25 HB 288/AP
House Bill 288 (AS PASSED HOUSE AND SENATE)
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 Title 15 of the Official Code of Georgia Annotated, relating to courts, so as to
1
require a person qualifying as a candidate for sheriff be a peace officer not under revocation2
by the Georgia Peace Officer Standards and Training Council; to provide for penalties; to3
provide for submission of a form completed by the executive director of such council; to4
provide for an exception; to provide for attestation that any person qualifying for the office5
of sheriff who is not a certified peace officer but holds or has held certain other positions is6
capable of and will obtain such certification after obtaining such office; to require notice by7
prosecuting attorneys that intend to question the credibility of a peace officer and place the8
name of such officer on a Giglio list; to authorize requests for reconsideration of such action;9
to provide for the development of policies and procedures by the Prosecuting Attorneys'10
Council of the State of Georgia; to provide for immunity; to provide for definitions; to11
amend Chapter 8 of Title 35 of the Official Code of Georgia Annotated, relating to12
employment and training of peace officers, so as to provide for review by the Georgia Peace13
Officer Standards and Training Council of placement of the name of a peace officer on a14
Giglio list; to provide for notice; to provide standards for determination of credibility of such15
placement; to restrict the use of information relating to a Giglio list for employment purposes16
in certain instances; to provide for definitions; to amend Code Section 50-18-72 of the17
Official Code of Georgia Annotated, relating to when public disclosure not required, so as18
to exempt records relative to Giglio lists from public disclosure; to provide for conforming19
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changes; to provide for related matters; to provide for an effective date; to repeal conflicting
20
laws; and for other purposes.21
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:22
SECTION 1.23
Title 15 of the Official Code of Georgia Annotated, relating to courts, is amended in Code24
Section 15-16-1, relating to qualification requirements for sheriff and exemptions, by25
revising subparagraph (J) of paragraph (1) and paragraph (2) of subsection (c) and by26
revising subsection (d) as follows:27
"(J) At the time of qualifying as a candidate for the office of sheriff,
Is a registered28
peace officer as provided in Code Section 35-8-10 or is a certified peace officer, as29
defined in Chapter 8 of Title 35, not under revocation by the Georgia Peace Officer30
Standards and Training Council and files with the officer before whom such person31
qualifies a form signed by the executive director of the Georgia Peace Officer Standards32
and Training Council, or his or her designee, that attests and certifies such; provided,33
however, that any person who is not a certified peace officer at the time of qualifying34
as a candidate for the office of sheriff but is a first responder, as such term is defined35
in Code Section 45-25-2, is a retired or honorably discharged member of the United36
States armed forces, or is a former or current local, state, or federal law enforcement37
officer shall swear or affirm before the officer before whom such person has qualified38
to seek the office of sheriff that he or she is capable of and will complete the39
requirements for certification within six months after taking office. Any person such40
first responder, retired or honorably discharged member of the United States armed41
forces, or former or current local, state, or federal law enforcement officer who is not42
a registered or certified peace officer at the time such person assumes the office of43
sheriff shall be required to complete satisfactorily the requirements for certification as44
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a peace officer as provided in Chapter 8 of Title 35 within six months after such person
45
takes office; provided, however, that an extension of the time to complete such46
requirements may be granted by the Georgia Peace Officer Standards and Training47
Council upon the presentation of evidence by a sheriff that he or she was unable to48
complete the basic training course and certification requirements due to illness, injury,49
military service, or other reasons deemed sufficient by such council. The Georgia50
Peace Officer Standards and Training Council shall make every effort to ensure that51
space is available for newly elected sheriffs who are not certified or registered
peace52
officers to attend the course as soon as possible after such persons take office. Such53
council shall notify the appropriate judge of the probate court whenever a newly elected54
