Bill Text: AZ SB1235 | 2011 | Fiftieth Legislature 1st Regular | Engrossed
Bill Title: Law enforcement officers; disciplinary procedures
Spectrum: Bipartisan Bill
Status: (Passed) 2011-04-25 - Governor Signed [SB1235 Detail]
Download: Arizona-2011-SB1235-Engrossed.html
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House Engrossed Senate Bill |
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State of Arizona Senate Fiftieth Legislature First Regular Session 2011
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SENATE BILL 1235 |
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AN ACT
amending sections 38‑531, 38‑532, 38‑534 and 38‑1101, Arizona Revised Statutes; amending title 38, chapter 8, article 1, Arizona Revised Statutes, by adding section 38‑1105; relating to law enforcement officers.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 38-531, Arizona Revised Statutes, is amended to read:
38-531. Definitions
In this article, unless the context otherwise requires:
1. "Employee" means an officer or employee of this state or any of its departments, commissions, agencies or boards. Employee includes employees and officers of community college districts, school districts and counties of this state and law enforcement officers of a city or town but does not include officers or employees of a municipal corporation established for the purpose of reclamation and distribution of water and the generation of electricity.
2. "Former employee" means an employee who was dismissed.
3. "Law enforcement officer" has the same meaning prescribed in section 38‑1101.
3. 4. "Personnel action" means:
(a) Appointment.
(b) Promotion.
(c) Disciplinary or corrective action.
(d) Detail, transfer or reassignment.
(e) Suspension, demotion or dismissal.
(f) Reinstatement.
(g) Restoration.
(h) Reemployment.
(i) Performance evaluation.
(j) Decision concerning pay, benefits or awards.
(k) Elimination of the employee's position without a reduction in force by reason of lack of monies or work.
(l) Other significant change in duties or responsibilities which that is inconsistent with the employee's salary or grade level.
4. 5. "Public body" means the attorney general, the legislature, the governor, a federal, state or local law enforcement agency, the county attorney, the governing board of a community college district or school district, the board of supervisors of a county or an agency director.
5. 6. "Reprisal" means to take a personnel action the result of which is adverse to an employee.
Sec. 2. Section 38-532, Arizona Revised Statutes, is amended to read:
38-532. Prohibited personnel practice; violation; reinstatement; exceptions; civil penalty
A. It is a prohibited personnel practice for an employee who has control over personnel actions to take reprisal against an employee for a disclosure of information of a matter of public concern by the employee to a public body which that the employee reasonably believes evidences:
1. A violation of any law.
2. Mismanagement, a gross waste of monies or an abuse of authority.
B. The disclosure by an employee to a public body alleging a violation of law, mismanagement, gross waste of monies or abuse of authority shall be in writing and shall contain the following information:
1. The date of the disclosure.
2. The name of the employee making the disclosure.
3. The nature of the alleged violation of law, mismanagement, gross waste of monies or abuse of authority.
4. If possible, the date or range of dates on which the alleged violation of law, mismanagement, gross waste of monies or abuse of authority occurred.
C. An employee who knowingly commits a prohibited personnel practice shall be ordered by the state personnel board, a community college district governing board, a school district governing board, a city or town personnel board or any other appropriate independent personnel board established or authorized pursuant to section 38‑534 to pay a civil penalty of up to five thousand dollars to the state general fund, a county general fund, a community college district unrestricted general fund, or a school district maintenance and operation fund or a city or town general fund, whichever is appropriate. The employee who committed the prohibited personnel practice, not the governmental entity, shall pay the civil penalty. Upon On a finding that an employee committed a prohibited personnel practice, the employer shall take appropriate disciplinary action including dismissal.
D. An employee or former employee against whom a prohibited personnel practice is committed may recover attorney fees, costs, back pay, general and special damages and full reinstatement for any reprisal resulting from the prohibited personnel practice as determined by the court.
E. An employee does not commit a prohibited personnel practice if he takes reprisal against an employee if that employee discloses information in a manner prohibited by law or the materials or information are prescribed as confidential by law.
