BEFORE THE PUBLIC SAFETY OFFICERS

STANDARDS AND TRAINING COUNCIL

OF THE STATE OF MONTANA

 

In the matter of the adoption of New Rule I; the amendment of ARM 23.13.101, 23.13.102, 23.13.201, 23.13.203, 23.13.205, 23.13.206, 23.13.207, 23.13.208, 23.13.209, 23.13.210, 23.13.211, 23.13.212, 23.13.214, 23.13.215, 23.13.301, 23.13.302, 23.13.702, 23.13.703, 23.13.704, 23.13.705, 23.13.713, 23.13.714, 23.13.719, 23.13.720, and 23.13.721; and the repeal of ARM 23.13.213 pertaining to the certification of public safety officers

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NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION, AMENDMENT, AND REPEAL

 

TO: All Concerned Persons

 

            1. On September 5, 2017, at 10:00 a.m., the Public Safety Officers Standards and Training (POST) Council will hold a public hearing in Room 214 of the Karl Ohs Building at the Montana Law Enforcement Academy, 2260 Sierra Road East, at Helena, Montana, to consider the proposed adoption, amendment, and repeal of the above-stated rules.

 

2. The POST Council will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the POST Council no later than 4:00 p.m. on August 29, 2017, to advise us of the nature of the accommodation that you need. Please contact Katrina Bolger, POST Council, 2260 Sierra Road East, Helena, Montana, 59602; telephone (406) 444-9974; or e-mail [email protected].

 

3. The rule as proposed to be adopted provides as follows:

 

NEW RULE I REQUIREMENTS FOR SWAT PRIMARY COURSE CREDIT

(1) To receive POST approval for a SWAT primary course, a course must meet the following requirements:

(a) the course must be a minimum of 40 hours in length and be approved pursuant to ARM 23.13.301 and 23.13.304 and must contain a minimum of the following:

(i) team communication, team make-up;

(ii) confrontation management to include preplanning, immediate action, planning, execution, post execution;

(iii) weapons, munitions, and equipment to include live fire, close quarter defense, crisis negotiations, intelligence gathering/ground reconnaissance, preplanning tactics, walk through, breaching techniques;

(iv) team movement and interior tactics to include approach, position, entry, search, static, dynamic, halls, stairs;

(v) open air/mobile assault, downed officer citizen rescue, chemical agents/diversionary device/less lethal, practical exercises, and legal issues.

(2) The director will review applications and approve or deny POST credit pursuant to these rules, unless the director determines, as a matter of discretion, that the council's review is necessary due to extenuating circumstances.

(3) Upon approval by the director, the course will be reflected on the attending officers' POST training transcripts unless the council takes further action.

 

AUTH: 2-15-2029, MCA

IMP: 44-4-403, MCA

 

REASON:  The council has statutory authority to establish training standards for public safety officers. This rule is reasonably necessary to set minimum proficiency standards for SWAT training. Proficient SWAT training is an important element of officer training, promoting both efficiency in the enforcement of the law and safety for the public.  The rule establishes standards for SWAT training courses provided for officers by their hiring agencies.  The council proposes to adopt these standards at this time at the request of several law enforcement agencies in Montana that wish to advance the level of training and professionalism of their officers.

 

4. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

 

            23.13.101 ORGANIZATION AND GENERAL PROVISIONS, PUBLIC INSPECTION OF ORDERS AND DECISIONS (1) remains the same. 

            (2) POST will maintain an index of all final orders and decisions in contested cases and declaratory rulings. All final decisions and orders must be available for public inspection on request, except confidential information which is protected from disclosure by federal or state law. Copies of final decisions and orders must be given to the public on request after payment of the cost of duplication.

 

AUTH: 2-15-2029, MCA

IMP: 2-4-201, 2-4-623, 2-15-2029, 44-4-403, MCA

 

REASON:  The 2015 Legislature designated POST a criminal justice agency for the purpose of receiving confidential criminal justice information. The amendment of this rule is necessary to ensure that POST complies with the Montana Criminal Justice Information Act. This rule clarifies that POST's rulings remain available for public inspection subject to the limitations on criminal justice agencies.

 

23.13.102 DEFINITIONS As used in this chapter, the following definitions apply:

(1) through (3) remain the same.

(4) "Conviction" means a judgment or sentence entered upon a guilty or nolo contendere plea or upon a verdict or finding of guilty rendered by a legally constituted jury or by a court of competent jurisdiction authorized to try the case without a jury, without regard to the sentence imposed or whether the charge is later dismissed.

(4) through (16) remain the same but are renumbered (5) through (17).

(18) "POST certified instructor" means a public safety officer, as defined in these rules, who has met the requirements for and received an Instructor Certificate pursuant to these rules, and may apply for and receive approval for POST training credit pursuant to these rules, for trainings the officer conducts.

(17) through (19) remain the same but are renumbered (19) through (21).

(20)(22) "Revocation" means the permanent cancellation by the director or council of a public safety officer's POST certificate, certification, and certifiability such that the performance of public safety officer duties is no longer permitted.

