1. (a) The department shall ensure that each investigation is conducted pursuant to existing laws, regulations, and departmental policies and procedures.
2. (b) When an investigator is assigned a case, they shall disclose if they have a potential conflict of interest in the case prior to investigating the allegations of staff misconduct toward incarcerated or supervised persons. If a potential conflict is disclosed then a manager shall determine whether an actual conflict exists and, if so, shall assign the case to another investigator.

3. (c) Completion of Investigations.

   1. (1) When investigators conduct investigations, they shall ensure that all relevant evidence is gathered, recordings are preserved, and interviews are conducted.
   2. (2) At the conclusion of an investigation, the assigned investigator shall prepare a confidential investigative report which summarizes the facts and evidence gathered during the investigation.

4. (d) Closure of Investigation Based on Special Conditions.

   1. (1) An investigator may recommend an investigation be closed whenever one of the following special conditions is met:

      1. (A) Upon review of all relevant video and audio recordings, sufficient evidence exists to prove conclusively that the alleged misconduct did not occur;
      2. (B) Upon review of all relevant video and audio recordings, sufficient evidence exists to prove conclusively that the alleged misconduct did occur and each of the employees engaged in the alleged misconduct were given the opportunity to respond to the allegation and provide any mitigating factors that the Hiring Authority should consider;
      3. (C) Upon review of an allegation that staff engaged in misconduct, no reasonable investigatory steps remain for the investigator to pursue because the allegation lacks sufficient detail and the claimant refused to participate in an interview, participated in an interview but was still unable to provide sufficient detail, or could not participate in an interview due to their long-term unavailability; or
      4. (D) Upon review of an allegation that staff failed to take a specific action, documentary evidence found in the department's information technology system clearly shows that the action was taken by that same staff.

   2. (2) If the investigator determines that one of the special conditions in subsection (d)(1) applies, the investigator shall document the evidence in support of their conclusion and forward their report to a supervisor at least one rank higher than the investigator and, if the case is designated, to the assigned Vertical Advocate. Thereafter:

      1. (A) If the case is designated and the supervisor and Vertical Advocate concur that one of the special conditions applies, then the supervisor shall forward the report to the Hiring Authority for review.
      2. (B) If the case is designated and either the supervisor or the Vertical Advocate do not concur that one of the special conditions apply, then the supervisor shall refer the matter back to the investigator for further investigation; or
      3. (C) If the case is not designated and the supervisor concurs that one of the special conditions apply, then the supervisor shall forward the report to the Hiring Authority for review.

   3. (3) After receiving notification, if the Hiring Authority:

      1. (A) Does not concur that one of the special conditions apply or determines additional investigation is warranted, then the Hiring Authority shall notate their concerns in the department's information technology system and refer the matter back to the investigator for further investigation.
      2. (B) Concurs that the first, third, or fourth special condition applies and determines additional investigation is not warranted, then the Hiring Authority shall notify the subject of the investigation and the claimant that the investigation was closed; or
      3. (C) Concurs that the second special condition applies and determines additional investigation is not warranted, then the Hiring Authority shall determine what, if any, corrective or disciplinary action is warranted.

5. (e) Investigative Report Review.

   1. (1) A supervisor at least one rank higher than the investigator shall review the draft investigative report to determine whether the investigation is sufficient, complete, and unbiased.
   2. (2) For designated cases, the Vertical Advocate shall review the draft investigative report and all supporting exhibits and recordings, and provide feedback to the assigned investigator.
   3. (3) After the investigative report is finalized, the investigative report and all supporting exhibits and recordings shall be provided to the Hiring Authority and, if the case is designated, to the assigned Vertical Advocate.
   4. (4) If the Hiring Authority finds the investigation insufficient to make a finding for each allegation, they shall request additional investigation in accordance with subsection 3392.5(c).
   5. (5) If the Hiring Authority finds the investigation sufficient to make a finding for each allegation, they shall do so in accordance with section 3392.1.

Note: Authority cited: Section 5058, Penal Code. Reference: Section 5054, Penal Code; Armstrong et al. v. Newsom et al., United States District Court for the Northern District of California, Court Case number 94-cv-02307-CW; Madrid v. Woodford, Special Masters Final Report Re: Department of Corrections Post Powers Investigations and Employee Discipline; Case No. C90-3094-T.E.H; Madrid v. Woodford, Order; and Case No. C90-3094-T.E.H. Class Action.

History

1. New section filed 12-28-2021 as an emergency; operative 1-1-2022 (Register 2021, No. 53). A Certificate of Compliance must be transmitted to OAL by 6-10-2022 or emergency language will be repealed by operation of law on the following day.

2. New section refiled 6-13-2022 as an emergency; operative 6-13-2022 (Register 2022, No. 24). A Certificate of Compliance must be transmitted to OAL by 9-12-2022 or emergency language will be repealed by operation of law on the following day.

3. Certificate of Compliance as to 6-13-2022 order, including amendments, transmitted to OAL 9-9-2022 and filed 10-20-2022 (Register 2022, No. 42). Effective on filing based on good cause pursuant to Government Code section 11343.4(b)(3).

4. Change without regulatory effect amending section heading and subsection (b)(2) filed 7-1-2024 pursuant to section 100, title 1, California Code of Regulations (Register 2024, No. 27).

5. Amendment filed 12-26-2024 as an emergency; operative 1-1-2025 (Register 2024, No. 52). Pursuant to Penal Code section 5058.3, a Certificate of Compliance must be transmitted to OAL by 6-10-2025 or emergency language will be repealed by operation of law on the following day.

6. Editorial correction of subsection (b)(2) (Register 2025, No. 23).

7. Amendment refiled 6-10-2025 as an emergency, including further amendment of subsection (b)(2); operative 6-11-2025 (Register 2025, No. 24). Pursuant to Penal Code section 5058.3, a Certificate of Compliance must be transmitted to OAL by 9-9-2025 or emergency language will be repealed by operation of law on the following day.

8. Amendment refiled 9-2-2025 as an emergency; operative 9-10-2025 (Register 2025, No. 36). A Certificate of Compliance must be transmitted to OAL by 12-9-2025 or emergency language will be repealed by operation of law on the following day.

9. Certificate of Compliance as to 9-2-2025 order, including amendment of section heading and section, transmitted to OAL 12-8-2025 and filed 1-22-2026; amendments operative 1-22-2026 pursuant to Government Code section 11343.4(b)(3) (Register 2026, No. 4).