F. This section may not be used as a defense in a disciplinary action where the employee is being disciplined for cause pursuant to section 41‑770, except in a hearing on a complaint brought pursuant to this section by an employee or former employee who believes he has been the subject of a prohibited personnel practice as prescribed in this section as the result of a disclosure of information.
G. On request or at any time an employee alleges reprisal, an employer shall provide an employee who is subject to disciplinary or corrective action, suspension, demotion or dismissal with a copy of this section.
H. If an employee or former employee believes that a personnel action taken against him is the result of his disclosure of information under this section, he may make a complaint to an appropriate independent personnel board, if one is established or authorized pursuant to section 38‑534, or to a community college district governing board, or school district governing board or city or town council. If an independent personnel board has not been established or authorized, or if a school district governing board, or a community college district governing board or city or town council does not hear and decide personnel matters brought pursuant to this section, the employee or former employee may make a complaint to the state personnel board. A complaint made pursuant to this subsection shall be made within ten days of the effective date of the action taken against him. The state personnel board, a school district governing board, a community college district governing board, a city or town council or any other appropriate independent personnel board, shall, pursuant to the rules governing appeals under section 41‑785, make a determination concerning:
1. The validity of the complaint.
2. Whether a prohibited personnel practice was committed against the employee or former employee as a result of disclosure of information by the employee or former employee.
I. If the state personnel board, a community college district governing board, a school district governing board, a city or town council or any other appropriate independent personnel board established or authorized pursuant to section 38‑534 determines that a prohibited personnel practice was committed as a result of disclosure of information by the employee or former employee, it shall rescind the personnel action and order that all lost pay and benefits be returned to the employee or former employee. The employee, former employee, employee alleged to have committed a prohibited personnel practice pursuant to subsection A of this section or employer may appeal the decision of the state personnel board, a community college district governing board, a school district governing board, a city or town council or any other appropriate independent personnel board established or authorized pursuant to section 38‑534 to the superior court as provided in title 12, chapter 7, article 6. Notwithstanding section 12‑910, an appeal to the superior court under this subsection shall be tried de novo.
J. For purposes of a hearing by the state personnel board, a school district governing board, a community college district governing board, a city or town council or any other appropriate independent personnel board conducted under this section, the employee, former employee, employee alleged to have committed the prohibited personnel practice pursuant to subsection A of this section and employer may be represented by counsel. In addition, representation by counsel in such hearings shall meet any other requirements stipulated by the state personnel board, a school district governing board, a community college district governing board, a city or town council or any other appropriate independent personnel board or as required by law.
K. An employee or former employee may also seek injunctive relief as is otherwise available in civil actions.
L. This section shall not be construed to limit or extend the civil or criminal liability of an employee or former employee for any disclosure of information or to limit an employee's right to a separate pretermination hearing with the employee's employer, as provided by law.
M. An employee who knowingly makes a false accusation that a public officer or employee who has control over personnel actions has engaged in a violation of any law, mismanagement, a gross waste of monies or an abuse of authority is personally subject to a civil penalty of up to twenty‑five thousand dollars and dismissal from employment by the employer.
Sec. 3. Section 38-534, Arizona Revised Statutes, is amended to read:
38-534. Appropriate independent personnel boards
A. A community college district, county and school district, county and city or town may either:
1. Establish an appropriate independent personnel board to hear and decide personnel matters brought pursuant to section 38‑532.
2. Authorize an existing independent board to hear and decide personnel matters brought pursuant to section 38‑532.
B. Notwithstanding subsection A of this section, a school district governing board or a community college district governing board may hear and decide personnel matters brought pursuant to section 38‑532.
C. If a community college district, county or school district, county or city or town does not establish an appropriate independent personnel board to hear and decide personnel matters brought pursuant to section 38‑532, or does not authorize an existing independent board to hear and decide personnel matters brought pursuant to section 38‑532, or if a school district governing board or a community college district governing board does not hear and decide personnel matters brought pursuant to section 38‑532, complaints filed pursuant to this article shall be heard by the state personnel board.
