SSB 1171 (LSB 1913XC (3) 88)

SENATE FILE _____ 

BY  (PROPOSED COMMITTEE ON JUDICIARY BILL BY CHAIRPERSON ZAUN)

A BILL FOR

An Act relating to the peace officer, public safety, and emergency personnel bill of rights, and providing an immediate effective date.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 80F.1, subsection 1, paragraph a, Code 2019, is amended to read as follows:
   a.  “Complaint” means a formal written allegation signed sworn by the complainant or a written statement by an officer receiving an oral complaint supported by a sworn affidavit stating the complainant’s allegation.
    Sec. 2.  Section 80F.1, subsections 3, 5, 6, 7, 8, 9, 11, 13, and 18, Code 2019, are amended to read as follows:
   3.  a.  A formal administrative investigation of an officer shall be commenced without delay within one hundred eighty days from the date of the incident giving rise to the allegation against the officer and shall be completed without delay in a reasonable period of time and an not to exceed one hundred eighty days from the date of the complaint unless the officer signs a written waiver tolling the period of time for a specific period. 
   b.  Upon initiating a formal administrative investigation of an officer, the investigating agency shall promptly serve the officer under investigation with written notice of the complaint, shall inform the officer of the officer’s right to counsel, and shall provide the officer with a copy of the peace officer bill of rights. The notice shall include the names of all of the complainants, the alleged date of the occurrence giving rise to the complaint, a summary of the allegations against the officer, and the name and rank or title of the investigator in charge of the formal administrative investigation. The investigator shall not preside over any hearing or make the decision in any punitive or disciplinary action taken against the officer.
   c.  The officer and the officer’s legal counsel, designated union representative, and designated employee representative shall be immediately notified in writing of the results of the investigation when the investigation is completed unless otherwise specified by the officer.  If the act, omission, or other allegation is also the subject of a criminal investigation or criminal proceeding, the time during which the criminal investigation or criminal proceeding is pending shall toll the one-hundred-eighty-day period to complete the investigation under paragraph “a”.
   5.  An officer who is the subject of a complaint and the officer’s legal counsel, shall at a minimum, be provided a written summary or copy of the complaint and a copy of any policy, procedure, guideline, or order that the officer is alleged to have violated within a reasonable period of time prior to an interview, but not less than seventy-two hours in advance of the interview.  Upon written request of the officer or the officer’s legal counsel, the employing agency shall provide to the officer or the officer’s legal counsel a complete copy of any statements, documents, incident reports, video or audio recordings, and photographs from the incident giving rise to the complaint without unnecessary delay prior to an interview of the officer and allowing at least seventy-two hours for review before the interview. If a collective bargaining agreement applies, the complaint or written summary, a copy of any policy, procedure, guideline, or order that the officer is alleged to have violated, any statements, documents, incident reports, video or audio recordings, and photographs from the incident giving rise to the complaint shall be provided pursuant to the procedures established under the collective bargaining agreement. If the complaint alleges domestic abuse, sexual abuse, or sexual harassment, an officer, the officer’s counsel, or union or designated employee representative shall not receive more than a written summary of the complaint.
   6.  An officer being interviewed shall only be asked questions which are within the scope of the complaint and shall be advised by the interviewer that the officer shall answer the questions and be advised that the answers shall not be used against the officer in any subsequent criminal proceeding or investigation.
   7.  An interview of an officer who is the subject of the complaint and of any witness shall, at a minimum, be audio recorded, but the officer shall not be video recorded without the officer’s written consent.  The employing agency shall provide the officer or the officer’s legal counsel or employee representative a complete copy of any audio recording and any transcript made of any interview without charge and without undue delay.
   8.  The officer shall have the right to have legal counsel present, at the officer’s expense, during the interview of the officer, during hearings, or during other disciplinary proceedings related to the complaint.  The officer may request legal counsel at any time before or during an interview, hearing, or disciplinary proceeding. When an officer makes request for legal counsel, no questioning, interview, or hearing shall proceed until a reasonable amount of time and opportunity to obtain legal counsel are provided to the officer. In addition, the officer shall have the right, at the officer’s expense, to have a union representative or employee representative present during the interview, hearings, or other disciplinary proceedings, or, if not a member of a union, the officer shall have the right to have a designee present.  The union representative or employee representative shall not be required to disclose, nor be subject to any adverse employment action for refusing to disclose, any information received from the officer under investigation. The officer’s legal counsel, union representative, or employee representative shall not be compelled to disclose in any judicial proceeding, nor be subject to any investigation or punitive action for refusing to disclose, any information received from the officer under investigation or from an agent of the officer. The officer and the officer’s legal counsel may coordinate and communicate in confidence with the officer’s designated union representative or employee representative, and the communications are not subject to discovery.
