PRINTER'S NO. 175
No. 187 Session of 1999
INTRODUCED BY O'BRIEN, BUXTON, THOMAS, READSHAW, BELFANTI,
HERSHEY, WOGAN, WILT, LAUGHLIN, FARGO, COY, WOJNAROSKI,
E. Z. TAYLOR, FLICK, TRELLO, PESCI, GIGLIOTTI, KENNEY,
J. TAYLOR, McCALL, SOLOBAY, ORIE, McGEEHAN, HARHAI, BUNT,
BROWNE AND BELARDI, JANUARY 27, 1999
REFERRED TO COMMITTEE ON JUDICIARY, JANUARY 27, 1999
AN ACT
1 Providing for the rights of police officers concerning certain
2 complaints and grievances; and making repeals.
3 TABLE OF CONTENTS
4 Section 1. Short title.
5 Section 2. Legislative intent.
6 Section 3. Definitions.
7 Section 4. Rights of police officers.
8 Section 5. Civil suits by police officers.
9 Section 6. Notice of disciplinary action; adverse comments.
10 Section 7. Polygraph.
11 Section 8. Retaliation for exercising rights.
12 Section 9. Hearing committee; arbitration alternative.
13 Section 10. Personal privacy.
14 Section 11. Impact of collective bargaining agreements.
15 Section 12. Summary suspensions.
16 Section 13. Failure to comply.
1 Section 14. Preservation of greater police officer protections.
2 Section 15. Local option.
3 Section 16. Lack of jurisdiction by civil service commissions
4 and other entities not provided for in act.
5 Section 17. Repeals.
6 Section 18. Applicability.
7 Section 19. Effective date.
8 The General Assembly of the Commonwealth of Pennsylvania
9 hereby enacts as follows:
10 Section 1. Short title.
11 This act shall be known and may be cited as the Police
12 Officers Bill of Rights Act.
13 Section 2. Legislative intent.
14 The General Assembly recognizes the need for minimum
15 standards to protect the rights of police officers beyond
16 departmental procedures.
17 Section 3. Definitions.
18 The following words and phrases when used in this act shall
19 have the meanings given to them in this section unless the
20 context clearly indicates otherwise:
21 "Adverse employment action." Dismissal, demotion,
22 suspension, loss of pay, reduction in salary, written reprimand
23 or other action of a punitive nature. The term does not include
24 a temporary reassignment pending the outcome of an
25 investigation.
26 "Interrogation." Formal and systematic questioning of a
27 police officer with regard to acts or omissions within the scope
28 of employment as a police officer which may result in the taking
29 of adverse employment action against such police officer.
30 "Investigation." Action of a public agency, acting alone or
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1 in cooperation with another agency, or a division or unit within
2 an agency, or action of an individual police officer, taken with
3 regard to another police officer as to acts or omissions within
4 the scope of employment of the other officer. The term includes
5 asking questions of other police officers or individuals who are
6 not law enforcement officers; conducting observations;
7 evaluating reports, records or other documents; and examining
8 physical evidence.
9 "Police officer." An individual employed as a police officer
10 by a public agency who is, by law, given the power to arrest
11 when acting within the scope of employment. The term does not
12 include the chief of police or comparable head of a public
13 agency.
14 "Public agency." The police department or similar agency of:
15 (1) a city of the first class; or
16 (2) a municipality which elects to be governed by this
17 act under section 15.
18 Section 4. Rights of police officers.
19 (a) General requirements.--If a police officer is under
20 investigation and subject to interrogation by the public agency
21 employing such police officer, the following minimum standards
22 shall apply:
23 (1) The interrogation shall be conducted when the police
24 officer is on duty unless the seriousness of the
25 investigation is such that an immediate interrogation is
26 necessary. The police officer may not be deprived of any
27 compensation for any absence from work as a result of any
28 interrogation and shall be fully compensated for any period
29 he is interrogated while off-duty in accordance with any
30 public agency overtime policy and Federal and State law. The
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1 police officer may not be terminated from employment or
2 disciplined for any work missed because of involvement in an
3 interrogation.
