DAR File No. 38925

Public Safety, Peace Officer Standards and Training

Rule R728-409

Suspension or Revocation of Peace Officer Certification

Notice of Proposed Rule

(Amendment)

DAR File No.: 38925
Filed: 10/29/2014 03:02:26 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The reason for this change is to update the administrative rule to match the change in the Utah Code. This change was as a result of H.B. 178 and H.B. 179 from the 2014 General Legislative Session.

Summary of the rule or change:

The language of this rule is changed to reflect the change in Utah Code Section 53-6-211. The term "relinquish" is now defined in the change to this rule as found in Section 53-6-211.5. Section R728-409-4 clearly defines what conduct will not be investigated to include a violation of an employer's policy or procedure not rising to the level of a violation of Section 53-6-211 or Subsection 53-6-309(1) or sexual activity protected under the right of privacy recognized by the United States Supreme Court in Lawrance v. Texas, 539 U.S. 558 (2003). Sections 53-6-211.5 and 53-6-311 allows for a respondent who has engaged in conduct described in Subsections 53-6-211(1) or 53-6-309(1) to now voluntarily relinquish the certification by submitting a Relinquishment of Certification form to the division. As soon as the relinquishment form is received by the division, the investigation into the complaint will cease.

State statutory or constitutional authorization for this rule:

• Section 53-6-211
• Section 53-6-309
• Section 53-6-311
• Section 53-6-211.5

Anticipated cost or savings to:

the state budget:

With the addition of Sections 53-6-211.5 and 53-6-311, a peace officer or dispatcher may now relinquish their certification at any time when a disciplinary issue has been referred to the division. When this occurs, an investigation stops or does not take place thus saving investigation time and resources.

local governments:

The changes in this law did not fiscally affect local government and the rule changes in turn also will not have a fiscal affect.

small businesses:

Small business is not a class or group that will be affected by this administrative rule change.

persons other than small businesses, businesses, or local governmental entities:

It is not anticipated that any other groups or organizations will have any fiscal impact with the change to this administrative rule.

Compliance costs for affected persons:

There are no anticipated costs to affected persons for this change.

Comments by the department head on the fiscal impact the rule may have on businesses:

There will be no fiscal impact on businesses with this administrative rule.

Keith Squires, 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:

• Wade Breur at the above address, by phone at 801-256-2329, by FAX at , or by Internet E-mail at wbreur@utah.gov
• Debbie Johnson at the above address, by phone at 801-592-8883, by FAX at 801-965-4608, or by Internet E-mail at debbiejohnson@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

12/15/2014

This rule may become effective on:

12/22/2014

Authorized by:

Scott Stephenson, Director

R728. Public Safety, Peace Officer Standards and Training.

R728-409. Suspension[or], Revocation, or Relinquishment of [Peace Officer ]Certification.

R728-409-1. Authority.

Section 53-6-105(1)(k) provides that the director shall, with the advice of the council, make rules necessary to administer Title 53 Chapter 6.

 

R728-409-2. Purpose.

The purpose of this rule is to establish procedures for the suspension, [or ]revocation, or relinquishment of a [peace officer's]respondent's certification.

 

R728-409-3. Definitions.

[A.](1) Terms used in this rule are defined in Section 53-6-102.

[B.](2) In addition:

[1.](a) "ALJ" means an administrative law judge who conducts administrative hearings as [provided in Subsection]described in Subsections 53-6-211(3) and 53-6-309(3);

[2. "Garrity warning" means a warning issued based on the decision in Garrity v. New Jersey, 385 U.S. 493 (1967);

] [3.](b) "on duty" means that a [peace officer]respondent is:

[a.](i) actively engaged in any of the duties of [his]the respondent's employment as a peace officer or dispatcher;

[b.](ii) receiving compensation for activities related to [his]the respondent's employment as a peace officer or dispatcher;

[c.](iii) on the property of a law enforcement facility, correctional facility or dispatch center;

[d.](iv) in a law enforcement vehicle which is located in a public place; or

[e.](v) in a public place and is wearing a badge or uniform, authorized by [a law enforcement agency]the respondent's employer, which readily identifies the wearer as a peace officer or dispatcher;

