File No. 33795
This rule was published in the July 15, 2010, issue (Vol. 2010, No. 14) of the Utah State Bulletin.
Public Safety, Peace Officer Standards and Training
Refusal, Suspension, or Revocation of Peace Officer Certification
Notice of 120-Day (Emergency) Rule
DAR File No.: 33795
Filed: 06/30/2010 01:49:57 PM
Purpose of the rule or reason for the change:
H.B. 187 enacted by the 2010 Utah Legislature became effective 05/12/2010. This bill significantly modified the Public Safety Code relating to peace officer certification and the procedures and grounds for the denial, relinquishment, suspension, or revocation of peace officer certification. Rule R728-409 currently in effect no longer complies with state law. This emergency rule is necessary to provide for public safety as it relates to the regulation of peace officer certification and to keep the agency in compliance with state law.
Summary of the rule or change:
This rule change constitutes a repeal and reenactment. The new rule establishes procedures for the suspension or revocation of a peace officer's certification that are in compliance with Section 53-6-211 as modified by the 2010 legislature. The rule change provides definitions, outlines investigative procedures, outlines procedures for adjudicative proceedings, and establishes procedures to be followed by the Peace Officer Standards and Training (POST) Council in issuing an order for the suspension or revocation of a peace officer's certification.
Emergency rule reason and justification:
Regular rulemaking procedures would cause an imminent peril to the public health, safety, or welfare; and place the agency in violation of federal or state law.
Justification: Subsection 53-6-103(3) charges the Peace Officer Standards and Training (POST) Division with ensuring the safety and welfare of the citizens of this state by providing for efficient and professional law enforcement. This emergency rule is necessary to ensure POST may continue to take appropriate action on peace officer misconduct. This rule is also necessary to ensure POST is in compliance with Section 53-6-211 as modified by the 2010 legislature.
State statutory or constitutional authorization for this rule:
- Section 53-6-211
This rule or change incorporates by reference the following material:
- Adds: POST Council Disciplinary Guidelines, 06/07/2010
Anticipated cost or savings to:
the state budget:
There is no anticipated cost or savings to the state budget by implementation of this rule because the changes in the rule do not establish any additional requirements that would have fiscal impact.
There is no anticipated cost or savings to local government by implementation of this rule because the changes in the rule do not establish any additional requirements that would have fiscal impact.
There is no anticipated cost or savings to small businesses by implementation of this rule because the changes in the rule do not establish any additional requirements that would have fiscal impact.
persons other than small businesses, businesses, or local governmental entities:
There is no anticipated cost or savings to other persons by implementation of this rule because the changes in the rule do not establish any additional requirements that would have fiscal impact.
Compliance costs for affected persons:
There is no anticipated cost or savings to affected persons by implementation of this rule because the changes in the rule do not establish any additional requirements that would have fiscal impact.
Comments by the department head on the fiscal impact the rule may have on businesses:
This rule change will have no fiscal impact on businesses.
D. Lance Davenport, Commissioner
The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:Public Safety
Peace Officer Standards and Training
410 W 9800 S
SANDY, UT 84070
Direct questions regarding this rule to:
- Kelly Sparks at the above address, by phone at 801-256-2321, by FAX at 801-256-0600, or by Internet E-mail at firstname.lastname@example.org
This rule is effective on:
Scott Stephenson, Director
R728. Public Safety, Peace Officer Standards and Training.
R728-409. Refusal, Suspension, or Revocation of Peace
R728-409-1. Authority. The authority for the refusal, suspension or revocation
of peace officer certification is authorized under Section
53-6-105(K) and 53-6-211 which gives authority for the Director
of Peace Officers Standards and Training to make rules for this
R728-409-2. Purpose. The purpose of a procedure for the refusal, suspension,
or revocation of peace officer certification/authority is to
further law enforcement professionalism and to protect the
public, employing agencies and law enforcement officers
R728-409-3. Cause to Evaluate Certification for the Refusal,
Suspension, or Revocation of Peace Officer Certification or
Authority. The division may initiate an investigation when it
receives information that grounds for refusal, suspension, or
revocation of certification exist. The initial information may
come from any responsible source, including those provisions of
R728-409-5. Pursuant to the purpose and intent of 53-6-211,
revocation is a permanent deprivation of peace officer
certification or authority, and except as outlined in R728-409-28
does not allow for a person who has been revoked in the State of
Utah to be readmitted into any peace officer training program
conducted by or under the approval of the division, or to have
peace officer certification or authority reinstated or restored
by the division.
Any of the following provisions may constitute cause for
refusal, suspension, or revocation of peace officer certification
A. Any willful falsification of any information provided
to the division to obtain certified status. The information could
be in the form of written application, supplementary
documentation requested or required by the division, testimony or
other oral communication to the division, or any other form of
information which could be considered fraudulent or false for
purposes of Subsection 53-6-211(1)(d)(i).
B. "Physical or mental disability" for purposes
of Section 53-6-211(1)(d)(ii), shall be defined as set forth in
Utah Administrative Code, Rule R728-403-9, Physical, Emotional,
or Mental Condition Requirement, and division medical
C. Conviction of any drug related offense including the
provisions of Title 58 Chapter 37.
D. "Addiction to drug or narcotics" for
purposes of Section 53-6-211(1)(d)(iii) means addiction to any
drug or narcotic as defined in Title 58, Chapter 37.
