S-1370

AN ACT Relating to certification of peace officers; amending RCW 43.101.010; adding new sections to chapter 43.101 RCW; and providing an effective date.

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

Sec. 1. RCW 43.101.010 and 1981 c 132 s 2 are each amended to read as follows:

When used in this chapter:

(1) The term "commission" means the Washington state criminal justice training commission.

(2) The term "boards" means the education and training standards boards, the establishment of which are authorized by this chapter.

(3) The term "criminal justice personnel" means any person who serves in a county, city, state, or port commission agency engaged in crime prevention, crime reduction, or enforcement of the criminal law.

(4) The term "law enforcement personnel" means any public employee or volunteer having as a primary function the enforcement of criminal laws in general or any employee or volunteer of, or any individual commissioned by, any municipal, county, state, or combination thereof, agency having as its primary function the enforcement of criminal laws in general as distinguished from an agency possessing peace officer powers, the primary function of which is the implementation of specialized subject matter areas. For the purposes of this subsection "primary function" means that function to which the greater allocation of resources is made.

(5) The term "correctional personnel" means any employee or volunteer who by state, county, municipal, or combination thereof, statute has the responsibility for the confinement, care, management, training, treatment, education, supervision, or counseling of those individuals whose civil rights have been limited in some way by legal sanction.

(6) A peace officer is "convicted" at the time a plea of guilty has been accepted, or a verdict of guilty or finding of guilt has been filed, notwithstanding the pendency of any future proceedings, including but not limited to sentencing, posttrial or postfact-finding motions and appeals. "Conviction" includes a deferral of sentence and also includes the equivalent disposition by a court in a jurisdiction other than the state of Washington.

(7) "Discharged for disqualifying misconduct" means terminated from employment for: (a) Conviction of (i) any crime committed under color of authority as a peace officer, (ii) any crime involving dishonesty or false statement within the meaning of Evidence Rule 609(a), (iii) the unlawful use or possession of a controlled substance, or (iv) any other crime the conviction of which disqualifies a Washington citizen from the legal right to possess a firearm under state or federal law; (b) conduct that would constitute any of the crimes addressed in (a) of this subsection; or (c) knowingly making materially false statements during disciplinary investigations, where the false statements are the sole basis for the termination.

(8) A peace officer is "discharged for disqualifying misconduct" within the meaning of subsection (7) of this section under the ordinary meaning of the term and when the totality of the circumstances support a finding that the officer resigned in anticipation of discipline, whether or not the misconduct was discovered at the time of resignation, and when such discipline, if carried forward, would more likely than not have led to discharge for disqualifying misconduct within the meaning of subsection (7) of this section.

(9) When used in context of proceedings referred to in this chapter, "final" means that the peace officer has exhausted all available civil service appeals, collective bargaining remedies, and all other such direct administrative appeals, and the officer has not been reinstated as the result of the action. Finality is not affected by the pendency or availability of state or federal administrative or court actions for discrimination, or by the pendency or availability of any remedies other than direct civil service and collective bargaining remedies.

(10) "Peace officer" means any law enforcement personnel subject to the basic law enforcement training requirement of RCW 43.101.200 and any other requirements of that section, notwithstanding any waiver or exemption granted by the commission, and notwithstanding the statutory exemption based on date of initial hire under RCW 43.101.200. Commissioned officers of the Washington state patrol, whether they have been or may be exempted by rule of the commission from the basic training requirement of RCW 43.101.200, are included as peace officers for purposes of this chapter. Fish and wildlife officers with enforcement powers for all criminal laws under RCW 77.12.055 are peace officers for purposes of this chapter.

NEW SECTION. Sec. 2. (1) As a condition of continuing employment as peace officers, all Washington peace officers: (a) Shall timely obtain certification as peace officers, or timely obtain certification for exemption therefrom, by meeting all requirements of RCW 43.101.200, as that section is administered under the rules of the commission, as well by meeting any additional requirements under this chapter; and (b) shall maintain the basic certification as peace officers under this chapter. The commission shall certify peace officers who have satisfied, or have been exempted by statute or by rule from, the basic training requirements of RCW 43.101.200 on or before the effective date of this section. Thereafter, the commission may revoke certification pursuant to this chapter.

