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NJ Attorney General Issues Directive That Dashcam and Bodycam Footage of Deadly Force Should be Subject to Public Release

Posted in Uncategorized

As reported in the New Jersey Law Journal, New Jersey Attorney General, Gurbir Grewal made an announcement that police dashcam and body cam videos documenting use of deadly force should be subject to public release once the corresponding initial investigation is complete.  According to the press release, the directive is being issued in the interests of “transparency in police community relations,” though it will not go into effect until it has undergone an analysis for compliance with attorney ethics rules.

The Attorney General’s press release states that AG Directive 2018-1 provides that in any case where a police officer uses force resulting in death or serious bodily injury – or where a firearm or other deadly force is used without injury – and video footage of the incident is captured by a body-worn camera or dashboard camera, the investigating law enforcement agencies will presumptively make the video available, upon formal request by a member of the public or media, once the initial investigation of the incident is substantially complete.

While determination as to when the initial investigation is substantially complete is left to the discretion of the County Prosecutor – or Director of the Division of Criminal Justice in cases investigated by the Attorney General’s Office – the initial investigation will typically be deemed substantially complete after principal, material eyewitnesses have been interviewed and the most relevant physical and documentary evidence has been gathered.  Generally this should occur within 20 days of the incident.

In cases where it takes more than 20 days to substantially complete the initial use-of-force investigation, the County Prosecutor or Director may decline to release the video footage, but must document the reasons that additional time is necessary and estimate when substantial completion will be achieved, submitting that information to the Attorney General or a designee within the Attorney General’s Office.

Before releasing a deadly-force recording, prosecutors are directed to consult with persons appearing in the video footage or their families in the case of decedents. Where release of the video would unduly compromise the safety or privacy of any person, including any law enforcement officers, the prosecutor may seek approval from the Attorney General’s Office to postpone or decline release of the video. In other cases, the released video footage may be digitally modified to obscure the identity of a person, where that person’s identity has not been disclosed, provided the editing does not conceal any actions by a person constituting a use of force.

In New Jersey, investigations of police-involved shootings and other deadly force incidents are directly overseen by the Attorney General, who acts as an independent prosecutor in such matters. Specifically, these investigations are governed by an Attorney General directive that establishes detailed procedures and safeguards to ensure independent and impartial investigations. With respect to body-worn cameras, the Attorney General’s Office has issued a statewide policy establishing guidelines for deploying such devices for those agencies that elect to deploy them. The Attorney General’s Office also has provided over $4.5 million to enable the New Jersey State Police and other police departments across New Jersey to equip their officers with body cameras.

 

 

 

 

Data Shows that NJ’s Most Violent Cities Have Lost The Most Police Officers Since 2010

Posted in Uncategorized

As reported by NJ.com, retaining police officers has been a challenge for many New Jersey municipal police departments.  Shortfalls in city and municipal budgets can, and have lead to layoffs and demotions. When Senior police officers retire their positions never get refilled and the data shows that this occurs more often than not in New Jersey cities with the most violent crime rates.  In addition, as a result of the two percent (2%) interest arbitration salary cap, the two percent (2%) property tax cap levy and the “social media” difficulties associated with policing, recruitment and retention has been extremely difficult.

Despite the foregoing, there are police departments that are actively taking steps to reverse attrition and bolster their ranks.  NJ Advance Media analyzed seven years worth of data turned in by municipal law enforcement agencies to the FBI and found the 20 police departments across the state that have lost the most employees — both civilians and officers — from 2010 to 2016.

In terms of percentage decreases, Medford and Pemberton having each lost over 40% of their officers from 2010 to 2016, have experienced the largest reduction in ranks according to the NJ.Com sampling. Yet, in terms of the sheer number of officer reductions, Newark, Paterson, Trenton, and East Orange lead the pack as they have all experienced a substantial reduction in their law enforcement workforce.

