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Employee Investigations and Discipline

The basis of effective government is public confidence, and that confidence is endangered when ethical standards falter, or appear to falter.
—John F. Kennedy, April 27, 1961

Ensuring that employees conduct themselves appropriately is an essential function of an employer. The most important administrative tool in achieving that goal is an expeditious and equitable internal investigation and employee discipline processes that sanctions those found guilty of misconduct and clears those wrongfully accused. In recent years, the California Department of Corrections has come under repeated and widespread criticism for failings in this regard. A series of legislative hearings in early 2004 brought to light an atmosphere of corruption and fear among Department of Corrections employees that obscures misconduct, derails internal affairs investigations, subjects whistle-blowers to retaliation, and shields those guilty of wrongdoing.[1] Following scrutiny of internal affairs investigations at Pelican Bay State Prison by the U.S. District Court, the Department of Corrections is under court order to correct deficiencies in its internal affairs investigation process. Revelations about these problems are not new. A special master appointed by the court noted in January 2004 that the department failed to correct deficiencies in its internal affairs process reported two years earlier by the Office of the Inspector General.[2]

The Department of Corrections failure to adequately address misconduct damages the reputation of its employees and undermines public confidence in the department’s ability to carry out its mission. The Corrections Independent Review Panel therefore sought to identify measures the new Department of Correctional Services could take to ensure integrity in the employee investigation and discipline process in both its adult and its youth correctional systems. In that effort, the panel reviewed the employee investigation and discipline processes used by the Department of Corrections and the California Youth Authority and examined reports by Senate Select Committees on Government Oversight and the California Correctional System, the U.S. District Court, and the Office of the Inspector General. The panel also attended legislative hearings, interviewed experts in the field of investigation and employee discipline, and polled correctional agencies nationwide.

As a result of its study, the panel found a lack of standardized procedures for internal investigations and employee discipline to be a key deficiency. The panel found another deficiency to be inadequate record-keeping of misconduct complaints, use-of-force incidents, internal investigations, and employee disciplinary actions. The panel identified three main elements necessary for effective change. First, complaints, use-of-force incidents, and employee investigations must be recorded, assessed, and monitored at a central location. Second, a vertical investigation team model must be implemented. Third, documents related to employee discipline also must be drafted at a central location. Elevating and reorganizing internal affairs units within the new Department of Correctional Services as described in Chapter 1, A Reorganization Plan for Corrections, will further help to bring integrity and accountability to the employee investigation and discipline processes.

Fiscal Impact

At present, the Department of Corrections and the California Youth Authority treat employee investigations and discipline as two separate activities. Implementing the panel’s recommendations will link both processes, standardize procedures, and improve quality control. According to testimony presented at a recent California State Senate hearing, the Department of Corrections paid the State Personnel Board approximately $1.3 million in fees for discipline appeals during fiscal year 2002-03.[3] Although the precise savings to be realized from a more efficient and trustworthy process cannot be precisely quantified, the changes can be expected to save money by lessening the potential for employees to appeal discipline cases and pursue civil litigation.

Background

In March 2002, the California Office of the Inspector General published the results of an audit that identified problems with the California Department of Corrections employee investigation and discipline practices. The audit found that needless complexity delayed the processing of cases and that several other factors impeded the department’s ability to process cases swiftly and effectively.[4] The Office of the Inspector General reported that statutory time limits were often exceeded, which precluded the department from taking disciplinary action in 43 percent of cases.[5] Although internal due dates had been established to ensure that investigations are completed on time and discipline imposed before statutory time limits expire, the Office of the Inspector General noted that the department lacked an adequate system for monitoring case progress and ensuring that the due dates were met.[6]

The Office of the Inspector General also noted that employees involved in imposing employee discipline lacked the knowledge and skill to successfully carry out the various levels of the discipline process. Often, individuals assigned to draft proposed disciplinary actions were not attorneys, nor were they assisted by legal counsel unless specifically requested. The same untrained individuals who drafted the actions were frequently called upon to act as the department’s advocate at State Personnel Board hearings.[7]

The Inspector General also found the department did not monitor or evaluate a number of discipline cases appealed to the State Personnel Board that were settled before the hearing. Over a three-year period, 426 of 750 cases— 57 percent of the discipline appeal cases filed with State Personnel Board by Department of Corrections employees—were either settled or withdrawn before the hearing process.[8]

