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LEGISLATIVE PROPOSALS

Proposed Federal "Rights of Law Enforcement Officers" Legislation *

CONTENTS

A - BACKGROUND

The first "Bill of Rights" for law enforcement officers was proposed in the U.S. House of Representatives in the early 1970s. It never received enough support to be called for a vote, but was introduced in modified form in several state legislatures.

Since then, updated versions of the original "Bill of Rights" have become law in California, Delaware, Florida, Illinois, Maryland, Minnesota, Nevada, Rhode Island, Virginia, and Wisconsin. The current version in the Congress is a comprehensive bill which creates many "rights" not presently recognized in state statutes or existing case law, and not commonly contained in collectively bargained agreements.

The first version of the proposed law was introduced in the House more than 25 years ago. S. 1043 (102nd Congress) was introduced in 1991 and passed the Senate by a 55-to-43 margin; the House did not vote on the bill before the end of term. In 1995 a significantly revised version was reintroduced in the House and Senate. H.R. 350 was offered on Jan. 16, 1997 by Rep. Stupak. It sought to amend Title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S. Code Sec. 3781), which is linked to recipients of federal funding.

The "State and Local Law Enforcement Discipline, Accountability, and Due Process Act of 2000," H.R. 3896, was introduced by eight House members on March 9, 2000.

The purpose of this analysis is not to support or disparage employment security legislation. It does raise questions about how these proposals might change existing practices.

B - DISCIPLINARY RIGHTS

1. When rights are triggered.

Text

DEFINITIONS - In this section- "investigation -"

(A) 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 such action is based on a reasonable suspicion that the law enforcement officer has violated, is violating, or will in the future violate a statute or ordinance, or administrative rule, regulation, or procedure relating to service as a law enforcement officer; and

(b)includes -

(i) asking questions of other law enforcement officers or nonlaw enforcement officers;

(ii) conducting observations;

(iii) evaluating reports, records or other documents; and

(iv) examining physical evidence. [Sec. 819(a)].

Current Law

Generally, the commencement of an interview or interrogation of an officer, for the purpose of investigating misconduct or finding procedural irregularities, will initiate any rights enjoyed by the officer, whether those rights are conferred by state statute, ordinance, the bargaining agreement, or a departmental manual.

Whether the interrogator believes the questions are "non- disciplinary" is not determinative, if the employee is a member of a certified bargaining unit. The issue is, does the employee "reasonably believe" disciplinary action might be taken? City of Manchester and Man. Police Patrolmens' Assn., AAA 11-390-01552-93, 1995 (2) F&PPR 21 (Greenbaum 1994).

Interpretative Comment

Unlike prior versions, the protections are not limited to management directed inquiries. The inquiring officer may even hold a lower rank. For example, if a patrol officer suspects that departmental rules or procedures have been or may be violated, and asks a sergeant about his concern, the question is an "investigation." [Sec. 819(a)].

Moreover, the union endorsed Bill does not require the questions to be asked for the purpose of eliciting an incriminating response. The only requirement is that the inquirer reasonably suspect that the law or departmental rules or procedures have been or may be violated.

Currently, management is not restrained or impeded from conducting non-obtrusive visual surveillances. The bill would trigger employee protections during a surveillance, including general "observations" when the observer also suspects that the law or departmental rules or procedures have been or may be violated. [Sec. 819(a)].

The protections of the act also arise when an officer evaluates "reports, records or other documents." Presumably that would include routine approval of written forms and reports submitted by a subordinate officer to his supervisor, whenever the superior reasonably suspects that law or departmental rules or procedures have been or may be violated.

Unanswered Questions

What does "asking questions" mean for purposes of this bill? Would it include a simple "Is everything O.K.?" When is an observation "conducted" versus unconducted, for purposes of this bill? When does a superior "evaluate" a report or other document, versus reading, perusing or inspecting the document?

