SID Union Accuses NJDOC of Preventing, Blocking Prison Investigations

Posted on December 1, 2009 by Donald Barbati

 

As reported in the Star-Ledger on November 26, 2009, according to a lawsuit filed by the union representing prison investigators, senior officials at the Department of Corrections are illegally blocking internal investigations into bribery, cell phone smuggling and gang activity. In short, the lawsuit alleges that Correction officials shut down ongoing probes or prevented investigations from even beginning.

For example, the lawsuit alleges that investigators were told not to examine whether a prison employee was hiding a cell phone, or if an inmate had “put out a hit” on people outside the prison system. Other alleged spike investigations included probes into prison employees who fired service weapons, once during an alleged off-duty bar fight. Allegedly, both files were marked “no action taken” by senior officials.

The union, Fraternal Order of Police Lodge 174, represents about 90 officers within the Department of Corrections’ Special Investigations Division. The union has previously clashed with the Department’s leadership on issues of tactics and resources. 

The Special Investigations Division has been controversial for its dual role in probing gang activity and handling internal affairs. Officials inside and outside of the Division say its dual role creates distrust within the Department.

Spokespeople for the Department of Corrections and the Attorney General declined to comment on the pending lawsuit. Please check this blog periodically to ascertain updates regarding this lawsuit as the same become available.

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Discipline Regading Dissemination of Internal Affairs Documents Upheld

Posted on January 14, 2009 by Frank Crivelli

 

In Division of State Police v. In the Matter of Detective Sergeant First Class Daniel Flaherty, Docket No. A-0257-07T20257-07T2, the Appellate Division addressed the validity and ultimate imposition of disciplinary charges lodged against a Detective Sergeant of the New Jersey State Police. The appeal arose out of disciplinary charges filed by the New Jersey Division of State Police (“Division”) against Detective Sergeant First Class Daniel Flaherty, charging him with: (1) disseminating Division documents without proper authorization; (2) behaving in an official capacity to the personal discredit of a member of the State Police or to the Division; and (3) willfully disobeying a lawful verbal or written order.

The underlying facts of this case were not substantially in dispute. In 2001, Flaherty filed an age discrimination complaint with the New Jersey State Police Equal Employment Opportunity/Affirmative Action (“EEO/AA”) intake unit. He alleged that since 1995, the State Police had denied him numerous specialist positions because of his age. The EEO/AA assigned Lieutenant Patrick Reilly to investigate his claim. After two years, in which the allegations still had not been resolved, the EEO/AA replaced Reilly with DSFC Kevin Rowe.

On May 5, 2003, Flaherty filed a New Jersey State Police Reportable Incident Form alleging “culpable inefficiency” against Reilly. Pursuant to a Division policy regarding non-disclosure of confidential internal investigations, the Office of Professional Standards (“OPS”) denied his request to access the file regarding his complaint against Reilly.

The following month, the State Police administratively closed Flaherty’s complaint file against Reilly and transferred the matter to the Attorney General’s EEO/AA section. In a letter dated September 24, 2003, a Senior Deputy Attorney General informed Flaherty that his claim against Reilly could not be substantiated. 

Thereafter, on May 31, 2003, the Division assigned Flaherty to the OPS, which was then called the State Police Internal Affairs Investigation Bureau. Pursuant to Division of Internal Affairs policies and procedures, “[t]he nature and source of internal allegations, the progress of internal affairs investigations, and the resulting materials are confidential information. The contents of internal investigation case files shall be retained in the internal affairs unit and clearly marked as confidential.” Notwithstanding these provisions, internal investigation files can be released in certain enumerated circumstances.  As such, Flaherty executed a confidentiality agreement which provided the dissemination of all confidential information and/or documents.

In a letter dated February 20, 2004, the Department of Law and Public Safety found that Flaherty’s age discrimination claims could not be substantiated. In his appeal to the Department of Personnel, Flaherty questioned the manner in which the State Police and the Attorney General’s office investigated his

 

discrimination claims and his complaint against Reilly. Attached to the appeal were several documents from OPS internal investigation files relating to Reilly and several documents from the internal investigation file regarding his culpable inefficiency claim against Reilly. He also claimed that two other State troopers had filed reportable incident forms against Reilly, specifically citing to one of the internal investigation files.

The Department of Personnel acknowledged receipt of Flaherty’s appeal and forwarded a copy of same to the Attorney General’s office. In responding to the appeal, it became apparent Flaherty might have breached confidentiality by attaching Division documents from internal investigation files. Consequently, an investigation was commenced regarding Flaherty’s acquisition and dissemination of several of the documents referenced in and attached to his appeal. After the investigation, on August 25, 2005, the Division filed the above referenced disciplinary charges against Flaherty. 

The case was ultimately transferred to the Office of Administrative Law. The Administrative Law Judge (“ALJ”) assigned to the case granted a summary decision in favor of the State on charges one and three, dismissed charge two, and ordered Flaherty suspended from duty for five days without pay. After the State filed exceptions seeking to increase the penalty and Flaherty challenged the grant of summary decision as well as the penalty, the Superintendent of the State Police issued a final decision on August 1, 2007, upholding the summary decision on charges one and three, but increasing the suspension to ten days. This appeal ensued.

On appeal, Flaherty asserted: (1) genuine issues of material fact precluded summary decision; (2) the ALJ failed to consider relevant evidence; (3) the ALJ applied the incorrect burden of proof; (4) the Superintendent erred by adopting the Department of Personnel’s finding that his discrimination claims were “unsubstantiated”; (5) the Superintendent erred in asserting that he has “absolute discretion” to promulgate rules and regulations; (6) he was unfairly charged with two violations based on the same facts; and (7) the ten day suspension is disproportionately harsh.

