Florida Senate - 2009 CS for SB 624
By the Committee on Community Affairs; and Senator Fasano
578-04361A-09 2009624c1
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
5 correctional officer is entitled to specified rights
6 if the officer is subject to suspension in a
7 disciplinary proceeding; providing that a law
8 enforcement officer or correctional officer is
9 entitled to review witness statements by other
10 officers and other existing evidence before the
11 officer under investigation is interrogated; providing
12 that time-limitation periods will be tolled during
13 disciplinary proceedings under certain specified
14 circumstance; amending s. 112.533, F.S.; authorizing a
15 law enforcement officer or correctional officer who is
16 subject to an investigation, and the officer’s legal
17 counsel, to review specified documents and recordings
18 before the investigative interview; amending s.
19 112.534, F.S.; providing procedures and remedies to
20 the officer if an agency intentionally fails to comply
21 with specified provisions; providing that the officer
22 bears the burden of proof to establish intentional
23 violations; providing that the standard of proof is a
24 preponderance of the evidence; providing an effective
25 date.
26
27 Be It Enacted by the Legislature of the State of Florida:
28
29 Section 1. Subsections (1), (4), and (6) of section
30 112.532, Florida Statutes, are amended to read:
31 112.532 Law enforcement officers’ and correctional
32 officers’ rights.—All law enforcement officers and correctional
33 officers employed by or appointed to a law enforcement agency or
34 a correctional agency shall have the following rights and
35 privileges:
36 (1) RIGHTS OF LAW ENFORCEMENT OFFICERS AND CORRECTIONAL
37 OFFICERS WHILE UNDER INVESTIGATION.—Whenever a law enforcement
38 officer or correctional officer is under investigation and
39 subject to interrogation by members of his or her agency for any
40 reason that which could lead to disciplinary action, suspension,
41 demotion, or dismissal, the such interrogation must shall be
42 conducted under the following conditions:
43 (a) The interrogation shall be conducted at a reasonable
44 hour, preferably at a time when the law enforcement officer or
45 correctional officer is on duty, unless the seriousness of the
46 investigation is of such a degree that immediate action is
47 required.
48 (b) The interrogation shall take place either at the office
49 of the command of the investigating officer or at the office of
50 the local precinct, police unit, or correctional unit in which
51 the incident allegedly occurred, as designated by the
52 investigating officer or agency.
53 (c) The law enforcement officer or correctional officer
54 under investigation shall be informed of the rank, name, and
55 command of the officer in charge of the investigation, the
56 interrogating officer, and all persons present during the
57 interrogation. All questions directed to the officer under
58 interrogation shall be asked by or through one interrogator
59 during any one investigative interrogation, unless specifically
60 waived by the officer under investigation.
61 (d) The law enforcement officer or correctional officer
62 under investigation must shall be informed of the nature of the
63 investigation before prior to any interrogation begins, and he
64 or she must shall be informed of the names of all complainants.
65 All identifiable witnesses shall be interviewed, whenever
66 possible, prior to the beginning of the investigative interview
67 of the accused officer. The complaint, and all witness
68 statements, including all other existing subject officer
69 statements, and all other existing evidence, including, but not
70 limited to, incident reports, GPS locator information, and audio
71 or video recordings relating to the incident under
72 investigation, must shall be provided to each the officer who is
73 the subject of the complaint before prior to the beginning of
74 any investigative interview of that officer. An officer, after
75 being informed of the right to review witness statements, may
76 voluntarily waive the provisions of this paragraph and provide a
77 voluntary statement at any time.
78 (e) Interrogating sessions shall be for reasonable periods
79 and shall be timed to allow for such personal necessities and
80 rest periods as are reasonably necessary.
81 (f) The law enforcement officer or correctional officer
82 under interrogation may shall not be subjected to offensive
83 language or be threatened with transfer, dismissal, or
84 disciplinary action. A No promise or reward may not shall be
85 made as an inducement to answer any questions.
86 (g) The formal interrogation of a law enforcement officer
87 or correctional officer, including all recess periods, must
88 shall be recorded on audio tape, or otherwise preserved in such
89 a manner as to allow a transcript to be prepared, and there
90 shall be no unrecorded questions or statements. Upon the request
91 of the interrogated officer, a copy of any such recording of the
92 interrogation session must be made available to the interrogated
93 officer no later than 72 hours, excluding holidays and weekends,
94 following said interrogation.
95 (h) If the law enforcement officer or correctional officer
96 under interrogation is under arrest, or is likely to be placed
97 under arrest as a result of the interrogation, he or she shall
98 be completely informed of all his or her rights before
99 commencing prior to the commencement of the interrogation.
