CHAPTER 12

FORMERLY

SENATE BILL NO. 96

AS AMENDED BY SENATE AMENDMENT NO. 3

AN ACT TO AMEND TITLE 11, DELAWARE CODE, RELATING TO THE RIGHTS OF LAW ENFORCEMENT OFFICERS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Title 11, Delaware Code, by adding thereto a new Chapter to be designated as Chapter 92 to read as follows:

"CHAPTER 92. POLICE BILL OF RIGHTS

§9200. Political Activity Rights of Officers Under Investigation

(a) A law enforcement officer within a jurisdiction in this State has the same rights to engage in political activity as are afforded to any other person. The right to engage in political activity shall not apply to any law enforcement officer while he or she is on duty or when he or she is acting in his or her official capacity or while in uniform.

(b) A 'law enforcement officer' for the purposes of the Chapter shall be defined as follows: A police officer who is a sworn member of the following law enforcement agencies:

1. Delaware State Police;

2. Wilmington City Police Department;

3. New Castle County Police Department;

4. The police department, bureau, or force of any incorporated city or town within this State;

5. The University of Delaware Police Division;

No law enforcement officer not a member of one of the above agencies shall be covered by this Act.

(c) Whenever a law enforcement officer is under investigation or is subjected to questioning for any reason which could lead to disciplinary action. demotion or dismissal, the investigation or questioning shall be conducted under the following conditions:

1. The questioning shall be conducted at a reasonable hours, preferably at a time when the officer is on duty unless the gravity of the investigation in the opinion of the investigator is of such degree that immediate questioning is required.

2. The questioning shall take place at the agency headquarters or at the office of the local troop or police unit in which the incident allegedly occurred as designated by the investigating officer or unless otherwise waived in writing by the officer being investigated.

3. The law enforcement officer under investigation shalt be Informed of the name, rank, and command of the officer in charge of the investigation. All questions directed to the officer shall be asked by and through no more than two investigators. No complaint against an officer shall be prosecuted under departmental rule or regulation unless the complaint is supported by substantial evidence after investigation by an authorized member of the department.

4. The law enforcement officer under investigation shall be informed in writing of the nature of the investigation prior to being questioned.

5 interview sessions shall be for reasonable periods of time. There shall be times provided for the officer to allow for such personal necessities and rest periods as are reasonably necessary

6. Except upon refusal to answer questions pursued in a valid investigation, no officer shall be threatened with transfer. dismissal or other disciplinary action.

7 A complete record, either written, taped or if taped, transcribed as soon as practicable, shalt be kept of all interviews held in connection with the administrative it.vestigation upon notification that substantial evidence exists for seeking an administrative sanction of the law enforcement officer. A copy of the record shall be provided to the officer or his or her counsel at his or her expense upon request.

8. If the law enforcement officer under interrogation is under arrest or may reasonably be placed under arrest as a result of the investigation, he or she shall be informed of his or her rights. Including the reasonable possibility of his or her arrest prior to the commencement of the interrogation.

9. At the request of any officer under questioning he or she shall have the right to be represented by counsel or other representative of his or her choice, who shall be present at all times during the questioning unless waived in writing by the Investigated officer. The questioning shall be suspended for a period of time if the officer requests representation until such time as the officer can obtain the representative requested if reasonably available.

W. An officer who is charged with violating any department rules or regulations or his representative will be provided access to transcripts, records, written statements, written reports analyses and video tapes pertinent to the case if they are exculpatory. Intended to support any disciplinary action or are to be introduced in the departmental hearing on the charges involved. Upon demand by the officer or counsel, they shall be produced within forty-eight (48) hours of the written notification of the charges.

11. At the conclusion of the administrative investigation, the investigator shall Inform in writing the office of the investigative findings and any recommendation for further action.

§9201. Prohibition of Adverse Material in Officer's File

No law enforcement agency shall insert any adverse material into the file of any officer except the file of the internal investigation or the intelligence division unless the officer has had an opportunity to review, sign, receive a copy of and comment in writing on the adverse material.

