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A06225
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1841
Session of
2019
INTRODUCED BY READSHAW, KORTZ, KULIK, MILLARD, HILL-EVANS,
JOHNSON-HARRELL, DeLUCA, BARRAR, A. DAVIS, CALTAGIRONE AND
MOUL, SEPTEMBER 19, 2019
REFERRED TO COMMITTEE ON JUDICIARY, SEPTEMBER 19, 2019
AN ACT
Providing Amending Title 44 (Law and Justice) of the
Pennsylvania Consolidated Statutes, providing for law
enforcement background investigations, for duties of the
Municipal Police Officers' Education and Training Commission,
law enforcement agencies and employers and for immunity from
liability and violations.
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 Law
Enforcement Background Investigations and Employment Information
Act.
Section 2. 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:
"Commission." The Municipal Police Officers' Education and
Training Commission.
"Employer." The term does not include the Commonwealth or a
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political subdivision of the Commonwealth.
"Employment information." Written information in connection
with job applications, performance evaluations, attendance
records, disciplinary actions and eligibility for rehire.
"Law enforcement agency." A police department of a county,
city, borough, incorporated town or township or a county
district attorney's office.
Section 3. Background investigation required.
(a) General rule.--A law enforcement agency shall conduct a
thorough background investigation on an applicant for employment
as a police officer or an applicant for a position leading to
employment as a police officer before the applicant may be
employed. The background investigation must determine at a
minimum whether the candidate meets the following standards:
(1) Standards established by the commission.
(2) Established security standards for access to
national and State computerized record and communication
systems.
(b) Higher standards not precluded.--The required background
investigation does not prevent a law enforcement agency from
establishing higher standards for law enforcement employees if
those standards are not contrary to applicable law.
Section 4. Disclosure of employment information.
(a) Disclosure by employer.--Upon request of a law
enforcement agency, an employer shall disclose or otherwise make
available for inspection employment information of an employee
or former employee who is the subject of an investigation under
section 3. The request for disclosure of employment information
must be:
(1) in writing;
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(2) accompanied by an original authorization and release
signed by the employee or former employee; and
(3) signed by the chief of police or other authorized
representative of the law enforcement agency conducting the
background investigation.
(b) Disclosure by law enforcement agency.--Upon request of a
law enforcement agency for any purpose, a law enforcement agency
shall disclose or otherwise make available for inspection
employment information of an employee or former employee who is
the subject of the request. A law enforcement agency shall not
disclose or make available for inspection requested employment
information unless the request for disclosure for employment
information is:
(1) in writing;
(2) accompanied by an original authorization and release
signed by the employee or former employee; and
(3) signed by the chief of police, district attorney or
other authorized representative of the law enforcement agency
making the request.
Section 5. Refusal to disclose personnel record.
If a law enforcement agency or an employer refuses to
disclose employment information in accordance with this act, a
law enforcement agency may petition the Commonwealth Court to
issue an order directing the disclosure of the employment
information. The petition must include a copy of the original
request for disclosure made upon the law enforcement agency,
employer or former employer and the authorization and release
signed by the employee or former employee.
Section 6. Immunity from liability and violations.
(a) General rule.--In the absence of fraud or malice, a law
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enforcement agency or an employer is immune from civil liability
for employment information released to a law enforcement agency
in accordance with this act or for any subsequent publication
made by the employee or former employee of employment
information released to a law enforcement agency under this act.
(b) Release of information in violation of act.--A law
enforcement agency or employer is not immune from civil
liability for employment information released in violation of
this act. The following apply:
(1) A police officer adversely affected by the release
of employment information in violation of this act may seek
declarative and injunctive relief and actual and punitive
damages attributable to the violation in an appropriate
court.
(2) The court shall award reasonable expenses, including
but not limited to attorney fees, court costs and
compensation for loss of income, to the police officer
adversely affected if an action under paragraph (1) results
in:
(i) a final determination by a court in favor of the
police officer adversely affected; or
(ii) rescission of the challenged release of
information after suit has been filed under paragraph (1)
but prior to a final determination by a court.
Section 7. Notice of investigation.
(a) Notice to commission.--Upon initiation of a background
investigation under this act, a law enforcement agency shall
give written notice to the commission of the following:
(1) The candidate's full name and date of birth.
(2) The candidate's police identification number, if
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known.
