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S. 1423
STATUS INFORMATION
General Bill
Sponsors: Senator Knotts
Document Path: l:\s-jud\bills\knotts\jud0487.kw.doc
Introduced in the Senate on May 27, 2008
Currently residing in the Senate Committee on Judiciary
Summary: Law Enforcement Professionalism Act
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number ------------------------------------------------------------------------------- 5/27/2008 Senate Introduced and read first time SJ-5 5/27/2008 Senate Referred to Committee on Judiciary SJ-5
View the latest legislative information at the LPITS web site
VERSIONS OF THIS BILL
TO AMEND CHAPTER 23, TITLE 23, CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING ARTICLE 2, RELATING TO THE LAW ENFORCEMENT TRAINING COUNCIL, SO AS TO PROVIDE FOR THE CREATION OF AN OFFICE OF PROFESSIONAL STANDARDS UNDER THE TRAINING COUNCIL AND THE CRIMINAL JUSTICE ACADEMY TO INVESTIGATE AND HEAR COMPLAINTS AGAINST LAW ENFORCEMENT OFFICERS, TO DETERMINE THE NECESSARY ACTIONS TO BE TAKEN AGAINST A LAW ENFORCEMENT OFFICER, TO PROVIDE FOR CONFIDENTIALITY OF CERTAIN PROCEEDINGS, AND TO PROVIDE FOR PENALTIES FOR UNFOUNDED COMPLAINTS.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. This bill may be called the "Law Enforcement Professionalism" bill. The General Assembly finds that the law enforcement community in South Carolina aspires to the highest standards of professionalism. The provisions in this act shall bring impartiality and openness into the disciplining of law enforcement officers for misconduct. At the same time, law enforcement officers shall be protected from frivolous and unfounded claims, thereby directing time and effort to meritorious claims of misconduct against those law enforcement officers who do not demonstrate the highest standards of professionalism.
SECTION 2. Sections 23-23-10 through 23-23-115 are designated as Article 1 of Chapter 23, Title 23.
SECTION 3. Chapter 23, Title 23 of the 1976 Code is amended by adding:
Section 23-23-200. (A) There is hereby created an Office of Professional Standards under the Director of the Criminal Justice Academy to investigate citizen complaints alleging misconduct as provided in this article against law enforcement officers who are certified by the Law Enforcement Training Council. Other categories of complaints against law enforcement officers shall remain the responsibility of the appropriate law enforcement agency.
(B) The Law Enforcement Training Council shall establish by regulation the staffing of the Office of Professional Standards.
(C) The Training Council, in conjunction with the Director of the Criminal Justice Academy, shall establish by regulation and policy the procedures for handling the complaints and the disciplinary proceedings.
Section 23-23-210. For purposes of this article,
(A) 'Cause' means a reasonable ground for belief in the existence of facts warranting the referral of a citizen complaint to the Training Council for a hearing and disposition of the complaint.
(B) 'Council' or 'Training Council' means the Law Enforcement Training Council.
(C) 'Complaint' means information in written form from any source received by the Law Enforcement Training Council, the Director of the Criminal Justice Academy, or the Office of Professional Standards, that alleges, or from which a reasonable inference can be drawn, that a law enforcement officer has committed misconduct or is incapacitated.
(D) 'Conviction' means any conviction resulting from a trial or any type of plea, including a plea of nolo contendere or a plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
(E) 'Deferred Discipline Agreement' means a confidential agreement between the law enforcement officer and the Law Enforcement Training Council for the law enforcement officer to undergo treatment, participate in education programs or take other corrective action. It is only available as a response to misconduct that is minor and can be addressed through treatment or a rehabilitation program.
(F) 'Director' means the Director of the Criminal Justice Academy.
(G) 'Hearing' means the proceeding before the Law Enforcement Training Council to determine the disposition of a complaint.
(H) 'Inactive status' means a law enforcement officer who has been decertified, suspended, or transferred to incapacity status.
