4-9 Internal Affairs

Policy Type: Local

Responsible Office: Chief of Police, Virginia Commonwealth University Police Department

Initial Policy Approved: 11/29/2013

Current Revision Approved: 9/9/2021

General

The purpose of this directive is to describe the department’s internal affairs function, which rests with the VCU Police Investigations Division. The Investigations Division may conduct investigations of allegations of improper action and/or employee misconduct.

Accountability Statement

All employees are expected to fully comply with the guidelines and timelines set forth in this written directive. Failure to comply will result in appropriate corrective action. Responsibility rests with the division commander to ensure that any policy violations are investigated and appropriate training, counseling and/or disciplinary action is initiated.

Procedures

All complaints, including anonymous complaints, of misconduct or illegal behavior against the VCU Police Department or its employees, shall be documented and investigated.
Supervisors will generally process officer complaints, tardiness, insubordination, and similar circumstances of a less serious nature that do not require a formal investigation.
The responsibility for internal affairs investigations is vested within the Investigations Division, under the direct supervision of the Assistant Chief of Police and the Chief of Police. These matters shall be investigated by the Investigations Division’s sergeant and one investigator.
Due to the nature of the internal investigations, the Investigations Division has the authority to report directly to the Chief of Police regarding these matters.
Before being assigned to an internal affairs investigative assignment, the investigator(s) shall receive appropriate training in the internal affairs' functions. Such training shall be coordinated through the Training and Education Division.
The internal affairs function of the Investigations Division may include all of the following types of investigations:
1. Formal complaints alleging misconduct against a member of the department
2. Allegations or suspicion of criminal conduct by a member of the department
3. Allegations or suspicion of excessive force by a member of the department
4. Any situation in which a citizen has been injured or killed by a member of the department whether on or off duty
5. Serious injury or death of a prisoner during arrest/custody procedure
6. Discharge of a firearm, other than those occurring in a training environment
7. Incidents which may result in litigation against the department
8. Other matters of a serious nature when investigation is requested by the Chief of Police
All employees must fully cooperate with the Investigations Division personnel conducting an internal investigation.
Responsibilities of the Investigations Division:
1. The Investigations Division shall coordinate and exercise staff supervision on behalf of the Chief of Police over the investigation of complaints or allegations of police misconduct against members of the department. Due to the nature of the internal investigations, the Investigations Division has the authority to report directly to the Chief of Police regarding these matters.
2. The Investigations Division will conduct criminal investigations of incidents or complaints of excessive force, or of assaults committed by police officers during the course of the officer’s official duties. The criminal investigation will be conducted in accordance with standard procedures for criminal investigations.
3. The Investigations Division will refer general complaints of rudeness, harassment, improper or unlawful arrest, failure to take necessary action and minor code of conduct violations to the affected division supervisor for further investigation, unless any of the following factors or others indicate that the Investigations Division personnel should conduct the investigation:
  1. The seriousness of the alleged violations
  2. A previous history of similar complaints against the accused employee
  3. The inability of the affected division supervisor to conduct the investigation
4. The Investigations Division will conduct administrative investigations of excessive force complaints/incidents at the conclusion of any corresponding criminal investigation.
5. The Investigations Division shall immediately notify the Chief of Police of any complaints against the VCU Police Department that allege serious misconduct, involve the integrity of the department, or when police personnel are accused or suspected of violations of the law. Complaints of a serious nature that are reported after business hours shall be reported to the Chief of Police.
6. The Investigations Division may conduct an investigation at the request of any member of the department who feels threatened, in any substantive manner. Such persons are authorized to report their situation directly to the on-call Assistant Chief of Police without reporting to their immediate supervisor.
7. The Investigations Division will conduct fact-finding investigations as directed by the Chief of Police.
8. The Investigations Division will conduct prompt and diligent investigations into discrimination complaints that cannot be appropriately addressed at the immediate supervisor level.
9. The Investigations Division shall complete internal investigations as soon as practical from the date of assignment, not to exceed 30 business days, except when the affected commander grants an extension due to extenuating circumstances. Should the investigator require an extension, they shall make a request, through appropriate channels, to the affected commander who will determine the provisions of the extension.
10. Maintain a complaint register of consecutively numbered complaints or allegations of misconduct received by the division.
11. Maintain appropriate records of investigations and ensure security thereof in accordance with statute and department policies.
12. Review all completed investigations and periodically conduct analyses to identify problem areas and patterns of misconduct, and recommend necessary training to correct any identified problems to the Training and Education Division Sergeant, through the Assistant Chief of Police.
13. Verify, in writing, the receipt of each complaint with the complainant.
14. Prepare an annual statistical summary of internal affairs investigations to be provided to the Chief of Police and the Records Manager for accreditation purposes. The internal affairs summary is incorporated into the annual bias-based profiling review that is posted to the department’s publicfacing website.
15. Screen all completed complaint investigations to identify those that may result in potential civil liability and/or media attention, and immediately notify the Chief of Police of such investigations.
16. Maintain and disseminate data to command personnel that will assist them with imposition of or recommendation for uniform corrective action.
17. All internal investigations conducted by the Investigations Division shall, after review by the Chief of Police, be forwarded to the appropriate division supervisor for endorsement by supervisors and disposition. No recommendation concerning disciplinary action will be made by the Investigations Division personnel.
18. After a final disposition is reached and appropriate action is taken concerning a complaint or disciplinary investigation, the complete file will be forwarded, to the Chief of Police.
  1. Upon receipt of the completed file, the written notice shall be forwarded to the Personnel Manager for inclusion in the affected employee's personnel folder.
  2. The complaint shall be maintained and indexed by the employee's name, complainant's name, date of offense, nature of offense and disposition, and placed in the file cabinet located in the Captain of Support Services’ office.
19. The following retention periods apply to the records of internal affairs cases:
  1. Those cases not investigated (allegations that do not violate policy) currently on file will be retained for five years before destruction.
  2. Sustained cases will be retained for ten years and saved electronically in accordance with Library of Virginia standards. Those not sustained, unfounded, and closed exception cases will be retained for five years before destruction.
  3. All investigations and reports relating to complaints, discharge of firearms, and use of force are also prepared for the express purpose of providing a confidential, factual record that will assist in the defense of civil and administrative litigation involving the department or its personnel, and shall be available to the Attorney General’s Office upon request from the Attorney General or any deputy or assistant Attorney General for this purpose.