2. Notice of Investigation.

Text

When a law enforcement officer is under investigation that could lead to disciplinary action, the following minimum standards shall apply:

(1) NOTICE OF INVESTIGATION. - A law enforcement officer shall be notified of the investigation prior to being interviewed. Notice shall include the general nature and scope of the investigation and all departmental violations for which reasonable suspicion exists. No investigation based on a complaint from outside the law enforcement agency may commence unless the complainant provides a signed detailed statement. An investigation based on a complaint from outside the agency shall commence within 15 days after the receipt of the complaint by the agency. [Sec. 819(a)].

Current Law

The courts have held that an officer must show actual prejudice before a complaint will be dismissed as untimely. City of Atlanta v. Bell, 425 S.E.2d 325 (Ga.App. 1992) involving a 15 month delay; Milligan v. Bd. of Fire & Police Cmsnrs., 158 Ill.2d 84, 630 N.E.2d 830 (1994) with a five-year delay.

Unless restricted under the bargaining agreement, a public employer does not have to obtain a written complaint before commencing an internal investigation. Management does not have to disclose the scope of an inquiry at the time an interview is commenced.

Interpretative Comment

In cases where brutality is alleged, many citizens, particularly members of minority groups, fear physical or legal retaliation. They are unwilling to sign a formal complaint until the chief or internal affairs personnel assures them that the department has investigated the incident and intends to prosecute the accused officer.

Under the union endorsed Bill, an investigation can not commence, and an accused officer would not have to respond, even if the allegations are audio and videotaped, unless accompanied by a "signed" statement.

Management would not be able to commence an internal investigation based on a written anonymous complaint, even if the writer enclosed corroborative physical evidence, such as an incriminating photo. Even if signed, an investigation cannot begin lawfully unless the statement is sufficiently "detailed."

In cases where corruption is alleged, it may be many months before internal investigators are ready to interview a suspected officer, knowing that from that moment on, evidence of misconduct may be lost, i.e., the "paper trail" is destroyed.

Unanswered Questions

What is a "detailed statement"? If an investigation is initiated on an unsigned complaint, or upon receipt of an insufficiently detailed statement, or is begun more than 15 days after the complaint is received, will the Exclusionary Rule apply?

3. Time of questioning.

Text

Questioning of a law enforcement officer shall be conducted at a reasonable hour, preferably when the law enforcement officer is on duty, unless exigent circumstances otherwise require. [Sec. 819 (e)(1)].

Current Law

Current case law creates a due process right to reasonable periods of questioning. Oddsen v. Board of Fire & Police Cmsnrs., 321 N.W.2d 161 (Wis. 1982).

Unanswered Questions

The union sponsored bills do not define an exigent circumstance. Black's Law Dictionary (5th Edit.) suggests the activity sought to be justified must be "imperative." It would certainly be out of the ordinary. Is an officer-involved shooting an "exigent circumstance?" Perhaps in a small rural department, but not necessarily in a larger agency. A 1990 PERF study of nine major cities revealed an annual average of 7.13 officer-involved shootings per thousand officers.

The word "preferably" conflicts with the word "unless," and suggests that the officer must be interviewed while on his normal duty period unless excused by extraordinary considerations. Does this mean that if an officer who works a 3- to-11 p.m. shift is involved in a shooting at 10:30 p.m. he cannot be questioned for another 16 hours? If the officer has two recreation days which intervene, would the period extend to 64 hours?

Suppose the incident giving rise to the investigation involves one off-duty day-shift officer and one on-duty night- shift officer. Would that require split-shift interviews? Does "reasonable hour" mean a convenient time for the internal investigator who works on the day shift, or the officer who is to be interviewed, who might work on a graveyard shift.

Assume an arbitrator, civil service commission or reviewing court determines the questioning did not take place during a period when the officer was normally on duty and the questioning could have been delayed without provable adverse consequences to the department. Must the answers be suppressed from use in a disciplinary hearing?

