35-8-7.1. Refusal to grant certificate; discipline of officer; grounds; restoration of certificate; emergency suspension of certification; inclusion on a Giglio list; notice of investigation; retention of records.

The council shall have authority to refuse to grant a certificate to an applicant or to discipline a council certified officer or exempt officer under this chapter or any antecedent law upon a determination by the council that the applicant, council certified officer, or exempt officer has:#

1. (1)

   Failed to demonstrate the qualifications or standards for a certificate provided in this chapter or in the rules and regulations of the council. It shall be incumbent upon the applicant to demonstrate to the satisfaction of the council that he or she meets all requirements for the issuance of a certificate;#

2. (2)

   Knowingly made misleading, deceptive, untrue, or fraudulent representations in the practice of being an officer or in any document connected therewith or practiced fraud or deceit or intentionally made any false statement in obtaining a certificate to practice as an officer;#

3. (3)

   Been convicted of a felony in the courts of this state or any other state, territory, country, or of the United States. As used in this paragraph, the term “conviction of a felony” shall include a conviction of an offense which if committed in this state would be deemed a felony under either state or federal law without regard to its designation elsewhere. As used in this paragraph, the term “conviction” shall include a finding or a verdict of guilt, a plea of guilty, or a plea of nolo contendere in a criminal proceeding, regardless of whether the adjudication of guilt or sentence is withheld or not entered thereon. However, the council may not deny a certificate to an applicant with a conviction if the adjudication of guilt or sentence is withheld or not entered thereon;#

4. (4)

   Committed a crime involving moral turpitude, without regard to conviction. The conviction of a crime involving moral turpitude shall be conclusive of the commission of such crime. As used in this paragraph, the term “conviction” shall have the meaning prescribed in paragraph (3) of this subsection;#

5. (5)

   Had his or her certificate or license to practice as an officer revoked, suspended, or annulled by any lawful certifying or licensing authority; had other disciplinary action taken against him or her by any lawful certifying or licensing authority; or was denied a certificate or license by any lawful certifying or licensing authority;#

6. (6)

   Engaged in any unprofessional, unethical, deceptive, or deleterious conduct or practice harmful to the public; such conduct or practice need not have resulted in actual injury to any person. As used in this paragraph, the term “unprofessional conduct” shall include any departure from, or failure to conform to, the minimal standards of acceptable and prevailing practice of an officer;#

7. (7)

   Violated or attempted to violate a law, rule, or regulation of this state, any other state, the council, the United States, or any other lawful authority without regard to whether the violation is criminally punishable, so long as such law, rule, or regulation relates to or in part regulates the practice of an officer;#

8. (8)

   Committed any act or omission which is indicative of bad moral character or untrustworthiness;#

9. (9)

   Been adjudged mentally incompetent by a court of competent jurisdiction, within or outside this state;#

10. (10)

    Become unable to perform as an officer with reasonable skill and safety to citizens by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition; or#

11. (11)

    Been suspended or discharged by the officer’s employing law enforcement unit for disciplinary reasons.#

1. (1)

   When the council finds that any person is unqualified to be granted a certificate or finds that any person should be disciplined pursuant to subsection (a) of this Code section, the council may take any one or more of the following actions:#

   1. (A)

      Refuse to grant a certificate to an applicant;#

   2. (B)

      Administer a public or private reprimand, provided that a private reprimand shall not be disclosed to any person except the officer;#

   3. (C)

      Suspend any certificate for a definite period;#

   4. (D)

      Limit or restrict any certificate;#

   5. (E)

      Revoke any certificate; or#

   6. (F)

      Condition the penalty, or withhold formal disposition, upon the officer’s completing such care, counseling, or treatment, as directed by the council.#

2. (2)

   In addition to and in conjunction with the foregoing actions, the council may make a finding adverse to the applicant or officer but withhold imposition of judgment and penalty or it may impose the judgment and penalty but suspend enforcement thereof and place the officer on probation, which may be vacated upon noncompliance with such reasonable terms as the council may impose.#

In its discretion, the council may restore and reissue a certificate issued under this chapter or any antecedent law to an officer and, as a condition thereof, may impose any disciplinary or corrective measure provided in this chapter.#

