JERSEY CITY POLICE SUPERIOR OFFICERS ASSOCIATION v. CITY OF JERSEY CITY (C-000003-21, HUDSON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: March 14, 2022
• Docket: A-2594-20
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2594-20

JERSEY CITY POLICE SUPERIOR OFFICERS ASSOCIATION,

Plaintiff-Appellant,

v.

CITY OF JERSEY CITY,

Defendant-Respondent. _________________________

Argued March 7, 2022 – Decided March 14, 2022

Before Judges Messano, Accurso and Rose.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. C-000003-21.

Michael A. Bukosky argued the cause for appellant (Loccke, Correia & Bukosky, LLC, attorneys; Michael A. Bukosky, of counsel and on the briefs).

James B. Johnston, Assistant Corporation Counsel, argued the cause for respondent (Peter J. Baker, Corporation Counsel, attorney; James B. Johnston, on the brief). PER CURIAM

The Jersey City Police Superior Officers Association (SOA) represents

superior officers in the Jersey City Police Department (JCPD). The SOA filed

a verified complaint and order to show cause on behalf of J.C., a captain on the

force and member of the SOA, against defendant City of Jersey City (City). The

complaint sought to enjoin the demand issued by the JCPD's Internal Affairs

Unit (IAU) that J.C. produce copies of certain billing records for his personal

cell phone.

I.

The facts and procedural history are undisputed. The IAU initially made

a demand for the cell phone billing records on May 1, 2020, during its

investigation of J.C. for conduct unbecoming an officer, based on the contents

of a particular Twitter account, "Goldbitch201." The IAU claimed the account

"posted disparaging, racist, and homophobic tweets about the [JCPD], its

members, its policies[,] the governing body of Jersey City, and its citizens." The

investigation focused on the photo of a particular intersection in Jersey City

"taken from the interior of a vehicle assigned specifically to" J.C. and posted on

the "Goldbitch201" account at approximately 7:34 a.m. on September 3, 2019.

A-2594-20 2 Before serving its demand on J.C., the IAU referred the matter to the

Hudson County Prosecutor's Office (HCPO) for possible criminal investigation

and to secure a communications data warrant (CDW). After conducting its

review, on October 18, 2019, the HCPO referred the investigation back to the

JCPD to handle administratively, noting a judge had declined to issue the CDW

because "the facts and circumstances presented did not meet the burden for

authorization, as the matter was found not to be criminal in nature."

After temporarily agreeing to hold its initial May demand for J.C.'s

records "in abeyance" to address privacy concerns raised by his counsel, on

December 22, 2020, the IAU issued a directive pursuant to JCPD General Order

10-18, Section 202.9(b), requiring J.C. submit legible copies of his personal

cell phone billing records "for September 3, 2019[,] between the hours of 0700

hours to the end of [his] shift that day." 1 The SOA filed its verified complaint

on January 15, 2021.

1 In August 2020, a retired JCPD deputy chief and his wife, also a retired police officer, filed a complaint against J.C., the City, the Police Director and Police Chief, alleging the contents of the Twitter account defamed them, the Chief and Director retaliated against them in violation of the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -14, and all defendants violated the Law Against Discrimination, N.J.S.A. 10:5-1 to -50, and the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2. The appellate record does not reveal the status of the litigation, although public records reflect it is still pending. A-2594-20 3 The SOA argued that J.C.'s expectation of privacy in his personal cell

phone billing records was of constitutional dimension and outweighed any

marginal connection the records may have to the IAU investigation. The SOA

also asserted J.C. denied taking the photo in question, denied maintaining the

Twitter account, and the investigation had little to do with the normal

functioning of the department. The SOA argued J.C. met all criteria for

injunctive relief.