It is also worth noting that in performing a cross reference with NJ.com’s list of towns with the highest violent crime rates,  thirteen of the municipalities with the highest increases in crime were also included in the towns with the largest shrinking police forces.  Taking all of this together, one must scratch their head in trying to figure out the phenomenon that is occurring across the state of New Jersey where our largest most violent cities are now being policed with less officers. Additionally, the pay that our largest city’s officers receive is no where near the top officer salary reflected across the state.  While are cities are being asked to do more with less money so to are our law enforcement officers.  We will continue to review this data as it becomes available, especially in light of the changing social perceptions of police work and the changes in pay and benefits associated with the position of employment.

 

Appellate Division Addresses 45 Day Rule Argument

Posted in Public Employee Discipline

Recently, the Appellate Division issued an opinion in the case In the Matter of Sanchez that addressed the applicability of the 45 Day Rule in a removal case. In that case, a police officer, the appellant, appealed his termination for engaging in sexual acts with a civilian in his marked police car while on duty. During the course of an internal affairs investigation of another officer, the appellant admitted to having sex with an individual but denied having sex in his patrol car. In a later interview, however, the appellant admitted to having sex in his patrol car. Subsequently, he was charged with multiple violations of the Division’s regulations and rules as well as conduct unbecoming a public employee and misuse of public property.

The Civil Service Commission adopted the findings of fact and conclusions of law rendered by an Administrative Law Judge, wherein which the Judge dismissed some of the charges, upheld others, and upheld the appellant’s termination from employment. On appeal, the appellant argued the charges were time-barred under the auspices of the 45 Day Rule, N.J.S.A. 40A:14-147, and that a substantial suspension, rather than termination was warranted.

The Appellate Division affirmed the Civil Service Commission’s determination for substantially the same reasons stated by the Administrative Law Judge, thereby upholding the appellant’s removal from employment. To this end, the Court determined the Judge correctly found that the 45 Day period in N.J.S.A. 40A:14-147 did not begin to run until the day the appellant admitted he had sex with an individual in his patrol car. Additionally, the Court found that progressive and/or incremental discipline did not have to be applied in every disciplinary setting and the appellant’s conduct was sufficiently egregious to warrant removal.

The time period as to when the 45 Day Rule contained in N.J.S.A. 40A:14-147 or in a collective negotiations agreement applies is a fact sensitive determination. In simple terms, it is not always clear as to when the 45 Day Rule begins to “run” in a given case. Nevertheless, the 45 Day Rule is an important protection afforded to most law enforcement officers that ensures certain disciplinary charges are brought in a timely fashion. As such, should you ever be faced with disciplinary charges, it is imperative you consult with an experienced attorney familiar with the nuances of the 45 Day Rule and its potential applicability in a given situation.

Bail Reform Reduces Jail Population Across New Jersey by 20.3%

Posted in Uncategorized

As reported in the Press of Atlantic City, since its implementation on Jan. 1, 2017, Bail Reform has reduced the population of pretrial inmates in jails across the state by 20.3 percent from 7,173 to 5,718, according to court records.

Cumberland County Prosecutor Jennifer Webb-McRae said the reforms are the biggest change she has seen in her 24-year career in criminal justice.  “It’s changed the way we do business,” she said, adding the county hired two more assistant prosecutors to help accommodate the new workload.

However, critics of the reform, to include Newark Mayor, Ras Baraka,  also contend that the new law increases the possibility that a dangerous person could be set free and is a risk to public safety.  For instance, on Feb. 6, a Newark man who was released twice under the new law on domestic violence charges shot and killed his ex-girlfriend. The man, Kareem Dawson, 31, shot himself to death when police came to arrest him for the slaying.  In a statement, Baraka said the law needs to be fully examined so a similar situation does not occur again.  “We can’t go on losing lives like this,” Baraka said in a statement. “We need to look at the downgrading of charges by prosecutors, especially in cases of domestic violence, and to fix the serious flaws in bail reform.”

Under the new system, the decision to keep a defendant in jail is based in part on a new scanning system that brings up alleged offenders’ criminal histories and helps determine whether they are a risk to the community or a risk of fleeing before a court date.

