Current through Register Vol. 43, No. 39, September 26, 2024
(a) A disciplinary
proceeding shall be commenced upon the making of a charge by the issuance of a
disciplinary report.
(1) A copy of the
disciplinary report shall be served on the offender within 48 hours after the
issuance of the disciplinary report, excluding Saturdays, Sundays, and
holidays.
(2) The report shall not
be served on the offender by the same officer who brought the charge against
the offender, unless no other officer is available to personally serve the
offender.
(3) The officer serving
the report shall inform the offender that the offender may enter a plea of
guilty or no contest to the charge at the time of service of the report.
(A) If the officer serving the report has
been appointed as a hearing officer by the superintendent according to K.A.R.
123-13-105, that officer may immediately, or as soon as possible, accept the
offender's plea of guilty or no contest, conduct a sentencing hearing, and
impose a sentence by following the procedures established in K.A.R. 123-13-403.
(B) If the officer serving the
report has not been appointed as a hearing officer according to K.A.R.
123-13-105 or refers the case to another hearing officer, then the offender
desiring to plead guilty or no contest to the charge at the time of service of
the report shall be brought immediately, or as soon as possible, before a
hearing officer. The hearing officer shall accept the offender's plea of guilty
or no contest, conduct a sentencing hearing, and impose a sentence by following
the procedures established in K.A.R. 123-13-403.
(4) If necessary, the hearing officer may
accept the offender's plea of guilty or no contest immediately, or as soon as
possible, after service of the report, but may delay the sentencing hearing and
imposition of sentence for not more than six working days.
(b) If the offender is transferred
to another facility before the arrival of the disciplinary report at the
receiving facility, service of the report upon the offender shall be made
within 48 hours after arrival of the report, excluding Saturdays, Sundays, and
holidays, in the same manner as that specified in subsection (a).
(c) The disciplinary report shall be written
within 48 hours of the offense, the discovery of the offense, or the
determination following an investigation that the offender is the suspect in
the case and is to be named as defendant.
(1)
If an alleged violation is based upon uncertain facts, an appropriate
investigation shall be initiated within 24 hours after the allegation is made
and shall be completed without unreasonable delay. The investigation shall
determine if a disciplinary action should be initiated or continued by
determining whether the allegation is soundly based on reasonably reliable
facts. The investigator shall be a staff member and, if practical, shall be a
staff member other than the person making the allegation. If an offender is
making the allegation, the officer who is receiving the allegation and is in a
position to write the report may also be the investigator.
(2) The investigation report may be adopted
by the charging officer both as the charge itself and as the officer's sworn
statement in lieu of testimony in any case, in accordance with these
regulations. If necessary, pending completion of the investigation, the
offender may be held in administrative segregation as specified in the
applicable internal management policies and procedures.
(3) The report shall be reviewed and either
approved or disapproved by the shift supervisor based on whether or not the
report is adequate and is made in the proper manner and form.
(4) The shift supervisor shall ensure that
all necessary elements of the alleged violation are contained in the written
report of the facts of the incident and that the report is not an abuse of the
disciplinary process. The shift supervisor shall also make or direct any
appropriate amendments to the report.
(5) If the charge is dismissed or the report
is otherwise rejected by the shift supervisor, a written explanation shall be
made in the record and filed with the report, with a copy given to the officer.
The report shall not be destroyed.
(d) The disciplinary report shall constitute
a formal statement of the charge, shall be in a form prescribed by the
commissioner, and shall include the following:
(1) The name and number of the offender;
(2) the name of the facility;
(3) the signature and title of the
officer preparing the disciplinary report;
(4) the date and time of the alleged offense;
(5) the date and time the report
is written;
(6) the nature of the
alleged offense;
(7) the class,
title, and number of the regulation, internal management policy and procedure,
or facility order violated;
(8) if
the charge alleges a violation of K.A.R. 123-12-1101, a citation to the
specific regulation, internal management policy and procedure, or facility
order that is the basis for the anticipatory or facilitating offense;
(9) the names of known staff
witnesses;
(10) a brief
description of the circumstances and facts of the violation if, in cases in
which the violation is based upon information supplied by a confidential
witness or informant, the identity of the witness or informant is not
disclosed, nor is any reference or factual detail likely to reveal the identity
of the witness or informant;
(11)
any unusual behavior by the offender;
(12) the disposition of any physical
evidence; and
(13) any immediate
action taken, including the use of force.
(e) An offender shall not be charged unless
the regulation, internal management policy and procedure, or facility order
that is alleged to have been violated has been published.
(f) The officer may orally warn or reprimand
the offender instead of writing a report or otherwise documenting the incident.
This regulation shall be effective on and after April 8, 2005.