sheriff who is not certified fails to become certified as a peace officer pursuant to the55
requirements of this subparagraph.56
(2) Each person offering his or her candidacy for the office of sheriff shall at the time57
such person qualifies, swear or affirm before the officer before whom such person has58
qualified to seek the office of sheriff that he or she meets all of the qualifications required59
by this subsection, except as otherwise provided in subparagraph (J) of paragraph (1) of60
this subsection, and at the time such person qualifies, that he or she has complied or will61
comply with the requirements of subparagraph (G) of paragraph (1) of this subsection no62
later than the close of business on the third business day following the close of such63
qualification period, and that, if applicable, he or she will comply with the requirements64
of subparagraph (J) of paragraph (1) of this subsection within six months of taking office. 65
Any person who knowingly provides false information in executing the affidavit required66
by this paragraph commits the offense of false swearing within the meaning of and67
subject to the penalties prescribed in Code Section 16-10-71 and submission of a false68
document in violation of Code Section 16-10-20."69
"(d) Exemption. The requirements of subparagraphs (c)(1)(D), (c)(1)(E),70
through (c)(1)(F), (c)(1)(H), (c)(1)(I), and (c)(1)(J) of this Code section shall be deemed71
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to have been met by any person who is currently serving as a duly qualified and elected
72
sheriff of one of the several counties of this state."73
SECTION 2.74
Said title is further amended by adding a new Code section to read as follows:75
"15-18-33.
76
(a) As used in this Code section, the term:77
(1) 'Affected peace officer' shall have the same meaning as set forth in Code78
Section 35-8-2.79
(2) 'Giglio list' shall have the same meaning as set forth in Code Section 35-8-2.80
(b) Upon the placement of the name of a peace officer on a Giglio list by a prosecuting81
attorney, such prosecuting attorney shall send written notice of the intent to place the name82
of a peace officer on such list by registered or certified mail or statutory overnight delivery83
to the last known address of the employer of the affected peace officer and the Georgia84
Peace Officer Standards and Training Council. Such notice shall include:85
(1) The factual basis for the prosecuting attorney's decision to place the name of the86
peace officer on a Giglio list:87
(2) A statement informing the affected peace officer and his or her employing agency of88
the right to request relevant materials from the prosecuting attorney;89
(3) A statement informing the affected peace officer and his or her employing agency of90
the right to provide supplemental information to the prosecuting attorney; and91
(4) A statement informing the affected peace officer and his or her employing agency of92
the right to request reconsideration by the prosecuting attorney of the placement of such93
peace officer on a Giglio list.94
(c) An affected peace officer or his or her employing agency shall be authorized to submit95
a request for reconsideration on the decision to place the name of a peace officer on a96
Giglio list no later than 30 days after receipt of notice by such peace officer's employing97
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agency pursuant to subsection (b) of this Code section. Upon receipt of a request for98
reconsideration pursuant to this subsection, the prosecuting attorney shall promptly review99
such request and either remove the name of the affected peace officer from the Giglio list100
or deny the request for reconsideration and keep the name of the affected peace officer on101
the Giglio list. Any such denial shall be in writing and include the specific reasons for such102
decision. If no request for reconsideration pursuant to this subsection is submitted by an103
affected peace officer or his or her employing agency, the name of the affected peace104
officer shall remain on the Giglio list unless and until the prosecuting attorney removes105
such name from the Giglio list due to receipt of material information that was unknown or106
unavailable at the time of the initial decision or when any investigation warrants removal107
in the opinion of the prosecuting attorney.108
(d) When a prosecuting attorney makes a determination to remove an affected peace109
officer's name from a Giglio list, such prosecuting attorney shall provide notice of such110
removal to the employing agency of the affected peace officer and the Georgia Peace111
Officer Standards and Training Council within 14 days of the removal in the same manner112
as provided by subsection (b) of this Code section.113