1. Peace officers who, in the normal course of their
peace officer duties and functions, possess, attempt to simulate,
unintentionally use or are forced to use, narcotics, drugs, or
drug paraphernalia, shall be exempt from the provisions of
Section 53-6-211(1)(d)(iii) and (v), so long as their
a. is authorized by their law enforcement employer;
b. does not jeopardize the public health, safety or
2. Addiction to drugs or narcotics as a direct result of
the legitimate treatment of a physical, emotional or
psychological disease, or injury which is currently being treated
by a licensed physician or medical practitioner licensed in this
state or any other state, and which has been reported, in
writing, to the law enforcement employer and P.O.S.T., shall not
be considered a violation of Section 53-6-211(1)(d)(iii) so long
as the addiction does not jeopardize the public health, safety or
a. Addiction to unlawfully obtained drugs or narcotics
arising from circumstances not involving (a) the legitimate
treatment of a physical disease; (b) circumstances involving
surgery or serious injury; (c) from psychological illness; and
(d) which has not been treated by a licensed physician or medical
practitioner, licensed in this state or any other state, shall be
considered a violation of Section 53-6-211(1)(d)(iii).
b. No applicant shall be granted peace officer
certification or authority if it is demonstrated that the
applicant has a drug addiction which is not under
c. A peace officer may have peace officer certification
or authority temporarily suspended for the duration of drug
rehabilitation. If the peace officer has demonstrated control of
the drug addiction as determined by a division medical
consultant, peace officer certification or authority shall be
d. Criminal conduct by a person asserting the conduct was
the result of drug addiction or dependence shall be grounds for
refusal, suspension or revocation of peace officer certification
or authority despite the fact that rehabilitation has not
occurred prior to the peace officer certification or authority
being refused, suspended or revoked.
3. Notwithstanding anything contained in this
administrative rule to the contrary, a peace officer may have
peace officer certification or authority revoked for conduct in
violation of Section 53-6-211(1)(d)(iii), if, prior to the
conduct in question, the peace officer has had a previous
suspension or revocation of peace officer certification or
authority under Section 53-6-211(1)(d)(iii), or similar statute
of another jurisdiction.
E. Conviction of a felony.
F. "Crimes involving dishonesty" for purposes
of Section 53-6-211(1)(d)(iv) means conviction for criminal
conduct, under the statutes of this state or any other
jurisdiction, which under the rules of evidence can be used to
impeach a witness or involving, but not limited to, any of the
3. tax evasion;
4. issuing bad checks;
5. financial transaction credit card offenses;
6. deceptive business practices;
7. defrauding creditors;
9. aggravated robbery;
10. bribery or receiving a bribe;
13. falsifying government records;
15. receiving stolen property;
16. burglary or aggravated burglary.
G. "Crimes involving unlawful sexual conduct"
for purposes of Section 53-6-211(1)(d)(iv) means any violation
described in Title 76, Chapter 5, Part 4; Chapter 5a; Chapter 7,
Part 1; Chapter 10, Part 13; or Chapter 9, Part 7, Section 702,
702.5 and 702.7.
H. "Crimes involving physical violence" for
purposes of Section 53-6-211(1)(d)(iv) means any violation of
Part 1, Assault and Related Offenses, and Part 2, Criminal
Homicide, of Title 76, Chapter 5.
I. "Driving under the influence of alcohol or
drugs" for purposes of Section 53-6-211(1)(d)(iv) means any
violation of Section 41-6a-502.
Criminal conduct by an individual asserting the conduct
was a result of drug addiction or dependence shall be grounds for
refusal, suspension or revocation despite the fact that
rehabilitation has not occurred prior to the refusal, suspension
J. "Conduct or pattern of conduct" for purposes
of Section 53-6-211(1)(d)(v) means an act or series of acts by a
person which occur prior to or following the granting of peace
officer certification or authority.
1. Conduct that shall be considered as grounds for
violation of Section 53-6-211(1)(d)(v) shall include:
a. uncharged conduct which includes the conduct set forth
in Rule R728-409-3, which could be considered criminal, although
such conduct does not result in the filing of criminal charges
against the person, but where the evidence shows that the
criminal act did occur, that the person committed the act, and
that the burden of proof by a preponderance of the evidence could
be established by the division;
b. criminal conduct where a criminal charge is filed, a
conviction is not obtained, but where the evidence shows that the
criminal act did occur, that the person committed the act, and
that the burden of proof by a preponderance of the evidence
appears to exist;
c. criminal conduct as enumerated in Section
53-6-211(1)(d)(iv) and 53-6-203, where the filing of a criminal
charge has resulted in a finding of guilt based on evidence
presented to a judge or jury, a guilty plea, a plea of nolo
contendere, a plea of guilty or nolo contendere which is held in
abeyance pending the successful completion of probation,
diversion agreements, or conviction which has been expunged,
dismissed, or treated in a similar manner to either of these
d. violations of Section 53-6-211(1)(d)(i) or the refusal
to respond, or the failure to respond truthfully, to the
questions of POST investigators asked pursuant to
e. violations of Section 53-6-211(1)(d)(iii) which
involve criminal conduct or jeopardize the public health, safety
f. sexual harassment which is:
(i) conduct which rises to the level of behavior of a
criminal sexual nature which includes, but is not limited to, the
unwelcomed touching of the breasts of a female, buttocks or
genitals of another, and or taking of indecent liberties with
(ii) behavior by a supervisor which creates the
perception in the mind of the subordinate that the granting or
withholding of tangible job benefits shall be based on the
granting of sexual favors.
g. sexual conduct which is:
(i) subject to criminal punishment; or
(ii) substantially diminishes or, if known, would tend to
diminish public confidence and respect for law enforcement;
(iii) damages or, if known, would tend to damage a law
enforcement department's efficiency or morale; or
(iv) impairs or, if known, would tend to impair the
ability of the peace officer to objectively and diligently
perform the duties and functions of a peace officer;
h. sexual activity protected by the right of privacy,
that does not hamper law enforcement, shall not be grounds for
refusal, suspension or revocation of peace officer certification
i. Other conduct, whether charged or uncharged, which
constitutes: malfeasance in office, non-feasance in office,
violates the peace officer's oath of office, or a willful and
deliberate violation of Title 53, Chapter 6, or the
administrative rules contained in Utah Administrative Code,
(i) Malfeasance for purposes of subsection (h) shall
include the commission of some act which is wholly wrongful or
unlawful that affects, interrupts or interferes with the
performance of official duties.