   9.  If a formal administrative investigation results may result in the removal, discharge, or suspension, or other disciplinary action against an officer, copies of any witness statements and the complete investigative agency’s report shall be timely provided and at no charge to the officer or the officer’s legal counsel upon the request of the officer or legal counsel.
   11.  If an interview, hearing, or other disciplinary proceeding involving the officer who is the subject of a formal administrative investigation, an officer who is a witness in the investigation or other proceeding, or an employee representative of the accused officer, is conducted while an the officer is off duty or at a time that is outside of the officer’s regularly scheduled shift, the officer shall be compensated as provided by law, or as provided in the applicable collective bargaining agreement.  Volunteer officers shall be compensated by the employing agency for actual lost time from other work as a result of an interview or any proceeding related to an investigation.
   13.  a.  An officer shall have the right to bring a private cause of action and pursue civil remedies under the law including but not limited to money damages against a citizen arising from the filing of a false complaint against the officer.
   b.  An officer shall have the right to bring an expedited action in district court to seek equitable relief to enforce any provision of this chapter. An action under this paragraph shall be brought within thirty days after the officer knew or should have known of a violation of this chapter, but the failure to bring an action under this paragraph shall not bar an action under paragraph “c” of this subsection. The district court may grant any equitable relief to the officer, including but not limited to a temporary or permanent injunction, or an order staying investigatory or disciplinary proceedings.
   c.  In addition to the right granted pursuant to paragraph “b” of this subsection, an officer may seek judicial review of the final actions of the employing agency in accordance with the procedures applicable to review of decisions by the employing agency. The officer shall bring a suit under this paragraph within one hundred eighty days after a final agency decision unless otherwise extended by the district court upon a showing of good cause. The district court may award money damages, including front pay and back pay, and equitable relief to an officer upon a showing of a violation of the officer’s substantive or procedural rights under this chapter.
   18.  A municipality, county, or state agency employing an officer shall not publicly release the officer’s official photograph without the written permission of the officer or without a request to release pursuant to chapter 22.  An officer’s personal information, including home address, personal telephone number, personal email address, date of birth, social security number, and driver’s license number shall be confidential and shall be redacted from any record prior to the record’s release to the public by the employing agency. Nothing in this subsection prohibits the release of an officer’s photograph or unredacted personal information to the officer’s legal counsel, union representative, or designated employee representative upon the officer’s request.
    Sec. 3.  Section 80F.1, Code 2019, is amended by adding the following new subsections:
   NEW SUBSECTION.  18A.  a.  The employing agency shall promptly provide an officer and the officer’s legal counsel with a formal written statement of the administrative charges and specifications of alleged fact resulting from the formal administrative investigation and an opportunity to be heard prior to deciding upon or imposing any punitive or disciplinary action against the officer.
   b.  At hearing, the burden of proof to sustain administrative charges and specifications against an officer shall be by a preponderance of the evidence.
   c.  Admissions, confessions, statements against interest, or other evidence obtained during the course of the investigation and interview not conducted in accordance with this section shall not be used or considered in any disciplinary proceeding or civil action against the officer, and shall not form the basis for any adverse employment action against the officer.
   NEW SUBSECTION.  18B.  The employing agency shall keep an officer’s statement, recordings, or transcripts of any interviews or disciplinary proceedings, and any complaints made against an officer confidential unless otherwise provided in this section.
   NEW SUBSECTION.  18C.  A written reprimand shall be removed from an officer’s personnel file no later than one year from the date of the reprimand unless the officer is disciplined during the one-year period under the same policy for substantially similar conduct. A written reprimand that has been removed from an officer’s personnel file shall not be used to form the basis for or to enhance any disciplinary action against the officer. Except as otherwise provided in subsection 21, nothing in this section prohibits the employing agency from removing a written reprimand from an officer’s personnel file before the one-year period has expired.
   NEW SUBSECTION.  20.  An employing agency shall provide an officer with a written copy of any document that recommends removal, discharge, suspension, or other disciplinary action be taken against the officer prior to placing the document in the officer’s personnel file. An officer shall have thirty days from the date that the officer is provided a copy of any document that recommends removal, discharge, suspension, or other disciplinary action be taken against the officer to submit a written response to the officer’s employing agency. The written response shall be attached to and shall accompany the adverse document. This subsection does not apply to a training report or to an evaluation.
   NEW SUBSECTION.  21.  A complaint against an officer that is pending, withdrawn, or determined to be unfounded or not sustained, records of a formal administrative investigation, and a written reprimand that has been removed from an officer’s personnel file, shall not be subject to discovery in any civil action against the officer except for actions brought pursuant to chapter 216.
