Tag Archives: NJ

Major Discipline Disclosures Reveal Serious Flaws in AG Directive

In response to the Supreme Court’s decision upholding Law Enforcement Directive 2020-5, the Attorney General set a deadline of August 9, 2021 for agencies to make major discipline disclosures by posting on their websites “the identity of each officer subject to final discipline, a brief summary of their transgressions, and a statement of the sanction imposed” for all major discipline imposed after 6/15/2020. These disclosures are exposing how police departments will easily evade the very little transparency that AG Directive 2020-5 provides to the public.

As NJ Advance Media writes, “The details provided about each incident vary widely, with some departments offering only a single sentence to describe the misconduct.”  The New Jersey Monitor adds, “the disclosures contain scant details. And some stragglers haven’t yet gotten their reports online.”  Indeed, many agency reports do not tell the public what the officers actually did, instead simply describing the misconduct as an “off-duty incident”, “prohibited activity on duty”, or “failure to conduct one’s self to a high ethical standard on and/or off duty.”

We find Jersey City Police Department’s major discipline report to be very troubling and indicative of what is almost certainly a larger problem: police departments being purposely vague and misleading in their disclosures now that they have to include officer names.

For background, prior to AG Directive 2020-5, agencies had to disclosure major discipline, but they did so without revealing the name of the officer. The reason JCPD’s new report is alarming is because we have a copy of its old report (p.3), without the names, that we can compare to its new report with the names. The differences in the details provided to the public is startling. AG Directive 2020-5 was supposed to provide more transparency, not less.

Below are some examples:

Example 1:

Old Anonymous Report:

JCPD disclosed that, “A member of this agency while off duty retrieved a firearm after consuming 6-8 beers. He negligently discharged a round from the firearm during a dispute. The New Jersey State Police responded and their investigation resulted in his arrest and subsequent placement in Pre-Trial Intervention.” This resulted in a suspension of 19 days and 71 lost days.

New Report With Name:

JCPD describes the misconduct with much less detail, saying that the officer “lost a total of 90 days for violating JCPD Rules and Regulations for:  Conduct, Mishandling of a Firearm, Intoxicants Off Duty” and that he “negligently discharged a firearm while off duty on his personal property.” There is no mention of the number of beers the officer consumed, the fact that he fired his weapon during a dispute with someone else, or that he was arrested by the State Police. These are important facts about this officer’s volatility.

Example 2:

Old Anonymous Report:

JCPD disclosed that, “A member of this agency purposefully and intentionally failed to report and make proper notifications to dispatch and supervisory personnel following an on-duty officer involved in a motor vehicle accident.” This resulted in a loss of 25 days.

New Report With Name:

JCPD describes the misconduct as, a loss of “25 days accrued time for violating JCPD Rules and Regulations for: Failure to Perform Duties and Conduct after failing to submit an MVA report as required.” There is no mention of the fact that the officer “purposefully and intentionally” failed to file the report and that the accident involved another on-duty officer. The new report makes it seem as if the officer was careless, not that he intentionally was covering up another officer’s accident.

Example 3:

Old Anonymous Report:

JCPD disclosed that, “A member of this agency presented a false, fraudulent and altered doctors’ note to the Police medical Unit.” The report says the officer was “terminated.”

New Report With Name:

The new report does not list any corresponding officer as having been “terminated” for presenting a fraudulent doctor’s note, but this entry seems to match with the old entry: the officer “lost a total of 122 days for violating JCPD Rules and Regulations for: Conduct, Neglect of Duty, and Truthfulness. FNDA issue date 9/16/2020. Resignation effective 9/17/2020.”   Assuming these entries are in fact the same, this entry does not tell the public what the officer actually did (forged doctor’s notes) and it falsely states that he was “terminated,” when he really resigned.

These are just some of the flaws in JCPD’s new report, but it is evidence of a larger problem that advocates predicted: agencies will be less than forthcoming in the disclosures they make pursuant to AG Directive 2020-5. Because the public does not have access to the actual internal affairs files, there is no way to fact-check these disclosures.

Moreover, AG Directive 2020-5 only requires disclosure of names for major discipline imposed after 6/15/2020, and JCPD’s old report reveals some egregious misconduct occurring before that date, such as an officer using a “derogatory term” and attempting to remove the body cam footage; an officer engaging in a “physical altercation with a juvenile that escalated” into the officer inadvertently firing his weapon; and an officer entering a public restroom and making an “inappropriate and unwelcome advance toward a female JCPD Officer.” We will likely never know the names of these officers and they are still on the police force.

