H-1673

AN ACT Relating to a bill of rights for peace officers; reenacting and amending RCW 42.17.310; adding a new chapter to Title 41 RCW; providing an effective date; and declaring an emergency.

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

NEW SECTION. Sec. 1. The legislature finds that it is important for law enforcement agencies to understand and properly implement disciplinary actions. The legislature recognizes that law enforcement officers have a right to a process within their agency that affords the protection of state law and labor regulations. At the same time the legislature recognizes the rights of the citizens to express their concerns regarding the conduct of police officers and the responsibility of law enforcement management to fully investigate those concerns, while protecting the rights of the officer during the investigative process. Consequently, this chapter establishes the mechanism necessary to enable all agencies and officers to properly understand and implement labor law policies. It is not the intent of this chapter to protect criminal activity.

NEW SECTION. Sec. 2. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) "Peace officer" means a duly appointed city, port district, public airport, county, or state law enforcement officer.

(2) "Internal investigation" means an investigation into the conduct of a police officer where the employer, or the employer's agent, either knows or reasonably should know that the conduct, if proven, could lead to the suspension, demotion, or discharge of the subject employee. "Internal investigation" shall not mean fitness-for-duty examinations performed by health care professionals, so long as no communications between the evaluated peace officer and the health care professional related to an event or circumstance that could reasonably lead to discipline are disclosed by the health care professional to the employer.

(3) "Complaint" means an allegation by either a citizen or another public employee that the subject employee has engaged in misconduct.

(4) "Criminal investigation" means an investigation the exclusive purpose of which is to determine whether criminal charges should be filed against the officer.

(5) "Union representative" means a business agent, attorney, shop steward, or other representative authorized to engage in such activity by the employee's exclusive bargaining representative.

NEW SECTION. Sec. 3. (1) No later than December 31, 1997, the criminal justice training commission, in conjunction with the Washington association of sheriffs and police chiefs and the Washington state council of police officers, shall implement a labor law training program. The curriculum shall include, but not be limited to:

(a) Federal and state case law regarding due process;

(b) Civil service, state labor law, and contracts;

(d) Polygraph requirements;

(e) Retaining and expunging personnel files;

(f) Providing adequate and reasonable notice;

(g) Responding to threats, promises, and rewards; and

(h) Restrictions on recording and publishing officer statements.

(2) Beginning January 1, 1998, the criminal justice training commission shall incorporate the labor law training program into the basic training course. Furthermore, the labor law training program must be incorporated into the curriculum of supervisory, middle management, and executive level training.

(3) The commission shall develop a labor law training guide available to all law enforcement personnel.

(4) The Washington association of sheriffs and police chiefs shall require all law enforcement agencies seeking accreditation under the Washington association of sheriffs and police chiefs accreditation program to implement disciplinary and grievance procedures mandated by state and federal law.

NEW SECTION. Sec. 4. (1) This section shall not apply to criminal investigations.

(2) A peace officer who becomes the subject of an internal investigation must be advised, in writing, before questioning:

(a) Whether he or she is suspected of conduct that could be grounds for termination, suspension, or other disciplinary actions involving an economic sanction; and

(b) Whether he or she is a witness or a suspect. If the peace officer is a suspect, he or she must be apprised in writing of the allegations of such complaints before the interview commences.

(3) Prior to any questioning concerning a complaint, the peace officer must be advised of his or her right to representation and afforded the opportunity and the facilities to contact and consult privately with an attorney of his or her own choosing. Counsel may be present during the interrogation, but may not participate in the interrogation except to advise the peace officer. Additionally, a peace officer must be advised of his or her right to, and allowed, labor representation to the extent permitted by chapter 41.56 RCW. The subject officer may elect to have private counsel or his or her union representative, but not both, present during the interview.

(4) An internal investigation interview must be recorded mechanically. There can be no germane "off the record" questions. Upon request, the peace officer must be provided an exact copy of any written statement he or she has signed, or of a verbatim transcript of his or her interview if one is created. The employer shall maintain mechanical recordings made pursuant to this subsection for a minimum period of three years.

(5) Internal investigation interviews must be completed within a reasonable time and the peace officer must be afforded such intermissions as he or she shall reasonably request for consultation with his or her attorney or labor representative, to attend to personal necessities, meals, telephone calls, and rest periods.

(6) Internal investigation interviews must be limited in scope to activities, circumstances, or events which pertain to a peace officer's conduct or fitness to hold office.

(7) The peace officer may not be threatened with dismissal or other disciplinary punishment as a guise to attempt to obtain his or her resignation, nor may he or she be subject to abusive or offensive language or intimidation in any other manner. No promises or rewards may be made as an inducement for the accused officer to answer questions. Nothing in this section prevents an employer from offering an accused employee the option of resigning after the internal investigation is complete and the employer has made a preliminary decision regarding discipline.