Sec. 4. Section 38-1101, Arizona Revised Statutes, is amended to read:
38-1101. Law enforcement officers; probation officers; right to representation; right to evidence on appeal; change of hearing officer or administrative law judge; burden of proof; polygraph examinations; definitions
A. If an employer interviews a law enforcement officer or probation officer and the employer reasonably believes that the interview could result in dismissal, demotion or suspension or if the law enforcement officer or probation officer reasonably believes the investigation could result in a dismissal, demotion or suspension:
1. The law enforcement officer or probation officer may request to have a representative of the officer present at no cost to the employer during the interview. The law enforcement officer or probation officer shall select a representative who is available on reasonable notice so that the interview is not unreasonably delayed. The representative shall participate in the interview only as an observer. Unless agreed to by the employer, the representative shall be from the same agency and shall not be an attorney except that if a representative from the same agency is not reasonably available, with the employer's permission, the law enforcement officer's or probation officer's representative may be from the law enforcement officer's or probation officer's professional membership organization. The law enforcement officer or probation officer shall be permitted reasonable breaks of limited duration during any interview for telephonic or in person consultation with others, including an attorney, who are immediately available. An employer shall not discipline, retaliate against or threaten to retaliate against a law enforcement officer or probation officer for requesting that a representative be present or for acting as the representative of a law enforcement officer or probation officer pursuant to this paragraph.
2. Before the commencement of any interview described in this section, the employer shall provide the law enforcement officer or probation officer with a written notice informing the officer of the alleged facts that are the basis of the investigation, the specific nature of the investigation, the officer's status in the investigation, all known allegations of misconduct that are the reason for the interview and the officer's right to have a representative present at the interview. The notice shall include copies of all complaints that contain the alleged facts that are reasonably available, except for copies of complaints that involve matters pursuant to federal laws under the jurisdiction of the equal employment opportunity commission.
3. After an employer completes an investigation of a law enforcement officer or probation officer if the employer seeks disciplinary action at the request of the law enforcement officer or probation officer, the employer shall provide a basic summary of any discipline ordered against any other law enforcement officer or probation officer of generally similar rank and experience employed by the employer within the previous two years for the same or a similar violation. As an alternative, the employer may provide file copies of the relevant disciplinary cases. The employer shall not take final action and the employer shall not schedule the hearing until the basic summary or file copies are provided to the law enforcement officer or probation officer. This paragraph does not apply if court rule prohibits the release of file copies of disciplinary cases.
3. 4. The employer may require the law enforcement officer or probation officer to submit to a polygraph examination if the officer makes a statement to the employer during the investigation that differs from other information relating to the investigation that is known to the employer and reconciling that difference is necessary to complete the investigation. If a polygraph examination is administered pursuant to this paragraph, the employer or the person administering the polygraph examination shall make an audio recording of the complete polygraph procedure and provide a copy of the recording to the law enforcement officer or probation officer.
4. 5. The law enforcement officer or probation officer, at the conclusion of the interview, is entitled to a period of time to consult with the officer's representative and may make a statement not to exceed five minutes addressing specific facts or policies that are related to the interview.
B. Subsection A of this section does not require the employer to either:
1. Stop an interview to issue another notice for allegations based on information provided by the law enforcement officer or probation officer during the interview.
2. Disclose any fact to the law enforcement officer or probation officer or the law enforcement officer's or probation officer's representative that would impede the investigation.
C. Subsection A, paragraphs 1 and 2 of this section do not apply to an interview of a law enforcement officer or probation officer that is:
1. In the normal course of duty, counseling or instruction or an informal verbal admonishment by, or other routine or unplanned contact with, a supervisor or any other law enforcement officer or probation officer.
2. Preliminary questioning to determine the scope of the allegations or if an investigation is necessary.
3. Conducted in the course of a criminal investigation.
4. Conducted in the course of a polygraph examination.
D. In any appeal of a disciplinary action by a law enforcement officer or probation officer, the parties shall exchange copies of all relevant documents and a list of all witnesses pursuant to the following time periods and requirements:
1. Within three business days after the employer's receipt of a written request from the law enforcement officer or probation officer for a copy of the investigative file that is accompanied by a copy of the filed notice of appeal, the employer shall provide a complete copy of the investigative file as well as the names and home or work mailing addresses of all persons interviewed during the course of the investigation.
