In re Attorney General Law Enforcement Directive Nos. 2020-05 and 2020-06 (085017) (Mercer County & Statewide)

SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.
In re Attorney General Law Enforcement Directive Nos. 2020-5 and 2020-6
(A-26/27/28/29/30-20) (085017)
Argued March 2, 2021 -- Decided June 7, 2021
RABNER, C.J., writing for a unanimous Court.
In June 2020, weeks after George Floyd was killed at the hands of a Minneapolis
Police Officer, the Attorney General for New Jersey issued two Directives. They call for
the release of the names of law enforcement officers who commit disciplinary violations
that result in the imposition of “major discipline” -- termination, demotion, or a
suspension of more than five days. A summary of the misconduct and the sanction
imposed must also be disclosed. In this appeal, the Court considers challenges brought
against the Directives by five groups representing state and local officers.
Directive 2020-5 applies to all law enforcement agencies in the State, including
local police departments; Directive 2020-6 applies to the State Police and other agencies
within the Department of Law and Public Safety (Department). Both Directives
encompass all findings of major discipline after January 1, 2020. In addition, for the
State Police and other agencies within the Department, officers subjected to major
discipline dating back twenty years would be identified publicly. The Directives mark a
sharp change in practice. Previously, the Attorney General fought to shield the identities
of law enforcement officers disciplined for serious misconduct.
Appellants and intervenors challenged the Directives on a number of grounds.
The Appellate Division upheld the Directives against the parties’ facial challenge. 465
N.J. Super. 111, 128-29, 162 (App. Div. 2020). The court concluded that the Attorney
General had the authority to issue the Directives and found that the Directives did not
conflict with the Open Public Records Act (OPRA) or other authorities relating to the
confidentiality of personnel records. Id. at 140-48. The court also found the retroactive
nature of the Directives did not run counter to ex post facto principles. Id. at 149.
In light of the limited record before it and the fact that appellants brought only a
facial challenge to the Directives, the Appellate Division declined to address any contract
claims or related arguments based on promissory and equitable estoppel, id. at 153-54,
leaving open the possibility of individual as-applied challenges, id. at 154-55.
1
The Appellate Division found that the Directives did not violate constitutional
guarantees of due process, id. at 156-57, or equal protection, id. at 157-59. The court also
rejected claims that the Directives violate the Administrative Procedure Act (APA), id. at
159-60, and that they impair appellants’ right to contract and violate their constitutional
right to collective negotiations, id. at 160-61. Finally, the appellate court concluded the
Directives are not arbitrary, capricious, unreasonable, or against public policy. Id. at 161.
The Court granted appellants’ petitions for certification. 244 N.J. 447 (2020).
HELD: *The Attorney General had the authority to issue the Directives, which
satisfy the deferential standard of review for final agency decisions. The Directives are
designed to enhance public trust and confidence in law enforcement, to deter misconduct,
to improve transparency and accountability in the disciplinary process, and to identify
repeat offenders who may try to move from one sensitive position to another. In short,
the Directives are consistent with legislative policies and rest on a reasonable basis.
*The Court does not find merit in the bulk of the remaining challenges but
explains that one claim requires more careful attention: Officers subjected to major
discipline for the past twenty years say they were promised that their names would not be
released, and that they relied on that promise in resolving disciplinary accusations. In
essence, they ask the State to stand by promises they claim were made throughout the
prior twenty years. To resolve that serious issue, a judge will need to hear and evaluate
testimony and decide if the elements of the doctrine of promissory estoppel have been
met for disciplinary matters settled before the Directives were announced. The Court
offers guidance for that process and, in a separate order, designates a single Judge of the
Superior Court to conduct the hearing described in section VI.B of the opinion.
*The identities of officers subject to major discipline since the Directives
were issued in June 2020 may be disclosed; going forward, future disciplinary sanctions
can be disclosed in the same manner.
1. The Attorney General has broad authority over criminal justice matters, including “the
general supervision of criminal justice,” N.J.S.A. 52:17B-98, and the power to “adopt
rules and regulations for the efficient conduct of the work and general administration of
the [D]epartment, its officers and employees,” N.J.S.A. 52:17B-4(d). Over the years,
multiple Attorneys General have exercised that power to establish policies for the internal
affairs review process through the issuance of Internal Affairs Policy and Procedures
manuals (IAPPs). The first IAPP, in 1991, established a comprehensive set of procedures
to address allegations of officer misconduct. Five years later, the Legislature directed
every law enforcement agency in the State to adopt guidelines consistent with the IAPP.
N.J.S.A. 40A:14-181. Since 1991, each iteration of the IAPP has provided that the
progress of investigations and contents of case files were confidential but could be
released in limited circumstances. (pp. 20-22)
2
2. Directives 2020-5 and 2020-6 altered historical practice by requiring that officers
subject to major discipline be identified publicly. Directive 2020-5 applies not only
prospectively but also for at least five months before it was issued. In addition, it states
that “nothing . . . prevents agencies from releasing similar information regarding
historical incidents of officer misconduct.” And Directive 2020-6, beyond its prospective
application, requires the agencies to which it applies to “publish the names of any officers
who have been subject to serious discipline in the past twenty years.” (pp. 22-24)
3. Under OPRA, government records are subject to disclosure unless the law exempts
them from access. Appellants highlight section 10 of the law, which limits the disclosure
of personnel and pension records. See N.J.S.A. 47:1A-10. Section 10, however, contains
an important exception: “[P]ersonnel or pension records . . . shall be accessible when
required to be disclosed by another law . . . .” Ibid. (emphasis added). A regulation the
Department adopted in 2014 provides that certain records “shall not be considered
government records subject to public access” under OPRA, but this regulation does not
apply to “records enumerated in N.J.S.A. 47:1A-10 as available for public access.”
N.J.A.C. 13:1E-3.2(a)(4). In other words, a record subject to disclosure under section 10
of OPRA is likewise subject to disclosure under the regulation. The same exception is
embedded in Executive Order 11, issued by Governor Byrne: “Except as otherwise
provided by law . . . an instrumentality of government shall not disclose . . . personnel or
pension records of an individual.” (emphasis added). (pp. 24-26)
4. Based on their statutory authority, see N.J.S.A. 52:17B-98 and -4(d), Attorneys
General have issued directives that govern the disciplinary process. Attorney General
directives relating to the administration of law enforcement have the “force of law.” See
N. Jersey Media Grp., Inc. v. Township of Lyndhurst, 229 N.J. 541, 565 (2017). The
IAPP, in particular, carries the force of law for State and local law enforcement.
Fraternal Ord. of Police, Newark Lodge No. 12 v. City of Newark, 244 N.J. 75, 100-01
(2020). Moreover, the Legislature enacted a separate statute that underscores the force of
the IAPP. N.J.S.A. 40A:14-181 embraces the Attorney General’s policy on internal
affairs matters by directing law enforcement agencies throughout the state to adopt
guidelines consistent with the IAPP. And the policy in effect at the time section 181 was
enacted -- the 1992 IAPP -- declared that police executives, like the Attorney General,
could release disciplinary records. The Directives therefore do not conflict with OPRA,
N.J.A.C. 13:1E-3.2(a), or Executive Order 11. (pp. 27-28)
5. Courts apply a deferential standard to final agency actions and will not overturn them
unless they are arbitrary, capricious, or unreasonable. For actions like the Directives,
judicial intervention is limited to those rare circumstances in which it is clear the agency
action is inconsistent with its mandate. The Legislature empowered the Attorney General
to issue directives. To determine whether a particular directive is arbitrary, capricious, or
unreasonable, courts consider whether “there is any fair argument in support of the course
taken.” Flanagan v. Dep’t of Civ. Serv., 29 N.J. 1, 12 (1959). (pp. 29-33)
3
6. The Court reviews the Directives, which detail the Attorney General’s justification for
releasing the names of officers subject to major discipline. The Court also reviews
appellants’ concerns and arguments about the wisdom and consequences of the
Directives. Disagreement over a policy, however, does not make it arbitrary, capricious,
or unreasonable. If an administrative action is consistent with legislative policies, rests
on a reasonable basis, reflects careful consideration of the issues, and can otherwise
satisfy the standard for appellate scrutiny, the policy should be upheld. Here, the
Attorney General exercised authority the Legislature placed in his office to develop and
revise disciplinary policies. He acted to enhance public trust and confidence in law
enforcement, to deter misconduct, to improve transparency and accountability in the
internal affairs process, and to prevent officers from evading the consequences of their
misconduct. The Attorney General’s reasoned bases for acting were fully consistent with
the Department’s mandate. The Directives implement a practice that is common in other
professions. Once again, thoughtful concerns in opposition to a new policy are not fatal
to administrative action. The Attorney General’s decision to release the names of law
enforcement officers subject to major discipline is consistent with his delegated authority
and grounded in reason. It is not arbitrary, capricious, or unreasonable. (pp. 33-40)
7. The Ex Post Facto Clause is aimed at laws that retroactively alter the definition of
crimes or increase the punishment for criminal acts. The Directives do none of those
things. Nor do they reflect a change in the law. The Attorney General’s authority is
grounded in statutes enacted decades ago, and the Attorney General has advised officers
for more than twenty years that internal affairs records might be released. Insofar as
appellants challenge the Attorney General’s exercise of his discretionary authority to
change longstanding practice, their claim emphasizes estoppel principles. (pp. 40-41)
8. Appellants argue that the Directives violate the doctrine of promissory estoppel; they
also rely on the related theory of equitable estoppel. The Court reviews the elements of
those claims and notes that appellants submitted multiple certifications to demonstrate
that the Office of the Attorney General made clear promises of confidentiality throughout
the disciplinary process. (pp. 41-43)
9. Although the record is incomplete, it raises significant concerns in that it suggests that
officers who agreed to major discipline received assurances of confidentiality. Each
IAPP stresses that records of internal affairs investigations are confidential and that files
must be “clearly marked as confidential.” In addition, a series of certifications in the
record from the Superintendent of the State Police and others assert that for many years,
the internal affairs process has been replete with promises of confidentiality and
reassurances from state officials to officers who agreed to discipline. Representations
made by the Attorney General in a 2018 brief in another matter appear to validate part of
the certifications before the Court in this case. The disclosure of disciplinary records in
criminal cases and in response to civil discovery requests does not undermine appellants’
estoppel argument. (pp. 43-50)
4
10. The Court exercises its supervisory authority to establish a process for consideration
of the estoppel claims raised by officers who settled their disciplinary actions, which will
help ensure that relevant issues are resolved in a uniform and efficient manner. In section
VI.B of the opinion, the Court details that process for State Troopers, which will begin
with a broad-ranging evidentiary hearing before a single judge. The hearing should
explore the practice of the State Police relating to disciplinary matters, and the question
of confidentiality, in particular, before the Directives were issued. If the court finds that
promises of confidentiality were made and relied on consistent with the appropriate legal
standards, it could bar the release of names of law enforcement officers subject to
Directive 2020-6 for disciplinary matters settled before June 19, 2020. If the record does
not support such a conclusion for the entire group of officers, the court’s more limited
findings may be incorporated and made part of the record in individual challenges that
will likely follow. The Court provides guidance for those challenges, including that
officers will have 45 days to file an action upon receiving notice of proposed disclosure
by the Attorney General. (pp. 50-53)
11. The Court does not separately address potential challenges that may arise if or when
local chief law enforcement executives decide to release names of officers involved in
historical incidents of misconduct. If parties seek to challenge orders by chief law
enforcement executives, pursuant to Directive 2020-5, on estoppel grounds, they may file
an application with the Assignment Judge in their respective vicinages. Assignment
Judges have the authority to set up a process similar to the one outlined for State
Troopers -- a broad-based evidentiary hearing about an agency’s disciplinary practices,
followed by individual as-applied challenges, if necessary. The procedures outlined in
section VI.B for as-applied challenges brought by Troopers would apply. (pp. 53-54)
12. For major discipline imposed after the Attorney General issued the Directives, officers
can expect their identities will be released to the public. They may challenge disciplinary
findings in the ordinary course. The framework outlined in section VI.B applies only to
historical cases of major discipline, imposed before the Directives were issued, in which
officers challenge the release of their names on estoppel grounds. (pp. 54-55)
13. Appellants claim the Directives violate their rights to substantive and procedural due
process and equal protection; run afoul of the APA; impair their constitutional right to
contract; and violate their constitutional right to collective negotiations. As to those
points, the Court affirms the judgment of the Appellate Division largely for the reasons
stated in Judge Accurso’s thoughtful opinion. - See
- 465 N.J. Super. at 155-61. (p. 55)
The judgment of the Appellate Division is AFFIRMED AS MODIFIED.
JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA,
SOLOMON, and PIERRE-LOUIS join in CHIEF JUSTICE RABNER’s opinion.
5
SUPREME COURT OF NEW JERSEY
A-26/27/28/29/30 September Term 2020
085017
In re Attorney General
Law Enforcement Directive
Nos. 2020-5 and 2020-6
On certification to the Superior Court,
Appellate Division, whose opinion is reported at
465 N.J. Super. 111 (App. Div. 2020).
Argued Decided
March 2, 2021 June 7, 2021
Kevin D. Jarvis argued the cause for appellant New
Jersey Law Enforcement Superior Officers Association
(O’Brien, Belland & Bushinsky, attorneys; Kevin D.
Jarvis and Matthew B. Madsen, on the briefs).
James M. Mets argued the cause for appellant State
Troopers Fraternal Association of New Jersey (Mets
Schiro & McGovern and Markman & Cannan, attorneys;
James M. Mets and Robert R. Cannan, of counsel and on
the briefs, and Brian J. Manetta, on the briefs).
Katherine Hartman argued the cause for appellants State
Troopers Non-Commissioned Officers Association of
New Jersey and State Troopers Superior Officers
Association of New Jersey, and their current respective
presidents, Pete J. Stilianessis and Richard Roberts
(Attorneys Hartman, Chartered, Law Offices of Robert A.
Ebberup, Law Office of D. John McAusland, and Loccke,
Correia & Bukosky, attorneys; Katherine D. Hartman,
Mark A. Gulbranson, Jr., Robert A. Ebberup, D. John
McAusland, and Michael A. Bukosky, on the briefs).
1
Matthew Areman argued the cause for appellants New
Jersey State Policemen’s Benevolent Association and
New Jersey State Lodge of the Fraternal Order of Police
and their current respective presidents, Patrick Colligan
and Robert W. Fox (Zazzali, Fagella, Nowak, Kleinbaum
& Friedman, attorneys; and Markowitz & Richman,
attorneys; Paul L. Kleinbaum, Craig A. Long, and
Matthew Areman, on the briefs).
Frank M. Crivelli argued the cause for appellants
Policemen’s Benevolent Association Local Number 105,
Policemen’s Benevolent Association Local Number 383,
Policemen’s Benevolent Association Local 383A,
Policemen’s Benevolent Association Local 383B, and the
New Jersey Law Enforcement Supervisors Association
(Crivelli & Barbati, attorneys; Frank M. Crivelli, on the
briefs).
Jeremy Feigenbaum, State Solicitor, argued the cause for
respondent Attorney General of New Jersey (Gurbir S.
Grewal, Attorney General, attorney; Jeremy Feigenbaum
and Jane C. Schuster, Assistant Attorney General, of
counsel and on the briefs, and Christopher Weber, Sean
P. Havern, Patrick Jhoo, Brandon C. Simmons, Emily K.
Wanger, and Emily Marie Bisnauth, Deputy Attorneys
General, on the briefs).
Vito A. Gagliardi, Jr. argued the cause for amicus curiae
New Jersey State Association of Chiefs of Police (Porzio
Bromberg & Newman, attorneys; Vito A. Gagliardi, Jr.,
of counsel and on the brief, and David L. Disler and
Thomas J. Reilly, on the brief).
Joseph E. Krakora, Public Defender, argued the cause for
amici curiae Public Defender of New Jersey and
Association of Criminal Defense Lawyers of New Jersey
(Joseph E. Krakora, Public Defender, attorney; and
Gibbons, attorneys; Joseph E. Krakora and Lawrence S.
Lustberg, on the brief).
2
Alexander Shalom argued the cause for amici curiae
American Civil Liberties Union of New Jersey, Bayard
Rustin Center for Social Justice, Cherry Hill Women’s
Center, Ethical Culture Society of Bergen County, Fair
Share Housing Center, Faith in New Jersey, Housing and
Community Development Network of New Jersey, Latino
Action Network, LatinoJustice PRLDEF, Legal
Advocacy Project of UU FaithAction of New Jersey,
Libertarians for Transparent Government, NAACP
Newark, National Association for the Advancement of
Colored People New Jersey State Conference, National
Organization for Women of New Jersey, Newark
Communities for Accountable Policing, New Jersey
Alliance for Immigrant Justice, New Jersey Clergy
Coalition for Justice, New Jersey Coalition Against
Sexual Assault, New Jersey Institute for Social Justice,
New Jersey Prison Justice Watch, Partners for Women
and Justice, People’s Organization for Progress,
Salvation and Social Justice, Service Employees
International Union Local 32BJ, SPAN Parent Advocacy
Network, Volunteer Lawyers for Justice, Women Who
Never Give Up, Inc. (American Civil Liberties Union of
New Jersey Foundation; attorneys; Alexander Shalom,
Jeanne LoCicero, Karen Thompson, and Molly K.C.
Linhorst, on the brief).
CJ Griffin argued the cause for amici curiae National
Coalition of Latino Officers and Law Enforcement
Action Partnership (Pashman Stein Walder Hayden,
attorneys; CJ Griffin, on the brief).
Bruce S. Rosen submitted a brief on behalf of amicus
curiae Reporters Committee for Freedom of the Press
(McCusker, Anselmi, Rosen & Carvelli; attorneys; Bruce
S. Rosen, on the brief).
CHIEF JUSTICE RABNER delivered the opinion of the Court.
3
In June 2020, weeks after George Floyd was killed at the hands of a
Minneapolis Police Officer, the Attorney General for New Jersey issued two
Directives. They call for the release of the names of law enforcement officers
who commit disciplinary violations that result in the imposition of “major
discipline” -- termination, demotion, or a suspension of more than five days.
A summary of the misconduct and the sanction imposed must also be
disclosed.
One Directive applies to all law enforcement agencies in the State,
including local police departments; the other applies to the State Police and
other agencies within the Department of Law and Public Safety (Department).
Both Directives encompass all findings of major discipline after January 1,
2020. In addition, for the State Police and other agencies within the
Department, officers subjected to major discipline dating back twenty years
would be identified publicly.
The Directives mark a sharp change in practice. Previously, the
Attorney General fought to shield the identities of law enforcement officers
disciplined for serious misconduct.
Five groups representing state and local officers challenged the
Directives on multiple grounds. In a comprehensive opinion, the Appellate
Division rejected their facial challenge to the Directives. In re Att’y Gen. L.
4
Enf’t Directive Nos. 2020-5 & 2020-6, 465 N.J. Super. 111, 162 (App. Div.
2020). We do as well.
We find that the Attorney General had the authority to issue the
Directives. In evaluating them, appellate review of final agency decisions,
which the Directives represent, is limited to whether an action is arbitrary,
capricious, unreasonable, or contrary to public policy. See In re State & Sch.
Emps.’ Health Benefits Comm’ns’ Implementation of Yucht, 233 N.J. 267,
279 (2018).
The challengers present a number of concerns; yet, in our view, the
Directives satisfy the deferential standard of review. They are designed to
enhance public trust and confidence in law enforcement, to deter misconduct,
to improve transparency and accountability in the disciplinary process, and to
identify repeat offenders who may try to move from one sensitive position to
another. In short, the Directives are consistent with legislative policies and
rest on a reasonable basis.