(8) Peace officers are conclusively presumed to be under the direct order of their employer to answer all questions asked of the officer during an internal investigation. The employer may not offer a peace officer the opportunity to take a polygraph test without advising that peace officer that his or her refusal to take such a test may not be considered as evidence in any subsequent judicial or administrative proceeding without the peace officer's consent. No polygraph evidence of any kind will be admissible in disciplinary proceedings except by stipulation of the parties.

NEW SECTION. Sec. 5. There shall be no common law immunity for defamatory statements contained in complaints against peace officers.

NEW SECTION. Sec. 6. (1) By July 31, 2000, all public entities that employ peace officers shall have within the terms of their collective bargaining agreement and include within the rules of their civil service commission a peace officer's bill of rights that provides, at a minimum, for the procedural protections embodied in section 4 of this act.

(2) After July 31, 2000, all public entities that are not required to have a civil service commission and which have no exclusive bargaining representative are governed by this chapter.

NEW SECTION. Sec. 7. Internal investigation files that do not result in specific findings of misconduct may not be considered a public record under state or local law. Witness statements of witness peace officers may not be considered a public record under state or local law. Nothing in this section may be construed so as to limit the compelled production of documents in an administrative or judicial proceeding where appropriate protective orders are available to prevent public disclosure of the documents. Peace officers may request that disciplinary records be expunged from personnel files after a minimum period of five years if there is no recurrence of similar misconduct for which the peace officer was disciplined during that period. Requests for expungement may not be unreasonably denied. Nothing in this section may be construed as requiring the employer to destroy employment records necessary to the employer's case if it is engaged in litigation related to that peace officer's employment at the time those records would otherwise be destroyed.

Sec. 8. RCW 42.17.310 and 1996 c 305 s 2, 1996 c 253 s 302, 1996 c 191 s 88, and 1996 c 80 s 1 are each reenacted and amended to read as follows:

(1) The following are exempt from public inspection and copying:

(a) Personal information in any files maintained for students in public schools, patients or clients of public institutions or public health agencies, or welfare recipients.

(b) Personal information in files maintained for employees, appointees, or elected officials of any public agency to the extent that disclosure would violate their right to privacy.

(c) Information required of any taxpayer in connection with the assessment or collection of any tax if the disclosure of the information to other persons would (i) be prohibited to such persons by RCW 82.32.330 or (ii) violate the taxpayer's right to privacy or result in unfair competitive disadvantage to the taxpayer.

(d) Specific intelligence information and specific investigative records compiled by investigative, law enforcement, and penology agencies, and state agencies vested with the responsibility to discipline members of any profession, the nondisclosure of which is essential to effective law enforcement or for the protection of any person's right to privacy.

(e) Information revealing the identity of persons who are witnesses to or victims of crime or who file complaints with investigative, law enforcement, or penology agencies, other than the public disclosure commission, if disclosure would endanger any person's life, physical safety, or property. If at the time a complaint is filed the complainant, victim or witness indicates a desire for disclosure or nondisclosure, such desire shall govern. However, all complaints filed with the public disclosure commission about any elected official or candidate for public office must be made in writing and signed by the complainant under oath.

(f) Test questions, scoring keys, and other examination data used to administer a license, employment, or academic examination.

(g) Except as provided by chapter 8.26 RCW, the contents of real estate appraisals, made for or by any agency relative to the acquisition or sale of property, until the project or prospective sale is abandoned or until such time as all of the property has been acquired or the property to which the sale appraisal relates is sold, but in no event shall disclosure be denied for more than three years after the appraisal.

(h) Valuable formulae, designs, drawings, and research data obtained by any agency within five years of the request for disclosure when disclosure would produce private gain and public loss.

(i) Preliminary drafts, notes, recommendations, and intra-agency memorandums in which opinions are expressed or policies formulated or recommended except that a specific record shall not be exempt when publicly cited by an agency in connection with any agency action.

(j) Records which are relevant to a controversy to which an agency is a party but which records would not be available to another party under the rules of pretrial discovery for causes pending in the superior courts.

(k) Records, maps, or other information identifying the location of archaeological sites in order to avoid the looting or depredation of such sites.

(l) Any library record, the primary purpose of which is to maintain control of library materials, or to gain access to information, which discloses or could be used to disclose the identity of a library user.

(m) Financial information supplied by or on behalf of a person, firm, or corporation for the purpose of qualifying to submit a bid or proposal for (i) a ferry system construction or repair contract as required by RCW 47.60.680 through 47.60.750 or (ii) highway construction or improvement as required by RCW 47.28.070.

(n) Railroad company contracts filed prior to July 28, 1991, with the utilities and transportation commission under RCW 81.34.070, except that the summaries of the contracts are open to public inspection and copying as otherwise provided by this chapter.

(o) Financial and commercial information and records supplied by private persons pertaining to export services provided pursuant to chapter 43.163 RCW and chapter 53.31 RCW, and by persons pertaining to export projects pursuant to RCW 43.23.035.

(p) Financial disclosures filed by private vocational schools under chapters 28B.85 and 28C.10 RCW.

