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 or 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.
