BEFORE THE DEPARTMENT OF JUSTICE

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 23.12.1201 through 23.12.1207, concerning attendance at MLEA, and ARM 23.12.1412 and 23.12.1414, concerning performance criteria at MLEA

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

 

            TO:  All Concerned Persons

 

            1.  On May 7, 2009, at 1:00 p.m., the Montana Department of Justice will hold a public hearing in the auditorium of the Scott Hart Building, 303 North Roberts, Helena, Montana, to consider the proposed amendment of the above-stated rules.

 

2.  The Department of Justice will make reasonable accommodations for persons with disabilities who wish to participate in this public hearing or need an alternative accessible format of this notice.  If you require an accommodation, contact the department no later than 5:00 p.m. on April 24, 2009, to advise us of the nature of the accommodation that you need.  Please contact Kathy Stelling, Department of Justice, 215 North Sanders, P.O. Box 201401, Helena, MT 59620-1401; telephone (406) 444-2026; Montana Relay Service 711; fax (406) 444-3549; or e-mail kstelling@mt.gov.

 

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

 

            23.12.1201  REQUIREMENTS FOR PEACE OFFICERS AND PUBLIC SAFETY OFFICERS TO ATTEND BASIC PROGRAMS  (1)  An applicant to attend MLEA basic programs must be employed by a law enforcement or public safety agency within the state of Montana as a peace officer, a reserve officer, or public safety officer as defined in 44-4-401(2), MCA.  For purposes of this rule:

            (a)  a peace officer is defined by 7-32-303(1), 61-10-154(5), and 61-12-201, MCA;

            (b)  a reserve officer is defined by 7-32-201(5), MCA; and

            (c)  a public safety officer shall mean the following (which are defined in 7‑4‑2901, 7-4-2904, 7-4-2905, 7-31-203, 41-5-1701 through 41-5-1706, 44-4-302 through 44-4-305, and 46-23-1003 through 46-23-1005, MCA):

            (i)  a detention officer;

            (ii)  a corrections officer;

            (iii)  a juvenile detention officer;

            (iv)  a juvenile corrections officer;

            (v)  a public safety communications officer;

            (vi)  a detention center administrator;

            (vii)  a juvenile probation officer;

            (viii)  a juvenile parole officer;

            (ix)  an adult probation and parole officer;

            (x)  a misdemeanor probation officer;

            (xi)  county coroner; or

            (xii)  deputy county coroner.

            (2)  Each law enforcement officer basic course applicant shall first be required to pass a physical fitness abilities test developed by the department.  An applicant who has passed the test shall be accepted on a first come, first served basis.  If the specific course roster that an applicant applies to attend has been filled, the applicant will be placed on a waiting list for that course and also placed on the roster for the next available course.  To meet statewide needs, the academy administrator may adjust the placement of applicants to certain course rosters. 

            (3)  Reserve officers, peace officers, or public safety officers who apply to attend basic courses must meet the qualifications and requirements for preservice applicants. 

 

AUTH:            44-10-202, MCA

IMP:                44-10-301, MCA

 

            RATIONALE AND JUSTIFICATION:  These changes are necessary to comport with the new definition of "public safety officer" stated in 44-4-401(2), MCA, as well as the fitness requirements stated in ARM 23.12.1414.  These changes also simplify the rule and the definition.  Adjusting (3) to cover only "reserve officers" is necessary because only reserve officers need to meet the qualifications for preservice applicants. 

 

            23.12.1203  BASIC COURSE ATTENDANCE REQUIREMENTS FOR PRESERVICE APPLICANTS  (1)  Preservice applicants are persons not employed as full-time or part-time bona fide peace officers and public safety officers.  Preservice applicants shall be selected to attend the MLEA basic course based on their ability to meet minimum qualifications.  This includes successfully completing the pretest screening, a written and physical ability test, and POST oral interview, background investigation, criminal history, and test screening.  Successful applicants will be ranked in accordance with ARM 23.12.1207.  Scheduled attendance by the successful applicants to the basic course will be by order of rank from the applicant list and by course availability.  Preservice applicants scheduled to attend the basic course shall receive reporting instructions and other information from the academy administrator. 

