used in criminal cases in court. They are subject to civil law and
employment laws and rules. This week, the steps in the process that
are controlled by Metro will be described.
1. The LVMPD internal investigation process begins with a Statement of
Complaint. This is normally filed by a supervisor or it can be filed
by one member of the LVMPD against another member. In can also be
filed by a citizen. An employee who is going to be the ‘subject’ of an
internal investigation learns of this by phone or through a document
called an Employee Notification of Internal Investigation. They call
us ‘subjects’ which is better than being called a suspect, I guess…
2. The LVMPD internal investigation process ends with a disposition.
There are six categories listed on the Disposition Report. Officers
are notified of the results of an investigation when they receive a
disposition report and they are supposed to meet with their
supervisors and learn about the rest of the process. The possible
dispositions are: Sustained, Not Sustained, Exonerated, Unfounded,
Misconduct Not Based on Complaint, and Policy Failure. The LVMPD has
another form called an Adjudication of Complaint. This is the form
used to convey to the officer what his/her punishment or sentence will
be after a sustained complaint.
3. Right in the middle of the process (between accusation and outcome)
is the Admonishment of the ‘subjects’ and ‘witnesses.’ The
admonishment is listed at the bottom of the Employee Notice of
Internal Investigation. It reads:
You are hereby directed to not contact any employee or persons
involved in this internal investigation until the complaint is finally
adjudicated. You may not disclose the existence of this complaint or
discuss any facts of the complaint with anyone except those persons
with designated departmental authority until the complaint is finally
adjudicated. Designated departmental authority is extended to your
representative of choice as allowed by the “Rights of Peace Officers”
statutes and the civilian collective bargaining agreement, and also
PEAP. Failure on our part to adhere to these admonishments will
subject you to discipline up to and including discharge.
Metro can intimidate employees by threatening them with discharge.
This threat is real. I’m not aware of the origins of this warning
which limits an officer’s ability to defend himself. I’m not aware as
to whether the legality of this warning has ever been challenged. It
is yet another example of Metro stacking the deck in their favor.
Imagine a suspect in crime being told who he can and can’t talk to. It
is well understood that a criminal defendant does not need to talk to
the police and that they should be talking to an attorney; either
refuse to speak to the police or immediately ask for an attorney and
all questioning will stop. During an internal investigation of a
police officer, it makes sense to tell him that he can’t talk to
others directly involved in the incident. This would be important so
that they can’t get their stories straight. It would also make sense
to tell them that they should not try to dissuade others (i.e.,
witnesses) connected to the investigation. There are some justifiable
reasons for admonishing employees. When supervisors or Internal
Affairs can handcuff an employee (without justification) then the
employee is at a huge disadvantage. What if an employee can’t get in
touch with a union representative for days after being notified of an
investigation? I’m sure employees feel like being on an island when
they are waiting to tell their story, and the date for their Internal
Affairs interview looms ahead.
What does not make any sense to me is that the LVMPD can basically
tell you that you can’t talk to your family (to get a loan for a
private attorney to fight Metro). Metro can justify telling a
‘subject’ or ‘witness’ not to talk to others INVOLVED in the
investigation… but they think they can impose a total gag order on
everything and everyone… except for two people (the union
representative and PEAP). This places the employee at a huge
I had a personal experience with this mess. I was sustained for
‘discussing an ongoing investigation.’ I realized that Captain Fasulo
was just stacking charges on me and that this charge could not
possibly have applied… but the arbitrator was apparently in a coma.
What evil had I done? I had called the officer filling in as acting
supervisor on my squad a few days after I was put on relief of duty. I
just wanted to tell him I was on relief of duty and didn’t know when I
would be back. I inquired about the squad and whether we had put out
‘ghost cars’ like we had been told.
I had never been ‘noticed’ of the statement of complaint that Captain
Fasulo had forced Lt. Walters to file against me on 7/6/11. I never
discussed any of the allegations because I did not even know what they
were!! The officer I spoke with was NOT involved in any of the
allegations against me. I wasn’t trying to dissuade him or fabricate a
defense. We don’t want accused cops to be finding ways to lie and get
away with internal misconduct, but I wasn’t doing any of this.
In reality, Metro can’t force criminal suspects to do anything… they
can talk to whoever they want to talk to… (we might, however, be
listening to their jail phone calls). Metro can use their power and
control of the internal investigation system. Just imagine how
powerful it is for the accuser (the LVMPD) to be able to intimidate
and control investigations by restricting the accused to being able to
speak to only two people? The accused officer might not even trust the
PPA or PMSA representative. He might not even be a member. He might
have other ‘representatives’ outside of Metro. He might want to speak
to senior members of the department to get advice. He might have
mentors or know attorneys who could assist him. He might need to ask
for a loan and Metro would argue that he has violated the
ADMONISHMENT! Metro charged me with this violation when it was
impossible for me to commit a violation. I spoke to my officers about
two weeks before I was given NOTICE of an investigation and before I
was ever admonished.
Metro plays this admonishment game to perfection. Employees are
deprived of the ability to fight for themselves and to defend
themselves. I don’t know how it got to this point… is there a little
agreement between the unions and the sheriff? Take another look at the
above paragraph and then try to apply it in a real situation.
