Second Regular Session Sixty-seventh General Assembly STATE OF COLORADO INTRODUCED LLS NO. 10-0243.01 Esther van Mourik SENATE BILL 10-084 SENATE SPONSORSHIP Tochtrop, Carroll M. HOUSE SPONSORSHIP Gagliardi, Senate Committees House Committees Judiciary A BILL FOR AN ACT Concerning the creation of a Colorado peace officers' bill of rights. Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://www.leg.state.co.us/billsummaries.) While individual law enforcement agencies in the state may have adopted civil service systems or may be a part of a collective bargaining process that establishes rights of peace officers, there is no consistency among state and local governments who hire peace officers for law enforcement duties (employing agencies). The bill establishes minimum standards that all employing agencies must provide to peace officers as part of their employment regarding: A peace officer's ability to engage in political activity; Entry of adverse comments in a peace officer's personnel records; Participation in employee organizations; Bringing suit arising out of the performance of a peace officer's duties; Truth verification tests; Public statements regarding internal investigations; Tests of blood, breath, or urine; Arrest quotas; Internal noncriminal investigations; Predisciplinary administrative hearings; Availability of a third-party review of major disciplinary decisions; and Discipline. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. Article 2.5 of title 16 is amended BY THE ADDITION OF A NEW PART to read: PART 3 COLORADO PEACE OFFICERS' BILL OF RIGHTS 16-2.5-301. Legislative declaration. The general assembly hereby finds and declares that the rights and protections to peace officers afforded in this part 3 constitute a matter of statewide concern. 16-2.5-302. Colorado peace officers' bill of rights - minimum rights established. (1) Notwithstanding any provision of state or local law to the contrary, and notwithstanding any applicable civil service system or collective bargaining agreement already in place through the applicable employing agency, all peace officers shall have as a minimum the rights set forth in this part 3. (2) This part 3 shall not diminish or impair any legal rights possessed by individual peace officers by law or under an existing civil service system of the peace officer's employing agency or any applicable collective bargaining agreement. 16-2.5-303. Definitions. As used in this part 3, unless the context otherwise requires: (1) "Complainant" means a person who makes a formal complaint regarding a peace officer's actions. (2) "Deciding authority" means the person who decides on disciplinary action for a peace officer and may include, but is not limited to, the peace officer's immediate supervisor or the chief law enforcement officer of the employing agency. (3) "Employing agency" means the state or the governing body of any statutory or home rule municipality or county employing a peace officer for law enforcement duties, or any authorized representative thereof. (4) "Major disciplinary action" means any action by an employing agency that would result in loss of pay, including but not limited to a suspension of more than three days, a demotion, a forced transfer, or termination. (5) "Peace officer" means any peace officer as described in section 16-2.5-101. (6) "Representative" means either an attorney licensed in the state or a person who advises or counsels a peace officer who is either from an independent police association, the fraternal order of police, or a legal defense plan of which the peace officer is a member. 16-2.5-304. Right to engage in political activity. To the extent permitted by federal or state law, all peace officers shall have the same rights to engage in political activities as are afforded to all residents of the state, and no peace officer shall be prohibited from seeking election to any employing agency. With the exception of the elected office of sheriff, a peace officer may not serve in an elected position of the municipality, county, or state government while he or she is employed as a peace officer by said municipality, county, or state government. With the exception of the elected office of sheriff, the right to engage in political activity in accordance with this section shall not apply to any peace officer while on duty or while in uniform. 16-2.5-305. Entry of adverse comment in personnel records. No employing agency may insert into a peace officer's personnel file or any file used for personnel purposes by the employing agency any adverse comment or material unless the peace officer has an opportunity to review the comment or material, to receive a copy thereof, to respond to the comment or material in writing, and to have such response placed in the peace officer's personnel file. The peace officer shall acknowledge such review by signing the comment or material. The peace officer's signature only indicates that the peace officer is aware of such comment. The insertion of such adverse comment or material into the peace officer's file may be made if the peace officer, after reviewing the comment or material, refuses to sign the comment or material. The refusal shall be noted on the subject document and acknowledged by the peace officer. A peace officer shall have thirty days after the date of his or her signature to file a written response to any adverse comment or material entered into his or her personnel file. Such written response shall be attached to and accompany the adverse comment or material. 16-2.5-306. Right to participate in employee organizations. A peace officer may form, join, support, or participate in any employee organization or its lawful activities or refrain from joining such an organization or participating in such activities. The employing agency may not retaliate or discriminate in any manner against a peace officer who joins or advocates for any employee organization or formation thereof. The employing agency shall honor a signed dues payroll deduction of an individual peace officer for payment of dues to an employee organization designated thereon. 