CS for SB 624                              First Engrossed (ntc)
       
       
       
       
       
       
       
       
       2009624e1
       
    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 or upon the
  178  violation being remedied by the agency.
  179         (b) An investigation against a law enforcement officer or
  180  correctional officer may be reopened, notwithstanding the
  181  limitations period for commencing disciplinary action, demotion,
  182  or dismissal, if:
  183         1. Significant new evidence has been discovered that is
  184  likely to affect the outcome of the investigation.
  185         2. The evidence could not have reasonably been discovered
  186  in the normal course of investigation or the evidence resulted
  187  from the predisciplinary response of the officer.
  188  
  189  Any disciplinary action resulting from an investigation that is
  190  reopened pursuant to this paragraph must be completed within 90
  191  days after the date the investigation is reopened.
  192         Section 2. Paragraph (a) of subsection (2) of section
  193  112.533, Florida Statutes, is amended to read:
  194         112.533 Receipt and processing of complaints.—
  195         (2)(a) A complaint filed against a law enforcement officer
  196  or correctional officer with a law enforcement agency or
  197  correctional agency and all information obtained pursuant to the
  198  investigation by the agency of the such complaint is shall be
  199  confidential and exempt from the provisions of s. 119.07(1)
  200  until the investigation ceases to be active, or until the agency
  201  head or the agency head’s designee provides written notice to
  202  the officer who is the subject of the complaint, either
  203  personally or by mail, that the agency has either:
  204         1. Concluded the investigation with a finding not to
  205  proceed with disciplinary action or to file charges; or
  206         2. Concluded the investigation with a finding to proceed
  207  with disciplinary action or to file charges.
  208  
  209  Notwithstanding the foregoing provisions, the officer who is the
  210  subject of the complaint, along with legal counsel or any other
  211  representative of his or her choice, may review the complaint
  212  and all statements regardless of form made by the complainant
  213  and witnesses and all existing evidence, including, but not
  214  limited to, incident reports, analyses, GPS locator information,
  215  and audio or video recordings relating to the investigation,
  216  immediately before prior to the beginning of the investigative
  217  interview. All statements, regardless of form, provided by a law
  218  enforcement officer or correctional officer during the course of
  219  a complaint investigation of that officer shall be made under
  220  oath pursuant to s. 92.525. Knowingly false statements given by
  221  a law enforcement officer or correctional officer under
  222  investigation may subject the law enforcement officer or
  223  correctional officer to prosecution for perjury. If a witness to
  224  a complaint is incarcerated in a correctional facility and may
  225  be under the supervision of, or have contact with, the officer
  226  under investigation, only the names and written statements of
  227  the complainant and nonincarcerated witnesses may be reviewed by
  228  the officer under investigation immediately prior to the
  229  beginning of the investigative interview.
  230         Section 3. Section 112.534, Florida Statutes, is amended to
  231  read:
  232         112.534 Failure to comply; official misconduct.—
  233         (1) If any law enforcement agency or correctional agency,
  234  including investigators in its internal affairs or professional
  235  standards division, or an assigned investigating supervisor,
  236  intentionally fails to comply with the requirements of this
  237  part, the following procedures apply. For purposes of this
  238  section, the term “law enforcement officer” or “correctional
  239  officer” includes the officer’s representative or legal counsel,
  240  except in application of s. 112.534(1)(d).
  241         (a) The law enforcement officer or correctional officer
  242  shall advise the investigator of the intentional violation of
  243  the requirements of this part which is alleged to have occurred.
  244  The officer’s notice of violation is sufficient to notify the
  245  investigator of the requirements of this part which are alleged
  246  to have been violated and the factual basis of each violation.
  247         (b) If the investigator fails to cure the violation or
  248  continues the violation after being notified by the law
  249  enforcement officer or correctional officer, the officer shall
  250  request the agency head or his designee be informed of the
  251  alleged intentional violation. Once this request is made the
  252  interview of the officer shall cease and the officer’s refusal
  253  to respond to further investigative questions does not
  254  constitute insubordination or any similar type of policy
  255  violation.
  256         (c) Thereafter, within 3 working days, a written notice of
  257  violation and request for a compliance review hearing shall be
  258  filed with the agency head or designee which must contain
  259  sufficient information to identify the requirements of this part
  260  which are alleged to have been violated and the factual basis of
  261  each violation. All evidence related to the investigation must
  262  be preserved for review and presentation at the compliance
  263  review hearing. For purposes of confidentiality, the compliance
  264  review panel hearing shall be considered part of the original
  265  investigation.
  266         (d) Unless otherwise remedied by the agency before the
  267  hearing, a compliance review hearing must be conducted within 10
  268  working days after the request for a compliance review hearing
  269  is filed, unless, by mutual agreement of the officer and agency
  270  or for extraordinary reasons, an alternate date is chosen. The
  271  panel shall review the circumstances and facts surrounding the
  272  alleged intentional violation. The compliance review panel shall
  273  be made up of three members: one member selected by the agency
  274  head, one member selected by the officer filing the request, and
  275  a third member to be selected by the other two members. The
  276  review panel members shall be law enforcement officers or
  277  correctional officers who are active from the same law
  278  enforcement discipline as the officer requesting the hearing.
  279  Panel members may be selected from any state, county or
  280  municipal agency within the county in which the officer works.
  281  The compliance review hearing shall be conducted in the county
  282  in which the officer works.
  283         (e) It is the responsibility of the compliance review panel
  284  to determine whether or not the investigator or agency
  285  intentionally violated the requirements provided under this
  286  part. It may hear evidence, review relevant documents and hear
  287  argument before making such a determination; however, all
  288  evidence received shall be strictly limited to the allegation
  289  under consideration and may not be related to the disciplinary
  290  charges pending against the officer. The investigative materials
  291  are considered confidential for purposes of the compliance
  292  review hearing and determination.
  293         (f) The officer bears the burden of proof to establish that
  294  the violation of this part was intentional. The standard of
  295  proof for such a determination is by a preponderance of the
  296  evidence. The determination of the panel must be made at the
  297  conclusion of the hearing, in writing, and filed with the agency
  298  head and the officer.
  299         (g) If the alleged violation is sustained as intentional by
  300  the compliance review panel the agency head shall immediately
  301  remove the investigator from any further involvement with the
  302  investigation of the officer. Additionally, the agency head
  303  shall direct an investigation be initiated against the
  304  investigator determined to have intentionally violated the
  305  requirements provided under this part for purposes of agency
  306  disciplinary action. If that investigation is sustained, the
  307  sustained allegations against the investigator shall be
  308  forwarded to the Criminal Justice Standard and Training
  309  Commission for review as an act of official misconduct or misuse
  310  of position. a law enforcement officer or correctional officer
  311  employed by or appointed to such agency who is personally
  312  injured by such failure to comply may apply directly to the
  313  circuit court of the county wherein such agency is headquartered
  314  and permanently resides for an injunction to restrain and enjoin
  315  such violation of the provisions of this part and to compel the
  316  performance of the duties imposed by this part.
  317         (2)(a) All the provisions of s. 838.022 shall apply to this
  318  part.
  319         (b) The provisions of chapter 120 do not apply to this
  320  part.
  321         Section 4. This act shall take effect July 1, 2009.