2023 Delaware Code › Title 11 - Crimes and Criminal Procedure › Chapter 92. Police Officers’ Due Process, Accountability, and Transparency › § 9200. Limitations on political activity; “law-enforcement officer” defined; rights of officers under investigation.

§ 9200. Limitations on political activity; “law-enforcement officer” defined; rights of officers under investigation.
(a) A law-enforcement officer within a jurisdiction in this State has the same rights to engage in political activity as are afforded to any other person. The right to engage in political activity shall not apply to any law-enforcement officer while on duty or when acting in an official capacity or while in uniform.
(b) For purposes of this chapter:
(1) “Detailed narrative” means a complete description of the facts, steps taken to further an investigation, evidence collected, conclusions reached, the names of officers involved for whom misconduct was substantiated, any discipline assigned in connection with the event, and the employment status of disciplined officers.
(2) “Formal investigation” refers to an investigation initiated at the request of management after a preliminary determination has been made that a rule or policy of the department may have been violated. A formal investigation is typically conducted by an internal affairs department or its equivalent and is distinguished from an informal inquiry that is more properly considered routine employer supervision.
(3) “Informal inquiry” means questioning by supervisory personnel for purposes of making a preliminary determination whether an officer has violated a rule or policy of the department. An informal inquiry is made only to obtain preliminary facts in order to determine whether a formal investigation should be initiated. An informal inquiry must be conducted in accordance with state and federal law.
(4) “Law-enforcement officer” or “officer” means a full-time or part-time police officer who is a sworn member of the Delaware State Police, of the Wilmington City Police Department, of the New Castle County Police, of the University of Delaware Police Division, the Delaware State University Police Department, of the police force established by the Delaware River and Bay Authority, or of the police department, bureau of police or police force of any incorporated municipality, city or town within this State or who is a sworn uniformed police or enforcement officer of the Department of Natural Resources and Environmental Control or of the Delaware State Capital Police, or a Probation and Parole Officer of the Department of Correction or a Probation and Parole Officer of the Department of Services for Children, Youth and their Families, or a State Fire Marshall Deputy or a state detective or special investigator of the Department of Justice, an agent of the State Police Drug Diversion Unit or an agent of the State Division of Alcohol and Tobacco Enforcement; provided, however, that except for the disclosures required under § 9210 of this title, this chapter shall not apply to the Superintendent or Deputy Superintendent of the Delaware State Police, or to any officer above the rank of Captain in the Delaware State Police, or to the chief of police of any police force in this State, or to any other officer who is the highest ranking officer in the law-enforcement agency. An officer who is not a member of 1 of the above agencies is not covered by this chapter.
(5) “Sustained finding” means after the conclusion of an investigation, a law-enforcement officer's violation of law, rule, policy, regulation, or guideline was established by a preponderance of the evidence. “Preponderance of the evidence” means more probably true than not.
(c) Whenever a law-enforcement officer is under formal investigation and is subjected to questioning which could lead to disciplinary action, the investigation or questioning shall be conducted under the following conditions:
(1) The questioning shall be conducted at a reasonable hour, preferably at a time when the officer is on duty unless the gravity of the investigation in the opinion of the investigator is of such degree that immediate questioning is required.
(2) The questioning shall take place at the agency headquarters or at the office of the local troop or police unit in which the incident allegedly occurred as designated by the investigating officer or unless otherwise waived in writing by the officer being investigated.
(3) The law-enforcement officer under investigation shall be informed of the name, rank and command of the officer in charge of the investigation at a time and at the discretion of the department, but no later than prior to formal questioning. All questions directed to the officer shall be asked by and through no more than 2 investigators. No formal complaint against a law-enforcement officer seeking dismissal or suspension or other formal disciplinary action shall be prosecuted under departmental rule or regulation unless the complaint is supported by substantial evidence derived from an investigation by an authorized member of the department or another officer who is certified pursuant to Chapter 84 of this title and has experience and/or training on conducting an internal law-enforcement investigation and is appointed by the Chief of Police, or the Chief's designee, of the law-enforcement department to conduct the investigation of the officer in question.
