Rep. Norm Thurston — Voting Record

Bill

Number

S.B. 124 Second Substitute (2023GS)

Sponsor

Sen. Escamilla, L.

Final action

Governor Signed 3/21/2023

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• defines terms;
• authorizes the Peace Officer Standards and Training Division to discipline a chief executive who fails to report misconduct;
• addresses law enforcement officer employment and background checks;
• requires a law enforcement agency to use an early intervention system to determine law enforcement officer performance under certain circumstances;
• creates the Early Intervention System Grant Program; and
• makes technical changes.

Every vote on this bill

Bill text

LAW ENFORCEMENT OFFICER AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Luz Escamilla
House Sponsor: 
____________
LONG TITLE
General Description:
This bill addresses provisions related to law enforcement officers.
Highlighted Provisions:
This bill:
▸ defines terms;
▸ authorizes the Peace Officer Standards and Training Division to discipline a chief
executive who fails to report misconduct;
▸ addresses law enforcement officer employment and background checks;
▸ requires a law enforcement agency to use an early intervention system to determine
law enforcement officer performance under certain circumstances;
▸ creates the Early Intervention System Grant Program; and
▸ makes technical changes.
Money Appropriated in this Bill:
This bill appropriates for fiscal year 2024:
▸ To the Department of Public Safety - Programs and Operations, as a one-time
appropriation:
• from the General Fund, One-time, $3,000,000.
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
53-6-211
, as last amended by Laws of Utah 2021, Chapters 96, 311
53-14-101
, as last amended by Laws of Utah 2021, Chapter 311
63G-7-201
, as last amended by Laws of Utah 2021, Chapter 352
ENACTS:
53-14-102
, Utah Code Annotated 1953
53-14-103
, Utah Code Annotated 1953
53-14-201
, Utah Code Annotated 1953
53-14-202
, Utah Code Annotated 1953
53-14-203
, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. 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) engages in conduct constituting a state or federal criminal offense, but not including
a traffic offense that is a class C misdemeanor or infraction;
(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);
(e) engages in sexual conduct while on duty;
(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;
(g) is found by a court or by a law enforcement agency to have knowingly engaged in
conduct that involves dishonesty or deception in violation of a policy of the peace officer's
employer or in violation of a state or federal law; [
or
]
(h) is found by a court or by a law enforcement agency to have knowingly engaged in
biased or prejudicial conduct against one or more individuals based on the individual's race,
color, sex, pregnancy, age, religion, national origin, disability, sexual orientation, or gender
identity
; or
(i) is a chief, sheriff, or administrative officer of a law enforcement agency and fails to
comply with Subsection (6)
.
(2) The council may not issue a Letter of Caution or suspend or revoke the certification
of a peace officer for a violation of state or federal law or 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)
] 
Subsections (1)(a) through (h)
 shall conduct an
administrative or internal investigation into the allegation and report the findings of the
investigation to the division if the allegation is 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)
]
Subsections (1)(a) through (h)
 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 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 2. Section 
53-14-101
 is amended to read:
CHAPTER 14. PEACE OFFICER INFORMATION
Part 1. Peace Officer Background Checks
53-14-101.
Definitions.
[
(1)
] As used in this [
section
] 
part
:
[
(a)
] 
(1)
 "Director" means the director of a [
certified law enforcement officer
] training
academy.
[
(b)
] 
(2)
 "Employer" [
includes
] 
means
 a public employer [
and a
] 
or
 private employer
[
and includes the human resource officer for the employer
].
(3) "POST" means the Peace Officer Standards and Training Division created in
Section 
53-6-103
.
[
(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)
] 
(4)
 "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 shall
request pursuant to Subsection (2) includes:
]
[
(a) the date on which the applicant's employment commenced and, if applicable, the
date on which 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), the recipient law enforcement
agency and director shall maintain the confidentiality of information received pursuant to this
section.
]
[
(c) (i) A law enforcement agency 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;
]
[
(B) the applicant is also an applicant for any employment position with the other law
enforcement agency; and
]
[
(C) the confidentiality of the information is otherwise maintained.
]
[
(ii) A director 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;
