony or any offense involving moral turpitude is deemed to be a conviction within the meaning of this section. (l) Immorality. (m) Discourteous treatment of the public or other employees. (n) Improper political activity. (o) Willful disobedience. (p) Misuse of state property. (q) Violation of this part or of a board rule. (r) Violation of the prohibitions set forth in accordance with section 19990. (s) Refusal to take and subscribe any oath or affirmation that is required by law in connection with the employment. (t) Other failure of good behavior either during or outside of duty hours, which is of such a nature that it causes discredit to the appointing authority or the person's employment. (u) Any negligence, recklessness, or intentional act that results in the death of a patient of a state hospital serving the mentally disabled or the developmentally disabled. (v) The use during duty hours, for training or target practice, of any material that is not authorized for that use by the appointing power. (w) Unlawful discrimination, including harassment, on any basis listed in subdivision (a) of section 12940, as those bases are defined in sections 12926 and 12926.1, except as otherwise provided in section 12940, against the public or other employees while acting in the capacity of a state employee. (x) Unlawful retaliation against any other state officer or employee or member of the public who in good faith reports, discloses, divulges, or otherwise brings to the attention of, the Attorney General or any other appropriate authority, any facts or information relative to actual or suspected violation of any law of this state or the United States occurring on the job or directly related to the job. 33030.10 Employee Representation Rights Employees with permanent or probationary status (regardless of time base) are entitled to representation at all stages of the adverse action process. This representation may be provided by the exclusive representative (union) for rank-and-file employees. For all non-represented employees, a personal advisor, attorney, or another state employee may attend the interview that may lead to adverse action. This is appropriate during Skelly or appeal hearings related to the BUREAU OF INDEPENDENT REVIEW PAGE 99 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA adverse action. Employees who are possible subjects or witnesses in the investigation are excluded as employee representatives. 33030.10.1 Temporary Authorization (TAU) Appointments Employees with TAU appointment status are not necessarily entitled to have a representative present during an interview which is preparatory to a separation from the TAU appointment. However, if a proposed action against an employee in this status is attributable to a specific incident that would have resulted in an adverse action, investigatory interviews shall be handled like adverse action cases and employee representation shall be allowed. 33030.10.2 State Time Use of state time is restricted and shall be approved by the affected employee's supervisor. • Absent an emergency, employees may request and shall be allowed reasonable state time by the supervisor to contact/secure a representative and to discuss the matter prior to any meeting/interview regarding an adverse action. • The employee shall also be allowed reasonable state time to prepare for the interview/meeting with the representative. • Job stewards shall be allowed reasonable time for the purpose of representing employees during working hours without loss of compensation. No other employee representative shall be allowed to confer with employees on state time. 33030.11 EAPT Processing of Cases The AGC, or designee, shall assign designated cases to a Vertical Advocate immediately following the case being accepted for investigation by Central Intake. The AGC shall document the case assignment in the Case Management System (CMS) and the ProLaw Database (legal database). Following assignment by the AGC, the Vertical Advocate shall be responsible for the continual update of the CMS legal page until transfer of the investigation to the Hiring Authority. Upon transfer of the investigation to the Hiring Authority, the Vertical Advocate shall ensure that the case is entered into the legal database and shall be responsible for continual update in that database until closure of the case. The legal database shall cross-reference the investigation number in order to track the case through the CMS and the legal database. As soon as operationally feasible, but no later than twenty-one (21) calendar days after the assignment of a case, the Vertical Advocate shall contact the assigned investigator for designated cases and the assigned SAIG, for cases the BIR is monitoring, to discuss the elements of a thorough investigation of the alleged misconduct. All contacts with the assigned investigator and the SAIG shall be documented by the Vertical Advocate on the CMS legal page or in the legal database. 33030.12 Statute of Limitations As soon as operationally possible, but no later than twenty-one (21) calendar days following assignment of a case, the Vertical Advocate shall confirm in the CMS the date of the reported incident, the date of discovery, the statute of limitations expiration date, and any exceptions to BUREAU OF INDEPENDENT REVIEW PAGE 100 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA the statute of limitations known at that time. The Vertical Advocate shall consult with the assigned investigator and the SAIG, for cases being monitored by the BIR, if the deadline for filing the adverse action should be modified. The factors to consider in making an assessment of timeliness are as follows: 33030.12.1 Peace Officers According to Government Code section 3304 (d), the following applies: Except as provided in this subdivision and subdivision (g), no punitive action, nor denial of promotion on grounds other than merit, shall be undertaken for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within one year of the public agency's discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct. This one-year limitation period shall apply only if the act, omission, or other misconduct occurred on or after January 1, 1998. In the event that the public agency determines that discipline may be taken, it shall complete its investigation and notify the public safety officer of its proposed disciplinary action within that year, except in any of the following circumstances: (1) If the act, omission, or other allegation of misconduct is also the subject of a criminal investigation or criminal prosecution, the time during which the criminal investigation or criminal prosecution is pending shall toll the oneyear time period. (2) If the public safety officer waives the one-year time period in writing, the time period shall be tolled for the period of time specified in the written waiver. (3) If the investigation is a multijurisdictional investigation that requires a reasonable extension for coordination of the involved agencies. (4) If the investigation involves more than one employee and requires a reasonable extension. (5) If the investigation involves an employee who is incapacitated or otherwise unavailable. (6) If the investigation involves a matter in civil litigation where the public safety officer is named as a party defendant, the one-year time period shall be tolled while that civil action is pending. (7) If the investigation involves a matter in criminal litigation where the complainant is a criminal defendant, the one-year time period shall be tolled during the period of that defendant's criminal investigation and prosecution. (8) If the investigation involves an allegation of workers' compensation fraud on the part of the public safety officer. Government Code section 3304 (g) states the following: (g) Notwithstanding the one-year time period specified in subdivision (d), an investigation may be reopened against a public safety officer if both of the following circumstances exist: (1) Significant new evidence has been discovered that is likely to affect the outcome of the investigation. (2) One of the following conditions exist: BUREAU OF INDEPENDENT REVIEW PAGE 101 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA (A) The evidence could not reasonably have been discovered in the normal course of investigation without resorting to extraordinary measures by the agency. (B) The evidence resulted from the public safety officer's predisciplinary response or procedure. 33030.12.2 Non-Peace Officer Employees According to Government Code section 19635, the following applies: No adverse action shall be valid against any state employee for any cause for discipline based on any civil service law of this state, unless notice of the adverse action is served within three years after the cause for discipline, upon which the notice is based, first arose. Adverse action based on fraud, embezzlement, or the falsification of records shall be valid, if notice of the adverse action is served within three years after the discovery of the fraud, embezzlement, or falsification. 33030.13 Investigation Review Upon completion of the investigative report for designated cases, the investigator shall provide a copy of the investigative report and all supporting documentation to the Vertical Advocate, for designated cases, and the SAIG, for cases monitored by the BIR, for review. As soon as operationally possible, but no more than twenty-one (21) calendar days following receipt of the investigative report, the Vertical Advocate shall review the investigative report and supporting documentation and provide feedback to the assigned investigator. This feedback shall address the thoroughness and clarity of the report, shall provide recommendations regarding any Peace Officer Bill of Rights or union contract issues, and shall recommend additional investigation that may be necessary to complete the investigative report. The Vertical Advocate shall provide a written confirmation of these discussions (i.e. memorandum or e-mail) to the investigator, with a copy to the Hiring Authority and SAIG. The investigator shall forward a copy of the written confirmation of these discussions to his/her OIA case supervisor. The Vertical Advocate shall document all related communications in the legal page of the CMS. Following completion of the review process above, the investigator shall provide the investigative report to the Hiring Authority. As soon as operationally possible, but no more than fourteen (14) calendar days following receipt of the final investigative report, the Hiring Authority shall review the investigative report and supporting documentation. The Hiring Authority shall consult with the Vertical Advocate, for all designated cases, and the SAIG, for all cases monitored by the BIR when reviewing the investigation and making investigative findings. The following shall be considered: • Whether the investigation is sufficient; • Whether the allegation(s) in the investigation are founded or not; • Whether corrective or disciplinary action is supported by the facts; • If disciplinary action is supported by the facts, what penalty is appropriate within the parameters of the Disciplinary Matrix; • What causes for discipline under Government Code section 19572 are supported by the factual findings; BUREAU OF INDEPENDENT REVIEW PAGE 102 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA • What recommendations are made by the SAIG, for cases the BIR is monitoring. The Vertical Advocate shall document all related communications in the legal page of the CMS including, specifically, his/her recommendations to the Hiring Authority regarding the investigative findings. For investigations that are sufficient, the Hiring Authority shall indicate the findings on CDCR Form 402 for each allegation and shall indicate whether corrective or disciplinary action shall follow. The CDCR Form 402 shall be forwarded to the ERO/Disciplinary Officer. The ERO/Disciplinary Officer shall (1) record the findings in the CMS database, and either (2) initiate corrective or disciplinary action as directed by the Hiring Authority, for non-designated cases or (3) forward a copy of the CDCR Form 402 to the Vertical Advocate, for designated cases, to initiate disciplinary action. If there is significant disagreement regarding investigative findings on a designated case or a case monitored by the BIR, the CDCR Form 402 shall not be completed until Executive Review has concluded (Refer to section 33030.14 “Executive Review.”) For investigations that are insufficient, the Hiring Authority shall document requests for additional investigation on the CDCR Form 402 and shall forward the CDCR Form 402 to the ERO/Disciplinary Officer. The ERO/Disciplinary Officer shall retain the original CDCR Form 402 in the Adverse Action file and shall forward a copy of the CDCR Form 402 to the assigned investigator; the Central Intake Unit; the appropriate OIA regional office; the Vertical Advocate for designated cases; and SAIG for cases monitored by the BIR. The investigator shall provide to the Hiring Authority the requested information or complete additional investigations as soon as operationally possible. 