Can the Arkansas LE Standards Director refer an officer for decertification when the employing agency declines to do so?

Plain-English summary

Arkansas Division of Law Enforcement Standards and Training Director Chris Chapmond asked whether he could request a decertification hearing for a commissioned officer still employed by an agency that refused to make the request. The Director described having direct knowledge of conduct that would ordinarily support such a request. The AG answered yes.

The opinion explains that an employing agency's notice after an officer separates for a listed reason is one way the Commission learns of a possible decertification. The Commission may also learn of conduct through other means. Rule 1034 requires documentation when a department head or other authorized entity requests decertification, but the AG said that wording does not make those entities the only possible sources of information. If the Commission learns of a reasonable basis through the Director's referral, the AG found nothing in law preventing it from acting on its own authority to review and revoke a certification.

The PDF's footnote 4 cites Doe v. Wright while discussing why the separation-notice statutes do not make agency referrals exclusive. It says the earlier employer's lack of an affirmative duty to recommend decertification was one reason cited for the absence of a due-process violation in that case. The opinion does not decide the merits of a particular officer's case.

What this means for you

Division director and Commission staff

The AG concluded that the Director may request a hearing in the described circumstances despite the employing agency's refusal. The Commission's rules require a reasonable basis for possible revocation and provide for written notice and an opportunity for the officer to contest and request a hearing.

Employing agencies and officers

An officer's continued employment and the employing agency's refusal to refer do not, by themselves, prevent the Commission from receiving information and reviewing certification. The opinion addresses referral authority; it does not decide whether any identified conduct warrants decertification.

Common questions

Can the Division director request a hearing when the officer's agency refuses?
Yes. That is the question the AG answered.

Can the Commission learn of possible grounds for decertification without an agency separation notice?
Yes. The AG said the statutes do not make an employing agency's separation notice the only way the Commission may learn of relevant conduct.

Does the Director's request automatically revoke the officer's certificate?
No. The opinion describes the Commission's authority to review and its rule requiring a reasonable basis, written notice, and an opportunity to contest and request a hearing.

Why is Doe v. Wright cited?
Footnote 4 uses the case to discuss an employer's duty to recommend decertification, as background to the AG's reading of the Arkansas separation-notice statutes.

Background and statutory framework

A.C.A. § 12-9-602 addresses employing-agency notices after separation, and § 12-9-603 addresses Commission review of certification, eligibility, and ability to act as an officer. Commission Rule 1034 governs grounds for revocation, notice, hearings, and supporting documents for requests. The AG read those authorities as allowing the Commission to receive information from the Director even when the officer remains employed.

Citations

• A.C.A. § 12-9-602(b)(2) (listed separation reasons)
• A.C.A. § 12-9-603 (Commission review)
• Commission Rules, Rule 1034(1)(c) (notice and hearing)
• Commission Rules, Rule 1034(1)(e) (supporting documentation)
• Doe v. Wright, 82 F.3d 265 (8th Cir. 1996) (cited in footnote 4)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2023-017
May 10, 2023
Director Chris Chapmond
Arkansas Department of Public Safety
Division of Law Enforcement Standards and Training
4 State Police Plaza Drive
Little Rock, AR 72209

Dear Director Chapmond:

I am writing in response to your request for an opinion on whether the Director of the Division of Law Enforcement Standards and Training may request a decertification hearing for a commissioned law enforcement officer in Arkansas. You state that the Director would only request a hearing in "cases where the [employing] agency refused to request the decertification and the Director had direct knowledge of conduct that rose to the level of a normal request for a decertification hearing."

RESPONSE

Yes, in my opinion, the Director may request a decertification hearing.

DISCUSSION

The General Assembly has charged the Commission on Law Enforcement Standards and Training with establishing the "minimum selection and training standards for admission to employment as a law enforcement officer" in the state. Consequently, the Commission oversees officers' certification and decertification. A law enforcement officer may be referred to the Commission for decertification in one of two ways: (1) the officer separated from employment or appointment for one of the reasons listed in A.C.A. § 12-9-602(b)(2), triggering a notification from the employing agency; or (2) by some means other than a notice under § 12-9-602, the Commission was informed of officer action or conduct warranting decertification. As I understand your question, you are asking about a situation in which the officer is still employed, meaning that the Commission would not have received the notice under § 12-9-602. Therefore, your question would fall into the second category, to which I will limit my discussion.