4 (2) The interrogation shall take place at:
5 (i) the office of the command of the investigating
6 officer;
7 (ii) the office of the precinct or police unit of
8 the public agency employing the police officer under
9 interrogation; or
10 (iii) an office within a building owned or leased by
11 the municipality.
12 (3) The police officer under interrogation shall be
13 informed of the name, rank and command of the police officer
14 or municipal official or other official in charge of the
15 interrogation and the name, rank and command of persons who
16 will be present during the investigation. All questions
17 directed to the police officer under interrogation shall be
18 asked by and through no more than two interrogators at the
19 same time.
20 (4) The police officer under interrogation shall be
21 informed in writing of the nature of the complaint and
22 provided the name or names of the complainant. This paragraph
23 shall not apply to any investigation into alleged criminal
24 activities which would constitute a misdemeanor or felony
25 offense.
26 (5) If an anonymous or unsworn complaint is made against
27 a police officer and no corroborative evidence is obtained
28 within 30 days of its filing, the complaint shall be
29 classified as unfounded, completely expunged from any file
30 maintained by the public agency on the police officer and not
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1 relied upon by that agency for any reason in the future.
2 (6) All interrogations shall be for reasonable periods
3 and shall be timed to allow for personal necessities and rest
4 periods as are reasonably necessary.
5 (7) The police officer under interrogation may not be
6 subjected to intimidating, offensive, abusive or coercive
7 language or threatened with adverse employment action, either
8 directly or indirectly. The police officer under
9 interrogation may not be offered promises of reward in
10 connection with an investigation to adduce the answering of
11 any question.
12 (8) The complete interrogation shall be transcribed,
13 including a notation of any recess periods. A copy of the
14 record shall be made available to the police officer or the
15 police officer's counsel or representative, upon request,
16 without cost.
17 (9) If the police officer under interrogation is under
18 arrest or is likely to be placed under arrest, the police
19 officer shall be completely informed of all constitutional
20 rights and all rights under this act prior to the
21 commencement of the interrogation.
22 (10) The police officer under interrogation shall have
23 the right to be represented by counsel or other
24 representative of his choice, who shall be present at all
25 times during an interrogation. To the extent that the police
26 officer is represented for purposes of collective bargaining
27 by a collective bargaining representative pursuant to State
28 statutes, the police officer shall have the opportunity to
29 also have an agent from the exclusive collective bargaining
30 representative present. The interrogation shall be suspended
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1 for a reasonable time until representation can be obtained.
2 (11) No person in the public agency employing a police
3 officer may make a public statement alleging or suggesting
4 any wrongdoing by the police officer prior to a decision
5 being rendered by the public agency employing the police
6 officer unless the police officer has an opportunity to
7 review and receive a copy of the material in writing and the
8 police officer waives this provision in writing.
9 (12) No police officer may be compelled to speak or
10 testify before, or be questioned by, an agency which is not a
11 law enforcement agency. This paragraph shall be inapplicable
12 to any judicial proceeding or to any hearing conducted by a
13 standing or select committee of the Senate or the House of
14 Representatives or any hearing conducted before the governing
15 body of any municipality to which this act applies.
16 (13) Prompt action is required as follows:
17 (i) Except as hereinafter provided in this
18 subparagraph, when any complaint is made against a police
19 officer more than 90 days after the date of the alleged
20 event complained of, the complaint shall be classified as
21 unfounded and shall be completely expunged from any file
22 maintained by the public agency on the police officer and
23 not relied upon by that agency for any reason in the
24 future. The police officer shall be notified in writing
25 of the claim.
26 (ii) Notwithstanding subparagraph (i), no complaint
27 which alleges conduct that would constitute a misdemeanor
28 or felony offense if proven shall be classified as
29 unfounded or expunged as a stale complaint until the
30 applicable statute of limitations expires as prescribed
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1 in 42 Pa.C.S. Ch. 55, Subch. C (relating to criminal
2 proceedings).