(ii) Non-feasance for purposes of subsection (h) shall
include the omission of an act which a peace officer by virtue of
his employment as such is charged to do.
(iii) oath of office for purposes of subsection (h) shall
include the swearing of a person, upon employment as a peace
officer defined in Title 53, Chapter 13, to an oath to support,
obey and defend the Constitution of the United States and the
Constitution of the State of Utah and discharge the duties of the
office with fidelity, or, a similar oath of a county, city or
j. arrest for driving under the influence of alcohol or
drugs, where the elements of the offense could be established by
a preponderance of the evidence.
k. Addiction to alcohol:
(i) if it is demonstrated that a peace officer or
applicant for peace officer certification or authority has an
alcohol addiction which is not under control;
(ii) a peace officer with an alcohol addiction may have
peace officer certification or authority temporarily suspended
for the duration of alcohol rehabilitation. If the peace officer
has demonstrated control of the alcohol addiction as determined
by a division medical consultant, peace officer certification or
authority may be restored;
(iii) criminal conduct by an individual asserting the
conduct was a result of alcohol addiction or dependence shall be
grounds for refusal, suspension or revocation despite the fact
that rehabilitation has not occurred prior to the refusal,
suspension or revocation.
l. Acts of gross negligence or misconduct which is
"clearly outrageous" or shock the conscience of a
(i) violations of the Law Enforcement Code of Ethics as
adopted by the Council;
(ii) lying under the Garrity warning
m. A dismissal from military service under any of the
(i) Bad conduct discharge (BCD)
(ii) Dishonorable discharge (DD)
(iii) Administrative discharge of "General under
honorable conditions" (GEN).
R728-409-4. Conduct Not in Violation of Section
53-6-211(1). Conduct which shall not be considered a violation of this
A. Traffic violations other than those enumerated in
Section 53-6-211(1)(d)(iv) or R728-409-3 herein; or
B. Violations of individual department policy and
procedure as enumerated in Section 53-6-211(4).
R728-409-5. Investigative Procedure. A. All investigations initiated shall be commenced upon
the reasonable belief that cause exists for the refusal,
suspension or revocation of peace officer, correctional officer,
reserve/auxiliary officer or special function officer
certification as indicated in section 409-3 above.
B. The initiation of an investigation may occur upon any
of the following circumstances:
1. A peace officer who has been charged with a criminal
violation of law;
2. A peace officer who has committed conduct which is a
criminal act under law, but which has not been criminally charged
and/or where criminal prosecution is not anticipated;
3. A peace officer who has committed conduct in violation
of section 409-3 above, where the department has conducted
disciplinary action and notification of the conduct has been made
to the division by the peace officer's department;
4. A department which has terminated a peace officer from
employment for conduct which is in violation of section 409-3
5. A department which has agreed to allow a peace officer
to resign, rather than terminate the employment, for conduct
which is in violation of section 409-3 above;
6. A complaint from a citizen which, on its face, appears
to be a violation of section 409-3 above;
7. Media attention, confirmed by the employing agency,
reporting peace officer misconduct which appears to be in
violation of section 409-3 above;
8. Information from a peace officer, concerning another
peace officer or law enforcement department, alleging improper,
unethical, or unlawful conduct in violation of section 409-3
9. Information against a peace officer received from any
law enforcement agency, criminal justice related agency, or
political subdivision alleging improper, unethical, or unlawful
conduct in violation of section 409-3 above;
10. Administrative procedures instituted by the division
to uncover or reveal past criminal conduct or the character of an
individual requesting peace officer certification, or entrance
into a certified peace officer training program which upon
completion would create eligibility for peace officer
11. The peace officer may be directed to respond to
questions pursuant to a "Garrity Warning." Refusal to
respond to questions after being warned, or the failure to
respond truthfully, may result in a suspension up to three years
depending on aggravating and mitigating circumstances.
C. All citizens requesting to file a complaint against a
peace officer will be requested to sign a written statement
detailing the incident, swear to the accuracy of the statement,
be advised that complaints found to be malicious in nature may be
prosecuted under Section 76-8-511, Falsification of Government
Record, and may require that the citizen submit to a polygraph
examination concerning the truth and veracity of the
D. Non-criminal complaints or information about a peace
officer initiated by another peace officer will be submitted in
writing detailing the incident or offer the division a tape
recorded statement detailing the incident.
E. A staff member will be assigned to investigate the
complaint or information and to make a recommendation to proceed
or to discontinue action in the matter.
1. If a peace officer under investigation is employed by
a law enforcement agency, POST shall notify the peace
officer's employing agency concerning the complaint or
2. POST will refer any complaints made by officers or
citizens of a criminal nature to the appropriate agency having
3. Criminal complaints will be handled by the agency
4. If the responsible agency has an open and active case
POST will wait until the agency has completed their investigation
before taking action.
5. POST will use the investigation and may use the
adjudicative findings to help determine its action with regard to
an individual's certification. POST will do it's own
investigation whenever it feels the necessity to do so.
6. POST will take action based on the actual conduct of
the individual as determined by an investigative process, not
necessarily on the punishment or finding of the court.
7. POST's primary concern is conduct that disrupts,
diminishes or otherwise jeopardizes public trust and fidelity in
8. Complaints that are not criminal will be investigated
by the agency having jurisdiction. If the employing agency
chooses not to investigate, a POST staff investigator may be
assigned to conduct the investigation.
9. Witnesses and other evidence may be subpoenaed for the
investigation pursuant to Section 53-6-210.
10. If ordinary investigative procedures cannot resolve
the facts at issue, the peace officer may be requested to submit
to a polygraph examination. Refusal to do so could result in the
immediate suspension of peace officer certification until such
time as an administrative proceeding can be established or other
factual information has been received which no longer requires
the need for the polygraph examination.
