HOUSE OF REPRESENTATIVES

152nd GENERAL ASSEMBLY

HOUSE BILL NO. 205

AN ACT TO AMEND TITLE 11 OF THE DELAWARE CODE RELATING TO THE LAW ENFORCEMENT OFFICER BILL OF RIGHTS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chapter 92, Title 11 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

Chapter 92. Law-Enforcement Officers’ Bill of Rights Police Officers’

Due Process, Accountability, and Transparency

§ 9200. Limitations on political activity; “law-enforcement officer” defined; rights of officers under investigation.

(b) For purposes of this chapter chapter:

(1) “Detailed narrative” means a complete description of the facts, steps taken to further an investigation, evidence collected, conclusions reached, the names of officers involved for whom misconduct was substantiated, any discipline assigned in connection with the event, and the employment status of disciplined officers.

(2) “Formal investigation” refers to an investigation initiated at the request of management after a preliminary determination has been made that a rule or policy of the department may have been violated. A formal investigation is typically conducted by an internal affairs department or its equivalent and is distinguished from an informal inquiry that is more properly considered routine employer supervision.

(3) “Informal inquiry” means questioning by supervisory personnel for purposes of making a preliminary determination whether an officer has violated a rule or policy of the department. An informal inquiry is made only to obtain preliminary facts in order to determine whether a formal investigation should be initiated. An informal inquiry must be conducted in accordance with state and federal law.

(4) a “law-enforcement officer” is defined as a “Law-enforcement officer” or “officer” means a full-time or part-time police officer who is a sworn member of the Delaware State Police, of the Wilmington City Police Department, of the New Castle County Police, of the University of Delaware Police Division, the Delaware State University Police Department, of the police force established by the Delaware River and Bay Authority, or of the police department, bureau of police or police force of any incorporated municipality, city or town within this State or who is a sworn uniformed police or enforcement officer of the Department of Natural Resources and Environmental Control or of the Delaware State Capital Police, or a Probation and Parole Officer of the Department of Correction or a Probation and Parole Officer of the Department of Services for Children, Youth and their Families, or a State Fire Marshall Deputy or a state detective or special investigator of the Department of Justice, an agent of the State Police Drug Diversion Unit or an agent of the State Division of Alcohol and Tobacco Enforcement; provided, however, that this chapter shall not apply to the Superintendent or Deputy Superintendent of the Delaware State Police, or to any officer above the rank of Captain in the Delaware State Police, or to the chief of police of any police force in this State, or to any other officer who is the highest ranking officer in the law-enforcement agency. Furthermore, no law-enforcement officer not a member of 1 of the above agencies shall be covered by this chapter. An officer who is not a member of one of the above agencies is not covered by this chapter.

(5) “Sustained finding” means after the conclusion of an investigation, a law-enforcement officer’s violation of law, rule, policy, regulation, or guideline was established by a preponderance of the evidence. “Preponderance of the evidence” means more probably true than not.

(c) Whenever a law-enforcement officer is under formal investigation or and is subjected to questioning for any reason which could lead to disciplinary action, demotion or dismissal, the investigation or questioning shall be conducted under the following conditions:

(3) The law-enforcement officer under investigation shall be informed of the name, rank and command of the officer in charge of the investigation. investigation at a time and at the discretion of the department, but no later than prior to formal questioning. All questions directed to the officer shall be asked by and through no more than 2 investigators. No formal complaint against a law-enforcement officer seeking dismissal or suspension or other formal disciplinary action shall be prosecuted under departmental rule or regulation unless the complaint is supported by substantial evidence derived from an investigation by an authorized member of the department or another officer who is certified by the Council on Police Training Police Officer Standards and Training Commission pursuant to Chapter 84 of this title and has experience and/or training on conducting an internal law-enforcement investigation and is appointed by the Chief of Police Police, or the Chief’s designee, of the law-enforcement department to conduct the investigation of the officer in question.

(7) A complete record, either written, taped or, if taped, transcribed as soon as practicable, record shall be kept of all interviews held in connection with the administrative investigation upon notification that substantial evidence exists for seeking an administrative sanction of the law-enforcement officer. A investigation. Upon request, a copy of the record or recording of the interviews shall be provided to the officer or the officer’s counsel at the officer’s expense upon request. officer.

(8) If the law-enforcement officer under interrogation is under arrest or may reasonably be placed under arrest as a result of the investigation, the officer shall be informed of the officer’s rights, including the reasonable possibility of the officer’s arrest prior to the commencement of the interrogation.

(9) Upon request, any officer under questioning shall have the right to be represented by counsel or other representative of the officer’s choice, who shall be present at all times during the questioning unless waived in writing by the investigated officer. The questioning shall be suspended for a reasonable period of time if the officer requests representation until such time as the officer can obtain the representative requested if reasonably available.