(21) and (22) remain the same but are renumbered (23) and (24).

(25) "Substance abuse" means the use of illegal drugs, other illegal substances, or legally acquired drugs in a manner that substantially limits the officer's ability to perform the essential duties of a public safety officer, or poses a direct threat to the health or safety of the public or a fellow officer.

(23) remains the same but is renumbered (26).

 

AUTH: 2-15-2029, 44-4-402, MCA

IMP: 2-15-2029, 44-4-403, MCA

 

REASON:  The amendments to this rule provide clarity regarding several terms which the POST Council has used in its rules. The addition of the term "conviction" is necessary because POST, in its discretion, has decided that in the context of its jurisdiction a definition that differs from the one provided in 46-1-202, MCA is needed to meet the public interest and protect the public.  Specifically, POST has observed that an officer who pleaded guilty to an offense under the definition of "conviction" found in Title 46, MCA, is eligible to have the charge dismissed after successful completion of probation if the court decides to defer imposition of sentence.  When the offense is one that can trigger POST disciplinary action, POST finds that consideration of the offense even if dismissed following a deferred imposition of sentence can protect the public interests in some cases.  The proposed rule will allow the council to take these dismissed charges into account for disciplinary purposes if the officer pleads guilty, even if the officer successfully completes probation and the charge is dismissed.  The addition of "POST certified instructor" is necessary to effectuate the changes made in the proposed amendments to ARM 23.13.212.  Those amendments delete existing language providing for discipline-specific instructor certificates and clarify who may apply for credit for a training course.  The addition of "substance abuse" is necessary to clarify the meaning of the term as used in the proposed amendments to ARM 23.13.702(2)(c).  It is a new term and requires a specific definition to provide fairness for officers whose conduct brings them before POST in an action to deny, suspend, or revoke a certificate.

 

23.13.201  MINIMUM STANDARDS FOR THE APPOINTMENT AND CONTINUED EMPLOYMENT OF PUBLIC SAFETY OFFICERS (1) through (2)(c) remain the same.

(d) not have been convicted of a crime for which they could have been imprisoned in a federal or state penitentiary or a crime involving unlawful sexual conduct;

(e) be of good moral character as determined by a thorough background check;

(e) through (h) remain the same but are renumbered (f) through (i).

(i) (j) take an oath containing the code of ethics and abide by the code of ethics contained in ARM 23.13.203; and

(j) remains the same but is renumbered (k).

(3) The POST Council is not responsible for maintaining records of continuing education hours acquired to satisfy the requirements of (2)(i) and (2)(j) and (2)(k). The employing agency must maintain records of the administration of the oath and the continuing education hours acquired to satisfy (2)(i) and (2)(j) and (2)(k). Agency records maintained under this rule are subject to audit by the executive director during normal business hours upon reasonable notice to the agency.

 

AUTH: 2-15-2029, MCA

IMP: 2-15-2029, 44-4-403, MCA

 

REASON:  The Montana POST Council recognizes the need for public safety officers in Montana to be held to the highest standard. These amendments provide that all public safety officers must be of good moral character, which is currently only required of peace officers in 7-32-303, MCA.  The proposed amendment, by including the requirements for good moral character in this rule which is applicable to all public safety officers, extends this requirement to all public safety officers under POST's jurisdiction.  These amendments also remove the requirement that the code of ethics be administered as an oath, due to constitutional concerns which were raised in the 2017 Legislature that the only lawful oath of office for public officers is the one found in Article III, section 3 of the Montana Constitution.

 

23.13.203  CODE OF ETHICS (1) All public safety officers who have been hired or employed by any agency or entity in Montana, or who have been certified by POST, or who have attended an MLEA basic class must be administered an oath regarding abide by the code of ethics contained herein.

(2) The procedure for administration of the code of ethics is as follows:

(a) each officer will attest to this code of ethics and the oath shall be administered by the officer's employing authority, or by the MLEA administrator or designee, or by the POST director or POST staff;

(b) the officer and the individual administering the oath will sign the public safety code of ethics; and

(c) at least one copy will be retained by the officer or the officer's employing authority and will be made available for inspection by POST staff at any reasonable time.

(3)(2)  All public safety officers hired or sworn before this rule's effective date are also bound by the code of ethics contained in this rule, even if it was not previously administered to them as an oath. Continued employment as a public safety officer in Montana constitutes an agreement to be bound by this code of ethics. Failure to comply with or violation of any part of the code of ethics may be grounds for suspension, sanction, or revocation of any POST certificate.

(4)(3)  The oath of the public safety officers' code of ethics is:

(a) through (i) remain the same.

 

AUTH: 2-15-2029, MCA

IMP: 2-15-2029, 7-32-303, 44-4-403, MCA

 

REASON:  These amendments remove the requirement that the code of ethics be administered as an oath, due to constitutional concerns which were raised in the 2017 Legislature. See explanation of amendments to ARM 23.13.201.

