1     
LAW ENFORCEMENT INTERNAL INVESTIGATION

2     
REQUIREMENTS

3     
2021 GENERAL SESSION

4     
STATE OF UTAH

5     
Chief Sponsor: Jani Iwamoto

6     
House Sponsor: Ryan D. Wilcox

7     

8     LONG TITLE
9     General Description:
10          This bill adjusts requirements for law enforcement agencies to conduct internal
11     investigations regarding law enforcement officers.
12     Highlighted Provisions:
13          This bill:
14          ▸     requires an employing law enforcement agency or training academy to provide
15     information to a prospective employer upon request;
16          ▸     requires law enforcement agencies to report certain investigations to POST; and
17          ▸     makes conforming and technical corrections.
18     Money Appropriated in this Bill:
19          None
20     Other Special Clauses:
21          None
22     Utah Code Sections Affected:
23     AMENDS:
24          53-6-209, as renumbered and amended by Laws of Utah 1993, Chapter 234
25          53-6-211, as last amended by Laws of Utah 2020, Chapter 35
26          53-14-101, as last amended by Laws of Utah 2004, Chapter 62
27     

28     Be it enacted by the Legislature of the state of Utah:
29          Section 1. Section 53-6-209 is amended to read:
30          53-6-209. Termination of employment -- Change of status form.
31          (1) When a peace officer's employment terminates, the employing agency shall submit
32     a change of status form noting the termination of the peace officer to the division.
33          (2) The change of status form shall:
34          (a) be completed and submitted within [seven] 30 days of the peace officer's
35     termination date;
36          (b) identify the circumstances of the peace officer's status change by indicating that the
37     peace officer has resigned, retired, terminated, transferred, deceased, or that the peace officer's
38     name has changed;
39          (c) indicate the effective date of action; and
40          (d) indicate the name of the new employer, if the status change is due to a transfer.
41          (3) If a peace officer's employment terminates during an open internal investigation
42     regarding that peace officer and involving an alleged violation of Subsection 53-6-211(1), the
43     employing agency shall notify the division of the investigation in accordance with Subsection
44     53-6-211(6) within 30 days of the peace officer's termination date and provide a reasonable
45     estimated date of completion for the investigation.
46          (4) If an employing agency receives credible allegations and opens an internal
47     investigation within two years after a peace officer's employment has been terminated, the
48     employing agency shall notify the division within 30 days of the date of the opening of the
49     investigation and provide a reasonable estimated date of completion for the investigation. If the
50     allegations involve alleged violations of Subsection 53-6-211(1), the agency shall report the
51     allegations to the division in accordance with Subsection 53-6-211(6) whether or not the
52     employing agency opens an internal investigation.
53          [(3)] (5) Any person or agency who intentionally falsifies, misrepresents, or fails to
54     give notice of the change of status of a peace officer is liable to the division for any damages
55     that may be sustained by the failure to make the notification.
56          Section 2. Section 53-6-211 is amended to read:
57          53-6-211. Suspension or revocation of certification -- Right to a hearing --
58     Grounds -- Notice to employer -- Reporting -- Judicial appeal.
59          (1) The council has the authority to issue a Letter of Caution, or suspend or revoke the
60     certification of a peace officer, if the peace officer:
61          (a) willfully falsifies any information to obtain certification;
62          (b) has any physical or mental disability affecting the peace officer's ability to perform
63     duties;
64          [(c) is addicted to alcohol or any controlled substance, unless the peace officer reports
65     the addiction to the employer and to the director as part of a departmental early intervention
66     process;]
67          [(d)] (c) engages in conduct constituting a state or federal criminal offense, but not
68     including a traffic offense that is a class C misdemeanor or infraction;
69          [(e)] (d) refuses to respond, or fails to respond truthfully, to questions after having been
70     issued a warning issued based on Garrity v. New Jersey, 385 U.S. 493 (1967);
71          [(f)] (e) engages in sexual conduct while on duty; or
72          [(g)] (f) is certified as a law enforcement peace officer, as defined in Section
73     53-13-102, and is unable to possess a firearm under state or federal law.
74          (2) The council may not issue a Letter of Caution, or suspend or revoke the
75     certification of a peace officer for a violation of a law enforcement agency's policies, general
76     orders, or guidelines of operation that do not amount to a cause of action under Subsection (1).
77          (3) (a) The division is responsible for investigating officers who are alleged to have
78     engaged in conduct in violation of Subsection (1).
79          (b) The division shall initiate all adjudicative proceedings under this section by
80     providing to the peace officer involved notice and an opportunity for a hearing before an
81     administrative law judge.
82          (c) All adjudicative proceedings under this section are civil actions, notwithstanding