In addition to the public safety risks, the law itself faces the possibility of collapse if more revenue is not brought in to sustain it.  The law relies on funding from court fees instead of the state budget.  As of the beginning of this year, the judiciary was spending more on the program than it was collecting in fees and is expected to hit the wall within a year.  Because there is a 48-hour deadline to make a decision on whether an offender must stay in jail or be freed until trial, many counties have had to hire more staff in sheriff’s departments, prosecutor’s offices and courts.  Courts now must be open on weekends and holidays to adhere to this deadline.  However, as one can imagine, as the jail population shrinks, Counties also believe that the number of corrections officers on staff should also shrink.

We will continue to monitor this controversial social justice program and the effects that it has on public safety and public safety officers throughout the State of New Jersey.

Appellate Division Again Considers Meaning of “Undesigned and Unexpected” in NJ Public Employee Accidental Disability Appeals

Posted in Disability Retirement

The Appellate Division once again the considered the “undesigned and unexpected” standard as it pertains to qualifying for accidental disability retirement benefits in the case of Mason v. Bd. of Trustees, Police and Firemen’s Retirement System. In the case, the appellant alleged she was injured while qualifying with a firearm for her work as a Correction Officer with the New Jersey Department of Corrections. To this end, she had qualified on the range each year for the prior 18 years without injury. While qualifying, the appellant felt a soreness in her shoulder, but continued with the qualification process to obtain her firearms certification.

After qualifying, the appellant reported her injury, filled out the requisite paperwork, and went to the emergency room for treatment. Unfortunately, she subsequently had several shoulder surgeries, did not return to work, and was terminated. Thereafter, the appellant filed an application for accidental disability retirement benefits. The Board of Trustees of the Police and Firemen’s Retirement System (“Board”) awarded the appellant ordinary disability retirement benefits, finding her to be totally and permanently disabled from the performance of her assigned duties. However, the Board determined that the incident was not “undesigned and unexpected” and, thus, the appellant did not qualify for accidental disability retirement benefits. To this end, the Board noted that the potential recoil from firing a shotgun was anticipated and expected based on the appellant having qualified with a shotgun in each of the 18 years prior to the incident.

Following an administrative hearing, an Administrative Law Judge determined that the incident did not qualify as an unexpected happening for an award of accidental disability retirement benefits. In turn, the Board adopted the Judge’s decision. The appellant appealed the determination to the Superior Court of New Jersey, Appellate Division.

On appeal, the Appellate Division affirmed the Board’s determination. Specifically, the Appellate Division held that it was not unusual or extraordinary circumstances as the appellant was required to qualify with a shotgun each year to maintain her position as a correction officer. Accordingly, the Appellate Division supported the Board’s determination that appellant’s total and permanent disability was not the result of an event that was “undesigned and unexpected.”

In recent years, New Jersey courts have addressed and analyzed the “undesigned and unexpected” standard in many opinions.  Typically, the determination as to whether an incident is “undesigned and unexpected” to qualify for accidental disability retirement benefits is a factually sensitive. In other words, it depends upon the specifics behind the incident in question.  As a result, courts have issued a myriad of inconsistent results as to when an incident qualifies as “undesigned and unexpected.” Consequently, if you are thinking about filing for accidental disability retirement benefits, it is imperative that that you consult with an experienced attorney who is familiar with the applicable law pertaining to accidental disability retirement benefits and, more specifically, pertaining to the “undesigned and unexpected” standard.

NJ Senate Bill S-1858 Proposes to Implement a Permanent 2% Salary Cap on Police and Fire Interest Arbitration Awards

Posted in Interest Arbitration, Public Employment Labor Law

On Friday, February 9th, 2018, New Jersey State Senator Declan O’Scanlon introduced legislation that would reinstate New Jersey’s interest arbitration salary cap that limits two-percent (2%) annual salary increases that can be awarded when disputed police and fire contracts enter the process of binding arbitration.

O’ Scanlon stated on his website that “One of the biggest mistakes made by the Legislature in recent memory was allowing the arbitration cap to expire at the end of 2017.  If we don’t act quickly to reinstate the arbitration cap we’ll quickly see arbitration awards that exceed the 2% tax cap and the beginning of the evisceration of that essential property tax control. As the noose tightens, we’ll see labor costs skyrocket over time and eat up local budgets at the exp

ense of other important programs and services. That would likely lead to the failure of New Jersey’s two-percent property tax cap. Let me be clear, any legislator who doesn’t back this bill is standing for higher property taxes. One cannot legitimately say he or she backs property tax caps without embracing this bill.”