33030.13.1 Investigative Findings The findings of each allegation shall be determined by the Hiring Authority in consultation with the Vertical Advocate for designated cases and the SAIG for cases the BIR is monitoring. The findings and their explanations are as follows: • NO FINDING: The complainant failed to disclose promised information to further the investigation; the investigation revealed that another agency was involved and the complainant has been referred to that agency; the complainant wishes to withdraw the complaint; the complainant refuses to cooperate with the investigation; or the complainant is no longer available for clarification of facts/issues. • NOT SUSTAINED: The investigation failed to disclose a preponderance of evidence to prove or disprove the allegation made in the complaint. UNFOUNDED: The investigation conclusively proved that the act(s) alleged did not occur, or the act(s) may have, or in fact, occurred but the individual employee(s) named in the complaint(s) was not involved. • EXONERATED: The facts, which provided the basis for the complaint or allegation, did in fact occur; however, the investigation revealed that the actions were justified, lawful, and proper. • SUSTAINED: The investigation disclosed a preponderance of evidence to prove the allegation(s) made in the complaint. BUREAU OF INDEPENDENT REVIEW PAGE 103 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA 33030.13.2 Investigative Closure Memorandum Upon conclusion of each internal affairs investigation, the ERO/Disciplinary Officer shall transmit an “Internal Affairs Investigation Closure” memorandum to each subject of an investigation. The closure memorandum shall be signed by the Hiring Authority, shall outline the findings for each specific allegation, and shall be transmitted after the Hiring Authority completes CDCR Form 402 and prior to the imposition of disciplinary action. The ERO/Disciplinary Officer shall forward the original closure memorandum to the subject of the investigation, forward copies to the Vertical Advocate for designated cases and the SAIG for cases monitored by the BIR, and shall retain a copy of the closure memorandum in the Adverse Action file. 33030.14 Executive Review The purpose of Executive Review is to resolve significant disagreements between stakeholders about investigative findings, imposition of a penalty, or settlement agreements. Executive Review may be requested by the Hiring Authority, Vertical Advocate, AGC, SAIG, or CAIG and may be in person or via teleconference. Participants shall include, but are not limited to the following: the Hiring Authority; the Hiring Authority’s supervisor, or designee; the AGC, or designee; and the CAIG, or designee. In all cases, Executive Review shall be concluded prior to the statute of limitations expiration date. When Executive Review is initiated, completion of the CDCR Forms 402 or 403, service of the Final Notice of Adverse Action or Skelly Letter, and/or approval of the settlement agreement shall be delayed until the Executive Review is concluded and a determination has been made regarding investigative findings, imposition of a penalty, or details of the settlement agreement. If Executive Review is requested, the Hiring Authority shall immediately forward the CDCR Forms 402 and 403 (as applicable), the investigative report (if an investigation was conducted), and the proposed settlement agreement (if applicable) to his/her supervisor; the AGC; and the CAIG. The Hiring Authority’s supervisor, or designee, shall schedule the Executive Review and shall notify the appropriate Chief Deputy Secretary, as necessary, following each Executive Review and provide all requested information. If a decision cannot be reached through Executive Review, the Hiring Authority’s supervisor shall immediately elevate the matter to the appropriate Chief Deputy Secretary or higher for resolution. 33030.15 Types of Adverse Action Penalties The five types of penalties for adverse actions are as follows: 33030.15.1 Letter of Reprimand A letter of reprimand is the lowest level of penalty in the adverse action process and may be used when an action greater than corrective action is necessary. A letter of reprimand shall be retained as an official part of the employee's personnel record. 33030.15.2 Salary Reduction within the Salary Range of the Class A salary reduction may be one (1) or more salary steps down to the minimum salary of the BUREAU OF INDEPENDENT REVIEW PAGE 104 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA employee’s class and is usually utilized in place of a suspension of an employee whose continued service on the job is necessary. 33030.15.3 Suspension without Pay Suspension shall be specified in working days and may incur a penalty level from one (1) work day to several pay periods. The suspension is considered a temporary separation during which the employee does not work and salary is docked for the specified period of time. Any holiday falling within the time period is not counted as a working day. An employee’s service credits and health benefits may be affected, depending upon the length of the suspension. If Work Week Group E or SE employee receives a suspension penalty, it shall not be for a period of less than five (5) working days, unless the union contract provides otherwise. 33030.15.4 Demotion to a Lower Class Demotions shall occur when continued service is of value, but the employee is not working at the expected level of the classification. A demotion shall be imposed only when the employee qualifies for and can be expected to do a satisfactory job at the lower level. Demotion may be to any salary in the next lower class that does not exceed the salary the employee last received; however, it is possible to demote to any lower class, within the promotional chain, at a lower than maximum salary. The Notice of Adverse Action must contain the exact salary for each class. A demotion may be permanent or temporary. If temporary, the employee automatically returns to the higher class on the date specified and at the salary step determined by the Hiring Authority. If permanent, the employee can compete for a promotion at a later date. 33030.15.5 Dismissal from State Service Dismissal is appropriate for exceptionally serious misconduct, misconduct that is not correctible through discipline, or misconduct which immediately renders the individual unsuitable for continued employment. Dismissal may or may not be preceded by other forms of adverse action (i.e. progressive discipline). (See CCR, title 2, section 211 for additional information.) 33030.16 Employee Disciplinary Matrix Penalty Levels 1 Official Reprimand 4 Salary Reduction 10% for 7 Suspension w/o pay for 3-12 months or 49-60 work days Suspension w/o pay for 6- 24 work days 2 Suspension w/o pay for 5 Salary Reduction 5% for 8 Demotion to a lower 1-2 work days 13-36 months or Class Suspension w/o pay for 13-36 work days 3 Salary Reduction 5% for 6 Salary Reduction 10% for 9 Dismissal 3-12 months or 13-24 months or Suspension w/o pay for Suspension w/o pay for 3-12 work days 26-48 work days Work Week Group E and SE employees shall not receive a suspension of less than five (5) work days, unless the union contract provides otherwise. BUREAU OF INDEPENDENT REVIEW PAGE 105 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA 33030.17 Applying the Employee Disciplinary Matrix Sufficient evidence establishing a preponderance is necessary before any disciplinary action can be taken. The Employee Disciplinary Matrix shall be the foundation for all disciplinary action considered and imposed by the Department and shall be utilized by the Hiring Authority to determine the penalty to impose for misconduct. No favor shall be afforded simply because of an employee’s rank, and managers, supervisors, and sworn staff may be held to a higher standard of conduct. Off duty misconduct for non-sworn staff requires a nexus between the employee’s behavior and the employment. The Employee Disciplinary Matrix is based on the assumption that there is a single misdeed at issue and that the misdeed is the employee’s first adverse action. The Matrix provides a base penalty within a penalty range. The base penalty (represented with bold and underlined text) shall represent the starting point for an action. The Hiring Authority shall impose the base penalty unless aggravating or mitigating factors are found. The Hiring Authority or designee is not required to impose an identical penalty in each case because there are a variety of factors which may influence the Hiring Authority to take stronger action in one case than it does in another. The appropriate level of penalty within the specified range shall be based on the extent to which the employee's conduct resulted in or, if repeated, is likely to result in harm to public service; the circumstances surrounding the misconduct; and the likelihood of recurrence. A single misdeed may result in several different violations of the Government Code. It is the nature of the misconduct and aggravating or mitigating factors, as discussed below, which determine the final penalty included in the Notice of Adverse Action and not the number of Government Code sections cited in the Notice of Adverse Action. Multiple acts of misconduct may occur during a continuing event, contiguous or related events, or may be entirely independent of each other. When multiple acts of misconduct occur, the Employee Disciplinary Matrix shall be used to determine which single act warrants the highest penalty. The penalty range for the most severe charge shall be utilized, and other acts of misconduct are considered as aggravating circumstances that may increase the penalty up to and including dismissal. 