The Commission's rules regarding officer training and standards provide some guidance on your question. Rule 1034 governs officer decertification, disciplinary action, and hearings. It makes clear that certificates are Commission property and that the Commission retains the power to revoke or recall an officer's certification. Rule 1034 also provides a list of reasons for which the Commission may revoke certification. If the Commission believes there is a "reasonable basis" for revoking a law enforcement officer's certification, the Commission must notify the officer in writing, and the officer may contest the decertification and request a hearing.

While Rule 1034 plainly states the grounds for decertification and the requirement that the Commission have a "reasonable basis" to believe one of those grounds exists, the rule does not establish clear procedures for how the Commission may receive information or evidence necessary to form the belief that a "reasonable basis" for revocation exists. The only mention of a referral procedure is found in subsection (e), which requires "a department head or other authorized entity" requesting an officer's decertification to provide the Commission with a letter of justification or other documentation.

One might argue that Rule 1034(e) should be interpreted to mean that the Commission can only move forward with a decertification hearing if it first receives a decertification referral from "a department head or other authorized entity." But the rule's text does not support this inference, and reading such a requirement into the rule would severely restrict the Commission's clear authority under the statute to issue and revoke certificates.

Instead, Rule 1034(e) seems designed to ensure that the Commission receives sufficient documentation to determine whether there is a "reasonable basis" for revoking an officer's certification. I gather that, as a practical matter, most decertification referrals come from the department head or other authorized representative of a law enforcement agency or prosecutor's office, as these individuals are most likely to know of officer action or misconduct warranting decertification. Thus, it makes sense that Rule 1034(e) requires these entities to provides documentation to the Commission to support any requests for decertification. But the fact that they must provide supporting documentation to the Commission when they make a referral does not mean that they are the only entities that may inform the Commission of officer action or misconduct warranting decertification. If the Commission learns by other means, such as through a referral from the Director, that there is a reasonable basis for revoking an officer's certification, nothing in the law prevents the Commission from acting sua sponte to review and revoke a certification.

Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General

1 A.C.A. § 12-9-104(3)(A) (Supp. 2021).

2 The Commission reviews “the certification of the law enforcement officer, the law enforcement officer’s eligibility for certification, and the law enforcement officer’s ability to act as a law enforcement officer, to determine whether to suspend or revoke the law enforcement officer’s: (1) Certification; (2) Eligibility for certification; or (3) Ability to act as a law enforcement officer.” A.C.A. § 12-9-603 (Supp. 2021). See also Commission on Law Enforcement Standards and Training Rules (“Commission Rules”), Rule 1034(1). For the sake of brevity and clarity, this opinion refers to “certification” and “decertification,” with the understanding that the Commission reviews and makes a determination on each of the above three qualifications.

3 Arkansas law requires an employing agency to notify the Division of Law Enforcement Standards and Training whenever an officer separates from employment or appointment and to provide detailed facts and reasons for the separation. If the separation is due to one or more listed reasons, the Commission must review the officer’s certification and determines whether to suspend or revoke it. See A.C.A. §§ 12-9-602(a), (b) (Supp. 2021), 12-9-603.

4 Unlike the first scenario, this second scenario is not specifically addressed in statute. However, nothing in A.C.A. §§ 12-9-602 or 12-9-603 suggests that a decertification referral may only come from an employing agency upon separation from employment. Rather, the statutes’ enabling legislation, Act 949 of 1997, was likely intended to impose an affirmative obligation on the employing agency to inform the Commission and any potential subsequent employers of officer misconduct. See Doe v. Wright, 82 F.3d 265 (8th Cir. 1996) (citing as one reason for no due process violation the fact that the original employing agency from which an officer was terminated did not have an affirmative duty under state law to recommend his decertification).

5 See A.C.A. § 12-9-104(1).

6 See Commission Rules, Rule 1034(1)(a).

7 See Commission Rules, Rule 1034(1)(b). This list heavily overlaps with the list of reasons for separation from employment or appointment set forth in A.C.A. § 12-9-602(b)(2).

8 Commission Rules, Rule 1034(1)(c).

9 Commission Rules, Rule 1034(1)(e).

10 See Commission Rules, Rule 1034(1)(a).