H 4498 Session 112 (1997-1998)
H 4498 General Bill, By J.L.M. Cromer and Knotts
Similar(S 790)
A BILL TO AMEND CHAPTER 6, TITLE 23, CODE OF LAWS OF SOUTH CAROLINA, 1976,
RELATING TO LAW ENFORCEMENT AND PUBLIC SAFETY, BY ADDING ARTICLE 12 SO AS TO
PROVIDE FOR THE LAW ENFORCEMENT OFFICERS' BILL OF RIGHTS.
01/27/98 House Introduced and read first time HJ-339
01/27/98 House Referred to Committee on Judiciary HJ-339
02/03/98 House Member(s) added as co-sponsor(s): Rep(s) Knotts HJ-10
A BILL
TO AMEND CHAPTER 6, TITLE 23, CODE OF LAWS OF
SOUTH CAROLINA, 1976, RELATING TO LAW
ENFORCEMENT AND PUBLIC SAFETY, BY ADDING
ARTICLE 12 SO AS TO PROVIDE FOR THE LAW
ENFORCEMENT OFFICERS' BILL OF RIGHTS.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Chapter 6, Title 23 of the 1976 Code is amended by
adding:
"Article 12
Law Enforcement Officers' Bill of Rights
Section 23-6-600. This article may be cited as the 'Law
Enforcement Officers' Bill of Rights'.
Section 23-6-605. For the purposes of this article:
(1) 'Disciplinary action' means the suspension, demotion,
reduction in pay or other employment benefit, dismissal, transfer, or
similar action taken against a law enforcement officer as punishment
for misconduct.
(2) 'Disciplinary hearing' means an administrative hearing
initiated by a law enforcement agency against a law enforcement
officer, based on probable cause to believe that the officer has
violated or is violating a rule, regulation, or procedure related to
service as an officer and is subject to disciplinary action.
(3) 'Emergency suspension' means temporary action imposed by
the head of the law enforcement agency when that official determines
that there is probable cause to believe that a law enforcement officer:
(a) has committed a felony; or
(b) poses an immediate threat to the safety of the officer or
others or the property of others.
(4) 'Investigation' means the action of a law enforcement agency,
acting alone or in cooperation with another agency, or a division or
unit within an agency, or the action of an individual law enforcement
officer, taken with regard to another enforcement officer, if the action
is based on reasonable suspicion that the law enforcement officer has
violated, is violating, or will violate in the future a statute or
ordinance, or administrative rule, regulation, or procedure relating to
service as a law enforcement officer and includes:
(a) asking questions of other law enforcement officers or
nonlaw enforcement officers;
(b) conducting observations;
(c) evaluating reports, records, or other documents; and
(d) examining physical evidence.
(5) 'Law enforcement agency' means a state or local public agency
charged by law with the duty to prevent or investigate crimes or
apprehend or hold in custody persons charged with or convicted of
crimes.
(6) 'Law enforcement officer' or 'officer' means a member of a
law enforcement agency serving in a law enforcement position,
which is indicated by formal training, regardless of whether the
officer has completed or been assigned to this training, and
accompanied by the power to make arrests and includes:
(a) a member who serves full time, whether probationary or
nonprobationary, commissioned or noncommissioned, career or
noncareer, tenured or nontenured, and merit or nonmerit; and
(b) the chief law enforcement officer of a law enforcement
agency.
(7) 'Summary punishment' means punishment imposed for a
minor violation of a law enforcement agency's rules and regulations
that does not result in suspension, demotion, reduction in pay, or
other employment benefit, dismissal, or transfer.
Section 23-6-610. This article does not apply in the case of:
(1) a criminal investigation of a law enforcement officer's
conduct; or
(2) a nondisciplinary action taken in good faith on the basis of a
law enforcement officer's employment related performance.
Section 23-6-615. Except while on duty or acting in an official
capacity, a law enforcement officer is not prohibited from engaging
in political activity and must not be denied the right to refrain from
engaging in political activity.