(I) 'Incapacity' means a mental or physical condition that adversely affects a law enforcement officer's ability to enforce the law. Incapacity is distinguished from a disability that does not adversely affect a law enforcement officer's ability to enforce the law.
(J) 'Interim Suspension' means temporary suspension from the working as a law enforcement officer pending a final determination in any proceeding under this article.
(K) 'Investigation' means an inquiry into allegations of misconduct, including a search for and examination of evidence concerning the allegations conducted by the Office of Professional Standards after the receipt of a complaint.
(L) 'Law Enforcement Officer' means anyone certified by the Training Council who is granted statutory authority to enforce all or some of the criminal, traffic, and penal laws of the State and who possess, with respect to those laws, the power to effect arrests for offenses committed or alleged to have been committed.
(M) 'Misconduct' means conduct by a law enforcement officer constituting grounds for discipline as provided in Section 23-23-220.
(N) 'Office' means the Office of Professional Standards in charge of screening and investigating complaints, and performing other duties assigned by the Director of the Criminal Justice Academy.
(O) 'Proceedings' means all steps in the complaint system set forth in this article.
(P) 'Record' means all documents submitted in the case beginning with the complaint filed with the Director of the Criminal Justice Academy.
(Q) 'Screening' means examination of a complaint or other information coming to the attention of the Office of Professional Standards or the Training Council to determine whether the Training Council has jurisdiction.
Section 23-23-220. (A) The director of the Criminal Justice Academy shall have the authority to receive a citizen complaint against a law enforcement officer certified by the Law Enforcement Training Council. He shall refer a complaint to the Office of Professional Standards for screening and review for cause.
(B) A complaint for which cause is established shall then be referred to the Law Enforcement Training Council for a hearing, in accordance with procedures established by the Training Council. (C) The Office of Professional Standards, after consultation with the director of the Criminal Justice Academy, shall have the authority to screen, review, dismiss, or refer to the Training Council for a hearing, a citizen complaint against a law enforcement officer certified by the Law Enforcement Training Council that alleges abuse or misuse of police power by a certified officer or officers, while on duty or acting within the course and scope of his employment, including, but not limited to:
(1) harassment;
(2) use of unnecessary or excessive force;
(3) use of language or conduct that is insulting, demeaning, or humiliating;
(4) discriminatory treatment based upon a person's race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, physical disability, political affiliation, source of income, or place of residence or business;
(5) retaliation against a person for filing a complaint pursuant to this chapter; or
(6) failure to wear or display required identification or to identify oneself by name and badge number when requested to do so by a member of the public.
(D) If the complaint alleges misconduct that is not within the authority of the Office to review, the Director of the Criminal Justice Academy shall refer the complaint to the appropriate agency, to include the South Carolina Law Enforcement Division, in the event of a criminal allegation.
(E) To be timely, a complaint must be received by the Director of the Criminal Justice Academy within ninety days from the date of the incident that is the subject of the complaint. The Director may extend the deadline for good cause.
(F) The complaint shall be in writing and signed by the complainant. The complainant shall certify to the best of his or her knowledge that the statements are true. False statements shall subject the complainant to charges and penalty of perjury.
(G) Complaints that are determined by the Office of Professional Standards, the Director of the Criminal Justice Academy, or the Law Enforcement Training Council to be false, without factual basis, or made with the intent to harass or intimidate a certified law enforcement officer shall subject the complainant to referral to the appropriate solicitor's office for prosecution in accordance with the following penalties:
(1) upon conviction for a first offense, imprisonment of not more than a thirty days, or a fine of not more than five hundred dollars, or both;
(2) upon conviction for a second offense, imprisonment of not more than one year, or a fine of not more than one thousand dollars, or both;
(3) upon conviction for a third or subsequent offense, imprisonment of not more than five years, or a fine of not more than five thousand dollars, or both.
Section 23-23-230. (A) The Office of Professional Standards shall be responsible for:
(1) maintaining the permanent records of the Office to include copies of all complaints received, reviewed, screened, investigated, and dispositions of the complaints.
