AG adopts‘ Early Warning Policy’
In the April issue of NJ Cops Magazine, we reported about a new Attorney General directive concerning mandatory statewide random drug testing. At the same time, the Attorney General also issued Directive # 2018-3 concerning a mandatory statewide“ Early Warning System.” The stated purpose of this directive is to identify and assist“ problematic officer conduct that poses a potential risk to the public, to the agency and to the officer.” This article will summarize the terms of this directive. Who does it apply to and when does it take effect?
The directive applies to all state, county and municipal law enforcement agencies. It is effective immediately, and all agencies are expected to adopt policies which are consistent with the directive within 60 days. How will the Early Warning System work?
The directive identifies 15 different categories which may indicate potentially escalating risks of harm to the public, the agency and / or the officer. These categories can be supplemented based upon the unique characteristics of a particular agency and the community it serves. It is up to the chief executive of the agency to determine whether any supplemental indicators should be incorporated into a policy. The performance indicators should be objectively measurable and reasonably related to potentially escalating harmful behavior by the officer. The 15 indicators listed in the directive are as follows: 1. Internal affairs complaints against the officer, whether initiated by another officer or by a member of the public. 2. Civil actions filed against the officer. 3. Criminal investigations of, or criminal complaints against, the officer.
4. Any use of force by the officer that is formally determined or adjudicated( for example, by internal affairs or a grand jury) to have been excessive, unjustified or unreasonable.
5. Domestic violence investigations in which the officer is an alleged subject.
6. An arrest of the officer, including on a charge of driving under the influence. 7. Sexual harassment claims against the officer. 8. Vehicular collisions involving the officer that are formally determined to have been the fault of the officer. 9. A positive drug test by the officer. 10. Cases or arrests by the officer that are rejected or dismissed by a court. 11. Cases in which evidence obtained by an officer is suppressed by a court. 12. Insubordination by the officer. 13. Neglect of duty by the officer. 14. Unexcused absences by the officer. 15. Any other indicators as determined by the agency’ s chief executive.
The early warning system will be triggered if an officer has three separate instances of any of the performance indicators listed above within any 12-month period. If one event triggers multiple performance indicators, it will only be counted as one performance indicator. However, the agency’ s chief executive may, in his or her discretion determine, that a lower number of performance indicators within a 12-month period will trigger the early warning
12 NEW JERSEY COPS ■ MAY 2018
review process. How is the Early Warning System administered?
The Early Warning System should be administered by the agency’ s Internal Affairs unit. Agencies must adopt a tracking system to enable it to identify officers who display the requisite number of performance indicators necessary to initiate the review process. Officers assigned to manage the Early Warning System must audit the tracking system at least every six months to assess the effectiveness and accuracy of the tracking system.
If an officer has displayed the requisite number of performance indicators necessary to initiate the Early Warning System, supervisory personnel must initiate remedial action to address the officer’ s behavior. At a minimum, the following steps should be taken: 1. Formally notify the officer in writing; 2. conference with the officer and appropriate supervisory personnel; 3. adopt and administer a remedial program, including the appropriate remedial / corrective actions discussed below; 4. continue to monitor the officer for at least three months, or until the supervisor concludes that the officer’ s behavior has been remediated( whichever is longer); 5. document and report findings to the appropriate supervisory personnel and, if warranted, the Internal Affairs unit. Any statement made by the officer in connection with the review process“... may not be used against the subject officer in any disciplinary or other proceeding.” The remedial / corrective action referred to above includes the following: training or re-training, counseling, intensive supervision, fitness-for-duty examination, Employee Assistance Program referral and“... any other appropriate remedial or corrective action.”
The directive does not specifically address disciplinary actions that might be warranted against an officer. According to the directive, any disciplinary actions remain within the scope of the agency’ s internal affairs function and may be imposed in accordance with existing internal affairs guidelines and applicable law separate and apart from the Early Warning System. Notice to subsequent employers
If an officer who has been a subject of the Early Warning System review process applies to or accepts employment at a different law enforcement agency, the employing law enforcement agency must notify the subsequent employing agency of the officer’ s Early Warning System review process and the outcome. The current agency must also share the officer’ s Early Warning System review process files with the new employing agency upon request. Notice to county prosecutor
If the Early Warning System review process has been initiated, the agency’ s chief executive or a designee must submit a confidential written notification to the county prosecutor of the identity of the officer, the nature of the performance indicators at issue and the planned remedial program. Once the Early Warning System review process is completed, the chief executive must submit a second confidential written notification to the county prosecutor of the outcome of the review, including any remedial actions taken with the officer. Notice to the attorney general
The county prosecutor is required to submit a report to the attorney general by Jan. 31 of each year summarizing those agencies under the prosecutor’ s supervision that are in compliance with