CJS-09-16-00002-P Central Registry of Police Officers and Peace Officers

3/2/16 N.Y. St. Reg. CJS-09-16-00002-P

NEW YORK STATE REGISTER

VOLUME XXXVIII, ISSUE 9

March 02, 2016

RULE MAKING ACTIVITIES

DIVISION OF CRIMINAL JUSTICE SERVICES

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. CJS-09-16-00002-P

Central Registry of Police Officers and Peace Officers

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Repeal of Part 6056; and addition of new Part 6056 to Title 9 NYCRR.

Statutory authority:

Executive Law, sections 837(13), 845(1) and (3) through L. 2010, ch. 491; General Municipal Law, section 209-q(1) and Criminal Procedure Law, section 2.30(6)

Subject:

Central Registry of Police Officers and Peace Officers.

Purpose:

To consolidate the police officer and peace officer registries; and to clarify the reporting requirements.

Text of proposed rule:

Part 6056 of 9 NYCRR is repealed and a new Part 6056 is added to read as follows:

PART 6056

CENTRAL STATE REGISTRY OF POLICE OFFICERS AND PEACE OFFICERS

Section 6056.1 Purpose

The purpose of this Part is to set forth reporting and recordkeeping procedures to be followed by employers of police and peace officers and by the Division of Criminal Justice Services in maintaining the Central State Registry of Police Officers and Peace Officers, pursuant to section 845 of the Executive Law, and:

(a) to provide for the establishment and maintenance of a permanent system of identification for each police and peace officer whose name is required by law to be entered in the Central State Registry of Police Officers and Peace Officers, pursuant to section 845(3) of such law;

(b) to ensure the accuracy of the information contained in the Central State Registry of Police Officers and Peace Officers and the integrity of the registry as a public record;

(c) to ensure that persons whose names are contained in the Central State Registry of Police Officers and Peace Officers are lawfully appointed; and

(d) to enhance the ability of the Division of Criminal Justice Services to cooperate with the Division of State Police in making information in the Central State Registry of Police Officers and Peace Officers available for the purpose of verifying transactions involving firearms, pursuant to section 845(5) of such law.

Section 6056.2 Definitions

As used in this Part, the following terms shall have the following meanings:

(a) Division means the Division of Criminal Justice Services.

(b) Commissioner means the Commissioner of the Division of Criminal Justice Services or his or her designee.

(c) Employer means the chief executive officer of any State or local agency, unit of local government, State or local commission, public authority, or organization which employs police officers or peace officers.

(d) Police officer means a person designated as such in section 1.20(34) of the Criminal Procedure Law.

(e) Peace officer means a person designated as such in section 2.10 and 2.16 of the Criminal Procedure Law.

(f) Registry means the Central State Registry of Police Officers and Peace Officers created by section 845 of the Executive Law.

(g) Removal for cause means removal after a hearing on stated charges pursuant to section 75 of the Civil Service Law or retirement or resignation while disciplinary charges pursuant to section 75 of the Civil Service Law, which may result in removal, are pending.

(h) Removal during probationary period means a probationary period not successfully completed due to incompetence or misconduct that would have subjected a permanent employee to disciplinary charges pursuant to section 75 of the Civil Service Law.

Section 6056.3 Division responsibility

(a) The division shall maintain the Central State Registry of Police Officers and Peace Officers, pursuant to section 845 of the Executive Law. The division shall enter into such registry all information concerning police or peace officers required to be reported by employers by such law and in accordance with such rules and regulations as the commissioner may adopt to ensure the accuracy of such information and integrity of the registry as a public record.

(b) The division shall not enter the name of any person in the registry if it has knowledge that such person is not lawfully appointed or eligible to be a police or peace officer, notwithstanding the submission of the name of such person by an employer for registration.

(c) Where the division has cause to believe that any person whose name is submitted for entry in the registry or who is registered as a police or peace officer may not be eligible, the division shall proceed pursuant to section 6056.6 of this Part.

