A1121

An Act concerning the rights, privileges and protections afforded certain State law enforcement officers and supplementing Title 52 of the Revised Statutes.

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

1. This shall be known and may be cited as the "State Law Enforcement Officers' Bill of Rights."

2. As used in this act:

"Disciplinary action" means any adverse personnel action, including suspension, reduction in pay, rank or other employment benefit, dismissal, transfer, reassignment, unreasonable denial of secondary employment or similar punitive action taken against a State law enforcement officer.

"Disciplinary hearing" means an administrative hearing initiated by the department against a State law enforcement officer, based on an alleged violation of law or department, commission or agency rule or regulation, that, if proven, would subject the State law enforcement officer to disciplinary action.

"Investigation" means an action taken by the employing department, commission or agency or any other State agency or official to determine whether a State law enforcement officer violated any law or department, commission or agency rule or regulation and includes: (1) questioning any other State law enforcement officer or person; (2) conducting observations; (3) reviewing and evaluating reports, records or other documents; and (4) examining physical evidence.

"Personnel record" means any document, whether in written or electronic form, that has been, or may be, used in determining the qualification of a State law enforcement officer for employment, promotion, transfer, additional compensation, termination or any other disciplinary action.

“State law enforcement officer” means any law enforcement officer in the employ of the State of New Jersey holding a civil service title of any rank in the classified career service, including all State correction officers.

3. a. Except as otherwise provided by law, no State law enforcement officer holding a permanent appointment shall be removed from office, employment or position for political reasons, collective bargaining activities or for any cause other than incapacity, misconduct or disobedience of rules and regulations established for the governance of the department, commission or agency employing that officer, nor shall any such officer be suspended, removed, fined or reduced in rank from or in office, employment or position, except for just cause and then only upon a written complaint setting forth the charge or charges against the officer.

b. Whenever a State law enforcement officer is subject to an immediate suspension, be that suspension with or without pay, the department shall, by verifiable means, notify the officer’s employee representative within 24 hours.

c. Whenever a State law enforcement officer receives notice of a disciplinary charge or pending disciplinary action, a copy of the notice, along with any related documents that may have been given to the officer, shall be delivered to that officer’s employee representative within 72 hours of the time that the notice was given to that officer.

4. A State law enforcement officer subject to an investigation or disciplinary hearing based on a complaint filed by a private citizen or an inmate shall be afforded the following rights, privileges and protections:

a. The complaint shall be in writing and shall be filed in a manner, form and place prescribed by the department, commission or agency employing the officer.

b. An investigation based on a complaint filed by a private citizen or an inmate shall commence not later than 15 days after the receipt of the complaint by the department, commission or agency.

c. The officer who is the subject of the complaint shall be notified 24 hours prior to the commencement of questioning or otherwise being required to provide information relating to the complaint or investigation of that complaint.

d. The notice shall set forth:

(1) the nature and scope of the investigation;

(2) a description of the allegation set forth in the complaint;

(3) a description of each violation of law or departmental, commission or agency rule or regulation alleged in the complaint for which suspicion exists that the officer may have engaged in conduct that may subject the officer to disciplinary action; and

(4) the name, rank and position, unit or division of the officer or departmental, commission or agency official who will be conducting the investigation.

e. A complaint filed by a private citizen or an inmate may be dismissed without full investigation if:

(1) the department, commission or agency determines that the complaint does not constitute a violation of law or departmental, commission or agency rule or regulation; or

(2) the complainant failed to comply substantially with the complaint procedure prescribed by the department, commission or agency employing the officer.

f. Each complainant shall be entitled to a written notice setting forth the final disposition of the complaint and the reasons for that disposition.

5. A State law enforcement officer subject to an investigation or disciplinary hearing based on a complaint brought by the department, commission or agency employing the officer shall be afforded the following rights, privileges and protections:

a. The complaint shall be in writing and shall be filed in a manner, form and place prescribed by the department, commission or agency employing the officer.

b. A copy of the complaint shall be served upon the officer so charged along with notice of a disciplinary hearing which shall be held not less than 10 or more than 30 days from the date the complaint was served on the officer.

