AB 265 REVISES PROVISIONS GOVERNING RIGHTS OF PEACE OFFICERS AMENDED March 30, 2011

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1 Peace Officers Research Association of Nevada P.O. Box Reno, Nevada Telephone: Fax: Web site: AB 265 REVISES PROVISIONS GOVERNING RIGHTS OF PEACE OFFICERS AMENDED March 30, 2011 Madam Chairwoman Kirkpatrick and members of the Assembly Government Affairs Committee: The Peace Officers Research Association of Nevada, on behalf of the professional peace officers of Nevada requests your support in passing AB 265. We respectfully thank Assemblyman Daly for sponsoring this legislation. AB 265, with the enclosed amendments will provide paid release time to peace officers attending interrogations, hearings or administrative proceedings, provide for noticing all officers in investigative interrogations and will provide a civil monetary penalty to individuals who intentionally, willfully and knowingly violate the provisions of NRS 289. Why support AB 265 and the requested amendments? Section 1 would provide Peace officers currently subjected to interrogations, hearings and administrative proceedings paid release time to attend those proceedings. Currently most law enforcement officers in local government and state government allow officers who are on their normal duty days and hours to be released from duty with pay to attend those hearings. However, as you all know peace officers work 24/7, 365 days a year. Currently there is no paid release time for those officers who are not on day shift and on their regular duty shifts. Administrative proceedings do not take place on grave yard or swing shifts. If that were the case we would not be requesting this legislative change. AB 265 corrects this problem. Section 2 of this bill would finally provide a civil monetary penalty for intentionally, willfully and knowingly violating NRS 289. Without a penalty nothing prevents intentional violations of NRS 289. Several sessions ago, with the support of law enforcement, this body enacted NRS This NRS was supposed to provide an arbitrator or a judge with the power to exclude evidence in those hearings where violations of NRS 289 occurred. Having tested the waters in several cases over the past several years I can personally state that this has not been the case. Willful and intentional violations of officer s due process rights have fallen on deaf ears. Without a penalty in the law to the individual who purposely violates an officer s rights there is no teeth in the law and violations will continue. According to the position paper presented to this committee by a Nevada deputy attorney general in speaking on the open

2 meeting legislation their position stated regarding penalties: without a monetary penalty there is no incentive for public body members to focus on compliance. The same holds true for NRS 289 intentional violations. Additionally, it should not be the agency or the tax payer who must pay but rather the individual(s) who intentionally, purposely, willfully and knowingly violate the officer s rights. Section 3 makes the changes effective July 1, 2011 Sections 4 and 5 are the amended sections to this bill and were part of SB 396 from the 75 th Nevada legislative session. In the 2009 legislative session this body passed SB 396. This bill also had the support of law enforcement after being amended several times. After the legislature ended the bill went to the governor for his approval. Governor Gibbon s vetoed this bill after receiving one complaint from a law enforcement manager who objected to one portion of that bill. Section 4 of the amended bill authorizes a peace officer who is the subject of an investigation by a law enforcement agency to review and copy any administrative or investigative file maintained by the law enforcement agency concerning the investigation if, after the conclusion of the investigation, the charges against the peace officer are sustained and the law enforcement agency imposes or considers the imposition of punitive action against the peace officer. (NRS ). Many law enforcement agencies only allow the officer to copy the file after the officer is appealing any sustained recommended discipline. Allowing the officer to review and copy the file provides basic due process to the officer and his representatives in preparation for future disciplinary appeal hearings. Section 5 of the amended bill provides for the following: SB396 required the peace officers who were called by law enforcement agencies as witnesses in internal investigations to be noticed the same as the principal officers. Given the fact that everyone else supported this bill it did not make sense to us that the bill was vetoed. However, the session was over and nothing at that time could be done. Ordering officers to attend an internal administrative investigation and ordering them to provide a compelled statement under threat of insubordination automatically compels the agency to provide due process rights to the officers being interviewed. However, this has not been the case in a lot of agencies. Officers have been ordered to respond to the internal affairs office. Once there they have been compelled under threat of insubordination to provide involuntary statements regarding administrative investigations. Officers who request representatives are told that they are not allowed to have the representatives because they are only witnesses. It is only when an officer demands to have a representative present that the officer is allowed to invoke his/her NRS 289 due process rights. Internal Affairs investigators advise officers in this situation that if it looks like the witnesses may crossover and become principals then they will halt the investigation and notice them under the provisions of NRS However, by then the officer has already been forced to provide statements. Thus their statements are not protected. AB265 correct this wrong as well. Ron Dreher, Government Affairs Director PORAN F-2