]
[
(B) the applicant is an applicant for acceptance at the other training academy; and
]
[
(C) the confidentiality of the information is otherwise maintained.
]
[
(iii) A director 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;
]
[
(B) the applicant is applying for a position as a peace officer with the law enforcement
agency; and
]
[
(C) the confidentiality of the information is otherwise maintained.
]
[
(8) This section applies to requests submitted to employers on and after July 1, 2020
for employment information under this section.
]
Section 3. Section 
53-14-102
 is enacted to read:
 53-14-102.
Background check for peace officer applicants.
A law enforcement agency may not employ a peace officer who is currently working, or
has previously worked, for another law enforcement agency unless the hiring law enforcement
agency:
(1) confirms that the peace officer is certified by POST or another comparable
certifying agency if the peace officer is currently employed, or has previously been employed,
by a law enforcement agency in a different state; and
(2) completes a background check that contains the information outlined in Subsection
53-14-103
(3).
Section 4. Section 
53-14-103
 is enacted to read:
 53-14-103.
Law enforcement and training academy applicants -- Employer
background information -- Information required upon request.
(1) Except as provided in Subsection (4), an employer or director shall provide
available information regarding an individual in accordance with this section if the request for
the information:
(a) complies with Subsection (2); and
(b) is submitted by:
(i) if the individual is applying for employment, a law enforcement agency; or
(ii) if the individual is applying for admission under Section 
53-6-203
 to a training
academy, the director.
(2) A law enforcement agency or director requesting information under Subsection (1)
shall:
(a) make the request in writing;
(b) include with the request:
(i) 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
(ii) a signature by a sworn officer or other authorized representative of the requesting
law enforcement agency or the academy; and
(c) address the request to the employer or director.
(3) A law enforcement agency or director requesting information under Subsection (1)
shall request:
(a) the date on which the applicant's employment commenced and, if applicable, the
date on which the 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) an attendance record of the applicant noting disciplinary action taken due to the
applicant being late or absent without permission;
(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.
(4) (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 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 under this section if
the disclosure of the information is prohibited under federal or state law.
(5) An employer's refusal to make available information to a law enforcement agency
in accordance with this section is grounds for a civil action by the requesting agency for
injunctive relief requiring disclosure on the part of the employer.
(6) (a) (i) A law enforcement agency may use the information received under this
section to determine the suitability of an applicant for employment.
(ii) A director may use the information received under this section to determine the
suitability of an applicant for acceptance at the training academy.
(b) Except as provided in Subsection (6)(c), the recipient law enforcement agency and
director shall maintain the confidentiality of information received under this section.
(c) (i) A law enforcement agency shall share information regarding an applicant that
the law enforcement agency is in possession of with another law enforcement agency if:
(A) the information is requested by the other law enforcement agency in accordance
with this section;
(B) the applicant is also an applicant for any employment position with the other law
enforcement agency; and
(C) the confidentiality of the information is otherwise maintained.
(ii) A director shall share information regarding an applicant that is received under this
section with another training academy if:
(A) the information is requested by the other training academy in accordance with this
section;
(B) the applicant is an applicant for acceptance at the other training academy; and
(C) the confidentiality of the information is otherwise maintained.
(iii) A director shall share information regarding an applicant, attendee, or graduate of
a training academy that is received under this section with a law enforcement agency if:
(A) the information is requested by the law enforcement agency in accordance with this
section;
(B) the applicant is applying for a position as a peace officer with the law enforcement
agency; and
(C) the confidentiality of the information is otherwise maintained.
Section 5. Section 
53-14-201
 is enacted to read:
Part 2. Law Enforcement Early Intervention
 53-14-201.
Definitions.
As used in this part:
