2001-2002 Bill 5119: Law Enforcement Officer May Engage in Political Activity While Off

1 BIL: 5119 2 TYP: General Bill GB 3 INB: House 4 IND: 20020411 5 PSP: Sinclair 6 SPO: Sinclair, Whipper, Allison, Coleman, Limehouse, Littlejohn, McCraw, 7 Sheheen, Simrill and Walker 8 DDN: l:\council\bills\swb\5298djc02.doc 9 RBY: House 10 COM: Judiciary Committee 25 HJ 11 SUB: Law enforcement officer may engage in political activity while off duty 12 and must not be denied right to refrain from engaging in 13 14 15 HST: 16 17 Body Date Action Description Com Leg Involved 18 ______19 House 20020411 Introduced, read first time, 25 HJ 20 referred to Committee 21 22 23 Versions of This Bill 24 25 26 27 28 TXT: 1 2 3 4 5 6 7 8 9 A BILL 10 11 TO AMEND CHAPTER 1, TITLE 23, CODE OF LAWS OF 12 SOUTH CAROLINA, 1976, RELATING TO LAW 13 ENFORCEMENT AND PUBLIC SAFETY GENERAL 14 PROVISIONS, BY ADDING SECTION 23-1-10 SO AS TO 15 PROVIDE THAT A LAW ENFORCEMENT OFFICER MAY 16 ENGAGE IN POLITICAL ACTIVITY WHILE OFF DUTY 17 AND MUST NOT BE DENIED THE RIGHT TO REFRAIN 18 FROM ENGAGING IN POLITICAL ACTIVITY; AND BY 19 ADDING ARTICLE 3 RELATING TO DUE PROCESS 20 DISCIPLINARY PROCEDURES FOR LAW ENFORCEMENT 21 OFFICERS, SO AS TO INCLUDE DEFINITIONS USED IN 22 CONNECTION WITH DISCIPLINARY PROCEEDINGS FOR 23 LAW ENFORCEMENT OFFICERS DISCIPLINARY 24 PROCEEDINGS, TO PROVIDE FOR CERTAIN RIGHTS AND 25 RESPONSIBILITIES OF EMPLOYING AGENCIES AND LAW 26 ENFORCEMENT OFFICERS IN CONNECTION WITH 27 INVESTIGATIONS INTO ALLEGATIONS THAT A LAW 28 ENFORCEMENT OFFICER COMMITTED AN OFFENSE OR 29 ENGAGED IN MISCONDUCT, TO PROVIDE FOR DUE 30 PROCESS WHEN CONDUCTING DISCIPLINARY 31 HEARINGS, TO PROVIDE FOR AGENCY REVIEW OF 32 CERTAIN FINDINGS AND RECOMMENDATIONS BEFORE 33 TAKING DISCIPLINARY ACTION OR ADVERSE 34 PERSONNEL ACTION AGAINST A LAW ENFORCEMENT 35 OFFICER, TO PROVIDE FOR APPEALS FROM AGENCY 36 FINDINGS AND RECOMMENDATIONS RESULTING IN 37 DISCIPLINARY OR ADVERSE PERSONNEL ACTION 38 AGAINST A LAW ENFORCEMENT OFFICER, AND TO 39 PROVIDE SAFEGUARDS FOR PLACING ADVERSE 40 PERSONNEL AND DISCIPLINARY MATERIAL IN A LAW 41 ENFORCEMENT OFFICER’S PERSONNEL FILE; AND TO

1 [5119] 1 1 DESIGNATE SECTIONS 23-1-15 THROUGH 23-1-225 OF THE 2 1976 CODE AS ARTICLE 1 OF CHAPTER 1, TITLE 23. 3 4 Be it enacted by the General Assembly of the State of South 5 Carolina: 6 7 SECTION 1. Sections 23-1-15 through 23-1-225 of the 1976 8 Code are designated Article 1 of Chapter 1 of Title 23 and named 9 “Miscellaneous Provisions.” 10 11 SECTION 2. Article 1, Chapter 1, Title 23 of the 1976 Code is 12 amended by adding: 13 14 “Section 23-1-10. A law enforcement officer may engage in 15 political activity not prohibited by law while off duty and may 16 not be denied the right to refrain from engaging in political 17 activity not prohibited by law.” 18 19 SECTION 3. Chapter 1, Title 23 of the 1976 Code is amended 20 by adding: 21 22 “Article 3 23 24 Disciplinary Proceedings for Law Enforcement Officers 25 26 Section 23-1-310. For the purposes of this article: 27 (1) ‘Law enforcement officer’ means a person who is 28 commissioned, appointed, or employed by a state, county, or 29 municipal law enforcement agency for the purpose of enforcing the 30 law of the state, county, or municipality, and who is vested with 31 the power and authority to investigate crime and to arrest another 32 person who commits a criminal offense. 33 (2) ‘Complainant’ means a person who provides information 34 that constitutes all or part of the basis for an official charge against 35 a law enforcement officer, or that gives rise to an investigation into 36 alleged improper conduct by a law enforcement officer. 37 (3) ‘Official charge’ means a written document prepared by a 38 law enforcement officer’s agency and served upon a law 39 enforcement officer so as to provide notice to the law enforcement 40 officer that he is suspected of or charged with an offense or 41 misconduct, and which contains both a statement of the charge and 42 of the specifications of the alleged offense or misconduct.

