SEPTEMBER 2020
ADVISORY CONCERNING THE CIVILIAN OFFICE OF POLICE ACCOUliiBpW'S PRACTICE OF v-AQM IN IS1RAT|VEk? TE^M IN ATI NG " DISCIPLINARY INVESTIGATIONS^ r'
. - ? "V"recte* 1 xjghPUTY iNSPECTQwOENERAL FOR P
~ "A' "< - - , *- if i "ii 'i s V
JOSEPH M -FERGUSON INSPECTOR GENERAL
CITY OF CHICAGO OFFICE OF INSPECTOR GENERAL 740 NORTH SEDGWICK STREET, SUITE 200 CHICAGO, ILLINOIS 60654 TELEPHONE (773) 478-7799 FAX. (773) 478-3949
SEPTEMBER 10, 2020
The Public Safety section ofthe City of Chicago Office of Inspector General (OIG) conducts, on an ongoing basis, reviews of individual closed disciplinary investigations conducted by the Civilian Office of Police Accountability (COPA) and the Chicago Police Department's (CPD) Bureau of Internal Affairs (BIA). In the course of these reviews, OIG identified issues with COPA's use of "administrative termination" to conclude disciplinary investigations short of an investigative finding.
To close an investigation, COPA may use either non-finding or finding dispositions, which are laid out in COPA's Investigations Manual (the Manual).1 Despite the fact that it does not appear in the Manual, COPA uses administrative termination as a non-finding disposition. OIG found that administrative termination is ill-defined and frequently misapplied, with inconsistencies and inaccuracies in its use falling into two general categories. In the first category of cases, the criteria for use set forth in COPA's Administrative Termination Memorandum template were not met, although they were sometimes recorded as met in contradiction with the facts and circumstances ofthe investigation.7 In the second category of cases, investigations were closed via administrative termination when there were more clearly defined and closely applicable dispositions available.
OIG recommended that COPA add policies on the use of administrative termination to its Manual; establish clear and specific criteria for its use; ensure that all potentially appropriate dispositions are considered; ensure that, during supervisory review, all required criteria for administrative termination are met; ensure that the chief administrator's approval is sought when appropriate; and refrain from administratively terminating investigations based solely on the age ofthe complaint or as a means to increase case closure capacity. Finally, OIG recommended that COPA review investigations recently closed by administrative termination to ensure their dispositions were appropriate.
' The finding dispositions included in ihe Manual are "Sustained," "Not Sustained," "Unfounded," and "Exonerated " The non finding dispositions included in the Manual are "Administratively Closed/' "Closed-No Affidavit," and "Closed-Mediat.ion/ADP" The Administrative Termination Memo'nndum is a case closure document template which contains a list, ot cntena foi an acinillustrative lem^na-;on disposition
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COPA ADMINISTRATIVE TERMINAI ION ADVISORY SEPTEMBER 10, 2020
COPA agreed with many of OIG's recommendations and acknowledged that, "[i]n the past, operating practices were not as systematic and consistent as those to which we aspire." Specifically, COPA agreed that administrative termination and its associated criteria should be added to the Manual in a way that establishes clear and specific affirmative criteria for its use. COPA further agreed with the importance of closing an investigation using the most appropriate available disposition. COPA emphasized that its investigators receive "considerable training regarding the requirements of each disposition and the appropriate circumstances of its application" and are regularly provided with updated policies on the application of each disposition.
In its response, COPA described the criteria listed in the Administrative Termination Memorandum template as a "guide, not a complete list or a schedule of requirements that must all be met prior to Administrative Termination."3 This contradicts the plain language ofthe template, which states, "Criteria set forth below must be met in order to close as Administrative Termination." COPA also asserted in its written response that the chief administrator is not required to approve the use of administrative termination to close an investigation where all of the criteria were not met. This directly contradicts what OIG was told by COPA management, as well as a memorandum which COPA supplied with its response, which states that "[c]ases that fall outside ofthis criteria require Chief Administrator approval to be Administratively Terminated." These contradictions, highlighted by COPA's response and accompanying materials, underscore the need to clarify and codify the requirements surrounding the application of administrative termination.
COPA agreed in part with OIG's recommendation that administrative termination should not be used to close an investigation solely based on the age ofthe complaint or as a means to increase case closure capacity, but detailed circumstances under which COPA believes it might be appropriate to do so. Specifically, COPA stated that it must make "[difficult decisions about which investigations are deserving of [its] limited resources." Thus, certain cases that "may have an indicia [sic] of misconduct, but. are unlikely to produce an affirmative finding, such that pursuit ofthe matter would misapply finite resources and manpower" are proper subjects for administrative termination. (Emphasis omitted). Additionally, COPA outlined its views on the use of administrative termination in the investigation of incidents which occurred more than five years in the past. In such circumstances, the superintendent's approval is required to proceed with an investigation; COPA stated that administrative termination is appropriate when "COPA sought and obtained Superintendent approval to proceed with [the] investigation, but its efforts ultimately indicated an inability to reach an affirmative finding " Finally, COPA agreed to audit
Along wilh us response. COPA pioviclecl to OIG a memorandum dated October 25, ?018. which outlines the criteria for the use of adrninistrat ive termination i his memorandum is ambiguoiis as to whether these criteria must oe met or aie simply a guide
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administratively terminated investigations to ensure that the most appropriate disposition was utilized when closing them.
The Public Safety section's advisory to COPA is attached in Appendix A. COPA's response is attached in Appendix B. OIG encourages COPA to implement OIG's recommendations and to continue to conduct investigations in a manner which demonstrates a professional standard of care. OIG thanks COPA's management and staff for their ongoing cooperation in OIG's review of closed disciplinary cases.
