Rep. Norm Thurston — Voting Record

Bill

Number

S.B. 13 Second Substitute (2021GS)

Sponsor

Sen. Iwamoto, J.

Final action

Governor Signed 3/17/2021

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• requires an employing law enforcement agency or training academy to provide information to a prospective employer upon request;
• requires law enforcement agencies to report certain investigations to POST; and
• makes conforming and technical corrections.

Every vote on this bill

Bill text

LAW ENFORCEMENT INTERNAL INVESTIGATION
REQUIREMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Jani Iwamoto
House Sponsor: 
Ryan D. Wilcox
LONG TITLE
General Description:
This bill adjusts requirements for law enforcement agencies to conduct internal
investigations regarding law enforcement officers.
Highlighted Provisions:
This bill:
▸ requires an employing law enforcement agency or training academy to provide
information to a prospective employer upon request;
▸ requires law enforcement agencies to report certain investigations to POST; and
▸ makes conforming and technical corrections.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
53-6-209
, as renumbered and amended by Laws of Utah 1993, Chapter 234
53-6-211
, as last amended by Laws of Utah 2020, Chapter 35
53-14-101
, as last amended by Laws of Utah 2004, Chapter 62
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
53-6-209
 is amended to read:
53-6-209.
Termination of employment -- Change of status form.
(1) When a peace officer's employment terminates, the employing agency shall submit
a change of status form noting the termination of the peace officer to the division.
(2) The change of status form shall:
(a) be completed and submitted within [
seven
] 
 days of the peace officer's
termination date;
(b) identify the circumstances of the peace officer's status change by indicating that the
peace officer has resigned, retired, terminated, transferred, deceased, or that the peace officer's
name has changed;
(c) indicate the effective date of action; and
(d) indicate the name of the new employer, if the status change is due to a transfer.
(3) If a peace officer's employment terminates during an open internal investigation
regarding that peace officer and involving an alleged violation of Subsection 
53-6-211
(1), the
employing agency shall notify the division of the investigation in accordance with Subsection
53-6-211
(6) within 30 days of the peace officer's termination date and provide a reasonable
estimated date of completion for the investigation.
(4) If an employing agency receives credible allegations and opens an internal
investigation within two years after a peace officer's employment has been terminated, the
employing agency shall notify the division within 30 days of the date of the opening of the
investigation and provide a reasonable estimated date of completion for the investigation. If the
allegations involve alleged violations of Subsection 
53-6-211
(1), the agency shall report the
allegations to the division in accordance with Subsection 
53-6-211
(6) whether or not the
employing agency opens an internal investigation.
[
(3)
] 
(5)
 Any person or agency who intentionally falsifies, misrepresents, or fails to
give notice of the change of status of a peace officer is liable to the division for any damages
that may be sustained by the failure to make the notification.
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)
] 
(c)
 engages in conduct constituting a state or federal criminal offense, but not
including a traffic offense that is a class C misdemeanor or infraction;
[
(e)
] 
(d)
 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)
] 
(e)
 engages in sexual conduct while on duty; or
[
(g)
] 
(f)
 is certified as a law enforcement peace officer, as defined in Section
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:
(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
(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.
(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
] 
conduct an administrative or internal
investigation into
 the allegation and report 
the findings of the investigation
 to the division if the
allegation is [
found to be true
] 
substantiated
.
(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 
complete the investigation and
 report the [
allegations and any
investigation results
] 
findings
 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 
53-14-101
 is amended to read:
53-14-101.
Law enforcement and training academy applicants -- Employer
background information.
(1) As used in this section:
(a) "Director" means the director of a certified law enforcement officer training
academy.
(b) "Employer" includes a public employer and a private employer 
and includes the
human resource officer for the employer
.
(c) "Law enforcement agency" has the same definition as in Section 
53-1-102
.
(d) "Law enforcement officer" has the same definition as in Section 
53-13-103
, and
includes those officers in administrative positions.
(e) "Training academy" means a peace officer training institution certified in
accordance with the standards developed under Section 