83     whether the issue in the adjudicative proceeding is a violation of statute that may be prosecuted
84     criminally.
85          (d) (i) The burden of proof on the division in an adjudicative proceeding under this
86     section is by clear and convincing evidence.
87          (ii) If a peace officer asserts an affirmative defense, the peace officer has the burden of
88     proof to establish the affirmative defense by a preponderance of the evidence.
89          (e) If the administrative law judge issues findings of fact and conclusions of law stating
90     there is sufficient evidence to demonstrate that the officer engaged in conduct that is in
91     violation of Subsection (1), the division shall present the finding and conclusions issued by the
92     administrative law judge to the council.
93          (f) The division shall notify the chief, sheriff, or administrative officer of the police
94     agency which employs the involved peace officer of the investigation and shall provide any
95     information or comments concerning the peace officer received from that agency regarding the
96     peace officer to the council before a Letter of Caution is issued, or a peace officer's certification
97     may be suspended or revoked.
98          (g) If the administrative law judge finds that there is insufficient evidence to
99     demonstrate that the officer is in violation of Subsection (1), the administrative law judge shall
100     dismiss the adjudicative proceeding.
101          (4) (a) The council shall:
102          (i) accept the administrative law judge's findings of fact and conclusions of law, and
103     the information concerning the peace officer provided by the officer's employing agency; and
104          (ii) choose whether to issue a Letter of Caution, or suspend or revoke the officer's
105     certification.
106          (b) Before making a decision, the council may consider aggravating and mitigating
107     circumstances.
108          (c) A member of the council shall recuse him or herself from consideration of an issue
109     that is before the council if the council member:
110          (i) has a personal bias for or against the officer;
111          (ii) has a substantial pecuniary interest in the outcome of the proceeding and may gain
112     or lose some benefit from the outcome; or
113          (iii) employs, supervises, or works for the same law enforcement agency as the officer
114     whose case is before the council.
115          (5) (a) Termination of a peace officer, whether voluntary or involuntary, does not
116     preclude suspension or revocation of a peace officer's certification by the council if the peace
117     officer was terminated for any of the reasons under Subsection (1).
118          (b) Employment by another agency, or reinstatement of a peace officer by the original
119     employing agency after termination by that agency, whether the termination was voluntary or
120     involuntary, does not preclude suspension or revocation of a peace officer's certification by the
121     council if the peace officer was terminated for any of the reasons under Subsection (1).
122          (6) (a) A chief, sheriff, or administrative officer of a law enforcement agency who is
123     made aware of an allegation against a peace officer employed by that agency that involves
124     conduct in violation of Subsection (1) shall [investigate] conduct an administrative or internal
125     investigation into the allegation and report the findings of the investigation to the division if the
126     allegation is [found to be true] substantiated.
127          (b) If a peace officer who is the subject of an internal or administrative investigation
128     into allegations that include any of the conditions or circumstances outlined in Subsection (1)
129     resigns, retires, or otherwise separates from the investigating law enforcement agency before
130     the conclusion of the investigation, the chief, sheriff, or administrative officer of that law
131     enforcement agency shall complete the investigation and report the [allegations and any
132     investigation results] findings to the division.
133          (7) The council's issuance of a Letter of Caution, or suspension or revocation of an
134     officer's certification under Subsection (4) may be appealed under Title 63G, Chapter 4, Part 4,
135     Judicial Review.
136          Section 3. Section 53-14-101 is amended to read:
137          53-14-101. Law enforcement and training academy applicants -- Employer
138     background information.
139          (1) As used in this section:
140          (a) "Director" means the director of a certified law enforcement officer training
141     academy.
142          (b) "Employer" includes a public employer and a private employer and includes the
143     human resource officer for the employer.
144          (c) "Law enforcement agency" has the same definition as in Section 53-1-102.
145          (d) "Law enforcement officer" has the same definition as in Section 53-13-103, and
146     includes those officers in administrative positions.
147          (e) "Training academy" means a peace officer training institution certified in
148     accordance with the standards developed under Section 53-6-105.
149          (2) A current or former employer and the director of any training academy an applicant
150     has attended or graduated from shall provide all available information in accordance with this
