Consolidated Amendment "A" to H4860

Consolidated Amendment

Amendments: 16, 36, 45, 50, 51, 54, 58, 61, 64, 69, 77, 79, 100, 107, 110, 118, 129, 132, 146, 155, 175, 177, 185, 196

Mr. Michlewitz of Boston moves to amend the bill in section 29 by striking out lines 662 to 852, inclusive, and inserting in place thereof the following:-

Section 8. (a) There is hereby established within the commission a division of police standards. The purpose of the division of police standards shall be to investigate officer misconduct and make disciplinary recommendations to the commission.

(b)(1) The head of an agency shall immediately transmit any complaint received by said agency to the division of police standards, in a form to be determined by the commission; provided, that the form shall include, but shall not be limited to: (i) the name and commission certification identification number of the subject officer; (ii) the date and location of the incident; (iii) a description of circumstances of the conduct that is the subject of the complaint; (iv) whether the complaint alleges that the officer’s conduct: (A) was biased on the basis of race, ethnicity, sex, gender identity, sexual orientation, religion, mental or physical disability, immigration status or socioeconomic or professional level; (B) was unprofessional; (C) involved excessive, prohibited or deadly force; or (D) resulted in serious bodily injury or death; and (v) a copy of the original complaint submitted directly to the agency; provided, however, that the commission may establish a minimum threshold and streamlined process for the reporting or handling of minor complaints that do not involve the use of force or allegations of biased behavior.

(2) Upon completion of the internal investigation of a complaint, the head of each agency shall immediately transmit to the division of police standards an investigation report in a form to be determined by the commission; provided, that the form shall include, but shall not be limited to: (i) a description of the investigation and disposition of the complaint; (ii) any disciplinary action recommended by internal affairs or the supervising officer; and (iii) if the recommended disciplinary action included retraining, suspension or termination, a recommendation by the head of the agency for disciplinary action by the commission including, retraining or suspension or revocation of the officer’s certification.

(3) Upon final disposition of the complaint, the head of each agency shall immediately transmit to the division of police standards a final report in a form to be determined by the commission; provided, that the form shall include, but shall not be limited to: (i) any disciplinary action initially recommend by internal affairs or the supervising officer; (ii) the final discipline imposed and a description of the adjudicatory process; and (iii) if the disciplinary action recommended or imposed included retraining, suspension or termination, a recommendation by the head of the agency for disciplinary action by the commission including, retraining or suspension or revocation of the officer’s certification.

(4) If an officer resigns during an agency investigation, prior to the conclusion of an agency investigation or prior to the imposition of agency discipline, up to and including termination, the head of said agency shall immediately transmit to the division of police standards a report in a form to be determined by the commission; provided, that the form shall include, but shall not be limited to: (i) the officer’s full employment history; (ii) a description of the events or complaints surrounding the resignation; and (iii) a recommendation by the head of the agency for disciplinary action by the commission, including retraining or suspension or revocation of the officer’s certification.

(5) Notwithstanding any general or special law or collective bargaining agreement to the contrary, nothing shall limit the ability of the head of an agency to make a recommendation in their professional judgement to the commission relative to the certification status of an officer, after having followed the agency’s internal affairs procedure and any appeal therefrom.

(c)(1) The division of police standards shall initiate a preliminary inquiry into the conduct of a law enforcement officer if the commission finds by a preponderance of evidence that the law enforcement officer:-

(i) was involved an officer-involved injury or death;

(ii) committed a felony or misdemeanor, whether or not the officer has been arrested, indicted, charged or convicted;

(iii) engaged in conduct prohibited pursuant to section 14;

(iv) engaged in conduct prohibited pursuant to section 15; or

(v) receipt of an affirmative recommendation by the head of an appointing agency for disciplinary action by the commission, including retraining or suspension or revocation of the officer’s certification.

(2) The division of police standards may initiate a preliminary inquiry into the conduct of a law enforcement officer if, upon receipt of any complaint, report or evidence the commission finds by a preponderance of evidence that the law enforcement officer may have engaged in prohibited conduct. All proceedings and records relating to a preliminary inquiry or initial staff review used to determine whether to initiate an inquiry shall be confidential, except that the executive director may turn over to the attorney general, the United States Attorney or a district attorney of competent jurisdiction evidence which may be used in a criminal proceeding.

(3) The division of police standards shall notify any law enforcement officer who is the subject of the preliminary inquiry, the head of their collective bargaining unit and the head of their appointing agency of the existence of such inquiry and the general nature of the alleged violation within 30 days of the commencement of the inquiry.

(d) The division of police standards may audit all records related to the complaints, investigations and investigative reports of any agency related to complaints of officer misconduct or unprofessionalism, including without limitation personnel records, of any agency. The commission shall promulgate rules and regulations establishing an audit procedure; provided, that said rules and regulations shall not limit the ability of the division of police standards to initiate an audit at any time and for any reason.

(e) If the division of police standards discovers evidence of the commission of a crime by an officer, the division of police standards shall immediately refer the matter to the division of police standards and professional conduct enforcement established pursuant to section 11O of chapter 12.

