Session of 1997
HOUSE BILL No. 2432
By Representatives Garner and Howell
AN ACT creating the law enforcement officers' bill of rights.
Be it enacted by the Legislature of the State of Kansas:
Section 1. This act may be cited as the law enforcement officers' bill
of rights act.
Sec. 2. As used in this act:
(a) ``Disciplinary action'' means the suspension, demotion, reduction
in pay or other employment benefit, dismissal, transfer, or similar action
taken against a law enforcement officer as punishment for misconduct.
(b) ``Disciplinary hearing'' means an administrative hearing initiated
by a law enforcement agency against a law enforcement officer, based on
probable cause to believe that the officer has violated or is violating a rule
and regulation, or procedure related to service as an officer and is subject
to disciplinary action.
(c) ``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:
(1) Has committed a felony; or
(2) poses an immediate threat to the safety of the officer or others or
the property of others.
(1) 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 reasonable
suspicion that the law enforcement officer has violated, is violating, or
will in the future violate a statute or ordinance, or administrative rule and
regulation, or procedure relating to service as a law enforcement officer;
(A) Asking questions of other law enforcement officers or nonlaw
(B) conducting observations;
(C) evaluating reports, records, or other documents; and
(D) examining physical evidence.
1 (e) ``Law enforcement agency'' means a state or local public agency
2 charged by law with the duty to prevent or investigate crimes or appre-
3 hend or hold in custody persons charged with or convicted of crimes.
4 (f) ``Law enforcement officer'' and ``officer'' means any person who
5 by virtue of such person's office or public employment is vested by law
6 with a duty to maintain public order or to make arrests for crimes,
7 whether that duty extends to all crimes or is limited to specific crimes.
8 (g) ``Summary punishment'' means punishment imposed for a minor
9 violation of a law enforcement agency's rules and regulations that does
10 not result in suspension, demotion, reduction in pay or other employment
11 benefit, dismissal, or transfer.
12 Sec. 3. (a) This act sets forth rights that shall be afforded a law en-
13 forcement officer who is the subject of an investigation.
14 (b) This act does not apply in the case of:
15 (1) A criminal investigation of a law enforcement officer's conduct;
17 (2) a nondisciplinary action taken in good faith on the basis of a law
18 enforcement officer's employment related performance.
19 (c) Except when on duty or acting in an official capacity, no law en-
20 forcement officer shall be prohibited from engaging in political activity
21 or be denied the right to refrain from engaging in such activity.
22 Sec. 4. (a) When a law enforcement officer is under investigation that
23 could lead to disciplinary action, the following minimum standards shall
25 (1) A law enforcement officer shall be notified of the investigation
26 prior to being interviewed. Notice shall include the general nature and
27 scope of the investigation and all departmental violations for which rea-
28 sonable suspicion exists. No investigation based on a complaint from out-
29 side the law enforcement agency may commence unless the complainant
30 provides a signed detailed statement. An investigation based on a com-
31 plaint from outside the agency shall commence within 15 days after re-
32 ceipt of the complaint by the agency.
33 (2) At the conclusion of the investigation, the person in charge of the
34 investigation shall inform the law enforcement officer under investigation,
35 in writing, of the investigative findings and any recommendation for dis-
36 ciplinary action that the person intends to make.
37 (b) When a law enforcement officer is subjected to questioning that
38 could lead to disciplinary action, the following minimum standards shall
40 (1) Questioning of a law enforcement officer shall be conducted at a
41 reasonable hour, preferably when the law enforcement officer is on duty,
42 unless exigent circumstances otherwise require.
43 (2) Questioning of the law enforcement officer shall take place at the
1 offices of the persons who are conducting the investigation or the place
2 where the law enforcement officer reports for duty, unless the officer
3 consents in writing to being questioned elsewhere.
4 (3) The law enforcement officer under investigation shall be in-
5 formed, at the commencement of any questioning, of the name, rank and
6 command of the officer conducting the questioning.
7 (4) During any single period of questioning of the law enforcement
8 officer, all questions shall be asked by or through a single investigator.