Technically, you can’t even tell your supervisor that Internal Affairs
has ‘noticed’ you and that you are being investigated as a ‘subject’
officer or a ‘witness.’ The LVMPD has been able to punch and beat down
certain employees with bare knuckles. The employees have been forced
to play by a different set of rules and wear pillowcases as their
boxing gloves. Wouldn’t it be nice to see the ‘accused’ officers get
to “take the gloves off” when they defend themselves against Sheriff
Gillespie and his Internal Affairs ALL STARS?
4. The standard of proof necessary to ‘sustain’ a complaint is what
is known as Clear and Convincing evidence. This is higher than a
preponderance of the evidence but lower than proof beyond a reasonable
doubt. It is important to the members of the LVMPD to know that if
they perform their jobs properly they will not be disciplined based on
the mere tipping point of a scale. Think of the picture of ‘Lady
Justice’ where the scales are in balance (representing the power of
the state vs. the rights of individuals). The objectivity and fairness
of the system is represented by the blindfold worn by Lady Justice.
The current US Criminal Justice System developed over many years and
continues to be studied. Americans want due process and fairness and
they want their rights protected, not stomped on by someone in charge
of a half-billion dollar organization.
5. Police officers know that they will proceed through the justice
system if accused of a crime. But they also seek to achieve the
same ideals when they are investigated within their working
environment. Once sustained, their cases can go before a Discipline
Board or to Binding Arbitration rather than to a preliminary hearing
and a trial. The courts (and rules of evidence) are only involved in
rare circumstances — if an arbitrator exceeds his authority or if
there happens to be a lawsuit filed over the employment situation.
The bottom line: Internal Affairs works for the sheriff. When Internal
Affairs investigators and supervisors don’t place their loyalty to
their profession (and fairness) above loyalty to the sheriff they are
likely to do whatever it is that the sheriff (or his chain of command)
wants done. The system, as I experienced it, gives far less protection
to the employee than the court system gives to criminal suspects.
If you are LOYAL to the sheriff your career can skyrocket. Captain
Todd Fasulo is now Deputy Chief Fasulo in charge of the Clark County
Detention Center. Sergeant Kelly McMahill is ranked #1 on the new
eligibility list for promotion to lieutenant. These two people (my
accuser and my investigator) would never be able to uphold their
actions against me if they were subject to any real scrutiny. Sgt.
McMahill’s husband was on the Police Managers & Supervisors
Association (PMSA) board of directors before he was promoted to Deputy
Chief, and he was a sergeant in Internal Affairs working for Lt. Karen
Hughes when I faced the beginning of the end of my career. Hughes
accused me of reading her email; her allegations were NOT SUSTAINED
but that didn’t end her rage or her vindictiveness. I’ve concluded
that if you are LOYAL (to the sheriff) while assigned to internal
Affairs you are likely to be rewarded!
There are frequent stories in the Police Protective Association (PPA)
magazine (Vegas Beat) http://lvppa.com/vegas-beat/. The operations of
the LVMPD Internal Affairs unit is a major issue and has been for some
time. Seriously, anyone wanting to click on the link to their Vegas
Beat magazine will find many articles on IA and few of them are
complimentary. People are upset with internal investigations and
outcomes. I think it is safe to say that cops at Metro don’t trust IA.
I also saw a recent column written by John Hein in a major police
magazine. It was entitled, Building Trust In The Internal Affairs
Function. Here are some excerpts to show that this is not just an
LVMPD problem and that cops around the country are NOT always
protected by their own as in popular perception; the fact is that
“they eat their own” in some organizations:
“The integrity of any organization depends on the character and
honesty of its employees and especially its leaders… An IA
investigation is a sensitive issue with potential life changing
consequences for the subject employee, and sometimes for co-workers.
“Strong, fair and impartial leadership is essential to create an IA
activity that is trusted throughout an organization. Whether the
office conducting an employee investigation is called Internal
Affairs, Inspector General, or Office of Professional Responsibility,
it serves management and the organization as a tool to maintain and
strengthen professional conduct. The complete and unbiased
investigation of any allegation ensures fairness and reduces the
potential for misunderstanding the IA function.
“Employees may feel powerless against management …Unions may be
deceived by management, management may be frustrated by union
officials, and both, along with the rank and file may be ridiculed in
the media and criticized by the citizens served. These conflicting
interests may cause employees to feel unprotected and so they focus
resentment on the internal affairs function. An insensitive
investigator also may create a sense of unfairness by unprofessional
“In reality, the personal agendas of some participants may conflict
with the best interests of the department and negatively affect
employee professionalism and create a negative perception of the
internal affairs function.
“The next sheriff of Clark County, Nevada will have the power to
restore morale to the troops by making the changes to improve Internal
Affairs and make this unit based on credibility and not loyalty to the
Norm Jahn is a former LVMPD lieutenant, who has also served as a
police chief in Shawano, Wisconsin, and has nearly 25 years of police
experience. Jahn now contributes his opinions and ideas to help
improve policing in general, and in Las Vegas in particular, through
his weekly column in the Las Vegas Tribune.