Specific Procedures and Responsibilities

Investigation and Interviewing of Employees – Responsibilities of the Investigator:
1. Notify the affected employee(s) of the investigation, as soon it can be reasonably accomplished without compromising the investigation, by completing the Internal Affairs Investigation Notification Form.
2. Complete the Complainant Confirmation letter providing the name and phone number of the investigating supervisor and mail it to the complainant. The employee shall receive a copy of the Report of Alleged Misconduct Form, a copy of the rights available to them, and their responsibilities relative to the investigation from the assigned internal affairs investigator. Investigations must retain a copy of the letter to include in the complaint package. When applicable, the employee may submit their response relating to the incident or allegation to the Investigator via email or utilize the VCUPD-7B Internal Affairs - Officer Statement form.
3. Designate a reasonable time and place to conduct the investigative interview. When practical, it shall be done when the employee under investigation is working their normal shift.
4. Ensure that interview sessions are for reasonable periods that allow for personal necessities and rest periods.
5. Inform the employee/interviewee of the investigator’s name and rank, the identities of any other individuals present during the interview, and the nature of the investigation.
6. Use the Administrative Proceeding Rights Form to notify the employee of the administrative nature of the interview and to advise them of their rights and responsibilities during the investigation.
7. If the employee asks about legal counsel, advise them that employees do not have the right to be represented by legal counsel during interviews designed to gather information for administrative purposes only, but that the employee’s attorney may be present for observation only, and that any interference by the attorney will be the responsibility of the employee and will not be allowed.
8. Do not require or request the employee to disclose any item of their property, income assets, source(s) of income, debts or personal or domestic expenditures, including those of any member of their family or household, unless such information is necessary in investigating a possible conflict of interest with respect to the performance of their official duties, such disclosure is required by law, or such information is specifically, directly, and narrowly related to their performance of duty and/or fitness for duty.
9. Require the employee to submit to a medical or laboratory examination, participate in a photo array or be photographed when such activity is specifically, directly, and narrowly related to their performance of duty and/or fitness for duty
10. Provide periodic, written status reports to the complainant if the investigation exceeds 30 business days. These status reports shall be completed every 30 business days in order to keep the complainant informed of the progress of the investigation.
11. Prepare an investigative report using the established format.

Adjudication of Complaints

The Chief of Police or designee will adjudicate all investigations, with a final disposition for each allegation classified as one of the following.
1. Founded – The preponderance of the evidence supported that the alleged conduct did occur and the actions of the officer(s) violated department policies, procedures and/or training
2. Unfounded – No verifiable factual basis for the complaint
3. Not Sustained – The allegations cannot be proven true or untrue by a preponderance of the evidence
4. Exonerated – The conduct at issue occurred but is not a violation of department rules
The Investigations Division will send a letter to each employee who has been investigated, advising of the disposition of the investigation, within seven (7) days of receipt of the final disposition from the Chief of Police or their designee.
The employee’s supervisor will deliver the notification letter to the employee and have the employee sign a duplicate copy. The supervisor will return the copy to the Investigations Division for filing purposes.