(b) Timing.--Initiation of a background investigation occurs
when the law enforcement agency begins its determination of
whether an applicant meets the law enforcement agency's
standards for employment as a law enforcement employee. The
initiation of a background investigation does not include the
submission of an application for employment.
Section 8. Confidentiality agreements.
If employment information is subject to a confidentiality
agreement between the employee or former employee and the law
enforcement agency or employer, the law enforcement agency or
employer shall disclose the fact that a confidentiality
agreement exists. If the employee or former employee has
authorized the release of employment information without regard
to a previous agreement to the contrary, the law enforcement
agency or employer shall also disclose the employment
information in accordance with section 4. If employment
information is sealed or otherwise subject to a nondisclosure
order by a court of competent jurisdiction, the law enforcement
agency or employer shall disclose the fact that a nondisclosure
order exists, along with information identifying the court and
case number.
Section 9. Effective date.
This act shall take effect in 60 days.
Section 1. Title 44 of the Pennsylvania Consolidated
Statutes is amended by adding a chapter to read:
CHAPTER 73
LAW ENFORCEMENT BACKGROUND INVESTIGATIONS
AND EMPLOYMENT INFORMATION
Sec.
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7301. Scope of chapter.
7302. Definitions.
7303. Background investigation required.
7304. Disclosure of employment information.
7305. Refusal to disclose employment information.
7306. Immunity.
7307. Confidentiality agreements and nondisclosure.
7308. Maintenance of records.
7309. Reporting.
7310. Disclosure of separation.
7311. Hiring report.
7312. Regulations.
§ 7301. Scope of chapter.
This chapter relates to law enforcement background
investigations and employment information for law enforcement
officers.
§ 7302. Definitions.
The following words and phrases when used in this chapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Applicant." A person applying for employment as a law
enforcement officer or for a position leading to employment as a
law enforcement officer.
"Commission." The Municipal Police Officers' Education and
Training Commission.
"Employment information." Written information in connection
with job applications, performance evaluations, attendance
records, disciplinary actions and eligibility for rehire.
"Final and binding disciplinary action." Disciplinary action
in which a law enforcement officer voluntarily accepts
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discipline or, in the case of appeal by the disciplined officer,
disciplinary action in which the appeal has been exhausted or
resolved by settlement agreement, arbitration or other dispute
resolution mechanism.
"Law enforcement agency." A law enforcement agency in this
Commonwealth that is the employer of a law enforcement officer.
"Law enforcement officer." The term shall have the same
meaning as the term "peace officer" under 18 Pa.C.S. § 501
(relating to definitions).
"Prospective employing law enforcement agency." A law
enforcement agency in this Commonwealth that is considering
employing a law enforcement officer.
"Separation records." Records required to be maintained
under section 7309 (relating to reporting).
§ 7303. Background investigation required.
(a) General rule.--A prospective employing law enforcement
agency shall conduct a thorough background investigation on an
applicant for employment as a law enforcement officer or an
applicant, including a review of the applicant's employment
information and separation records, if applicable, in accordance
with this chapter, before the applicant may be employed. The
background investigation shall determine at a minimum whether
the applicant meets the standards established by the commission.
(b) Higher standards not precluded.--The required background
investigation does not prevent a law enforcement agency from
establishing higher standards for law enforcement employees if
those standards are not contrary to applicable law.
§ 7304. Disclosure of employment information.
Upon request of a prospective employing law enforcement
agency, a law enforcement agency shall disclose or otherwise
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make available for inspection employment information of an
applicant who is the subject of a background investigation under
this chapter. The request for disclosure of employment
information must be:
(1) in writing;
(2) accompanied by an original authorization and release
signed by the applicant; and
(3) signed by the chief of police or other authorized
representative of the prospective employing law enforcement
agency conducting the background investigation.
§ 7305. Refusal to disclose employment information.
If a law enforcement agency refuses to disclose employment
information to a prospective employing law enforcement agency in
accordance with this chapter, the prospective employing law
enforcement agency may petition Commonwealth Court to issue an
order directing the disclosure of the employment information.
The petition must include a copy of the original request for
disclosure and the authorization and release signed by the
applicant.
§ 7306. Immunity.
