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PRINTER'S NO. 1553
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
1049
Session of
2020
INTRODUCED BY ARGALL, BREWSTER, GORDNER, STEFANO, LANGERHOLC,
J. WARD, BROWNE, YUDICHAK AND TARTAGLIONE, MARCH 3, 2020
REFERRED TO LABOR AND INDUSTRY, MARCH 3, 2020
AN ACT
Establishing guidelines and procedures governing certain
investigations and interrogations of correctional officers;
authorizing certain civil suits by correctional officers; and
providing for impact of collective bargaining agreements and
for summary suspensions.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Short title.
This act shall be known and may be cited as the Correctional
Officers Investigation Procedure Act.
Section 2. Legislative intent.
It is the intent of the General Assembly to establish
guidelines and procedures governing the investigation and
interrogation of correctional officers during certain
investigations by the Department of Corrections.
Section 3. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
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"Correctional officer." An individual employed as a
correctional officer or food service or maintenance employee by
the department and given the care, custody and control of
inmates.
"Department." The Department of Corrections of the
Commonwealth.
"Interrogation." The formal and systematic questioning of a
correctional officer accused in a complaint of malfeasance,
misfeasance or nonfeasance which may result in dismissal,
demotion, suspension, reduction in salary, written reprimand or
transfer for punitive purposes. The term does not include the
normal questioning of a correctional officer which occurs in the
normal course of duty, counseling, instruction, informal verbal
admonishment or other routine or unplanned contact with a
supervisor or any other officer.
"Malfeasance." The performance of an act which is unlawful.
"Misfeasance." The improper performance of a lawful act. The
term includes an act which constitutes a violation of department
policy for which there is no analogous criminal offense.
"Nonfeasance." The omission of an act which a person has a
legal duty to perform.
Section 4. Rights of correctional officers.
If a correctional officer is under investigation and subject
to interrogation by the department, the following standards
shall apply:
(1) The interrogation shall be conducted after not less
than 24 hours' notice and shall occur when the correctional
officer is on duty or on approved leave. The correctional
officer may not be terminated from employment or disciplined
for work missed because of the interrogation.
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(2) The interrogation shall take place at one of the
following locations:
(i) The office of the investigating officer.
(ii) The office of the correctional facility
conducting the investigation.
(iii) An office within a building owned or leased by
the department.
(iv) Other location as is necessary to protect the
safety or identity of the correctional officer or is
consented to by the correctional officer.
(3) At the beginning of the interrogation, the
correctional officer under interrogation shall be informed of
the name and professional title of the individual in charge
of the interrogation and the names and professional titles of
each individual that will be present.
(4) The correctional officer under interrogation shall
be informed in writing of the nature of the complaint and
provided with the name or names of the complainant not less
than 24 hours prior to the interrogation. This paragraph may
not apply to any of the following:
(i) A complaint subject to section 3(c) of the act
of December 12, 1986 (P.L.1559, No.169), known as the
Whistleblower Law.
(ii) A complaint alleging sexual abuse or sexual
harassment as defined by the Prison Rape Elimination Act
of 2003 (Public Law 108-79, 117 Stat. 972).
(5) (i) If an anonymous or unsworn complaint is made
against a correctional officer and no evidence is
obtained within the applicable statute of limitations for
the analogous criminal offense, the complaint shall be
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classified as unfounded and shall be completely expunged
from each personnel file maintained by the department on
the correctional officer.
(ii) If an anonymous or unsworn complaint is made
against a correctional officer for an act of misfeasance
and no evidence is obtained within 60 days, the complaint
shall be classified as unfounded and shall be completely
expunged from the personnel file of the correctional
officer maintained by the department.
(6) The interrogation shall allow for personal
necessities and for rest periods as are reasonably necessary.
(7) The correctional officer under interrogation may not
be offered promises of reward or threatened in connection
with the investigation.
(8) The complete interrogation shall be recorded,
including recess periods. A copy of the record shall be made
available to the correctional officer or the correctional
officer's counsel or representative, upon request, without
cost.