The City argued the SOA, on behalf of J.C., failed to demonstrate

preliminary injunctive relief was appropriate and asked the court to dismiss the

complaint. See, e.g., Crowe v. De Gioia, 90 N.J. 126, 132–34 (1982) (holding

the successful applicant for preliminary injunctive relief must demonstrate

"irreparable harm," settled legal right to the relief sought on undisputed material

facts, and the balance of equities weigh in the applicant's favor). Among other

things, the City contended J.C. failed to allege imminent irreparable harm or a

reasonable likelihood of success on the merits. Quoting our decision in In re

Att'y Gen. Law Enf't Directive Nos. 2020-5 & 2020-6, the City asserted police

officers "can expect a higher degree of scrutiny of their performance, and have

a lower expectation of privacy." 465 N.J. Super. 111, 147–48 (App. Div. 2020),

aff'd as mod., 246 N.J. 462 (2021) (citations omitted).

A-2594-20 4 Assignment Judge Jeffrey R. Jablonski heard argument on the return date

of the order to show cause and issued an oral opinion on the record on May 11,

2021. He rejected the SOA's argument that J.C. had a reasonable expectation of

privacy regarding the billing records, citing the language from In re Att'y Gen.

Law Enf't Directive we quoted above. The judge noted that J.C. acknowledged

receipt of General Order 10-18, which provided in Section 202.9, entitled

"Private Communications Devices," in the event an "administrative

investigation indicates improper use" which includes any violations of laws,

rules, or regulations, "the billing records of that device may be requested for

review."

Judge Jablonski cited Section 35 of the City's Policies and Procedures

Manual (JCPP), "which prohibits any form of harassment based upon [among]

other things, gender or sex, against both co-workers and third parties." The

judge concluded that "[b]y signing the General Order, J[.]C[.] knew or should

have known that his or her on-duty use of his or her personal cell phone billing

records could be requested for review if it contributed to a violation of any law,

rule, regulation or order." Judge Jablonski found the SOA failed to "establish[]

a reasonable probability of success on . . . its claims." The judge also concluded

the SOA failed to establish J.C. would suffer irreparable harm by the release of

A-2594-20 5 his cell phone billing records, and "that a balance of the hardships favor[ed] not

granting the injunctive relief." The judge's May 11, 2021 order dissolved the

temporary restraints previously entered.

The SOA sought a stay pending appeal, which Judge Jablonski denied.

During oral argument on the motion, the judge indicated that he had dismissed

the verified complaint because the "entirety of the Order to Show Cause was

incorporated in the verified complaint." Without objection, the SOA's counsel

asked for an order to that effect, noting "that will change the complexion of this

case before the Appellate Division." The judge indicated he would include

language dismissing the complaint in the order denying the stay request. The

SOA's counsel responded, "Yes. If you would put that in the order . . . that will

be helpful. The Appellate Division will definitely question me about that." The

judge's May 14, 2021 order denied a stay pending appeal and dismissed the

verified complaint, because, as the judge explained, "[t]he entirety of the relief

requested" by the SOA "was the restraints at issue," and his earlier order was

"dispositive of this action."

Although we permitted the SOA to move for a stay pending appeal on an

emergent basis, upon review of the motion, we denied the SOA a stay. It sought

A-2594-20 6 review by the Court. On September 27, 2021, the Court stayed Judge Jablonski's

order and ordered this court to consider the SOA's appeal on an expedited basis.

II.

Before us, the SOA argues there is no "public employee exception" to the

warrant requirement permitting the IAU to compel production of copies of J.C.'s

private cell phone billing records; nor does the "special needs exception" to the

warrant requirement apply and, even if it did, the facts presented do not justify

the demand for J.C.'s records. The SOA also claims disclosure of the billing

records implicates "independent constitutional privacy interests" of other

parties, and any "attempt to unmask the anonymity of Twitter postings violates

the First Amendment."

In response, the City notes that the SOA failed to address any of the

traditional Crowe factors in its brief, and, therefore, we should dismiss the

appeal. Alternatively, it contends the SOA's arguments lack merit. 2

Having considered the arguments, we affirm substantially for the reasons

expressed by Judge Jablonski in his oral decision. We add the following.