(a) General rule.--In the absence of fraud or malice, a law
enforcement agency is immune from civil liability for employment
information released to a prospective employing law enforcement
agency in accordance with this chapter or for any subsequent
publication made by the prospective employing law enforcement
agency or the applicant of employment information released to a
law enforcement agency under this chapter.
(b) Release in violation of chapter.--
(1) A law enforcement agency is not immune from civil
liability for employment information released in violation of
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this chapter.
(2) An applicant adversely affected by the release of
employment information in violation of this chapter may seek
declarative and injunctive relief and actual and punitive
damages attributable to the violation in an appropriate
court.
(3) The court shall award reasonable expenses, including
attorney fees, court costs and compensation for loss of
income, to the applicant adversely affected if an action
under paragraph (2) results in:
(i) a final determination by a court in favor of the
law enforcement officer adversely affected; or
(ii) rescission of the challenged release of
information after suit has been filed under paragraph (2)
but prior to a final determination by a court.
§ 7307. Confidentiality agreements and nondisclosure.
(a) When agreement exists.--If employment information is
subject to a confidentiality agreement between the applicant and
a law enforcement agency, the applicant shall disclose to the
prospective employing law enforcement agency the fact that a
confidentiality agreement exists.
(b) When agreement is absent and applicant authorizes
release.--If the applicant has authorized the release of
employment information without regard to a previous agreement to
the contrary, the law enforcement agency may disclose the
employment information in accordance with this chapter.
(c) Employment information sealed or subject to court
order.--If employment information is sealed or otherwise subject
to a nondisclosure order by a court of competent jurisdiction,
the law enforcement agency shall disclose to the prospective
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employing law enforcement agency the fact that a nondisclosure
order exists, along with information identifying the court and
case number.
§ 7308. Maintenance of records.
(a) General rule.--In addition to any other employment
information required to be maintained under current law and
regulation, a law enforcement agency shall maintain the
following separation records:
(1) Records of the reason or reasons for, and
circumstances surrounding, a separation of service for a law
enforcement officer on a form developed by the commission and
made available on its publicly accessible Internet website.
(2) Records of all criminal charges filed against a law
enforcement officer.
(3) Records of all civil or ethical complaints made
against a law enforcement officer.
(4) Records of the disposition of all charges and
complaints, including final and binding disciplinary actions,
taken by the law enforcement agency against a law enforcement
officer, including imposition of probationary or other
conditions related to employment.
(b) Review of separation records.--A law enforcement officer
may review a separation record upon the request of the law
enforcement officer on a form developed by the commission and
made available on the law enforcement agency's publicly
accessible Internet website.
(c) Disagreement with record accuracy.--
(1) If a law enforcement officer disagrees with the
accuracy of the contents of a separation record, the law
enforcement officer may request the correction or removal of
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the portion of the record believed to be incorrect. The
request must be made in writing using a form developed by the
commission and available on the commission's publicly
accessible Internet website. The law enforcement agency shall
provide written reasons for correction or removal of a
portion of the record, or of the refusal to do so.
(2) If the law enforcement agency and the law
enforcement officer cannot reach an agreement on the contents
of the record, the law enforcement officer may submit a
written statement explaining the law enforcement officer's
position and the basis for the disagreement. The statement
shall be kept with and part of the separation records
required under this section and provided with the rest of the
contents of the separation records as required under section
7310 (relating to disclosure of separation).
§ 7309. Reporting.
(a) Electronic database.--
(1) The commission shall establish and maintain an
electronic database containing the separation records.
(2) The database shall be accessible to all law
enforcement agencies in this Commonwealth.
(3) Except as provided under section 7311(c) (relating
to hiring report), separation records maintained in the
database shall be exempt from disclosure under the act of
February 14, 2008 (P.L.6, No.3), known as the Right-to-Know
Law .
(b) Procedure.--The commission shall establish a procedure
by which a law enforcement agency may request and review
separation records in the database for the purpose of employing
an applicant.
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(c) Request log.--The commission shall log all requests from
law enforcement agencies for separation records and may not
disclose the name of any law enforcement officer subject to a
request for separation records to the public. The information
provided to a law enforcement agency, including a law
enforcement agency outside of this Commonwealth, shall be exempt
from disclosure under the Right-to-Know Law .
(d) Time period to submit.--Upon the separation of an
officer from a law enforcement agency, the law enforcement
agency shall submit the separation records to the commission
within 15 days of separation.