In January 2004, a draft report by the special master appointed by the U.S. District Court, Northern District of California in the Pelican Bay State Prison case Madrid v. Gomez reiterated the findings of the Office of the Inspector General. That report noted in addition that high-ranking Department of Corrections officials sanctioned a “code of silence” during the prosecution of a correctional supervisor and a correctional officer, attempting to silence whistle blowers, block investigations, hide facts, and cover up staff misconduct.[9]

Hearings before the California State Senate on January 20 and 21, 2004 revealed allegations of unethical practices, targeting of whistle blowers, and cover-ups condoned by top California Department of Corrections officials.[10] The briefing paper for the Senate hearing relied on the draft report prepared by the U.S. District Court Special Master. The Department of Corrections acknowledged a need to reform its investigation and discipline processes in February 2004 and submitted a remedial plan to the federal court.[11]

The need for consolidation.

At present, the Department of Corrections and the California Youth Authority each have independent internal affairs units, and each of the internal affairs units, in turn, has separate units for conducting investigations and for processing staff discipline. Audit authorities have found the investigative and disciplinary practices of both departments to be “overly bureaucratic”— a characteristic that translates into fiscal waste, inequitable applications of staff discipline, and losses at the appeal level.[12]

A model for a new internal affairs office.

A more effective system would merge internal investigation and staff discipline functions for all Department of Correctional Services divisions into one full-service internal affairs office reporting directly to the Secretary. The new internal affairs office would be charged with recording public complaints; monitoring serious use-of-force incidents; conducting serious staff misconduct investigations; overseeing less-serious staff misconduct investigations; preparing documentation to be served on employees found to be involved in misconduct; and representing the department during the appeal process. (Chapter 4, Use of Force, presents additional information on the handling of use-of-force incidents.) The new internal affairs office would include the following three essential components:

  • A central intake unit
  • Multiple vertical investigation teams
  • A disciplinary drafting unit.

The internal affairs office would have a headquarters and regional offices and would include attorneys from the former Employment Law Unit of the Department of Corrections Legal Affairs Division. The central intake unit and the disciplinary drafting unit would be located in the internal affairs headquarters office, while the regional offices would be made up of multiple vertical prosecution teams. The first task for the new internal affairs office would be to create a comprehensive internal affairs policy and procedures manual and to conduct the necessary training for the internal affairs staff.

The design and functions of the central intake unit, the vertical investigation teams, and the disciplinary drafting unit would be as follows:

  • Central intake unit.

    The central intake unit would be responsible for issuing tracking numbers and monitoring requests for investigation, serious use-of-force incidents, and complaints as required by California Penal Code Section 832.5.

    A "Request for Investigation" is a formal request to investigate an allegation of staff misconduct submitted by an authorized authority. The Central Intake Unit will process all Requests for Investigation.

    A "complaint" is an allegation of staff misconduct that violates a law, regulation, or policy; and if proven true, could result in adverse action and/or criminal prosecution. Complaints may be received from various sources: members of the public, employees, inmates, wards, families of inmates and wards, or government representatives. Complaints may be submitted to local facilities or offices. Not all complaints result in a request for investigation being submitted.

    At present the Department of Corrections does not record requests for investigation, complaints, and serious use-of-force incidents at a central location. Instead, when staff misconduct is alleged, each hiring authority makes an independent decision whether to investigate locally, refer the case to the regional Internal Affairs Office, or not investigate at all. The result is inconsistency and inefficiency in the handling of investigations, complaints, and use-of-force incidents.

    In contrast, under the new model, the new central intake unit would administer a central database that issues consecutive tracking numbers to hiring authorities (the warden, superintendent, parole administrator, health care manager, or other individual authorized to decide personnel issues) [13] for all requests for investigations, complaints of alleged staff misconduct, and serious use-of-force incidents. The same number would be used to track an incident from receipt to final disposition. The automated system should be networked for statewide data entry access. (Chapter 11, Information Technology, discusses the need for an information technology system capable of tracking requests for investigation, serious use-of-force incidents, and complaints of employee misconduct statewide.)