   NEW SUBSECTION.  22.  If at least thirty days have passed since the final disposition, upon written request by an officer, the record of a complaint made against the officer shall be expunged from any file held by the employing agency if the investigation exonerated the officer of allegations in the complaint, the investigation determined that the allegations were withdrawn, not sustained or unfounded, or if the officer is exonerated in any administrative proceeding, appeal, other disciplinary proceeding, or judicial review.
   NEW SUBSECTION.  23.  An agency employing full-time or part-time officers shall provide annual training to any officer or supervisor who may perform or supervise an investigation under this section, and shall maintain documentation of any training related to this section.
   NEW SUBSECTION.  24.  An employing agency shall not prohibit secondary employment by an officer, but may adopt reasonable regulations that relate to secondary employment.
   NEW SUBSECTION.  25.  A locker, or other space for storage that may be assigned to an officer, shall not be searched without the officer being present, or without the officer’s consent, unless a valid search warrant has been obtained or the officer has been notified in advance that a search will be conducted. This section shall apply only to lockers or other spaces for storage that are owned or leased by the officer’s employing agency.
   NEW SUBSECTION.  26.  Upon request, the employing agency shall provide to the requesting officer or the officer’s legal counsel a copy of the officer’s personnel file and training records regardless of whether the officer is subject to a formal administrative investigation at the time of the request.
    Sec. 4.  EFFECTIVE DATE.  This Act, being deemed of immediate importance, takes effect upon enactment.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill makes changes to the peace officer, public safety, and emergency personnel bill of rights.
   The bill changes the definition of “complaint” to require that any formal written allegation must be sworn by the complainant or be a written statement by an officer who has received an oral complaint that is supported by a sworn affidavit.
   The bill provides that a formal administrative investigation of an officer must be commenced within 180 days from the date of the incident giving rise to the allegation against the officer. The investigation is to be completed within 180 days from the date of the complaint, unless the officer signs a written waiver tolling the period of time for a specific period. After initiating a formal administrative investigation of an officer, the investigating agency must promptly serve the officer under investigation with written notice of the complaint, inform the officer of the officer’s right to counsel, and provide the officer with a copy of the peace officer bill of rights. The notice must include the names of all of the complainants, the alleged date of the occurrence giving rise to the complaint, a summary of the allegations against the officer, and the name and rank or title of the investigator in charge of the formal administrative investigation. The investigator must not preside over any hearing or make the decision in any punitive or disciplinary action taken against the officer.
   The bill provides that the officer and the officer’s legal counsel, designated union representative, and designated employee representative are to be immediately notified in writing of the results of the investigation when the investigation is completed unless otherwise specified by the officer. If the act, omission, or other allegation is also the subject of a criminal investigation or criminal proceeding, the 180-day period for completing the investigation is tolled while the criminal investigation or criminal proceeding is pending.
   The bill provides that an officer who is the subject of a complaint and the officer’s legal counsel are to be provided with a copy of the complaint and a copy of any policy, procedure, guideline, or order that the officer is alleged to have violated not less than 72 hours in advance of any interview. Upon written request, the employing agency is also required to provide to the officer or the officer’s legal counsel a complete copy of any statements, documents, incident reports, video or audio recordings, and photographs from the incident. If, however, the complaint alleges domestic abuse, sexual abuse, or sexual harassment, an officer, officer’s counsel, union, or designated employee representative will not receive a copy of the complaint but will receive a written summary of the complaint.
   The bill provides that an officer being interviewed can only be asked questions which are within the scope of the complaint. The officer is to be advised by the interviewer to answer the questions and that the answers cannot be used against the officer in any subsequent criminal proceeding or investigation. An interview of an officer who is the subject of the complaint and of any witness is required to be audio recorded. However, the officer shall not be video recorded without the officer’s written consent. The employing agency must provide the officer or the officer’s legal counsel or employee representative a complete copy of any audio recording and any transcript made of any interview without charge and without undue delay.
   The bill provides that an officer has the right to have legal counsel present, at the officer's expense, during the interview of the officer, hearings, or during other disciplinary proceedings related to the complaint, and the officer may request legal counsel at any time before or during an interview, hearing, or disciplinary proceeding. When an officer makes a request for legal counsel, no questioning, interview, or hearing can proceed until a reasonable amount of time and opportunity are provided to the officer to obtain legal counsel. In addition, the officer has the right, at the officer’s expense, to have a union representative, employee representative, or designee present during the interview, hearings, or other disciplinary proceedings. The union representative or employee representative shall not be required to disclose, nor be subject to any adverse employment action for refusing to disclose, any information received from the officer under investigation, and shall not be compelled to disclose in any judicial proceeding, nor be subject to any investigation or punitive action for refusing to disclose, any information received from the officer under investigation or from an agent of the officer. Communications between the officer, the officer’s legal counsel, and the officer’s designated union representative or employee representative are not subject to discovery.
