2023 -- H 5567

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LC001947

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2023

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A N   A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT -- LAW ENFORCEMENT

OFFICERS' BILL OF RIGHTS

     Introduced By: Representatives Stewart, Sanchez, Morales, Potter, Henries, Cruz, Ajello,
Kislak, and Alzate

     Date Introduced: February 15, 2023

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Chapter 42-28.6 of the General Laws entitled "Law Enforcement Officers’

Bill of Rights" is hereby repealed in its entirety.

CHAPTER 42-28.6

Law Enforcement Officers’ Bill of Rights

     42-28.6-1. Definitions — Payment of legal fees.

     As used in this chapter, the following words have the meanings indicated:

     (1) “Law enforcement officer” means any permanently employed city or town police

officer, state police officer, permanent law enforcement officer of the department of environmental

management, or those employees of the airport corporation of Rhode Island who have been granted

the authority to arrest by the director of said corporation. However this shall not include the chief

of police and/or the highest ranking sworn officer of any of the departments including the director

and deputy director of the airport corporation of Rhode Island.

     (2)(i) “Hearing committee” means a committee which is authorized to hold a hearing on a

complaint against a law enforcement officer and which consists of three (3) active or retired law

enforcement officers from within the state of Rhode Island, other than chiefs of police, who have

had no part in the investigation or interrogation of the law enforcement officer. The committee shall

be composed of three (3) members; one member selected by the chief or the highest ranking officer

of the law enforcement agency, one member selected by the aggrieved law enforcement officer and

the third member shall be selected by the other two (2) members. In the event that the other two (2)

members are unable to agree within five (5) days, then either member will make application to the

presiding justice of the superior court and the presiding justice shall appoint the third member who

shall be an active law enforcement officer. Upon written application by a majority of the hearing

committee, the presiding justice, in his or her discretion, may also appoint legal counsel to assist

the hearing committee.

     (ii) The law enforcement agency and the law enforcement officer under investigation shall

each be responsible to pay fifty percent (50%) of the legal fee of the appointed legal counsel for

the hearing committee; provided, however, that on motion made by either party, the presiding

justice shall have the authority to make a different disposition as to what each party is required to

pay toward the appointed legal counsel’s legal fee.

     (3) “Hearing” means any meeting in the course of an investigatory proceeding, other than

an interrogation at which no testimony is taken under oath, conducted by a hearing committee for

the purpose of taking or adducing testimony or receiving evidence.

     42-28.6-2. Conduct of investigation.

     Whenever a law enforcement officer is under investigation or subjected to interrogation by

a law enforcement agency, for a non-criminal matter which could lead to disciplinary action,

demotion, or dismissal, the investigation or interrogation shall be conducted under the following

conditions:

     (1) The interrogation shall be conducted at a reasonable hour, preferably at a time when

the law enforcement officer is on duty.

     (2) The interrogation shall take place at an office within the department previously

designated for that purpose by the chief of police.

     (3) The law enforcement officer under interrogation shall be informed of the name, rank,

and command of the officer in charge of the investigation, the interrogating officer, and all persons

present during the interrogation. All questions directed to the officer under interrogation shall be

asked by and through one interrogator.

     (4) No complaint against a law enforcement officer shall be brought before a hearing

committee unless the complaint be duly sworn to before an official authorized to administer oaths.

     (5) The law enforcement officer under investigation shall, prior to any interrogating, be

informed in writing of the nature of the complaint and of the names of all complainants.

     (6) Interrogating sessions shall be for reasonable periods and shall be timed to allow for

such personal necessities and rest periods as are reasonably necessary.

     (7) Any law enforcement officer under interrogation shall not be threatened with transfer,

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dismissal, or disciplinary action.

     (8) If any law enforcement officer under interrogation is under arrest, or is likely to be

placed under arrest as a result of the interrogation, he or she shall be completely informed of all his

or her rights prior to the commencement of the interrogation.

     (9) At the request of any law enforcement officer under interrogation, he or she shall have

the right to be represented by counsel of his or her choice who shall be present at all times during

the interrogation. The interrogation shall be suspended for a reasonable time until representation

can be obtained.

