2.“ An Internal Affairs Investigative Report Was Not Written, Notwithstanding The Clear Requirement For Same”;
3.“ Officers Were Not Advised As To Their Status As Witness Or Target”;
4.“ Confidentiality Was Ignored”; 5.“ Interviews Were Not Conducted”; and
6.“ The Investigation Was Not Conducted In A Fair And Objective Manner.”
( Opinion at p. 17).
The officers also argued that the chief was politically motivated because the officers supported 12-hour shifts and the chief had a personal dislike of the mayor who was related to one of the officers. The ALJ rejected the officers’ arguments and concluded that any deviations from the AG Guidelines were not sufficient to taint the investigation and did not deprive the officers of a fair hearing. The Civil Service Commission adopted the ALJ’ s recommended decision.
On appeal, the Appellate Division affirmed the Commission’ s decision, concluding that it was not arbitrary, capricious or contrary to law, the standard the courts usually apply when reviewing final agency decisions. But the court in Biazzo emphasized that any analysis of whether violations of the AG Guidelines have tainted the disciplinary proceedings will depend upon an analysis of the particular facts of each case. The court noted that the ALJ did so in this case and concluded that, notwithstanding the department’ s failure to comply with several elements of the AG Guidelines, the violations did not taint the investigatory process itself or deprive the officers of a fair hearing. For that reason, the court upheld the conclusion of the ALJ and the Civil Service Commission that there was no basis to interfere with the discipline in these cases. Because the officers did not challenge the underlying factual basis for the discipline, the court did not reach the issue of whether the underlying facts themselves warranted imposition of the discipline.
Importantly, however, after noting that law enforcement agencies must adopt and implement policies which are consistent with the AG Guidelines, and that any procedural violations are usually cured by a subsequent hearing before an ALJ, the court also made the critical statement that not all violations of the AG Guidelines can be“ cured” in a subsequent evidentiary hearing as it was in this case. If the law enforcement agency’ s violations are sufficient to taint the disciplinary process, the discipline cannot stand. For example, in one case, a civilian police director, who was the subject of an officer’ s charges, served as the IA officer and investigated the charges against the officer. A court found that this violated the AG Guidelines and also tainted the investigatory and hearing process. It thus upheld dismissal of the charges.
The decision highlights the fact that judgments must always be made by the officers in consultation with their Legal Protection Plan attorneys about the best ways to present a defense to disciplinary charges. In most cases, that defense will include procedural violations of the AG Guidelines and other deficiencies as well as defending the merits. However, there will be cases where the procedural violations are not significant enough to justify raising them, or at least making them into a“ federal case.” There will also be those cases in which the procedural violations alone are so significant that they may in and of themselves justify dismissal of the charges. However, these are judgments and decisions which your LPP attorney will discuss with you if you are the subject of disciplinary charges. The important takeaway from this decision is that procedural violations in and of themselves do not automatically result in dismissal of the disciplinary charges.
Because this decision was unanimous, there is no automatic right of appeal. While it is an unpublished decision, and therefore does not have any precedential value, it will undoubtedly be relied upon by ALJs and the Civil Service Commission as persuasive authority in any future cases. We will keep the NJ State PBA advised of any future developments. d
www. njcopsmagazine. com ■ OCTOBER 2016 13