16-2.5-307. Right to bring suit. No statute, policy, procedure, rule, regulation, ordinance, resolution, state or local law, or charter provision may abridge the right of a peace officer to bring suit arising out of the performance of his or her duties as a peace officer. 16-2.5-308. Truth verification test. (1) No peace officer shall be required to submit to a polygraph examination or similar truth verification test. The refusal of a peace officer to agree to such an examination or test shall not be grounds for discipline, and no inferences may be drawn from such refusal. If a peace officer voluntarily agrees to a polygraph examination or similar truth verification test, the location of such examination or test and the polygrapher or test administrator shall be mutually agreed upon between the peace officer and the employing agency. Any questions asked shall be narrowly limited to the specific subject matter of the investigation. A peace officer shall not be requested to submit to a polygraph examination or similar truth verification test unless and until the complainant has taken and successfully passed such an examination. In the event that the complainant has taken a polygraph examination or similar truth verification test and a peace officer is requested to take such an examination, the peace officer shall be advised of the polygrapher or test administrator who administered the complainant's examination or test. Any voluntary test or examination shall be at the expense of the employing agency, and the peace officer shall be provided with copies of all reports and underlying data compiled from the test or examination. (2) Subsection (1) of this section is not intended to preclude an employing agency from requiring a polygraph examination or similar truth verification test as a part of its hiring process. 16-2.5-309. Public statements regarding internal investigations. The employing agency shall not make a public statement regarding an ongoing internal investigation or identify any peace officer in connection therewith. The employing agency shall not make a public statement upon the conclusion of an internal investigation unless the charges are sustained. If charges are sustained against any peace officer, the employing agency's public statement shall not identify the peace officer against whom charges have been sustained or disclose the discipline to be imposed. In the event that criminal charges have been filed in conjunction with an internal investigation, any public statement made with respect to such charges shall not include any references to any disciplinary action taken in conjunction with the investigation. Any documentation relating to a disciplinary action in a peace officer's personnel file is not a public record and not subject to disclosure. 16-2.5-310. Requiring tests of blood, breath, or urine. (1) A peace officer may be compelled to submit to a blood, breath, or urine test only on the basis of a reasonable suspicion that the peace officer is under the influence of drugs, alcohol, or a nonprescribed controlled substance at that time. Such suspicion must be based on specific objective facts and reasonable inferences drawn from those facts. The specific objective facts upon which such an order is based shall be disclosed to the peace officer in writing at the time the demand is made. (2) A peace officer may be compelled to submit to a blood or urine test if the peace officer used force that resulted in serious bodily injury or death or if the peace officer is involved in a motor vehicle accident resulting in serious bodily injury or death. (3) All equipment and testing used in blood, breath, or urine tests shall conform to the standards set forth in the rules of the department of public health and environment designed to test blood, breath, or urine pursuant to section 42-4-1304, C.R.S. A second sample of the blood, breath, or urine shall be preserved consistent with the rules of the department of public health and environment by the employing agency and made available to the peace officer under investigation. (4) Substances for which a peace officer may be tested under this section include alcohol, scheduled narcotics, and controlled substances as defined by section 18-18-102 (5), C.R.S. (5) A peace officer may voluntarily submit to any testing included in this section. This section is not intended to preclude the employing agency from requiring mandatory testing for drugs as a part of the hiring process. 16-2.5-311. Arrest quotas. (1) An employing agency may not establish any policy requiring any peace officer to meet an arrest quota. (2) An employing agency may not use the number of arrests or citations issued by a peace officer as the sole criteria for promotion, demotion, reprimand, disciplinary fine, disciplinary transfer, suspension, dismissal, or earning any benefit provided by the agency. The number of arrests or citations and the ultimate disposition of such arrests or citations may only be considered in evaluating the overall performance of a peace officer. A complete evaluation may include, but need not be limited to, attendance, punctuality, work safety, complaints by the public, accommodations, demeanor, formal training, and professional judgment. 