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Bill 1107

                    Current Status

Bill Number:                      1107
Type of Legislation:              General Bill GB
Introducing Body:                 Senate
Introduced Date:                  20020312
Primary Sponsor:                  Reese
All Sponsors:                     Reese
Drafted Document Number:          l:\council\bills\swb\5157djc02.doc
Residing Body:                    Senate
Current Committee:                Judiciary Committee 11 SJ
Subject:                          Law enforcement officers may engage in 
                                  political activity while off duty, but must 
                                  not be required to engage in


                        History

Body    Date      Action Description                     Com     Leg Involved
______  ________  ______________________________________ _______ ____________
Senate  20020312  Introduced, read first time,           11 SJ
                  referred to Committee


              Versions of This Bill

TO AMEND CHAPTER 1, TITLE 23, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO LAW ENFORCEMENT AND PUBLIC SAFETY GENERAL PROVISIONS, BY DESIGNATING SECTIONS 23-1-15 THROUGH 23-1-225 OF THE 1976 CODE AS ARTICLE 1 OF CHAPTER 1, TITLE 23 NAMED "MISCELLANEOUS PROVISIONS"; AND BY ADDING SECTION 23-1-10 SO AS TO PROVIDE THAT A LAW ENFORCEMENT OFFICER MAY ENGAGE IN POLITICAL ACTIVITY WHILE OFF DUTY AND MUST NOT BE DENIED THE RIGHT TO REFRAIN FROM ENGAGING IN POLITICAL ACTIVITY; AND BY ADDING ARTICLE 3, RELATING TO DUE PROCESS DISCIPLINARY PROCEDURES FOR LAW ENFORCEMENT OFFICERS, SO AS TO INCLUDE DEFINITIONS USED IN CONNECTION WITH DISCIPLINARY PROCEEDINGS FOR LAW ENFORCEMENT OFFICERS DISCIPLINARY PROCEEDINGS, TO PROVIDE FOR CERTAIN RIGHTS AND RESPONSIBILITIES OF EMPLOYING AGENCIES AND LAW ENFORCEMENT OFFICES IN CONNECTION WITH INVESTIGATIONS INTO ALLEGATIONS THAT A LAW ENFORCEMENT OFFICER COMMITTED AN OFFENSE OR ENGAGED IN MISCONDUCT, TO PROVIDE FOR DUE PROCESS WHEN CONDUCTING DISCIPLINARY HEARINGS, TO PROVIDE FOR AGENCY REVIEW OF CERTAIN FINDINGS AND RECOMMENDATIONS BEFORE TAKING DISCIPLINARY ACTION OR ADVERSE PERSONNEL ACTION AGAINST A LAW ENFORCEMENT OFFICER, AND TO PROVIDE FOR APPEALS FROM AGENCY FINDINGS AND RECOMMENDATIONS RESULTING IN DISCIPLINARY OR ADVERSE PERSONNEL ACTION AGAINST A LAW ENFORCEMENT OFFICER.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. Sections 23-1-15 through 23-1-225 of the 1976 Code are designated Article 1 of Chapter 1, Title 23 and named "Miscellaneous Provisions".

SECTION 2. Article 1, Chapter 1, Title 23 of the 1976 Code is amended by adding:

"Section 23-1-10. A law enforcement officer may engage in political activity while off duty and must not be denied the right to refrain from engaging in political activity."

SECTION 3. Chapter 1, Title 23 of the 1976 Code is amended by adding:

Section 23-1-310. For the purposes of this article:

(1) 'Law enforcement officer' means a person who is commissioned, appointed, or employed by a state, county, or municipal law enforcement agency for the purpose of enforcing the law of the state, county, or municipality, and who is vested with the power and authority to investigate crime and to arrest another person who commits a criminal offense.

(2) 'Complainant' means a person who provides information that constitutes all or part of the basis for an official charge against a law enforcement officer, or that gives rise to an investigation into alleged improper conduct by a law enforcement officer.

(3) 'Official charge' means a written document prepared by a law enforcement officer's agency and served upon a law enforcement officer so as to provide notice to the law enforcement officer that he is suspected of or charged with an offense or misconduct, and which contains both a statement of the charge and of the specifications of the alleged offense or misconduct.

(4) 'Disciplinary proceeding' means proceedings before an agency disciplinary committee or board that is authorized and empowered to conduct a hearing, swear witnesses, take testimony, receive evidence, hear arguments, determine facts, apply facts to applicable law, and make recommendations to an employing agency relating to disciplinary action that may or may not be taken against a law enforcement officer, and to report on special matters arising in the course of a disciplinary proceeding.

(5) 'Employing agency' means the state, county, or municipal law enforcement agency that employs a law enforcement officer.

Section 23-1-320. When a law enforcement officer is placed under investigation by his employing agency for an alleged offense or improper conduct which, if founded, could result in termination, demotion, another adverse personnel or disciplinary action, or the loss of pay or status, the employing agency must:

(1) Place all adverse material relating to the officer in his personnel file located within the employing agency and maintain possession and control over adverse material within the file. Once adverse material relating to an officer is placed in his personnel file, the law enforcement officer has the right to review and make comments in writing concerning the adverse material which must also be placed and maintained in the officer's personnel file.