11. If an officer is found to have lied under the Garrity
warning, his certification may result in a suspension up to three
years depending on aggravating and mitigating
F. Subsection (E) will be the method preferred for the
investigation of alleged violations of Title 53, Chapter 6,
unless special investigative procedures are determined to be more
beneficial to the investigative process by the director and the
council as per R728-409-7.
G. If the alleged conduct constitutes a public offense
for which the individual involved has not been previously
convicted, the division shall immediately notify the appropriate
prosecutorial authority. If the conduct would also, if proven,
constitute grounds for suspension or decertification under
Section 53-6-211(1), the director in his discretion may
immediately suspend the certification of the individual as
provided in Section 63G-4-502 and Rule R728-409-25.
H. If immediate suspension of a peace officer's
certification is believed necessary to ensure the safety and
welfare of the public, or for insuring the continued public trust
or professionalism of law enforcement, the director shall
immediately establish the procedures for investigation and
adjudicative proceedings in order to fulfill the due process
rights of the peace officer.
I. Whenever an investigation is initiated the officer(s)
who is under investigation and his department will be notified as
soon as reasonably possible, except in cases where the nature of
the complaint would make such a course of action impractical. The
date and time the department administrator and the officer are
notified should be noted in the appropriate space on the
J. In all cases, where possible, the investigation shall
be conducted with the full knowledge and assistance of the
department administrator or the administrator of the employing
K. If during the course of an investigation it appears
that criminal action may be involved the information is to be
turned over to appropriate local authorities for disposition. It
is not the position of the division to be involved in
investigating criminal cases against officers. If criminal
charges are pending against an officer the division may wait
until the case is adjudicated before deciding if any further
action is warranted by the division (subject to subsection (5)(J)
L. Assigned investigators are to ensure that all
investigative procedures are properly documented and recorded in
the case file.
M. Final disposition of a case (i.e., close case, refer
to department for follow-up action, refer for adjudicative
proceeding, etc.) will be made by the deputy director with the
approval of the director.
R728-409-6. Special Investigative Proceedings -
Procedures. A. The Director with the concurrence of the Council on
Peace Officer Standards and Training, may initiate special
B. The purpose of the special investigative proceeding is
to hear testimony and other evidence regarding violations of
Chapter 6, Title 53.
C. Special investigative proceedings will be presided
over by a panel of the Council on Peace Officer Standards and
Training consisting of at least three Council members and any
persons designated by the Council Chairman and Director of the
D. Direct examination of witnesses will be conducted by
members of the panel.
E. The division and presiding officer may subpoena
witnesses and other evidence for special investigative
proceedings, as per Sections 53-6-210 and 63G-4-205(2).
F. The special investigative proceeding will be a
proceeding of record by the use of tape recording and/or court
G. If an officer is found to have lied under the Garrity
warning, his certification may result in a suspension up to three
years depending on aggravating and mitigating
R728-409-7. Purpose of Adjudicative Proceedings. A. The purpose of adjudicative proceedings will be to
establish whether or not:
1. the respondent did in fact commit the alleged conduct;
2. such conduct falls within the grounds for
administrative action enumerated in Section 53-6-211(1);
3. to exonerate the respondent if the evidence presented
fails to prove that the respondent committed the alleged conduct
or that such conduct falls within grounds for administrative
action enumerated in Section 53-6-211(1); or
4. to recommend, to the Council on Peace Officer
Standards and Training and the Director of the Division of Peace
Officer Standards and Training, any action to be taken with
respect to the respondent if the evidence presented indicates
that the respondent committed the alleged conduct and that such
conduct falls within grounds for administrative action enumerated
in Rule R728-409-2 above and in Section 53-6-211(1).
B. The Administrative Law Judge may recommend refusal,
suspension or revocation of the respondent's peace officer,
correctional officer, reserve/auxiliary officer or special
function officer certification, as applicable.
C. Any decision reached by the Administrative Law Judge
against the respondent involving a violation of Subsection
53-6-211(1), must meet the standard burden of proof which will be
a preponderance of evidence.
R728-409-8. Commencement of Adjudicative Proceedings -
Administrative Complaint. A. Except as otherwise permitted by Sections 53-6-211(6)
and 63G-4-502 and Rules R728-409-8(C) and R728-409-25, all
adjudicative proceedings shall be commenced by notice of an
Administrative Complaint accompanied by a Notice of Agency
Action. The Administrative Complaint will set forth the
allegations complained of by the division. A copy of the
Administrative Complaint and Notice of Agency Action shall be
sent to the individual named on the administrative complaint and
notice of agency action or by certified mail.
B. The Administrative Complaint shall be filed and served
according to the following requirements:
1. when adjudicative proceedings are commenced by the
division, the Administrative Complaint shall be in writing,
signed by the Council Chairman and shall include:
a. the name and mailing address of the respondent, and
the name and address of the agency employee or attorney
designated to represent the division;
b. the division's file number or other reference
c. the name of the adjudicative proceeding;
d. the date that the notice of the division's action
e. a statement indicating that a formal hearing will be
conducted according to the provisions of Sections 63G-4-204 to
63G-4-209, except as otherwise indicated by Rule R728-409 in
reference to time of response, as allowed under Section
f. a statement that the respondent shall file a
responsive pleading within 30 days of the mailing date of the
notice of agency action;
g. a statement of the time and place of the scheduled
adjudicative proceeding, a statement indicating the purpose for
which the adjudicative proceeding is to be held, and a statement
indicating that a party who fails to attend or participate in the
adjudicative proceeding may be held in default;
h. a statement of the legal authority and jurisdiction
under which the administrative proceeding is to be
i. the name, title, mailing address, and telephone number
of the presiding officer; and
j. a statement of the purpose of the adjudicative
proceeding and, to the extent known by the presiding officer, the
questions to be decided.
C. When the cause of action under Section 53-6-211 and
Rule R728-409-3 is conviction of a felony, the following
procedures shall apply:
1. The division shall send written notice to the peace
officer stating that proceedings prior to revocation shall be
limited to an information review of written documentation by the
presiding officer, and that revocation is mandatory when the
presiding officer determines that the peace officer has been
convicted of a felony.
