Report Title:

Law Enforcement Officers; Bill of Rights

 

Description:

Creates a law enforcement officers' bill of rights. Establishes procedures for the investigation, interrogation, and discipline of law enforcement officers. Requires the establishment of a law enforcement officer grievance procedure. (SD2)

 

THE SENATE

S.B. NO.

848

TWENTY-FIRST LEGISLATURE, 2001

S.D. 2

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to law enforcement officers.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

LAW ENFORCEMENT OFFICERS' BILL OF RIGHTS

PART I. GENERAL PROVISIONS

   -1 Policy statement. Law enforcement officers have a vital mission in society. This chapter is enacted because:

(1) Historically, law enforcement officers have not been afforded the full complement of constitutional and other protections provided to members of society; and

(2) The unique nature of the responsibilities associated with being a law enforcement officer, combined with the legitimate needs of a law enforcement agency to maintain an efficient and effective organization, require that law enforcement officers be afforded certain substantive, procedural, and remedial protections not afforded to members of society generally.

   -2 Statutory construction. Any ambiguities within this chapter shall be resolved by providing a liberal interpretation to effectuate the policy statement in section    -1. Any conflict between this chapter and any other state law shall be resolved to give effect to this chapter, which supersedes all state law to the contrary. Similarly, this chapter preempts all county law. Chapter 91 is applicable to the extent that it does not conflict with this chapter. However, none of the remedies in part IV require an exhaustion of administrative remedies.

   -3 Administrative regulations. A law enforcement agency may adopt administrative regulations and procedures necessary to implement this chapter.

   -4 Definitions. When used in this chapter, unless the context otherwise requires:

"Agency" means a law enforcement agency.

"Circuit court", in an action related to an administrative hearing, means the circuit court of the county where the administrative hearing was conducted or is scheduled to be conducted. Otherwise, "circuit court" means the circuit court of the county where a law enforcement officer regularly serves.

"Declaratory advocate" means an individual selected by a law enforcement agency to represent the interest of the agency in a declaratory hearing. A declaratory advocate may be an attorney or nonattorney and may be a member of the agency or from outside the agency.

"Declaratory hearing" means an administrative hearing initiated against a law enforcement agency by a law enforcement officer seeking a declaration that a proposed personnel action is punitive and thus invalid without a finding of guilt pursuant to a disciplinary hearing.

"Disciplinary advocate" means an individual selected by a law enforcement agency to represent the interest of the agency in a disciplinary hearing. A disciplinary advocate may be an attorney or nonattorney and may be a member of the agency or from outside the agency.

"Disciplinary hearing" means an administrative hearing initiated by a law enforcement agency against a law enforcement officer based on probable cause to believe that the officer has violated or is violating a rule, regulation, or procedure related to service as an officer and is subject to punitive personnel action. A disciplinary hearing results in a finding of guilty or not guilty as to each administrative charge and, if the finding is guilty, in a recommendation as to punishment.

"Hearing board" means a three-member body selected to make a finding of fact on the issue of guilt in a disciplinary hearing and to recommend the appropriate punishment upon a finding of guilt. Subject to the exceptions in section    -34(i) for small law enforcement agencies, a hearing board shall be composed of three members of the agency, selected from a nine-member hearing board panel drawn in a neutral (preferably computerized) manner from a hearing board pool composed of all members of the agency, excluding the police chief and the second highest ranking officer.

"Hearing officer" means the judge of law presiding over disciplinary and declaratory hearings within a given law enforcement agency. A hearing officer may not be a member of the agency and shall be selected, either on a permanent, case-by-case, or other basis, by the civilian agency under which the law enforcement agency serves.

"Interrogation" means whenever a law enforcement officer is subjected to any of the following:

(1) Questioning under circumstances that may lead to punitive personnel action;

(2) Conduct or words designed to elicit a response or that should be known to be reasonably likely to elicit a response, regardless of whether a response is forthcoming, under circumstances that may lead to punitive personnel action;

(3) A polygraph examination;

(4) Chemical testing; or

(5) Preparing, completing, or submitting a report, document, or questionnaire, whether routine or otherwise, if prepared, completed, or submitted, as a result of conduct for which the officer is under investigation or comes under investigation as a result of the content of the report, document, or questionnaire.

"Investigation" means when the law enforcement agency for which the officer serves, acting alone or in cooperation with another agency or a division or unit within the agency, or an individual officer of the agency who is superior in rank to and in the direct chain of command of the officer, takes any action with regard to the officer including but not limited to asking questions of other officers or civilians, conducting observations, evaluating reports, records, or other documents, and examining physical evidence, if the action is based on reasonable suspicion that the officer will in the future, is at that time, or has in the past violated a criminal or civil statute or regulation, or violated a rule, regulation, or procedure related to service as an officer.