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APPENDIX A: OIG ADVISORY CONCERNING PRACTICE OF ADMINISTRATIVELY TERMINATING DISCIPLINARY INVESTIGATIONS
JOSEPH M FERGUSON INSPECTOR GENERAL
CITY OF CHICAGO OFFICE OF INSPECTOR GENERAL 740 NORTH SEDGWICK STREET, SUITE 200 CHICAGO, ILLINOIS 60654 TELEPHONE" (773) 478-7799 FAX. (773) 478-3949
VIA ELECTRONIC MAIL
MAY 27, 2020
SYDNEY ROBERTS CHIEF ADMINISTRATOR
CIVILIAN OFFICE OF POLICE ACCOUNTABILITY 1615 W. CHICAGO AVENUE, 4TH FLOOR CHICAGO, ILLINOIS 60622
Dear Chief Administrator Roberts:
The City of Chicago Office of Inspector General's (OIG) Public Safety section has identified issues with the Civilian Office of Police Accountability's (COPA) use of administrative termination to conclude disciplinary investigations short of an investigative finding. Based on its in-depth reviewof administratively terminated disciplinary investigations, OIG recommends that COPA take measures to improve the quality of these outcomes.'' Where administrative termination is ill-defined and frequently misapplied, each investigation in which it is used represents a risk that an allegation of police misconduct is improperly disposed of without ensuring either accountability or vindication for an accused Chicago Police Department (CPD) member.
Pursuant to its enabling ordinance, the Public Safety section's Inspections Unit reviews individual closed disciplinary investigations conducted by COPA and CPD's Bureau of Internal Affairs (BIA). Based on its reviews, OIG may make recommendations, like those contained herein, to inform and improve future
" OIG's review of administratively temnnated disciplinary investigations covers investigations initiated under both IPRA and COPA from August 2015 to I )ec.emtaer 2018
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investigations. Through this process, OIG identified a pattern of concerns regarding COPA's use of administrative termination as a non-finding disposition.1'
Inconsistencies and inaccuracies in the application of administrative termination fall into two general categories. In the first, the criteria for use set forth in COPA's Administrative Termination Memorandum template was not met, although sometimes marked as met in contradiction with the facts and circumstances ofthe investigation.6 In the second category, investigations were closed via administrative termination when there were other more clearly defined and closely applicable dispositions available.
Specifically, OIG recommends that COPA add policies on the use of administrative termination to its Investigations Manual; establish clear and specific criteria for its use; ensure that all potentially appropriate dispositions are considered; ensure that, during supervisory review, all required criteria for administrative termination is met; ensure that the chief administrator's approval is sought when appropriate; and refrain from administratively terminating investigations based solely on the age ofthe complaint or as a means to increase case closure capacity. Further, based on its observations in individual case files, OIG recommends that COPA review investigations recently closed by administrative termination to ensure that they were disposed of appropriately. By adopting these recommendations, COPA can improve transparency, ensure consistency in future investigations, and increase accountability in its investigative process; a transparent, policy-driven discilinary system is crucial to building public trust and to ensuring procedural fairness for CPD members.
I. BACKGROUND
In October of 2016, the Chicago City Council passed an ordinance establishing COPA, replacing the Independent Police Review Authority (IPRA).as the civilian oversight agency for CPD. COPA, which officially took over IPRA functions on September 15, 2017, was tasked with, among other things, providing "a just and efficient means to fairly and timely conduct investigations within its jurisdiction, including investigations of alleged police misconduct and to determine whether those allegations are well-founded, applying a preponderance of the evidence standard."7
As discussed lurther below. COPA may cose a disciplinary investigation either by way of reaching a finding, which is a substantive determination on ihe merits ofthe allegations under investigation, or by way of various non-finding dispositions
I'he Administrative Termination Mernoiandum is a case closure document template which contains a list of "criteria" for an aclrninistiat ive i.e; mination disposition See Appendix A ?' Municipal Code of Chicago (MCC! ? 2-78-110
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COPA's 2019 Annual Report states that COPA administratively terminated 55 cases in 2018 and 168 in 2019. Since 2017, 376 investigations-"13.6% of all investigations closed by COPA byway ofa non-finding disposition-have been administratively terminated.8
A. COPA'S INVESTIGATIONS MANUAL DOES NOT LIST ADMINISTRATIVE TERMINATION AS AN AVAILABLE DISPOSITION
COPA's Investigations Manual (the Manual) establishes guidelines for COPA employees from complaint intake through the completion of each investigation, to post-closing litigation. The Manual specifies that for each allegation that COPA retains and investigates, it "must close the case with a final disposition or a finding to be subject to CPD's internal review process and, if necessary, other administrative review processes." To close an investigation, COPA may use either non-finding or finding dispositions.
FINDING DISPOSITIONS
The finding dispositions included in the Manual are listed and defined as follows:
Disposition
Definition
Sustained
"When the allegation is supported by substantial evidence."
Not Sustained
"When there is insufficient.evidence to either prove or disprove the allegation."
Unfounded
"When the allegation is false or not factual."
Exonerated
"When the incident occurred but the actions ofthe accused were lawful and proper."
NON-FINDING DISPOSITIONS
The non-finding dispositions included in the Manual are listed and defined as follows:0
Disposition
Definition
Administratively Closed10
"An investigation may be considered for Administrative Closure under any of the following circumstances:
8 See COPA's 2019 Annual Report, https//www chicagocopa oixi/wp-content/uploads/2020/02/2019-CO P A ? A n n u a I - Re po r f pd f
'?' Definitions foi each non-finding disposition are reproduced here as they appear in the Manual, the Manual does nol offer any further explanation of definitional terms
,; OIG notes that the use of two different dispositions with very similar names but different functional meanings, administrative closure ond administrate ter mination-a term not contained in COPA's Investigations Manual (discussed further below) seems likely to cause confusion and may lead to the misuse of these dispositions
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? Preliminary investigative efforts in response to a notification made by the Department do not reveal misconduct and COPA has not received a complaint regarding the matter.
