Chapter 48

 PUBLIC SAFETY DEPARTMENT

[HISTORY: Adopted by the Mayor and Council of the Town of Elsmere: Art. I, 4-14-1992 as Ord. No. 283. Amendments noted where applicable.]

ARTICLE I

Investigation of Police Chief

[Adopted 4-14-1992 as Ord. No. 283]

~ 48-1. Appointment of panel of Police Chiefs.

     A.     Authorized. When it is alleged that the Chief of Police may have committed an act which could lead to disciplinary action, the Council shall direct the Town Solicitor to investigate the allegations in accordance with ~ 48-2 of this Article for the purpose of determining if the allegations warrant a full-scale inquiry as provided for by the other sections of this Article. If the Town Solicitor determines a full-scale inquiry is warranted, he or she shall so report to the Council and contact the Chairman of the Delaware Police Chief's Council to request that a Panel of Police Chiefs be appointed to hold a hearing on the alleged conduct.

     B.     Qualifications of Panel of Police Chiefs. The Panel of Police Chiefs shall consist of three (3) impartial Police Chiefs who have appropriate experience and will conduct a hearing in a prompt, responsible and cost-effective manner. The Panel of Police Chiefs will serve to the extent necessary to complete the hearing without undue delay. No Police Chief whose appointment would in any way cause a conflict with any member of the Council and thereby prevent that member of the Council from participating as part of the hearing tribunal may be appointed.

     C.     Duties of Panel of Police Chiefs. The Panel of Police Chiefs shall perform all functions necessary to initially determine whether the Chief of Police has committed the alleged conduct for which the Town Solicitor requested them to hold a hearing. The authority of the Panel of Police Chiefs includes but is not limited to questioning witnesses, reviewing documents and determining whether substantial evidence exists to recommend formal disciplinary action.

     D.     The Town Solicitor shall act as prosecutor. The Town Solicitor shall act as the prosecutor at any hearing before the Panel of Police Chiefs.

     E.     Termination of Panel of Police Chiefs' duties. The duties of the Panel of Police Chiefs shall terminate when:

          (1)     The Panel of Police Chiefs advises the Council that there is not substantial evidence that supports charges against the Chief of Police; or

          (2)     The Panel of Police Chiefs issues its findings that discipline of the Chief of Police is appropriate.

~ 48-2. Investigation of the Chief of Police.

     A.     Conduct of investigation. Whenever the Chief of Police is under investigation or is subject to questioning for any reason which could lead to disciplinary action, demotion or dismissal, the investigation or questioning shall be conducted under the following conditions:

          (1)     The questioning shall be conducted at a reasonable hour, preferably at a time when the Chief of Police is on duty, unless the gravity of the investigation is, in the opinion of the investigator, of such a degree that immediate questioning is required.

          (2)     The questioning shall take place at the Department of Public Safety headquarters unless otherwise waived in writing by the Chief of Police.

          (3)     The Chief of Police shall be informed of the name and official capacity of the person in charge of the investigation. All questions directed to the Chief of Police shall be asked by no more than two (2) investigators. No formal complaint against the Chief of Police seeking dismissal, suspension or other formal disciplinary action shall be prosecuted under departmental rules or regulations unless the complaint is supported by substantial evidence after investigation by authorized investigators.

          (4)     The Chief of Police shall be informed in writing of the nature of the investigation prior to being questioned.

          (5)     Interview sessions shall be for reasonable periods of time. There shall be times provided for the Chief of Police to allow for such personal necessities and rest periods as are reasonably necessary.

          (6)     Except upon refusal to answer questions pursued in a valid investigation, the Chief of Police shall not be threatened with dismissal, suspension or other formal disciplinary action.

          (7)     A complete record, either written, taped or, if taped, transcribed as soon as practical, shall be kept of all interviews held in connection with the administrative investigation. Upon notification that substantial evidence exists for seeking an administrative sanction of the Chief of Police, a copy of the record shall be provided to the Chief of Police or his or her counsel at his or her expense, upon request.

          (8)     If the Chief of Police is under arrest or may reasonably be placed under arrest as a result of the investigation, he or she shall be informed of his or her rights, including the reasonable possibility of his or her arrest, prior to the commencement of the interrogation.

          (9)     The Chief of Police shall have the right to be represented by counsel or other representative of his or her choice, who shall be present at all times during questioning unless waived in writing by the Chief of Police. If the Chief of Police requests representation, the questioning shall be suspended for a reasonable period of time to enable the Chief of Police to obtain the representation requested, if such representation is reasonably available.

           (10)     The Chief of Police or his representative will be provided access to transcripts, records, written statements, written reports, analyses and video tapes pertinent to the case (other than the investigator/prosecutor's notes and work-product materials), if they are exculpatory, intended to support any disciplinary action, or are to be introduced in the hearing on the charges involved. Upon demand of the Chief of Police or his representative, they shall be produced within forty-eight (48) hours of the written notification of the charges.

     B.   Notice of the investigator's findings. At the conclusion of the investigation, the investigator shall inform the Chief of Police, in writing, of the investigative findings and any recommendations for further action.

~ 48-3. Prohibition of adverse material in Chief of Police's file.

  No one shall insert any adverse material into any file of the Chief of Police, except the internal investigation file, unless the Chief of Police has had an opportunity to review, sign, receive a copy of, and comment in writing on the adverse material.