"Law enforcement agency" means any state, county, city, or other governmental agency that has as its primary responsibility the prevention and detection of criminal activity or the enforcement of criminal, traffic, or related laws including but not limited to all police departments and sheriff departments.

"Law enforcement officer" means a member of a law enforcement agency, either full-time or part-time, cadet or officer, probationary or nonprobationary, commissioned or noncommissioned, career or noncareer, tenured or nontenured, merit or nonmerit, paid or unpaid, who is serving in a position for which the primary responsibilities are the prevention and detection of criminal activity or the enforcement of criminal, traffic, or related laws. A law enforcement officer position is usually indicated by formal training (regardless of whether the officer has yet completed or even been assigned to the training) and is usually accompanied by the power of arrest.

"Notice" means written notification mailed or hand-delivered that is:

(1) Provided directly to a law enforcement officer who is either not represented or who has a nonattorney representative;

(2) Provided to a law enforcement officer's attorney if the officer is represented by an attorney; or

(3) Provided to the declaratory advocate or disciplinary advocate for a law enforcement agency, or if an advocate has not yet been appointed, to the police chief or the police chief's designee for notice purposes.

"Officer" means a law enforcement officer.

"Per se nonpunitive personnel action" means involuntary transfer or reassignment, dismissal, or early retirement based on the certification of two physicians that, because of a medical condition, the law enforcement officer lacks the ability to perform at a minimally acceptable level and that no less drastic personnel action can accommodate both the needs of the officer and the law enforcement agency.

"Per se punitive personnel action" means action that may only be taken upon a finding of guilt in a disciplinary hearing and that results in:

(1) Dismissal from a law enforcement agency; provided that this action is nonpunitive if the law enforcement officer is a recruit in training and the dismissal is based solely on a failure to meet minimum academic and performance standards;

(2) Suspension from a law enforcement agency;

(3) Demotion in rank;

(4) Loss of base pay, leave pay, or leave time; or

(5) Placement of adverse material in a law enforcement officer's record, including any temporary or permanent file relating to personnel, performance, promotion, or retirement matters.

"Police chief" means the chief of police, the acting chief of police, or the highest-ranking officer of a law enforcement agency, regardless of the designation of the position.

"Prosecutor" means a county or state prosecutor, attorney general, district attorney, deputy attorney general, or a designee thereof, or a United States attorney or an assistant United States attorney.

"Punitive personnel action" means punishment imposed as a result of a finding of guilt in a disciplinary hearing. The following personnel actions may be punitive, depending on whether instituted for the purpose of punishment or as sound, discretionary management decisions based on the legitimate needs of a law enforcement agency to maintain an efficient and effective organization:

(1) Loss of sick leave, shift pay, bonus pay, or overtime pay; and

(2) Involuntary transfer or reassignment;

provided that these actions are nonpunitive as applied to a law enforcement officer with less than two years of service.

PART II. RIGHTS

   -11 Generally. A law enforcement officer shall enjoy all of the rights, privileges, and protections afforded to members of society generally, regardless of whether the source is constitutional, statutory, regulatory, or otherwise. In no manner shall an officer be deemed to have fewer rights, privileges, or protections solely by virtue of the officer's status as an officer. This includes the right to exercise any privilege or protection without fear of threat, harassment, retaliation, or punitive personnel action. Even though this section shall be deemed to encompass all rights, privileges, and protections, sections    -12 to    -16 address rights, privileges, and protections of particular concern to officers.

   -12 Bill of rights. Each law enforcement officer shall receive a copy of this bill of rights, as well as all subsequent amendments enacted by the legislature. Each officer shall receive a copy of all administrative regulations adopted pursuant to this bill of rights. The regulations shall contain, at a minimum, all conduct subject to punitive personnel action, including the maximum punishment for each violation. An officer may waive any right provided by this bill of rights; provided that the waiver is in writing and contains the following language:

WAIVER OF THE LAW ENFORCEMENT OFFICERS'

BILL OF RIGHTS

The Law Enforcement Officers' Bill of Rights is designed to provide the law enforcement officer with certain substantive, procedural, and remedial protections not afforded to members of society generally. You are strongly urged not to waive any protection afforded by this bill of rights unless an attorney or other knowledgeable individual representing your interest believes that a waiver of a given right is in your best interest. It is a violation of your rights for any individual to obtain or attempt to obtain a waiver from you by trickery, harassment, or threat.

