By Gordon E. McQuillen, WPPA Director of Legal Services
It is bound to happen in every officer’s career – some citizen files a complaint against the officer, alleging that he or she did something wrong to the citizen. Most officers – even the most experienced – can find these kinds of complaints to be very disconcerting. However, a knowledge of what will ensue following the filing of a complaint can help to defuse most situations.
There are several things every officer should know to protect him or herself when the inevitable occurs. First, all law enforcement officers from every rank should make themselves aware of their respective agency’s citizen complaint procedure.
Wisconsin law requires that each law enforcement agency have a written procedure for processing and resolving complaints concerning the conduct of a law enforcement officer employed by the agency. Wis. Stat. § 66.0511(3) provides the following:
Citizen Complaint Procedure. Each person in charge of a law enforcement agency shall prepare in writing and make available for public scrutiny a specific procedure for processing and resolving a complaint by any person regarding the conduct of a law enforcement officer employed by the agency. The writing prepared under this subsection shall include a conspicuous notification of the prohibition and penalty under s. 946.66.
Despite the fact that every agency is supposed to have such a procedure, our experience teaches that many – perhaps most – agencies do not, in fact, have a citizen complaint procedure or, if they do, that it is woefully out of date. Officers should encourage their departments to develop such a procedure as part of the department’s standard operations. Readers of this article should inquire as to whether their departments do have a procedure and whether it comports with the law.
This citizen complaint procedure must be made available to the public in a written form. The written policy must also include a “conspicuous” notice that a false complaint of police misconduct is subject to a Class A forfeiture under Wis. Stat. § 946.66. The statute provides in relevant part: “Whoever knowingly makes a false complaint regarding the conduct of a law enforcement officer is subject to a Class A forfeiture.”
In the absence of a written complaint procedure, citizens who file complaints – and the officers about whom complaints are made – are left wondering how the complaint will be processed by the department. However, what usually follows the filing of a citizen complaint is an interdepartmental investigation into the alleged wrongdoing by the officer. Depending on the severity of the wrongdoing alleged, the investigation may be kept inside or may be placed in the hands of an outside agency.
No matter who does the investigation, the officer facing internal investigation has the rights set out in Wis. Stat. § 164.02 to be informed of the nature of any investigatory interview and to be provided with representation upon request during the interview. Of course, the WPPA recommends that every officer who is the subject of an internal investigation ask for association representation at every phase of the process. It is essential that officers who are the subject of citizen complaints be truthful during all stages of the investigation. Not only will this truthfulness serve the officers’ interests but also it will serve the interests of the public.
Following an internal investigation, the citizen complaint will either be sustained or rejected. If it is sustained, then the department usually will take some corrective action against the officer. Most citizen complaints, in our experience, are rejected, or dealt with summarily with very low level corrective action. However, the citizen whose complaint has been rejected, or feels dissatisfied with the department’s disposition of the complaint, has the option of filing a complaint with the employing agency pursuant to either Wis. Stat. § 62.13 for city officers (or corresponding statutes for town and village officers) or Wis. Stat. § 59.26 for deputy sheriffs in most counties (other counties have a variation of civil service, but the principles found in Wis. Stat. § 59.26 still apply).
If the citizen chooses to proceed against the officer, the complainant becomes the prosecutor. At that juncture, either an attorney provided by the employer or one provided by the WPPA, if appropriate, will represent the officer. Following a hearing on such a complaint, the reviewing body acting under one of the statutes mentioned above will determine whether the citizen’s complaint has validity. It is our experience that a properly investigated citizen complaint almost never leads to disciplinary action if the employer already has rejected the complaint.
Officers who are the subject of citizen complaints should keep their association representatives informed as to the progress of the agency’s handling of the complaint. Be certain that the WPPA business agent is aware of the complaint and its disposition. If the need arises, the business agent will contact the WPPA Legal Department.
Should a citizen file a complaint regarding your conduct, it is important that you contact your local union president or WPPA business agent. Your business agent should be kept apprised of the circumstances of the complaint. As always, it is important to get your business agent involved earlier in the process, rather than later.