Florida Senate - 2014                                    SB 1322
       
       
        
       By Senator Evers
       
       
       
       
       
       2-01121A-14                                           20141322__
    1                        A bill to be entitled                      
    2         An act relating to law enforcement and corrections
    3         officers; amending s. 112.532, F.S.; specifying the
    4         exclusivity of procedures governing the investigation
    5         of law enforcement officers and correctional officers;
    6         authorizing an interrogated officer’s representative
    7         or legal counsel to obtain a recording of an
    8         interrogation session upon request; requiring that an
    9         officer subject to disciplinary action or the
   10         officer’s representative or legal counsel have an
   11         opportunity to address findings in a final
   12         investigative report before imposition of discipline;
   13         including disciplinary probation in specified
   14         disciplinary actions imposed by a law enforcement
   15         agency as a result of an investigation; requiring a
   16         law enforcement agency to provide notice of alleged
   17         misconduct to an officer’s representative or legal
   18         counsel within a specified timeframe; amending s.
   19         112.534, F.S.; specifying the length of application of
   20         investigative procedures of a law enforcement agency
   21         or correctional agency; clarifying that the officer
   22         under investigation bears the burden of proof before
   23         the compliance review panel; authorizing an officer to
   24         seek injunctive relief if a law enforcement agency or
   25         correctional agency fails to comply with the
   26         requirements of part VI of ch. 112, F.S.; specifying
   27         the venue for such an action; providing an effective
   28         date.
   29          
   30  Be It Enacted by the Legislature of the State of Florida:
   31  
   32         Section 1. Section 112.532, Florida Statutes, is amended to
   33  read:
   34         112.532 Law enforcement officers’ and correctional
   35  officers’ rights.—The following procedures shall be the
   36  exclusive procedures for investigating all law enforcement
   37  officers and correctional officers subject to an internal or
   38  external investigation, notwithstanding any other law or
   39  ordinance. All law enforcement officers and correctional
   40  officers employed by or appointed to a law enforcement agency or
   41  a correctional agency shall have the following rights and
   42  privileges:
   43         (1) RIGHTS OF LAW ENFORCEMENT OFFICERS AND CORRECTIONAL
   44  OFFICERS WHILE UNDER INVESTIGATION.—Whenever a law enforcement
   45  officer or correctional officer is under investigation and
   46  subject to interrogation by members of his or her agency for any
   47  reason that could lead to disciplinary action, suspension,
   48  demotion, or dismissal, the interrogation must be conducted
   49  under the following conditions:
   50         (a) The interrogation shall be conducted at a reasonable
   51  hour, preferably at a time when the law enforcement officer or
   52  correctional officer is on duty, unless the seriousness of the
   53  investigation is of such a degree that immediate action is
   54  required.
   55         (b) The interrogation shall take place either at the office
   56  of the command of the investigating officer or at the office of
   57  the local precinct, police unit, or correctional unit in which
   58  the incident allegedly occurred, as designated by the
   59  investigating officer or agency.
   60         (c) The law enforcement officer or correctional officer
   61  under investigation shall be informed of the rank, name, and
   62  command of the officer in charge of the investigation, the
   63  interrogating officer, and all persons present during the
   64  interrogation. All questions directed to the officer under
   65  interrogation shall be asked by or through one interrogator
   66  during any one investigative interrogation, unless specifically
   67  waived by the officer under investigation.
   68         (d) The law enforcement officer or correctional officer
   69  under investigation must be informed of the specific nature of
   70  the investigation before any interrogation begins, and he or she
   71  must be informed of the names of all complainants. All
   72  identifiable witnesses shall be interviewed, whenever possible,
   73  before prior to the beginning of the investigative interview of
   74  the accused officer. The complaint, all witness statements,
   75  including all other existing subject officer statements, and all
   76  other existing evidence, including, but not limited to, incident
   77  reports, GPS locator information, and audio or video recordings
   78  relating to the incident under investigation, must be provided
   79  to each officer who is the subject of the complaint before the
   80  beginning of any investigative interview of that officer. An
   81  officer, after being informed of the right to review witness
   82  statements, may voluntarily waive the provisions of this
   83  paragraph and provide a voluntary statement at any time.
