SENATE BILL NO 2. AND NEW REQUIREMENTS AND PROCEDURES REQUIRED IN THE HIRING AND REPORTING PROCESS FOR PEACE OFFICERS

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SENATE BILL NO 2. AND NEW REQUIREMENTS AND PROCEDURES REQUIRED IN THE HIRING AND REPORTING PROCESS FOR PEACE OFFICERS

  • By: Ben Ramsey

On September 30, 2021, Governor Newsom signed “Senate Bill No. 2 Peace officers: certification: civil rights”. Senate Bill No. 2 creates a professional licensing agency for law enforcement personnel similar to other professional licensing boards, in addition to creating new requirements for the hiring process and record keeping. Mandatory POST Certification now operates as a professional license for peace officers. Effective January 1, 2022 the POST Commission can now revoke POST Certification which effectively results in the revocation of the peace officer certificate. 

California was one of only four states that did not have a statewide process for the regulation and revocation of peace officer certificates.  (California, Hawaii, New Jersey, and Rhode Island).  

The changes enacted by Senate Bill 2 are wide in scope, but the focus of this article will be on the impact of Senate Bill 2 on the hiring process and new reporting requirements for law enforcement agencies. In summary, Senate Bill 2 requires:

  1. The creation of an investigative agency (Peace Officer Standards Accountability Division) empowered to investigate and issue recommendations regarding decertification to a nine-member board (Peace Officers Standards Accountability Advisory Board), which was also created by the bill.  The Peace Officer Standards Accountability Advisory Board will be charged with holding public meetings to review the findings after an investigation, and will issue recommendations to the POST Commission regarding decertification.[1] The composition of the board’s members is specified by new Penal Code Section 13509.6(d).
  2. An administrative hearing process for peace officers to dispute decertification with the ability to request superior court review.
  3. Statutory requirements regarding the retention and availability of records to the public including substantial amendments to Penal Code Section 832.7.
  4. The elimination of certain immunities for peace officers and prosecutors with regard to claims under the Bane Civil Rights Act.
  5. Statutory requirements regarding timelines for completion of investigations. 

PEACE OFFICER STANDARDS AND ACCOUNTABILITY DIVISION AND PEACE OFFICER STANDARDS AND ACCOUNTABILITY REVIEW BOARD

Senate Bill 2 creates the Peace Officer Standards Accountability Division which is an investigative body operating under the authority of the POST Commission. The Peace Officer Standards and Accountability Division will be charged with conducting investigations into serious misconduct that can result in suspension or revocation of a peace officer’s POST certification. This can include a review of an agency’s investigation of a peace officer’s conduct and also an independent investigation initiated by the Peace Officer Standards Accountability Division. The peace officer has the ability to request an administrative review of any findings regarding certification including superior court review.  

The Peace Officer Standards and Accountability Review Board will be comprised of nine appointed members, and will hold public hearings to review the findings of the Accountability Division and will make a recommendation to the POST Commission. (See Penal Code Section 13509.6 effective January 1, 2022.)

HIRING PROCEDURES AND REQUIREMENTS AFTER JANUARY 1, 2022 

Effective January 1, 2022, agencies may only hire peace officers with a basic POST Certificate (or probationary).  As to existing employees, Government Code Section 1031.4(b) states: “This section shall not apply to any person who, as of December 31, 2021, is currently enrolled in a basic academy or is employed as a peace officer by a public entity in California.” 

Any agency hiring a peace officer who was previously employed with another agency must contact the POST Commission to inquire why the officer separated from any previous agency. The POST Commission is required to give the hiring agency any information it has regarding any previous separation.

A peace officer also must now be 21 years of age at the time of appointment. 

Senate Bill 2 provides for the amendment of Government Code Section 1029 to expand the basis for ineligibility, to include:

  1. Military discharge for conduct that would be a felony in California.
  2.  Felony conviction that was later vacated unless the court issued a finding of factual innocence.
  3. Conviction for specified crimes of dishonesty whether a felony or a misdemeanor.
  4. Civil, military, or administrative adjudication for listed crime of dishonesty in a proceeding requiring a showing by clear and convincing evidence.
  5. POST Certification being revoked, voluntarily surrendered, or denied.
  6. Decertification in another jurisdiction for conduct that would result in decertification in California. 

REPORTING REQUIRMENTS

Obviously, these entities cannot function without centralized reporting requirements to gather data.  Effective January 1, 2022, law enforcement agencies must report the following to the POST Commission within ten days:

  1. Any appointment or separation of a peace officer including termination, resignation, and retirement. The report must be by sworn affidavit and include specific information. The officer has the opportunity to provide a written response.
  2. Any allegation of conduct that could result in decertification.
  3. Investigative findings of conduct that could result in decertification.
  4. Findings by a civilian oversight entity or police chief that an officer engaged in conduct that could result in decertification.
  5. A civil judgment or court finding against an officer based on conduct that could result in decertification.
  6. Settlement of a civil claim alleging conduct that could result in decertification. 

WHAT EXACTLY IS “SERIOUS MISCONDUCT”?

As stated above, the Peace Officer Standards and Accountability Division is charged with reviewing and investigating possible instances of “serious misconduct”.  The issue of how “serious misconduct” is defined is still open to regulatory interpretation by the POST Commission, which must issue a definition by January 1, 2023.  Senate Bill 2 includes a long list of conduct that “shall” be included as “serious conduct”.  Therefore, it is a more than reasonable assumption that the definition will include:

  1. Acts of dishonesty in investigation and prosecution of crimes
  2. Abuse of power
  3. Physical abuse
  4. Sexual assault
  5. Demonstrating bias
  6. Violation of law
  7. Participation in a “law enforcement gang”
  8. Failure to cooperate in investigation into potential police misconduct, including internal affairs and independent POST investigations.
  9. Failure to intercede when present and observing another officer using force clearly beyond what is necessary. 

THE POST SENATE BILL NO. 2 WORLD

As mentioned at the beginning of this article, Senate Bill No. 2 requires widespread changes, and this article is focused on one component of this legislation. It is possible that the changes that need to be implemented at the agency level will be minimal, as many agencies already endeavor to go beyond the minimum when it comes to the hiring process.  It may also be that once these mechanisms are functioning, that the hiring process may be more efficient.  Moving forward into the post Senate Bill No. 2 world will be a process, and we are always available to help.

[1] The Peace Officer Standards Accountability Advisory Board appointments must be completed by January 1, 2023.