 

AUTH:            44-10-202, MCA

IMP:                44-10-301, MCA

 

            RATIONALE AND JUSTIFICATION:  These changes are necessary to clarify who qualifies as a "preservice applicant" and to clarify what testing is required and that the testing is not a POST test.

 

            23.12.1204  MINIMUM QUALIFICATIONS FOR PRESERVICE TESTING AND PRETEST SCREENING  (1)  Preservice applicants must meet the minimum qualifications for peace officers or public safety officers as stated in 7-32-303, MCA, with the following exceptions:

            (a)  through (3) remain the same. 

 

AUTH:            44-10-202, MCA

IMP:                44-10-301, MCA

 

            RATIONALE AND JUSTIFICATION:  These changes are necessary to specify that these are the minimum qualifications for "preservice" testing and to specify that the qualifications referenced are for "peace officers" not "public safety officers" as provided in 7-32-303, MCA. 

 

            23.12.1205  PRESERVICE TESTING PROCEDURES  (1)  The preservice applicant tests shall be administered by the academy and/or an approved designee, and shall be conducted whenever it is deemed necessary by the academy administrator.  Applicants shall be notified of the test date, time, and location at least thirty days in advance of the test. 

            (2) remains the same.

 

AUTH:            44-10-202, MCA

IMP:                44-10-301, MCA

 

            RATIONALE AND JUSTIFICATION:  These changes are necessary to specify that these are "preservice" testing procedures and to allow the academy to accept test scores from other approved agencies. 

 

            23.12.1206  POST PRESERVICE TEST SCREENING PROCEDURES 

            (1)  POST Preservice test screening shall be conducted for those applicants who have successfully completed the testing procedures, who have been ranked according to the ranking procedures, and in accordance with the space available in the basic courses to be presented by the academy in the year following the test date.  The availability of space shall be determined by the academy administrator. 

            (2) remains the same. 

            (3)  The academy administrator or designee shall conduct criminal history, prior employment, and character and background checks on each applicant selected for POST test screening further consideration after testing has occurred.

            (4) remains the same.

            (a)  An alternate representative of a county sheriff's office, representative of a municipal police department, and a member of the general public will also be appointed to serve whenever a representative person is unable to attend an interview.  All appointments to the board shall be made by the academy administrator and confirmed by the POST advisory council. 

            (5) and (6) remain the same. 

            (7)  Any information discovered during any portion of the POST test screening process that is contrary to the qualifications and requirements of 7-32-303, MCA, or of these rules will result in no further consideration of the applicant for attendance in a basic course. 

 

AUTH:            44-10-202, MCA

IMP:                44-10-202, MCA

 

            RATIONALE AND JUSTIFICATION:  These changes are necessary to specify that these are "preservice" test screening procedures administered by the academy, not POST tests. 

 

            23.12.1207  RANKING OF PRESERVICE APPLICANTS FOR ELIGIBILITY TO ATTEND THE BASIC COURSE  (1) through (2)(h) remain the same. 

            (i)  an additional 20 points will be added for a doctoral degree; and

            (j)  twenty points is the maximum number of points that can be added for a college degree.; and  

            (k)  ten additional points will be added to the written test score of a person who is a veteran.

            (3) through (6) remain the same. 

 

AUTH:            44-10-202, MCA

IMP:                44-10-301, MCA

 

            RATIONALE AND JUSTIFICATION:  This change is necessary to adequately recognize those who have served in our armed forces. 

 

            23.12.1412  OTHER STUDENT PERFORMANCE MEASURES  (1) remains the same. 

            (2)  Performance evaluations will be conducted on a regular basis by the academy administrator or their designee.  Performance evaluations will be summarized orally and in writing and will be based upon the following behavioral categories:

            (2)(a) through (4) remain the same.

            (5)  A copy of the performance evaluation criteria and a written summary of a student's performance evaluation will be provided to the student and to the student's agency administrator when applicable, and to any potential employer who inquires.  A copy will be kept on file in the student's record maintained by the academy administrator. 

 

AUTH:            44-10-202, MCA

IMP:                44-10-202, MCA

 

            RATIONALE AND JUSTIFICATION:  This change is necessary to explain that students, in addition to being provided a copy of their written evaluation summary post-evaluation, will be provided the criteria used to evaluate their performance pre-evaluation. 

