By Ed Esposito
As many members may already know, on June 7, 2021, the Supreme Court of New Jersey upheld the validity of the Major Discipline Directive as previously issued by the New Jersey Attorney General (AG). This resulted in the AG issuing Directive 2021-6 on June 9, 2021, along with a revised Internal Affairs Policy and Procedures (IAPP), which went into effect immediately. Although the most recent version of the IAPP is over 90 pages, the most notable changes are summarized in this article. (Note: Underlined material is new; deleted material is indicated by strikeout.)
Confidentiality of Internal Affairs records
IAPP Section 9.6 was amended to include the following addition:
9.6.6 Law enforcement agencies may not waive, restrict, or otherwise limit the power of the County Prosecutor or Attorney General to direct that the information or records of an internal investigation be released or shared pursuant to Section 9.6.1(c).
Confidentiality of victim identities
IAPP Section 9.11 was amended in part to read:
9.11.2 On a periodic basis, and at least once a year no later than January 31 of the following year, every agency shall submit to the Attorney General and the County Prosecutor, and publish on the agency’s public website, a brief synopsis of all complaints where a termination, reduction in rank or grade, and/or suspension of more than five days was assessed to an agency member. This synopsis shall follow the format provided in Appendix L and shall include the identity of each officer subject to final discipline, a brief summary of their transgressions, and a statement of the sanction imposed. This synopsis shall not contain the identities of the complainants or any victims. Where discipline relates to domestic violence, the synopsis shall not disclose the relationship between a victim and an officer. Whenever practicable, notice shall be given to victims of domestic violence in advance of an agency’s disclosure. In rare circumstances, further redactions may be necessary to protect the identity of a victim.
Publication of public reports
IAPP Section 9.11 was amended to include the following addition:
9.11.3 Agencies may not, as part of a plea or settlement agreement in an internal affairs investigation or otherwise, enter into any agreement concerning the content of a synopsis subject to public disclosure under Section 9.11.2, including any agreement regarding the identities of officers subject to final discipline, summaries of transgressions, or statements of the sanctions imposed.
Major discipline reporting dates
Directive 2021-6 clarifies that each law enforcement agency must publish its first major discipline report in compliance with Section 9.11.2 of the IAPP no later than August 9, 2021, which is 60 days from the date the directive was issued. The first report is required to cover those substantiated major disciplines in which a plea agreement was reached or final sanction was imposed from June 15, 2020, to December 31, 2020. Going forward, reports corresponding to the substantiated major discipline in a calendar year must be published no later than January 31 of the following year. Each county prosecutor is responsible for ensuring compliance with this requirement.
Additional changes to the IAPP
2.2.3(b) and 6.2.3(b) Unfounded. A preponderance of the evidence shows that the alleged misconduct did not occur.
2.2.3(c) and 6.2.3(c) Exonerated. A preponderance of the evidence shows the alleged conduct did occur, but did not violate any law; regulation; directive, guideline, policy, or procedure issued by the Attorney General or County Prosecutor; agency protocol; standing operating procedure; rule; or training. (For example, at the conclusion of an investigation into an excessive force allegation, the agency finds that the officer used force (alleged conduct) but that the force was not excessive (alleged violation).)
4.2.5 Law enforcement executives shall not assign to the internal affairs function any person responsible for representing members of a collective bargaining unit. The conflict of interest arising from such an assignment would be detrimental to the internal affairs function, the subject officer, the person so assigned, the bargaining unit and the agency as a whole. Also, a bargaining unit representative should not be permitted to represent more than one witness or subject in a single investigation, in part to avoid potential conflicts of interest. Although a witness/subject is entitled to a representative, he/she is not necessarily entitled to a particular representative.
5.1.14 Once a complaint has been received, the subject officer shall be notified in writing that a report has been made and that an investigation will commence. Such notification shall not include the name of the complainant. This notification is not necessary if doing so would impede the investigation. An example of a notification form is found in Appendix C.
6.0.1 All allegations of officer misconduct shall be thoroughly, objectively, and promptly investigated to their logical conclusion in conformance with this policy, regardless of whether the officer resigns or otherwise separates from the agency.
6.2.1 Following the principle that the primary goal of internal affairs and discipline is to correct problems and improve performance, management in the subject officer’s chain of command should handle relatively minor complaints. Complaints of demeanor and minor rule infractions should be forwarded to the supervisor commanding officer of the subject officer’s unit because it is often difficult for an immediate supervisor to objectively investigate a subordinate. In addition, that arrangement might obscure the possibility that part of the inappropriate conduct was the result of poor supervision by the immediate supervisor. While the structure of each law enforcement agency is different, it is recommended that minor complaints be assigned to and handled by a commanding officer at least one step removed from the officer’s immediate supervisor. This includes complaints from within the agency. Often Human Resources may need to be notified and involved.
9.8.2 Accordingly, in any case where a law enforcement agency has reason to believe that a candidate for employment was previously a sworn officer of another law enforcement agency, the hiring agency has an affirmative obligation to identify all such former employers. The hiring agency shall then request all internal affairs files for cases where the candidate was the subject officer, regardless of the ultimate disposition or status of the complaint. If requested, the hiring agency shall provide a written acknowledgement to the releasing agency that it will maintain the confidentiality of said files in accordance with this policy.
9.8.3 If a law enforcement agency receives such a request regarding a former employee, then it shall immediately share copies of all internal investigative information related to that candidate with the hiring agency, in accordance with N.J.S.A. 52:17B-247. Confidential internal affairs files shall not be disclosed to any other party.