1     
PEACE OFFICER STANDARDS AND TRAINING

2     
AMENDMENTS

3     
2020 GENERAL SESSION

4     
STATE OF UTAH

5     
Chief Sponsor: Lee B. Perry

6     
Senate Sponsor: Keith Grover

7     

8     LONG TITLE
9     Committee Note:
10          The Law Enforcement and Criminal Justice Interim Committee recommended this bill.
11               Legislative Vote:     9 voting for     0 voting against     7 absent
12     General Description:
13          This bill amends the responsibilities of the Peace Officer Standards and Training
14     Council regarding disciplinary action against peace officers and dispatchers.
15     Highlighted Provisions:
16          This bill:
17          ▸     requires the POST Council to decide on sanctions to be imposed upon peace
18     officers and dispatchers;
19          ▸     allows for the issuance of a Letter of Caution as a disciplinary measure;
20          ▸     requires the POST Council to accept an administrative law judge's findings and
21     conclusions; and
22          ▸     requires the division to be notified upon the separation of a peace officer or
23     dispatcher who is under investigation.
24     Money Appropriated in this Bill:
25          None
26     Other Special Clauses:
27          None
28     Utah Code Sections Affected:
29     AMENDS:
30          53-6-107, as last amended by Laws of Utah 2002, Chapter 250
31          53-6-211, as last amended by Laws of Utah 2013, Chapters 115 and 269
32          53-6-309, as repealed and reenacted by Laws of Utah 2011, Chapter 258
33     