We will blog again soon because there are more problematic disclosures that we want to share. In the interim, if you find anything suspicious in your police department’s major discipline report, please send it our way!

For more information about this post or about OPRA, contact CJ Griffin at 201-488-8200 or cgriffin@pashmanstein.com.

Sunshine Week Begins With Supreme Court OPRA Case

It’s Sunshine Week and this year it kicks off in New Jersey with oral arguments before our Supreme Court in an important Open Public Records Act (OPRA) case.

On March 15, 2021, the Supreme Court will hear Bozzi v. City of Jersey City, a case that asks whether a list of names and addresses of dog license holders are accessible under OPRA. The plaintiff seeks the list for commercial purposes–he intends to mail dog owners information about his invisible fences.  The case is listed as the second case of the day, which means arguments will begin sometime after 11:00 a.m. You can watch it here.

CJ Griffin of Pashman Stein Walder Hayden will be participating in the case and will be arguing last. Griffin filed an amicus curiae brief on behalf of Libertarians for Transparent Government, arguing that the Legislature has rejected numerous bills that attempted to exempt dog owner lists or that sought to limit the ability of commercial requestors to utilize OPRA. The amicus brief also explains that limiting this commercial requestor’s right of access will cause harm to all the other requestors who might seek lists of dog owners to benefit the public in some way.

Unfortunately, public agencies sometimes use OPRA’s privacy provision not as a shield to protect legitimate privacy rights, but rather as a sword to attack a requestor’s reason for seeking records, something that should be irrelevant.  In this case, a commercial requestor’s right to obtain public records is under attack, but in other instances the ones under attack are the so-called “gadflies” or the persistent reporters who are thorns in the sides of politicians.  If the Court decides in the City’s favor in this case, the consequences will not be limited only to the addresses of dog license owners or to commercial requestors.  Public agencies will undoubtedly think of far-fetched reasons to invoke OPRA’s privacy provision so that the balancing test applies.  Requestors will then have to sue and convince courts that that their reasons for wanting the records serve a “legitimate public purpose.”  In other words, an interest requirement will be engrafted into OPRA where one does not exist, and as a result, all requestors, whether commercial or not, will have to fight harder to access information that should be statutorily available to them as of right.

. . .

Even if this Court considered a commercial interest to be insufficient to gain access to the dog license records in this case, there are clearly other reasons for requesting these records that do advance “legitimate public purposes.”  For example, someone who encounters a neighbor’s aggressive dog might want to determine if the dog is licensed and vaccinated.  . . .  Someone who runs a local animal rights group might want to contact other dog owners to rally them to pass better animal welfare laws, to lobby for a local dog park, or to alert them to local dangers to dogs.  An animal rescue organization might want to independently verify that the dogs it has adopted out have been properly licensed and vaccinated, or it might want to screen prospective adopters to determine if they have other pets (or had other pets that they surrendered) that they are not disclosing on their adoption applications.  A watchdog group like LFTG might want to investigate whether public officials are failing to license their own pets all while hypocritically ticketing members of the public for failing to do so.  Or, it might want to verify that the list of licenses is accurate and that all of the money collected from licenses are distributed in the proper accounts and transmitted in full to the proper state agencies. . . . A research organization might seek the names and addresses of dog license owners so that it can map them and determine whether certain neighborhoods have more licensed dogs than others and whether there is any correlation to economic factors, such as income, in the ownership or licensure of dogs.

NJ Advance Media previously wrote about the case when it was pending in the trial court. Both the trial court and the Appellate Division ruled that the list must be disclosed.

2020 Transparency Year in Review

Happy New Year! The year 2020 was a year unlike any other. As we look back at transparency issues that arose over the past year, we hope that this blog finds our readers healthy and well.

Pandemic Creates Transparency Hurdles

Transparency was front and center in New Jersey in 2020, although sometimes it was the lack of transparency that was the focus.

On March 9, 2020, Governor Murphy issued Executive Order No. 103 to declare a Public Health Emergency in New Jersey. Days later, the Legislature rushed to amend the Open Public Meetings Act (OPRA) so that public agencies would not have to comply with the statute’s seven-day deadline during the pandemic. As a result, many requestors have found their OPRA requests stalled for weeks or months with no response. Given that Governor Murphy will likely continue to extend the Public Health Emergency declarations for quite some time, requestors can expect access to be slow for many more months.

Another major transparency hurdle in 2020 was the Emergency Health Powers Act. The 2005 law is designed to give the Governor vast powers during a public health crisis, but it also contains an expansive exemption that sates: “Any correspondence, records, reports and medical information made, maintained, received or filed pursuant to this act shall not be considered a public or government record under [OPRA].” N.J.S.A. 26:13-26. Several media outlets reported that the State was using the exemption to keep important information from the public, such as records about which medical facilities lacked protective gear or information about hospital capacity and supplies at nursing homes.