(2) compiling statistics to aid in the administration of the system, including, but not limited to, a log of all complaints received, investigative files, and statistical summaries of hearings and dispositions.
(3) investigate, and if appropriate, refer to the solicitor for contempt proceedings based on allegations that a law enforcement officer who is decertified, suspended, or transferred to incapacity status is employed as a law enforcement officer.
Section 23-23-240. (A) Misconduct shall be grounds for one or more of the following sanctions:
(1) decertification;
(2) suspension of the certification for an indefinite period from being a law enforcement officer;
(3) suspension of the certification for a definite period from being a law enforcement officer, not to exceed 2 years;
(4) deferred discipline agreement;
(5) transfer to incapacity status; or
(6) any other sanction or requirement as the Training Council may determine is appropriate, such as a confidential reprimand or letter of caution.
(B) Charges of misconduct or incapacity shall be established by clear and convincing evidence, and the burden of proof of the charges shall be on the complainant. The burden of proof in proceedings seeking reinstatement following decertification, suspension, or transfer to law enforcement incapacity status is on the law enforcement officer by clear and convincing evidence.
Section 23-23-250. (A) Except as otherwise provided in this article or as set forth by the Training Council, all complaints, proceedings, records, information, or orders relating to an allegation of misconduct or incapacity shall be confidential and shall not be disclosed to the public. While the matter remains confidential, the members of the Office of Professional Standards, the Criminal Justice Academy, or the Training Council shall not in any way reveal the existence of the complaint except to persons directly involved in the matter and then only to the extent necessary for a proper disposition of the matter. Any person contacted about the complaint during an investigation, including, but not limited to, law enforcement officers, shall not share or otherwise make public the information regarding the complaint or investigation. A violation of this provision may be punished as contempt of the Training Council.
(B) When a complaint has been referred to the Training Council, based on cause, the complaint and the scheduled hearing date shall become public 30 days prior to the hearing. Thereafter, except as otherwise provided by this article or the Commission, all subsequent records and proceedings relating to the misconduct allegations shall be open to the public. If allegations of incapacity are raised during the misconduct proceedings, all records, information, and proceedings relating to these allegations shall be held confidential.
(C) The Training Council may, however, disclose information at any stage of the proceedings:
(1) when the Training Council has determined that there is a need to notify another person to protect that person or to notify a government agency in order to protect the public or the administration of justice;
(2) to appropriate law enforcement officials when the Training Council determines that it is in possession of reliable information indicating that a person has violated the criminal laws of this State, any other state, the District of Columbia, or the United States;
(3) upon waiver in writing by the law enforcement officer; or
(4) to persons from whom and entities from which it appears that a law enforcement officer has misappropriated monies or other property when the Training Council has determined that the disclosure of the information will tend to prevent further misappropriation or likely facilitate restitution, recovery, or compensation from insurance coverage, title insurance, or other sources.
(D) In order to protect the interests of a complainant, witness, third party or law enforcement officer, the Training Council may, upon application of a person and for good cause shown, issue a protective order prohibiting the disclosure of specific information otherwise privileged or confidential and direct that the proceedings be conducted in a manner to preserve the confidentiality of the information that is the subject of the application.
Section 23-23-260. Communications to the Training Council, Office of Professional Standards, or the Criminal Justice Academy relating to misconduct or incapacity and testimony given in the proceedings shall be absolutely privileged, and no civil lawsuit predicated thereon may be instituted against any complainant or witness. Members of the Training Council, Office of Professional Standards, and the Criminal Justice Academy, and any supervising or monitoring law enforcement officer appointed by the Director of the Criminal Justice Academy or the Training Council shall be absolutely immune from civil suit for all conduct in the course of their official duties pursuant to this article.
