HR Report: Police Standards and Training Conduct Review Committee

In response to increasing demands for law enforcement accountability, the New Hampshire Legislature recently adopted RSA 106-L, which establishes a law enforcement Conduct Review Committee (“CRC”) to function within the Police Standards and Training Council (“PSTC”). In creating the CRC, the legislature’s stated intent is to clearly define law enforcement misconduct, create statewide consistency in the handling of misconduct complaints, and create a process to investigate complaints that will reassure the public that complaints are taken seriously. This article highlights some of the new law’s requirements and practical tips for law enforcement agencies.

CRC members are appointed by the Governor. The Committee is composed of four (4) law enforcement members and three (3) members of the public who are not police officers, lawyers or judges, and who do not have a spouse, sibling, or parent who is a police officer, lawyer or judge. The law mandates that CRC meet at least four (4) times each year to address its responsibilities. That a majority of the CRC members will be law enforcement personnel may not provide the public with the assurances that the legislature intended. Excluding lawyers and judges (and their family members) from serving on the CRC may also undermine public confidence, as they are persons most familiar with the due process issues within the CRC’s purview.

RSA 106-L:19 requires that prior to October 1, 2023, every local law enforcement agency adopt a “valid” internal affairs policy for investigation of police misconduct complaints. “Misconduct,” as defined in RSA 106-L:2, incorporates a broad range of offenses including, but not limited to, criminal conduct, untruthfulness, discriminatory and racist conduct, excessive force and conduct that “would cause a reasonable person to doubt an officer’s honesty, fairness and respect for the rights of others.” A “valid” internal affairs policy must contain:

(a) A written policy that defines code of conduct and/or misconduct and defines the internal investigation process.

(b) A written procedure for accepting a properly filed complaint against a law enforcement officer.

(c) A written procedure to assign an investigator to conduct an investigation as determined by the written policy to determine whether an officer has committed an act or acts of misconduct.

(d) A written policy, or provisions in the applicable collective bargaining agreement, that outline for its officers the acts of misconduct enumerated in this chapter, the expectations of employment or prohibited activities of the agency, and the due process rights for its officers.

(e) Due process for the accused officer, including addressing discipline based on just cause, establishing a set range of discipline for offenses, and consideration of mitigating and aggravating circumstances.

The CRC is charged with creating a model internal affairs policy that law enforcement agencies may use as a template. That template has not yet been developed. In the interim, law enforcement agencies should consider reviewing their current internal affairs policy and amending them as necessary to conform to the statutory requirements.

RSA 106-L:20 further requires that:

The chief executive officer of a law enforcement agency shall report to the committee, through the director or designee, within 15 business days if any of the following occur in regard to a law enforcement officer of the agency:

(a) The agency has received a valid complaint of misconduct, and:

(1) That the agency is conducting, or has conducted a valid internal investigation of the allegation as defined in this chapter and in accord with their internal affairs policy;

(2) That the agency has an outside law enforcement agency conducting or has conducted a valid internal investigation into the matter as defined in this chapter; or

(3) That the agency is requesting a valid internal investigation be conducted into the matter by investigators designated by the director or the committee.

(b) The results of a valid internal investigation has resulted in a sustained finding of misconduct; or

As part of the report, the executive officer of the agency shall provide a copy of any all relevant documents associated with the valid investigation, including the agency’s investigative report, and any findings and decisions. Such documents shall not be subject to RSA 91-A, except as provided in this chapter.

Upon receipt of an investigative report, the CRC is charged with determining whether the law enforcement agency has completed a “valid investigation.” If the CRC determines that an investigation is not valid, “the committee may recommend a separate investigation be conducted by police standards and training investigators.”

It is important to note that many law enforcement agencies are unionized, with terms and conditions of employment contained in negotiated collective bargaining agreements (CBAs). CBAs typically establish a “just cause” standard for discipline, termination, and other adverse employment actions. In a just cause environment, employers cannot take adverse employment action until an employee has been given due process. In a just cause environment, due process generally entails having an investigation conducted by an unbiased investigator in a timely manner who follows the established investigatory procedures; provides the employee with notice of the allegations against them; and provides the employee with an opportunity to refute those allegations. Due process is commonly extended during the investigation process and by the ultimate decision maker before a decision is made to terminate or take other adverse action.

Selecting an appropriate investigator can be a challenge, particularly in smaller agencies or where allegations are made against a member of the command staff. Currently, it is common for agencies to seek assistance from other law enforcement agencies or investigators contracted through a non-law enforcement agency. Under RSA 106-L:20, it may be necessary to seek CRC approval before using a non-law enforcement agency investigator.

RSA 106-L:18 requires the CRC to refer complaints of an officer’s alleged criminal conduct to the Attorney General’s Office for investigation. However, the fact that the Attorney General is conducting an investigation does not excuse a law enforcement agency from conducting its own internal investigation. RSA 105:19, IV requires agencies that receive reports of misconduct to “timely conduct an investigation and reach a determination on the merits.” The interplay between the Attorney General’s investigation and an agency’s internal investigation may need to be worked out on a case by case basis.

The new law requires that all completed internal investigations be submitted to the CRC for review to determine if the agency “has conducted a valid investigation.”

Unions representing law enforcement personnel may argue that an employee should not be disciplined or terminated as a result of a completed internal investigation until the CRC has conducted its “valid investigation” review. However, where a law enforcement agency and union have negotiated a grievance and arbitration procedure which empowers an arbitrator to determine whether the employee was disciplined for “just cause,” there is a strong argument that, for disciplinary purposes, the arbitrator, not the CRC, has the ultimate authority to determine if the investigation was valid and the disciplinary action justified. Many questions are likely to arise regarding application of RSA 106-L and its interplay with RSA 105 and RSA 91-A. Employers are encouraged to contact legal counsel to discuss questions or concerns as they arise.