Exclusionary Rule

A number of appellate courts have ruled that employee interrogation procedures established in a collective bargaining contract are mandatory; a failure to rigidly comply with those procedures requires the courts to set aside a termination or lesser discipline, order reinstatement and award back pay.

In Conwell v. City of Albuquerque, 637 P.2d 567 (N.M. 1981), the exclusionary rule was applied to a disciplinary interview because various procedural mechanisms specified in the contract were not followed. In Cymbalsky v. Dilworth, 467 N.Y.S.2d 902 (A.D. 1983), a four-judge appellate court set aside a termination because of a non-substantive procedural omission during the interview, resulting in the suppression of the officer's statement.

Dept. of Law Enforcement v. Allen, 400 So.2d 777 (Fla.App. 1981), held that a police agency must "honor and adhere to its own rules of conduct" in disciplinary matters. California has declined to extend the exclusionary rule to police disciplinary interrogations; Williams v. City of Los Angeles, 47 Cal.3d 195, 763 P.2d 480 (1988).

4. Place of the questioning.

Text

Questioning of the law enforcement officer shall take place at the offices of the persons who are conducting the investigation or the place where such law enforcement officer reports for duty, unless the officer consents in writing to be questioned elsewhere. [Sec. 819 (e)(2)].

Current Law

Current case law does not limit the place of employee interviews.

Unanswered Questions

Multiple agencies might conduct a joint investigation. Suppose there is a fatal collision which follows a high-speed chase through ten communities, involving officers from six different agencies, all of whom might be sued in a wrongful death action. Where is the interview of any particular officer to take place? Would there be six different interviews in six different police stations, involving only the officer(s) from that particular department? If the interviews are conveniently consolidated and take place in the prosecutor's office, is the interview illegal?

5. Identification of questioner.

Text

The law enforcement officer under investigation shall be informed, at the commencement of any questioning, of the name, rank, and command of the officer conducting the questioning. [Sec. 819 (e)(3)].

Interpretative Comment

In all but the largest departments, a superior is personally known to the officer, and an investigator from another department would want to identify himself and state his agency has been requested to conduct the investigation. No cases have been found on this point.

6. Questions to be asked by a single investigator.

Text

During any single period of questioning of the law enforcement officer, all questions shall be asked by or through a single investigator. [Sec. 819 (e)(4)].

Current Law

Current case law does not limit the number of interrogators, but a coercive atmosphere would constitute a due process violation. Oddsen v. Board of Fire & Police Cmsnrs., 321 N.W.2d 161 (Wis. 1982).

Unanswered Questions

The Union sponsored Bills do not define who is an "investigator." If a patrol officer is asked preliminary questions by a field supervisor, can the questioning be continued at the scene by a shift commander? Can an Officer-involved Shooting Investigation Team also ask questions? Must a single superior officer ask all questions, including performing the inquiry role of the senior evidence technician? What if the incident involves officers from multiple agencies, such as a Drug Enforcement Task Force? When does a "single period of questioning" start and end? If questioning is halted and resumed, is that a new period or a continuation of an earlier period?

Again (noting the New Mexico and New York exclusionary rule cases), will statements be suppressed in disciplinary proceedings because questions are asked by multiple interviewers?

7. Notice of nature of the investigation.

Text

The law enforcement officer under investigation shall be informed in writing of the nature of the investigation prior to any questioning. [Sec. 819 (e)(5)].

Current Law

Artifice, deception and stratagem may be employed by investigators in civil and criminal interviews. Frazier v. Cupp, 394 U.S. 731 (1969); Inbau, Criminal Interrogations and Confessions 319-23 (1986).

Unanswered Questions

The usual practice is to inform an officer if a citizen or a superior officer has made a complaint against him. In other cases, the officer conducting the investigation will not always know the nature of the investigation, except in the broadest sense. Will it suffice to inform the officer the investigation "concerns" an arrest or an investigation?