(c) " relinquish" means the permanent deprivation of the respondent's certification pursuant to Section 53-6-211.5 or 53-6-311, which precludes a respondent from:

(i) admission into a training program conducted by, or under the approval of, the division; or

(ii) reinstatement or restoration of the respondent's certification by the division;

[4.](d) "respondent" means a peace officer or dispatcher against whom the division has initiated an investigation or adjudicative proceeding under [Section]Sections 53-6-211 or 53-6-309;

[5.](e) "revocation" means the permanent deprivation of a [peace officer's]respondent's certification, which [does not allow for a peace officer whose certification has been revoked to be readmitted into any peace officer training program conducted by or under the approval of the division, or to have peace officer certification reinstated or restored by the division]precludes a respondent from:

(i) admission into a training program conducted by, or under the approval of, the division; or

(ii) reinstatement or restoration of the respondent's certification by the division;

[6.](f) "sexual conduct" means the touching of the anus, buttocks or any part of the genitals of a person, or the touching of the breast of a female, whether or not through clothing, with the intent to arouse or gratify the sexual desire of any person regardless of the sex of any participant; and

[7.](g) "suspension" means the temporary deprivation of a [peace officer's]respondent's certification.

 

[R728-409-4. Cause for the Suspension or Revocation of a Peace Officer's Certification.

The division may initiate an investigation when it receives information that grounds for the suspension or revocation of a peace officer's certification exist under Subsection 53-6-211(1).

 

R728-409-5. Conduct Not in Violation of Subsection 53-6-211(1).

Conduct which shall not be considered a violation of Subsection 53-6-211(1) includes:

A. Any traffic offense which is a class C misdemeanor or infraction;

B. A violation of a law enforcement agency's policy or procedure;

C. Conduct which is discovered or established through questioning which goes beyond the scope of a properly administered interview as established in Garrity v. New Jersey, 385 U.S. 493 (1967); or

D. Sexual activity which is protected under the right of privacy as recognized by the United States Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003).

 

]R728-409-[6]4. Investigative Procedure.

[A.](1) The division shall initiate an investigation when it receives information from any reliable source that [grounds for the suspension or revocation of certification exist under Subsection]a violation of Subsections 53-6-211(1) or 53-6-309(1) has occurred, including when[any of the following circumstances occur]:

[1. A peace officer](a) a respondent is charged with or convicted of a [criminal violation of law]crime;

[2. A peace officer](b) there is evidence a respondent has [committed]engaged in conduct which is a criminal act under law, but which has not been criminally charged or where criminal prosecution is not anticipated;

[3. A peace officer](c) a respondent's employer notifies the division that the respondent has [committed]been investigated, disciplined, terminated, retired or resigned as a result of conduct in violation of [Subsection]Subsections 53-6-211(1) or 53-6-309(1)[, where the peace officer's employing agency has conducted disciplinary action and notified the division;

4. A peace officer is terminated for conduct which is in violation of Subsection 53-6-211(1);

5. A peace officer resigns for conduct which is in violation of Subsection 53-6-211(1)];

[6. A citizen](d) a person makes a complaint [which, on its face, appears to be]regarding a violation of [Subsection]Subsections 53-6-211(1) or 53-6-309(1) and there is independent evidence to support the complaint;

[7. The media reports about officer misconduct which appears to be in](e) a violation of [Subsection]Subsections 53-6-211(1) or 53-6-309(1) is reported in the media and there is independent evidence to confirm that the conduct occurred; or

[8. A peace officer or law enforcement agency makes a complaint about a peace officer alleging conduct in violation of Subsection 53-6-211(1);

9. A criminal justice related agency or political subdivision makes a complaint about a peace officer alleging conduct in violation of Subsection 53-6-211(1);

][10. A](f) a background investigation [has been conducted by the division on a peace officer seeking peace officer certification or entrance into a certified peace officer training program which ]indicates that [the peace officer]a respondent has engaged in conduct in violation of [Subsection]Subsections 53-6-211(1) or 53-6-309(1)[; or

11. A peace officer has provided false information to the peace officer's employing agency after having been issued a properly administered Garrity warning].

(2) The division may not investigate conduct which is limited to:

(a) a violation of an employer's policy or procedure; or

(b) sexual activity protected under the right of privacy recognized by the United States Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003).