3 ASSEMBLY BILL NO. 265 ASSEMBLYMAN DALY (BY REQUEST) AS AMENDED MARCH 30, 2011 Referred to Committee on Government Affairs SUMMARY Revises provisions governing the rights of peace officers. (BDR ) FISCAL NOTE: Effect on Local Government: No. Effect on the State: No. EXPLANATION Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted. AN ACT relating to peace officers; requiring a law enforcement agency to release a peace officer from his or her regular working hours to attend certain hearings and administrative proceedings under certain circumstances; requiring a law enforcement agency to compensate a peace officer for attending certain hearings and administrative proceedings; providing a civil penalty for certain violations of the rights of a peace officer; and providing other matters properly relating thereto. Legislative Counsel s Digest: If a peace officer is the subject of an investigation of alleged misconduct, existing law provides that a law enforcement agency must interrogate the peace officer during his or her regular working hours, if practical, or compensate the peace officer for his or her time based on the peace officer s wages, if no charges arise from the interrogation. (NRS ) Section 1 of this bill requires instead that any time a peace officer is required to attend any interrogation, hearing or administrative proceeding concerning the peace officer, such interrogation, hearing or administrative proceeding must be held during the peace officer s regular working hours, or the peace officer must be released from his or her regular working hours the day before the interrogation, hearing or administrative proceeding and must be compensated for the day of the interrogation, hearing or administrative proceeding at his or her regular wages. Existing law provides that, if prejudicial evidence is obtained in violation of a peace officer s rights during an investigation of the peace officer which could result in punitive action, that evidence is inadmissible in any administrative proceeding or civil action against the peace officer. (NRS ) Section 2 of this amended bill provides that, in addition to the exclusion of the evidence, a person who violates a peace officer s rights intentionally, knowingly or willfully in such an investigation is personally and individually liable to the peace officer for a civil penalty of not more than $5,000, plus reasonable attorney s fees and costs. Section 4 of the amended bill prevents a law enforcement agency from suspending a peace officer without pay during or pursuant to an investigation conducted pursuant to this section until all investigations relating to the matter have concluded. Furthermore it authorizes a peace officer who is the subject of an investigation by a law enforcement agency to review and copy any administrative or investigative file maintained by the law enforcement agency concerning F-3

4 the investigation if, after the conclusion of the investigation, the charges against the peace officer are sustained and the law enforcement agency imposes or considers the imposition of punitive action against the peace officer. (NRS ). Section 5 of the amended bill requires a law enforcement agency that intends to conduct an interrogation or to hold a hearing concerning an investigation of a peace officer to provide a written notice of that fact to both the peace officer who is the subject of the investigation and to any peace officer believed by the law enforcement agency to have knowledge of any fact concerning the complaint or allegation made against the peace officer who is the subject of the investigation. Section 5 also provides that, if a peace officer provides a statement or answers a question relating to the alleged misconduct of the peace officer who is the subject of an investigation after he is informed that failure to provide the statement or answer may result in punitive action against him, the peace officer s answer or statement cannot be used against him in any criminal investigation of him. THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS: Section 1 NRS is hereby amended to read as follows: Except as otherwise provided in this subsection, a law enforcement agency shall, not later than 48 hours before any interrogation or hearing is held relating to an investigation conducted pursuant to NRS , provide a written notice to the peace officer [. A] who is the subject of the investigation and to any peace officer believed by the law enforcement agency to have knowledge of any fact relating to the complaint or allegation against the peace officer who is the subject of the investigation. Each of those peace officers may waive the notice required pursuant to this section. The notice must include: (a) A description of the nature of the investigation; (b) A summary of alleged misconduct of the peace officer; (c) The date, time and place of the interrogation or hearing; (d) The name and rank of the officer in charge of the investigation and the officers who will conduct any interrogation; (e) The name of any other person who will be present at any interrogation or hearing; and (f) A statement setting forth the provisions of subsection 1 of NRS The law enforcement agency shall: (a) [Interrogate the peace officer during the peace officer s regular working hours, if reasonably practicable, or compensate the peace officer for that time based on the peace officer s regular wages if no charges arise from the interrogation. (b)] Immediately before [the] any interrogation or hearing begins, inform the peace officer orally on the record that: (1) The peace officer is required to provide a statement and answer questions related to the peace officer s alleged misconduct; and (2) If the peace officer fails to provide such a statement or to answer any such questions, the agency may charge the peace officer with insubordination. [(c)] (b) Limit the scope of the questions during the interrogation or hearing to the alleged misconduct of the peace officer. [(d)] (c) Allow the peace officer to explain an answer or refute a negative implication which results from questioning during an F-4