? Where the complaint does not involve a CPD member or other City of Chicago employee and the preliminary investigation provides insufficient information from which to determine an appropriate entity for referral.
? Documentation received from Department members alerting COPA that the Department member may be the subject of a future complaint.
? Complaints involving alleged misconduct occurring over five or more years ago. After preliminary investigative efforts, COPA does not have sufficient objective verifiable evidence to support a request to the superintendent to proceed with the investigation."
Closecl-No Affidavit"
"An investigation may be considered for Closure - No Affidavit under either ofthe following circumstances:
? After making good faith efforts to do so, COPA has been unable to acquire a sworn affidavit from a complainant or other individual certifying that allegations made are true and correct.
? In the absence ofa sworn affidavit, COPA's preliminary investigative efforts do not result in sufficient objective verifiable evidence to support an affidavit override request submitted to BIA."
" The Uniform Peace Officers' Disciplinary Act (50 ILCS 725) was amended in 2003 fo require that a sworn affidavit, attesting to the allegations must be in place in oider to conduct a full disciplinary investigation into misconduct by a peace officer There are certa'n exceptions to this requirement, as outlined in applicable directives, policies, and collective baiga:n;v:i agreement If a sworn affidavit cannot be obtained but objective, verifiable evidence exists. COPA may seek an affidavit override fiorn the chief of RIA authorizing completion of the investigation The term Closed - No Affidavit is used interchangeably wilh the term Closed- No Conversion, these terms have the same meaning
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"The case was resolved through mediation or another alternative dispute resolution (ADR) process."
"Administrative termination" does not appear in COPA's 2018 Investigations Manual as an available disposition.12 Rather, criteria for its use, all of which must be met in order to use it, appear in the Administrative Termination Memorandum template. While these criteria lay out circumstances in which an investigation may not be disposed of by administrative termination , and identify tasks which much be completed before such a disposition, they provide no affirmative guidance on or criteria for circumstances under which its use might be appropriate.
The criteria listed in the template is as follows:
1. The potential allegations in the case do not involve:13
? Firearm discharge
? Physical violence or threats of physical violence or involve parties that [sic] historically been alleged to have committed physical violence or who have threatened physical violence
? Use of force resulting in serious bodily harm or injury
? Verbal abuse rising to the level of racial bias
? Any incident in which video or audio evidence exists that depicts and corroborates the allegation(s)
2. All other closing dispositions have been considered and there exists a lack of evidence to reach an Exonerated or Sustained finding.
3. The accused officer's history has been considered (i.e. pattern or practice of past complaints of a similar nature).
4. Officer's credibility has been assessed against that ofthe subject's, witnesses', and other involved parties'.
B. COPA'S EXPLANATION AND APPLICATION OF ADMINISTRATIVE TERMINATION
COPA reported to OIG that, administrative termination is most frequently used to dispose of cases left over from IPRA, COPA's predecessor agency, in the service of COPA's ongoing internal operational goal of clearing its inherited backlog of IPRA's
y- COPA has reported to OIG as recently as February 7. 2020, that tne 2018'lnvestigalions Manual is the most current version in use by COPA investigators
]-' 1 he Adminisi i a rive 1 ei mi nation Memorandum was i evised in October 2018 and September 2019 The 2018 version reads. "The case does not involve " while she 2019 version reads. "The potential allegations in the case do not involve
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legacy cases. Other factors COPA considers when deciding to administratively terminate an investigation may include the credibility of the involved parties, how much is left to be done in the investigation, and its age.
COPA's chief administrator and deputy chief administrators established the mandatory criteria set forth in the Administrative Termination Memorandum template. COPA reported to OIG that each of these must be met in order for an investigation to be administratively terminated, and that in a situation in which all of the criteria are not met, the administrative termination of an investigation must be approved by the chief administrator. Notably, however, none ofthe investigations reviewed by OIG for the purposes ofthis inquiry contained any record or indication of chief administrator approval when the underlying record did not establish all ofthe required criteria. Moreover, when the Administrative Termination Memorandum template was revised in September 2019, the signature line for the chief administrator was removed.
COPA reported that, beyond the criteria set forth in the Administrative Termination Memorandum template, circumstances under which administrative termination would not be an appropriate disposition might include those in which:
? an individual requires medical-assistance;
? an individual has broken bones;
? any type of strangulation is alleged;
? a CPD member is alleged to have used a racial epithet; or
? there are allegations involving a reference to an individual's ethnicity.
When asked to specifically explain the application of "physical violence or threats of physical violence or involved parties that historically [sic] been alleged to have committed physical violence or who have threatened physical violence," COPA stated that this was intended to refer to "domestic violence" (DV) rather than generally to "physical violence, no such definition or distinction is found in the Manual or the Administrative Termination Memorandum template."1'''
'-'? In the COPA's 2019 Annual Report COPA com inues to use the phrase "physical violence" rather than "domestic violence''
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FIGURE 1: ADM IN STRATI VELY TERMINATED CASES BY INCIDENT TYPE, FROM SEPTEMBER 2017-DECEMBER 2018,s
-= 30 y
Q y-y & i- 70 I
IS y
10 ''
3 4 c ill
Incident Type
COPA further explained that an accused member's entire complaint history, not just sustained complaints, would be accounted for when considering whether or not to administratively terminate an investigation Reportedly, an investigation involving a member whose complaint history included "three, four, five" similar complaints would not be eligible for administrative termination.