[C.](3) A [citizen]person seeking to file a complaint against a [peace officer]respondent may be [required]asked to sign a written statement, detailing the incident and swearing to the accuracy of the statement after being advised that providing a false statement may result in prosecution under Section 76-8-511, Falsification of Government Record.

[D. A peace officer seeking to file a complaint against another peace officer may submit written documentation detailing the incident.

E. If the division receives a complaint or information about misconduct of a peace officer, an](4) An investigator from the division [will]shall be assigned to investigate the complaint [or information and to make a recommendation to proceed or to discontinue action in the matter. Assigned investigators are to]and ensure that [all investigative procedures are properly]the investigation is fully documented [and recorded ]in the investigative case file.

[F.](5)(a) If a [peace officer]respondent under investigation is employed [by a law enforcement agency]as peace officer or dispatcher, the division shall notify the [peace officer's]respondent's [employing agency]employer concerning the complaint or [information]investigation, unless the nature of the complaint would make such a course of action impractical.

(b)  The division shall keep a record of the date [and time the department administrator]the employer and the [officer]respondent are notified[should be noted in the appropriate space on the complaint form].

[G.](6) The division [will]shall refer any complaints [made by officers or citizens ]of a criminal nature against a respondent to the appropriate law enforcement agency having jurisdiction over the crime for investigation and prosecution if such a referral has not already been made.

[H.](7) If the [law enforcement agency which employs the peace officer]respondent's employer has an open and active investigation, the division [will]may wait until the [agency]employer has completed [their]its investigation before taking action unless the division determines [that ]it is not in the public's best interest to [wait]delay the investigation.

[I.](8) The division may use the information gathered by the [law enforcement agency which employs the peace officer]respondent's employer in its investigation[and may use any adjudicative findings to help determine what course of action to take. This will not preclude the division from conducting an independent investigation if the division finds it is necessary].

[J.](9) The division [will]shall take action based on the actual conduct of the [peace officer]respondent as determined by [an investigative process, not necessarily on the punishment instituted by the law enforcement agency which employs the peace officer or any court findings]the division's own independent investigation, not on any findings or sanctions issued by the respondent's employer or the court.

[K.](10) Witnesses and other evidence may be subpoenaed [for the]during an investigation pursuant to [Section]Sections 53-6-210 and 53-6-308.

[L.](11) If ordinary investigative procedures cannot resolve the facts at issue, a [peace officer]respondent may be requested to submit to a polygraph examination.

[M.](12) The director may immediately suspend a [peace officer's]respondent's certification as provided in Section 63G-4-502 if the director believes it is necessary to ensure the safety and welfare of the public, the continued public trust or professionalism of law enforcement.

[N.](13) Once the investigation is concluded, the division shall determine whether there is sufficient evidence to proceed with an adjudicative proceeding.

[O.](14) If the division determines [that ]there is insufficient evidence to find that a [peace officer]respondent engaged in conduct in violation of [Subsection]Subsections 53-6-211(1) or 53-6-309(1), the director shall issue a letter to the [peace officer]respondent indicating that the investigation has been concluded and that the division shall take no action.

 

R728-409-[7]5. Purpose of Adjudicative Proceedings.

[A.](1) The purpose of an adjudicative proceeding [will]is [be ]to determine whether there is sufficient evidence to find that the respondent [committed]engaged in the [alleged ]conduct alleged in the Notice of Agency Action by clear and convincing evidence and whether such conduct falls within the grounds for administrative action enumerated in [Subsection]Subsections 53-6-211(1) or 53-6-309(1).

[B.](2) All adjudicative proceedings initiated by the division for the purpose of suspending or revoking a [peace officer's]respondent's certification shall be formal proceedings as provided by Section 63G-4-202.

 

R728-409-[8]6. Commencement of Adjudicative Proceedings - Filing of the Notice of Agency Action.

[A.](1) Except as provided by 63G-4-502 , all adjudicative proceedings initiated by the division for the purpose of suspending or revoking a [peace officer's]respondent's certification shall be commenced by the filing of a Notice of Agency Action.

[B.](2) The Notice of Agency Action shall be signed by the director and [shall ]comply with the requirements of Section 63G-4-201.

[C.](3) The Notice of Agency Action shall be filed with the division and a copy [shall be ]sent to the respondent by certified mail.

