25 LC 39 4532
House Bill 288
By: Representatives Gaines of the 120
th
, Reeves of the 99
th
, Crowe of the 118
th
, Lumsden of
the 12
th
, Clifton of the 131
st
, and others
A BILL TO BE ENTITLED
AN ACT
To amend Article 2 of Chapter 6 of Title 5, Chapter 4 of Title 9, Article 1 of Chapter 18 of
1
Title 15, and Chapter 16 of Title 17 of the Official Code of Georgia Annotated, relating to2
appellate practice, declaratory judgments, prosecuting attorneys, and criminal trials,3
respectively, so as to provide for declaratory judgments in instances involving accusations4
made by a prosecuting attorney regarding the credibility of a peace officer; to provide for5
appellate rights; to provide for notice by a prosecuting attorney intending to question the6
credibility of a peace officer; to provide for court review and approval of information relating7
to the credibility of a witness who is a peace officer prior to disclosure by a prosecuting8
attorney to a defendant; to provide for notice and hearing; to provide for remittal of certain9
findings to the Georgia Peace Officer Standards and Training Council; to provide for rights10
of the peace officer in relation to such hearing; to amend Chapter 8 of Title 35 of the Official11
Code of Georgia Annotated, relating to employment and training of peace officers, so as to12
provide for review by the Georgia Peace Officer Standards and Training Council of13
accusations of peace officer impairment as a witness; to provide for notice; to provide14
standards for determination of credibility of accusations; to provide hearing rights; to restrict15
the use of information relating to the credibility of a witness who is a peace officer for16
employment purposes in certain instances; to provide for definitions; to amend Part 1 of17
Article 4 of Chapter 12 of Title 15 of the Official Code of Georgia Annotated, relating to18
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general provisions relative to grand juries, so as to provide for conforming changes; to
19
provide for related matters; to repeal conflicting laws; and for other purposes.20
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:21
SECTION 1.22
Article 2 of Chapter 6 of Title 5 of the Official Code of Georgia Annotated, relating to23
appellate practice, is amended in subsection (a) of Code Section 5-6-35, relating to cases24
requiring application for appeal, requirements for application, exhibits, response, issuance25
of appellate court order regarding appeal, procedure, supersedeas, jurisdiction of appeal, and26
appeals involving nonmonetary judgments in custody cases, by striking "and" at the end of27
paragraph (12), by replacing the period at the end of paragraph (13) with "; and", and by28
adding a new paragraph to read as follows:29
"(14) Appeals from cases involving the credibility of a peace officer to serve as a witness
30
pursuant to an impairment letter as such term is defined in Code Section 35-8-2 or31
disclosures relative to the credibility of a peace officer pursuant to Code Section32
17-16-1.1."33
SECTION 2.34
Chapter 4 of Title 9 of the Official Code of Georgia Annotated, relating to declaratory35
judgments, is amended Code Section 9-4-2, relating to declaratory judgements authorized36
and force and effect, by revising subsection (c) and adding a new subsection to read as37
follows:38
"(c) In addition to the cases specified in subsection (a) of this Code section, the respective39
superior courts of this state shall have power, upon petition or other appropriate pleading,40
to declare rights and other legal relations of any peace officer involving accusations made41
by a prosecuting attorney within an impairment letter, as such term is defined in Code42
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Section 35-8-2, and that appears to the court to require that the declaration should be made43
in the interest of justice. Such declaration shall have the force and effect of a final44
judgment or decree and be reviewable as such.45
(d) Relief by declaratory judgment shall be available, notwithstanding the fact that the46
complaining party has any other adequate legal or equitable remedy or remedies."47
SECTION 3.48
Article 1 of Chapter 18 of Title 15 of the Official Code of Georgia Annotated, relating to49
prosecuting attorneys, is amended by adding a new Code section to read as follows:50
"15-18-33.51
(a) As used in this Code section, the term 'impairment letter' shall have the same meaning52
as set forth in Code Section 35-8-2.53
(b) A prosecuting attorney shall notify a peace officer who is the subject of an impairment54
letter in writing by registered or certified mail or statutory overnight delivery to the last55