3 (b) Routine, informed or unplanned interrogation or
4 contact.--This section shall not apply to any interrogation of a
5 police officer in the normal course of duty, counseling,
6 instruction, informal verbal admonishment or other routine or
7 unplanned contact with a supervisor or any other officer.
8 Section 5. Civil suits by police officers.
9 (a) Cause of action.--A police officer shall have a cause of
10 action against any person or municipality for damages suffered
11 as a result of a complaint filed against the police officer by
12 that person or municipality which is found to be any of the
13 following:
14 (1) Without merit and frivolous.
15 (2) Without merit and made in bad faith.
16 (b) Limit.--No municipality which is subject to the
17 provisions of this act nor any public agency of such a
18 municipality may adopt any regulation, ordinance or policy which
19 abrogates the right of a police officer to institute an action
20 under this section.
21 Section 6. Notice of disciplinary action; adverse comments.
22 (a) Adverse comments.--
23 (1) Except as set forth in paragraph (2), a comment
24 adverse to the interest of a police officer may not be
25 entered into:
26 (i) the police officer's personnel file; or
27 (ii) a record kept at the police officer's place or
28 unit of employment.
29 (2) Paragraph (1) does not apply if any of the following
30 apply:
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1 (i) The police officer reads and signs the
2 instrument which contains the adverse comment and which
3 indicates that the police officer is aware that the
4 adverse comment is being entered into the personnel file
5 or record.
6 (ii) The police officer reads but refuses to sign
7 the instrument which contains the adverse comment and
8 which indicates that the police officer is aware that the
9 adverse comment is being entered into the personnel file
10 or record. For this subparagraph to apply, a witness must
11 attest in writing to the reading and refusal.
12 (3) An adverse comment is not subject to disclosure
13 under the act of June 21, 1957 (P.L.390, No.212), referred to
14 as the Right-to-Know Law.
15 (b) Response.--
16 (1) A police officer shall have 30 days within which to
17 file a written response to an adverse comment which is
18 entered under subsection (a)(1) or (2).
19 (2) A written response under paragraph (1) shall be
20 attached to the adverse comment.
21 (3) A written response is not subject to disclosure
22 under the Right-to-Know Law.
23 Section 7. Polygraph.
24 No police officer may be compelled to submit to a polygraph
25 examination involuntarily. No disciplinary action or other
26 recrimination may be taken against a police officer for refusing
27 to submit to a polygraph examination. No comment may be entered
28 in the investigator's notes or anywhere else that the police
29 officer refused to take a polygraph examination. No testimony or
30 evidence shall be admissible at a subsequent hearing, trial or
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1 proceeding, judicial or administrative, to the effect that the
2 police officer refused to take a polygraph examination.
3 Section 8. Retaliation for exercising rights.
4 No police officer may be subjected to or threatened with
5 adverse employment action as a result of the exercise of the
6 rights accorded to police officers under this act.
7 Section 9. Hearing committee; arbitration alternative.
8 (a) Right to hearing.--
9 (1) If a public agency employing a police officer makes
10 a decision to take an adverse employment action against a
11 police officer, then, before taking the action, the public
12 agency must give the police officer written notice of the
13 decision and charges and the reasons for taking the adverse
14 employment action. The notice must inform the police officer
15 that the police officer is entitled to appeal the adverse
16 employment decision to a hearing committee.
17 (2) If the police officer files an appeal within 30 days
18 of receiving the notice, the police officer shall be entitled
19 to a de novo hearing before the hearing committee on the
20 adverse employment decision of the public agency.
21 (3) After the police officer files a notice of appeal
22 with the public agency, a hearing committee shall be formed
23 under subsection (b) unless the police officer has opted for
24 the arbitration alternative.
25 (4) The hearing committee must provide the police
26 officer with written notice of the time, place and subject
27 matter of the hearing.
