HB 246: Courts; office of sheriff and training of peace officers; revise qualification requirements

The House Committee on Public Safety and Homeland Security offers the following substitute to HB 246:

A BILL TO BE ENTITLED

AN ACT

To amend Code Section 15-16-1 and Chapter 8 of Title 35 of the Official Code of Georgia Annotated, relating to qualification requirements for sheriff and exemptions and employment and training of peace officers, respectively, so as to require a person qualifying as a candidate for sheriff be a peace officer not under revocation by the Georgia Peace Officer Standards and Training Council; to provide for penalties; to provide for submission of a form completed by the executive director of such council; to provide for an exception; to provide for attestation that any person qualifying for the office of sheriff who is not a certified peace officer but holds or has held certain other positions is capable of and will obtain such certification after obtaining the position; to provide for conforming changes; to provide for related matters; to provide for an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Code Section 15-16-1 of the Official Code of Georgia Annotated, relating to qualification requirements for sheriff and exemptions, is amended in subsection (c) by revising subparagraph (J) of paragraph (1) and paragraph (2) and by revising subsection (d) as follows:

"(J) At the time of qualifying as a candidate for the office of sheriff, Is a registered peace officer as provided in Code Section 35-8-10 or is a certified peace officer, as defined in Chapter 8 of Title 35, not under revocation by the Georgia Peace Officer Standards and Training Council and files with the officer before whom such person qualifies a form signed by the executive director of the Georgia Peace Officer Standards and Training Council, or his or her designee, that attests and certifies such; provided, however, that any person who is not a certified peace officer at the time of qualifying as a candidate for the office of sheriff but is a first responder, as such term is defined in Code Section 45-25-2, or former military officer, or is a former or current local, state, or federal law enforcement officer shall swear or affirm before the officer before whom such person has qualified to seek the office of sheriff that he or she is capable of and will complete the requirements for certification within six months after taking office. Any person such first responder, former military officer, or such former or current local, state, or federal law enforcement officer who is not a registered or certified peace officer at the time such person assumes the office of sheriff shall be required to complete satisfactorily the requirements for certification as a peace officer as provided in Chapter 8 of Title 35 within six months after such person takes office; provided, however, that an extension of the time to complete such requirements may be granted by the Georgia Peace Officer Standards and Training Council upon the presentation of evidence by a sheriff that he or she was unable to complete the basic training course and certification requirements due to illness, injury, military service, or other reasons deemed sufficient by such council. The Georgia Peace Officer Standards and Training Council shall make every effort to ensure that space is available for newly elected sheriffs who are not certified or registered peace officers to attend the course as soon as possible after such persons take office. Such council shall notify the appropriate judge of the probate court whenever a newly elected sheriff who is not certified fails to become certified as a peace officer pursuant to the requirements of this subparagraph.

(2) Each person offering his or her candidacy for the office of sheriff shall at the time such person qualifies, swear or affirm before the officer before whom such person has qualified to seek the office of sheriff that he or she meets all of the qualifications required by this subsection, except as otherwise provided in subparagraph (J) of paragraph (1) of this subsection, and at the time such person qualifies, that he or she has complied or will comply with the requirements of subparagraph (G) of paragraph (1) of this subsection no later than the close of business on the third business day following the close of such qualification period, and that, if applicable, he or she will comply with the requirements of subparagraph (J) of paragraph (1) of this subsection within six months of taking office. Any person who knowingly provides false information in executing the affidavit required by this paragraph commits the offense of false swearing within the meaning of and subject to the penalties prescribed in Code Section 16-10-71." "(d) Exemption. The requirements of subparagraphs (c)(1)(D), (c)(1)(E), through (c)(1)(F), (c)(1)(H), (c)(1)(I), and (c)(1)(J) of this Code section shall be deemed to have been met by any person who is currently serving as a duly qualified and elected sheriff of one of the several counties of this state."

SECTION 2.

Chapter 8 of Title 35 of the Official Code of Georgia Annotated, relating to employment and training of peace officers, is amended by revising Code Section 35-8-8, relating to requirements for appointment or certification of persons as peace officers and preemployment attendance at basic training course and "employment related information" defined, and by redesignating the current provisions of subsection (c) of said Code section as a new Code section to read as follows:

"35-8-8.