   84         (e) Interrogating sessions shall be for reasonable periods
   85  and shall be timed to allow for such personal necessities and
   86  rest periods as are reasonably necessary.
   87         (f) Throughout the course of an investigation, the law
   88  enforcement officer or correctional officer under interrogation
   89  may not be subjected to offensive language or be threatened with
   90  transfer, dismissal, or disciplinary action. A promise or reward
   91  may not be made as an inducement to answer any questions.
   92         (g) The formal interrogation of a law enforcement officer
   93  or correctional officer, including all recess periods, must be
   94  recorded on audio tape, or otherwise preserved in such a manner
   95  as to allow a transcript to be prepared, and there shall be no
   96  unrecorded questions or statements. Upon the request of the
   97  interrogated officer or the interrogated officer’s
   98  representative or legal counsel, a copy of any recording of the
   99  interrogation session must be made available to the interrogated
  100  officer no later than 72 hours, excluding holidays and weekends,
  101  following said interrogation.
  102         (h) If the law enforcement officer or correctional officer
  103  under interrogation is under arrest, or is likely to be placed
  104  under arrest as a result of the interrogation, he or she shall
  105  be completely informed of all his or her rights before
  106  commencing the interrogation.
  107         (i) At the request of any law enforcement officer or
  108  correctional officer under investigation, he or she has the
  109  right to be represented by legal counsel or any other
  110  representative of his or her choice, who shall be present at all
  111  times during the interrogation whenever the interrogation
  112  relates to the officer’s continued fitness for law enforcement
  113  or correctional service.
  114         (j) Notwithstanding the rights and privileges provided by
  115  this part, this part does not limit the right of an agency to
  116  discipline or to pursue criminal charges against an officer.
  117         (2) COMPLAINT REVIEW BOARDS.—A complaint review board shall
  118  be composed of three members: One member selected by the chief
  119  administrator of the agency or unit; one member selected by the
  120  aggrieved officer; and a third member to be selected by the
  121  other two members. Agencies or units having more than 100 law
  122  enforcement officers or correctional officers shall utilize a
  123  five-member board, with two members being selected by the
  124  administrator, two members being selected by the aggrieved
  125  officer, and the fifth member being selected by the other four
  126  members. The board members shall be law enforcement officers or
  127  correctional officers selected from any state, county, or
  128  municipal agency within the county. There shall be a board for
  129  law enforcement officers and a board for correctional officers
  130  whose members shall be from the same discipline as the aggrieved
  131  officer. The provisions of this subsection shall not apply to
  132  sheriffs or deputy sheriffs.
  133         (3) CIVIL SUITS BROUGHT BY LAW ENFORCEMENT OFFICERS OR
  134  CORRECTIONAL OFFICERS.—Every law enforcement officer or
  135  correctional officer shall have the right to bring civil suit
  136  against any person, group of persons, or organization or
  137  corporation, or the head of such organization or corporation,
  138  for damages, either pecuniary or otherwise, suffered during the
  139  performance of the officer’s official duties, for abridgment of
  140  the officer’s civil rights arising out of the officer’s
  141  performance of official duties, or for filing a complaint
  142  against the officer which the person knew was false when it was
  143  filed. This section does not establish a separate civil action
  144  against the officer’s employing law enforcement agency for the
  145  investigation and processing of a complaint filed under this
  146  part.
  147         (4)(a) NOTICE OF DISCIPLINARY ACTION.—A dismissal,
  148  demotion, transfer, reassignment, or other personnel action that
  149  might result in loss of pay or benefits or that might otherwise
  150  be considered a punitive measure may not be taken against any
  151  law enforcement officer or correctional officer unless the law
  152  enforcement officer or correctional officer is notified of the
  153  action and the reason or reasons for the action before the
  154  effective date of the action.