Section 6056.4 Employer reporting requirements

(a) Each employer shall, in the form set forth in section 6056.5 of this Part, with respect to each police or peace officer employed by it, submit or cause to be submitted the following:

(1) name;

(2) social security number;

(3) date of birth;

(4) rank or title;

(5) official station;

(6) whether employed full-time or part-time; and

(7) date of appointment or employment.

Employers shall inform police or peace officer employees that disclosure of an employee's social security number is for identification purposes only and is voluntary on the employee's part. A post-office box number shall not be accepted as an employee's permanent residence or domicile.

(b) The commissioner may require any employer to report the following additional information in such form as he may prescribe:

(1) a certified copy of its articles of incorporation and bylaws relating to the authority and procedure for the employment, election, appointment and removal of officers, agents and employees having police or peace officer status;

(2) minutes of meetings or proceedings concerning appointment and removal of police or peace officers; and

(3) the street address of its principal place of business or official station and its telephone number.

(c) Each employer shall, in the form set forth in section 6056.5 of this Part, with respect to each police or peace officer employed by it, immediately notify the division when such officer ceases to serve and the reason for such, which shall include one of the following:

(1) Leave of Absence

(2) Resignation

(3) Removal

(4) Removal for Cause as defined in 6056.2(g) of this Part

(5) Removal during Probationary Period as defined in 6056.2(h) of this Part

(6) Subdivision (c)(1)(2) and (3) constitute an interruption in service pursuant to General Municipal Law 209-q(1)(c) and Criminal Procedure Law 2.30(6).

(d) A certificate of completion attesting to the fulfillment of the training requirements for police officers set forth in section 209-q(1) of the General Municipal Law and a certificate of completion attesting to the fulfillment of the training requirements for peace officers set forth in Criminal Procedure Law 2.30 shall immediately be deemed invalid when an officer ceases to serve pursuant to subdivision (c)(4) or (5) of this section, as authorized by General Municipal Law section 209-q(1)(c) and Criminal Procedure Law 2.30(6).

(e) Upon inquiry from an employer, the division shall notify the employer of the reason a police or peace officer ceased to be previously employed as reported pursuant to subdivision (c) of this section.

Section 6056.5 Form for reports

Information reported in accordance with the provisions of section 6056.4 of this Part shall be reported as follows:

(a) Each police officer employer shall complete and submit for each police officer employee the form entitled “Police Officer Registry Entry Form” available on request from the division. Such form shall be submitted to the division at the time of initial appointment.

(b) Each peace officer employer shall complete and submit for each peace officer employee the form entitled “Peace Officer Registry Entry Form” available on request from the division. Such form shall be submitted to the division at the time of initial appointment.

(c) Each employer shall immediately notify the division when an officer’s registry information needs to be modified or deleted, including when such officer ceases to serve pursuant to section 6056.4(c). Such information shall be submitted on the form entitled “Registry Update Form.”

(d) Each employer shall notify the division no later than the 15th day of each January of the names of all police or peace officers who have ceased to be employed by it in the preceding twelve months.

(e) The division may provide each employer with a list of all police or peace officers identified in the registry as employed by it. The employer shall examine such list and return it to the division, deleting therefrom the names of any persons no longer employed by it as police or peace officers. Completion and submission of such a list shall be deemed compliance with the reporting requirements of subdivision (d) of this section.

(f) The commissioner may approve a reporting format other than that set forth in subdivisions (a), (b), (c) or (d) of this section. Such approval shall be granted in writing.

Section 6056.6 Exclusion from registry

(a) Where the division has cause to believe that any person whose name has been submitted for entry in the registry, or who is already registered as a police or peace officer, may be ineligible under any provision of article 2 or article 3 of the Public Officers Law or of article 1 or article 2 of the Criminal Procedure Law to be a police or peace officer, or prohibited from possessing firearms by federal law, the division shall notify the person's employer and the employer shall notify the division within 30 days that the person's name should be deleted from the registry.