2. No later than five business days before the appeal hearing, or, if the appeal hearing is scheduled more than twenty days after the notice of appeal, no later than ten business days before the appeal hearing, the employer and the law enforcement officer or probation officer shall exchange copies of any documents that may be introduced at the hearing and that have not previously been disclosed.
3. No later than five business days before the appeal hearing, or, if the appeal hearing is scheduled more than twenty days after the notice of appeal, no later than ten business days before the appeal hearing, the employer and the law enforcement officer or probation officer shall exchange the names of all witnesses who may be called to testify. A witness may be interviewed at the discretion of the witness. The parties shall not interfere with any decision of a witness regarding whether to be interviewed. An employer shall not discipline, retaliate against or threaten to retaliate against any witness for agreeing to be interviewed or for testifying or providing evidence in the appeal.
E. It is unlawful for a person to disseminate information that is disclosed pursuant to subsection D of this section to any person other than the parties to the appeal and their lawful representatives for purposes of the appeal of the disciplinary action. This subsection does not prohibit the use of the information in the hearing or disclosure pursuant to title 39, chapter 1, article 2.
F. The employer or the law enforcement officer or probation officer may seek a determination by the hearing officer, administrative law judge or appeals board hearing the appeal regarding any evidence that the employer or the law enforcement officer or probation officer believes should not be disclosed pursuant to subsection D of this section because the risk of harm involved in disclosure outweighs any usefulness of the disclosure in the hearing. In determining whether evidence will be disclosed, the hearing officer, administrative law judge or appeals board may perform an in camera review of the evidence and may disclose the material subject to any restriction on the disclosure, including the closing of the hearing or the sealing of the records, that the hearing officer, administrative law judge or appeals board finds necessary under the circumstances.
G. In any appeal of a disciplinary action by a law enforcement officer or probation officer in which a single hearing officer or administrative law judge has been appointed to conduct the appeal hearing, the law enforcement officer or probation officer or the employer may request a change of hearing officer or administrative law judge. In cases before the office of administrative hearings or if the employer is a county, city or town with a population of two hundred fifty thousand or more persons or a city with a population of sixty‑five thousand or more persons, on the first request of a party, the request shall be granted. All other requests, including any subsequent requests in cases before the office of administrative hearings or if the employer is a county with a population of two hundred fifty thousand or more persons or a city with a population of sixty‑five thousand or more persons, on the first request of a party, the request shall be granted. A city or town with a population of less than sixty-five thousand persons or a county with a population of less than two hundred fifty thousand persons must provide for an alternate hearing officer by means of an interagency agreement with another city, town or county. If the law enforcement officer or probation officer is the party that requested the alternate hearing officer, the law enforcement officer or probation officer shall reimburse the city, town or county for one-half of any additional expenses incurred by the city, town or county in procuring the alternate hearing officer under the interagency agreement. If an alternate hearing officer is requested by means of an interagency agreement, the hearing officer shall provide to the law enforcement officer or probation officer or employer the option of continuing the hearing for an additional ten days. Any subsequent requests may be granted only on a showing that a fair and impartial hearing cannot be obtained due to the prejudice of the assigned hearing officer or administrative law judge. The supervisor or supervising body of the hearing officer or administrative law judge shall decide whether a showing of prejudice has been made.
H. A party who violates subsection A, paragraph 1, or subsection D or E of this section, unless the violation is harmless, shall not be permitted to use that evidence at the hearing, except on a showing of good cause. The hearing officer or administrative law judge, on a showing of good cause, may grant the opposing party a continuance, otherwise limit the use of the evidence or make such other order as may be appropriate.
I. The burden of proof in an appeal of a disciplinary action by a law enforcement officer or probation officer shall be on the employer.
J. Except where a statute or ordinance makes the administrative evidentiary hearing the final administrative determination, an employer or a person acting on behalf of an employer may amend, modify, reject or reverse a decision made by a hearing officer, administrative law judge or appeals board after a hearing where the law enforcement officer or probation officer and the employer have been equally allowed to call and examine witnesses, cross‑examine witnesses, provide documentary evidence and otherwise fully participate in the hearing if the decision was arbitrary or without reasonable justification and the employer or person acting on behalf of the employer states the reason for the amendment, modification, rejection or reversal.