 

23.13.205  GENERAL REQUIREMENTS FOR CERTIFICATION (1) and (2) remain the same.

(3) All public safety officers must subscribe to abide by the code of ethics as prescribed in ARM 23.13.203. Acceptance of POST certification is an agreement to abide by and adopt the code of ethics and refrain from the behaviors outlined in ARM 23.13.702.

(4) through (5)(b) remain the same.

(c) maintain the continuing education and training requirements set forth by the council and ARM 23.13.201(2)(j)(k).

(6) and (7) remain the same.

(8) In calculating the training hours for an intermediate, advanced, or supervisory certificate, military training will be accepted hour for hour.  The application must be accompanied by only with a written explanation of that describes the training and states specifically how the training relates to and assists the public safety officer with the public safety officer's current position, duties and responsibilities, civilian law enforcement and other supporting documents requested by the director. A description of the training alone is not sufficient.

(9) In calculating the training hours for an intermediate, advanced, or supervisory certificate, college education will be credited for individual class work only. Credit will be given using the formula of ten hours for one semester credit hour and six hours for one quarter credit hour, and.  The application must be accompanied by a written explanation of that describes the course and states specifically how the higher education course relates to and assists the public safety officer with the public safety officer's current position, duties and responsibilities, work and other supporting documents including a transcript requested by the director.  

(10) remains the same.

 

AUTH: 2-15-2029, MCA

IMP: 2-15-2029, 44-4-403, MCA

 

REASON:  The amendments to this rule are necessary to clarify the existing rule and inform public safety officers of the type of information required by POST if a public safety officer wishes to obtain POST credit for military training or college courses. The rule change reflects current POST policy, provides clear notice to applicants, and gives current policy the force of law.  These amendments also remove the requirement that the code of ethics be administered as an oath, due to constitutional concerns which were raised in the 2017 Legislature.  See explanation of amendments to ARM 23.13.201.

 

23.13.206  REQUIREMENTS FOR THE BASIC CERTIFICATE (1) POST will issue basic certificates in the following disciplines:

(a) peace officer;

(b) detention/corrections officer;

(c) probation and parole officer;

(d) public safety communications officer;

(e) coroner; and

(f) reserve officer.

(1)(2) In addition to ARM 23.13.204 and 23.13.205, the following are required for the award of the basic certificate:

(a) Public safety officers hired after the effective date of this regulation August 1, 2008, must have completed:

(i) and (ii) remain the same.

(b) Public safety officers hired before the effective date of this regulation August 1, 2008, must have:

(i) through (d) remain the same.

(e) The council may grant a one-time extension to the one year time requirement for public safety officers upon the written application of the public safety officer and the officer's appointing authority of the officer. The application must explain the circumstance(s) that make(s) the extension necessary. The council may not grant an extension to exceed 180 days. Factors that the council may consider in granting or denying the extension include but are not limited to:

(i) through (f) remain the same.

(g) If the last date of employment as a public safety officer is more than 36 months but less than 60 months prior to the date of present employment as a public safety officer, the public safety officer may satisfy the basic requirement by successfully passing a basic equivalency course administered by the academy. If the public safety officer fails the basic equivalency course, the basic course shall be completed within the time frames set forth in the rules. If no basic equivalency course exists for the public safety officer's specific discipline, then the applicable basic course must be completed within 36 months of the last date of employment one year of the public safety officer's most recent appointment.

(2) remains the same but is renumbered (3).

 

AUTH: 2-15-2029, MCA

IMP: 2-15-2029, 44-4-403, MCA

 

REASON: The amendments to this rule are necessary to provide clarity regarding the certificates the council issues and what a public safety officer must do to meet the basic requirements based upon when the officer was appointed.  The amendments identify the disciplines in which a basic certificate will be issued, information that is absent from the existing rule.  The amendments delete the reference to "POST approved" training because POST's administrative rules provide for officers to use a portion of in service training, which is not POST-approved, toward certification.  The substitution of a specific date in place of the term "effective date of this regulation" provides necessary clarity in light of the fact that this rule has been amended multiple times, creating ambiguity as to which effective date is the proper reference.  The date provided is the original effective date of the first iteration of this rule. Finally, the changing timeframe in proposed (2)(g) is intended to promote consistency with 7-32-303, MCA, which states that an officer has one year to attend a basic academy.

 

23.13.207  REQUIREMENTS FOR THE PUBLIC SAFETY OFFICER INTERMEDIATE CERTIFICATE (1) POST will issue intermediate certificates in the following disciplines:

(a) peace officer;

(b) detention/corrections officer;

(c) probation and parole officer; and

(d) public safety communications officer.

(1)(2) In addition to ARM 23.13.204 and 23.13.205, the applicant for an award of the public safety officer intermediate certificate:

(a) must have served at least one year with the present employing agency and is be satisfactorily performing the duties as attested to by the head of the employing law enforcement and/or public safety agency;

(b) remains the same.

