Legal updates

June 30, 2022

    On July 1, 2022, Illinois law enforcement agencies will face a confusing web of overlapping police misconduct reporting requirements as part of last year’s SAFE-T Act police reform legislation. Law enforcement agencies must also develop a written policy that addresses the investigation of internal police misconduct. Complicating matters is a lack of regulatory guidance from the state agency tasked with administering the new police officer decertification process that was created by the SAFE-T Act. This lack of guidance and statutory ambiguity leave law enforcement agencies with several options for how to approach its police misconduct reporting obligations. Below is a brief summary of a law enforcement agency’s legal obligations once the SAFE-T Act amendments take effect on July 1, as well as some practical considerations for compliance with these new requirements.

Creation of a Written Investigation Policy

    One of the few undisputed obligations for law enforcement agencies is the creation of a “written policy” that addresses the investigation of officer “conduct” under Section 6.2 of the Illinois Police Training Act. At a minimum, the policy must require officers to report several types of alleged misconduct to a supervising officer, including the items listed in Section 6.2(b) (more on that below). Any such policy will be fully disclosable pursuant to a Freedom of Information Act request. See 50 ILCS 705/6.3(f)(6)(b).  Unfortunately, that is the sum total of statutory guidance that the SAFE-T Act provides to law enforcement agencies. As a result, agencies have a fair amount of discretion in crafting such investigation policies.

    When doing so, agencies should consider whether a new policy needs to be drafted from “scratch,” or whether an existing internal affairs general order can simply be modified. Whichever option is selected, the policy should ideally address the circumstances under which the agency will report officer misconduct to the Illinois Law Enforcement Training & Standards Board (“ILETSB”). The policy should also address the interplay between the ILETSB’s new decertification process (which is also set to take effect on July 1) and the agency’s own internal affairs investigation process. Among other things, the agency will want to address its right to pursue an internal affairs investigation regardless of the ILETSB’s decision to pursue an investigation or decertification.

    Agencies should not be surprised if police unions attempt to negotiate the “effects” or “impact” of certain provisions contained in these revised policies. Labor counsel should be consulted in order to help navigate the difference between those topics that must be negotiated and those that can be considered non-mandatory (or permissive) subjects of bargaining.

Pre-July 1 Reporting Obligations

    Another undisputed provision is an agency’s reporting obligations that have existed in the Police Training Act prior to July 1, 2022. Those historical reporting obligations can be found in Section 6.2(a) of the Act, and apply only to willful policy violations, official misconduct or legal violations when either (a) the officer is discharged or dismissed; or (b) resigns “during the course of an investigation and after the officer has been served notice that he or she is under investigation that is based on the commission of a felony or sex offense.” 50 ILCS 706/6.2(a).

    Despite some initial confusion during the legislative process, these Section 6.2 reporting obligations apparently will continue in full force and effect along with the following additional reporting requirements (some of which are much more ambiguous in their content and scope).

7-Day Reporting Obligations Involving
Misconduct That Can Lead to Decertification

    Things become more complex with this new category of reporting obligations found in Section 6.3 of the Police Training Act. This reporting obligation applies to six discrete forms of misconduct, five of which are relatively clear in scope:

(1) a felony or misdemeanor that could lead to the officer’s automatic decertification, whether or not the officer is criminally prosecuted;

(2) excessive use of force;

(3) failure to comply with a duty to intervene (as that term is defined in the SAFE-T Act);

(4) tampering with dash cam or body-worn camera footage “for the purpose of concealing, destroying or altering potential evidence;” and

(5) perjury, false statements, or knowingly tampering with or fabricating evidence as part of the reporting, investigation or prosecution of a crime.

50 ILCS 705/6.3(b).

    A law enforcement agency must report this misconduct within “7 days of becoming aware” of the violation. See 50 ILCS 705/6.3(c)(1) (emphasis added). The first interpretative problem is with the phrase “becoming aware.” Does “awareness” mean a mere “allegation?” Or, does awareness mean some additional type of evidence that brings a certain level of assurance that the misconduct literally occurred? Or, does “awareness” mean absolute certainty that the misconduct occurred (which usually follows the completion of a formal internal affairs investigation)? Arguments can be made in favor of any one of these interpretations. As a result, law enforcement agencies should consult with legal counsel to determine which of these three interpretations (or perhaps some other interpretation) best fits the agency’s policy goals and objectives.

