A5755

An Act concerning the Corrections Ombudsperson and amending P.L.2005, c.155 and P.L.2019, c.288.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 28 of P.L.2005, c.155 (C.52:27EE-28) is amended to read as follows:

28. Corrections Ombudsperson; duties.

a. The Corrections Ombudsperson shall establish and implement procedures for eliciting, receiving, processing, responding, and resolving complaints from inmates, their families, other interested citizens, public officials, and government agencies concerning conditions in the correctional facilities noted in section 27 of P.L.2005, c.155 (C.52:27EE-27).

b. To implement the provisions of P.L.2019, c.288, the ombudsperson shall:

(1) establish priorities for use of the resources available to the ombudsperson;

(2) maintain a Statewide toll-free telephone number, a collect telephone number, a website, and a mailing address for the receipt of complaints and inquiries;

(3) provide information, as appropriate, to inmates, family members and representatives of inmates, department employees, and others regarding the rights of inmates;

(4) provide technical assistance to support inmate participation in self-advocacy;

(5) monitor compliance with applicable federal, State, county, and municipal laws, rules, regulations, and policies related to the health, safety, welfare, and rehabilitation of inmates;

(6) monitor and participate in legislative and policy developments affecting correctional facilities;

(7) establish a Statewide uniform reporting system to collect and analyze data related to complaints received by the ombudsperson regarding the department;

(8) establish procedures to receive, investigate, and resolve complaints;

(9) establish procedures to gather stakeholder input into the ombudsperson's activities and priorities, which shall include holding public meetings at least quarterly;

(10) by November 1st of each year, annually submit to the Governor's office and the Legislature, and make publicly available, a report that is both aggregated and disaggregated by each facility and includes, at a minimum, the following information:

(a) the budget and expenditures of the ombudsperson;

(b) the number of complaints received and resolved by the ombudsperson;

(c) a description of significant systemic or individual investigations or outcomes achieved by the ombudsperson in the preceding year;

(d) any outstanding or unresolved concerns or recommendations of the ombudsperson; and

(e) input and comments from stakeholders regarding the ombudsperson's activities during the preceding year.

(11) promote awareness among department employees, inmates, and family members and other members of the public regarding:

(a) how the Office of Corrections Ombudsperson may be contacted;

(b) the purpose of the office; and

(l2) provide assistance to an inmate or family member whom the ombudsperson determines is in need of assistance, including advocating with an agency, provider, or other person in the best interests of the inmate;

(13) make appropriate referrals under any of the powers and duties of the office, including to appropriate law enforcement authorities when criminal complaints by inmates are received by the office;

(14) attend any relevant training provided to correctional officers and participate in other appropriate professional training;

(15) notwithstanding any other provision of law to the contrary, review criminal investigations to ensure the investigations were accurate, unbiased, and thorough [without investigating alleged criminal behavior]; and

(16) adopt and comply with rules, policies, and procedures necessary to implement the provisions of P.L.2019, c.288.

(cf: P.L.2019, c.288, s.7)

2. Section 8 of P.L.2019, c.288 (C.52:27EE-28.1) is amended to read as follows:

8. The corrections ombudsperson shall conduct investigations of inmate complaints in accordance with the provisions of this section.

a. The ombudsperson may initiate and attempt to resolve an investigation upon the ombudperson's own initiative, or upon receipt of a complaint from an inmate, a family member, a representative of an inmate, a department employee, or any other person, including but not limited to any of the following that may adversely affect the health, safety, welfare, or rights of inmates:

(1) abuse or neglect;

(2) department decisions or administrative actions;

(3) inactions or omissions;

(4) policies, rules, or procedures; [or]

(5) alleged violations of law by the department that may adversely affect the health, safety, welfare, or rights of inmates; or

(6) whether a criminal investigation was accurate, unbiased, and thorough.

b. If the ombudsperson does not investigate a complaint, the ombudsperson shall notify the complainant of the decision not to investigate and the reasons for the decision.

c. The ombudsperson shall not investigate any complaints relating to an inmate's underlying criminal conviction.

d. The ombudsperson shall not investigate a complaint from a department employee that relates to the employee's employment relationship with the department or the administration of the department, unless the complaint is related to the health, safety, welfare, and rehabilitation of inmates.

e. The ombudsperson shall attempt to resolve any complaint at the lowest possible level.

f. The ombudsperson may refer complainants and others to appropriate resources, agencies, or departments.

g. The ombudsperson shall not impose any fee for the submission or investigation of complaints.

h. The ombudsperson shall remain neutral and impartial and shall not act as an advocate for the complainant or for the department.

i. At the conclusion of an investigation of a complaint, the ombudsperson shall render a public decision on the merits of each complaint, except that the documents supporting the decision are subject to relevant confidentiality provisions. The ombudsperson shall communicate the decision to the inmate, if appropriate, and to the department. The ombudsperson shall state its recommendations and reasoning if, in the ombudsperson's opinion, the department or any employee should:

(1) further consider the matter;

(2) modify or cancel any action;

(3) alter a rule, practice, or ruling;

(4) explain in detail the administrative action in question; or

(5) rectify an omission.

j. At the ombudsperson's request, the department shall, within the time specified, inform the ombudsperson about any action taken on the recommendations or the reasons for not complying with the recommendations.

k. If the ombudsperson concludes, based on the investigation, that there has been, or continues to be, a significant issue regarding an inmate's health, safety, welfare, or rehabilitation, the ombudsperson shall report the finding to the Governor and the Legislature.