(b) The division shall also notify the Division of State Police where questions concerning the lawful possession of firearms are involved, and the Attorney General where questions concerning charitable corporations are involved.

(c) Where the division has cause to believe that a person who is registered as a police or peace officer has not completed the required training in the timeframe prescribed by law or regulation, the division may notify the person’s employer and the employer shall notify the division within 30 days that the person’s name should be deleted from the registry.

Section 6056.7 Review

(a) Any person whose name is not accepted for entry in the registry, or whose name is removed therefrom, shall, on request, be provided the opportunity to review all information in the possession of the division on which such determination was based subject to the requirements and conditions set forth in Part 6050 of this Title, where applicable. Such person may present argument on issues of law and fact to the employer. The employer may then resubmit such person's name for registration, along with a statement of the reasons establishing such person's eligibility to be a police or peace officer.

(b) When such person is removed from the registry pursuant to section 6056. 4(c)(4) or (5) of this Part the division may submit such person’s name to the national decertification index.

Section 6056.8 Severability

If any provision of this Part or the application thereof to any person or circumstance is adjudged invalid by a court of competent jurisdiction, such judgment shall not affect or impair the validity of the other provisions of this Part or the application thereof to other persons or circumstances.

Text of proposed rule and any required statements and analyses may be obtained from:

Natasha M. Harvin, Esq., NYS Division of Criminal Justice Services, 80 South Swan St., Albany, New York 12210, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

1. Statutory authority: The authority for the promulgation of these regulations is contained in Executive Law section 837(13), Executive Law section 845(1) and (3) through Chapter 491 of the Laws of 2010, General Municipal Law section 209-q(1) and Criminal Procedure Law 2.30(6).

Executive Law section 837(13) authorizes the Division of Criminal Justice Services (Division) to adopt, amend or rescind regulations “as may be necessary or convenient to the performance of the functions, powers and duties of the [D]ivision.”

Executive Law section 845(1) requires the Division to maintain a Central State Registry of Police Officers and Peace Officers. Executive Law section 845(3) authorizes the Division to establish rules and regulations for a permanent system of identification for each police officer and peace officer.

Pursuant to General Municipal Law section 209-q(1) and Criminal Procedure Law 2.30(6), a certificate of completion attesting to the fulfillment of the training requirements for police officers or peace officers shall immediately be deemed invalid when an officer ceases to serve and the reason is removal for cause.

2. Legislative objectives: Chapter 491 of the Laws of 2010 repealed Executive Law section 845-a and amended Executive Law section 845 to consolidate the registries of police and peace officers. The objective is to ensure a consistent registry process for both classes of officers, and facilitate more efficient processing of the information by Division staff.

In addition, these regulations are proposed to conform to General Municipal Law 209-q(1) and Criminal Procedure Law 2.30(6) which deem a basic police officer and peace officer training certificate to be invalid upon an officer’s removal for cause.

Historically, when an officer separated from a department after a disciplinary hearing, or resigned or retired while disciplinary proceedings were pending, there was no reporting mechanism in place to ensure the invalidation of the officer’s training certificate. These “certified” officers are attractive candidates to other departments for a variety of reasons, but they are hired in relative anonymity with respect to the misconduct leading to their prior separation.

The proposed regulations will seek to prevent these occurrences by defining removal for cause and removal during probationary period; compelling police departments to report, to the Division, officers who cease to serve in their departments and the reasons for such; and immediately invalidating a training certificate when an officer is removed for cause or removed during a probationary period. Removal for cause means removal after a hearing on stated charges pursuant to section 75 of the Civil Service Law, or retirement or resignation while disciplinary charges pursuant to section 75 of the Civil Service Law, which may result in removal, are pending. Removal during probationary period means a probationary period not successfully completed due to incompetence or misconduct that would have subjected a permanent employee to disciplinary charges pursuant to section 75 of the Civil Service Law.