(a) Any person employed or certified as a peace officer shall:

(1) Be at least 18 years of age;

(2) Be a citizen of the United States;

(3) Have a high school diploma or its recognized equivalent;

(4) Not have been convicted by any state or by the federal government of any crime the punishment for which could have been imprisonment in the federal or state prison or institution nor have been convicted of sufficient misdemeanors to establish a pattern of disregard for the law, provided that, for the purposes of this paragraph, violations of traffic laws and other offenses involving the operation of motor vehicles when the applicant has received a pardon shall not be considered;

(5) Be fingerprinted for the purpose of conducting a fingerprint based search at the Georgia Bureau of Investigation and the Federal Bureau of Investigation to determine the existence of any criminal record;

(6) Possess good moral character as determined by investigation under procedure established by the council and fully cooperate during the course of such investigation;

(7) Be found, after examination by a licensed physician or surgeon, to be free from any physical, emotional, or mental conditions which might adversely affect his or her exercise of the powers or duties of a peace officer; and

(8) Successfully complete a job related academy entrance examination provided for and administered by the council in conformity with state and federal law. Such examination shall be administered prior to entrance to the basic course provided for in Code Sections 35-8-9 and 35-8-11. The council may change or modify such examination and shall establish the criteria for determining satisfactory performance on such examination. The provisions of this paragraph establish only the minimum requirements of academy entrance examinations for peace officer candidates in this state; each law enforcement unit is encouraged to provide such additional requirements and any preemployment examination as it deems necessary and appropriate. Any person with a degree from a postsecondary institution accredited by a regional accrediting agency recognized by the United States Department of Education shall be deemed to have met the requirements of this paragraph.

(b) Any person authorized to attend the basic training course prior to employment as a peace officer shall meet the requirements of subsection (a) of this Code section.

(c) The executive director of the council, or his or her designee, shall promulgate a form which shall be available to any person seeking election to the office of sheriff. Such form shall provide for the attestation and certification by the executive director that the person seeking such form is a certified peace officer who is not under revocation by the council.

35-8-8.1.

(c)(1)(a) As used in this Code section For purposes of this subsection, the term 'employment related information' means written information contained in a prior employer's records or personnel files that relates to an applicant's, candidate's, or peace officer's performance or behavior while employed by such prior employer, including performance evaluations, records of disciplinary actions, and eligibility for rehire. Such term shall not include information prohibited from disclosure by federal law or any document not in the possession of the employer at the time a request for such information is received.

(2)(b)(1) Where an investigation is conducted for the purpose of hiring, certifying, or continuing the certification of a peace officer, an employer shall disclose employment related information to the investigating law enforcement agency upon receiving a written request from such agency. Disclosure shall only be required under this subsection if the law enforcement agency's request is accompanied by a copy of a signed, notarized statement from the applicant, candidate, or peace officer releasing and holding harmless such employer from any and all liability for disclosing complete and accurate information to the law enforcement agency.

(3)(2) An employer may charge a reasonable fee to cover actual costs incurred in copying and furnishing documents pursuant to this subsection to a requesting law enforcement agency, including retrieving and redacting costs, provided such amount shall not exceed $25.00 or 25¢ per page, whichever is greater. No employer shall be required to prepare or create any document not already in the employer's possession at the time a request for employment related information is received. Any employment related information provided pursuant to this subsection that is not subject to public disclosure while in the possession of a prior employer shall continue to be privileged and protected from public disclosure as a record of the requesting law enforcement agency. (4)(3) No employer or law enforcement agency shall be subject to any civil liability for any cause of action by virtue of disclosing complete and accurate information to a law enforcement agency in good faith and without malice pursuant to this subsection. In any such cause of action, malice or bad faith shall only be demonstrated by clear and convincing evidence. Nothing contained in this subsection shall be construed so as to affect or limit rights or remedies provided by federal law.

(5)(4) Before taking final action on an application for employment based, in whole or in part, on any unfavorable employment related information received from a previous employer, a law enforcement agency shall inform the applicant, candidate, or peace officer that it has received such employment related information and that the applicant, candidate, or peace officer may inspect and respond in writing to such information. Upon the applicant's, candidate's, or peace officer's request, the law enforcement agency shall allow him or her to inspect the employment related information and to submit a written response to such information. The request for inspection shall be made within five business days from the date that the applicant, candidate, or peace officer is notified of the law enforcement agency's receipt of such employment related information. The inspection shall occur not later than ten business days after said notification. Any response to the employment related information shall be made by the applicant, candidate, or peace officer not later than three business days after his or her inspection. (6)(5) Nothing contained in this Code section subsection shall be construed so as to require any person to provide self-incriminating information or otherwise to compel any person to act in violation of his or her right guaranteed by the Fifth Amendment of the United States Constitution and Article I, Section I, Paragraph XVI of the Georgia Constitution. It shall not be a violation of this Code section subsection for a person to fail to provide requested information based on a claim that such information is self-incriminating provided that notice of such claim is served in lieu of the requested information. An action against such person to require disclosure on the grounds that the claim of self-incrimination is not substantiated may be brought in the superior court of the county of such party's residence or where such information is located."

SECTION 3.

This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 4.

All laws and parts of laws in conflict with this Act are repealed.