(e) The Prosecuting Attorneys' Council of the State of Georgia shall develop policies and114
procedures for the purposes of this Code section, which shall include placement and115
removal of the name of an affected peace officer on a Giglio list, the reconsideration116
process, and notice requirements. Any prosecuting attorney's office that maintains a Giglio117
list shall adopt the policies and procedures established pursuant to this subsection.118
(f) A prosecuting attorney shall be authorized to use an affected peace officer's inclusion119
on a Giglio list when making charging decisions related to a case and shall disclose to120
defense counsel or a defendant in any criminal case as required by law the fact of and basis121
for inclusion of an affected officer on such list including any notice or relevant materials122
as provided in subsection (b) of this Code section.123
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(g) A prosecuting attorney shall be immune from civil liability that might otherwise incur124
or be imposed for placement of the name of a peace officer on a Giglio list unless the125
affected peace officer demonstrates that his or her inclusion on such a list was done with126
actual malice or with actual intent to cause injury to the affected peace officer.127
(h) Nothing in this Code section shall be construed to modify federal law or binding court128
precedent relating to disclosure duties of a prosecuting attorney in criminal prosecutions."129
SECTION 3.130
Chapter 8 of Title 35 of the Official Code of Georgia Annotated, relating to employment and131
training of peace officers, is amended in Code Section 35-8-2, relating to definitions, by132
adding two new paragraphs to read as follows:133
"(.1) 'Affected peace officer' means a peace officer whose name is listed on a Giglio list."134
"(5.01) 'Giglio list' means a list of names compiled and maintained by a prosecuting135
attorney of officers disqualified from trial testimony because of identified or alleged136
issues of credibility or bias."137
SECTION 4.138
Said chapter is further amended in Code Section 35-8-7, relating to powers and duties of the139
Georgia Peace Officer Standards and Training Council generally, by adding a new paragraph140
to read as follows:141
"(14.1) Upon notice from a prosecuting attorney, to review the factual basis for the142
inclusion of any affected peace officer on a Giglio list;"143
SECTION 5.144
Said chapter is further amended in Code Section 35-8-7.1, relating to authority of council to145
refuse certificate to applicant or to discipline council certified officer or exempt officer,146
grounds, restoration of certificate, emergency suspension of certification, notice of147
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investigation, and retention of records, by revising subsections (e) through (g) and by adding
148
a new subsection to read as follows:149
"(e)(1) Upon receipt of notice from a prosecuting attorney that the name of a peace
150
officer has been placed on a Giglio list, the council shall initiate a review of the factual151
basis provided in such notice and notify the affected peace officer and the head of the law152
enforcement agency that employs such affected peace officer of such review. It shall be153
sufficient to identify the affected peace officer, state that review of the affected peace154
officer's name on a Giglio list has been initiated, and identify the prosecuting attorney155
who sent such notice.156
(2) In reviewing the inclusion of the name of an affected peace officer on a Giglio list157
pursuant to this subsection, the council shall consider:158
(A) Any bias or injury against a specific defendant alleged by the prosecuting attorney159
to have occurred when the prosecuting attorney's notice relates to a specific criminal160
prosecution;161
(B) Allegations or instances of previous misleading, deceptive, untrue, or fraudulent162
statements made by the affected peace officer to the prosecuting attorney or while163
serving as a witness for the prosecuting attorney;164
(C) Whether the affected peace officer has pleaded guilty or been convicted, by final165
judgment and when all appeals have been exhausted, of an offense punishable as false166
swearing within the meaning of Code Section 16-10-71 or an offense of perjury167
pursuant to Code Section 16-10-70; and168
(D) Any allegations of acts or omissions which would otherwise subject the affected169
peace officer to discipline pursuant to subsection (a) of this Code section.170
(3) Upon completion of review pursuant to this subsection, the council shall notify the171
affected peace officer and the employing agency of the affected peace officer of its172
determination concerning the factual basis asserted by the prosecuting attorney. If the173
council determines from its review that discipline of the affected peace officer is174