 

R728-409-[9]7. Responsive Pleadings.

[A.](1) The respondent [must]shall file [with the division ]a written response with the division, signed by the respondent or [his]the respondent's attorney, within 30 days [of the mailing date of]from the date the Notice of Agency Action is signed by the director.

[B.](2) The written response [must]shall comply with the requirements in Section 63G-4-204.

 

R728-409-[10]8. [Consent Agreements]Hearing Waivers.

[A.](1) Once a Notice of Agency Action has been issued, the division [may seek a consent agreement with]shall send a hearing waiver form to the respondent.

[B.](2) The respondent [will]shall have [20]30 days from the date [that ]the [consent agreement]Notice of Agency Action is signed by the director to [respond to the division regarding the consent agreement]sign a hearing waiver.

[C.](3)(a) If [a consent agreement is not sought or is not reached]the respondent does not waive the right to a hearing before the ALJ, the adjudicative proceeding will continue.

(b) The period of time in which the respondent must file a responsive pleading to the Notice of Agency Action is not extended if the [parties are unable to reach a consent agreement]respondent does not sign a hearing waiver.

[D. If a consent agreement is reached, it shall be signed by the respondent and the director and be filed with the division. The consent agreement shall indicate that](4) If the respondent signs a hearing waiver and files it with the division, the matter shall be heard at the next regularly scheduled council meeting.

 

R728-409-[11]9. Default.

[A.](1) The ALJ may enter an order of default against a [party]respondent if:

[1.](a) the respondent fails to file the response required [by]in rule R728-409-[9]7; or

[2.](b) the respondent fails to attend or participate in the hearing.

[B.](2) The order of default shall include a statement of the grounds for default and shall indicate that the matter will be heard at the next regularly scheduled council meeting.

[C. The ALJ shall issue the order of default.](3) The order of default shall be filed with the division and a copy [shall be ]sent to the respondent by certified mail.

[D.](4)(a) The respondent may seek to set aside the default order by filing a motion within 3 months [of]from the date of the order of default.

(b) The ALJ may set aside [the]an order of default before the matter is heard by the council for good cause shown.

 

R728-409-[12]10. Scheduling a Hearing before the ALJ.

[A. After](1)(a) If the division receives [the]a responsive pleading from the respondent, a notice [of]containing the location, date and time for the hearing [will]shall be issued by the division.

(b) The notice of hearing shall be filed with the division and a copy [shall be ]sent to the respondent by certified mail.

[B.](2) The hearing [will]shall be held within a reasonable time after service of the responsive pleading unless a later scheduling is ordered by the ALJ, or mutually agreed upon by the respondent and the division.

 

R728-409-[13]11. Discovery and Subpoenas.

[A.](1)(a) In formal POST adjudicative proceedings parties may conduct only limited discovery.

(b) A respondent's right to discovery does not extend to interrogatories, requests for admissions, request for the production of documents, request for the inspection of items, or depositions.

[B.](2) Upon request, the respondent is entitled to a copy of the materials contained in the division's investigative file that the division intends to use in the adjudicative proceeding.

[C.](3)(a) The disclosure of all discovery materials is subject to the provisions in the Government Records Access and Management Act, Section 63G-2-101 et seq.

(b)  The division may charge a fee for discovery in accordance with Section 63G-2-203.

[D.](4) Subpoenas and other orders to secure the attendance of witnesses or the production of evidence for adjudicative proceedings shall be issued by the division pursuant to [Section]Sections 53-6-210 and 53-6-308, by the ALJ when requested by any party, or by the ALJ on his own motion pursuant to Section 63G-4-205.

 

R728-409-[14]12. Hearing Procedures.

[A.](1) All hearings shall be conducted by the ALJ [according to the requirements of]in accordance with Section 63G-4-206.

[B.](2)(a) At the hearing, the respondent has the right to be represented by an attorney.

(b) Legal counsel will not be provided to the respondent by the division and all costs associated with representation will be the sole responsibility of the respondent.

 

R728-409-[15]13. ALJ Decision.