I, ___________________________, have read and considered the above paragraph concerning waiver of my rights under the law enforcement officers' bill of rights. I have indicated my decision concerning waiver, this ___ day of _____, 200_, as follows:

(1) I refuse to waive any of my rights under the Law Enforcement Officers' Bill of Rights.

___________________________

Signature

(2) I do not waive all of my rights under the Law Enforcement Officers' Bill of Rights. However, I do waive the

following rights, either designated by section or explained as follows:______________________________________________________

______________________________________________________________

___________________________

Signature

(3) I waive all of my rights under the Law Enforcement Officers' Bill of Rights.

___________________________

Signature

   -13 Collective bargaining agreement. A law enforcement officer is entitled to all substantive and procedural benefits contained in a collective bargaining agreement. The negotiated rights may be used by an officer in lieu of or in addition to this bill of rights.

   -14 Political activity and other first amendment interests. A law enforcement officer, when off-duty and when not acting in an official capacity, shall enjoy the same right to engage in political activity and the same freedoms of speech, expression, and association afforded to members of society generally, subject to reasonable regulation by a law enforcement agency with regard to association with known felons.

   -15 Right of nondisclosure. A law enforcement officer shall not be required to disclose any personal, family, or financial information relating to the officer or any member of the officer's family or household, subject to reasonable regulation by a law enforcement agency with regard to the mental and physical capabilities necessary to perform as an officer.

   -16 Fourth, fifth, and sixth amendments. A law enforcement officer shall enjoy the full complement of all constitutional protections afforded to members of society generally by the fourth, fifth, and sixth amendments to the United States Constitution, as made applicable to the states through the due process clause of the fourteenth amendment.

   -17 Due process of law. A law enforcement officer shall be afforded due process of law. In determining due process rights, an officer's position of employment shall be deemed a property interest, protected by the due process clause of the fourteenth amendment, once the officer has successfully completed all training and probationary periods, but in no event later than two years after the commencement of service as an officer.

   -18 Secondary employment. A law enforcement officer is entitled to engage in secondary employment, subject to reasonable regulation by a law enforcement agency. An officer who is licensed to practice law may not be prohibited from providing legal representation to another officer, even in matters with or against the agency, solely because both the attorney and the client are members of the same agency.

PART III. PROCEDURES

SUBPART A. INVESTIGATION

   -31 Notice of investigation. A law enforcement officer under investigation shall be notified of the investigation within five days of the commencement of the investigation. Notice shall include the general nature and scope of the investigation and all criminal, civil, and departmental violations for which reasonable suspicion exists. No investigation based on a complaint from outside the law enforcement agency may commence unless the complainant provides a signed and notarized detailed statement. An investigation based on a complaint from outside the agency shall commence within fifteen days of receipt of the complaint by the agency.

The notice requirement is continuing in nature in the event of a change in the nature or scope of an investigation or the possible crimes or violations arising therefrom. The notice requirement is waived if the agency is investigating a matter it considers criminal, and not administrative, in which event the agency is precluded from instituting administrative charges against the officer unless and until criminal charges are filed against the officer by the prosecutor.

SUBPART B. INTERROGATION

   -32 Prior to interrogation; notice. (a) A law enforcement agency shall notify a law enforcement officer of its intent to subject the officer to interrogation at least seventy-two hours prior to interrogation. The notice shall include the name, rank, and command of the interrogating officer and one other person, if applicable, to be present during interrogation.

(b) A law enforcement agency shall notify the law enforcement officer at least seventy-two hours prior to the interrogation of the right to have a representative present during the entire interrogation and available at all times for consultation. The representative may be an attorney or nonattorney. The notice shall include the fact that the officer is entitled to ten days to retain an attorney or five days to secure a nonattorney representative and is entitled to a postponement of interrogation, if necessary, to satisfy the time requirements.

(c) A law enforcement agency shall notify the law enforcement officer of its administrative-criminal election at least seventy-two hours prior to interrogation.

