No. 43666 (Amendment): Rule R728-409. Suspension, Revocation, or Relinquishment of Certification

(Amendment)

DAR File No.: 43666
Filed: 04/25/2019 10:29:34 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

Update information and disciplinary guidelines recently approved by the Peace Office Standards and Training (Post) Council. Outline that a letter of support from a law enforcement administrator should include a description of the agency's form of discipline imposed upon the officer. This will enable the POST Council to consider all disciplinary remedies as it considers imposing a sanction and an associated time frame. Additionally, explain that all Final Order information will be entered into the National Decertification Index Database.

Summary of the rule or change:

Provide guidance to POST staff and law enforcement administrators for letters submitted to the POST Council on behalf of an officer facing discipline for misconduct. Administrators should include their agency's disciplinary remedy so the Council can consider all forms of discipline the officer has experienced as it formulates a sanction. Additionally, notify the public that all POST Council disciplines will be entered in the National Peace Officer Decertification Index database once the Final Order is signed by the Council chair.

Statutory or constitutional authorization for this rule:

Section 53-6-211.5
Section 53-6-211
Section 53-6-311
Section 63-6-309

Anticipated cost or savings to:

the state budget:

POST does not anticipate any costs or savings to the State budget as a result of this administrative rule change because this rule only requires a law enforcement administrator to articulate, in a letter of support for the officer in question, what form of discipline was meted out by the employing agency.

local governments:

POST anticipates that there could be costs to local governments as a result of this administrative rule change because the rule change will require a law enforcement administrator to articulate, in a letter of support, for the officer in question, what form of discipline was meted out by the employing agency. This will impact officers that are investigated by POST for violations of Section 53-6-211, and could potentially result in a cost being incurred due to replacing an officer that was sanctioned by the POST Council (these hiring cost vary greatly from agency to agency, therefore, difficult to provide an aggregate number).

small businesses:

POST does not anticipate any costs or savings to small business as a result of this administrative rule change because this rule only requires a law enforcement administrator to articulate, in a letter of support for the officer in question, what form of discipline was meted out by the employing agency. This proposed administrative rule change will have zero impact on Utah's small business community.

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

POST anticipates that there could be a cost to persons other than small businesses, businesses and local government entities as a result of this rule change. There may be training costs for those officers who receive a four-year sanction because they would be required to go through the academy again to earn a peace officer certification if they desired to be rehired as a law enforcement officer. Therefore, they would encumber the associated training costs if they attend a satellite academy versus being hired and sponsored by a law enforcement agency. Over the last four years the POST Council has sentenced seven officers with a four-year sanction. The related costs to earn a law enforcement certification range between $3,200 up to $6,000 per individual. (Total for seven people to earn a law enforcement certification ranges from $22,400 to $42,000).

Compliance costs for affected persons:

POST does anticipate compliance costs for the affected person(s) as a result of this administrative rule change. Over the last four years the POST Council has sentenced seven officers with a four year sanction. The related costs to earn a law enforcement certification range between $3,200 up to $6,000 per individual. (Total for seven people to earn a law enforcement certification ranges from $22,400 to $42,000).

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

There are no non-small businesses in Utah that will be impacted by this rule change. The rule change only specifies that a law enforcement administrator is required to articulate, in a letter of support for the officer in question, what form of discipline was meted out by the employing law enforcement agency. The head of the Department of Public Safety, Commissioner Jess Anderson, has reviewed and approved this fiscal analysis.

Jess Anderson, Commissioner

The full text of this rule may be inspected, during regular business hours, at the Office 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:

Scott Stephenson at the above address, by phone at 801-256-2322, by FAX at 801-256-0600, or by Internet E-mail at sstephen@utah.gov
Kim Gibb at the above address, by phone at 801-556-8198, by FAX at 801-964-4482, or by Internet E-mail at kgibb@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:

06/14/2019

This rule may become effective on:

06/21/2019

Authorized by:

Scott Stephenson, Director

RULE TEXT

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs

FY 2019

FY 2020

FY 2021

State Government

Local Government

Small Businesses

Non-Small Businesses

Other Person

Total Fiscal Costs:

Fiscal Benefits

State Government

Local Government

Small Businesses

Non-Small Businesses

Other Persons

Total Fiscal Benefits:

Net Fiscal Benefits:

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described above. Inestimable impacts for Non - Small Businesses are described below.