(c) must have four years of discipline-specific experience and 200 combined job-related POST-approved training hours as provided for in these rules.

(2) remains the same but is renumbered (3).

 

AUTH: 2-15-2029, MCA

IMP: 2-15-2029, 44-4-403, MCA

 

REASON:  The amendments to ARM 23.13.207, 23.13.208, 23.13.209, 23.13.210, and 23.13.211 identify the disciplines in which certificates will be issued, information that is absent from the existing rules.  The amendments delete the reference to "POST approved" training because POST's administrative rules provide for officers to use a portion of in-service training, which is not POST-approved, toward certification.

 

23.13.208  REQUIREMENTS FOR PUBLIC SAFETY OFFICER ADVANCED CERTIFICATE (1) POST will issue advanced certificates in the following disciplines:

(a) peace officer;

(b) detention/corrections officer;

(c) probation and parole officer; and

(d) public safety communications officer.

(1)(2) In addition to ARM 23.13.204 and 23.13.205, the applicant for an award of the advanced certificate:

(a) must possess the discipline-specific intermediate certificate; and

(b) must have eight years' of discipline-specific experience and 400 combined job-related POST-approved training hours as provided for in these rules.

            (2) remains the same but is renumbered (3).

 

AUTH: 2-15-2029, MCA

IMP: 2-15-2029, 44-4-403, MCA

 

REASON:  See explanation with respect to ARM 23.13.207.

 

23.13.209 REQUIREMENTS FOR PUBLIC SAFETY OFFICER SUPERVISORY CERTIFICATE (1) POST will issue supervisory certificates in the following disciplines:

(a) peace officer;

(b) detention/corrections officer;

(c) probation and parole officer; and

(d) public safety communications officer.

(1) through (3) remain the same but are renumbered (2) through (4).

 

AUTH: 2-15-2029, MCA

IMP: 2-15-2029, 44-4-403, MCA

 

REASON:  See explanation with respect to ARM 23.13.207.

 

23.13.210 REQUIREMENTS FOR PUBLIC SAFETY OFFICER COMMAND CERTIFICATE (1) POST will issue command certificates in the following disciplines:

(a) peace officer;

(b) detention/corrections officer;

(c) probation and parole officer; and

(d) public safety communications officer.

(1) and (2) remain the same but are renumbered (2) and (3).

 

AUTH: 2-15-2029, MCA

IMP: 2-15-2029, 44-4-403, MCA

 

REASON:  See explanation with respect to ARM 23.13.207.

 

23.13.211 REQUIREMENTS FOR PUBLIC SAFETY OFFICER ADMINISTRATIVE CERTIFICATE (1) POST will issue administrative certificates in the following disciplines:

(a) peace officer;

(b) detention/corrections officer;

(c) probation and parole officer; and

(d) public safety communications officer.

(1) through (3) remain the same but are renumbered (2) through (4).

 

AUTH: 2-15-2029, MCA

IMP: 2-15-2029, 44-4-403, MCA

 

REASON:  See explanation with respect to ARM 23.13.207.

 

23.13.212  INSTRUCTOR CERTIFICATION REQUIREMENTS (1) Instructor certificates are not discipline-specific and POST may issue an instructor certificate to any public safety officer who meets the qualifications in these rules.

(1)(2) Persons A public safety officer providing POST approved training courses and employed by public safety agencies must be certified by the council as an instructor.

(2)(3) A "primary instructor" is one who delivers a specific lesson plan pertaining to a discipline. To qualify as an primary instructor, the person officer shall apply to the council, on a form approved by the council, and shall meet the following requirements:

(a) remains the same. 

(b) education or training in the specific field, subject matter, or academic discipline to be taught an active POST basic certificate in the officer's current discipline;

(c) must have successfully completed a 40-hour minimum instructor development course or equivalent approved by the director; an endorsement from the applicant's agency head; and

(d) successful completion of a POST-approved instructor development course. Effective [the effective date of this rule], all instructor development courses must be a minimum of 40 hours in length and must include a minimum of the following:

(i) 12 hours of curriculum design;

(ii)  8 hours of adult learning theories;

(iii) 8 hours of foundation skills for trainers;

(iv) 8 hours of training preparation and delivery; and

(v) 4 hours of context of training.

(d) must have an endorsement from the applicant's agency head to deliver a specific lesson plan pertaining to a discipline; and

(e) must submit the specific lesson plan that is at least two hours in length, and which includes performance objectives, instructional strategies, and complete course content.

(3) Master instructors must possess the competencies to adequately develop and deliver a broad range of curricula pertaining to a specific discipline. To qualify as a master instructor, the person shall apply to the council, on a form approved by the council, and shall meet the following requirements:

(a) must possess a primary instructor certificate;

(b) must successfully complete a minimum 40 hour curriculum design and development course or equivalent approved by the council;

(c) must have an endorsement from the POST director, or designee, attesting to the applicant's competencies; and

(d) must have endorsement from applicant's agency head. 