(d) The prosecutor may make a formal grant of immunity in return for conducting an interrogation. A formal grant of immunity means that the prosecutor has formally conferred upon the law enforcement officer either transactional immunity, meaning that the prosecutor is precluded from charging the law enforcement officer with any crime arising from the named transaction, or use and derivative use immunity, meaning that no testimonial evidence compelled pursuant to the grant of immunity, nor any fruits thereof, may be used against the officer in any criminal proceeding. A copy of the grant of immunity shall accompany the agency's notice of action. The notice shall include the following legal consequences:

(1) The officer must answer all questions within the scope of the grant of immunity;

(2) The answering of such questions bars all prosecutors from using the testimonial evidence produced pursuant to the grant of immunity, and any other evidence derived therefrom, in any criminal proceeding against the defendant (in the event of a grant of transactional immunity, it bars the jurisdiction granting it from seeking criminal charges for any crime arising from the named transaction);

(3) The failure to answer the questions may result in criminal contempt proceedings and possible incarceration; and

(4) The content of the answers to the questions or the failure to provide answers may result in a disciplinary hearing and punitive personnel action;

(e) The failure to grant immunity under subsection (d) means that the prosecutor has preserved all options to proceed in an administrative proceeding, in a criminal proceeding, or both. The absence of immunity has the following legal consequences:

(1) The matter under investigation may be pursued in an administrative proceeding, in a criminal proceeding, or both;

(2) The officer has the right to have an attorney present during questioning and if the officer cannot afford an attorney, one will be provided for the officer;

(3) The officer has an absolute right to remain silent and shall not be compelled to answer any questions;

(4) If the officer invokes the right to remain silent, no punitive personnel action can be taken, or threatened to be taken, against the officer and no adverse inference can be drawn against the officer in either a criminal or administrative proceeding; and

(5) If the officer chooses to answer any question, the answer may be used against the officer in a criminal proceeding, an administrative proceeding, or both.

   -33 During interrogation; right to representation; conditions of interrogation. (a) The law enforcement officer has the right to retained counsel, appointed counsel, or a nonattorney representative, as applicable under section    -32.

(b) Interrogation shall:

(1) Be conducted at a reasonable time, preferably while the law enforcement officer is on duty;

(2) Be conducted at a reasonable location, preferably at the office of the command of the investigating officer, at the office of the command of the law enforcement officer being interrogated, or at the office of the command nearest to where the conduct under investigation allegedly occurred;

(3) Continue only for a reasonable period of time, permitting reasonable breaks for personal hygiene, meals, and rest;

(4) Be conducted by one interrogator, with no more than one other person present (excluding a court reporter, if used) for the purpose of consultation with the interrogator; and

(5) Be recorded by audiotape, videotape, or transcription and, upon request by the law enforcement officer, be provided to the officer within ten days after the interrogation.

SUBPART C. DISCIPLINARY HEARING

   -34 Prior to disciplinary hearing; notice; discovery; election of fact finder. (a) No disciplinary charges may be brought against a law enforcement officer unless filed within ninety days of the commencement of an investigation, except for good cause shown, in which case charges shall be filed within one hundred twenty days of the commencement of an investigation. The law enforcement agency shall notify the law enforcement officer of all disciplinary charges pending against the officer not later than five days after the decision to charge. Notice shall include notification of:

(1) The right to be represented by an attorney or nonattorney representative at all stages of the administrative proceedings;

(2) The administrative-criminal election (if the officer was not previously interrogated and therefore not previously notified as required under section   -32(c)); and

(3) The right to have the issue of guilt decided either by a hearing board or by a hearing officer and that the election must be made by the later of thirty days before the hearing or ten days after notification of the hearing date.

(b) The law enforcement agency shall notify the law enforcement officer, not later than thirty days after the notice of disciplinary charges, of the following:

(1) The date, time, and location of the disciplinary hearing which shall take place no sooner than thirty days and no later than sixty days subsequent to the notice;

(2) The name and mailing address of the hearing officer; and

(3) The name, rank, and command of the disciplinary advocate, if a law enforcement officer, or the name, position, and mailing address of the disciplinary advocate, if not a law enforcement officer.

After notice has been given, the management of the administrative proceedings shall be under the exclusive control of the hearing officer and the agency's legal position shall be represented exclusively by the disciplinary advocate.

(c) If the law enforcement officer is subject to a punishment of dismissal from the law enforcement agency, the officer is automatically entitled to a change of venue. If the officer is not subject to dismissal or the law enforcement agency has waived, in writing, the use of dismissal as a possible punishment, the officer is entitled to a change of venue only upon a showing of a strong likelihood that the actions of the hearing board, the hearing officer, or the police chief, as to the issue of either guilt or punishment, would not be based solely on the evidence or would be based on improper motive or bias. The motion for change of venue shall be made by the later of thirty days prior to the hearing or ten days after receipt of the notice of hearing date. The motion shall be ruled on by the hearing officer, unless the requested change of venue is based on an alleged improper motive or bias of the hearing officer, in which case the motion for change of venue shall be ruled on by the police chief.