We do not find merit in the bulk of the remaining challenges. One
claim, however, requires more careful attention. Going forward, officers can
expect that their names will be disclosed if they commit acts that result in
major discipline. Officers subjected to that level of discipline for the past
twenty years, however, present a straightforward argument: they say they
5
were promised that their names would not be released, and that they relied on
that promise in resolving disciplinary accusations. The officers present a
number of certifications in support of that claim, including one from the
former Superintendent of the State Police. In essence, they ask the State to
stand by promises they claim were made throughout the prior twenty years.
To resolve that serious issue, a judge will need to hear and evaluate
testimony and decide if the elements of the doctrine of promissory estoppel
have been met. To establish an orderly process for potentially hundreds of
future proceedings, we offer guidance for disciplinary cases resolved up to
twenty years before the Directives were issued.
A single trial judge will be designated to hear testimony that could apply
to all of the challenges. The judge’s ruling might resolve the claim as a whole;
if not, the record created at the hearing can be used in individual as-applied
challenges that State Troopers and others can pursue afterward. A similar
process can be used in the event local officials choose to release historical
incidents of serious misconduct.
To be clear, that process will apply only to disciplinary matters settled
before the Directives were announced. The Attorney General had the right to
change course and direct that details of future serious disciplinary matters --
including the names of the officers disciplined -- will be revealed to the public.
6
That practice is routine in other professions and shines light on both the
overall disciplinary process and individual wrongdoing. The identities of
officers subject to major discipline since the Directives were issued in June
2020 may be disclosed; going forward, future disciplinary sanctions can be
disclosed in the same manner.
We therefore modify and affirm the judgment of the Appellate Division
and remand for further proceedings consistent with this opinion.
I.
George Floyd’s death on May 25, 2020 prompted nationwide protests
and calls for greater accountability of police officers. Several weeks later,
New Jersey Attorney General Gurbir S. Grewal issued two directives that
require the release of the names of law enforcement officers who receive, and
have received, major discipline. See Attorney General, Directive Requiring
Public Disclosure of the Identities of Officers Who Commit Serious
Disciplinary Violations (June 15, 2020) (Directive 2020-5); Attorney General,
Directive Requiring Public Disclosure of the Identities of Department’s
Officers Who Committed Serious Disciplinary Violations Since 2000 (June 19,
2020) (Directive 2020-6).
As noted above, Directives 2020-5 and 2020-6 require law enforcement
agencies to publish summaries of complaints against law enforcement officers
7
that result in an officer’s termination, demotion, or suspension for more than
five days. Each officer’s identity, along with the sanction imposed, must be
disclosed as well.
Directive 2020-5 applies to all local and county law enforcement. The
Directive required each agency to publish its first report by December 31,
2020, covering disciplinary actions for the prior twelve months. Agencies
could choose to disclose historical incidents of misconduct as well.
Directive 2020-6 applies to three agencies in the Department: the New
Jersey State Police; Division of Criminal Justice; and Juvenile Justice
Commission. The Directive required each agency to disclose, no later than
July 15, 2020, the same information dating back to January 1, 2000: the names
of officers subject to major discipline; a synopsis of their misconduct; and the
sanction imposed. Under the Directive, each agency must give at least seven
days’ prior notice before publication to each officer, “whenever possible.” For
retired employees, the agencies must “make reasonable efforts to contact the
officer[s] at their last known residential address, email address, or phone
number.”
The Attorney General stated that he issued the Directives pursuant to his
authority to provide for the “general supervision of criminal justice” as the
8
State’s chief law enforcement officer. The Directives and their rationale are
discussed in greater detail below.
Five groups filed a facial challenge to the Directives: the State Troopers
Fraternal Association of New Jersey and, as intervenors, the Association of
Former New Jersey State Troopers, the New Jersey Former Troopers Heritage
Foundation, Inc., and Former Trooper Members and FTA Members No. 1 & 2;
the State Troopers Non-Commissioned Officers Association of New Jersey,
the State Troopers Superior Officers Association of New Jersey, and their
respective presidents, Pete J. Stilianessis and Richard Roberts; Policeme n’s
Benevolent Association (PBA) Local Number 105, PBA Local Number 383,
PBA Local Number 383A, PBA Local Number 383B, and the New Jersey Law
Enforcement Supervisors Association; the New Jersey Superior Officers Law
Enforcement Association (NJSOA); and the New Jersey State Policemen’s
Benevolent Association, the New Jersey State Lodge of the Fraternal Order of
Police, and their respective presidents, Patrick Colligan and Robert W. Fox .
Appellants and intervenors challenged the Directives on a number of
grounds. They claimed that the Attorney General lacked the authority to issue
the Directives; that the Directives were arbitrary, capricious, unreasonable, and
contrary to public policy; that retroactive disclosure of the names of officers
violated equitable doctrines; that the Directives ran afoul of the Administrative
9
Procedure Act (APA); that they violated various constitutional rights,
including substantive and procedural due process, equal protection, and the
right to contract and to collective negotiations; and that the Directives violated
ex post facto principles.
The Appellate Division stayed implementation of the Directives pending
the outcome of the challenge; that stay remains in effect. The court also
consolidated the appeals and granted motions to participate as amici curiae to
the following groups: the New Jersey State Association of Chiefs of Police;
the American Civil Liberties Union of New Jersey along with 23 other
organizations (ACLU); the Association of Criminal Defense Lawyers of New
Jersey and the New Jersey State Office of the Public Defender; and the
National Coalition of Latino Officers and the Law Enforcement Action
Partnership.
The Appellate Division upheld the Directives against the parties’ facial
challenge. In re Att’y Gen. Directives, 465 N.J. Super. at 128-29, 162. The
court first concluded that the Attorney General had the authority to issue
Directives 2020-5 and 2020-6. The court found the Directives did not conflict
with section 10 of the Open Public Records Act (OPRA), N.J.S.A. 47:1A -10; a
regulation the Department adopted when OPRA was enacted, N.J.A.C. 13:1E-
10
13.2; and Executive Order 11, issued by Governor Brendan Byrne, all relating
to the confidentiality of personnel records. Id. at 140-48.
The court also found the retroactive nature of the Directives did not run
counter to ex post facto principles. Id. at 149. The Appellate Division noted
the Directives were neither penal nor criminal in nature, and rested on
longstanding statutory authority, not a change in the law. Ibid. Although not
convinced that a retroactivity analysis was warranted, the Appellate Division
concluded the Directives would survive such a challenge. Id. at 150. The
court explained the officers “have no constitutionally protected vested right
that the Directives could infringe,” ibid., and the Directives did not constitute a
manifest injustice, id. at 151-52.
The Appellate Division acknowledged the Directives represented a “sea
change . . . in the Department’s policy regarding the confidentiality of officer
disciplinary records and” had engendered “deep feelings of unfairness . . .
among law enforcement officers,” who claimed they “were promised
confidentiality when they settled internal disciplinary charges.” Id. at 152-53.
The court also referred to the Attorney General’s concession that “some
officers might have contract claims to the confidentiality of internal settlement
agreements.” Id. at 153.
11
In light of the limited record before it and the fact that appellants
brought only a facial challenge to the Directives, the Appellate Division
declined to address any contract claims or related arguments based on
promissory and equitable estoppel. Id. at 153-54. The court left open the
possibility of individual as-applied challenges and directed that officers be
given fourteen days’ notice -- rather than the seven-day period the Directives
provided -- to pursue such claims. Id. at 154-55.
The Appellate Division rejected appellants’ various constitutional
arguments. The court found the Directives did “not rise to the level of a
substantive due process violation implicating [appellants’] reputation or
privacy rights” under federal law. Id. at 156. Nor did the claim that
appellants’ “substantive due process right to privacy under [the] State
Constitution fare [any] better.” Ibid. The court reasoned that
appellants cannot show they have a constitutionally
protected reasonable expectation of privacy in their
disciplinary records that is not outweighed by the
government’s interest in public disclosure, in light of
prior case law establishing their diminished expectation
of privacy in those records, and the clear statement . . .
since 2000 that the Attorney General could order the
release of the records.
[Ibid. (citing Doe v. Poritz, 142 N.J. 1, 88-91 (1995)).]
“[M]indful that [the] State Constitution extends due process pro tection to
personal reputation,” the appellate court found “no general right to a hearing
12
here.” Ibid. The court added that “all affected officers have already received
all the process they were due for their disciplinary charges, including
representation by their union.” Id. at 156-57.
The Appellate Division also found no merit in appellants’ equal
protection claims. The court observed that appellants “are not members of a
suspect class and no fundamental constitutional right is impinged by
publication of their disciplinary records.” Id. at 157. The court therefore
examined, and found, a rational basis for differentiating between law
enforcement officers and other public employees: Disclosure of “the names of
law enforcement officers who have received major discipline is obviously
rationally related to the Attorney General’s goal of increasing transparency of
internal affairs and officer discipline in the State’s law enforcement agencies,
thereby making them more accountable to the communities they serve.” Id. at
158.
In addition, the Appellate Division found the distinction between
officers in the Department and those in local law enforcement was supported
by rational bases. Id. at 159. Only the first group faced certain disclosure of
major discipline dating back twenty years. Among other reasons proffered by
the Attorney General, the court cited his explanation that the decision to
release information about historical misconduct of local law enforcement
13
should be left to “the law enforcement executive closest to the community.”
Id. at 158.
The appellate court found the outcome would be the same under the
State Constitution. Id. at 159. Balancing “the affected officers’ right in the
confidentiality of their disciplinary records [and] the extent to which the
Directives impinge that right . . . against the public need for disclosure,” the
court concluded “the public need for more transparency in the internal affairs
processes of the State’s law enforcement agencies in this period of fraying
public trust in law enforcement outweighs the officers’ limited privacy right in
their disciplinary records.” Ibid.
The Appellate Division next rejected appellants’ claim that the
Directives violate the APA. Id. at 159-60. The court observed the Directives
“fall within a statutory exception to the APA’s definition of an administrative
rule, because they constitute ‘statements concerning the internal management
or discipline of an agency.’” Id. at 160 (quoting N.J.S.A. 52:14B-2). As a
result, the court found the Directives did not need to be promulgated through
the APA’s formal rulemaking process. Ibid.