9 (5) The law enforcement officer under investigation shall be in-
10 formed in writing of the nature of the investigation prior to any ques-
12 (6) Any questioning of a law enforcement officer in connection with
13 an investigation shall be for a reasonable period of time and shall allow
14 for reasonable periods for the rest and personal necessities of the law
15 enforcement officer.
16 (7) Threats against, harassment of, or promise of reward shall not be
17 made in connection with an investigation to induce the answering of any
18 question. No statement given by the officer may be used in a subsequent
19 criminal proceeding unless the officer has received a written grant of use
20 and derivative use immunity or transactional immunity.
21 (8) All questioning of any law enforcement officer in connection with
22 the investigation shall be recorded in full, in writing or by electronic
23 device, and a copy of the transcript shall be made available to the officer
24 under investigation.
25 (9) The law enforcement officer under investigation shall be entitled
26 to counsel, or any other one person of the officer's choice, at any ques-
27 tioning of the officer, unless the officer consents in writing to being ques-
28 tioned outside the presence of counsel.
29 Sec. 5. (a) Except in a case of summary punishment or emergency
30 suspension described in subsection (a) or (b) of section 6, if an investi-
31 gation of a law enforcement officer results in a recommendation of dis-
32 ciplinary action, the law enforcement agency shall notify the law enforce-
33 ment officer that the law enforcement officer is entitled to a hearing on
34 the issues by a hearing officer or board prior to the imposition of any
35 disciplinary action.
36 (b) No disciplinary action may be taken unless a hearing officer or
37 board determines, pursuant to a fairly conducted disciplinary hearing, that
38 the law enforcement officer violated a statute, ordinance, resolution, or
39 published administrative rule and regulation, or procedure.
40 (c) No disciplinary charges may be brought against a law enforcement
41 officer unless filed within 90 days after the commencement of an inves-
42 tigation, except for good cause shown.
43 (d) The law enforcement agency shall provide written, actual notifi-
1 cation to the law enforcement officer, not later than 30 days after the
2 filing of disciplinary charges, of the following:
3 (1) The date, time and location of the disciplinary hearing, which shall
4 take place not sooner than 30 days and not later than 60 days after noti-
5 fication to the law enforcement officer under investigation unless waived
6 in writing by the officer.
7 (2) The name and mailing address of the hearing officer.
8 (3) The name, rank and command of the prosecutor, if a law enforce-
9 ment officer, or the name, position and mailing address of the prosecutor,
10 if not a law enforcement officer.
11 (e) During a disciplinary hearing an officer shall be entitled to be
12 represented by counsel or nonattorney representative.
13 (f) The disciplinary hearing shall be conducted by one of the following
15 (1) A hearing board consisting solely of police officers from the law
16 enforcement officer's department. The board shall contain an equal num-
17 ber of commanders and rank and file officers. The commanders shall be
18 of the rank of lieutenant and above, and shall be appointed by the head
19 of the agency or department. The rank and file officers shall consist of
20 the rank of sergeant and below, and shall be selected by the law enforce-
21 ment officer, such officer's representative or counsel; or
22 (2) a neutral professional arbitrator registered with the federal me-
23 diation and conciliation service or the American arbitration association,
24 and jointly selected by the law enforcement officer and such officer's
25 employer, from a list provided by either the federal mediation and con-
26 ciliation service or the American arbitration association.
27 (g) A law enforcement officer who is brought before a disciplinary
28 hearing board shall be provided access to all transcripts, records, written
29 statements, written reports, analyses and electronically recorded infor-
30 mation pertinent to the case that:
31 (1) Contain exculpatory information;
32 (2) are intended to support any disciplinary action; or
33 (3) are to be introduced in the disciplinary hearing.
34 (h) The disciplinary advocate for the law enforcement agency of
35 which the officer who is the subject of the hearing is a member shall
36 notify the law enforcement officer, or such officer's attorney if such officer
37 is represented by counsel, not later than 15 days prior to the hearing, of
38 the names and addresses of all witnesses for the law enforcement agency.
39 (i) The disciplinary advocate for the law enforcement agency of which
40 the officer who is the subject of the hearing is a member shall provide to
41 the law enforcement officer, at the law enforcement officer's request, not
42 later than 15 days prior to the hearing, a copy of the investigative file,
43 including all exculpatory and inculpatory information but excluding con-
1 fidential sources.
