Regular Session 2021-2022 Senate Bill 0569 P.N. 1794

PRIOR PRINTER'S NO. 606

PRINTER'S NO. 1794

THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

No.

569

Session of

2021

INTRODUCED BY ARGALL, LANGERHOLC, J. WARD, STEFANO, REGAN,

YUDICHAK, BROWNE, SABATINA, MENSCH, LAUGHLIN, ROBINSON AND

KANE, APRIL 16, 2021

AS AMENDED ON THIRD CONSIDERATION, JUNE 20, 2022

AN ACT

Providing for guidelines and procedures governing certain

investigations and interrogations of correctional and

forensic employees; 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

and Forensic Employees 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 and forensic employees during

certain investigations by the Department of Corrections or

Department of Human Services.

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:

"Correctional employee." An individual employed under the

Governor's jurisdiction with whom the duty of care, custody and

control of an offender is required.

"Department." The Department of Corrections of the

Commonwealth or the Department of Human Services of the

Commonwealth.

"Employee." A correctional or forensic employee under this

act.

"Forensic employee." An individual employed under the

Governor's jurisdiction with whom the duty of care, custody and

control of a patient is required.

"Interrogation." The formal and systematic questioning of an

employee accused in a complaint of malfeasance, misfeasance or

nonfeasance MISCONDUCT 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 an employee which occurs in the normal course of

duty, counseling, instruction, informal verbal admonishment or

other routine or unplanned contact with a supervisor.

"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.

"MISCONDUCT." ANY OF THE FOLLOWING:

(1) THE PERFORMANCE OF AN ACT WHICH IS UNLAWFUL.

(2) THE IMPROPER PERFORMANCE OF A LAWFUL ACT, INCLUDING

AN ACT WHICH CONSTITUTES A VIOLATION OF DEPARTMENT POLICY FOR

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WHICH THERE IS NO ANALOGOUS CRIMINAL OFFENSE.

(3) THE OMISSION OF AN ACT WHICH A PERSON HAS A LEGAL

DUTY TO PERFORM.

Section 4. Rights of employees.

If an employee 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 employee is on

duty or on approved leave. The employee may not be terminated

from employment or disciplined for work missed because of the

interrogation.

(2) (1) The interrogation shall take place at one of the

following locations:

(i) The office of the investigating officer.

(ii) The office of the A correctional facility or

forensic facility conducting the investigation.

(iii) An office within a building owned or leased by

the department.

(iv) Other locations as is necessary to protect the

safety or identity of the employee or is otherwise

consented to by the employee.

(3) (2) At the beginning of the interrogation, the

employee 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 employee 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

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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) (3) The employee under interrogation shall be

informed whether the investigation is administrative and

therefore compelled as a condition of employment or criminal.

Where an investigation is administrative, the employee shall

be read a statement that the employee's answers are protected

as a matter of law and advised that the employee has a right

to representation. Where an investigation is criminal, the

employee shall be read warnings as provided by law and

advised any statements made are not compelled as a condition

of the employee's employment.

(6) (i) If an anonymous or unsworn complaint is made

against an employee and no evidence is obtained within the

applicable statute of limitations for the analogous criminal

offense, the complaint shall be classified as unfounded and

shall be completely expunged from each personnel file

maintained by the department.

(ii) If an anonymous or unsworn complaint is made

against an employee 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 maintained by the department.

(7) (4) The interrogation shall allow for personal

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necessities and for rest periods as are reasonably necessary.

(8) (5) The employee under interrogation may not be

offered promises of reward or threatened in connection with

the investigation.

(9) (6) The complete interrogation shall be recorded

WITH AUDIO, including recess periods. A copy of the record

shall be made available to the employee or the employee's

counsel or representative, upon request, without cost.

(10) (7) The employee under interrogation shall have the

right to be represented by counsel or other representative as

provided by existing Federal and State law.

(11) (8) No employee may be compelled to submit to a

polygraph examination. No disciplinary action or other

recrimination may be taken against an employee 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 employee refused to take a polygraph examination.

(12) (9) No employee may be subjected to or threatened

with adverse employment action as a result of the exercise of

the rights afforded to employees under this act.

(13) (10) No employees 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 employee'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.

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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 5. 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.

(b) Department 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 6. Suspensions pending investigation.

(a) General rule.--A suspension pending investigation of an

employee shall be in accordance with the provisions of 71

Pa.C.S. Pt. III (relating to civil service reform), regardless

of the employee's civil service status, except as follows:

(1) No suspension pending investigation shall be

utilized unless the department has just cause for the

employee's removal from the workplace in lieu of a temporary

administrative transfer.

(2) All suspensions pending investigation shall be with

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pay and contractual benefits except as noted in subsection

(b).

(3) Medical benefits and insurance shall continue during

the period of suspension.

(b) Governor's code of conduct.--

(1) An employee against whom a criminal proceeding has

been instituted and the requirements of 4 Pa. Code Ch. 7,

Subch. K (relating to code of conduct for appointed officials

and State employees) have been triggered may be suspended

pending investigation without pay. Medical benefits and

insurance to which an employee and spouse and dependents are

entitled by virtue of employment may not be suspended until

conviction or separation of the employee from the department,

whichever occurs first.

(2) If the employee's criminal charges are resolved and

the provisions of 4 Pa. Code Ch. 7, Subch. K no longer apply,

the employee shall be reinstated and reimbursed for all

salary and benefits that have not been paid during the

suspension period.

Section 8 7. Effective date.

This act shall take effect in 60 days.

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