Police Use of Force Records

Access to police use of force records continues to be a challenge, despite the Supreme Court’s landmark 2017 decision in North Jersey Media Group Inc. v. Township of Lyndhurst, 229 N.J. 541 (2017), which held that such records should be accessible to the public.

In January, the Appellate Division granted our client’s appeal in Rivera v. Township of Bloomfield and held that police body-worn camera videos are subject to OPRA. The video at issue recorded police shooting and killing a man in Bloomfield in August 2017.

In February, the Appellate Division granted our client’s appeal in Digital First Media v. Ewing Township, 462 N.J. Super. 389 (App. Div. 2020). In that case, The Trentonian newspaper sought a copy of a Use of Force Report (UFR) that related to force that Ewing police officers used against a teenager. Although the trial court held that the UFR could not be released due to a statute that exempts records relating to juveniles charged as delinquent, the Appellate Division granted our appeal and ruled that the UFR must be released with the juvenile’s name redacted. Ewing Township was also required to pay the newspaper’s legal fees.

In October, we published a blog detailing how the State rarely complies with Attorney General Law Enforcement Directive 2019-4, which requires disclosure of videos of police deadly force incidents within 20 days. Per our count, only one video had been released within the 20-day deadline all year.

Transparency in Police Discipline

In 2020, there were some positive advances in transparency regarding police discipline on a policy level, but also a mixed bag when it came to judicial opinions on this issue.

In Libertarians for Transparent Government v. New Jersey State Police, the requestor sought the name of a state trooper who was “required to separate from employment” for “engaging in racially offensive behavior.” Although both lower courts denied access to the name, the Supreme Court granted certification and was set to review the case. In mid-June, the Attorney General’s office reversed course, granted access to the name, paid the requestor’s legal fees, and issued Law Enforcement Directives 2020-5 and 2020-6. The Directives require disclosure of the names of officers who receive “major discipline,” information that had never been disclosed before.

Shortly after the Directives were issued, several police unions filed challenges and argued that the Attorney General lacked the authority to compel such disclosures. In October 2020, the Appellate Division upheld the Directives. Shortly thereafter, the Supreme Court granted certification and oral argument is set for March 2021. In the interim, the Directives are stayed and no disclosures have been made.

In mid-June, the Appellate Division reversed a trial court decision that had compelled access to internal affairs reports relating to the former Police Director of the City of Elizabeth Police Department who had resigned after it came to light that he used “racist and misogynistic slurs.” The Appellate Division concluded that internal affairs reports are confidential pursuant to the Attorney General’s Internal Affairs Policy and cannot be released even pursuant to the common law right of access. A petition for certification is pending.

In late June, a bill was introduced in the Senate to make all police disciplinary records subject to OPRA, including police internal affairs files. Although Senate Bill No. 2656 has not yet been heard in a committee, more than 100 organizations have endorsed it. New Jersey is one of only 21 states that treat all internal affairs records confidential.

During a July 15th public hearing before the Senate Law and Public Safety Committee, Attorney General Gurbir S. Grewal seemed to embrace greater transparency in internal affairs investigations, stating: “[W]hen it comes to the transparency of police disciplinary records, New Jersey needs to end its outlier status and move towards greater openness. We can and should be a national leader on this issue.”

In early December, the Attorney General released the internal affairs files of Philip Seidle, a former Neptune police officer who shot and killed his wife in 2015. The Asbury Park Press had been fighting in court to gain access to the files for several years. Its case remains pending as to whether the newspaper is entitled to legal fees and whether such files are subject to access under OPRA.

Other Significant Transparency Decisions

There were a few OPRA decisions by the Appellate Division this year, at least two of which will be reviewed by the Supreme Court next year.

In February, the Appellate Division ruled in Bozzi v. Borough of Roselle Park, 462 N.J. Super. 415 (App. Div. 2020), that there was no privacy interest that precluded a commercial requestor from obtaining a list of dog license holders so that he could send them solicitations for his electric fence installation service. The Supreme Court granted certification in a separate case that reached the same conclusion, Bozzi v. City of Jersey City, and the case is pending.

In June, the Appellate Division held in Simmons v. Mercado, 464 N.J. Super. 77 (App. Div. 2020), that complaints and summonses are not “government records” that are subject to OPRA because the judiciary (which is not subject to OPRA) is the custodian of records and not the police departments who enter them into the judiciary’s computer system. The Supreme Court granted certification and the case is pending.