16-2.5-312. Internal noncriminal investigations. (1) Whenever a peace officer is subject to an internal investigation or subjected to questioning that could result in disciplinary action of any kind, such investigation or questioning shall be conducted in accordance with the following rights: (a) Any peace officer subjected to an internal investigation shall be presumed innocent, and the investigation shall be conducted in a fair and impartial manner. (b) No complaint against a peace officer shall be the subject of an internal investigation that could result in a permanent investigative file being maintained by the employing agency regarding such investigation unless the complaint is made in writing and signed and sworn to by the complainant. Nothing in this paragraph (b) shall limit the ability of an employing agency to initiate an internal investigation based on information provided by its own employees. (c) Any individual involved in the questioning or interrogation of a peace officer under investigation shall advise the peace officer upon the commencement of each interview or conversation of the capacity in which the interviewer is conducting such questioning and specifically whether such interview is administrative or criminal in nature. The peace officer shall be advised of his or her rights under this part 3 prior to commencement of each interview. (d) A peace officer who is the subject of an internal investigation shall be informed in writing of the existence of the complaint and the specific allegations that initiated the administrative investigation. (e) A peace officer who is the subject of an internal investigation shall be informed of the name, rank, and command of the officer in charge of the investigation, the interrogating officer, and all persons present during questioning. Only one interrogator at a time may direct questions to the peace officer under interrogation. (f) The employing agency shall initiate any internal investigation within twenty days after receiving a complaint or, if initiated internally, within twenty days after the date when the employing agency has knowledge of the events necessitating the investigation. All internal investigations shall be completed within one hundred eighty days after the date initiated unless highly unusual circumstances exist, as determined by the employing agency, requiring a continuation of the investigation for up to an additional ninety days. (g) The employing agency shall give specific notice in writing to the peace officer of any charges that are or may be filed against the peace officer and of the specific nature of the investigation, including all facts known to the employing agency at the time the notice is prepared. If additional facts are discovered after the peace officer receives the initial notice, the employing agency shall disclose the additional facts to the peace officer prior to any questioning by the employing agency. (h) Any peace officer interviewed as a part of an internal investigation may be represented by a representative of the peace officer's choosing at all times during questioning, and such representative may be present at all times during such questioning. (i) The employing agency shall provide the peace officer a reasonable amount of time to arrange for a representative to be present at all interviews where the peace officer is questioned. (j) If a peace officer waives his or her right to have a representative present during an interview but later reasserts that right at any time during the interview, the interview shall be suspended until the representative can be present. The peace officer shall have the right to consult with his or her representative and to receive advice, but not in such a manner that interferes with the investigation process, as determined by the employing agency. (k) Prior to any questioning, the peace officer or the representative may review all evidence gathered during the investigation when such information becomes available. A peace officer who is the subject of an investigation shall be assured that the employing agency will consider the peace officer's response. (l) The employing agency shall not make a promise or offer a reward to any peace officer as an inducement to answer questions. The interview may be audio or video tape recorded by the employing agency. Upon request, the employing agency will provide a copy of the recording to the peace officer without charge. Questions asked of a peace officer during an interview must be reasonably relevant to the internal investigation. The peace officer's failure to recognize the relevance of a question shall not be justification for the peace officer to refuse to answer the question. (m) The employing agency shall conduct all interviews at a reasonable hour and at a time when the peace officer is on duty, except under unusual circumstances as defined by the employing agency. If a peace officer is questioned during a period when the peace officer is normally off duty, this time will be treated as on-duty time, and the peace officer shall be compensated accordingly. Interviews shall allow for rest periods and personal necessities as is reasonably necessary. (n) During the interview, the employing agency shall not threaten or coerce a peace officer directly or indirectly and shall not subject a peace officer to offensive or abusive treatment or language. (o) In the event that a peace officer who is under investigation is required to provide any secondary or additional evidence or statements to the deciding authority, the peace officer may see all written or oral statements previously made by the peace officer regarding the investigation prior to giving such additional statements or evidence in the investigation. (p) All interviews regarding allegations that could result in major disciplinary action shall be electronically recorded and transcribed by the employing agency. (q) Any statement of a peace officer that is video or audio tape recorded shall contain a statement regarding the name of the peace officer being interviewed, the name of the peace officer under investigation, the name and rank of the peace officer conducting the interview, the names of all persons present during the course of the