known address of the peace officer of the prosecuting attorney's intent to send such letter. 56
Such notice shall include the actions the prosecuting attorney intends to take relative to57
such peace officer or any recommendation of the prosecuting attorney relative to such 58
peace officer's employment. Such notice shall further include the specific basis for the59
prosecuting attorney's decisions or recommendations, including:60
(1) The location and description of all evidence relating to the case involving the peace61
officer and the impairment letter in question;62
(2) A list of witnesses relevant to the impairment letter in question, including names,63
contact information, last known addresses, criminal history, and dates of birth;64
(3) The existence of any and all writings, recordings, video, or other material evidence65
as it relates to the impairment letter in question;66
(4) The name and contact information of the prosecuting attorney intending to send the67
impairment letter; and68
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(5) The date on which a determination to send the impairment letter in question was69
made."70
SECTION 4.71
Chapter 16 of Title 17 of the Official Code of Georgia Annotated, relating to discovery in72
criminal trials, is amended in Article 1, relating to definitions and felony cases, by adding a73
new Code section to read as follows:74
"17-16-1.1.75
(a) For purposes of this Code section, the term:76
(1) 'Council' means the Georgia Peace Officer Standards and Training Council.77
(2) 'Peace officer' shall have the same meaning as set forth in Code Section 35-8-2.78
(b) Any disclosure of information by a prosecuting attorney pursuant to this chapter which79
relates to the credibility of a witness who is a peace officer shall be submitted to the trial80
court for approval prior to disclosure; provided, however, that any matter involving a final81
decision of the council against a peace officer pursuant to Chapter 8 of Title 35, the82
'Georgia Peace Officer Standards and Training Act,' shall not be subject to such approval. 83
No later than 20 days prior to trial, the prosecuting attorney shall send written notice by84
regular mail to any peace officer of his or her intention to disclose information to a85
defendant regarding the credibility of such officer as a witness and that such officer is86
entitled to a hearing before the trial court regarding such disclosure. The trial court shall87
hold an evidentiary hearing to determine whether the proposed disclosure relating to the88
credibility of the peace officer shall be made available to the defendant. Such hearing shall89
be held at least ten days prior to trial.90
(c) If, after a hearing held pursuant to subsection (b) of this Code section, a trial court91
finds, by a preponderance of the evidence, that any proposed disclosure of information92
relating to the credibility of a peace officer as a witness to be based upon unsubstantiated93
claims of untruthfulness or unfounded allegations of bias, such court shall order the94
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prosecuting attorney to suppress such disclosure. Upon a finding of any proposed95
disclosure relating to the credibility of a peace officer to serve as a witness to be proper,96
the trial court shall forward a copy of such finding to the council.97
(d) A peace officer who is the subject of a hearing held pursuant to subsection (b) of this98
Code section shall have the right to:99
(1) Representation by an attorney of his or her choosing at his or her own expense;100
(2) Subpoena documents and witnesses; and101
(3) Obtain a transcript of such hearing at the expense of the prosecuting attorney.102
(e) A peace officer shall have the right to obtain review of a final determination made103
pursuant to this Code section pursuant to the provisions of Code Section 5-6-35."104
SECTION 5.105
Said chapter is further amended by redesignating Code Sections 17-16-2 through 17-16-10106
as Article 2 and Code Sections 17-16-20 through 17-16-23 as Article 3.107
SECTION 6.108
Chapter 8 of Title 35 of the Official Code of Georgia Annotated, relating to employment and109
training of peace officers, is amended in Code Section 35-8-2, relating to definitions, by110
adding a new paragraph to read as follows:111
"(5.01) 'Impairment letter' means written information submitted to a law enforcement112
agency by a prosecuting attorney relating to the credibility of a peace officer employed113
by such agency to serve as a witness at trial or an intent by a prosecuting attorney to114
dismiss criminal charges due to the involvement of a peace officer employed by such115
agency."116
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SECTION 7.