A change of venue, whether automatic or granted, shall be implemented by moving the disciplinary hearing to another law enforcement agency, using the other agency's police chief, hearing officer, and hearing board. The law enforcement officer entitled to or granted a change of venue may waive moving the disciplinary hearing, in which case the disciplinary hearing shall be conducted in the accused officer's agency, using the accused officer's hearing officer and police chief, but using a hearing board selected from another agency.

(d) The law enforcement agency and the law enforcement officer shall be entitled to whatever discovery, for example, interrogatories, depositions, or production of documents, that would be available if the matter were in a circuit court.

(e) The disciplinary advocate shall notify the law enforcement officer, not later than fifteen days prior to the hearing, of the names and addresses of all witnesses for the law enforcement agency.

(f) The disciplinary advocate shall provide to the law enforcement officer not later than fifteen days prior to the hearing, a copy of the investigation file, including all exculpatory and inculpatory information, but excluding confidential sources.

(g) The disciplinary advocate shall notify the law enforcement officer, not later than fifteen days prior to the hearing, of all physical, nondocumentary evidence, and provide a reasonable date, time, place, and manner for the officer to examine the evidence not later than ten days prior to the hearing.

(h) The law enforcement officer and the disciplinary advocate, at any time prior to a finding of guilty, may negotiate a disposition of the charges, a maximum punishment, or both. The negotiated disposition may include an admission of guilt, silence as to guilt, or an assertion of not guilty by the accused officer.

(i) The law enforcement officer shall notify the hearing officer of the law enforcement officer's election to have the issue of guilt decided by a hearing board or by the hearing officer. The election shall be made by the later of thirty days prior to the hearing or ten days after receipt of the notice of hearing date. The election shall include whether the officer demands at least one member of the hearing board to be equal in rank to the accused officer. If no timely election is made, a hearing board shall be deemed waived and the officer shall have the issue of guilt decided by the hearing officer.

If an election of a hearing board is made, the hearing officer shall provide to the law enforcement officer and the disciplinary advocate, not later than twenty days prior to the hearing, a written list of the nine-member hearing board panel. Each party may exercise three peremptory strikes by notifying the hearing officer of the names struck, not later than ten days prior to the hearing. If the accused officer has demanded that at least one member of the hearing board be equal in rank to the accused officer, the disciplinary advocate may not exercise peremptory strikes to strike all members equal in rank to the accused, if any, on the hearing board panel. No additional strikes of any kind may be exercised. If less than six members of the hearing board panel are struck, the hearing officer shall appoint as the hearing board the three highest-ranking officers not struck from the hearing board panel list. If the accused officer has demanded that at least one member of the hearing board panel be equal in rank to the accused officer, but no member of the hearing board panel is equal in rank to the accused officer, the hearing officer shall draw from the hearing board pool, the next officer equal in rank to the accused officer. This officer shall be named to the hearing board in lieu of the lowest ranking officer then on the hearing board.

A law enforcement agency composed of less than one hundred law enforcement officers may use a seven-member hearing board panel, with two peremptory strikes for each party. An agency composed of less than fifty officers may use a five-member hearing board panel, with one peremptory strike for each party.

   -35 During a disciplinary hearing. (a) The hearing officer shall have the power to issue summonses to compel the testimony of witnesses and the production of documentary evidence. If confronted with a failure to comply with a summons, the hearing officer may petition the circuit court to issue an order, with failure to comply being subject to contempt of court.

(b) Each party may file pre-hearing motions. The motions shall be filed not later than ten days prior to the hearing. The hearing officer may rule on any motion in writing prior to the hearing or may rule on the record at the start of the hearing.

(c) All disciplinary hearings shall be open to the public unless the accused law enforcement officer requests a closed hearing, in which case the hearing shall be open only to those invited by the accused officer.

(d) All aspects of the hearing, including pre-hearing motions, shall be recorded by audiotape, videotape, or transcription.

(e) Either party may move for sequestration of witnesses.

(f) The hearing officer shall administer an oath or affirmation to each witness who shall testify subject to the applicable laws of perjury.

(g) Each party shall be entitled to make an opening statement.

(h) The laws and rules of evidence under chapter 91 shall apply, and all rulings shall be made by the hearing officer, either in response to a motion or objection, or sua sponte. The hearing officer may have present, or on call, an attorney adviser, who may not be a member of the law enforcement agency, on a legal staff that represents the law enforcement agency, or selected by or subject to the approval of the law enforcement agency.

   -36 Disposition of disciplinary hearing by hearing board. (a) At the conclusion of the hearing, outside the presence of the hearing board, the hearing officer shall rule, and may permit argument on, whether the disciplinary advocate has met the burden of production by establishing a prima facie case as to each charge. The hearing officer shall enter a verdict of not guilty for any charge for which a prima facie case was not established.

