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Senate Engrossed |
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State of Arizona Senate Fifty-fourth Legislature Second Regular Session 2020
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SENATE BILL 1333 |
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AN ACT
amending sections 38‑1104, 38‑1105, 38‑1106, 38‑1110 and 38‑1112, Arizona Revised Statutes; relating to peace officer rights.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 38-1104, Arizona Revised Statutes, is amended to read:
38-1104. Internal investigations; employee representative; polygraph examination; exception
A. If an employer interviews a law enforcement officer in the course of an administrative investigation and the employer or law enforcement officer reasonably believes that the interview could result in dismissal, demotion or suspension:
1. unless the officer waives the right to written notice or immediate action is necessary to preserve evidence, the employer shall provide the law enforcement officer with a written notice of the intent to interview the law enforcement officer at least one calendar day before the interview. The notice must provide the date, time and location of the interview, the specific alleged policy violations and the officer's right to have a representative at the interview. The employer may include any investigative materials when providing the notice of intent to interview.
1. 2. The law enforcement officer may request to have a representative of the officer present at no cost to the employer during the interview. The law enforcement 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 not be an attorney and shall be from the same agency except that if a representative from the same agency is not reasonably available, with the employer's permission, the law enforcement officer's representative may be from the law enforcement officer's professional membership organization. The law enforcement officer's representative may take notes during the interview. The law enforcement officer and the officer's representative and attorney may use notes taken during the interview only to assist the officer in an investigation or a disciplinary matter. Notes taken by the law enforcement officer, the officer's representative or the officer's attorney do not constitute an official record of the interview. The law enforcement officer may discuss the officer's interview with the officer's representative or attorney. If the law enforcement officer or the officer's representative or attorney releases information without authorization, the employer may subject the law enforcement officer or the officer's representative, if the representative is from the same agency, to disciplinary action. The law enforcement officer shall be permitted allowed reasonable breaks of limited duration during any interview for telephonic or in person consultation with authorized persons, including an attorney, who are immediately available. An employer shall not discipline, retaliate against or threaten to retaliate against a law enforcement officer for requesting that a representative be present or for acting as the representative of a law enforcement officer pursuant to this paragraph.
2. 3. Before the commencement of any interview described in this section, the employer shall provide the law enforcement 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 employer shall provide the law enforcement officer with a copy of the written notice that the officer may retain. Along with the notice, the employer shall provide any relevant and readily available materials, including complaints that contain the alleged facts, except for complaints that are filed with the employer and that include allegations of unlawful discrimination, harassment or retaliation or complaints that involve matters under the jurisdiction of the United States equal employment opportunity commission. The format of the materials may be written, audio or video.
3. 4. In the course of an administrative investigation, the law enforcement officer is allowed to record the officer's own interview. Recordings made by the law enforcement officer, the officer's representative or the officer's attorney do not constitute an official record of the interview.
5. In an interview during an administrative investigation, an employer:
(a) May ask the law enforcement officer only questions that are material and relevant to the alleged misconduct that is described in the notice of investigation.
(b) May not intentionally misrepresent that direct evidence of the officer's misconduct exists when the evidence does not exist.
(c) Is not precluded from establishing that the alleged misconduct is part of a pattern or habit.
4. 6. At the conclusion of the interview, the law enforcement officer 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 during the interview.
2. Disclose any fact to the law enforcement officer or the law enforcement officer's representative that would impede the investigation.
C. Subsection A, paragraphs 1, and 2 and 3 of this section do not apply to an interview of a law enforcement 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.
2. Preliminary questioning to determine the scope of the allegations or if an investigation is necessary.
3. Conducted during the course of a criminal investigation.
4. Conducted during the course of a polygraph examination.
D. The employer may require the law enforcement 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 subsection, 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. Section 38‑1108 applies to a polygraph examination that is administered pursuant to this subsection.
E. If after an employer completes an investigation of a law enforcement officer the employer seeks disciplinary action, at the request of the law enforcement officer, the employer shall provide a basic summary of any discipline ordered against any other law enforcement 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 a hearing until the basic summary or file copies are provided to the law enforcement officer.