Appendix 2: Regulatory Impact to Non - Small Businesses

There are no non-small businesses in Utah that will be impacted by this rule change. These rule changes only specify that a law enforcement administrator is required to articulate, in a letter of support for the officer in question, what form of discipline was meted out by the employing law enforcement agency.

The Commissioner of the Department of Public Safety, Jess L. Anderson, has reviewed and approved this fiscal analysis.

R728. Public Safety, Peace Officer Standards and Training.

R728-409. Suspension, Revocation, or Relinquishment of Certification.

R728-409-1. Authority.

This rule is authorized by Subsection 53-6-105(1)(k), which 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, revocation, or relinquishment of a respondent's certification.

R728-409-3. Definitions.

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

(2) In addition:

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

(b) "On duty" means that a respondent is:

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

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

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

(iv) in a law enforcement vehicle which is located in a public place; or

(v) in a public place and is wearing a badge or uniform, authorized by 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, to include any and all peace officer or dispatcher certifications, 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;

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

(e) "Revocation" means the permanent deprivation of a respondent's certification, to include any and all peace officer or dispatcher certifications, 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;

(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

(g) "Suspension" means the temporary deprivation of a respondent's certification, to include any and all peace officer or dispatcher certifications; and,

(h) "Traffic offense" means all offenses in the following parts:

(i) 41-6a, Part 3, Traffic-Control Devices;

(ii) 41-6a, Part 6, Speed Restrictions;

(iii) 41-6a, Part 7, Driving on Right Side of Highway and Passing;

(iv) 41-6a, Part 8, Turning and Signaling for Turns;

(v) 41-6a, Part 9, Right-of-Way;

(vi) 41-6a, Part 10, Pedestrians' Rights and Duties;

(vii) 41-6a, Part 11, Bicycles, Regulations of Operation;

(viii) 41-6a, Part 12, Railroad Trains, Railroad Grade Crossings, and Safety Zones;

(ix) 41-6a, Part 13, School Buses and School Bus Parking Zones;

(x) 41-6a, Part 14, Stopping, Standing, and Parking;

(xi) 41-6a, Part 15, Special Vehicles;

(xii) 41-6a, Part 16, Vehicle Equipment;

(xiii) 41-6a, Part 17, Miscellaneous Rules; and

(xiv) 41-6a, Part 18, Motor Vehicle Safety Belt Usage Act.

R728-409-4. Investigative Procedure.

(1) The division shall initiate an investigation when it receives information from any reliable source that a violation of Subsections 53-6-211(1) or 53-6-309(1) has occurred, including when:

(a) A respondent is charged with or convicted of a crime;

(b) There is evidence a respondent has engaged in conduct which is a criminal act under law, but which has not been criminally charged or where criminal prosecution is not anticipated;

(c) A respondent's employer notifies the division that the respondent has been investigated, disciplined, terminated, retired or resigned as a result of conduct in violation of Subsections 53-6-211(1) or 53-6-309(1);

(d) A person makes a complaint regarding a violation of Subsections 53-6-211(1) or 53-6-309(1) and there is independent evidence to support the complaint;

(e) violation of 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

(f) A background investigation indicates that a respondent has engaged in conduct in violation of Subsections 53-6-211(1) or 53-6-309(1).

(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).

(3) A person seeking to file a complaint against a respondent may be 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.

(4) An investigator from the division shall be assigned to investigate the complaint and ensure that the investigation is fully documented in the investigative case file.

(5)(a) If a respondent under investigation is employed as peace officer or dispatcher, the division shall notify the respondent's employer concerning the complaint or 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 the employer and the respondent are notified.

(6) The division shall refer any complaints 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.

(7) If the respondent's employer has an open and active investigation, the division may wait until the employer has completed its investigation before taking action unless the division determines it is not in the public's best interest to delay the investigation.

