U.S.

Department of Justice
Civil Rights Division

JMS:LLC:MJG:CWH:BDB
DJ 207-52-4

Special Litigation Section - PHB

950 Pennsylvania Ave, NW
Washington DC 20530

January 9, 2014

VIA ELECTRONIC MAIL

Gail M. Lolis
Deputy County Attorney
H. Lee Dennison Building
100 Veterans Memorial Highway
P.O. Box 6100
Hauppauge, NY 11788-0099

RE:

Comments on SCPDs Proposed Changes to Rules & Procedure Chapter 26,

Section 5

Dear Ms. Lolis:

Pursuant to VIII(e) of the Agreement Between the Suffolk County Police Department
and the United States Department of Justice (the Agreement), we write to provide the United
States comments on changes that the Suffolk County Police Department (SCPD) proposes to
make to its Rules and Procedures Chapter 26, Section 5 (R&P 26.5) regarding access to
services by persons with limited English proficiency (LEP).
As you know, the United States approved certain language of R&P 26.5 in December
2013. While we find that some of the changes that SCPD now proposes are acceptable, others
raise concerns, as set forth below.
Applicable Standard
Under the Agreement, changes to policies must define terms clearly, comply with
applicable law, and comport with best practices. Agreement VIII(c); accord id. VIII(j)
(requiring SCPD to conduct an annual review to ensure that [each] policy or procedure provides
effective direction to SCPD personnel and remains consistent with the Constitution, current law,
and best practices.). SCPD policies and procedures must also provide clear direction to ensure
that officers and civilian employees enforce the law effectively, ethically, and constitutionally.
Id. VIII(a).
Title VI of the Civil Rights Act of 1964 (Title VI) and its implementing regulations
require federal financial assistance recipients to take reasonable steps to ensure that LEP
individuals have meaningful access to the recipients programs and activities. See Dept of
Justice Guidance to Fed. Financial Assistance Recipients Regarding Title VI Prohibition Against

-2National Origin Discrimination Affecting Limited English Proficient Persons, 60 Fed. Reg.
41,455, 41,457 n.1 (June 18, 2002) (hereinafter DOJ Guidance). Compliance with Title VI
and its implementing regulations implicates a mix of LEP services, including oral interpretation
and written translation. See id. at 41,460.
Interpretation is the act of listening to something in one language (the source
language) and converting it orally into another language (the target language). See id. at
41,461. At a minimum, interpreters must be able to proficiently communicate in English and a
second language; identify and employ the appropriate mode of interpreting (e.g., consecutive,
simultaneous summarization, etc.); use specialized terms associated with the agencys programs
or activities or those commonly used in the applicable LEP community; and understand and
adhere to their role as interpreter without deviating into other roles (including enforcement of the
laws). See id. Competency [of interpreters] requires more than self-identification as bilingual.
Some bilingual staff may be able to communicate effectively in a different language when
communicating information directly in that language, but not be competent to interpret in and
out of English. Id. (emphasis added); accord id. (If bilingual staff are also used to interpret
between English speakers and LEP persons, or to orally interpret written documents from
English to another language, they should be competent in the skill of interpreting.). Oral
interpretation can range from on-site interpreters for critical services provided to a high volume
of LEP persons to access through commercially-available telephonic interpretation services. Id.
[Q]uality and accuracy of translation services is critical. Id. at 41,464. Accordingly,
translators of written documents should be competent. Many of the same considerations
[applicable to oral interpreters] apply to the competency of translators. Id. [C]ompetence can
often be achieved by use of certified translators. Id.
Discussion
Some of the proposed changes to R&P 26.5 are acceptable and would not limit LEP
individuals meaningful access to SCPDs services. Those changes are set forth in Table 1,
infra. The United States does not object to SCPD implementing them.1
However, we are unable to conclude, based upon the information supplied, that the
balance of the proposed changes would maintain or improve clarity, comply with applicable
legal standards, and comport with best practices. See Agreement VIII(c). We discuss one such
proposal in detail below, and many although not all of the others in Table 2, infra.

Although we have not been advised whether SCPD has consulted with the Latino community on its proposals to
the United States, the changes that the United States grants leave to implement are so narrow in scope that
community consultation is unlikely to result in dramatic changes. Accordingly, in this instance, leave to make these
specific changes is appropriate.