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warranted, notice sent pursuant to this paragraph shall include such information. If the175
council determines that discipline of the affected peace officer is not warranted, such176
matter shall be administratively dismissed, the affected peace officer's public status shall177
not reflect the occurrence of such investigation, and notice of such action shall be178
delivered to the head of the employing agency, the affected peace officer, and the179
prosecuting attorney who placed the affected peace officer on a Giglio list. No peace180
officer shall be suspended, revoked, or otherwise sanctioned solely based upon the181
placement of his or her name on a Giglio list.182
(f) Upon initiating an investigation of an a peace officer for possible disciplinary action183
or upon disciplining an a peace officer pursuant to this Code section, the council shall184
notify the head of the law enforcement agency that employs such peace officer of the185
investigation or disciplinary action. In the case of an investigation, it It shall be sufficient186
for such notice to identify the peace officer and state that a disciplinary investigation has187
been opened. Notice of the initiation of an investigation shall be sent by priority mail. If188
the investigation is completed without any further action, notice of the termination of such189
investigation shall also be provided to the head of the employing agency. In the case of190
disciplinary action, the notice shall identify the officer and state the nature of the191
disciplinary action taken. The notice of disposition shall be sent only after the action of the192
council is deemed final. Such notice shall be sent by priority mail.193
(f)(g) If the certification of an a peace officer is suspended or revoked by either the194
executive director or council pursuant to this Code section, then the council shall notify the195
head of the law enforcement agency that employs the peace officer; the district attorney of196
the judicial circuit in which such law enforcement agency is located; and the solicitor of197
the state court, if any, of the county in which such law enforcement agency is located. It198
shall be sufficient for this notice to identify the peace officer and state the length of time,199
if known, that the peace officer will not have powers of arrest. Such notice shall be sent200
by priority mail.201
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(h) Any notice required by this Code section shall be sent by certified mail or certificate202
of mailing. As used in this subsection, the term 'certificate of mailing' means a delivery203
method utilized by the United States Postal Service which provides evidence that an item204
has been sent and the date such item was accepted.205
(g)(i) Notwithstanding Article 5 of Chapter 18 of Title 50, records of an investigation of206
an a peace officer by the council, including, but not limited to, records used to investigate207
complaints against an a peace officer and polygraph case files containing official polygraph208
reports, shall be retained for 30 years following the date that such investigation is deemed209
concluded by the council and then such records may be destroyed; provided, however, that210
the council shall have the authority to destroy such records prior to such 30 years where211
such peace officer is deceased and no action upon the complaint was taken by the council212
beyond the council's initial intake of such complaint."213
SECTION 6.214
Said chapter is further amended in Code Section 35-8-7.2, relating to administrative215
procedure, hearings, and review, by revising subsection (a) as follows:216
"(a) Except as otherwise provided in subsection (b) of this Code section, proceedings of217
the council in the exercise of its authority to issue any certificate, conduct a review of the218
inclusion of an affected peace officer on a Giglio list, or discipline any peace officer under219
the terms of this chapter shall be conducted in accordance with Chapter 13 of Title 50, the220
'Georgia Administrative Procedure Act.' In all such proceedings the council shall have221
authority to compel the attendance of witnesses and the production of any book, writing,222
or document upon the issuance of a subpoena therefor. In any hearing in which the fitness223
of a peace officer or applicant is in question, the council may exclude all persons from its224
deliberation of the appropriate action and may, when it deems necessary, speak to the peace225
officer or applicant in private. All final determinations, findings, and conclusions of the226
council under this chapter are final and conclusive decisions of the matters involved."227
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SECTION 7.