(f) The division of police standards shall create and maintain a database containing information related an officer’s: (i) receipt of complaints and related information, including, but not limited to: the officer’s appointing agency, date, a description of circumstances of the conduct that is the subject of the complaint and whether the complaint alleges that the officer’s conduct: (A) was biased on the basis of race, ethnicity, sex, gender identity, sexual orientation, religion, mental or physical disability, immigration status or socioeconomic or professional level; (B) was unprofessional; (C) involved excessive, prohibited or deadly force; or (D) resulted in serious bodily injury or death; (ii) allegations of untruthfulness; (iii) failure to follow commission training requirements; (iv) decertification by the commission; (v) agency-imposed discipline; (vi) termination for cause; and (vii) any other information the commission deems necessary or relevant.

(g) The division of police standards shall actively monitor the database to identify patterns of unprofessional police conduct. Upon identification of a pattern of unprofessional police conduct, the division of police standards may recommend the evidence in its possession for review in a preliminary inquiry.

(h) The division of police standards shall be a law enforcement agency and its employees shall have such law enforcement powers as necessary to effectuate the purposes of this chapter, including the power to receive intelligence on an applicant for certification or an officer certified under this chapter and to investigate any suspected violations of law.

Section 9. (a)(1) The commission shall immediately suspend the certification of any officer who is arrested, charged or indicted for a felony.

(2) If, after a preliminary inquiry pursuant to paragraph (1) of subsection (c) of section 8 the commission concludes that a law enforcement officer has engaged in conduct that could constitute a felony and upon a vote to initiate an adjudicatory proceeding of said conduct, shall immediately suspend an officer’s certification.

(3) The commission may, after a preliminary inquiry pursuant to paragraph (1) of subsection (c) of section 8, suspend the certification of any officer who is arrested, charged or indicted for a misdemeanor, if the commission determines that the crime affects the fitness of the officer to serve as a law enforcement officer.

(4) The commission may, pending preliminary inquiry pursuant to paragraph (1) of subsection (c) of section 8, suspend the certification of any officer if the commission determines that the suspension is in the best interest of the health, safety or welfare of the public.

(5) A suspension order of the commission issued pursuant to this subsection shall continue in effect until issuance of the final decision of the commission or until revoked by the commission.

(b) The commission shall administratively suspend the certification of an officer who fails to complete in-service training requirements of the commission within 90 days of the deadline imposed by the commission; provided, that the commission may promulgate reasonable exemptions to this subsection, including, but not limited to, exemptions for: (1) injury or physical disability; (2) a leave of absence; or (3) other documented hardship. The commission shall reinstate the certification of an officer suspended pursuant to this subsection upon completion of the in-service training requirements of the commission.

(c) The commission shall administratively suspend the certification of an officer with a duty to report information to the commission pursuant to section 8 who fails to report such information. The commission shall reinstate the certificate of an officer suspended pursuant to this subsection upon completion of said report.

(d) A law enforcement officer whose certification is suspended by the commission pursuant to subsection (a), subsection (b) or subsection (c) shall be entitled to a hearing before a commissioner within 15 days. The terms of employment of a law enforcement officer whose certification is suspended by the commission pursuant to subsection (a), subsection (b) or subsection (c) shall continue to be subject to the provisions of chapter 31 and any applicable collective bargaining agreement to which the law enforcement officer is a beneficiary.

Section 10. (a) The commission shall, after a hearing, revoke an officer’s certification if the commission finds by clear and convincing evidence that:-

(i) the officer is convicted of a felony;

(ii) the certification was issued as a result of administrative error;

(iii) the certification was obtained through misrepresentation or fraud;

(iv) the officer falsified any document in order to obtain or renew certification;

(v) the officer has had a certification or other authorization revoked by another jurisdiction;

(vi) the officer is terminated by their appointing agency, and any appeal of said termination is completed, based upon intentional conduct performed under the color of office to: obtain false confessions; make a false arrest; create or use falsified evidence, including false testimony or destroying evidence to create a false impression; engage in conduct that would constitute a hate crime, as defined in section 32 of chapter 22C; or directly or indirectly receive a reward, gift or gratuity on account of their official services;

(vii) the officer has been convicted of submitting false timesheets in violation of section 85BB of chapter 231;

(viii) the officer knowingly files a written police report containing a false statement or commits perjury, as defined in section 1 of chapter 268;

(ix)  the officer tampers with a record for use in an official proceeding, as defined in section 13E of chapter 268;

(x) the officer used force in violation of section 14;

(xi) the officer used excessive use of force resulting in death or serious bodily injury;

(xii) the officer used a chokehold in violation of section 14;

(xiii) the officer engaged in conduct that would constitute a hate crime, as defined in section 32 of chapter 22C;

(xiv) the officer engaged in the intimidation of a witness, as defined in section 13B of chapter 268;

(xv) the officer failed to intervene, or attempt to intervene, to prevent another officer from engaging in prohibited conduct or behavior, including but not limited to excessive or prohibited force in violation of section 15;

(xvi) the officer is not fit for duty as an officer and the officer is dangerous to the public, as determined by the commission.

