New Jersey Supreme Court Says Attorney General Can Publish The Names Of Cops Who Committ Serious Misconduct
from the flow-my-tears,-said-the-now-disgraced-policeman dept
Last year — following the murder of George Floyd by Minneapolis police officer Derek Chauvin (and following the protests that followed this unconscionable killing) — New Jersey’s top cop said there would be more transparency and accountability in his state.
Attorney General Gurbir S. Grewal today ordered all law enforcement agencies in New Jersey to begin publicly identifying officers who commit serious disciplinary violations. Under the order, going forward every state, county, and local law enforcement agency in New Jersey will be required to annually publish a list of officers who were fired, demoted, or suspended for more than five days due to a disciplinary violation, with the first list to be published no later than December 31, 2020.
This move — one that finally aligned New Jersey with several other states’ transparency rules — resulted in immediate legal action from the state’s police unions. According to them, this was unfair — an unlawful clawback of promises made to cops disciplined in the past, who were assured their names would not be published.
Well, part of that still sort of holds, but only on a case-by-case basis. The state’s Supreme Court has sided with the Attorney General and his power to create new rules that apply to law enforcement officers. The ruling [PDF] says the new mandate is good and lawful and definitely affects all officers who commit serious misconduct after the announcement of the rule.
Directive 2020-5 applies to all law enforcement agencies in the State, including local police departments; Directive 2020-6 applies to the State Police and other agencies within the Department of Law and Public Safety (Department). Both Directives encompass all findings of major discipline after January 1, 2020. In addition, for the State Police and other agencies within the Department, officers subjected to major discipline dating back twenty years would be identified publicly.
As the court notes, this completely upends the state’s standard operating procedure.
The Directives mark a sharp change in practice. Previously, the Attorney General fought to shield the identities of law enforcement officers disciplined for serious misconduct.
But even though it’s a big change, it’s still the sort of thing a state Attorney General can do. And law enforcement agencies must comply.
The Attorney General had the authority to issue the Directives, which satisfy the deferential standard of review for final agency decisions. The Directives are designed to enhance public trust and confidence in law enforcement, to deter misconduct, to improve transparency and accountability in the disciplinary process, and to identify repeat offenders who may try to move from one sensitive position to another. In short, the Directives are consistent with legislative policies and rest on a reasonable basis.
So, suck it, bad cops who don’t want to have their names made public going forward. However, cops who received assurances their names would not be made public no matter how egregious their misconduct still might be able to keep their names buried. But this is not a blanket order. The officers will need to make their case to the court to determine whether or not the AG’s office can still be (sort of) sworn to secrecy.
Officers subjected to major discipline for the past twenty years say they were promised that their names would not be released, and that they relied on that promise in resolving disciplinary accusations. In essence, they ask the State to stand by promises they claim were made throughout the prior twenty years. To resolve that serious issue, 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.
The court also reminds law enforcement officers that this sort of thing is considered acceptable by many professionals in many fields.
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. The New Jersey Division of Consumer Affairs lists the results of disciplinary actions against accountants, architects, dentists, electrical contractors, engineers, nurses, pharmacists, plumbers, real estate appraisers, and others on its website.
And it’s also the sort of thing that’s expected by the people who pay these public servants’ salaries, i.e. the state’s residents.
That practice is routine in other professions and shines light on both the overall disciplinary process and individual wrongdoing.
So, cops who don’t want their names made public when they’ve committed serious misconduct have a few options. Well, really just one: don’t commit serious misconduct. That will keep the officer’s name out of the Attorney General’s proverbial mouth.
Of course, the officers affected by this have concerns…
They contend the Directives will embarrass officers and make them and their families targets for retribution; undermine the integrity of the investigatory process; chill cooperation from officers; discourage officers from seeking treatment for alcohol or drug dependencies; undermine the command structure in law enforcement agencies; have a negative effect on public safety; and reveal the identities of victims and witnesses in domestic violence and other matters.
But those concerns aren’t enough to nullify the new mandate, says the court. Plenty of other professions deploy the same sort of accountability measures and, while they may result in the same sort of side effects, have never been declared unlawful or a violation of due process rights.
The top court affirms the lower court’s ruling and with this ruling, the Attorney General’s rule stands going forward. And it likely will apply to most officers who’ve committed serious misconduct during the last 20 years. Of course, the police unions still have complaints. And that leads to this gobsmacking lie that would be hilarious if it weren’t coming from the source of the multitude of problems plaguing US police departments.
Patrick Colligan, the president of the state Policemen’s Benevolent Association, New Jersey’s largest police union, called the ruling “both frustrating and disappointing.”
“The NJSPBA does not and will not protect bad officers who violate the public trust and, yet, the 99.9% of good men and women serving in law enforcement continue to find themselves under attack,” he said in a statement.
The Attorney General’s transparency directive stands. If officers don’t want to subject themselves to all the negative effects of having their names published, well… maybe they should avoid committing serious misconduct.