New Jersey Attorney General Gurbir Grewal has issued a Directive to law enforcement which implements new statewide policy of publishing internal affairs (“IA”) data, including the names of officers subject to serious discipline. The A.G.’s Office has simultaneously released a revised Internal Affairs Policy & Procedures (“IAPP”) manual which all law enforcement agencies are required by law to implement and comply with, reflecting the new IA policies.
Directive 2021-6 was issued immediately after the recent New Jersey Supreme Court decision holding that the A.G. acted within his authority last year when he issued Directive 2020-5 (the “Major Discipline Directive”). The Major Discipline Directive reversed long-standing practice of keeping police disciplinary records confidential and instead required the publication of the names of officers subjected to major discipline, defined as termination, demotion, and/or suspension of more than five days. (Read more about the recent Supreme Court decision here.
The stated purposes of the new Directive are (1) to provide guidance to all law enforcement agencies about how to fully comply with the Major Discipline Directive, and (2) to clarify agencies’ authority over the confidentiality and publication of internal disciplinary information and records.
The Major Disciplinary Directive instructed agencies to begin to publish, at least annually, brief synopses of all complaints result in major discipline, including the names of subject officers. The new Directive instructs all agencies to publish their first reports by August 9, 2021. Those reports must only include data from June 15 to December 31, 2020. Going forward, reports detailing major disciplines must be published no later than January 31 of the following year.
The new IAPP contains several significant revisions to long-standing policies. First, agencies (including municipal police departments) are no longer authorized to enter into binding confidentiality agreements regarding IA matters. Going forward, “the power to direct sharing or release of IA information is possessed by the relevant County Prosecutor and the Attorney General—and that power cannot be nullified by individual law enforcement agencies.” In fact, section 9.6.6 of the IAPP expressly stipulates that law enforcement agencies cannot waive, restrict, or other limits the power of the County Prosecutor or A.G. to later direct the disclosure of IA information.
Second, section 9.11.3 clarifies that “agencies may not, as part of a plea or settlement agreement in an IA investigation or otherwise, enter into any agreement [with an officer] concerning the content of a synopsis subject to public disclosure [concerning major discipline], including … identities of officers subject to final discipline, summaries of transgression, or statements of the sanctions imposed.” In this way, the IAPP seeks to take the issue of how an IA matter is publicly reported “off the table” in negotiating a resolution. The Directive stresses that the new provision is not intended to otherwise limit agencies’ authority to resolve administrative charges or consequences. The reasoning behind the new policy is that public reports will be uniformly accurate and complete and across all agencies.
Third, the new IAPP clarifies that the victims of police misconduct are not to be identified in public reports. When the misconduct relates to domestic violence committed by an officer, the public report is not to include the relationship of the victim to the officer (such as spouse, child, or parent), which would tend to identify the victim.
Fourth, the new IAPP makes various other changes consistent with the above regarding the conduct of IA investigations and the coordination between agencies. Other notable changes include the provision that bargaining unit representatives may not represent more than one witness or subject in a single investigation, to avoid potential conflict of interest; and the addition of the last phrase to Section 6.0.1 providing that allegations of misconduct must be investigated to their conclusion “regardless of whether the officer resigns or otherwise separates from the agency.”
As the new IAPP policies are put into practice, it will no doubt require numerous real-life cases to identify issues, resolve them, and refine the policies going forward. Anyone involved in a police IA/disciplinary matter should be represented to ensure that their rights are protected to the fullest extent of the law.