25 LC 56 0365S
House Bill 288 (COMMITTEE SUBSTITUTE)
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 1 of Chapter 18 of Title 15 of the Official Code of Georgia Annotated,1
relating to prosecuting attorneys, so as to require notice by prosecuting attorneys that intend2
to question the credibility of a peace officer and place the name of such officer on a Giglio3
list; to authorize requests for reconsideration of such action; to provide for the development4
of policies and procedures by the Prosecuting Attorneys' Council of the State of Georgia; 5
to provide for immunity; to provide for definitions; to amend Chapter 8 of Title 35 of the6
Official Code of Georgia Annotated, relating to employment and training of peace officers,7
so as to provide for review by the Georgia Peace Officer Standards and Training Council of8
placement of the name of a peace officer on a Giglio list; to provide for notice; to provide9
standards for determination of credibility of such placement; to restrict the use of information10
relating to a Giglio list for employment purposes in certain instances; to provide for11
definitions; to amend Code Section 50-18-72 of the Official Code of Georgia Annotated,12
relating to when public disclosure not required, so as to exempt records relative to Giglio lists13
from public disclosure; to provide for related matters; to repeal conflicting laws; and for14
other purposes.15
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:16
SECTION 1.17
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Article 1 of Chapter 18 of Title 15 of the Official Code of Georgia Annotated, relating to18
prosecuting attorneys, is amended by adding a new Code section to read as follows:19
"15-18-33.20
(a) As used in this Code section, the term:21
(1) 'Affected peace officer' shall have the same meaning as set forth in Code Section22
35-8-2.23
(2) 'Giglio list' shall have the same meaning as set forth in Code Section 35-8-2.24
(b) Upon the placement of the name of a peace officer on a Giglio list by a prosecuting25
attorney, such prosecuting attorney shall send written notice of the intent to place the name26
of a peace officer on such list by registered or certified mail or statutory overnight delivery27
to the last known address of the employer of the affected peace officer and the Georgia28
Peace Officer Standards and Training Council. Such notice shall include:29
(1) The factual basis for the prosecuting attorney's decision to place the name of the30
peace officer on a Giglio list:31
(2) A statement informing the affected peace officer and his or her employing agency of32
the right to request relevant materials from the prosecuting attorney;33
(3) A statement informing the affected peace officer and his or her employing agency of34
the right to provide supplemental information to the prosecuting attorney; and35
(4) A statement informing the affected peace officer and his or her employing agency of36
the right to request reconsideration by the prosecuting attorney of the placement of such37
peace officer on a Giglio list.38
(c) An affected peace officer or his or her employing agency shall be authorized to submit39
a request for reconsideration on the decision to place the name of a peace officer on a40
Giglio list no later than 30 days after receipt of notice by such peace officer's employing41
agency pursuant to subsection (b) of this Code section. Upon receipt of a request for42
reconsideration pursuant to this subsection, the prosecuting attorney shall promptly review43
such request and either remove the name of the affected peace officer from the Giglio list44
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or deny the request for reconsideration and keep the name of the affected peace officer on45
the Giglio list. Any such denial shall be in writing and include the specific reasons for such46
decision. If no request for reconsideration pursuant to this subsection is submitted by an47
affected peace officer or his or her employing agency, the name of the affected peace48
officer shall remain on the Giglio list unless and until the prosecuting attorney removes49
such name from the Giglio list due to receipt of material information that was unknown or50
unavailable at the time of the initial decision or when any investigation warrants removal51
in the opinion of the prosecuting attorney.52
(d) When a prosecuting attorney makes a determination to remove an affected peace53
officer's name from a Giglio list, such prosecuting attorney shall provide notice of such54
removal to the employing agency of the affected peace officer and the Georgia Peace55
Officer Standards and Training Council within 14 days of the removal in the same manner56
as provided by subsection (b) of this Code section.57
(e) The Prosecuting Attorneys' Council of the State of Georgia shall develop policies and58
procedures for the purposes of this Code section, which shall include placement and59
removal of the name of an affected peace officer on a Giglio list, the reconsideration60
process, and notice requirements. Any prosecuting attorney's office that maintains a Giglio61
list shall adopt the policies and procedures established pursuant to this subsection.62
(f) A prosecuting attorney shall be authorized to use an affected peace officer's inclusion63
on a Giglio list when making charging decisions related to a case and shall disclose to64
defense counsel or a defendant in any criminal case as required by law the fact of and basis65
for inclusion of an affected officer on such list including any notice or relevant materials66
as provided in subsection (b) of this Code section.67
(g) A prosecuting attorney shall be immune from civil liability that might otherwise incur68
or be imposed for placement of the name of a peace officer on a Giglio list unless the69
affected peace officer demonstrates that his or her inclusion on such a list was done with70
actual malice or with actual intent to cause injury to the affected peace officer.71
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(h) Nothing in this Code section shall be construed to modify federal law or binding court72