117
Said chapter is further amended in Code Section 35-8-7, relating to powers and duties of the118
Georgia Peace Officer Standards and Training Council generally, by adding a new paragraph119
to read as follows:120
"(14.1) To review and provide a determination upon the validity of an impairment letter;
"121
SECTION 8.122
Said chapter is further amended in Code Section 35-8-7.1, relating to authority of council to123
refuse certificate to applicant or to discipline council certified officer or exempt officer,124
grounds, restoration of certificate, emergency suspension of certification, notice of125
investigation, and retention of records, by revising subsections (e) through (g) and by adding126
a new subsection to read as follows:127
"(e)(1) Upon receipt of an impairment letter from a law enforcement agency, the council128
shall initiate a review of the validity of any claim in such letter and notify the peace129
officer of such review. It shall be sufficient to identify the officer, state that review of an130
impairment letter has been initiated, and identify the prosecuting attorney that submitted131
the impairment letter.132
(2) In reviewing and making a determination regarding an impairment letter, the council133
shall consider:134
(A) Any bias alleged by the prosecuting attorney against the defendant or any potential135
witnesses when the impairment letter relates to a specific case;136
(B) Allegations or instances of previous misleading, deceptive, untrue, or fraudulent137
statements made by the peace officer to the prosecuting attorney or while serving as a138
witness for the prosecuting attorney;139
(C) Whether the peace officer has pleaded guilty or been convicted by final judgment,140
and all appeals have been exhausted, of a crime punishable as a false swearing under141
Code Section 16-10-71; and142
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(D) Any allegations of acts or omissions which would otherwise subject the peace143
officer to discipline pursuant to subsection (a) of this Code section.144
(3) Upon completion of a review of an impairment letter, the council shall notify the145
peace officer identified in the impairment letter and the head of the law enforcement146
agency that employs such officer of its determination regarding the validity of the147
information asserted by the prosecuting attorney. If the council determines from the148
review of the impairment letter that discipline of the peace officer is warranted, notice149
sent pursuant to this paragraph shall include such information.150
(f) Upon initiating an investigation of an officer for possible disciplinary action or upon151
disciplining an officer pursuant to this Code section, the council shall notify the head of the152
law enforcement agency that employs such officer of the investigation or disciplinary153
action. In the case of an investigation, it shall be sufficient to identify the officer and state154
that a disciplinary investigation has been opened. Notice of the initiation of an155
investigation shall be sent by priority mail. If the investigation is completed without any156
further action, notice of the termination of such investigation shall also be provided to the157
head of the employing agency. In the case of disciplinary action, the notice shall identify158
the officer and state the nature of the disciplinary action taken. The notice of disposition159
shall be sent only after the action of the council is deemed final. Such notice shall be sent160
by priority mail.161
(f)(g) If the certification of an officer is suspended or revoked by either the executive162
director or council pursuant to this Code section, then the council shall notify the head of163
the law enforcement agency that employs the officer; the district attorney of the judicial164
circuit in which such law enforcement agency is located; and the solicitor of the state court,165
if any, of the county in which such law enforcement agency is located. It shall be sufficient166
for this notice to identify the officer and state the length of time, if known, that the officer167
will not have powers of arrest. Such notice shall be sent by priority mail.168
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(h) Any notice required by this Code section shall be sent by certified mail or certificate169
of mailing. As used in this subsection, the term 'certificate of mailing' means a delivery170
method utilized by the United States Postal Service which provides evidence that an item171
has been sent and the date such item was accepted.172
(g)(i) Notwithstanding Article 5 of Chapter 18 of Title 50, records of an investigation of173
an officer by the council, including, but not limited to, records used to investigate174
