New Jersey Public Safety Employee Lawyer & Attorney : Arpaia & Crivelli Law Firm : Police, Firefighters, Workers Compensation, Discipline Representation : New Jersey

In the case of Spinks et al. v. The Township of Clinton et al., 52-2-1684, The Township of Clinton sought to bar the release of an internal affairs investigation of the police department that was submitted to the trial court as part and parcel to a summary judgment proceeding.  The Township argued that the disclosure of these types of documents are forbidden by law and under common law principles of fairness, the township's interest in confidentiality  outweigh the public's interest in accessing the records. 

In making this decision the trial court applied the balancing test articulated in the matter of Hammock v. Hoffman-La Roche Inc. 142 N.J. 356 (1995).  After applying the balancing test that weighs the township's interest in confidentiality  versus the public's interest in accessing the records, the trial court held that the records could be released but only after all personal information was redacted from the records and with held.  In examining this issue on appeal, The Superior Court of New Jersey, Appellate Division, remanded the case to the trial court for further redaction of the records for confidentiality purposes that was consistent with the trial court's previous ruling.

This case stands for the principle that in certain circumstances internal affairs reports and records can be released to the public, however only after the court conducts an "in camera" review of the records and makes a decision concerning the redaction of personal information that will be necessary to preserve privacy.  Therefore, if you are looking for confidential records and reports that were produced by internal affairs, you may be able to get your hands on them in certain circumstances.

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In the case of Leek v. New Jersey Department of Corrections, 33-2-0497, a Senior Corrections Officer appealed the New Jersey Department of Personnel, Merit System Board's decision to uphold the Department's issuance of a thirty (30) day suspension for violation of the Department's internal rules and regulations and conduct unbecoming a public employee.  The case revolved around the conduct of Leek who repeatedly attended court hearings in uniform with a criminal defendant that was free on bail but had previously been a county jail inmate.  Leek further wrote a letter that identified himself as a Senior Corrections Officer and asked for leniency on behalf of the defendant. 

In defense of his actions Leek stated that he was acting in his capacity as an ordained minister and spiritual adviser on behalf of the inmate.  Leek never informed the Department or his superiors of his conduct and failed to request permission to appear on behalf of a defendant facing criminal charges in a New Jersey Court of Law.

Despite Leeks arguments that were based on his First Amendment rights, the New Jersey Superior Court, Appellate Division agreed with the Merit System Board that upheld the thirty day suspension imposed by the New Jersey Department of Corrections.  In summary, while Public Safety Officers do garner protections under the First Amendment of the United States Constitution, they can not call upon these protections when their actions are detrimental to their employer, public perception, and their sworn law enforcement duties. 

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This is the second entry drafted by Michael P. DeRose concerning the utilization and implementation of Weingarten rights by New Jersey Public Safety Officers.

Subsequent to the invocation of Weingarten Rights by a New Jersey Public Safety Officer, the supervising authority conducting the interview must:

• cease questioning until the union representative arrives;
• cancel or postpone the interview; or
• inform the subject of the interview that the interview will be called off unless the subject voluntarily waives his or her right to union representation.

In this situation, the union representative serves many vital functions when present at an investigatory interview. First and foremost, the union representative is to meet and speak privately with the officer or first responder subject to the interview prior to its commencement. It is at this meeting coupled with information gathered from administration that the union representative should ascertain the charges against the union member and advise he or she how to answer questions posed by the authority conducting the interview. It is important to remember that under Weingarten the interviewing party must advise the union representative of the purpose and subject of the investigatory interview.

The union representative may also object to questions or tactics he/ she deems inappropriate or coercive that are utilized by the individual conducting the interview. Finally, at the conclusion of the interview, the union representative can offer mitigating circumstances to the employer or the authority conducting the interview, investigate leads, offer information to support the interviewee’s case and question the interviewee to either clear up information that has been provided or provide new information if needed.

