BEFORE THE PUBLIC SAFETY OFFICERS
STANDARDS AND TRAINING COUNCIL
OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On November 8, 2019, the Public Safety Officers Standards and Training (POST) Council published MAR Notice No. 23-13-257 pertaining to the public hearing on the proposed amendment of the above-stated rules at page 1940 of the 2019 Montana Administrative Register, Issue Number 21. The council held a public hearing on the proposed rules on December 18, 2019.
2. The POST Council has amended ARM 23.13.102, 23.13.206, 23.13.207, 23.13.208, 23.13.209, 23.13.210, 23.13.212, and 23.13.703 as proposed.
3. The POST Council has amended ARM 23.13.215 and 23.13.702 as proposed, but with the following changes from the original proposal, new matter underlined and deleted matter interlined:
23.13.215 FIREARMS PROFICIENCY STANDARDS (1) through (4) remain as proposed.
(5) Before carrying a firearm or making an arrest, a misdemeanor probation/pretrial services officer must successfully complete the firearms proficiency requirements provided in this rule.
The officer must successfully complete the firearms proficiency requirements provided in this rule at least once a year.
23.13.702 GROUNDS FOR DENIAL, SANCTION, SUSPENSION, OR REVOCATION OF POST CERTIFICATION (1) remains as proposed.
(2) The public safety officer's employing authority must report to the executive director any
potential ground substantiated grounds for denial, sanction, suspension, or revocation of POST certification as enumerated in (3). If review of an officer's conduct is pending before any court, council, tribunal, or agency, the employing authority may wait for a final adjudication before reporting the officer's conduct to the executive director. If the officer's conduct results in termination of the officer's employment, the notice requirements of 7-32-303, MCA, and ARM 23.13.216 apply.
(3) through (3)(d) remain as proposed.
(e) conviction of a
misdemeanor or felony criminal offense enumerated in Title 45, chapters 5 through 10, MCA or Title 61, chapter 8, part 4, MCA, or an offense which would be a misdemeanor or felony criminal offense enumerated in Title 45, chapters 5 through 10, MCA or Title 61, chapter 8, part 4, MCA if committed in this state;
(f) conviction of any offense involving unlawful sexual conduct or unlawful physical violence;
(g) through (n) remain as proposed but are renumbered (f) through (m).
(4) remains as proposed.
4. The POST Council has thoroughly considered the comments and testimony received. Copies of the written comments were provided to the Council and will be provided to the public on request. A summary of the comments received and the department's responses are as follows:
COMMENTS 1-5: Steve Ette of Gallatin Court Services provided written comment regarding the proposed changes to ARM 23.13.102. Andrea Lower of Gallatin Court Services testified concerning the proposed changes to ARM 23.13.102. Gloria Soja of Lewis and Clark County Criminal Justice Services Department testified and provided written comment jointly with Kellie McBride of Lewis and Clark County Criminal Justice Services Department regarding the proposed change to ARM 23.13.102. Jon Metropoulos of Missoula Correctional Services, Inc. also provided testimony concerning the proposed changes to ARM 23.13.102. All individuals commented that "Misdemeanor Probation Officer" and "Pretrial Services Officer" should be separately defined because they have different jobs. Additionally, they commented that the discipline should be renamed "pretrial services/misdemeanor probation officer" in ARM 23.13.206 through 23.13.215 to avoid confusion regarding whether pretrial services officers supervise pretrial felony defendants. Representatives from Lewis and Clark County Criminal Justice Services Department and Gallatin Court Services provided proposed language for the definitions of "Misdemeanor Probation Officer" and "Pretrial Services Officer."
RESPONSE TO COMMENTS 1-5: "Misdemeanor Probation Officer" is defined in statute. The terms "Misdemeanor probation officer" and "Pretrial services officer" do not appear individually in POST's rules, and therefore the terms require no definition for the purposes of reading POST's rules. POST is not attempting to define specific types of officers in a discipline but the discipline as a whole. For example, POST has not provided definitions for "deputy sheriff" or "game warden" because these types of officers fall under the overarching discipline of "peace officer," although their jobs are likely quite different.
COMMENTS 6-8: Sue Wilkins, Dan Cederberg, and Jon Metropoulos of Missoula Correctional Services, Inc. provided written comment regarding POST's proposed changes to ARM 23.13.215. Mr. Metropoulos also provided testimony regarding POST's proposed changes to ARM 23.13.215. Missoula Correctional Services, Inc. opposes POST requiring pretrial services and misdemeanor probation officers to complete annual firearms proficiency training before being eligible to make an arrest.
RESPONSE TO COMMENTS 6-8: The council recognizes that officers with arrest authority may use any force necessary to effect an arrest. This includes the use of firearms. The council, however, has removed (5)'s previous requirement that an officer meet the firearms proficiency requirements annually. Missoula Correctional Services, Inc. concludes that its officers can safely effect an arrest without the use of firearms. Officers making an arrest who do not also carry a firearm, like those working for Missoula Correctional Services, Inc., will therefore not be required to meet the annual firearms proficiency requirements. Because (1) already requires all officers to meet the firearms proficiency requirements once per year if they are authorized to carry a firearm, the stricken language is duplicative when applied to officers who carry a firearm.
COMMENTS 9-14: Frank DiFonzo, Chief of the Sidney Police Department, Deputy Chief Mark Kraft of the Sidney Police Department, Steve Crawford, Chief of the Bozeman Police Department and representative for the Montana Association of Chiefs of Police, and Jon Metropoulos of Missoula Correctional Services, Inc. provided testimony opposing the proposed changes to ARM 23.13.702. Deputy Chief Kraft, Chief Crawford, Mr. Metropoulos, Justin Jenness, Chief of the Lewistown Police Department, and Sergeant Rick Miller of the Livingston Police Department provided written comment opposing the proposed changes to ARM 23.13.702. Chief Crawford opposes a requirement that minor traffic offenses be reported to POST. Chief DiFonzo testified that employing authorities should be required to report only felony convictions. Chief Jenness and Sgt. Miller commented that POST is exceeding its authority by requiring agencies to report misconduct. Deputy Chief Kraft commented that the employing agencies should be trusted to determine what should happen to its officers and that it should not be decided by POST.
RESPONSE TO COMMENTS 9-14: Pursuant to statute, POST "shall … provide for the … suspension or revocation of certification of public safety officers." The council has the authority to adopt rules to implement this statutory obligation. The employing authorities in Montana have the statutory responsibility to apply the Montana POST Council's standards. The council finds that reporting violations of its standards is the responsibility of the employing authority. In response to the comments, POST has amended (2) to require reporting only after the employing authority has substantiated an allegation and to allow the employing authority to delay a report if the officer is challenging or grieving a finding. POST amended (3)(e) to narrow the criminal conduct that must be reported. With the amendments to (3)(e), (3)(f) became duplicative and unnecessary. POST therefore deleted (3)(f).
/s/ Hannah Tokerud Sheriff Tony Harbaugh
Hannah Tokerud Chairman
Rule Reviewer Public Safety Officers Standards
and Training Council
By: /s/ Perry Johnson
Public Safety Officer Standards and Training Bureau
Certified to the Secretary of State March 17, 2020.