    The central intake unit would be responsible for monitoring the progress of the complaint throughout the process, while hiring authorities would retain responsibility for responding to and resolving complaints in their designated areas. Hiring authorities would electronically forward requests for investigation and notifications of serious use-of-force incidents to the central intake unit through the central database and would be responsible for entering information associated with complaints into the database. Complaints requiring a request for investigation would be forwarded to the central intake unit. The procedure for handling complaints is depicted in Appendix 1 to this chapter.

    Serious use of force incidents reported by hiring authorities would receive a tracking number from the central intake unit and would be assigned to subject matter experts in a regional internal affairs office for review. If, upon review of the incident, it appears that an employee action violated policy, a request for investigation would be initiated.

    All requests for investigation would be analyzed, classified, and assigned for investigation by the central intake unit. Investigations would be either assigned to a regional internal affairs office or returned to the hiring authority for local assignment. The central intake unit would monitor case progress regardless of where the investigation is conducted. The procedure for handling requests for investigation is depicted in Appendix 2 to this chapter.

    Serious misconduct cases — defined as involving allegations of criminal actions, behavior jeopardizing safety and security, or negatively impacting the departments operation or reputation — would be assigned to an internal affairs investigator at the regional level.

    Less-serious misconduct cases — behavior related to job performance, actions within the normal scope of supervisory functions, and behavior that does not pose a threat to safety and security — would be assigned to a supervisor at the local level, certified to conduct internal affairs investigations.

  • Vertical investigation teams.

    The vertical prosecution model, in which an investigator and a prosecutor are assigned responsibility for a case from inception through resolution, is used by law enforcement in the investigation and prosecution of criminal cases. The coordinated effort reduces the potential for errors and increases the possibility for successful prosecution. [14]

    The same model can be successfully applied to employee investigations. Under the vertical model, each employee investigation would be assigned to a team comprised of an attorney and an investigator. If the employee appeals a disciplinary action taken as a result of an investigation, the original case attorney would serve as the department’s advocate.

When a case is assigned to a regional vertical investigation team, the attorney and the investigator would prepare an investigative plan. The investigator would be primarily responsible for conducting the investigation with support from the attorney.

    When a case is assigned locally, a local investigator/supervisor and a regional team would be assigned simultaneously. The local investigator would be responsible for conducting the investigation with oversight provided by the regional team.

    At the conclusion of the investigation, the attorney from the assigned regional vertical investigation team would become responsible for preparing a statement of facts — a summary of the evidence gathered during the investigation. The investigation and statement of facts would then be forwarded to the hiring authority. The hiring authority would be responsible for determining whether the evidence supports or refutes the allegations, determine the findings of the investigation, and assess discipline if necessary.

  • Disciplinary drafting unit.

    If the hiring authority determines that the facts support the allegations and warrant discipline, he or she will assess a penalty using a penalty matrix. The penalty matrix would specify uniform sanctions for various types of misconduct to provide a consistent method for applying staff discipline. The matrix should allow the hiring authority latitude to impose a penalty within a range, based on mitigating or aggravating factors. Any deviation from the prescribed range should require documented justification. The matrix would also serve as a tool to educate employees regarding the consequences of misconduct.

    After designating the penalty using the matrix, the hiring authority would request that the disciplinary drafting unit prepare the proposed disciplinary action. The disciplinary drafting unit would prepare all documents to ensure quality control and uniformity. The drafted action would then be given to the hiring authority for service to the employee.

The employee discipline process.

The Office of the Inspector General found that the Department of Corrections does not monitor or evaluate disciplinary cases appealed to the State Personnel Board that are settled before hearing. Employees involved in the internal discipline system lacked the knowledge and skills necessary to navigate the Adverse Personnel Action process.[15] During a forum held on April 1, 2004, state prison wardens likewise told the Corrections Independent Review Panel that they had never received training in the responsibilities of hiring authorities with respect to pre-disciplinary hearings and the adverse action settlement process.

The staff disciplinary process includes the following elements:

  • Predisciplinary hearing.

    Pursuant to Skelly vs. State Personnel Board (1975), employees are afforded the right to a pre-disciplinary hearing during which the employee may present information in an effort to reduce or eliminate the proposed discipline.[16] To improve the staff disciplinary process, the new Department of Correctional Services should establish clear policies and procedures for conducting pre-disciplinary hearings. The policy should clearly define the criteria for modifying a penalty and should require justification for any penalty modification to be thoroughly documented.[17]
  • Settlement negotiations.