(b) Any charge for which a prima facie case has been established shall be submitted to the hearing board for a finding of fact. Before the submission, each party may make a closing argument without rebuttal. The hearing officer shall provide the following items, in writing, to the hearing board for its deliberations:

(1) A verdict sheet listing each charge;

(2) A list containing each element that must be established to constitute each charge;

(3) Instructions stating that the hearing board should not consider punishment when determining the issue of guilt;

(4) Instructions stating that a finding of guilt requires a majority vote of the hearing board;

(5) Instructions stating that no member of the hearing board may vote for guilt as to any charge unless that member finds that the disciplinary advocate has established by clear and convincing evidence each element of the charge and that the conduct was committed by the accused law enforcement officer, either as the actual perpetrator or as an accomplice.

(c) The hearing board shall submit its finding of guilty or not guilty for each charge on the verdict sheet provided, which shall be made a part of the record.

(d) Each charge for which the hearing board finds guilt shall be resubmitted to the hearing board for a recommendation of punishment. Before the submission, each party may present evidence relevant to the accused officer's degree of culpability, the accused officer's record as a law enforcement officer, and any other information relevant to the appropriate punishment. Each party may make a closing argument without rebuttal. For its deliberations, the hearing board shall be provided with a written list of all possible punishments for each charge for which guilt was found. Additionally, the disciplinary advocate may submit the recommended punishment for each charge. If guilt was found on more than one charge, the disciplinary advocate may submit, in addition, the recommended overall punishment, which may be different than the sum of the individual punishments. The hearing board shall be instructed to make a recommendation as to the appropriate punishment for each guilty charge, as well as an appropriate overall punishment, which may be different than the sum of the individual punishments.

(e) The hearing officer shall submit a written report, with a copy to each party, not later than fifteen days after the conclusion of the hearing to the police chief. The report shall contain the following:

(1) The hearing board's finding of guilty or not guilty for each charge;

(2) The hearing board's recommendation as to the appropriate punishment for each charge for which guilt was found, as well as the board's recommendation for the appropriate overall punishment;

(3) Whether the hearing officer believes that each finding of guilt is correct or whether the finding of guilt goes against the weight of the evidence. For each charge for which the hearing board entered a finding of guilt, there shall be an appropriate discussion of the laws and the facts; and

(4) The hearing officer's recommendation as to the appropriate punishment for each charge for which guilt was found, as well as the hearing officer's recommendation for the appropriate overall punishment.

(f) The police chief shall file a written order, with a copy to each party, not later than thirty days after receipt of the hearing officer's report. The police chief shall be bound by each not guilty finding of the hearing board and by each guilty finding of the hearing board in which the hearing officer concurred. As to any guilty finding of the hearing board in which the hearing officer did not concur, the police chief may make a finding of guilty or not guilty. The police chief shall determine the punishment for each charge of guilty, as well as the overall punishment. The punishment for any charge shall be no more severe than the greater of the two recommended punishments for that charge. Similarly, the overall punishment shall be no more severe than the greater of the two recommended overall punishments.

   -37 Disposition of disciplinary hearing by hearing officer. (a) At the conclusion of the hearing, each party may make a closing argument without rebuttal. The hearing officer shall make a finding of guilty or not guilty for each charge, with a finding of guilt requiring clear and convincing evidence.

(b) As to each charge for which the hearing officer found guilt, each party may present evidence relevant to the accused officer's degree of culpability, the accused officer's record as a law enforcement officer, and any other information relevant to the appropriate punishment. Each party may make a closing argument without rebuttal.

(c) The hearing officer shall submit a written report, with a copy to each party, not later than fifteen days after the conclusion of the hearing to the police chief. The report shall contain the following:

(1) The hearing officer's finding of guilty or not guilty for each charge. For each finding of guilt, there shall be an appropriate discussion of the law and the facts; and

(2) The hearing officer's recommendation as to the appropriate punishment for each charge for which guilt was found, as well as the hearing officer's recommendation for the appropriate overall punishment, if guilt was found on more than one charge.

(d) The police chief shall file a written order, with a copy to each party, not later than thirty days after receipt of the hearing officer's report. The police chief shall be bound by each finding of guilty and not guilty. The police chief shall determine the punishment for each charge of guilt, as well as the overall punishment. The punishment on any charge, as well as the overall punishment, shall be no more severe than that recommended by the hearing officer.

