ment agency employing the officer who is sub-
ject of the disciplinary hearing, shall—
‘‘(i) determine the composition of an
independent and impartial disciplinary
hearing board;
‘‘(ii) appoint an independent and im-
partial hearing officer; and
‘‘(iii) establish such procedures as
may be necessary to comply with this sec-
tion.
‘‘(B) PEER REPRESENTATION ON DISCIPLI-
NARY HEARING BOARD.—A disciplinary hearing
board that includes employees of the law en-
forcement agency employing the law enforce-
ment officer who is the subject of the hearing
shall include not less than 1 law enforcement
officer of equal or lesser rank to the officer who
is the subject of the hearing.
‘‘(10) SUMMONSES AND SUBPOENAS.—
‘‘(A) IN GENERAL.—The disciplinary hear-
ing board or independent hearing officer—
‘‘(i) shall have the authority to issue
summonses or subpoenas, on behalf of—
‘‘(I) the law enforcement agency
employing the officer who is the sub-
ject of the hearing; or
‘‘(II) the law enforcement officer
who is the subject of the hearing; and
‘‘(ii) upon written request of either
the agency or the officer, shall issue a
summons or subpoena, as appropriate, to
compel the appearance and testimony of a
witness or the production of documentary
evidence.
‘‘(B) EFFECT
OF
FAILURE
TO
COMPLY
WITH SUMMONS OR SUBPOENA.—With respect
to any failure to comply with a summons or a
subpoena issued under subparagraph (A)—
‘‘(i) the disciplinary hearing officer or
board shall petition a court of competent
jurisdiction to issue an order compelling
compliance; and
‘‘(ii) subsequent failure to comply
with such a court order issued pursuant to
a petition under clause (i) shall be subject
to contempt of a court proceedings accord-
ing to the laws of the jurisdiction within
which the disciplinary hearing is being con-
ducted, and shall result in the recess of the
disciplinary hearing until the witness be-
comes available to testify and does testify
or is held in contempt.
‘‘(11) CLOSED HEARING.—A disciplinary hear-
ing shall be closed to the public unless the law en-
forcement officer who is the subject of the hearing
requests, in writing, that the hearing be open to
specified individuals or to the general public.
‘‘(12) RECORDING.—All aspects of a discipli-
nary hearing, including pre-hearing motions, shall be
recorded by audio tape, video tape, or transcription.
‘‘(13) SEQUESTRATION OF WITNESSES.—Either
side in a disciplinary hearing may move for and be
entitled to sequestration of witnesses.
‘‘(14) TESTIMONY UNDER OATH.—The hearing
officer or board shall administer an oath or affirma-
tion to each witness, who shall testify subject to the
laws of perjury of the State in which the disciplinary
hearing is being conducted.
‘‘(15) VERDICT ON EACH CHARGE.—
‘‘(A) IN GENERAL.—At the conclusion of
the presentation of all the evidence and after
oral or written argument, the hearing officer or
board shall deliberate and render a written ver-
dict on each charge.
‘‘(B) VERDICT
ISOLATED
TO
CHARGE
BROUGHT.—The hearing officer or board may
not find that the law enforcement officer who is
the subject of the hearing is liable for discipli-
nary action for any violation of law, as to which
the officer was not charged.
‘‘(16) BURDEN OF PERSUASION AND STANDARD
OF
PROOF.—The prosecuting agency’s burden of
persuasion or standard of proof shall be by clear and
convincing evidence as to each charge alleging false
statement or representation, fraud, dishonesty, de-
ceit, moral turpitude, or criminal behavior on the
part of the law enforcement officer who is the sub-
ject of the charge and by a preponderance of the evi-
dence as to all other charge.
‘‘(17) FACTORS OF ‘JUST CAUSE’ TO BE CON-
SIDERED BY THE HEARING OFFICER OR BOARD.—
No law enforcement officer who is the subject of a
disciplinary hearing shall be found guilty of any
charge or subjected to any disciplinary action unless
the disciplinary hearing board or independent hear-
ing officer finds that—
‘‘(A) the officer who is the subject of the
charge could reasonably be expected to have
had knowledge of the probable consequences of
the alleged conduct set forth in the charge
against the officer;
‘‘(B) the rule, regulation, order, or proce-
dure that the officer who is the subject of the
charge allegedly violated is reasonable;
‘‘(C) the charging party, before filing the
charge, made a reasonable, fair, and objective
effort to discover whether the officer did in fact
violate the rule, regulation, order, or procedure
as charged;
‘‘(D) the charging party did not conduct
the investigation arbitrarily or unfairly, or in a
discriminatory manner, against the officer who
is the subject of the charge, and the charge was
brought in good faith; and
‘‘(E) the proposed disciplinary action rea-
sonably relates to the seriousness of the alleged
violation and to the record of service of the offi-
cer who is the subject of the charge.
