Case debates if state AG may legally expose bad apple cops
TRENTON » Talk about law and order.
A lawyer representing state Attorney General Gurbir Grewal argued Wednesday that the AG has the legal authority to require every law enforcement agency in New Jersey to annually publish the names of sworn officers who have faced major discipline.
Grewal “acted rationally” in issuing directives three months ago mandating police agencies to annually disclose the names of sworn officers who have been suspended for more than five days or who have been demoted or terminated, along with a description of the circumstances that led to the discipline, said attorney Jeremy Feigenbaum of the New Jersey AG’s Office.
About one dozen attorneys, including Feigenbaum, provided oral arguments Wednesday before New Jersey Appellate Division Judges Mitchel E. Ostrer, Allison E. Accurso and Francis J. Vernoia.
Several police unions, including the State Troopers Fraternal Association of New Jersey, have filed a lawsuit against Grewal arguing his directives to expose bad apple cops “will cause immediate and irreparable harm” to the impacted officers.
The Appellate Division has temporarily halted Grewal’s directives from going into effect as it considers the legal arguments in this explosive case.
“In this case, the attorney general has gone too far,” Paul L. Kleinbaum, an attorney for the state PBA, said Wednesday in oral arguments. “He has usurped the role of the Legislature when implementing directives, which even he acknowledges represents a sea change in how the Attorney General’s Office has treated the confidentiality of personnel records.”
“It is our position, your honor, that there is no right of access under OPRA or the common law, and these directives under any standard of review should not stand,” Kleinbaum added, referring to the Open Public Records Act.
One of the judges asked whether OPRA prevents the attorney general from providing information to the public that normally would be exempt from disclosure under OPRA.
“There is nothing in OPRA which gives the attorney general the right or anyone else the right to waive the prohibition,” Kleinbaum said. “If OPRA prohibits the records, the attorney general can’t authorize their release and it wouldn’t be binding on local government agencies.”
Members of the public may obtain certain government records under OPRA, but police IA or internal affairs disciplinary files are exempt.
Frank M. Crivellii, an attorney for several PBA locals, argued in light of the death of Black man George Floyd in Minneapolis Police custody, any discussion regarding the release of disciplinary police records or information should be held with Congress and the state Legislature. For example, he cited State Sen. Loretta Weinberg’s Senate Bill No. 2656 that would make law enforcement disciplinary records accessible to the public as government records.
“What we need is a surgical kind of approach that balances the public’s need to know with efforts to make systemic changes with law enforcement officers’ privacy rights,” said Kevin D. Jarvis, attorney for the New Jersey Superior Officers Law Enforcement Association, “because the vast majority of the people affected by these directives are good, hardworking people who were as equally shocked as all of we were in what happened.”
Feigenbaum said the AG’s directives “did not violate OPRA” or any other law.
By seeking to publish disciplinary synopses on active, retired or deceased law enforcement officers, “We are trying to really open up the books and let people see how the IA process works and how the IA process doesn’t work,” Feigenbaum said.
One of the judges challenged Feigenbaum over that statement, however, saying, “I’m not sure that there is sufficient information provided to enable the public to really understand how the IA process is working and to have confidence in the results.”
“The attorney general does not think that directives can trump statutes, and that’s not our view, and that’s now what we’re trying to do here,” Feigenbaum said. “We are not saying that the attorney general has lawmaking ability above the Legislature. He absolutely does not. He specifically has directive authority backed by Section 181 that law enforcement must comply with.”
The judges asked sharp questions during approximately four hours of oral arguments, forcing all sides to address these thorny issues of transparency versus employee privacy.
With nationwide calls for transparency in police discipline, the attorney general “took action,” Feigenbaum said, “carving out a limited exception to the previous policy of confidentiality for cases where the infraction had been substantiated and where the discipline that was warranted was major.”
Alexander Shalom of the ACLU of New Jersey argued that just because the police unions disagree with the AG’s policy decisions doesn’t mean his directives are arbitrary and capricious.
CJ Griffin, an attorney for the National Coalition of Latino Officers and the Law Enforcement Action Partnership, said her clients “really want the court to know that not all police officers agree with the unions’ position. In this case, many of the officers are advocates of transparency.”
Griffin said her clients support transparency and believe “transparency really benefits police officers.”
Whatever decision the Appellate Division makes in this case, the losing party will likely appeal to the New Jersey Supreme Court.