28 (5) An official record, including testimony and
29 exhibits, must be kept of the hearing.
30 (6) The hearing shall be closed to the public unless the
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1 police officer who is the subject of the hearing requests in
2 writing that the hearing be opened to the general public.
3 (7) The hearing committee may uphold, reject or modify
4 the adverse employment decision of the public agency.
5 (8) Except as otherwise provided in section 12, no
6 police officer shall be subject to an adverse employment
7 action except upon a determination of the hearing committee
8 that the adverse employment action is warranted under the
9 applicable law.
10 (9) If, after the hearing, the hearing committee upholds
11 the dismissal, suspension or other adverse employment action
12 against the police officer, the police officer shall not be
13 entitled to pay and benefits to the extent that such pay or
14 benefits are suspended or reduced by the hearing committee.
15 If the police officer is reinstated on appeal to the courts,
16 such officer shall be entitled to reimbursement for all
17 salary and benefits that have not been paid.
18 (b) Hearing committee.--The hearing committee shall consist
19 of three active police officers from within this Commonwealth
20 who have had no part in the interrogation or related
21 investigation of the charged police officer filing the appeal.
22 One member shall be selected by the chief or the highest ranking
23 police officer of the public agency. One member shall be
24 selected by the charged police officer or a designated
25 representative, and the member's name must be submitted by the
26 police officer within ten days after filing the appeal. One
27 member shall be selected by the other two selected members. If
28 the other two members are unable to agree within ten days, the
29 two members shall make application to the court of common pleas,
30 and the court shall appoint the third member who shall be a
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1 police officer.
2 (c) Evidence at hearing.--Relevant and material evidence
3 shall be admissible, but evidence that is repetitious or
4 cumulative and evidence which is not of the kind which would
5 affect reasonable and fair-minded individuals in the conduct of
6 their daily affairs shall be excluded. The hearing committee
7 shall rule on the admissibility of evidence and shall otherwise
8 control the reception of evidence so as to confine it to the
9 issues in the proceeding. The hearing committee may not rely on
10 hearsay which would be inadmissible in court in making decisions
11 or findings of fact.
12 (d) Subpoena; oath; production of documents.--With respect
13 to the subject of any investigation or hearing conducted under
14 this section, the hearing committee may do any of the following:
15 (1) Subpoena witnesses.
16 (2) Administer an oath or affirmation.
17 (3) Examine an individual under oath.
18 (4) Compel the production of documents.
19 (e) Witness fees.--
20 (1) Except as set forth in paragraph (2), witnesses
21 subpoenaed by the public agency shall be paid the same fees
22 and mileage rates as are paid for like services in the courts
23 of common pleas. Witnesses subpoenaed at the instance of the
24 participants shall be paid the same fees by the participant
25 at whose instance the witness is subpoenaed; and the hearing
26 committee, before issuing a subpoena at the instance of a
27 participant, may require a deposit of an amount adequate to
28 cover the fees and mileage involved.
29 (2) Notwithstanding paragraph (1), witnesses who are
30 covered by a collective bargaining agreement shall be
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1 compensated for appearing at a proceeding under this section
2 in accordance with the terms of that agreement as applied to
3 testimony at judicial proceedings and, as appropriate, work
4 performed by that police officer outside of the normal work
5 day.
6 (f) Cross-examination and rebuttal.--Each party shall have
7 the right to cross-examination of the witnesses who testify and
8 may submit rebuttal evidence.
9 (g) Judicial notice.--The hearing committee conducting the
10 hearing may take notice of judicially cognizable facts and may
11 take notice of general, technical or scientific facts within its
12 specialized knowledge.
13 (h) Content and transmission of hearing committee
14 decision.--A decision, order or action taken as a result of the
15 hearing before the hearing committee must be in writing and must
16 be accompanied by findings of fact. A copy of the decision or
17 order and accompanying findings and conclusions shall be
18 delivered or mailed promptly to the police officer or the police
19 officer's attorney or representative of record.