interview, the date of the interview, the time when the interview begins and when it ends, and the time and duration of any breaks provided to the peace officer. A peace officer subject to interrogation or questioning may utilize his or her own recording device to record any and all aspects of the interrogation. A copy of the peace officer's own recording shall be made available to the employing agency upon request. (r) Any interview of a peace officer shall be conducted in a private closed setting and not in an open office or a public environment. (s) The employing agency shall provide a peace officer who is the subject of an internal investigation notification of the decision of such investigation within seventy-two hours after completion. It shall be sufficient that the employing agency make reasonable efforts to comply with this provision within the period provided. (t) After the investigation is completed and after the notification of the decision specified in paragraph (s) of this subsection (1), and no later than two days after requested, or reasonably in advance of any predisciplinary conference, the peace officer and the peace officer's representative may access transcripts, records, written statements, and recordings pertinent to the investigation, including transcripts of questioning and responses to any polygraph examination. (2) Nothing in this section shall be construed to prohibit the informal counseling of a peace officer by a deciding authority in reference to a minor infraction of policy or procedure that does not result in disciplinary action being taken against the peace officer. 16-2.5-313. Right to a predisciplinary administrative meeting. Prior to arriving at a decision to impose major disciplinary action, the deciding authority or his or her designee shall provide the peace officer with notice describing the reason for the proposed action, and the peace officer shall have an opportunity to be heard and to respond to the reason for the proposed action. The peace officer may be represented by his or her representative at the predisciplinary hearing. The peace officer shall have the right to consult with his or her representative and may receive advice, but not in a manner that interferes with the progress of the meeting. 16-2.5-314. Right to appeal major disciplinary action through a due process hearing - minimum standards for due process hearing. (1) (a) Each employing agency shall establish a fair and impartial system that permits appeal through a due process hearing of all decisions to impose major disciplinary action against a peace officer. (b) The due process hearing shall be conducted by a hearing official. For purposes of this section, "hearing official" means an independent person, arbitrator, or mediator mutually agreed upon by the employing agency and peace officer, or, where applicable, the state personnel board. (c) The peace officer shall have the right to a representative during the due process hearing and shall be entitled to all due process rights inherent in a fair hearing. (d) The hearing official may sustain, modify, or reverse the imposition of major disciplinary action or any charges against a peace officer. The hearing official may not impose greater major disciplinary action against a peace officer than the major disciplinary action originally imposed. (e) (I) Any decision, order, or action by the hearing official as result of the due process hearing shall be in writing and shall be accompanied by findings of fact. The findings of fact shall consist of a concise statement concerning each issue presented in the hearing. (II) A decision by the hearing official that the major disciplinary action is not sustained shall serve to terminate the disciplinary proceeding. (III) If the hearing official decides that the major disciplinary action is sustained, the hearing official shall then review the evidence received concerning the peace officer's past job performance and other relevant information, as determined by the hearing official, and consider this information in determining the appropriateness of the discipline imposed. (f) Decisions of the hearing official shall be binding upon the employing agency and the peace officer unless modified or reversed by the district court or other court of competent jurisdiction. (g) After a due process hearing, a copy of a written decision, order, or action and the accompanying findings shall be delivered to the peace officer or the peace officer's representative. (h) The cost of the due process hearing and any fees of the hearing official shall be borne equally by the peace officer and the employing agency. (2) Any peace officer who has completed a reasonable initial new hire probationary period, as defined by the employing agency, shall have the right to appeal any decision to impose major disciplinary action against the peace officer through a due process hearing established pursuant to subsection (1) of this section. 16-2.5-315. Discipline. (1) An employing agency shall follow a system of progressive discipline that is intended to be corrective rather than punitive. Discipline shall not be disparate and shall be reasonably consistent with past discipline of similarly situated employees under similar circumstances. This subsection (1) shall not preclude an employing agency's authority to impose a level of discipline that is warranted by the totality of circumstances under consideration. (2) No disciplinary action shall be taken without cause. The peace officer against whom discipline is contemplated may be relieved of duty and shall receive all ordinary pay and benefits the same as if the peace officer had not been relieved of duty. SECTION 2. Applicability. This act shall apply to all peace officers employed or hired on or after the effective date of this act. SECTION 3. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.