F. This section does not apply to a law enforcement officer who is employed by an agency of this state as an at will employee.
Sec. 2. Section 38-1105, Arizona Revised Statutes, is amended to read:
38-1105. Law enforcement officer as witness; right to representation; exception
A. If a law enforcement officer is designated as a witness by the law enforcement officer's employer in an investigation that could lead to another law enforcement officer's dismissal, demotion or suspension, the witness law enforcement officer may request to have a representative present at no cost to the employer during the witness interview. 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 witness law enforcement officer's representative may be from the witness law enforcement officer's professional membership organization. The witness law enforcement officer's representative may take notes during the interview.
B. The witness law enforcement officer shall answer all questions asked by the law enforcement officer's department investigator, and information learned during a witness interview is considered proprietary and confidential by the employer and shall remain so until the witness law enforcement officer is served with a notice of investigation by the employer or the witness law enforcement officer is released from the confidentiality requirements of this section.
C. The witness law enforcement officer may discuss the law enforcement officer's witness interview with the witness law enforcement officer's representative or that representative's legal counsel. The witness law enforcement officer, the witness law enforcement officer's representative or that representative's legal counsel may use the witness law enforcement officer officer's representative's notes only to assist the law enforcement officer in any investigation or disciplinary matter. Notes taken by the witness law enforcement officer, the witness law enforcement officer's representative or that representative's legal counsel do not constitute an official record of the interview. If the witness law enforcement officer or the witness law enforcement officer's representative releases information without authorization, the employer may subject the witness law enforcement officer or the witness law enforcement officer's representative to disciplinary action.
D. This section does not apply to a law enforcement officer who is employed by an agency of this state as an at will employee.
Sec. 3. Section 38-1106, Arizona Revised Statutes, is amended to read:
38-1106. Appeal of disciplinary actions; transcripts; change of hearing officer or administrative law judge; burden of proof; exception
A. In any appeal of a disciplinary action by a law enforcement officer, the parties shall cooperate with each other, act in good faith and exchange copies of all relevant documents and a list of all witnesses pursuant to the following time periods and requirements:
1. Within fourteen calendar days after the employer's receipt of a written request from the law enforcement 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 contact information for all persons interviewed during the course of the investigation.
2. Not later than fourteen calendar days before the appeal hearing, the parties shall produce and serve on every party the following information:
(a) The name of each witness whom the disclosing party expects to call at the appeal hearing, with a designation of the subject matter on which each witness might be called to testify. A witness may decline an interview. 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.
(b) The name and contact information of each person who has given statements, whether written or recorded or signed or unsigned, regarding matters relevant to the notice of discipline and the custodian of the copies of those statements.
(c) Copies of any documents that may be introduced at the hearing and that have not previously been disclosed.
3. The duty to disclose information continues to exist throughout the process and up to the end of the appeal process.
B. It is unlawful for a person to disseminate information that is disclosed pursuant to subsection A 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.
C. If a transcript is required in an administrative hearing, the employer shall obtain the transcript and provide a copy to the law enforcement officer within ten calendar days after the employer's receipt of the transcript.
D. Failure to comply with the requirements of subsection A or B of this section shall result in the exclusion of the witness, evidence or testimony, unless the failure to comply is because of excusable neglect.
E. The employer or the law enforcement 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 believes should not be disclosed pursuant to subsection A 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.
F. In any appeal of a disciplinary action by a law enforcement officer in which a single hearing officer or administrative law judge has been appointed to conduct the appeal hearing, the law enforcement officer or the employer, within ten calendar days after the appointment of the hearing officer or administrative law judge, 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, 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, if necessary to comply with this subsection, for an alternate hearing officer by means of an interagency agreement with another city, town or county. If the law enforcement officer is the party who requested the alternate hearing officer, the law enforcement 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 employer the option of continuing the hearing for an additional ten calendar 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.