(4) Professional instructors are certified to deliver and instruct a broad range of topic matters to which independent accreditation is not required as a condition of delivery as prescribed by the council. To qualify as a professional instructor, the person shall apply to the council on a form approved by the council, and shall meet the following requirements:

(a) must be employed by a public safety agency as a full-time training and development specialist or equivalent;

(b) must have endorsement from the POST director or designee and agency administrator; and

(c) meet all of the requirements necessary to qualify as a master instructor as required by (3).

(5) The council will certify approved primary and master instructors to instruct in those specific subjects for which the council has found them qualified. Each certified instructor will be listed in an official register of the council, and for each primary and master instructor, each subject that instructor is certified to teach will be noted in the register.

(6) Initial primary and master instructor certificates shall be issued for a period of 24 months. At the end of the initial time period, certificates may be renewed for an additional 24 months, providing the instructor has remained current in the applicable discipline. This may be accomplished through continuing education and by actively instructing the course(s).

(7)(4) After four years of continuous certification, all instructors may be recertified for a four-year period Instructor certificates in any discipline issued prior to [the effective date of this rule] and any instructor certificate issued after [the effective date of this rule] may be renewed every four years.

(8)(5)  The council or the director may deny applications for instructor certification for failure to satisfy the required qualifications. The council or the director may recall, suspend, or revoke primary and master instructor certificates at any time for good cause to ensure the quality of the training programs. In addition, any primary and master instructor who has not instructed during a certification period shall be required to reapply for original certification.

(9) remains the same but is renumbered (6).

 

AUTH: 2-15-2029, MCA

IMP: 2-15-2029, 44-4-403, MCA

 

REASON:  These amendments are necessary to simplify and clarify the application and approval process for POST-certified instructors. This rule provides clear and concise standards for the instructor development course required of POST-certified instructors.  POST has determined, in its discretion, that issuance of discipline-specific instructor certificates is too cumbersome and burdensome on both applicants for certification and the POST's staff.  These amendments provide for a single instructor certificate that allows the certified person to instruct in any discipline, as long as the other requirements for conduct of training courses are met.  Existing provisions governing instructor training are deleted, and more streamlined procedures added.  The reference to "director" in (5) reflects existing practice.

 

23.13.214 EMPLOYMENT AND TRAINING OF RESERVE OFFICERS 

(1) through (3) remain the same.

(4) Upon notice of the reserve officer's qualification, made by the reserve officer's agency head to the director on a form approved by the council, POST will issue a reserve officer basic certificate to the reserve officer.

 

AUTH: 2-15-2029, MCA

IMP: 7-32-214, 44-4-401, 44-4-403, MCA

 

REASON:  These amendments clarify that a reserve officer's appointing authority must notify POST of the officer's qualification for a reserve basic certificate.  POST has not previously provided by rule for certification of reserve officers, despite the fact that such officers meet the definition of "public safety officer" in MCA 44-4-401(2).  The amendments explain the criteria for issuance of a certificate to a reserve officer.  The amendments are necessary to provide fairness for reserve officers who claim entitlement to certification.

 

23.13.215 FIREARMS PROFICIENCY STANDARDS (1) and (1)(a) remain the same.

(b) designate a POST-certified agency firearms instructor to document annual firearms proficiency, which must include:. The instructor must have attended a minimum 40-hour firearms instructor course or its equivalent, which includes the following topics:

(i) firearms safety;

(ii) role of the instructor;

(iii) civil and criminal liability exposure;

(iv) instructional techniques for firearms instructors;

(v) operation of the firing line;

(vi) range preparation;

(vii) handgun;

(viii) disabled officer techniques; and

(ix) low light shooting techniques.

(i) date of qualification;

(ii) identification of the officer;

(iii) firearm manufacture and model;

(iv) results of qualifying; and

(v) course of fire used.

(c) keep on file in a format readily accessible to the council a copy of all firearms proficiency records., which must include:

(i) date of qualification;

(ii) identification of the officer;

(iii) firearm manufacture and model;

(iv) results of qualifying; and

(v) course of fire used.

            (2) through (4) remain the same.

 

AUTH: 2-15-2029, MCA

IMP: 7-32-303, 44-4-403, MCA

 

REASON:  With the changes POST has made to its instructor rule, these changes are necessary to clarify who may perform firearms qualifications for public safety officers and the training required to perform that function.

 

23.13.301 QUALIFICATIONS FOR APPROVAL OF PUBLIC SAFETY OFFICER TRAINING COURSES (1) and (2) remain the same.

(3) To receive POST training credit, employing agencies or any person or entity a POST-certified instructor seeking course credit for POST-certified public safety officers must have an active POST certificate that is not suspended or on probation and must submit to the director:

(a) an application for accreditation;

(b) instructor certification or training record and an instructor biography an education or training record that indicates the officer has received education or training in the specific field, subject matter, or academic discipline to be taught;

(c) material showing course content, including a an agenda, syllabus and/or lesson plan and student handouts.; and

(d) a copy of the course advertisement.

