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HomeMy Public PortalAbout2021-02-26 eUpdate KP Law 2020 Police Reform IntroKP LAW eUpdate State Enacts Extensive Police Reform Legislation Establishes new "POST" Commission, Police Officer Certification System, and Law Enforcement Standards February 17, 2021 At the close of 2020, comprehensive police reform legislation for the Commonwealth was enacted, which establishes a Peace Officer Standards and Training ("POST") Commission and certification system. This legislation, entitled "An Act Relative to Justice, Equity and Accountability in Law Enforcement in the Commonwealth," (the "Act") was the product of various compromises between the Governor and the state Legislature. Some of the Act's provisions are currently in effect, while others will take effect over the course of 2021. Some of the significant changes that require specific attention and response by municipal police departments at this time include: • Internal Affairs Complaints and Investigations. Effective July 1, 2021, internal affairs: o Complaints must be reported to the POST Commission within two (2) business days of receipt; o Investigations must be completed within one (1) year of receipt of the complaint (or notice of a complaint being filed with the POST Commission), unless extended by the POST Commission for good cause; o Investigation reports must be transmitted to the POST Commission immediately upon completion of the investigation; and o Final disposition reports must be transmitted to the POST Commission immediately upon final disposition. The POST Commission will establish forms for the reporting of complaints, investigations, and dispositions. Separately, the POST Commission is authorized to independently conduct officer misconduct investigations and hearings regarding alleged misconduct, and those investigations and procedures are to begin July 1, 2021. • Disciplinary Records/Law Enforcement Misconduct Investigations. The Act establishes requirements for statewide law enforcement databases. At this time, it is not clear what information will be made publicly available, although it appears that some degree of police officer disciplinary complaints/records will be publicly accessible. By September 30, 2021, departments must provide the POST Commission with a complete disciplinary history for each current police officer the department employs, which must include all complaints, disciplinary records, and final dispositions and discipline imposed, if any. By December 1, 2021, the POST Commission will distribute to all departments a list of all police officers currently employed in the state, and each department will then be required to review that list and provide a complete disciplinary history, including the information and records noted above, for all officers on that list that the department previously employed. Presently, there is no firm response date for this subsequent reporting requirement. The Act states these reporting requirements are not subject to collective bargaining. THE LEADER IN PUBLIC SECTOR LAW 617.556.0007 1 1.800.548.3522 1 www.k-plaw.com 1 ©2021 KP Law, P.C. KP LAW • Public Records Law. Effective immediately, the Act amends the Public Records Law as follows: (c) personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. (G.L. c. 4, §7(26)(c) -amendment in bold) At this time, the full scope of this statutory amendment to so-called "Exemption (c)" is unclear. As a threshold matter, the appellate courts have determined that police department internal affairs "files," except disciplinary documents resulting from an internal affairs investigation, are public records and not exempt from public disclosure under the first clause to Exemption (c).1 While this amendment to Exemption (c) appears to codify those judicial decisions, it may also go further, and additionally encompass any police misconduct records including those in the possession of the POST Commission. We await guidance on this issue from the Supervisor of Records and/or POST Commission during the Act's implementation. In the meantime, should you receive a public records request seeking such records that would normally be withheld under Exemption (c), you may wish to contact counsel to discuss appropriate response(s) to such a request. • Department Certification and Policies. The Act mandates that all departments be certified by the POST Commission beginning July 1, 2021, which certification is contingent on the promulgation and implementation of certain regulations and model policies.2 It is important to note the Act largely codifies best practices, and many departments already have in place the types of policies that are now mandated. However, some of these policies may need to be updated to comply with the Act, such as certain definitions in a department's Use of Force Policy, as well to conform with model policies and regulations to be issued in the future. The POST Commission will establish department certification standards in the future; however, we know now, at minimum, police departments will be required to have policies regarding the following: o Use of force and reporting the use of force o Officer code of conduct o Officer response procedures o Criminal investigation procedures o Juvenile operations o Internal affairs and officer complaint investigation procedures o Detainee transportation o Collection and preservation of evidence Additionally, under the Act's duty to intervene provisions, departments must also establish a policy and procedure for officers to report officer abuse without fear of retaliation or actual retaliation by July 1, 2021. The POST Commission will promulgate regulations and model policies relative to these requirements in the future, and we will keep you updated regarding such requirements. 