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Re: Civilian Review <br />June 7, 2005 <br />Page 5 <br /> <br />investigation. However, he or she should not participate in any portion of the criminal <br />investigation because courts have determined this to be coercive. Garrity v. State of New Jersey, <br />385 US 493, 87 S Ct 616 (1967). The auditor may review and rely upon the criminal <br />investigation once it is complete. <br /> <br /> D. Adjudication <br /> <br /> Adjudication outcomes should be recommended by the auditor at the initial level of <br />review in the chain of command, not for the first time at the level of the chief. As noted above, <br />in order to maintain police sergeants and lieutenants as supervisors exempt from the PECBA and <br />the FLSA, they must maintain an active role in the adjudication of complaints and the imposition <br />of discipline. <br /> <br /> We do not recommend that the auditor have the authority to dictate the outcome of an <br />investigation or override the Police Chief's decision as to whether a complaint is sustained or <br />unfounded. As a public employer, the City has the burden at arbitration to prove that federal <br />procedural due process requirements were met and that the discipline is supported by just cause. <br />If the auditor is able to override the recommendations of the police chain of command and to <br />dictate a different outcome in a particular case, the City's ability to sustain the discipline would <br />be seriously compromised. For example, if the auditor recommended that a complaint be <br />sustained, but the Police Chief recommended otherwise, the union could call the Chief as its <br />witness to demonstrate that the Chief's determination supported a different outcome. This <br />potential conflict would compromise the City's ability to sustain discipline decisions at <br />arbitration. <br /> <br /> E. Mandatory subjects of bargaining <br /> <br /> The auditor's role as described above does not give rise to mandatory bargaining. <br />However, if the auditor's role creates any substantial change to the current time lines for <br />investigation of complaints, the time lines for the investigation will need to be bargained. The <br />reasons for this are described in further detail in the opinion dated March 1, 2005. <br /> <br /> III. CIVILIAN REVIEW BOARD FUNCTION <br /> <br /> A. Appointment of the Board <br /> <br /> The City Council currently lacks Charter authority to appoint a CRB which would be <br /> <br /> <br />