5 interrogation or hearing. 4. If a peace officer is required to attend any interrogation, hearing or other administrative proceeding held relating to an investigation of the peace officer conducted pursuant to NRS or any internal administrative grievance procedure conducted pursuant to NRS , the law enforcement agency shall: (a) If the law enforcement agency interrogates the peace officer, interrogate the peace officer during the peace officer s regular working hours, if reasonably practicable; or (b) Release the peace officer from his or her regular working hours the day before the interrogation, hearing or other administrative proceeding and compensate the peace officer for the day of the interrogation, hearing or other administrative proceeding based on the peace officer s regular wages. Section 2. NRS is hereby amended to read as follows: If an arbitrator or court determines that evidence was obtained during an investigation of a peace officer concerning conduct that could result in punitive action in a manner which violates any provision of NRS to , inclusive, and that such evidence may be prejudicial to the peace officer, such evidence is inadmissible and the arbitrator or court shall exclude such evidence during any administrative proceeding commenced or civil action filed against the peace officer. 2. A person who intentionally, knowingly or willfully violates a provision of NRS to , inclusive, during an investigation of a peace officer is liable for a civil penalty of not more than $5,000 for each violation, payable to the peace officer, together with reasonable attorney s fees and costs. Section. 3. This act becomes effective on July 1, Section 4: NRS : 1. An investigation of a peace officer may be conducted in response to a complaint or allegation that the peace officer has engaged in activities which could result in punitive action. 2. A law enforcement agency shall not suspend a peace officer without pay during or pursuant to an investigation conducted pursuant to this section until all investigations relating to the matter have concluded. 3. After the conclusion of the investigation: (a) If the [investigation causes a] charges brought against the peace officer are sustained and, based on those charges, the law enforcement agency [to impose]: (1) Imposes or considers the imposition of punitive action against the peace officer [who was the subject of the investigation and the]; and (2) The peace officer has received a notice of the imposition or proposed imposition of the punitive action, including a notice of the right of the peace officer to attend any hearing conducted before the imposition or proposed imposition of the punitive action, the peace F-5

6 officer or a representative authorized by the peace officer may, except as otherwise prohibited by federal or state law, review and copy any administrative or investigative file maintained by the law enforcement agency relating to the investigation, including any recordings, notes, transcripts of interviews and documents. (b) If, pursuant to a policy of a law enforcement agency or a labor agreement, the record of the investigation or the imposition of punitive action is subject to being removed from any administrative file relating to the peace officer maintained by the law enforcement agency, the law enforcement agency shall not, except as otherwise required by federal or state law, keep or make a record of the investigation or the imposition of punitive action after the record is required to be removed from the administrative file. Add section: Section Except as otherwise provided in this subsection, a law enforcement agency shall, not later than 48 hours before any interrogation or hearing is held relating to an investigation conducted pursuant to NRS , provide a written notice to the peace officer [. A] who is the subject of the investigation and to any peace officer believed by the law enforcement agency to have knowledge of any fact relating to the complaint or allegation against the peace officer who is the subject of the investigation. Each of those peace officers may waive the notice required pursuant to this section. 2. The notice must include: (a) A description of the nature of the investigation; (b) A summary of the alleged misconduct of the peace officer [;] who is the subject of the investigation; (c) The date, time and place of the interrogation or hearing; (d) The name and rank of the officer in charge of the investigation and the officers who will conduct any interrogation; (e) The name of any other person who will be present at any interrogation or hearing; and (f) A statement setting forth the provisions of subsection 1 of NRS The law enforcement agency shall: (a) Interrogate the peace officer during his regular working hours, if reasonably practicable, or compensate him for that time based on his regular wages if no charges against the peace officer arise from the interrogation. (b) Immediately before the interrogation or hearing begins, inform the peace officer orally on the record that: (1) He is required to provide a statement and answer questions related to [his] the alleged misconduct [; and] of the peace officer who is the subject of the investigation; and (2) If he fails to provide such a statement or to answer any such questions, the agency may charge him with insubordination. (c) Limit the scope of the questions during the interrogation or hearing to the alleged misconduct of the peace officer [.] who is the subject of the investigation. F-6

7 (d) Allow the peace officer to explain an answer or refute a negative implication which results from questioning during an interrogation or hearing. 4. If a peace officer provides a statement or answers a question relating to the alleged misconduct of the peace officer who is the subject of the investigation pursuant to this section after the peace officer is informed that failing to provide the statement or answer may result in punitive action against him, the statement or answer must not be used against the peace officer who provided the statement or answer in any criminal investigation of that peace officer. 5. If a peace officer is required to attend any interrogation, hearing or other administrative proceeding held relating to an investigation of the peace officer conducted pursuant to NRS or any internal administrative grievance procedure conducted pursuant to NRS , the law enforcement agency shall: (a) If the law enforcement agency interrogates the peace officer, interrogate the peace officer during the peace officer s regular working hours, if reasonably practicable; or (b) Release the peace officer from his or her regular working hours the day before the interrogation, hearing or other administrative proceeding and compensate the peace officer for the day of the interrogation, hearing or other administrative proceeding based on the peace officer s regular wages. F-7