II. ANALYSIS
A. INCONSISTENCIES AND INACCURACIES IN COPA'S USE OF ADMINISTRATIVE TERMINATION
The following summaries of administratively terminated investigations reviewed by OIG provide illustrative examples ofthe two primary ways in which this disposition is misused. The Administrative Termination Memoranda used below include both the October 2018 version and the September 2019 version.
?' I-1 cj LI r e i shows the number of closer! .-icl t_n i n is>t i -a t iveiy tei m mated investigations, separated by incident type, for the period from Seprembei 15. 7017 to Docombei 31 2018
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Coercion - Threat of Arrest/Charges (#19-1434)
An investigation, regarding the exoneration of and granting of certificates of innocence to four individuals who were convicted of a .1994 rape and murder, was administratively terminated, with COPA providing the following explanation:
? "Review ofthe suppression hearing transcript, as well as [the accused's] deposition testimony in the subsequent lawsuits, revealed apparent contradictions and potential Rule 14 violations.16 A closer review ofthe transcripts demonstrated responses that were subject to a variety of interpretations or conditioned upon his recollection.17
? There is not sufficient evidence to indicate that [the accused] committed a Rule 14 violation, in that he willfully provided a false statement or report on a material fact.
? It is unlikely that any further use of resources would yield information likely to result in sustained allegations.
? The case is more than 25 years old, and therefore the likelihood of any potential witnesses, and accused officer, accurately recalling events related to the investigation is remote."
The criteria for Administrative Termination were not met here. Specifically, the accused officer's disciplinary history was not considered as required, and the officer's credibility was apparently not assessed against that of other involved parties. First, the only accused officer still employed by CPD had six complaints of either "Force, DV, Civil Suits," "Coercion," or "Improper Search" at the time ofthis investigation's initiation and had been involved in numerous civil suits.18 Also, according to statements made by this accused officer during his deposition, he was an arresting officer in a murder case, separate from the case resulting in this investigation, in. which the convicted party later had their conviction overturned.19 Second, it is unclear from COPA's investigative file how the credibility of the parties might have been assessed. This is further clouded by COPA's indication that tho accused officer committed potential Rule 14 violations but that the statements in question were "subject to a variety of interpretations or conditioned upon his [accused] recollection," while all four ofthe individuals originally convicted were granted certificates of innocence.
:? CPD's Rule 14- is a serious infraction, a sustained allegation of which often results in a recommended penalty of separation from CPD employment, prohibiting the "[m]aking a [also report, written or oral" COPA's Administrative Termination Memorandum piovicles no further explanation lor this observation Infonnation about the accused members disciplinary history, as offered herein, is based on OIG's review of disciplinary records and was not included anywhere in COPA's analysis
'??* OIG does not suggest that the accused's involvement in a separate case in winch a rnuider conviction was overturned indicates that the accused committed any misconduct Rattier OIG notes that COPA's own criteria would have leguired consideration of this fact, and there is no evidence in the case file that this consideration took place
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Force/DV/Civil Suits-Civil Suits-Third Party (#19-1077)
An investigation into allegations of excessive force, initiated in response to a civil suit notification, was administratively terminated, with COPA providing the following explanation:
? "On October 18, 2018, the case was terminated and dismissed without prejudice because [the complainant] was reported to be deceased.
? The originating event was in October of 2015, almost four years [prior]. Though COPA did not reach out to [the complainant], [the complainant] has since passed away.
? After review of information related to the civil and criminal matters, it is apparent that COPA is unlikely thru [sic] additional investigation to reach a sustain [sic] finding.
? COPA also lacks sufficient independent, objective evidence to support an affidavit override. Therefore, no additional resources should be devoted and the case should be Administratively Terminated [sic]."
Administrative Termination was misused here, and a more directly applicable non-finding disposition was available. First, the category code of Force/DV/Civil Suits and the fact that the reporting party victim alleged excessive force are at odds with the criteria that an investigation must not involve "physical violence or threats of physical violence" in order to qualify for administrative termination. Second, the criteria stating that the "officer's credibility has been assessed against that ofthe subject's, witnesses', and other involved parties'" could not possibly have been met, given that the complainant died before having been interviewed by COPA. Presumably, this would have made any assessment of his credibility impossible. Finally, Closed - No Affidavit would have been a more appropriate non-finding disposition for this investigation. COPA states that it lacks "sufficient independent, objective evidence to support an affidavit override," as the reason to administratively terminate the investigation, which precisely constitutes the circumstances under which an investigation would properly be Closed - No Affidavit for lack of an affidavit or affidavit override.
Improper Search - Unlawful Detention (QIC #19-1074)
A COPA investigation in which the complainant alleged that they were stopped, detained, that they and their vehicle were searched without justification, and that the accused officer(s) damaged their cellphone beyond repair was administratively terminated, with COPA providing the following explanation'
? "Not only did the officers have reasonable suspicion to conduct an investigatory stop, but that [complainant] himself made fhe 911 call that initiated the stop and gave a description of himself to the OEMC
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COPA ADMINISTRATIVE TERMINATION ADVISORY MAY 27, 2020
[Office of Emergency Management and Communications] operator as the person with a gun.
? [Complainant] previously contacted 911 and gave his description as a person with a gun."