The court also rejected appellants’ claims that the Directives impair their
right to contract and violate their constitutional right to collective negotiation s.
The court noted that no collectively negotiated agreements in the record
14
“address[] the confidentiality of . . . disciplinary records . . . other than to
require compliance with the” Attorney General’s Internal Affairs Policy &
Procedures (IAPP). Ibid. Moreover, the court observed, the Attorney General
issued the IAPP pursuant to statutory authority, N.J.S.A. 40A:14-181, “outside
the collective negotiations process.” Ibid. The Appellate Division accordingly
concluded “a contract impairment analysis [was] unnecessary.” Ibid.
The court added that any claims that “confidentiality assurances are
mandatorily negotiable” must first be brought before the Public Employees
Relations Commission. Id. at 160-61.
Finally, the Appellate Division concluded the Directives are not
arbitrary, capricious, unreasonable, or against public policy. Id. at 161. The
court credited the Attorney General’s concern that public confidence in State
and local law enforcement officers -- which is “essential for them to safely and
effectively perform their jobs” -- “has become seriously frayed.” Ibid. As the
court explained, the Attorney General “determined he could best improve that
trust by instilling greater accountability in the internal affairs processes that
govern officer misconduct by ending the long practice of shielding the
identities of officers receiving major discipline.” Ibid. The Attorney
General’s Directives, the Appellate Division determined, “appear[] to us
15
neither arbitrary nor capricious and, instead, consistent with existing law and
evolving public policy.” Id. at 162.
The Appellate Division stayed the Directives for five days so that
appellants could seek review before this Court. Ibid. At the same time
appellants filed for emergent relief here, the Attorney General in essence
consented to a further stay pending the outcome of the case. Soon after, we
granted appellants’ petitions for certification. 244 N.J. 447 (2020).
All of the amici who appeared before the Appellate Division continued
to participate in this appeal. See R. 1:13-9(d). We also granted leave to the
Reporters Committee for Freedom of the Press to appear as amicus curiae, and
to three additional organizations that joined the ACLU.
II.
Appellants represent members of the State’s 36,000 active law
enforcement officers and some retired officers. See N.J. State Police, Uniform
Crime Report, State of New Jersey 2016 174 (2016), https://www.njsp.org/ucr/
2016/pdf/2016a_uniform_crime_report.pdf. They largely raise the same
arguments they presented to the Appellate Division. Because their arguments
overlap, we summarize them together where possible.
Appellants first argue that the Attorney General lacks authority to issue
the Directives because they conflict with section 10 of OPRA (N.J.S.A. 47:1A-
16
10), regulations including N.J.A.C. 13:1E-3.2, and executive orders including
Executive Order 11 (Byrne). Appellants contend those sources protect the
confidentiality of public employees’ personnel records and prohibit the
disclosures the Directives require.
Next, appellants claim the Directives are arbitrary, capricious,
unreasonable, and contrary to public policy. Among other arguments, they
contend the Attorney General failed to demonstrate the Directives will build
trust and promote transparency or that the benefits of the Directives outweigh
the potential harm to officers.
Appellants also contend that many officers accepted discipline under
negotiated settlement agreements in exchange for a promise of confidentiality.
According to appellants, implementing the Directives would breach those
promises, violate the doctrines of promissory and equitable estoppel, and fail
to “turn square corners.” As a result, appellants seek to permanently enjoin the
Attorney General from enforcing the Directives.
Certain appellants raise a number of additional arguments. They claim
the Directives violate the officers’ rights to substantive and procedural due
process and equal protection, impair their rights to contract and to negotiate
collectively, violate the APA, and apply retroactively in an unfair manner.
17
Appellant NJSOA adds that the Appellate Division’s instructions about
individual as-applied challenges are vague and unworkable and fail to provide
officers enough time to challenge the release of disciplinary information.
The New Jersey State Association of Chiefs of Police, as amicus,
focuses on the retroactive nature of the Directives. The Association contends
the Directives are arbitrary, capricious, and unreasonable to the extent they are
applied retroactively. The Association also submits the Appellate Division’s
instructions for as-applied challenges are impractical.
The Attorney General counters that the Directives promote trust,
transparency, and accountability; are not arbitrary or capricious; do not run
afoul of OPRA or any regulations or executive orders; are consistent with
estoppel doctrines, principles of retroactivity, and constitutional privacy
principles; are not subject to formal rulemaking under the APA; and do not
violate appellants’ due process rights, the privacy of victims, the requirements
of equal protection, or collective negotiations rights or contractual agreements.
The Attorney General asks the Court to place careful limits on as-applied
challenges and urges the Court to affirm the judgment of the Appellate
Division.
A number of amici support the Directives. The ACLU and 26 other
organizations argue that police accountability requires transparency of police
18
discipline. The organizations contend the Directives will provide the public
with critical information and, in turn, promote trust in the police and public
safety. The organizations note that many regulated professions in New Jersey
have transparent disciplinary processes.
The National Coalition of Latino Officers and Law Enforcement Action
Partnership argue that transparency greatly benefits police officers and
promotes community trust. The groups also submit that transparency protects
the rights of officers of color and will improve the overall disciplinary process
for all officers.
The Association of Criminal Defense Lawyers of New Jersey and the
Public Defender argue the Directives promote discovery of prior police
misconduct in criminal cases, consistent with New Jersey’s broad discovery
rules and the State’s constitutional obligation to produce exculpatory evidence.
The Reporters Committee for Freedom of the Press submits that the
Directives will allow the news media to inform the public about officers’
misconduct and responses by law enforcement agencies. The Committee also
argues the Directives are compatible with OPRA.
III.
We first consider the Attorney General’s authority to issue the
Directives.
19
A.
As the State’s chief law enforcement officer, the Attorney General has
broad authority over criminal justice matters that derives from several sources.
The Criminal Justice Act of 1970 declares it “the public policy of this State to
encourage cooperation among law enforcement officers and to provide for the
general supervision of criminal justice by the Attorney General as chief law
enforcement officer of the State.” N.J.S.A. 52:17B-98. The “[A]ct shall be
liberally construed to achieve these ends.” ----
Ibid.The Legislature also empowered the Attorney General to “[f]ormulate
and adopt rules and regulations for the efficient conduct of the work and
general administration of the [D]epartment, its officers and employees.”
N.J.S.A. 52:17B-4(d). Over the years, multiple Attorneys General have
exercised that power to establish standards and policies for the internal affairs
review process of the State’s law enforcement agencies.
In 1991, Attorney General Del Tufo issued the first Internal Affairs
Policy and Procedures manual. It established a comprehensive set of
procedures to address “allegations of officer misconduct or the improper
delivery of police services,” for the purposes of “bolster[ing] the integrity of
the police department.” 1991 IAPP at 15. Five years later, the Legislature
directed every law enforcement agency in the State, including local police
20
departments, to “adopt and implement guidelines which shall be consistent
with the guidelines governing the [IAPP].” N.J.S.A. 40A:14-181. The
guidelines must be consistent with tenure and civil services laws and “ shall not
supersede any existing contractual agreements.” Ibid.Each iteration of the IAPP has addressed the confidentiality of the
disciplinary process. The 1991 IAPP expressly guaranteed that “[t]he progress
of internal affairs investigations and all supporting materials are considered
confidential information,” and “[t]he contents of the internal investigation case
files will be retained in the Internal Affairs Unit and clearly marked as
confidential.” 1991 IAPP at 15. Disciplinary hearings would “be closed to the
public,” unless the accused officer requested otherwise, and “[o]nly the police
executive or his designee [was] empowered to release publicly the details of an
internal investigation or disciplinary action.” Ibid.Revisions to the IAPP followed a similar approach: the progress of
investigations and contents of case files were confidential but could be
released in limited circumstances. The revised 2000 IAPP, for example, stated
that “information and records of an internal investigation” could be released
“[u]pon the request or at the direction of the county prosecutor or Attorney
General.” 2000 IAPP at 11-46. “The law enforcement executive officer”
could allow “access [to] a particular file or record for good cause,” and such
21
access was to be granted “sparingly.” Id. at 11-46 to -47. That language
remained in the 2011, 2014, 2017, and 2019 versions of the IAPP. 2011 IAPP
at 47-48; 2014 IAPP at 42; 2017 IAPP at 42; 2019 IAPP at § 9.6.2.
The IAPP also required law enforcement agencies to prepare an annual
report for the public that summarized types of complaints against officers and
their outcomes but did not include officers’ names. 2000 IAPP at 11-48; 2011
IAPP at 50; 2014 IAPP at 44; 2017 IAPP at 44; 2019 IAPP at § 9.11.1. The
annual report could be “statistical in nature.” 2011 IAPP at 50; 2014 IAPP at
44; 2017 IAPP at 44; 2019 IAPP at § 9.11.1. Starting with the 2019 IAPP,
public reports had to be posted on websites of law enforcement agencies. 2019
IAPP at § 9.11.1.
In 2001, the Legislature likewise mandated the Superintendent of the
State Police to submit an annual report of complaints of misconduct against
members of the State Police, with the number of complaints and the results for
each category. N.J.S.A. 53:1-10.1. The statistical report “shall not disclose
personal identifiers” of any officers or complainants. Ibid.
Directives 2020-5 and 2020-6 altered those historical practices. As
noted earlier, the Directives require that officers subject to major discipline be
identified publicly.
22
The current IAPP still requires each law enforcement agency to publish
on its public website, on an annual basis, a statistical report “summarizing the
types of complaints received and the dispositions of those complaints.”
Directive 2020-5 at 3-4 (amending 2019 IAPP § 9.11.1). But for complaints in
which an officer was terminated, received a reduction in rank or grade, or was
suspended for more than five days, Directive 2020-5 requires that the identity
of the officer be revealed, along with a brief summary of the offense and the
sanction imposed. Id. at 4 (amending 2019 IAPP § 9.11.2).
