Can the Arkansas LE Standards Director refer an officer for decertification when the employing agency declines to do so?
Plain-English summary
Director Chris Chapmond of the Arkansas Division of Law Enforcement Standards and Training (DLEST), part of the Department of Public Safety, asked the AG whether he could refer an officer for decertification when the employing agency had refused to act. The use case is officer misconduct that the Director has direct knowledge of, where the employing agency for some reason declines to initiate decertification proceedings.
The AG said yes. The opinion is significant for police accountability in Arkansas because it confirms a referral pathway independent of the employing agency.
Two pathways to decertification. Arkansas law (A.C.A. §§ 12-9-602 and 12-9-603) and Commission Rule 1034 establish two ways an officer can be referred for decertification:
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Notification from employing agency upon separation. When an officer separates from employment for one of the reasons listed in § 12-9-602(b)(2), the agency must notify DLEST and provide the facts of the separation. The Commission then reviews and may revoke certification.
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Other means. When the Commission learns by some other channel of officer conduct warranting decertification, the Commission may act sua sponte. The statute does not require referrals to come exclusively from employing agencies.
The Director's question concerns the second pathway, where the officer is still employed but the Commission needs to consider revocation despite the employing agency's inaction.
The Rule 1034(e) issue. Commission Rule 1034(e) requires "a department head or other authorized entity" requesting decertification to provide a letter of justification or other documentation. One could read this as restricting referrals to department heads. The AG rejected that reading. Rule 1034(e) is about ensuring sufficient documentation when a referral is made, not about gatekeeping who may refer.
The Commission's broader authority. Under § 12-9-104(3)(A), the Commission establishes selection and training standards for law enforcement officers. Under Commission Rule 1034(1)(a), certificates are Commission property. Reading Rule 1034(e) to bar all referrals except from department heads would severely restrict the Commission's clear statutory authority to revoke certifications. The AG read the rule to enable rather than restrict the Commission's authority.
The practical implication. The Director (a high-ranking state law-enforcement official) can refer an officer for decertification when (a) the Director has direct knowledge of conduct warranting revocation, (b) the employing agency declines or fails to act, and (c) the officer is still employed. The Commission can then proceed to revocation if it finds a "reasonable basis."
The constitutional/due-process backstop. Doe v. Wright (8th Cir. 1996) (cited in the opinion) holds that the prior employer's lack of an affirmative duty to recommend decertification was one factor in finding no due-process violation. The implication: Arkansas now imposes that duty on employing agencies, but the duty does not displace the Commission's broader authority. The officer still has procedural protections (written notice, right to a hearing under Rule 1034(1)(c)).
The deeper takeaway: Arkansas's police-accountability framework is structurally redundant. The employing agency has primary obligation, but the Commission and the Director have secondary authority. An employing agency's decision to look the other way does not foreclose decertification.
What this means for you
Law enforcement officers
If you are the subject of a decertification referral from someone other than your employing agency (e.g., from the Director directly, or from a prosecutor's office, or from another agency), you have:
- The right to written notice of the proposed decertification.
- The right to contest and request a hearing under Rule 1034(1)(c).
- The right to know the basis for the "reasonable basis" finding.
- Access to counsel.
Document everything during the proceeding. The administrative record matters in any subsequent judicial review.
If the employing agency has not separated you, your continued employment does not insulate you from decertification proceedings. The Commission's authority is independent.
Police chiefs and sheriffs
This opinion is a reminder that your inaction does not block accountability. If you decline to refer an officer for decertification, the Director or the Commission may proceed independently.
Practical implications:
- Document your decisions about discipline and decertification referrals carefully.
- If you decide not to refer, articulate the basis (e.g., the conduct does not meet the threshold, the officer has been disciplined internally and corrected behavior, etc.).
- Maintain communication with DLEST. Surprise referrals from outside your agency are operationally disruptive.
The opinion strengthens the Commission's hand against agencies that might be tempted to bury misconduct within the department.
Civil rights attorneys and police accountability advocates
Op. 2023-017 is a useful tool. When you encounter a pattern where an Arkansas officer's misconduct is documented but the employing agency has not acted, the AG opinion confirms the Director's authority to refer independently. Direct outreach to DLEST may be a path for accountability that bypasses an unsympathetic department head.
The Commission's discretion to act sua sponte is also relevant. Documented misconduct (court rulings, disciplinary records, public records of actions) can become the basis for Commission action even without formal referral.
Prosecutors who learn of officer misconduct
If you become aware of officer conduct warranting decertification (Brady-list issues, perjury, fabrication, excessive force, off-duty crimes affecting fitness), you have direct contact with DLEST. The Commission can receive a referral from your office and proceed even without the employing agency's involvement. Document the misconduct carefully and provide the supporting record.
