| 1 | A bill to be entitled |
| 2 | An act relating to law enforcement officers and |
| 3 | correctional officers; amending s. 112.532, F.S.; |
| 4 | providing that a law enforcement officer or correctional |
| 5 | officer is entitled to specified rights if the officer is |
| 6 | subject to suspension in a disciplinary proceeding; |
| 7 | providing that a law enforcement officer or correctional |
| 8 | officer is entitled to review witness statements by other |
| 9 | officers and other existing evidence before the officer |
| 10 | under investigation is interrogated; providing that time- |
| 11 | limitation periods will be tolled during disciplinary |
| 12 | proceedings under certain specified circumstance; amending |
| 13 | s. 112.533, F.S.; authorizing a law enforcement officer or |
| 14 | correctional officer who is subject to an investigation, |
| 15 | and the officer's legal counsel, to review specified |
| 16 | documents and recordings before the investigative |
| 17 | interview; amending s. 112.534, F.S.; providing procedures |
| 18 | and remedies to an officer if an agency intentionally |
| 19 | fails to comply with specified provisions; providing that |
| 20 | the officer bears the burden of proof to establish an |
| 21 | intentional violation; providing that the standard of |
| 22 | proof is a preponderance of the evidence; exempting |
| 23 | specified provisions from the Administrative Procedure |
| 24 | Act; providing an effective date. |
| 25 |
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| 26 | Be It Enacted by the Legislature of the State of Florida: |
| 27 |
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| 28 | Section 1. Subsections (1), (4), and (6) of section |
| 29 | 112.532, Florida Statutes, are amended to read: |
| 30 | 112.532 Law enforcement officers' and correctional |
| 31 | officers' rights.--All law enforcement officers and correctional |
| 32 | officers employed by or appointed to a law enforcement agency or |
| 33 | a correctional agency shall have the following rights and |
| 34 | privileges: |
| 35 | (1) RIGHTS OF LAW ENFORCEMENT OFFICERS AND CORRECTIONAL |
| 36 | OFFICERS WHILE UNDER INVESTIGATION.--Whenever a law enforcement |
| 37 | officer or correctional officer is under investigation and |
| 38 | subject to interrogation by members of his or her agency for any |
| 39 | reason that which could lead to disciplinary action, suspension, |
| 40 | demotion, or dismissal, the such interrogation must shall be |
| 41 | conducted under the following conditions: |
| 42 | (a) The interrogation shall be conducted at a reasonable |
| 43 | hour, preferably at a time when the law enforcement officer or |
| 44 | correctional officer is on duty, unless the seriousness of the |
| 45 | investigation is of such a degree that immediate action is |
| 46 | required. |
| 47 | (b) The interrogation shall take place either at the |
| 48 | office of the command of the investigating officer or at the |
| 49 | office of the local precinct, police unit, or correctional unit |
| 50 | in which the incident allegedly occurred, as designated by the |
| 51 | investigating officer or agency. |
| 52 | (c) The law enforcement officer or correctional officer |
| 53 | under investigation shall be informed of the rank, name, and |
| 54 | command of the officer in charge of the investigation, the |
| 55 | interrogating officer, and all persons present during the |
| 56 | interrogation. All questions directed to the officer under |
| 57 | interrogation shall be asked by or through one interrogator |
| 58 | during any one investigative interrogation, unless specifically |
| 59 | waived by the officer under investigation. |
| 60 | (d) The law enforcement officer or correctional officer |
| 61 | under investigation must shall be informed of the nature of the |
| 62 | investigation before prior to any interrogation begins, and he |
| 63 | or she must shall be informed of the names of all complainants. |
| 64 | All identifiable witnesses shall be interviewed, whenever |
| 65 | possible, prior to the beginning of the investigative interview |
| 66 | of the accused officer. The complaint, and all witness |
| 67 | statements, including all other existing subject officer |
| 68 | statements, and all other existing evidence, including, but not |
| 69 | limited to, incident reports, GPS locator information, and audio |
| 70 | or video recordings relating to the incident under |
| 71 | investigation, must shall be provided to each the officer who is |
| 72 | the subject of the complaint before prior to the beginning of |
| 73 | any investigative interview of that officer. An officer, after |
| 74 | being informed of the right to review witness statements, may |
| 75 | voluntarily waive the provisions of this paragraph and provide a |
| 76 | voluntary statement at any time. |
| 77 | (e) Interrogating sessions shall be for reasonable periods |
| 78 | and shall be timed to allow for such personal necessities and |
| 79 | rest periods as are reasonably necessary. |
| 80 | (f) The law enforcement officer or correctional officer |
| 81 | under interrogation may shall not be subjected to offensive |
| 82 | language or be threatened with transfer, dismissal, or |
| 83 | disciplinary action. A No promise or reward may not shall be |
