Current Status Bill Number:
4498Type of Legislation: General Bill GBIntroducing Body: HouseIntroduced Date: 19980127Primary Sponsor: CromerAll Sponsors: Cromer, KnottsDrafted Document Number: dka\4756cm.98Companion Bill Number: 790Residing Body: HouseCurrent Committee: Judiciary Committee 25 HJSubject: Law Enforcement Officers' Bill of Rights, Public Safety Department, Law Enforcement
Body Date Action Description Com Leg Involved ______ ________ _______________________________________ _______ ____________ House 19980203 Co-Sponsor added (Rule 5.2) by Rep. Knotts House 19980127 Introduced, read first time, 25 HJ referred to CommitteeView additional legislative information at the LPITS web site.
TO AMEND CHAPTER 6, TITLE 23, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO LAW ENFORCEMENT AND PUBLIC SAFETY, BY ADDING ARTICLE 12 SO AS TO PROVIDE FOR THE LAW ENFORCEMENT OFFICERS' BILL OF RIGHTS.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Chapter 6, Title 23 of the 1976 Code is amended by adding:
Section 23-6-600. This article may be cited as the 'Law Enforcement Officers' Bill of Rights'.
Section 23-6-605. For the purposes of this article:
(1) 'Disciplinary action' means the suspension, demotion, reduction in pay or other employment benefit, dismissal, transfer, or similar action taken against a law enforcement officer as punishment for misconduct.
(2) 'Disciplinary hearing' means an administrative hearing initiated by a law enforcement agency against a law enforcement officer, based on probable cause to believe that the officer has violated or is violating a rule, regulation, or procedure related to service as an officer and is subject to disciplinary action.
(3) 'Emergency suspension' means temporary action imposed by the head of the law enforcement agency when that official determines that there is probable cause to believe that a law enforcement officer:
(a) has committed a felony; or
(b) poses an immediate threat to the safety of the officer or others or the property of others.
(4) 'Investigation' means the action of a law enforcement agency, acting alone or in cooperation with another agency, or a division or unit within an agency, or the action of an individual law enforcement officer, taken with regard to another enforcement officer, if the action is based on reasonable suspicion that the law enforcement officer has violated, is violating, or will violate in the future a statute or ordinance, or administrative rule, regulation, or procedure relating to service as a law enforcement officer and includes:
(a) asking questions of other law enforcement officers or nonlaw enforcement officers;
(b) conducting observations;
(c) evaluating reports, records, or other documents; and
(d) examining physical evidence.
(5) 'Law enforcement agency' means a state or local public agency charged by law with the duty to prevent or investigate crimes or apprehend or hold in custody persons charged with or convicted of crimes.
(6) 'Law enforcement officer' or 'officer' means a member of a law enforcement agency serving in a law enforcement position, which is indicated by formal training, regardless of whether the officer has completed or been assigned to this training, and accompanied by the power to make arrests and includes:
(a) a member who serves full time, whether probationary or nonprobationary, commissioned or noncommissioned, career or noncareer, tenured or nontenured, and merit or nonmerit; and
(b) the chief law enforcement officer of a law enforcement agency.
(7) 'Summary punishment' means punishment imposed for a minor violation of a law enforcement agency's rules and regulations that does not result in suspension, demotion, reduction in pay, or other employment benefit, dismissal, or transfer.
Section 23-6-610. This article does not apply in the case of:
(1) a criminal investigation of a law enforcement officer's conduct; or
(2) a nondisciplinary action taken in good faith on the basis of a law enforcement officer's employment related performance.
Section 23-6-615. Except while on duty or acting in an official capacity, a law enforcement officer is not prohibited from engaging in political activity and must not be denied the right to refrain from engaging in political activity.
Section 23-6-620. When a law enforcement officer is under investigation that could lead to disciplinary action:
(1) he must be notified of the investigation before being interviewed. Notice must include the general nature and scope of the investigation and all departmental violations for which reasonable suspicion exists. An investigation based on a complaint from outside the law enforcement agency may not commence unless the complainant provides a signed detailed statement. An investigation based on a complaint from outside the agency shall commence within fifteen days after receipt of the complaint by the agency; and
(2) at the conclusion of the investigation, the person in charge of the investigation shall inform the law enforcement officer under investigation in writing of the investigative findings and any recommendation for disciplinary action that the person intends to make.
Section 23-6-625. When a law enforcement officer is subjected to questioning that could lead to disciplinary action:
(1) the questioning must be conducted at a reasonable hour, preferably when the law enforcement officer is on duty, unless exigent circumstances otherwise require;
(2) the questioning must take place at the offices of the persons who are conducting the investigation or the place where the law enforcement officer reports for duty, unless the officer consents in writing to being questioned elsewhere;
(3) he must be informed, at the commencement of any questioning, of the name, rank, and command of the officer conducting the questioning;
(4) during any single period of questioning of the law enforcement officer, all questions must be asked by or through a single investigator;
(5) he must be informed in writing of the nature of the investigation before any questioning;
(6) any questioning of him in connection with an investigation must be for a reasonable period of time and must allow for reasonable periods for the rest and personal necessities of the law enforcement officer;
(7) threats against, harassment of, or promise of reward must not be made in connection with an investigation to induce the answering of any question. A statement given by the officer must not be used in a subsequent criminal proceeding unless the officer has received a written grant of use and derivative use immunity or transactional immunity;
(8) all questioning of any law enforcement officer in connection with the investigation must be recorded in full, in writing, or by electronic device, and a copy of the transcript must be made available to the officer under investigation;
(9) he is entitled to counsel at any questioning of him, unless he consents in writing to being questioned outside the presence of counsel.