Section 23-23-270. (A) Without the necessity of Training Council action, the Training Council may place a law enforcement officer's certification on interim suspension upon notice of the filing of an indictment, information, or complaint charging the law enforcement officer with a serious crime, and shall immediately place a law enforcement officer's certification on interim suspension on receipt of a certified copy of a judgment of conviction or other competent evidence showing that the law enforcement officer has been convicted of a serious crime. The fact that sentencing may be delayed or an appeal may be taken shall not prevent the Training Council from imposing an interim suspension.
(B) Upon receipt of sufficient evidence demonstrating that a law enforcement officer poses a substantial threat of serious harm to the public or to the administration of justice, the Training Council may suspend the law enforcement officer's certification or transfer the law enforcement officer to inactive status pending a final determination in any proceeding under these rules.
(C) Upon receipt of sufficient evidence demonstrating that a law enforcement officer has failed to fully respond to a notice of investigation, fully comply with the Office of Professional Standards, or fully respond to inquiries at an appearance required by the Office or the Training Council, the Training Council may place that law enforcement officer's certification on interim suspension.
(D) A law enforcement officer whose certification has been placed on interim suspension or who has been transferred to inactive status may apply to the Training Council for reconsideration of the order. A copy of the motion shall be filed with the Training Council and served on the Director of the Criminal Justice Academy and the Office of Professional Standards.
(E) The order of decertification, interim suspension, or transfer to incapacity status shall be public and published on the website of the Criminal Justice Academy. An order transferring a law enforcement officer to incapacity status shall not disclose the nature of the incapacity.
Section 23-23-280. The Office of Professional Standards shall provide written acknowledgment of every complaint, and notify the complainant in writing of the final disposition of a proceeding under these rules, including dispositions of matters heard by the Training Council. Notification in writing shall be mailed within twenty days of the decision disposing of the proceeding. Although entitled to notice, a complainant is not a party to the proceeding and is not entitled to appeal or otherwise seek review of the dismissal or other disposition of a proceeding.
Section 23-23-290. (A) The Office of Professional Standards shall evaluate all information coming to the office's attention by complaint or from other sources that alleges law enforcement officer misconduct or incapacity. If the information would not constitute misconduct or incapacity if it were true, the Office, upon review by the Director of the Criminal Justice Academy shall dismiss the complaint or, if appropriate, refer the matter to another agency. If the information raises allegations that would constitute law enforcement officer misconduct or incapacity if true, the office shall conduct an investigation to determine if cause exists for a hearing before the Training Council.
(B) The Office of Professional Standards may conduct interviews and examine evidence to determine whether grounds exist to believe the allegations of complaints. The Office shall request the law enforcement officer to file a response to the allegations in the complaint; provided, however, that Office may seek permission of the Director of the Criminal Justice Academy to dispense with the requirement to make this request. The law enforcement officer shall file a written response within fifteen days of notice to do so from the office.
(C) If the matter is dismissed or referred to another agency, the Office shall notify the law enforcement officer of the action and shall provide the law enforcement officer with a copy of the complaint if the law enforcement officer has not already received a copy of the complaint.
Section 23-23-300. (A) At any stage in the proceedings, the law enforcement officer and the Office of Professional Standards may agree to the imposition of a stated sanction(s) in exchange for the law enforcement officer's admission of any or all of the allegations of misconduct involved in the proceedings. If the agreement is entered into before the hearing before the Training Council, the agreement shall contain the specific factual allegations which the law enforcement officer admits he or she has committed and the applicable ethical or disciplinary provisions that the law enforcement officer has violated. The agreement shall be signed by the Chair of the Training Council, by the law enforcement officer and, if the law enforcement officer is represented by counsel, by the law enforcement officer's counsel. The signature of the law enforcement officer's counsel on the agreement shall indicate that counsel has advised the law enforcement officer regarding the agreement and that counsel believes the law enforcement officer is voluntarily entering into the agreement with a full understanding of the effect of the agreement.
(B) The law enforcement officer shall also sign an affidavit stating that:
(1) the law enforcement officer consents to the sanction(s);
(2) the consent is voluntarily given;
(3) the matters admitted in the agreement and the facts stated in the affidavit are true.
