No. 40537 (Repeal and Reenact): Rule R728-411. Guidelines Regarding Administrative Action Taken Against Individuals Functioning As Peace Officers Without Peace Officer Certification Or Powers

(Repeal and Reenact)

DAR File No.: 40537
Filed: 06/23/2016 07:25:55 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule is outdated and requires revision and update.

Summary of the rule or change:

The changes include changing the rule title; adding language clarifying authority and purpose of the rule; and clarifying action to be taken regarding impersonating a peace officer and unauthorized exercise of authority.

State statutory or constitutional authorization for this rule:

• Section 53-13-106
• Section 53-13-103
• Section 53-6-208
• Section 53-6-202
• Section 53-6-105

Anticipated cost or savings to:

the state budget:

There are no costs or savings to the budget with the repeal and reenactment of this rule because the rule was updated to reflect the proper format and to clarify the authority and purpose of the rule and action to be taken regarding impersonating a peace officer and unauthorized exercise of authority.

local governments:

Repealing and reenacting this rule will not have an impact on local government budgets because the rule was updated to reflect the proper format and to clarify the authority and purpose of the rule and action to be taken regarding impersonating a peace officer and unauthorized exercise of authority.

small businesses:

Repealing and reenacting this rule will not have a fiscal impact on small businesses because the rule was updated to reflect the proper format and to clarify the authority and purpose of the rule and action to be taken regarding impersonating a peace officer and unauthorized exercise of authority.

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

The repealing and reenactment of this rule will not impact persons other than small business because the rule was updated to reflect the proper format and to clarify the authority and purpose of the rule and action to be taken regarding impersonating a peace officer and unauthorized exercise of authority.

Compliance costs for affected persons:

There are no compliance costs associated with the repealing and reenactment of this rule because the rule was updated to reflect the proper format and to clarify the authority and purpose of the rule and action to be taken regarding impersonating a peace officer and unauthorized exercise of authority.

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

I have reviewed this rule and found that repealing and reenacting the rule will not have a fiscal impact on businesses.

Keith D. Squires, 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:

• Kelly Sparks at the above address, by phone at 801-256-2321, by FAX at 801-256-0600, or by Internet E-mail at [e-mail]
• Wade Breur at the above address, by phone at 801-256-2329, by FAX at , or by Internet E-mail at [e-mail]
• Kim Gibb at the above address, by phone at 801-556-8198, by FAX at 801-964-4482, or by Internet E-mail at [e-mail]

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:

08/15/2016

This rule may become effective on:

08/22/2016

Authorized by:

Scott Stephenson, Director

RULE TEXT

R728. Public Safety, Peace Officer Standards and Training.

[R728-411. Guidelines Regarding Administrative Action Taken Against Individuals Functioning As Peace Officers Without Peace Officer Certification Or Powers.

R728-411-0.

If an individual is found to be performing the duties and functions of a peace officer without certification or authority as required by Title 53, Chapter 13 Utah Code Annotated, the following procedures will be initiated by the Division of Peace Officer Standards and Training.

1. A letter will be sent to the individual and the individual's employing agency administrator indicating that the individual does not have the statutory authority to act as a peace officer in the State of Utah. The letter will state that the individual should cease any and all activities as a peace officer. The letter will indicate the appropriate option(s) for the individual and employing agency to follow in order for the individual to acquire peace officer authority. Eight days will be given for the individual to respond to the notification before any of the following procedures will be taken by POST.

2. POST will notify those persons or agencies which could be held liable through civil action due to the individual's pretended peace officer authority, notification is to include the subject of the notification, the chief law enforcement administrator of the employing agency, the chief administrator of the jurisdiction, the city prosecutor, county attorney, and/or the Attorney General of the State of Utah, the Sheriff of the county, and any other persons deemed accessible through civil action.

3. If Subsection (a) and (b) have not been acted upon by the individual or the individual's employing agency, the issuance of a writ from the Attorney General's Office to cease and desist from acting as a peace officer in the State of Utah may be made and directed to the individual and the individual's employing agency.