precedent relating to disclosure duties of a prosecuting attorney in criminal prosecutions."73
SECTION 2.74
Chapter 8 of Title 35 of the Official Code of Georgia Annotated, relating to employment and75
training of peace officers, is amended in Code Section 35-8-2, relating to definitions, by76
adding two new paragraphs to read as follows:77
"(.1) 'Affected peace officer' means a peace officer whose name is listed on a Giglio list."78
"(5.01) 'Giglio list' means a list of names compiled and maintained by a prosecuting79
attorney for purposes of compliance with the United States Constitution or ethical80
standards relative to witness credibility and required disclosure of certain evidence to81
defense counsel."82
SECTION 3.83
Said chapter is further amended in Code Section 35-8-7, relating to powers and duties of the84
Georgia Peace Officer Standards and Training Council generally, by adding a new paragraph85
to read as follows:86
"(14.1) Upon notice from a prosecuting attorney, to review the factual basis for the87
inclusion of any affected peace officer on a Giglio list;"88
SECTION 4.89
Said chapter is further amended in Code Section 35-8-7.1, relating to authority of council to90
refuse certificate to applicant or to discipline council certified officer or exempt officer,91
grounds, restoration of certificate, emergency suspension of certification, notice of92
investigation, and retention of records, by revising subsections (e) through (g) and by adding93
a new subsection to read as follows:94
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"(e)(1) Upon receipt of notice from a prosecuting attorney that the name of a peace95
officer has been placed on a Giglio list, the council shall initiate a review of the factual96
basis provided in such notice and notify the affected peace officer and the head of the law97
enforcement agency that employs such affected peace officer of such review. It shall be98
sufficient to identify the affected peace officer, state that review of the affected peace99
officer's name on a Giglio list has been initiated, and identify the prosecuting attorney100
who sent such notice.101
(2) In reviewing the inclusion of the name of an affected peace officer on a Giglio list102
pursuant to this subsection, the council shall consider:103
(A) Any bias or injury against a specific defendant alleged by the prosecuting attorney104
to have occurred when the prosecuting attorney's notice relates to a specific criminal105
prosecution;106
(B) Allegations or instances of previous misleading, deceptive, untrue, or fraudulent107
statements made by the affected peace officer to the prosecuting attorney or while108
serving as a witness for the prosecuting attorney;109
(C) Whether the affected peace officer has pleaded guilty or been convicted, by final110
judgment and when all appeals have been exhausted, of an offense punishable as false111
swearing within the meaning of Code Section 16-10-71 or an offense of perjury112
pursuant to Code Section 16-10-70; and113
(D) Any allegations of acts or omissions which would otherwise subject the affected114
peace officer to discipline pursuant to subsection (a) of this Code section.115
(3) Upon completion of review pursuant to this subsection, the council shall notify the116
affected peace officer and the employing agency of the affected peace officer of its117
determination concerning the factual basis asserted by the prosecuting attorney. If the118
council determines from its review that discipline of the affected peace officer is119
warranted, notice sent pursuant to this paragraph shall include such information. If the120
council determines that discipline of the affected peace officer is not warranted, such121
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matter shall be administratively dismissed, the affected peace officer's public status shall122
not reflect the occurrence of such investigation, and notice of such action shall be123
delivered to the head of the employing agency, the affected peace officer, and the124
prosecuting attorney who placed the affected peace officer on a Giglio list. No peace125
officer shall be suspended, revoked, or otherwise sanctioned solely based upon the126
placement of his or her name on a Giglio list.127
(f) Upon initiating an investigation of an a peace officer for possible disciplinary action128
or upon disciplining an a peace officer pursuant to this Code section, the council shall129
notify the head of the law enforcement agency that employs such peace officer of the130
investigation or disciplinary action. In the case of an investigation, it It shall be sufficient131
for such notice to identify the peace officer and state that a disciplinary investigation has132
been opened. Notice of the initiation of an investigation shall be sent by priority mail. If133
the investigation is completed without any further action, notice of the termination of such134
investigation shall also be provided to the head of the employing agency. In the case of135
disciplinary action, the notice shall identify the officer and state the nature of the136
disciplinary action taken. The notice of disposition shall be sent only after the action of the137
council is deemed final. Such notice shall be sent by priority mail.138
(f)(g) If the certification of an a peace officer is suspended or revoked by either the139
executive director or council pursuant to this Code section, then the council shall notify the140
head of the law enforcement agency that employs the peace officer; the district attorney of141
the judicial circuit in which such law enforcement agency is located; and the solicitor of142
the state court, if any, of the county in which such law enforcement agency is located. It143
shall be sufficient for this notice to identify the peace officer and state the length of time,144
if known, that the peace officer will not have powers of arrest. Such notice shall be sent145
by priority mail.146
(h) Any notice required by this Code section shall be sent by certified mail or certificate147
of mailing. As used in this subsection, the term 'certificate of mailing' means a delivery148
