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 beforeprior tothe 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 provisionsof this subsection shall not apply to132sheriffs 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 inFor purposes ofthis 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 isshall beconsidered 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 ofThe compliance review panel 293 shalltodetermine whether or not the investigator or agency 294 intentionally violated the requirements provided under this 295 part. The panelItmay hear evidence, review relevant documents, 296 and hear argumentsargumentbefore 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. 838.022shallapply 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.