The Directive distinguishes between “minor discipline” of up to five
days’ suspension and “major discipline.” Id. at 3. “Major disciplinary
violations can include conduct involving, among other things, excessive force
against civilians, racially derogatory comments, driving while intoxicated,
domestic violence, theft, the filing of false reports, and/or conduct that results
in criminal charges against the officer.” Ibid.
Directive 2020-5, issued on June 15, 2020, requires agencies to publish
their first report no later than December 31, 2020, for discipline finalized
during the preceding twelve months. Id. at 3-4. The Directive thus applies not
only prospectively but also for at least five months before it was issued. In
addition, Directive 2020-5 states that “nothing . . . prevents agencies from
23
releasing similar information regarding historical incidents of officer
misconduct.” Id. at 3.
The changes to the IAPP outlined above apply prospectively to officers
in the New Jersey State Police, the Division of Criminal Justice, and the
Juvenile Justice Commission, as well as local law enforcement officials.
Directive 2020-6, issued on June 19, 2020, additionally requires the three state
agencies to “publish the names of any officers who have been subject to
serious discipline in the past twenty years.” Directive 2020-6 at 1. The
Attorney General directed the three agencies to publish, no later than July 15,
2020, the names of law enforcement officers subject to major discipline since
January 1, 2000. Id. at 2. According to the Directive, each division must
provide at least seven days’ notice to each officer, “whenever possible,” and
“make reasonable efforts to contact” former “officer[s] at their last known
residential address, email address, or phone number.” Ibid.
Directive 2020-6 notes that it is a final agency action under Rule 2:2-
3(a)(2). Id. at 3.
B.
Appellants claim the Directives violate OPRA, N.J.A.C. 13:1E-3.2, and
Executive Order 11 (Byrne). According to appellants, those authorities protect
24
the confidentiality of personnel records in a way that bars the key changes to
the IAPP. We do not agree.
OPRA is designed to give the public ready access to government
records. The law seeks to promote transparency in government and avoid “the
evils inherent in a secluded process.” Brennan v. Bergen Cnty. Prosecutor’s
Off., 233 N.J. 330, 343 (2018) (quoting Mason v. City of Hoboken, 196 N.J.
51, 64 (2008)). OPRA’s drafters understood “that without access to
information contained in records maintained by public agencies citizens cannot
monitor the operation of our government or hold public officials accountable
for their actions.” Fair Share Hous. Ctr., Inc. v. State League of
Municipalities, 207 N.J. 489, 502 (2011).
Under the statute, government records are subject to disclosure unless
the law exempts them from access. N.J.S.A. 47:1A-1. As the Appellate
Division aptly noted, however, “this is not an OPRA case.” In re Att’y Gen.
Directives, 465 N.J. Super. at 139. Appellants are not asking for records to be
disclosed; they seek the opposite.
Appellants highlight section 10 of the law, which limits the disclosure of
personnel and pension records. See N.J.S.A. 47:1A-10 (“[T]he personnel or
pension records of any individual in the possession of a public agency . . . shall
not be considered a government record and shall not be made available for
25
public access . . . .”). Appellants contend the provision is an express statement
of legislative policy in favor of confidentiality. Section 10, however, contains
an important exception: “[P]ersonnel or pension records . . . shall be
accessible when required to be disclosed by another law . . . .” Ibid. (emphasis
added).
N.J.A.C. 13:1E-3.2(a), a regulation the Department adopted in 2014,
similarly ties back to section 10. The regulation provides that certain records
“shall not be considered government records subject to public access” under
OPRA. N.J.A.C. 13:1E-3.2(a). Among other categories of exempt items, the
regulation lists records about individual employees “relating to or which form
the basis of discipline.” Id. at (a)(4). But this regulation contains a critical
exception as well. It does not apply to “records enumerated in N.J.S.A. 47:1A-
10 as available for public access.” Id. at (a)(4). In other words, a record
subject to disclosure under section 10 of OPRA is likewise subject to
disclosure under the regulation.
The same exception is embedded in Executive Order 11, issued by
Governor Byrne. The order provides, in part, that “[e]xcept as otherwise
provided by law . . . an instrumentality of government shall not disclose . . .
personnel or pension records of an individual.” Exec. Order No. 11
(November 15, 1974), 1 Laws of New Jersey 1974 765 (emphasis added).
26
As noted earlier, the Legislature expressly gave the Attorney General
responsibility over “the general supervision of criminal justice . . . as chief law
enforcement officer of the State,” N.J.S.A. 52:17B-98, and directed the
Attorney General to “[f]ormulate and adopt rules and regulations” to
administer the Department, N.J.S.A. 52:17B-4(d). Based on that authority,
Attorneys General have issued various directives that govern the disciplinary
process.
As the Court has recognized on prior occasions, Attorney General
directives relating to the administration of law enforcement have the “force of
law.” See N. Jersey Media Grp., Inc. v. Township of Lyndhurst, 229 N.J. 541,
565 (2017) (concluding that the Attorney General’s Use of Force Policy has
“the force of law for police entities” (quoting O’Shea v. Township of West
Milford, 410 N.J. Super. 371, 382 (App. Div. 2009))); Paff v. Ocean Cnty.
Prosecutor’s Off., 235 N.J. 1, 20-21 (2018) (finding that a local police chief’s
general order does not carry the force of law, unlike guidelines, directives, and
policies issued by the Attorney General). The IAPP, in particular, carries the
force of law for State and local law enforcement. Fraternal Ord. of Police,
Newark Lodge No. 12 v. City of Newark, 244 N.J. 75, 100-01 (2020).
Appellants contend that although the Attorney General has the power to
issue directives, they are not “laws” passed by the Legislature, and therefore
27
do not trigger the exceptions in the above three sources. But even if we accept
that argument, the Legislature enacted a separate statute that underscores the
force of the IAPP. N.J.S.A. 40A:14-181 embraces the Attorney General’s
policy on internal affairs matters by directing law enforcement agencies
throughout the state to adopt guidelines consistent with the IAPP. See
Fraternal Ord. of Police, 244 N.J. at 101 (“Section 181 effectively made the
AG’s IAPP required policy for all municipal law enforcement agencies in New
Jersey.”). And the policy in effect at the time section 181 was enacted
declared that police executives, like the Attorney General, could release
disciplinary records. See 1992 IAPP (“Only the police executive or his
designee is empowered to release publicly the dispositions of an internal
investigation or disciplinary action.”).
The Directives therefore do not conflict with OPRA, N.J.A.C. 13:1E-
3.2(a), or Executive Order 11. They are binding policy measures that provide
a basis in law for the release of the names of officers who have been subjected
to major discipline. 1
1
N.J.S.A. 53:1-10.1, which appellants reference, has no bearing on the
Attorney General’s authority to issue the Directives. The statute is discussed
in section III.A above.
28
IV.
Appellants also argue that the Directives are arbitrary, capricious, and
unreasonable and, therefore, cannot be upheld. The Attorney General
acknowledges the Directives are final agency action and contends that
appellants have not overcome the substantial deference owed the Department.
A.
Judicial review of actions by administrative agencies is provided for
under the State Constitution. N.J. Const. art. VI, § 5, ¶ 4; see In re Proposed
Quest Acad. Charter Sch. of Montclair Founders Grp., 216 N.J. 370, 383
(2013); see also R. 2:2-3(a)(2) (providing for review of final agency decisions
or actions in the Appellate Division).
Courts apply a deferential standard to final agency actions and will not
overturn them unless an action is arbitrary, capricious, or unreasonable. In re
Yucht, 233 N.J. at 279. The burden to make that showing “rests upon the
[party] challenging the administrative action.” Lavezzi v. State, 219 N.J. 163,
171 (2014) (alteration in original) (quoting In re J.S., 431 N.J. Super. 321, 329
(App. Div. 2013)).
The deferential standard is consistent with “the strong presumption of
reasonableness that an appellate court must accord an administrative agency’s
exercise of statutorily delegated responsibility.” City of Newark v. Nat. Res.
29
Council, Dep’t of Env’t Prot., 82 N.J. 530, 539 (1980); accord Lavezzi, 219
N.J. at 171. The standard also recognizes the “agency’s expertise and superior
knowledge of a particular field,” In re Carter, 191 N.J. 474, 483 (2007)
(quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)),
as well as the Judiciary’s “limited role . . . in reviewing the actions of other
branches of government,” In re Musick, 143 N.J. 206, 216 (1996).
In applying the standard, courts do not consider what they might have
done in the agency’s place or substitute their judgment for the agency’s. See
Greenwood, 127 N.J. at 513. Courts instead typically consider three things:
(1) whether the agency’s action violates express or
implied legislative policies, that is, did the agency
follow the law; (2) whether the record contains
substantial evidence to support the findings on which
the agency based its action; and (3) whether in applying
the legislative policies to the facts, the agency clearly
erred in reaching a conclusion that could not reasonably
have been made on a showing of the relevant factors.
[In re Quest Acad., 216 N.J. at 385 (quoting Mazza v.
Bd. of Trs., PFRS, 143 N.J. 22, 25 (1995)).]
Although the three-part inquiry applies generally to all administrative
agency actions, see id. at 386, it is not a rigid standard. Its application
necessarily adjusts to accommodate the kind of agency action in question. See
generally Pressler & Verniero, Current N.J. Court Rules, cmts. 7.1 & 8.1 on R.
2:10-2 (2021).
30
Most administrative agencies perform two delegated functions: they
have the power to make rules that can have the effect of laws -- a quasi-
legislative role -- and the power to adjudicate individual cases -- a quasi-
judicial role. See Jacob A. Stein et al., 4 Administrative Law § 14.01 (2021);
accord Nw. Covenant Med. Ctr. v. Fishman, 167 N.J. 123, 135 (2001); see also In
re Quest Acad., 216 N.J. at 386 (citing examples); Jeffrey S. Mandel, N.J.
Appellate Practice, 38:1-2 (2021) (distinguishing types of administrative
action). “The line between the[] two functions,” however, “is not always a
clear one.” NLRB v. Wyman-Gordon Co., 394 U.S. 759, 770 (1969) (Black,
J., concurring); accord Metromedia, Inc. v. Dir., Div. of Tax’n, 97 N.J. 313,
332 (1984); Carls v. Civ. Serv. Comm’n of N.J., 17 N.J. 215, 220 (1955).
Agencies can also act in a hybrid manner, with features of rulemaking and
adjudication, or in an informal fashion, without a hearing. Nw. Covenant Med.
Ctr., 167 N.J. at 136-37.
The nature of an administrative action affects how the standard of
appellate review is applied. See Pressler & Verniero, cmts. 7.1 & 8.1 on R.
2:10-2 (collecting cases). For example, the three-part test is a good fit for
review of quasi-judicial actions. In those matters, a robust record naturally
invites focused attention on the test’s second prong -- “whether the record
contains substantial evidence to support the findings on which the agency
31
based its action.” In re Quest Acad., 216 N.J. at 385 (quoting Mazza, 143 N.J.
at 25). But for more policy-driven, quasi-legislative acts, the record may be
less extensive. An agency’s action must still rest on a reasonable factual basis,
but its choice between two supportable, yet distinct, courses of action “will not
be deemed arbitrary or capricious as long as it was reached ‘honestly and upon
due consideration.’” In re Adoption of Amends. & New Regs. at N.J.A.C.
7:27-27.1, 392 N.J. Super. 117, 135-36 (App. Div. 2007) (quoting Worthington
v. Fauver, 88 N.J. 183, 204-05 (1982)).
The Directives do not fit easily into the typical categories of agency
action. They are not the result of adjudication, so there is no record of a
hearing before the Office of Administrative Law. See N.J.S.A. 52:14B-10;
N.J.A.C. 1:1-18.6(b), (c). Nor were they adopted under the rulemaking
requirements of the APA, N.J.S.A. 52:14B-1 to -15, which allows agencies to
give reasons for an action or policy during a notice and comment period, see
N.J.S.A. 52:14B-4.
The Directives most closely resemble quasi-legislative action. They
apply in a uniform fashion without the need for individualized determinations.
When an executive branch official acts in a quasi-legislative manner, the
arbitrary and capricious “standard does demand that the reasons for the
decision be discernible, [but they] need not be as detailed or formalized as an
32
agency adjudication of disputed facts.” In re Englewood on Palisades Charter
Sch., 320 N.J. Super. 174, 217 (App. Div. 1999), aff’d as modified, 164 N.J.
316 (2000); accord In re Red Bank Charter Sch., 367 N.J. Super. 462, 476
(App. Div. 2004); Bd. of Educ. of E. Windsor Reg’l Sch. Dist. v. State Bd. of
Educ., 172 N.J. Super. 547, 552 (App. Div. 1980).
More generally, the appellate standard in such matters focuses on
whether the agency’s decision is consistent with its delegated authority.
Judicial intervention is limited to “those rare circumstances in which it is clear
that the agency action is inconsistent with its mandate.” In re Petition for
Rulemaking, 117 N.J. 311, 325 (1989).
The Legislature empowered the Attorney General to issue directives. To
determine whether a particular directive is arbitrary, capricious, or
unreasonable, courts consider whether “there is any fair argument in support of
the course taken or any reasonable ground for difference of opinion among
intelligent and conscientious officials.” Flanagan v. Dep’t of Civ. Serv., 29
N.J. 1, 12 (1959). “Put another way, is the rule unreasonable or irrational?”
Bergen Pines Hosp. v. Dep’t of Human Servs., 96 N.J. 456, 477 (1984). To
answer that question, we turn to the Directives themselves.
33
B.
The Directives detail the Attorney General’s justification for releasing
the names of officers subject to major discipline. Because the rationale
underlying the Directives is critical to this appeal, we quote from them at
length.
Directive 2020-5 is addressed to all law enforcement chiefs. At the
outset, it acknowledges “good reasons why internal affairs records are not
generally disclosed,” namely, “the need to protect those who report and
witness police misconduct,” and the fact that a number of complaints “are
ultimately determined to be unsubstantiated or unfounded.” Directive 2020 -5
at 1.
The Attorney General, however, also emphasizes that
[l]aw enforcement officers are entrusted with
extraordinary responsibility and it is imperative that all
officers maintain the highest standards of good
discipline and conduct. Therefore, when a law
enforcement agency concludes that one of its members
has violated agency rules in a way that warrants
professional sanction, there is a stronger rationale for
public disclosure. And the more significant the
violation, the more important it is that the public know
about the misconduct.
[Id.
-- at 1-2.]
34
After briefly reviewing recent changes to the IAPP, Directive 2020 -5
continues:
More is required to promote trust, transparency and
accountability, and I have concluded that it is in the
public’s interest to reveal the identities of New Jersey
law enforcement officers sanctioned for serious
disciplinary violations. Our state’s law enforcement
agencies cannot carry out their important public safety
responsibilities without the confidence of the people
they serve. The public’s trust depends on maintaining
confidence that police officers serve their communities
with dignity and respect. In the uncommon instance
when officers fall well short of those expectations, the
public has a right to know that an infraction occurred,
and that the underlying issue was corrected before that
officer potentially returned to duty.
[Id. at 2.]
Directive 2020-5 next observes that “[t]he vast majority of law
enforcement officers . . . serve with honor and . . . courage . . .[, b]ut their
good work is easily undermined . . . whenever an officer breaches the public’s
trust.” Ibid. Underscoring the importance of deterrence, the Directive adds
the following:
The likelihood of such misbehavior increases when
officers believe they can act with impunity; it decreases
when officers know that their misconduct will be
subject to public scrutiny and not protected. The
deterrent effect of this scrutiny will, in the end, improve
the culture of accountability among New Jersey law
enforcement.
35
[Ibid.]
As noted before, Directive 2020-6 is addressed to three entities in the
Department -- the State Police, Division of Criminal Justice, and Juvenile
Justice Commission. The Directive adopts the above reasons and explains that
“[s]haring the identities of individuals who received major discipline will
allow for public scrutiny and improve the culture of accountability among the
Department’s law enforcement agencies.” Directive 2020-6 at 1.
Directive 2020-6 also addresses the reason the new policy extends to
former employees:
[M]any of our officers go on to serve with other law
enforcement agencies, and the State at present lacks a
licensing system to track such repeat disciplinary
sanctions across agencies. Moreover, the sharing of
identities will enable the public and policymakers to
identify repeat offenders, and to hold the Department’s
law enforcement agencies accountable for their
response to patterns of discipline. And, most
importantly, the sharing of identities will help to build
public confidence in the vast majority of officers . . .
[and] will help to build significant trust between [the]
officers and the communities they serve.
[Id. at 2.]
The Attorney General highlighted a number of the same concerns at oral
argument. Among others, he emphasized that releasing the names of officers
36
subject to major discipline will enable the public to monitor the internal affairs
process and gauge, for example, if progressive discipline worked effectively or
if officers were promoted after repeated episodes of serious misconduct. In
addition, the Attorney General stressed why it is important to reveal prior
instances of serious misconduct by former or retired officers. If they seek
employment with other law enforcement agencies, their internal affairs file s
are available for review under the IAPP. ---
See 2020 IAPP §§ 3.1.1, 3.1.2. That
is not the case, though, for officers looking to move to a sensitive, quasi-law-
enforcement position, like a security post in a public school or hospital, or a
similar position in the private sector. The public likewise would not have
access to the information.
To be sure, the parties strongly disagree about the wisdom and
consequences of the Directives, and appellants offer a very different
perspective. They contend the Directives will embarrass officers and make
them and their families targets for retribution; undermine the integrity of the
investigatory process; chill cooperation from officers; discourage officers from
seeking treatment for alcohol or drug dependencies; undermine the command
structure in law enforcement agencies; have a negative effect on public safety;
and reveal the identities of victims and witnesses in domestic violence and
other matters. Appellants also believe the Attorney General’s rationale is
37
flawed in that the new Directives will not achieve accountability and will add
nothing to a process that is already adequate. In addition, they contend the
Attorney General’s focus on what penalties are assessed, rather than on the
type of misconduct committed, renders the Directives over-inclusive and
arbitrary. 2, 3
Disagreement over a policy, however, does not make it arbitrary,
capricious, or unreasonable. If an administrative action is consistent with
legislative policies, rests on a reasonable basis, reflects careful consideration
2
“An employee may be subject to [major] discipline for: (1) Incompetency,
inefficiency or failure to perform duties; (2) Insubordination; (3) Inability to
perform duties; (4) Chronic or excessive absenteeism or lateness; (5)
Conviction of a crime; (6) Conduct unbecoming a public employee; (7)
Neglect of duty; (8) Misuse of public property, including motor vehicles; (9)
Discrimination that affects equal employment opportunity (as defined in
N.J.A.C. 4A:7-1.1), including sexual harassment; (10) Violation of Federal
regulations concerning drug and alcohol use by and testing of employees who
perform functions related to the operation of commercial motor vehicles, and
State and local policies issued thereunder; (11) Violation of New Jersey
residency requirements . . . ; and (12) Other sufficient cause.” N.J.A.C. 4A:2 -
2.3; see also N.J.A.C. 4A:2-3.1(c). Under the Administrative Code, “major
discipline” includes “[r]emoval, [d]isciplinary demotion, and [s]uspension or
fine for more than five working days at any one time.” N.J.A.C. 4A:2 -2.2(a).
The Attorney General notes that disclosure of incidents resulting in
major discipline tracks lines drawn by the Civil Service Commission and
avoids “subjective or vague determinations” about “the kind of misconduct
that the public deserves to know about.”
3
Amicus Chiefs of Police also submits that the retroactive nature of the
Directives makes them arbitrary and fundamentally unfair. We consider the
issue of retroactivity separately below.
38
of the issues, and can otherwise satisfy the standard for appellate scrutiny, the
policy should be upheld. See In re Adoption of Amends., 392 N.J. Super. at
135-36. Here, the Attorney General exercised authority the Legislature placed
in his office to develop and revise disciplinary policies. He acted to enhance
public trust and confidence in law enforcement, to deter misconduct, to
improve transparency and accountability in the internal affairs process, and to
prevent officers from evading the consequences of their misconduct. The
Attorney General’s reasoned bases for acting were fully consistent with the
Department’s mandate. See In re Petition for Rulemaking, 117 N.J. at 325.
The Directives implement a practice that is common in other
professions. When doctors, lawyers, judges, and other professionals are
disciplined for misconduct, their names are made public. See, e.g., N.J.S.A.
45:9-22.22(a), -22.23(7) to (8) (physicians, podiatrists, and optometrists); R.
1:20-9(m) (attorneys); R. 2:15-15(a), -20(b) (judges). The New Jersey
Division of Consumer Affairs lists the results of disciplinary actions against
accountants, architects, dentists, electrical contractors, engineers, nurses,
pharmacists, plumbers, real estate appraisers, and others on its website. See
Division of Consumer Affairs, https://www.njconsumeraffairs.gov/ (last
visited June 1, 2021) (select “Boards and Committees,” then choose the
applicable profession and select “Actions (Disciplinary and Other)”).
39
Once again, thoughtful concerns in opposition to a new policy are not
fatal to administrative action. The Attorney General’s decision to release the
names of law enforcement officers subject to major discipline is consistent
with his delegated authority and grounded in reason. It is not arbitrary,
capricious, or unreasonable.
V.
To the extent appellants continue to advance an ex post facto claim, we
agree with the Appellate Division that the release of officers’ names from
matters resolved before the Directives were issued does not violate the Ex Post
Facto Clause. In re Att’y Gen. Directives, 465 N.J. Super. at 149-52.
“The Ex Post Facto Clause is ‘aimed at laws that “retroactively alter the
definition of crimes or increase the punishment for criminal acts. ”’” State v.
Perez, 220 N.J. 423, 438 (2015) (quoting Cal. Dep’t of Corr. v. Morales, 514
U.S. 499, 504 (1995)); see State v. Hester, 233 N.J. 381, 392 (2018). The
Directives do none of those things. Nor do they reflect a change in the law.
See State v. Purnell, 161 N.J. 44, 53 (1999) (noting that for retroactivity
purposes, “the threshold inquiry [is] whether the rule at issue is a ‘new rule of
law’” (alteration in original) (quoting State v. Afanador, 151 N.J. 41, 57
(1997))). In addition, a departmental rule or regulation that is civil and non -
40
punitive is not subject to the Ex Post Facto Clause. See Riley v. State Parole
Bd., 219 N.J. 270, 292-93 (2014).
The Attorney General’s authority is grounded in statutes enacted decades
ago. See N.J.S.A. 52:17B-4 (enacted in 1948); N.J.S.A. 52:17B-98 (enacted in
1970). And as discussed above in section III.A, the Attorney General has
advised officers for more than twenty years that their internal affairs records
might be released.
Insofar as appellants challenge the manner in which the Attorney
General exercised his discretionary authority to change longstanding practice,
their claim emphasizes estoppel principles, to which we turn next.
VI.
Appellants argue that the Directives violate the doctrine of promissory
estoppel. There are four elements to a claim under the doctrine: “(1) a clear
and definite promise; (2) made with the expectation that the prom isee will rely
on it; (3) reasonable reliance; and (4) definite and substantial detriment.”
Goldfarb v. Solimine, 245 N.J. 326, 339-40 (2021) (quoting Toll Bros., Inc. v.
Bd. of Chosen Freeholders of Burlington, 194 N.J. 223, 253 (2008)).
Promissory estoppel is an equitable doctrine that has its roots in contract law
but is distinct from a typical claim to enforce a contract. Goldfarb, 245 N.J. at
41
340-41, 341 n.6. In that regard, we note that N.J.S.A. 40A:14-181 expressly
provides that IAPPs “shall not supersede any existing contractual agreements.”
Appellants also rely on the related theory of equitable estoppel, which
requires a showing of “a knowing and intentional misrepresentation by the
party sought to be estopped under circumstances in which the
misrepresentation would probably induce reliance, and reliance by the party
seeking estoppel to his or her detriment.” In re Johnson, 215 N.J. 366, 379
(2013) (quoting O’Malley v. Dep’t of Energy, 109 N.J. 309, 317 (1987)); see
also Williston on Contracts § 8:3 (Lord ed. 2008).
Principles of estoppel must be evaluated with care when a party seeks to
apply them against the government. See In re Johnson, 215 N.J. at 378
(“Equitable estoppel is rarely invoked against a governmental entity,
particularly when estoppel would ‘interfere with essential governmental
functions.’” (citations omitted) (quoting O’Malley, 109 N.J. at 316)); Harmon
v. Del. Harness Racing Comm’n, 62 A.3d 1198, 1200-01 (Del. 2013) (noting
that “as a general rule,” in the context of promissory estoppel claims, “the
‘state is not estopped in the exercise of its governmental functions by the acts
of its officers’” (quoting McCoy v. State, 277 A.2d 675, 676 (Del. 1971))).
42
A.
Appellants submitted multiple certifications in support of their claim in
order to demonstrate that the Office of the Attorney General made clear
promises of confidentiality throughout the disciplinary process. The Appellate
Division observed that appellants pursued only a facial challenge to the
Directives. In re Att’y Gen. Directives, 465 N.J. Super. at 153-54. The court
also properly found it could not resolve estoppel claims on the existing record.
Id. at 153. Instead, the Appellate Division noted that individual officers could
pursue as-applied challenges within fourteen days of getting notice. Id. at 154-
55. The Attorney General asks the Court to provide guidance for those
potential challenges.
Although the record is incomplete, it raises significant concerns in that it
suggests that officers who agreed to major discipline received assurances of
confidentiality. The Attorney General points out that since 2000, the IAP Ps
have stated the Attorney General and County Prosecutor could release the
names of officers who had been disciplined, and that law enforcement
executives could authorize access to internal affairs files “for good cause.”
See 2000 IAPP at 11-46; 2011 IAPP at 47; 2014 IAPP at 42; 2017 IAPP at 42;
2019 IAPP at § 9.6.2. The historical practice, however, is not so clear.
43
Each IAPP stresses that records of internal affairs investigations are
confidential and that files must be “clearly marked as confidential.” 1991
IAPP at 15; 1992 IAPP; 2000 IAPP at 11-46; 2011 IAPP at 47; 2014 IAPP at
42; 2017 IAPP at 42; 2019 IAPP at § 9.6.1. In addition, a series of
certifications in the record from the Superintendent of the State Police and
others assert that for many years, the internal affairs process has been replete
with promises of confidentiality and reassurances from state officials to
officers who agreed to discipline.
Former Superintendent Joseph R. Fuentes submitted a certification in
which he explained that he was personally involved in disciplinary matters
during his tenure and had the ultimate responsibility to approve final
settlements and set penalties for State Troopers in disciplinary matters.
Fuentes Certif., Aug. 4, 2020, ¶ 26. He also had statutory responsibilities
relating to the disciplinary process. Pursuant to N.J.S.A. 53:1 -10, “[t]he
superintendent shall, with the approval of the governor, make all rules and
regulations for the discipline and control of the state police.”
Among other statements, the Superintendent certified to the following:
* “State Troopers were ordinarily extended a promise
that such disciplinary matters would remain
confidential and that their names and identities would
not be released to the public.” Fuentes Certif., ¶ 27
(emphases added).
44
* “The office of the State Attorney General is not just
an observer of this process; rather [it is] an integral part
in constructing, reviewing and approving
confidentiality agreements in matters of General
Discipline (subject to 30 or more days of suspension)
. . . .” Ibid.
* “I personally provided the assurance of
confidentiality to many State Troopers under my
command . . . .” Id. ¶ 28 (emphasis added).
* “During my tenure with the State Police internal
affair[s] files were always maintained as confidential
and privileged documents.” Id. ¶ 32.
* “State Troopers who were involved in an internal
affairs investigation were advised that the process was
confidential.” Id. ¶ 58.
* “State Troopers who resolved disciplinary matters
were advised that any settlements of disciplinary
matters or plea agreements would remain confidential
and that their identities would not be disclosed.” Id.
¶ 60 (emphasis added).
* “In exchange for accepting a settlement a Trooper
was promised confidentiality and a promise was also
extended that it would not stand as a shaming incident
for the remainder of his career.” Id. ¶ 69 (emphasis
added).
Trooper Wayne D. Blanchard, President of the State Troopers Fraternal
Association of New Jersey, certified as follows:
45
* “During the disciplinary process, . . . [t]he Trooper
and the NJSP can enter a Voluntary Negotiated Plea
Agreement and the Trooper is advised that it will
remain strictly confidential and recorded in the
member’s Discipline File and would not be released to
the public.” Blanchard Certif., Aug. 5, 2020, ¶ 9.
* “It is explained very clearly that if the matter is not
adjudicated within the NJSP, the matter would be
transmitted to the Office of Administrative Law for a
hearing, if applicable, and from that point forward the
matter is made public.” Ibid.
* “The guarantee of confidentiality has caused many
Troopers to enter into settlement agreements with the
NJSP.” Id. ¶ 10 (emphasis added).
Detective Sergeant Pete J. Stilianessis, president of the State Troopers
Non-Commissioned Officers Association, also submitted a certification. He
stated in broad terms as follows:
* “Every disciplinary action assessed against State
Troopers was premised upon express representations of
confidentiality and privilege.” Stilianessis Certif.,
¶ 36.
* “This express representation was formally extended
to union representatives, individual troopers and their
attorneys.” Id. ¶ 37.
* “Confidentiality was assured and promised at every
stage of the disciplinary process.” Id. ¶ 38.
* “Command staff within the Division of State Police
directly informed Troopers union representatives and
46
attorneys engaged within the disciplinary process, that
the entire matter would be deemed privileged and
confidential and would never be released to the public.”
Id. ¶ 39.
Stilianessis also quoted an anonymous trooper who certified that
“[d]uring the entrance of the negotiated settlement agreement, I was assured
that this matter was confidential and that it would not define my career.” Id.
¶ 69. Another anonymous trooper made a similar statement. Id. ¶ 70.
In addition, Stilianessis noted that, as recently as 2019, the Attorney
General argued before the Appellate Division against the release of the name
of any State Trooper linked to a disciplinary charge. See id. ¶ 42. In a brief to
the Appellate Division in Libertarians for Transparent Government v. New
Jersey State Police, a case that involved an OPRA request, the Attorney
General argued that law enforcement officers are “entitled to . . . [a]
reasonable expectation of privacy” in their disciplinary history. Att’y Gen.
Br., Aug. 6, 2018, at 2; cf. 243 N.J. 515 (2020) (dismissing the appeal upon
stipulation of the parties). The Attorney General also argued that “[t]he
confidentiality interest supporting non-disclosure of information relating to
internal and criminal investigations of State Police members is significant .”
Id. at 7-8.
47
The Attorney General’s brief in Libertarians appears to validate part of
the certifications before the Court in this case. In particular, the office’s
written submission concedes
[i]t is often the case that the subject of an internal
affairs investigation agrees to accept culpability of
some, or all of the charges brought against him or her
and waives his or her right to formal administrative
proceedings on the charges. By choosing to resolve the
matter, and not bring the matter to a public forum, [the
Trooper’s] identity is protected from public disclosure.
Not only does this fact undoubtedly incentivize some
troopers to agree to cooperate, but it also benefits the
investigating unit by not having to expend as many
resources to conclude an investigation yet still bring a
favorable outcome.
[Id. at 9-10 (emphasis added).]
The trial court in Libertarians accepted the State’s argument and declined to
order disclosure of the Trooper’s identity. After oral argument in 2019, the
Appellate Division affirmed for substantially the same reasons. 4
The Attorney General oversees the Department of Law and Public
Safety, of which the State Police is a part. He has the ultimate authority to set
policy for the Department and can decide to change direction on matters of
policy. Although stated positions of the Attorney General may not necessarily
4
We refer to the proceedings because they offer relevant context; we do not
suggest the rulings are precedential. See R. 1:36-3.
48
amount to clear and definite promises, see Goldfarb, 245 N.J. at 340, it is
understandable for appellants to highlight prior public comments that support
their position as they advance equitable claims.
In a related argument, appellants remind the Court that government
agencies must “turn square corners” in their dealings with others. See W.V.
Pangborne & Co., Inc. v. Dep’t of Transp., 116 N.J. 543, 561-62 (1989). We
do not find the Directives violated that standard. They reflect the considered
judgment of the Attorney General about public accountability of law
enforcement officers. At the same time, we recognize that an agency’s recent
formal statements can have a bearing on the equitable arguments appellants
raise.
Among other reasons, the Attorney General contends that appellants’
estoppel argument should fail because disciplinary records are disclosed in
criminal cases to satisfy the requirements of Brady v. Maryland, 373 U.S. 83(1963), and United States v. Giglio, 405 U.S. 150 (1972), and to respond to
civil discovery requests. But no promise of confidentiality could attach to
those affirmative legal obligations. In addition, those disclosures arise in a
rather different context. Discovery materials disclosed in those settings are not
made to the public and can be subject to a protective order or some other form
of oversight by the court. In contrast, the Directives require or invite the
49
posting of twenty years of major disciplinary findings, with officers’ names
attached, on a public website.
B.
We cannot probe the certifications in the record or resolve appellants’
equitable claims. 5 We also recognize that information contained in the
certifications might be relevant to hundreds of potential individual challenges.
See Fuentes Certif., ¶ 16 (estimating there are nearly 500 cases involving
major discipline with the State Police that date back twenty years). To help
ensure that relevant issues are resolved in a uniform and efficient manner, we
exercise our supervisory authority to establish the following process. See N.J.
Const. art. VI, § 2, ¶ 3.
A single Judge of the Superior Court will be designated to conduct a
broad-ranging evidentiary hearing. The hearing should explore the practice of
the State Police relating to disciplinary matters, and the question of
confidentiality, in particular, before the Directives were issued. All parties
and amici shall receive notice of the hearing and have the opportunity to
5
To be clear, estoppel claims can be raised only by officers who settled their
disciplinary actions. Officers who contested accusations against them in the
course of a public hearing cannot claim they relied on a promise of
confidentiality. At oral argument, appellants estimated that ninety percent of
disciplinary cases are resolved through settlement agreements.
50
participate. Both sides may present witnesses and documentary evidence ; they
may also probe the role of counsel from the Department of Law and Public
Safety.
The judge shall make appropriate findings. If there is sufficient credible
evidence, the court, in its discretion, may resolve the issue of confidentiality
on a broad scale. In other words, if the court finds that promises of
confidentiality were made and relied on consistent with the appropriate legal
standards, see Goldfarb, 245 N.J. at 339-40; In re Johnson, 215 N.J. at 378, it
could bar the release of names of law enforcement officers subject to Directive
2020-6 for disciplinary matters settled before June 19, 2020. If the record does
not support such a conclusion for the entire group of officers, the court’s more
limited findings may be incorporated and made part of the record in individual
challenges that will likely follow. 6
Depending on the outcome of the above hearing, State Troopers and law
enforcement officers in the Division of Criminal Justice and the Juvenile
Justice Commission (“Troopers”) are to file any as-applied challenges
afterward in the Superior Court in the nature of actions in lieu of prerogative
writs. See R. 4:69. The Attorney General shall first provide current and
6
We do not retain jurisdiction. The outcome of the hearing is subject to the
ordinary rules of appellate procedure.
51
retired Troopers notice of the proposed disclosure by personal service, in the
manner required by Rules 4:4-3(a), -4(a)(1), and -4(b)(1). 7 Current or retired
Troopers, in turn, are to file any actions within 45 days of receiving such
notice. R. 4:69-6(a). The additional time beyond 14 days, see In re Att’y Gen.
Directives, 465 N.J. Super. at 154-55, will enable Troopers to contact and
retain counsel, and interact with the Department before deciding whether to
proceed to court. Troopers’ names shall not be released during the 45-day
period.
As part of the notice, the Attorney General shall identify a point of
contact in the Department from whom Troopers may seek additional
information. See id. at 155. The Attorney General has agreed to do so. At
oral argument, the Attorney General also represented that the office would
disclose relevant disciplinary files to Troopers on request. It is incumbent on
Troopers to ask for their files in a timely manner; the files should be disclosed
within two weeks of a request.
In addition, the Attorney General represents that “no synopsis of
discipline will include the name of any victim, nor will it identify them by
7
The Attorney General represents that his office has already given notice to
individuals affected by Directive 2020-6. It is unclear what type of notice was
provided.
52
relationship to the offender (e.g., ex-spouse or child).” Like the Appellate
Division, we urge the Attorney General to take further steps to protect the
identity of victims of domestic violence, including extra redactions and
advance notice to victims in appropriate cases. See id. at 155 n.6. We also
accept the Attorney General’s representation that no synopsis will be published
for Troopers known to be deceased.
The trial court shall employ specialized case management to expedite the
proceedings. See R. 4:69-4. Until a challenge is resolved by the trial court,
and subject to any stays entered pending appeal, the challenger’s identity shall
not be released. To that end, cases may be filed with fictitious names in the
caption, and courts may enter appropriate protective orders. As to the merits,
the challengers have the burden to prove why they should prevail.
We do not separately address potential challenges that may arise if or
when local chief law enforcement executives decide to release names of
officers involved in historical incidents of misconduct, pursuant to Directive
2020-5. The record contains memos from three County Prosecutors in Bergen,
Essex, and Union Counties, and a certification relating to the City of Paterson.
They set forth different approaches to publish the names of officers subject to
major discipline for certain types of misconduct dating back to 2000 or 2014.
The record is not as developed about promises of confidentiality relating to
53
settlements reached before June 2020. Nor does it address other prosecutors or
municipalities.
If parties seek to challenge orders by chief law enforcement executives ,
pursuant to Directive 2020-5, on estoppel grounds, they may file an
application with the Assignment Judge in their respective vicinages.
Assignment Judges have the authority to set up a process similar to the one
outlined above for State Troopers -- a broad-based evidentiary hearing about
an agency’s disciplinary practices, followed by individual as-applied
challenges, if necessary. The procedures outlined above for as-applied
challenges brought by Troopers would apply as well.
C.
The Directives also apply prospectively. For major discipline imposed
after the Attorney General issued the Directives, officers can expect that their
identities will be released to the public. They may challenge disciplinary
findings in the ordinary course. That process can vary based on the agency
involved and the jurisdiction in which it operates. Compare N.J.A.C. 4A:2-2.1
to -2.13 (Civil Service jurisdictions), with N.J.S.A. 40A:14-147 to -151 (non-
Civil Service jurisdictions).
54
The framework outlined in section VI.B applies only to historical cases
of major discipline, imposed before the Directives were issued, in which
officers challenge the release of their names on estoppel grounds.
VII.
Defendants raise a number of additional arguments. They claim the
Directives violate their rights to substantive and procedural due process and
equal protection; run afoul of the APA; impair their constitutional right to
contract; and violate their constitutional right to collective negotiations. As to
those points, we affirm the judgment of the Appellate Division largely for the
reasons stated in Judge Accurso’s thoughtful opinion. See In re Att’y Gen.
Directives, 465 N.J. Super. at 155-61.
VIII.
For the reasons outlined above, we modify and affirm the judgment of
the Appellate Division. In a separate order, we also designate a single Judge
of the Superior Court to conduct the broad-based hearing described in section
VI.B.
JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA,
SOLOMON, and PIERRE-LOUIS join in CHIEF JUSTICE RABNER’s opinion.
55