Section 23-23-310. (A) An incapacity proceeding may be initiated by complaint, by a claim of inability to defend in a disciplinary proceeding, or by an order of involuntary commitment or adjudication of incompetency.
(B) All incapacity proceedings shall be conducted in accordance with the procedures for disciplinary proceedings, except:
(1) the purpose of the incapacity proceedings shall be to determine whether the law enforcement officer suffers from a physical or mental condition that adversely affects the law enforcement officer's ability to enforce the law;
(2) all of the proceedings, information and documents shall be confidential except as provided in Section 23-23-260;
(3) the Training Council may appoint a guardian ad litem for the law enforcement officer;
(4) the Training Council shall designate one or more qualified medical, psychiatric, or psychological experts to examine the law enforcement officer prior to the hearing on the matter. The Training Council may designate an expert agreed upon by the law enforcement officer. The expert or experts shall report to the hearing panel and the parties;
(5) if the Training Council concludes that the law enforcement officer suffers from a physical or mental condition that adversely affects the law enforcement officer's ability to enforce the law, it may enter any order appropriate to the circumstances, the nature of the incapacity and probable length of the period of incapacity, including:
(a) transferring the law enforcement officer to incapacity status;
(b) placing restrictions or conditions on the law enforcement officer, to include limiting the law enforcement officer's employment or requiring the law enforcement officer to undergo appropriate treatment;
(c) deferring any disciplinary proceeding based on misconduct pending against the law enforcement officer if the Training Council determines that the law enforcement officer is unable to assist in his or her own defense.
(C) If a law enforcement officer has been judicially declared incompetent or is involuntarily committed on the grounds of incompetency or incapacity by a final order of a court of law, the Training Council, upon receipt of a certified copy of the order, shall enter an order immediately transferring the law enforcement officer to incapacity status. A copy of the order shall be served, in the manner the Training Council shall direct, upon the law enforcement officer, the law enforcement officer's guardian, or the director of the institution to which the law enforcement officer has been committed.
(D) If in the course of a disciplinary proceeding based on misconduct, a law enforcement officer alleges an inability to assist in the defense due to mental or physical incapacity, the Office of Professional Standards shall notify the Training Council. The Training Council shall immediately transfer the law enforcement officer to incapacity status pending a determination by the Training Council of the incapacity.
(E) If the Training Council determines the claim of inability to defend is valid, the disciplinary proceeding based on misconduct shall be deferred. Any investigation of the complaint may continue. The law enforcement officer shall remain on incapacity status until the Training Council grants a petition for reinstatement to active status as a law enforcement officer. If the Training Council determines that a petition for reinstatement to active status should be granted, the Training Council shall also determine the disposition of the interrupted disciplinary proceedings.
(F) If the Training Council determines that the claim of inability to defend is invalid, the disciplinary proceeding based on misconduct shall resume. The law enforcement officer shall, however, be retained on incapacity status pending completion of the disciplinary proceedings.
(G) The raising of mental or physical condition as a defense to, or in mitigation of, a hearing before the Training Council constitutes a waiver of any medical privilege.
(H) After receipt of the examination report of the expert or experts designated by the Training Council, the Training Council and the law enforcement officer may agree upon proposed findings of fact, conclusions, and recommended disposition. The final decision shall be made by the Training Council.
(I) No law enforcement officer transferred to incapacity status may resume active status except by order of the Training Council.
(J) Upon the filing of a petition for transfer to active status, the Training Council may take or direct whatever action it deems necessary or proper to determine whether the incapacity has been removed, including a direction for an examination of the law enforcement officer by qualified medical or psychological experts designated by the Training Council. In its discretion, the Training Council may direct that the expense of the examination be paid by the law enforcement officer.
(K) With the filing of a petition for reinstatement to active status, the law enforcement officer shall be required to disclose the name of each psychiatrist, psychologist, physician and hospital or other institution by whom or in which the law enforcement officer has been examined or treated since the transfer to incapacity status. The law enforcement officer shall furnish to the Training Council written consent to the release of information and records relating to the incapacity if requested by the Training Council-appointed medical or psychological experts.