1 [5119] 2 1 (4) ‘Disciplinary proceeding’ means proceedings before an 2 agency disciplinary committee or board that is authorized and 3 empowered to conduct a hearing, swear witnesses, take testimony, 4 receive evidence, hear arguments, determine facts, apply facts to 5 applicable law, and make recommendations to an employing 6 agency relating to disciplinary action that may or may not be taken 7 against a law enforcement officer, and to report on special matters 8 arising in the course of a disciplinary proceeding. 9 (5) ‘Employing agency’ means the state, county, or municipal 10 law enforcement agency that employs a law enforcement officer. 11 12 Section 23-1-320. A law enforcement officer who is accused or 13 suspected of having committed an offense or engaging in improper 14 conduct or who is placed under investigation by his employing 15 agency for an alleged offense or improper conduct is presumed 16 innocent until proven guilty and has the same right to fair and 17 impartial treatment and the same right to due process of law that a 18 member of the general public has when suspected or accused of 19 having committed an offense or of engaging in improper conduct. 20 21 Section 23-1-330. (A) An employing agency must investigate 22 a law enforcement officer whenever it has or receives credible 23 information or a complaint that gives rise to a reasonable suspicion 24 or belief that an investigation into an alleged offense or improper 25 conduct by a law enforcement officer is necessary for the purpose 26 of maintaining good order and discipline within the employing 27 agency, bringing official charges or disciplinary proceedings 28 against the officer under this article, or the proper investigation 29 and prosecution of an offense according to law. 30 (B) When a law enforcement officer is placed under 31 investigation by his employing agency for an alleged offense or 32 improper conduct which, if founded, could result in termination, 33 demotion, another adverse personnel or disciplinary action, or the 34 loss of pay or status, the employing agency must: 35 (1) conduct a fair, impartial, and thorough investigation into 36 the alleged offense or improper conduct; 37 (2) place all adverse and investigative material relating to 38 the officer in a separate investigative file other than the officer’s 39 personnel file; 40 (3) maintain the separate investigative file in a secure place 41 located within the employing agency; 42 (4) maintain possession and control over all adverse and 43 investigative material within the investigative file;

1 [5119] 3 1 (5) limit access to the separate investigative file and to all 2 adverse and investigative material placed in the file to those 3 persons having a need to access the file and materials in the file in 4 the performance of their official duties only; and 5 (6) place adverse and investigative material relating to an 6 officer in his personnel file only as provided in this article. 7 (C) When a law enforcement officer is placed under 8 investigation by his employing agency for an alleged offense or 9 improper conduct which, if founded, could result in the officer 10 being prosecuted for a violation of the law, the investigation must 11 be initially conducted in the manner provided in subsection (B) 12 until the employing agency determines there is probable cause to 13 arrest the officer. After an employing agency determines there is 14 probable cause for an arrest, the officer involved may be 15 prosecuted for the offense as provided by law and is subject to the 16 employing agency’s personnel policies applicable to an officer 17 who is charged or arrested for a criminal offense including, but not 18 limited to, adverse personnel action resulting in termination, 19 demotion, another adverse personnel or disciplinary action, or the 20 loss of pay or status. 21 22 Section 23-1-340. (A) An official charge may be brought or 23 filed against the officer by any person having knowledge of facts 24 giving rise to the charge; provided, an official charge served upon 25 a law enforcement officer must be sworn to by a person having 26 knowledge of the factual matters giving rise to the charge, and 27 must specify the offense or conduct that is alleged to be improper, 28 the date and time of the alleged offense or misconduct occurred, 29 the names of all witnesses who will testify against the officer, and 30 must specify the specific rule, regulation, order, or law allegedly 31 violated by the officer. 32 (B) For purposes of this section, a person having knowledge of 33 facts giving rise to the charge includes a person who has given a 34 statement under oath or has signed a sworn statement or affidavit 35 setting forth facts sufficient to give rise to a reasonable suspicion 36 or belief that the officer has committed the alleged offense or 37 engaged in misconduct, or an investigator for the agency who 38 obtains information from a confidential informant and who has 39 verified the information and allegations against the officer from an 40 independent source. 41 42 Section 23-1-350. (A) Disciplinary proceedings which may 43 result in disciplinary or another adverse action being taken against