(4) To receive POST training credit, any other person or entity seeking course credit for a public safety officer or officers must submit to the director:

(a) an application for accreditation;

(b) an instructor certification or training record and an instructor biography;

(c) material showing course content, including an agenda, syllabus and/or lesson plan and student handouts; and

(d) a copy of the course advertisement.

(4) remains the same but is renumbered (5).

 

AUTH: 2-15-2029, MCA

IMP: 2-15-2029, 44-4-403, MCA

 

REASON:  See explanation with regard to ARM 23.13.215.  These amendments state clearly what a POST-certified instructor or other instructor must submit to POST in order to receive POST training credit for a course.  These amendments address issues that have arisen in which persons have sought approval for training in situations that are not clearly covered by the existing rule. The amendments are necessary to eliminate ambiguity and promote fairness for persons seeking course approval.

 

23.13.302 REQUIREMENTS FOR TRAINEE ATTENDANCE AND PERFORMANCE IN POST APPROVED COURSES (1) remains the same.

(2) Each trainee shall be required to attend all sessions of any training course in which they are enrolled, except for absences approved by the course coordinator. No trainee shall may receive credits for a training course if absences exceed 10% of the total hours for the course.

(3) remains the same.

(4) A POST-certified instructor will not receive training credit for any training in which the POST-certified instructor provides instruction.

(4) remains the same but is renumbered (5).

 

AUTH: 2-15-2029, MCA

IMP: 2-15-2029, 44-4-403, MCA

 

REASON:  The Montana POST Council has not recognized any training credit for an instructor who is teaching a course. These amendments are necessary to bring POST's rules in line with its current practice and promote fairness to instructors. In addition, the amendments are necessary to establish attendance requirements for public safety officers who wish to obtain POST credit for a training.

 

23.13.702 GROUNDS FOR DENIAL, SANCTION, SUSPENSION, OR REVOCATION OF POST CERTIFICATION (1) The executive director or the council will consider any legitimate allegation made against any public safety officer that may result in the denial, sanction, revocation, or suspension of that officer's certification.

(2) The grounds for denial, sanction, suspension, or revocation of the certification of public safety officers are as follows:

(a) and (b) remain the same.

(c) the unlawful use of or addiction to any controlled substances or other drug(s) that substantially limits the officer's ability to perform the essential duties of a public safety officer, or poses a direct threat to the health and safety of the public or fellow officers, and that cannot be eliminated or overcome by reasonable treatment;

(c) engaging in substance abuse as defined in these rules;

(d) through (i) remain the same.

(j) failure to meet the minimum standards for appointment or continued employment as a public safety or peace officer set forth in these rules or Montana law;

(k) through (o) remain the same.

(3) It is a defense to an allegation of substance abuse, as defined in these rules, if the officer shows by a preponderance of the evidence that the officer's substance abuse could be eliminated or overcome by reasonable treatment.

 

AUTH: 2-15-2029, MCA

IMP: 2-15-2029, 44-4-403, MCA

 

REASON:  These amendments recognize the council and director's authority to deny an application for POST certification and provide clarity and consistency with language in other rules.  The existing rules are unclear with respect to how the use of drugs or other legal or illegal substances may provide grounds for POST discipline.  By providing a clear definition of "substance abuse" in the proposed amendment to ARM 23.13.102 and then incorporating that definition in this rule, POST provides notice to certified officers of conduct that may lead to discipline before POST.  In addition to providing notice, this rule also provides the officer with a defense when facing a substance abuse allegation.  

 

23.13.703  PROCEDURE FOR MAKING AND RECEIVING ALLEGATIONS OF OFFICER MISCONDUCT AND FOR INFORMAL RESOLUTION OF THOSE ALLEGATIONS BY THE DIRECTOR (1) remains the same.

(2) Any allegation made against a public safety officer that states potential grounds for sanction, suspension, or revocation of POST certification must be made initially to the employing authority of the officer in question by the individual making the allegation, unless the employing authority is making the allegation. All allegations must be made in writing unless the director initiates the allegation. Anonymous allegations will not be considered unless the director determines that public safety may be threatened if POST takes no action on an anonymous allegation.

(3) through (5)(b) remain the same.

(c) A person or entity making an allegation is encouraged to must use the allegation form available from POST staff or submit an allegation in substantially similar format.

(d) An employing authority or the Montana Law Enforcement Academy may submit a written allegation on the agency's letterhead with supporting documents that the agency deems appropriate.

(6) and (7) remain the same.

(8) After an allegation is made by or filed with the director, the director, contested case counsel for POST, the POST compliance officer and investigator, or other POST staff or designees will investigate the complaint.

(9) through (9)(c) remain the same.

(d) issue the appropriate denial, sanction, suspension, or revocation of a certificate; 

(e) if a denial, sanction, suspension, or revocation is imposed, the director must provide a notice of agency action in writing to the officer, satisfying the notice required by 2-4-601, MCA;

(f) remains the same.