   The bill provides that if a formal administrative investigation may result in the removal, discharge, suspension, or other disciplinary action against an officer, copies of any witness statements and the complete investigative agency’s report must be provided at no charge, upon request, to the officer or the officer’s legal counsel. If an interview, hearing, or other disciplinary proceeding involving the officer who is the subject of a formal administrative investigation, an officer who is a witness in the investigation or other proceeding, or an employee representative of the accused officer, is conducted while the officer is off duty, or at a time which is outside of the officer’s regularly scheduled shift, the officer is to be compensated. Volunteer officers are to be compensated by the employing agency for actual lost time from other work as a result of an interview or any proceeding related to an investigation.
   The bill provides that an officer has the right to bring a private cause of action and pursue civil remedies against a citizen arising from the filing of a false complaint against the officer. An officer must bring an expedited action in district court to seek equitable relief within 30 days after the officer knew or should have known of a violation of Code chapter 80F. The district court may grant any equitable relief, including a temporary or permanent injunction, or an order staying investigatory or disciplinary proceedings. Additionally, an officer may seek, within 180 days of a final agency decision, judicial review of the final actions of the employing agency in accordance with the terms of the administrative procedures governing the employing agency. The district court may award money damages, including front pay and back pay, and equitable relief to an officer upon a showing of a violation of the officer’s substantive or procedural rights.
   The bill requires that an officer’s personal information, including home address, personal telephone number, personal email address, date of birth, social security number, and driver’s license number be held confidential and be redacted from any record prior to the record’s release to the public by the employing agency.
   The bill requires the employing agency to provide an officer and the officer’s legal counsel with a formal written statement of the administrative charges and specifications of alleged fact from the formal administrative investigation and to provide an opportunity to be heard before imposing any punitive or disciplinary action against the officer. The burden of proof to sustain administrative charges and specifications against an officer at hearing is by a preponderance of the evidence. Admissions, confessions, statements against interest, or other evidence obtained during the investigation and interview not conducted in accordance with this Code section cannot be used or considered in any disciplinary proceeding or civil action against the officer, and cannot form the basis for adverse employment action against the officer. The employing agency must keep an officer’s statement, recordings, or transcripts of any interviews or disciplinary proceedings, and any complaints made against an officer confidential unless otherwise provided.
   The bill requires that a written reprimand be removed from an officer’s personnel file within one year from the date of the reprimand unless the officer is disciplined during the one-year period for substantially similar conduct. Except for actions brought pursuant to Code chapter 216 (civil rights commission), a written reprimand that has been removed from an officer’s personnel file cannot be used to form the basis for or to enhance any disciplinary action against the officer. An employing agency must provide an officer a written copy of any document that recommends removal, discharge, suspension, or other disciplinary action be taken against the officer, excluding a training report or an evaluation, prior to placing it in the officer’s personnel file. An officer has 30 days from the date that the officer is provided a copy of the documents to submit a written response to the officer’s employing agency. The written response will be attached to and accompany the adverse document. A complaint against an officer that is pending, withdrawn, or determined to be unfounded or not sustained, records of a formal administrative investigation, and a written reprimand removed from an officer’s personnel file, are not subject to discovery in any civil action against the officer except for actions brought pursuant to Code chapter 216. If at least 30 days have passed since the final disposition, upon written request by an officer, the record of a complaint made against the officer will be expunged from any file held by the employing agency if the investigation exonerated the officer of allegations in the complaint, the investigation determined that the allegations were withdrawn, not sustained or unfounded, or if the officer is exonerated in any administrative proceeding, appeal, other disciplinary proceeding, or judicial review.
   The bill requires that an agency employing full-time or part-time officers provide annual training to any officer or supervisor who may perform or supervise an investigation under this Code section, and maintain documentation of any training related to this Code section. An employing agency cannot prohibit secondary employment by an officer, but may adopt reasonable regulations related to secondary employment. A locker, or other space for storage that may be assigned to an officer, cannot be searched without the officer being present, or without the officer’s consent, unless a valid search warrant has been obtained or the officer has been notified in advance that a search will be conducted.
   The bill requires that, on request, the employing agency must provide to the officer or the officer’s legal counsel a copy of the officer’s personnel file and training records regardless of whether the officer is subject to a formal administrative investigation at the time of the request.
   The bill takes effect upon enactment.