When does an inquiry become an "investigation?" A simple question, "What has happened?" could illicit a response which would reveal misconduct or violation of department policy. Would the response be inadmissible because the superior did not initially hand the officer a written notice that the question(s) constituted an investigation and identify the specific purpose of the investigation?

8. Reasonable time period.

Text

Any questioning of a law enforcement officer in connection with an investigation shall be for a reasonable period of time and shall allow for reasonable periods for the rest and personal necessities of the law enforcement officer. [Sec. 819 (e)(6)].

Current Law

Current case law creates a due process right to reasonable periods of questioning. Prolonged questioning, lack of sleep or meal breaks will invalidate the interview process, resulting in the judicial annulment of disciplinary action. Oddsen v. Board of Fire & Police Cmsnrs., 321 N.W.2d 161 (Wis. 1982).

9. Threats, promises and rewards.

Text

Threats against, harassment of, or promise of reward shall not be made in connection with an investigation to induce the answering of any question. No statement given by the officer may be used in a subsequent criminal proceeding unless the officer has received a written grant of use and derivative use immunity or transactional immunity. [Sec. 819 (e)(7)].

Current Law

The due process clause prohibits a coercive atmosphere during employment-related interviews. Oddsen v. Board of Fire & Police Cmsnrs., 321 N.W.2d 161 (Wis. 1982).

In Illinois, the appellate court has ruled that a broken promise to a public employee that his statements to IAD investigators and resignation will avoid any prosecution is not binding on the prosecutor. People v. Early, 158 Ill.App.3d 232, 511 N.E.2d 847 (1987). At the other end of the spectrum, Massachusetts has ruled that when questions are asked of a public employee by his superiors, the employee is entitled to transactional immunity, i.e., full and final immunity from prosecution, even if immunity was not offered the employee; Carney v. City of Springfield, 403 Mass. 604, 532 N.E.2d 631 (1988).

Officers who are accused of misconduct are sometimes offered an opportunity to resign. The warning, "Resign or be fired!" amounts to constructive discharge, and courts will not dismiss a suit for reinstatement on the technical ground the officer resigned, unless the resignation was completely voluntary. Himmelbrand v. Harrison, 484 F.Supp. 803 (W.D. Va. 1980).

A threat to file criminal changes unless a subordinate resigns was held to be duress by the Alabama courts. Head v. Gadsden, 380 So.2d 516 (Ala.App. 1980), cert. den., 389 So.2d 520 (Ala. 1980).

Regarding promises, courts have held them enforceable by the employee. A broken agreement to let a sheriff's deputy resign, accompanied by a promise to withhold unfavorable recommendations was held a breach of contract, and resulted in a $100,000 damage award. Nadeau v. County of Ramsey, 277 N.W.2d 520 (Minn. 1979).

Unanswered Questions

The union sponsored Bills appears to exclude ALL statements given by an officer. Is a "statement" limited to formal answers given in an internal interview or would it extend to written arrest and incident reports filed in the normal course of business? Would it include taped radio messages and e-mail archives?

10. Written or electronic record of interview.

Text

All questioning of any law enforcement officer in connection with the investigation shall be recorded in full, in writing or by electronic device, and a copy of the transcript shall be made available to the officer under investigation. [Sec. 819 (e)(8)].

Current Law

Current law does not require recording, although it is required in some bargained agreements. An appellate court has ruled that a failure to record the interview requires suppression of the answers given by the interviewed officer, who was ordered reinstated with back pay; Cymbalsky v. Dilworth, 467 N.Y.S.2d 902 (A.D. 1983).

Interpretative Comment

If a criminal suspect, who is not under arrest, is interviewed by police officers, his answers are admissible in a criminal prosecution. Tape recording or stenotyping only adds to the authenticity. This section of the Senate bill would immunize unrecorded statements made to a superior, simply because of the employment relationship.

If adopted, this section would motivate superiors to wear voice-activated tape recorders whenever they ask something of a subordinate, no matter how innocuous the question. Otherwise, an answer which might later prove a violation of internal policy or more serious misconduct could not be used as evidence.