A complaint charging a violation of departmental rule or regulation shall be filed no later than 45 days after the date on which the person filing the complaint reasonably became aware of the disciplinary infraction. The 45-day time limit shall not apply if an investigation of a law enforcement officer for a violation of the internal rules or regulations of the department is included directly or indirectly within a concurrent investigation of that officer for a violation of the criminal laws of this State. The 45-day limit shall begin on the day after the disposition of the criminal investigation.

A failure to serve or file a complaint within the time limitations set forth in this subsection shall require a dismissal of the complaint.

d. The notice shall set forth:

(1) the nature and scope of the investigation;

(2) a description of the allegation set forth in the complaint;

(4) the name, rank and position, unit or division of the officer or departmental, commission or agency official who will be conducting the hearing.

e. The subject officer shall be interviewed or interrogated by a single officer and at the time that interview or interrogation begins the subject officer shall be informed of the name, rank and command of the investigators conducting the investigation. This information shall be recorded on a form which the subject officer shall sign in front of two witnesses, who also shall sign the form. The signed form shall be made a part of the investigative file.

6. A State law enforcement officer who is subject to questioning incidental to an investigation that might result in disciplinary action shall be afforded the following procedural protections:

a. The officer shall be entitled to counsel by an attorney, or representation by any other person whom the officer chooses, such as an employee representative, or both, immediately before and during the entire period of any questioning, unless the officer consents in writing to being questioned without the presence of counsel or an employee representative.

b. During the course of any questioning session, the officer shall be afforded the opportunity to consult privately with counsel, an employee representative, or both, if such consultation does not repeatedly and unnecessarily disrupt the questioning period.

c. If the counsel or representative of the officer is not available within 24 hours of the time set for the commencement of any questioning, the officer shall be afforded a reasonable extension of time, not to exceed 72 hours, to obtain counsel or representation.

d. The questioning of an officer under investigation shall be conducted at a reasonable time when the officer is on duty, unless exigent circumstances compel more immediate questioning, or the officer agrees in writing to being questioned at a different time.

e. Unless the officer consents in writing to being questioned elsewhere, the questioning of an officer under investigation shall be conducted at the office of the officer or department, commission or agency official conducting the investigation or at the place where the officer under investigation reports for duty.

f. The questioning of an officer under investigation shall be for a reasonable period of time and shall allow for reasonable periods of rest and personal necessities for the officer and the counsel or representative, if present.

g. No threat against, false or misleading statement to, harassment of, or promise of reward to an officer under investigation shall be made to induce the officer to answer any question, give any statement or otherwise provide information; provided, however, an officer under investigation may be advised that he may be subject to disciplinary action, including termination, if he has received a written grant of immunity and affirmation that the statement given by the officer under immunity shall not be used in any subsequent criminal proceeding against that officer.

h. All questioning of an officer under investigation shall be recorded in full, either electronically or stenographically, and a copy of the transcript shall be provided to the officer under investigation before any subsequent period of questioning or the filing of any charge against that officer. An officer under investigation may independently record all questioning. If the department, commission or agency or the officer conducting the questioning so requests, the officer under investigation shall provide a copy of that recording to the requesting party.

i. No officer under investigation shall be compelled to take or submit to a lie detector test as part of that investigation.

j. All evidence gathered as part of an investigation shall be subject to a chain of custody sufficient to establish it has not been substituted, tampered with, replaced or altered. Evidence where a chain of custody sufficient to establish it has not been substituted, tampered with, replaced or altered shall not be used against any officer, nor shall any record of, or reference to, that evidence be made part of the officer's personnel file.

7. a. If at any time during an interview or interrogation conducted as part of an administrative investigation, the officer subject to that investigation refuses to respond to a question, citing the protections afforded under the Fifth Amendment to the United States Constitution, the interview or interrogation shall be discontinued and the investigator shall forthwith notify the Attorney General or the county prosecutor, as appropriate.

b. If the Attorney General or county prosecutor, as the case may be, grants immunity, the investigator shall so advise the subject officer in writing. The investigator, orally and in writing, shall also advise the subject officer that the immunity applies solely to any criminal offense, not any departmental or administrative hearings or actions and, further, that a failure on the part of the subject officer to fully cooperate in the affected administrative investigation, interview or interrogation may result in disciplinary charges, including termination for cause.