228
Said chapter is further amended by revising Code Section 35-8-8, relating to requirements229
for appointment or certification of persons as peace officers and preemployment attendance230
at basic training course and "employment related information" defined, and by redesignating231
the current provisions of subsection (c) of said Code section as a new Code section to read232
as follows:233
"35-8-8.234
(a) Any person employed or certified as a peace officer shall:235
(1) Be at least 18 years of age;236
(2) Be a citizen of the United States;237
(3) Have a high school diploma or its recognized equivalent;238
(4) Not have been convicted by any state or by the federal government of any crime the239
punishment for which could have been imprisonment in the federal or state prison or240
institution nor have been convicted of sufficient misdemeanors to establish a pattern of241
disregard for the law, provided that, for the purposes of this paragraph, violations of242
traffic laws and other offenses involving the operation of motor vehicles when the243
applicant has received a pardon shall not be considered;244
(5) Be fingerprinted for the purpose of conducting a fingerprint based search at the245
Georgia Bureau of Investigation and the Federal Bureau of Investigation to determine the246
existence of any criminal record;247
(6) Possess good moral character as determined by investigation under procedure248
established by the council and fully cooperate during the course of such investigation;249
(7) Be found, after examination by a licensed physician or surgeon, to be free from any250
physical, emotional, or mental conditions which might adversely affect his or her exercise251
of the powers or duties of a peace officer; and252
(8) Successfully complete a job related academy entrance examination provided for and253
administered by the council in conformity with state and federal law. Such examination254
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shall be administered prior to entrance to the basic course provided for in Code
255
Sections 35-8-9 and 35-8-11. The council may change or modify such examination and256
shall establish the criteria for determining satisfactory performance on such examination. 257
The provisions of this paragraph establish only the minimum requirements of academy258
entrance examinations for peace officer candidates in this state; each law enforcement259
unit
agency is encouraged to provide such additional requirements and any260
preemployment examination as it deems necessary and appropriate. Any person with a261
degree from a postsecondary institution accredited by a regional accrediting agency262
recognized by the United States Department of Education shall be deemed to have met263
the requirements of this paragraph.264
(b) Any person authorized to attend the basic training course prior to employment as a265
peace officer shall meet the requirements of subsection (a) of this Code section.266
(c) The executive director of the council, or his or her designee, shall promulgate a form267
which shall be available to any person seeking election to the office of sheriff. Such form268
shall provide for the attestation and certification by the executive director that the person269
seeking such form is a certified peace officer who is not under revocation by the council.270
35-8-8.1.271
(c)(1) For purposes of this subsection (a) As used in this Code section, the term272
'employment related information' means written information contained in a prior273
employer's records or personnel files that relates to an applicant's, candidate's, or peace274
officer's performance or behavior while employed by such prior employer, including275
performance evaluations, records of disciplinary actions, and eligibility for rehire. Such276
term shall not include information prohibited from disclosure by federal law or any277
document not in the possession of the employer at the time a request for such information278
is received.279
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(b)(1)(2) Where an investigation is conducted for the purpose of hiring, certifying, or280
continuing the certification of a peace officer, an employer shall disclose employment281
related information to the investigating law enforcement agency upon receiving a written282
request from such agency. Disclosure shall only be required under this subsection if the283
law enforcement agency's request is accompanied by a copy of a signed, notarized284
statement from the applicant, candidate, or peace officer releasing and holding harmless285
such employer from any and all liability for disclosing complete and accurate information286
to the law enforcement agency.287
(3)(2) An employer may charge a reasonable fee to cover actual costs incurred in288
copying and furnishing documents pursuant to this subsection to a requesting law289
enforcement agency, including retrieving and redacting costs, provided such amount shall290
not exceed $25.00 or 25ยข per page, whichever is greater. No employer shall be required291
to prepare or create any document not already in the employer's possession at the time a292
request for employment related information is received. Any employment related293
information provided pursuant to this subsection that is not subject to public disclosure294
while in the possession of a prior employer shall continue to be privileged and protected295