(q) Records filed with the utilities and transportation commission or attorney general under RCW 80.04.095 that a court has determined are confidential under RCW 80.04.095.

(r) Financial and commercial information and records supplied by businesses or individuals during application for loans or program services provided by chapters 43.163, 43.160, 43.330, and 43.168 RCW, or during application for economic development loans or program services provided by any local agency.

(s) Membership lists or lists of members or owners of interests of units in timeshare projects, subdivisions, camping resorts, condominiums, land developments, or common-interest communities affiliated with such projects, regulated by the department of licensing, in the files or possession of the department.

(t) All applications for public employment, including the names of applicants, resumes, and other related materials submitted with respect to an applicant.

(u) The residential addresses and residential telephone numbers of employees or volunteers of a public agency which are held by the agency in personnel records, employment or volunteer rosters, or mailing lists of employees or volunteers.

(v) The residential addresses and residential telephone numbers of the customers of a public utility contained in the records or lists held by the public utility of which they are customers.

(w)(i) The federal social security number of individuals governed under chapter 18.130 RCW maintained in the files of the department of health, except this exemption does not apply to requests made directly to the department from federal, state, and local agencies of government, and national and state licensing, credentialing, investigatory, disciplinary, and examination organizations; (ii) the current residential address and current residential telephone number of a health care provider governed under chapter 18.130 RCW maintained in the files of the department, if the provider requests that this information be withheld from public inspection and copying, and provides to the department an accurate alternate or business address and business telephone number. On or after January 1, 1995, the current residential address and residential telephone number of a health care provider governed under RCW 18.130.140 maintained in the files of the department shall automatically be withheld from public inspection and copying unless the provider specifically requests the information be released, and except as provided for under RCW 42.17.260(9).

(x) Information obtained by the board of pharmacy as provided in RCW 69.45.090.

(y) Information obtained by the board of pharmacy or the department of health and its representatives as provided in RCW 69.41.044, 69.41.280, and 18.64.420.

(z) Financial information, business plans, examination reports, and any information produced or obtained in evaluating or examining a business and industrial development corporation organized or seeking certification under chapter 31.24 RCW.

(aa) Financial and commercial information supplied to the state investment board by any person when the information relates to the investment of public trust or retirement funds and when disclosure would result in loss to such funds or in private loss to the providers of this information.

(bb) Financial and valuable trade information under RCW 51.36.120.

(cc) Client records maintained by an agency that is a domestic violence program as defined in RCW 70.123.020 or 70.123.075 or a rape crisis center as defined in RCW 70.125.030.

(dd) Information that identifies a person who, while an agency employee: (i) Seeks advice, under an informal process established by the employing agency, in order to ascertain his or her rights in connection with a possible unfair practice under chapter 49.60 RCW against the person; and (ii) requests his or her identity or any identifying information not be disclosed.

(ee) Investigative records compiled by an employing agency conducting a current investigation of a possible unfair practice under chapter 49.60 RCW or of a possible violation of other federal, state, or local laws prohibiting discrimination in employment.

(ff) Business related information protected from public inspection and copying under RCW 15.86.110.

(gg) Financial, commercial, operations, and technical and research information and data submitted to or obtained by the clean Washington center in applications for, or delivery of, program services under chapter 70.95H RCW.

(hh) Information and documents created specifically for, and collected and maintained by a quality improvement committee pursuant to RCW 43.70.510, regardless of which agency is in possession of the information and documents.

(ii) Personal information in files maintained in a data base created under RCW 43.07.360.

(jj) Law enforcement internal investigation files that do not result in specific findings of misconduct as provided in section 7 of this act.

(kk) Witness statements by witness peace officers as provided in section 7 of this act.

(2) Except for information described in subsection (1)(c)(i) of this section and confidential income data exempted from public inspection pursuant to RCW 84.40.020, the exemptions of this section are inapplicable to the extent that information, the disclosure of which would violate personal privacy or vital governmental interests, can be deleted from the specific records sought. No exemption may be construed to permit the nondisclosure of statistical information not descriptive of any readily identifiable person or persons.

(3) Inspection or copying of any specific records exempt under the provisions of this section may be permitted if the superior court in the county in which the record is maintained finds, after a hearing with notice thereof to every person in interest and the agency, that the exemption of such records is clearly unnecessary to protect any individual's right of privacy or any vital governmental function.

(4) Agency responses refusing, in whole or in part, inspection of any public record shall include a statement of the specific exemption authorizing the withholding of the record (or part) and a brief explanation of how the exemption applies to the record withheld.

NEW SECTION. Sec. 9. 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.

NEW SECTION. Sec. 10. If this chapter conflicts with any other statute, ordinance, rule, or regulation of any public employer, the provisions of this chapter prevail.

NEW SECTION. Sec. 11. Section 7 of this act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect July 1, 1997.

NEW SECTION. Sec. 12. Sections 1 through 7, 9, and 10 of this act constitute a new chapter in Title 41 RCW.