2 (j) The disciplinary advocate for the law enforcement agency of which
3 the officer who is the subject of the hearing is a member shall notify the
4 law enforcement officer, at the officer's request, not later than 15 days
5 prior to the hearing, of all physical, nondocumentary evidence, and pro-
6 vide a reasonable date, time, place and manner for the officer to examine
7 such evidence at least 10 days prior to the hearing.
8 (k) The hearing board shall have the power to issue summonses to
9 compel testimony of witnesses and production of documentary evidence.
10 If confronted with a failure to comply with a summons, the hearing officer
11 or board may petition a court to issue an order, with failure to comply
12 being subject to contempt of court.
13 (l) A disciplinary hearing shall be closed to the public unless the law
14 enforcement officer who is the subject of the hearing requests, in writing,
15 that the hearing be open to specified individuals or the general public.
16 (m) All aspects of a disciplinary hearing, including prehearing mo-
17 tions, shall be recorded by audio tape, video tape or transcription.
18 (n) Either side in a disciplinary hearing may move for and be entitled
19 to sequestration of witnesses.
20 (o) The hearing officer or board shall administer an oath or affirma-
21 tion to each witness, who shall testify subject to the applicable laws of
23 (p) At the conclusion of all the evidence, and after oral argument
24 from both sides, the hearing officer or board shall deliberate and render
25 a verdict on each charge.
26 (q) The prosecutor's burden of persuasion shall be by clear and con-
27 vincing evidence as to each charge involving false representation, fraud,
28 dishonesty, deceit or criminal behavior and by a preponderance of the
29 evidence as to all other charges.
30 (r) If the law enforcement officer is found not guilty of the discipli-
31 nary violations, the matter is concluded and no disciplinary action may
32 be taken.
33 (s) If the law enforcement officer is found guilty, the hearing officer
34 or board shall make a written recommendation of a penalty. The sen-
35 tencing authority may not impose a penalty greater than the penalty rec-
36 ommended by the hearing officer or board.
37 (t) A law enforcement officer may appeal from a final decision of a
38 law enforcement agency to a court to the extent available in any other
39 administrative proceeding, in accordance with the Kansas administrative
40 procedure act.
41 (u) A law enforcement officer may waive any of the rights guaranteed
42 by this act subsequent to the time that the officer has been notified that
43 the officer is under investigation. Such a waiver shall be in writing and
1 signed by the officer.
2 Sec. 6. (a) This act does not preclude an agency from providing for
3 summary punishment or emergency suspension.
4 (b) An emergency suspension shall not affect or infringe on the health
5 benefits of a law enforcement officer or the officer's dependents.
6 (c) There shall be no penalty or threat of penalty against a law en-
7 forcement officer for the exercise of the officer's rights under this act.
8 (d) Nothing in this act shall be construed to impair any other legal
9 right or remedy that a law enforcement officer may have as a result of a
10 constitution, statute, ordinance, rule and regulation, collective bargaining
11 agreement or other sources of rights.
12 (e) A law enforcement officer who is being denied any right afforded
13 by this act may petition the court for declaratory or injunctive relief to
14 prohibit the law enforcement agency from violating such right.
15 (f) A law enforcement agency shall not insert any adverse material
16 into the file of any law enforcement officer, or possess or maintain control
17 over any adverse material in any form within the law enforcement agency,
18 unless the officer has had an opportunity to review and comment in writ-
19 ing on the adverse material.
20 (g) A law enforcement officer shall not be required or requested to
21 disclose any item of the officer's personal property, income, assets,
22 sources of income, debts, personal or domestic expenditures, including
23 those of any member of the officer's household, unless:
24 (1) The information is necessary to the investigation of a violation of
25 any federal law, state law, rule and regulation, or local resolution or or-
26 dinance, with respect to the performance of official duties; and
27 (2) such disclosure is required by federal law, state law, rule and
28 regulation, or local resolution or ordinance.
29 (h) This act does not preempt existing mutually agreed upon collec-
30 tive bargaining agreements in effect on the date of enactment of this act
31 that are substantially similar to the rights and coverage afforded under
32 this act.
33 Sec. 7. This act shall take effect and be in force from and after its
34 publication in the statute book.