(2) The commission shall allow a peace officer to retain status as a certified peace officer as long as the officer: (a) Timely meets the basic law enforcement training requirements, or is exempted therefrom, in whole or in part, under RCW 43.101.200 or under rule of the commission; (b) meets or is exempted from any other requirements under this chapter as administered under the rules adopted by the commission; (c) is not denied certification by the commission under this chapter; and (d) has not had certification revoked by the commission.

(3) As a prerequisite to certification, as well as a prerequisite to pursuit of a hearing under section 9 of this act, a peace officer must, on a form devised or adopted by the commission, authorize the release to the commission of his or her personnel files, termination papers, criminal investigation files, or other files, papers, or information that are directly related to a certification matter or decertification matter before the commission.

NEW SECTION. Sec. 3. Upon request by a peace officer's employer or on its own initiative, the commission may deny or revoke certification of any peace officer, after written notice and hearing, if a hearing is timely requested by the peace officer under section 9 of this act, based upon a finding of one or more of the following conditions:

(1) The peace officer has failed to timely meet all requirements for obtaining a certificate of basic law enforcement training, a certificate of basic law enforcement training equivalency, or a certificate of exemption from the training;

(2) The peace officer has knowingly falsified or omitted material information on an application for training or certification to the commission;

(3) The peace officer has been convicted at any time of a felony offense under the laws of this state or has been convicted of a federal or out-of-state offense comparable to a felony under the laws of this state; except that if a certified peace officer was convicted of a felony before being employed as a peace officer, and the circumstances of the prior felony conviction were fully disclosed to his or her employer before being hired, the commission may revoke certification only with the agreement of the employing law enforcement agency;

(4) The peace officer has been discharged for disqualifying misconduct, the discharge is final, and some or all of the acts or omissions forming the basis for the discharge proceedings occurred on or after the effective date of this section;

(5) The peace officer's certificate was previously issued by administrative error on the part of the commission; or

(6) The peace officer has interfered with an investigation or action for denial or revocation of certificate by: (a) Knowingly making a materially false statement to the commission; or (b) in any matter under investigation by or otherwise before the commission, tampering with evidence or tampering with or intimidating any witness.

NEW SECTION. Sec. 4. (1) A person denied a certification based upon dismissal or withdrawal from a basic law enforcement academy for any reason not also involving discharge for disqualifying misconduct is eligible for readmission and certification upon meeting standards established in rules of the commission, which rules may provide for probationary terms on readmission.

(2) A person whose certification is denied or revoked based upon prior administrative error of issuance, failure to cooperate, or interference with an investigation is eligible for certification upon meeting standards established in rules of the commission, rules which may provide for a probationary period of certification in the event of reinstatement of eligibility.

(3) A person whose certification is denied or revoked based upon a felony criminal conviction is not eligible for certification at any time.

(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 the revocation or denial, petition the commission for reinstatement of the certificate or for eligibility for reinstatement. The commission shall hold a hearing on the petition to consider reinstatement, and the commission may allow reinstatement based upon standards established in rules of the commission. If the certificate is reinstated or eligibility for certification is determined, the commission may establish a probationary period of certification.

(5) A peace officer whose certification is revoked based solely upon a criminal conviction may petition the commission for reinstatement immediately upon a final judicial reversal of the conviction. The commission shall hold a hearing on request to consider reinstatement, and the commission may allow reinstatement based on standards established in rules of the commission. If the certificate is reinstated or if eligibility for certification is determined, the commission may establish a probationary period of certification.

NEW SECTION. Sec. 5. A peace officer's certification lapses automatically when there is a break of more than twenty-four consecutive months in the officer's service as a full-time law enforcement officer. A break in full-time law enforcement service which is due solely to the pendency of direct review or appeal from a disciplinary discharge, or to the pendency of a work-related injury, does not cause a lapse in certification. The officer may petition the commission for reinstatement of certification. Upon receipt of a petition for reinstatement of a lapsed certificate, the commission shall determine under this chapter and any applicable rules of the commission if the peace officer's certification status is to be reinstated, and the commission shall also determine any requirements which the officer must meet for reinstatement. The commission may adopt rules establishing requirements for reinstatement.