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method utilized by the United States Postal Service which provides evidence that an item149
has been sent and the date such item was accepted.150
(g)(i) Notwithstanding Article 5 of Chapter 18 of Title 50, records of an investigation of151
an a peace officer by the council, including, but not limited to, records used to investigate152
complaints against an a peace officer and polygraph case files containing official polygraph153
reports, shall be retained for 30 years following the date that such investigation is deemed154
concluded by the council and then such records may be destroyed; provided, however, that155
the council shall have the authority to destroy such records prior to such 30 years where156
such peace officer is deceased and no action upon the complaint was taken by the council157
beyond the council's initial intake of such complaint."158
SECTION 5.159
Said chapter is further amended in Code Section 35-8-7.2, relating to administrative160
procedure, hearings, and review, by revising subsection (a) as follows:161
"(a) Except as otherwise provided in subsection (b) of this Code section, proceedings of162
the council in the exercise of its authority to issue any certificate, conduct a review of the163
inclusion of an affected peace officer on a Giglio list, or discipline any peace officer under164
the terms of this chapter shall be conducted in accordance with Chapter 13 of Title 50, the165
'Georgia Administrative Procedure Act.' In all such proceedings the council shall have166
authority to compel the attendance of witnesses and the production of any book, writing,167
or document upon the issuance of a subpoena therefor. In any hearing in which the fitness168
of a peace officer or applicant is in question, the council may exclude all persons from its169
deliberation of the appropriate action and may, when it deems necessary, speak to the peace170
officer or applicant in private. All final determinations, findings, and conclusions of the171
council under this chapter are final and conclusive decisions of the matters involved."172
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SECTION 6.173
Said chapter is further amended by revising Code Section 35-8-8, relating to requirements174
for appointment or certification of persons as peace officers and preemployment attendance175
at basic training course and "employment related information" defined, and by redesignating176
the current provisions of subsection (c) of said Code section as a new Code section to read177
as follows:178
"35-8-8.179
(a) Any person employed or certified as a peace officer shall:180
(1) Be at least 18 years of age;181
(2) Be a citizen of the United States;182
(3) Have a high school diploma or its recognized equivalent;183
(4) Not have been convicted by any state or by the federal government of any crime the184
punishment for which could have been imprisonment in the federal or state prison or185
institution nor have been convicted of sufficient misdemeanors to establish a pattern of186
disregard for the law, provided that, for the purposes of this paragraph, violations of187
traffic laws and other offenses involving the operation of motor vehicles when the188
applicant has received a pardon shall not be considered;189
(5) Be fingerprinted for the purpose of conducting a fingerprint based search at the190
Georgia Bureau of Investigation and the Federal Bureau of Investigation to determine the191
existence of any criminal record;192
(6) Possess good moral character as determined by investigation under procedure193
established by the council and fully cooperate during the course of such investigation;194
(7) Be found, after examination by a licensed physician or surgeon, to be free from any195
physical, emotional, or mental conditions which might adversely affect his or her exercise196
of the powers or duties of a peace officer; and197
(8) Successfully complete a job related academy entrance examination provided for and198
administered by the council in conformity with state and federal law. Such examination199
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shall be administered prior to entrance to the basic course provided for in Code Sections200
35-8-9 and 35-8-11. The council may change or modify such examination and shall201
establish the criteria for determining satisfactory performance on such examination. The202
provisions of this paragraph establish only the minimum requirements of academy203
entrance examinations for peace officer candidates in this state; each law enforcement204
unit agency is encouraged to provide such additional requirements and any205
preemployment examination as it deems necessary and appropriate. Any person with a206
degree from a postsecondary institution accredited by a regional accrediting agency207
recognized by the United States Department of Education shall be deemed to have met208
the requirements of this paragraph.209
(b) Any person authorized to attend the basic training course prior to employment as a210
peace officer shall meet the requirements of subsection (a) of this Code section.211
35-8-8.1.212
(c)(1) For purposes of this subsection (a) As used in this Code section, the term213
'employment related information' means written information contained in a prior214
employer's records or personnel files that relates to an applicant's, candidate's, or peace215
officer's performance or behavior while employed by such prior employer, including216
performance evaluations, records of disciplinary actions, and eligibility for rehire. Such217
term shall not include information prohibited from disclosure by federal law or any218
document not in the possession of the employer at the time a request for such information219
is received.220
(b)(1)(2) Where an investigation is conducted for the purpose of hiring, certifying, or221
continuing the certification of a peace officer, an employer shall disclose employment222
related information to the investigating law enforcement agency upon receiving a written223
request from such agency. Disclosure shall only be required under this subsection if the224
law enforcement agency's request is accompanied by a copy of a signed, notarized225