SUBPART D. DECLARATORY HEARINGS

   -38 Prior to declaratory hearing. (a) A law enforcement agency shall not take any individual punitive personnel action against a law enforcement officer unless there has been a finding of guilt against the officer under section    -36 or   -37. Individual punitive personnel actions may not be the subject of a declaratory hearing.

(b) A law enforcement agency shall notify a law enforcement officer of any personnel action that is neither an individual punitive personnel action nor an individual non-punitive personnel action, not later than five days after the decision to take the personnel action. Notice shall include the effective date of the action, which shall be no sooner than twenty days subsequent to this notice. The officer shall also be notified that the officer has the right to demand a declaratory hearing to determine whether the action is punitive or non-punitive. Additionally, the officer shall be notified that the officer has a right to be represented by an attorney or nonattorney representative at all stages of the administrative proceedings.

(c) If the law enforcement officer requests a hearing within fifteen days of receipt of notice of the proposed personnel action, the personnel action shall be stayed pending the outcome of the hearing.

(d) The law enforcement agency shall notify the officer, not later than thirty days after the notice of demand for hearing, of the following:

(1) The date, time, and location of the hearing; provided that hearing shall take place not sooner than fifteen days and not later than forty-five days subsequent to this notice;

(2) The name and mailing address of the hearing officer; and

(3) The name, rank, and command of the declaratory advocate.

Subsequent to this notice, the management of the administrative proceedings shall be under the exclusive control of the hearing officer and the agency's legal position shall be represented exclusively by the declaratory advocate.

   -39 During declaratory hearing. A declaratory hearing shall be conducted in the manner required for a disciplinary hearing under section    -35.

   -40 Disposition of declaratory hearing. (a) At the conclusion of the hearing, each party may make a closing argument without rebuttal. The hearing officer shall determine whether the personnel action at issue is punitive or nonpunitive, with the burden of persuasion on the declaratory advocate to establish by a preponderance of the evidence that the action is nonpunitive.

(b) The hearing officer shall submit a written report, with a copy to each party, not later than fifteen days after the conclusion of hearing, to the police chief, explaining the reasons for the finding. The police chief shall be bound by the hearing officer's finding. If the personnel action is found to be nonpunitive, it may take effect immediately. If the personnel action is found to be punitive, it shall be void.

SUBPART E. TEMPORARY EXTRAORDINARY PROCEDURES

   -41 Temporary extraordinary procedures. (a) The police chief may order suspension with pay or an involuntary reassignment for a law enforcement officer for whom there is probable cause to believe that the officer:

(1) Has committed a felony;

(2) Has committed a crime of violence;

(3) Has committed a crime of moral turpitude;

(4) Poses an immediate threat to the safety of self or others; or

(5) Poses an immediate threat to the property of others.

The officer shall be provided, not later than forty-eight hours after the suspension or reassignment, a written order setting forth which one or more of the five reasons above support an action in the officer's case.

(b) If, within fifteen days after the written order, the law enforcement officer is formally charged by grand jury indictment or criminal information with a felony, crime of violence, or crime of moral turpitude, the police chief may continue suspension with pay or involuntary reassignment, or may order suspension without pay. If the officer is subsequently found guilty of and sentenced for a felony, crime of violence, or crime of moral turpitude, the officer shall be subject to any punitive personnel action without a hearing. If the officer is subsequently found not guilty of all charges of a felony, crime of violence, or crime of moral turpitude, the officer shall be returned to duty in the status that existed prior to the extraordinary procedure, including back pay and benefits for any time suspended without pay. However, the law enforcement agency may institute regular disciplinary proceedings against the officer while criminal charges are pending or after a finding of not guilty, even though the administrative charges arise out of the same conduct involved in the criminal charges.

(c) If, within fifteen days after the written order, the law enforcement officer is civilly committed for posing an immediate threat to the safety of self or others, or for posing an immediate threat to the property of others, the police chief may continue suspension with pay or involuntary reassignment, or may order suspension without pay or placement on sick leave, as appropriate. If the officer is subsequently released from civil commitment, the officer shall be returned to duty in the status that existed prior to the extraordinary procedure, including back pay and benefits for any time suspended without pay. However, the law enforcement agency may institute regular disciplinary proceedings against the officer once returned to duty, even though the administrative charges arise out of the same conduct for which the officer was civilly committed.

(d) If, within fifteen days after the written order, the law enforcement officer is neither formally charged with a felony, crime of violence, or crime of moral turpitude, nor civilly committed for posing an immediate threat to the safety of self of others, or for posing an immediate threat to the property of others, the officer shall be returned to duty in the status that existed prior to the extraordinary procedure. However, the law enforcement agency may institute regular disciplinary proceedings against the officer, even though the administrative charges arise out of the same conduct for which extraordinary procedures were used.