NEW SECTION. Sec. 6. Upon termination of a peace officer for any reason, including resignation, the agency of termination shall, within fifteen days of the termination, notify the commission on a personnel action report form provided by the commission. The agency of termination shall, upon request of the commission, provide such additional documentation or information as the commission deems necessary to determine whether the termination provides grounds for revocation under section 3 of this act. The commission shall maintain these notices in a permanent file, subject to section 12 of this act.

NEW SECTION. Sec. 7. In addition to its other powers granted under this chapter, the commission has authority and power to:

(1) Adopt, amend, or repeal rules as necessary to carry out this chapter;

(2) Issue subpoenas and administer oaths in connection with investigations, hearings, or other proceedings held under this chapter;

(3) Take or cause to be taken depositions and other discovery procedures as needed in investigations, hearings, and other proceedings held under this chapter;

(4) Appoint members of a hearings board as provided under section 10 of this act;

(5) Enter into contracts for professional services determined by the commission to be necessary for adequate enforcement of this chapter;

(6) Grant, deny, or revoke certification of peace officers under the provisions of this chapter;

(7) Designate individuals authorized to sign subpoenas and statements of charges under the provisions of this chapter; and

(8) Employ such investigative, administrative, and clerical staff as necessary for the enforcement of this chapter.

NEW SECTION. Sec. 8. A law enforcement officer or duly authorized representative of a law enforcement agency may submit a written complaint to the commission charging that a peace officer's certificate should be denied or revoked, and specifying the grounds for the charge. Filing a complaint does not make a complainant a party to the commission's action. The commission has sole discretion whether to investigate a complaint, and the commission has sole discretion whether to investigate matters relating to certification, denial of certification, or revocation of certification on any other basis, without restriction as to the source or the existence of a complaint. A person who files a complaint in good faith under this section is immune from suit or any civil action related to the filing or the contents of the complaint.

NEW SECTION. Sec. 9. (1) If the commission determines, upon investigation, that there is probable cause to believe that a peace officer's certification should be denied or revoked under section 3 of this act, the commission must prepare and serve upon the officer a statement of charges. Service on the officer must be by mail or by personal service on the officer. Notice of the charges must also be mailed to or otherwise served upon the officer's agency of termination and any current law enforcement agency employer. The statement of charges must be accompanied by a notice that to receive a hearing on the denial or revocation, the officer must, within sixty days of communication of the statement of charges, request a hearing before the hearings board appointed under section 10 of this act. Failure of the officer to request a hearing within the sixty-day period constitutes a default, whereupon the commission may enter an order under RCW 34.05.440.

(2) If a hearing is requested, the date of the hearing must be scheduled not earlier than ninety days nor later than one hundred eighty days after communication of the statement of charges to the officer; the one hundred eighty day period may be extended on mutual agreement of the parties or for good cause. The commission shall give written notice of hearing at least twenty days prior to the hearing, specifying the time, date, and place of hearing.

NEW SECTION. Sec. 10. (1) The procedures governing adjudicative proceedings before agencies under chapter 34.05 RCW, the administrative procedure act, govern hearings before the commission and govern all other actions before the commission unless otherwise provided in this chapter. The standard of proof in actions before the commission is clear, cogent, and convincing evidence.

(2) On all appeals brought under section 9 of this act, a five-member hearings panel shall both hear the case and make the commission's final administrative decision. Members of the commission or the board on law enforcement training standards and education may but need not be appointed to the hearings panels. The commission shall appoint as follows two or more panels to hear appeals from decertification actions:

(a) When an appeal is filed in relation to decertification of a Washington peace officer who is not a peace officer of the Washington state patrol, the commission shall appoint to the panel: (i) One police chief; (ii) one sheriff; (iii) two peace officers who are at or below the level of first line supervisor, who are from city or county law enforcement agencies, and who have at least ten years' experience as peace officers; and (iv) one person who is not currently a peace officer and who represents a community college or four-year college or university.

(b) When an appeal is filed in relation to decertification of a peace officer of the Washington state patrol, the commission shall appoint to the panel: (i) Either one police chief or one sheriff; (ii) one administrator of the state patrol; (iii) one peace officer who is at or below the level of first line supervisor, who is from a city or county law enforcement agency, and who has at least ten years' experience as a peace officer; (iv) one state patrol officer who is at or below the level of first line supervisor, and who has at least ten years' experience as a peace officer; and (v) one person who is not currently a peace officer and who represents a community college or four-year college or university.