O’Scanlon’s new legislation, S-1858, would implement the following changes to police and fire interest arbitration:

  • Making the interest arbitration cap permanent.
  • Maintaining that arbitrators have 90 days to render a decision.
  • Maintaining the 14-day deadline to file an appeal and 60-day period for a final PERC decision.
  • Keeping the compensation of arbitrators capped at $10,000.
  • Continuing to compound the two-percent cap each year over the length of the collective negotiations agreement.
  • Continuing to include the cost of increments previously negotiated, such as step movements and longevity payments, when determining base salaries.
  • Requiring contracts to be posted conspicuously on the municipal or county website at least 10 days prior to the execution of the contract.
  • Voiding final agreements not filed with PERC or that don’t contain a cost summary.
  • Abolishing “dynamic status quo” step increases after a collectively negotiated agreement has expired.

Despite what Senator O’Scanlon believes, reinstating the cap on interest arbitration awards would be a mistake.  Anyone who believes in the importance of collective labor negotiations and has an understanding of the dynamics that exist at the bargaining table realize that parties reach an accord based on good faith negotiations that take place because each understands the potential repercussions that exist if an impasse is reached.  This statement is true for collective negotiations in both the private and public sectors of our economy.  Furthermore, anyone who has a firm understanding of negotiations and interest arbitration in the public sector recognize the fact that the law, as it presently exists without a two percent salary cap, mandates that interest arbitrators take into consideration the effect their award will have on the two percent (2%) property tax cap levy and the interest and welfare of the taxpayers in general.

Over the last seven (7) years the result of the two percent (2%) salary cap on collective negotiations between public safety negotiations units and management was disastrous.  Because of the New Jersey Public Employment Relations Commission’s interpretation of the two percent salary cap, the bargaining table was no longer level but instead titled so far in favor of management that bargaining in good faith between the parties became non-existent.  Instead, management bargained with the “safety net” that they now had and no matter what the empirical evidence showed, they utilized the salary cap as a sword in achieving what one would believe to be draconian results.

What Senator O’Scanlon has failed to state in his press release is that now, as a result of the two percent (2%) salary cap, the cost of mandatorily legislated health care contributions and the various municipalities, counties and the State of New Jersey freezing increments upon the expiration of a contract; many law enforcement officers today are making less money than they were ten (10) years ago.  This empirical evidence can not be countenanced and when coupled with the cost of inflation, the effect of the cap has had a negative effect on our economy.

Take a look at the cold hard facts and figures and the undeniable truth that every tool one needs to limit police and fire salary increases is already in place in the existing law that governs interest arbitration.  The answer can no longer be legislative evisceration of collective bargaining and thus labor relations amongst management and employees.  Instead keep the playing field level and use the tools that are already at your disposal.

NY Court of Appeals to Review NJ Man’s Demand for Surveillance Records Held by The NYPD

Posted in Uncategorized

As reported in NorthJersey.com, a man from Paramus heads to New York State’s highest court, the Court of Appeals, today in a potentially precedent-setting case that’s being closely watched by open-government advocates and media companies.

Samir Hashmi sought records after reading news reports that the NYPD had secretly monitored Muslim houses of worship and businesses in New York and New Jersey, as well as student groups at 16 Northeast colleges, including Rutgers University, where Hashmi was a student.

Hashmi has alleged that he was illegally monitored by the NYPD for expressing his First Amendment rights on the State University’s campus.  He further stated that the purpose of the suit was to ensure that Muslims feel safe to express themselves on college campuses and everywhere else in this county.”

Other students who also believed that they were monitored requested records and were told that none existed. But the NYPD informed Hashmi that it could “neither confirm nor deny” the existence of such records — a response that a New York appellate Court ruled was justified.

Omar T. Mohammed, Hashmi’s lawyer, said the NYPD’s reply was the first time he knows of that a local agency attempted to use the so-called federal “Glomar Response” to deny a records request.