(1) "Early intervention system" means an electronic data-based police management tool
designed to track behaviors of a law enforcement officer based on performance factors.
(2) "Grant" means a grant awarded under this section.
(3) "Program" means the Early Intervention Grant Program created in section
53-14-203
.
Section 6. Section 
53-14-202
 is enacted to read:
 53-14-202.
Early intervention system implementation.
(1) On or before January 1, 2025, a law enforcement agency shall use an early
intervention system.
(2) Information contained in an early intervention system is part of a law enforcement
officer's internal personnel file and may only be shared in accordance with Section 
53-14-103
.
(3) The department shall establish by rule, in accordance with Title 63G, Chapter 3,
Utah Administrative Rulemaking Act, the minimum standards that an early intervention system
is required to meet in order for a law enforcement agency to comply with Subsection (1).
Section 7. Section 
53-14-203
 is enacted to read:
 53-14-203.
Early Intervention System Grant Program.
(1) (a) There is created within the department the Early Intervention System Grant
Program.
(b) The purpose of the program is to award grants to law enforcement agencies to
initially establish an early intervention system.
(2) (a) A law enforcement agency that submits a proposal for a grant to the department
shall include in the proposal:
(i) the plan for establishing and cost of an early intervention system;
(ii) a statement that the early intervention system to be established complies with the
standards under Subsection 
53-14-202
(3);
(iii) any funding sources in addition to the grant for the proposal; and
(iv) other information the department determines necessary to evaluate the proposal.
(b) When evaluating a proposal for a grant, the department shall consider:
(i) whether the proposed early intervention system meets the standards under
Subsection 
53-14-202
(3);
(ii) the cost of the proposal;
(iii) the extent to which additional funding sources may benefit the proposal; and
(iv) the viability and sustainability of the proposal.
(3) Subject to Subsection (2), the department may, in accordance with Title 63G,
Chapter 3, Utah Administrative Rulemaking Act, make rules to establish:
(a) eligibility criteria for a grant;
(b) the form and process for submitting a proposal to the department for a grant;
(c) the method and formula for determining a grant amount; and
(d) reporting requirements for a grant recipient.
Section 8. Section 
63G-7-201
 is amended to read:
63G-7-201.
Immunity of governmental entities and employees from suit.
(1) Except as otherwise provided in this chapter, each governmental entity and each
employee of a governmental entity are immune from suit for any injury that results from the
exercise of a governmental function.
(2) Notwithstanding the waiver of immunity provisions of Section 
63G-7-301
, a
governmental entity, its officers, and its employees are immune from suit:
(a) as provided in Section 
78B-4-517
; and
(b) for any injury or damage resulting from the implementation of or the failure to
implement measures to:
(i) control the causes of epidemic and communicable diseases and other conditions
significantly affecting the public health or necessary to protect the public health as set out in
Title 26A, Chapter 1, Local Health Departments;
(ii) investigate and control suspected bioterrorism and disease as set out in Title 26,
Chapter 23b, Detection of Public Health Emergencies Act;
(iii) respond to a national, state, or local emergency, a public health emergency as
defined in Section 
26-23b-102
, or a declaration by the President of the United States or other
federal official requesting public health related activities, including the use, provision,
operation, and management of:
(A) an emergency shelter;
(B) housing;
(C) a staging place; or
(D) a medical facility; and
(iv) adopt methods or measures, in accordance with Section 
26-1-30
, for health care
providers, public health entities, and health care insurers to coordinate among themselves to
verify the identity of the individuals they serve.
(3) A governmental entity, its officers, and its employees are immune from suit, and
immunity is not waived, for any injury if the injury arises out of or in connection with, or
results from:
(a) a latent dangerous or latent defective condition of:
(i) any highway, road, street, alley, crosswalk, sidewalk, culvert, tunnel, bridge, or
viaduct; or
(ii) another structure located on any of the items listed in Subsection (3)(a)(i); or
(b) a latent dangerous or latent defective condition of any public building, structure,
dam, reservoir, or other public improvement.
(4) A governmental entity, its officers, and its employees are immune from suit, and
immunity is not waived, for any injury proximately caused by a negligent act or omission of an
employee committed within the scope of employment, if the injury arises out of or in
connection with, or results from:
(a) the exercise or performance, or the failure to exercise or perform, a discretionary
