In January 2006 Mary Hancock was employed with the Bay City Police department. She appeared in court testifying about her investigation of a sexual assault case. Her recollection of the events and the testimony of another officer’s were in conflict with each other. The differences were so obvious that the Matagorda County District Attorney asked for an investigation into the matter and if proven that one of them lied under oath that officer should be charged criminally.
Baker began an administrative investigation as requested by the District Attorney. Hancock was told that a statement of incriminating nature would not be used against her in court. Baker interviewed Hancock and the other officer involved. He determined there was a need to polygraph both of the officers.
Baker contacted the Texas Department of Public Safety and requested they conduct the polygraphs. Baker told them that he the investigation was an administrative matter.
On March 2, 2006, Texas Department of Public Safety Sergeant Flincher met with Hancock at the Houston office to conduct the polygraph. He read her the Miranda warning as a matter of policy and procedure and said her results from the polygraph would be furnished to Baker. He gave her a consent form to complete. He then told her that the results could be given to the district attorney if he requested it and that the form was procedural. Hancock refused to waive her rights and Fincher would not give her the exam. The other officer took the polygraph and resigned when the polygraph came back showing deception. Hancock was dismissed for failure to take the polygraph.
After the administrative appeals ruled for Baker, Hancock filed suit in both federal and state courts. Baker requested qualified immunity in both state and federal courts claiming there was no personal cause of action and if there were he would be immune. The US district court denied qualified immunity and Baker appealed.
The court looked at the decision under the standard of whether the Baker’s actions deprived Hancock of a statutory right, and if so was the conduct objectively reasonable. On the first question the court agreed that he did deny her a statutory right. The Supreme Court has held that a public employee cannot be fired by using the threat of employment, a right guaranteed by the constitution.
Baker argued that he told Hancock the investigation was administrative; that Sgt. Fincher required Hancock to waive her rights. Those forms were a prerequisite for Fincher to administer the polygraph. Baker had no authority over Fincher and could not guarantee that her answers would not be used against her.
The district attorney’s office had an interest in the investigation and would use the report from the polygraph as information for a prosecution. Thus Baker’s dismissal of Hancock was a violation of law. Baker contended that Hancock did not invoke her rights. She didn’t have to because the violation occurred whether she invoked them or not.
Baker took another approach and claimed he was immune from the case as it was the city council’s decision to terminate or not. However, Baker testified in his affidavit the he terminated Hancock for refusal to submit to the polygraph.
Secondly was Bakers decision reasonable. Baker was told that Hancock would not take a polygraph after she signed a consent form and was read Miranda. Although Baker agreed that Miranda had no place in an administrative investigation he did not give Hancock the opportunity to take a second polygraph because of Texas Department of Public Safety policy. Hancock had the presence of mind to understand Miranda from another agency would hold in court even though it was ‘merely procedure’.
Utilizing Texas law an employee could not be dismissed for failure to take a polygraph without providing the officer “with a written explanation of the nature of the extraordinary circumstances (necessitating a polygraph) and how the integrity of a peace officer or the law enforcement organization is in question” (Texas government code annotated 614.063 (e).)
Baker contended that he was protected from liability under the clause of official immunity. Under Texas law is an affirmative defense “from the performance of their (1) discretionary duties in (2) in good faith as long as they are (3) acting within their scope of authority “.
The court determined that the facts were favorable to Hancock. Baker could not prove that the Texas statutes for the discharge of a police officer were over whelming enough to grant qualified immunity.
What does this mean to internal affairs investigations and command staff? One solution would be to know specifically what another agency’s policies are before the polygraph. The agent here was acting under his policies. If those polices require Miranda and a signed release you need to know it.
If that cannot be overcome then you should hire an independent polygrapher or use one internally. Most state agencies are looking strictly from the aspect of a criminal investigation. Therefore, they are not concerned with the internal end of a case.
You can bring in someone from another jurisdiction to do the internal for you or hiring an independent investigator may be in order. If you have made all attempts at reasonable accommodation for both sides then you are on safe ground. In any case the CEO must make sure that the investigating authority has a copy of the department’s policy and procedures and has a good understanding of them. Once this is accomplished you can have a fair and impartial investigation.
About The Author:
Randy Rider began his career with the Douglas County Sheriff office, Georgia in 1974. He received several promotions eventually to investigations. His areas of expertise are extensive having worked crimes from petty theft to murder. In 1983 he became employed with the Georgia Department of Juvenile Justice as an investigator, promoted to Principal Investigator. He eventually moved into the Internal Affairs Unit as an investigator and as a supervisor.
Rider was elected President of the National Internal Affairs Investigators Association in 2005 and stepped down in 2010 having served five years. He is currently the Chaplain of the organization.
He is employed with the Public Agency Training Council one of the largest police training organizations in the country. Rider travels the country teaching officers on internal investigations of corrections facilities and first line supervisors on investigations of citizen’s complaints. He has experience is police audits.
Over the course of his career he has conducted hundreds of investigations concerning abuse, neglect, and use of force by law enforcement officers. Additionally, he has years of experience in custodial investigations, including numerous investigations involving the highly prevalent but seldom reported cases of inmate on inmate abuse. He has conducted investigations of police personnel for acts of misconduct.
A member of the IACP he worked with the organization on the document “Building Trust between the Police and the Citizens They Serve.” Currently he is an advisor on the Leading by Legacy program. He is an advisor to the International Chiefs of Police and the Department of Justice Community Oriented Policing Services.
Randy is a columnist for Officer.com as the internal affairs author. He published the weekly NIAIA newsletter for five years. He currently publishes the 'riderreport' a police newsletter.