151     section regarding an applicant if the request complies with Subsection (3) and is submitted by:
152          (a) a law enforcement agency regarding an applicant for an employment position; or
153          (b) the director of a law enforcement training academy for which the applicant requests
154     admission under Section 53-6-203.
155          (3) The request for information pursuant to Subsection (2) shall be:
156          (a) in writing;
157          (b) accompanied by an authorization signed by the applicant and notarized by a notary
158     public, in which the applicant consents to the release of the requested information and releases
159     the employer or training academy providing the information from liability; and
160          (c) addressed to the employer or director and signed by a sworn officer or other
161     authorized representative of the requesting law enforcement agency or the academy.
162          (4) The information that a law enforcement agency or the director of an academy [may]
163     shall request pursuant to Subsection (2) includes:
164          (a) the date on which the [applicant began his] applicant's employment commenced
165     and, if applicable, the date on which [the employment of the applicant] applicant's employment
166     was terminated;
167          (b) a list of the compensation that the employer provided to the applicant during the
168     course of the employment;
169          (c) a copy of the application for a position of employment that the applicant submitted
170     to the employer;
171          (d) a written evaluation of the performance of the applicant;
172          (e) a record of the attendance of the applicant;
173          (f) a record of disciplinary action taken against the applicant;
174          (g) a statement regarding whether the employer would rehire the applicant and, if the
175     employer would not rehire the applicant, the reasons why;
176          (h) if applicable, a record setting forth the reason that the employment of the applicant
177     was terminated and whether the termination was voluntary or involuntary;
178          (i) the record of any final action regarding an applicant's peace officer certification that
179     is based on an investigation concerning the applicant's qualification for certification; and
180          (j) notice of any pending or ongoing investigation regarding the applicant's certification
181     as a peace officer.
182          (5) (a) In the absence of fraud or malice, an employer or training academy is not
183     subject to any civil liability for any relevant cause of action by releasing employment
184     information requested under this section.
185          (b) This section does not in any way or manner abrogate or lessen the existing common
186     law or statutory privileges and immunities of an employer.
187          (c) An employer or training academy may not provide information pursuant to
188     Subsection (2) if the disclosure of the information is prohibited pursuant to federal or state law.
189          (6) An employer's refusal to disclose information to a law enforcement agency in
190     accordance with this section constitutes grounds for a civil action by the requesting agency for
191     injunctive relief requiring disclosure on the part of an employer.
192          (7) (a) (i) A law enforcement agency may use the information received pursuant to this
193     section only to determine the suitability of an applicant for employment.
194          (ii) A director may use the information received pursuant to this section only to
195     determine the suitability of an applicant for acceptance at the training academy.
196          (b) Except as otherwise provided in Subsection (7)(c), [a] the recipient law
197     enforcement agency and [a] director shall maintain the confidentiality of information received
198     pursuant to this section.
199          (c) (i) A law enforcement agency [may] shall share information regarding an applicant
200     that it receives pursuant to this section with another law enforcement agency if:
201          (A) the information is requested by the other law enforcement agency in accordance
202     with this section;
203          [(A)] (B) the applicant is also an applicant for any employment position with the other
204     law enforcement agency; and
205          [(B)] (C) the confidentiality of the information is otherwise maintained.
206          (ii) A director [may] shall share information regarding an applicant that is received
207     pursuant to this section with another training academy if:
208          (A) the information is requested by the other training academy in accordance with this
209     section;
210          [(A)] (B) the applicant is an applicant for acceptance at the other training academy; and
211          [(B)] (C) the confidentiality of the information is otherwise maintained.
212          (iii) A director [may] shall share information regarding an applicant, attendee, or
213     graduate of a training academy that is received pursuant to this section with a law enforcement
214     agency if:
215          (A) the information is requested by the law enforcement agency in accordance with this
216     section;
217          [(A)] (B) the applicant is applying for a position as a peace officer with the law
218     enforcement agency; and
219          [(B)] (C) the confidentiality of the information is otherwise maintained.
220          (8) This section applies to requests submitted to employers on and after July 1, [2003]
221     2020 for employment information under this section.