33030.18 Mitigating and Aggravating Factors Aggravating and mitigating factors shall be considered and may increase or decrease the penalty within the penalty range. Aggravating or mitigating factors may not pertain directly to the circumstances of the misconduct but shall be relevant. Rarely will mitigating circumstances exonerate employees; however, mitigating circumstances may be used to reduce the penalty that might otherwise be imposed. Aggravating circumstances may increase a penalty to dismissal, for misconduct where dismissal is not included in the penalty range. Mitigating circumstances may decrease a penalty to corrective action for misconduct only when penalty level number 1 (Letter of Reprimand) is the expected penalty within the penalty range. The following mitigating factors shall be considered when determining a penalty: • The misconduct was unintentional and not willful; • The misconduct was not premeditated; BUREAU OF INDEPENDENT REVIEW PAGE 106 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA • The employee had a secondary and/or minor role in the misconduct; • Based upon length of service, experience, policy directives, and the inherent nature of the act, the employee may not have reasonably understood the consequences of his/her actions; • Commendations received by the employee; • The employee was forthright and truthful during the investigation; • The employee accepts responsibility for his/her actions; • The employee is remorseful; • The employee reported the harm caused and/or independently initiated steps to mitigate the harm caused in a timely manner. The following aggravating factors shall be considered when determining a penalty: • The misconduct was intentional and willful; • The misconduct was premeditated; • The employee had a primary and/or leadership role in the misconduct; • Based upon length of service, experience, policy directives, inherent nature of the act, the employee knew or should have known that his/her actions were inappropriate; • Serious consequences occurred or may have occurred from the misconduct; • The misconduct was committed with malicious intent or for personal gain; • The misconduct resulted in serious injury; • More than one act of misconduct forms the basis for the disciplinary action being taken; • The employee was evasive, dishonest, or intentionally misleading during the investigation; • The employee does not accept responsibility for his/her actions; • The employee did not report the harm caused and/or attempted to conceal the harm through action or inaction; • The employee has sustained other related adverse action(s). 33030.19 Employee Disciplinary Matrix The following list of charges and causes for disciplinary action is representative only and is not all inclusive. The base penalty is bolded and underlined. A. ATTENDANCE PENALTY 1) Excessive tardiness. 1 2 3 (Gov. Code § 19572 c, Inefficiency) (Gov. Code § 19572 d, Inexcusable Neglect of Duty) 2) Unauthorized absence. 1 2 3 (Gov. Code § 19572 c, Inefficiency) (Gov. Code § 19572 d, Inexcusable Neglect of Duty) (Gov. Code § 19572 j, Inexcusable Absence without Leave) 3) Abuse of sick leave. 1 2 3 (Gov. Code § 19572 c, Inefficiency) (Gov. Code § 19572 d, Inexcusable Neglect of Duty) (Gov. Code § 19572 f, Dishonesty) BUREAU OF INDEPENDENT REVIEW PAGE 107 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA B. CODE OF SILENCE or RETALIATION PENALTY 1) Intentional failure to report misconduct by another employee. 4 5 6 7 8 9 (Gov. Code § 19572 c, Inefficiency) (Gov. Code § 19572 d, Inexcusable Neglect of Duty) (Gov. Code § 19572 e, Insubordination) (Gov. Code § 19572 f, Dishonesty) (Gov. Code § 19572 o, Willful disobedience) (Gov. Code § 19572 t, Other Failure of Good Behavior) 2) Intimidation, threats, or coercion that could interfere with an 4 5 6 7 8 9 employee’s right to report misconduct or an act of retaliation for reporting misconduct. (Gov. Code § 19572 m, Discourteous Treatment of Public/Other Employees) (Gov. Code § 19572 t, Other Failure of Good Behavior) (Gov. Code § 19572 x, Retaliation) 3) Making false or intentionally misleading statements during a 7 8 9 criminal or administrative investigation or inquiry by any agency. (Gov. Code § 19572 c, Inefficiency) (Gov. Code § 19572 d, Inexcusable Neglect of Duty) (Gov. Code § 19572 e, Insubordination) (Gov. Code § 19572 f, Dishonesty) (Gov. Code § 19572 o, Willful disobedience) (Gov. Code § 19572 t, Other Failure of Good Behavior) 4) Any independent act(s) which prevents or interferes with the 7 8 9 reporting of misconduct. (Gov. Code § 19572 c, Inefficiency) (Gov. Code § 19572 d, Inexcusable Neglect of Duty) (Gov. Code § 19572 e, Insubordination) (Gov. Code § 19572 f, Dishonesty) (Gov. Code § 19572 o, Willful disobedience) (Gov. Code § 19572 t, Other Failure of Good Behavior) 5) Any involvement in a coordinated effort with other employees 7 8 9 to prohibit the reporting of misconduct. (Gov. Code § 19572 c, Inefficiency) (Gov. Code § 19572 d, Inexcusable Neglect of Duty) (Gov. Code § 19572 e, Insubordination) (Gov. Code § 19572 f, Dishonesty) (Gov. Code § 19572 o, Willful disobedience) (Gov. Code § 19572 t, Other Failure of Good Behavior) C. CONTROLLED SUBSTANCES PENALTY 1) Use or possession of controlled substances on or off duty, 4 5 6 7 8 9 unless medically prescribed. (Gov. Code § 19572 c, Inefficiency) (Gov. Code § 19572 d, Inexcusable Neglect of Duty) (Gov. Code § 19572 i, Addiction to the Use of a Controlled Substance) (Gov. Code § 19572 r, Violation of Gov. Code § 19990) (Gov. Code § 19572 t, Other Failure of Good Behavior) BUREAU OF INDEPENDENT REVIEW PAGE 108 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA C. CONTROLLED SUBSTANCES (CONTINUED) PENALTY 2) Sale of illegal drugs or narcotics. 9 (Gov. Code § 19572 i, Addiction to the Use of a Controlled Substance) (Gov. Code § 19572 r, Violation of Gov. Code § 19990) (Gov. Code § 19572 t, Other Failure of Good Behavior) D. CONDUCT or INEFFICIENCY PENALTY 1) Discourtesy toward inmates, other employees, or the public. 1 2 3 (Gov. Code § 19572 m, Discourteous Treatment of Public/Other Employees) (Gov. Code § 19572 t, Other Failure of Good Behavior) 2) Endangering self, fellow employees, inmates, or the public by 1 2 3 violation of Departmental training, laws, or ordinances. (Gov. Code § 19572 b, Incompetency) (Gov. Code § 19572 c, Inefficiency) (Gov. Code § 19572 d, Inexcusable Neglect of Duty) (Gov. Code § 19572 t, Other Failure of Good Behavior) 3) Leaving assigned post without supervisor approval. 1 2 3 (Gov. Code § 19572 b, Incompetency) (Gov. Code § 19572 c, Inefficiency) (Gov. Code § 19572 d, Inexcusable Neglect of Duty) (Gov. Code § 19572 t, Other Failure of Good Behavior) (Gov. Code § 19572 u, Negligence) 4) Distraction from duty. 1 2 3 (Gov. Code § 19572 c, Inefficiency) (Gov. Code § 19572 d, Inexcusable Neglect of Duty) (Gov. Code § 19572 o, Willful disobedience) (Gov. Code § 19572 t, Other Failure of Good Behavior) 5) Participating in illegal gambling on duty. 1 2 3 (Gov. Code § 19572 c, Inefficiency) (Gov. Code § 19572 d, Inexcusable Neglect of Duty) (Gov. Code § 19572 t, Other Failure of Good Behavior) 6) Unauthorized use of position in the Department, uniform, or 1 2 3 equipment on behalf of a political candidate or issue. (Gov. Code § 19572 n, Improper Political Activity) (Gov. Code § 19572 r, Violation of Gov. Code § 19990) (Gov. Code § 19572 t, Other Failure of Good Behavior) 7) Inappropriate involvement in a law enforcement matter. 1 2 3 (Gov. Code § 19572 t, Other Failure of Good Behavior) 8) Improper access to confidential information. 1 2 3 4 (Gov. Code § 19572 r, Violation of Gov. Code § 19990) (Gov. Code § 19572 t, Other Failure of Good Behavior) BUREAU OF INDEPENDENT REVIEW PAGE 109 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA D. CONDUCT or INEFFICIENCY (CONTINUED) PENALTY 9) Improper transmittal of confidential information with malicious 4 5 6 7 8 9 intent or for personal gain. (Gov. Code § 19572 p, Misuse of State Property) (Gov. Code § 19572 r, Violation of Gov. Code § 19990) (Gov. Code § 19572 t, Other Failure of Good Behavior) 10) Disruptive, offensive, or vulgar conduct which causes 2 3 4 embarrassment to the Department. (Gov. Code § 19572 m, Discourteous Treatment of Public/Other Employees) (Gov. Code § 19572 t, Other Failure of Good Behavior) 11) Asleep while on duty. 2 3 4 (Gov. Code § 19572 c, Inefficiency) (Gov. Code § 19572 d, Inexcusable Neglect of Duty) (Gov. Code § 19572 t, Other Failure of Good Behavior) (Gov. Code § 19572 u, Negligence) 12) Use or abuse of over-the-counter or prescription drugs while 3 4 5 6 on duty which impairs an employee’s ability to discharge his/her duties. (Gov. Code § 19572 c, Inefficiency) (Gov. Code § 19572 d, Inexcusable Neglect of Duty) (Gov. Code § 19572 t, Other Failure of Good Behavior) 13) Intimidation, threats, or assault (without the intent to inflict 3 4 5 6 serious injury) toward a member of the Department. (Gov. Code § 19572 m, Discourteous Treatment of Public/Other Employees) (Gov. Code § 19572 t, Other Failure of Good Behavior) (Gov. Code § 19572 w, Discrimination) (Gov. Code § 19572 x, Retaliation) 14) Battery against a member of the Department with the intent to 7 8 9 inflict injury. (Gov. Code § 19572 m, Discourteous Treatment of Public/Other Employees) (Gov. Code § 19572 t, Other Failure of Good Behavior) (Gov. Code § 19572 w, Discrimination) (Gov. Code § 19572 x, Retaliation) BUREAU OF INDEPENDENT REVIEW PAGE 110 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA D. CONDUCT or INEFFICIENCY (CONTINUED) PENALTY 15) Making insults to anyone pertaining to race, color, national 3 4 5 6 origin, ancestry, sex (i.e., gender), religion, marital status, age, disability, medical condition, pregnancy, sexual orientation, veteran status, or political affiliation. (Gov. Code § 19572 c, Inefficiency) (Gov. Code § 19572 m, Discourteous Treatment of Public/Other Employees) (Gov. Code § 19572 t, Other Failure of Good Behavior) (Gov. Code § 19572 w, Discrimination) 16) Harassing anyone based upon race, color, national origin, 4 5 6 7 8 9 ancestry, sex (i.e., gender), religion, marital status, age, disability, medical condition, pregnancy, sexual orientation, veteran status, or political affiliation. (Gov. Code § 19572 c, Inefficiency) (Gov. Code § 19572 m, Discourteous Treatment of Public/Other Employees) (Gov. Code § 19572 t, Other Failure of Good Behavior) (Gov. Code § 19572 w, Discrimination) 17) Sexual misconduct involving staff, up to and including 4 5 6 7 8 9 harassment. (Gov. Code § 19572 k, Conviction of a Felony or a Misdemeanor Involving Moral Turpitude) (Gov. Code § 19572 l, Immorality) (Gov. Code § 19572 m, Discourteous Treatment of Public/Other Employees) (Gov. Code § 19572 t, Other Failure of Good Behavior) 18) Over-familiarity with an inmate(s)/parolee(s). 4 5 6 7 8 9 (Gov. Code § 19572 d, Inexcusable Neglect of Duty) (Gov. Code § 19572 l, Immorality) (Gov. Code § 19572 t, Other Failure of Good Behavior) 19) Sexual misconduct with an inmate(s)/parolee(s). 9 (Gov. Code § 19572 k, Conviction of a Felony or a Misdemeanor Involving Moral Turpitude) (Gov. Code § 19572 l, Immorality) (Gov. Code § 19572 m, Discourteous Treatment of Public/Other Employees) (Gov. Code § 19572 t, Other Failure of Good Behavior) 20) Solicitation of prostitution. 6 7 8 9 (Gov. Code § 19572 l, Immorality) (Gov. Code § 19572 t, Other Failure of Good Behavior) BUREAU OF INDEPENDENT REVIEW PAGE 111 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA D. CONDUCT or INEFFICIENCY (CONTINUED) PENALTY 21) Drunkenness on duty. 4 5 6 7 8 9 (Gov. Code § 19572 d, Inexcusable Neglect of Duty) (Gov. Code § 19572 g, Drunkenness on Duty) (Gov. Code § 19572 h, Intemperance) (Gov. Code § 19572 t, Other Failure of Good Behavior) CCR, title 15, §3410 22) Use of identification or position in the Department to solicit a 3 4 5 6 7 gratuity or privilege. (Gov. Code § 19572 c, Inefficiency) (Gov. Code § 19572 r, Violation of Gov. Code § 19990) (Gov. Code § 19572 t, Other Failure of Good Behavior) 23) Operating the employee’s personal vehicle, state vehicle, or 4 5 6 7 8 9 state equipment for state business while under the influence of alcohol or illegal prescription drugs. (Gov. Code § 19572 c, Inefficiency) (Gov. Code § 19572 d, Inexcusable Neglect of Duty) (Gov. Code § 19572 g, Drunkenness on Duty) (Gov. Code § 19572 p, Misuse of State Property) (Gov. Code § 19572 t, Other Failure of Good Behavior) 24) Bringing contraband into a security area for personal use. 3 4 5 6 (Gov. Code § 19572 c, Inefficiency) (Gov. Code § 19572 d, Inexcusable Neglect of Duty) (Gov. Code § 19572 f, Dishonesty) (Gov. Code § 19572 t, Other Failure of Good Behavior) 25) Bringing contraband into a security area for an inmate and/or 7 8 9 for personal gain. (Gov. Code § 19572 c, Inefficiency) (Gov. Code § 19572 d, Inexcusable Neglect of Duty) (Gov. Code § 19572 f, Dishonesty) (Gov. Code § 19572 t, Other Failure of Good Behavior) 26) Failure to observe and perform within the scope of training. 