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Sponsors: Reps. Sinclair, Barfield, Young, Leach, Viers, Littlejohn, Bales, Toole and M.A. Pitts
Document Path: l:\council\bills\swb\6154cm05.doc
Introduced in the House on January 11, 2005
Currently residing in the House Committee on Judiciary
Summary: Law enforcement engaging in political activity; due process for disciplinary procedures
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number ------------------------------------------------------------------------------- 12/8/2004 House Prefiled 12/8/2004 House Referred to Committee on Judiciary 1/11/2005 House Introduced and read first time HJ-56 1/11/2005 House Referred to Committee on Judiciary HJ-56 1/12/2005 House Member(s) request name added as sponsor: M.A.Pitts
View the latest legislative information at the LPITS web site
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 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 OFFICERS 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, TO PROVIDE FOR APPEALS FROM AGENCY FINDINGS AND RECOMMENDATIONS RESULTING IN DISCIPLINARY OR ADVERSE PERSONNEL ACTION AGAINST A LAW ENFORCEMENT OFFICER, AND TO PROVIDE SAFEGUARDS FOR PLACING ADVERSE PERSONNEL AND DISCIPLINARY MATERIAL IN A LAW ENFORCEMENT OFFICER'S PERSONNEL FILE; AND TO DESIGNATE SECTIONS 23-1-15 THROUGH 23-1-225 OF THE 1976 CODE AS ARTICLE 1 OF CHAPTER 1, TITLE 23.
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 of 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 not prohibited by law while off duty and may not be denied the right to refrain from engaging in political activity not prohibited by law."
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. A law enforcement officer who is accused or suspected of having committed an offense or engaging in improper conduct or who is placed under investigation by his employing agency for an alleged offense or improper conduct is presumed innocent until proven guilty and has the same right to fair and impartial treatment and the same right to due process of law that a member of the general public has when suspected or accused of having committed an offense or of engaging in improper conduct.
Section 23-1-330. (A) An employing agency must investigate a law enforcement officer whenever it has or receives 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 purpose of maintaining good order and discipline within the employing agency, bringing official charges or disciplinary proceedings against the officer under this article, or the proper investigation and prosecution of an offense according to law.
(B) 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) conduct a fair, impartial, and thorough investigation into the alleged offense or improper conduct;
(2) place all adverse and investigative material relating to the officer in a separate investigative file other than the officer's personnel file;
(3) maintain the separate investigative file in a secure place located within the employing agency;
(4) maintain possession and control over all adverse and investigative material within the investigative file;
(5) limit access to the separate investigative file and to all adverse and investigative material placed in the file to those persons having a need to access the file and materials in the file in the performance of their official duties only; and
(6) place adverse and investigative material relating to an officer in his personnel file only as provided in this article.
(C) 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 the officer being prosecuted for a violation of the law, the investigation must be initially conducted in the manner provided in subsection (B) until the employing agency determines there is probable cause to arrest the officer. After an employing agency determines there is probable cause for an arrest, the officer involved may be prosecuted for the offense as provided by law and is subject to the employing agency's personnel policies applicable to an officer who is charged or arrested for a criminal offense including, but not limited to, adverse personnel action resulting in termination, demotion, another adverse personnel or disciplinary action, or the loss of pay or status.
Section 23-1-340. (A) An official charge may be brought or filed against the officer by any person having knowledge of facts giving rise to the charge; provided, 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, and must specify the specific rule, regulation, order, or law allegedly violated by the officer.
(B) For purposes of this section, a person having knowledge of facts giving rise to the charge includes a person who has given a statement under oath or has 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 who obtains information from a confidential informant and who has verified the information and allegations against the officer from an independent source.
Section 23-1-350. (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 are 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.
(B) The procedures for disciplinary proceedings brought under this article must ensure:
(1) that all persons who may be adversely affected by the proceedings have an opportunity to be made parties to the proceedings if necessary to protect their rights and interests in matters to be adjudicated or determined in the proceedings;
(2) that all parties to the proceedings have reasonable notice and an opportunity to be heard in connection with any matter that may affect them adversely; and
(3) that all parties are afforded a reasonable opportunity to consult with an attorney of their choice, and to have an attorney of their choice represent them at all stages of the disciplinary proceedings after official charges are served.
(C) Except when a party who is charged with an alleged offense or misconduct requests the hearing be closed for good cause shown, hearings held in connection with disciplinary proceedings are open to the public.
(D) A complete and accurate record of the hearing and proceedings must be maintained and preserved.
(E) 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.
(F) 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.
(G) 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.
(H) 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.
(I) 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 matter must be determined by a trial de novo in the Court of Common Pleas.
Section 23-1-360. When a disciplinary board determines that a law enforcement officer has committed an offense or engaged in improper conduct and all administrative and court appeals are exhausted, the employing agency may take adverse personnel and disciplinary action against the officer if warranted, and may place both favorable and adverse and investigative material relating to the offense or misconduct committed or engaged in by the officer in his personnel file as necessary to support the personnel and disciplinary action taken. 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.
Section 23-1-370. 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."
SECTION 4. This act takes effect upon approval by the Governor.
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