  155         (b) Notwithstanding s. 112.533(2), whenever a law
  156  enforcement officer or correctional officer is subject to
  157  disciplinary action consisting of suspension with loss of pay,
  158  demotion, or dismissal, the officer or the officer’s
  159  representative or legal counsel shall, upon request, be provided
  160  with a complete copy of the investigative file, including the
  161  final investigative report and all evidence, and with the
  162  opportunity for the officer and the officer’s representative or
  163  legal counsel to address the findings in the report with the
  164  employing law enforcement agency before imposing disciplinary
  165  action consisting of suspension with loss of pay, demotion,
  166  disciplinary probation, or dismissal. The contents of the
  167  complaint and investigation shall remain confidential until such
  168  time as the employing law enforcement agency makes a final
  169  determination whether or not to issue a notice of disciplinary
  170  action consisting of suspension with loss of pay, demotion,
  171  disciplinary probation, or dismissal. This paragraph does not
  172  provide law enforcement officers with a property interest or
  173  expectancy of continued employment, employment, or appointment
  174  as a law enforcement officer.
  175         (5) RETALIATION FOR EXERCISING RIGHTS.—No law enforcement
  176  officer or correctional officer shall be discharged;
  177  disciplined; demoted; denied promotion, transfer, or
  178  reassignment; or otherwise discriminated against in regard to
  179  his or her employment or appointment, or be threatened with any
  180  such treatment, by reason of his or her exercise of the rights
  181  granted by this part.
  182         (6) LIMITATIONS PERIOD FOR DISCIPLINARY ACTIONS.—
  183         (a) Except as provided in this subsection, disciplinary
  184  action, suspension, demotion, or dismissal may not be undertaken
  185  by an agency against a law enforcement officer or correctional
  186  officer for any act, omission, or other allegation of misconduct
  187  if the investigation of the allegation is not completed within
  188  180 days after the date the agency receives notice of the
  189  allegation by a person authorized by the agency to initiate an
  190  investigation of the misconduct. If the agency determines that
  191  disciplinary action is appropriate, it shall complete its
  192  investigation and give notice in writing to the law enforcement
  193  officer or correctional officer or the officer’s representative
  194  or legal counsel of its intent to proceed with disciplinary
  195  action, along with a proposal of the specific action sought,
  196  including length of suspension, if applicable. Notice to the
  197  officer or the officer’s representative or legal counsel must be
  198  provided within 180 days after the date the agency received
  199  notice of the alleged misconduct, except as follows:
  200         1. The running of the limitations period may be tolled for
  201  a period specified in a written waiver of the limitation by the
  202  law enforcement officer or correctional officer.
  203         2. The running of the limitations period is tolled during
  204  the time that any criminal investigation or prosecution is
  205  pending in connection with the act, omission, or other
  206  allegation of misconduct.
  207         3. If the investigation involves an officer who is
  208  incapacitated or otherwise unavailable, the running of the
  209  limitations period is tolled during the period of incapacitation
  210  or unavailability.
  211         4. In a multijurisdictional investigation, the limitations
  212  period may be extended for a period of time reasonably necessary
  213  to facilitate the coordination of the agencies involved.
  214         5. The running of the limitations period may be tolled for
  215  emergencies or natural disasters during the time period wherein
  216  the Governor has declared a state of emergency within the
  217  jurisdictional boundaries of the concerned agency.
  218         6. The running of the limitations period is tolled during
  219  the time that the officer’s compliance hearing proceeding is
  220  continuing beginning with the filing of the notice of violation
  221  and a request for a hearing and ending with the written
  222  determination of the compliance review panel or upon the
  223  violation being remedied by the agency.
  224         (b) An investigation against a law enforcement officer or
  225  correctional officer may be reopened, notwithstanding the
  226  limitations period for commencing disciplinary action, demotion,
  227  or dismissal, if:
  228         1. Significant new evidence has been discovered that is
  229  likely to affect the outcome of the investigation.
  230         2. The evidence could not have reasonably been discovered
  231  in the normal course of investigation or the evidence resulted
  232  from the predisciplinary response of the officer.
  233  
  234  Any disciplinary action resulting from an investigation that is
  235  reopened pursuant to this paragraph must be completed within 90
  236  days after the date the investigation is reopened.
  237         Section 2. Section 112.534, Florida Statutes, is amended to
  238  read:
  239         112.534 Failure to comply; official misconduct.—
  240         (1) If any law enforcement agency or correctional agency,
  241  including investigators in its internal affairs or professional
  242  standards division, or an assigned investigating supervisor,
  243  intentionally fails to comply with the requirements of this part
  244  at any time from the beginning of the investigation until the
  245  imposition of discipline or the investigation is closed, the
  246  following procedures apply. As used in For purposes of this
  247  section, the term “law enforcement officer” or “correctional
  248  officer” includes the officer’s representative or legal counsel,
  249  except in application of paragraph (d).