4. If Subsection (a), (b), or (c) have not been acted upon by the individual or the individual's employing agency, criminal charges may be sought against the individual for a violation of Section 76-8-512 U.C.A.

5. The procedures in this Section may also be applied towards any peace officer who has been found to be deficient in the statutory 40-hour yearly training requirement, as per Section 53-6-202 U.C.A., and who continues to perform the duties and functions of a peace officer without having said peace officer powers restored by the Division of Peace Officer Standards and Training, or to any person who attempts to avoid the statutory peace officer certification process.

6. At any time in the above procedures, the Division of Peace Officer Standards and Training may, if cause exists, seek an administrative action against the individual for a violation of Section 53-6-211, if the individual is acting as a peace officer without statutory peace officer authority. ]

R728-411. Guidelines for Administrative Action Against Individuals Functioning As Peace Officers Without Valid Peace Officer Certification.

R728-411-1. 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.

 

R728-411-2. Purpose.

The purpose of this rule is to provide procedures for administrative action when an individual is found to be exercising the authority of a peace officer without valid peace officer certification.

 

R728-411-3. Definitions.

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

 

R728-411-4. Impersonating a Peace Officer.

(1) If the division becomes aware that an individual is illegally exercising the authority of a peace officer, the division shall refer the matter to the proper law enforcement agency having jurisdiction, for the following circumstances:

(a) when an individual has never been certified as a peace officer;

(b) when an individual's certification has been revoked by the council; and

(c) when an individual's certification has lapsed pursuant to Section 53-6-208.

 

R728-411-5. Unauthorized Exercise of Authority.

(1) If the division becomes aware that an individual whose peace officer certification is not currently active is exercising the authority of a peace officer, the division shall follow the administrative process outlined in Section R728-411-6, for the following circumstances;

(a) when an individual's certification has been suspended by the council;

(b) when an individual's certification has been suspended due to an annual training deficiency pursuant to Section 53-6-202;

(c) when an individual's certification has been designated "inactive" pursuant to Section 53-6-208; and

(d) when an individual has completed a basic training program and become certified, but is not "sworn" as provided in Sections 53-13-103 to 53-13-106.

(2) In any of the above circumstances the division may also refer the matter to the proper law enforcement agency having jurisdiction.

 

R728-411-6. Procedures Governing Unauthorized Exercise of Authority.

(1) If an individual is found to be performing the duties and functions of a peace officer without valid certification or authority as outlined in Section R728-411-5, the following procedures will be initiated by the division:

(a) written notice will be sent by standard mail, or electronically, to the individual and the individual's employing agency administrator indicating that the individual does not have the statutory authority to act as a peace officer in the State of Utah; .

(b) The written notice shall:

(i) state that the individual should cease any and all activities as a peace officer; and

(ii) indicate the appropriate procedures for the individual and employing agency to follow in order for the individual to acquire peace officer authority.

(c) The individual must respond to the written notice within ten business days.

(2) Failure to submit a response within ten business days or failure to immediately cease the unauthorized exercise of authority, shall cause the division to seek a writ from the Attorney General's Office to cease and desist from acting as a peace officer in the State of Utah.

(a) The writ will be directed to the individual and the individual's employing agency.

(3) Failure to cease the unauthorized exercise of authority after the issuance of the writ, may result in:

(a) criminal charges being sought against the individual for a violation of Section 76-8-512.; and

(b) administrative action against the individual's certification for a violation of Section 53-6-211.

 

KEY: [professional competency, police training]peace officer certification, impersonating a peace officer

Date of Enactment or Last Substantive Amendment: [April 15, 1997]2016

Notice of Continuation: January 6, 2012

Authorizing, and Implemented or Interpreted Law: [53-13]53-6-105; 53-6-202; 53-6-208; 53-13-103; 53-13-106

 

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