2. The notice shall state that within 15 days of the
mailing date of the notice, the peace officer may request, in
writing, an informal hearing before the presiding officer to
present evidence that there was no felony conviction, or that the
conviction has been overturned, reduced to a misdemeanor or
expunged. This notice shall also state that if the peace officer
does not so request, the presiding officer, and POST Council,
will proceed on the documentation of conviction.
R728-409-9. Responsive Pleadings. A. In all adjudicative proceedings, the respondent shall
file and serve a written response signed by the respondent or his
representative within 30 days of the mailing date of the notice
of agency action, that shall include:
1. the division's file number or other reference
2. the name of the adjudicative proceeding;
3. a statement of the relief that the respondent
4. a statement of facts;
5. a statement summarizing the reasons that the relief
requested should be granted.
B. The response shall be filed with the
C. The presiding officer or the division, pursuant to
rule, may permit or require pleadings in addition to the notice
of agency action and the response. All papers permitted or
required to be filed shall be filed with the division.
R728-409-10. Consent Agreements. A. The director may seek a consent agreement for the
refusal, suspension or revocation of certification with the
individual. The consent agreement will be delivered with the
B. The individual will have 10 days from receiving the
consent agreement to respond to the Director on the consent
C. If a consent agreement is not sought or is not
reached, the procedure outlined in R728-409-9 above will
D. If a consent agreement has been signed by both
parties, the adjudicative proceeding will conclude.
E. The consent agreement procedure will not extend the
period of time for responsive pleading to the administrative
complaint and notice of agency action.
R728-409-11. Scheduling the Adjudicative Proceeding -
Hearing. A. After the division has been served with the responsive
pleading, notice of the location, date and time for the
adjudicative hearing will be issued.
B. The adjudicative hearing will be held within a
reasonable time after service of the responsive pleading unless a
later scheduling is ordered by the presiding officer, or mutually
agreed upon by the individual and the division.
C. When the cause for action is conviction of a felony,
the presiding officer will conduct an informal review of the
documentation within 30 days after the notice is mailed to the
peace officer. If the peace officer timely requests a hearing,
the presiding officer shall, within 30 days of the request, hold
an informal hearing pursuant to Section 53-6-211(6).
R728-409-12. Discovery and Subpoenas. A. In formal adjudicative proceedings parties may conduct
limited discovery. The respondent is entitled to a copy of all
evidence the division intends to use in the adjudicative
proceeding, and other relevant documents in the agency's
possession which are necessary to support his or her claims or
defenses subject, however, to the Government Records Access and
Management Act, UCA 63G-2-101 et seq. Discovery does not extend
to interrogatories, requests for admissions or
B. Subpoenas and other orders to secure the attendance of
witnesses or the production of evidence for adjudicative
proceedings shall be issued by the Division of Peace Officer
Standards and Training pursuant to Section 53-6-210, or the
presiding officer when requested by any party, or may be issued
by the presiding officer on his own motion pursuant to Section
C. Discovery is prohibited in informal
R728-409-13. Procedures for Adjudicative Proceedings -
Hearing Procedures. A. All formal adjudicative proceedings shall be conducted
1. The presiding officer shall regulate the course of the
hearing to obtain full disclosure or relevant facts and to afford
all the parties reasonable opportunity to present their
2. On his own motion, or upon objection by a party, the
a. may exclude evidence that is irrelevant, immaterial,
or unduly repetitious;
b. shall exclude evidence privileged in the courts of
c. may receive documentary evidence in the form of a copy
or excerpt if the copy or excerpt contains all pertinent portions
of the original document;
d. may take official notice of any facts that could be
judicially noticed under the Utah Rules of Evidence, or the
record of other proceedings before the agency, and of technical
or scientific facts within the agency's specialized
3. The presiding officer may not exclude evidence solely
because it is hearsay.
4. The presiding officer shall afford to all parties the
opportunity to present evidence, argue, respond, conduct
cross-examination, and submit rebuttal evidence.
5. The presiding officer may give persons not a party to
the adjudicative proceeding the opportunity to present oral or
written statements at the hearing.
6. All testimony presented at the hearing, if offered as
evidence, to be considered in reaching a decision on the merits,
shall be given under oath.
7. The hearing shall be recorded at the division's
8. Any party, at his own expense, may have a person
approved by the division prepare a transcript of the hearing,
subject to any restrictions that the division is permitted by
statute to impose to protect confidential information disclosed
at the hearing.
9. All hearings shall be open to all parties.
10. This rule does not preclude the presiding officer
from taking appropriate measures necessary to preserve the
integrity of the hearing.
11. The respondent has the right to counsel. Counsel will
not be provided by the division and all costs for counsel will be
the sole responsibility of the respondent.
12. Witnesses at adjudicative hearings may have counsel
present. Counsel for witnesses will not have the right to
cross-examine. Counsel will not be provided by the division and
all costs for counsel will be the sole responsibility of the
13. Witnesses before an adjudicative hearing may be
excluded from adjudicative hearing while other witnesses are
14. The presiding officer may issue an order to admonish
witnesses not to discuss their testimony with other witnesses
appearing to testify or offer evidence to the presiding officer
at the adjudicative hearing. This order shall remain in effect
until all testimony and evidence has been presented at the
15. A person's failure to comply with the
admonishment order may result in the refusal to consider
testimony or evidence presented, if it is deemed that the
testimony or evidence has been tainted through violation of the
B. When the cause for action is conviction of a felony
and the peace officer requests an informal hearing, it shall be
conducted, except as modified by these rules, pursuant to Section
C. If the presiding officer finds, by informal review or
hearing, that the peace officer has been convicted of a felony,
he shall recommend revocation of certification. If the presiding
officer determines that there was not a conviction, he or she may
recommend action other than revocation.