     (10) No statute shall abridge nor shall any law enforcement agency adopt any regulation

which prohibits the right of a law enforcement officer to bring suit arising out of his or her duties

as a law enforcement officer.

     (11) No law enforcement agency shall insert any adverse material into any file of the officer

unless the officer has an opportunity to review and receive a copy of the material in writing, unless

the officer waives these rights in writing.

     (12) No public statement shall be made prior to a decision being rendered by the hearing

committee and no public statement shall be made if the officer is found innocent unless the officer

requests a public statement; provided, however, that this subdivision shall not apply if the officer

makes a public statement. The foregoing shall not preclude a law enforcement agency, in a criminal

matter, from releasing information pertaining to criminal charges which have been filed against a

law enforcement officer, the officer’s status of employment and the identity of any administrative

charges brought against said officer as a result of said criminal charges.

     (13) No law enforcement officer shall be compelled to speak or testify before, or be

questioned by, any non-governmental agency.

     42-28.6-3. Disclosure of personal information.

     No law enforcement officer shall be required or requested to disclose any item of his or her

property, income, assets, source of income, debts, or personal or domestic expenditures (including

those of any member of his or her family or household) unless that information is necessary in

investigating a possible conflict of interest with respect to the performance of his or her official

duties, or unless the disclosure is required by law.

     42-28.6-4. Right to hearing — Notice request for hearing — Selection of hearing

committee.

     (a) If the investigation or interrogation of a law enforcement officer results in the

recommendation of some action, such as demotion, transfer, dismissal, loss of pay, reassignment,

or similar action which would be considered a punitive measure, then, before taking such action,

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the law enforcement agency shall give notice to the law enforcement officer that he or she is entitled

to a hearing on the issues by a hearing committee. The law enforcement officer may be relieved of

duty subject to § 42-28.6-13 of this chapter, and shall receive all ordinary pay and benefits as he

or she would have if he or she were not charged.

     Disciplinary action for violation(s) of departmental rules and/or regulations shall not be

instituted against a law enforcement officer under this chapter more than three (3) years after such

incident, except where such incident involves a potential criminal offense, in which case

disciplinary action under this chapter may be instituted at any time within the statutory period of

limitations for such offense.

     (b) Notice under this section shall be in writing and shall inform the law enforcement

officer of the following:

     (i) The nature of the charge(s) against him or her and, if known, the date(s) of the alleged

offense(s);

     (ii) The recommended penalty;

     (iii) The fact that he or she has five (5) days from receipt of the notice within which to

submit a written request for a hearing; and

     (iv) The name and address of the officer to whom a written request for a hearing (and other

related written communications) should be addressed.

     (c) The law enforcement officer shall, within five (5) days of his or her receipt of notice

given pursuant to subsection (b) herein, file a written request for hearing with the officer designated

in accordance with subdivision (b)(iv). Failure to file a written request for a hearing shall constitute

a waiver of his or her right to a hearing under this chapter; provided, however, that the presiding

justice of the superior court, upon petition and for good cause shown, may permit the filing of an

untimely request for hearing.

     (d) The law enforcement officer shall provide the charging law enforcement agency with

the name of one active or retired law enforcement officer to serve on the hearing committee, within

five (5) days of the filing of his or her request for a hearing. Failure by the law enforcement officer

to file his or her filing committee selection within the time period shall constitute a waiver of his

or her right to a hearing under this chapter; provided, however, that the presiding justice of the

superior court, upon petition and for good cause shown, may permit the filing of an untimely

hearing committee selection by the officer. The charging law enforcement agency may impose the

recommended penalty during the pendency of any such petition.

     (e) The charging law enforcement agency shall provide the law enforcement officer with

the name of one active or retired law enforcement officer to serve on the hearing committee, within

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five (5) days of its receipt of the officer’s request for a hearing. Failure by the charging law

enforcement agency to file its hearing committee selection within that time period shall constitute

a dismissal of all charges against the law enforcement officer, with prejudice; provided, however,

that the presiding justice of the superior court, upon petition and for good cause shown, and permit

the filing of an untimely hearing committee selection by the agency. Except as expressly provided

in § 42-28.6-13 of this chapter, no disciplinary action shall be taken against the officer by virtue

of the stated charges during the pendency of any such petition.

