LEOBOR and PODPAT

With less than a month until legislative session ends on June 30, legislation to rename and rework Delaware’s Law Enforcement Officers’ Bill of Rights (LEOBOR) emerged last Friday afternoon with Democrats touting substantive changes to one of the most opaque and safeguarded police records and accountability laws in the nation. Last session’s LEOBOR reform bill lost support from advocates after it was heavily amended, causing many to feel that the watered-down version would not be worth supporting and could actually end up causing unintentional harm by incentivizing police to hide misconduct.  

This year’s attempt at reforming LEOBOR is split into two bills (House Bills 205 and 206) which will be heard in the House Public Safety Committee on Wednesday, June 7th at 3pm. Police lobbyists said publicly earlier in the year that they would be pushing their own version of LEOBOR reform, so advocates are justifiably skeptical of these bills and how effective they would be at increasing police transparency and accountability if police themselves were involved in drafting them. More information below.

House Bill 205

House Bill 205 (Minor-Brown) is the latest attempt to modify LEOBOR (which would be called “Police Officer’s Due Process, Accountability, and Transparency” (PODPAT) should this bill become law). Specifically, this bill seeks to revise the law applicable to law-enforcement officers who find themselves under formal investigation and subjected to questioning which could lead to disciplinary action in the following ways:

Note: these investigations are conducted by law enforcement — “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.

• Provides law-enforcement officers under formal investigation with a right to a copy of their investigation interview record (including recordings of those interviews) at no cost to the officer, as well a right to access their investigatory files at the conclusion of the investigation and related proceedings, regardless of whether charges are brought against the officer for violating department rules or regulations. 

• Tasks the investigating agency with submitting a “detailed narrative” report within 30 days of the conclusion of a formal investigation or disciplinary hearing to the Delaware Police Officer Standards and Training (POST) Commission (currently called the Council on Police Training) and the Criminal Justice Council when the investigation involves: (1) an officer’s discharge of a firearm; (2) an officer’s use of force that results in serious physical injury; (3) a “sustained finding” that an officer engaged in sexual assault; (4) a “sustained finding” that an officer dishonestly reported, investigated, or prosecuted a crime (or dishonestly reported or investigated the misconduct of another officer); and (5) a “sustained finding” that an officer committed domestic violence. (PODPAT defines a “sustained finding” in an investigation as a conclusion that a law-enforcement officer violated a law, rule, policy, regulation, or guideline by a preponderance of the evidence–i.e., more probably true than not.) The POST Commission and the Criminal Justice Council are further tasked with posting these narrative reports on their respective websites.

• Requires law-enforcement agencies to annually report information to the Criminal Justice Council involving the number of police misconduct complaints received, the number of formal investigations undertaken (including the number of complaints resolved without investigation), and the number of formal investigations that resulted in a sustained finding of misconduct, an unsubstantiated finding, or other disposition.

• Confirms that investigations of law-enforcement officer misconduct must be completed regardless of whether the officer’s employment with the investigating agency has ended.

• Requires the Delaware Department of Justice to disclose when requested, pursuant to a court order regarding confidentiality, to a law-enforcement officer’s defense counsel all records relating to sustained findings of misconduct relating to perjury, intentional false statements or false reports, or destruction, falsification, or concealment of evidence by an officer participating in the investigation or prosecution. The DOJ may redact identifying information and medical history/information under this “authorized disclosure” procedure. 

While it is clear that this LEOBOR reform bill has been drafted with some criminal justice advocates’ demands for police accountability and transparency in mind, the outsized influence of the police lobby is particularly apparent with respect to two provisions introduced here: 

• Complainants or victims of officer misconduct are promised nothing at the conclusion of an officer’s misconduct investigation (“Departments may provide information . . . of officer misconduct sufficient to reasonably address concerns regarding the investigation and its outcome.”); and 

• Only “new” law-enforcement hires will be required under PODPAT to sign an agreement with their agency permitting that officer’s personnel file (including disciplinary or investigative records relating to misconduct) to be shared with another law-enforcement agency in the future that hires or makes a conditional offer to hire that officer. (The bill is silent as to whether officers employed prior to the effective date of this law would be required to enter into a similar contractual arrangement for the sharing of their personnel file with a future hiring law-enforcement agency.)

House Bill 206

House Bill 206 (Johnson) establishes the Police Officer Standards and Training Commission (POST) that takes on duties previously held by the Council on Police Training (COPT) and further expands its powers as the central overseeing authority of police officer misconduct. This bill comes in tandem with HB 205 which reforms the Law Enforcement Officers Bill of Rights, with the Commission acting as a central point of enforcement for officers that face misconduct investigations. The Commission is also empowered to issue guidelines on accreditation standards, with the goal that every police agency in the state meets updated standards by 2028 as issued by the Delaware Police Accreditation Commission. Additionally, this legislation expands the definition of police officer to include part time officers, and requires investigations take place even if action is not taken by the officers direct employer. It also expands the required number of meetings to 4 and expands upon requirements around transparency and reporting of investigation data.

A concern that rises with this legislation, is that the Commission as established by this bill is heavily biased towards the police. Of the 17 members of this commission, at a minimum 8 of the members of this commission are current or former law enforcement, and the two mayors who serve on this commission may have oversight powers over their town police departments. The Commission is made up of the following: 

• A Chairperson appointed by the Governor with experience in law enforcement

• The Attorney General

• The Superintendent of the State Police

• The Chief of the City of Wilmington Police

• The Chief of the New Castle County Police

• The Chief of the City of Dover Police

• The Chief of City of Newark Police

• The Secretary of Education

• The President of the Delaware League of Local Governments

• The Mayor of an incorporated municipality in Kent

• The Mayor of an incorporated municipality in Sussex

• The Chairperson of the Delaware Association of Chiefs of Police

• The Chair of the House Public Safety Committee

• The Chair of the Senate Corrections and Public Safety 

• And three members of the public appointed by the Governor

• One religious leader with experience in reentry

• Two people who have been impacted directly or are family members/caregivers of those impacted by the criminal justice system

The majority of this commission does not have an onus to do detailed investigations, as it may implicate their own colleagues or their own divisions. Additionally, only three members of the commission are members of impacted communities, and given the vague requirement that they be family members of those impacted by the criminal justice system, just about anyone can be appointed to this role. There isn’t a pressure to appoint someone that would actually fight for detailed investigations when those issues come up, or push for stricter requirements for training and accreditation. The only exception to this is the requirement that the Senate Corrections and Public Safety chair be appointed who is currently WFP elected Sen. Marie Pinkney - but her voice will be significantly outnumbered by the commission. 

While there are some good changes in this bill, it maintains the current issues of the police being empowered to investigate themselves. Even with the additional public oversight and transparency, there should be more members of this commission who are directly impacted or work with those who are directly impacted by police misconduct.

Conclusion

These bills are an even more watered-down attempt at LEOBOR reform than last year’s amended version. It’s notable that many of the legislators who supported the original LEOBOR reform bill are not signed on to this version. While it’s understandable that sponsors of this bill want to get something passed instead of nothing, it seems that these bills need serious amendments in order to actually deliver on the accountability and transparency they promise.

If you share these concerns, legislators need to hear from you. These bills will be heard in the House Public Safety Committee this Wednesday, June 7th at 3pm. Click here for meeting info and how to give public comment either in-person or virtually.