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statement from the applicant, candidate, or peace officer releasing and holding harmless226
such employer from any and all liability for disclosing complete and accurate information227
to the law enforcement agency.228
(3)(2) An employer may charge a reasonable fee to cover actual costs incurred in229
copying and furnishing documents pursuant to this subsection to a requesting law230
enforcement agency, including retrieving and redacting costs, provided such amount shall231
not exceed $25.00 or 25ยข per page, whichever is greater. No employer shall be required232
to prepare or create any document not already in the employer's possession at the time a233
request for employment related information is received. Any employment related234
information provided pursuant to this subsection that is not subject to public disclosure235
while in the possession of a prior employer shall continue to be privileged and protected236
from public disclosure as a record of the requesting law enforcement agency.237
(4)(3) No employer or law enforcement agency shall be subject to any civil liability for238
any cause of action by virtue of disclosing complete and accurate information to a law239
enforcement agency in good faith and without malice pursuant to this subsection. In any240
such cause of action, malice or bad faith shall only be demonstrated by clear and241
convincing evidence. Nothing contained in this subsection shall be construed so as to242
affect or limit rights or remedies provided by federal law.243
(5)(4) Before taking final action on an application for employment based, in whole or in244
part, on any unfavorable employment related information received from a previous245
employer, a law enforcement agency shall inform the applicant, candidate, or peace246
officer that it has received such employment related information and that the applicant,247
candidate, or peace officer may inspect and respond in writing to such information. Upon248
the applicant's, candidate's, or peace officer's request, the law enforcement agency shall249
allow him or her to inspect the employment related information and to submit a written250
response to such information. The request for inspection shall be made within five251
business days from the date that the applicant, candidate, or peace officer is notified of252
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the law enforcement agency's receipt of such employment related information. The253
inspection shall occur not later than ten business days after said notification. Any254
response to the employment related information shall be made by the applicant,255
candidate, or peace officer not later than three business days after his or her inspection.256
(6)(5) Nothing contained in this Code section subsection shall be construed so as to257
require any person to provide self-incriminating information or otherwise to compel any258
person to act in violation of his or her right guaranteed by the Fifth Amendment of the259
United States Constitution and Article I, Section I, Paragraph XVI of the Georgia260
Constitution. It shall not be a violation of this Code section subsection for a person to fail261
to provide requested information based on a claim that such information is262
self-incriminating provided that notice of such claim is served in lieu of the requested263
information. An action against such person to require disclosure on the grounds that the264
claim of self-incrimination is not substantiated may be brought in the superior court of265
the county of such party's residence or where such information is located.266
(c) A law enforcement agency that receives notice from a prosecuting attorney that the267
name of an affected peace officer has been placed on a Giglio list shall forward a copy of268
such notice to the council within 30 days of receipt for review pursuant to Code Section269
35-8-7.1."270
SECTION 7.271
Said chapter is further amended by revising Code Section 35-8-14, which is designated as272
reserved, as follows:273
"35-8-14.274
(a) Upon receipt of notice from a prosecuting attorney that a peace officer employed by275
the law enforcement agency has been placed on a Giglio list, such agency shall provide a276
copy of such notice to the affected peace officer in as timely manner as possible, not to277
exceed three days from the date of receipt. If the affected peace officer is no longer278
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employed by the law enforcement agency that receives such notice, the law enforcement279
agency shall forward such notice to be served in person or delivered by certified mail or280
statutory overnight delivery, return receipt requested, to the last known address of the281
affected peace officer.282
(b) A law enforcement agency that employs an affected peace officer shall not demote,283
suspend, discharge, impose discipline, or take adverse employment action upon an affected284
peace officer solely based upon the placement of such peace officer's name on a Giglio list.285
(c) A law enforcement agency that employs an affected peace officer shall be authorized286
to demote, suspend, discharge, impose discipline, or take adverse employment action upon287
an affected peace officer when:288
(1) An internal investigation establishes, based upon a preponderance of the evidence,289
that a factual basis exists for the reason provided by the prosecuting attorney for290
placement of the affected peace officer on a Giglio list; or291
(2) The council has imposed discipline upon the affected peace officer for the conduct292
identified by the prosecuting attorney which was the basis for placement of such officer293
on the Giglio list Reserved."294
SECTION 8.295
Code Section 50-18-72 of the Official Code of Georgia Annotated, relating to when public296
disclosure not required, is amended by adding a new paragraph to subsection (a) to read as297
follows:298
"(4.1) Records relating to Giglio lists, as such term is defined in Code Section 35-8-2;"299
SECTION 9.300
All laws and parts of laws in conflict with this Act are repealed.301
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