Finally, audio and video recordings are sometimes lost, erased in error, destroyed by mistake, or defectively recorded in the first place. While tape recordings are persuasive evidence of the contents of an interview, their very existence invites theft or destruction by fellow officers who are unsympathetic to the disciplinary process.

11. Presence of counsel or representative at interview.

Text

The law enforcement officer under investigation shall be entitled to counsel (or any other one person of the officer's choice) at any questioning of the officer, unless the officer consents in writing to being questioned outside the presence of counsel. [Sec. 819 (e)(9)].

Current Law

In 1975 the U.S. Supreme Court concluded that Sec. 7 of the National Labor Relations Act [29 U.S. Code Sec. 157] requires covered employers to permit an employee's "representative" to be present during an investigative interview. N.L.R.B. v. Weingarten, 95 S.Ct. 972 (1975). Thirty-three states, as of that year, had public employee relations laws which were identical or similar to Sec. 7. In Maryland, a statute requires the attempted interrogation of a police officer to be suspended for up to ten days to allow him to employ "counsel or any other responsible representative."

In right-to-work states, a police officer does not have a legally protected right to the presence of counsel (or union representative) at a disciplinary interview. The Sixth Amendment [Right to Counsel] does not apply to disciplinary proceedings; L.A. Police Prot. Leag. v. Gates, 579 F.Supp. 36 (C.D.Cal. 1984).

Moreover, an internal affairs interview is non adjudicatory; since "no possibility of sanctions exists at that point," said one court, "..the due process clause of the Fourteenth Amendment provides no right to counsel at the IAD interview." Wilson v. Swing, 463 F.Supp. 555 (M.D.N.C. 1978), relying on Haines v. Askew, 368 F.Supp. 369, aff'd 94 S.Ct. 2596 (1974).

The Maryland statute interposes a substantial delay, despite the fact that the interview stage requires significantly less preparation time for the officer's attorney than the hearing. This is because, at that stage, an attorney is not allowed to question his own client, or cross-examine other witnesses who testify against his client. While counsel can object to a question, he is unlikely to instruct his client to refuse to answer, unless the subject matter of the question is not occupationally related and does not bear on the client's fitness for continued employment.

Acting "under the advice of counsel" is no defense to an officer who wilfully refuses to answer a question which is narrowly related and specifically directed to his employment or fitness for service. The refusal is at the peril of employee, although he might be able to collaterally challenge the question by an emergency civil action, as was done in Buege v. Lee, 372 N.E.2d 427 (Ill.App. 1978).

Interpretative Comment

Some police executives believe that a union attorney would impede the efficiency of an internal affairs interview. Chief Judge Eugene Gordon of North Carolina said, in 1978, that "the presence of counsel at the IAD interview could seriously disrupt its investigation and turn it into a trial-like proceeding." 463 F.Supp. at 561. History suggests otherwise; most states have lived with Weingarten for fifteen years without recurrent "disruption."

Management has another concern that an officer's insistence on the presence of a named attorney or other representative could significantly delay the interview process, especially when the attorney is in the midst of a three-month trial. Unlike the Maryland statute, an officer is not required to hire counsel within ten days.

12. Representation at hearing.

Text

During a disciplinary hearing an officer shall be entitled to be represented by counsel or nonattorney representative. [Sec. 819 (f)(5)].

Current Law

If the officer is a member of a certified bargaining unit, the union is the exclusive representative of all members of the unit. It is the union, not the employee, that has a duty and the right to grieve a termination or the imposition of lesser discipline. It is the union, not the employee, that has the right to select and employ counsel (or other representative) to argue against disciplinary sanctions. Recently, a U.S. Appeals panel confirmed the rule that a terminated employee was not entitled to have his own attorney present at the grievance arbitration hearing. Garcia v. Zenith Electronics, 58 F.3d 1171 (7th Cir. 1995).