(10) If a review of the conduct of an officer is pending before any court, council, tribunal, or agency, the director may, as a matter of discretion, stay any proceedings for denial, sanction, suspension, or revocation and suspension pending before the council, no matter what stage or process they have reached, until the other investigation or proceeding is concluded. If the case has already been assigned to a hearing examiner, the hearing examiner must grant a stay based on an application by the director or counsel for POST.

(11) remains the same.

 

AUTH: 2-15-2029, MCA

IMP: 2-4-201, 2-15-2029, 44-4-403, MCA

 

REASON:  By statute, POST has the authority to deny an application for certification or to impose discipline on a certified officer.  These amendments provide clarity to persons wishing to submit an allegation to POST in regards to the format they should use. They also delete a reference to a position of employment that no longer exists on the POST staff.  The position of "compliance officer and investigator" has been reclassified and redesignated.

 

23.13.704 REQUESTS FOR A FORMAL CONTESTED CASE HEARING UNDER MAPA FOLLOWING SANCTION, SUSPENSION, OR REVOCATION OF POST CERTIFICATION BY THE DIRECTOR (1) Any person aggrieved by a decision of the director or a decision of the council, other than a decision by the director to deny, sanction, suspend, or revoke a certificate, that is not a final decision following a contested case hearing, as provided in 2-4-623, MCA, may request a contested case hearing before the council by following the procedures set forth in Title 2, chapter 4, part 6, MCA.

(1)(2) If the director denies, sanctions, suspends, or revokes an officer's POST certification pursuant to ARM 23.13.703(9) and the officer receives a notice of agency action, then the officer has the right to request a formal contested case proceeding under MAPA, to include a hearing, pursuant to 44-4-403(3), MCA.

(2)(a) The proceedings and hearing can only be initiated by a request from the officer whose certificate was denied, sanctioned, suspended, or revoked, and not by any other person or entity.

(3) and (4) remain the same but are renumbered (b) and (c).

 

AUTH: 2-15-2029, MCA

IMP: 2-4-201, 2-15-2029, 44-4-403, MCA

 

REASON:  The amendments to ARM 23.13.704, 23.13.707, 23.13.713, 23.13.714, 23.13.720, 23.13.721 are necessary to clarify that any aggrieved party may request a contested case hearing under MAPA.  POST makes decisions on matters that do not involve denial, suspension, or revocation of a certificate.  The existing rules regarding contested cases refer only to denials, suspensions, or revocation.  These rule amendments broaden the contested case rules to provide due process to persons who may be aggrieved by a POST decision in a non-disciplinary matter. 

 

23.13.705 FORMAL MAPA CONTESTED CASE PROCEEDINGS (1) A contested case involves a determination by POST that affects the rights or responsibilities of the petitioner or respondent.

(2) Contested case proceedings may be commenced only after the requirements of ARM 23.13.704 have been met and an officer or other aggrieved person has requested a hearing.

(3) Formal proceedings for suspension or revocation Contested case proceedings before the council are subject to MAPA, in addition to, where applicable, the Montana Rules of Civil Procedure, the Montana Uniform District Court Rules, the Montana Rules of Evidence, the Montana Rules of Professional Conduct, the Montana Code of Judicial Conduct, and these rules.

(4) A In cases under ARM 23.13.704(2), the respondent's failure to respond, appear, or otherwise defend a notice of agency action of which the respondent has had notice, may result in the hearing examiner finding the officer in default and entering an order against the officer containing findings of fact, conclusions of law, and an opinion in accordance with MAPA, Montana Rules of Civil Procedure, and any other rule of law applicable.

(5) remains the same.

(6) In cases under ARM 23.13.704(2), Ccontested case counsel for POST will represent POST the director during the proceedings.

 

AUTH: 2-4-201, 2-15-2029, MCA

IMP: 2-4-201, Title 2, ch. 4, pt. 6, 2-15-2029, 44-4-403, MCA

                                  

REASON:  See explanation of amendments to ARM 23.13.704.

 

23.13.713 CONTESTED CASES – HEARING EXAMINERS (1) and (2) remain the same.

(3) If a hearing examiner is appointed in a contested case proceeding, notice must be provided to the public safety officer or other party with the notice of agency action or immediately after the officer requests a hearing pursuant to 44-4-403, MCA.

(4) through (6) remain the same.

 

AUTH: 2-4-201, 2-15-2029, MCA

IMP: 2-4-201, 2-4-202, 2-4-611, 2-4-612, 44-4-403, MCA

                                  

REASON:  See explanation of amendments to ARM 23.13.704.

 

23.13.714 CONTESTED CASE HEARING (1) and (2) remain the same.

(3) At the contested case hearing, the respondent has the burden of proving by a preponderance of the evidence that there was no basis for the sanction, suspension, or revocation of certification imposed by the director, as stated in the notice of agency action.

(4) The director may be represented by contested case counsel during the contested case process.

(5) (3) The hearing examiner must ensure that the petitioner or respondent and counsel for POST are afforded the opportunity to respond and present evidence and argument on all issues involved.

