Stronger scrutiny proposed in cases of police misconduct

The Judiciary Committee heard testimony Jan. 31 on a bill that would allow for thorough administrative review of law enforcement officers accused of serious misconduct.

LB792, introduced by Crete Sen Laura Ebke, would require law enforcement agencies to document the reason for and circumstances surrounding an officer’s separation of service from that agency. The head of that agency must then submit the report to the Nebraska Crime Commission.

Ebke said it would ensure more accountability and transparency within the state’s law enforcement agencies, particularly the Nebraska State Patrol.

Additionally, agencies would be required to submit a more detailed report to the Nebraska Crime Commission if an officer is terminated from employment or allowed to resign in lieu of termination for conduct that would constitute incompetence, neglect of duty, incapacity, dishonesty, a guilty plea to a felony charge, a felony conviction or another violation of the officer’s oath of office, code of ethics or statutory duties.

The report must include a summary of the relevant allegations and identification of any witnesses to such allegations. The law enforcement agency report must be submitted within 30 days of the employee’s termination.

A law enforcement officer terminated under such circumstances would be required to sign a waiver upon application for employment with a new agency that would allow the prospective employer to contact the officer’s former agency and obtain a copy of the report detailing his or her separation from previous service.

The former employer would be required to provide the report if requested. The person designated to prepare such a report would be immune from civil liability if he or she provides the information in good faith.

Darrell Fisher, executive director of the Nebraska Crime Commission, supported the proposed reporting requirements. He said just the illusion of impropriety within the State Patrol’s ranks has become a matter of public trust. The bill would be instrumental in helping the commission in addressing ongoing issues, he said.

“This would prevent bad actors from leaving one agency and going to another without background checks being conducted on the reason for leaving a law enforcement agency,” Fisher said.

LB792 also would authorize the director of the Crime Commission to subpoena witnesses and documents, internal administrative files, reports, personnel records, disciplinary histories or any other relevant materials when considering the revocation of an officer’s license.

Representing the Nebraska Fraternal Order of Police, Jim Maguire disagreed, saying the due process rights of officers could be negatively impacted during administrative review.

“We understand there is a need for some kind of change that needs to occur during the decertification process,” he said. “We’re worried about the impact on the due process rights of our officers that could occur under this proposed process.”

Other provisions of the bill would remove a statutory obligation of the state attorney general to defend all civil and criminal charges against members of the State Patrol incurred while operating within a members’ official capacity.

When a 2017 review of the State Patrol revealed allegations of misconduct among officers, the attorney general felt he was unable to bring criminal charges because of his obligation to defend the officers, said Jason Jackson, the governor’s chief human resources officer.

“The Nebraska State Patrol is alone among any state agency in that it is entitled to criminal defense from the attorney general’s office,” he said. “This will cure that conflict and put the State Patrol on equal footing with every other state agency and state employee.”

Solicitor General James Smith, representing the attorney general’s office, also spoke in support of the change to the attorney general’s duties. As the state’s chief prosecutor, current statute creates an inherent ethical dilemma when a member of the State Patrol is accused of misconduct, he said.

“The attorney general cannot ethically both prosecute and defend anyone in a criminal case, which includes State Patrol officials,” Smith said.

Representing the State Troopers Association of Nebraska in opposition to the bill, Gary Young said LB792 is trying to fix a problem that does not exist.

“We’re taking away the only legal support the state has ever provided troopers,” Young said. “If the attorney general is concerned about any potential conflict of interest, statute allows him to appoint a private counsel to represent the officer.”

The committee took no immediate action on the bill.