Upon arrest or indictment of an officer for any crime which is punishable as a felony, the executive director of the council shall order the emergency suspension of such officer’s certification upon the executive director’s determination that the suspension is in the best interest of the health, safety, or welfare of the public. The order of emergency suspension shall be made in writing and shall specify the basis for the executive director’s determination. Following the issuance of an emergency suspension order, proceedings of the council in the exercise of its authority to discipline any officer shall be promptly scheduled as provided for in Code Section 35-8-7.2. The emergency suspension order of the executive director shall continue in effect until issuance of the final decision of the council or such order is withdrawn by the executive director.#

1. (1)

   Upon initiating an investigation of an officer for possible disciplinary action or upon disciplining an officer pursuant to this Code section, the council shall notify the head of the law enforcement agency that employs such officer of the investigation or disciplinary action. In the case of an investigation, it shall be sufficient to identify the officer and state that a disciplinary investigation has been opened. Notice of the initiation of an investigation shall be sent by priority mail. If the investigation is completed without any further action, notice of the termination of such investigation shall also be provided to the head of the employing agency. In the case of disciplinary action, the notice shall identify the officer and state the nature of the disciplinary action taken. The notice of disposition shall be sent only after the action of the council is deemed final. Such notice shall be sent by priority mail.#

2. (2)

   In reviewing the inclusion of the name of an affected peace officer on a Giglio list pursuant to this subsection, the council shall consider:#

   1. (A)

      Any bias or injury against a specific defendant alleged by the prosecuting attorney to have occurred when the prosecuting attorney’s notice relates to a specific criminal prosecution;#

   2. (B)

      Allegations or instances of previous misleading, deceptive, untrue, or fraudulent statements made by the affected peace officer to the prosecuting attorney or while serving as a witness for the prosecuting attorney;#

   3. (C)

      Whether the affected peace officer has pleaded guilty or been convicted, by final judgment and when all appeals have been exhausted, of an offense punishable as false swearing within the meaning of Code Section 16-10-71 or an offense of perjury pursuant to Code Section 16-10-70; and#

   4. (D)

      Any allegations of acts or omissions which would otherwise subject the affected peace officer to discipline pursuant to subsection (a) of this Code section.#

3. (3)

   Upon completion of review pursuant to this subsection, the council shall notify the affected peace officer and the employing agency of the affected peace officer of its determination concerning the factual basis asserted by the prosecuting attorney. If the council determines from its review that discipline of the affected peace officer is warranted, notice sent pursuant to this paragraph shall include such information. If the council determines that discipline of the affected peace officer is not warranted, such matter shall be administratively dismissed, the affected peace officer’s public status shall not reflect the occurrence of such investigation, and notice of such action shall be delivered to the head of the employing agency, the affected peace officer, and the prosecuting attorney who placed the affected peace officer on a Giglio list. No peace officer shall be suspended, revoked, or otherwise sanctioned solely based upon the placement of his or her name on a Giglio list.#

Upon initiating an investigation of a peace officer for possible disciplinary action or upon disciplining a peace officer pursuant to this Code section, the council shall notify the head of the law enforcement agency that employs such peace officer of the investigation or disciplinary action. It shall be sufficient for such notice to identify the peace officer and state that a disciplinary investigation has been opened. If the investigation is completed without any further action, notice of the termination of such investigation shall also be provided to the head of the employing agency. In the case of disciplinary action, the notice shall identify the officer and state the nature of the disciplinary action taken. The notice of disposition shall be sent only after the action of the council is deemed final.#

If the certification of an a peace officer is suspended or revoked by either the executive director or council pursuant to this Code section, the council shall notify the head of the law enforcement agency that employs the peace officer; the district attorney of the judicial circuit in which such law enforcement agency is located; and the solicitor of the state court, if any, of the county in which such law enforcement agency is located. It shall be sufficient for this notice to identify the peace officer and state the length of time, if known, that the peace officer will not have powers of arrest.#

Any notice required by this Code section shall be sent by certified mail or certificate of mailing. As used in this subsection, the term “certificate of mailing” means a delivery method utilized by the United States Postal Service which provides evidence that an item has been sent and the date such item was accepted.#

Notwithstanding Article 5 of Chapter 18 of Title 50, records of an investigation of a peace officer by the council, including, but not limited to, records used to investigate complaints against a peace officer and polygraph case files containing official polygraph reports, shall be retained for 30 years following the date that such investigation is deemed concluded by the council and then such records may be destroyed; provided, however, that the council shall have the authority to destroy such records prior to such 30 years where such peace officer is deceased and no action upon the complaint was taken by the council beyond the council’s initial intake of such complaint.#