July 24, 1986
Mr. Thomas Disburg
Executive Secretary
Law Enforcement Standards and Training Commission
Rol Kebach Criminal Justice Training Center
Pierre, South Dakota 57501-5050
OFFICIAL OPINION NO. 86-31
Re: Re-certification of law enforcement officers
Dear Mr. Disburg:
You have requested an official opinion based upon the following factual situation:
FACTS:
ARSD 2:01:02:07 on revocation of certification of a law enforcement officer provides as follows:
Upon the application of any person, or upon the application of member of the division of criminal investigation and upon proof that a certified law enforcement officer has been convicted of or received a suspended imposition of sentence for a misdemeanor involving moral turpitude or a felony, has falsified any information required to obtain certification or has been discharged for cause from employment as a law enforcement officer, the commission shall revoke the certification of the law enforcement officer.
Based upon these facts you have asked the following questions:
QUESTIONS:
1. What does the word 'cause' mean in ARSD 2:01:02:07?
2. If a certified officer has been revoked under this rule relative to the phrase 'has been convicted of or received a suspended imposition of sentence for a misdemeanor involving moral turpitude or a felony,' can he/she reapply for certification as a law enforcement officer?
3. If a certified officer has been revoked under this rule because of an admission of a criminal act but without prosecution, does this constitute a discharge for cause from employment under the rule?
4. If a certified officer has been revoked under this rule because of an admission of a criminal act but without prosecution, can he/she reapply for certification as a law enforcement officer?
IN RE QUESTION NO. 1:
Initially, let me state that it is difficult to provide you with an all- encompassing definition of the term 'discharge for cause' as contemplated by ARSD 2:01:02:07 as it is not so much a term capable of ready definition as it is a legal conclusion that the Law Enforcement Standards and Training Commission must make from the facts and circumstances of a particular case. With that said, I will mention some common 'causes' which justify the dismissal of an employee, including: neglect of duty, negligence, incompetence or inefficiency; dishonesty; intoxication; disobedience of an employer's rules, instructions or orders; insolence or disrespect; unfaithfulness to the employer's interests; immoral, disreputable, and unbecoming conduct or anything else which indicates the employee's unfitness for the service for which he was engaged or which is contrary to a faithful and diligent performance thereof. 53 Am.Jur. 2d Master and Servant § 49 (1970).
The above-referenced causes for dismissal are not, of course, all-inclusive. This is particularly true in the case of a law enforcement officer as he or she would usually be a civil service or public employee subject to discharge only on grounds or for causes authorized by civil service laws. 15A Am.Jur. 2d Civil Service § 61 (1976). This is demonstrated in the case of municipal police officers by SDCL 9-14-14 which allows every municipality to adopt ordinances providing for the removal of any employee for cause. It is further highlighted by SDCL 3-17-6 which sets forth grounds for removal of local officers (including sheriffs, deputy sheriffs and city police officers) from office. Grounds cited by the statute are misconduct, malfeasance, nonfeasance, crimes in office, drunkenness, gross incompetency, corruption, theft, oppression, or gross partiality. SDCL 3-17-6. Presumably some of the terms used in this statute would include the general causes for discharge which I have outlined above.
Therefore, whenever the commission intends to revoke an individual's certification as a law enforcement officer on the basis that he has been discharged for cause from his employment and the individual contends that he was not discharged 'for cause,' the commission, in reaching its determination of whether there was 'cause' for dismissal, must take into consideration any local, county or departmental ordinances, rules and regulations setting forth causes for termination. From application of such rules to the facts of a particular case the commission must determine whether there was 'cause' for the officer's discharge and therefore whether there are grounds for revocation of the officer's certification.
IN RE QUESTION NUMBER 2:
In looking through the administrative rules pertaining to certification of law enforcement officers, I find no references to re-certification of a law enforcement officer after prior revocation of certification by the Law Enforcement Standards and Training Commission. In the absence of any such rules, I must conclude that the same standards applicable to the certification of a law enforcement officer for the first time apply as well to recertification of a law enforcement officer after his certification has been revoked. In short, an applicant for re-certification as a law enforcement officer must meet all of the standards and requirements as a first-time applicant for certification.
Given the above interpretation of the rules, the short answer to your second question is yes, he may reapply, because the rules do not prohibit an officer whose certification has been revoked on the grounds you referred to from applying for re-certification. However, simply because the individual may reapply for certification does not mean that he will automatically qualify for such re-certification. I reiterate that all of the requisites for certification for a first-time applicant apply as well to an individual reapplying for certification as a law enforcement officer. Thus, a convicted felon would be foreclosed from re-certification under ARSD 2:01:02:02. Although a person would not automatically be rejected for certification for a felony conviction for which he has received a suspended imposition of sentence, the conviction could be considered in determining the applicant's good moral character under ARSD 2:01:02:01(4), 2:01:02:03:01. An individual who has been convicted for misdemeanor involving moral turpitude would have to have the conviction reviewed according to the following standards prior to being recertified: the seriousness of the offense; the amount of time that has elapsed since the offense has been committed; his record since the offense was committed and other pertinent information. ARSD 2:01:02:02. A misdemeanor offense could also be taken into consideration in determining the moral character of the applicant and this is true whether or not imposition of sentence for the offense has been suspended. ARSD 2:01:02:01(4), 2:01:02:03.01. In sum, the applicant whose certification has been revoked on various grounds must meet all of the requirements of a first-time applicant and consideration in one way or another may be given to the grounds that were used for the revocation of certification, prior to a grant of recertification.
IN RE QUESTION NUMBER 3:
In my opinion there is no yes or no answer to your third question. The answer is dependent upon the facts and circumstances of the particular case. I will state that if an officer's certification is to be revoked pursuant to ARSD 2:01:02:07 it must be for one of the following reasons: the officer has been convicted of a misdemeanor involving moral turpitude; the officer has received a suspended imposition of sentence for a misdemeanor involving moral turpitude; the officer has been convicted of a felony; the officer has received a suspended imposition of sentence for a felony; the officer falsified information required to obtain certification, or the officer has been discharged for cause from his employment as a law enforcement officer. ARSD 2:01:02:07 (Emphasis added.)
None of the above-cited grounds for revocation under ARSD 2:01:02:07 specifically deals with admission by an officer of a criminal act for which he has not been prosecuted. However, this is not to say that the officer's employer could not consider the admission of the criminal act as grounds for discharge for cause of the officer. In the event that the employer found that the criminal act was sufficient to warrant discharge of the officer/employee, then the Law Enforcement Standards and Training Commission could revoke the officer's certification if it found that the discharge was 'for cause' according to the standards that I have outlined in response to your first question.
IN RE QUESTION NUMBER 4:
Again, as I stated in my response to question number 2, because the administrative rules on certification of law enforcement officers do not prohibit an officer whose certification has been revoked from reapplying for certification, the officer may apply for such re-certification. Also, as I have previously stated, the applicant for re-certification must meet all of the same requirements and standards as a first-time applicant. Therefore, it is my opinion that the officer's admission of a criminal act for which he has not been prosecuted may be taken into consideration in determining the applicant's 'good moral character' under ARSD 2:01:02:01(4). Naturally, under this standard the Commission would have to consider the nature of the offense, the amount of time that has passed since its commission, the applicant's record since commission of the offense and whether all of these factors taken together indicate that the officer would be unfit for recertification to make a decision as to whether or not the applicant qualifies for recertification under the 'good moral character' requirement.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