3. Needs and benefits: Potential hiring departments will be able to obtain, from the Division, the grounds for a prospective officer’s separation from a previous department and the status of the officer’s training certificate. This will enable a potential employer to make a well-informed hiring decision and protect the employer from a number of potential risks.

4. Costs:

a. There are no costs to regulated parties expected for the implementation of and continuing compliance with the rule.

b. There are no costs to the agency or State and local governments expected for the implementation of and continuing compliance with the rule.

c. The cost analysis is based on the fact that the proposed rule will merely consolidate the police officer and peace officer registries; and clarify the reporting requirements.

5. Local government mandates: The proposed regulations will require police departments to report, to the Division, officers who cease to serve in their departments and the reason(s).

6. Paperwork: Employers are already required to file the names of all persons who cease to serve with the employer. The proposed regulations will require them to provide the reason(s).

7. Duplication: There are no other federal or State legal requirements that duplicate the proposed rule.

8. Alternatives: There are no alternatives. The existing rule required modification pursuant to legislation.

9. Federal standards: There are no federal standards.

10. Compliance schedule: Regulated parties are expected to be able to achieve compliance with the proposed rule immediately.

Regulatory Flexibility Analysis

A regulatory analysis for small businesses and local governments is not submitted with this rule-making because the proposed rule will not impose any adverse economic impact or reporting, recordkeeping or other compliance requirements on small businesses or local governments. The proposed rule will merely consolidate the police officer and peace officer registries; and clarify the reporting requirements.

Rural Area Flexibility Analysis

A rural area flexibility analysis is not submitted with this rule-making because the proposed rule will not impose any adverse impact on rural areas or reporting, recordkeeping or other compliance requirements on public or private entities in rural areas. The proposed rule will merely consolidate the police officer and peace officer registries; and clarify the reporting requirements.

Job Impact Statement

1. Nature of impact: Pursuant to General Municipal Law section 209-q(1) and Criminal Procedure Law 2.30(6), a certificate of completion attesting to the fulfillment of the training requirements for police officers or peace officers shall immediately be deemed invalid when an officer ceases to serve and the reason is removal for cause.

Historically, when an officer separated from a department after a disciplinary hearing, or resigned or retired while disciplinary proceedings were pending, there was no reporting mechanism in place to ensure the invalidation of the officer’s training certificate. These “certified” officers are attractive candidates to other departments for a variety of reasons, but they are hired in relative anonymity with respect to the misconduct leading to their prior separation.

The proposed regulations will seek to prevent these occurrences by defining removal for cause and removal during probationary period; compelling police departments to report, to the Division of Criminal Justice Services (Division), officers who cease to serve in their departments and the reasons for such; and immediately invalidating a training certificate when an officer is removed for cause or removed during a probationary period. Removal for cause means removal after a hearing on stated charges pursuant to section 75 of the Civil Service Law, or retirement or resignation while disciplinary charges pursuant to section 75 of the Civil Service Law, which may result in removal, are pending. Removal during probationary period means a probationary period not successfully completed due to incompetence or misconduct that would have subjected a permanent employee to disciplinary charges pursuant to section 75 of the Civil Service Law.

It is possible that some departments may not hire a prospective police officer or peace officer applicant who was previously discharged by an employer for misconduct and lost his or her training certification. In such cases, employment opportunities would be impacted. However, the department still has the discretion as to whether or not to hire an individual.

2. Categories and numbers affected: The categories of jobs affected would be police officers and peace officers who have their training certificate invalidated when such officers are removed from a department for cause or removed during a probationary period. However, it is difficult to estimate the number of jobs at issue.

3. Regions of adverse impact: The proposed rule applies equally throughout New York State, except New York City, which is exempt from the Municipal Police Training Council training requirements/certificate.

4. Minimizing adverse impact: Potential hiring departments will be able to obtain, from the Division, the grounds for a prospective officer’s separation and the status of the officer’s training certificate. However, the department still has the discretion as to whether or not to hire an individual.