Among the required criteria for administrative termination is that, "[a]ll other closing dispositions have been considered and there exists a lack of evidence to reach an Exonerated or Sustained finding." Based on the definition of "Exonerated" in COPA's Investigations Manual as well as the assigned investigator's narrative contained in the Administrative Termination Memorandum template, this criteria was not met. The investigator wrote, "COPA investigated this allegation and finds that not only did the officers have reasonable suspicion but that [Complainant] himself made the 911 call that initiated the stop, and gave a description of himself to the OEMC operator as the person with a gun as the 911 call came from [Complainant's] own phone." This statement evidences a determination that the accused officer(s) committed no wrongdoing when the officer stopped, detained, and searched the reporting party and their vehicle; that is, it suggests that a finding of Exonerated was in fact available.
Arrest/Lockup Procedures - Proper Care - Injury/Death (#19-0595)
An investigation initiated in response to an Extraordinary Occurrence Notification
regarding an individual found unresponsive in his cell and ultimately pronounced
dead was administratively terminated, with COPA providing the following
explanation:
? "There is insufficient evidence to determine whether [the deceased] told any Chicago Police Department Personnel he needed medical attention, or that he was suffering from any ailment that would require CPD to take him to the hospital.
? There is insufficient evidence to determine whether CPD failed to provide medical care to [the deceased] and the only possible finding for the allegations is Not Sustained.
? Those individuals [lockup personnel] have retired from the CPD and therefore, COPA lacksjurisdiction."
COPA's investigation of this matter should not have been eligible for administrative termination; not all the requisite criteria was met, and a different, more appropriate disposition was available The Administrative Termination Memorandum gives no
indication that the first two required criteria were considered or satisfied that "the
accused officer's history has been considered (i.e. pattern or practice of past complaints of a similar nature)," or that "the officer's credibility has been assessed against that, ofthe subject's, witnesses', and other involved parties' [sic]."
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Furthermore, COPA's own definition of a different disposition, administrative closure, was explicitly met here COPA's preliminary investigation, which was conducted in response to a CPD notification, did not reveal misconduct and COPA did not receive a complaint regarding the matter; furthermore, the fact that all involved CPD members had retired and were no longer CPD or City of Chicago employees would also have rendered administrative closure an appropriate disposition.
Verbal Abuse - Racial/Ethnic (#19-0592)
An investigation into allegations of an officer using language containing "racial and/or religious overtones" was administratively terminated, with COPA providing the following explanation:
? "There is no known video evidence ofthe incident, nor does there exists a likelihood that such evidence exists as ofthe date ofthis memo.
? There are no identified witnesses to any ofthe alleged racial jokes and or comments.
? Specific dates, times and exact locations ofthe alleged misconduct were not provided. This lack of specificity resulted in difficulties with identifying witness and other possible evidence, i.e., possible video evidence.
? Available evidence resulted in differing unsubstantiated accounts-[the accused] denied the alleged use of racial jokes and comments.
? While Sgt. acknowledge [sic] that [Complaining Officer], and he address the complaint by speaking directly with [the accused] and effecting his subsequent transfer, these actions fail [sic] to establish what racial jokes or comments, if any, were said by [the accused] or if these comments created a hostile environment.
? The incident was reported to CPD supervisory staff. CPD had the ability to address this matter within the involved officer's chain of command, because the allegations did not involve any members of the public."
The category code of this investigation, Verbal Abuse - Racial Ethnic, should have made administrative termination ineligible as a potential non-finding disposition, as the plain language of COPA's criteria explicitly excludes incidents of this kind in cases which allegations involve "[v]erbal abuse rising to the level of racial bias." Additional category codes which similarly appear plainly excluded from administrative termination include those in which potential allegations involve excessive force, domestic altercations involving physical abuse, or verbal abuse involving references to sexual orientation or religious affiliation
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III. RECOMMENDATIONS
To ensure the accurate and consistent application of COPA's finding and non-finding dispositions going forward, OIG recommends that COPA:
1. Include administrative termination and the associated criteria in the Investigations Manual, alongside other available non-finding dispositions, and consider addressing the likelihood of confusion caused by two different dispositions with nearly synonymous names.
2. Establish clear and specific affirmative criteria which provides guidance on the circumstances in which the use of administrative termination as a non-finding disposition is appropriate, and ensure that all investigators are properly trained on its application.
3. Ensure that the most appropriate disposition, finding or non-finding, is used for each investigation and that all potentially appropriate dispositions are considered.
4. During review ofthe Administrative Termination Memorandum, the supervisor should ensure that each ofthe required criteria listed has been completed, including that the category codes associated with the allegation(s) do not on their face contradict eligibility criteria for administrative termination before approval.
5. Ensure that, if an investigation in which all criteria is not met is administratively terminated, the chief administrator's approval is obtained and documented.
6. Articulate in each Administrative Termination Memorandum those facts establishing the satisfaction of each ofthe required criteria.
7. Refrain from administratively terminating investigations solely based on the age ofthe complaint and/or as a means to increase case closure capacity.
8. Audit administratively terminated investigations to ensure that the most appropriate disposition was utilized when closing the investigation.
IV. CONCLUSION
To increase trust and confidence in Chicago's police accountability system, and in COPA specifically, it is imperative that each of COPA's investigations is conducted thoroughly, transparently, and without bias, and that each disposition, whether a finding or non-finding, is applied consistently and accurately according to established criteria.
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COPA ADMINISTRATIVE TERMINATION ADVISORY
MAY 27, 2020
Please respond in writing by June 29, 2020. OIG looks forward to COPA's response, which will be published along with this advisory pursuant to MCC H2-56-250.