  250         (a) The law enforcement officer or correctional officer
  251  shall advise the investigator of the intentional violation of
  252  the requirements of this part which is alleged to have occurred.
  253  The officer’s notice of violation is sufficient to notify the
  254  investigator of the requirements of this part which are alleged
  255  to have been violated and the factual basis of each violation.
  256         (b) If the investigator fails to cure the violation or
  257  continues the violation after being notified by the law
  258  enforcement officer or correctional officer, the officer shall
  259  request that the agency head or his or her designee be informed
  260  of the alleged intentional violation. Once this request is made,
  261  the interview of the officer shall cease, and the officer’s
  262  refusal to respond to further investigative questions does not
  263  constitute insubordination or any similar type of policy
  264  violation.
  265         (c) Thereafter, within 3 working days, a written notice of
  266  violation and request for a compliance review hearing shall be
  267  filed with the agency head or designee which must contain
  268  sufficient information to identify the requirements of this part
  269  which are alleged to have been violated and the factual basis of
  270  each violation. All evidence related to the investigation must
  271  be preserved for review and presentation at the compliance
  272  review hearing. For purposes of confidentiality, the compliance
  273  review panel hearing is shall be considered part of the original
  274  investigation.
  275         (d) Unless otherwise remedied by the agency before the
  276  hearing, a compliance review hearing must be conducted within 10
  277  working days after the request for a compliance review hearing
  278  is filed, unless, by mutual agreement of the officer and agency
  279  or for extraordinary reasons, an alternate date is chosen. The
  280  panel shall review the circumstances and facts surrounding the
  281  alleged intentional violation. The compliance review panel shall
  282  be made up of three members: one member selected by the agency
  283  head, one member selected by the officer filing the request, and
  284  a third member to be selected by the other two members. The
  285  review panel members shall be law enforcement officers or
  286  correctional officers who are active from the same law
  287  enforcement discipline as the officer requesting the hearing.
  288  Panel members may be selected from any state, county, or
  289  municipal agency within the county in which the officer works.
  290  The compliance review hearing shall be conducted in the county
  291  in which the officer works.
  292         (e) It is the responsibility of The compliance review panel
  293  shall to determine whether or not the investigator or agency
  294  intentionally violated the requirements provided under this
  295  part. The panel It may hear evidence, review relevant documents,
  296  and hear arguments argument before making such a determination;
  297  however, all evidence received shall be strictly limited to the
  298  allegation under consideration and may not be related to the
  299  disciplinary charges pending against the officer. The
  300  investigative materials are considered confidential for purposes
  301  of the compliance review hearing and determination.
  302         (f) The officer bears the burden of proof before the
  303  compliance review panel to establish that the violation of this
  304  part was intentional. The standard of proof for such a
  305  determination is by a preponderance of the evidence. The
  306  determination of the panel must be made at the conclusion of the
  307  hearing, in writing, and filed with the agency head and the
  308  officer.
  309         (g) If the alleged violation is sustained as intentional by
  310  the compliance review panel, the agency head shall immediately
  311  remove the investigator from any further involvement with the
  312  investigation of the officer. Additionally, the agency head
  313  shall direct an investigation be initiated against the
  314  investigator determined to have intentionally violated the
  315  requirements provided under this part for purposes of agency
  316  disciplinary action. If that investigation is sustained, the
  317  sustained allegations against the investigator shall be
  318  forwarded to the Criminal Justice Standards and Training
  319  Commission for review as an act of official misconduct or misuse
  320  of position.
  321         (h) If a law enforcement agency or a correctional agency
  322  fails to comply with any requirement of this part, the law
  323  enforcement officer or correctional officer may seek injunctive
  324  relief in the circuit court of the county in which the alleged
  325  violation occurred.
  326         (2)(a) All the provisions of s. 838.022 shall apply to this
  327  part.
  328         (b) The provisions of chapter 120 do not apply to this
  329  part.
  330         Section 3. This act shall take effect July 1, 2014.