    Once an agency has decided how to define and apply “becoming aware,” it must also grapple with the highly ambiguous sixth category of reportable infractions:

(6) “any unprofessional, unethical, deceptive, or deleterious conduct or practice harmful to the public; such conduct or practice need not have resulted in actual injury to any person. As used in this paragraph, the term ‘unprofessional conduct’ shall include any departure from, or failure to conform to, the minimal standards of acceptable and prevailing practice of an officer.”

50 ILCS 705/6.3(b).

    Much of the ambiguity derives from the phrases “unprofessional conduct” and “harmful to the public.” When read literally, the definition of “unprofessional conduct” could encompass a variety of infractions ranging from minor traffic “fender-benders” to tardiness to missed court appearances. While one assumes that the legislature did not intend such minor infractions to trigger an agency’s reporting obligations, the fact remains that some third parties might think that errorless driving, prompt attendance and diligent court attendance all constitute the “minimal standards of acceptable and prevailing practice of an officer.” Similarly, third parties might view these and other minor infractions as “harming the public” (e.g., failing to report to court or work on a timely basis harms the public by depriving the community of competent law enforcement coverage).

    There are no easy answers for how an agency should proceed to interpret this ambiguous category. One extreme interpretation involves reporting almost any department rule violation (no matter how minor), with the assumption that it literally involves “unprofessional misconduct.” An alternative approach would involve “drawing the line” at some level of misconduct above minor infractions. Legal counsel obviously should be consulted if an agency is interested in self-defining what it means to engage in “unprofessional conduct” under this sixth category.

10-Day Reporting Obligations Involving “Final Determinations” 
of Policy Violations, Official Misconduct and Violations of the Law

    A third category of reporting obligations concerns “any final determination of a willful violation of a department, agency, or the Illinois State Police policy, official misconduct, or violation of law.” According to Section 9.2(a) of the Police Training Act, such violations must be reported within 10 days of the “final determination” as long as one of the following conditions is present:

(1) the determination leads to a suspension of at least 10 days;

(2) any infraction that would trigger an official or formal investigation under a law enforcement agency or the Illinois State Police policy;

(3) there is an allegation of misconduct or regarding truthfulness as to a material fact, bias, or integrity; or

(4) the officer resigns or retires during the course of an investigation and the officer has been served notice that the officer is under investigation.

50 ILCS 705/9.2(a).

    One helpful aspect of this new reporting requirement is that there must be a “final determination” before the reporting obligation is triggered. A mere allegation or pending investigation apparently will not trigger reporting obligations under Section 9.2(a). Another helpful aspect is that three of the four conditions are rather straight-forward in meaning and scope.

    The third condition, however, is quite ambiguous.  What does “an allegation of misconduct” mean?  Similarly, what does “regarding truthfulness as to a material fact, bias, or integrity” mean? How does the term “misconduct” relate to the term “truthfulness,” or is “misconduct” a standalone condition? If it is a standalone condition, does any “misconduct” qualify for reporting (regardless of how minor it might be)?

    These obviously are difficult questions for which there is no immediate answer. Agencies therefore may want to clarify the meaning of these terms in their written investigation policy.

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    In the absence of regulatory guidance from the ILETSB, Illinois law enforcement agencies are left to navigate by themselves these three sets of reporting requirements. In some cases, the reporting obligation will be relatively clear (e.g., a final determination that leads to a 10-plus day suspension under Section 9.2(a)). In other cases, the reporting obligations will be less clear (e.g., does a missed court appearance that leads to a written reprimand qualify for reporting “unprofessionalism” under Section 6.2(a)(6))?

    The good news is that the aforementioned ambiguities and lack of guidance leave agencies with options for fulfilling the dueling policy goals of legal compliance, administrative convenience and employee morale. Feel free to contact an attorney from Clark Baird Smith LLP for more guidance on your agency’s options for drafting your written investigation policy and reporting officer misconduct.

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This CBS LLP Client Alert is prepared for general information purposes only. Summaries of recent court opinions and other legal developments are not necessarily inclusive of all the recent legal authority of which you should be aware when making your legal decisions. Thus, while every effort has been made to ensure accuracy, you should not act on the information contained herein without seeking more specific legal advice on the application and interpretation of these developments to any particular situation.

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