(b) The commission may, after a hearing, suspend or revoke an officer’s certification if the commission finds by clear and convincing evidence that the officer:-

(i)has been convicted of any misdemeanor;

(ii)was biased on the basis of race, ethnicity, sex, gender identity, sexual orientation, religion, mental or physical disability, immigration status or socioeconomic or professional level in their conduct;

(iii)has a pattern of unprofessional police conduct that commission believes may escalate;

(iv)was suspended or terminated by their appointing agency for disciplinary reasons, and any appeal of said suspension or termination is completed; or

(v)has repeated sustained internal affairs complaints, for the same or different offenses.

(c) The commission may reinstate the certificate of an officer suspended pursuant to subsection (b) at the expiration of the suspension, if the commission finds that all conditions of the suspension were met.

(d) The commission may, after a hearing, order retraining for any officer if the commission finds substantial evidence that the officer:-

(i) failed to comply with this chapter or commission regulations, reporting requirements or training requirements;

(ii) was biased on the basis of race, ethnicity, sex, gender identity, sexual orientation, religion, mental or physical disability, immigration status or socioeconomic or professional level in their conduct;

(iii) used excessive force;

(iv) failed to respond an incident according to established procedure;

(v) has a pattern of unprofessional police conduct;

(vi) was untruthful, except for a statement or action that mandates revocation pursuant to subsection (a);

(vii) was suspended or terminated by their appointing agency for disciplinary reasons, except those reasons which mandate revocation pursuant to subsection (a);

(viii) fails to intervene to prevent another officer from engaging in prohibited conduct or behavior, except a failure to intervene in conduct that mandates revocation pursuant to subsection (a); or

(ix) would benefit in their job performance if retrained.

(e) The commission shall immediately notify the officer and the head of the appointing agency of the officer who is decertified, suspended or ordered to undergo retraining of the order.

(f) The commission shall conduct preliminary inquiries, revocation and suspension proceedings and hearings, and promulgate regulations for such proceedings and hearings, pursuant to sections 1, 8 and 10 through 14, inclusive, of chapter 30A. Any decision of the commission relative to a preliminary inquiry, revocation and suspension proceeding shall be appealable pursuant to chapter 30A. No adverse action taken against a certification by the commission pursuant to this section shall be appealable to the civil service commission established under chapter 31. No employment action taken by an appointing authority that results from a revocation by the commission pursuant to subsection (a) shall be appealable to the civil service commission established under chapter 31. The commission shall not institute a revocation or suspension hearing pursuant to section 10 in any case where the officer’s appointing agency has disciplined or terminated the officer until the discipline or termination is final. This limitation shall not impact the commission’s authority to suspend a certification pursuant to section 9.

And moves to further amend the bill by adding the following section:

SECTION 84A. There shall be, pursuant to section 2A of chapter 4, a special legislative commission on emergency hospitalizations pursuant to subsection (a) of section 12 of chapter 123 of the General Laws. The commission shall: (i) study how often emergency hospitalizations are used by law enforcement professionals; (ii) examine the impact of emergency hospitalizations on law enforcement resources; (iii) create best practices for coordination of services for hospitalized individuals by law enforcement and medical professionals; and (iv) determine how to reduce police interactions with individuals frequently subject to emergency hospitalization.

(b) The commission shall consist of 11 members: the commissioner of mental health or a designee; the secretary of public safety and security or a designee; the executive director of the mental health legal advisors committee established in section 34E of chapter 221 of the General Laws or a designee; 2 law enforcement officers, as defined in section 1 of chapter 6E of the General Laws, to be appointed by the speaker of the house of representatives, of whom at least 1 shall reside in a gateway municipality as defined in section 3A of chapter 23A of the General Laws; 2 clinical social workers to be appointed by the president of the senate, of whom at least 1 shall reside in a gateway municipality, as defined in said section 3A of said chapter 23A; the president of the Massachusetts Medical Society or a designee; the president of the Massachusetts Nurses Association or a designee; the president of the Massachusetts Chiefs of Police Association Incorporated or a designee; and the president of the Massachusetts Coalitions of Police Inc. or a designee.

(c) The commission shall conduct a thorough review of the policies and procedures related to emergency hospitalizations pursuant to subsection (a) of section 12 of chapter 123 of the General Laws. The goals of the special commission shall be to: (i) develop strategies that reduce the amount of police resources and police interactions with individuals hospitalized pursuant to said subsection (a) of said section 12 of said chapter 123; (ii) better determine how law enforcement and medical professionals can coordinate services to advance the shared goals of public safety and public health in the commonwealth; and (iii) make recommendations, including but not limited to policy or legislative changes, related to emergency hospitalizations.

(d) The commission shall submit its report and recommendations, together with drafts of legislation to carry its recommendations into effect, by filing the same with the clerks of the house of representatives and the senate not later than March 31, 2021.