Original Notice.

     Preproposal statement of inquiry was filed as WSR 02-12-125.

     Title of Rule: Chapter 139-06 WAC, Certification, denial, revocation, investigation, commencement of action.

     Purpose: New statute, which requires the commission to promulgate rules regarding peace officer certification in compliance with new RCWs.

     Statutory Authority for Adoption: RCW 43.101.010 through 43.101.400.

     Summary: Stakeholders were contacted by e-mail to advise of the intended rule amendments. Proposals also listed on the agency website.

     Reasons Supporting Proposal: To be in compliance with new RCWs.

     Name of Agency Personnel Responsible for Drafting and Enforcement: Doug Blair, Burien, (206) 835-7311; and Implementation: Michael D. Parsons, Burien, (206) 835-7347.

     Name of Proponent: Criminal Justice Training Commission staff, governmental.

     Rule is not necessitated by federal law, federal or state court decision.

     Explanation of Rule, its Purpose, and Anticipated Effects: Changes to this rule will affect private companies cost for application fees. These fees are meant to cover the Criminal Justice Training Commission costs of implementing the private security firearms program.

     Proposal does not change existing rules.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. Proposal is exempt under RCW 19.85.025(2), therefore a small business economic impact statement is not required.

     RCW 19.85.025(2), this chapter does not apply to a rule proposed for expedited adoption under **RCW 34.05.230(1) through (8), unless a written objection is timely filed with the agency and the objection is not withdrawn.

     RCW 34.05.328 does not apply to this rule adoption.

     Hearing Location: Criminal Justice Training Commission, 19010 1st Avenue South, Burien, WA 98148, on December 11, 2002, at 10:00 a.m.

     Assistance for Persons with Disabilities: Contact Susan Yeager by December 9, 2002, TDD (206) 835-7300.

     Submit Written Comments to: Sharon M. Tolton, Criminal Justice Training Commission, 19010 1st Avenue South, Burien, WA 98148, fax (206) 439-3860, by December 9, 2002.

     Date of Intended Adoption: December 11, 2002.

August 28, 2002

Sharon M. Tolton

Deputy Director

OTS-5765.1

     (2) A peace officer who has satisfied, or has been exempted from, the basic training requirements of RCW 43.101.200, prior to January 1, 2002, but who was not employed as a commissioned peace officer on January 1, 2002, and has not had a break of more than twenty-four consecutive months of law enforcement service, shall upon his or her return to employment submit a peace officer certification form to the commission as described in subsection (1) of this section. The commission shall issue a certificate of peace officer certification upon verification that the peace officer is eligible for certification. If the peace officer's break in law enforcement service was more than twenty-four consecutive months, the officer must comply with the training requirements of WAC 139-05-200. The commission shall determine under chapter 43.101 RCW and rules of the commission whether the peace officer is eligible for certification and, if so, it shall determine any requirements that the officer must meet as a condition of certification.

     (3) Upon determination that a certification form contains missing or deficient information, commission staff shall notify the peace officer and the officer's employing agency of such and the officer must submit the missing or deficient information to the commission within thirty days of the date the request is issued. Failure to submit the missing or deficient information within the required time shall result in a recommendation that the peace officer's request for certification be denied.

     (4) In order to determine a peace officer's eligibility for certification, commission staff may request information in addition to that provided on the peace officer certification form. The peace officer or the officer's employing agency shall submit the requested information within thirty days of the date the request is issued. Failure to comply with the commission's request shall result in a recommendation that the peace officer's request for certification be denied.

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     (2) The agency shall, upon request by the commission, provide any additional documentation, files or information, as the commission may deem necessary to determine whether the termination provides grounds for revocation or denial of the peace officer's certification.

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     (2) Upon a preliminary determination by commission staff that there is not probable cause to revoke or deny a peace officer's certification, a copy of the decision not to proceed, with a brief statement of the reasons for the decision, shall be furnished to the officer and the officer's employing agency. An officer's employing agency may request review by the chair of the commission or his or her designee, of a preliminary determination that there is not probable cause to revoke or deny a peace officer's certification, by making such request in writing within fourteen days of the mailing of notification of the decision not to proceed.

     (3) Upon a preliminary determination by commission staff that there is probable cause to revoke or deny a peace officer's certification, the chair of the commission or his or her designee, shall determine if there is probable cause to believe that the peace officer's certification should be denied or revoked under RCW 43.101.105. The chair shall determine probable cause based upon evidence presented by commission staff.

     (4) Upon a determination by the chair that there is probable cause to believe that the peace officer's certification should be revoked or denied, the commission shall prepare a statement of charges and commence revocation proceedings under RCW 43.101.155.

     (5) Any designee of the chair under this section must be a member of the commission.