-3By way of example, SCPD proposes that bilingual officers may be used in all situations
to provide interpretation services to LEP individuals in the field, except interrogation, interviews,
and citizen complaints2; SCPD proposes that authorized interpreters be reserved for
circumstances when the information obtained through translation [sic] will be used in a criminal
prosecution, or will be recorded in any written statement. Letter from Christopher Love,
Attachment 1, Oct. 2, 2014 (Proposed Policy). Bilingual officers do not necessarily possess
the skills to interpret. See supra at 2. Under the circumstances, permitting bilingual staff who
are not necessarily competent interpreters to interpretin other than exigent circumstances
does not comply with the applicable regulations or best practices.
Notably, the above-cited language proposed by SCPD would alter current R&P 26.5
language that does comport with Title VI. Under the current, DOJ-approved language of
R&P 26.5, SCPD officers requiring interpretation services in the field must first request an
SCPD-authorized interpreter. See R&P 26.5 VI.B.1.b. If no interpreter is available, a
supervisor is required to contact a telephonic interpreter service and connect the SCPD officer
with the telephone interpreter. See id. Under current policy, non-interpreter bilingual officers
may only be used to communicate with LEP individuals under carefully delineated exigent
circumstances. See id.3 The use of on-site or telephonic interpreters (with a preference for the
former) in all circumstances except those that are exigent falls within the range of acceptable
language access services. See supra at 2.
Accordingly, while we do not approve many of the proposed changes, we are willing to
discuss alternative language or other changes that might be appropriate. We recognize that
operational and financial considerations may inform SCPDs decisions regarding its language
access policies and addressing these or other relevant considerations may best be accomplished
through in-person or telephone discussions.
Lastly, the United States identified its own proposed changes that may improve R&P
26.5. Those changes are set forth in Table 3, infra. We strongly encourage SCPD to consider
how these changes can be incorporated into current policy.
Interpreter Certification
We address separately the issue of SCPDs certification of interpreters. The proposed
testing by Language Line holds promise for assessing language proficiency and interpretation
skills, although it is our understanding that this test does not include terminology and vocabulary
that is specific to law enforcement. Accordingly, the SCPD should further develop its testing
mechanism to account for this gap.
2

The proposed language includes the phrase except as detailed below in Paragraph C, apparently a reference to
section VI.C, Interrogations, Interviews, and Complaints.
3
We do not suggest that an interpreter is absolutely required for appropriate language assistance. Qualified
bilingual officers can play a role in ensuring appropriate access to police services.

-4-

The Agreement establishes a process of consultation between SCPD and representatives

of the Latino community in its implementation of the Language Access Policy, in part to ensure
accuracy and quality of SCPD language assistance services. See Agreement V(f).
Accordingly, we recommend that SCPD give representatives of the Latino community the
opportunity to discuss the proposed interpreter certification process with SCPD, to the extent that
has not already occurred. We will be in a position to discuss the proposal on a more concrete
basis once such consultations have taken place.
SCPD is required to implement other language assessments under the Agreement, such as
oral language proficiency standards for Spanish-speaking members of the Internal Affairs
Bureau, see id. V(a)(vii), and assessments of oral proficiency for bilingual officers, see id.
II(b). SCPD will want to consider, and may want to consult with Latino community
representatives on, how it intends to meet these requirements given the options considered for
interpreter certification.
We look forward to continuing to collaborate to improve LEP individuals access to
SCPD services.
Sincerely,
LORETTA E. LYNCH
United States Attorney
Eastern District of New York
/s/Laura Coon
Laura Coon
Special Counsel
Special Litigation Section
Civil Rights Division
(202) 514-1089

By:

/s/Michael J. Goldberger
Michael J. Goldberger
Chief of Civil Rights
Civil Division
(718) 254-6052

Charles Hart
Brian Buehler
Trial Attorneys
Special Litigation Section
Civil Rights Division
Cc:

Suffolk County Police Commissioner Edward Webber

Compliance Coordinator Christopher Love
Suffolk County Police Department

-5Table 1
SCPDs Proposed Changes--Accepted

Page,
Section
1, I

1, I

SCPD proposes omitting the words

language assistance before the word
service in the following clause: for
providing services to LEP individuals

1, II

2, III.D

2, III.E

4, VI.A.1.d

SCPD proposes inserting the following

language: Department Personnel shall
provide all members of the public with
equal access to police services and shall
not discriminate based upon English
proficiency, national origin, or
immigration status.
SCPD proposes inserting or the
principal speaker in lieu of or the
LEP individual.
SCPD proposes to re-name the LEP
Coordinator the Language Access
Coordinator and designate the head of
the Community Response Bureau for the
position.
SCPD proposes to exclude 9-1-1
operators from the obligation to complete
an auditable form with information about
LEP callers.