from public disclosure as a record of the requesting law enforcement agency.296
(4)(3) No employer or law enforcement agency shall be subject to any civil liability for297
any cause of action by virtue of disclosing complete and accurate information to a law298
enforcement agency in good faith and without malice pursuant to this subsection. In any299
such cause of action, malice or bad faith shall only be demonstrated by clear and300
convincing evidence. Nothing contained in this subsection shall be construed so as to301
affect or limit rights or remedies provided by federal law.302
(5)(4) Before taking final action on an application for employment based, in whole or in303
part, on any unfavorable employment related information received from a previous304
employer, a law enforcement agency shall inform the applicant, candidate, or peace305
officer that it has received such employment related information and that the applicant,306
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candidate, or peace officer may inspect and respond in writing to such information. Upon
307
the applicant's, candidate's, or peace officer's request, the law enforcement agency shall308
allow him or her to inspect the employment related information and to submit a written309
response to such information. The request for inspection shall be made within five310
business days from the date that the applicant, candidate, or peace officer is notified of311
the law enforcement agency's receipt of such employment related information. The312
inspection shall occur not later than ten business days after said notification. Any313
response to the employment related information shall be made by the applicant,314
candidate, or peace officer not later than three business days after his or her inspection.315
(6)
(5) Nothing contained in this Code section subsection shall be construed so as to316
require any person to provide self-incriminating information or otherwise to compel any317
person to act in violation of his or her right guaranteed by the Fifth Amendment of the318
United States Constitution and Article I, Section I, Paragraph XVI of the Georgia319
Constitution. It shall not be a violation of this Code section subsection for a person to fail320
to provide requested information based on a claim that such information is321
self-incriminating provided that notice of such claim is served in lieu of the requested322
information. An action against such person to require disclosure on the grounds that the323
claim of self-incrimination is not substantiated may be brought in the superior court of324
the county of such party's residence or where such information is located.325
(c) A law enforcement agency that receives notice from a prosecuting attorney that the326
name of an affected peace officer has been placed on a Giglio list shall forward a copy of327
such notice to the council within 30 days of receipt for review pursuant to Code328
Section 35-8-7.1."329
SECTION 8.330
Said chapter is further amended by revising Code Section 35-8-14, which is designated as331
reserved, as follows:332
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"35-8-14.
333
(a) Upon receipt of notice from a prosecuting attorney that a peace officer employed by
334
the law enforcement agency has been placed on a Giglio list, such agency shall provide a335
copy of such notice to the affected peace officer in as timely manner as possible, not to336
exceed three days from the date of receipt. If the affected peace officer is no longer337
employed by the law enforcement agency that receives such notice, the law enforcement338
agency shall forward such notice to be served in person or delivered by certified mail or339
statutory overnight delivery, return receipt requested, to the last known address of the340
affected peace officer.341
(b) A law enforcement agency that employs an affected peace officer shall not demote,342
suspend, discharge, impose discipline, or take adverse employment action upon an affected343
peace officer solely based upon the placement of such peace officer's name on a Giglio list.344
(c) A law enforcement agency that employs an affected peace officer shall be authorized345
to demote, suspend, discharge, impose discipline, or take adverse employment action upon346
an affected peace officer when:347
(1) An internal investigation establishes, based upon a preponderance of the evidence,348
that a factual basis exists for the reason provided by the prosecuting attorney for349
placement of the affected peace officer on a Giglio list; or350
(2) The council has imposed discipline upon the affected peace officer for the conduct351
identified by the prosecuting attorney which was the basis for placement of such officer352
on the Giglio list Reserved."353
SECTION 9.354
Code Section 50-18-72 of the Official Code of Georgia Annotated, relating to when public355
disclosure not required, is amended by adding a new paragraph to subsection (a) to read as356
follows:357
"(4.1) Records relating to Giglio lists, as such term is defined in Code Section 35-8-2;"358
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SECTION 10.
359
This Act shall become effective upon its approval by the Governor or upon its becoming law360
without such approval.361
SECTION 11.362
All laws and parts of laws in conflict with this Act are repealed.363
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