[A.](1)(a) Within 30 days from the date a hearing is held, the ALJ shall sign and issue a written decision, which [shall include]includes a statement of:

[1.](b) the ALJ's findings of fact based exclusively on the evidence of record in the adjudicative hearing or on facts officially noted;

[2.](c) the ALJ's conclusions of law; and

[3.](d) the reasons for the ALJ's decision.

[B.](e) If the ALJ [finds that]determines there is sufficient evidence to find that the respondent engaged in conduct in violation of [Subsection]Subsections 53-6-211(1) or 53-6-309(1), the ALJ's decision shall indicate that the matter will be heard at the next regularly scheduled council meeting.

[C.](3) If the ALJ [finds that]determines there is insufficient evidence to find that the respondent engaged in conduct in violation of [Subsection]Subsections 53-6-211(1) or 53-6-309(1), the matter [will]shall be dismissed.

[D.](4) The [ALJ shall file the]ALJ's decision shall be filed with the division and a copy [shall be ]sent to the respondent by certified mail.

 

R728-409-[16]14. Action by the Council.

[A. Once a consent agreement has been reached or](1) If the respondent waives the right to a hearing with a ALJ, there has been an order of default, or a decision is issued by the ALJ, the division shall present the matter to the council at [their]its next regularly scheduled meeting. [The]

(2) The division shall notify the respondent of the date, time, and location of the council meeting.

(3)(a) Prior to the council meeting, the division shall provide the council with the pleadings contained in the administrative file.

(b) The division shall also provide the council with any written information or comments provided by the [chief, sheriff, or administrative officer of the ]respondent's [employing agency]employer.

[B.](4) At the council meeting the respondent or the respondent's attorney may address the council regarding whether the respondent's [peace officer ]certification should be suspended or revoked.

[C.](5) The council shall review the matter and [shall ]determine whether suspension or revocation of the respondent's [peace officer ]certification is appropriate based upon the facts of the case and the POST Disciplinary Guidelines which were adopted on June 7, 2010 and amended on [March 22, 2012]June 5, 2013.

 

R728-409-[17]15. Final Order.

[A.](1) After the council has decided the matter, the council chairperson shall issue a final order within 30 days of the council meeting.

[B.](2) The final order shall indicate the action taken by the council with regards to the respondent's [peace officer ]certification and shall include information on the appeal process outlined in R728-409-[18]16.

[C.](3) The council's action shall be effective on the date that the final order is [issued]signed by the chairperson.

[D.](4)(a) The [council chairperson shall file the ]final order shall be filed with the division.

(b) A copy of the final order shall be sent to :

(i) the respondent by certified mail ; and

(ii) the respondent's [employing agency]employer by regular mail, if the respondent is employed as peace officer or dispatcher.

 

R728-409-[18]16. Judicial Review.

[A.](1) A respondent may obtain judicial review of the council's action by filing a petition for judicial review with the Utah Court of Appeals within 30 days after the date that the final order is issued by the council chairperson.

[B.](2) The petition must meet all requirements specified in Sections 63G-4-401 and 63G-4-403.

 

R728-409-17. Relinquishment Procedures.

(1) At any time after the division receives a complaint that a respondent has engaged in conduct described in Subsections 53-6-211(1) or 53-6-309(1), a respondent who is the subject of the complaint may voluntarily relinquish the respondent's certification by submitting a Relinquishment of Certification form to the division.

(2) The Relinquishment of Certification form must be signed by the respondent and notarized.

(3) As soon as the division receives a properly executed Relinquishment of Certification form, the respondent's certification shall be terminated and the respondent will no longer be a certified peace officer or dispatcher.

(4) Upon the termination of the respondent's certification, the division's investigation into the complaint and any adjudicative proceedings will cease.

(5) Notice of the termination of the respondent's certification shall be provided to:

(a) the respondent;

(b) the respondent's employer if the respondent is employed as a peace officer or dispatcher; and

(6) the National Peace Officer De-Certification database administered by the International Association of Directors of Law Enforcement Standards and Training, if the respondent is a peace officer.

 

KEY: [law enforcement officers, ]certification, investigations, revocation, relinquishment[rules and procedures]

Date of Enactment or Last Substantive Amendment: [August 6, 2012]2014

Notice of Continuation: December 21, 2011

Authorizing, and Implemented or Interpreted Law: 53-6-211; 53-6-211.5; 53-6-309; 53-6-311