It is unusual for a civil service board or other hearing panels to deny an employee the right to be represented by counsel. However, one court has held that an employee does not have a constitutional right to an attorney at a disciplinary hearing. Alston v. NYC Transit Auth., 588 N.Y.S.2d 419 (A.D. 1992).

Another appellate panel in the same state set aside a demotion because the lieutenant was denied assistance of counsel. Garrett v. N. Babylon V.F.C., 433 N.Y.S. 218 (A.D. 1980).

Effect on Bargaining Laws.

The bill overrules many years of labor decisions. It violates the time-honored principle that the union, as an entity, collectively represents the common interests and protects the welfare of all members of the bargaining unit. The Supreme Court has said:

National labor policy ... extinguishes the individual employee's power to order his own relations with his employer... Thus only the union may [agree to] ... provisions for processing his grievances. The employee may disagree with many of the union decisions but is bound by them. NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175/at 180, 87 S.Ct. 2001/at 2006 (1967)

13. Closed Hearing.

Text

A disciplinary hearing shall 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. [Sec. 819 (f)(12)].

Current Law

An officer has a due process right to a public hearing. Bartell v. Wellesley Housing Auth., 28 Mass.App. 306, 550 N.E.2d 883 (1990). He does not have a right to a closed hearing, and the "Sunshine Law" of some states prohibits secret hearings.

The media and members of the general public do not have a legal right to see an internal affairs file prior to the initiation of disciplinary charges. Commissioner, Dept. of Public Safety v. Freedom of Information Cmsn., 204 Conn. 609, 529 A.2d 692 (1987).

Interpretative Comment

In many cities, there is a long tradition of allowing members of the public and the media to attend disciplinary hearings. Particularly where there is no independent review board providing civilian oversight, open hearings are reassuring to the public. Secrecy fuels rumors of a cover-up, and exacerbates mistrust between minority groups and the police.

14. Copy of investigative file.

Text

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 15 days prior to the hearing, a copy of the investigative file, including all exculpatory and inculpatory information but excluding confidential sources. [Sec. 819 (f)(9)].

Current Law

In Valentino v. City of Houston, 674 S.W.2d 813 (Tex.App. 1984), the appellate court held a public employee is not entitled to subpoena his internal affairs file. Missouri reached the same conclusion in Bland v. City of Trenton, 618 S.W.2d 438 (Mo.App. 1981), citing the U.S. Supreme Court's decision in Jencks v. United States, 77 S.Ct. 1007 (1957).

Appellate courts in Illinois and Maryland have held that an officer must be given pretrial statements made by the department's witnesses that are contained in internal affairs files. Greco v. State Police Merit Board, 105 Ill.App.2d 186, 245 N.E.2d 99 (1969); Chief, Montgomery Co. v. Jacocks, 436 A.2d 930 (Md.App. 1981). These courts limited the discovery to statements that would meaningfully assist the accused officer's counsel in the cross-examination process, and prohibited a "fishing expedition."

Unanswered Questions

What is "exculpatory information?" Is a good faith failure to disclose some obscure fact, which counsel might later suggest is "exculpatory" to the proof or the severity of punishment, a ground for reversal? Would it include, in a brutality hearing, a ten-year old letter by a citizen commending the officer for finding her purse -- which purportedly might sway the decisionmaker to mitigate punishment for an excessive force complaint?

15. Finding of guilty and appeal.

Text

If the law enforcement officer is found guilty, the hearing officer or the board shall make a written recommendation of a penalty. The sentencing authority may not impose greater than the penalty recommended by the hearing officer or board.

A law enforcement officer may appeal from a final decision of a law enforcement agency to a court to the extent available in any other administrative proceeding, in accordance with the applicable state law. [Sec. 819 (f)(19-20)].