R728-409-14. Procedures for Adjudicative Proceedings -
Intervention. A. Any person not a party may file a signed, written
petition to intervene in a formal adjudicative proceeding with
the division. The person who wishes to intervene shall mail a
copy of the petition to each party. The petition shall
1. the division's file number or other reference
2. the name of the proceeding;
3. a statement of facts demonstrating that the
petitioner's legal rights or interests are substantially
affected by the formal adjudicative proceeding, or that the
petitioner qualifies as an intervenor under any provision of law;
4. a statement of the relief that the petitioner seeks
from the division.
B. The presiding officer shall grant a petition for
intervention if he determines that:
1. the petitioner's legal interests may be
substantially affected by the adjudicative proceeding;
2. the interests of justice and the orderly and prompt
conduct of the adjudicative proceedings will not be materially
impaired by allowing the intervention.
C.1. Any order granting or denying a petition to
intervene shall be in writing and sent by mail to the petitioner
and each party.
2. An order permitting intervention may impose conditions
on the intervenor's participation in the adjudicative
proceeding that are necessary for a just, orderly, and prompt
conduct of the adjudicative proceeding.
3. The presiding officer may impose the conditions at any
time after the intervention.
R728-409-15. Default. A. The presiding officer may enter an order of default
against a party if:
1. a party fails to attend or participate in the hearing;
2. the respondent in the proceeding fails to file the
response required under Rule R728-409-9.
B. The order shall include a statement of the grounds for
default and shall be mailed to all parties.
C. The defaulted party may seek to have the presiding
officer set aside the default order in accordance with Rule 60(b)
of the Utah Rules of Civil Procedure.
D. After issuing the order for default, the presiding
officer shall conduct the necessary proceedings to complete the
adjudicative proceeding without the participation of the party in
default and shall determine all issues in the adjudicative
proceeding, including those affecting the defaulting
R728-409-16. Procedures for Adjudicative Proceedings -
Recommendations. A. In adjudicative proceedings:
1. within a reasonable time after the hearing, or after
the filing of any post-hearing papers permitted by the presiding
officer, the presiding officer shall sign and issue a
recommendation that includes:
a. a statement of the presiding officer's findings of
fact based exclusively on the evidence of record in the
adjudicative hearing or on facts officially noted;
b. a statement of the presiding officer's conclusions
c. a statement of the reasons for the presiding
d. a statement of recommended agency action;
e. a notice of the right to apply for council review;
f. the time limits applicable to any review.
2. The presiding officer may use his experience,
technical competence, and specialized knowledge to evaluate the
3. No finding of fact that was contested may be based
solely on hearsay evidence.
4. This section does not preclude the presiding officer
from issuing interim orders to:
a. notify the parties of further hearings;
b. notify the parties of provisional rulings on a portion
of the issues presented; or
c. otherwise provide for the fair and efficient conduct
of the adjudicative hearing.
R728-409-17. Notice of Presiding Officer's
Recommendation. A. If the evidence against the individual does not
support the conduct alleged in the administrative complaint with
respect to Section 53-6-211(1), the presiding officer, hereafter
referred to as Administrative Law Judge, will mail the parties a
copy of the recommendation upon issuance of the
B. If the Administrative Law Judge finds that the
evidence against the individual does support the conduct alleged
in the administrative complaint with respect to Section
53-6-211(1), the Administrative Law Judge will mail the parties a
copy of the recommendation upon issuance of the
C. The Administrative Law Judge may issue his/her
recommendation to the parties by certified mail.
R728-409-18. Request for Review of Presiding Officer's
Recommendation. A. Except when revocation is recommended for conviction
of a felony, the parties will have 15 days from the date of
issuance of the Administrative Law Judge's recommendation to
request a review of the recommendation before the
B. A request by any party for council review of the
Administrative Law Judge's recommendation will be made in
writing to the council and will contain all issues which the
party wishes to raise. The request must specify whether the party
is challenging the ALJ's recommended findings of fact,
conclusions of law, and/or agency action. If the party is
challenging the recommended findings or conclusions, the request
must particularly set forth which findings and/or conclusions it
wants reviewed and considered by the council. A copy of the
request will be served upon all other parties.
C. The party seeking review shall provide transcripts,
documents, and briefs to the council within 45 days after the
filing of the notice requesting review. If the party is
challenging the recommended findings of fact or conclusions of
law, it must support its request with specific references and
citations to the hearing record, and copies of the evidence
received by the ALJ at the hearing, and which are relevant to the
challenged recommendations. If the request is based on oral
testimony presented at the hearing, the party shall provide, at
its expense, a transcription of that relevant testimony. No party
shall be permitted oral argument before the council unless a
request for oral argument is filed with the Council within this
same 45 day period.
D. The other party or parties shall have 30 days from the
date the transcripts, documents and briefs are filed by the party
seeking review, to file any response to the request for review.
Any response may include additional transcripts or documents
necessary for review.
E. The council shall whenever possible within a
reasonable time from the filing of the notice requesting review
to provide for a review hearing before the council.
F. Any review shall be based upon the administrative
hearing record and briefs or other documents submitted by the
parties. If a party has submitted portions of the hearing
transcript, or other evidence admitted at the hearing, the
council may, in its discretion, require the division to submit
all or any other portion of the hearing transcript or evidence,
and may continue the review hearing for that purpose. If
necessary to make a determination, the council may also require
the agency to subpoena any of the witnesses who testified in the
evidentiary hearing, to appear at the next regularly scheduled
council meeting, to answer questions from council
G. If oral argument is requested by either party, at the
review hearing the parties will be permitted 20 minutes each to
present oral argument on their respective positions identified in
their written requests and briefs. Any testimony presented during
oral argument, if offered as evidence to be considered in
reaching a decision on the review, shall be given under
H. If no oral argument is requested, the council shall,
within a reasonable time after all documents, transcripts and
briefs have been filed, issue to the director a review
I. If oral argument has been received, the council,
within a reasonable time after the review hearing, shall issue to
the Director a review decision.
