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
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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