(e) Good faith immunity.--
(1) A former employing law enforcement agency that
submits a separation record to the database in good faith is
immune from civil liability for the subsequent disclosure of
that record from the database.
(2) A law enforcement agency is presumed to be acting in
good faith at the time of a disclosure under this chapter
unless a preponderance of the evidence establishes one or
more of the following:
(i) the law enforcement agency knew that the
separation record was false or misleading;
(ii) the law enforcement agency submitted the
separation record with a reckless disregard for the
truth; or
(iii) submission of the separation record was
specifically prohibited by a Federal or State law.
§ 7310. Disclosure of separation.
(a) Waiver required.--
(1) An applicant shall provide to the prospective
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employing law enforcement agency, upon an offer of
employment, a signed waiver under this section.
(2) The waiver shall expressly allow the prospective
employing law enforcement agency to contact the commission to
seek a copy of any separation record.
(3) The waiver shall consist of a form developed by the
commission and made available on the commission's publicly
accessible Internet website.
(4) The prospective employing law enforcement agency
shall provide the signed waiver to the commission.
(5) Upon receipt of the signed waiver, the commission
shall, within seven days, provide a copy of any separation
record relating to the applicant to the prospective employing
law enforcement agency or certify that no separation record
is in the database.
(b) Record of separation condition of hiring.--A prospective
employing law enforcement agency may not hire an applicant until
the prospective employing law enforcement agency receives a copy
of the separation record or certification of no separation
record from the commission.
§ 7311. Hiring report.
(a) Information required to be reported.--If a prospective
employing law enforcement agency hires an applicant whose
separation records includes any of the following, the law
enforcement agency shall file a report with the commission that
indicates the prospective employing law enforcement agency's
reasoning and rationale for hiring the applicant:
(1) Final and binding disciplinary action based on any
of the following:
(i) excessive force;
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(ii) harassment;
(iii) theft;
(iv) discrimination;
(v) sexual abuse;
(vi) sexual misconduct;
(vii) domestic violence;
(viii) coercion of a false confession;
(ix) filing a false report; or
(x) a judicial finding of dishonesty.
(2) A criminal conviction relating to conduct described
in paragraph (1).
(b) Electronic database of commission.--
(1) The hiring report shall be included in the
commission's electronic database.
(2) The hiring report shall be on a form developed by
the commission and made available on the commission's
publicly accessible Internet website.
(c) Subject to disclosure.--The hiring report shall be
subject to disclosure under the act of February 14, 2008 (P.L.6,
No.3), known as the Right-to-Know Law.
§ 7312. Regulations.
(a) Temporary regulations.--In order to facilitate the
prompt implementation of this chapter, the commission shall
promulgate temporary regulations within six months of the
effective date of this section that shall expire no later than
two years following the publication of the temporary
regulations. The department shall promulgate temporary
regulations not subject to:
(1) Section 612 of the act of April 9, 1929 (P.L.177,
No.175), known as The Administrative Code of 1929.
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(2) Sections 201, 202, 203, 204 and 205 of the act of
July 31, 1968 (P.L.769, No.240), referred to as the
Commonwealth Documents Law.
(3) Sections 204(b) and 301(10) of the act of October
15, 1980 (P.L.950, No.164), known as the Commonwealth
Attorneys Act.
(4) The act of June 25, 1982 (P.L.633, No.181), known as
the Regulatory Review Act.
(b) Publication.--The commission shall transmit the
temporary regulations to the Legislative Reference Bureau for
publication in the Pennsylvania Bulletin no later than six
months after the effective date of this section.
(c) Contents.--The commission shall, by regulation,
including temporary regulation, establish the following:
(1) Procedures to guarantee the confidentiality of
employment information and separation records.
(2) Procedures to guarantee the security of the database
established under this chapter.
(3) Reportable disciplinary actions and criminal conduct
falling within the scope of section 7311 (relating to hiring
report).
(4) Any other procedure deemed necessary by the
commission for implementation of this chapter.
Section 2. This act shall take effect as follows:
(1) Except as provided in paragraph (2), the addition of
44 Pa.C.S. Ch. 73 shall take effect in one year.
(2) The addition of 44 Pa.C.S. § 7312 shall take effect
in 60 days.
(3) This section shall take effect immediately.
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