     (f) Within five (5) days of the charging law enforcement agency’s selection of a hearing

committee member, the hearing committee members selected by the officer and by the agency

shall:

     (i) Jointly select a third hearing committee member, who shall serve as chairperson of the

hearing committee;

     (ii) Petition the presiding justice of the superior court to select a third hearing committee

member, who shall be an active law enforcement officer, and who shall serve as chairperson of the

hearing committee; or

     (iii) Agree to an extension of time, not to exceed thirty (30) days, for the selection of a third

hearing committee member.

     (g) Law enforcement officers selected to serve on a hearing committee under this chapter

shall be relieved of duty for each day of actual hearing and shall be compensated by their respective

agencies at their ordinary daily rate of pay for each day actually spent in the conduct of the hearing

hereunder.

     (h) Two (2) lists of active police officers available to serve as chairpersons of hearing

committees under this chapter shall be provided annually to the presiding justice of the superior

court. One list shall be provided by the Rhode Island Police Chiefs’ Association; the other shall be

appointed, jointly, by the Fraternal Order of Police and the International Brotherhood of Police

Officers. In selecting officers to serve as chairpersons of hearing committees under this chapter,

the presiding justice shall alternate between the two (2) lists so provided.

     (i) Whenever a law enforcement officer faces disciplinary action as a result of criminal

charges, the provisions of subsections (c), (d), (e) and (f) shall be suspended pending the

adjudication of said criminal charges.

     42-28.6-5. Conduct of hearing.

     (a) The hearing shall be conducted by the hearing committee selected in accordance with

§ 42-28.6-4 of this chapter. Both the law enforcement agency and the law enforcement officer shall

be given ample opportunity to present evidence and argument with respect to the issues involved.

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Both may be represented by counsel.

     (b) The hearing shall be convened at the call of the chair; shall commence within thirty

(30) days after the selection of a chairperson of the hearing committee; and shall be completed

within sixty (60) days of the commencement of the hearing. The hearing committee shall render a

written decision within thirty (30) days after the conclusion of the hearing. The time limits

established in this subsection may be extended by the presiding justice of the superior court for

good cause shown.

     (c) Not less than ten (10) days prior to the hearing date, the charging law enforcement

agency shall provide to the law enforcement officer:

     (i) A list of all witnesses, known to the agency at that time, to be called by the agency to

testify at the hearing;

     (ii) Copies of all written and/or recorded statements by such witnesses in the possession of

the agency; and

     (iii) A list of all documents and other items to be offered as evidence at the hearing.

     (d) Not less than five (5) days prior to the hearing date, the law enforcement officer shall

provide to the charging law enforcement agency a list of all witnesses, known to the officer at that

time, to be called by the officer to testify at the hearing.

     (e) Failure by either party to comply with the provisions of subsections (c) and (d) of this

section shall result in the exclusion from the record of the hearing of testimony and/or evidence not

timely disclosed in accordance with those subsections.

     42-28.6-6. Evidence at hearing — Hearing record.

     (a) Evidence which possesses probative value commonly accepted by reasonable and

prudent persons in the conduct of their affairs shall be admissible and shall be given probative

effect. The hearing committee 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 part

of the record.

     (b) No statements, documents and/or other evidence and no copies of any statements,

documents and/or other evidence shall be presented to the hearing committee prior to the hearing.

     (c) All proceedings before the hearing committee shall be recorded by stenographic record,

the expense of which shall be borne by the charging law enforcement agency. A copy of the record

shall be provided to the law enforcement officer or his or her attorney or representative of record

upon request.

     42-28.6-7. Subpoena — Oath — Production of documents.

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     With respect to the subject of any investigation or hearing conducted pursuant to this

section, the hearing committee may subpoena witnesses and administer oaths or affirmations and

examine any individual under oath, and may require and compel the production of records, books,

papers, contracts, and other documents.

     42-28.6-8. Witness fees.