100 (i) At the request of any law enforcement officer or
101 correctional officer under investigation, he or she has shall
102 have the right to be represented by counsel or any other
103 representative of his or her choice, who shall be present at all
104 times during the such interrogation whenever the interrogation
105 relates to the officer’s continued fitness for law enforcement
106 or correctional service.
107 (j) Notwithstanding the rights and privileges provided by
108 this part, this part does not limit the right of an agency to
109 discipline or to pursue criminal charges against an officer.
110 (4)(a) NOTICE OF DISCIPLINARY ACTION.—A No dismissal,
111 demotion, transfer, reassignment, or other personnel action that
112 which might result in loss of pay or benefits or that which
113 might otherwise be considered a punitive measure may not shall
114 be taken against any law enforcement officer or correctional
115 officer unless the such law enforcement officer or correctional
116 officer is notified of the action and the reason or reasons for
117 the action before therefor prior to the effective date of the
118 such action.
119 (b) Notwithstanding the provisions of s. 112.533(2),
120 whenever a law enforcement officer or correctional officer is
121 subject to disciplinary action consisting of suspension with
122 loss of pay, demotion, or dismissal, the officer or the
123 officer’s representative shall, upon request, be provided with a
124 complete copy of the investigative file, including the final
125 investigative report and all evidence, report and supporting
126 documents and with the opportunity to address the findings in
127 the report with the employing law enforcement agency before
128 imposing prior to the imposition of the disciplinary action
129 consisting of suspension with loss of pay, demotion, or
130 dismissal. The contents of the complaint and investigation shall
131 remain confidential until such time as the employing law
132 enforcement agency makes a final determination whether or not to
133 issue a notice of disciplinary action consisting of suspension
134 with loss of pay, demotion, or dismissal. This paragraph does
135 shall not be construed to provide law enforcement officers with
136 a property interest or expectancy of continued employment,
137 employment, or appointment as a law enforcement officer.
138 (6) LIMITATIONS PERIOD FOR DISCIPLINARY ACTIONS.—
139 (a) Except as provided in this subsection, no disciplinary
140 action, suspension, demotion, or dismissal may not shall be
141 undertaken by an agency against a law enforcement officer or
142 correctional officer for any act, omission, or other allegation
143 of misconduct if the investigation of the such allegation is not
144 completed within 180 days after the date the agency receives
145 notice of the allegation by a person authorized by the agency to
146 initiate an investigation of the misconduct. If In the event
147 that the agency determines that disciplinary action is
148 appropriate, it shall complete its investigation and give notice
149 in writing to the law enforcement officer or correctional
150 officer of its intent to proceed with disciplinary action, along
151 with a proposal of the specific action sought, including length
152 of suspension, if applicable. Such Notice to the officer must
153 shall be provided within 180 days after the date the agency
154 received notice of the alleged misconduct, except as follows:
155 1. The running of the limitations period may be tolled for
156 a period specified in a written waiver of the limitation by the
157 law enforcement officer or correctional officer.
158 2. The running of the limitations period is shall be tolled
159 during the time that any criminal investigation or prosecution
160 is pending in connection with the act, omission, or other
161 allegation of misconduct.
162 3. If the investigation involves an officer who is
163 incapacitated or otherwise unavailable, the running of the
164 limitations period is shall be tolled during the period of
165 incapacitation or unavailability.
166 4. In a multijurisdictional investigation, the limitations
167 period may be extended for a period of time reasonably necessary
168 to facilitate the coordination of the agencies involved.
169 5. The running of the limitations period may be tolled for
170 emergencies or natural disasters during the time period wherein
171 the Governor has declared a state of emergency within the
172 jurisdictional boundaries of the concerned agency.
173 6. The running of the limitations period is tolled during
174 the time that the officer’s compliance hearing proceeding is
175 continuing beginning with the filing of the notice of violation
176 and a request for a hearing and ending with the written
177 determination of the compliance review panel.
178 7. The running of the limitations period is tolled by the
179 filing of a petition for injunction or review pursuant to s.
180 112.534(1).
181 (b) An investigation against a law enforcement officer or
182 correctional officer may be reopened, notwithstanding the
183 limitations period for commencing disciplinary action, demotion,
184 or dismissal, if:
185 1. Significant new evidence has been discovered that is
186 likely to affect the outcome of the investigation.
187 2. The evidence could not have reasonably been discovered
188 in the normal course of investigation or the evidence resulted
189 from the predisciplinary response of the officer.
190
191 Any disciplinary action resulting from an investigation that is
192 reopened pursuant to this paragraph must be completed within 90
193 days after the date the investigation is reopened.