J. The council has the power to make a full review of the
Administrative Law Judge's recommendation. This power
includes, but is not limited to, the power to accept the
ALJ's recommended findings of fact, conclusions of law,
and/or agency action, or to reject all or a portion thereof, and
render its own findings, conclusions and proposed action on the
K. Any periods of time designated in this rule for the
filing of documents and pleadings, or for scheduling of hearings
may be extended by the council for good cause.
R728-409-19. Council Action and Finding by Director. A. Unless a consent order has been signed by all parties
as per Rule R728-409-10 or a request for review is made to the
Council as per Rule R728-409-18, and following the adjudicative
proceeding or following a default by the individual as outlined
in Rule R728-409-15:
1. The division representative will issue to the council
the recommendation of the Administrative Law Judge. The council
will review the Administrative Law Judge's recommendation and
make a decision to concur or reject that recommendation, and to
issue any alternative recommendation it may desire.
2. The council will issue and file its decision with the
R728-409-20. Director's Final Order. A. In adjudicative proceedings:
1. After a majority of the council recommends to refuse,
suspend or revoke respondent's peace officer, correctional
officer, reserve/auxiliary officer, or special function officer
certification, or to take no action against respondent, the
director shall prepare and issue a final order within 30 days
outlining the council's decision.
2. The final order will include information on the appeal
process as outlined in administrative rules R728-409-21, 22,
3. The director shall, upon issuance, serve a copy of the
final order on the respondent by certified mail and shall mail a
copy to the employing agency.
R728-409-21. Division Review - Reconsideration. A. Except when revocation is recommended for conviction
of a felony within ten days after the date that the
director's final order is issued, any party may file a
written request for reconsideration, stating the specific grounds
upon which relief is requested. The filing of the request is not
a prerequisite for seeking judicial review of the order.
B. The request for reconsideration shall be filed with
the division by the person making the request.
C.1. The director, or a person designated for that
purpose, shall issue a written order granting the request or
denying the request.
2. If the director or the person designated for that
purpose does not issue an order within 20 days after the filing
of the request, the request for rehearing shall be considered to
R728-409-22. Judicial Review - Exhaustion of Administrative
Remedies. A. A party aggrieved may obtain judicial review of final
agency action only after exhausting all administrative remedies
available, except that:
1. The court may relieve a party seeking judicial review
of the requirement to exhaust any or all administrative remedies
a. the administrative remedies are inadequate;
b. exhaustion of remedies would result in irreparable
harm disproportionate to the public benefit derived from
B.1. A party shall file a petition for judicial review of
final agency action within 30 days after the date that the order
constituting the final agency action is issued.
2. The petition shall name the agency and all other
appropriate parties as respondents and shall meet the form
requirements specified in Chapter 4 of Title 63G.
R728-409-23. Judicial Review - Adjudicative Proceedings. A. At the conclusion of formal adjudicative proceedings,
the Utah Court of Appeals has jurisdiction to review the
director's final order.
B. To seek judicial review of the director's final
order, the petitioner shall file a petition for review of agency
action in the form required by the Rules of the Utah Court of
1. The Rules of the Utah Court of Appeals govern all
additional filings and proceedings in the Utah Court of
C. The contents, transmittal, and filing of the
agency's record for judicial review of formal adjudicative
proceedings are governed by the Rules of the Utah Court of
Appeals, except that:
1. all parties to the review proceedings may stipulate to
shorten, summarize, or organize the record;
2. the Utah Court of Appeals may tax the cost of
preparing transcripts and copies for the record:
a. against a party who unreasonably refuses to stipulate
to shorten, summarize, or organize the record; or
b. according to any other provision of law.
c. The scope of judicial review by the Utah Court of
Appeals is controlled by Section 63G-4-403. Relief granted by the
Utah Court of Appeals is controlled by Section
D. If peace officer certification is revoked for
conviction of a felony after an informal hearing, the district
courts have jurisdiction to review the final order pursuant to
Sections 63G-4-401 and 63G-4-402.
R728-409-24. Judicial Review - Stay and Other Temporary
Remedies Pending Final Disposition. A. The director may grant a stay of the final order or
other temporary remedy during the pendency of judicial review,
according to the division's rules.
B. Parties shall petition the director for a stay or
other temporary remedies unless extraordinary circumstances
require immediate judicial intervention.
C. If the director denies a stay or denies other
temporary remedies requested by a party, the director's order
of denial shall be mailed to all parties and shall specify the
reasons why the stay or other temporary remedy was not
D. If the director has denied a stay or other temporary
remedy to protect the public health, safety, or welfare against a
substantial threat, the court may not grant a stay or other
temporary remedy unless it finds that:
1. the director violated the division's rules in
denying the stay; or
2.a. the party seeking judicial review is likely to
prevail on the merits when the court finally disposes of the
b. the party seeking judicial review will suffer
irreparable injury without immediate relief;
c. granting relief to the party seeking review will not
substantially harm other parties to the proceedings; and
d. the threat to the public health, safety, or welfare
relied upon by the agency is not sufficiently serious to justify
the director's action under the circumstances.
R728-409-25. Emergency Adjudicative Proceedings. A. The division may issue an order on an emergency basis
without complying with the requirements of this chapter
1. the facts known by the division or presented to the
division show that an immediate and significant danger to the
public health, safety, or welfare exists; and
2. the threat requires immediate action by the
B. In issuing an emergency order, the division
1. limit the order to require only the action necessary
to prevent or avoid the danger to the public health, safety, or
2. issue promptly a written order, effective immediately,
that includes a brief statement of findings of fact, conclusions
of law, and reasons for the division's utilization of an
emergency adjudicative proceeding; and
3. give immediate notice to the person who is required to
comply with the order.