53-6-105
.
(2) A current or former employer and the director of any training academy an applicant
has attended or graduated from shall provide 
all
 available information in accordance with this
section regarding an applicant if the request complies with Subsection (3) and is submitted by:
(a) a law enforcement agency regarding an applicant for an employment position; or
(b) the director of a law enforcement training academy for which the applicant requests
admission under Section 
53-6-203
.
(3) The request for information pursuant to Subsection (2) shall be:
(a) in writing;
(b) accompanied by an authorization signed by the applicant and notarized by a notary
public, in which the applicant consents to the release of the requested information and releases
the employer or training academy providing the information from liability; and
(c) addressed to the employer or director and signed by a sworn officer or other
authorized representative of the requesting law enforcement agency or the academy.
(4) The information that a law enforcement agency or the director of an academy [
may
]
shall
 request pursuant to Subsection (2) includes:
(a) the date on which the [
applicant began his
] 
applicant's
 employment 
commenced
and, if applicable, the date on which [
the employment of the applicant
] 
applicant's employment
was terminated;
(b) a list of the compensation that the employer provided to the applicant during the
course of the employment;
(c) a copy of the application for a position of employment that the applicant submitted
to the employer;
(d) a written evaluation of the performance of the applicant;
(e) a record of the attendance of the applicant;
(f) a record of disciplinary action taken against the applicant;
(g) a statement regarding whether the employer would rehire the applicant and, if the
employer would not rehire the applicant, the reasons why;
(h) if applicable, a record setting forth the reason that the employment of the applicant
was terminated and whether the termination was voluntary or involuntary;
(i) the record of any final action regarding an applicant's peace officer certification that
is based on an investigation concerning the applicant's qualification for certification; and
(j) notice of any pending or ongoing investigation regarding the applicant's certification
as a peace officer.
(5) (a) In the absence of fraud or malice, an employer or training academy is not
subject to any civil liability for any relevant cause of action by releasing employment
information requested under this section.
(b) This section does not in any way or manner abrogate or lessen the existing common
law or statutory privileges and immunities of an employer.
(c) An employer or training academy may not provide information pursuant to
Subsection (2) if the disclosure of the information is prohibited pursuant to federal or state law.
(6) An employer's refusal to disclose information to a law enforcement agency in
accordance with this section constitutes grounds for a civil action by the requesting agency for
injunctive relief requiring disclosure on the part of an employer.
(7) (a) (i) A law enforcement agency may use the information received pursuant to this
section only to determine the suitability of an applicant for employment.
(ii) A director may use the information received pursuant to this section only to
determine the suitability of an applicant for acceptance at the training academy.
(b) Except as otherwise provided in Subsection (7)(c), [
a
] 
the recipient
 law
enforcement agency and [
a
] director shall maintain the confidentiality of information received
pursuant to this section.
(c) (i) A law enforcement agency [
may
] 
shall
 share information regarding an applicant
that it receives pursuant to this section with another law enforcement agency if:
(A) the information is requested by the other law enforcement agency in accordance
with this section;
 [
(A)
] 
(B)
 the applicant is also an applicant for any employment position with the other
law enforcement agency; and
[
(B)
] 
(C)
 the confidentiality of the information is otherwise maintained.
(ii) A director [
may
] 
shall
 share information regarding an applicant that is received
pursuant to this section with another training academy if:
(A) the information is requested by the other training academy in accordance with this
section;
[
(A)
] 
(B)
 the applicant is an applicant for acceptance at the other training academy; and
[
(B)
] 
(C)
 the confidentiality of the information is otherwise maintained.
(iii) A director [
may
] 
shall
 share information regarding an applicant, attendee, or
graduate of a training academy that is received pursuant to this section with a law enforcement
agency if:
(A) the information is requested by the law enforcement agency in accordance with this
section;
[
(A)
] 
(B)
 the applicant is applying for a position as a peace officer with the law
enforcement agency; and
[
(B)
] 
(C)
 the confidentiality of the information is otherwise maintained.
(8) This section applies to requests submitted to employers on and after July 1, [
]
 for employment information under this section.