Section 23-6-620. When a law enforcement officer is under
investigation that could lead to disciplinary action:
(1) he must be notified of the investigation before being
interviewed. Notice must include the general nature and scope of the
investigation and all departmental violations for which reasonable
suspicion exists. An investigation based on a complaint from outside
the law enforcement agency may not commence unless the
complainant provides a signed detailed statement. An investigation
based on a complaint from outside the agency shall commence within
fifteen days after receipt of the complaint by the agency; and
(2) at the conclusion of the investigation, the person in charge of
the investigation shall inform the law enforcement officer under
investigation in writing of the investigative findings and any
recommendation for disciplinary action that the person intends to
make.
Section 23-6-625. When a law enforcement officer is subjected to
questioning that could lead to disciplinary action:
(1) the questioning must be conducted at a reasonable hour,
preferably when the law enforcement officer is on duty, unless
exigent circumstances otherwise require;
(2) the questioning must take place at the offices of the persons
who are conducting the investigation or the place where the law
enforcement officer reports for duty, unless the officer consents in
writing to being questioned elsewhere;
(3) he must be informed, at the commencement of any
questioning, of the name, rank, and command of the officer
conducting the questioning;
(4) during any single period of questioning of the law enforcement
officer, all questions must be asked by or through a single
investigator;
(5) he must be informed in writing of the nature of the
investigation before any questioning;
(6) any questioning of him in connection with an investigation
must be for a reasonable period of time and must allow for reasonable
periods for the rest and personal necessities of the law enforcement
officer;
(7) threats against, harassment of, or promise of reward must not
be made in connection with an investigation to induce the answering
of any question. A statement given by the officer must not be used
in a subsequent criminal proceeding unless the officer has received
a written grant of use and derivative use immunity or transactional
immunity;
(8) all questioning of any law enforcement officer in connection
with the investigation must be recorded in full, in writing, or by
electronic device, and a copy of the transcript must be made available
to the officer under investigation;
(9) he is entitled to counsel at any questioning of him, unless he
consents in writing to being questioned outside the presence of
counsel.
Section 23-6-630. (A) Except in a case of summary punishment
or emergency suspension described in Section 23-6-640, if an
investigation of a law enforcement officer results in a
recommendation of disciplinary action, the law enforcement agency
shall notify the law enforcement officer that the law enforcement
officer is entitled to a hearing on the issues by a hearing officer or
board before the imposition of any disciplinary action.
(B) Disciplinary action must not be taken unless a hearing officer
or board determines, pursuant to a fairly conducted disciplinary
hearing, that the law enforcement officer violated a statute,
ordinance, or published administrative rule, regulation, or procedure.
(C) Disciplinary charges must not be brought against a law
enforcement officer unless filed within ninety days after the
commencement of an investigation, except for good cause shown.
(D) The law enforcement agency shall provide written, actual
notification to the law enforcement officer, not later than thirty days
after the filing of disciplinary charges, containing the:
(1) date, time, and location of the disciplinary hearing, which
must take place not sooner than thirty days and not later than sixty
days after notification to the law enforcement officer under
investigation unless waived in writing by the officer;
(2) name and mailing address of the hearing officer; and
(3) name, rank, and command of the prosecutor, if a law
enforcement officer, or the name, position, and mailing address of the
prosecutor, if not a law enforcement officer.
(E) During a disciplinary hearing an officer is entitled to be
represented by counsel or a nonattorney representative.
(F) A law enforcement officer who is brought before a disciplinary
hearing board must be provided access to all transcripts, records,
written statements, written reports, analyses, and electronically
recorded information pertinent to the case that:
(1) contain exculpatory information;
(2) are intended to support any disciplinary action; or
(3) are to be introduced in the disciplinary hearing.