In Hashmi’s case the NYPD said it could not confirm the existence of records because doing so could reveal information about targets of counterterrorism surveillance.   The NYPD was the first state or local agency to use the Glomar response to deny a public-information request.   However more are following New York City’s lead. In 2013, Indiana authorized the Glomar response through a state statute and in 2016, a New Jersey state appeals court ruled that government agencies in New Jersey may deny access to public records by saying they can “neither confirm nor deny” their existence.

The decision of this case will go a long way in drawing the line in what law enforcement agencies believe are necessary actions to protect the citizens of our country while counter-balancing invading the privacy of others.  We wont be surprised if this is not the last we hear of this case or others like it as the Federal Courts will be sure to weigh in.

Lawmakers Relaunch Bill to Transfer Management of PFRS away from State

Posted in Uncategorized

As reported by northjersey.com, Lawmakers have relaunched an effort to spin off management of the pension fund for police and firefighters from New Jersey’s larger $78 billion pension system, a move that former Gov. Chris Christie blocked last year over concerns that it gave labor unions a “blank check” to enhance their benefits at taxpayers’ expense.

The bipartisan measure, which is supported by the four unions representing police officers and firefighters but opposed by representatives of municipal and county associations, was approved unanimously by the Senate state government committee on Thursday.

It requires several more approvals in both the Senate and Assembly before it can be sent to the governor’s desk for a final endorsement or veto. Unlike last year, when Christie, a Republican, conditionally vetoed the measure, Phil Murphy, a Democrat swept into office with the support of organized labor, now occupies the governor’s office.

A Murphy spokesman declined to comment on the legislation Thursday.

New Jersey currently manages the pension funds for several groups of employees together, pooling the assets and making investment decisions for all the funds through the State Investment Council, whose members are chosen by unions and the administration.

The new bill, S-5, however, would transfer management of the Police and Fire Retirement System, which has more than 88,000 participants and $27 billion in assets, from the state to a new 12-member board of trustees, which would hire its own executive director, actuary, chief investment officer and ombudsman.

The panel would be able to change contribution rates, adjust benefits and approve cost of living adjustments for retirees despite pension reforms Christie signed into law in 2011 restricting such changes. Seven of 12 trustees would be union representatives with the rest appointed by the governor to represent government employers.

Union officials say that they have been formulating the ideas in the legislation for years as they have grown frustrated with the performance of investments managed by the state and fees paid to outside fund managers.

Those officials also blame the state, which for years has failed to fund the pension system at a rate recommended by actuaries, for the slide of the Police and Fire Retirement System from over 100 percent funded in 2000 to about 65 percent as of last year.

“The reason that we are where we are today is not because of us and it’s not because of local government,” Eddie Donnelly, president of the New Jersey State Firefighters Mutual Benevolent Association, said Thursday. “It’s because of the reckless policies and enactments from state government, from the governor and the treasurer’s office.”

But representatives of both the New Jersey State League of Municipalities and the New Jersey Association of Counties testified against the bill Thursday over concerns that it transfers management of the pension fund to police and fire unions while leaving taxpayers on the hook for the associated risks.

John Donnadio, executive director of the association of counties, pointed out that local governments — and by extension taxpayers — will contribute nearly three times more money toward the Police and Fire Retirement System in 2018 than the members themselves. Because of that, he said, taxpayers will largely have to foot the bill should the board choose to enhance benefits or make other decisions that prove to be costly.

Donnadio and Michael Cerra, assistance executive director of the League of Municipalities, asked lawmakers to amend the bill to establish an equal balance between union and employer representation on the board and to add other provisions to make it harder for the board to enhance member benefits.

“If these amendments are not amenable to the committee or to the sponsor … then we would recommend that the plan be then changed to become a defined contribution plan,” similar to a 401(k), Donnadio added. “If the labor wants the management, then we believe that equity demands that they also assume the risk of loss with these plans.”

Christie expressed similar concerns when he conditionally vetoed a similar measure last year.

“I refuse to repeat the mistakes of prior governors and legislatures who enacted pension legislation without ensuring appropriate safeguards for taxpayers nor securing significant concessions from labor,” Christie wrote in a veto statement. “I refuse to hand PFRS a blank check, while handing the taxpayers the deposit slip.”

