A law signed by the governor recently (SB26) contains a variety of public safety provisions, including a new Section 590.502 which purports to create a process for internal investigations involving complaints about police officers. Unfortunately, the legislation leaves many unanswered questions about the new process that likely will result in confusion for cities trying to implement it and as a result could lead to litigation brought by disciplined officers.
Section 590.502 prescribes a series of procedures and standards that a law enforcement agency now must follow whenever an officer is “under administrative investigation,” subject to “administrative questioning,” or when “the officer reasonably believes [such questioning] could lead to disciplinary action, demotion, dismissal, transfer, or placement on a status that could lead to economic loss[.]” This standard is problematic given there is no definition as to what questioning rises to the level of an “administrative questioning” and is triggered by the completely subjective standard of whether the investigated officer believes they will be subject to discipline.
While not exhaustive, the following is a summary of police agency requirements under the new law for investigations that could lead to disciplinary action. The agency must:
Give written notice to the officer of the existence and nature of the alleged violation and who will be conducting the investigation at least 24 hours prior to any interrogation or interview of that officer.
Allow no more than two investigators to question the officer except that separate investigators shall be assigned to investigate any alleged criminal violations.
Interview or question an officer “regarding matters pertaining to his or her law enforcement duties or actions taken within the scope of his or her employment … for a reasonable length of time and only while the officer is on duty” unless reasonable circumstances prevent such questioning while on duty.
Give the officer “rest periods as are reasonably necessary.”
Inform the officer, prior to an interview session, that he/she is being ordered to answer questions under threat of disciplinary action and that the officer's answers to the questions will not be used against the officer in a criminal proceeding.
Allow the officer to be represented by an attorney or duly authorized representative during questioning that the officer “reasonably believes” may result in disciplinary action.
Suspend questioning for up to 24 hours if the officer requests representation (after starting interview).
Complete the investigation within 90 days “from receipt of a citizen complaint”; may be extended under certain circumstances.
Inform the officer in writing within 5 days of the conclusion of the investigative findings and any recommendations for further action.
Maintain a complete record of the investigation at the agency.
Provide officer, if requested upon completion of the investigation, with a copy of the entire record within 5 business days of the officer’s written request. Agency may request “a protective order” to redact personal identifying witness information but statute does not state who has authority to grant a protective order and under what conditions. Also, does not state that the police agency has any duty to inform the complainant or witnesses that the entire record, including their unredacted statements, is being provided to the officer. The record must otherwise be kept confidential and is not subject to disclosure under the Sunshine Law, except by lawful subpoena or court order.
This may require the police agency to spend funds to protect witness personal information and act quickly as they only have 5 business days to turn over the report upon completion.
Appears that without a protective order, agency cannot redact witness’s personal information like other personnel and police records.
Unclear whether the agency can redact the complainant’s personal information, when complainant is also a witness, since the law provides that the personal identifying information of the person filing the complaint shall “be held confidential.”
Conduct a “full due process hearing” for any officer “suspended without pay, demoted, terminated, transferred, or placed on status resulting in an economic loss.”
In a city where only the Board of Aldermen or City Council has the authority to hire/fire/promote/demote the City will have to decide at what point the hearing is given—prior to discipline or after?
Prepare, at the end of the hearing, a written final decision including findings of fact upon each issue involved in the case.
Allow the officer to provide a written response to any adverse materials placed in his/her personnel file, and such written response shall be permanently attached to the adverse materials.
No standard for this response to be supported by evidence.
Compensate the officer for any economic loss incurred during an investigation if the officer is found to have committed no misconduct.
Defined to include any economic loss including but not limited to loss of overtime accrual, overtime income, sick time accrual, sick time, secondary employment income, holiday pay, and vacation pay.
Additionally, Section 590.502 requires that the police agency defend and indemnify law enforcement officers against civil claims made against an officer while the officer was acting “within the scope of his/her official duties.” It is only if the officer pleads guilty to or is convicted of criminal charges arising from the same conduct, that the agency is “no longer … obligated to defend and indemnify the officer with related civil claims.”
There is no definition provided for what is “within the scope” of an officer’s duties so police agencies will have to turn to case law to see if a given action by an officer is likely considered to be within the scope of duties.
Also, this indicates the agency cannot get funds back that were expended prior to such guilty plea or conviction!
Finally, Section 590.502 gives police officers the right to bring a lawsuit for enforcement of these provisions and, if a court finds that a law enforcement agency has “purposely” violated the statute, it is instructed to declare any such action taken in violation of the statute to be void. The court “may also award” the officer the costs of bringing the suit including attorneys’ fees. Of course, the statute does not define “purposefully,” but it appears to require some sort of intent or knowledge rather than simply trying to comply and in the eyes of the court, falling short.