S2963, An Act relative to justice, equity and accountability in law enforcement in the Commonwealth, the conference committee report on policing reform, establishes the Peace Officer Standards and Training Commission, a new, entirely independent state agency with significant authority and powers of oversight over law enforcement officers and agencies in the Commonwealth. The details of its formation and functions are articulated in a new Chapter 6E of the General Laws. A full section-by-section summary of this new Chapter is available here, which also details the new use of force standards established in the Chapter.
POWERS OF THE COMMISSION
The new Chapter 6E created by this legislation identifies the powers of the Commission as including but not being limited to those enumerated in the new section 3: among others, establishing minimum law enforcement officer certification standards; certifying law enforcement officers; limiting, suspending, or revoking an officer’s certification; receiving complaints from any source; conducting investigations; certifying law enforcement agencies (and suspending or revoking their certifications); and issuing specialized certifications to school resource officers (which shall be a requirement for appointment as a school resource officer).
The POST Commission will consist of nine total members:
1) three appointed by the Governor: one police chief, one retired justice of the superior court, and one social worker appointed from a list submitted by National Association of Social Workers;
2) three appointed by the Attorney General: one law enforcement officer below the rank of sergeant, one law enforcement officer appointed from a list submitted by Massachusetts Association of Minority Law Enforcement Officers, Inc., and one attorney licensed to practice law in the Commonwealth from a list submitted by the Civil Rights and Social Justice Section Council of the Massachusetts Bar Association; and
3) three appointed jointly by the Governor and the Attorney General, including one person from a list submitted by the Massachusetts Commission Against Discrimination.
The Governor shall name the Chair of the Commission.
Other than the three law enforcement officers explicitly named above, all remaining Commissioners shall be civilians. The Commissioners shall include people of color and women, at least in such proportion as they exist in the Commonwealth’s population, and shall represent the geographic diversity of the Commonwealth. No more than 7 shall be from the same political party.
Seven Commissioners shall represent a quorum and a majority vote of those present and voting is required for the Commission to take action on a matter before it.
The conference committee report establishes the Division of Police Training and Certification “to establish uniform policies and standards for the training and certification of all law enforcement officers including a basic recruit training curriculum and an in-service training curriculum for law enforcement officers.” The Division shall fall under the management and control of a Committee on Police Training and Certification (CPTC), which falls within the POST Commission’s jurisdiction and will replace the existing Municipal Police Training Committee. The legislation requires the head of the Division to be appointed by the Committee on Police Training and Certification.
The CPTC, the voting membership of which shall consist entirely of law enforcement professionals, will be required “to set policies and standards for the training all law enforcement officers,” including statutory training mandates. The CPTC, subject to approval of the Commission, shall establish minimum certification standards for all officers. (The legislation makes certification valid for 3 years from the date of issuance, and agencies are prohibited from employing a law enforcement officer unless they are certified.)
The CPTC will also be responsible for establishing minimum certification standards for all law enforcement agencies, as well as for approving (with the authority to revoke the approval of) police training schools, academies, and programs. The CPTC will be required to establish an annual course for officers on mental wellness and suicide prevention.
DIVISION OF POLICE STANDARDS
The conference committee report establishes the Division of Police Standards to investigate officer misconduct and offer disciplinary recommendations to the POST Commission. It requires the head of a law enforcement agency to report to the Division instances of officer misconduct within two business days of receiving the complaint and requires the agency to report the outcome of the investigation to the Division. It also requires the agency, upon final disposition of the complaint, to file a report with the Division. It further requires the agency, if the officer resigns during the process, to offer a recommendation for discipline by the POST Commission.
PROCEEDINGS AND CONSEQUENCES FLOWING FROM INVESTIGATIONS AND THEIR FINDINGS
The conference committee report establishes standards and due process for launching preliminary inquiries into officer misconduct, as well as for issuing suspensions and revocations of certifications.
- Preliminary Inquiries
The Division of Police Standards shall initiate a preliminary inquiry into the conduct of an officer upon the receipt of any credible evidence the Commission deems sufficient that the officer: 1) was involved in an officer-involved injury or death; 2) committed a felony or misdemeanor; 3) violated use of force rules articulated in Section 14; 4) failed to fulfill the officer’s duty to intervene or other rules set forward in Section 15; or 5) the Commission receives a recommendation for disciplinary action by the Commission by the head of the officer’s appointing agency.
The Division of Police Standards may initiate a preliminary inquiry into an officer’s conduct based upon receipt of any credible evidence the Commission deems sufficient that the officer may have engaged in prohibited conduct.
Within 30 days of the commencement of a preliminary inquiry, the following individuals shall be notified of the preliminary inquiry: the officer subject to the preliminary inquiry, the head of the officer’s collective bargaining unit, and the head of the officer’s appointing agency.
The Commission shall immediately suspend the certification of an officer:
a) who is arrested, charged, or indicted for a felony; or
b) who, by a preponderance of the evidence, the Commission has concluded, has engaged in conduct that could constitute a felony; the Commission must also vote to initiate an adjudicatory proceeding of such conduct.
