ENROLLED 2009 Legislature CS for SB 624, 1st Engrossed 2009624er 1 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 thatwhichcould lead to disciplinary action, suspension, 41 demotion, or dismissal, thesuchinterrogation mustshallbe 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 mustshallbe informed of the nature of the 63 investigation beforeprior toany interrogation begins, and he 64 or she mustshallbe 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,andall 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, mustshallbe provided to eachtheofficer who is 73 the subject of the complaint beforeprior tothe 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 mayshallnot be subjected to offensive 83 language or be threatened with transfer, dismissal, or 84 disciplinary action. ANopromise or reward may notshallbe 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 88shallbe 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 anysuchrecording 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 commencingprior to the commencement ofthe interrogation. 100 (i) At the request of any law enforcement officer or 101 correctional officer under investigation, he or she hasshall102havethe 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 thesuchinterrogation 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.—ANodismissal, 111 demotion, transfer, reassignment, or other personnel action that 112whichmight result in loss of pay or benefits or thatwhich113 might otherwise be considered a punitive measure may notshall114 be taken against any law enforcement officer or correctional 115 officer unless thesuchlaw enforcement officer or correctional 116 officer is notified of the action and the reason or reasons for 117 the action beforetherefor prior tothe effective date of the 118suchaction. 119 (b) Notwithstandingthe provisions ofs. 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 supporting126documentsand with the opportunity to address the findings in 127 the report with the employing law enforcement agency before 128 imposingprior tothe imposition of thedisciplinary 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 135shallnotbe construed toprovide 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,nodisciplinary 140 action, suspension, demotion, or dismissal may notshallbe 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 thesuchallegation 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. IfIn the event147thatthe 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.SuchNotice to the officer must 153shallbe 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 isshall betolled 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 isshall betolled 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 thesuchcomplaint isshall be199 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 beforeprior to thebeginningofthe 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 officer311employed by or appointed to such agency who is personally312injured by such failure to comply may apply directly to the313circuit court of the county wherein such agency is headquartered314and permanently resides for an injunction to restrain and enjoin315such violation of the provisions of this part and to compel the316performance 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.