G. The employer has the burden of proof in an appeal of a disciplinary action by a law enforcement officer.
H. Except where a statute, rule or ordinance makes The administrative evidentiary hearing the final administrative determination and after a hearing where the law enforcement 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, an employer or a person acting on behalf of an employer may amend, modify, reject or reverse the portion of a decision made by a hearing officer, administrative law judge or appeals board that was arbitrary or without reasonable justification. The employer or person acting on behalf of the employer shall state the reason for the amendment, modification, rejection or reversal.
I. Notwithstanding chapter 3, article 3.1 of this title, all hearings pursuant to this section shall be open to the public. Executive sessions permitted allowed pursuant to section 38‑431.03 shall be limited to legal advice to a personnel appeals board or for deliberations.
J. A law enforcement officer who prevails in an appeal where a termination has been reversed shall be awarded retroactive compensation from the date of the officer's separation to the date of reinstatement. The hearing officer, administrative law judge or appeals board hearing the appeal shall determine the amount of retroactive compensation awarded and any reduction to that amount. Retroactive compensation may be reduced:
1. If there is undue delay in setting a hearing date caused by the law enforcement officer or the law enforcement officer's representative.
2. If the law enforcement officer requests a continuance.
3. If there exists a period between separation and reinstatement that the law enforcement officer would have been unable to perform the duties of a law enforcement officer.
4. By any amount earned by the law enforcement officer in alternative employment.
5. If the hearing officer, administrative law judge or appeals board finds that the law enforcement officer's action or misconduct warrants suspension or demotion.
K. The hearing officer, administrative law judge or appeals board shall state in every finding of disciplinary action whether or not just cause existed for the disciplinary action.
L. A hearing officer, an administrative law judge and members of an appeals board or a commission that hears an appeal of a disciplinary action are public officials and shall take evidence and have the authority to SUBPOENA a witness.
L. M. The hearing officer, administrative law judge or appeals board shall document in the record those circumstances where the hearing officer, administrative law judge or appeals board determines that a party has clearly violated a party's obligation under this section.
M. N. This section does not apply to a law enforcement officer who is employed by an agency of this state as an at will employee.
Sec. 4. Section 38-1110, Arizona Revised Statutes, is amended to read:
38-1110. Time limitation on disciplinary action against law enforcement officer; exceptions
A. An employer shall make a good faith reasonable effort to complete any investigation of employee misconduct within one hundred eighty calendar days after the employer receives notice of the allegation by a person authorized by the employer to initiate an investigation of the misconduct. The investigation is considered complete on the date the employee is served with the notice of discipline or the notice of findings. Before the employer exceeds the one hundred eighty calendar day limit, the employer shall provide the employee with a written explanation containing the reasons the investigation continued beyond one hundred eighty calendar days.
B. The limitation period established by subsection A of this section:
1. Is suspended during the time that any criminal investigation or prosecution is pending in connection with the act, omission or other allegation of misconduct.
2. Is suspended during the period of time in which a law enforcement officer who is involved in the investigation is incapacitated or otherwise unavailable.
3. May be suspended for a period prescribed in a written waiver of the limitation by the law enforcement officer.
4. May be suspended for emergencies or natural disasters during the time period in which the governor has declared a state of emergency within the jurisdictional boundaries of the concerned employer.
5. In a multijurisdictional investigation, may be extended for a period of time reasonably necessary to facilitate the coordination of the employers involved.
C. On an appeal of discipline by the employee, a hearing officer, administrative law judge or appeals board may dismiss the discipline if it is determined that the employer did not make a good faith effort to complete the investigation within one hundred eighty calendar days. The allegation regarding any act, omission or other misconduct may be sustained, and the employee's record shall reflect that the allegation was sustained but no discipline was administered due to the finding of the hearing officer, administrative law judge or appeals board that the employer did not make a good faith effort to complete the investigation in one hundred eighty calendar days. The sustained discipline may be considered when determining discipline in any future sustained misconduct allegation. If the employer determines that disciplinary action is appropriate, the employer shall complete the employer's investigation and give notice in writing to the law enforcement officer of the employer's intent to proceed with disciplinary action, along with a proposal of the specific action sought, including length of suspension, if applicable.
D. This section does not apply to a law enforcement officer who is employed by an agency of this state as an at will employee.