| 84 | made as an inducement to answer any questions. |
| 85 | (g) The formal interrogation of a law enforcement officer |
| 86 | or correctional officer, including all recess periods, must |
| 87 | shall be recorded on audio tape, or otherwise preserved in such |
| 88 | a manner as to allow a transcript to be prepared, and there |
| 89 | shall be no unrecorded questions or statements. Upon the request |
| 90 | of the interrogated officer, a copy of any such recording of the |
| 91 | interrogation session must be made available to the interrogated |
| 92 | officer no later than 72 hours, excluding holidays and weekends, |
| 93 | following said interrogation. |
| 94 | (h) If the law enforcement officer or correctional officer |
| 95 | under interrogation is under arrest, or is likely to be placed |
| 96 | under arrest as a result of the interrogation, he or she shall |
| 97 | be completely informed of all his or her rights before |
| 98 | commencing prior to the commencement of the interrogation. |
| 99 | (i) At the request of any law enforcement officer or |
| 100 | correctional officer under investigation, he or she has shall |
| 101 | have the right to be represented by counsel or any other |
| 102 | representative of his or her choice, who shall be present at all |
| 103 | times during the such interrogation whenever the interrogation |
| 104 | relates to the officer's continued fitness for law enforcement |
| 105 | or correctional service. |
| 106 | (j) Notwithstanding the rights and privileges provided by |
| 107 | this part, this part does not limit the right of an agency to |
| 108 | discipline or to pursue criminal charges against an officer. |
| 109 | (4)(a) NOTICE OF DISCIPLINARY ACTION.-- |
| 110 | (a) A No dismissal, demotion, transfer, reassignment, or |
| 111 | other personnel action that which might result in loss of pay or |
| 112 | benefits or that which might otherwise be considered a punitive |
| 113 | measure may not shall be taken against any law enforcement |
| 114 | officer or correctional officer unless the such law enforcement |
| 115 | officer or correctional officer is notified of the action and |
| 116 | the reason or reasons for the action before therefor prior to |
| 117 | the effective date of the such action. |
| 118 | (b) Notwithstanding the provisions of s. 112.533(2), |
| 119 | whenever a law enforcement officer or correctional officer is |
| 120 | subject to disciplinary action consisting of suspension with |
| 121 | loss of pay, demotion, or dismissal, the officer or the |
| 122 | officer's representative shall, upon request, be provided with a |
| 123 | complete copy of the investigative file, including the final |
| 124 | investigative report and all evidence, report and supporting |
| 125 | documents and with the opportunity to address the findings in |
| 126 | the report with the employing law enforcement agency before |
| 127 | imposing prior to the imposition of the disciplinary action |
| 128 | consisting of suspension with loss of pay, demotion, or |
| 129 | dismissal. The contents of the complaint and investigation shall |
| 130 | remain confidential until such time as the employing law |
| 131 | enforcement agency makes a final determination whether or not to |
| 132 | issue a notice of disciplinary action consisting of suspension |
| 133 | with loss of pay, demotion, or dismissal. This paragraph does |
| 134 | shall not be construed to provide law enforcement officers with |
| 135 | a property interest or expectancy of continued employment, |
| 136 | employment, or appointment as a law enforcement officer. |
| 137 | (6) LIMITATIONS PERIOD FOR DISCIPLINARY ACTIONS.-- |
| 138 | (a) Except as provided in this subsection, no disciplinary |
| 139 | action, suspension, demotion, or dismissal may not shall be |
| 140 | undertaken by an agency against a law enforcement officer or |
| 141 | correctional officer for any act, omission, or other allegation |
| 142 | of misconduct if the investigation of the such allegation is not |
| 143 | completed within 180 days after the date the agency receives |
| 144 | notice of the allegation by a person authorized by the agency to |
| 145 | initiate an investigation of the misconduct. If In the event |
| 146 | that the agency determines that disciplinary action is |
| 147 | appropriate, it shall complete its investigation and give notice |
| 148 | in writing to the law enforcement officer or correctional |
| 149 | officer of its intent to proceed with disciplinary action, along |
| 150 | with a proposal of the specific action sought, including length |
| 151 | of suspension, if applicable. Such Notice to the officer must |
| 152 | shall be provided within 180 days after the date the agency |
| 153 | received notice of the alleged misconduct, except as follows: |
| 154 | 1. The running of the limitations period may be tolled for |
| 155 | a period specified in a written waiver of the limitation by the |
| 156 | law enforcement officer or correctional officer. |
| 157 | 2. The running of the limitations period is shall be |
| 158 | tolled during the time that any criminal investigation or |
| 159 | prosecution is pending in connection with the act, omission, or |
| 160 | other allegation of misconduct. |