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     (2) A request for a hearing on the denial or revocation of certification must be made by the peace officer on an approved form and received by the commission within sixty days from the date of the mailing of the statement of charges.

     (3) Failure to request a hearing, or failure to appear at a requested hearing or at a prehearing conference, shall constitute default and the hearing panel shall enter a final order under RCW 34.05.440.

     (4) A peace officer may waive a hearing by so indicating on the hearing request form. By waiving a hearing the peace officer acknowledges that his or her certification should be denied or revoked and the hearings panel shall enter such an order.

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     (2) A new panel may, but need not, be established for each hearing.

     (3) Each hearing panel shall select a presiding member who shall be responsible for signing documents on behalf of the panel, and for conducting prehearing conferences and any other hearings that may be necessary. If a panel hears more than one hearing, a new presiding member may, but need not, be selected for each hearing.

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     (2) Notification of the dates of the hearing and initial prehearing conference shall also contain the names of the members of the hearing panel.

     (3) Any motion for disqualification of a panel member must be filed prior to the initial prehearing conference.

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     (2) The standard of proof shall be clear, cogent, and convincing evidence.

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     (2) The decision of the hearing panel shall be the final decision of the commission.

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     (b) A peace officer denied certification based upon dismissal or withdrawal from basic law enforcement academy for disqualifying misconduct is eligible for readmission and certification only upon meeting the requirements of subsection (5) of this section.

     (2) A peace officer whose certification is denied or revoked based upon prior administrative error of issuance is eligible for certification or reinstatement of certification upon a determination by the commission that the factors that should have prevented the officer from being certified have been remedied and the officer is otherwise eligible for certification.

     (3) A peace officer whose certification is denied or revoked based upon failure to cooperate, or interference with an investigation, is eligible for certification or reinstatement of certification if the officer's conduct did not also involve disqualifying misconduct, or other illegal or unethical conduct, and upon a showing that the officer has thereafter fully cooperated and is otherwise eligible for certification. In making its determination, the commission may consider the nature and seriousness of the officer's conduct.

     (4) A peace officer whose certification is denied or revoked based upon discharge for disqualifying misconduct, but not also based upon a felony criminal conviction, may, five years after revocation or denial, petition the commission for certification or reinstatement of certification. The commission shall hold a hearing on the petition for certification or reinstatement of certification. The commission may allow certification or reinstatement of certification upon finding that the peace officer has engaged in no further disqualifying or similar misconduct, has had no further criminal convictions, has engaged in no other illegal or unethical conduct, and is otherwise eligible for certification.

     (5) A peace officer whose certification is denied or revoked based solely upon a criminal conviction may petition the commission for certification or reinstatement of certification immediately upon judicial reversal of the conviction. The commission shall hold a hearing on the petition for certification or reinstatement of certification. The commission may allow certification or reinstatement of certification upon finding that the peace officer has engaged in no further disqualifying or similar misconduct, has had no further criminal convictions, has engaged in no other illegal or unethical conduct, and is otherwise eligible for certification.

     (6) A peace officer whose certification has been denied or revoked, or whose certification has lapsed, due to a break of more than twenty-four consecutive months of law enforcement service as a peace officer, may upon return to service as a law enforcement officer, petition the commission for certification or reinstatement of certification. Upon receipt of a petition for certification or reinstatement of certification, the commission shall determine if the peace officer is eligible for certification or reinstatement of certification. The terms of certification or reinstatement of certification may be subject to the requirement of basic law enforcement academy or the equivalency in addition to other requirements as imposed by the commission.

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     (2) Upon receipt of a petition for certification or reinstatement of certification and a determination by commission staff that a hearing is necessary, or required, the peace officer and the officer's employing agency shall be notified in writing. Where a hearing is not held, the peace officer and the officer's employing agency shall be notified in writing of the commission's decision whether to certify or reinstate the officer, and the reasons for the decision. Where the peace officer is not certified or reinstated, the peace officer or the officer's employing agency may request a hearing before a hearing panel by making such request in writing within fourteen days of the mailing of notification that certification is not being granted or reinstated.

     (3) Hearings on certification or reinstatement of certification shall be conducted by a hearing panel. The hearing panel shall review the certification file and any additional information submitted by the parties prior to the hearing and may request any additional information in order to assist in its determination. The issues shall be limited to whether the peace officer is eligible for certification or reinstatement of certification, and appropriate probationary terms in the event certification is granted or reinstated.

     (4) The hearing panel shall enter a written order regarding certification or reinstatement of certification within ninety days of the conclusion of the hearing, unless the time period is waived or extended for good cause. A copy of the order shall be sent to the parties, and to the officer's employing agency.

     (5) The decision of the hearing panel shall be the final order of the commission.

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     Peace officer certification proceedings are distinct from proceedings before the commission under chapter 139-03 WAC and this chapter is not intended to modify chapter 139-03 WAC.

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