W. Va. Code R. § 81-10-8 - Employee Rights and Conduct During an Internal Investigation

8.1. Prior to questioning an employee in connection with an internal or administrative investigation, the investigator shall apprise the employee of the nature of the allegations in the complaint, the name of the investigator assigned to the case, and the names of all persons present during the interview session.

8.2. The investigator, at his or her discretion, shall conduct interviews at reasonable times and places.

8.3. The investigator shall conduct the interview while the employee is normally on-duty unless the employee agrees to participate in an interview while off-duty. In cases where the OIC determines that the allegations involve extremely serious matters of public interest or allegations which may bring the State Police into disrepute, the employee may be questioned during off-duty or non-waking hours. This shall not apply in instances where the Superintendent has placed the employee on administrative or other leave pending the outcome of the investigation.

8.4. The investigator shall digitally record on either audio and/or video all interviews with the employee who is the subject of the investigation. In the case of a minor complaint, a handwritten statement or letter from the employee who is the subject of the investigation may be sufficient. The investigator will not summarize or paraphrase the interview in lieu of a recorded statement. The investigator shall not permit conversations "off the record" unless the employee agrees and the record reflects when the conversation goes off the record, the purpose for doing so, and the time. All recordings made pursuant to this section shall become an exhibit included in the case file. The OIC may have the recordings transcribed and the transcriptions shall become a part of the case file. Copies of the original recordings or transcriptions shall be made available only to the employee who made the statement with the understanding that the employee shall not disclose the contents of either, unless the employee is required to disclose the contents as a means of defending himself or herself. Any breach of this procedure is an offense that may subject the employee to disciplinary action.

8.5. An employee questioned in connection with an internal investigation has no right to counsel and no right to avoid self-incrimination. An employee may consult with legal counsel prior to or following an administrative interview. Employees who are either subject to or questioned in connection with an internal investigation shall answer all questions truthfully, file written reports as ordered by the Superintendent or OIC and testify in administrative hearings. Employees are required to cooperate fully with the investigators in all phases of any internal investigation.

8.6. The investigator shall advise employees subject to an internal investigation of the "Administrative" or "Garrity" warnings, contained on West Virginia State Police form #173. The investigator shall read the provisions of the form into the recording of the interview. The investigator and the employee shall sign the acknowledgment section of the form. The investigator may give a copy of the warning form to the employee, but the original form shall be retained by the investigator and included as an exhibit in the case file.

8.7. During an internal investigation interview, no more than two investigators shall be present with the employee during questioning. The investigators shall not subject the employee to offensive language, threaten punitive action, or make promises of reward as an inducement to answer questions.

8.8. The investigator shall conduct internal investigation interviews of a reasonable duration, considering the complexity and gravity of the allegations in the complaint. The investigator shall afford the employee reasonable time away from the interview for meals and physical necessities.

8.9. The State Police shall limit the use of polygraph examinations to those cases in which the allegations are relatively serious. The investigator shall obtain approval for the use of polygraph examinations from the Superintendent or the OIC.

8.9.1. Polygraph results shall be included as additional evidence to be considered by the Superintendent, OIC, and the investigators. No conclusion should be drawn solely on the outcome of the polygraph examination. If the complainant is not an employee, no conclusion shall be drawn based upon an agreement or refusal to take a polygraph examination.

8.9.2. Investigators shall not offer polygraph examinations during the initial interview of a complainant. However, it may be mentioned as a possibility later in the investigation and may be conducted at the request of the complainant, and if the complainant is an employee, the polygraph may be ordered.

8.9.3. If the OIC determines that all leads have been appropriately pursued in cases where the complainant is not an employee, and that the offer of a polygraph examination is appropriate, the complainant will be requested to take the examination prior to the employee. If the complainant refuses to take the polygraph examination, the employee may still be required to submit to the test. When the complainant is an employee, the OIC shall determine the order of polygraph administration.

8.9.4. An employee, who is the subject of the internal investigation, may request to take the polygraph examination before the complainant. The OIC shall decide if the incident is of a serious nature and would justify modification of subsection 8.9.3. The operator shall inform the employee of the "Administrative" or "Garrity" Warnings, and the employee shall sign a waiver of liability prior to the administration of the polygraph examination.

8.9.5. The Superintendent, at his discretion, may dismiss from employment any employee who refuses to take a polygraph examination when so ordered.

8.9.6. Questions used in the polygraph examinations shall be pertinent to the subject of investigation except that the polygraph examiner may utilize control questions as may be necessary to validate an examination within the scope of acceptable polygraph procedure.

8.9.7. Employee polygraph examination results are confidential and shall be available only to the employee, the Superintendent, the OIC, the investigator, and grievance evaluators participating in the State Police employee grievance procedure.

