For those of you in the know, it comes as no shock that the Licensing of sworn law enforcement officers in the State of New Jersey began on January 1, 2024. Now that the licensing implementation date has passed, with the exception of a very few, the vast majority of Patrol Officers, Sheriff’s Officers, Correctional Police Officers and State Troopers have been issued either one (1), two (2) or three (3) year licenses. The length of the licenses issued were staggered to permit the licensing board and the parent commands to perform the necessary investigations and back ground checks of each officer when he or she comes up for renewal in either one (1), two (2) or three (3) years from now.

However now that “licensing” is amongst us, attorneys that represent sworn law enforcement officers and the law enforcement officers themselves must now look at how they dispose of disciplinary actions a bit differently. Attorneys and officers must not only be concerned about the final outcome of a disciplinary proceeding itself, but one must also be cognizant of how the licensing committee will view the final disciplinary actions once they are disposed of.

Based on the foregoing, I thought it would be a good idea to revisit New Jersey Attorney General’s Guideline 2022-14, and in particular, section 9.11.2 of this guideline and the potential impact that it may have on law enforcement licensing. But first—what is the import of an Attorney General’s Guideline? Putting it in simple terms, the Attorney General is the Chief Law Enforcement Officer in the State of New Jersey. Thus, when the Attorney General issues a guideline, it is an Order that must be followed by all law enforcement officers, agencies and executives. Therefore, s long as the order is constitutional and not contrary to any State or Federal Statute, it must be followed and thereafter becomes the “law of the land” in regard to how policing takes place in the Garden State.

Attorney General Guideline 2022-14 is entitled “Transparency in Internal Affairs Investigations” and in summary its purpose is to:

establishes that certain categories of [officer] discipline will always require disclosure [to the public]…. These categories…include, but are not limited to, instances of differential treatment and excessive force. These disclosures expand upon Directive 2020-5’s focus on the length of discipline imposed, as experience has shown that [the major disciplinary] metric does not always capture serious misconduct.

With the stated intent in mind, section 9.11.2 of the guideline mandates that:

Every agency shall submit to the County Prosecutor and the Attorney General, and publish on the agency’s public website, a brief synopsis of all complaints misconduct where an agency member:

(a) Was terminated;

(b) Was reduced in rank or grade;

(c) Was assessed a suspension of more than five days.

(d) Had a sustained finding of discrimination or bias against any person because of the individual’s actual or perceived race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, sex, gender identity or expression, disability, nationality, familial status, or any other protected characteristic under N.J.S.A. 10:5-1 et seq., regardless of the type or severity of discipline imposed;

(e) Had a sustained finding that the officer utilized excessive force in violation of departmental policy or the Attorney General’s Use of Force Policy, regardless of the type or severity of discipline imposed;

(f) Had a sustained finding that the officer was untruthful or has demonstrated a lack of candor, regardless of the type or severity of discipline imposed;

(g) Had a sustained finding that an officer has filed a false report or submitted a false certification in any criminal, administrative, employment, financial, or insurance matter in their professional or personal life, regardless of the type or severity of discipline imposed;

(h) Had a sustained finding that an officer intentionally conducted an improper search, seizure or arrest, regardless of the type or severity of discipline imposed;

(i) Had a sustained finding that an officer intentionally mishandled or destroyed evidence, regardless of the type or severity of discipline imposed;

(j) Had a sustained finding of domestic violence, as defined in N.J.S.A. 2C:2519, regardless of the type or severity of discipline imposed;

(k) Resigned, retired, transferred or separated from the agency, regardless of the reason, while any internal affairs investigation or complaint was pending, and the misconduct ultimately sustained falls within categories (d)through (j) above or would have resulted in an action under categories (a)through (c) had the member not separated from the agency;

(l) Was charged with any indictable crime under New Jersey or an equivalent offense under federal law or the law of another jurisdiction related to the complaint.

However, in my opinion, the most important changes that are derived from the Directive is how the Attorney General redefines what a “sustained finding” means for purposes of whether an offense must be “published” and thus disclosed discipline to the public. In the Directive, the AG states that a:

“Sustained finding” refers to any finding where a preponderance of the evidence shows an officer violated any law, regulation, directive, guideline policy or procedure issued by the Attorney General or County Prosecutor; agency protocol; standard operating procedure, rule or training, following the last supervisory review of the incident(s) during the internal affairs process where the deadline for appeal has passed or following a ruling by a hearing officer, arbitrator, Administrative Law Judge, Civil Service Commission, or the Superior Court where the deadline for any subsequent appeal has passed. Allegations that cannot be sustained, are not credible, or have resulted in the exoneration of an employee, including where the previous finding has either been vacated, or overturned on the merits in any subsequent action, generally are not considered to be sustained findings subject to the disclosure requirements of this Policy. On the other hand, if the officer negotiates a plea or there is an administrative or civil settlement with the employer whereby the charge is dismissed, the charge would still be considered sustained, if there was sufficient credible evidence to prove the allegation, and the officer does not challenge the finding and obtain a favorable ruling by a hearing officer, arbitrator, Administrative Law Judge, Civil Service Commission or the Superior Court. The reporting and public dissemination requirements of (a) through (j) above become applicable once an officer’s discipline is sustained, as defined above. The reporting and public dissemination requirements of (k) and (l) above become applicable at the close of the reporting period during which they occur.

So, if you have gotten this deep into this article, you are probably one of four (4) types of people. You are either:

1—an attorney who dabbles in the representation of law enforcement officers facing discipline;

2—an attorney who focuses on representing law enforcement officers in disciplinary actions;

3—a law enforcement officer or union representative that wants to ensure he or she understands his or her rights and/or the rights of their membership; or

4—a law enforcement officer that is currently facing discipline and wants to be sure that his or her license is not in jeopardy

No matter what category you fall in, you have to understand what this directive states and means in regard to how discipline will be handled and disclosed; and, how charges are disposed of in a plea agreement. You can bet your bottom dollar that as a result of this directive coupled with the licensing regulations; more disciplinary cases will be tried in the future than in the past because of the interplay and impact that it will have on licensing. Furthermore, disposing of minor disciplinary infractions will be more difficult because of this directive and the interplay with licensing. Was this the intended consequence of the directive, probably not. However, it is like many of the other scenarios that today’s law enforcement officers have to face in New Jersey. They are the unintended consequences of intentional political acts that make policing more difficult and regretfully, a less desirable profession.