The advisory information required in writing under this subsection shall be recorded on a form which the subject officer shall sign in front of two witnesses, who also shall sign the form. The signed form shall be made a part of the investigative file and thereupon the administrative investigation, interview or interrogation shall continue.

8. a. An investigator may provide for an audio, video or stenographic recording, or any combination thereof, of any administrative interview or interrogation. A copy of any such recordings shall be made available to the subject officer at no cost.

b. Nothing herein shall be construed to prohibit a subject officer from providing for an audio, video or stenographic recording, or any combination thereof, of any administrative interview or interrogation. A copy of any such recordings shall be made available to the department, or the State, as the case may be, at cost.

9. Whenever a State law enforcement officer is called as a witness in any administrative investigation, the investigator, prior to any interview or interrogation of the officer, shall inform that officer, orally and in writing, of the role, responsibility and protections afforded a witness in an administrative investigation, particularly that a witness is not the subject of an administrative hearing or any disciplinary action arising therefrom.

In addition, prior to any interview or interrogation of the officer, the investigator shall inform that officer, orally and in writing, that if as a result of the interview or interrogation the officer should become the subject of an administrative investigation that officer shall be immediately notified and advised of all rights, privileges and protections under this act or any other law.

10. a. Any communication between a State law enforcement officer and an employee representative shall be deemed privileged and the employee representative shall not be required or compelled to disclose that communication in any action or proceeding against the officer, or in any action or proceeding to review a determination made in any action or proceeding against the officer.

b. The privilege afforded under this section may be disclosed if:

(1) authorized by the officer who made the communication;

(2) the officer reveals an intention to commit a crime or violent act, or where the officer may have committed a crime outside his duties and employment as a law enforcement officer; or

(3) the officer waives the privilege when bringing an action against an employee representative or employee organization and that action involves a privileged communication between the officer and the employee representative.

c. The privilege afforded under this section may be claimed by the officer or the spouse, guardian, conservator or executor of the officer if that officer is deceased or permanently incapacitated.

11. Not later than 30 days after the conclusion of an investigation conducted pursuant to this act, the person in charge of the investigation, or his designee, shall notify the officer who was the subject of the investigation, in writing, of the investigative findings and recommendations for disciplinary action. A failure to notify the officer in accordance with the time limitations set forth in this section shall require a dismissal, with prejudice, of the complaint.

12. Not later than 15 days following the receipt of a notice required under the provisions of section 11 of P.L. , c. (C. ) (pending before the Legislature as this bill), and before the filing of any charge seeking the discipline of the officer who was the subject of the investigation or the commencement of any disciplinary proceeding, the officer who was the subject of the investigation may submit a written response to the findings and recommendations set forth in the notice.

The response so submitted may include reference to additional documents, physical objects, witnesses or any other information that the officer believes may constitute exculpatory evidence.

13. a. An officer shall be entitled to a disciplinary hearing prior to the imposition of any disciplinary action. The subject officer may request that the hearing be held before an impartial arbitrator. Any such request shall be made within 10 days of the receipt of the notice required under the provisions of section 11 of P.L. , c. (C. ) (pending before the Legislature as this bill).

The disciplinary hearing shall commence within 30 days of the receipt of the notice required under the provisions of section 7 of P.L. , c. (C. ) (pending before the Legislature as this bill). A failure to commence a disciplinary hearing in accordance with the time limitations set forth in this section shall require a dismissal of the complaint and the officer shall be returned to duty without prejudice.

b. Notwithstanding the provisions of subsection a. of this section, an officer may be suspended immediately, prior to a hearing, when it is determined:

(1) The officer is unfit for duty or is a hazard to any person if permitted to remain on the job, or that an immediate suspension is necessary to maintain the safety, health, order or effective direction of the department, its officers, employees, facilities or the inmates in its custody and care; or

(2) The officer is formally charged with a crime of the first, second or third degree, or a crime of the fourth degree directly associated with the performance of his official duties.