1 2 3 4 5 6 (Gov. Code § 19572 c, Inefficiency) (Gov. Code § 19572 d, Inexcusable Neglect of Duty) (Gov. Code § 19572 e, Insubordination) (Gov. Code § 19572 t, Other Failure of Good Behavior) BUREAU OF INDEPENDENT REVIEW PAGE 112 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA D. CONDUCT or INEFFICIENCY (CONTINUED) PENALTY 27) Intentional failure to intervene or attempt to stop misconduct 4 5 6 7 8 9 by another employee. (Gov. Code § 19572 c, Inefficiency) (Gov. Code § 19572 d, Inexcusable Neglect of Duty) (Gov. Code § 19572 e, Insubordination) (Gov. Code § 19572 f, Dishonesty) (Gov. Code § 19572 o, Willful disobedience) (Gov. Code § 19572 t, Other Failure of Good Behavior) 28) Felony criminal conviction. 9 (Gov. Code § 19572 k, Conviction of a Felony or a Misdemeanor Involving Moral Turpitude) (Gov. Code § 19572 t, Other Failure of Good Behavior) E. INTEGRITY PENALTY 1) Petty theft. 3 - 6 (Gov. Code § 19572 f, Dishonesty) Penalty shall be relative to (Gov. Code § 19572 k, Conviction of a Felony or a Misdemeanor value and circumstances. Involving Moral Turpitude) (Gov. Code § 19572 p, Misuse of State Property) (Gov. Code § 19572 t, Other Failure of Good Behavior) 2) Grand theft. 7 - 9 (Gov. Code § 19572 f, Dishonesty) Penalty shall be relative to (Gov. Code § 19572 k, Conviction of a Felony or a Misdemeanor value and circumstances. Involving Moral Turpitude) (Gov. Code § 19572 p, Misuse of State Property) (Gov. Code § 19572 t, Other Failure of Good Behavior) 3) Making false or intentionally misleading statements to a 4 5 6 7 8 9 supervisor. (Gov. Code § 19572 e, Insubordination) (Gov. Code § 19572 f, Dishonesty) (Gov. Code § 19572 t, Other Failure of Good Behavior) 4) Making false or intentionally misleading statements to a public 4 5 6 7 8 9 safety officer on or off duty. (Gov. Code § 19572 e, Insubordination) (Gov. Code § 19572 f, Dishonesty) (Gov. Code § 19572 t, Other Failure of Good Behavior) BUREAU OF INDEPENDENT REVIEW PAGE 113 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA E. INTEGRITY (CONTINUED) PENALTY 5) Any form of cheating on a civil service examination, including 6 7 8 9 but not limited to unauthorized possession, use, or distribution of examination material or participating in an examination for another person. (Gov. Code § 19572 a, Fraud in Securing Appointment) (Gov. Code § 19572 f, Dishonesty) (Gov. Code § 19572 l, Immorality) (Gov. Code § 19572 t, Other Failure of Good Behavior) 6) Falsification of time records or financial record for fraudulent 6 7 8 9 purposes. (Gov. Code § 19572 f, Dishonesty) (Gov. Code § 19572 t, Other Failure of Good Behavior) 7) Falsification or making intentionally misleading statements in 6 7 8 9 official reports or records. (Gov. Code § 19572 f, Dishonesty) (Gov. Code § 19572 t, Other Failure of Good Behavior) 8) Falsification of application or omission of information for 6 7 8 9 employment or promotion when it materially affects acceptance or rejection for employment or promotion. (Gov. Code § 19572 a, Fraud in Securing Appointment) (Gov. Code § 19572 f, Dishonesty) (Gov. Code § 19572 t, Other Failure of Good Behavior) 9) Falsification, alteration, or planting of evidence. 6 7 8 9 (Gov. Code § 19572 f, Dishonesty) (Gov. Code § 19572 t, Other Failure of Good Behavior) 10) False testimony under oath. 9 (Gov. Code § 19572 d, Inexcusable Neglect of Duty) (Gov. Code § 19572 f, Dishonesty) (Gov. Code § 19572 t, Other Failure of Good Behavior) F. FAILURE TO COMPLY PENALTY 1) Failure to report employment outside the Department. 1 2 3 (Gov. Code § 19572 r, Violation of Gov. Code § 19990) 2) Failure to attend required training. 1 2 3 (Gov. Code § 19572 e, Insubordination) (Gov. Code § 19572 o, Willful disobedience) BUREAU OF INDEPENDENT REVIEW PAGE 114 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA F. FAILURE TO COMPLY (CONTINUED) PENALTY 3) Accepting employment outside the Department which imposes 3 4 5 6 a conflict of interest or having financial interest in any contract made by an employee in their official capacity or by any body or board of which the employee is a member. (Gov. Code § 1090) (Gov. Code § 19572 r, Violation of Gov. Code § 19990) 4) Failure to follow lawful instructions or refusal to act as lawfully 3 4 5 6 directed by a supervisor or higher ranking official. (Gov. Code § 19572 b, Incompetency) (Gov. Code § 19572 c, Inefficiency) (Gov. Code § 19572 e, Insubordination) (Gov. Code § 19572 o, Willful disobedience) 5) Refusal to submit to or take any oath or affirmation required by 9 law orordinances. (Gov. Code § 19572 s, Refusal to Take an Oath) 6) Refusal to take a medical examination or to submit to chemical 9 testing, as required by civil service rules, ordinances, or lawful order. (Gov. Code § 19572 e, Insubordination) (Gov. Code § 19572 o, Willful disobedience) G. MISUSE OF STATE EQUIPMENT or PROPERTY PENALTY 1) Unauthorized use of state telephones or photocopy equipment 1 2 3 for personal use. (Gov. Code § 19572 c, Inefficiency) (Gov. Code § 19572 f, Dishonesty) (Gov. Code § 19572 p, Misuse of State Property) (Gov. Code § 19572 r, Violation of Gov. Code § 19990) (Gov. Code § 19572 t, Other Failure of Good Behavior) 2) Failure to carry required equipment. 1 2 3 (Gov. Code § 19572 c, Inefficiency) (Gov. Code § 19572 d, Inexcusable Neglect of Duty) (Gov. Code § 19572 t, Other Failure of Good Behavior) 3) Misuse or non-use of issued equipment. 1 2 3 (Gov. Code § 19572 p, Misuse of State Property) 4) Misappropriation of state equipment, property, supplies, or 1 - 9 funds. Penalty shall be relative to (Gov. Code § 19572 c, Inefficiency) value of misappropriation and (Gov. Code § 19572 f, Dishonesty) circumstances. (Gov. Code § 19572 p, Misuse of State Property) (Gov. Code § 19572 t, Other Failure of Good Behavior) H. OFF DUTY INCIDENTS PENALTY 1) Failure to report off duty arrest to the Hiring Authority. 1 2 3 (Gov. Code § 19572 t, Other Failure of Good Behavior) 2) Drunk or disorderly conduct in public. 1 2 3 (Gov. Code § 19572 t, Other Failure of Good Behavior) BUREAU OF INDEPENDENT REVIEW PAGE 115 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA H. OFF DUTY INCIDENTS (CONTINUED) PENALTY 3) Off duty drunk driving. 1 2 3 (Gov. Code § 19572 t, Other Failure of Good Behavior) 4) Off duty drunk driving with collision. 4 5 6 (Gov. Code § 19572 h, Intemperance) (Gov. Code § 19572 t, Other Failure of Good Behavior) 5) Carrying an unauthorized weapon off duty. 3 4 5 6 (Gov. Code § 19572 t, Other Failure of Good Behavior) 6) Domestic violence. 4 5 6 7 8 9 (Gov. Code § 19572 k, Conviction of a Felony or a Misdemeanor Involving Moral Turpitude) (Gov. Code § 19572 l, Immorality) (Gov. Code § 19572 t, Other Failure of Good Behavior) 7) Intimidation, threats, or assault of a private citizen without 3 4 5 6 intent to inflict serious injury. (Gov. Code § 19572 m, Discourteous Treatment of Public/Other Employees) (Gov. Code § 19572 t, Other Failure of Good Behavior) 8) Battery of a private citizen with intent to commit injury. 4 5 6 7 8 9 (Gov. Code § 19572 m, Discourteous Treatment of Public/Other Employees) (Gov. Code § 19572 t, Other Failure of Good Behavior) I. TRAFFIC RELATED INCIDENTS WHILE ON DUTY PENALTY 1) Dangerous or negligent driving. 1 2 3 (Gov. Code § 19572 d, Inexcusable Neglect of Duty) (Gov. Code § 19572 p, Misuse of State Property) (Gov. Code § 19572 t, Other Failure of Good Behavior) 2) Dangerous or negligent driving with collision. 3 4 5 6 (Gov. Code § 19572 d, Inexcusable Neglect of Duty) (Gov. Code § 19572 p, Misuse of State Property) (Gov. Code § 19572 t, Other Failure of Good Behavior) 3) Dangerous or negligent driving with collision and injuries. 4 5 6 7 8 (Gov. Code § 19572 d, Inexcusable Neglect of Duty) (Gov. Code § 19572 p, Misuse of State Property) (Gov. Code § 19572 t, Other Failure of Good Behavior) J. USE of FORCE PENALTY 1) Unreasonable use of force. 1 2 3 (Gov. Code § 19572 d, Inexcusable Neglect of Duty) (Gov. Code § 19572 t, Other Failure of Good Behavior) 2) Significant unreasonable use of force likely to cause injury. 4 5 6 (Gov. Code § 19572 d, Inexcusable Neglect of Duty) (Gov. Code § 19572 t, Other Failure of Good Behavior) BUREAU OF INDEPENDENT REVIEW PAGE 116 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA J. USE of FORCE (CONTINUED) PENALTY 3) Significant unreasonable use of force likely to cause serious injury. 6 7 8 9 (Gov. Code § 19572 d, Inexcusable Neglect of Duty) (Gov. Code § 19572 t, Other Failure of Good Behavior) 4) Employee’s failure to report his/her own use of force. 2 3 4 5 6 (Gov. Code § 19572 d, Inexcusable Neglect of Duty) (Gov. Code § 19572 f, Dishonesty) (Gov. Code § 19572 t, Other Failure of Good Behavior) 5) Employee’s failure to report his/her own unreasonable use of force. 4 5 6 7 8 9 (Gov. Code § 19572 d, Inexcusable Neglect of Duty) (Gov. Code § 19572 f, Dishonesty) (Gov. Code § 19572 t, Other Failure of Good Behavior) 6) Employee’s failure to report use of force witnessed. 2 3 4 5 6 (Gov. Code § 19572 d, Inexcusable Neglect of Duty) (Gov. Code § 19572 f, Dishonesty) (Gov. Code § 19572 t, Other Failure of Good Behavior) 7) Employee’s failure to report unreasonable use of force witnessed. 4 5 6 7 8 9 (Gov. Code § 19572 d, Inexcusable Neglect of Duty) (Gov. Code § 19572 f, Dishonesty) (Gov. Code § 19572 t, Other Failure of Good Behavior) K. WEAPONS – LETHAL & LESS-LETHAL WHILE ON DUTY PENALTY 1) Misuse or non-use of available weapon(s). 1 2 3 (Gov. Code § 19572 b, Incompetency) (Gov. Code § 19572 d, Inexcusable Neglect of Duty) (Gov. Code § 19572 v, Inappropriate Target Practice) 2) Careless handling of duty weapon(s) resulting in discharge of 1 2 3 weapon(s). (Gov. Code § 19572 c, Inefficiency) (Gov. Code § 19572 d, Inexcusable Neglect of Duty) (Gov. Code § 19572 p, Misuse of State Property) (Gov. Code § 19572 t, Other Failure of Good Behavior) 3) Inappropriate display of weapon(s). 4 5 6 (Gov. Code § 19572 t, Other Failure of Good Behavior) 4) Gross negligence in handling of duty weapon(s). 4 5 6 7 8 9 (Gov. Code § 19572 c, Inefficiency) (Gov. Code § 19572 d, Inexcusable Neglect of Duty) (Gov. Code § 19572 p, Misuse of State Property) (Gov. Code § 19572 t, Other Failure of Good Behavior) 33030.20 Imposition of Penalty and Consultation After determining the investigative findings, or in cases where direct adverse action is taken without an investigation, the Hiring Authority shall consult with the Vertical Advocate, for all designated cases, and the SAIG, for all cases monitored by the BIR when determining a penalty. The following shall be considered: BUREAU OF INDEPENDENT REVIEW PAGE 117 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA • The seriousness of the misconduct; • Harm or potential harm to the public service; • The circumstances surrounding the misconduct; • The likelihood of recurrence; • Whether or not progressive discipline has been taken in the past; • Other mitigating or aggravating circumstances. The Hiring Authority shall justify and document each penalty on the CDCR Form 403. The completed CDCR Form 403 shall be signed by the Hiring Authority at least fourteen (14) calendar days before service of the Notice of Adverse Action and shall be forwarded to the ERO/Disciplinary Officer. The ERO/Disciplinary Officer shall retain the original CDCR Form 403 in the Adverse Action file and shall forward a copy to the Vertical Advocate for designated cases and to the SAIG for cases monitored by the BIR. For designated cases, the Vertical Advocate shall provide to the Hiring Authority, SAIG, and AGC a written confirmation (i.e. memorandum or e-mail) of penalty discussions with the SAIG. The Vertical Advocate shall also document all communications related to penalty imposition in the legal database. For all cases for which the penalty is dismissal, the ERO/Disciplinary Officer or Vertical Advocate shall provide to the AGC and the Hiring Authority shall provide to his/her immediate supervisor the following: written notification (i.e. memorandum or e-mail) regarding the proposed penalty; a copy of the CDCR Form 403; and any other requested documentation. The Hiring Authority shall delay service of the Final Notice of Adverse Action for three (3) business days following transmittal of the written notification, so there is time for Executive Review to be requested. At this time, the AGC, or designee, shall make a determination whether the non- designated dismissal case will be assigned to a Vertical Advocate for prosecution before the SPB. This determination shall be based upon factors including the complexity of the case and whether the actual behavior prior to the investigation warrants a dismissal. The AGC shall notify the Vertical Advocate and the Hiring Authority of the case assignment and the reasons for the determination. 