Officers leaving an agency under cloud
The decertification process is independent of resignation, retirement, or transfer. An officer who leaves Department A under questionable circumstances does not erase the issue by joining Department B. The Commission can still revoke the underlying certification, which would affect the new employment.
This connects to the forced-resignation FOIA framework: forced resignations trigger employer notification under § 12-9-602, and the records of the underlying conduct remain potentially subject to disclosure.
News reporters covering police accountability
When you cover an officer who has avoided employer-initiated discipline, the question of independent Commission action is now confirmed. If you are reporting on a department's failure to refer for decertification, the alternative referral pathway is documented. Sources within DLEST or the Commission may have insight into pending referrals.
Common questions
Can the Director's referral itself decertify an officer, or just trigger a hearing?
Just trigger a hearing. The Commission, not the Director, makes the decertification determination. The Director's role is to refer; the Commission's role is to find a "reasonable basis" and proceed to a hearing.
What's the standard for "reasonable basis"?
Rule 1034 lists specific grounds for revocation. The Commission must find a reasonable basis for believing one of those grounds exists. The standard is lower than ultimate proof of wrongdoing; it triggers the hearing where the full record is developed.
Can an officer get a hearing before any adverse action?
Yes. Rule 1034(1)(c) requires written notice and gives the officer the right to contest and request a hearing. The Commission cannot revoke without giving the officer process.
What conduct can lead to decertification?
Rule 1034(1)(b) lists the grounds. They typically include criminal convictions (especially felonies and crimes of moral turpitude), serious policy violations, fraudulent application/credentials, and misconduct affecting fitness for the office. The list overlaps significantly with the separation-from-employment grounds in § 12-9-602(b)(2).
Does decertification end the officer's career permanently?
Decertification means the officer cannot serve as a law enforcement officer in Arkansas. The Commission may have provisions for reinstatement after a period of time and remedial showing, but the practical effect is to bar continued or future law enforcement employment in the state.
What if I'm a federal officer or out-of-state officer working in Arkansas?
Federal officers are not subject to Arkansas decertification, which addresses Arkansas-state certification. Out-of-state officers operating in Arkansas in a temporary capacity may have different rules. If you are seeking Arkansas certification, the Commission's authority applies.
Is the Director's referral confidential?
The referral itself is part of the administrative record. The records of the proceeding may have FOIA implications under standard personnel/evaluation analysis. The hearing itself is typically administrative and may be subject to open-meeting requirements.
Background and statutory framework
The Arkansas Commission on Law Enforcement Standards and Training is created under A.C.A. § 12-9-101 et seq. Its core authority:
- Establishes minimum standards for law enforcement officer selection and training (§ 12-9-104(3)(A)).
- Issues, suspends, and revokes officer certifications.
- Promulgates rules, including Rule 1034 governing decertification, disciplinary action, and hearings.
The two referral pathways are established in:
- § 12-9-602: When an officer separates from employment, the agency must notify DLEST. Specific separation reasons trigger Commission review.
- § 12-9-603: Authorizes the Commission to suspend or revoke certification, eligibility, or ability to act as a law enforcement officer.
The 1997 enabling legislation (Act 949) imposed an affirmative duty on employing agencies to inform the Commission of officer misconduct, addressing the due-process concern raised in Doe v. Wright (8th Cir. 1996). The duty supplements but does not displace the Commission's broader authority.
Commission Rule 1034 details the decertification process:
- 1034(1)(a): Certificates are Commission property.
- 1034(1)(b): Lists grounds for revocation.
- 1034(1)(c): Notice and hearing rights for the officer.
- 1034(1)(e): Documentation requirements when a department head or other authorized entity refers.
The "other means" pathway (when the Commission learns through channels other than § 12-9-602 notification) is implicit in the statutory framework. The AG opinion clarifies that this pathway is open to the Director among others.
Citations
- A.C.A. § 12-9-104(1) (Commission rules)
- A.C.A. § 12-9-104(3)(A) (minimum standards)
- A.C.A. § 12-9-602(a), (b) (employer separation notification)
- A.C.A. § 12-9-602(b)(2) (separation reasons triggering review)
- A.C.A. § 12-9-603 (Commission revocation authority)
- Act 949 of 1997 (enabling legislation for affirmative employer duty)
- Commission Rules, Rule 1034 (decertification, disciplinary action, hearings)
- Doe v. Wright, 82 F.3d 265 (8th Cir. 1996) (due process for decertification)
Source
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