38-1104. Internal investigations; employee representative; polygraph examination; exception

A. If an employer interviews a law enforcement officer in the course of an administrative investigation and the employer or law enforcement officer reasonably believes that the interview could result in dismissal, demotion or suspension:

1. The law enforcement officer may request to have a representative of the officer present at no cost to the employer during the interview. The law enforcement officer shall select a representative who is available on reasonable notice so that the interview is not unreasonably delayed. The representative shall participate in the interview only as an observer. Unless agreed to by the employer, the representative shall not be an attorney and shall be from the same agency except that if a representative from the same agency is not reasonably available, with the employer's permission, the law enforcement officer's representative may be from the law enforcement officer's professional membership organization. The law enforcement officer's representative may take notes during the interview. The law enforcement officer and the officer's representative and attorney may use notes taken during the interview only to assist the officer in an investigation or a disciplinary matter. Notes taken by the law enforcement officer, the officer's representative or the officer's attorney do not constitute an official record of the interview. The law enforcement officer may discuss the officer's interview with the officer's representative or attorney. If the law enforcement officer or the officer's representative or attorney releases information without authorization, the employer may subject the law enforcement officer or the officer's representative, if the representative is from the same agency, to disciplinary action. The law enforcement officer shall be permitted reasonable breaks of limited duration during any interview for telephonic or in person consultation with authorized persons, including an attorney, who are immediately available. An employer shall not discipline, retaliate against or threaten to retaliate against a law enforcement officer for requesting that a representative be present or for acting as the representative of a law enforcement officer pursuant to this paragraph.

2. Before the commencement of any interview described in this section, the employer shall provide the law enforcement officer with a written notice informing the officer of the alleged facts that are the basis of the investigation, the specific nature of the investigation, the officer's status in the investigation, all known allegations of misconduct that are the reason for the interview and the officer's right to have a representative present at the interview. The employer shall provide the law enforcement officer with a copy of the written notice that the officer may retain. Along with the notice, the employer shall provide any relevant and readily available materials, including complaints that contain the alleged facts, except for complaints that are filed with the employer and that include allegations of unlawful discrimination, harassment or retaliation or complaints that involve matters under the jurisdiction of the United States equal employment opportunity commission. The format of the materials may be written, audio or video.

3. In the course of an administrative investigation, the law enforcement officer is allowed to record the officer's own interview. Recordings made by the law enforcement officer, the officer's representative or the officer's attorney do not constitute an official record of the interview.

4. At the conclusion of the interview, the law enforcement officer is entitled to a period of time to consult with the officer's representative and may make a statement not to exceed five minutes addressing specific facts or policies that are related to the interview.

B. Subsection A of this section does not require the employer to either:

1. Stop an interview to issue another notice for allegations based on information provided by the law enforcement officer during the interview.

2. Disclose any fact to the law enforcement officer or the law enforcement officer's representative that would impede the investigation.

C. Subsection A, paragraphs 1 and 2 of this section do not apply to an interview of a law enforcement officer that is:

1. In the normal course of duty, counseling or instruction or an informal verbal admonishment by, or other routine or unplanned contact with, a supervisor or any other law enforcement officer.

2. Preliminary questioning to determine the scope of the allegations or if an investigation is necessary.

3. Conducted during the course of a criminal investigation.

4. Conducted during the course of a polygraph examination.

D. The employer may require the law enforcement officer to submit to a polygraph examination if the officer makes a statement to the employer during the investigation that differs from other information relating to the investigation that is known to the employer and reconciling that difference is necessary to complete the investigation. If a polygraph examination is administered pursuant to this subsection, the employer or the person administering the polygraph examination shall make an audio recording of the complete polygraph procedure and provide a copy of the recording to the law enforcement officer. Section 38-1108 applies to a polygraph examination that is administered pursuant to this subsection.

E. If after an employer completes an investigation of a law enforcement officer the employer seeks disciplinary action, at the request of the law enforcement officer, the employer shall provide a basic summary of any discipline ordered against any other law enforcement officer of generally similar rank and experience employed by the employer within the previous two years for the same or a similar violation. As an alternative, the employer may provide file copies of the relevant disciplinary cases. The employer shall not take final action and the employer shall not schedule a hearing until the basic summary or file copies are provided to the law enforcement officer.

F. This section does not apply to a law enforcement officer who is employed by an agency of this state as an at will employee.