NJ State PBA Legal Corner
By Robert A. Fagella, Esq., Paul L. Kleinbaum, Esq.
The attorney general issued the Attorney General Law Enforcement Directive No. 2022-14 in November. It concerns the public disclosure of serious misconduct by law enforcement officers. This directive builds on Directives 2020-5 and 2020-6, which were issued in June 2020 concerning the public disclosure of major disciplinary penalties.
The latter directives were the subject of legal challenges by the NJ State PBA with the State Troopers Fraternal Association (STFA), State Troopers NCO and the NJ FOP, among others. The Supreme Court ultimately upheld the AG’s authority to issue the directives. We reported on this decision in past issues of NJ Cops Magazine.
The new directive was prompted by another decision of the Supreme Court, Rivera v. Union County Prosecutor’s Office, in which the court unanimously held that IA records were exempt from disclosure under OPRA, but that disclosure was required under the common law right to know if public disclosure outweighed the need for confidentiality. Directive No. 2022-14 is the AG’s attempt to provide uniformity in whether disclosure of IA records by the courts is required under the common law right to know.
Although Directive No. 2022-14 incorporates numerous changes, we want to highlight the major ones that will affect PBA members. It continues to require all law enforcement agencies to prospectively report and disclose annual summaries of major discipline issued, such as terminations, demotions or suspensions of more than five days. This requirement carries forward the disclosure provisions from the directives issued in 2020.
However, a significant change is that it adds the following categories of infractions to be disclosed regardless of the type and severity of discipline imposed:
• Discrimination or bias;
• Excessive force;
• Untruthfulness or lack of candor;
• Filing a false report or submitting a false certification in any criminal, administrative employment, financial or insurance matter in an officer’s professional or personal life;
• Intentionally conducting an improper search, seizure or arrest;
• Intentionally mishandling or destroying evidence;
• Domestic violence.
Discipline issued for these listed infractions must be publicly disclosed even if the discipline is not considered major discipline. This change is effective immediately.
The directive also addresses when disclosures are required. The State PBA and the other law enforcement unions were concerned about disclosures of any discipline until all appeals are concluded. We requested that disclosure only take place when the discipline is finalized after any appeals have been exhausted.
The AG agreed to this condition. Disclosure now is only required when the case is complete, and no further appeals are available. Infractions will not be disclosed while any appeals are pending. But sustained infractions will be reported and disclosed once any appeal period has passed.
Disclosure will also be required if an officer resigns, retires, transfers or is separated from a law enforcement agency while an investigation is pending and is ultimately sustained. Also, if law enforcement officers submit pension applications while an IA is pending, the officers and their agencies will be required to report that investigation, any pending appeal and any criminal charges to the NJ Division of Pensions.
Only sustained findings of infractions must be disclosed. Thus, disclosure is generally not required for allegations that cannot be sustained, are not credible or have resulted in the exoneration of an officer. However, if an officer negotiates a plea or enters into an administrative or civil settlement in which a charge is dismissed, the charge would be considered sustained and disclosable if there is “sufficient credible evidence to prove the allegation.” While this may be hard to determine, any plea agreements or settlement agreements in which charges are dismissed should recite the fact that charges are being dismissed because there is not sufficient credible evidence to prove the allegations.
Law enforcement agencies are required to disclose summaries annually on their public website, as well as submit a report to the attorney general. The summaries must provide the name of the officer and contain sufficient detail to enable a reader who is not familiar with the case to fully understand the factual basis for the disciplinary action. Unlike the directives issued in 2020, the disclosures required are prospective only, not retroactive.
Obviously, the new provisions make it more important than ever that officers consult with their LPP attorneys and scrutinize both the charges and the penalty before entering into any plea or settlement agreements. As noted above, charges may be disclosable even if dismissed, and even minor disciplinary penalties with suspensions of five days or less are disclosable if they fall within the categories of infractions specified above.
As is true with all AG directives, No. 2022-14 is available on the Division of Criminal Justice website. Law enforcement officers should read the directive and become familiar with its terms. Any questions about the implementation or interpretation of the directive must be addressed to the executive director of the NJ Office of Public Integrity and Accountability.