New Jersey Attorney General Directives on Release of Police Officer Disciplinary Records Will Affect Discovery in Employment Law Cases

Background

In the wake of the death of George Floyd, New Jersey Attorney General Gurbir S. Grewal issued two directives amending New Jersey’s Internal Affairs Policy and Procedures (commonly referred to as the “Attorney General Guidelines” or the “IAPP”).  The thrust of these directives is to allow for the disclosure of New Jersey law enforcement officer disciplinary records to promote transparency and confidence in police departments and internal affairs disciplinary procedures, as well as to broaden the discovery available to criminal defendants.  Those issues are worthy of a dissertation in themselves, but here I want to focus briefly on their effect in New Jersey employment litigation.

 

Problems Shielding Records in Employment Law Cases

Our firm’s New Jersey employment lawyers represent many law enforcement officers and other public employees in lawsuits under the New Jersey Conscientious Employee Protection Act (known as “CEPA”), which is New Jersey’s whistleblower protection law.  A typical scenario is where an officer is retaliated against for reporting or objecting to wrongdoing by a supervisor.  The officer will have second-hand information that the supervisor was disciplined, but the information was received verbally from another officer and is therefore inadmissible hearsay, and of course the other officer is afraid to testify against his bosses.  Before these Directives the department could sometimes shield the supervisor’s disciplinary records from disclosure in the exchange of discovery, thereby making it difficult, if not impossible, for the officer to prove his case.

These directives should eliminate that problem.  If the records are publicly disclosed, officers suing their departments can obtain these records through publicly available information, and certainly the departments have lost their main argument to shield these records from discovery.

 

The Directives

Directive 2020-5 mandates the disclosure of the identities of officers subject to major discipline (ie., termination, reduction in rank or grade, or suspension of over five days).  It provides in pertinent part:

9.11.1 On an annual basis, every law enforcement agency shall publish on its public website a report summarizing the types of complaints received and the dispositions of those complaints. This report can should be statistical in nature, and the names of complainants and subject officers shall not be published.

9.11.2 On a periodic basis, and at least once a year, every agency shall submit to the County Prosecutor and publish on the agency’s public website a brief synopsis of all complaints where a fine or termination, reduction in rank or grade, and/or suspension of ten days or more than five days was assessed to an agency member. This synopsis 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 officers or complainants but should briefly outline the nature of the transgression and the fine r suspension imposed.

Directive 2020-6 requires the disclosure of the identities of law enforcement officers within the New Jersey Department of Law and Public Safety, including the New Jersey State Police, subject to major discipline.  This Directive also requires disclosure of the discipline of covered officers from January 1, 2000 forward, upon notice to the officers or retired officers.

 

The Appeal

The Directives were challenged in Superior Court in five separate actions by the State Troopers Fraternal Association of New Jersey, the Association of Former New Jersey State Troopers, the New Jersey Former Troopers Heritage Foundation, Inc., Former Trooper Members and FTA Members No. 1 & 2, the State Troopers Non-Commissioned Officers Association of New Jersey, the State Troopers Superior Officers Association of New Jersey, and their current respective presidents, Pete J. Stilianessis and Richard Roberts, Policemen’s Benevolent Association Local Number 105, PBA Local Number 383, PBA Local Number 383A, PBA Local Number 383B, the New Jersey Law Enforcement Supervisors Association, the New Jersey Superior Officers Law Enforcement Association, the New Jersey State Policemen’s Benevolent Association and the New Jersey State Lodge of the Fraternal Order of Police and their current respective presidents, Patrick Colligan and Robert W. Fox.  The challenges were supported by the New Jersey State Association of Chiefs of Police.

The challenges were opposed by the Attorney General, who was supported by the American Civil Liberties Union of New Jersey, the Bayard Rustin Center for Social Justice, the Cherry Hill Women’s Center, the Ethical Culture Society of Bergen County, Faith in New Jersey, the Latino Action Network, Latino Justice PRLDEF, the Legal Advocacy Project of UU Faith Action New Jersey, Libertarians for Transparent Government, the National Association for the Advancement of Colored People, New Jersey State Conference, NAACP Newark, the National Organization for Women of New Jersey, Newark Communities for Accountable Policing, the New Jersey Alliance for Immigrant Justice, the New Jersey Campaign for Alternatives to Isolated Confinement, New Jersey Clergy Coalition for Justice, the New Jersey Institute for Social Justice, Partners for Women and Justice, the People’s Organization for Progress, Salvation and Social Justice, Service Employees International Union 32BJ, SPAN Parent Advocacy Network, Volunteer Lawyers for Justice, and Women Who Never Give Up.

Appeals to the Appellate Division of the Superior Court of New Jersey followed.  The Appellate Division consolidated these appeals issued a stay of the Directives pending its decision.

The Appellate Division rejected the officers’ arguments and found that the Attorney General was acting within his authority as New Jersey’s chief law enforcement officer under power granted to him by statute by the State Legislature.  It did, however, rule that former officers must receive adequate notice prior to publication and be given the opportunity to appeal for other reasons, such as confidentiality agreements in settlements.

The case is likely to be appealed to the New Jersey Supreme Court.  Stay tuned.

 

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