(10) An officer who is charged with violating any departmental rules or regulations, or the officer’s representative, will be provided access to transcripts, records, written statements, written reports, analyses and video tapes and video and audio recordings pertinent to the case if they are exculpatory, intended to support any disciplinary action or are to be introduced in the departmental hearing on the charges involved. Upon demand by the officer or counsel, they shall be produced within 48 hours of the written notification of the charges.

(11) At the conclusion of the administrative formal investigation, the investigator shall inform in writing the officer of the investigative findings findings, conclusions, and any recommendation for further action. Notwithstanding anything in this chapter to the contrary, upon completion of the investigation and any related proceedings, an officer is entitled to access investigatory files regardless of whether charges are sustained.

(12) All Except as set forth in paragraphs (c)(13) and (c)(14) of this section and § 9210 of this title, records compiled as a result of any investigation subject to the provisions of this chapter and/or a contractual disciplinary grievance procedure shall be and remain are confidential and shall may not be released to the public. A contract or collective bargaining agreement that purports to extend confidentiality provisions relating to officer personnel or disciplinary records beyond the scope set forth in this chapter is void and unenforceable as against public policy.

(13) a. Within 30 days following the completion of a formal investigation and the conclusion of any hearing required by this chapter, the investigating agency shall prepare a detailed narrative of the investigation, not including any compelled statements, and forward the detailed narrative to the Police Officer Standards and Training Commission (POST) and the Criminal Justice Council with regard to any of the following:

1. Incidents involving a law-enforcement officer’s discharge of a firearm.

2. A law-enforcement officer’s use of force that results in serious physical injury.

3. An investigation that results in a sustained finding that a law-enforcement officer engaged in a sexual assault. For purposes of this paragraph, “sexual assault” means the commission or attempted initiation of a sexual act by means of force, threat, coercion, extortion, or offer or implication of leniency or official favor, under the color of authority. Propositioning sex or commission of a sexual act while an officer is on duty is deemed a “sexual assault.”

4. An investigation that results in a sustained finding that a law-enforcement officer engaged in dishonest conduct directly related to the reporting, investigation, or prosecution of a crime, or to the reporting or investigation of misconduct by another law-enforcement officer. This includes, but is not limited to sustained findings of perjury, false statements, filing false reports, witness tampering, and destruction, falsification, or concealment of evidence.

5. A sustained finding of domestic violence by a law-enforcement officer.

b. The detailed narratives required by this paragraph (c)(13) may not reveal the name or any personal identifying information of a victim or witness. In a domestic violence case where revealing the name of the officer would also allow identification of the victim, the officer’s name may be redacted.

c. The Police Officer Standards and Training Commission shall aggregate the narratives they receive under this paragraph and post them on their website.

(14) Departments may provide information to a complainant or victim of officer misconduct sufficient to reasonably address concerns regarding the investigation and its outcome.

(15) Whenever an investigation is initiated, it must be completed, regardless of the employment status of the law-enforcement officer under investigation. The employing department shall maintain the file relating to the investigation regardless of whether or not the officer separates from the employing department prior to the initiation or completion of a formal investigation and regardless of the investigation’s conclusion. Any sustained finding must be reported to the Police Officer Standards and Training Commission.

(d) Unless otherwise required by this chapter, no law-enforcement agency shall be required to disclose in any civil proceeding, other than those brought by a citizen against a law-enforcement officer alleging that the officer breached the officer’s official duties and that such breach resulted in injury or other damage to the citizen, any:

(1) Personnel file; or

(2) Internal affairs investigatory file compiled in connection with a law-enforcement officer under investigation or subjected to questioning for any reason which could lead to disciplinary action, demotion, or dismissal.

§ 9203. Hearing — Required on suspension or other disciplinary action.

If a law-enforcement officer is: (1) suspended for any disciplinary reason, or (2) charged with conduct alleged to violate the rules or regulations or general orders of the agency that employs the officer, or (3) charged with a breach of discipline of any kind, which charge could lead to any form of disciplinary action (other than a reprimand) which may become part of the officer’s permanent personnel record, then that officer shall be entitled to a hearing which shall be conducted in accordance with this chapter unless a contractual disciplinary grievance procedure executed by and between the agency and the bargaining unit of that officer is in effect, in which case the terms of that disciplinary grievance procedure shall take precedence and govern the conduct of the hearing.

§ 9204. Hearing — Scheduling; notice.

In the event an officer is entitled to a hearing, a hearing shall be scheduled within a reasonable period of time from the alleged incident, but in no event more than 30 45 days following the conclusion of the internal investigation, unless waived in writing by the charged officer. The officer shall be given written notice of the time and place of the hearing and the issues involved, including a specification of the actual facts that the officer is charged with having committed; a statement of the rule, regulation or order that those facts are alleged to violate; and a copy of the rule, regulation or order. The charge against the law-enforcement officer shall advise the officer of the alleged facts and that the violation of the rule constituted a basis for discipline, and shall specify the range of applicable penalties that could be imposed.