An officer suspended pursuant to paragraph (2) of this subsection shall be suspended without pay until the case against the officer is disposed of at trial, the complaint is dismissed or the prosecution is terminated.

c. If a suspended officer is found not guilty at trial, the charges are dismissed or the prosecution is terminated, that officer shall be reinstated to his position and shall be entitled to recover any pay withheld during the period of suspension, subject to any disciplinary proceedings or administrative action. All such withheld pay shall be paid to the officer within 30 days of the date on which the officer was found not guilty at trial, the charges were dismissed or the prosecution terminated. An officer who does not receive all such withheld pay within that 30-day period may seek relief in Superior Court.

14. The date, time and location of a disciplinary hearing shall be established by the department, commission or agency employing the officer, in consultation with the officer charged or his counsel or representative.

15. Unless waived in writing by the officer charged, or his counsel or representative, the officer shall, at least 15 days prior to the commencement of the disciplinary hearing, be provided with:

a. A complete copy of the investigation leading to the disciplinary hearing, and any related documents, reports, records or statements;

b. The names and addresses of each witness scheduled to testify at the disciplinary hearing; and

c. An inventory of all physical evidence.

No less than 10 days before the disciplinary hearing, the department shall establish a reasonable date, time, place and manner for the officer, or his counsel or representative, to examine all the physical evidence.

16. An officer subject to a disciplinary hearing shall be entitled to due process, including, but not limited to:

a. The right to be represented by counsel or a representative;

b. The right to confront and examine witnesses against the officer; and

c. The right to call and examine witnesses on behalf of the officer.

17. The hearing officer or impartial arbitrator, as the case may be, may provide for an audio, video or stenographic recording, or any combination thereof, of the hearing. A copy of any such recording shall be made available to the subject officer at no cost.

Nothing herein shall be construed to prohibit a subject officer from providing for an audio, video or stenographic recording, or any combination thereof, of any hearing. A copy of any such recording shall be made available to the officer’s employing department, commission or agency, or the State, as the case may be, at cost.

18. The disciplinary hearing officer or impartial arbitrator, as the case may be, shall have the power to subpoena witnesses and documentary evidence on behalf of either the department or the officer who is the subject of the hearing. The Superior Court shall have jurisdiction to enforce any such subpoena.

19. A disciplinary hearing shall be closed to the public unless the officer who is the subject of the hearing requests, in writing, that the hearing be open to specified individuals or the general public.

20. The disciplinary hearing officer or impartial arbitrator, as the case may be, shall administer an oath or affirmation to each witness, whose testimony shall be governed by N.J.S.2C:28-2.

21. a. At the conclusion of the hearing, the disciplinary hearing officer or impartial arbitrator, as the case may be, shall render a written final decision on each charge within 20 days.

b. If the disciplinary hearing officer finds that the officer who is the subject of the hearing is guilty of any alleged violation, appropriate disciplinary action shall be taken against the officer.

c. If the disciplinary hearing officer finds that the officer who is the subject of the hearing is not guilty of any alleged violation:

(1) The matter shall be deemed concluded and the allegations dismissed;

(2) No disciplinary act shall be taken against the officer;

(3) No record of, nor any reference to, the charge for which the officer was found not guilty shall be made part of the officer's personnel file;

(4) The officer shall be reinstated to his position; and

(5) Any pay or benefits lost or deferred during the disposition of the charge shall be restored to the officer as though no charge had ever been filed against that officer, including pay, vacation, holidays, longevity pay, seniority, and any other emolument or benefit to which that officer was entitled under law or collective agreement. All such lost or deferred pay shall be paid to the officer within 30 days of the date on which the officer was found not guilty of any alleged violation by the disciplinary hearing officer. An officer who does not receive all such lost or deferred pay within that 30-day period may seek relief in Superior Court.

22. An officer who is aggrieved by any finding or determination by a disciplinary hearing officer may appeal that finding or determination to the Commissioner of Personnel or the Merit System Board, as appropriate. The appeal, which shall be filed within 20 days after the aggrieved officer received notice of the disciplinary hearing officer's finding or determination, shall be in writing, signed by the appellant or his representative, set forth the reason for the appeal and the specific relief requested.

All appeals shall be filed in the manner and form prescribed by the officer’s employing department, commission or agency, law, rule or regulation.

23. An officer who is notified, pursuant to section 4 or 5 of P.L. , c. (C. ) (pending before the Legislature as this bill) that he is under investigation or is the subject of a charge may waive in writing any right or procedure accorded under this act.

