The Supreme Court of New Jersey recently upheld Attorney General Gurbir Grewal’s executive order to publish the names of police officers who have been subjected to major discipline...
The Supreme Court of New Jersey recently upheld Attorney General Gurbir Grewal’s executive order to publish the names of police officers who have been subjected to major discipline. “The attorney general had the right to change course and direct that details of future serious disciplinary matters — including the names of the officers disciplined — will be revealed to the public,” Chief Justice Stuart Rabner wrote on behalf of the unanimous court in In re Attorney General Law Enforcement Directive Nos. 2020-5 and 2020-6.
Facts of the Case
In June 2020, the Office of the Attorney General issued two directives, Law Enforcement Directive Numbers 2020-5 and 2020-6 (collectively, the “Directives”), amending the statewide rules for internal affairs investigations, known as the Internal Affairs Policy and Procedures (IAPP). Shortly thereafter, several police unions representing law enforcement officers filed suit.
Directive 2020-5 amends the IAPP to require every law enforcement agency in the State to publish a synopsis of all complaints in which an officer received final discipline of termination, demotion, or a suspension of more than five days, including the name of the officer, a summary of the misconduct, and the sanction imposed. Initial reports, covering all discipline imposed during this calendar year, are due by December 31, 2020. Subsequent reports must be published at least annually thereafter. The Directive further permits, but does not require, county and municipal agencies to release similar information about earlier incidents of officer misconduct resulting in the same sanctions.
Directive 2020-6 orders all law enforcement agencies within the Department of Law and Public Safety, which the Attorney General heads, the Division of State Police and the Division of Criminal Justice, as well as the Juvenile Justice Commission, which is in but not of the Department, to publish no later than July 15, 2020, the same information required by Directive 2020-5 from January 1, 2000 to the present. The Directive orders the three agencies to provide notice to each officer it intends to identify at least seven days prior to publication, whenever possible making reasonable efforts.
The plaintiffs argued that the Attorney General lacks the authority to issue the Directives because they conflict with a provision of the Open Public Records Act, a regulation promulgated by the Department of Law and Public Safety, N.J.A.C. 13:1E-3.2(a)(4), and various Executive Orders, most notably Executive Order 11 (Byrne), all of which protect the confidentiality of personnel records of public employees. Among other arguments, the plaintiffs also alleged that the Attorney General promulgated the Directives in violation of the Administrative Procedures Act and acted outside his authority by giving them retroactive application.
The Appellate Division upheld the Directives. “[W]e conclude the Attorney General acted within the authority conferred on him by the Legislature in the Law and Public Safety Act of 1948, the Criminal Justice Act of 1970, and N.J.S.A. 40A:14-181 in issuing Directives 2020-5 and 2020-6, and they therefore withstand petitioners’ facial challenge,” the court wrote.
NJ Supreme Court’s Decision
The New Jersey Supreme Court unanimously affirmed. According to the justices, “The Directives are consistent with legislative policies and rest on a reasonable basis.” As Chief Justice Stuart Rabner explained:
Here, the Attorney General exercised authority the Legislature placed in his office to develop and revise disciplinary policies. He acted to enhance public trust and confidence in law enforcement, to deter misconduct, to improve transparency and accountability in the internal affairs process, and to prevent officers from evading the consequences of their misconduct. The Attorney General’s reasoned bases for acting were fully consistent with the Department’s mandate.
The New Jersey Supreme Court also noted that the Directives implement a practice that is common in other professions. “When doctors, lawyers, judges, and other professionals are disciplined for misconduct, their names are made public,” Chief Justice Rabner wrote.
The New Jersey Supreme Court also emphasized that disagreement over a policy does not make it arbitrary, capricious, or unreasonable. “[T]houghtful concerns in opposition to a new policy are not fatal to administrative action. The Attorney General’s decision to release the names of law enforcement officers subject to major discipline is consistent with his delegated authority and grounded in reason. It is not arbitrary, capricious, or unreasonable,” Chief Justice Rabner wrote.
The New Jersey Supreme Court concluded that the plaintiffs’ promissory estoppel argument did warrant further consideration. As explained by the court, the plaintiffs maintained that officers subjected to major discipline for the past 20 years were promised that their names would not be released, and that they relied on that promise in resolving disciplinary accusations.
According to the court, a judge will need to hear and evaluate testimony and decide if the elements of the doctrine of promissory estoppel have been met for disciplinary matters settled before the Directives were announced. In a separate order, the New Jersey Supreme Court designated a single Judge of the Superior Court to conduct the hearing described in its opinion. If the court finds that promises of confidentiality were made and relied on consistent with the appropriate legal standards, it could bar the release of names of law enforcement officers subject to Directive 2020-6 for disciplinary matters settled before June 19, 2020. However, the identities of officers subject to major discipline since the Directives were issued in June 2020 may be disclosed; going forward, future disciplinary sanctions can also be disclosed in the same manner.