Patrick Colligan, president of the New Jersey State Policemen’s Benevolent Association, dismissed those concerns after Thursday’s hearing.

“It’s a ludicrous argument because it’s our pension system,” he said. “We’re here because we want to save the system.”

He also said that there is no labor-management pension board in the country that gives as many or more board seats to government representatives as it does to labor representatives.

The bill will next be considered by the Senate Budget and Appropriations Committee on Monday.

Police, Fire Trucks Escort Critically-Injured Firefighter Home After Rehab

Posted in Uncategorized

As reported by NJ.com, a Newark Firefighter injured while battling a blaze in December left a rehabilitation facility on Thursday while being heralded in a ceremony by fellow firefighters and friends. Paul Leber, 38, checked out of the Kessler Institute for Rehabilitation and returned home to continue his recovery, officials said. Firefighters, friends, and officials lined the walkway outside the building as Leber exited the building.

“We are thankful that (Paul) Leber has reached this significant milestone in his recovery,” Newark Director of Public Safety Anthony Ambrose said in a statement. “Over the past month, I’ve come to consider Paulie a friend. I’ve spoken to him almost every day since he was injured and I’m proud of him and for what he stands for.”

Leber became trapped inside a building on Park Avenue after responding to a two-alarm fire at Velez Tire and Auto on December 30th. Police said Leber was in the tire shop with other members of Engine 7 Rescue 1 when they were ordered out of the building as conditions worsened. Leber became disoriented as he was exiting and firefighters went back into the building to rescue him, authorities said.  He was subsequently taken to University Hospital, where he was listed in critical condition before being moved to Jacobi Medical Center in the Bronx for further treatment, authorities said. From there, Leber was transferred to Kessler, where he spent three weeks. He was given a ride home in an Engine 7 truck.

Leber suffered burns to his face and airway from the heat and smoke inhalation, according to Ambrose. Leber, a graduate of the Bergen County Fire Academy who was born in Passaic, joined the department after serving in the U.S. Navy aboard the USS Theodore Roosevelt, a Nimitz-class aircraft carrier.

This illustrates how dangerous the job as a public safety officer can be. We join Firefighter Leber’s family and friends in welcoming him home and wish him well in his continued recovery.

NJ Supreme Court Will Decide Whether OPRA Covers Police Dash Cam Videos

Posted in Public Employment Labor Law

As reported by the New Jersey Law Journal, the New Jersey Supreme Court will hear the Ocean County Prosecutor’s Office’s appeal in a case examining whether the public can access videos recorded by police dashboard cameras. In a 2-1 unpublished decision released in August, the Appellate Division said a police dashcam could be considered a public record, available for release. However, the Court left open the question of whether documents stemming from the recording could also be released.

The Appellate Division’s decision largely affirmed the underlying trial court, which ruled the footage does not fall within the list of exemptions in the Open Public Records Act (“OPRA”) that allows government officials to keep certain records from public view. The Appellate Division said the case should be remanded to determine whether the plaintiff seeking the dashcam recordings should be allowed access to reports written about the episode in question and whether the plaintiff was entitled to counsel fees.

Appellate Division Judges Ellen Koblitz and Thomas Sumners, Jr. said lower courts are still waiting for the Supreme Court to determine whether reports and documents related to specific dashcam videos are records that are required to be kept by law and, thus, subject to OPRA. However, Judge Susan Reisner, in a partial dissent, said such records should not be open to public view since there are no statutes or state government directives requiring them to be kept.

In the case, Ganzweig v. Township of Lakewood, Ganzweig sought footage taken from the dashcam of a Lakewood Police Officer who was charged with official misconduct following a traffic stop, from which he charged a driver and passenger with drug-related offenses that were later dropped. The trial judge agreed that the dashcam video should be made public. Judges Koblitz and Sumners largely agreed in their majority ruling.

The Supreme Court will have to determine whether dashcam videos and subsequent reports are documents that, under OPRA’s guidelines, are required to be kept “by law” since Lakewood, at the time, had issued only a directive that all traffic stops be recorded. This is an important question as it will undoubtedly affect police departments, and police officers, throughout the State of New Jersey. As such, please continue to check this blog periodically for updates regarding the progression of this case.

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