An officer is generally entitled to have an attorney (or other representative) present when he/she is being questioned if the officer reasonably believes that the questioning could lead to disciplinary action. When a supervisor asks questions of the officer, the officer must: (1) analyze the situation and determine if he/she reasonably believes that discipline could result; then (2) decide whether to answer right now or not. “Discipline” would not generally include coaching, guiding, mentoring, directing, documenting general work performance, or other non-punitive supervisory activities.

If an officer is unsure about whether he/she thinks that discipline could result from the conversation, he/she should consider:

• whether he/she has been presented with formal notice of complaint or investigation;
• the seriousness of the incident;
• his/her disciplinary history;
• his/her reputation/standing with the involved chain of command;
• the nature of the question(s);
• the supervisor’s demeanor;
• his/her reputation with the supervisor;
• the supervisor’s character and reputation; and
• all other facts of the situation.

If the officer is still unsure, he/she should consider specifically asking the supervisor if:

• he/she intends to initiate a formal internal investigation; and
• the questioning could result in discipline.  

If any doubt remains, the officer should consider asking the supervisor for a few minutes; and then seeking advice from a competent and trusted advisor.

If the officer reasonably thinks that the conversation could result in discipline, he/she can decide to either: (1) answer the questions right away (without the benefit of first considering the issue/incident and without the benefit of advice and counsel); or (2) ask the supervisor to reschedule the conversation to arrange for someone to accompany the officer.

Many supervisors who desire only to correct, train, coach, guide, and mentor will have no issue with having the same conversation later in the presence of a representative. Some supervisors may even be willing to figure out a way to have the conversation (and accomplish the desired correction, training, coaching, guidance, and mentoring) without eliciting statements from the officer that could potentially subject the officer to discipline.

However, there is some practical risk in making a request to reschedule the conversation. Some supervisors may feel that they have no choice but to escalate the issue to a formal complaint or formal disciplinary investigation. Some supervisors could feel somehow slighted, disrespected, or offended, or feel that that their authority is somehow being challenged (somewhat the same way that some officers feel when a suspect exercises their Constitutional rights under Miranda or refuses to grant consent for a search).

Officers should not unnecessarily complicate an otherwise simple interaction just to be difficult or just because they can; instead, officers should approach these conversations with professionalism and respect and give due consideration to their decisions and the implications.

Of course, each situation is unique. This information should not replace advice from a competent and experienced police attorney. Please call us. We are always available (and on-call 24/7/365) to serve the needs of Missouri law enforcement officers.