(L) The Training Council shall grant the petition for transfer to active status upon a showing by clear and convincing evidence that the incapacity has been removed.
(M) If a law enforcement officer transferred to incapacity status on the basis of a Training Council determination of incompetence has been declared to be competent, the Training Council may dispense with further evidence that the incapacity to enforce the law has been removed and may immediately direct reinstatement to active status.
(N) An order transferring a law enforcement officer to incapacity status or reinstating a law enforcement officer to active status following transfer to incapacity status shall be public on the website of the Criminal Justice Academy; the order shall not, however, disclose the nature of the incapacity. All other orders issued in an incapacity proceeding shall be confidential.
Section 23-23-320. (A) A law enforcement officer who has been suspended for a definite period of nine months or more, has been suspended for an indefinite period, or has been decertified, shall be reinstated as certified for law enforcement only upon order of the Training Council. A petition for reinstatement shall not be filed earlier than five years from the date of entry of the order of decertification or two years from the date of entry of the order of indefinite suspension. A law enforcement officer who has received a definite suspension for nine months or more may file the petition for reinstatement no earlier than two hundred and seventy days prior to the expiration of the period of suspension. All records and proceedings relating to reinstatement shall be open to the public.
(B) A petition for reinstatement must be under oath or affirmation under penalty of perjury and shall specify with particularity the manner in which the law enforcement officer meets each of the criteria specified in subsection (D) below.
(C) The law enforcement officer shall serve a copy of the petition on the Office of Professional Standards and the Training Council.
(D) A law enforcement officer may be reinstated or readmitted only if the law enforcement officer meets each of the following criteria:
(1) The law enforcement officer has fully complied with the terms and conditions of all prior disciplinary orders.
(2) The law enforcement officer has not worked in the area of law enforcement during the period of suspension or decertification.
(3) If the law enforcement officer was suffering under a physical or mental infirmity at the time of suspension or decertification, including alcohol or other drug abuse, the infirmity has been removed. Where alcohol or other drug abuse was a causative factor in the law enforcement officer's misconduct, the law enforcement officer shall not be reinstated unless:
(a) the law enforcement officer has pursued appropriate rehabilitative treatment;
(b) the law enforcement officer has abstained from the use of alcohol or other drugs for at least 1 year or the period of suspension, whichever is shorter; and
(c) the law enforcement officer is likely to continue to abstain from alcohol or other drugs.
(4) The law enforcement officer recognizes the wrongfulness and seriousness of the misconduct for which the law enforcement officer was suspended or decertified.
(5) The law enforcement officer has not engaged in any other professional misconduct since suspension or decertification.
(6) Notwithstanding the conduct for which the law enforcement officer was disciplined, the law enforcement officer has the requisite honesty and integrity to work in law enforcement.
(7) If suspended or decertified for conduct resulting in a criminal conviction and sentence, the law enforcement officer has successfully completed all conditions of the sentence, including, but not limited to, any period of probation or parole.
(E) At the hearing before the Training Council, the law enforcement officer shall have the burden of demonstrating by clear and convincing evidence that the law enforcement officer has met each of the criteria in subsection (D) above.
(F) The Training Council shall determine if the burden has been met to reinstate the law enforcement officer. This decision is final.
Section 23-23-330. A law enforcement officer who is decertified, whose certification is suspended, or who is transferred to incapacity status shall not be employed directly or indirectly by any law enforcement agency as an investigator or law enforcement officer, or in any capacity connected with law enforcement. Any law enforcement agency that, with knowledge that the person is decertified, suspended or transferred to incapacity status, employs such person in a manner prohibited by this article shall be subject to being held in contempt under this article. A decertified or suspended law enforcement officer who violates this article is considered in contempt of the Training Council and may be punished accordingly."
SECTION 4. This act takes effect July 1, 2010.
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