complaints against an officer and polygraph case files containing official polygraph reports,175
shall be retained for 30 years following the date that such investigation is deemed176
concluded by the council and then such records may be destroyed; provided, however, that177
the council shall have the authority to destroy such records prior to such 30 years where178
such officer is deceased and no action upon the complaint was taken by the council beyond179
the council's initial intake of such complaint."180
SECTION 9.181
Said chapter is further amended in Code Section 35-8-7.2, relating to administrative182
procedure, hearings, and review, by revising subsection (a) as follows:183
"(a) Except as otherwise provided in subsection (b) of this Code section, proceedings of184
the council in the exercise of its authority to issue any certificate, conduct a review of an185
impairment letter, or discipline any peace officer under the terms of this chapter shall be186
conducted in accordance with Chapter 13 of Title 50, the 'Georgia Administrative187
Procedure Act.' In all such proceedings the council shall have authority to compel the188
attendance of witnesses and the production of any book, writing, or document upon the189
issuance of a subpoena therefor. In any hearing in which the fitness of a peace officer or190
applicant is in question, the council may exclude all persons from its deliberation of the191
appropriate action and may, when it deems necessary, speak to the peace officer or192
applicant in private. All final determinations, findings, and conclusions of the council193
under this chapter are final and conclusive decisions of the matters involved."194
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SECTION 10.
195
Said chapter is further amended by revising Code Section 35-8-8, relating to requirements196
for appointment or certification of persons as peace officers and preemployment attendance197
at basic training course and "employment related information" defined, and by redesignating198
the current provisions of subsection (c) of said Code section as a new Code section to read199
as follows:200
"35-8-8.201
(a) Any person employed or certified as a peace officer shall:202
(1) Be at least 18 years of age;203
(2) Be a citizen of the United States;204
(3) Have a high school diploma or its recognized equivalent;205
(4) Not have been convicted by any state or by the federal government of any crime the206
punishment for which could have been imprisonment in the federal or state prison or207
institution nor have been convicted of sufficient misdemeanors to establish a pattern of208
disregard for the law, provided that, for the purposes of this paragraph, violations of209
traffic laws and other offenses involving the operation of motor vehicles when the210
applicant has received a pardon shall not be considered;211
(5) Be fingerprinted for the purpose of conducting a fingerprint based search at the212
Georgia Bureau of Investigation and the Federal Bureau of Investigation to determine the213
existence of any criminal record;214
(6) Possess good moral character as determined by investigation under procedure215
established by the council and fully cooperate during the course of such investigation;216
(7) Be found, after examination by a licensed physician or surgeon, to be free from any217
physical, emotional, or mental conditions which might adversely affect his or her exercise218
of the powers or duties of a peace officer; and219
(8) Successfully complete a job related academy entrance examination provided for and220
administered by the council in conformity with state and federal law. Such examination221
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shall be administered prior to entrance to the basic course provided for in Code Sections
222
35-8-9 and 35-8-11. The council may change or modify such examination and shall223
establish the criteria for determining satisfactory performance on such examination. The224
provisions of this paragraph establish only the minimum requirements of academy225
entrance examinations for peace officer candidates in this state; each law enforcement226
unit is encouraged to provide such additional requirements and any preemployment227
examination as it deems necessary and appropriate. Any person with a degree from a228
postsecondary institution accredited by a regional accrediting agency recognized by the229
United States Department of Education shall be deemed to have met the requirements of230
this paragraph.231
(b) Any person authorized to attend the basic training course prior to employment as a232
peace officer shall meet the requirements of subsection (a) of this Code section.233
35-8-8.1.