     Witness fees and mileage, if claimed, shall be allowed the same as for testimony in the

superior court. Witness fees, mileage, and the actual expenses necessarily incurred in securing

attendance of witnesses and their testimony shall be itemized, and shall be paid by the law

enforcement agency if the officer is ultimately found innocent.

     42-28.6-9. Cross-examination and rebuttal.

     Every party has the right of cross-examination of the witnesses who testify, and may submit

rebuttal evidence.

     42-28.6-10. Judicial notice.

     The hearing committee conducting the hearing may take notice of judicially cognizable

facts and, in addition, may take notice of general, technical, or scientific facts within its specialized

knowledge.

     42-28.6-11. Decisions of hearing committee.

     (a) The hearing committee shall be empowered to sustain, modify in whole or in part, or

reverse the complaint or charges of the investigating authority, as provided in § 42-28.6-4.

     (b) Any decision, order, or action taken as a result of 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. Copies of the decision or order and accompanying findings and conclusions

shall be delivered or mailed promptly to the law enforcement officer or to his or her attorney or

representative of record and to the law enforcement agency or to its attorney or representative of

record.

     (c) In any proceeding under this chapter, it shall be the burden of the charging law

enforcement agency to prove, by a fair preponderance of the evidence, that the law enforcement

officer is guilty of the offense(s) or violation(s) of which he or she is accused.

     42-28.6-12. Appeals.

     (a) Appeals from all decisions rendered by the hearing committee shall be to the superior

court in accordance with §§ 42-35-15 and 42-35-15.1. For purposes of this section, the hearing

committee shall be deemed an administrative agency and its final decision shall be deemed a final

order in a contested case within the meaning of §§ 42-35-15 and 42-35-15.1.

     (b) Within thirty (30) days after the service of the complaint in accordance with § 42-35-

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15, or within further time allowed by the court, the hearing committee shall transmit to the

reviewing court the original or a certified copy of the entire record of the proceeding under review.

By stipulation of all parties to the review proceedings, the record may be shortened. Any party

unreasonably refusing to stipulate to limit the record may be taxed by the court for the additional

costs. The court may require or permit subsequent corrections or additions to the record.

     42-28.6-13. Suspensions.

     (a) The provisions of this chapter are not intended to prohibit suspensions by the chief or

the highest ranking officer of the law enforcement agency.

     (b) Summary punishment of two (2) days’ suspension without pay may be imposed for

minor violations of departmental rules and regulations. Appeals of suspension under this subsection

shall be subject to the grievance provisions of any applicable collective bargaining agreement.

     (c) Suspension may be imposed by the chief or the highest ranking sworn officer of the law

enforcement agency when the law enforcement officer is under investigation for a criminal felony

matter. Any suspension shall consist of the law enforcement officer being relieved of duty, and he

or she shall receive all ordinary pay and benefits as he or she would receive if he or she were not

suspended. Suspension under this subsection shall not exceed one hundred eighty (180) days.

     (d) Suspension may be imposed by the chief or highest ranking sworn officer of the law

enforcement agency when the law enforcement officer in under investigation for a misdemeanor

criminal matter. Any such suspension shall consist of the law enforcement officer being relieved

of duty, and he or she shall receive all ordinary pay and benefits as he or she would receive if he or

she were not suspended. Suspension under this subsection shall not exceed thirty (30) days;

provided, however, that if an officer is charged with a misdemeanor offense the chief or highest

ranking sworn officer of the law enforcement agency may continue said suspension with pay up to

a total of one hundred and eighty (180) days. If the disposition of the criminal matter does not take

place within one hundred eighty (180) days of the commencement of such suspension, the law

enforcement officer may be suspended without pay and benefits; provided, however, that the

officer’s entitlement to such medical insurance, dental insurance, disability insurance and life

insurance as is available to all other officers within the agency shall not be suspended. The law

enforcement officer may petition the presiding justice of the superior court for a stay of the

suspension without pay, and such stay shall be granted upon a showing that said delay in the

criminal disposition was outside the law enforcement officer’s control. In the event the law

enforcement officer is acquitted of any misdemeanor related thereto, the officer shall be forthwith

reinstated and reimbursed all salary and benefits that have not been paid during the suspension

period.