Section 23-6-630. (A) Except in a case of summary punishment or emergency suspension described in Section 23-6-640, if an investigation of a law enforcement officer results in a recommendation of disciplinary action, the law enforcement agency shall notify the law enforcement officer that the law enforcement officer is entitled to a hearing on the issues by a hearing officer or board before the imposition of any disciplinary action.
(B) Disciplinary action must not be taken unless a hearing officer or board determines, pursuant to a fairly conducted disciplinary hearing, that the law enforcement officer violated a statute, ordinance, or published administrative rule, regulation, or procedure.
(C) Disciplinary charges must not be brought against a law enforcement officer unless filed within ninety days after the commencement of an investigation, except for good cause shown.
(D) The law enforcement agency shall provide written, actual notification to the law enforcement officer, not later than thirty days after the filing of disciplinary charges, containing the:
(1) date, time, and location of the disciplinary hearing, which must take place not sooner than thirty days and not later than sixty days after notification to the law enforcement officer under investigation unless waived in writing by the officer;
(2) name and mailing address of the hearing officer; and
(3) name, rank, and command of the prosecutor, if a law enforcement officer, or the name, position, and mailing address of the prosecutor, if not a law enforcement officer.
(E) During a disciplinary hearing an officer is entitled to be represented by counsel or a nonattorney representative.
(F) A law enforcement officer who is brought before a disciplinary hearing board must be provided access to all transcripts, records, written statements, written reports, analyses, and electronically recorded information pertinent to the case that:
(1) contain exculpatory information;
(2) are intended to support any disciplinary action; or
(3) are to be introduced in the disciplinary hearing.
(G) The disciplinary advocate for the law enforcement agency of which the officer who is the subject of the hearing is a member shall notify the law enforcement officer, or his attorney if he is represented by counsel, not later than fifteen days before the hearing, of the names and addresses of all witnesses for the law enforcement agency.
(H) The disciplinary advocate for the law enforcement agency of which the officer who is the subject of the hearing is a member shall provide to the law enforcement officer, at the law enforcement officer's request, not later than fifteen days before the hearing, a copy of the investigative file, including all exculpatory and inculpatory information, but excluding confidential sources.
(I) The disciplinary advocate for the law enforcement agency of which the officer who is the subject of the hearing is a member shall notify the law enforcement officer, at the officer's request, not later than fifteen days before the hearing, of all physical, nondocumentary evidence, and provide reasonable date, time, place, and manner for the officer to examine this evidence at least ten days before the hearing.
(J) The hearing board has the power to issue summonses to compel testimony of witnesses and production of documentary evidence. If confronted with a failure to comply with a summons, the hearing officer or board may petition a court to issue an order, with failure to comply being subject to contempt of court.
(K) A disciplinary hearing must be closed to the public unless the law enforcement officer who is the subject of the hearing requests in writing that the hearing be open to specified individuals or the general public.
(L) All aspects of a disciplinary hearing, including prehearing motions, must be recorded by audio tape, video tape, or transcription.
(M) Either side in a disciplinary hearing may move for and be entitled to sequestration of witnesses.
(N) The hearing officer or board shall administer an oath or affirmation to each witness, who shall testify subject to the applicable laws of perjury.
(O) At the conclusion of all the evidence, and after oral argument from both sides, the hearing officer or board shall deliberate and render a verdict on each charge.
(P) The prosecutor's burden of persuasion is by clear and convincing evidence as to each charge involving false representation, fraud, dishonesty, deceit, or criminal behavior and by a preponderance of the evidence as to all other charges.
(Q) If the law enforcement officer is found not guilty of the disciplinary violations, the matter is concluded and no disciplinary action may be taken.
(R) If the law enforcement officer is found guilty, the hearing officer or board shall make a written recommendation of a penalty. The sentencing authority may not impose a penalty greater than the penalty recommended by the hearing officer or board.
(S) A law enforcement officer may appeal from a final decision of a law enforcement agency to the circuit court.
Section 23-6-635. A law enforcement officer may waive any of the rights guaranteed by this section subsequent to the time that the officer has been notified that the officer is under investigation. Such a waiver must be in writing and signed by the officer.
Section 23-6-640. (A) This article does not preclude summary punishment or the emergency suspension of a law enforcement officer.
(B) An emergency suspension does not affect or infringe on the health benefits of a law enforcement officer or the officer's dependents.
Section 23-6-645. Nothing in this article must be construed to impair any other legal right or remedy that a law enforcement officer may have as a result of a constitution, statute, ordinance, regulation, collective bargaining agreement, or other sources of rights.
Section 23-6-650. A law enforcement officer who is being denied a right afforded by this section may petition the circuit court for declaratory or injunctive relief to prohibit the law enforcement agency from violating this right.
Section 23-6-655. A law enforcement agency shall not insert adverse material into the file of a law enforcement officer, or possess or maintain control over any adverse material in any form within the law enforcement agency, unless the officer has had an opportunity to review and comment in writing on the adverse material.
Section 23-6-660. A law enforcement officer is not required or must not be requested to disclose any item of the officer's personal property, income, assets, sources of income, debts, personal, or domestic expenditures, including those of any member of the officer's household, unless:
(1) the information is necessary to the investigation of a violation of a federal, state, or local law, rule, or regulation with respect to the performance of official duties; and
(2) the disclosure is required by federal, state, or local law."
SECTION 2. This act takes effect upon approval by the Governor.