PRINTER'S NO. 2873
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
2005
Session of
2018
INTRODUCED BY BOBACK, MILLARD, JAMES, GOODMAN, D. COSTA, GILLEN
AND KORTZ, JANUARY 9, 2018
REFERRED TO COMMITTEE ON LABOR AND INDUSTRY, JANUARY 9, 2018
AN ACT
Establishing guidelines and procedures governing certain
investigations and interrogations of correctional officers by
the Department of Corrections; 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 by the Department of Corrections 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 that may result in dismissal,
demotion, suspension, reduction in salary, written reprimand or
transfer for punitive purposes. The term does not include the
questioning of a correctional officer that 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 unlawful act.
"Misfeasance." The improper performance of a lawful act. The
term includes an act that constitutes a violation of department
policy for which there is no analogous criminal offense.
"Nonfeasance." The omission of an act that 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, unless the
seriousness of the investigation is such that an immediate
interrogation is necessary. The correctional officer may not
be terminated from employment or disciplined for any work
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missed because of the interrogation.
(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) Such other location as is necessary to protect
the safety or identity of 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
any individuals 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, unless the
seriousness of the investigation is such that an immediate
interrogation is necessary. If an immediate interrogation is
necessary, the information required under this paragraph
shall be provided contemporaneously with the interrogation.
This paragraph shall not apply to an anonymous complaint
alleging sexual abuse or sexual harassment made under the
Prison Rape Elimination Act of 2003 (Public Law 108-79, 117
Stat. 974).
(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
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the analogous criminal offense, the complaint shall be
classified as unfounded and shall be completely expunged
from any personnel file of the correctional officer
maintained by the department.
(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 any 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,
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the correctional officer shall also have the right to have an
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 of the
correctional officer maintained by the department.
(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
that alleges conduct that would constitute a misdemeanor
or felony offense, if proven, may 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) A correctional officer may not be compelled to
submit to a polygraph examination. Disciplinary action or
other recrimination may not be taken against a correctional
officer for refusing to submit to a polygraph examination. No
testimony or evidence may be admissible at a subsequent
hearing, trial or proceeding, judicial or administrative, to
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the effect that the correctional officer refused to take a
polygraph examination.
(13) A correctional officer may not 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) A correctional officer may not 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 that person that is found to
be any of the following:
(1) Without merit and frivolous.
(2) Without merit and made in bad faith.
Section 6. Impact of collective bargaining agreements.
Nothing in this act may be construed to diminish the
obligation of the department to comply with a collective
bargaining agreement that provides greater rights and coverage
to correctional officers than the rights and coverage provided
by this act. The rights and coverage under this act may not be
diminished by any collective bargaining agreement.
Section 7. Suspensions.
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(a) General rule.--Suspension of a correctional officer
shall be in accordance with provisions of the act of August 5,
1941 (P.L.752, No.286), known as the Civil Service Act, except
as follows:
(1) A suspension based on a pending internal
investigation may not 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.--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. 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.
Section 8. Effective date.
This act shall take effect in 60 days.
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