1 Worcester Telegram & Gazette v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, rev. denied 440 Mass. 1103 (2003). 2 Presidential Executive Order No. 13929 also makes discretionary federal grant funding contingent on police departments being credentialed by independent state bodies (like the Massachusetts Police Accreditation Commission) and having use of force policies that: (1) prohibit the use of chokeholds, and (2) comply with all federal, state, and local laws. THE LEADER IN PUBLIC SECTOR LAW 617.556.0007 1 1.800.548.3522 1 www.k-plaw.com 1 ©2021 KP Law, P.C. KP LAW • Police Officer Certification. A major component of the Act is the establishment of a police officer certification system. No person will be eligible for original appointment as a police officer without being certified by the POST Commission, and officers must maintain certification throughout their employment. The POST Commission will establish the conditions for certification by regulation, but the parameters and conditions contained in the Act indicate the criteria will relate to the candidates' education, training, and criminal history. Certification lasts for three (3) years, and officers must apply for renewal before their current certification expires. Existing officers, and those that have been appointed and complete academy training by December 1, 2021, will be deemed certified as of July 1, 2021, and will then need to apply for re -certification before that certification expires. The POST Commission can revoke or suspend an officer's certification for a number of enumerated reasons related to officer misconduct following a hearing before the POST Commission. • School Resource Officers. The Act contains provisions, effective immediately, governing the deployment of School Resource Officers ("SRO"). Specifically, the Act mandates that future Memorandums of Understanding ("MOU") entered into between a police department and a school district follow a model MOU that will be established by the newly formed Model SRO Memorandum Review Commission. Furthermore, SROs are prohibited from disclosing to the school information related to students' or their family members' immigration or citizenship status, neighborhood of residence, religion, national origin, ethnicity, or suspected or confirmed gang affiliation unless disclosure is: relevant to a specific law enforcement incident; for the purpose of submitting a "51A report"; required to comply with a court order; or provided with the student or family member's consent. Additional training programs for SROs will be developed as well. As with all extensive reform efforts, it will take time for the promulgation of relevant state regulations implementing the Act, and then for the Act and its implementing regulations to be interpreted by relevant state agencies, officials, and, as necessary, the courts. Additionally, while the Act contains many mandates and new reporting requirements for police departments that municipalities must follow, the implementation of these new requirements could arguably be subjects of mandatory union bargaining. Therefore, you may consider initiating discussions with the appropriate union representative in a good faith effort to ease and expedite the implementation of these substantial changes to law enforcement agencies/departments. While the full impacts of this legislation will only be fully realized over time, we have summarized here the major and immediate changes applicable to municipal police departments, as we currently understand them. This summary is subject to change, however, as more information becomes known regarding the Act and its implementation and requirements over the coming year. In the coming weeks, we will also be releasing more detailed, section -specific eUpdates on the POST Commission and police officer and police department certification requirements, as well as the Act's impact on department policies and practices, internal affairs and officer misconduct investigations, civil rights claims, school resource officers, and the Public Records Law. In the meantime, if you have any specific questions regarding the Act, bargaining obligations with respect to any part of it, and how it will impact your police department, please contact your KP Law attorney or any member of the firm's Labor and Employment Practice Group at 617.556.0007. Disclaimer: This information is provided as a service by KP Law, P.C. This information is general in nature and does not, and is not intended to, constitute legal advice. Neither the provision nor receipt of this information creates an attorney -client relationship with KP Law, P.C. Whether to take any action based upon the information contained herein should be determined only after consultation with legal counsel. THE LEADER IN PUBLIC SECTOR LAW 617.556.0007 1 1.800.548.3522 1 www.k-plaw.com 1 ©2021 KP Law, P.C.