24. A State law enforcement officer shall be granted time off with pay to attend any administrative or disciplinary proceeding or any proceeding before the Office of Administrative Law, the Merit System Board or the Public Employment Relations Commission where that officer has been named a party or is called as an essential witness. The time off granted shall include a reasonable allowance for travel.

a. A State law enforcement officer shall have the right to receive, review and rejoin any material which adversely reflects upon the officer or his employment. No such material shall be incorporated into the officer’s personnel file, official work history or any other such compilation of employment or personnel information unless the subject officer has been afforded the opportunity to review and rejoin the material. An officer refusing to receive, review and, if so inclined, rejoin such material shall not prohibit the incorporation of that material into the officer’s personnel file, official work history or any other such compilation of employment or personnel information.

b. Notwithstanding the provisions of subsection a. of this section, material which adversely reflects upon an officer or his employment may be incorporated in that officer’s personnel file, official work history or any other such compilation of employment or personnel information if the officer refuses to receive that information for review. The serving authority shall notify the officer’s employee representative of any such refusal in writing within three days. Four days thereafter, the material may be incorporated in the officer’s file, work history or other such compilation.

25. Nothing herein shall be deemed to preempt or supersede any provision in a mutually agreed-upon collective agreement that provides for substantially similar or greater rights, privileges and protections than those afforded State law enforcement officers in this act.

26. This act shall take effect on the first day of the fifth month following enactment; except that the affected departments, commissions and agencies may take anticipatory administrative action in advance as shall be necessary for the implementation of this act.

STATEMENT

This bill, to be known as the "State Law Enforcement Officers' Bill of Rights," establishes specific rights, privileges and protections for State law enforcement officers, including State correction officers who are subject to charges which, after investigation, might lead to disciplinary hearings and actions.

The bill sets time frames for the commencement of investigations of complaints. If the complaint is initiated by a private citizen or inmate, the investigation must begin within 15 days of the date the complaint is received. If the complaint is brought by the department, commission or agency employing the officer, a disciplinary hearing must be scheduled no less than 10 days, or more than 30 days, from the date the complaint was served on the officer. Violations of departmental, commission or agency rules or regulations must be filed no more than 45 days after the day on which the person filing the charge reasonably becomes aware of the violation. A complaint must be dismissed if it is not filed within these time frames.

Among the procedural rights and protections State law enforcement officers are afforded under this bill are: (1) notice of the nature and scope of the investigation or charges; (2) 24-hour advance notice before an officer subject to investigation may be questioned; (3) right to counsel, or an employee representative, during questioning; (4) records of all questioning periods; and (5) assurance that no officer is required to submit to a lie detector test as part of any investigation.

Charges must be filed within 30 days of the conclusion of any investigation. A failure to comply with this requirement will result in the dismissal of all charges.

No disciplinary action may be taken against an officer until that officer has been afforded a hearing. Notwithstanding that requirement, an officer who is charged with a crime, and who is found to be unfit for duty or is a danger to any person if permitted to remain on the job, may be suspended without a hearing. An officer may also be suspended without a hearing if he is formally charged with a crime or if immediate suspension is needed to maintain the safety, health or order of the department, commission or agency employing the officer. An officer who is formally charged with a crime is to be suspended without pay. If, however, he is found not guilty, the charges are dismissed or the prosecution is terminated, that officer is to receive all back pay within 30 days of that disposition.

If the disciplinary hearing officer finds or determines that a charged officer is not guilty: (1) the matter is deemed concluded and all charges are dismissed; (2) no disciplinary action may be taken against the officer; (3) no record of, or reference to, the charge for which the officer was found not guilty shall be made part of the officer's personnel file; (4) the officer is to be reinstated to his position; and (5) the officer is entitled to any pay or benefits lost or deferred during the disposition of the charge. The officer is also entitled to any longevity pay, seniority or any other emolument or benefit to which he was entitled under law or collective agreement. All lost or deferred pay is to be paid to the officer within 30 days.

Any officer who is aggrieved by a determination or finding of a disciplinary hearing officer has the right to appeal to the Commissioner of Personnel or the Merit System Board, as is appropriate.

The provisions of this bill do not apply to State Police officers and troopers.