(8) The division may use the information gathered by the respondent's employer in its investigation.

(9) The division shall take action based on the actual conduct of the respondent as determined by the division's own independent investigation, not on any findings or sanctions issued by the respondent's employer or the court.

(10) Witnesses and other evidence may be subpoenaed during an investigation pursuant to Sections 53-6-210 and 53-6-308.

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

(12) The director may immediately suspend a 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.

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

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

R728-409-5. Purpose of Adjudicative Proceedings.

(1) The purpose of an adjudicative proceeding is to determine whether there is sufficient evidence to find that the respondent engaged in the 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 Subsections 53-6-211(1) or 53-6-309(1).

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

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

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

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

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

R728-409-7. Responsive Pleadings.

(1) The respondent shall file a written response with the division, signed by the respondent or the respondent's attorney, within 30 days of the mailing date of the Notice of Agency Action.

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

R728-409-8. Hearing Waivers.

(1) Once a Notice of Agency Action has been issued, the division shall send a hearing waiver form to the respondent.

(2) The respondent shall have 30 days from the mailing date of the Notice of Agency Action to sign a hearing waiver.

(3)(a) If 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 respondent does not sign a hearing waiver.

(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.

R728-409-9. Default.

(1) The ALJ may enter an order of default against a respondent if:

(a) The respondent fails to file the response required in rule R728-409-7; or

(b) The respondent fails to attend or participate in the hearing.

(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.

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

(4)(a) The respondent may seek to set aside the default order by filing a motion within 90 days from the date of the order of default as provided in Section 63G-4-209.

(b) The ALJ may set aside an order of default for good cause shown.

R728-409-10. Scheduling a Hearing before the ALJ.

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

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

(2) The hearing 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.

R728-409-11. Discovery and Subpoenas.

(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.

(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.

(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.

(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 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.

R728-409-12. Hearing Procedures.

(1) All hearings shall be conducted by the ALJ in accordance with Section 63G-4-206.

(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.

R728-409-13. ALJ Decision.

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

(a) The ALJ's findings of fact based exclusively on the evidence of record in the adjudicative hearing or on facts officially noted;

(b) The ALJ's conclusions of law; and

(2) If the ALJ determines there is sufficient evidence to find that the respondent engaged in conduct in violation of 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.

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

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

R728-409-14. Action by the Council.

(1) If the respondent waives the right to a hearing with an ALJ, there has been an order of default, or a findings of fact is issued by the ALJ, the division shall present the matter to the council at its next regularly scheduled meeting.

(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 respondent's employer.

(c) Any written comments from the respondent's employer should include discipline administered by the respondent's employer as a result of any violation of Section 56-6-211.

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

(5) The council shall review the matter and determine whether suspension or revocation of the respondent's 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 [~~January 4, 2016~~]June 14, 2018.

R728-409-15. Final Order.

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

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

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

(4)(a) 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 employer by regular mail, if the respondent is employed as peace officer or dispatcher.

(c) The action taken by the council shall be entered into the International Association of Directors of Law Enforcement Standards and Training National Peace Officer De-Certification database, if the respondent is a peace officer.

R728-409-16. Judicial Review.

(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.

(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)~~](c) 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.

R728-409-18. Reporting Violations of 53-6-211(1) or 53-6-309(1).

(1) A chief, sheriff or administrative officer of an agency employing a certified peace officer or dispatcher who is made aware of an allegation against a certified peace officer or dispatcher employed by that agency as provided in Subsection 53-6-211(6)or 53-6-309(6)shall report the allegation to the division within 90 days if the allegation is found to be true.

(2) A chief, sheriff or administrative officer of an agency employing a certified peace officer or dispatcher who fails to report to the division within 90 days an allegation that is found to be true shall appear before the council at the next regularly scheduled council meeting to explain why the allegation was not reported.

KEY: certifications, investigations, revocations, relinquishments

Date of Enactment or Last Substantive Amendment: [~~November 12, 2015~~]2019

Notice of Continuation: December 19, 2016

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