33030.21 Setting the Effective Date of the Action After consulting with the employee's personnel/payroll office, the Hiring Authority shall determine the effective date(s) of the adverse action after allowance for the Skelly period [minimum of five (5) working days or twenty (20) calendar days for managers]. For cases the BIR is monitoring, the effective date shall be at least twenty-one (21) calendar days following the date of service of the Notice of Adverse Action. Consideration shall be given to the following: • Suspensions shall be computed on a 24-hour work day basis, excluding legal holidays and regular days off. Holidays are not considered working days for suspension. There is no pay for a holiday occurring during a period of suspension. Holidays occurring during a period of suspension in effect increase the penalty by one day and such scheduling shall be avoided whenever possible. (Example: Four working days suspension for the period of July 1,___, 0800 hours, through July 6, ___, 0759 hours; employee loses five (5) days pay). BUREAU OF INDEPENDENT REVIEW PAGE 118 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA • Time absent on suspension may delay the employee's next merit salary adjustment and may affect the earnings of vacation and sick leave credits (refer to DOM or a personnel specialist). • In computing reductions in salary, the effective date of reduction shall coincide with the beginning of a pay period and amounts shall coincide with the existing salary range. • Effective dates for all actions involving pay issues shall be coordinated with the employee's personnel/payroll office to avoid overpayment situations. • The effective date of the adverse action may only be modified if the Hiring Authority serves to the affected employee a written amendment to the Notice of Adverse Action. 33030.22 Adverse Action Documentation Adverse action documentation shall be completed, in all cases, prior to the statute of limitations expiration date. The Vertical Advocate shall monitor due dates and provide legal advice to the Hiring Authority and the ERO/Disciplinary Officer for all cases. The Vertical Advocate shall draft the Notice of Adverse Action for all designated cases and shall forward a draft Notice of Adverse Action to the SAIG for cases monitored by the BIR. For all other cases, the Vertical Advocate shall consult with the ERO/Disciplinary Officer upon request regarding other Notices of Adverse Action drafted by the ERO/Disciplinary Officer. When drafting a Notice of Adverse Action the ERO/Disciplinary Officer, in consultation with the Vertical Advocate, shall ensure the following: 1. Each cause(s) for discipline supported by the facts is included. 2. At least one Government Code section is cited as a cause for each act of misconduct. 3. All the facts in support of the causes for discipline are included. 4. All facts fall within the statute of limitations. 5. All facts are alleged with sufficient specificity to meet the requirements of SPB Precedential Decision No. 91-04, In re: Korman. 6. When required under the Bodiford Settlement, the employee was served with a Preliminary Notice of Adverse Action and all supporting documentation, at least 24- hours prior to service of the Notice of Adverse Action. 7. If the subject employee is a peace officer, he or she is being served with the Notice of Adverse Action within thirty (30) calendar days of the decision to take disciplinary action. 8. The employee’s rights and entitlements are included, as follows: a. Skelly Rights: i. Notice of the proposed action. ii. Notice of the reasons for the proposed action in writing at least five (5) working days before the adverse action becomes effective [twenty (20) calendar days for managers]. iii. A copy of the charges on which the action is based in sufficient detail for the employee to prepare a defense. iv. A copy of all materials upon which the action is based, including any documents, photographs, tape recordings, video tapes, complete investigative reports (e.g., reports and other materials that the Hiring Authority relied upon in forming the decision to take the action). BUREAU OF INDEPENDENT REVIEW PAGE 119 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA v. The right to respond to a manager who was not involved in the investigation of the action currently being taken against the employee. vi. The right to be represented when responding to the Hiring Authority imposing the discipline. b. Right to appeal to the SPB. 9. The notice includes other appropriate considerations, such as: a. Training received; b. Prior counseling received; c. Prior discipline; d. A statement that peace officers are held to a higher standard with regard to honesty and integrity and that his or her actions have not met this standard. 33030.23 Adverse Action Documentation - Summary of Adverse Action The Summary of Adverse Action shall be completed for non-designated cases by the ERO/Disciplinary Officer as follows: 1. Work History: A biographical summary of the employee's employment history: a. Location and dates of assignment. b. Prior adverse actions with causes and dates listed. c. Special commendations (restricted to departmental commendations or commendations from other agencies). Do not include routine letters of thanks or routine training certificates of accomplishment. d. Incident reports-commendable and censurable. (Include any current Letters of Instruction.) 2. Chronological Summary of the Investigation: Write the summary as briefly and concisely as possible. Supporting reports, documents, and complete statements should be included as exhibits and referenced in the chronological summary. a. The summary shall be in chronological sequence based on the steps taken by the investigator beginning with receipt of the information that precipitated the investigation. b. Briefly describe each act of misconduct that supports the allegation. c. Obtain dates, times, and the names of supervisors conducting corrective interviews. Copies or corrective memorandums, incident reports, etc., shall be included as exhibits. 3. Summary of Witnesses Statements : Prepare a list of witnesses as follows: a. Include the witness' full name and, if the witness is a State employee, his/her civil service classification title. b. Below each name, identify the facts of the case for which the witness shall testify. c. Briefly summarize witness’ statements in the sequence they were developed. The summary should contain all pertinent points contained in the statement. 4. Attachments: All documents gathered during the investigation including signed statements, transcripts, vouchers, receipts, performance reports, incident reports, photographs, and CDC Form 602 (Inmate/Parolee Appeal Form). BUREAU OF INDEPENDENT REVIEW PAGE 120 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA 33030.23.1 Documentation Format Clerical support staff, under the supervision of the ERO/Disciplinary Officer, shall compile adverse action documentation as follows: 1. Type the Preliminary Notice of Action on the departmental form memorandum. 2. Type Notice of Adverse Action on Department letterhead as follows: a. The type of notice shall appear in capital letters and shall be centered four spaces below the letterhead. b. The employee's name, civil service classification, worksite name and location (including institution or parole region, if applicable) are typed in block style at the left-hand margin, four spaces below the title. A Confidential Department Employee Information Sheet shall be attached and contain current home address and social security number. c. Divide the body of the formal notice into sections indicated by Roman numerals as identified below: I. Statement of the Nature of the Adverse Action. II. Effective Date of This Adverse Action.` III. Statement of Causes. IV. Statement of Facts. V. Notice and Progressive Discipline VI. Statement as to Right to Answer and Appeal. VII. Statement as to Right to Respond to Your Appointing Power. 3. Include notations explaining the meaning of abbreviations used in supporting documentation and, in the signature block of the notice, the typed name, work location, business address and telephone number of the Hiring Authority. 33030.23.2 Declaration of Service The ERO/Disciplinary Officer, or his/her assistant, shall be responsible for completion of Declaration of Service for the following documents provided to an employee either by mail or in person: • Preliminary Notice of Adverse Action; • Notice of Adverse Action; • Notice of Automatic Resignation (AWOL separation); • Response to resignation; • Stipulation for resignation in lieu of adverse action; • “Notice of Leave of Absence Pending Investigation (ATO)”; • Notice of Rejection During Probationary Period. Notices of Adverse Action and Preliminary Notices of Adverse Action shall be sent via United States Postal Service (USPS) as registered mail with return receipt requested. Clerical support staff shall coordinate the adverse action documentation as follows: 1. Address an envelope to the employee’s current home address and type in capital letters in the lower left corner of the envelope the words, “Return Receipt Requested.” 2. Attach to each notice a barcoded red Label 200 (available for registered mail from an BUREAU OF INDEPENDENT REVIEW PAGE 121 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA USPS office). The label shall be placed above the delivery address and to the right of the return address (or to the left of the delivery address on parcels). 3. Type the information required on the PS Form 3811, Domestic Return Receipt, and affix the PS Form 3811 to the back of the sealed envelope/parcel. The name and address of the Hiring Authority is typed on the front in the space under "Return to." 4. When returned, the PS Form 3811 shall be filed with the copy of the Notice of Adverse Action or Preliminary Notice of Adverse Action. 33030.24 Skelly Hearing Process All department employees shall be offered a Skelly Hearing prior to imposition of any adverse action, including disciplinary transfers, so the affected employee may respond to the charges contained in the Notice of Adverse Action. Employees waive his/her right to a Skelly Hearing by not formally requesting a Skelly Hearing. 33030.24.1 Notice and Request for Skelly Hearing Notice of the right to a Skelly Hearing prior to the effective date of the action shall be provided at least five (5) working days prior to the effective date of the action and twenty (20) calendar days for managers that are being disciplined (pursuant to Government Code section 19590). This period of time is known as the “Skelly Period.” If any provision of the policy is inconsistent with a bargaining unit Memorandum of Understanding (MOU), the MOU prevails. 