No.

Proposed Change
SCPD proposes changing the phrase
individuals who are Limited English
Proficient (LEP) to individuals with
Limited English Proficiency (LEP)

Comment
This is acceptable. However, this
change appears to have led, in a few
instances, to turns of phrase such as
the caller has LEP. Although
consistent with LEP as SCPD
proposes to re-define that term in
section I, we find such constructions
awkward, and prefer LEP
individual or LEP caller. See also
Proposed Policy section VI.G.4
(involved party has an LEP
(emphasis added)).
This is acceptable.

This is acceptable.

This is acceptable.

This is acceptable.

Although we acknowledge that it

may make sense for 9-1-1 operators
to track communication with LEP
individuals differently than an officer
would in the field, SCPD should
establish some method to capture and
aggregate data regarding such calls.
For example, SCPD could require
that data from calls with the L

-6-

7,
Elimination of the phrase sight
VI.C.1.a.(1) translation in procedure for translating
Miranda rights

7, VI.C.1.b,
c

8, VI.C.2.b

10

8, VI.C.3

11

9, VI.D.1.c

12

9, VI.D.2.b

13

10, VI.F.1.a

SCPD proposes adding the following

language to the two sections referenced
here: in addition to completing an
Interpretation Tracking Form (PDCS7042a)
SCPD proposes adding the following
language to this section: and recorded
on an Interpretation Tracking Form
(PDCS-7042a)
Modifications to section on Complaints
Against SCPD personnel

SCPD proposes that forms be readin

[the LEP individuals] primary language
rather than use the term sight
translation in this paragraph.
SCPD proposes requiring Commanding
Officers to ensure that subordinates
complete Interpretation Tracking Forms
(PDCS-7042) when utilizing any
interpretation services, rather than
requiring completion of the LEP resource
and service log.
SCPD proposes changing Commanding
Officer of the Personnel Section to
Supervisor of the Personnel Section

designation be collected and made

available in an accessible format, if
requested.
SCPD proposes to modify the
language in this section, including
eliminating the words sight
translation. While the proposed
modifications are largely acceptable,
SCPD must clarify that the DAI or
Language Line will read the suspect
her/his Miranda warnings in the
suspects primary language.
Also, the word suspect has been
deleted after the word LEP. This
appears to be a typographical error,
and suspect should be inserted.
This is acceptable.

This is acceptable.

The proposed modifications to the

wording in this section are largely
acceptable, with the exception of the
proposed deletion of the current
paragraph b.
This is acceptable.

This change is acceptable, providing

that SCPD requires that
Commanding Officers at each
facility ensure that the completed
Interpretation Tracking Forms be
logged in the appropriate communal
system and stored for future
reference.
This is acceptable.

-714

11, VI.G.1

15

11, VI.G.2,
3

16

VI.G.2.c

SCPD proposes deleting Commanding

Officer of the Community Response
Bureau and the Police Department LA
Coordinator.
SCPD proposes substituting vital
documents for vital documents and
information in subsection (2)(a).
SCPD also proposes eliminating the
requirement that the LA Coordinator
annually review all translated documents
and materials issued by the Department
and posted to its website to translate
documents into additional languages, and
substituting a requirement that the LA
Coordinator assess data and consult with
community groups to make a similar
determination.
The LA Coordinator must determine
whether the Department is providing
meaningful access to police services for
LEP individuals.

These changes are acceptable

because they appear in the definition
of LA Coordinator.
These changes are acceptable
providing that the LA Coordinators
assessment of data and consultations
with community-based organizations
are mandated to be held at least
annually.

This change is acceptable.

Table 2
Discussion of Changes that Have Not Received Approval
No.
1

Page,
Section
2, III

2, III.G

Original Language
The current version of
R&P 26.5 includes a
definition of
Language Assistance
Services defined as
two primary types of
services which require
distinct sets of skills
and competency: oral,
interpretation; and
written translation.
The current version of
R&P 26.5 prohibits the
translation of vital
documents or
materials us[ing]
online or electronic
translation tools.

Proposed Change
SCPD proposes deleting
this definition.

Comment
The definition and the use of
language assistance services
throughout the current version
of R&P 26.5 seem helpful,
and it is unclear why it should
be deleted.

SCPD proposes deleting

this restriction.