| 161 | 3. If the investigation involves an officer who is |
| 162 | incapacitated or otherwise unavailable, the running of the |
| 163 | limitations period is shall be tolled during the period of |
| 164 | incapacitation or unavailability. |
| 165 | 4. In a multijurisdictional investigation, the limitations |
| 166 | period may be extended for a period of time reasonably necessary |
| 167 | to facilitate the coordination of the agencies involved. |
| 168 | 5. The running of the limitations period may be tolled for |
| 169 | emergencies or natural disasters during the time period wherein |
| 170 | the Governor has declared a state of emergency within the |
| 171 | jurisdictional boundaries of the concerned agency. |
| 172 | 6. The running of the limitations period is tolled during |
| 173 | the time that the officer's compliance hearing proceeding is |
| 174 | continuing, beginning with the filing of the notice of violation |
| 175 | and a request for a hearing and ending with the written |
| 176 | determination of the compliance review panel or upon the |
| 177 | violation being remedied by the agency. |
| 178 | (b) An investigation against a law enforcement officer or |
| 179 | correctional officer may be reopened, notwithstanding the |
| 180 | limitations period for commencing disciplinary action, demotion, |
| 181 | or dismissal, if: |
| 182 | 1. Significant new evidence has been discovered that is |
| 183 | likely to affect the outcome of the investigation. |
| 184 | 2. The evidence could not have reasonably been discovered |
| 185 | in the normal course of investigation or the evidence resulted |
| 186 | from the predisciplinary response of the officer. |
| 187 |
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| 188 | Any disciplinary action resulting from an investigation that is |
| 189 | reopened pursuant to this paragraph must be completed within 90 |
| 190 | days after the date the investigation is reopened. |
| 191 | Section 2. Paragraph (a) of subsection (2) of section |
| 192 | 112.533, Florida Statutes, is amended to read: |
| 193 | 112.533 Receipt and processing of complaints.-- |
| 194 | (2)(a) A complaint filed against a law enforcement officer |
| 195 | or correctional officer with a law enforcement agency or |
| 196 | correctional agency and all information obtained pursuant to the |
| 197 | investigation by the agency of the such complaint is shall be |
| 198 | confidential and exempt from the provisions of s. 119.07(1) |
| 199 | until the investigation ceases to be active, or until the agency |
| 200 | head or the agency head's designee provides written notice to |
| 201 | the officer who is the subject of the complaint, either |
| 202 | personally or by mail, that the agency has either: |
| 203 | 1. Concluded the investigation with a finding not to |
| 204 | proceed with disciplinary action or to file charges; or |
| 205 | 2. Concluded the investigation with a finding to proceed |
| 206 | with disciplinary action or to file charges. |
| 207 |
|
| 208 | Notwithstanding the foregoing provisions, the officer who is the |
| 209 | subject of the complaint, along with legal counsel or any other |
| 210 | representative of his or her choice, may review the complaint |
| 211 | and all statements regardless of form made by the complainant |
| 212 | and witnesses and all existing evidence, including, but not |
| 213 | limited to, incident reports, analyses, GPS locator information, |
| 214 | and audio or video recordings relating to the investigation, |
| 215 | immediately before prior to the beginning of the investigative |
| 216 | interview. All statements, regardless of form, provided by a law |
| 217 | enforcement officer or correctional officer during the course of |
| 218 | a complaint investigation of that officer shall be made under |
| 219 | oath pursuant to s. 92.525. Knowingly false statements given by |
| 220 | a law enforcement officer or correctional officer under |
| 221 | investigation may subject the law enforcement officer or |
| 222 | correctional officer to prosecution for perjury. If a witness to |
| 223 | a complaint is incarcerated in a correctional facility and may |
| 224 | be under the supervision of, or have contact with, the officer |
| 225 | under investigation, only the names and written statements of |
| 226 | the complainant and nonincarcerated witnesses may be reviewed by |
| 227 | the officer under investigation immediately prior to the |
| 228 | beginning of the investigative interview. |
| 229 | Section 3. Section 112.534, Florida Statutes, is amended |
| 230 | to read: |
| 231 | 112.534 Failure to comply; official misconduct.-- |
| 232 | (1) If any law enforcement agency or correctional agency, |
| 233 | including investigators in its internal affairs or professional |
| 234 | standards division, or an assigned investigating supervisor, |
| 235 | intentionally fails to comply with the requirements of this |
| 236 | part, the following procedures apply. For purposes of this |
| 237 | section, the term "law enforcement officer" or "correctional |
| 238 | officer" includes the officer's representative or legal counsel, |
| 239 | except in the application of paragraph (d). |
| 240 | (a) The law enforcement officer or correctional officer |
| 241 | shall advise the investigator of the intentional violation of |