(G) The disciplinary advocate for the law enforcement agency of
which the officer who is the subject of the hearing is a member shall
notify the law enforcement officer, or his attorney if he is represented
by counsel, not later than fifteen days before the hearing, of the
names and addresses of all witnesses for the law enforcement
agency.
(H) The disciplinary advocate for the law enforcement agency of
which the officer who is the subject of the hearing is a member shall
provide to the law enforcement officer, at the law enforcement
officer's request, not later than fifteen days before the hearing, a copy
of the investigative file, including all exculpatory and inculpatory
information, but excluding confidential sources.
(I) The disciplinary advocate for the law enforcement agency of
which the officer who is the subject of the hearing is a member shall
notify the law enforcement officer, at the officer's request, not later
than fifteen days before the hearing, of all physical, nondocumentary
evidence, and provide reasonable date, time, place, and manner for
the officer to examine this evidence at least ten days before the
hearing.
(J) The hearing board has the power to issue summonses to
compel testimony of witnesses and production of documentary
evidence. If confronted with a failure to comply with a summons, the
hearing officer or board may petition a court to issue an order, with
failure to comply being subject to contempt of court.
(K) A disciplinary hearing must be closed to the public unless the
law enforcement officer who is the subject of the hearing requests in
writing that the hearing be open to specified individuals or the
general public.
(L) All aspects of a disciplinary hearing, including prehearing
motions, must be recorded by audio tape, video tape, or transcription.
(M) Either side in a disciplinary hearing may move for and be
entitled to sequestration of witnesses.
(N) The hearing officer or board shall administer an oath or
affirmation to each witness, who shall testify subject to the applicable
laws of perjury.
(O) At the conclusion of all the evidence, and after oral argument
from both sides, the hearing officer or board shall deliberate and
render a verdict on each charge.
(P) The prosecutor's burden of persuasion is by clear and
convincing evidence as to each charge involving false representation,
fraud, dishonesty, deceit, or criminal behavior and by a
preponderance of the evidence as to all other charges.
(Q) If the law enforcement officer is found not guilty of the
disciplinary violations, the matter is concluded and no disciplinary
action may be taken.
(R) If the law enforcement officer is found guilty, the hearing
officer or board shall make a written recommendation of a penalty.
The sentencing authority may not impose a penalty greater than the
penalty recommended by the hearing officer or board.
(S) A law enforcement officer may appeal from a final decision of
a law enforcement agency to the circuit court.
Section 23-6-635. A law enforcement officer may waive any of the
rights guaranteed by this section subsequent to the time that the
officer has been notified that the officer is under investigation. Such
a waiver must be in writing and signed by the officer.
Section 23-6-640. (A) This article does not preclude summary
punishment or the emergency suspension of a law enforcement
officer.
(B) An emergency suspension does not affect or infringe on the
health benefits of a law enforcement officer or the officer's
dependents.
Section 23-6-645. Nothing in this article must be construed to
impair any other legal right or remedy that a law enforcement officer
may have as a result of a constitution, statute, ordinance, regulation,
collective bargaining agreement, or other sources of rights.
Section 23-6-650. A law enforcement officer who is being denied
a right afforded by this section may petition the circuit court for
declaratory or injunctive relief to prohibit the law enforcement
agency from violating this right.
Section 23-6-655. A law enforcement agency shall not insert
adverse material into the file of a law enforcement officer, or possess
or maintain control over any adverse material in any form within the
law enforcement agency, unless the officer has had an opportunity to
review and comment in writing on the adverse material.
Section 23-6-660. A law enforcement officer is not required or
must not be requested to disclose any item of the officer's personal
property, income, assets, sources of income, debts, personal, or
domestic expenditures, including those of any member of the
officer's household, unless:
(1) the information is necessary to the investigation of a violation
of a federal, state, or local law, rule, or regulation with respect to the
performance of official duties; and
(2) the disclosure is required by federal, state, or local law."
SECTION 2. This act takes effect upon approval by the Governor.
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