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     (e) Suspension may be imposed by the chief or highest ranking sworn officer of the law

enforcement agency when the law enforcement officer is under investigation for a noncriminal

matter. Any such suspension shall consist of the law enforcement officer being relieved of duty,

and he or she shall receive all ordinary pay and benefits as he or she would receive if he or she were

not suspended. Suspension under this subsection shall not exceed fifteen (15) days or any other

time frame established under the provisions of any applicable collective bargaining agreement.

     (f) Suspension may be imposed by the chief or highest ranking sworn officer of the law

enforcement agency upon receipt of notice or disciplinary action in accordance with § 42-28.6-4(b)

of this chapter in which termination or demotion is the recommended punishment. Any such

suspension shall consist of the law enforcement officer being relieved of duty, and he or she shall

receive all ordinary pay and benefits as he or she would receive if he or she were not so suspended.

     (g) Any law enforcement officer who is charged, indicted or informed against for a felony

or who is convicted of and incarcerated for a misdemeanor may be suspended without pay and

benefits at the discretion of the agency or chief or highest ranking sworn officers; provided,

however, that the officer’s entitlement to medical insurance, dental insurance, disability insurance

and life insurance as is available to all other officers within the agency shall not be suspended. In

the event that the law enforcement officer is acquitted of any felony related thereto, the officer shall

be reinstated and reimbursed forthwith for all salary and benefits that have not been paid during the

suspension period.

     (h) Any law enforcement officer who is convicted of a felony shall, pending the prosecution

of an appeal, be suspended without pay and benefits; provided, however, that the officer’s

entitlement to such medical insurance, dental insurance, disability insurance and life insurance as

is available to all other officers within the agency shall not be suspended. Whenever, upon appeal,

such conviction is reversed, the suspension under this subsection shall terminate and the law

enforcement officer shall forthwith be paid the salary and benefits that would have been paid to

him or her during that period of suspension.

     (i) Any law enforcement officer who pleads guilty or no contest to a felony charge or whose

conviction of a felony has, after or in the absence of a timely appeal, become final may be dismissed

by the law enforcement agency and, in the event of such dismissal, other provisions of this chapter

shall not apply.

     42-28.6-14. Retaliation for exercising rights.

     (a) No law enforcement officer shall be discharged, demoted, disciplined, or denied

promotion, transfer or reassignment, or otherwise discriminated against in regard to his or her

employment or be threatened with any such treatment, by reason of his or her exercise of or demand

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for rights granted in this subtitle, or by reason of the lawful exercise of his or her constitutional

rights.

     (b) Any law enforcement officer who is denied any right afforded by this subtitle may

apply, either individually or through his or her certified or recognized employee organization, to

the superior court where he or she resides or is regularly employed for any order directing the law

enforcement agency to show cause why the right should not be afforded.

     42-28.6-15. Exclusivity of remedy.

     The remedies contained herein shall be the sole and exclusive remedies for all law

enforcement officers subject to the provisions of this chapter.

     42-28.6-16. Immunity of hearing committee members.

     No member of a hearing committee constituted in accordance with the provisions of this

chapter shall be held civilly liable for any breach of his or her duties as such member, provided that

nothing herein shall eliminate or limit the liability of a qualified member:

     (1) For acts or omissions not in good faith or which involve intentional misconduct or a

knowing violation of law; or

     (2) For any transaction from which such member derived an improper personal benefit; or

     (3) For any malicious, willful or wanton act.

     42-28.6-17. Severability.

     If any provision of this chapter or other application thereof shall for any reason be judged

invalid such a judgment shall not affect, impair or invalidate the remainder of the law, but shall be

confined in its effect to the provisions or application directly involved in the controversy giving

rise to the judgment.

     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT -- LAW ENFORCEMENT

OFFICERS' BILL OF RIGHTS

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     This act would repeal the Law Enforcement Officers’ Bill of Rights, Chapter 42-28.6 of

the General Laws, in its entirety.

     This act would take effect upon passage.

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