 

            23.12.1414  PHYSICAL ABILITIES PERFORMANCE REQUIREMENTS FOR THE LAW ENFORCEMENT OFFICER BASIC COURSE  (1)  All students will be required to perform the following physical tests: and pass a physical abilities test prior to acceptance into the law enforcement officer basic course.

            (a)  pushups;

            (b)  situps;

            (c)  one and one half mile run; and

            (d)  sit and reach.

            (2)  A student may request a substitution for any of the above physical tests, but before any substitution is granted, the request will be reviewed by the academy administrator.  The student may be asked to provide medical records documenting the need for the substitution, and these medical records may be submitted for review by a physician designated by the academy before any request for substitution is granted.

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

            (a)  an entry fitness physical abilities test within 40 90 days of the start of the basic course;

            (b)  midterm fitness physical abilities test; and

            (c)  final fitness physical abilities test.

            (5) (4)  Students who arrive at the academy with an injury or condition that prevents them from attempting any of the prescribed fitness physical abilities tests will not be allowed to complete accepted into the basic course.

            (6) (5)  At the prescribed fitness physical abilities tests, the student must pass every physical test, meeting the required levels of performance as prescribed by administrative policy.  Students who fail to meet the required performance levels will be given one opportunity for retest in all physical tests within ten business days of the posted date of failure.  Failure to pass the prescribed physical fitness abilities test may result in expulsion or termination from the basic course.  

            (7)  All basic course students expelled or terminated due to failure of the physical fitness tests will be dropped from the basic course session and may be required to reapply to complete a future session of the entire course. 

            (8)  All basic course students must successfully complete the final fitness test in order to complete the basic course and attend graduation.  Students who fail the final fitness test will be given one opportunity for retest within ten business days of the posted date of failure.  Failure to successfully complete a retest within ten business days of the posted date of failure or failure to meet the fitness requirements upon reentry of the next successive basic course, will require reapplication and completion of the entire basic course.  

 

AUTH:            44-10-102, 44-10-202, MCA

IMP:                44-10-102, 44-10-202, MCA

 

            RATIONALE AND JUSTIFICATION:  These changes are necessary to allow the academy to implement an age and gender neutral physical abilities test that more accurately simulates the physical abilities required by specific job tasks. 

 

4.  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 J. Stuart Segrest, Department of Justice, 215 North Sanders, P.O. Box 201401, Helena, MT 59620-1401; telephone (406) 444-2026; Montana Relay Service 711; fax (406) 444-3549; or e-mail ssegrest@mt.gov, and must be received no later than May 14, 2009.

 

5.  An electronic copy of this Notice of Proposed Amendment and Adoption is available through the Department of Justice's web site at http://doj.mt.gov/resources/administrativerules.asp.  The department strives to make the electronic copy of the Notice conform to the official version of the Notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the Notice and the electronic version of the Notice, only the official printed text will be considered.  In addition, although the Department of Justice works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.

 

6.  The Department of Justice 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 which includes the name and mailing address of the person to receive notices and specifies that the person wishes to receive notices of rules regarding the Division of Criminal Investigation, the Central Services Division, the Forensic Sciences Division, the Gambling Control Division, the Highway Patrol Division, the Legal Services Division, the Consumer Protection Division, the Motor Vehicle Division, the Justice Information Systems Division, or any combination thereof.  A copy of the request may be downloaded from the Department of Justice's web site at http://doj.mt.gov/resources/forms.asp, and may be mailed or delivered to Kathy Stelling, Department of Justice, 215 North Sanders, P.O. Box 201401, Helena, MT 59620-1401; or e-mail kstelling@mt.gov, or may be made by completing a request form at any rules hearing held by the Department of Justice.

 

            7.  J. Stuart Segrest, Assistant Attorney General, has been designated to preside over and conduct the hearing.

 

8.  The bill sponsor notice requirements of 2-4-302, MCA, do not apply.

 

 

 

By:       /s/ Steve Bullock                                            /s/ J. Stuart Segrest                         

            STEVE BULLOCK                                       J. STUART SEGREST

            Attorney General                                           Rule Reviewer

            Department of Justice

 

            Certified to the Secretary of State on April 6, 2009.