The legend of the ‘45-day rule’

Legal Brief 

Like Bigfoot and the Jersey Devil, people swear they have seen the “45-day rule.” Old-school cops from bygone eras will swear: If an IA investigation takes more than 45 days, you’re off scot-free.

From the many cases representing PBA members I have been involved with, truth be told, the 45-day rule is but a myth.

If you read the statute containing the 45-day rule without reading all the case law that it spawned over the years, you would naturally think two things:

First, where on earth do state legislators learn to write the English language?

Second, it appears from the text of the 45-day rule that an internal affairs investigation must be concluded within 45 days or the
subject officer walks free and clear from any disciplinary action.

Alas, such a magical technicality in favor of cops is mere fantasy.

The skeleton of the 45-day rule still exists in writing and can be found lurking among the “Chief’s Town” statutes within the murky
hollows of N.J.S.A. 40A:14-147. The 45-day rule reads as follows:

“A complaint charging a violation of the internal rules and regulations established for the conduct of a law enforcement unit shall
be filed no later than the 45th day after the date on which the person filing the complaint obtained sufficient information to file the
matter upon which the complaint is based. The 45-day time limit shall not apply if an investigation of a law enforcement officer for a
violation of the internal rules or regulations of the law enforcement unit is included directly or indirectly within a concurrent investigation of that officer for a violation of the criminal laws of this State. The 45-day limit shall begin on the day after the disposition of the criminal investigation.”

Despite the confusing syntax and undefined key words, courts have routinely described this statute as “a simple and uncomplicated procedural mechanism for the handling of administrative charges against a police officer.”

Really? Simple and uncomplicated?

Then why did we need several appellate cases to get the answers to basic questions about the 45-day rule? Well, I read those cases,
so you don’t have to.

The most important evisceration of the 45-day rule occurred when the courts found that it only applies to internal rule violations, not Civil Service Code violations or “misconduct” under the Chief’s Town statute. Guess what: Every internal rule a cop could
possibly violate also happens to be a violation of the Civil Service Code and the Chief’s Town statute! Therefore, if the employer
charges the officer with violations of N.J.A.C. 4A:2-2.3 in Civil Service jurisdictions or N.J.S.A. 40A:14-147 in non–Civil Service towns, the 45-day rule disappears.

Second, the 45-day rule has nothing to do with how long the actual IA investigation takes. The 45-day-rule clock does not begin to
tick until the final IA report lands on the chief’s desk.

But even if the chief waits 46 days to serve disciplinary charges, as long as they include violations of N.J.A.C. 4A:2-2.3 or N.J.S.A.
40A:14-147, the 45-day rule is foiled again.

And it was upon these two swords that the legend of the 45-day rule died an untimely, but certain, death.

Peter Paris is a partner with Beckett & Paris Attorneys at Law, located in Princeton. He served as a Boston police officer before attending Stanford Law School. In addition to representing NJSPBA Locals throughout the state in labor matters, he is an approved attorney for the New Jersey State PBA Legal Protection Plan (LPP). Contact him at 609-356-0270.