(4) The law-enforcement officer under investigation shall be informed in writing of the nature of the investigation prior to being questioned.
(5) Interview sessions shall be for reasonable periods of time. There shall be times provided for the officer to allow for such personal necessities and rest periods as are reasonably necessary.
(6) Except upon refusal to answer questions pursued in a valid investigation, no officer shall be threatened with transfer, dismissal or other disciplinary action.
(7) A complete record shall be kept of all interviews held in connection with the administrative investigation. Upon request, a copy of the record or recording of the interviews shall be provided to the officer.
(8) If the law-enforcement officer under interrogation is under arrest or may reasonably be placed under arrest as a result of the investigation, the officer shall be informed of the officer's rights, including the reasonable possibility of the officer's arrest prior to the commencement of the interrogation.
(9) Upon request, any officer under questioning shall have the right to be represented by counsel or other representative of the officer's choice, who shall be present at all times during the questioning unless waived in writing by the investigated officer. The questioning shall be suspended for a reasonable period of time if the officer requests representation until such time as the officer can obtain the representative requested if reasonably available.
(10) An officer who is charged with violating any departmental rules or regulations, or the officer's representative, will be provided access to transcripts, records, written statements, written reports, and video and audio recordings pertinent to the case if they are exculpatory, intended to support any disciplinary action or are to be introduced in the departmental hearing on the charges involved. Upon demand by the officer or counsel, they shall be produced within 48 hours of the written notification of the charges.
(11) At the conclusion of the formal investigation, the investigator shall inform in writing the officer of the investigative findings, conclusions, and any recommendation for further action. Notwithstanding anything in this chapter to the contrary, upon completion of the investigation and any related proceedings, an officer is entitled to access investigatory files regardless of whether charges are sustained.
(12) Except as set forth in subsection (d) of this section and § 9210 of this title, records compiled as a result of any investigation subject to the provisions of this chapter and/or a contractual disciplinary grievance procedure are confidential and may not be released to the public. A contract or collective bargaining agreement that purports to extend confidentiality provisions relating to officer personnel or disciplinary records beyond the scope set forth in this chapter is void and unenforceable as against public policy.
(13) Whenever an investigation is initiated, it must be completed, regardless of the employment status of the law-enforcement officer under investigation. The employing department shall maintain the file relating to the investigation regardless of whether or not the officer separates from the employing department prior to the initiation or completion of a formal investigation and regardless of the investigation's conclusion. Any sustained finding must be reported to the Police Officer Standards and Training Commission.
(d) Unless otherwise required by this chapter, no law-enforcement agency shall be required to disclose in any civil proceeding, other than those brought by a citizen against a law-enforcement officer alleging that the officer breached the officer's official duties and that such breach resulted in injury or other damage to the citizen, any:
(1) Personnel file; or
(2) Internal affairs investigatory file compiled in connection with a law-enforcement officer under investigation or subjected to questioning for any reason which could lead to disciplinary action, demotion, or dismissal.
65 Del. Laws, c. 12, §  1;  65 Del. Laws, c. 139, §§  1, 2;  67 Del. Laws, c. 237, §  1;  69 Del. Laws, c. 298, §  1;  70 Del. Laws, c. 175, §  1;  70 Del. Laws, c. 186, §  1;  70 Del. Laws, c. 467, §  1;  71 Del. Laws, c. 456, §  1;  72 Del. Laws, c. 367, §  6;  76 Del. Laws, c. 43, §  3;  76 Del. Laws, c. 303, §§  1, 2;  77 Del. Laws, c. 158, §  1;  78 Del. Laws, c. 155, §  5;  79 Del. Laws, c. 340, §  1;  81 Del. Laws, c. 347, § 1;  84 Del. Laws, c. 148, § 1;  84 Del. Laws, c. 149, § 18;