2 We choose not to address the final point in the City's brief arguing we should sanction the SOA pursuant to Rule 2:9-9. A-2594-20 7 Attorneys General (AG) have used powers provided by the Legislature "to

establish standards and policies for the internal affairs review process of the

State's law enforcement agencies," In re Att'y Gen. Law Enf't Directive, 246 N.J.

at 483, and the AG's "guidelines, directives, and policies . . . bind police

departments throughout the State." N. Jersey Media Grp., Inc. v. Twp. of

Lyndhurst, 229 N.J. 541, 565 (2017). The AG's directive regarding Internal

Affairs Policy & Procedures (IAPP) requires local police departments to

investigate and resolve complaints of misconduct by police officers made by

citizens and fellow members of the department. In this case, the IAU

investigation had its genesis in a complaint made by the JCPD's police chief

about comments on the Twitter account.

The IAPP requires "[e]ach agency must thoroughly, objectively, and

promptly investigate all allegations against its officers," §1.0.9(c), and create a

"code of conduct," §2.2.1, that should "identify general categories of misconduct

or inappropriate behavior that are subject to disciplinary action," §2.2.2. This

includes complaints of "bearing, gestures, language[,] or other actions [that]

were inappropriate." §2.2.2(g). The IAPP requires IAUs to investigate "not only

acts of misconduct . . . alleged to have occurred while the subject officer was

on[]duty, but also acts of misconduct that are alleged to have occurred outside

A-2594-20 8 the employing agency's jurisdiction or while the subject officer was off[]duty."

§4.1.3.

In turn, the JCPP prohibits all City employees from creating a hostile work

environment, which includes "unwelcome behavior of a sexual, racial[,] or

derogatory nature regarding any protected category, that is not directed at an

individual but is part of that individual's work environment." The sexual

harassment policy prohibits "all communications . . . and [i]nternet usage"

involving "explicit sexual propositions, sexual innuendo, slurs, lewd or sexually

suggestive comments, sexual orientated 'kidding' or 'teasing' . . . [and] foul or

obscene language . . . ." A violation of this policy "constitutes conduct

unbecoming a public employee and is cause for disciplinary action up to and

including discharge."

We acknowledge that a departmental general order does not have the same

force of law as a directive issued by the AG. See N. Jersey Media Grp., 229

N.J. at 565 (there is no statute granting chiefs of police authority analogous to

the AG's statutory power to issue binding directives). However, the General

Order here is tethered to multiple sections of the IAPP, which does have the

force of law.

A-2594-20 9 The IAPP explains "[i]n an internal affairs investigation, the Fourth

Amendment applies to any search the employing agency undertakes." § 7.8.1.

But the law is "somewhat less restrictive" during an "administrative

investigation" because "the employing agency does not need a warrant to

conduct a search . . . [though] the investigator should exercise great care when

searching . . . items in which the subject officer has a high expectation of

privacy." § 7.8.3. Departments should issue a directive regarding the right to

search property because "[t]his notification will help defeat an assertion of an

expectation of privacy. " §§ 7.8.5, 7.8.7. The JCPD did so in this case when it

issued G.O. 10-18, Section 202.9(b).

Against this backdrop, we reject the SOA's constitutional claims. The

Court has recognized cell phone billing records are entitled to some protection

in the context of a criminal investigation based on an individual's expectation of

privacy in those records. State v. Lundsford, 226 N.J. 129, 154 (2016). In the

context of this administrative demand for cell phone billing records pursuant to

a departmental general order, however, we cannot seriously consider J.C.'s

alleged expectation of privacy was reasonable.

