Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 43 (2020GS)

Sponsor

Rep. Perry, L.

Final action

Governor Signed 3/24/2020

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• requires the POST Council to decide on sanctions to be imposed upon peace officers and dispatchers;
• allows for the issuance of a Letter of Caution as a disciplinary measure;
• requires the POST Council to accept an administrative law judge's findings and conclusions; and
• requires the division to be notified upon the separation of a peace officer or dispatcher who is under investigation.

Every vote on this bill

Bill text

PEACE OFFICER STANDARDS AND TRAINING
AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Lee B. Perry
Senate Sponsor: 
Keith Grover
LONG TITLE
General Description:
This bill amends the responsibilities of the Peace Officer Standards and Training
Council regarding disciplinary action against peace officers and dispatchers.
Highlighted Provisions:
This bill:
▸ requires the POST Council to decide on sanctions to be imposed upon peace
officers and dispatchers;
▸ allows for the issuance of a Letter of Caution as a disciplinary measure;
▸ requires the POST Council to accept an administrative law judge's findings and
conclusions; and
▸ requires the division to be notified upon the separation of a peace officer or
dispatcher who is under investigation.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
53-6-107
, as last amended by Laws of Utah 2002, Chapter 250
53-6-211
, as last amended by Laws of Utah 2013, Chapters 115 and 269
53-6-309
, as repealed and reenacted by Laws of Utah 2011, Chapter 258
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
53-6-107
 is amended to read:
53-6-107.
General duties of council.
(1) The council shall:
(a) advise the director regarding:
(i) the approval, certification, or revocation of certification of any certified academy
established in the state;
[
(ii) the refusal, suspension, or revocation of certification of a peace officer;
]
[
(iii)
] 
(ii)
 minimum courses of study, attendance requirements, and the equipment and
facilities to be required at a certified academy;
[
(iv)
] 
(iii)
 minimum qualifications for instructors at a certified academy;
[
(v)
] 
(iv)
 the minimum basic training requirements that peace officers shall complete
before receiving certification;
[
(vi)
] 
(v)
 the minimum basic training requirements that dispatchers shall complete
before receiving certification; and
[
(vii)
] 
(vi)
 categories or classifications of advanced in-service training programs and
minimum courses of study and attendance requirements for the categories or classifications;
(b) recommend that studies, surveys, or reports, or all of them be made by the director
concerning the implementation of the objectives and purposes of this chapter;
(c) make recommendations and reports to the commissioner and governor from time to
time; [
and
]
(d) perform other acts as necessary to carry out the duties of the council in this
chapter[
.
]
; and
(e) choose from the sanctions to be imposed against certified peace officers as provided
in Section 
53-6-211
, and dispatchers as provided in Section 
53-6-309
.
(2) The council may approve special function officers for membership in the Public
Safety Retirement System in accordance with Sections 
49-14-201
 and 
49-15-201
.
Section 2. Section 
53-6-211
 is amended to read:
53-6-211.
Suspension or revocation of certification -- Right to a hearing --
Grounds -- Notice to employer -- Reporting -- Judicial appeal.
(1) The council has 
the
 authority to 
issue a Letter of Caution, or
 suspend or revoke the
certification of a peace officer, if the peace officer:
(a) willfully falsifies any information to obtain certification;
(b) has any physical or mental disability affecting the peace officer's ability to perform
duties;
(c) is addicted to alcohol or any controlled substance, unless the peace officer reports
the addiction to the employer and to the director as part of a departmental early intervention
process;
(d) engages in conduct [
which is
] 
constituting
 a state or federal criminal offense, but
not including a traffic offense that is a class C misdemeanor or infraction;
(e) refuses to respond, or fails to respond truthfully, to questions after having been
issued a warning issued based on Garrity v. New Jersey, 385 U.S. 493 (1967);
(f) engages in sexual conduct while on duty; or
(g) is certified as a law enforcement 
peace
 officer, as defined in Section [
53-13-103
]
53-13-102
, and is unable to possess a firearm under state or federal law.
(2) The council may not 
issue a Letter of Caution, or
 suspend or revoke the
certification of a peace officer for a violation of a law enforcement agency's policies, general
orders, or guidelines of operation that do not amount to a cause of action under Subsection (1).