‘‘(18) FINDING OF NOT GUILTY.—If the officer
who is the subject of the disciplinary hearing is
found not guilty of the alleged violation—
‘‘(A) the matter is concluded;
‘‘(B) no disciplinary action may be taken
against the officer;
‘‘(C) the officer’s personnel file shall not
contain any reference to the charge for which
the officer was found not guilty; and
‘‘(D) any pay and benefits lost or deferred
during the pendency of the disposition of the
charge shall be restored to the officer as though
no charge had ever been filed against the offi-
cer, including salary or regular pay, vacation,
holidays, longevity pay, education incentive pay,
shift differential, uniform allowance, lost over-
time, or other premium pay opportunities, and
lost promotional opportunities
‘‘(19) FINDING OF GUILTY.—If the officer who
is the subject of the charge is found guilty, the hear-
ing officer or board shall make a written rec-
ommendation of a penalty to the law enforcement
agency employing the officer or any other govern-
mental entity that has final disciplinary authority, as
provided by applicable State or local law. The em-
ploying agency or other governmental entity may not
impose a penalty greater than the penalty rec-
ommended by the hearing officer or board.
‘‘(20) APPEAL.—Any officer who has been
found guilty of a charge may appeal from a final de-
cision of a hearing officer or hearing board to a
court of competent jurisdiction or to an independent
neutral arbitrator to the extent available in any
other administrative proceeding under applicable
State or local law or collective bargaining agreement.
‘‘(i) WAIVER OF RIGHTS.—An officer who is notified
that he or she is under investigation or is the subject of
a charge may, after such notification, waive any right or
procedure guaranteed by this section, which waiver shall
be—
‘‘(1) in writing; and
‘‘(2) signed by—
‘‘(A) the officer, who shall have consulted
with counsel or a representative prior to signing
any such waiver; or
‘‘(B) the officer’s counsel or representative,
if expressly authorized by subsection (h).
‘‘(j) SUMMARY PUNISHMENT.—Nothing in this sec-
tion shall preclude a public agency from imposing sum-
mary punishment.
‘‘(k) EMERGENCY SUSPENSION.—Nothing in this
section may be construed to preclude a law enforcement
agency from imposing an emergency suspension on a law
enforcement officer, except that any such suspension
shall—
‘‘(1) be followed by a hearing in accordance
with the requirements of subsection (h); and
‘‘(2) not deprive the affected officer of any pay
or benefit.
‘‘(l) RETALIATION FOR EXERCISING RIGHTS.—There
shall be no imposition of or threat of disciplinary action
or other penalty against a law enforcement officer for the
exercise of any right provided to the officer under this sec-
tion.
‘‘(m) OTHER REMEDIES NOT IMPAIRED.—Nothing
in this section may be construed to impair any other right
or remedy that a law enforcement officer may have under
any constitution, statute, ordinance, order, rule, regula-
tion, procedure, written policy, collective bargaining agree-
ment, or any other source.
‘‘(n) DECLARATORY OR INJUNCTIVE RELIEF.—A law
enforcement officer who is aggrieved by a violation of or
is otherwise denied any right afforded by the Constitution
of the United States, a State constitution, this section,
or by any administrative rule or regulation promulgated
pursuant thereto, may file suit in any Federal or State
court of competent jurisdiction for declaratory or injunc-
tive relief to prohibit the law enforcement agency from vio-
lating or otherwise denying such right, and such court
shall have jurisdiction, for cause shown, to restrain such
a violation or denial.
‘‘(o) PROTECTION OF LAW ENFORCEMENT OFFICER
PERSONNEL FILES.—
‘‘(1) RESTRICTIONS
ON
ADVERSE
MATERIAL
MAINTAINED IN OFFICERS’ PERSONNEL RECORDS.—
‘‘(A) IN GENERAL.—Unless the officer has
had an opportunity to review and comment in
writing on any adverse material included in a
personnel record pertaining to the officer, no
law enforcement agency or other governmental
entity may—
‘‘(i) include the adverse material in
that personnel record; or
‘‘(ii) possess or maintain control over
the adverse material in any form as a per-
sonnel record within the law enforcement
agency or elsewhere in the control of the
employing governmental entity.
‘‘(B) RESPONSIVE
MATERIAL.—Any re-
sponsive material provided by an officer to ad-
verse material included in a personnel record
pertaining to the officer shall be—
‘‘(i) attached to the adverse material;
and
‘‘(ii) released to any person or entity
to whom the adverse material is released
pursuant to law and at the same time as
the adverse material is released.
‘‘(2) RIGHT TO INSPECTION OF, AND RESTRIC-
TIONS ON ACCESS TO INFORMATION IN, THE OFFI-
CER’S OWN PERSONNEL RECORDS.—
‘‘(A) IN
GENERAL.—Subject to subpara-
graph (B), a law enforcement officer shall have
the right to inspect all of the personnel records
of the officer not less than annually.
‘‘(B) RESTRICTIONS.—A law enforcement
officer shall not have access to information in
the personnel records of the officer if the infor-
mation is—
‘‘(i) records relating to the investiga-
tion of alleged conduct that, if proven,
would constitute or have constituted a defi-
nite violation of a statute providing for
criminal penalties, but as to which no for-
mal charge was brought;
‘‘(ii) letters of reference for the offi-
cer;