Current Law

Unless department rules provide otherwise, the chief law enforcement officer is not bound by the penalty recommendations of a hearing officer or panel. Montgomery Co. v. Stevens, 337 Md. 471, 654 A.2d 877 (1995). Moreover, a California appellate court recently reinstated the termination of an officer, overruling a civil service board that had reduced the penalty. Hankla v. Long Beach C.S.C. (Ice), 140 Cal.Rptr.2d 583 (App. 1995).

Courts are divided whether a board or commission, sitting as a review or appellate authority, has the power to increase the punishment. Freese v. County of Douglas, 315 N.W.2d 638 (Neb. 1982) held the commission could modify the punishment assessed, but lacked the power to increase it. In Dickens v. La Tourette, 663 S.W.2d 250 (Mo.App. 1983) the court held the civil service board could increase the punishment.

Courts have held that public employees enjoy a right to appeal disciplinary action, even if a statute says they don't. Wagner v. Kramer, 484 N.E.2d 1073 (Ill. 1985).

Interpretative Comment

Generally, members of a bargaining unit can elect whether to grieve or appeal to a civil service authority. This bill would create the finality associated with grievance arbitration proceedings in civil service type hearings.

If the usual rules of statutory interpretation apply, inasmuch as the bill provides for an appeal by the employee and is silent on an appeal by management, the employer would not have a right to appeal, even if that right is judicially recognized in that jurisdiction.

C - POLITICAL RIGHTS

Text

Except when on duty or acting in an official capacity, no law enforcement officer shall be prohibited from engaging in political activity or be denied the right to refrain from engaging in such activity. [Sec. 819 (c)].

Current Law

Except for confidential and policymaking employees, public employees, whether tenured or non-tenured, may not be rejected for employment, promoted, furloughed or recalled, transferred, disciplined, demoted or terminated for partisan political reasons. Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S.Ct. 2729 (1990).

Non federal law enforcement officers have a First Amendment right to perform volunteer services in nonpartisan campaigns and to support or oppose referenda; Gray v. City of Toledo, 323 F.Supp. 1281 (N.D. Ohio 1971).

The Hatch Act, 5 U.S. Code Sec. 7324(a)(2), prohibits federal employees from taking "an active part in political management or in political campaigns." The provision was upheld in U.S. Civil Serv. Cmsn. v. Natl. Assn. of Letter Carriers, 413 U.S. 548 (1973). All 50 states have similar acts affecting specified public employees.

Unanswered Questions

Engaging in political activity is not defined. Would it include holding elective office as a councilman or mayor, while continuing to be employed as a police officer? Would it be lawful to require a police officer to take an unpaid leave of absence while holding elective office?

D - ADVERSE MATERIAL IN AN OFFICER'S FILE

Text

A law enforcement agency shall not insert any adverse material into the file of any 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. [Sec. 819 (l)].

Unanswered Questions

The current bill goes further than the 1991 version and prohibits mere possession of any adverse material in any form unless reviewed by each officer affected. This would apply to any crank letter kept in a master file, an anonymous recorded phone call, and would probably include taped radio messages under the "in any form" definition.

If a "file" in the internal affairs unit contains an anonymous letter that raises vague allegations against "the narcotics squad," must every member of the squad be informed of the letter and afforded an opportunity to comment on it -- and if so, over what time period?

Does this section include medical records maintained by the law enforcement agency? Does an officer have a right to reply in writing to every "adverse" comment made by an examining physician during an annual physical, such as "moderately obese," "compulsive smoker," "experiences insomnia" or "occasional forgetfulness?"

E - DISCLOSURE OF PERSONAL ASSETS

Text

A law enforcement officer shall not be required or 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 in investigating a violation of any Federal, State, or local law rule, or regulation with respect to the performance of official duties; and

(2) such disclosure is required by Federal, State or local law. [Sec. 819 (m)].