This is not an acceptable

change. [Q]uality and
accuracy of translation
services is critical. DOJ
Guidance at 41,464. The
current prohibition on using
online or electronic

-8-

3, III.I

3, III.L

3, III

The current definition

of Department
Authorized
Interpreter requires,
inter alia, assessment
of the interpreters
skills, competency
in a language other
than English, and a
separate assessment
for translation ability.
The current version of
R&P 26.5 limits the
use of temporary
interpreters (such as
bilingual members of
the general public) to
exigent
circumstances that
preclude the use of
authorized on-site
interpreters or the
Language Line
telephonic
interpretation.

SCPDs proposed
definition eliminates any
requirement of an
assessment and any
distinction between
interpretation and
translation. SCPD also
proposes changing
competency to a
fluency.

The current version of

R&P 26.5 defines
bilingual.

SCPD proposes
eliminating any definition
of bilingual.

SCPD proposes deleting

this limitation.

translation tools seems

helpful in ensuring quality,
accurate translations, and it is
unclear why SCPD would
oppose this restriction.
The Agreement and
applicable law and regulations
require skills assessments for
staff providing language
access to LEP individuals; it
is unclear why SCPD would
propose to eliminate such
requirements from its policy.
We also believe the current
construction is clearer.
The DOJ Guidance strongly
discourages routine reliance
upon bilingual members of
the general public as
interpreters. See DOJ
Guidance at 41,462
(recipients should not plan to
rely on an LEP persons
family members, friends, or
other informal interpreters to
provide meaningful access to
important programs and
activities). The current
definition of temporary
interpreters is consistent with
this Guidance. Particularly
given the discussion in our
letter concerning the
deployment of bilingual
officers as uncertified
interpreters, the United States
disagrees with SCPDs
assessment that the current
language is [r]epetitive and
unnecessary.
The word bilingual appears
throughout R&P 26.5; it is
unclear what purpose is
served by declining to define
this term.

-96

3, III

4, VI.A.2

4, VI.B.1

4,
VI.B.1.a

10

4,
VI.B.1.b

11

8, VI.C.3

12

8, VI.D

The current version of

R&P 26.5 includes a
definition for sight
translation.
The current R&P 26.5
requires dispatchers to
inform members of
SCPD responding to a
call if interpreter
services will be
needed.
Under the current R&P
26.5 providing
interpretation services
in the field is
triggered when
members of the
Department , in the
course of their duties,
communicate with
LEP individuals.
The current R&P 26.5
requires officers to
identify the LEP
individuals primary
language, using the
Language
Identification
Flashcards.
Currently, the officer
first requests the
appropriate interpreter
once an LEP
individuals primary
language is identified.
Currently, R&P 26.5
requires that an LEP
complainants
language assistance
services needs be
identified and noted
when the complaint is
filed.
Currently, R&P 26.5s
section on signage
requires that signage

SCPD proposes deleting

this definition.

It is unclear why SCPD

proposes to delete this
definition.

SCPD proposes deleting

this requirement.

The current requirement

appears to enhance language
access. There appears to be
no reason to delete it.

SCPD proposes additional

requirements before
interpretation services are
required, including that the
interaction with the LEP
individual necessitate[s]
the completion of any
Departmental form or the
entry of data.

SCPDs proposed changes

would narrow too strictly the
circumstances under which
interpreters are required. We
are willing to discuss other
changes to this section.

Under SCPDs proposed

changes, officers would
use a Language
Identification Chart.
SCPD did not provide a
copy of the proposed
chart.

Although this change may be

acceptable, the United States
is unable to assess it without a
copy of the proposed chart.

SCPD proposes that

officers be required to
request the appropriate
language assistance
service (emphasis added).

This directive seems less clear

and does not, by itself, serve
to enhance language access.

SCPD proposes deleting

this requirement.

The data collected pursuant to

the current policy appears
helpful in reporting
compliance with Agreement
V(a)(vi), among others. It is
unclear why SCPD seeks to
delete the current
requirement.
These changes would appear
to diminish LEP individuals
access to SCPD services. We

SCPD proposes deleting

both requirements.

-10-

13

10,
VI.D.1.b

about the availability

of interpreters and
forms in language
other than English be
posted in a
conspicuous location
at public entry points
to SCPD facilities and
on the main page of
the SCPD website.
Currently, R&P 26.5s
section on signage
requires that
information on signs
and on the website be
translated and printed
in English, Spanish,
and the five most
commonly spoken
non-English languages
in the Police District,
and verified by a
Department
Authorized Interpreter.

are unclear why the SCPD

seeks to make this change.