33030.24.2 Skelly Hearing The Skelly Hearing is attended by the following: Skelly Officer; affected employee; employee’s representative if the employee requests a representative; the ERO/Disciplinary Officer, or other designee representing the Hiring Authority; the ERO/Disciplinary Officer’s assistant or other person designated to take notes; the Vertical Advocate for all designated cases; and the SAIG for cases the BIR is monitoring. The ERO/Disciplinary Officer shall coordinate all Skelly Hearings and shall ensure the comprehensive taking of minutes. The minutes from each Skelly Hearing shall remain in the ERO/Disciplinary Officer’s file. Tape recordings of the Skelly Hearing shall not be permitted. Affected employees who request a Skelly Hearing shall be notified of the identity of the Skelly Officer. The Skelly Officer shall review the Notice of Adverse Action or other charging document and all supporting materials prior to the Skelly Hearing. The Skelly Officer shall listen to and review the affected employee’s side of the story and shall allow the affected employee the opportunity to present arguments that the adverse action should not be sustained or should be reduced in some way. If an affected employee chooses to waive the right to a noninvolved manager acting as the Skelly Officer and requests that the Hiring Authority that took the action act as the Skelly Officer, the employee may do so within the Skelly period by signing a CDCR Form 3028, Waiver of Non- Involved Skelly Officer. When reviewing the imposition of discipline, the Skelly Officer shall consider whether the action is as follows: BUREAU OF INDEPENDENT REVIEW PAGE 122 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA • Timely; • Based on the proper statutory cause; • Supported by the facts. The affected employee shall be allowed representation during the Skelly Hearing. The affected employee and/or the employee’s representative may present to the Skelly Officer either in writing or orally or both. The employee also may submit affidavits. However, the Skelly Officer has the right to restrict any oral presentation that is argumentative or repetitive. The Skelly Hearing is not an evidentiary proceeding; therefore, the affected employee does not have the right to confront the Department’s witnesses or call witnesses on the employee’s behalf. The Skelly Officer may ask clarifying questions, as are appropriate. The Skelly Officer is not subject to examination by either the affected employee or the employee’s representative, and is not required to provide any response to the information submitted by the affected employee or the employee’s representative except to acknowledge receipt. The Vertical Advocate, unless precluded by a scheduling conflict, shall attend the Skelly Hearing for all designated cases. During the Skelly Hearing, the Vertical Advocate shall observe the proceedings but not give legal advice to the Skelly Officer. The ERO/Disciplinary Officer shall be available to provide technical assistance to the Skelly Officer, if needed. The SAIG may also attend the Skelly Hearing for cases that the BIR is monitoring. The Skelly Officer shall remain objective and make an independent recommendation to the Hiring Authority. The Vertical Advocate shall remain available to participate in any settlement discussions as the department’s representative. The Vertical Advocate shall consult with the SAIG present at the Skelly Hearing, and provide legal advice to the Hiring Authority regarding any new information and legal arguments that emanated from the Skelly process. 33030.24.3 Skelly Officer’s Recommendations The affected employee shall not be informed of the Skelly Officer’s recommendation to the Hiring Authority. The affected employee shall be advised at the Skelly Hearing that the final recommendation will not be announced at the Skelly Hearing but shall be conveyed to the Hiring Authority. The Skelly Officer’s recommendation shall be conveyed to the Hiring Authority as soon as possible but no more than two (2) business days following the Skelly Hearing. The Skelly Officer may make one of the following recommendations to the Hiring Authority: • The action should proceed without modification; • The action should be amended, modified, or reduced; • The action should be withdrawn in its entirety. After the initial Skelly Hearing and before making one of the above recommendations, the Skelly Officer may also request one/both of the following from the Hiring Authority: • A response from the Hiring Authority with regard to any issue raised by the employee; • That additional investigation be conducted. If the Skelly Officer makes a recommendation other than that the action proceed without modification, the Skelly Officer must clearly state in writing each mitigating or aggravating fact or factor that the Skelly Officer considered relevant to his/her decision. The Skelly Officer’s BUREAU OF INDEPENDENT REVIEW PAGE 123 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA recommendation should be based on the employee’s/representative’s presentation and response to the charges, and the Hiring Authority’s response, if any. The affected employee will be advised if the Hiring Authority undertakes further investigation at the request of the Skelly Officer. If the Skelly Officer requests a response from the Hiring Authority and/or additional investigation, the Hiring Authority shall make every effort to complete any further investigation and to respond to the Skelly Officer within five (5) business days. The Skelly Hearing will not be considered concluded until the response from the Hiring Authority and/or additional investigation is provided to the Skelly Officer. The effective date of the adverse action originally served shall not change unless the Hiring Authority serves a written amendment to the Notice of Adverse Action. 33030.24.4 Settlement Discussions at the Skelly Hearing During the Skelly Hearing, the affected employee may discuss his/her willingness to accept some discipline or other action at a level different than that imposed by the Hiring Authority or may communicate his/her willingness to resolve the adverse action directly with the Hiring Authority. The Skelly Officer shall not discuss these matters with the affected employee. Instead, the Skelly Officer shall excuse him/herself or shall suggest that the affected employee, the employee’s representative, and the Department’s representative(s) privately discuss the possibility of settlement. These discussions shall not be used as evidence by either side if the matter does not end in settlement. When a Skelly Hearing is suspended pending settlement negotiations, the parties should complete and sign the CDCR Form 3029, Suspension of Skelly Hearing. If discussions result in a settlement and the affected employee waives any right to appeal the matter further (including to the SPB and Superior Court), no further Skelly Hearing is required and the Skelly Officer’s obligations are concluded. If the discussions do not result in settlement, the Skelly Officer shall return and complete the Skelly Hearing. 33030.25 Hiring Authority’s Final Decision Regarding Imposition of Penalty If the Hiring Authority proposes any post-Skelly penalty modification for a designated case, the Hiring Authority shall provide to the Vertical Advocate, SAIG, and AGC the following: (1) a written confirmation of penalty discussions (i.e. memorandum or e-mail) with the SAIG, including the Hiring Authority’s proposed penalty modification and (2) a copy of the Skelly Officer’s written recommendation. The Hiring Authority shall delay service of the Skelly Letter for three (3) business days following transmittal of the written notification, so there is time for Executive Review to be requested. The Vertical Advocate shall document all communications related to penalty imposition in the legal database. For a post-Skelly action to completely withdraw any penalty or to modify any dismissal penalty, the Vertical Advocate shall provide to the AGC and the Hiring Authority shall provide to his/her immediate supervisor the following: written notification (i.e. memorandum or e-mail) regarding the proposed penalty; a copy of the CDCR Form 403; and any other requested documentation. Unless further investigation is needed or Executive Review is requested, the Skelly Letter indicating the final decision of the Hiring Authority regarding disciplinary penalty shall be BUREAU OF INDEPENDENT REVIEW PAGE 124 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA served to the affected employee within five (5) working days of the Hiring Authority’s receipt of the Skelly Officer’s recommendation. 33030.26 Settlement Agreements The Hiring Authority or designee has the authority to settle all cases. However, prior to approving a settlement of a designated case the Hiring Authority shall consult with the assigned Vertical Advocate and the SAIG, for cases the BIR is monitoring, regarding both the form and substance of settlement agreements. If a settlement agreement is proposed during a hearing, the terms of the settlement shall be approved by the Hiring Authority, following consultation with the Vertical Advocate for designated cases and the SAIG for cases the BIR is monitoring. The Vertical Advocate also shall consult with and obtain approval from his/her EAPT supervisor to settle any case. If the Vertical Advocate has obtained pre-hearing approval of settlement parameters, and the proposed settlement is within those parameters, the Vertical Advocate does not need to contact a supervisor for settlement authority at the time of the hearing. The Vertical Advocate shall draft settlement agreements for all designated cases and cases assigned by the AGC and shall assist the Hiring Authority and ERO/Disciplinary Officer with drafting settlement agreements when requested. Settlement agreements may also be prepared by the employee's representative, with the approval and assistance of the Vertical Advocate in designated cases. All settlement agreements signed by CDCR representatives shall include the relevant clauses set forth in section 33030.26.2 below and require signature approval of all parties concerned. The Vertical Advocate shall have a proactive role during settlement negotiations, shall review each term of a proposed settlement, and shall be available to advise the Hiring Authority on the appropriateness of all settlement agreements. Terms that are contrary to accepted Department policies and procedures shall not be incorporated into any settlement agreement. The Vertical Advocate shall research the existence of any other pending cases that involve the appellant (e.g., workers’ compensation claims, civil lawsuits, whistleblower protection actions) and shall recommend global settlement of any or all cases as appropriate. The Vertical Advocate shall document all communications related to settlement agreements/penalty imposition in the legal database. If the Hiring Authority proposes a settlement agreement for a designated case, or a case the BIR is monitoring, that includes withdrawal of any penalty or modification of any dismissal, the Hiring Authority shall provide to the Vertical Advocate, his/her immediate supervisor, the AGC, and the SAIG the following: written notification (i.e. memorandum or e-mail) regarding the proposed settlement; a copy of the CDCR Form 403; a copy of the proposed settlement; and any other requested documentation. Approval of the settlement agreement by the Hiring Authority shall be delayed for three (3) business days following transmittal of the notification, so that there is time for Executive Review to occur. 