C. Upon the commencement of an emergency adjudicative
proceeding, the division shall commence a formal adjudicative
proceeding in accordance with the other provisions of this rule
in order not to infringe upon any legal right or interest of any
R728-409-26. Civil Enforcement. A.1. In addition to other remedies provided by law, an
division may seek enforcement of an order by seeking civil
enforcement in the district courts.
2. The action seeking civil enforcement of the
division's order must name, as defendants, each alleged
violator against whom the agency seeks to obtain civil
3. Venue for an action seeking civil enforcement of the
division's order shall be determined by the requirements of
the Utah Rules of Civil Procedure.
4. The action may request, and the court may grant, any
of the following:
a. declaratory relief;
b. temporary or permanent injunctive relief;
c. any other civil remedy provided by law; or
d. any combination of the foregoing.
B.1. Any person whose interests are directly impaired or
threatened by the failure of the division to enforce the
division's order may timely file a complaint seeking civil
enforcement of that order, but the action may not be
a. until at least 30 days after the plaintiff has given
notice of his intent to seek civil enforcement of the alleged
violation to the director, the attorney general, and to each
alleged violator against whom the petitioner seeks civil
b. if the division has filed and is diligently
prosecuting a complaint seeking civil enforcement of the same
order against the same or a similarly situated defendant;
c. if a petition for judicial review of the same order
has been filed and is pending in court.
2. The complaint seeking civil enforcement of the
division's order must name, as defendants, the division, and
each alleged violator against whom the plaintiff seeks civil
3. Except to the extent expressly authorized by statute,
a complaint seeking civil enforcement of the division's order
may not request, and the court may not grant, any monetary
payment apart from taxable costs.
C. In a proceeding for civil enforcement of the
division's order, in addition to any other defenses allowed
by law, a defendant may defend on the ground that:
1. the order sought to be enforced was issued by the
division without jurisdiction to issue the order;
2. the order does not apply to the defendant;
3. the defendant has not violated the order; or
4. the defendant violated the order but has subsequently
D. Decisions on complaints seeking civil enforcement of
the division's order are reviewable in the same manner as
other civil cases.
R728-409-27. Declaratory Orders. A. Any person may file a request for division actions,
requesting that the division issue a declaratory order
determining the applicability of a statute, rule, or order within
the primary jurisdiction of the division to specified
B. The division shall not issue a declaratory order
1. the request is one of a class of circumstances that
the division has by rule defined as being exempt from declaratory
2. the person requesting the declaratory order
participated in an adjudicative proceeding concerning the same
issue within 12 months of the date of the present
a. The division may issue a declaratory order that would
substantially prejudice the rights of a person who would be a
necessary party, only if that person consents in writing to the
determination of the matter by a declaratory proceeding.
C. Persons may intervene in declaratory proceedings
1. they meet the requirements of Rule R728-409-12;
2. they file timely petitions for intervention according
to division rules.
D. After receipt of a petition for a declaratory order,
the division may issue a written order:
1. declaring the applicability of the statute, rule, or
order in question to the specified circumstances;
2. setting the matter for adjudicative
3. agreeing to issue a declaratory order within a
specified time; or
4. declining to issue a declaratory order and stating the
reasons for its action.
E. A declaratory order shall contain:
1. the names of all parties to the proceeding on which it
2. the particular facts on which it is based;
3. the reasons for its conclusion.
F. A copy of all orders issued in response to a request
for a declaratory proceeding shall be mailed promptly to the
petitioner and any other parties.
G. A declaratory order has the same status and binding
effect as any other order issued in an adjudicative
H. Unless the petitioner and the division agree in
writing to an extension, if the division has not issued a
declaratory order within 60 days after receipt of the request for
a declaratory order, the petition is denied.
R728-409-28. Reconsideration Based on Mistake, Fraud, or
Newly Discovered Evidence. A. Reconsideration of a decision by POST Council, and a
new opportunity to be heard, may be granted for any of the
1. The decision of POST Council was based on a mistake of
law or fact;
2. There was fraud, misrepresentation or misconduct in
the adjudicative proceeding; or
3. There is newly discovered material evidence which the
party could not, with reasonable diligence, have discovered and
produced during the adjudicative proceedings.
B. At any time after a final order is issued, either
party may request reconsideration under this rule, by complying
with the procedures set forth in R728-409-18(B) through
C. Reconsideration by POST Council pursuant to this rule
shall be a two-step process:
1. A written request and information outlining the
reasons and justification for making the request shall be
submitted to a special subcommittee consisting of the presidents
of the Chiefs of Police Association and the Sheriffs Association,
or their designees, and another POST Council member designated by
the Chairman, which shall review the request and information
provided and decide whether the party seeking consideration has,
by a preponderance of the evidence, established that the prior
decision was based on one or more of the grounds set forth above.
The subcommittee will notify the director of its decision, who
will then send out a notice of that decision to both
2. If the subcommittee decides step one in the
affirmative, the matter will be scheduled for consideration by
POST Council at the next regularly scheduled meeting. POST shall
give reasonable notice to the parties of the date, time and
location of the meeting. POST Council shall reconsider the
correct, clarified or new evidence, and render a decision based
on the written request and information and oral argument, (if
such was timely requested.) Any oral testimony presented to the
council shall be under oath, and subject to the penalty of
3. POST Council's decision shall be communicated to
the Director, who shall then notify the parties thereof, in
writing and consistent with R728-409-20. The parties will then
have the same appeal rights set forth in R728-409-22, 409-23, and
D. The definitions set forth in Utah Rules of Civil
Procedures, Rules 59 and 60, and interpretive case law thereon,
shall apply to determinations under this rule.]
KEY: law enforcement officers, certification, investigations, rules and procedures
Date of Enactment or Last Substantive Amendment: June 30, 2010
Notice of Continuation: February 27, 2007
Authorizing, and Implemented or Interpreted Law: 53-6-211
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For questions regarding the content or application of this rule, please contact Kelly Sparks at the above address, by phone at 801-256-2321, by FAX at 801-256-0600, or by Internet E-mail at email@example.com.