(3) (a) The division is responsible for investigating officers who are alleged to have
engaged in conduct in violation of Subsection (1).
(b) The division shall initiate all adjudicative proceedings under this section by
providing to the peace officer involved notice and an opportunity for a hearing before an
administrative law judge.
(c) All adjudicative proceedings under this section are civil actions, notwithstanding
whether the issue in the adjudicative proceeding is a violation of statute that may be prosecuted
criminally.
(d) (i) The burden of proof on the division in an adjudicative proceeding under this
section is by clear and convincing evidence.
(ii) If a peace officer asserts an affirmative defense, the peace officer has the burden of
proof to establish the affirmative defense by a preponderance of the evidence.
(e) If the administrative law judge issues findings of fact and conclusions of law stating
there is sufficient evidence to demonstrate that the officer engaged in conduct that is in
violation of Subsection (1), the division shall present the finding and conclusions issued by the
administrative law judge to the council.
(f) The division shall notify the chief, sheriff, or administrative officer of the police
agency which employs the involved peace officer of the investigation and shall provide any
information or comments concerning the peace officer received from that agency regarding the
peace officer to the council before 
a Letter of Caution is issued, or
 a peace officer's certification
may be suspended or revoked.
(g) If the administrative law judge finds that there is insufficient evidence to
demonstrate that the officer is in violation of Subsection (1), the administrative law judge shall
dismiss the adjudicative proceeding.
(4) (a) The council shall [
review
]
:
(i) accept
 the 
administrative law judge's
 findings of fact and conclusions of law
,
 and
the information concerning the peace officer provided by the officer's employing agency
;
 and
[
determine
]
(ii) choose
 whether to 
issue a Letter of Caution, or
 suspend or revoke the officer's
certification.
(b) Before making a decision, the council may consider aggravating and mitigating
circumstances.
[
(b)
] 
(c)
 A member of the council shall recuse him or herself from consideration of an
issue that is before the council if the council member:
(i) has a personal bias for or against the officer;
(ii) has a substantial pecuniary interest in the outcome of the proceeding and may gain
or lose some benefit from the outcome; or
(iii) employs, supervises, or works for the same law enforcement agency as the officer
whose case is before the council.
(5) (a) Termination of a peace officer, whether voluntary or involuntary, does not
preclude suspension or revocation of a peace officer's certification by the council if the peace
officer was terminated for any of the reasons under Subsection (1).
(b) Employment by another agency, or reinstatement of a peace officer by the original
employing agency after termination by that agency, whether the termination was voluntary or
involuntary, does not preclude suspension or revocation of a peace officer's certification by the
council if the peace officer was terminated for any of the reasons under Subsection (1).
(6) 
(a)
 A chief, sheriff, or administrative officer of a law enforcement agency who is
made aware of an allegation against a peace officer employed by that agency that involves
conduct in violation of Subsection (1) shall investigate the allegation and report to the division
if the allegation is found to be true.
(b) If a peace officer who is the subject of an internal or administrative investigation
into allegations that include any of the conditions or circumstances outlined in Subsection (1)
resigns, retires, or otherwise separates from the investigating law enforcement agency before
the conclusion of the investigation, the chief, sheriff, or administrative officer of that law
enforcement agency shall report the allegations and any investigation results to the division.
(7) The council's 
issuance of a Letter of Caution, or
 suspension or revocation of an
officer's certification under Subsection (4) may be appealed under Title 63G, Chapter 4, Part 4,
Judicial Review.
Section 3. Section 
53-6-309
 is amended to read:
53-6-309.
Suspension or revocation of certification -- Right to a hearing --
Grounds -- Notice to employer -- Reporting.
(1) The council has 
the
 authority to 
issue a Letter of Caution, or
 suspend or revoke the
certification of a dispatcher, if the dispatcher:
(a) willfully falsifies any information to obtain certification;
(b) has any physical or mental disability affecting the dispatcher's ability to perform
duties;