K. An employer shall not include in that portion of the personnel file of a law enforcement officer or probation officer that is available for public inspection and copying any information about an investigation until the investigation is complete or the employer has discontinued the investigation. If the law enforcement officer or probation officer has timely appealed a disciplinary action, the investigation is not complete until the conclusion of the appeal process.
L. This section does not preempt agreements that supplant, revise or otherwise alter the provisions of this section, including preexisting agreements between the employer and the law enforcement officer or probation officer or the law enforcement officer's or probation officer's lawful representative association.
M. Notwithstanding section 39‑123, all data and reports from a polygraph examination of a law enforcement officer or probation officer are confidential and may only be used for employment, certification or reactivation of certification purposes or the administrative matter for which a polygraph was administered, including other ancillary matters. All other uses are prohibited.
N. Except for a preemployment polygraph in which an applicant was not hired or in the case of an active investigation or an appeal, the data and reports from a polygraph examination of a law enforcement officer or probation officer shall be destroyed as soon as practicable three years after the date of appointment or employment but not more than ninety days after that date.
O. For the purposes of this section:
1. "Appeal" means a hearing before a state or local merit board, a civil service board, an administrative law judge or a hearing officer.
2. "Disciplinary action" means the dismissal, demotion or suspension for more than sixteen eight hours of a law enforcement officer or probation officer that is authorized by statute, charter or ordinance and that is subject to a hearing or other procedure by a local merit board, a civil service board, an administrative law judge or a hearing officer.
3. "Investigative file" means the law enforcement agency's complete report and any attachments detailing the incidents leading to the disciplinary action.
4. "Law enforcement officer" means:
(a) An individual, other than a probationary employee, who is certified by the Arizona peace officer standards and training board, other than a person employed by a multi-county water conservation district.
(b) A detention officer or correction officer, other than a probationary employee, who is employed by this state or a political subdivision of this state.
5. "Probation officer" means a probation officer or surveillance officer, other than a probationary employee, who is employed by this state or a political subdivision of this state.
Sec. 5. Title 38, chapter 8, article 1, Arizona Revised Statutes, is amended by adding section 38-1105, to read:
38-1105. Critical incident stress management team member; privilege; exceptions; definitions
A. Except as provided in subsection B, a critical incident stress management team member who, in the course of the member's response to a critical incident at the request of the member or member’s agency, acquires information secretly and in confidence from a designated person shall not be compelled to disclose that information in a legal proceeding, trial or investigation before any agency of this state or a political subdivision of this state.
B. Subsection A does not apply if:
1. The communication or advice indicates clear and present danger to the designated person who received crisis response services or to other persons.
2. The designated person who received crisis response services gives express consent to the testimony.
3. The communication or advice is made during the course of a criminal investigation.
4. The designated person who received crisis response services voluntarily testifies, in which case the critical incident stress management team member may be compelled to testify on the same subject.
5. There exists a breach of department policy that amounts to a violation of laws that are normally enforced by law enforcement.
C. For the purposes of this section:
1. "Crisis response services" means consultation, risk assessment, referral and onsite crisis intervention services provided by a critical incident stress management team to a designated person.
2. "Critical incident stress management team member" means an individual who has completed training through a recognized organization that delivers critical incident stress management training and is part of a law enforcement, probation, firefighter or emergency medical provider crisis response team.
3. "Department" means the branch of government in which a designated person is employed.
4. "Designated person" means an emergency medical provider, firefighter, law enforcement officer or probation officer.
5. "Emergency medical provider" means municipal or state emergency medical services personnel.
6. "Firefighter" means a municipal or state firefighter.
7. "Law enforcement officer" means:
(a) An individual who is certified by the Arizona peace officer standards and training board, other than a person employed by a multi‑county water conservation district.
(b) A detention officer or correction officer, other than a probationary employee, who is employed by this state or a political subdivision of this state.
8. "Probation officer" means a probation officer or surveillance officer who is employed by this state or a political subdivision of this state.
