Allegations of disqualifying misconduct are tried before a panel of officers and academics from across the state. There are different standards for who will be on the panel depending on the officer’s law enforcement agency. For example officers from WSP have a different panel make up than do local sheriff deputies.
An Assistant Attorney General will be responsible for presenting the case to the panel for the CJTC. The hearings are not run like courtroom trials officers are so familiar with. The rules and procedures are more relaxed in the hearings. This allows the panel to consider hearsay statements (things people say).
The standard of proof used in determining whether the facts used to support the decertification are relatively high. Pursuant to RCW 43.101, the CJTC adopted rules related to the decertification of an officer. These standards were adopted into the Washington Administrative Code, section 139-06-100. The code provides that “The standard of proof shall be clear, cogent and convincing evidence.” What does that mean? The phrase actually comes from the courts and is considered an intermediary standard between the typical civil jury standard of a preponderance of the evidence (“more likely than not”) and the criminal standard of “beyond a reasonable doubt.”
Washington courts use standard jury instructions in trials. These instructions define “clear cogent and convincing” in the following way:
Proof by clear, cogent, and convincing evidence means that the element must be proved by evidence that carries greater weight and is more convincing than a preponderance of evidence. Clear, cogent, and convincing evidence exists when occurrence of the element has been shown by the evidence to be highly probable. However, it does not mean that the element must be proved by evidence that is convincing beyond a reasonable doubt.
A “preponderance of the evidence” means that you must be persuaded, considering all the evidence in the case, that a proposition is more probably true than not true. “Preponderance of the evidence” is defined here solely to aid you in understanding the meaning of “clear, cogent, and convincing.
To revoke the officer’s certification, the panel must be convinced of facts which justify the revocation exist by clear, cogent and convincing evidence, but in making that decision, they are allowed to consider evidence that would not be admissible in a courtroom trial. This raises issues for the parties and the panel – to what extent can the panel rely solely on evidence that is not actually before them, such as hearsay statements made by someone who never appears in front of the panel. Unfortunately for the officer, the panel may consider and rely on the hearsay statements, provided there is some other slight evidence corroborating the information.
If the misconduct is proved, the panel still acts as a sentencing judge. RCW 43.101 does not require the panel to revoke the officer’s certification even if the allegations are proved! The panel is allowed to consider reasons for leniency for an officer.
There are many examples where leniency may be warranted. For example, an officer may have committed misconduct but have been suffering from medical issues at the time, such as alcohol abuse. During a departmental disciplinary hearing the officer may have tried to conceal his or her problem and denied drinking. That denial may form the basis for termination due to dishonesty, which sets up the decertification process. If that officer then turned his/her life around, gone through treatment, become a model citizen, the panel may consider this as a reason notto revoke the officer’s certification.
The backdrop for officers is that Washington law does recognize the idea that a mistake should not define them. Few realize that Washington law explicitly allows officers to have prior felony convictions, and still be a peace officer. RCW 43.101.105 explicitly allows agencies to hire and employ officers with felony convictions, provided the prospective officer fully disclose his/her background at the time of hiring. This is consistent with the overall theme in Washington to forgive people who do wrong but are reformed. As a practical matter, any agency considering hiring a felon is going to look extremely close at the circumstances of the act, such as was it a negligent act by an 18-year-old (such as assault 3 by negligently hurting someone) or was it an intentional act by a 33 year old? The 18-year-old may be offered a job a few years later, but the 33-year-old most likely would not be. However, the point is that the panel may consider the surrounding facts and may grant leniency to the officer if circumstances warrant.