SCPD limits the

application of this
paragraph to signs (not the
website) and to English,
Spanish, and other
languages commonly
spoken in the Police
District. SCPD proposes
to eliminate any
requirement as to the
accuracy of the translation.

SCPD has previously

proposed to phase in
translations of documents into
non-English languages other
than Spanish; the United
States has accepted this
proposal, and expects that
such translations are
proceeding apace. It remains
unclear why SCPD proposes
to limit its obligation to
translate documents into
languages commonly spoken
in the Police District. To the
extent SCPD is seeking to
eliminate unnecessary
translation, it may look to the
Safe Harbor provision in the
DOJ Guidance. For example:
where a DOJ recipient
provides written translations
of vital documents for each
eligible LEP language group
that constitutes five percent or
1,000, whichever is less, of
the population of persons
eligible to be served or likely
to be affected or encountered,
strong evidence of
compliance exists. See DOJ
Guidance at 41,464. We are
willing to elaborate on this
issue.
It also is unclear why SCPD
would propose to eliminate a

-11-

14

9, VI.E.1

15

9, VI.E.2

16

10,
VI.F.2

The annual training is

to include, inter alia:
a. the requirements of
this chapter and all
related LEP
procedures;

d. procedures for
accessing and
requesting translated
materials.
Training curriculum to
accord with, inter alia,
the contents of this
chapter
SCPD members
provide their own
documentation of
certification as an
interpreter.

SCPD proposes deleting

these requirements.

requirement to verify the

accuracy of translations.
It is unclear why SCPD
proposes to delete these
requirements.

SCPD proposes
eliminating this
requirement.

It is unclear why SCPD

makes this proposal.

A new system in which

aspiring interpreters are
scheduled for a test
through Language Line.

Even assuming that

certification of interpreters
through Language Line is
acceptable in principle, the
proposed new construction of
this section includes
problematic language. For
example: members seeking
inclusion on the DAI list
request testing of their
language proficiency, but the
LA Coordinator schedules an
Interpreter Skills Test. A
test of interpretation skills
will require more than
language proficiency.
Should SCPD need to identify
a method of interpreter
certification different than
that in the current R&P 26.5,
such as Language Line, we
suggest that SCPD only
modify the current language
where necessary.

-12Table 3
United States Proposed Changes
No.
1

Page,
Section
2, III.B

Topic
Definition of Limited English Proficiency
(LEP)

2, III.H;
10, VI.F

Definition of Bilingual; Qualifications

6, VI.B.2.c

Duration of the exigency

VI.E

DAI Training

VI.F.2

Skills Assessment

VI.G.1

LA Coordinator

Comment
It may be helpful to provide an
example of how LEP designations
are context-specific, e.g., For
example, an individual may possess
sufficient English language skills to
work as a cashier in a store, but may
find these skills are insufficient when
speaking to a police officer about a
robbery.
The Agreement requires that SCPDs
bilingual personnel have their oral
proficiency in a non-English
language or languages assessed (or
reassessed) biennially. Agreement
II.b. Even assuming that such
assessments are already taking place
in practice, SCPD policy must also
reflect this requirement. See id.
IX.a. Accordingly, the United
States recommends that the
appropriate sections of R&P 26.5,
including sections III.H and VI.F,
reflect this requirement, and set forth
procedures designed to realize it.
Authorized interpreters and bilingual
officers are best positioned to
determine whether further
interpretation is required and/or
whether the interpretation provided is
complete and accurate. Accordingly,
we recommend that the policy
require that a DAI or bilingual
officer make the determination to
close out the use of an interpreter.
We recommend that, to the extent
SCPD does not address DAI training
in other policies, this policy include
the relevant aspects of such training.
We recommend that the policy state
how often the LA Coordinator will
assess DAIs each year.
We recommend that the policy set

-13-

VI.G.2

Community Review

VI.G.5

Collection, Tracking, and Analysis of

LEP Data

N/A

Translation of Documents

forth the complete set of

responsibilities for the LA
Coordinator, to the extent it does not
already do so.
In addition to the sources of data
listed, data from school districts and
local hospitals can be useful in
identifying new or growing language
groups.
We recommend that the LA
Coordinator assess the data and
report the analysis to the
Commissioner twice each year. This
will enable proper resolution of
problems and modifications to
services.
The policy could address translation
of documents more thoroughly. We
would be pleased to discuss how this
could be achieved.