§9202. Disclosure of Personal Assets

No officer shall be required or requested to disclose any item of his or her personal property. income, assets, sources of income, debts, personal or domestic expenditures (including those of any member of his or her household), unless such information is necessary in investigating a violation of any Federal. State. or local ordinance with respect to the performance of official duties or unless such disclosure is required by State or Federal law.

§9203. Hearing Required on Suspension

In the event any officer is:

(a) Suspended for any reason;

(b) Charged with conduct alleged to violate the rules or regulations or general orders of the department that employs him or her;

(c) Charged with a breach of discipline of any kind which could lead to any form of disciplinary action excluding reprimands which may become a part of the officer's personal permanent record shall be entitled to a hearing under the guidelines of this Act or under any contracted grievance procedure between the officers bargaining unit and his or her department.

§9204. Time of Hearing

In the event an officer is entitled to a hearing, a hearing shall be scheduled within a reasonable period of time from the alleged incident, but in no event more than thirty (30) days following the conclusion of the internal investigation, unless waived in writing by the charged officer. The officer shall be given written notice of the time and place of the hearing and the issues involved. including a specification of the actual facts that the officer is charged with having committed; a statement of the rule, regulation, or order that those facts are alleged to violate; and a copy of the rule. regulation or order. The charge against the law enforcement officer shall advise him or her of the alleged facts and that the violation of the rule constituted a basis for discipline, and shall specify the range of applicable penalties that could be imposed.

§9205. Impartial Board of Officer; Evidence of rrobative Value

(a) An official record including testimony and exhibits shall be kept of the hearing.

(b) The hearing shall he conducted within the department by an impartial board of officers. The prosecuting party and the officer and/or his or her representative shall be given an opportunity to present evidence and argument with respect to the issues involved. Both the department and the officer may be represented by legal counsel. In the event an impartial board cannot be convened. then a board of three officers or more shall be convened under the auspices of the Delaware Criminal Justice Commission.

(c) Evidence which possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs shall be admissible In evidence and given probative effect. The Tribunal conducting the hearing shall give effect to the rules of privilege recognized by law and may exclude incompetent, irrelevant. immaterial and unduly repetitious evidence. All records and documents which any party desires to use shall be offered and made a part of the record. Documentary evidence may be received in the form of copies of excerpts or by incorporation by reference.

(d) Every party shall have the right of cross examination of witnesses who testify and may submit rebuttal evidence.

(e) The Tribunal may take notice of judicially cognizable facts and in addition may take notice of general, technical, or scientific facts within its specialized knowledge. Parties shall be notified beforehand of the materials so noticed by the trial board. No law enforcement officer may be adjudged guilty of any offense unless the hearing Tribunal is satisfied that guilt has been established by substantial evidence.

§9206. Admission of Evidence Against Officer's Rights

No evidence may be obtained, received or admitted into evidence in any proceeding of any disciplinary action which violates any of the rights established by the United States or Delaware Constitution or by this Act. The Tribunal may not enter any judgment. or sustain any disciplinary action based on any evidence obtained in violation of the officer's rights. as contained in this Act.

§9207. Decision Required inWriting_and Mailed to Officer

Any decision, order or action taken following the hearing shall be in writing and shall be accompanied by findings of fact. The findings shall consist of a concise statement upon each issue in the case. A copy of the decision or order accompanying findings and conclusions along with the written action and right of a peal, if any, shall be delivered or mailed promptly to the law enforcement officer or to his/her attorney or representative of record.

§9208. Extra Work as Punishment Prohibited

No law enforcement officer shall be compelled to work extra duty without compensation as a penalty for a disciplinary infraction. No suspension for any period of time provided in departmental rules and regulations shall effect the law enforcement officer's eligibility for pension, hospitalization, medical, and life insurance coverage or other benefits specifically protected under his or her contract of employment. Suspension may effect time of pension eligibility by contractual provision or other statutory provision. Nothing herein shall prevent any law enforcement agency from requiring reimbursement by a suspended law enforcement officer of his or her employee contribution to his or her benefits during his or her time of suspension.

§9209. Applicability of Act

The Act shall apply to all law enforcement disciplinary proceedings throughout the State of Delaware."

Approved May 13, 1985.