    Similarly, policies and procedures should be developed to ensure that settlement of staff disciplinary matters is fair and equitable. The policy should clearly define criteria for determining whether the settlement is appropriate based upon independent case factors and the application of the penalty matrix. The department should require the hiring authority to confer with a department attorney before stipulating to a settlement.
  • Employee disciplinary appeal process.

    The existing employee disciplinary appeal process is costly and ineffective. Under the present process, Department of Corrections and California Youth Authority employee disciplinary actions can be appealed to the State Personnel Board for final action, where a large percentage are overturned. In fiscal year 2002-03, the Department of Corrections paid the State Personnel Board approximately $1.3 million in appeal hearing fees.[18] In 2002, more than 60 percent of the Department of Corrections and California Youth Authority actions decided by the State Personnel Board were either revoked or modified.[19]

    The inability of the Department of Corrections and the California Youth Authority to take disciplinary action against employees found to have engaged in misconduct undermines the credibility of the departments’ commitment to requiring appropriate conduct and fosters the perception that misconduct is accepted.[20]

    A more effective employee disciplinary appeal process would eliminate appeals for lower level penalties, such as short-term suspensions and letters of reprimand, and replace the State Personnel Board appeal process with an internal employee discipline appeal panel. The internal employee discipline appeal panel should consist of designated department managers and one member selected by the Civilian Corrections Commission. Panel members would be trained in the consistent application of discipline.

Information technology.

At present, the Department of Corrections lacks a central processing and tracking system for complaints, use-of-force incidents, and investigations. As a result, the department must query multiple databases and manual records when responding to requests for information relative to complaints, serious use-of-force incidents, and investigations.

Needed is a comprehensive database to collect data associated with complaints against employees, serious use-of-force incidents, employee investigations, and staff disciplinary actions. The purpose of the data management system would be to provide a complete account of case activity from start to finish. The system should be capable of formatting information contained in the database into real-time reports for specific audiences. The data should be managed and accessed based on rules governing personnel practices. Due to confidentiality requirements associated with the data, the internal affairs office should administer and monitor the database.

  • Complaints against staff.

    As a component of the data management system, all complaints of employee misconduct would be recorded, properly assessed, and accounted for. All complaints should be tracked to final disposition to include referrals for investigation.
  • Employee investigations.

    As a second component of the new data management system, all facets of the staff investigation and discipline process should be tracked. The system should allow real-time monitoring, statewide networking capabilities, and an early warning signal to ensure statutory time limits are met. To improve training and performance objectives and to signal the need for revision of regulations and policies, the system should include trend analysis abilities to identify areas of concern. The database should allow designated employees from all regions to electronically send requests for investigation and enter staff complaints.

    In addition to general case tracking information, the system should include the following:

    • Standard misconduct codes;
    • Case progression dates;
    • Real-time case status;
    • Final case disposition and action;
    • Prosecution referrals and dispositions;
    • Total investigative case hours;
    • Cases associated with the same incident; and
    • Investigations identified as criminal or administrative.

Website and toll-free hotline.

The employee investigation and discipline system should include an internal affairs website to provide employees and the public with information relative to the complaint and investigative processes. The website should include the following:

  • A toll-free number for reporting misconduct to the internal affairs office;
  • Telephone numbers of regional offices;
  • The employee code of ethics and code of conduct;
  • The penalty matrix;
  • Monthly summary of adverse actions; and
  • Links to related sites, such as the Department of Fair Employment and Housing and the Bureau of State Audits.

Public reports.

The employee investigations and discipline system should include a published quarterly summary report of adverse actions taken in order to reinforce consistent application of penalties. The transparency of the disciplinary process can also serve as a training tool to emphasize proper employee conduct and can help to restore public and employee confidence in the integrity of the system.

Staffing and training.

Staffing for the internal affairs office would come from the internal affairs units of the Department of Corrections and the California Youth Authority and would be based upon past investigative caseload and existing resources. All employees would be trained in the causes for adverse action and related penalties. Training would occur at the academy or during initial employee orientation, with annual refresher training conducted locally.

Recommendations

The Corrections Independent Review Panel recommends that the new Department of Correctional Services take the following actions to improve the employee investigation and discipline system:

  • Merge internal investigation and staff discipline functions for all Department of Correctional Services divisions into one-full-service internal affairs office reporting directly to the Secretary.