(c) is addicted to alcohol or any controlled substance, unless the dispatcher reports the
addiction to the employer and to the director as part of a departmental early intervention
process;
(d) engages in conduct [
that is
] 
constituting
 a state or federal criminal offense, but not
including a traffic offense that is a class C misdemeanor or infraction;
(e) refuses to respond, or fails to respond truthfully, to questions after having been
issued a warning based on Garrity v. New Jersey, 385 U.S. 493 (1967); or
(f) engages in sexual conduct while on duty.
(2) The council may not 
issue a Letter of Caution, or
 suspend or revoke the
certification of a dispatcher for a violation of the employing agency's policies, general orders,
or guidelines of operation that do not amount to a cause of action under Subsection (1).
(3) (a) The division is responsible for investigating dispatchers who are alleged to have
engaged in conduct in violation of Subsection (1).
(b) The division shall initiate all adjudicative proceedings under this section by
providing to the dispatcher involved notice and an opportunity for a hearing before an
administrative law judge.
(c) All adjudicative proceedings under this section are civil actions, notwithstanding
whether the issue in the adjudicative proceeding is a violation of statute that may be prosecuted
criminally.
(d) (i) The burden of proof on the division in an adjudicative proceeding under this
section is by clear and convincing evidence.
(ii) If a dispatcher asserts an affirmative defense, the dispatcher has the burden of proof
to establish the affirmative defense by a preponderance of the evidence.
(e) If the administrative law judge issues findings of fact and conclusions of law stating
there is sufficient evidence to demonstrate that the dispatcher engaged in conduct that is in
violation of Subsection (1), the division shall present the findings and conclusions issued by
the administrative law judge to the council.
(f) The division shall notify the agency that employs the involved dispatcher of the
investigation and shall provide any information or comments concerning the dispatcher
received from that agency regarding the dispatcher to the council before a 
Letter of Caution is
issued, or a
 dispatcher's certification may be suspended or revoked.
(g) If the administrative law judge finds that there is insufficient evidence to
demonstrate that the dispatcher is in violation of Subsection (1), the administrative law judge
shall dismiss the adjudicative proceeding.
(4) (a) The council shall [
review
]
:
(i) accept
 the 
administrative law judge's
 findings of fact and conclusions of law and the
information concerning the dispatcher provided by the dispatcher's employing agency
;
 and
[
determine
]
(ii) choose
 whether to 
issue a Letter of Caution, or
 suspend or revoke the dispatcher's
certification.
(b) Before making a decision, the council may consider aggravating and mitigating
circumstances.
[
(b)
] 
(c)
 A council member shall recuse himself or herself from consideration of an
issue that is before the council if the council member:
(i) has a personal bias for or against the dispatcher;
(ii) has a substantial pecuniary interest in the outcome of the proceeding and may gain
or lose some benefit from the outcome; or
(iii) employs, supervises, or works for the same agency as the dispatcher whose case is
before the council.
(5) (a) Termination of a dispatcher, whether voluntary or involuntary, does not
preclude suspension or revocation of a dispatcher's certification by the council if the dispatcher
was terminated for any of the reasons under Subsection (1).
(b) Employment by another agency, or reinstatement of a dispatcher by the original
employing agency after termination by that agency, whether the termination was voluntary or
involuntary, does not preclude suspension or revocation of a dispatcher's certification by the
council if the dispatcher was terminated for any of the reasons under Subsection (1).
(6) 
(a)
 An agency that is made aware of an allegation against a dispatcher employed by
that agency that involves conduct in violation of Subsection (1) shall investigate the allegation
and report to the division if the allegation is found to be true.
(b) If a dispatcher who is the subject of an internal or administrative investigation into
allegations that include any of the conditions or circumstances outlined in Subsection (1)
resigns, retires, or otherwise separates from the investigating law enforcement agency before
the conclusion of the investigation, the agency shall report the allegations and any investigation
results to the division.
(7) The council's issuance of a Letter of Caution, or suspension or revocation of an
officer's certification under Subsection (4) may be appealed under Title 63G, Chapter 4, Part 4,
Judicial Review.