l. Before announcing a conclusion or recommendation that expressly, or by implication, criticizes a person or the department, the ombudsperson shall consult with that person or the department. The ombudsperson may request to be notified by the department, within a specified time, of any action taken on any recommendation presented. The ombudsperson shall notify the inmate, if appropriate, of the actions taken by the department in response to the ombudsperson's recommendations.

m. The ombudsperson shall make available to inmates confidential means by which to report concerns or otherwise submit complaints to the ombudsperson, which may include electronic means or a locked box, accessible only by the ombudsperson and the employees of the ombudsperson. All measures shall be taken to ensure there is no risk or credible fear of retaliation against inmates for submitting complaints to the ombudsperson.

n. Submission of complaints to the ombudsperson shall not be part of the department administrative grievance or appeal process, and the ombudsperson's decisions shall not constitute agency action. Nothing in this section shall be deemed to constitute part of the administrative exhaustion process. The ombudsperson shall not require inmates to file grievances or other inquiries as part of the department's system to be considered ripe for review by the ombudsperson.

o. Regarding the inspection, examination, or assessment of a criminal investigation by the ombudsperson, the ombudsperson shall provide information to the inmate who submitted the complaint regarding the status of the inspection, examination, or assessment and the estimated timeframe for completing the inspection, examination, or assessment.

(cf: P.L.2019, c.288, s.8)

3. Section 9 of P.L.2019, c.288 (C.52:27EE-28.2) is amended to read as follows:

9. The corrections ombudsperson shall conduct inspections of State correctional facilities in accordance with the provisions of this section.

a. The ombudsperson shall conduct regular inspections of all department facilities and issue public reports of all inspections.

b. Except for ongoing criminal investigations, [Prison Rape Elimination Act (PREA) investigations, or other information, records, or investigations deemed confidential by the Special Investigations Division of the department, and with the exception of Special Investigations Division evidence rooms,] the ombudsperson may inspect, examine, or assess all aspects of a facility's operations and conditions including, but not limited to:

(1) staff recruitment, training, supervision, and discipline;

(2) inmate deaths or serious injuries;

(3) incidences of physical and sexual assault;

(4) medical and mental-health care;

(5) use of force;

(6) inmate violence;

(7) conditions of confinement;

(8) inmate disciplinary processes;

(9) inmate grievance processes;

(10) substance-abuse treatment;

(11) educational, vocational, and other programming;

(12) family visitation and communication practices; [and]

(13) rehabilitation, reentry, and integration practices; and

(14) criminal investigations.

c. Except as provided in subsection b. of this section, the ombudsperson shall utilize a range of methods to gather and substantiate facts, including observations, interviews with inmates, inmate surveys, document and record reviews, reports, statistics, and performance-based outcome measures.

d. Facility and other governmental officials are authorized and shall be required to cooperate fully and promptly with inspections.

e. Except as provided in subsection b. of this section, the ombudsperson shall be vested with the authority to conduct both scheduled and unannounced inspections of any part or all of the facility at any time. The ombudsperson shall adopt procedures to ensure that unannounced inspections are conducted in a reasonable manner.

f. Facility administrators shall be provided an opportunity to review reports and provide feedback about them to the ombudsperson before their dissemination to the public, but the release of the reports is not subject to approval from any entity or person outside the office.

g. Reports shall apply legal requirements, best correctional practices, and other criteria to objectively and accurately review and assess a facility's policies, procedures, programs, and practices; identify systemic problems and the reasons for them; and proffer possible solutions to those problems.

h. Subject to reasonable privacy and security requirements, or as may be necessary to protect the safety or privacy of persons or the safe, secure, and orderly operation of State correctional facilities, as determined by the department or the Special Investigations Division, the ombudsperson's reports shall be public, accessible through the Internet, and distributed to the media, Legislature, Attorney General, and Governor.

i. Facility administrators shall publicly respond to monitoring reports; develop and implement in a timely fashion action plans to rectify problems identified in those reports; and to semi-annually inform the public of their progress in implementing these action plans.

j. The ombudsperson shall continue to assess and report on previously identified problems and the progress made in resolving them until the problems are resolved.

k. Except as provided in subsection b. of this section, in order to determine whether a criminal investigation conducted by the department or the Special Investigations Division was accurate, unbiased, and thorough, the ombudsperson shall inspect, examine, and analyze all aspects of the criminal investigation including, but not limited to:

(1) the manner in which the investigation was conducted and whether the investigation adhered to best practices and appropriate standards;

(2) evidence contained in the investigatory file; and

(3) any other information contained in the investigatory file deemed appropriate by the ombudsperson.

(cf: P.L.2019, c.288, s.9)

4. This act shall take effect on the first day of the seventh month next following enactment.

STATEMENT

This bill requires the Corrections Ombudsperson to review criminal investigations under certain circumstances to ensure the investigation was accurate, unbiased, and thorough.

Under the bill, in order to determine whether a criminal investigation conducted by the Department of Corrections or the Special Investigations Division was accurate, unbiased, and thorough, the ombudsperson is required to inspect, examine, and analyze all aspects of the criminal investigation including, but not limited to:

· the manner in which the investigation was conducted and whether the investigation adhered to best practices and appropriate standards;

· evidence contained in the investigatory file; and

· any other information contained in the investigatory file deemed appropriate by the ombudsperson.

The bill provides an exception for ongoing investigations.

Under current law, the ombudsperson is prohibited from inspecting, examining, or assessing Prison Rape Elimination Act investigations; other information, records, or investigations deemed confidential by the Special Investigations Division of the department; and the Special Investigations evidence room. This bill eliminates these prohibitions.

Finally, under the bill, the ombudsperson is required to provide information to the inmate who submitted the complaint regarding the status of the inspection, examination, or assessment of the criminal investigation and an estimate for when the inspection, examination, or assessment will be complete.