33030.26.1 Factors to Consider Prior to Agreeing to Settle When a Hiring Authority considers whether or not settlement is warranted, the following factors shall be considered: • The gravity of the conduct that brought about disciplinary action; BUREAU OF INDEPENDENT REVIEW PAGE 125 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA • The risk of harm to the public service if such misconduct recurs; • Whether any court orders or corrective action plans have an impact on the decision to settle the disciplinary action; • Whether, in accordance with the principle of progressive discipline, the settlement continues to have the effect of preventing future misconduct; • Whether mitigating factors or other evidence, including evidence of remorse, were already considered at the Skelly Hearing, or as part of the underlying investigation; • The length of the State service of the employee; • Whether or not the employee has a record of prior discipline; • Whether conditions can be obtained through settlement (i.e., drug and alcohol testing and counseling, anger management counseling, etc.) that cannot be obtained solely through continued prosecution of the adverse action; • Flaws and risks in the case (including evidentiary problems, problems with witness availability, questions of law, etc.) not considered or known at the time of the preparation of the adverse action, or which have been exacerbated since the filing of the Notice of Adverse Action; • The finality that settlement brings to a case. 33030.26.2 Essential Settlement Language In addition to a recitation of the unique terms for any particular agreement, the settlement agreement documentation shall include the following key clauses: Standard clauses: APPELLANT, by his/her signature on this document, agrees to withdraw his/her Appeal to the NOTICE OF ADVERSE ACTION effective [insert date] and to waive any right he/she may have to appeal the NOTICE OF ADVERSE ACTION either before the State Personnel Board or any court of law which might have jurisdiction over the matter. Specifically, APPELLANT waives any rights he/she may have as set forth in sections “[insert number]” and “[insert number]” of the NOTICE OF ADVERSE ACTION; and, Code of Civil Procedure, Part 3, title 1, section 1067 through 1110 b, inclusive. APPELLANT, by his/her signature on this document, and in exchange for such consideration as is set forth in this STIPULATION AND RELEASE, releases, acquits and forever discharges the State of California, the California Department of Corrections and Rehabilitation, and its agents, representatives, employees, successors and assigns, of and from any and all demands, actions, causes of action, claims of any kind or nature whatsoever, known and unknown, anticipated or unanticipated, past or present, and any claim under state or federal law including, but not limited to, claims under the Fair Employment and Housing Act, Title VII of the 1964 Civil Rights Act, and/or the Age Discrimination in Employment Act, which may exist as of the date hereof in connection with or arising out of the actions taken by the Department regarding this NOTICE OF ADVERSE ACTION. APPELLANT is familiar with and has read the provisions of California Civil Code section 1542, and expressly waives to the fullest extent of the law any and all rights he/she may otherwise have under the terms of that Code section which reads as follows: BUREAU OF INDEPENDENT REVIEW PAGE 126 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA “A general release does not extend to claims which the creditor does not know of or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” APPELLANT executes this release without reliance upon any statement or representation by the DEPARTMENT, or its representatives except as set forth in this document. APPELLANT is of legal age and is legally competent to execute this release. APPELLANT accepts fully the responsibility therefore, and executes this release after having read the STIPULATION AND RELEASE. After having been advised and having the opportunity to discuss it thoroughly with APPELLANT’S representative, [insert name], APPELLANT understands its provisions and enters into this STIPULATION AND RELEASE voluntarily. This STIPULATION AND RELEASE is freely and voluntarily entered into, and APPELLANT hereby authorizes and orders his/her representatives of record to withdraw his/her appeal of the NOTICE OF ADVERSE ACTION, effective [insert date], currently pending before the State Personnel Board (Case No. [insert number].), as agreed in paragraph “(insert paragraph number)” of STIPULATION AND RELEASE. If the Appellant is age forty years or older: APPELLANT represents that he/she has been notified that he/she has the right to consider this STIPULATION AND RELEASE for at least twenty-one (21) calendar days before its execution. APPELLANT expressly waives this right. APPELLANT shall have the right to revoke this STIPULATION AND RELEASE for seven (7) calendar days after its execution, and understands that this STIPULATION AND RELEASE does not become effective or enforceable until that revocation period has expired. If an agreement includes a removal of an action at a specified time in the future: Even though RESPONDENT agrees to remove the adverse personnel action from APPELLANT’S personnel file in accordance with the terms and conditions set forth in paragraph [insert number] of this agreement, APPELLANT is aware and understands that RESPONDENT can, at its option, use this adverse action for purposes of progressive discipline if APPELLANT receives an adverse action in the future. If the Appellant has agreed to resign: On [insert date], APPELLANT agrees that he/she will be deemed to have resigned. This resignation is irrevocable and is not contingent on the action of any other State agency, or in the future. Appellant further agrees, as part of the consideration and inducement for execution of the STIPULATION AND RELEASE, to never apply for or accept employment with the California Department of Corrections and Rehabilitation (CDCR), or any entity providing services to inmates or wards within the CDCR. If the Department inadvertently offers appellant a position, appellant breaches this agreement by accepting a position with the Department. APPELLANT shall be terminated at such time as is BUREAU OF INDEPENDENT REVIEW PAGE 127 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA convenient to the Department and excluded from all institutions, and APPELLANT hereby waives any right APPELLANT may have to appeal that termination and/or exclusion in any forum. 33030.26.3 Documenting the Settlement Process When a settlement is read into the record at a hearing, the above required language shall be read into the record accurately and shall include appropriate modifications as specified in the settlement agreement. The Vertical Advocate or ERO/Disciplinary Officer shall indicate on the record the names of the representatives who have agreed to this settlement. Anytime a settlement agreement is reached, the Vertical Advocate or the ERO/Disciplinary Officer shall complete a CDC Form 3021, SPB Case Settlement Report, and shall forward the CDC Form 3021 to the AGC and to the SAIG for all cases monitored by the BIR. The CDC Form 3021 shall be utilized for audit purposes. The name of the manager providing settlement authority shall be reported under the “Name of Final Decision Maker” heading of the CDC Form 3021. 33030.27 Use of ATO An employee shall only be placed on ATO as follows: • He/she has been charged with a felony; • He/she is suspected of smuggling contraband; • He/she has shown unacceptable familiarity with inmates or parolees; • He/she has seriously jeopardized the security of the institution; • He/she has committed any other serious infraction of the CCR; • The proposed discipline is dismissal. Use of ATO should be considered when the employee’s continued presence at the work site will adversely affect the security or management of the facility. However, when possible, an alternative assignment should be considered rather than placement on ATO. 33030.27.1 Request for ATO The Hiring Authority shall request to place an employee on ATO as follows: • All requests for placing an employee on ATO shall be approved through the Hiring Authority’s supervisor, by telephone or in person. • Initial approval for ATO by the Hiring Authority’s supervisor shall be granted for a period not to exceed five (5) working days. • The requesting unit shall notify the Office of Personnel Services Employee Discipline Unit immediately and the ERO/Disciplinary Officer shall initiate a written request. In order to place an employee on ATO, the Hiring Authority shall provide a “Notice of Leave of Absence Pending Investigation (ATO)” to the affected employee. The Hiring Authority shall contact his/her supervisor prior to the employee's fifth (5th) working day on ATO to request to continue an employee on ATO beyond five (5) working days. For requests to continue an employee on ATO beyond ten (10) working days, the Hiring Authority BUREAU OF INDEPENDENT REVIEW PAGE 128 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA shall contact his/her supervisor prior to the employee's tenth (10th) working day on ATO. If the Hiring Authority’ s supervisor approved the request to continue an employee on ATO beyond ten (10) working days, the Hiring Authority’s supervisor shall notify the appropriate Deputy Director/Director that an employee is to be continued on ATO beyond ten (10) working days. If it is determined that an employee should be continued on ATO beyond fifteen (15th) working days, the Deputy Director/Director shall notify the appropriate Chief Deputy Secretary prior to the employee's fifteenth (15th) business day on ATO. The Deputy Director/Director shall instruct the Office of Personnel Services Employee Discipline Unit to request approval from the Department of Personnel Administration (DPA), in writing, prior to the fifteenth (15th) working day. 33030.27.2 Calculation of ATO Period The ATO period shall commence when the Hiring Authority has obtained approval from his/her supervisor, and the employee has been effectively notified of his/her placement on ATO status. If an employee on ATO is to return to work, he/she shall be contacted and ordered to do so. There should be no confusion regarding either the expectation that the employee return to work or the reporting date and time. The Hiring Authority shall confirm the order in writing. 33030.27.3 ATO Notices and Employee Responsibilities When placed on ATO, an employee shall be given a written notice that contains the following: • The employee is still an employee of the Department and shall be available during the normal business hours of the Department (i.e., Monday through Friday, 8:00 a.m. 12:00 p.m. and 1:00 p.m. to 5:00 p.m.). The employee’s lunch hour shall be from 12:00 p.m. to 1:00 p.m. Any state holidays observed during the work week shall be excepted. • The employee shall be available by telephone. • The employee may leave the immediate area to complete necessary errands (i.e., medical appointments or other necessary business that normally can only be completed during the business day). However, the employee must respond to the Department's attempt to contact him/her within a reasonable period of time. The reasonableness of the employee's response shall be determined by the type of errand, distance traveled and any other factors peculiar to the area which might affect the employee's ability to return the telephone call. • The expectation is that, generally, the response time of the employee shall be less than two (2) hours. • Emergency situations may affect this timeframe and are subject to Hiring Authority approval. 33030.27.4 State Property When an employee is placed on ATO, the Hiring Authority shall require that the employee surrender all state-issued property including weapons, state identification, badge(s), keys, vests, and any other items related to employment. BUREAU OF INDEPENDENT REVIEW PAGE 129 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA 33030.27.5 Peace Officer Authorization If a peace officer is placed on ATO, the Hiring Authority may, based on the circumstances, rescind the peace officer authorization to carry a concealed weapon off duty. The rescission notice shall be in writing and given to the employee. 33030.28 Vertical Advocate’s Preparation for the SPB Hearing Upon notification from the SPB that an appeal has been filed, the ERO/Disciplinary Officer and/or the Vertical Advocate shall notify the Hiring Authority and shall prepare for the SPB Hearing. The Vertical Advocate shall represent the Department at SPB Hearings for all designated cases. In all cases presented by the Vertical Advocate, the ERO/Disciplinary Officer shall provide administrative support to the Vertical Advocate including, but not limited to, service of witness subpoenas. The Vertical Advocate shall prepare for the SPB Hearing, including the following, as appropriate: 1. Prepare the defense by confirming: a. Due process compliance, including notice, documentation, Skelly Hearing (if requested) and proper service. b. Deadlines, statutes of limitations, and other critical time requirements. 2. Contact the appellant’s representative to discuss relevant issues, including defenses, potential for settlement, etc. 3. Make discovery requests. 4. Respond to discovery requests. 5. Draft pre-hearing motions (e.g., motion to dismiss for failure to file a timely appeal). 6. Respond to pre-hearing motions. 