8.9.8. State Police polygraph operators shall be used for internal investigations. The Section shall not use one operator exclusively when multiple operators are available.

8.10. As part of an internal investigation, an employee who is the subject of the investigation may be required to:

8.10.1. Submit to medical or laboratory examinations;

8.10.2. Submit to a chemical test of his or her breath for the purpose of determining the alcoholic content of his or her blood;

8.10.3. Be photographed;

8.10.4. Participate in a line-up;

8.10.5. Submit financial disclosure statements. No employee shall be required or requested to disclose any item of his or her property, income assets, source of income, debts or personal domestic expenditures, including those of any member of his or her family or household. Provided, That disclosure of financial information may be required if the information is necessary in investigating a possible conflict of interest with respect to the performance of his or her official duties, the disclosure is required by law, or the information is related to an investigation;

8.10.6. Submit to psychological examinations; or

8.10.7. Submit to searches of any State Police supplied equipment and any personal items stored within that State Police equipment by an employee or any State Police equipment secured by a lock owned by an employee. State Police equipment includes, but is not limited to, vehicles, lockers, desks, cabinets, computers, and any electronic devices.

8.11. The OIC may require an employee to submit to an examination or test when the examination is specifically directed and narrowly related to a particular internal investigation being conducted. The requirement shall not apply if it conflicts with current applicable law. An example of the use of this process would be in the determination of drug use by an employee. An examination might also be required to determine an employee's fitness for duty when there is cause to believe an employee suffers from excessive weight, apparent intoxication, alcoholism, or psychological problems.

8.12. As a part of an internal investigation, the State Police shall, to the degree possible, protect an employee from exposure to the news media with or without the employee's written consent. The State Police shall not, pursuant to an internal investigation, release an employee's home address, home/cellular telephone number, or photograph without the employee's consent.

8.13. Upon completion of the investigation and review by the OIC and the Superintendent, the OIC shall notify the employee who is the subject of the investigation that the investigation is complete. If no disciplinary action is proposed against the employee, the OIC shall inform the employee of the results, and the matter shall be closed. If disciplinary action is proposed and authorized by the Superintendent, the employee shall be provided the Superintendent's Notice of Intent to Discipline. The notice shall include a written statement detailing the charges attendant to the disciplinary action with appropriate citations to codes, policies, procedures, or accepted operating practices where applicable. Upon receipt of the Superintendent's Notice of Intent to Discipline, the employee shall indicate on the notice whether he or she requests a pre-deprivation hearing and a copy of the case file, or whether he or she waives his or her right to the pre-deprivation hearing. If the employee waives his or her right to the pre-deprivation hearing, he or she shall also waive his or her right to a copy of the case file.

8.14. When the employee indicates on the Superintendent's Notice of Intent to Discipline that he or she requests a pre-deprivation hearing and a copy of the case file, the OIC shall create a copy of the case file and provide notice to the employee of the availability of the copy of the case file. The copy provided to the employee shall exclude all identifying information of any person requesting to remain confidential, and the copy shall exclude all recommendations of charges, disposition, or punishment. The employee shall sign a receipt indicating he or she received the case file material and execute a confidentiality agreement with the State Police agreeing to not disclose any of the material contained in the case file for any purpose other than to defend himself or herself. An employee who violates the confidentiality agreement may be subject to disciplinary action.

8.15. The OIC shall schedule the pre-deprivation hearing before the Superintendent. The pre-deprivation hearing shall occur not less than 10 days after the OIC provided notice to the employee of the availability of a copy of the case file regardless of when the employee takes possession of the copy of the case file. Following the pre-deprivation hearing, the Superintendent shall issue his or her decision.

8.16. A member may seek redress for any adverse disciplinary action through the West Virginia State Police Grievance Procedure, 81 CSR 8. Civilian employees may seek redress for an adverse disciplinary action through the West Virginia Public Employees Grievance Procedure, W. Va. Code § 6C-2-1 et seq. Probationary members of the State Police as defined in W. Va. Code § 15-2-21 et seq. and civilian employees during the first six months of employment shall have no right to grieve any disciplinary action issued by the Superintendent through the respective grievance procedures.

8.17. If a criminal investigation is initiated by the State Police or another law enforcement agency regarding the allegations or events referenced in the complaint filed against a State Police employee, any information obtained from that employee pursuant to an "Administrative" warning given to that employee during the internal investigation of that complaint shall not be available to the criminal investigators unless the employee was apprised of and waived his or her constitutional rights as detailed in the State Police Miranda Warnings Form.

Notes

W. Va. Code R. § 81-10-8