Respectfully, Deborah Witzburg
Acting Deputy Inspector General for Public Safety Office of Inspector General
cc: Joseph M. Ferguson, Inspector General, OIG Brian Dunn, General Counsel, OIG Kevin Connor, General Counsel, COPA Adam Burns, Attorney, COPA
OIG FILE #20-0314
COPA ADMINISTRATIVE TERMINATION ADVISORY
ADVISORY APPENDIX A: COPA'S ADMINISTRATIVE TERMINATION CLOSURE MEMORANDUM TEMPLATE
ADMINISTRATIVE TERMINATION CLOSURE MEMORANDUM
Log*
Recommendation for Closure
Summary of Relevant Investigative Activity and Comments
Case disposi lion for a truncated investigation. Criteria set forth befow must be met in order to close as Administrative Termination.
The potential allegations in the case do not involve:
? Firearm discharge;
? Physical violence or threats of physical violence or involve parties that historically been alleged to have coin mined physical violence or who have threatened physical violence;
? Use of force resulting in serious bodily harm or injury;
? Verbal abuse riling to fhe level of racial bias
? Any incident m which video or audio evidence exists that depicts and corroborates tile allegation^).
All other closing dispositions have been consideredand there exists a lack of evidence to reach an Exonerated or Sustained Finding.
The accused ollicer's history has been considered (i.e. partem or practice of past complaints ofa similar nature).
Odicer's credibility has been assessed against that of the subject's, witnesses', arid other involved parties'.
IS
m|10
Rev. Sept. :0IO
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Deputy Chief:
Approved: % Declined: ?
Comments:
fev sept. :oiv
OIG FILE #20-0314
COPA ADMINISTRATIVE TERMINATION ADVISORY
My 1,2620
Via Electronic
Ifebmh Wirzburg
Depury Inspector General
Office of Inspector General
740 North Sedgwick Street, Suite 20)
CfcicaeD, Illinois 60654
Rs: Advisory CoTirwrurig COPA's Practice nf A rintiTiigtnitvuph' Terminating nwripWnanr Tnvoa-igarifm: Dear Deputy Inspector Genera] Witzburg:
I am UL receipt of your May 27. 2020 Advisory Leder iT_jertHr) recoDamadui|: msas-ares to ensure: accurate and ovrisutEQl ajplkariori nf COPA's. Soding and Goa-nDdins chspcsiriCQs. I appreciate your dilissEl and ihcffau^ review of our imiestigaEva files. Your recomnaiiiatMcs will heiipus iaprara as an im'estigaiive body.
COPA sargeiy canons with your rwmnmanilirim; In rJhe past operating practices were aol as syssacsric and ccmsistEnt as those ta which TO aspire. COPA b curreink dev^OTinE policies, thai we believa will address year concerns, Enin Indepeiirient Monitoring Team approval, and cocoty fbl?y ?aim Consent Decree nsndates.
Wakt COPA agrees with your lecaanm&am. & few points nisei wancr further ejarrinaaoo. For
essnple. the Letter stales that:
COPA'; 20!9 Annual report ssa&s iter COPA aofiosstrcmv^' semwaied 53 cases bt 2Q!8md }6?m MA Sfir* 2H1J7. i?<5 imeir^cafom -I3.&iqfaR br^stlgaiiort: dosed by COPA by- way qfn nonjta&ag dispoiithn - hone been adnvrastreBkefy xarvsmed.
Whfe ihe simple math is correct, it does net jefsn the rehire rates at which COPA adisirflarativaly
ram-'Ti^rgfi CiSCS
As you note. COPA lagan operating in Septacba 2017. In 20 IS. COPA received 4,131 conotpljims and notificatiaQS. retn-Tiin; 1.207 for kveitLzaEoii In 201?. COPA received 5354 coapains and notincaticQi, retaining 2,0?? for invesEsarica - an increase of 73% ever iba prior year.1 En 2019. COPA bom received and retained significantly rrjore cases than in prior yean. Unsurprisingly, the r'ttr'w of adrreni stracniely tamhiated cases rose, though at a slower pice
Your LeTter also states chat
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CC?A" 4 201? Arrival Ispxi
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OIG FILE #20-0314
COPA ADMINISTRATIVE TERMINATION ADVISORY
Pase 2 of 5
MV1.2&1G
Ms" Deborah Witzborg
rr mproperiy disposed of viihcut emoring ether accowuabi&y or '.indication fir an excused Chicago Police Depirmem {CPD) number.
Please note to die ckSnirion ami application of Adsdmtreo^v Closure differs si^a&cmQr from the deriEdEoo and arrotcatkm af Adsrmistralhv Term'mssSon.^ We do however unaersland dial the eap&yiceEi of such soakr terms may -csase anlnteiuied confusion., .idmmisrraiive Closure is appropriate in siroaticcs where, after a prgHTmrnry review of the facts, no aaianafe rnisccoduci: is fdprriffaii because: the action confined of was not nriscociduct: the condact or atf&rs are not wi?fn COPA juin-safctraa: or, the inddent occurred mare than five years prior to receipt of the complaint and there is inan^riearcbjective and verifiable evidpTire to support seeking use .^jperinteiideiit's approval to open an im^stipoon.
Qjoverseiy, AdmnhSrsSive Temmasan is appropriate in situations where caerpMriti are eeneraByv rinseb'-caa'ie and within OOPA jtnisdktioQ, but, after a pre'Hmin:^- review of the facts, there Is rn^i^nYiprrt evidence ro nearti ap 3*nn*i'rtir? nrvting The Adi^rroativa Tertmrjidotn process was designed to laciarate e:^pediriDus closure ofimprapiisirg im^sri?arions to allow mvTastiEnrors to fixus arienrion on those irn'estinnticcis where amrrna1h:e findings are more likely to he available. COPA which has never od^eved lull staffing, oirrent]}' has approT^iDarely 125 of 151 badgeted FTE, Hirhining adnilnisirarire safE Whie sipifcanriy increased intake volume deramds the esercise of discretion in determining winch mvestigalHins to pursae, we concur there have been few insranros when application of ^sAdmiRisira^ve termincskin process may have been misapplied.