(9) If the correctional officer is under arrest at the
time of the interrogation, the correctional officer shall be
completely informed of the correctional officer's
constitutional rights and all rights under the law prior to
the commencement of the interrogation.
(10) The correctional officer under interrogation shall
have the right to be represented by counsel or other
representative. To the extent that the correctional officer
is represented for purposes of collective bargaining by a
collective bargaining representative pursuant to State law,
the correctional officer shall also have the right to have an
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agent from the exclusive collective bargaining representative
present.
(11) Prompt action shall be required as follows:
(i) Except as provided under subparagraph (iii),
when a complaint is made against a correctional officer
more than 90 days after the applicable statute of
limitations has expired for the civil action alleged, the
complaint shall be classified as unfounded and shall be
completely expunged from any personnel file maintained by
the department on the correctional officer.
(ii) When a complaint is made against a correctional
officer for an act of misfeasance more than 60 days after
the alleged date of the act, the complaint shall be
classified as unfounded and shall be completely expunged
from any personnel file of the correctional officer
maintained by the department.
(iii) Notwithstanding subparagraph (i), no complaint
which alleges conduct that would constitute a misdemeanor
or felony offense, if proven, shall be classified as
unfounded or expunged as a stale complaint until the
applicable statute of limitations expires as prescribed
under 42 Pa.C.S. Ch. 55 Subch. C (relating to criminal
proceedings).
(12) No correctional officer may be compelled to submit
to a polygraph examination. No disciplinary action or other
recrimination may be taken against a correctional officer for
refusing to submit to a polygraph examination. No testimony
or evidence shall be admissible at a subsequent hearing,
trial or proceeding, judicial or administrative, to the
effect that the correctional officer refused to take a
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polygraph examination.
(13) No correctional officer may be subjected to or
threatened with adverse employment action as a result of the
exercise of the rights accorded to correctional officers
under this act.
(14) No correctional officer may be required to disclose
greater information as to property, income, assets, source of
income, debts or personal or domestic expenditures, including
those of any member of the correctional officer's family or
household, than the principal elected officials of the
department are required to disclose, unless the nature of the
investigation necessitates the disclosure of the information
and the information is obtained under proper legal
procedures.
Section 5. Civil suits by correctional officers.
A correctional officer shall have a cause of action against a
person for damages suffered as a result of a complaint filed
against the correctional officer by the person which complaint
is found to be:
(1) without merit and frivolous; or
(2) without merit and made in bad faith.
Section 6. Impact of collective bargaining agreements.
(a) Additional rights.--
(1) If there is a conflict between an existing
collective bargaining agreement and the rights and coverage
under this act, the collective bargaining agreement shall
govern.
(2) The rights and coverage under this act may not be
diminished by a collective bargaining agreement entered into
or renewed on or after the effective date of this subsection.
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(b) Department's obligation.--Nothing in this act shall be
construed to diminish the obligation of the department to comply
with a collective bargaining agreement which provides greater
rights and coverage to correctional officers than the rights and
coverage provided by this act.
Section 7. Suspensions.
(a) General rule.--Suspension of a correctional officer
shall be in accordance with provisions of 71 Pa.C.S. Pt. III
(relating to civil service reform), except as follows:
(1) No suspension based on a pending internal
investigation shall last more than 60 days from the effective
date of suspension.
(2) Written notice of suspension shall be provided to
the corrections officer no later than five working days after
the effective date of suspension.
(3) Medical benefits and insurance shall continue during
the period of suspension.
(b) Criminal charges.--
(1) A correctional officer against whom a criminal
proceeding involving a misdemeanor or felony offense has been
instituted may be suspended without pay pending disposition
of the criminal charges. Medical benefits and insurance to
which a correctional officer and spouse and dependents are
entitled by virtue of employment may not be suspended until
conviction or separation of the correctional officer from the
department, whichever occurs first.
(2) If the correctional officer is acquitted of the
criminal charges, the correctional officer shall be
reinstated and reimbursed for all salary and benefits that
have not been paid during the suspension period.
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Section 8. Effective date.
This act shall take effect in 60 days.
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