194 Section 2. Paragraph (a) of subsection (2) of section
195 112.533, Florida Statutes, is amended to read:
196 112.533 Receipt and processing of complaints.—
197 (2)(a) A complaint filed against a law enforcement officer
198 or correctional officer with a law enforcement agency or
199 correctional agency and all information obtained pursuant to the
200 investigation by the agency of the such complaint is shall be
201 confidential and exempt from the provisions of s. 119.07(1)
202 until the investigation ceases to be active, or until the agency
203 head or the agency head’s designee provides written notice to
204 the officer who is the subject of the complaint, either
205 personally or by mail, that the agency has either:
206 1. Concluded the investigation with a finding not to
207 proceed with disciplinary action or to file charges; or
208 2. Concluded the investigation with a finding to proceed
209 with disciplinary action or to file charges.
210
211 Notwithstanding the foregoing provisions, the officer who is the
212 subject of the complaint, along with legal counsel or any other
213 representative of his or her choice, may review the complaint
214 and all statements regardless of form made by the complainant
215 and witnesses and all existing evidence, including, but not
216 limited to, incident reports, analyses, GPS locator information,
217 and audio or video recordings relating to the investigation,
218 immediately before prior to the beginning of the investigative
219 interview. All statements, regardless of form, provided by a law
220 enforcement officer or correctional officer during the course of
221 a complaint investigation of that officer shall be made under
222 oath pursuant to s. 92.525. Knowingly false statements given by
223 a law enforcement officer or correctional officer under
224 investigation may subject the law enforcement officer or
225 correctional officer to prosecution for perjury. If a witness to
226 a complaint is incarcerated in a correctional facility and may
227 be under the supervision of, or have contact with, the officer
228 under investigation, only the names and written statements of
229 the complainant and nonincarcerated witnesses may be reviewed by
230 the officer under investigation immediately prior to the
231 beginning of the investigative interview.
232 Section 3. Section 112.534, Florida Statutes, is amended to
233 read:
234 112.534 Failure to comply; official misconduct.—
235 (1) If any law enforcement agency or correctional agency,
236 including investigators in its internal affairs or professional
237 standards division, or an assigned investigating supervisor,
238 intentionally fails to comply with the requirements of this
239 part, the following procedures apply. For purposes of this
240 section, the term “law enforcement officer” or “correctional
241 officer” includes the officer’s representative or legal counsel.
242 (a) The law enforcement officer or correctional officer
243 shall advise the investigator of the intentional violation of
244 the requirements of this part which is alleged to have occurred.
245 The officer’s notice of violation is sufficient to notify the
246 investigator of the requirements of this part which are alleged
247 to have been violated and the factual basis of each violation.
248 (b) If the investigator fails to cure the violation or
249 continues the violation after being notified by the law
250 enforcement officer or correctional officer, the officer shall
251 request that the interview cease and the agency head or his
252 designee be informed of the alleged intentional violation. Once
253 this request is made the interview of the officer shall cease
254 and the officer’s refusal to respond to further investigative
255 questions does not constitute insubordination.
256 (c) Thereafter a notice of violation and request for a
257 compliance review hearing shall be filed by the officer in
258 writing which must contain sufficient information to identify
259 the requirements of this part which are alleged to have been
260 violated and the factual basis of each violation. All evidence
261 related to the investigation must be preserved for review and
262 presentation at the compliance review hearing. Such documents or
263 evidence are not considered confidential for purposes of the
264 presentation at the compliance review panel hearing.
265 (d) A compliance review hearing must be conducted within 10
266 calendar days after the request for a compliance review hearing
267 is filed, unless, by mutual agreement of the officer and agency
268 or for extraordinary reasons, an alternate date is chosen. The
269 panel shall review the circumstances and facts surrounding the
270 alleged intentional violation. The compliance review panel shall
271 be made up of three members: one member selected by the agency
272 head, one member selected by the officer filing the request, and
273 a third member to be selected by the other two members. The
274 review panel members shall be law enforcement officers or
275 correctional officers who are either active or have retired in
276 good standing, from the same law enforcement discipline as the
277 officer requesting the hearing. Panel members may be selected
278 from any state, county or municipal agency within the county in
279 which the officer works. The compliance review hearing shall be
280 conducted in the county in which the officer works.
281 (e) It is the responsibility of the compliance review panel
282 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 not considered confidential for purposes of the compliance
290 review hearing and determination.
291 (f) The officer bears the burden of proof to establish that
292 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 shall be in writing and
295 filed with the agency head and the officer. Such findings are
296 final and binding on all parties.
297 (g) If the alleged violation is sustained as intentional by
298 the compliance review panel the agency head shall immediately
299 remove the investigator from any further involvement with the
300 investigation of the officer. Additionally, the agency head
301 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 Standard 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) All the provisions of s. 838.022 shall apply to this
316 part.
317 Section 4. This act shall take effect July 1, 2009.