1 [5119] 4 1 a law enforcement officer because of an alleged offense or 2 misconduct are commenced against a law enforcement officer by 3 the service of official charges upon him and, thereafter, must be 4 conducted in accordance with the provisions of this article. 5 (B) The procedures for disciplinary proceedings brought under 6 this article must insure: 7 (1) that all persons who may be adversely affected by the 8 proceedings have an opportunity to be made parties to the 9 proceedings if necessary to protect their rights and interests in 10 matters to be adjudicated or determined in the proceedings; 11 (2) that all parties to the proceedings have reasonable notice 12 and an opportunity to be heard in connection with any matter that 13 may affect them adversely; and 14 (3) that all parties are afforded a reasonable opportunity to 15 consult with an attorney of their choice, and to have an attorney of 16 their choice represent them at all stages of the disciplinary 17 proceedings after official charges are served. 18 (C) Except when a party who is charged with an alleged 19 offense or misconduct requests the hearing be closed for good 20 cause shown, hearings held in connection with disciplinary 21 proceedings are open to the public. 22 (D) A complete and accurate record of the hearing and 23 proceedings must be maintained and preserved. 24 (E) The record of the hearing, including findings and 25 recommendations for disciplinary action, must be submitted to the 26 head of the employing agency for review and action. Upon 27 review, an agency head may accept all or part of the findings and 28 recommendations, and may order that all or part of the 29 recommendations relating to disciplinary action be taken. The 30 agency head may refer criminal matters to appropriate authorities 31 for prosecution in the event a hearing results in a finding or 32 determination that the officer involved has committed a criminal 33 offense. 34 (F) In the event a hearing results in a determination that an 35 officer has committed an offense or engaged in misconduct, and 36 whenever a disciplinary or adverse personnel action affecting the 37 officer is recommended or intended as a result of a disciplinary 38 hearing held pursuant to this article, the law enforcement officer 39 must be notified of the action in writing and given a reasonable 40 opportunity to prepare a rebuttal or response to the action for 41 consideration by the head of the employing agency before the 42 action is taken.

1 [5119] 5 1 (G) Except when the criminal law has been violated or as 2 otherwise provided by law, the head of the employing agency, a 3 sheriff, chief of police, or director of public safety may not 4 impose disciplinary action, adverse personnel action, or a penalty 5 greater than the disciplinary action, adverse personnel action, or 6 penalty recommended by an agency disciplinary board or 7 committee. 8 (H) A law enforcement officer may appeal a finding by a 9 disciplinary board or agency head that he has violated a criminal 10 law to the Court of General Sessions within ten days after receipt 11 of written notice of the finding. An appeal taken on an error of 12 law must be decided by the circuit judge as a matter of law. An 13 appeal from a factual finding must be determined by a trial de 14 novo in the Court of General Sessions. 15 (I) A law enforcement officer may appeal a finding by a 16 disciplinary board that he has engaged in misconduct other than a 17 violation of a criminal law to the Court of Common Pleas within 18 ten days after receipt of written notice of the finding. An appeal 19 taken on an error of law must be decided by the circuit judge as a 20 matter of law. An appeal from a factual matter must be 21 determined by a trial de novo in the Court of Common Pleas. 22 23 Section 23-1-360. When a disciplinary board determines that a 24 law enforcement officer has committed an offense or engaged in 25 improper conduct and all administrative and court appeals are 26 exhausted, the employing agency may take adverse personnel and 27 disciplinary action against the officer if warranted, and may place 28 both favorable and adverse and investigative material relating to 29 the offense or misconduct committed or engaged in by the officer 30 in his personnel file as necessary to support the personnel and 31 disciplinary action taken. Once adverse material relating to an 32 officer is placed in his personnel file, the law enforcement officer 33 has the right to review and make comments in writing concerning 34 the adverse material which must also be placed and maintained in 35 the officer’s personnel file. 36 37 Section 23-1-370. Nothing in this article limits, prohibits, or 38 restricts prosecution of a law enforcement officer for an alleged 39 violation of the civil or criminal laws of this State or of the United 40 States, or of the laws and ordinances of a county or municipality of 41 this State.” 42

1 [5119] 6 1 SECTION 4. This act takes effect upon approval by the 2 Governor. 3 ----XX----

1 [5119] 7