20 (i) Appeal.--An aggrieved party may appeal the decision of
21 the hearing committee to a court of competent jurisdiction.
22 (j) Status of case during appeal.--Nothing in this act shall
23 prohibit the implementation of an adverse employment action
24 against a police officer during the course of judicial review of
25 a decision of the hearing committee or a decision made pursuant
26 to the arbitration alternative to the extent that such
27 arbitration decision is appealable.
28 (k) Arbitration alternative.--
29 (1) If a public agency is subject to a collective
30 bargaining agreement which provides for final and binding
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1 arbitration as a means of dispute resolution, a police
2 officer covered by the collective bargaining agreement may
3 elect to proceed to arbitration instead of the method
4 described by this section for hearings conducted before the
5 hearing committee.
6 (2) A police officer need not be required to proceed to
7 arbitration pursuant to a collective bargaining agreement if
8 the police officer chooses the hearing committee procedure
9 prescribed in this section. The police officer must exercise
10 this option prior to the formation of the hearing committee.
11 (l) Inapplicability of section.--If the adverse employment
12 action is based upon a conviction for a misdemeanor or felony
13 offense, the decision shall be made by the public agency
14 employing the police officer, without regard to the requirements
15 of this section, subject to an appeal to a court of competent
16 jurisdiction.
17 Section 10. Personal privacy.
18 (a) Disclosures.--No police officer may be required to
19 disclose greater information as to property, income, assets,
20 source of income, debts, personal or domestic expenditures,
21 including those of any member of his family or household, than
22 the principal elected officials of the municipality employing
23 the police officer are required by law to disclose unless the
24 information is obtained under proper legal procedures.
25 (b) Search of lockers.--A police officer's locker or other
26 space for storage that may be assigned to the police officer may
27 not be searched except in the police officer's presence and with
28 his written consent unless a valid search warrant has been
29 obtained to conduct the search. This section shall apply only to
30 lockers or other space for storage that is owned by the
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1 employing agency. A police officer from whom consent is
2 requested shall be told of the right to deny the consent.
3 Section 11. Impact of collective bargaining agreements.
4 Nothing in this act shall be construed to diminish the
5 obligation of a municipality to comply with a collective
6 bargaining agreement which provides greater rights and coverage
7 to police officers than the rights and coverage provided by this
8 act. The rights and coverage under this act may not be
9 diminished by any collective bargaining agreement.
10 Section 12. Summary suspensions.
11 (a) Emergency suspension.--Emergency suspension may be
12 imposed by the chief or the highest ranking police officer of
13 the public agency if the particular and unique circumstances of
14 the situation dictate that such action is necessary to protect
15 the public interest. Any police officer receiving emergency
16 suspension may be relieved of duty, but the police officer shall
17 receive all ordinary pay and benefits as if the police officer
18 were not suspended. A suspended police officer shall be entitled
19 to a hearing before a hearing committee in accordance with
20 section 9 upon the police officer's request. The time period for
21 the hearing shall not exceed 30 days. If, after the hearing, the
22 hearing committee does suspend or dismiss the police officer,
23 the police officer shall not be entitled to pay and benefits. If
24 the police officer is reinstated at a subsequent hearing, the
25 police officer shall be entitled to be reimbursed for all salary
26 and benefits that have not been paid.
27 (b) Criminal charges.--A police officer against whom a
28 criminal proceeding involving any misdemeanor or felony offense
29 has been instituted by the district attorney or Attorney General
30 may be suspended without pay pending disposition of the criminal
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1 charges. Medical benefits and insurance to which a police
2 officer, and spouse and dependents, are entitled by virtue of
3 employment may not be suspended. If the police officer is
4 acquitted of the criminal charges, the police officer shall be
5 reinstated and reimbursed for all salary and benefits that have
6 not been paid during the suspension period.