(2) In the event the officer is interviewed or questioned concerning an alleged offense or improper conduct that is the subject of an investigation or disciplinary proceedings:

(a) the interview of the officer must be conducted in the office of the investigating officer, the location where the law enforcement officer reports for duty, or at another location as may be determined by the investigating officer and the law enforcement officer;

(b) the law enforcement officer must be informed, at the beginning of an interview, of:

( i) the identity of the person and his authority for conducting the interview;

( ii) the identity of each person present during the interview;

(iii) the alleged offense or misconduct of which he is charged or suspected;

(iv) the nature and purpose of the investigation; and

(v) his rights under the Constitution of this State and of the United States when questioned regarding an offense or misconduct for which he is charged or suspected including the warnings required by decisions of the United States Supreme Court.

(3) During the interview:

( i) all questions must be asked by or through one investigator;

( ii) the interview may be conducted for a reasonable period of time and must include reasonable break and rest periods;

(iii) promises, threats, or rewards must not be made to induce the officer to make a statement or to induce or obtain a particular or desired answer to a question posed to the officer during the interview;

(iv) an oral or written statement made by an officer during an interview conducted under the authority of this section may not be used in a subsequent disciplinary or criminal proceedings against the officer unless applicable Garrity/Miranda warnings were provided to the officer in a timely manner; and

(v) the interview must be fully recorded and, thereafter, made reasonably available to the officer interviewed or his attorney.

(4) An interview of a law enforcement officer in connection with an investigation involving another law enforcement officer must be fully recorded and, thereafter:

( i) made reasonably available to the officer interviewed or his attorney; and

( ii) if subsequently used in a civil, criminal, or disciplinary proceeding against the officer under investigation, made reasonably available to the officer under investigation or his attorney.

Section 23-1-330. (A) An employing agency may investigate a law enforcement officer whenever it has received credible information or a complaint that gives rise to a reasonable suspicion or belief that an investigation into an alleged offense or improper conduct by a law enforcement officer is necessary for the proper investigation and prosecution of an offense according to law, for the purpose of bringing official charges or disciplinary proceedings against the officer under this article, or for the purpose of maintaining good order and discipline within the employing agency.

(B) When interviewed or questioned incident to an investigation or hearing held pursuant to this article, a law enforcement officer may not be required to disclose:

(1) his income from sources other than the employing agency, his financial assets, or his real or personal property holdings; or

(2) his debts, financial liabilities, or expenditures.

(C) An official charge which may result in disciplinary or adverse action being taken against a law enforcement officer, or in unduly penalizing the law enforcement officer, must not be brought or filed against the officer unless a complainant has given and signed a sworn statement or affidavit setting forth facts sufficient to give rise to a reasonable suspicion or belief that the officer has committed the alleged offense or engaged in misconduct, or an investigator for the agency has verified the allegations against the officer from an independent source.

Section 23-1-340. (A) Disciplinary proceedings which may result in disciplinary or another adverse action being taken against a law enforcement officer because of an alleged offense or misconduct must be commenced against a law enforcement officer by the service of official charges upon him and, thereafter, must be conducted in accordance with the provisions of this article. Provided, nothing in this article limits, prohibits, or restricts prosecution of a law enforcement officer for an alleged violation of the civil or criminal laws of this State or of the United States, or of the laws and ordinances of a county or municipality of this State.

(B) An official charge served upon a law enforcement officer must be sworn to by a person having knowledge of the factual matters giving rise to the charge, and must specify the offense or conduct that is alleged to be improper, the date and time of the alleged offense or misconduct occurred, the names of all witnesses who will testify against the officer or who provided information giving rise to the official charge, and must specify the specific rule, regulation, order, or law allegedly violated by the officer.

(C) Hearings held in connection with disciplinary proceedings are open to the public unless an officer charged with an alleged offense or misconduct requests the hearing be closed. Hearings must be closed to the public when an office charged with an offense or misconduct requests the hearing be closed. The record of the hearing, including findings and recommendations for disciplinary action, must be submitted to the head of the employing agency for review and action. Upon review, an agency head may accept all or part of the findings and recommendations, and may order that all or part of the recommendations relating to disciplinary action be taken. The agency head may refer criminal matters to appropriate authorities for prosecution in the event a hearing results in a finding or determination that the officer involved has committed a criminal offense.

(D) In the event a hearing results in a determination that an officer has committed an offense or engaged in misconduct, and whenever a disciplinary or adverse personnel action affecting the officer is recommended or intended as a result of a disciplinary hearing held pursuant to this article, the law enforcement officer must be notified of the action in writing and given a reasonable opportunity to prepare a rebuttal or response to the action for consideration by the head of the employing agency before the action is taken.

(E) Except when the criminal law has been violated or as otherwise provided by law, the head of the employing agency, a sheriff, chief of police, or director of public safety may not impose disciplinary action, adverse personnel action, or a penalty greater than the disciplinary action, adverse personnel action, or penalty recommended by an agency disciplinary board or committee.

(F) A law enforcement officer may appeal a finding by a disciplinary board or agency head that he has violated a criminal law to the Court of General Sessions within ten days after receipt of written notice of the finding. An appeal taken on an error of law must be decided by the circuit judge as a matter of law. An appeal from a factual finding must be determined by a trial de novo in the Court of General Sessions.

(G) A law enforcement officer may appeal a finding by a disciplinary board that he has engaged in misconduct other than a violation of a criminal law to the Court of Common Pleas within ten days after receipt of written notice of the finding. An appeal taken on an error of law must be decided by the circuit judge as a matter of law. An appeal from a factual matte must be determined by a trial de novo in the Court of Common Pleas."

SECTION 4. This act takes effect upon approval by the Governor.

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