The Commission may suspend the certification of an officer:
a) who is arrested, charged, or indicted for a misdemeanor, if following a preliminary inquiry the Commission determines by a preponderance of the evidence the crime affects the officer’s fitness to serve; or
b) for whom a suspension is in the best interest of the health, safety, as determined by a preponderance of the evidence by the Commission and pending a preliminary inquiry.
Such non-administrative suspensions, as outlined above, continue until issuance of the Commission’s final decision or until the Commission revokes the suspension.
The Commission shall administratively suspend the certification of an officer:
1) who fails to meet in-service training requirements of the Commission within 90 days of the deadline, subject to exemptions the Commission may promulgate; or
2) who fails to report information to the Commission required pursuant to Section 8.
Such administrative suspensions, as outlined above, continue until the officer has completed the in-service training requirements or completed their report.
An officer whose certification is suspended is entitled to a hearing before the Commission within 15 days, and the officer’s terms of employment remain subject to any applicable collective bargaining agreement and to Chapter 31 of the General Laws, which governs civil service.
The Commission shall revoke the certification of an officer after a hearing if the Commission finds any of a list of statutory predicates by clear and convincing evidence. These predicates include, but are not limited to, the officer having been convicted of a felony; the certification having been obtained through fraud; the officer having filed a false police report; the officer having violated the new use of force standards; and the officer having use excessive force resulting in bodily injury or death; or the officer being not fit for duty and a danger to the public.
The Commission may suspend or revoke the certification of an officer after a hearing if the Commission finds any of a list of statutory predicates by clear and convincing evidence. These predicates include, but are not limited to, the officer having been convicted of a misdemeanor; the officer having been biased in their conduct on the basis of race, ethnicity, sex, gender identity, sexual orientation, religion, mental or physical disability, immigration status or socioeconomic or professional level; and the officer having been terminated by their appointing agency foo disciplinary reasons, with any appeal complete.
The Commission may reinstate such a suspended certification if the Commission finds that all conditions of the suspension were met once the suspension expires.
The Commission may order retraining for an officer after a hearing if the Commission finds substantial evidence the officer did any of a list of statutory predicates. These predicates include, but are not limited to, the officer having used excessive force; the officer having a pattern of unprofessional police conduct; and the officer having “failed to respond to an incident according to established procedure.”
With respect to timing of revocation and suspension hearings pursuant to Section 10, the Commission must wait to institute such a hearing until the officer’s appointing agency has issued its final disposition OR 1 year has elapsed since the incident was first reported to the Commission, whichever is sooner. Further, should the officer notify the Commission that the officer would prefer to suspend the hearing pending an appeal or arbitration of the appointing agency’s final disposition, the Commission shall suspend the hearing for not more than 1 year from the officer’s request. Lastly, should the officer notify the Commission that the officer would prefer to suspend the hearing until criminal charges are resolved, the Commission shall suspend the hearing but shall suspend the officer’s certification in the meantime. These timing considerations are irrelevant to suspension hearings conducted pursuant to Section 9.
Commission decisions relative to preliminary inquiries or suspension or revocation hearings are appealable pursuant to Chapter 30A, the State Administrative Procedure Act. A Commission’s adverse action against a certification is not, however, appealable to the Civil Service Commission, nor is an employment action taken by an appointing authority in response to a revocation by the POST Commission.
COMMISSION DATABASES: WHAT IS PUBLIC?
The CPTC, in consultation with the Division of Police Standards, will be required to maintain a database containing records for each certified law enforcement officer, including but not limited to: certification, training, discipline, and arrest. The Commission will be required to promulgate regulations regarding a public-facing and searchable database of officer records, and in so doing shall consider the health and safety of the officers.
The Division of Police Standards will be required to maintain a database of complaints, which it shall actively monitor to identify patterns of unprofessional police conduct; upon such identification, the Division may recommend the evidence for review in a preliminary inquiry. This evidence should remain confidential, as “all proceedings and records relating to a preliminary inquiry or initial staff review used to determine whether to initiate an inquiry shall be confidential, except that the executive director may turn over to the attorney general, the United States Attorney or a district attorney of competent jurisdiction evidence which may be used in a criminal proceeding.”
The POST Commission will be required to maintain a publicly available database of orders issued on its website of its orders issued under Section 10 (which allows the Commission to revoke or suspend an officer’s certification after a hearing based clear and convincing evidence), “including, but not limited to: (i) the names of all decertified officers, the date of decertification, the officer’s last appointing agency and the reason for decertification; (ii) the names of all officers who have been suspended, the beginning and end dates of suspension, the officer’s appointing agency and the reason for suspension; and (iii) the names of all officers ordered to undergo retraining, the date of the retraining order, the date the retraining was completed, the type of retraining ordered, the officer’s appointing agency and the reason for the retraining order.”
The legislation requires annual reporting to the legislature by the POST Commission to include: officer-involved injuries or death; policy recommendations related to such injuries or deaths; decertification statistics; suspension statistics; retraining order statistics; and all injuries or deaths of police officers.