NJ STATE PBA LEGAL CORNER
By Robert A. Fagella, Esq., Paul L. Kleinbaum, Esq.
On June 7, the Supreme Court issued its decision affirming the Appellate Division’s decision and upholding the attorney general’s authority to issue Law Enforcement Directives No. 2020-5 and 2020-6 issued on June 15 and 19, 2020, respectively. The only portion of the court’s decision which provides some benefit is that it spelled out a procedure for challenging the release of the information in discipline cases which were voluntarily settled upon a promise of confidentiality. The court’s decision was unanimous.
By way of background, the directives altered the attorney general’s decades-old practice of not publicly disclosing discipline issued to law enforcement officers. The directives now require the release of the names of law enforcement officers who commit disciplinary infractions that result in “major discipline,” which is defined as termination, demotion or a suspension of more than five days. A summary of the misconduct and the sanction imposed must also be disclosed.
Directive 2020-5 applies to all law enforcement agencies in the state, including county and local police departments. Directive 2020-6 applies to the NJ State Police, the Division of Criminal Justice (DCJ) and the Juvenile Justice Commission (JJC). Both directives require the public release of major discipline after Jan. 1, 2020. Directive 2020-6 requires the NJSP, DCJ and JJC to release information dating back to Jan. 1, 2000. It also gives local law enforcement agencies the discretion to release the information retroactive to Jan. 1, 2000.
Several law enforcement organizations joined forces with the NJ State PBA to challenge the directives on multiple state and constitutional grounds, including the New Jersey State FOP, the STFA, the State Troopers NCO Association, the New Jersey Law Enforcement SOA, State Corrections Local 105, Division of Criminal Justice Detectives Local 383 and the New Jersey Law Enforcement Supervisors Association. More than 30 organizations participated as amici curiae in support of the attorney general’s position. After granting the request for a temporary injunction to bar the attorney general from releasing the information, the Appellate Division unanimously affirmed the attorney general’s authority to issue the directives. The Supreme Court granted our request to hear an appeal of the Appellate Division’s decision.
In a 7-0 decision, the Supreme Court rejected the arguments of all the organizations based upon state law and the constitution. Despite the fact that it was undisputed that the attorney general’s directives represented a sea change in the historical practice, the court upheld the AG’s authority to change his mind and issue the directives.
The only issue on which the court provided some relief concerned whether past discipline should be publicly disclosed if the officer was promised confidentiality in settling disciplinary charges. The court disagreed that the attorney general had the right to release information even if an officer had been promised confidentiality. The court concluded that officers who were notified that their names would be publicly disclosed should have the opportunity to challenge the disclosure if disciplinary charges were settled with promises of confidentiality.
The court adopted a procedure which would permit these officers to appeal the public disclosure and have a judge decide whether charges were settled based upon promises of confidentiality and therefore should not be disclosed. In particular, no names are to be released unless the officer is first given at least 15 days’ notice of the intended action.
For State Troopers, the JJC and DCJ, the judiciary will designate a single judge to conduct a broad-ranging evidentiary hearing on the issue of whether there was an explicit policy promising that settlement of disciplinary charges would be confidential. The court also instructed that notice be given to all parties to this case and to the organizations which participated as amici.
If this judge finds that promises of confidentiality were made and relied upon by the officer, it could bar the release of the names of State Troopers and law enforcement officers in JJC and DCJ for disciplinary matters settled before June 19, 2020, the date on which Directive 2020-6 was issued. If the court finds that there was no broad-ranging policy of confidentiality, individual officers could pursue a challenge for specific promises made in their settlements of disciplinary charges. Any such challenges would have to be filed within 45 days of the officer receiving notice that his or her disciplinary information would be disclosed. The officer would also have the right to request and receive the relevant disciplinary files. These appeals will also be handled on an expedited basis and no information is to be released until resolved by the trial court subject of any appeals or stays entered pending appeals.
With respect to local law enforcement agencies, challenges must be filed with the assignment judge in the respective counties. The assignment judge would have the authority to set up a process like the one outlined above for State Troopers, JJC and DCJ.
It is important to note that this appeal process only applies to the settlement of disciplinary charges and any promises of confidentiality made as part of the settlement. It does not apply to any disciplinary charges that were litigated in the normal course, whether through arbitration, Civil Service appeals, Superior Court appeals or any other available disciplinary process. This appeal process also only applies to past cases of major discipline imposed before the directives were issued. For major discipline imposed after the directives were issued, the court noted that officers can expect their identities and information will be publicly released.
Following the court’s decision on June 9, the AG issued Directive 2021-6 which addressed issues concerning the disclosure of officers’ names and disciplinary information. It also amended the AG’s Internal Affairs Policy and Procedure to incorporate the court’s decision. The new directive can be found on the DCJ website. Among other provisions, it provides a form to be used by agencies to report information about officers who were subject to discipline. And it emphasizes that law enforcement agencies are not authorized to make any promises of confidentiality when settling disciplinary disputes on a going forward basis.
It also authorizes an agency which is considering a candidate for employment who was a sworn officer in another jurisdiction to request all internal affairs files for that candidate from his or her previous department. These records must be provided by the officers’ previous department. In an amendment unrelated to the court’s decision, the AG prohibits a bargaining unit representative from representing more than one witness or subject in an IA investigation. These are just some examples of what’s included in the new directive. We urge everyone to read it.
We recognize that questions may still arise as the court’s opinion is digested. In addition to Directive 2021-6, we also would expect some further guidance from the attorney general regarding procedural issues over the release of names and the process to appeal. We will continue to monitor developments as they arise.