7 Section 13. Failure to comply.
8 If any public agency fails to comply with the requirements of
9 this act, a police officer who is aggrieved by the failure to
10 comply may institute an action in the court of competent
11 jurisdiction for an injunction to restrain the violation and to
12 compel the performance of the duties imposed by this act. In
13 addition to any injunctive relief awarded, the court shall order
14 the public agency to pay for any pay and benefits lost by the
15 police officer on account of the violation and for reasonable
16 attorney fees and court costs incurred by any police officer who
17 prevails.
18 Section 14. Preservation of greater police officer protections.
19 Nothing in this act shall be deemed to repeal, abrogate or
20 modify a statute, local ordinance or public agency policy to the
21 extent that such statute, ordinance or policy accords police
22 officers greater protection than is provided under this act.
23 Section 15. Local option.
24 (a) Election to be held.--In a municipality, an election may
25 be held on the date of the primary election immediately
26 preceding a municipal election, but not more than once in four
27 years, to determine the will of the electors with respect to the
28 inclusion of such municipality under the provisions of this act.
29 If an election has been held at the primary election preceding a
30 municipal election, another election may be held under the
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1 provisions of this act at the primary election occurring the
2 fourth year after such prior election. If electors equal to at
3 least 25% of the highest vote cast for any office in the
4 municipality at the last preceding general election file a
5 petition with the county board of elections of the county, or if
6 the governing body of the municipality adopts, by a majority
7 vote, a resolution, to place on the ballot a question of whether
8 such municipality shall be governed by the provisions of the
9 act, upon filing of this petition or resolution with the county
10 board of elections, the board shall cause a question to be
11 placed on the ballot and submitted at the primary election
12 immediately preceding the municipal election. The question shall
13 be in the following form:
14 Do you favor the application of the provisions
15 of the Police Officers Bill of Rights Act
16 in connection with the interrogation and
17 investigation of police officers and disciplinary
18 proceedings against police officers in the
19 ______________________ of _________________?
20 (b) Vote.--If a majority of the electors voting on the
21 question vote "yes," then the provisions of this act shall apply
22 within the municipality in which the referendum is conducted,
23 but if a majority of the electors voting on any such question
24 vote "no," then the provisions of this act shall not apply
25 within the municipality in which the referendum is conducted.
26 (c) Voting proceedings.--Proceedings under this section
27 shall be in accordance with the provisions of the act of June 3,
28 1937 (P.L.1333, No.320), known as the Pennsylvania Election
29 Code.
30 (d) Withdrawal of approval.--The referendum procedure
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1 contained in this section shall also be available to withdraw
2 the approval of the electors for the application of the
3 provisions of this act, which was granted through a prior
4 referendum.
5 (e) Application to investigations and proceedings initiated
6 prior to revocation.--Any investigation and disciplinary
7 proceeding commenced prior to the date of any revocation of the
8 application of this act to a municipality shall continue to be
9 governed by the provisions of this act.
10 (f) Inapplicability to cities of first class.--This section
11 shall not apply to a city of the first class.
12 Section 16. Lack of jurisdiction by civil service commissions
13 and other entities not provided for in act.
14 The procedure for determining any decision on whether to take
15 an adverse employment action against a police officer shall be
16 governed by this act. No civil service commission or other
17 administrative body or nonjudicial entity, except for the public
18 agency, a hearing committee or the arbitration alternative
19 provided for in this act shall possess a jurisdiction with
20 respect to any such adverse employment action.
21 Section 17. Repeals.
22 (a) Specific.--The following acts and parts of acts are
23 repealed insofar as they are inconsistent with this act:
24 Act of April 21, 1949 (P.L.665, No.155), known as the
25 First Class City Home Rule Act.
26 42 Pa.C.S. Ch. 85 Subch. C.
27 (b) General.--All other acts and parts of acts are repealed
28 insofar as they are inconsistent with this act.
29 Section 18. Applicability.
30 This act shall apply to all of the following:
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1 (1) A city of the first class.
2 (2) A municipality which elects to be governed by this
3 act under section 15.
4 Section 19. Effective date.
5 This act shall take effect in 60 days.
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