(6) Absent a determination by the hearing examiner that the interests of justice require otherwise, the order of hearing is as follows:

(a) opening statements by both parties;

(b) presentation of evidence by the respondent;

(c) cross examination by POST;

(d) presentation of evidence by POST;

(e) cross examination by the respondent; and

(f) rebuttal testimony.

(7) through (10) remain the same but are renumbered (4) through (7).

(8) At the contested case hearing under ARM 23.13.704(2):

(a)  the respondent has the burden of proving by a preponderance of the evidence that there was no basis for the denial, sanction, suspension, or revocation of certification imposed by the director, as stated in the notice of agency action;

(b) the director will be represented by contested case counsel during the contested case process; and

(c) absent a determination by the hearing examiner that the interests of justice require otherwise, the order of hearing is as follows:

(i) opening statements by both parties;

(ii) presentation of evidence by the respondent;

(iii) cross examination by POST;

(iv) presentation of evidence by POST;

(v) cross examination by the respondent; and

(vi) rebuttal testimony.

 

AUTH: 2-4-201, 2-15-2029, MCA

IMP: 2-4-201, 2-4-202, 2-4-611, 2-4-612, 44-4-403, MCA

                                  

REASON:  See explanation of amendments to ARM 23.13.704.

 

23.13.719 DECISION AND ORDER, STAYS (1) through (5) remain the same.

(6) If a certificate was denied, revoked, or suspended by the director before the hearing, the certificate will remain denied, revoked, or suspended pending the outcome of the contested case proceeding and the respondent must surrender the certificate(s) to the council and forfeit the position, authority, and powers afforded the officer in this state while the contested case proceeds. However, the hearing examiner, before the contested case hearing, or the special master designated in (3), after the hearing, may, upon a properly supported motion that affords POST adequate opportunity to respond, stay the denial, suspension, or revocation for good cause shown.

 

AUTH: 2-15-2029, MCA

IMP: 2-15-2029, 44-4-403, MCA

                                  

REASON:  An earlier amendment adds denials of a public safety officer's certificate as a possible sanction. The amendments to this rule are necessary to clarify that POST's contested case jurisdiction extends to denials of certification.

 

23.13.720 CONTESTED CASES, SETTLEMENT OR STIPULATION AND PROCESS FOR REVIEW BY THE POST COUNCIL (1) If, in the course of the MAPA contested case proceeding, the parties reach a stipulated agreement or settlement, the parties must:

(a) put the agreement into writing, signed by the petitioner or respondent, as applicable, or the respondent's legal representative and the director;

(b) and (2) remain the same.

 

AUTH: 2-4-201, 2-15-2029, MCA

IMP: 44-4-403, MCA

                                  

REASON:  See explanation of amendments to ARM 23.13.704.

 

23.13.721 APPEALS (1) A respondent party, other than the council, adversely affected by a final POST Council decision rendered after a contested case proceeding, may appeal to the Montana Board of Crime Control pursuant to ARM 23.14.1004 and 44-4-403(3), MCA. The decision of the Montana Board of Crime Control is the final agency decision subject to judicial review pursuant to 2-4-702, MCA.

(2) The council may appeal to the Board of Crime Control under the conditions provided in Title 2, chapter 4, part 6, MCA.

 

AUTH: 2-15-2029, MCA

IMP: 2-4-201, 2-15-2029, 44-4-403, MCA

           

REASON:  See explanation of amendments to ARM 23.13.704.

 

5. The department proposes to repeal the following rule:

 

23.13.213  REQUIREMENTS FOR DESIGNATED INCIDENT COMMAND CERTIFICATION

 

AUTH: 2-15-2029, MCA

IMP: 2-15-2029, 44-4-403, MCA

                                  

REASON:  The designated incident command certificate is no longer necessary for the Montana POST Council as POST no longer recognizes federal officers for certification. Montana public safety officers who participate in incident command do so through federal agencies.  The rule therefore applies to a practice that does not exist.

 

            6. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Katrina Bolger, POST Council, 2260 Sierra Road East, Helena, Montana, 59602; telephone (406) 444-9974; or e-mail [email protected], and must be received no later than 5:00 p.m., September 18, 2017.

 

7. Chris D. Tweeten, Attorney at Law, has been designated to preside over and conduct this hearing.

 

8. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency.  Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 6 above or may be made by completing a request form at any rules hearing held by the department.

 

9. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

 

10. With regard to the requirements of 2-4-111, MCA, the department has determined that the adoption, amendment, and repeal of the above-referenced rules will not significantly and directly impact small businesses.

 

 

/s/ Matt Cochenour                                     Sheriff Tony Harbaugh

Matt Cochenour                                           Chairman

Rule Reviewer                                             Public Safety Officers Standards

                                                                        and Training Council

 

                                                                 By: /s/ Perry Johnson                           

                                                                        Perry Johnson

                                                                        Executive Director

           

Certified to the Secretary of State July 24, 2017.