Courts have held "[t]he need for oversight and corrective action is

particularly acute in police departments," Gwynn v. City of Phila., 719 F.3d 295,

A-2594-20 10 303 (3d Cir. 2013), and therefore "the police industry is probably the most highly

regulated, with respect to performance of its employees, of any industry in New

Jersey." Policeman's Benevolent Ass'n of N.J., Local 318 v. Twp. of

Washington, 850 F.2d 133, 121 (3d Cir. 1988); see also N.J. Transit PBA Local

304 v. N.J. Transit Corp., 151 N.J. 531, 564–65 (1997) (upholding

constitutionality of mandatory drug testing policy for Transit Police noting

"officers' decreased expectation of privacy, the adequate limitations on the

obtrusiveness of the testing, and the compelling state interest in promoting safe

conduct by armed officers"). Our courts have applied this administrative search

exception to the warrant requirement in several closely regulated professions

and businesses.3

Additionally, "[s]earches conducted pursuant to 'reasonable legislative or

administrative standards' that further 'special needs, beyond the normal need for

law enforcement' are excepted from the warrant requirement of the Federal and

3 See In re Martin, 90 N.J. 295, 312, (1982) (casino employees while on casino premises); State v. Williams, 84 N.J. 217, 223, (1980) (liquor industry); State v. Hewitt, 400 N.J. Super. 376, 381 (App. Div. 2008) (commercial trucking); State v. Turcotte, 239 N.J. Super. 285, 291–97, (App. Div. 1990) (horse racing); State v. Rednor, 203 N.J. Super. 503, 507, (App. Div. 1985) (pharmaceutical industry); In re Dep't of Env't Prot., 177 N.J. Super. 304, 313 (App. Div. 1981) (wastewater treatment facilities); State v. Bonaccurso, 227 N.J. Super. 159, 167 (Law Div. 1988) (disposal of meat by-products within meat packing industry). A-2594-20 11 State Constitutions." A.A. ex rel. B.A. v. Att'y Gen. of N.J., 384 N.J. Super. 67,

89 (App. Div. 2006). It is axiomatic that police departments have a special need

to regulate the conduct of their officers both on and off duty. See, e.g., Karins

v. Atlantic City, 152 N.J. 532, 555 (1998) ("[A] finding of misconduct . . . 'may

be based merely upon the violation of the implicit standard of good behavior

which devolves upon one who stands in the public eye as an upholder of that

which is morally and legally correct.'" (quoting Hartmann v. Police Dep't of

Ridgewood, 258 N.J. Super. 32, 40 (App. Div. 1992))); A.A., 384 N.J. Super. at

93–94 (noting "common feature of these well-recognized exceptions to the

warrant requirement is that the persons subject to search are distinguished from

members of the general public by conduct related to the search").

The SOA's contention that production of the billing records will not yield

any evidence to further the investigation of the offensive Twitter account is

nothing but speculation. Its belated claim that it was denied the opportunity to

establish this lack of relevance, i.e., the absence of "special needs" for the

information, runs afoul of its on-the-record accession to Judge Jablonski's

dismissal of the complaint. We also reject as ludicrous, the SOA's assertion that

the City never explained the reason for its request of J.C.'s cell phone billing

records. The SOA knows full well why the IAU wants the records; it simply

A-2594-20 12 asserts the records are not probative of anything in particular. In sum, we reject

the SOA's arguments that the precisely drawn, limited demand the IAU made in

this case for J.C.'s cell phone billing records ran afoul of the administrative

search or special needs exceptions to the warrant requirement.

The SOA's contention that the privacy rights of third parties, and J.C.'s or

those third parties' First Amendment rights would be chilled by production of

the cell phone billing records, requires little comment. The fear of public

disclosure is dispelled by IAPP policies requiring confidentiality of the IAU

investigative files. The progress of internal affairs investigations, the contents

of the case file including the original complaint, and the resulting materials are

confidential information and are only shared in limited circumstances. See, e.g.,

IAPP § 9.6.2.

J.C. denies he maintains the Twitter account or authored the tweets,

therefore any argument regarding his First Amendment rights is specious.

Without opining whether the SOA or J.C. has standing to argue on behalf of others,

we note the SOA acknowledges the billing records provide no information other than

"the caller's phone number, duration of the call, start and end time of the call,

and the cell phone tower the phone was connected to."

Affirmed.

A-2594-20 13