Peace Officer Certification Standards Have Changed, and Decertification is Likely on the Horizon

CATEGORY: Blog Posts
CLIENT TYPE: Public Safety
AUTHOR: Paul D. Knothe
PUBLICATION: California Public Agency Labor & Employment Blog
DATE: Feb 16, 2021

All California peace officers must meet initial standards set by the Commission on Police Officer Standards and Training (POST).  Those standards have recently been expanded, and more change may be coming.

AB 846, effective January 1, 2021, modified Government Code section 1031 to require that a peace officer be free of bias against race or ethnicity, gender, nationality, religion, disability, or sexual orientation, in addition to the preexisting requirement that he or she be free of any physical, emotional, or mental condition that might adversely affect the exercise of the powers of a peace officer.

Government Code section 1029 currently disqualifies any person who has been convicted of a felony, or any offense in another state that would have been a felony if committed in California, from becoming a peace officer.  Two pieces of proposed legislation, introduced by Assemblymember Jim Cooper and AB 60, introduced by Assemblymember Rudy Salas on December 7, 2020, would also disqualify individuals discharged by military tribunals for offenses that would constitute felonies in California.

AB 89, introduced on December 7, 2020, would increase the minimum qualifying age for a peace officer from 18 to 25 for individuals without a college degree.  Individuals between 18 and 24 years of age would only be eligible to serve as peace officers with a bachelor’s degree or advanced degree from an accredited college or university.

Federal legislation introduced on January 4, 2021 by Rep. Bobby Rush (D-Ill.), titled the Providing Officer Licensing to Increase Confidence for Everyone (POLICE) Act, would require the U.S. Attorney General to develop and issue standards for federal law enforcement officers, including licensing and continuing education.  This legislation would also provide incentives for states to implement a comparable system.

Meanwhile, California is currently one of only four states without a process for decertifying officers who do not meet standards during their careers, along with Hawaii, New Jersey, and Rhode Island.  That may soon change.

Last year, SB 731 died on the floor of the Assembly on November 30, 2020, the last day of the legislative session, without a vote.  That legislation would have established a statewide process to decertify officers who were terminated for specified acts of misconduct, including excessive force and dishonesty.  Further, in addition to other changes in law, SB 731 would have given authority to other government agencies to investigate allegations of misconduct where the accused officer resigned during his or her agency’s investigations.

However, this was not the end of the line for the movement toward a statewide decertification process.  On December 7, 2020, Senators Toni Atkins and Steven Bradford introduced Senate Bill 2, which would confirm the Legislature’s intent to “provide a decertification for peace officers.”  In addition, two separate bills, were introduced in the Assembly the same day that would create peace officer decertification procedures.  AB 17 and AB 60 both propose to disqualify any person who has had his or her POST certification revoked from future employment as a peace officer.

AB 17 and 60 would require that a peace officer have his or her certification suspended or revoked upon a determination that he or she has become ineligible pursuant to Government Code section 1029 or has been subject to a sustained termination for serious misconduct on or after January 1, 2022.

Both of these bills would require POST to create a Peace Officer Standards and Training Accountability Advisory Board to review reports of serious misconduct by peace officers and to make a recommendation to the Commission regarding what action, if any, should be taken against the subject peace officer’s certification.  Both statues would require the Commission to create a regulation defining “serious misconduct,” to include at least dishonesty, abuse of power, physical abuse or excessive force, sexual assault, and bias in the performance of an officer’s duties.  AB 60 would also require that participation in organized criminal operations be included in the definition of serious misconduct.

Under both statutes, if the recommendation of the Board was supported by clear and convincing evidence, action would be taken against the officer’s certification in formal proceedings consistent with the Administrative Procedures Act.

Individual agencies would be responsible for investigating the allegations of serious misconduct, but the Commission would have access to review the investigative file and administrative appeal record of the agency, for the purposes of disqualification.  The Commission would also conduct an investigation into any officer who was the subject of three allegations of serious misconduct in five years.

High-profile cases have thrust peace officer standards into the national spotlight.  It is unknown at this time whether these bills, either in their current form or containing modifications, will become law.  What appears certain is that the public, and therefore the Legislature, will remain interested in regulating peace officer standards.  Agencies should consult with legal counsel to stay on top of the changing landscape.

This article was originally published on LCW’s California Public Agency Labor & Employment Blog. You can read other articles and explore our blog by visiting calpublicagencylaboremploymentblog.com.