The Appellate Division rejected all of Flaherty’s arguments and affirmed the Superintendant’s decision. According to the Court, the record sustained the ALJ’s grant of summary decision imposing disciplinary action on Flaherty for attaching the records from the Internal Affairs Unit of the State Police. The Court determined Flaherty knew the records he attached to and referenced in his appeal were confidential. Moreover, the Court noted Flaherty even executed a confidentiality agreement which specifically prohibited such dissemination. As such, the Court held the ten day suspension was not disproportionately harsh and sustained the findings of the ALJ and Superintendent.
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ATTORNEY GENERAL'S GUIDELINES MUST BE FOLLOWED IN INTERNAL AFFAIRS INVESTIGATION

Posted on November 11, 2008 by Frank Crivelli

 

In the matter of O’Rourke v. City of Lambertville, Docket No. A-0481-07T3, the Defendants appeal the trial court’s decision: (1) reversing the Lambertville City Council’s decision removing Plaintiff, Michael O’Rourke, from his position as a police officer; (2) reinstating Plaintiff to his position; and (3) denying their motion for reconsideration. Defendant, Bruce Cocuzza, is the city’s civilian police director. Plaintiff, a sergeant first class, was the police department’s Terminal Agency Coordinator (“TAC”) for the National Crime Information Center (“NCIC”) system, which contains a wide array of law enforcement information. 

The city charged Plaintiff with conducting unauthorized and improper employee background investigations, in defiance of Cocuzza’s direct order, and engaging in conduct subversive to the good order and discipline of the department in doing so. At the disciplinary hearing, Cocuzza testified that he and Plaintiff were discussing the temporary transfer of an employee from city hall to the department when Plaintiff told him that the employee would have to submit to a background check or be fingerprinted for security purposes. Cocuzza said he told Plaintiff that no action should be taken until Cocuzza received written authorization from “somebody in authority” and spoke with the city attorney regarding same. Later, Cocuzza learned Plaintiff had performed background investigations of five civilian employees of the department, including Cocuzza, without authorization.

After the officer assigned who was assigned to the department’s internal affairs unit declined to investigate because of his long-term social relationship with Plaintiff, Cocuzza decided to conduct the investigation himself. In his report, Cocuzza wrote that Plaintiff had been insubordinate and that his actions constituted a serious breach of discipline and a flagrant abuse of authority. 

Plaintiff testified that he performed the checks under his authority as TAC officer, indicating that under the State’s security policy anyone with access to the NCIC system had to have a background check and fingerprints taken. He also stated that he understood Cocuzza to mean that he should not ask anyone for their fingerprints, which he did not do. He did concede that he did criminal checks on five employees, including Cocuzza.

 

The City Council found plaintiff guilty of insubordination and ordered his removal. Plaintiff then filed this action seeking a de novo review of the city’s action. He alleged that Cocuzza exceeded his authority by conducting the investigation and, in doing so, violated the department’s internal affairs procedures, the attorney general’s guidelines, N.J.S.A. 40A:14-181, and his right to due process. The trial judge found that regardless of whether plaintiff violated Cocuzza’s order or any other department rule, the investigation was not conducted in conformity with the rules and regulations adopted by the city and the attorney general’s guidelines and, as a result, Plaintiff’s due process rights were violated. The trial judge reinstated Plaintiff with back pay and awarded him attorneys’ fees and costs. This appeal followed.

The Appellate Division held that when a law enforcement agency adopts rules pursuant to N.J.S.A. 40A:14-181 to implement the attorney general’s guidelines, it has an obligation to comply with those rules. Since the department failed to do so and deficiencies tainted the entire disciplinary process, the city’s decision to remove Plaintiff cannot stand. The Court further noted that Cocuzza’s failure to comply with the city’s rules does not rise to the level of denying Plaintiff’s constitutional rights to due process, but the failure warrants affirmance of the trial court’s order reinstating Plaintiff.

The rules at issue were adopted pursuant to 40A:14-181, which requires every law enforcement agency in this state to adopt guidelines that are consistent with those promulgated by the attorney general. The guidelines require every law enforcement agency to establish an internal affairs unit to receive, investigate and resolve complaints of officer misconduct. They also detail the procedures to be followed in investigating such complaints, including that serious complaints must be investigated by an internal affairs investigator, who must conduct a thorough and objective investigation and submit an objective report.

In this case, the City Council adopted rules governing the operations of the city’s police department in accordance with the guidelines. When Cocuzza undertook the investigation himself, he failed to adhere to the city’s rules. Moreover, the city’s rules require that the investigation be undertaken in a fair and objective manner. Since the principle allegation was that Plaintiff acted in defiance of Cocuzza’s directives and Cocuzza was the focus of one of the background checks, he could not be expected to perform the kind of objective investigation required by the attorney general’s guidelines and the city’s rules. In addition, Cocuzza wrote a report that was not objective. It contained his “opinions, conclusions and personality” in violation of the rules. 

Based upon this, the Court indicated that the deficiencies in the investigative process were not trivial and not cured by the evidentiary hearing provided by the City Council. Cocuzza’s lack of objectivity in the investigation undermined the fairness of the entire proceeding and required reversal of the decision to remove him.
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Internal Affairs Records and Reports May Be Released Subject to Redaction

Posted on September 22, 2008 by Frank Crivelli

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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