Employee Cooperation with Investigations

Officers who are the subject of an Internal Affairs investigation shall be afforded all rights granted by Law Enforcement Officers Procedural Guarantee Act (Va. Code § 9.1-501 through § 9.1-507).
Laboratory Testing, Polygraphs, Medical Examinations, Financial Disclosure Statements and Photographs – Employees shall submit to any medical, ballistics, chemical or other tests, photographs, or photo arrays. All procedures carried out under this subsection shall be specifically directed and narrowly related to a particular internal investigation being conducted by the department, under the direction of the Chief of Police or their designee.
1. An employee may be compelled to submit to a polygraph examination for purposes of an internal investigation concerning allegations of misconduct or criminal activity.
  1. An employee shall not be ordered to submit to a polygraph exam if they are the subject of a criminal investigation. Only if the employee is given Miranda warnings and then consents, should a polygraph be given in a criminal case.
  2. The complainant and employee will be offered the polygraph equally, and the examination of the complainant will be conducted first, when possible. Such examinations will be conducted by a qualified examiner in accordance with the standards and rules of the American Polygraph Association.
  3. When an employee is ordered to submit to a polygraph exam, the questions asked must be directly related to the matter under investigation.
  4. Frequently a citizen complains of abuse by an employee, but there are no witnesses or other outside evidence, and the employee denies the offense. In a situation lacking independent witnesses, there may be no more reason to suspect the employee of lying than to suspect the complainant of doing so. In such cases, it may be unfair to require the employee to submit to a polygraph, unless the complainant is also willing to submit. Just as a criminal suspect may not refuse to give “non-testimonial” evidence against themselves, an employee in an internal investigation may be required to give such evidence. The only restriction is that the evidence must be related to the particular investigation.
2. Any employee may be required to submit to laboratory testing to resolve an allegation against said employee when such testing is specifically directed and narrowly related to a particular internal affairs investigation being conducted by the department. Laboratory testing may include chemical/quantitative analysis of the employee's blood, breath and/or urine or other body fluids as deemed appropriate within the context of said investigation. Allegations of misconduct which would normally be considered as warranting laboratory testing may include, but are not limited the following:
  1. Allegations of on-duty intoxication through use of alcoholic beverages and/or illicit drugs and/or impairment due to ingestion of prescribed medication.
  2. Allegations of off-duty ingestion of illicit drugs.
  3. Allegations of sexual misconduct relative to an exchange of body fluids.
    1. NOTE: In all cases, results of laboratory testing, positive or negative, will be included in the completed internal affairs investigation report.
3. Employees may be required to submit to having their photograph taken as part of an internal affairs investigation when such actions are considered material to such investigation. Such instances may include when:
  1. It is necessary for witness identification that a photograph comparison be conducted.
  2. A photo array is considered to be beneficial to substantiate or refute specific charges.
  3. A photograph is considered appropriate to document physical injuries (or absence of injuries) evident immediately following a material allegation.
  4. Similar incidents when a photograph could be considered as an appropriate means to prove or disprove a specific allegation.
  5. An employee may be required to submit financial disclosure statements as part of an internal affairs investigation when such disclosure may be considered material and relevant to a particular investigation. Investigations which may warrant financial disclosure include allegations of theft of significant amounts of monies or valuables properties or the use or sale of narcotics. Incidents as deemed appropriate and which would prove or disprove a specific allegation may also require financial disclosure.

Criminal Offenses

The Executive Assistant to the Chief of Police and/or investigating supervisor shall immediately report complaints alleging a criminal act to the Chief of Police.
The Chief of Police will assign a member of the Investigations Division to investigate the alleged criminal offense.
The Chief of Police shall be kept apprised of the progress of the criminal investigation. When applicable, the Chief of Police will advise the investigator to notify the Commonwealth’s Attorney’s Office regarding the criminal investigation of an employee.
The investigator shall notify the Chief of Police when the criminal investigation has been completed and the investigator will then conduct any additional administrative investigations.
Per the Code of Virginia § 19.2-201, the Chief of Police shall provide to the attorney for the Commonwealth access to all records, including police reports, disciplinary records, and internal affairs investigations, relating to wrongful arrest or use of force complaints, or other complaints that a person has been deprived of the rights, privileges, or immunities secured or protected by the laws of the United States and the Commonwealth made against a law enforcement officer who is employed by VCU Police. Access shall be granted to the attorney for the Commonwealth to such records whenever a law enforcement officer is a potential witness in a pending criminal matter or criminal investigation related to the performance of his duties as a law enforcement officer.
1. The Chief of Police or their designee may redact any incriminating statements made by a VCU Police law enforcement officer or a department member during an internal affairs investigation or be otherwise used to prosecute such law enforcement officer. Any redactions made by the Chief of Police or their designee may be challenged by the attorney for the Commonwealth in an ex parte hearing before a circuit court judge.
2. Any information protected by the federal Health Insurance Portability and Accountability Act (HIPAA) shall not be disclosed under this subsection.