In September, the Appellate Division issued a disappointing opinion in Libertarians for Transparent Government v. Cumberland County, 465 N.J. Super. 11 (App. Div. 2020). In that case, our client learned that a county corrections officer had faced disciplinary charges for “engaging in sex” with two inmates and bringing them contraband, but that because the officer agreed to cooperate with an investigation he was allowed to retire in good standing with a pension pursuant to a separation agreement. In response to an OPRA request our client filed, Cumberland County stated that the officer was “terminated” and it denied access to the agreement. The trial court ruled that the County violated OPRA by falsely stating the officer was terminated when he was really permitted to retire in good standing and it compelled access to the agreement. Unfortunately, the Appellate Division reversed. Although it agreed that the County had not been truthful about the officer’s reason for separation, it found that the agreement was exempt under OPRA’s personnel record exemption. It remanded the case back to the trial court to determine whether access should be granted under the common law, but the case is currently stayed while a petition for certification is pending in the Supreme Court.

In December 2020, John Paff reported that Cumberland County settled a lawsuit relating to the same officer for $150,000, in which a woman inmate had alleged that he and other corrections officers had sexually abused her.

The danger of the Libertarians decision is that it will permit public agencies to enter into agreements with employees and keep the details of those agreements a secret. This deprives the public of the ability to determine whether the agreement was reasonable and advanced the public’s interests. It will also likely allow the exchange of money without any public oversight whatsoever, something that is highly problematic.

In November, Governor Murphy signed A-1649 into law. Commonly known as “Daniel’s Law,” it exempts the addresses of current and former judges, prosecutors, and law enforcement officers from OPRA. It is unclear how public agencies will be able to comply with this law since there is no central list of such addresses to cross reference.

For more information about this blog or questions about OPRA, contact CJ Griffin at cgriffin@pashmanstein.com.

Court Hears Appeals of AG Major Discipline Disclosure Directives

In mid-June 2020, the Attorney General of New Jersey issued two important police transparency directives, both of which have been challenged and were before the Appellate Division this week.

The first directive, Law Enforcement Directive 2020-5, requires future disclosure of the names of officers who have been subject to “major discipline,” which is described as a sanction of termination, demotion, or five or more days of suspension. 

The second directive, Law Enforcement Directive 2020-6, orders the State Police and other state law enforcement agencies to make a retroactive disclosure, requiring disclosure of the names of those who have received major discipline for the past twenty years.  The Attorney General also gave county and municipal departments the discretion to make retroactive disclosures and some have made the decision to do so.

Unfortunately, several police unions very quickly filed emergent appeals to stop the Directives from taking effect. The Appellate Division granted a temporary stay of the Directives until the appeals could be heard.

On September 16, 2020, the Appellate Division heard oral argument in the appeals, which lasted more than four hours. The full audio of the hearing can be downloaded via the Judiciary here.

CJ Griffin, Partner at Pashman Stein Walder Hayden and Director of firm’s Justice Gary S. Stein Public Interest Center, participated in the oral argument and filed a pro bono friend-of-the-court brief on behalf of the National Coalition of Latino Officers (NCLO) and the Law Enforcement Action Partnership (LEAP), two non-profit organizations comprised of current and former law enforcement officers. These organization’s asked the court to uphold the Directives and argued that transparency earns the public’s trust, which leads to members of the public being more likely to cooperate with investigations, report crimes, and ensure that police departments have proper resources to perform their jobs safely. Additionally, the AG’s transparency Directives would greatly benefit officers of color and women officers because it would allow organizations like NCLO to identify racial and gender disparities in how major discipline has been imposed upon officers.

The Trentonian has published an article summarizing the Appellate Division arguments, which can be viewed here:

CJ Griffin, an attorney for the National Coalition of Latino Officers and the Law Enforcement Action Partnership, said her clients “really want the court to know that not all police officers agree with the unions’ position. In this case, many of the officers are advocates of transparency.”

Griffin said her clients support transparency and believe “transparency really benefits police officers.”

Some of the briefing can be downloaded here:
LEAP & NCLO’s Amici Curiae Brief
ACLU-NJ & 23 Diverse Organization Amici Curiae Brief
ACDL-NJ & Office of Public Defender’s Amici Curiae Brief
Attorney General’s Respondent Brief
Association of Former State Troopers’ Appellate Brief
State Troopers Fraternal Association Appellate Brief
State PBA Appellate Brief
PBA Local 105 Appellate Brief
Superior Officers Association Appellate Brief

For questions about this blog post, please contact CJ Griffin at 201-270-4930 or cgriffin@pashmanstein.com