Under Weingarten, the functions of the union representative at the investigatory interview does not exceed those set forth above. The union representative cannot dictate verbatim how the officer or first responder should answer questions posed in the interview. The representative can make assertions regarding the investigation; however, the authority conducting the interview has no obligation to take note of these assertions and can in fact ignore them. Furthermore, the authority conducting the investigatory interview has no duty to bargain with the union representative concerning any aspect of the investigation.

In conclusion, the single most important element for any New Jersey Public Safety Officer to retain pursuant to reviewing this blogosphere article is the importance of invoking one’s rights under NLRB v. Weingarten. The invocation of one’s Weingarten rights should be as follows:

• “If this discussion could in any way lead to my being disciplined or terminated, or affect my personal working conditions, I request that my union representative be present at this meeting.
• Without representation, I choose not to answer any questions.
• This is my right under a Supreme Court decision called N.L.R.B. v. Weingarten.”

The Law Offices of Arpaia & Crivelli, L.L.C. has had durable plastic cards constructed that contain a Public Safety Officer’s Weingarten Rights. These cards are the exact size of a credit card and should be carried in the wallet or billfold of every New Jersey Public Safety Officer at all times. These cards are free of charge to any Public Safety Officer that would like to ensure that they are protecting their rights. You can obtain a card for yourself or your entire department by calling 609-890-1900. Take advantage of this offer. There are not too many things that are free any longer in today’s world.

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This particular post was drafted by Michael P. DeRose. As stated in a previous post, Michael is a paralegal employed with the Law Offices of Arpaia & Crivelli, L.L.C. Michael will be leaving the office in August, 2008, for purposes of attending Law School in Michigan. While we are very sad to see him leave, we are excited that he has the opportunity to further his education and pursue his dream of becoming attorney. We look forward to his return as a law clerk in the summer of 2009, and truly wish him the very best in law school. 

This is the first of two posts centered on the case of NLRB v. Weingarten, 420 U.S. 251 (1975).

The brave men and women who comprise the long list of New Jersey Public Safety Officers should maintain a solid foundation of knowledge in regard to the rights they possess within the institutions where they are employed. As such, a brief discussion of Weingarten Rights is in order.

The United States’ Supreme Court case known as NLRB v. Weingarten solidified the notion that unionized employees possess the right to obtain union representation during investigatory interviews. This principle applies to both private employee collective bargaining units and public employee collective bargaining units. “Investigatory interviews” as defined under Weingarten can pertain to criminal issues or departmental matters which may lead to discipline. However the invocation of Weingarten rights only applies to investigatory interviews conducted by a supervising authority within the organization where the subject of the interview is employed.  

In particular to Public Safety Officers, investigatory interviews are regularly conducted by agents of an Internal Affairs Department or the Special Investigations Division of their respective organizations. Simply stated, an investigatory interview occurs when a supervising or investigatory authority questions a subordinate to obtain information which could be used as a basis for discipline. The supervising authority is also engaged in conducting an investigatory interview when they ask a subordinate to defend his or her conduct in a formal setting. Weingarten rights only apply to NJ Public Safety Officers who face the possibility of undergoing an investigatory interview.

It is both necessary and essential for law enforcement personnel and first responders to detect when a potential interview qualifies as “investigatory.” An important question to ask one’s self when uncertain of whether the interview is “investigatory” is: “could this interview or its fruits possibly lead to disciplinary action?” If the Public Safety Officer being questioned reasonably believes that the answer to this question is yes, he or she is entitled to have union representation present at the meeting before a question is posed. Also, it is important to note that the supervising authority conducting the investigatory interview is not compelled to advise the subject of his or her Weingarten rights. This is a common misconception that merits mention. It is the responsibility of the Public Safety Officer being questioned to invoke Weingarten to ensure representation is present during the investigatory interview. In the next post we will discuss Weingarten in more detail, and the effect of invoking the rights during an investigatory interview.  

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