(c) Persons appointed to hearings panels by the commission shall, in relation to any decertification matter on which they sit, have the powers, duties, and immunities, and are entitled to the emoluments, including travel expenses in accordance with RCW 43.03.050 and 43.03.060, of regular commission members.

(3) Where the charge upon which revocation or denial is based is that a peace officer was "discharged for disqualifying misconduct," and the discharge is "final," within the meaning of section 3(4) of this act, and the officer received a civil service hearing or arbitration hearing culminating in an affirming decision following separation from service by the employer, the hearings panel may revoke or deny certification if the hearings panel determines that the discharge occurred and was based on disqualifying misconduct; the hearings panel need not redetermine the underlying facts but may make this determination based solely on review of the records and decision relating to the employment separation proceeding. However, the hearings panel may, in its discretion, consider additional evidence to determine whether such a discharge occurred and was based on such disqualifying misconduct. The hearings panel shall, upon written request by the subject peace officer, allow the peace officer to present additional evidence of extenuating circumstances.

Where the charge upon which revocation or denial of certification is based is that a peace officer "has been convicted at any time of a felony offense" within the meaning of section 3(3) of this act, the hearings panel shall revoke or deny certification if it determines that the peace officer was convicted of a felony. The hearings panel need not redetermine the underlying facts but may make this determination based solely on review of the records and decision relating to the criminal proceeding. However, the hearings panel shall, upon the panel's determination of relevancy, consider additional evidence to determine whether the peace officer was convicted of a felony.

Where the charge upon which revocation or denial is based is under section 3(1), (2), (5), or (6) of this act, the hearings panel shall determine the underlying facts relating to the charge upon which revocation or denial of certification is based.

(4) The commission's final administrative decision is subject to judicial review under RCW 34.05.510 through 34.05.598.

NEW SECTION. Sec. 11. The commission, its boards, and individuals acting on behalf of the commission and its boards are immune from suit in any civil or criminal action contesting or based upon proceedings or other official acts performed in the course of their duties in the administration and enforcement of this chapter.

NEW SECTION. Sec. 12. (1) Except as provided under subsection (2) of this section, the following records of the commission are confidential and exempt from public disclosure: (a) The contents of personnel action reports filed under section 6 of this act; (b) all files, papers, and other information obtained by the commission pursuant to section 2(3) of this act; and (c) all investigative files of the commission compiled in carrying out the responsibilities of the commission under this chapter. Such records are not subject to public disclosure, subpoena, or discovery proceedings in any civil action, except as provided in subsection (5) of this section.

(2) Records which are otherwise confidential and exempt under subsection (1) of this section may be reviewed and copied: (a) By the officer involved or the officer's counsel or authorized representative, who may review the officer's file and may submit any additional exculpatory or explanatory evidence, statements, or other information, any of which must be included in the file; (b) by a duly authorized representative of (i) the agency of termination, or (ii) a current employing law enforcement agency, which may review and copy its employee-officer's file; or (c) by a representative of or investigator for the commission.

(3) Records which are otherwise confidential and exempt under subsection (1) of this section may also be inspected at the offices of the commission by a duly authorized representative of a law enforcement agency considering an application for employment by a person who is the subject of a record. A copy of records which are otherwise confidential and exempt under subsection (1) of this section may later be obtained by an agency after it hires the applicant. In all other cases under this subsection, the agency may not obtain a copy of the record.

(4) Upon a determination that a complaint is without merit, that a personnel action report filed under section 6 of this act does not merit action by the commission, or that a matter otherwise investigated by the commission does not merit action, the commission shall purge records addressed in subsection (1) of this section.

(5) The hearings, but not the deliberations, of the hearings board are open to the public. The transcripts, admitted evidence, and written decisions of the hearings board on behalf of the commission are not confidential or exempt from public disclosure, and are subject to subpoena and discovery proceedings in civil actions.

(6) Every individual, legal entity, and agency of federal, state, or local government is immune from civil liability, whether direct or derivative, for providing information to the commission in good faith.

NEW SECTION. Sec. 13. Sections 2 through 12 and 14 of this act are each added to chapter 43.101 RCW.

NEW SECTION. Sec. 14. This act takes effect January 1, 2002.