PART IV. REMEDIES

   -51 Grievance. The department of human resources development shall establish a law enforcement officer grievance procedure, which may utilize grievance procedures already in effect for other public employees. A law enforcement officer may file a grievance against any other law enforcement officer for a past, present, or threatened denial of any right provided by constitution, statute, regulation, or otherwise; provided that the denial is related to the aggrieved officer's service as an officer. An officer may use the grievance procedure in addition to, or in lieu of, any other remedy in this part. However, no other remedy is foreclosed because of the failure to pursue a remedy through the grievance procedure.

   -52 Injunction. (a) A law enforcement officer charged under section    -34, who is being denied by a law enforcement agency, any right provided by constitution, statute, regulation, or otherwise, may petition the hearing officer for an injunction prohibiting the law enforcement agency from violating the law. The petition for injunctive relief shall be filed not later than ten days prior to the hearing or forty-eight hours subsequent to the alleged denial of the right, whichever comes later. The filing of a petition shall stay the hearing until the hearing officer rules upon the petition.

(b) A law enforcement officer charged under section    -34, whose petition for injunctive relief under subsection (a) is denied, or who is otherwise still being denied any right afforded by constitution, statute, regulation, or otherwise, may petition the circuit court for an injunction prohibiting the law enforcement agency from violating the law. The petition shall be filed not later than ten days prior to the hearing or forty-eight hours subsequent to the notice of denial of injunctive relief by the hearing officer, whichever comes later. The filing of a petition shall stay the hearing until the circuit court rules upon the petition.

(c) A ruling by the circuit court under subsection (b) is immediately appealable to the intermediate court of appeals by either the law enforcement officer or the law enforcement agency. Notice of appeal shall be filed not later than ten days prior to the hearing or forty-eight hours subsequent to the notice of denial or grant of injunctive relief by the circuit court, whichever comes later. The filing of a notice of appeal shall stay the hearing until the intermediate court of appeals rules upon the petition.

   -53 Declaratory relief. A law enforcement officer not charged under section   -34 and not eligible for a declaratory hearing under section    -38, who is being denied, by the law enforcement agency any right provided by constitution, statute, regulation, or otherwise, may file an action for declaratory relief in the circuit court; provided that the officer has submitted to the police chief a notice of demand for the right being denied and the right was not afforded within fifteen days.

   -54 Appeal from disciplinary or declaratory hearing. (a) A law enforcement officer may appeal from a decision of guilt rendered under section    -36 or    -37. Notice of appeal shall be filed with the circuit court not later than thirty days after the order and report of the police chief. The appeals shall be argued on the record from the administrative agency unless the punishment is dismissal. If the punishment is dismissal, the appeal shall be in the form of a trial de novo. A law enforcement agency may not appeal a decision rendered under section    -36 or    -37.

(b) Either a law enforcement officer or a law enforcement agency may appeal a decision rendered under section    -40. Notice of appeal shall be filed with the circuit court not later than thirty days after the report of the hearing officer.

(c) A ruling by the circuit court under subsection (a) or (b) may be appealed to the intermediate court of appeals by the law enforcement officer or the law enforcement agency. Notice of appeal shall be filed with the circuit court not later than thirty days after the order of the circuit court.

   -55 Civil suit. A law enforcement officer who has been harmed by any individual may file suit against the individual seeking monetary damages. No law shall limit a cause of action solely because the plaintiff is a law enforcement officer.

   -56 Legal defense. A law enforcement officer, against whom a civil suit is filed, shall be entitled to legal representation from the law enforcement agency; provided that the cause of action arose in the scope of the officer's service as a law enforcement officer. If legal representation is denied, the officer may seek declaratory relief under section    -53.

   -57 Attorney's fees. (a) A law enforcement officer shall be entitled to reasonable attorney's fees if the officer prevails, and may be entitled to reasonable attorney's fees if the officer prevails in part, in any of the following actions:

(1) A disciplinary hearing under section    -36 or    -37;

(2) A declaratory hearing under section    -40;

(3) A grievance under section   -51;

(4) An injunction under section    -52;

(5) Declaratory relief under section    -53;

(6) An appeal under section   -54; or

(7) A petition for attorney's fees under this section.

(b) A law enforcement officer entitled to attorney's fees under subsection (a) may petition the circuit court for an order establishing the right to and the amount of attorney's fees."

SECTION 2. This Act shall take effect upon its approval.