COPA also wishes to clarify the sntfirasnt regarding the ijsa of an aceased naember's dixiplmary history in ccrasidering whESber to adar?nstrarrve3y terminate an QTCesngation- Passe note that each A?mnistrative Tennlnairan is primarily a fact-spedSc analysis of the candact aikged. While an officer's history may be relevant io the totality of the analysis, aiLeaarions. related lo prior conduct are not dispositive in detemiining whether a ct^lajni should be aivestigated To the extent possible, prior io imriatias a fMl investigation, COPA cottducts aeriMity assessment; of ail parties in dsrtemaning if there is a reasonable basis for a complaint. An Officer's prior conduce would only be used innanheranceof A partem and pracrice mvesnEaticQ or whmconremplarins progressive chsripline at the cond'osian of an iEissfizatoat.
Regarding your specific recoaajsndarions that 'COPA
1. Inclode administrxdre tenninahon aod the associated criteria in COPA concurs with ihis recomnosmcaoon As you tnay know, COPA is currently ar?dertakHis a substantive review of irs to-estisidcn Manual, poiicies, and tmimng as pan of its Consent Deast coacpliance efforts. COPA anticipates thai the review will yield umea
' CO?A cbriEftd its pabc"L iivdsa 3D iassal msso aiaiftd. ""Si-.-."n- An3 0"'i^ .Al?icri^;? - Ia"stia2sioo.'i fe-'Kin; No finiaas" (EE. Dite. Oacbor 25. 202 :?). J cqiy cextfaics i: n:2wd hscscs.
OIG FILE it20-0314
COPA ADMINISTRATIVE TERMINATION ADVISORY
Pass 3 of5
Pah-1. 2020
Ms. Deborah Wscburg
aod terrTiolcgy co define the poxes: more dearly while adhering co our goals of eraciency, crinspirency. accuracy, aod chramghness.
2. Establish dear and specific affirmative criteria which provides guidance on the cirmntstances in which die use of adnumstranve termination as a noB-fjodiDg disposition is appropriate, aad ensure mat aU mvistigaf ors are properly trained on its xpnlkaJioB,
COPA concors. with this ieccrrjacendihon as indicated in the response co Rsfieennaendatkiru I above.
3. Ensure that the most appropriate disposition, fiodiag or Don-finding, is used for each investigation, and thai all potentially appropriate dispositiotis are considered.
COPA also CDocars wim this recommendation. COPA's unswerving intemion is to dose each case in che most appropriate and accurate manner. Moreover, COPA's goal has always been to reach an affirmative fntrng whenever possible, rather than dispose of cases try either Adn?nslmrive Termination or AdmiEstrarive Closure. Each iavesnsarLon reqpres set-specific analyses regardless cf its ultimate disposition. There has teen occasional rdsnndentruading of these processes., which we hope to rerasdy tiarough adriirianai clarification and training. Note howBvsr thai COPA investigators receive consinerabJa training regarding che reqiiirananrs of each disposition and me appropriate circumstances of its application. COPA also ccauinaaiily revises, conznunicates, and provides training regarding changes in practice chat nay affect the disposition process. Further, COPA continues co develop a culture that embraces corrhrmoas irmurovsmeniE.
4. During review of the Aifnaiiistracrre Terrmnaiion Xfemorandam. the supervisor should ensure that each of the required criteria listed has been completed, isrlodiag that the category codes associated with the allegation^) do not on dudr race contradict ehgibSiry criteria for aiimmistrairve termination before approval.
COPA also concurs w=tfa this recommendation, almough again, we seek to clarify the appropriate application of ihe: Adnnnistrative Termination policy. SapsTkising iircestizaiocs and Deputy Chies should review and consider snch dispositions prior to approving chera. COPA agrees that where a Termination ManoraBdma COP flirts with express guidelines, regarding Adnnnistratv^ Temnnadoo. saperiiscoy staff roast closely review the terminaticn Meoxtrandiaii hi the funire, COPA wifl endeavor co clarify policies, rules, and procedures applicable co AchiiMstrarive Termination. There may east some mktrriecsiarding regaiditig criteria applicable co the Adtociittariva Tennination process. The "criteria'' articulated on the form are meant to be a guide, not a complete Use or a schedule of recpiremenls that mast all oe met prior to Adtmrnstiirive TernnnacLcaL
Implicit in the Termination Memorandum Sam is die uncterstanding that investigative learns have some discretion to determine the disposition of matcer; of which they have the most detailed knowledge. Moreover, there is often extensnne discussion, which may include Deputy ChLeB and che Chief Adiarnscraicr. regarding whether Actaiinisnative Tenmnirion is appropriate in a given case. Consistent widi your rscommsmdatioQS. COPA should ecsare thai the precise rationale ior AdrTirfi-ganve Terrmnacion is mdiciced in die Tertmnarion Memorandum.
?. Ensure chat if an investigation Ln which all criteria, b not met b adniimstracrrely ternunated. the Chief Administrator's approval is obtained and djxnmented.
CCPA concurs with this rxoiameDsatioo 21 part. As todience-d above. COPA received more than 5.05Q cccrpbtni; in 201? and retained more than 2.000 inves-apaccs. Given acaviry related to the recent
OIG FILE 1120 OS\A
COPA ADMINISTRATIVE TERMINATION ADVISORY
Page 4 of 5
Jury i;2020
Ms Deborah Witzburg
proteins, wa are likely 1o receive -iisany note complaints in 2020. As you note, COPA aclniuiistracp.'eiy cerrrtnted 16S inveshgateon in 2019. The Chief Adnnnisirarar cannot perform a detailed review of that number of Adteaittatire Tensnttaaons while efiKtxreJy disdtarging her many other 6. Artiralal* in each Athnintitatrre Tertninanoii Mentoranrhmi those facts estahlishiiig the satisfaction or each die required criteria.