~ 48-4. Disclosure of personal assets.

  The Chief of Police shall not be required or requested to disclose any item of his or her personal property, income, assets, sources of income, debts, personal or domestic expenditures (including those of any member or his or her household), unless such information is necessary in investigating a violation of any federal, state or local law or ordinance with respect to the performance of official duties, or unless such disclosure is required by state or federal law.

~ 48-5. Hearing before Chiefs of Police.

     A.     Entitlement to a hearing. The Chief of Police is entitled to a hearing, which shall be conducted in accordance with the procedures in this Article, when the Chief of Police is:

           (1)     Suspended for any reason;

           (2)     Charged with conduct alleged to violate the rules or regulations or general orders of the department that employs him or her which could lead to any form of disciplinary action, other than a reprimand, which may become a part of the Chief of Police's permanent personnel record; or

           (3)     Charged with a breach of discipline of any kind which could lead to any form of disciplinary action, other than a reprimand, which may become a part of the Chief of Police's permanent personnel record.

     B.   Time of hearing. In the event that the Chief of Police is entitled to a hearing, a hearing shall be scheduled within a reasonable period of time from the alleged incident, but in no event more than thirty (30) days following the conclusion of the internal investigation by the Town Solicitor, unless waived in writing by the Chief of Police.

     C.   Notice of hearing. The Chief of Police shall be given written notice of the time and place of the hearing and the issues involved, including a specification of the actual act(s) that the Chief of Police is charged with having committed, a statement of the rule, regulation or order that the act(s) is alleged to violate and a copy of the rule, regulation or order. The charge against the Chief of Police shall advise him or her of the alleged facts constituting the violation and that the violation of the rule, regulation or order constituted a basis for discipline. The charge shall also specify the range of applicable penalties that could be imposed.

     D.   Panel of Police Chiefs as initial hearing panel. If the Chief of Police is entitled to a hearing, the initial hearing shall consist of a hearing before the Panel of Police Chiefs who shall conduct the hearing and issue its findings. The Panel of Police Chiefs' findings shall conclude with a recommendation either that there is not sufficient evidence to support the charges or that the evidence supports some form of discipline.

     E.     Hearing procedures. If the Chief of Police is entitled to a hearing before the Panel of Police Chiefs, the following procedures shall apply:

           (1)     An official record, including testimony and exhibits, shall be kept of the hearing.

           (2)     The hearing shall be conducted within the Town Hall. Both the Town Solicitor as prosecutor and the Chief of Police and/or his or her representative shall be given an opportunity to present evidence, witnesses and argument as to the issues involved. The Chief of Police may be represented by legal counsel.

           (3)     Evidence which possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs shall be admissible in evidence and given probative effect. The Panel, who shall conduct the hearing, shall give effect to the rules of privilege recognized by law and may exclude incompetent, irrelevant, immaterial and/or unduly repetitious evidence. All records and documents which any party desires to use shall be offered and, if admitted into evidence, made part of the record. Documentary evidence may be received in the form of copies of excerpts or by incorporation by reference.

           (4)     Every party shall have the right to cross-examine witnesses who testify and may submit rebuttal evidence.

           (5)     No evidence may be obtained, received or admitted into evidence in any proceeding of any disciplinary action which violates any of the rights established by the United States or Delaware Constitution or by this Article. The Panel may not enter any finding based on any evidence obtained in violation of the Chief of Police's rights as contained in this Article.

           (6)     The Panel may take notice of judicially cognizable facts and, in addition, may take notice of general, technical or scientific facts within its specialized knowledge. Parties shall be notified beforehand of the material so noticed by the trial board.

           (7)     The Chief of Police may not be adjudged guilty of any offense unless the hearing tribunal is satisfied that guilt has been established by substantial evidence.

~ 48-6. Decision to be in writing.

  Any decision, order or action taken following the hearing shall be in writing and be accompanied by findings of fact and conclusions of law. The findings shall consist of a concise statement upon each issue in the case. A copy of the decision, order or action taken and the Panel's findings of fact and conclusions of law shall be delivered or mailed promptly to the Chief of Police or to his or her attorney or representative of record and to the Town Solicitor and the Council.

~ 48-7. Hearing before Council.

  As soon as possible after the receipt of the findings of the Panel of Chiefs of Police recommending discipline, the Council shall hold a public hearing in accordance with the laws of the State of Delaware. At such a public hearing, the Chief of Police shall be given an opportunity to be heard in his or her own defense. The Council, based on the record made before the Panel of Chiefs of Police and any other evidence introduced at the hearing before Council, shall then determine what discipline (which may include suspension or termination), if any, shall be imposed on the Chief of Police.

~ 48-8. Extra work as punishment prohibited.

  The Chief of Police shall not be compelled to work extra duty without compensation as a penalty for a disciplinary infraction. No suspension for any period of time provided in departmental rules and regulations shall effect the Chief of Police's eligibility for pension, hospitalization, medical and life insurance coverage or other benefits specifically protected. Suspension may affect time by statutory provision or ordinance. Nothing herein shall prevent the Town from requiring the Chief of Police to reimburse the town for the cost of his or her contribution to his or her benefits during his or her time of suspension.