NJ Supreme Court Upholds Newark Civilian Review Board with Limited Investigatory Powers

In Fraternal Order of Police, Newark Lodge No. 12 v. City of Newark (A-15-19/083197) (Decided August 19, 2020), the Supreme Court of New Jersey addressed the legality of Newark’s civilian complaint review board, which was established to investigate allegations of police misconduct. The court held that “state law permits the creation by ordinance of this civilian board with its overall beneficial oversight purpose”; however, it held that some of the board’s powers exceed its authority under state law.

New Jersey Supreme Court Clarifies Entire Controversy Doctrine

Facts of Fraternal Order of Police, Newark Lodge No. 12 v. City of Newark

Municipal Ordinance 6PSF-B (Ordinance) establishes the Civilian Complaint Review Board (CCRB or the Board), within the Office of the Mayor, to address complaints filed by citizens against the Newark Police Department and its members. The Ordinance authorizes the Board to recommend to the Public Safety Director the discipline to be imposed on individual officers. The Board’s powers and responsibilities can be divided into two categories: investigative powers and policy responsibilities.

With respect to its investigative powers, the Ordinance endows the Board with subpoena power and concurrent jurisdiction with the Newark Police Department to receive and investigate complaints against the Department’s members. The Board’s findings of fact in its investigations are, “absent clear error,” made binding on Newark’s Public Safety Director, who retains final authority over discipline of the police force. The Board is also allowed to recommend the discipline to be imposed. The Ordinance confers on the Board the added power — at the conclusion of the Newark Police Department’s own investigation into an officer’s behavior — to review the findings, conclusions, and recommendations that ensue from that internal investigation.

In its policymaking capacity, the Board can recommend to city officials procedures for investigating police conduct. The Board is also tasked with a consultative role in the development of a discipline matrix by the Public Safety Director and the affected bargaining units. Further, the Ordinance directs that Newark’s Division of Police and Department of Public Safety cooperate with the CCRB. Finally, the Ordinance establishes rules and procedures for the CCRB, one of which provides for the confidentiality of complainant identities. However, “[i]f the complaint is substantiated and is referred to a CCRB hearing, the complainant’s identity may be released in the course of any public hearing about the alleged misconduct.”

The Fraternal Order of Police, Newark Lodge No. 12 (FOP) filed a complaint claiming that the Ordinance was unlawful. The trial court invalidated the Ordinance with two exceptions: (1) the CCRB could perform an oversight function, and (2) the CCRB could consult with the Public Safety Director and NPD in the creation of the discipline matrix. On appeal, the Appellate Division held that the Ordinance is valid on its face with two exceptions. First, it found that the Ordinance infringes upon the Chief’s statutory rights by making the CCRB’s findings of fact binding, absent clear error. Second, it found that the Ordinance improperly permits disclosure of complainant and police officer identities. “Otherwise, we conclude that the CCRB can function as intended under the Ordinance, including providing an oversight role by investigating alleged police misconduct, conducting hearings, participating in the development of a disciplinary matrix, making recommendations, and issuing subpoenas,” the court wrote.

NJ Supreme Court’s Decision in Fraternal Order of Police, Newark Lodge No. 12 v. City of Newark

The New Jersey Supreme Court sustained the Ordinance, albeit with modifications. “We conclude that state law permits the creation by ordinance of this civilian board with its overall beneficial oversight purpose. Such boards must operate consistently with current statutes, however,” Justice Jaynee LaVecchia wrote. “To the extent some investigatory powers that the City wishes to confer on its oversight board conflict with existing state law, we are compelled to modify the Appellate Division’s judgment. We also invalidate the conferral of subpoena power on this review board.”

The court first addressed whether Newark has the power to legislate, by ordinance, the creation of a citizen oversight board to have a role in the review of the handling of citizens’ police misconduct complaints. After applying the three-part test set forth in Dome Realty, Inc. v. City of Paterson, 83 N.J. 212, 225-26 (1980), it concluded that the choice to establish a civilian oversight board via municipal ordinance was not preempted New Jersey law, namely the police powers statute, N.J.S.A. 40:48-2, and N.J.S.A. 40A:14-181, which directs locally created law enforcement agencies to adopt procedures for the investigation of complaints of police misconduct consistent with guidelines issued by the State’s chief law enforcement officer.

The New Jersey Supreme Court then turned to the power granted to the CCRB. It held that the CCRB can investigate citizen complaints alleging police misconduct, and those investigations may result in recommendations to the Public Safety Director for the pursuit of discipline against a police officer. However, it further held that the Board can’t exercise its investigatory powers when a concurrent investigation is conducted by the Newark Police Department’s Internal Affairs (IA) unit. As Justice LaVecchia explained. “An investigation by the IA unit is a function carefully regulated by law, and such an investigation must operate under the statutory supervision of the police chief and comply with procedures established by Newark’s Public Safety Director and the mandatory guidelines established by the Attorney General.” She added that “concurrent investigations would interfere with the police chief’s statutory responsibility over the IA function and that the review board’s separate investigatory proceedings would be in conflict with specific requirements imposed on IA investigations and their results.” The court further held that where there is no existing IA investigation, the CCRB is authorized to conduct its own investigations.

With regard to the CCRB’s oversight function, the New Jersey Supreme Court agreed with the Appellate Division, which upheld the Board’s roles in creating a disciplinary matrix to be used by the Public Safety Director and conducting oversight reviews and reporting periodically to the Public Safety Director and to the Council. “[T]he Board may conduct its oversight function by reviewing the overall operation of the police force, including the performance of its IA function in its totality or its pattern of conduct, and provide the called-for periodic reports to the officials and entities as prescribed by municipal ordinance,” Justice LaVecchia wrote.

Finally, the court addressed the Ordinance’s delegation of subpoena power to its CCRB, concluding that it “cannot be squared with existing statutes.” As Justice LaVecchia explained, “We appreciate that Newark values having a civilian body participating in the oversight of the police function. But the Legislature would have to act in order for the City to have the ability to confer subpoena power on its CCRB.”

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.