BILL REQ. #:  H-4005.1 

Prefiled 01/08/10. Read first time 01/11/10.   Referred to Committee on Commerce & Labor.

     AN ACT Relating to law enforcement officers who are terminated for dishonesty; amending RCW 41.12.080, 41.14.110, and 43.43.070; adding a new section to chapter 43.101 RCW; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   The legislature finds that a recent decision of the Washington state supreme court may limit the ability of employers to terminate law enforcement officers for dishonesty. As a result of this decision, criminal prosecutions may be jeopardized and public confidence in law enforcement eroded.
     In Kitsap County Deputy Sheriff's Guild v. Kitsap County, No. 80720-5 (2009), the supreme court held that an arbitration decision arising out of a collective bargaining agreement may be vacated if it violates an "explicit, well-defined, and dominant public policy." The supreme court, however, also concluded that there was no statute or other expression of the state's public policy requiring the termination or prohibiting the reinstatement of a law enforcement officer found to have been untruthful. The supreme court ultimately declined to vacate an arbitration decision stating that a law enforcement officer who was terminated for untruthfulness and other acts of misconduct could return to duty.
     The legislature intends to amend state law to include an "explicit, well-defined, and dominant public policy" requiring that law enforcement officers be honest when acting in their official capacity, so that criminal prosecutions are not jeopardized and public confidence in law enforcement is not eroded. For this reason, the legislature intends to clarify that an arbitrator shall not overturn the decision of an employer to terminate a law enforcement officer for engaging in an act or acts of dishonesty established by clear, cogent, and convincing evidence.

Sec. 2   RCW 41.12.080 and 2007 c 218 s 13 are each amended to read as follows:
     (1) The tenure of everyone holding an office, place, position or employment under the provisions of this chapter shall be only during good behavior, and except as provided in subsection (2) of this section, any such person may be removed or discharged, suspended without pay, demoted, or reduced in rank, or deprived of vacation privileges or other special privileges for any of the following reasons:
     (((1))) (a) Incompetency, inefficiency or inattention to or dereliction of duty;
     (((2))) (b) Dishonesty, intemperance, immoral conduct, insubordination, discourteous treatment of the public, or a fellow employee, or any other act of omission or commission tending to injure the public service; or any other willful failure on the part of the employee to properly conduct himself or herself; or any willful violation of the provisions of this chapter or the rules and regulation to be adopted hereunder;
     (((3))) (c) Mental or physical unfitness for the position which the employee holds;
     (((4))) (d) Dishonest, disgraceful, immoral or prejudicial conduct;
     (((5))) (e) Drunkenness or use of intoxicating liquors, narcotics, or any other habit forming drug, liquid or preparation to such extent that the use thereof interferes with the efficiency or mental or physical fitness of the employee, or which precludes the employee from properly performing the function and duties of any position under civil service;
     (((6))) (f) Conviction of a felony, or a misdemeanor, involving moral turpitude;
     (((7))) (g) Any other act or failure to act which in the judgment of the civil service commissioners is sufficient to show the offender to be an unsuitable and unfit person to be employed in the public service.
     (2) In the event that an employer terminates a person holding an office, place, position, or employment under the provisions of this chapter for engaging in an act or acts of dishonesty, and an arbitrator finds that the employer established that the person engaged in the act or acts of dishonesty by clear, cogent, and convincing evidence, the termination: (a) Shall be deemed to be reasonably related to both the seriousness of the offense and the record of the employee; and (b) shall not be overturned by the arbitrator.

Sec. 3   RCW 41.14.110 and 1959 c 1 s 11 are each amended to read as follows:
     (1) The tenure of every person holding an office, place, position, or employment under the provisions of this chapter shall be only during good behavior, and except as provided in subsection (2) of this section, any such person may be removed or discharged, suspended without pay, demoted, or reduced in rank, or deprived of vacation privileges or other special privileges for any of the following reasons:
     (((1))) (a) Incompetency, inefficiency, or inattention to, or dereliction of duty;
     (((2))) (b) Dishonesty, intemperance, immoral conduct, insubordination, discourteous treatment of the public, or a fellow employee, or any other act of omission or commission tending to injure the public service; or any other wilful failure on the part of the employee to properly conduct himself; or any wilful violation of the provisions of this chapter or the rules and regulations to be adopted hereunder;
     (((3))) (c) Mental or physical unfitness for the position which the employee holds;
     (((4))) (d) Dishonest, disgraceful, or prejudicial conduct;
     (((5))) (e) Drunkenness or use of intoxicating liquors, narcotics, or any other habit forming drug, liquid, or preparation to such extent that the use thereof interferes with the efficiency or mental or physical fitness of the employee, or which precludes the employee from properly performing the function and duties of any position under civil service;
     (((6))) (f) Conviction of a felony, or a misdemeanor involving moral turpitude;
     (((7))) (g) Any other act or failure to act which in the judgment of the civil service commission is sufficient to show the offender to be an unsuitable and unfit person to be employed in the public service.
     (2) In the event that an employer terminates a person holding an office, place, position, or employment under the provisions of this chapter for engaging in an act or acts of dishonesty, and an arbitrator finds that the employer established that the person engaged in the act or acts of dishonesty by clear, cogent, and convincing evidence, the termination: (a) Shall be deemed to be reasonably related to both the seriousness of the offense and the record of the employee; and (b) shall not be overturned by the arbitrator.

Sec. 4   RCW 43.43.070 and 1984 c 141 s 2 are each amended to read as follows:
     (1) Discharge of any officer with probationary status and discharge, demotion, or suspension of any officer with nonprobationary status shall be only for cause, which shall be clearly stated in a written complaint, sworn to by the person preferring the charges, and served upon the officer complained of.
     (2) Discharge of any officer for engaging in an act or acts of dishonesty established by clear, cogent, and convincing evidence shall be deemed to satisfy the "reasonableness and lawfulness" standard set forth in RCW 43.43.100.
     (3) Upon being ((so)) served with a written complaint, any such officer shall be entitled to a public hearing before a trial board consisting of two Washington state patrol officers of the rank of captain, and one officer of equal rank with the officer complained of, who shall be selected by the chief of the Washington state patrol by lot from the roster of the patrol. In the case of complaint by an officer, such officer shall not be a member of the trial board.

NEW SECTION.  Sec. 5   A new section is added to chapter 43.101 RCW to read as follows:
     In the event that an employer terminates a person holding an office, place, position, or employment that requires a law enforcement certification under this chapter for engaging in an act or acts of dishonesty, and an arbitrator finds that the employer established that the person engaged in the act or acts of dishonesty by clear, cogent, and convincing evidence, the termination: (1) Shall be deemed to be reasonably related to both the seriousness of the offense and the record of the employee; and (2) shall not be overturned by the arbitrator.

NEW SECTION.  Sec. 6   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.