34     Be it enacted by the Legislature of the state of Utah:
35          Section 1. Section 53-6-107 is amended to read:
36           53-6-107. General duties of council.
37          (1) The council shall:
38          (a) advise the director regarding:
39          (i) the approval, certification, or revocation of certification of any certified academy
40     established in the state;
41          [(ii) the refusal, suspension, or revocation of certification of a peace officer;]
42          [(iii)] (ii) minimum courses of study, attendance requirements, and the equipment and
43     facilities to be required at a certified academy;
44          [(iv)] (iii) minimum qualifications for instructors at a certified academy;
45          [(v)] (iv) the minimum basic training requirements that peace officers shall complete
46     before receiving certification;
47          [(vi)] (v) the minimum basic training requirements that dispatchers shall complete
48     before receiving certification; and
49          [(vii)] (vi) categories or classifications of advanced in-service training programs and
50     minimum courses of study and attendance requirements for the categories or classifications;
51          (b) recommend that studies, surveys, or reports, or all of them be made by the director
52     concerning the implementation of the objectives and purposes of this chapter;
53          (c) make recommendations and reports to the commissioner and governor from time to
54     time; [and]
55          (d) perform other acts as necessary to carry out the duties of the council in this
56     chapter[.]; and
57          (e) choose from the sanctions to be imposed against certified peace officers as provided
58     in Section 53-6-211, and dispatchers as provided in Section 53-6-309.
59          (2) The council may approve special function officers for membership in the Public
60     Safety Retirement System in accordance with Sections 49-14-201 and 49-15-201.
61          Section 2. Section 53-6-211 is amended to read:
62          53-6-211. Suspension or revocation of certification -- Right to a hearing --
63     Grounds -- Notice to employer -- Reporting -- Judicial appeal.
64          (1) The council has the authority to issue a Letter of Caution, or suspend or revoke the
65     certification of a peace officer, if the peace officer:
66          (a) willfully falsifies any information to obtain certification;
67          (b) has any physical or mental disability affecting the peace officer's ability to perform
68     duties;
69          (c) is addicted to alcohol or any controlled substance, unless the peace officer reports
70     the addiction to the employer and to the director as part of a departmental early intervention
71     process;
72          (d) engages in conduct [which is] constituting a state or federal criminal offense, but
73     not including a traffic offense that is a class C misdemeanor or infraction;
74          (e) refuses to respond, or fails to respond truthfully, to questions after having been
75     issued a warning issued based on Garrity v. New Jersey, 385 U.S. 493 (1967);
76          (f) engages in sexual conduct while on duty; or
77          (g) is certified as a law enforcement peace officer, as defined in Section [53-13-103]
78     53-13-102, and is unable to possess a firearm under state or federal law.
79          (2) The council may not issue a Letter of Caution, or suspend or revoke the
80     certification of a peace officer for a violation of a law enforcement agency's policies, general
81     orders, or guidelines of operation that do not amount to a cause of action under Subsection (1).
82          (3) (a) The division is responsible for investigating officers who are alleged to have
83     engaged in conduct in violation of Subsection (1).
84          (b) The division shall initiate all adjudicative proceedings under this section by
85     providing to the peace officer involved notice and an opportunity for a hearing before an
86     administrative law judge.
87          (c) All adjudicative proceedings under this section are civil actions, notwithstanding
88     whether the issue in the adjudicative proceeding is a violation of statute that may be prosecuted
89     criminally.
90          (d) (i) The burden of proof on the division in an adjudicative proceeding under this
91     section is by clear and convincing evidence.
92          (ii) If a peace officer asserts an affirmative defense, the peace officer has the burden of
93     proof to establish the affirmative defense by a preponderance of the evidence.
94          (e) If the administrative law judge issues findings of fact and conclusions of law stating
95     there is sufficient evidence to demonstrate that the officer engaged in conduct that is in
96     violation of Subsection (1), the division shall present the finding and conclusions issued by the
97     administrative law judge to the council.
98          (f) The division shall notify the chief, sheriff, or administrative officer of the police
99     agency which employs the involved peace officer of the investigation and shall provide any
100     information or comments concerning the peace officer received from that agency regarding the
101     peace officer to the council before a Letter of Caution is issued, or a peace officer's certification
102     may be suspended or revoked.
103          (g) If the administrative law judge finds that there is insufficient evidence to
104     demonstrate that the officer is in violation of Subsection (1), the administrative law judge shall
105     dismiss the adjudicative proceeding.
106          (4) (a) The council shall [review]:
107          (i) accept the administrative law judge's findings of fact and conclusions of law, and
108     the information concerning the peace officer provided by the officer's employing agency; and
109     [determine]
110          (ii) choose whether to issue a Letter of Caution, or suspend or revoke the officer's
111     certification.
112          (b) Before making a decision, the council may consider aggravating and mitigating
113     circumstances.
114          [(b)] (c) A member of the council shall recuse him or herself from consideration of an
115     issue that is before the council if the council member:
116          (i) has a personal bias for or against the officer;
117          (ii) has a substantial pecuniary interest in the outcome of the proceeding and may gain
118     or lose some benefit from the outcome; or
119          (iii) employs, supervises, or works for the same law enforcement agency as the officer
120     whose case is before the council.
121          (5) (a) Termination of a peace officer, whether voluntary or involuntary, does not
122     preclude suspension or revocation of a peace officer's certification by the council if the peace
123     officer was terminated for any of the reasons under Subsection (1).
124          (b) Employment by another agency, or reinstatement of a peace officer by the original
125     employing agency after termination by that agency, whether the termination was voluntary or