function, whether or not the discretion is abused;
(b) except as provided in Subsections 
63G-7-301
(2)(j), (3), and (4), assault, battery,
false imprisonment, false arrest, malicious prosecution, intentional trespass, abuse of process,
libel, slander, deceit, interference with contract rights, infliction of mental anguish, or violation
of civil rights;
(c) the issuance, denial, suspension, or revocation of, or the failure or refusal to issue,
deny, suspend, or revoke, any permit, license, certificate, approval, order, or similar
authorization;
(d) a failure to make an inspection or making an inadequate or negligent inspection;
(e) the institution or prosecution of any judicial or administrative proceeding, even if
malicious or without probable cause;
(f) a misrepresentation by an employee whether or not the misrepresentation is
negligent or intentional;
(g) a riot, unlawful assembly, public demonstration, mob violence, or civil disturbance;
(h) the collection or assessment of taxes;
(i) an activity of the Utah National Guard;
(j) the incarceration of a person in a state prison, county or city jail, or other place of
legal confinement;
(k) a natural condition on publicly owned or controlled land;
(l) a condition existing in connection with an abandoned mine or mining operation;
(m) an activity authorized by the School and Institutional Trust Lands Administration
or the Division of Forestry, Fire, and State Lands;
(n) the operation or existence of a pedestrian or equestrian trail that is along a ditch,
canal, stream, or river, regardless of ownership or operation of the ditch, canal, stream, or river,
if:
(i) the trail is designated under a general plan adopted by a municipality under Section
10-9a-401
 or by a county under Section 
17-27a-401
;
(ii) the trail right-of-way or the right-of-way where the trail is located is open to public
use as evidenced by a written agreement between:
(A) the owner or operator of the trail right-of-way or of the right-of-way where the trail
is located; and
(B) the municipality or county where the trail is located; and
(iii) the written agreement:
(A) contains a plan for operation and maintenance of the trail; and
(B) provides that an owner or operator of the trail right-of-way or of the right-of-way
where the trail is located has, at a minimum, the same level of immunity from suit as the
governmental entity in connection with or resulting from the use of the trail;
(o) research or implementation of cloud management or seeding for the clearing of fog;
(p) the management of flood waters, earthquakes, or natural disasters;
(q) the construction, repair, or operation of flood or storm systems;
(r) the operation of an emergency vehicle, while being driven in accordance with the
requirements of Section 
41-6a-212
;
(s) the activity of:
(i) providing emergency medical assistance;
(ii) fighting fire;
(iii) regulating, mitigating, or handling hazardous materials or hazardous wastes;
(iv) an emergency evacuation;
(v) transporting or removing an injured person to a place where emergency medical
assistance can be rendered or where the person can be transported by a licensed ambulance
service; or
(vi) intervening during a dam emergency;
(t) the exercise or performance, or the failure to exercise or perform, any function
pursuant to Title 73, Chapter 10, Board of Water Resources - Division of Water Resources;
(u) an unauthorized access to government records, data, or electronic information
systems by any person or entity;
(v) an activity of wildlife, as defined in Section 
23-13-2
, that arises during the use of a
public or private road; or
(w) a communication between employees of one or more law enforcement agencies
related to the employment, disciplinary history, character, professional competence, or physical
or mental health of a peace officer, or a former, current, or prospective employee of a law
enforcement agency, including any communication made in accordance with Section
[
53-14-101
] 
53-14-103
.
Section 9. 
Appropriation.
The following sums of money are appropriated for the fiscal year beginning July 1,
2023, and ending June 30, 2024. These are additions to amounts previously appropriated for
fiscal year 2024. Under the terms and conditions of Title 63J, Chapter 1, Budgetary Procedures
Act, the Legislature appropriates the following sums of money from the funds or accounts
indicated for the use and support of the government of the state of Utah.
ITEM 1
To Department of Public Safety - Programs and Operations
From General Fund, One-time
3,000,000
Schedule of Programs:
Highway Patrol - Special Services 3,000,000
The Legislature intends that:
(1) the appropriation under this item be used to award grants over a three-year period
under Title 53, Chapter 14, Part 2, Law Enforcement Early Intervention; and
(2) under Section 
63J-1-603
, the appropriation under this item not lapse at the close of
fiscal year 2024 and the use of any nonlapsing funds is limited to the purposes described in
Subsection (1) of this item.