West Virginia Code of State Rules › Agency 81 - State Police › Title 81 - LEGISLATIVE RULE WEST VIRGINIA STATE POLICE › Series 81-10 - West Virginia State Police Professional Standards Investigations, Employee Rights, Early Identification System, Psychological Assessment And Progressive Discipline › Section 81-10-8 - Employee Rights and Conduct During an Internal Investigation

Current through Register Vol. XLI, No. 28, July 12, 2024
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.