| 242 | the requirements of this part which is alleged to have occurred. |
| 243 | The officer's notice of violation is sufficient to notify the |
| 244 | investigator of the requirements of this part which are alleged |
| 245 | to have been violated and the factual basis of each violation. |
| 246 | (b) If the investigator fails to cure the violation or |
| 247 | continues the violation after being notified by the law |
| 248 | enforcement officer or correctional officer, the officer shall |
| 249 | request the agency head or his or her designee be informed of |
| 250 | the alleged intentional violation. Once this request is made, |
| 251 | the interview of the officer shall cease and the officer's |
| 252 | refusal to respond to further investigative questions does not |
| 253 | constitute insubordination or any similar type of policy |
| 254 | violation. |
| 255 | (c) Thereafter, within 3 working days, a written notice of |
| 256 | violation and request for a compliance review hearing shall be |
| 257 | filed with the agency head or his or her designee which must |
| 258 | contain sufficient information to identify the requirements of |
| 259 | this part that are alleged to have been violated and the factual |
| 260 | basis of each violation. All evidence related to the |
| 261 | investigation must be preserved for review and presentation at |
| 262 | the compliance review hearing. For purposes of confidentiality, |
| 263 | the compliance review panel hearing shall be considered part of |
| 264 | the original investigation. |
| 265 | (d) Unless otherwise remedied by the agency before the |
| 266 | hearing, a compliance review hearing must be conducted within 10 |
| 267 | working days after the request for a compliance review hearing |
| 268 | is filed, unless, by mutual agreement of the officer and agency |
| 269 | or for extraordinary reasons, an alternate date is chosen. The |
| 270 | panel shall review the circumstances and facts surrounding the |
| 271 | alleged intentional violation. The compliance review panel shall |
| 272 | be made up of three members: one member selected by the agency |
| 273 | head, one member selected by the officer filing the request, and |
| 274 | a third member to be selected by the other two members. The |
| 275 | review panel members shall be active law enforcement officers or |
| 276 | correctional officers from the same law enforcement discipline |
| 277 | as the officer requesting the hearing. Panel members may be |
| 278 | selected from any state, county, or municipal agency within the |
| 279 | county in which the officer works. The compliance review hearing |
| 280 | shall be conducted in the county in which the officer works. |
| 281 | (e) It is the responsibility of the compliance review |
| 282 | panel to determine whether or not the investigator or agency |
| 283 | intentionally violated the requirements provided under this |
| 284 | part. It may hear evidence, review relevant documents, and hear |
| 285 | argument before making such a determination; however, all |
| 286 | evidence received shall be strictly limited to the allegation |
| 287 | under consideration and may not be related to the disciplinary |
| 288 | charges pending against the officer. The investigative materials |
| 289 | are considered confidential for purposes of the compliance |
| 290 | review hearing and determination. |
| 291 | (f) The officer bears the burden of proof to establish |
| 292 | that the violation of this part was intentional. The standard of |
| 293 | proof for such a determination is by a preponderance of the |
| 294 | evidence. The determination of the panel must be made at the |
| 295 | conclusion of the hearing, in writing, and filed with the agency |
| 296 | head and the officer. |
| 297 | (g) If the alleged violation is sustained as intentional |
| 298 | by the compliance review panel, the agency head shall |
| 299 | immediately remove the investigator from any further involvement |
| 300 | with the investigation of the officer. Additionally, the agency |
| 301 | head shall direct an investigation be initiated against the |
| 302 | investigator determined to have intentionally violated the |
| 303 | requirements provided under this part for purposes of agency |
| 304 | disciplinary action. If that investigation is sustained, the |
| 305 | sustained allegations against the investigator shall be |
| 306 | forwarded to the Criminal Justice Standards and Training |
| 307 | Commission for review as an act of official misconduct or misuse |
| 308 | of position. a law enforcement officer or correctional officer |
| 309 | employed by or appointed to such agency who is personally |
| 310 | injured by such failure to comply may apply directly to the |
| 311 | circuit court of the county wherein such agency is headquartered |
| 312 | and permanently resides for an injunction to restrain and enjoin |
| 313 | such violation of the provisions of this part and to compel the |
| 314 | performance of the duties imposed by this part. |
| 315 | (2)(a) All the provisions of s. 838.022 shall apply to |
| 316 | this part. |
| 317 | (b) The provisions of chapter 120 do not apply to this |
| 318 | part. |
| 319 | Section 4. This act shall take effect July 1, 2009. |