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ARIZONA STATE SENATE
Fifty-Fourth Legislature, Second Regular Session
peace officer rights; due process
Purpose
Modifies requirements and restrictions relating to internal investigations of law enforcement officers (officers), including administrative investigation interviews (interviews) and fitness for duty examinations.
Background
Under current law, if an employer interviews an officer in the course of an administrative investigation and the employer or officer reasonably believes that the interview could result in dismissal, demotion or suspension: 1) the officer may request to have a representative present at no cost to the employer during the interview; 2) the employer must provide the officer with a written notice before any interview informing the officer of specified information, including the alleged facts that are the basis of 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; 3) the officer may record their own interview; and 4) upon conclusion of the interview, the officer is entitled to a period of time to consult with their representative and is allowed to make a statement not exceeding five minutes addressing facts or policies related to the interview (A.R.S. § 38-1104).
Statute allows an employer to order an officer, with at least 10 calendar days' notice, to submit to a physical examination only if the officer has acted or failed to act in an observable manner that indicates there is a physical condition materially limiting the officer's ability to perform the essential functions of the officer's job within the officer's job description. An employer must provide the officer with the final report of the fitness for duty examination containing the medical professional's findings and may provide any additional information to the examining physician. An employer must provide notice to the officer that they have received the report and the employer must make a reasonable good faith effort to deliver the report to the officer. The report must be provided to the officer immediately if an officer presents the final report of an independent medical examination or waives any right to request an independent medical examination. If the officer does not present the results of an independent medical examination within 20 calendar days after the employer provides notice to the officer that the report has been received, the officer is deemed to have waived the right to present the results of an independent medical examination (A.R.S. § 38-1112).
There is no anticipated fiscal impact to the state General Fund associated with this legislation.
Provisions
Internal Administrative Investigations
1. Requires an employer, unless the officer waives the right to a written notice or immediate action is necessary, to provide to the officer a written notice of the intent to interview the officer at least 1 calendar day before the interview.
2. Requires the written notice of intent to interview to include:
a) the date, time and location of the interview;
b) the specific alleged policy violations; and
c) the officer's right to have a representative present at the interview.
3. Allows the employer to include any investigative materials when providing the notice of intent to interview.
4. Limits an employer during an interview to only ask questions of the officer that are material and relevant to the alleged misconduct that is described in the notice of investigation.
5. Prohibits an employer during an interview from intentionally misrepresenting that direct evidence of the officer's misconduct exists when the evidence does not exist.
6. Specifies that an employer during an interview is not precluded from establishing that the alleged misconduct is part of a pattern or habit.
7. Specifies that if an officer under administrative investigation or an officer designated as a witness requests to have a representative present at an interview, it shall be at no additional cost, rather than at no cost, to the employer.
8. Specifies that an officer's or witness officer's representative, if allowed by the employer, may be on duty during the interview.
9. Specifies that an employer is not obligated to compensate a representative for overtime pay during an interview.
10. Requires an employer to make a reasonable effort, rather than a good faith effort, to complete any investigation of employee misconduct within 180 calendar days after the employer receives notice of the allegation.
11. Specifies that an investigation is considered complete only when an employee is served a notice of findings, not when an employee is served a notice of discipline.
Fitness for Duty Examinations
12. Includes mental and behavioral examinations among the examinations that an officer may be ordered to submit to by an employer.
13. Requires that an order for a physical, mental or behavioral examination be provided to an officer with at least 14, rather than 10, calendar days' notice.
14. Specifies that a professional, rather than a physician, may conduct a physical, mental or behavioral examination.
15. Removes the requirement that the final report of the examination include the medical professional's findings.
16. Removes the requirement that an employer provide any additional information related to the fitness for duty examination to an examining physician.
17. Removes the requirement that the final report be provided to the officer immediately if:
a) the officer presents the final report of an independent medical examination; or
b) the officer waives any right to request an independent medical examination.
18. Requires that the final report be provided to the officer within three business days.
19. Stipulates that an officer is deemed to have waived the right to present the results of an independent medical examination if the officer does not present the results of the independent medical examination within 30 calendar days, rather than 20 calendar days, after the employer provides a copy of the final report to the officer.
20. Removes the requirement that the employer must make a reasonable good faith effort to deliver the final report to the officer.
21. Increases, from 20 to 30 calendar days, the amount of time within which an employer may not take any final action until the officer has reviewed the final report, unless the officer waives the 30, rather than 20, calendar-day period.
22. Specifies that only a licensed psychiatrist or licensed psychologist may make a diagnosis of post-traumatic stress.
Appeal of Disciplinary Actions
23. Designates a hearing officer, an administrative law judge and members of an appeals board or a commission that hears an appeal of a disciplinary action as public officials and requires that the public officials take evidence and have authority to subpoena a witness.
24. Removes the requirement that all parties act in good faith upon any appeal of a disciplinary action by an officer.
Definitions
25. Defines licensed psychiatrist and licensed psychologist as 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.
26. Defines professional as 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 an officer subsequent to an employer's order.
27. Modifies the definition of preexamination materials to include preemployment materials.
Miscellaneous
28. Makes technical and conforming changes.
29. Becomes effective on the general effective date.
Prepared by Senate Research
February 3, 2020
ZD/ML/kja