  • Establish clear policies and procedures to govern internal affairs investigations, the pre-disciplinary hearing process, settlement negotiations, and employee disciplinary appeals.

  • Establish a central intake unit responsible for assessing all requests for internal investigations, complaints of staff misconduct, and serious use-of-force incidents.

  • Implement a vertical investigation team model for all internal affairs investigations.

  • Establish a disciplinary drafting unit responsible for developing a penalty matrix and preparing all written notices of disciplinary action.

  • Provide training to hiring authorities and attorneys in procedures governing internal investigations, the Skelly hearing process, settlement negotiations, and the staff disciplinary appeal process.

  • Replace the existing State Personnel Board appeal process with an internal employee discipline appeal panel.[21]

  • Create a central database to record and track all allegations of staff misconduct.

  • Create a central database to record and track serious use-of-force incidents.

  • Establish a central database to track all facets of the employee investigation and discipline processes.

  • Establish an internal affairs information website and a toll-free hotline for reporting misconduct.

  • Publish quarterly adverse action summaries.

  • Provide initial and annual training to all employees in causes for adverse action and related penalties.

Appendix 1

Proposed Complaint Process

Appendix 2

Proposed Investigative Case Activity Flowchart


Endnotes

[1] Briefing Paper, California State Senate, Committee on Government Oversight, Senate Select Committees on Government Oversight and the California Correctional System, (Sacramento, California, January 16, 2004), p. 2.
[2] United States District Court for the Northern District of California, Madrid Special Master’s Report Re Department of Corrections “Post Powers” Investigation and Employee Discipline, by John Hagar (San Francisco, California, January 15, 2004), p. 69.
[3] California State Senate, Committee on Government Oversight, “State Employee Discipline and the Personnel Board,” Sacramento, California, March 22, 2004, p. 3; 8.
[4] Office of the Inspector General, “Review of the Employee Disciplinary Process, California Department of Corrections,” Sacramento, California, March 2002.
[5] Ibid., p. 3.
[6] Office of the Inspector General, “Special Review of the Office of Investigative Services, California Department of Corrections,” Sacramento, California, October 2001, p. 2.
[7] Office of the Inspector General, Review of the Employee Disciplinary Process, California Department of Corrections, Sacramento, California, March 2002, p. 4.
[8] Stephen A. Jennings, Assistant Chief Counsel (Acting), Employment Law Unit, Legal Affairs Division, California Department of Corrections, memorandum to Joyce Hayhoe, Deputy Secretary (Acting), Legislation, Youth and Adult Correctional Agency, December 18, 2003.
[9] U. S. District Court for the Northern District of California, Madrid Special Master’s Report Re Department of Corrections “Post Powers” Investigation and Employee Discipline, by John Hagar, San Francisco, California, January 15, 2004.
[10] Briefing Paper, California State Senate, Committee on Government Oversight, Senate Select Committees on Government Oversight and the California Correctional System, (Sacramento, California, January 16, 2004), p. 1, 2.
[11] California Department of Corrections, In Response to Special Master’s Draft Report Regarding “ Post Powers” Investigations and Employee Discipline, February 2004, p. 1.
[12] California State Senate, Committee on Government Oversight, State Employee Discipline and the Personnel Board, Sacramento, California, March 22, 2004, pp. 3, 8.
[13] California Government Code Sections 19050, 19572 and 19574; California Code of Regulations, Title 2, Division 1, Chapter 1, Subchapter 1, Article 1, Section 3.5.
[14] W. Spelman, Repeat Offenders. Police Executive Research Forum: Washington, D.C., 1990.
[15] Office of the Inspector General, “Review of the Employee Disciplinary Process, California Department of Corrections” March 2002, p. 4.
[16] Skelly v. State Personnel Board (1975) 15 Cal. 3d 194, 215, 124 Cal. Rptr. 14, 28-29.
[17] California Department of Corrections, Operations Manual, Section 33030.11.
[18] California State Senate, Committee on Government Oversight, State Employee Discipline and the Personnel Board (Sacramento, California, March 22, 2004), p. 3.
[19] Ibid., p 5.
[20] Ibid., p. 8.
[21] This recommendation would require a state constitutional amendment and is discussed further in the Appendices to this report under Implementation, Legal Considerations and Appendices.