Internal Affairs Records

Any and all records of internal investigations shall be securely maintained to safeguard the confidentiality of all parties to a complaint. To this end:
1. Only the original report and the accompanying documents or materials will be retained and will be secured in a confidential file maintained by the Internal Affairs investigator.
2. No one shall be allowed access to these files without authority from the Chief of Police or the Support Services Captain.
3. Only supervisors of the subject employee will be permitted to review or have knowledge of the investigation.
4. The subject employee is not permitted to review any portion of the report other than his or her own interview while the investigation is pending (Employees requesting a copy of their statement will be directed to the Chief of Police who will cause a copy to be provided).
Requests to gain access to materials contained in the Internal Affairs files will be made in writing to the Chief of Police.

Maintenance of Records

The Investigations Division shall maintain reports and records of all internal investigations involving police employees. An electronic, consecutively numbered Internal Affairs Register shall be kept as the official record of internal investigations. The register shall include:
1. Investigation number
2. Date received
3. Name of complainant or requesting authority
4. Name of employee
5. Nature of investigation
6. Name of assigned investigator
7. Date investigation was completed
8. Date returned for filing
9. Disposition
A comprehensive report shall be prepared on all investigations conducted by the internal affairs investigator. This report shall include all of the following:
1. A description of the allegation and the pertinent details surrounding the alleged incident
2. A description of evidence and other information pertinent to the case
3. All statements or testimony made by persons involved in the incident
4. Any documents which may have a bearing on the investigation
5. An evaluation of the complaint, with a statement pointing out those allegations which can be proven as well as those which cannot be proven
6. A conclusion of fact
After final disposition is reached and appropriate action is taken concerning a complaint or disciplinary investigation, the complete file will be forwarded, through the appropriate chain of command, to the Chief’s Office.
1. Upon receipt of the completed file, the written notice shall be forwarded to the Personnel Manager for inclusion in the employee's personnel folder.
2. In accordance with the Library of Virginia’s Records Retention and Disposition Schedule GS-117, the following retention periods will be applied to internal affairs records, to include complaint documentation, notes, findings, and reports:
  1. Those cases not investigated (allegations that do not violate policy) currently in file will be retained for five years prior to destruction in accordance with state record destruction procedures.
  2. Sustained cases will be retained ten years and saved electronically. Those not sustained, unfounded, and closed exception cases will be retained for five years prior to destruction in accordance with state record destruction procedures.
All investigations and reports relating to complaints, discharge of firearms, and use of force are prepared, as well, for the express purpose of providing a confidential, factual record that will assist in the defense of potential civil and administrative litigation involving the department or its personnel, and shall be available to the Office of the Attorney General upon the request of the Attorney General or any deputy or assistant Attorney General for this purpose.
Pursuant to the Code of Virginia § 15.2-1705, if a law enforcement agency is hiring a lateral or prior law enforcement officer, the agency is required to request from all prior employing law enforcement agencies or jails any information:
1. Related to an arrest or prosecution, including any expunged arrest or criminal charge known to the agency or disclosed during the hiring process that would otherwise be prohibited from disclosure under Va. Code § 19.2-392.4;
2. Related to a civil suit regarding employment or performance of duties;
3. Obtained during the course of any internal investigation related to alleged criminal conduct, use of excessive force, or other official misconduct in violation of the state professional standards of conduct adopted by the Criminal Justice Services Board; and
4. Related to job performance that led to such officer’s resignation, dismissal, demotion, suspension, or transfer.
5. No applicant can be employed until the above information has been requested and received.
6. Upon receiving such a request for information from another law enforcement agency, the department is required to provide the requested information within 14 days. Therefore, information from internal affairs files must be shared with investigators from other law enforcement agencies to assist in background investigations for employment of current and former VCU Police officers. Investigators will be required to provide the Investigations Division with a copy of a signed release from the employee authorizing the release of such information.

Forms

Report of Alleged Misconduct Form
Complainant Confirmation Letter
Administrative Proceeding Rights (Garrity form)
Internal Affairs Investigation notification memo
Internal Affairs Log
Internal Affairs Request memo
Conclusion of Internal Affairs Investigation letter
VCUPD-7B Internal Affairs – Officer’s Statement

Revision History

This policy supersedes the following archived policies:

11/29/2013 - 4-9 Internal Affairs