234
(c)(1) For purposes of this subsection (a) As used in this Code section, the term235
'employment related information' means written information contained in a prior236
employer's records or personnel files that relates to an applicant's, candidate's, or peace237
officer's performance or behavior while employed by such prior employer, including238
performance evaluations, records of disciplinary actions, and eligibility for rehire. Such239
term shall not include information prohibited from disclosure by federal law or any240
document not in the possession of the employer at the time a request for such information241
is received.242
(b)(1)(2) Where an investigation is conducted for the purpose of hiring, certifying, or243
continuing the certification of a peace officer, an employer shall disclose employment244
related information to the investigating law enforcement agency upon receiving a written245
request from such agency. Disclosure shall only be required under this subsection if the246
law enforcement agency's request is accompanied by a copy of a signed, notarized247
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statement from the applicant, candidate, or peace officer releasing and holding harmless
248
such employer from any and all liability for disclosing complete and accurate information249
to the law enforcement agency.250
(3)
(2) An employer may charge a reasonable fee to cover actual costs incurred in251
copying and furnishing documents pursuant to this subsection to a requesting law252
enforcement agency, including retrieving and redacting costs, provided such amount shall253
not exceed $25.00 or 25ยข per page, whichever is greater. No employer shall be required254
to prepare or create any document not already in the employer's possession at the time a255
request for employment related information is received. Any employment related256
information provided pursuant to this subsection that is not subject to public disclosure257
while in the possession of a prior employer shall continue to be privileged and protected258
from public disclosure as a record of the requesting law enforcement agency.259
(4)(3) No employer or law enforcement agency shall be subject to any civil liability for260
any cause of action by virtue of disclosing complete and accurate information to a law261
enforcement agency in good faith and without malice pursuant to this subsection. In any262
such cause of action, malice or bad faith shall only be demonstrated by clear and263
convincing evidence. Nothing contained in this subsection shall be construed so as to264
affect or limit rights or remedies provided by federal law.265
(5)(4) Before taking final action on an application for employment based, in whole or in266
part, on any unfavorable employment related information received from a previous267
employer, a law enforcement agency shall inform the applicant, candidate, or peace268
officer that it has received such employment related information and that the applicant,269
candidate, or peace officer may inspect and respond in writing to such information. Upon270
the applicant's, candidate's, or peace officer's request, the law enforcement agency shall271
allow him or her to inspect the employment related information and to submit a written272
response to such information. The request for inspection shall be made within five273
business days from the date that the applicant, candidate, or peace officer is notified of274
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the law enforcement agency's receipt of such employment related information. The
275
inspection shall occur not later than ten business days after said notification. Any276
response to the employment related information shall be made by the applicant,277
candidate, or peace officer not later than three business days after his or her inspection.278
(6)
(5) Nothing contained in this Code section subsection shall be construed so as to279
require any person to provide self-incriminating information or otherwise to compel any280
person to act in violation of his or her right guaranteed by the Fifth Amendment of the281
United States Constitution and Article I, Section I, Paragraph XVI of the Georgia282
Constitution. It shall not be a violation of this Code section subsection for a person to fail283
to provide requested information based on a claim that such information is284
self-incriminating provided that notice of such claim is served in lieu of the requested285
information. An action against such person to require disclosure on the grounds that the286
claim of self-incrimination is not substantiated may be brought in the superior court of287
the county of such party's residence or where such information is located.288
(c) A law enforcement agency that receives an impairment letter shall forward a copy of289
such letter to the council within 30 days of receipt for review pursuant to Code Section290
35-8-7.1. No employer or law enforcement agency shall discharge, suspend, demote, or291
take any other adverse employment action against a peace officer based solely upon the292
receipt of an impairment letter; provided, however, that such prohibition shall not apply to293
an impairment letter which has been reviewed and substantiated by the council."294
SECTION 11.295
Part 1 of Article 4 of Chapter 12 of Title 15 of the Official Code of Georgia Annotated,296
relating to general provisions relative to grand juries, is amended by replacing "Article 1 of297
Chapter 16 of Title 17" with "Article 2 of Chapter 16 of Title 17" wherever the phrase298
appears in Code Section 15-12-71, relating to duties of grand jury, and in Code Section299
15-12-73, relating to exclusion of admissions and communications among grand jurors.300
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SECTION 12.
301
All laws and parts of laws in conflict with this Act are repealed.302
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