126     involuntary, does not preclude suspension or revocation of a peace officer's certification by the
127     council if the peace officer was terminated for any of the reasons under Subsection (1).
128          (6) (a) A chief, sheriff, or administrative officer of a law enforcement agency who is
129     made aware of an allegation against a peace officer employed by that agency that involves
130     conduct in violation of Subsection (1) shall investigate the allegation and report to the division
131     if the allegation is found to be true.
132          (b) If a peace officer who is the subject of an internal or administrative investigation
133     that involves conduct in violation of Subsection (1) resigns, retires, or otherwise separates from
134     the investigating law enforcement agency before the conclusion of the investigation, the chief,
135     sheriff, or administrative officer of that law enforcement agency shall report the allegations and
136     any investigation results to the division.
137          (7) The council's issuance of a Letter of Caution, or suspension or revocation of an
138     officer's certification under Subsection (4) may be appealed under Title 63G, Chapter 4, Part 4,
139     Judicial Review.
140          Section 3. Section 53-6-309 is amended to read:
141          53-6-309. Suspension or revocation of certification -- Right to a hearing --
142     Grounds -- Notice to employer -- Reporting.
143          (1) The council has the authority to issue a Letter of Caution, or suspend or revoke the
144     certification of a dispatcher, if the dispatcher:
145          (a) willfully falsifies any information to obtain certification;
146          (b) has any physical or mental disability affecting the dispatcher's ability to perform
147     duties;
148          (c) is addicted to alcohol or any controlled substance, unless the dispatcher reports the
149     addiction to the employer and to the director as part of a departmental early intervention
150     process;
151          (d) engages in conduct [that is] constituting a state or federal criminal offense, but not
152     including a traffic offense that is a class C misdemeanor or infraction;
153          (e) refuses to respond, or fails to respond truthfully, to questions after having been
154     issued a warning based on Garrity v. New Jersey, 385 U.S. 493 (1967); or
155          (f) engages in sexual conduct while on duty.
156          (2) The council may not issue a Letter of Caution, or suspend or revoke the
157     certification of a dispatcher for a violation of the employing agency's policies, general orders,
158     or guidelines of operation that do not amount to a cause of action under Subsection (1).
159          (3) (a) The division is responsible for investigating dispatchers who are alleged to have
160     engaged in conduct in violation of Subsection (1).
161          (b) The division shall initiate all adjudicative proceedings under this section by
162     providing to the dispatcher involved notice and an opportunity for a hearing before an
163     administrative law judge.
164          (c) All adjudicative proceedings under this section are civil actions, notwithstanding
165     whether the issue in the adjudicative proceeding is a violation of statute that may be prosecuted
166     criminally.
167          (d) (i) The burden of proof on the division in an adjudicative proceeding under this
168     section is by clear and convincing evidence.
169          (ii) If a dispatcher asserts an affirmative defense, the dispatcher has the burden of proof
170     to establish the affirmative defense by a preponderance of the evidence.
171          (e) If the administrative law judge issues findings of fact and conclusions of law stating
172     there is sufficient evidence to demonstrate that the dispatcher engaged in conduct that is in
173     violation of Subsection (1), the division shall present the findings and conclusions issued by
174     the administrative law judge to the council.
175          (f) The division shall notify the agency that employs the involved dispatcher of the
176     investigation and shall provide any information or comments concerning the dispatcher
177     received from that agency regarding the dispatcher to the council before a Letter of Caution is
178     issued, or a dispatcher's certification may be suspended or revoked.
179          (g) If the administrative law judge finds that there is insufficient evidence to
180     demonstrate that the dispatcher is in violation of Subsection (1), the administrative law judge
181     shall dismiss the adjudicative proceeding.
182          (4) (a) The council shall [review]:
183          (i) accept the administrative law judge's findings of fact and conclusions of law and the
184     information concerning the dispatcher provided by the dispatcher's employing agency; and
185     [determine]
186          (ii) choose whether to issue a Letter of Caution, or suspend or revoke the dispatcher's
187     certification.
188          (b) Before making a decision, the council may consider aggravating and mitigating
189     circumstances.
190          [(b)] (c) A council member shall recuse himself or herself from consideration of an
191     issue that is before the council if the council member:
192          (i) has a personal bias for or against the dispatcher;
193          (ii) has a substantial pecuniary interest in the outcome of the proceeding and may gain
194     or lose some benefit from the outcome; or
195          (iii) employs, supervises, or works for the same agency as the dispatcher whose case is
196     before the council.
197          (5) (a) Termination of a dispatcher, whether voluntary or involuntary, does not
198     preclude suspension or revocation of a dispatcher's certification by the council if the dispatcher
199     was terminated for any of the reasons under Subsection (1).
200          (b) Employment by another agency, or reinstatement of a dispatcher by the original
201     employing agency after termination by that agency, whether the termination was voluntary or
202     involuntary, does not preclude suspension or revocation of a dispatcher's certification by the
203     council if the dispatcher was terminated for any of the reasons under Subsection (1).
204          (6) (a) An agency that is made aware of an allegation against a dispatcher employed by
205     that agency that involves conduct in violation of Subsection (1) shall investigate the allegation
206     and report to the division if the allegation is found to be true.
207          (b) If a dispatcher who is the subject of an internal or administrative investigation that
208     involves conduct in violation of Subsection (1) resigns, retires, or otherwise separates from the
209     investigating law enforcement agency before the conclusion of the investigation, the agency
210     shall report the allegations and any investigation results to the division.
211          (7) The council's issuance of a Letter of Caution, or suspension or revocation of an
212     officer's certification under Subsection (4) may be appealed under Title 63G, Chapter 4, Part 4,
213     Judicial Review.