7. Identify witnesses, including experts, and assess what testimony they can provide. 8. Request that the witnesses review any transcripts of their interviews to ensure their accuracy. 9. Contact the ERO/Disciplinary Officer for the issuance of subpoenas to witnesses and experts. 10. Interview witnesses, as necessary (i.e., if the Vertical Advocate has not participated in the investigative interview). 11. Select witnesses to testify. 12. Prepare witnesses in person, including the assigned investigator, for testimony at the SPB Hearing. 13. Visit the location of the incident leading to the disciplinary action. 14. Identify exhibits to be introduced at the SPB Hearing and request reproduction of the exhibits by the ERO/Disciplinary Officer. 15. Assess the current strengths and weaknesses of the Department’s case, whether and how the weaknesses can be overcome, and develop a strategy for the case. 16. Assess the current strengths and weaknesses of the appellant’s case, including what his or her defenses are likely to be and how to counter them. For example, consider the following: a. What were the appellant’s defenses during the Skelly Hearing? b. Who did the appellant subpoena? BUREAU OF INDEPENDENT REVIEW PAGE 130 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA c. To what can the appellant’s witnesses testify? d. Other possible defenses, including: i. Statute of limitations violations. ii. No nexus between wrongful act and employment with the Department. iii. No progressive discipline. iv. The appellant is the subject of disparate treatment, retaliation, or discrimination. v. The appellant previously has been disciplined for the same incident(s). 17. Prepare a hearing binder, including the following: a. Exhibit list and a copy of each exhibit. b. Witness list in the order in which they will testify. c. List of witness contact numbers. d. Opening Statement Outline. e. Direct and cross-examination questions and, when appropriate, the anticipated answers. f. Closing Argument Outline. g. Applicable precedential decisions, statutes, regulations, etc. 18. Research potential legal issues. 19. Draft briefs, when necessary, utilizing and augmenting where appropriate the EAPT brief bank. 20. Communicate with the SAIG, for cases the BIR is monitoring, including whether the SAIG will attend the SPB Hearing. 21. Consult with the assigned SAIG regarding SPB Hearing strategy. 33030.28.1 Role of the Vertical Advocate at the SPB Hearing At the SPB Hearing, the Vertical Advocate shall prosecute the adverse actions as follows: 1. Present the evidence through witness testimony, stipulating only when the facts are not in dispute and there is no possibility of weakening the case to be presented. 2. Within ethical limits, present evidence in the best light possible for the Department. 3. Challenge testimony presented by the appellant, including challenges to “expert” testimony by assessing the following: a. If the witness is an “expert” as defined by statute and case law. b. If the “expert’s” testimony is incompatible with his or her employment. c. Whether the “expert’s” testimony should be challenged on the basis that it is irrelevant, calls for speculation, or calls for an opinion on the truth or falsity of certain statements. If required by the SPB or the circumstances, the Vertical Advocate shall do the following: 1. Prepare a written closing argument; 2. Brief legal issues that arose during the SPB Hearing and require a decision. To ensure consistency in briefing, the Vertical Advocate shall review and update any briefs available in the EAPT brief bank; 3. Present briefing and oral argument to the members of the SPB. Following the SPB Hearing, the Vertical Advocate shall do the following: BUREAU OF INDEPENDENT REVIEW PAGE 131 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA 1. Maintain contact with the Hiring Authority until the case is closed; 2. Confer with the SAIG for cases the BIR is monitoring; 3. File a petition for rehearing, as appropriate; 4. When the SPB sustains the action or the merit appeal is denied, prepare the file for archiving as follows: a. Organize the file so that information is readily available should the appellant petition for a rehearing or petition for a writ of mandate; b. Close the file only after the petition for rehearing has been resolved or the 30- day filing period for the petition for rehearing has expired. 5. Consult with the Hiring Authority’s Personnel Office regarding all back pay issues, including the following: a. Obtaining calculations of back pay due to the employee. b. Challenging overpayments. c. Defending the Department’s position at SPB back pay hearings. 6. Refer the case to the EAPT Appeals Committee when appropriate under the EAPT Post SPB Hearing Writs and Appeals Policy. 33030.28.2 Review of the SPB Decision A committee comprised of the AGC, an EAPT Supervisor, and an attorney specializing in writs and appeals shall convene to review all SPB decisions that modified or revoked the adverse action. The assigned Vertical Advocate shall present the case to the EAPT Appeals Committee for discussion, and the BIR shall be invited to all committee meetings. In cases presented to the SPB by contract counsel, a Vertical Advocate shall be assigned to present the case to the EAPT Appeals Committee. The EAPT Appeals Committee shall do the following: 1. Meet monthly, unless there are no cases to consider. Additional meetings will be scheduled, as needed. 2. Notify the BIR regarding all committee meetings. 3. Determine whether to seek review of the SPB decision. 4. In making its decision to seek review of the SPB decisions, the committee will consider: a. The recommendation of the Vertical Advocate assigned to the case and the SAIG, for cases the BIR is monitoring. b. The likelihood of prevailing on appeal. c. The egregiousness of the SPB’s decision on legal or factual issues. d. Whether the case has a potential collateral estoppel impact on other litigation. e. Whether other departmental concerns are implicated. f. The fiscal risks implicated in the pursuit of an appeal. g. The potential precedential impact of the decision to appeal or not to appeal. h. Unit workload and the availability of external resources. i. Such other facts as may be present in the particular case under consideration. 5. Solicit and discuss strategies to shape the decisional law governing the SPB. 6. Identify legal and procedural issues encountered at administrative hearings (i.e., SPB, DPA, Unemployment Insurance Appeals Board, Workers’ Compensation Appeals Board, etc.) that are in need of resolution. BUREAU OF INDEPENDENT REVIEW PAGE 132 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA 7. The committee’s decision to seek or not to seek permission to file a writ petition shall be communicated to the Hiring Authority and the CAIG for cases the BIR is monitoring. A decision to seek permission to file a writ petition requires that the communication include advice that the SPB decision being appealed is not final until the appeal has been resolved. Also, in appropriate cases, a stay shall be sought from the appellate court. The assigned writs and appeals attorney is responsible for preparation of any Governor’s Office Action Request (GOAR) and the writ petition. Workload considerations may require the Vertical Advocate to accept this responsibility, under the direction of the writs and appeals attorney. 1. The GOAR shall be prepared, and its circulation for approval commenced, within five (5) business days of the assignment. 2. When the GOAR is approved, the writs and appeals attorney (or assigned Vertical Advocate) shall, within fifteen (15) business days: a. Order the SPB Hearing transcript. b. Prepare and serve the petition for a writ. 3. As appropriate, at the time of the filing of the writ petition, the writs and appeals attorney (or assigned Vertical Advocate) will file an ex parte application for a stay of the SPB decision. 4. The writs and appeals attorney (or assigned Vertical Advocate), in consultation with the BIR attorney for cases the BIR is monitoring, shall prepare a memorandum to the Hiring Authority, as soon as the matter is final (either by acquiescence to the decision, settlement, or completion of any appeal). The memorandum shall include specific guidance of what steps must be taken, if any, to satisfy the final decision or settlement. 33030.29 Testimony by Department Employees Any employee of the Department who is contacted by any person regarding his/her potential testimony or who is subpoenaed as a witness in any matter shall notify, in writing and within one (1) business day of being contacted, the Litigation Coordinator and the ERO/Disciplinary Officer at his/her worksite. The employee also shall provide a copy of the subpoena to the Litigation Coordinator and the ERO/Disciplinary Officer immediately upon receipt. The ERO/Disciplinary Officer shall maintain a log of these contacts and shall determine immediately whether there is a pending disciplinary matter for which this subpoena was issued. The ERO/Disciplinary Officer shall notify the employee of the requirements of California Code of Regulations, title 15, section 3413. If a disciplinary matter is pending, the ERO/Disciplinary Officer shall immediately send, via facsimile, a copy of the subpoena to the appropriate Vertical Advocate. The Litigation Coordinator shall determine immediately whether there is a civil or criminal action pending and shall notify and forward a copy of the subpoena to the assigned Deputy Attorney General or contract counsel and to the Office of Legal Affairs attorney monitoring the matter. 33030.30 Duress or Undue Influence No one shall exert undue influence or subject employees to duress in order to obtain a resignation. Care must be taken to avoid making statements that could be the basis for an appeal BUREAU OF INDEPENDENT REVIEW PAGE 133 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA by the employee to have a resignation set aside on grounds it was obtained by duress, undue influence, or excessive persuasion. The following elements are characterized as excessive persuasion: • Discussion of the resignation at an unusual or inappropriate time. • Consummation of the resignation in an unusual place. • Insistent demand that the transaction be completed at once. • Extreme emphasis on unfavorable consequences of a delay. • The use of multiple persuaders by the Department against the employee standing alone. • Denial of the time or the opportunity for the employee to consult an advisor. 33030.31 EAPT Reporting On a quarterly basis and commencing March 1, 2006, the EAPT shall prepare and submit to the appointing power a report that includes the following information: • Number of adverse actions by type of discipline; • Number of direct (without an investigation) adverse action by type; • Number of adverse actions with an investigation by type; • Number of actions where the discipline was sustained by the Skelly Officer; • Number of actions where the Skelly Officer recommended modification of the discipline; (cid:190) Number that the Hiring Authority accepted the recommendation. (cid:190) Number that the Hiring Authority rejected the recommendation. • Number of settlements reached prior to the SPB decision; • SPB decisions; (cid:190) Number of cases where SPB upheld the original discipline. (cid:190) Number of cases where SPB modified the original discipline. (cid:190) Number of cases where SPB revoked the discipline. 33030.32 Disciplinary Audits The effectiveness of the Department’s disciplinary process shall be reviewed in an annual audit prepared by the Office of Legal Affairs, in conjunction with the OIA. The audit shall assess the adequacy of the monitoring of the statute of limitations and shall assess training needs by evaluating the following: the effectiveness of each Vertical Advocate; the appropriateness and thoroughness of the investigation, report, penalty, Notice of Adverse Action, and settlement; and the policy issues involved and/or at stake. BUREAU OF INDEPENDENT REVIEW PAGE 134 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA