IN THE MATTER OF ATTORNEY GENERAL LAW ENFORCEMENT DIRECTIVE NOS. 2020-5 AND 2020-6 (DEPARTMENT OF LAW AND PUBLIC SAFETY) (CONSOLIDATED)

• Court: New Jersey Superior Court Appellate Division
• Decided: October 16, 2020
• Docket: A-3950-19T4/A-3975-19T4/A-3985-19T4/A-3987-19T4/A-4002-19T4
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NOS. A-3950-19T4 A-3975-19T4 A-3985-19T4 A-3987-19T4 A-4002-19T4

In re ATTORNEY GENERAL APPROVED FOR PUBLICATION LAW ENFORCEMENT October 16, 2020 DIRECTIVE Nos. 2020-5 and APPELLATE DIVISION 2020-6

Argued September 16, 2020 – Decided October 16, 2020

Before Judges Ostrer, Accurso and Vernoia.

On appeal from Attorney General Law Enforcement Directive Nos. 2020-5 and 2020-6.

James M. Mets and Robert R. Cannan argued the cause for appellant in A-3950-19 (Mets Schiro & McGovern, LLP and Markman & Cannan, LLC, attorneys; James M. Mets and Robert R. Cannan, of counsel and on the briefs; Brian J. Manetta, on the brief).

Carl J. Soranno and Jay Sabin argued the cause for intervenors-appellants in A-3950-19 and A-3975-19 (Brach Eichler, LLC, attorneys; Anthony M. Rainone and Carl J. Soranno, of counsel and on the briefs; Jay Sabin, on the briefs). D. John McAusland argued the cause for appellants in A-3975-19 (Attorneys Hartman, Chartered, Law Offices of Robert A. Ebberup, LLC, Law Office of D. John McAusland and Loccke, Correia & Bukosky, attorneys; Mark A. Gulbranson, Jr., Katherine D. Hartman, Robert A. Ebberup, D. John McAusland and Michael A. Bukosky, on the briefs).

Frank M. Crivelli argued the cause for appellants in A-3985-19 (Crivelli & Barbati, LLC, attorneys; Frank M. Crivelli, on the briefs).

Kevin D. Jarvis argued the cause for appellant in A- 3987-19 (O'Brien, Belland & Bushinsky, LLC, attorneys; Kevin D. Jarvis and Matthew B. Madsen, on the briefs).

Paul L. Kleinbaum and Matthew Areman argued the cause for appellants in A-4002-19 (Zazzali, Fagella, Nowak, Kleinbaum & Friedman, and Markowitz & Richman, attorneys; Paul L. Kleinbaum and Matthew Areman, of counsel and on the briefs; Craig A. Long, on the briefs).

Jeremy M. Feigenbaum argued the cause for respondents in all appeals (Jeremy M. Feigenbaum, State Solicitor, and Jane C. Schuster, Assistant Attorney General, of counsel and on the brief; Emily Marie Bisnauth, Christopher Weber, Dominic L. Giova, Sean P. Havern and Brandon C. Simmons, Deputy Attorneys General, on the brief).

Vito A. Gagliardi, Jr., argued the cause for amicus curiae New Jersey State Association of Chiefs of Police (Porzio, Bromberg & Newman PC, attorneys; Vito A. Gagliardi, Jr., of counsel; David L. Disler and Thomas J. Reilly, on the brief).

A-3950-19T4 2 Alexander R. 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, Faith in New Jersey, Latino Action Network, LatinoJustice PRLDEF, Legal Advocacy Project of UU FaithAction New Jersey, Libertarians for Transparent Government, National Association for the Advancement of Colored People New Jersey State Conference, NAACP Newark, National Organization for Women of New Jersey, Newark Communities for Accountable Policing, New Jersey Alliance for Immigrant Justice, New Jersey Campaign for Alternatives to Isolated Confinement, New Jersey Clergy Coalition for Justice, New Jersey Institute for Social Justice, Partners for Women and Justice, People's Organization for Progress, Salvation and Social Justice, Service Employees International Union 32BJ, SPAN Parent Advocacy Network, Volunteer Lawyers for Justice, and Women Who Never Give Up (Jeanne LoCicero, Alexander Shalom, 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, P.C., attorneys; CJ Griffin, of counsel and on the brief).

Joseph E. Krakora argued the cause for amici curiae New Jersey Office of the Public Defender and Association of Criminal Defense Lawyers of New Jersey (Joseph E. Krakora, Public Defender, attorney; and Gibbons P.C., attorneys; Lawrence Lustberg and Michael R. Noveck, on the brief).

A-3950-19T4 3 New Jersey State Office of the Public Defender (Lawrence Lustberg and Michael R. Noveck, on the brief).

The opinion of the court was delivered by

ACCURSO, J.A.D.

Responding to state and national demands for accountability and reform

of law enforcement following the death of George Floyd at the hands of

Minneapolis police, Attorney General Gurbir S. Grewal announced in June that

he would end New Jersey's decades-long practice of shielding the identities of

law enforcement officers receiving major discipline for misconduct.

Determining he could best improve the public's trust in state and local police

by instilling greater accountability in the processes that govern officer

misconduct, the Attorney General issued two directives, Law Enforcement

Directive Numbers 2020-5 and 2020-6, amending the statewide rules for

internal affairs investigations, known as the Internal Affairs Policy and

Procedures (IAPP), applicable to every law enforcement agency in New Jersey

by virtue of N.J.S.A. 40A:14-181, and imposing additional requirements on the

law enforcement agencies housed within the Department of Law and Public

Safety.

A-3950-19T4 4 Directive 2020-5 amends the IAPP to require every law enforcement

agency in the State to publish a synopsis of all complaints in which an officer

received final discipline of termination, demotion, or a suspension of more

than five days, including the name of the officer, a summary of the

misconduct, and the sanction imposed. Initial reports, covering all discipline

imposed during this calendar year, are due by December 31, 2020. Subsequent

reports must be published at least annually thereafter. The Directive further

permits, but does not require, county and municipal agencies to release similar

information about earlier incidents of officer misconduct resulting in the same

sanctions.

Directive 2020-6 orders all law enforcement agencies within the

Department of Law and Public Safety, which the Attorney General heads, the

Division of State Police and the Division of Criminal Justice, as well as the

Juvenile Justice Commission, which is in but not of the Department, to publish

no later than July 15, 2020, the same information required by Directive 2020-5

from January 1, 2000 to the present. The Directive orders the three agencies to

provide notice to each officer it intends to identify at least seven days prior to

publication, whenever possible making reasonable efforts. Both Directives

provide they were issued pursuant to the Attorney General's authority to ensure

A-3950-19T4 5 the uniform and efficient enforcement of the laws and administration of

criminal justice throughout the State, and specific to 2020-6, his authority to

supervise the operations of the Department of Law and Public Safety, and

create no substantive right of enforcement in any third party.

These five consolidated appeals present a broad-based facial challenge to

the Directives by petitioners State Troopers Fraternal Association of New

Jersey (A-3950-19), and intervenors 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 (A-3950-19 and A-

3975-19); 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 (A-

3975-19); Policemen's Benevolent Association Local Number 105, PBA Local

Number 383, PBA Local Number 383A, PBA Local Number 383B, and The

New Jersey Law Enforcement Supervisors Association (A-3985-19); New

Jersey Superior Officers Law Enforcement Association (A-3987-19); and 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 (A-4002-19).

A-3950-19T4 6 Petitioners and intervenors, representing a broad swath of the State's

36,000 active law enforcement officers as well as some retired officers,

contend the Attorney General lacks the authority to issue the Directives

because they conflict with a provision of the Open Public Records Act,

N.J.S.A. 47:1A-10 (section 10), a regulation promulgated by the Department

of Law and Public Safety, N.J.A.C. 13:1E-3.2(a)(4), and various Executive

Orders, most notably Executive Order 11 (Byrne), all of which protect the

confidentiality of personnel records of public employees. Petitioners also

maintain the Attorney General promulgated the Directives in violation of the

Administrative Procedures Act and acted outside his authority by giving them

retroactive application; that the Directives violate the equal protection rights of

affected officers; violate the due process rights of affected officers; violate

officers' constitutional rights to collective negotiations and against the

impairment of contracts; violate the doctrines of promissory and equitable

estoppel; and, finally, that the Directives are arbitrary, capricious and

unreasonable and against public policy.

We granted several petitioners leave to file emergent applications to stay

implementation of the Directives pending their appeal. We subsequently

entered a stay, over objection by the Attorney General, in order to preserve

A-3950-19T4 7 petitioners' challenge pending our disposition and accelerated the appeals in

light of the pressing public interest. We thereafter consolidated the appeals on

the Attorney General's motion.

We also granted the motion of the New Jersey State Association of

Chiefs of Police to appear as amicus curiae in support of petitioners' arguments

against the Directives. The Association, whose members are responsible for

the day-to-day operations of police departments throughout the State, echo

petitioners' claim that the Directives undermine long-standing public policy,

embodied in section 10 of OPRA and N.J.A.C. 13:1E-3.2(a)(4), regarding the

confidentiality of the internal affairs process and protecting the identity of

officers who are disciplined. The Association further argues the Directives are

arbitrary and capricious because they are not designed to achieve the Attorney

General's stated goals. In particular, the Association claims the Directives do

not limit the discipline requiring the release of names to instances where

officers violated the public trust and unnecessarily extend to former officers,

because officers seeking to transfer between law enforcement agencies are

subjected to thorough background checks — that would reveal any prior

discipline — before being hired.

A-3950-19T4 8 We also granted the motions of several other organizations for amicus

status arguing in support of the Directives. Amicus American Civil Liberties

Union of New Jersey argues making police discipline records public, including

historic records, provides citizens with critical information about both officers

and departments, and that transparency promotes confidence in police, which

in turn promotes community trust in law enforcement institutions. ACLU-New

Jersey also notes that complaints made against other regulated professionals

and tradespeople in New Jersey are public, including those against lawyers,

judges, plumbers and manicurists, and that other states have made police

discipline records public without the negative consequences about which

appellants warn.

Amicus ACLU-New Jersey makes those arguments on behalf of itself

and its members, as well as the Bayard Rustin Center for Social Justice, the

Cherry Hill Women's Center, the Ethical Culture Society of Bergen County,

Faith in New Jersey, the Latino Action Network, LatinoJustice PRLDEF, the

Legal Advocacy Project of UU FaithAction New Jersey, Libertarians for

Transparent Government, the National Association for the Advancement of

Colored People, New Jersey State Conference, NAACP Newark, the National

Organization for Women of New Jersey, Newark Communities for

A-3950-19T4 9 Accountable Policing, the New Jersey Alliance for Immigrant Justice, the New

Jersey Campaign for Alternatives to Isolated Confinement, New Jersey Clergy

Coalition for Justice, the New Jersey Institute for Social Justice, Partners for

Women and Justice, the People's Organization for Progress, Salvation and

Social Justice, Service Employees International Union 32BJ, SPAN Parent

Advocacy Network, Volunteer Lawyers for Justice, and Women Who Never

Give Up.

Amici Association of Criminal Defense Lawyers of New Jersey and the

New Jersey State Office of the Public Defender argue the Directives promote

enhanced access in criminal cases to the discovery of prior police misconduct.

They contend information about such misconduct is admissible, relevant

evidence relating to an officer's credibility, particularly in light of the recent

amendment to N.J.R.E. 608, and that such discovery is consistent with New

Jersey’s broad, open-file discovery rules and with the State’s constitutional

obligation to produce exculpatory evidence. They maintain the current failure

to name police officers who engage in misconduct inhibits discovery of

relevant police misconduct records and creates substantial risk of erroneous

charges and convictions. These amici argue that by linking officers to their

specific acts of misconduct, the Directives promote discovery of evidence that

A-3950-19T4 10 can be used at all stages of the criminal justice process, from charging

decisions to post-conviction relief, thereby improving the administration of

justice. They note that release of historical information of misconduct could

be especially important to those individuals wrongly convicted and pursuing

post-conviction relief.

Finally, amici National Coalition of Latino Officers and the Law

Enforcement Action Partnership argue that when internal affairs and

disciplinary information is kept secret, the community has no way of knowing

whether investigations are thorough and fair and whether officers are properly

held accountable for their actions. When communities are deprived of such

information, it leads them to believe internal affairs complaints are not taken

seriously, and that misconduct is swept under the rug, causing them to distrust

the police. These amici contend that when police departments have not earned

the community’s respect, it makes the jobs of all police officers much more

difficult and dangerous. They also argue that transparency will expose

disparities in discipline and allow the public — and officers — to see whether

discipline is imposed consistently, which will particularly benefit Black and

Latino officers and women who work in law enforcement agencies that are

overwhelmingly white and male. These amici contend the Directives will

A-3950-19T4 11 expose suspected disparities, better protect minority officers from

discrimination and retaliation and improve the disciplinary system for all

officers.

Having reviewed the Directives, considered the briefs filed by the parties

and amici, and heard extensive oral argument by very able advocates, we

conclude the Attorney General acted within the authority conferred on him by

the Legislature in the Law and Public Safety Act of 1948, the Criminal Justice

Act of 1970, and N.J.S.A. 40A:14-181 in issuing Directives 2020-5 and

2020-6, and they therefore withstand petitioners' facial challenge. See In re

Stallworth, 208 N.J. 182, 194-95 (2011) (noting review of agency decisions is

limited to determining whether the decision violated express or implied

legislative policies, whether the record contains adequate support for the

findings and whether the agency clearly erred by reaching a conclusion that

could not reasonably have been reached). We do not pass on the wisdom of

the policy embodied in these Directives, which appellants assail as an

imprudent overreaction to recent events that will needlessly shame officers,

put their safety and that of their families at risk, disclose sensitive medical

information and possibly identify the victims of domestic violence.

A-3950-19T4 12 The erosion of confidence in our law enforcement agencies is a serious

problem, and it is enough that the Attorney General, New Jersey's chief law

enforcement officer tasked with the general supervision of criminal justice in

our State, has determined that publishing the names of officers incurring major

discipline for misconduct will increase public trust in those agencies and make

them more accountable to the communities they serve. It is not for this court

to assess the Attorney General's policy choice. Our only focus is on his

authority to implement the policy choice he has made.

The Attorney General has candidly acknowledged the sea change these

Directives represent in his Department's approach to publication of the names

of law enforcement officers subject to final discipline for serious misconduct.

As appellants note, the Attorney General was only three months ago in our

Supreme Court arguing against the release of the name of a trooper separated

from the State Police in 2015 for "acting in an unofficial capacity to the

discredit of the Division while off-duty by having questionable associations,

engaging in racially offensive behavior and publicly discussing police patrol

procedures." See Libertarians for Transparent Gov't v. State Police, 239 N.J.

518 (2019) (granting plaintiff's petition for certification as to whether section

10 requires disclosure of the name of a state trooper listed in the Office of

A-3950-19T4 13 Professional Standard’s annual report to the Legislature as having been

terminated for misconduct). Following the filing of these appeals, the

Attorney General released the name of that trooper, which it had successfully

shielded from disclosure in the Law Division and this court, settled that suit,

and the parties dismissed the appeal pending in the Supreme Court.

Libertarians for Transparent Gov't v. State Police, __ N.J. __ (2020).

Although we are convinced of the Attorney General's authority to release

the names of law enforcement officers receiving major discipline, including

those having incurred the discipline in or after 2000 but before issuance of

Directives 2020-5 and 2020-6, and thus uphold the facial validity of the

Directives, appellants have raised issues about the retrospective application of

the Directives to particular individuals that cannot be resolved on these

appeals. The Attorney General conceded at oral argument that individual

officers may have contract rights arising out of prior specific settlements of

internal discipline, and we think it possible some may have other claims and

concerns about how these new directives apply to them. Our conclusion that

the Directives constitute a valid exercise of the Attorney General's authority

does not preclude any officer from bringing an as-applied challenge to

A-3950-19T4 14 publication of his or her name pursuant to Directives 2020-5 and 2020-6 for

discipline finalized before release of those Directives.

The Attorney General's Authority over the Department of Law and Public Safety, Internal Affairs and the IAPP.

The Attorney General is New Jersey's "chief law enforcement officer,"

N.J.S.A. 52:17B-98, and head of the Department of Law and Public Safety,

N.J.S.A. 52:17B-2. Prado v. State, 186 N.J. 413, 422 (2006). "[I]n order to

secure the benefits of a uniform and efficient enforcement of the criminal law

and the administration of criminal justice," the Legislature in the Criminal

Justice Act of 1970, N.J.S.A. 52:17B-97 to -117, "declared [it] to be 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." N.J.S.A. 52:17B-98.

As part of his supervisory obligations for the Department of Law and

Public Safety under the Law and Public Safety Act of 1948, the Attorney

General is charged with "formulat[ing] and adopt[ing] rules and regulations for

the efficient conduct of the work and general administration of the department,

its officers and employees," N.J.S.A. 52:17B-4(d). See In re Carberry, 114

N.J. 574, 578 (1989). Attorney General Del Tufo in 1991 exercised that

authority, as well has his authority under the Criminal Justice Act of 1970,

A-3950-19T4 15 N.J.S.A. 52:17B-98, in establishing the first IAPP, which set forth standards,

policies and procedures for the internal affairs function for the State's law

enforcement agencies, including the establishment of "a viable process for the

receipt and investigation of citizen complaints concerning police conduct."

See Fraternal Order of Police, Newark Lodge No. 12 v. City of Newark, __

N.J. __ (2020) (slip op. at 33).

In 1996, the Legislature required police departments to adopt and

implement guidelines consistent with the IAPP in N.J.S.A. 40A:14-181. As

our Supreme Court recently noted, "[s]ection 181 effectively made the AG's

IAPP required policy for all municipal law enforcement agencies in New

Jersey." Fraternal Order of Police, __ N.J. at __ (slip op. at 34).

The IAPP, which has been amended several times over its nearly thirty

years' existence, has always stressed the importance of the confidentiality of

internal affairs processes and investigations. In its first iteration in 1991, the

IAPP provided that "[t]he progress of internal affairs investigations and all

supporting materials are considered confidential information." 1991 IAPP at

15. The 2019 revision likewise provides that "[t]he nature and source of

internal allegations, the progress of internal affairs investigations, and the

resulting materials are confidential information." 2019 IAPP at 9.6.1. The

A-3950-19T4 16 Attorney General continues to maintain that confidentiality is critical to the

integrity of internal investigations and necessary to protect the privacy of

complainants and witnesses. He also notes, however, that his predecessors

have made clear that this confidentiality has limits.

Specifically, Attorney General Grewal points to the first IAPP issued in

1991, which, while requiring the contents of IA files to be "clearly marked as

confidential" and kept under lock and key in the IA unit, also empowered the

police executive "to release publicly the details of an internal investigation or

disciplinary action." 1991 IAPP at 15. Further, in addition to requiring that

officers subject to an IA investigation be provided with a copy of the decision

and accompanying findings, every iteration of the IAPP has also required

complainants to be notified of the disposition of his or her complaint and

provided an explanation for the outcome. See 1991 IAPP at 15; 1992 IAPP at

15; 2000 IAPP at 11-6; 2011 IAPP at 24-25; 2014 IAPP at 22; 2019 IAPP at

6.3.16-6.3.18.

The 2000 version of the IAPP issued by Attorney General Farmer

reiterated the emphasis on the confidentiality of "the nature and source of

internal allegations" and "the progress of internal affairs investigations,"

requiring that "[t]he contents of the internal investigation case files shall be

A-3950-19T4 17 retained in the internal affairs unit and clearly marked as confidential." 2000

IAPP at 11-46. It also made explicit what was previously only implied, that is,

that the "information and records" of internal investigations could be released

at the direction of the Attorney General or responsible county prosecutor.

Ibid. In contrast, the 2000 version also clarified that the ability of the law

enforcement executive to authorize release of confidential internal affairs

information was limited to a particular file or record and subject to a "good

cause" standard. Ibid. Every version of the IAPP since has contained identical

language permitting the Attorney General to release information and records of

internal affairs investigations without qualification.

Public Reporting of Complaints Against Law Enforcement.

Every iteration of the IAPP has required local law enforcement agencies

to make available to the public an annual report, statistical in nature,

summarizing the types of complaints received and the dispositions of those

complaints. In the 2011 version of the IAPP, each agency became additionally

obligated to "periodically release a brief synopsis of all complaints where a

fine or suspension of ten days or more was assessed to a member of the

agency." 2011 IAPP at 50. Until the Attorney General amended the 2019

version of the IAPP by Directive 2020-5, those public reports, now required to

A-3950-19T4 18 be published on the agency's website, were not to include "the names of . . .

subject officers." See 2019 IAPP at 9.11.1.

In 2001, the Legislature required the State Police to begin filing annual

reports of complaints of misconduct by troopers made by members of the

public. N.J.S.A. 53:1-10.1 provides "[i]t shall be the duty of the

Superintendent of State Police to compile and submit to the Governor and the

Legislature an annual report with regard to complaints of misconduct made by

members of the public against members of the State Police." The Senate

Judiciary Committee statement to the bill noted the Division of State Police

did not then "disclose any information concerning complaints by members of

the public of misconduct on the part of State Police officers," and that the bill

"mirror[ed] the present reporting requirements applicable to local law

enforcement agencies with regard to civilian complaints." Senate Judiciary

Comm. Statement to S. 650 (Jan. 31, 2000). The statute, like the IAPP it

mirrored prior to its recent amendment by Directive 2020-5, prohibits the

report from disclosing the identity of troopers accused of, or sanctioned for,

misconduct. N.J.S.A. 53:1-10.1 ("The report shall be a statistical compilation

and shall not disclose personal identifiers of either the complainant or the

member of the State Police.").

A-3950-19T4 19 Appellant, New Jersey Superior Officers Law Enforcement Association,

has included in its appendix copies of several of the annual reports prepared by

the Division's Office of Professional Standards pursuant to N.J.S.A. 53:1-10.1.

In addition to explaining how the disciplinary system operates, the reports

include statistical summaries of complaints, classified by type, and compared

across years, as well as summary descriptions of completed discipline for

violations resulting in suspensions exceeding five days. Those summary

descriptions are brief statements identifying the violations, synopsizing the

misconduct, and noting the discipline imposed. They do not identify the

trooper disciplined.

A typical example of these summaries, and one the Attorney General has

already litigated in Libertarians for Transparent Government v. State Police, is

from the 2015 report, where it appears among instances of major discipline. It

provides:

Member pled guilty to acting in an unofficial capacity to the discredit of the Division while off-duty by having questionable associations, engaging in racially offensive behavior and publicly discussing police patrol procedures. The member was required to forfeit all accrued time and separate from employment with the Division.

A-3950-19T4 20 As several appellants refer to this particular matter in their briefs and it

provides a convenient example of the disciplinary information the Attorney

General seeks to release to the public by Directives 2020-5 and 2020-6, we

include it here and discuss it further below.

Directives 2020-5 and 2020-6

In Directive 2020-5, "Requiring Public Disclosure of the Identities of

Officers Who Commit Serious Disciplinary Violations," the Attorney General

notes that "[f]or decades, New Jersey has treated a police department's internal

disciplinary files — generally known as 'internal affairs' records — as highly

confidential, in line with the way that personnel records for all public

employees are usually treated." He acknowledged the "good reasons why

internal affairs records are not generally disclosed to the public, including the

need to protect those who report and witness police misconduct," and the

unfairness of "publicly disclos[ing] unproven allegations against officers."

He also notes, however, that "law enforcement officers are entrusted

with extraordinary responsibility," making it "imperative" that they "maintain

the highest standards of good discipline and conduct." The Attorney General

explained that degree of responsibility provides "a stronger rationale for public

A-3950-19T4 21 disclosure" when a law enforcement agency makes a final determination an

officer "has violated agency rules in a way that warrants professional

sanctions." And, he concluded, "the more significant the violation, the more

important it is that the public knows about the misconduct."

The Attorney General reviewed the changes he made in the December

2019 revision to the IAPP, which "strengthened oversight of internal affairs"

and allowed internal affairs files to be shared with civilian review boards with

procedural safeguards, which he characterized as "one of the most substantial

revisions to IAPP since its initial publication," and "a significant step forward

in promoting accountability and strengthening public confidence in law

enforcement." Among the changes he highlighted was the requirement in

IAPP 2019 at 9.11.2, that all local law enforcement agencies publish annually

on their websites a synopsis summarizing all disciplinary complaints, whether

by members of the public or internal to the agency, resulting in an officer

receiving a fine or suspension of ten days or more but not requiring the

identity of the officer be disclosed.

Explaining his reasons for concluding, so soon after the 2019 revisions

to the IAPP, that it was now necessary to disclose the identities of law

A-3950-19T4 22 enforcement officers who were terminated, reduced in rank or grade or

suspended for misconduct for more than five days, the Attorney General wrote:

After further review, I believe that even this significant set of changes does not go far enough. 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.

It is time to end the practice of protecting the few to the detriment of the many. The vast majority of law enforcement officers in New Jersey serve with honor and astonishing courage under extremely difficult circumstances. Most go through their entire careers without engaging in conduct that warrants a major disciplinary action against them. But their good work is easily undermined — and quickly forgotten — whenever an officer breaches the public's trust and dishonors the entire profession. 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.

A-3950-19T4 23 Invoking the authority vested in him under the State Constitution, the

Criminal Justice Act of 1970, and section 181, the Attorney General in

Directive 2020-5 amended the IAPP to provide for the disclosure of the

identities of officers subject to termination, reduction in rank or grade, or

suspension of over five days:

9.11.1 On an annual basis, every law enforcement agency shall publish on its public website a report summarizing the types of complaints received and the dispositions of those complaints. This report can should be statistical in nature, and the names of complainants and subject officers shall not be published.

9.11.2 On a periodic basis, and at least once a year, every agency shall submit to the County Prosecutor and publish on the agency's public website a brief synopsis of all complaints where a fine or termination, reduction in rank or grade, and/or suspension of ten days or more than five days was assessed to an agency member. This synopsis shall include the identity of each officer subject to final discipline, a brief summary of their transgressions, and a statement of the sanction imposed. This synopsis shall not contain the identities of the officers or complainants but should briefly outline the nature of the transgression and the fine or suspension imposed. An example of a synopsis is found in Appendix U.

A-3950-19T4 24 As earlier mentioned, the Directive requires each law enforcement

agency to publish its first report in compliance with revised section 9.11.2 by

December 31, 2020, covering all discipline imposed during the calendar year,

and expressly states it shall not "be construed in any way to create any

substantive right that may be enforced by any third party." Directive 2020-5

also notes that nothing therein prevented local "agencies from releasing similar

information regarding historical incidents of officer misconduct," and noted

the law enforcement agencies within the Department of Law & Public Safety

would shortly publish the names of officers receiving major discipline going

back twenty years. Specifically, the Directive informed that "State Police,

which since 2000 has published an annual report summarizing incidents of

major discipline that does not disclose the identities of the State Troopers,

intends to update these annual reports with the Troopers’ names no later than

July 15, 2020."

In Directive 2020-6, "Requiring Public Disclosure of the Identities of

Department's Officers Who Committed Serious Disciplinary Violations Since

2000," issued four days later on June 19, 2020, the Attorney General relied on

the reasoning set forth in Directive 2020-5, explaining Directive 2020-6

complemented it "by ordering additional transparency measures for the

A-3950-19T4 25 agencies that employ law enforcement officers within the Department of Law

and Public Safety." The Attorney General explained that

[s]haring the identities of individuals who received major discipline [1] will allow for public scrutiny and improve the culture of accountability among the Department's law enforcement agencies. That is true even where an individual no longer works for the relevant agency, as many 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

1 "Under the Administrative Code, 'major discipline' and 'minor discipline' have defined meanings based on the quantum of punishment imposed. The terms do not categorize the seriousness or type of underlying incident, as opposed to the punishment imposed." Stallworth, 208 N.J. at 198.

"Major discipline" is defined as including removal, disciplinary demotion, and suspension or fine for more than five working days at any one time. N.J.S.A. 34:13A-5.3; N.J.A.C. 4A:2-2.2(a). By contrast, "minor discipline" is defined as a formal written reprimand or a suspension or fine of five working days or less. N.J.S.A. 34:13A-5.3; N.J.A.C. 4A:2-3.1(a).

Under N.J.A.C. 4A:2-2.3, 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 as set forth in L. 2011, c. 70; and (12) other sufficient cause.

A-3950-19T4 26 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 in the New Jersey State Police, the Division of Criminal Justice, and the Juvenile Justice Commission, who — like the officers of other law enforcement agencies — serve with honor and astonishing courage under extremely difficult circumstances. Releasing the identities of those who committed major disciplinary infractions will show that all the remaining officers did not commit such an infraction — which will help to build significant trust between these law enforcement officers and the communities they serve.

Drawing on his authority under the Law and Public Safety Act of 1948,

in addition to the powers vested in him in the State Constitution and the

Criminal Justice Act of 1970, the Attorney General in Directive 2020-6

ordered the Division of State Police, the Division of Criminal Justice and the

Juvenile Justice Commission to "each publish on its public website a brief

synopsis of all complaints where a termination, reduction in rank or grade,

and/or suspension of more than five days was assessed to a law enforcement

officer since January 1, 2000." In accord with Directive 2020-5, the synopses

are to "include the identity of each officer subject to a final disciplinary action,

a summary of their transgressions, and a statement of the sanction imposed."

A-3950-19T4 27 Directive 2020-6 further orders each division "[a]t least seven days prior

to the publication of the synopses" to "provide notice to each officer it intends

to identify, whenever possible." In those "cases where the officer is no longer

employed by the division," it is to "make reasonable efforts to contact the

officer at their last known residential address, email address, or phone

number." As in Directive 2020-5, Directive 2020-6 states it is not to "be

construed in any way to create any substantive right that may be enforced by

any third party."

The Attorney General's Authority to Issue Directives 2020-5 and 2020-6.

Appellants necessarily acknowledge the Attorney General possesses

explicit authority under the Criminal Justice Act of 1970 and section 181 to

amend the IAPP, and under the authority of those statutes and the Law and

Public Safety Act of 1948 to establish disciplinary policy generally for the law

enforcement agencies within the Department of Law and Public Safety. Their

primary argument on these appeals is that he lacks the authority to amend the

IAPP and Departmental internal affairs policy so as to attach an officer's name

to the summary descriptions of completed discipline that local law

enforcement agencies were ordered to publish annually in the 2019 version of

the IAPP and that State Police has been publishing since 2000. Appellants

A-3950-19T4 28 contend adding officers' names conflicts with section 10 of OPRA; a regulation

first adopted by the Department when OPRA was enacted, N.J.A.C.

13:1E13.2(a)(4); and various executive orders, most notably Executive Order

11 (Byrne), all of which protect the confidentiality of personnel records.

The simplest rejoinder to appellants' argument that the Directives violate

section 10 of OPRA and the Department's government records regulation,

suggested by amici National Coalition of Latino Officers and the Law

Enforcement Action Partnership, is that this is not an OPRA case. OPRA is

New Jersey's government records access statute, which provides a

comprehensive framework to enable citizens to swiftly access government

records, and includes a fee-shifting provision that requires an award of a

reasonable attorney's fee to a prevailing requester. See Mason v. City of

Hoboken, 196 N.J. 51, 57 (2008). Petitioners here are not citizens seeking

records in pursuit of the "salutary goal . . . to maximize public knowledge

about public affairs in order to ensure an informed citizenry and to minimize

the evils inherent in a secluded process." Asbury Park Press v. Ocean Cty.

Prosecutor's Office, 374 N.J. Super. 312, 329 (Law Div. 2004). They are

police unions seeking to block the Attorney General's efforts to make more

transparent the secluded internal affairs process in the State's law enforcement

A-3950-19T4 29 agencies by publishing the names of officers receiving major discipline for

misconduct.

Were this an OPRA case, with third parties seeking the information the

Attorney General has determined to release in Directives 2020-5 and 2020-6,

those third parties would not be entitled to the information under OPRA. As

we recently held in Libertarians for Transparent Gov't v. Cumberland Cty., __

N.J. Super. __, __ (App. Div. 2020) (slip op. at 1, 13), a public employee's

internal disciplinary records, including "a settlement agreement resolving an

internal disciplinary action," are not "government records" under OPRA but

instead are classified as "personnel record[s] exempt from disclosure under

section 10 of the statute." The Attorney General has likewise taken pains to

make clear that Directives 2020-5 and 2020-6 were issued "pursuant to the

Attorney General's authority to ensure the uniform and efficient enforcement

of the laws and administration of criminal justice throughout the State" and are

not to be construed "to create any substantive right that may be enforced by

That OPRA requestors would be denied access to the disciplinary

information the Attorney General has ordered published in the challenged

Directives does not, however, answer the question of whether the Attorney

A-3950-19T4 30 General has the authority to direct that information be published. The

Attorney General argues the personnel information he has ordered published in

Directives 2020-5 and 2020-6 is no different from other types of information

deemed confidential in the Department's government records regulation,

N.J.A.C. 13:1E-3.2(a), such as "materials that may reveal: case or matter

specific legal strategy or advice, attorney work product, attorney-client

privileged material, or other privileged material." N.J.A.C. 13:1E-3.2(a)(3).

He contends "the regulation means only that an agency does not have to

release [the records shielded by the regulation] — [the Department] could still

choose to do so."

Specifically, the Attorney General reasons that because "it is well

understood that the Department can disclose attorney work product and

attorney-client privileged material if it believes disclosure is beneficial," the

regulation likewise does not prevent his disclosure of "[r]ecords, specific to an

individual employee or employees . . . and relating to or which form the basis

of discipline, discharge, promotion, transfer, employee performance, employee

evaluation, or other related activities, whether open, closed, or inactive."

N.J.A.C. 13:1E-3.2(a)(4). We reject that argument for what it posits about

protection of personnel records under OPRA.

A-3950-19T4 31 There is no question but that "an exemption from a right of public access

to a government record can be established . . . by administrative rule."

Slaughter v. Gov't Records Council, 413 N.J. Super. 544, 550 (App. Div.

2010); see also N.J.S.A. 47:1A-9(a) (providing OPRA does not "abrogate any

exemption of a public record or government record from public access

heretofore made pursuant to [the Right to Know Law]; any other statute;

resolution of either or both Houses of the Legislature; regulation promulgated

under the authority of any statute or Executive Order of the Governor;

Executive Order of the Governor; Rules of Court; any federal law; federal

regulation; or federal order"). It is equally clear, of course, that the

Department's government records regulation, N.J.A.C. 13:1E-3.2, cannot

override legislative policy or give OPRA greater effect than permitted by the

statute itself.2 See In re Adoption of N.J.A.C. 7:26B, 128 N.J. 442, 450

(1992); see also O'Shea v. Twp. of W. Milford, 410 N.J. Super. 371, 385 (App.

2 It is for this reason that we reject appellants' argument that the regulation provides an independent source for protecting the disciplinary information the Directives require be released. If OPRA does not prevent the Attorney General from publicly releasing the disciplinary information called for in the Directives, N.J.A.C. 13:1E-3.2 certainly will not do so. See Reilly v. AAA Mid-Atlantic Ins. Co. of N.J., 194 N.J. 474, 486 (2008) (explaining that an agency may not alter the terms of a statute or frustrate the legislative policy embodied therein by adoption of an implementing regulation).

A-3950-19T4 32 Div. 2009) (noting "[a]bsent specific legislative leave, no agency is authorized

to deviate from expressed or implied legislative policies").

The Attorney General's argument posits that OPRA is simply a "floor"

below which the government cannot go in refusing access to public records.

Although that may be true in many instances, and certainly appears correct

when applied to the work product and attorney-client privileges the Attorney

General proffers in his example, the analogy breaks down when applied to

personnel records of government employees. As we explained in Libertarians

for Transparent Gov't v. Cumberland Cty., ___ N.J. Super. at ___ (slip op. at

21), "personnel records of government employees have historically been

treated differently from other sorts of public records." Well before OPRA,

Governor Byrne in Executive Order 11 directed that "[e]xcept as otherwise

provided by law . . . an instrumentality of government shall not disclose to

anyone other than a person duly authorized by this State or the United States to

inspect such information in connection with his official duties, personnel or

pension records of an individual," with the now-familiar exception for an

employee's name, title, position, salary, length of service, date of separation

and the reason therefor, as well as the amount and type of pension the

employee is receiving, all of which "shall be public." Id. at 22-24 (quoting

A-3950-19T4 33 Exec. Order No. 11 (Nov. 15, 1974) 1 Laws of New Jersey 1974 765, available

at https://nj.gov/infobank/circular/eob11.shtml).

Michelson v. Wyatt, 379 N.J. Super. 611, 619-20 (App. Div. 2005),

underscores that determining whether a document is subject to disclosure

under OPRA is "a multi-layered process," in which "[c]are must be taken to

determine the nature of the information sought by plaintiff and whether any

regulations, executive orders or federal law operate to render the information

confidential." Because OPRA expressly does not abrogate Executive Orders

of the Governor, Executive Order 11 remains operative. N.J.S.A. 47:1A-9;

Libertarians for Transparent Gov't v. Cumberland Cty., ___ N.J. Super. at ___

(slip op. at 27-28).

Thus, as to personnel and pension records, OPRA is not simply a "floor,"

permitting the Attorney General to release such records if he "choose[s] to do

so." Instead, section 10 represents the State's public policy to protect the

personnel records of public employees from disclosure. Id. at 16. The

Attorney General, like any other "instrumentality of government," may not

disclose an individual's personnel or pension records to anyone not authorized

by the State or federal governments to inspect them in connection with their

A-3950-19T4 34 official duties, "[e]xcept as otherwise provided by law."3 See Exec. Order No.

11 (Nov. 15, 1974); N.J.S.A. 47:1A-9; Libertarians for Transparent Gov't v.

Cumberland Cty., ___ N.J. Super. at ___ (slip op. at 21).

Accordingly, we think the Attorney General on firmer footing when he

argues he is authorized to release the disciplinary information called for in

Directives 2020-5 and 2020-6 because the information is "required to be

disclosed by another law." Executive Order 11, section 10 and the

Department's government records regulation all permit release of an

3 We also reject any notion that the disciplinary information the Attorney General has ordered released pursuant to Directives 2020-5 and 2020-6 does not constitute a "personnel record" for the purpose of this analysis. IAPP 9.12.1 provides that "[p]ersonnel records are separate and distinct from internal affairs investigation records, and internal affairs investigative reports shall never be placed in personnel records, nor shall personnel records be co- mingled with internal affairs files." Section 9.12.2 makes plain that even in the event that "a complaint is sustained and discipline imposed, the only items to be placed into the employee's personnel file are a copy of the administrative charging form and a copy of the disposition form." While the Attorney General has obvious good reason to distinguish between internal affairs records and personnel records and files in the IAPP, his characterization of the records is not controlling for purposes of OPRA. See McGee v. Twp. of E. Amwell, 416 N.J. Super. 602, 616 (App. Div. 2010) (noting section 10's exemption for personnel records "is not limited to the items included in a personnel file"); see also Libertarians for Transparent Gov't v. Cumberland Cty., ___ N.J. Super. at ___ (slip op. at 1) (holding "a settlement agreement resolving an internal disciplinary action against a public employee is . . . a personnel record exempt from disclosure under section 10"). The disciplinary information the Attorney General has ordered made public in the Directives clearly comes under the heading of personnel records for purposes of OPRA.

A-3950-19T4 35 individual's personnel or pension records "when required to be disclosed" or

when "otherwise provided by" another law. N.J.S.A. 47:1A-10; Exec. Order

No. 11; N.J.A.C. 13:1E-3.2(a)(4) (prohibiting disclosure of records "other than

those . . . enumerated in N.J.S.A. 47:1A-10 as available for public access").

The Legislature has designated the Attorney General as New Jersey's

"chief law enforcement officer," responsible "for the general supervision of

criminal justice" in the State, N.J.S.A. 52:17B-98, and charged him with

"formulat[ing] and adopt[ing] rules and regulations for the efficient conduct of

the work and general administration of the [D]epartment," N.J.S.A. 52:17B-

4(d). Attorney General Del Tufo exercised that responsibility "to issue the

IAPP in 1991," Fraternal Order of Police, __ N.J. at __ (slip op. at 47), and his

successors did so in issuing its subsequent amendments, which "[s]ection 181

effectively made . . . required policy for all municipal law enforcement

agencies in New Jersey," id. at 34. The Legislature's investiture of that

authority in the Attorney General in those several statutes is "another law" that

permits the Attorney General to make the internal affairs process more

accessible to the public by ordering the publication of the names of New

Jersey law enforcement officers sanctioned for serious disciplinary violations.

For that reason, we are satisfied Directives 2020-5 and 2020-6 do not violate

A-3950-19T4 36 Executive Order 11, section 10 or the Department's government records

regulation.

Appellants argue the Attorney General cannot "abrogate" Executive

Order 11 or section 10 of OPRA "through a Directive." Although that

argument appears formidable when first considered, it is less so on reflection,

because it ignores why our courts have determined that Attorney General

directives have "the force of law for police entities." O'Shea, 410 N.J. Super.

at 382. Those directives have the force of law because the Legislature has

expressly provided "the Attorney General[] statutory power to adopt

guidelines, directives, and policies that bind law enforcement throughout our

State." Paff v. Ocean County Prosecutor's Office, 235 N.J. 1, 20-21 (2018);

see also N. Jersey Media Grp., Inc. v. Twp. of Lyndhurst, 229 N.J. 541, 565

(2017) (noting because Use of Force Reports are "required by law to be made"

by the Attorney General's Use of Force Policy, they are not exempt from

disclosure under OPRA's criminal investigatory records exemption).

Said another way, Attorney General directives have the force of law for

police entities in New Jersey because the Legislature has deemed it to be so.

Nowhere is that clearer than in the case of the IAPP, which the Legislature has

expressly required every law enforcement agency in the State follow by

A-3950-19T4 37 "adopt[ing] and implement[ing] guidelines" consistent with it. See N.J.S.A.

40A:14-181; O'Shea, 410 N.J. Super. at 383. In issuing Directives 2020-5 and

2020-6, the Attorney General did not usurp power; he exercised powers the

Governor and the Legislature expressly accorded him. See Commc'ns Workers

of Am., AFL-CIO v. Christie, 413 N.J. Super. 229, 257 (App. Div. 2010)

(discussing cooperative allocation of power between executive and legislative

branches of government). Because the Legislature has invested the Attorney

General with authority to direct the entirety of the State's law enforcement

apparatus through "guidelines, directives, and policies that bind law

enforcement throughout our State," Paff, 235 N.J. at 20-21, we are satisfied

Directives 2020-5 and 2020-6 were issued pursuant to "another law" for

purposes of Executive Order 11 and section 10 of OPRA, and that the Attorney

General has not "abrogated" either via directive.

There is another significant flaw in appellants' arguments against the

Attorney General's authority to issue Directives 2020-5 and 2020-6 based on

the confidentiality afforded all public employees in their personnel records by

Executive Order 11 and section 10. Appellants fail to acknowledge that while

OPRA does not differentiate between police officers and other public

employees, section 181 does by granting the Attorney General exclusive

A-3950-19T4 38 authority over internal affairs policy for the State's law enforcement agencies,

and thus over the processes governing officer discipline. See Williams v. Am.

Auto Logistics, 226 N.J. 117, 126 (2016) (relying on "the oft-stated principle

of statutory construction that a specific statutory declaration prevails over a

more general one").

And, significantly, every iteration of the IAPP has either authorized or

mandated the public disclosure of some information that would otherwise be

barred by Executive Order 11 and section 10, most notably by permitting the

public release of the details of any internal investigation or disciplinary action,

and mandating that individual citizens be notified of the disposition of their

complaints of police misconduct and provided an explanation for the outcome. 4

Moreover, since the 2000 version of the IAPP, issued prior to OPRA's passage,

every iteration of the IAPP has expressly provided that the information and

records of an internal investigation could be released at the direction of the

Attorney General, an authority the Legislature has never acted to limit or

4 Disclosure of internal affairs information is also routinely made for other purposes, including satisfying the State's obligations in criminal cases under Brady v. Maryland, 373 U.S. 83 (1963), or State v. Harris, 316 N.J. Super. 384 (App. Div. 1998), and satisfying discovery obligations in civil matters, see Bayer v. Twp. of Union, 414 N.J. Super. 238, 273 (App. Div. 2010).

A-3950-19T4 39 curtail.5 See J.H. v. R & M Tagliareni, LLC, 239 N.J. 198, 216 (2019) (noting

an agency's construction of a statute over years without legislative interference

generally evidences its conformity with the legislative intent).

Section 181's distinction of law enforcement officers reflects a decades-

long recognition by both the Legislature and the courts that "police officers are

different from other public employees." City of Jersey City v. Jersey City

Police Officers Benevolent Ass'n, 154 N.J. 555, 572 (1998). It was fifty-five

years ago that we said "[i]t must be recognized that a police officer is a special

5 We do not consider N.J.S.A. 53:1-10.1, the statute requiring State Police to submit an annual report to the Legislature and the Governor of misconduct complaints by members of the public, without disclosing personal identifiers, as contrary, largely because of its limited scope. As already mentioned, the Senate Judiciary Committee statement to the bill that became N.J.S.A. 53:1- 10.1 noted it "mirror[ed] the present reporting requirements applicable to local law enforcement agencies with regard to civilian complaints," Senate Judiciary Comm. Statement to S. 650 (Jan. 31, 2000), undoubtedly referring to the public reports mandated under the 1992 version of the IAPP, which was in effect in January 2000, when the bill was introduced. The statute is limited as it imposes a reporting obligation only on the Superintendent of State Police, not the Attorney General, and addresses only complaints of misconduct made by members of the public against members of the State Police. It in no way limits the Attorney General's broad authority over internal affairs. We note also from the reports in the appendix that the information provided in those annual reports substantially exceeds that required by statute, presumably at the direction of the Attorney General, particularly as it addresses all discipline imposed, not just those instances resulting from complaints by members of the public.

A-3950-19T4 40 kind of public employee." Moorestown v. Armstrong, 89 N.J. Super. 560, 566

(App. Div. 1965). Explaining why, we wrote that an officer's

primary duty is to enforce and uphold the law. He carries a service revolver on his person and is constantly called upon to exercise tact, restraint and good judgment in his relationship with the public. He represents law and order to the citizenry and must present an image of personal integrity and dependability in order to have the respect of the public.

[Ibid.]

Twenty-two years ago, the Court wrote it was because our courts and the

Legislature had long recognized that "police officers are different from other

public employees," that we likewise recognized "the scope of discretion

accorded to the public entities that administer police departments is necessarily

broad." City of Jersey City, 154 N.J. at 572. Police officers are held to higher

standards of conduct than other public employees. In re Disciplinary

Procedures of Phillips, 117 N.J. 567, 577 (1990). And we've held a police

officer will not be heard to "complain that he is being held up as a model of

proper conduct" because it is "one of the obligations [an officer] undertakes

upon voluntary entry into the public service." Appeal of Emmons, 63 N.J.

Super. 136, 141-42 (App. Div. 1960).

A-3950-19T4 41 Because we entrust police officers "to carry firearms, drive emergency

vehicles, and 'exercis[e] the most awesome and dangerous power that a

democratic state possesses with respect to its residents—the power to use

lawful force to arrest and detain them,'" officers can expect a higher degree of

scrutiny of their performance, N.J.S.A. 40A:14-118, and have a lower

expectation of privacy, Rawlings v. Police Dep't of Jersey City, 133 N.J. 182,

189 (1993) (quoting Policemen's Benevolent Ass'n of N.J., Local 318 v. Twp.

of Washington, 850 F.2d 133, 141 (3d Cir. 1988)). Significantly, that includes

a diminished expectation of privacy in their disciplinary records. Hart v. City

of Jersey City, 308 N.J. Super. 487, 493 (App. Div. 1998) (finding no cause of

action for invasion of privacy claims based upon publication of plaintiff's one-

day suspension in an in-house police department bulletin, noting that "police

officers, because they occupy positions of public trust and exercise special

powers, have a diminished expectation of privacy"). And, of course, the

Legislature itself acted last year to require the identities of law enforcement

officers involved in the arrest or investigation of a death of a person in an

encounter with a law enforcement officer acting in the officer's official

capacity or while the decedent was in custody be made available to the public

within twenty-four hours or as soon as practicable. N.J.S.A. 52:17B-107.1.

A-3950-19T4 42 Given this long history of distinguishing law enforcement officers from

other public employees by virtue of the public trust reposed in them to enforce

and uphold the law, and the manifest "need in a democratic society for public

confidence, respect and approbation of the public officials on whom the state

confers" the authority to use lawful force to arrest and detain their fellow

citizens, Policeman's Benevolent Ass'n of N.J., Local 318, 850 F.2d at 141, we

cannot find the Attorney General's decision to exercise the authority he and his

predecessors have long reserved in the IAPP to release confidential internal

affairs records and information violates the rights of the State's law

enforcement officers in the privacy of their personnel records under Executive

Order 11, section 10 of OPRA, or N.J.A.C. 13:1E-3.2.

"Retroactive Application" of the Directives.

Appellants contend that because Directives 2020-5 and 2020-6 direct the

release of internal affairs records of officers receiving major discipline before

the Directives were issued, up to six months before in the case of 2020-5 and

up to twenty years before in the case of 2020-6, the Directives constitute "ex

post facto administrative provisions" that run afoul of the State's retroactivity

cases. We reject the argument and the analysis.

A-3950-19T4 43 First, "the prohibition against ex post facto laws applies only to laws of a

penal and criminal nature," which the Directives assuredly are not. In re

Kaplan, 178 N.J. Super. 487, 495 (App. Div. 1981). Second, a retroactivity

analysis is undertaken only where there has been a change in the law. See In

re D.C., 146 N.J. 31, 50 (1996). Although appellants' retroactivity arguments

assume there's been a change in the law governing release of their disciplinary

records, that is not accurate.

The Attorney General in Directives 2020-5 and 2020-6 has ordered the

release of limited information gleaned from existing internal affairs records,

consistent with his longstanding statutory authority under the Law and Public

Safety Act of 1948, the Criminal Justice Act of 1970, and N.J.S.A. 40A:14-

181, which we hold does not violate Executive Order 11, OPRA, and the

Department's government records regulation. Accordingly, in issuing

Directives 2020-5 and 2020-6, the Attorney General has only exercised

authority he possesses under very old statutes. While it is certainly true the

Attorney General has now exercised his authority to make certain information

public that he had previously exercised his authority to keep confidential, his

statutorily granted discretionary authority has not changed. And, as a decision

to release any public record anticipates the disclosure of an existing record,

A-3950-19T4 44 without regard to its historical nature, that is, when it was created, we are not

convinced a retroactivity analysis is warranted or appropriate.

The purpose of permitting public access to existing public records "is the

bedrock principle that our government works best when its activities are well-

known to the public it serves." Burnett v. Cty. of Bergen, 198 N.J. 408, 414

(2009). That is the Attorney General's professed purpose in ordering

disclosure of historical major disciplinary data; that permitting public scrutiny

of New Jersey's internal affairs processes at all levels of law enforcement will

instill greater accountability in those processes and promote greater trust and

confidence in the State's law enforcement agencies. Because we find OPRA,

Executive Order 11 and the Department's government records regulation

permit the Attorney General's release of that information, the Directives do not

violate the affected officers' rights to nondisclosure, regardless of when the

discipline was imposed. A retroactivity analysis is not necessary.

Even were we to perform a retroactivity analysis, however, we would

not strike down the Directives. A retroactive analysis would focus on two

factors, whether retroactive application was intended and, if so, whether it

would "result in either an unconstitutional interference with 'vested rights' or a

'manifest injustice.'" See In re D.C., 146 N.J. 31, 50 (1996). As there is no

A-3950-19T4 45 doubt the Attorney General intended the Directives to reach prior discipline,

the only question is whether doing so would work an unconstitutional

interference with a vested right of affected officers or constitute a manifest

injustice. See State Troopers Fraternal Ass'n v. State, 149 N.J. 38, 54 (1997).

As already discussed at length, the IAPP for the last twenty years has

advised all law enforcement officers that the Attorney General could direct the

release of their internal affairs records. That fact, coupled with the long-

standing understanding that law enforcement officers are distinct among public

employees, that there is a higher level of scrutiny of their performance, giving

their employers a broader scope of discretion in administering their work and

providing officers a lower expectation of privacy in their disciplinary records,

convince us that they have no constitutionally protected vested right that the

Directives could infringe. See Lehrhaupt v. Flynn, 140 N.J. Super. 250, 261

(App. Div. 1976) (individual's right of privacy "may be limited by virtue of the

legitimate right of the public to acquire knowledge of all facts relevant to the

performance . . . of its public officials"), aff'd, 75 N.J. 459 (1978); see also

Kenny v. Byrne, 144 N.J. Super. 243, 252-57 (App. Div. 1976) (holding

executive order mandating financial disclosures of certain employees did not

violate their right to privacy in light of "[p]aramount right of the people to

A-3950-19T4 46 honest and impartial performance by their government employees"), aff'd o.b.,

75 N.J. 458 (1978). That the Attorney General has not exercised his authority

to release internal affairs records before does not make his doing so now a

violation of a constitutionally protected vested right. Cf. Phillips v. Curiale,

128 N.J. 608, 620 (1992) (explaining "'[t]here can be no vested right in the

continued existence of a statute or rule of the common law which precludes its

change or repeal'" (quoting Savarese v. N.J. Auto. Full Ins. Underwriting

Ass'n, 235 N.J. Super. 298, 309 (App. Div. 1989))).

Nor can we find that retroactive application of the Directives constitutes

a violation of the manifest injustice doctrine. See State Troopers Fraternal

Ass'n, 149 N.J. at 54 (explaining that "manifest-injustice analysis is a

nonconstitutional, equitable doctrine designed to prevent unfair results that do

not necessarily violate any constitutional provision"). The Court has explained

that "manifest injustice analysis requires 'a weighing of the public interest in

the retroactive application of the statute against the affected party's reliance on

previous law, and the consequences of that reliance.'" Nobrega v. Edison Glen

Assocs., 167 N.J. 520, 547 (2001) (quoting Nelson v. Bd. of Educ., 148 N.J.

358, 371 (1997)).

A-3950-19T4 47 Appellants obviously cannot prevail on an argument that before officers

decided to engage in the misconduct that would result in major discipline, they

counted on their discipline remaining confidential. While we have no doubt

that some officers in the last twenty years agreed to settle internal disciplinary

actions, at least in part, to avoid their misconduct being made public,

Libertarians for Transparent Gov't v. Cumberland Cty., __ N.J. Super. at __

(slip op. at 21), appellants cannot demonstrate that was universally true, and

even if it were, we cannot find it outweighs the Attorney General's paramount

interest in taking action to improve the public's trust in state and local police

by making more transparent the processes that govern officer misconduct.

Even were the public interest less weighty than it obviously is, the regular

release of such records in criminal and civil actions and the Attorney General's

clear statement for the last twenty years that any internal affairs record would

be released at his direction are fatal to appellants' claim that the very limited

release of final discipline the Attorney General has ordered in Directives 2020-

5 and 2020-6 would constitute a manifest injustice to them.

Having said that, we are mindful of the sea change the Directives

represent in the Department's policy regarding the confidentiality of officer

disciplinary records and the deep feelings of unfairness the retroactive

A-3950-19T4 48 application of these Directives have engendered among law enforcement

officers, whether or not they will be personally affected by the disclosures to

be made. As already noted, the Attorney General was only recently in our

Supreme Court advocating for the necessity of not linking a trooper's name to

the disciplinary summary we earlier referenced, released in the Division's 2015

report of trooper misconduct. Those are the same summaries he now intends

to revise and release, identifying the trooper in each case of demotion,

reduction in rank or grade or suspension longer than five days.

The Attorney General acknowledges his former position, arguing

persuasively that the fraying of public trust in law enforcement in many of the

State's communities has caused him to balance the costs of shielding the

identities of officers found to have committed offenses warranting major

discipline differently. He is allowed. As the Supreme Court has noted in the

context of a regulatory agency's interpretation of a statute, time and experience

matter. Glukowsky v. Equity One, Inc., 180 N.J. 49, 67 (2004). Agency law

"is not static. It has elasticity that permits it to adapt to changing

circumstances and conditions." Ibid. As the Attorney General argued in

opposition to appellants' request to enjoin operation of the Directives pending

A-3950-19T4 49 appeal, "sometimes the status quo is unacceptable and should not be

preserved."

Leaving aside their disagreements over the Attorney General's policy

choice, which are not for us to mediate, appellants and intervenors all contend

officers were promised confidentiality when they settled internal disciplinary

charges. Although the appendices in these appeals number many hundreds of

pages, we noted only one general disciplinary negotiated resolution that stated

it was a "mutually binding confidential resolution" of disciplinary charges.

Much more common were certifications to the effect that officers settling

disciplinary charges either "understood" such settlements would be

confidential or were "assured" of such by either command personnel or deputy

attorneys general acting on behalf of the Department.

While initially arguing the State's use of "confidential" in such

agreements and assurances was only ever in the limited sense intended in

OPRA and the IAPP, and thus that the State "never promised to keep such

discipline secret for any reason and in perpetuity," the Attorney General

conceded at oral argument that some officers might have contract claims to the

confidentiality of internal settlement agreements entered into with the State.

Although a representation or promise of confidentiality may not always shield

A-3950-19T4 50 internal agreements resolving disciplinary charges from disclosure under the

common law, see Libertarians for Transparent Gov't v. Cumberland Cty., __

N.J. Super. at __ (slip op. at 29-31), we are not prepared on this record to say

they would not bind the Attorney General in an individual case in the absence

of a common law request and ensuing court order directing publication. See

W.V. Pangborne & Co. v. N.J. Dep't of Transp., 116 N.J. 543, 560-63 (1989)

(discussing the obligation of the government to "turn square corners" in its

dealings).

Appellants raise other claims, such as promissory and equitable estoppel,

which likewise cannot be resolved on this record. Appellants have brought

only a facial challenge to the Directives. Although we are confident that facial

challenge must fail, the record is inadequate to address the claims individual

officers might have against release of their names regarding discipline they

received before the Attorney General issued the Directives.

To the extent affected officers wish to pursue as-applied challenges, we

note the Attorney General in Directive 2020-6 has provided that officers whose

names will be published receive notice at least seven days prior to publication.

We assume he has done so to permit the officer to take what steps he or she

deems necessary, whether that be to contact the Attorney General about the

A-3950-19T4 51 accuracy of the information or specific privacy concerns — for instance, that

publication in the form proposed could reveal the victim of domestic violence6

— or to file an as-applied challenge to the Directives. Seven days provides

very little time for an officer, particularly one who may have long since

retired, to take action in response to the notice. We find a fourteen-day notice,

including the name and contact information for the person in the Attorney

6 The Attorney General has dismissed appellants' concerns that attaching an officer's name to a previously released summary of misconduct will, in some instances, reveal the identity of a victim of domestic violence, insisting "the synopses will . . . not identify domestic violence victims by name or by relationship to the disciplined officer in accordance with the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, and Rule 1:38-3(b)(12)." The Attorney General writes in his brief, however, that "[w]hile the reports will of course mention whether an officer received major discipline for having engaged in domestic violence — an important sign of an officer's tendency to intolerable violence — that does not itself reveal the identity of a victim because the scope of possible domestic violence victims is much broader than appellants continue to suggest," citing N.J.S.A. 2C:25-19(d) (referring to "a spouse, former spouse, or any other person who is a present household member or was at any time a household member"). That a domestic violence victim could be someone other than the perpetrator's spouse, former spouse or significant other would not appear adequate protection for victims who do stand in such relation to an officer who received major discipline for having engaged in domestic violence. We expect the Attorney General will have to do more to protect the identities of domestic violence victims than simply rely on the definition of "victim of domestic violence" in the statute — whether that might include giving notice to those victims before publication to permit them to object, precluding identification of the officer in instances where the victim's privacy cannot reasonably be protected, or other steps to ensure victim anonymity is not before us.

A-3950-19T4 52 General's office who the officer may contact about the disclosure, would better

allow the officer to take such steps. We likewise expect the Attorney General

to require local departments making historical discipline information available

to provide equivalent contact information and the same notice period.

To be clear, we are not suggesting that affected officers have viable as-

applied challenges to Directives 2020-5 and 2020-6. If anything, our review of

this record suggests many officers would likely have difficulty establishing an

enforceable promise of confidentiality. Nevertheless, affected officers must be

provided the opportunity to bring such claims, or to bring to the attention of

the Attorney General or law enforcement executive other concerns about the

information being released, which a fourteen-day notice adequately provides.

Appellants' Remaining Arguments.

None of appellants' remaining arguments requires extended discussion

here. Although petitioners contend the Directives violate their rights to

substantive and procedural due process and equal protection, their arguments

are not weighty. Substantive due process doctrine does not protect an

individual from all government action that might infringe her liberty in

violation of a law. Instead, it "is reserved for the most egregious governmental

abuses against liberty or property rights, abuses that 'shock the conscience or

A-3950-19T4 53 otherwise offend . . . judicial notions of fairness . . . [and that are] offensive to

human dignity.'" Rivkin v. Dover Twp. Rent Leveling Bd., 143 N.J. 352, 366

(1996) (quoting Weimer v. Amen, 870 F.2d 1400, 1405 (8th Cir. 1989)).

As our Supreme Court has observed, "[w]ith the exception of certain

intrusions on an individual's privacy and bodily integrity, the collective

conscience of the United States Supreme Court is not easily shocked." Ibid.

(citing Irvine v. California, 347 U.S. 128, 133 (1954) (finding no Fourteenth

Amendment violation when state police officers broke into defendant's home

and secretly placed a microphone in defendant's bedroom, as the trespass

involved no coercion, violence or brutality to the defendant)). We are thus

confident the Attorney General's release of a summary of the findings that led

to a law enforcement officer's termination, demotion, or suspension for more

than five days does not rise to the level of a substantive due process violation

implicating petitioners' reputation or privacy rights. See ibid. (recalling that

Justice Frankfurter in Rochin v. California, 342 U.S. 165, 172 (1951), equated

substantive due process violations with abuses by government that "are . . . too

close to the rack and the screw to permit of constitutional differentiation").

Appellants' claims that the Directives violate their substantive due

process right to privacy under our State Constitution fare no better. Simply

A-3950-19T4 54 stated, 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 in every IAPP issued since 2000 that the Attorney

General could order the release of the records. See Doe v. Poritz, 142 N.J. 1,

88-91 (1995) (upholding Megan's Law disclosure mandate against

constitutional privacy challenge, finding that state interest in public disclosure

substantially outweighed plaintiff's diminished privacy interest).

As to appellants' procedural due process argument, while we are mindful

that our State Constitution extends due process protection to personal

reputation, see Doe, 142 N.J. at 104, we have held "this does not mean that a

liberty interest is implicated anytime a governmental agency transmits

information that may impugn a person's reputation." In re L.R., 321 N.J.

Super. 444, 460 (App. Div. 1999). We find no general right to a hearing here,

especially as all affected officers have already received all the process they

were due for their disciplinary charges, including representation by their

A-3950-19T4 55 union.7 See N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975). As already

discussed, we do not find any need for notice beyond that necessary to permit

affected officers time to bring an as-applied challenge before the initial release

of the names of officers who incurred discipline in or after 2000 but before

issuance of the Directives.

We likewise find no merit in appellants' equal protection claims.

Appellants' argument is that the Directives unconstitutionally differentiate

between members of the State Police and law enforcement officers in the

Division of Criminal Justice and the Juvenile Justice Commission on the one

hand and the rest of the State's law enforcement officers on the other, and

between all of those law enforcement officers and other public employees.

Equal protection, of course, does not forbid all classification; it "requires only

7 Petitioners certainly had no constitutional procedural due process right to be heard before the Attorney General adopted the policy announced in the Directives. See Minn. State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271, 283-86 (1984) (noting "[t]he Constitution does not grant to members of the public generally a right to be heard by public bodies making decisions of policy"); see also United States v. Fla. E. C. R. Co., 410 U.S. 224, 245-46 (1973) (recognizing distinction in administrative law between proceedings for promulgating policy-type rules applicable across the board from proceedings designed to adjudicate disputed facts in particular cases). We also reject appellants' argument that the Directives were adopted in violation of their rights to notice and opportunity to be heard under the Administrative Procedures Act. See infra p. 60.

A-3950-19T4 56 that those classifications not be arbitrary." Doe, 142 N.J. at 91. "The

constitutional requirement of equal protection is met by legislation which

treats in a like or similar manner all persons within a class reasonably

selected." Mason v. Civil Serv. Comm'n, 51 N.J. 115, 128 (1968).

Because appellants are not members of a suspect class and no

fundamental constitutional right is impinged by publication of their

disciplinary records, an equal protection claim will only succeed if "the

relationship between the permissible goal and classification is so attenuated as

to be arbitrary or irrational." In re Wheeler, 433 N.J. Super. 560, 619 (App.

Div. 2013). As already discussed, the Legislature and our courts have long

distinguished law enforcement officers from other public employees based on

the responsibilities and privileges of law enforcement officers. See City of

Jersey City, 154 N.J. at 572. Disclosing 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.

As for the Directives distinguishing between those law enforcement

officers within the Department of Law and Public Safety and those in local law

A-3950-19T4 57 enforcement agencies, the Attorney General offers two reasons for doing so.

First, he asserts the officers within his Department must lead by example. He

reasons that by releasing the names of Department officers receiving major

discipline since 2000, he will inspire local agencies to do the same.

He also maintains that by leaving the decision to "release information

regarding historical incidents of officer misconduct" to local control, he has

ensured the law enforcement executive closest to the community will weigh

the costs and benefits of historical disclosure in light of local conditions.8

Although the State Police has for the past twenty years included summaries of

major discipline in its annual reports to the Legislature, it is only since 2011

that the IAPP has required local agencies to release a synopsis of all

8 We have been provided with examples of two policy statements by county prosecutors in the wake of Directives 2020-5 and 2020-6. Both acknowledge the Directives will require a more consistent approach to the investigation of internal affairs matters and imposition of police discipline in their counties going forward. While also acknowledging the importance of retrospective disclosure to building greater trust with the diverse communities they serve, they take somewhat different approaches to the release of historic disciplinary sanctions as permitted by Directive 2020-5, acknowledging they lack the State Police's twenty year archive, as well as noting the variation in the quality of internal affairs functions across municipal departments, the reliability of available records and the disparities in discipline for similar offenses across departments and over time.

A-3950-19T4 58 complaints where a fine or suspension of ten days or more was assessed to a

member of the agency. 2011 IAPP at 50.

The Attorney General's proffered reasons for distinguishing among law

enforcement agencies constitute rational bases for the classifications appellants

challenge. See Drew Assocs. of N.J., L.P. v. Travisano, 122 N.J. 249, 264

(1991); Barone v. Dep't of Human Servs., Div. of Med. Assistance & Health

Servs., 107 N.J. 355, 367-77 (1987); N.J. Restaurants Ass'n v. Holderman, 24

N.J. 295, 300 (1957); Wheeler, 433 N.J. Super. at 619-20. The outcome would

not be different were we to undertake an equal protection analysis under our

State Constitution balancing test. See Doe, 142 N.J. at 94. Considering the

affected officers' right in the confidentiality of their disciplinary records, the

extent to which the Directives impinge that right, and balancing those interests

against the public need for disclosure, we are satisfied 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 and

the intrusion of that right to the extent of revealing incidents in which major

discipline has been sustained. See Greenberg v. Kimmelman, 99 N.J. 552, 577

(1985) (explaining the balancing test).

A-3950-19T4 59 Appellants' contention that the Attorney General promulgated Directives

2020-5 and 2020-6 in violation of the Administrative Procedures Act ignores

our long-standing view that the Attorney General's law enforcement directives

and guidelines "are not 'administrative rules' as defined in [N.J.S.A. 52:14B-2],

and, thus, do not require formal promulgation under the [APA]." O'Shea, 410

N.J. Super. at 383. They 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." N.J.S.A.

52:14B-2; O'Shea, 410 N.J. Super. at 383. Moreover, we have explicitly

concluded that the Attorney General's issuance of the IAPP is not subject to

administrative rulemaking under the APA. In re Carroll, 339 N.J. Super. 429,

442-43 (App. Div. 2011).

Several plaintiffs contend the Directives unconstitutionally impair their

right to contract and violate their constitutional right to collective negotiations.

None of the collective negotiations agreements in the record, however,

addresses the confidentiality of personnel records, disciplinary records, or

internal affairs records, other than to require compliance with the IAPP, which,

of course, is issued pursuant to the Attorney General's authority under N.J.S.A.

40A:14-181, and is subject to amendment outside the collective negotiations

A-3950-19T4 60 process, making a contract impairment analysis unnecessary. See Berg v.

Christie, 225 N.J. 245, 259 (2016) (explaining contract impairment claims

"entail an analysis that first examines whether a change in state law results in

the substantial impairment of a contractual relationship"). To the extent those

petitioners argue that confidentiality assurances are mandatorily negotiable,

any scope of negotiations claim must be brought before the Public Employee

Relations Commission.9 See Barila v. Bd. of Educ. of Cliffside Park, 241 N.J.

595, 614 (2020) (noting the Legislature has assigned to PERC in the first

instance "the task of differentiating between negotiable subjects and non-

negotiable policy considerations").

Finally, to the extent we have not already addressed them, we reject

appellants' arguments that the Directives are arbitrary, capricious and

unreasonable, and violate public policy. The Attorney General, as New

Jersey's chief law enforcement officer, has broad supervisory authority over

9 We are not aware of any pending scope of negotiations petition. Appellants in A-4002-19 have advised us of an unfair practice charge filed with PERC in June against the City of Paterson by Paterson Police PBA Local 1 and Paterson Police PBA Local 1 Superior Officers Association with interim restraints against publication of the names of current or former officers "who in the past twenty (20) years have been fired, demoted, or suspended for more than five days due to a disciplinary violation, whether with, or without a summary of the violation."

A-3950-19T4 61 the enforcement and prosecution of the State's criminal laws at every level of

government. With that authority comes enormous responsibility for ensuring

public confidence that the State's law enforcement officers are honest,

unbiased and themselves law abiding and thus possessed of legitimate

authority to "'exercis[e] the most awesome and dangerous power that a

democratic state possesses with respect to its residents—the power to use

lawful force to arrest and detain them.'" Rawlings, 133 N.J. at 189 (quoting

Policemen's Benevolent Ass'n of N.J., Local 318, 850 F.2d at 141).

Like petitioners, the Attorney General is well aware that trust in the

police is essential for them to safely and effectively perform their jobs of

protecting the communities they have sworn to faithfully serve. Concerned

that community trust in our police has become seriously frayed in cities and

towns across our State, he 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.10

10 We note the information the Attorney General has ordered released in Directives 2020-5 and 2020-6 is quite limited, and far less than what some of our neighboring states have done in response to similar concerns. See, e.g.,

A-3950-19T4 62 That step follows several other recent events that have likewise

increased transparency and accountability of law enforcement agencies in this

State, including making public use of force reports, see Lyndhurst, 229 N.J. at

577-78, the creation of civilian oversight boards, see Fraternal Order of Police,

__ N.J. __ (slip op. at 3-4), and the passage of a statute requiring release of the

identities of officers involved in the arrest or investigation of a death of a

person in an encounter with a law enforcement officer acting in the officer's

official capacity or while the decedent was in custody, N.J.S.A. 52:17B-107.1.

The Attorney General's mandate to publish the names of those officers having

been terminated, demoted or suspended for more than five days, appears to us

neither arbitrary nor capricious and, instead, consistent with existing law and

evolving public policy. See Lavezzi v. State, 219 N.J. 163, 171 (2014).

For the reasons expressed here, we reject petitioners' facial challenge to

Attorney General Directives 2020-5 and 2020-6. We, nevertheless, continue

our stay of the Directives for five days only, to permit appellants to file an

immediate petition for certification and application for any further stay in the

Supreme Court.

(continued) 2020 N.Y. Laws 96 (repealing N.Y. Civil Rights Law 50-a, and allowing for the public release of law enforcement disciplinary records).

A-3950-19T4 63 Affirmed.

A-3950-19T4 64