Current Law

The courts have upheld intrusive financial disclosure requirements of officers who seek assignment to specialized units, such as drug enforcement or organized crime units. N.T.E.U. v. Dept. of Treasury, 25 F.3d 237 (5th Cir. 1994); Fraternal Order of Police v. City of Philadelphia, 812 F.2d 105 (3rd Cir. 1987) and 859 F.2d 276 (3rd Cir. 1988); O'Brien v. Munic. Ct. of Boston, 407 N.E.2d 1297 (Mass.App. 1980); Nakano v. Matayoshi, 706 P.2d 814 (Haw. 1985).

Unanswered Questions

What "is necessary in investigating a violation" of law? If a detective has a business partner who is a suspect in an unrelated criminal offense, that fact is arguably relevant to a superior's decision to reassign the investigation -- but is it necessary? Is it "necessary" to know that a patrol captain is part owner of two massage parlors not located in his patrol district?

If an officer is directed to complete a financial questionnaire and does so without objection, but lies or consciously omits material information, can he later raise the defense there was an insufficient basis for requesting the information in the first place? At least one case suggests a lying officer would have a complete defense; the appellate panel held that if the initial request for information was not a lawful request, the employee could not be later disciplined for a partial compliance. Merillat v. Mich. St. Univ., 207 Mich.App. 241, 523 N.W.2d 802, 4 AD Cases 764 (1994).

Interpretative Comment

The opportunity for drug enforcement corruption is enormous, because of the sheer size of the profits. Corruption often impairs prosecution of guilty offenders, and sometimes (as in the case of drug raid tip offs) threatens the safety of other officers.

The presence of a large amount of unexplained wealth resulted in the conviction of crime lord Alphonso Capone. Aside from the tax consequences, unreported earnings of ordinary police officers can result in their termination for non-disclosure. Golston v. Dept. of Comm. Affairs, 550 A.2d 292 (Pa. Cmwlth. 1988). Finding proof that the funds were illegally earned is often impossible.

The current bills go further than the 1991 version; the word "or" between subparts (1) and (2) was modified to "and" so as to require a law and an investigative necessity.

F - SUSPENSIONS

Text

Except in a case of... emergency suspension... 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 prior to the imposition of any disciplinary action. [Sec. 819(f)(1)].

"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 and immediate threat to the safety of the officer or others or the property of others. [Sec. 819(a)].

Current Law

A federal appeals court has upheld the indefinite suspension of an employee facing felony charges. Pararas-Carayannis v. Dept. of Commerce, 9 F.3d 955 (Fed.Cir. 1993). A U.S. District Court struck down an "emergency suspension" procedure that did not provide for a pre- or postsuspension hearing. Moore v. Martin, 764 F.Supp. 1298 (N.D.Ill. 1991).

In general, a tenured employee should be given presuspension interview by the person who is empowered to order an employee suspended from pay and duty (pending a postsuspension trial on the merits). Cleveland v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487 (1987).

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* This document was received into the record in Hearings held before the 104th Congress, as an attachment to the prepared statement and testimony of officals of International Association of Chiefs of Police (IACP) .

** This document was prepared by Wayne W. Schmidt. He has continually researched public employment law since 1967 and began publishing in this field in 1970. He has served 8 years as Vice-Chairman of the Legislative Committee of the IACP and also chairs its Internal Affairs Subcommittee.

He is Executive Director of AELE, and has served, parttime, as President of the Public Safety Personnel Research Institute, Inc. since 1974. He has written the Fire and Police Personnel Reporter, a monthly employment law bulletin, since 1975.

Since 1984, he has served as the staff executive of AELE's three-day workshop on Discipline and Labor Problems for law enforcement, correctionas and the fire service. It has been attended by more than 3,000 administrators, internal investigators, union officials, civil service prosecutors and employee defense counsel. This document was prepared as an informational item for inclusion in the course materials.

His undergraduate major was in economics; his minor was in government. While pursuing a law degree, he took graduate courses in labor relations and employment arbitration. He earned the Juris Doctor in 1966 and a Masters of Law degree in 1974. He is a member of the Bars of Illinois, New York, New Mexico and the District of Columbia.

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