Andrew Wheeler, Director, Office of Regulatory Management
by Dick Hall-Sizemore
The Youngkin administration is sitting on regulations needed to implement important legislation enacted by the General Assembly in 2020. The delay constitutes a violation of that law.
In its 2020 Special Session, the General Assembly expanded the grounds for decertifying law-enforcement and jail officers. The background of this legislation was described in detail on this blog in a previous article, so there is no need to repeat that information here.
The legislation required the Department of Criminal Justice Services (DCJS), under the direction of the Criminal Justice Services Board (CJSB), to adopt statewide professional standards of conduct for law-enforcement and jail officers. The timeline set out in the legislation would have required the standards of conduct to go into effect by mid-December 2021, two years ago. DCJS missed the deadline. The CJSB approved the regulations on June 16, 2022. The Attorney General certified the regulations on Aug. 2, 2022. The Department of Planning and Budget completed its review of the economic impact of the regulations on Aug. 22, 2022. The regulations have been under review in the Secretary of Public Safety and Homeland Security’s office since then—470 days, more than a year and a quarter.
By missing the deadline set out in the legislation, the Northam administration also was in violation of the law. However, that delay can be excused somewhat due to the time needed to assemble representatives of the various groups that would be affected, get their input, reach a consensus, and draft the regulations. The Youngkin administration did not have to go through any of that process and yet the proposed regulations still are “being reviewed” by the Secretary.
It is difficult to understand the reason for the delay. There does not seem to be anything controversial in the provisions, as summarized below:
Types of misconduct that warrant decertification:
- Making misleading or untrue representations, including:
- Falsifying or omitting material information to obtain certification;
- Obtaining a false confession;
- Filing a false police report;
- Making a false arrest;
- Creating or using falsified evidence;
- Failing to report exculpatory information in a criminal case;
- Tampering with evidence; and
- Committing perjury.
- Abusing the power inherent in the law-enforcement and jail officer professions, including;
- Exploiting an individual’s disability;
- Tampering with a witness, victim, or informant;
- Retaliating against anyone making a good-faith report of misconduct;
- Engaging in a sexual relationship with an individual in custody or with a victim, witness, defendant, or informant;
- Disclosing confidential information that may compromise an investigation;
- Using the employer’s property, equipment, funds, or data for personal gain; and
- Soliciting or participating in bribery or extortion.
- Engaging in discriminatory policing or on-duty contact toward incarcerated persons.
- Engaging in, failing to intervene when present, and failing to report the use of excessive force.
- Interfering with compliance with the decertification of law-enforcement officers, including:
- Failing to report serious misconduct by another officer; and
- Failing to cooperate with an investigation into misconduct.
- Engaging in a pattern of acts showing an intentional or reckless disregard for the rights, safety, or well-being of others.
- Engaging in any conduct unbecoming that demonstrates an inability or unwillingness to uphold an officer’s sworn oath.
In addition to violating the specific requirement in the legislation, this delay runs counter to the governor’s priority of speeding up the regulatory review process. In a press release last December, the director of the Office of Regulatory Management, Andrew Wheeler, bragged that his office “has made the review of regulations more efficient. Historically it took over 200 days for a regulation to be reviewed by the Governor’s office, we now have that review period down to less than two weeks.”
That sentiment is not shared in other sectors of the state government. As reported by VPM, the Richmond public radio station, the DCJS regulator coordinator recently told members of the state board overseeing private security firms, regarding the delay of a proposed regulation awaiting review, “If they came out of the Northam administration, what we’re seeing is everything is basically sitting right now. They don’t want to kind of sign off on anything that came from a previous administration, and that happens sometimes.”
It is certainly true that many proposed regulations in the public safety sector that were completed by agencies and submitted to the secretary’s office during the Northam administration, but not approved before the change in administrations, seem to be dead in the water. A revision of the compulsory minimum training standards for law-enforcement officers sat in the Attorney General’s office almost a year and then eight months with the Secretary before recently being submitted to the Governor’s Office. The minimum training standards for canine handlers in the Department of Corrections have been in the Secretary’s office for 259 days. Finally, that regulation proposed for private security businesses, which would increase regulatory fees, has been in Youngkin’s office since he was inaugurated. (Wheeler must have overlooked this one when he made his calculation of how quickly they were moving regulations through.)
Generally, there is no legal deadline for approving and implementing new regulations. That is not the case with the requirement to establish statewide professional standards of conduct for law-professional and jail officers. Each day that the administration delays approval of the standards is another day that it is in violation of the law. More importantly, it is another day that there are no established standards of professional conduct for law-enforcement officers.
The new law has been effective to the extent it can be until the professional standards of conduct are implemented. Between 1999, when the decertification process was established and March 1, 2021, when the new law went into effect, 82 law-enforcement and jail officers were decertified. Since then, according to VPM, there have been 118 decertifications. Most of those were decertified for “untruthful statements” during internal investigations. The implementation of the professional standards of conduct will strengthen the ability of chiefs of police and sheriffs to improve the quality of their departments and thereby increase public confidence in law-enforcement. The Governor needs to take action.