§ 9210. Authorized disclosures.

(a) (1) Notwithstanding anything in this chapter to the contrary, the Department of Justice must disclose in a criminal or delinquency matter, at the request of a defense attorney, all records, including those contained in a personnel or disciplinary file, relating to sustained findings of misconduct relating to perjury, intentional false statements or false reports, or destruction, falsification, or concealment of evidence by an officer who participated in the investigation or prosecution.

(2) The Department of Justice is responsible for gathering records from law-enforcement agencies that are responsive to a request under paragraph (a)(1) of this section and shall facilitate the transfer of records, pursuant to a confidentiality order entered by the court that restricts use or dissemination of such information beyond proceedings in that case and requires secure handling of the records.

(3) Prior to the transfer of records under this subsection, the Department of Justice shall redact all of the following:

a. The home address, home telephone number, work or school address, work telephone number, e-mail address, and social security number of a law-enforcement officer or officer’s family member, a complainant or complainant’s family member, or a witness or witness’ family member.

b. The medical history and detailed medical information of a law-enforcement officer or a complainant. This paragraph (a)(3)b. may not be construed to permit redactions to any descriptions of injuries or conditions that are the subject of the complaint or caused by or resulting from a law-enforcement officer’s alleged conduct.

(b) A law-enforcement agency must require every new hire to sign an agreement allowing that officer’s personnel file, and any disciplinary or investigative records relating to misconduct to be shared with any future law-enforcement agency, in this State or another jurisdiction, that hires or has made a conditional offer of hire to that officer. The sharing of these records with another law-enforcement agency that hires or makes a conditional offer of hire to an officer is not a violation of this chapter.

9211. Annual reporting and record retention.

(a) Every law-enforcement agency shall annually submit to the Criminal Justice Council (CJC) all of the detailed narratives that it has prepared pursuant to § 9200(c)(13) of this title. The CJC shall aggregate and post all the detailed narratives in a single place on its website.

(b) In addition to the information required by subsection (a) of this section, each law-enforcement agency shall annually report to the CJC, and the CJC shall post on its website, all of the following information:

(1) The number of public complaints and internal complaints relating to police misconduct that the department receives each year, broken down by subject matter of the complaint.

(2) The number of formal investigations undertaken by the department each year, and the number of complaints resolved without a formal investigation.

(3) The number of formal investigations that resulted in a sustained finding of misconduct, an unsubstantiated finding, or any other disposition.

(c) Notwithstanding any other law to the contrary, records relating to any incident for which a detailed narrative is required to be publicly posted pursuant to this chapter, shall be preserved for at least 25 years.

SYNOPSIS

This Act makes a number of revisions to the Law-Enforcement Officer’s Bill of Rights in Title 11 of the Delaware Code. It adds part-time officers to the coverage of the chapter. It distinguishes between formal investigations and informal inquiries, but requires that even informal inquiries must comport with federal and State law, including NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975) and Garrity v. New Jersey, 385 U.S. 493 (1967).

This Act requires that a detailed narrative of an internal investigation must be prepared by an investigating agency and publicly posted in any case involving use of force that results in serious physical injury; the discharge of a firearm; a sustained finding of sexual assault; a sustained finding of dishonesty related to the reporting, investigation, or prosecution of a crime, or to the reporting, or investigation of, misconduct by another law-enforcement officer; or a sustained finding of domestic violence. Further, it requires that an investigation into officer misconduct must be completed, regardless of the employment status of the officer. I.e., even if an officer resigns or retires while an investigation is pending, the department must complete the investigation and report sustained findings of misconduct to the Police Officer Standards and Training Commission. The Act also allows a department to provide information to a complainant or victim of officer misconduct sufficient to reasonably address concerns regarding the investigation and its outcome.

Finally, the Act requires, upon request of a defense attorney in a criminal or delinquency case, and through the Department of Justice, all records relating to sustained findings of misconduct relating to perjury, intentional false statements or false reports, or destruction, falsification, or concealment of evidence by an officer who participated in the investigation or prosecution. It also provides that law-enforcement officer’s must be required, upon hire, to sign an agreement allowing the hiring agency to provide copies of that officer’s personnel file and disciplinary and investigative records with any other law-enforcement agency that makes an offer or conditional offer of hire to that officer in the future.

The CJC will aggregate and post all of the narratives required to be prepared under this chapter on its website, along with an annual report of the following: (1) The number of public complaints and internal complaints relating to police misconduct that the department received each year, broken down by subject matter of the complaint; (2) The number of formal investigations undertaken by the department each year, and the number of complaints resolved without a formal investigation; (3) The number of formal investigations that resulted in a sustained finding of misconduct, an unsubstantiated finding, or any other disposition. Records relating to any incident for which a detailed narrative is required to be prepared and posted must be preserved for at least 25 years.