Sec. 5. Section 38-1112, Arizona Revised Statutes, is amended to read:
38-1112. Law enforcement officers; fitness for duty examinations; rights of officers; definitions
A. An employer may order a law enforcement officer to submit to a physical, mental or BEHAVIORAL examination only if the law enforcement officer has acted or failed to act in an observable manner that indicates that there is a physical condition materially limiting the law enforcement officer's ability to perform the essential functions of the law enforcement officer's job within the law enforcement officer's job description. The order shall state all of the specific objective facts on which the order for the physical exam examination is based except that the order may omit the specific names of individuals who reported the law enforcement officer's conduct to the supervisor.
B. The order shall provide at least ten fourteen calendar days' notice to the law enforcement officer to be examined and shall specify the time, place, manner, conditions and scope of the examination and the person or persons who will conduct the examination. The law enforcement officer to be examined may have a representative present during the examination if the physician professional conducting the examination agrees.
C. The employer shall provide the law enforcement officer with the final report of the examination containing the medical professional's findings. The employer may provide and any additional information related to the fitness for duty examination to the examining physician.
D. The report shall be provided only to the employer and the law enforcement officer and shall not be provided to any other person except as required for any subsequent appeal or certification action involving the law enforcement officer. The employer shall provide notice to the law enforcement officer that the report has been received by the employer. The report shall be provided to the law enforcement officer immediately if the law enforcement officer presents the final report of an independent medical examination or if the law enforcement officer waives any right to request an independent medical examination within three business days. If the law enforcement officer does not present the results of an independent medical examination within twenty thirty calendar days after the employer provides notice a copy of the report to the law enforcement officer that the report has been received by the employer, the law enforcement officer is deemed to have waived the right to present the results of the independent medical examination.
E. The employer shall make a reasonable good faith effort to deliver the report to the law enforcement officer.
F. E. The physician professional may consider and report on only the law enforcement officer's medical or other records that are directly relevant to the actions in question and when conducting the examination, including medical records that record preexisting conditions that are relevant to the examination. The physician professional may additionally consider and report any condition of the law enforcement officer that the physician professional identifies during the course of the physical examination and that endangers the safety of the law enforcement officer or the community.
G. F. The employer shall not take any final action until after the law enforcement officer has had at least twenty thirty calendar days to review the report unless the law enforcement officer waives the twenty-day thirty‑calendar‑day period or the employer grants an extension.
H. G. This section does not prohibit the preexamination materials from being used in any proceeding held pursuant to section 38‑1104.
I. H. Providing the preexamination materials to the person conducting the independent examination of the law enforcement officer does not change the disclosure requirements under section 38‑1104.
I. Only a licensed psychiatrist or licensed psychologist may make a diagnosis of post-traumatic stress.
J. For the purposes of this section:
1. "Independent medical examination" means an assessment that is requested by a law enforcement officer, that is conducted by a physician professional who is licensed pursuant to title 32, chapter 13, or 17 or 33 and that is used to provide a second, independent opinion of a current law enforcement officer who has been determined to not be able to perform essential functions of the job as a result of observation and a subsequent employer-ordered physical examination.
2. "Law enforcement officer" means:
(a) A regularly employed and paid individual, other than a probationary employee, who is certified by the Arizona peace officer standards and training board and who is working in a position requiring certification by the Arizona peace officer standards and training board, other than a person employed by a multi‑county water conservation district, an at-will employee or a voluntary or reserve employee.
(b) A corrections officer or detention officer, other than a juvenile detention officer, who is employed by this state or a political subdivision of this state.
3. "Licensed psychiatrist or licensed psychologist" means a behavioral health examiner who is licensed or has a specialty in the treatment and care of law enforcement or military members who have post‑traumatic stress injuries, disorders or conditions.
3. 4. "Preexamination materials" means all information or materials that the employer gives to the physician professional who conducts the physical examination and that serve as the basis for the examination, including preemployment materials.
5. "Professional" means a medical physician, a licensed psychologist or psychiatrist or any other licensed individual that provides a physical, mental or behavioral evaluation or an opinion on a law enforcement officer subsequent to an employer's order.