COPA concurs with tfis ieconuneroiitian. See COPA's response to FjKcoruner^lion 4.
7. Retrain from adntiinstratively terminating mrestigation solely based OD the age of the complaint andCOPA concurs with this reccmineiidaoco in part. COPA's consistent intention is co imestigate each coTrnlaint trxtroughly to reach an aSrmarive conclusion. However, such a cocclusico is not always possible - parnciilairy the investigation of incidents occurring more than five years _n the past. As yon know, the Uniform Police Officers' rdscrplihary Act andapphcable CoEective BargaMng Agreements create substantial barriers to mvestigahrag older cocnplaints. regardless of individual casenHits.'1 Such canstpinrs were considerad in developing th^ Adiyrrriisrretiva Tpm-rimrittTi jurr^
Again. Administrmive Gcrsare is appropriate where invesgsaricais lack indicia of misconduct after preliminary eiamioationor are simply outside of CQ9A^jinsidk^Atiiau^a6ee Temmeikxt is appropriate ibr cases that may have indicia of miscoctducc. bat are unliVelv to produce an nfnrningve f?nd,:rT such chat pursuit of the maccar would misapply finite resources and marjpower. While these cospositlccB were intended to be annually e>:dussV2, it is conceivable that either Adn?ustrath^e Closure or Administrative Termination could aj^opriateJy dispose ofthe mvesugation; of an incident that occurred five years prior in which it is difficile ro obtain objecnvely verifiable evidence of onsccoduct.
There is an additional hurdle to overcome in the mvestsgatien of aging cases. The invesrigarion of incidents ccainihg five or mare years prior lo the date ofthe complaint requires the Supermtendeni's approval- COPA most apply asaetKUL in cfelerminiiig which cases may be appropriate for submission to me Superlntendenc. In the absence of the Supaincendenfs approval. Aisdnistmtive Closure is appropriate because COPA does mt have the aunwriry to proceed. However, if COPA sought and obtained Superintendent approval to proceed with investigation, but its efforts dtumtaly indicated an inability lo reach an affirmativa finding, then Adnaimsnativa Termination would be appropriate.
Further COPA -does not enjoy the resources- sufficient to aDow It to review the universe of incidents chat preceded its creation Difficult decisiens about which lnveshgaricns ire desening of limited resources must be made - endlessly. The ruthonty to make such decisions is- vested in the Chief AdimrisaziBr. She is charged wirh miking the difficult detemnmdons regarding the allocation of agency resources-. COPA's enabung ordinance vests the Chief AdtmrasiratoT with the authority to "prorTilfate roles and procedures for the conduct of the Office and its irrvesngarioLis consistent with
' TO li.CS x "q.
OIG FILE #20-0314
COPA ADMINISTRATIVE TERMINATION ADVISORY
Page 5 of 5
j'afyL2020
Mi". Dabcov& Witzburg
doe process of law, equal protection under the law. and all other appbcable locaL stare and federal laws, and in accordance with Section 2-7S-170."*
8. Audit aoandcistralnT'Ely tenninated investigations to ensure that the most appropriate dispodnon was ntfliied when closing the iorestigatioQ.
COPA cc
In conduston, COPA appreciates PSKJS review of and suggestions to irrjnove its policies and processes. We acknowledge that operational rrnlMiges, may have resalred in an inadequate understanding ofthe appropriate application of Adtmrnstrative terrsrination cnteria. While COPA's goalrprmins che tbarough irAesngarictnof every case, resource lirrdtations sonstimesreqmre che Chief Adnrirnsnalnr to exercise discretion to adrainissatn^sJy close niirters. COPA will coorinue: co work to develop ever mare dear and comistEtt policies and processes consistent with PSIG recotmr-endaticcis. Consent Decree mandates, and the QtT's forthcoming recaiuneiidationi-
Sincerely:
Sydney R Roberts
ChiefAdnMstrator
Civilian Office of Pohce Accounrability
cc: K>rinCtmor(COPA) Andrea frerlsten (COPA) Jay Westecisee (COPA)
Memo - Raviow And CLovka AvitncrlTY
MISSION
The City of Chicago Office of Inspector General (OIG) is an independent, nonpartisan oversight agency whose mission is to promote economy, efficiency, effectiveness, and integrity in the administration of programs and operations of City government. OIG achieves this mission through,
? administrative and criminal investigations by its Investigations Section;
? performance audits of City programs and operations by its Audit and Program Review Section;
? inspections, evaluations and reviews of City police and police accountability programs, operations, and policies by its Public Safety Section; and
? compliance audit and monitoring of City hiring and human resources activities and issues of equity, inclusion and diversity by its Diversity, Equity, Inclusion, and Compliance Section.
From these activities, OIG issues reports of findings and disciplinary and other recommendations to assure that City officials, employees, and vendors are held accountable for violations of laws and policies; to improve the efficiency, cost-effectiveness government operations and further to prevent, detect, identify, expose and eliminate waste, inefficiency, misconduct, fraud, corruption, and abuse of public authority and resources.
AUTHORITY
OIG's authority to produce reports of its findings and recommendations is established in the City of Chicago Municipal Code ?? 2-56-030(d), -035(c), -110, -230, and 240.
Cover image courtesy of Department of Assets, Information and Services.