Administrative Law

The client smacked his 14 year old daughter once on the arm in November, 2008 as a result of an argument. His daughter, a behavior problem, began cursing and yelling at the client in response to being told not to leave the house. Thereafter, the school noticed a bruise on her arm and the authorities were contacted. The police did not file criminal charges but DYFS recommend that the client seek counseling for the daughter and the 3 siblings, particularly in light of the passing of his wife 6 months prior.

The state could not establish any pattern of, or other incidents of, corporal punishment with either the daughter or the other siblings. There were no other substantiated abuse reports and the household was reported to be functioning well within acceptable standards.

Nonetheless, DYFS notified client in December, 2008 that he had been identified as "harming a child or placing the child at risk of harm" and that DYFS had substantiated a child abuse finding against him.

Initially, he was represented by another law firm but ultimately fired them for being unsatisfied and began to represent himself pro se. Client, a law enforcement officer, reconsidered that strategy and was recommended to our firm in February.

In preparing for the July 7 hearing our attorneys interviewed the daughter and decided to file a summary decision motion. In researching the relevant statutes and cases, we found an appellate division case which provided strong support for our case as applied to our facts. A motion and supporting brief was filed.

The client was very happy and relieved that our team was able short cut the process and obtain a favorable outcome without a hearing.

In the past, if you had probable cause, you could conduct a full search of a vehicle without securing a search warrant. Now, in addition to probable cause, you need "exigent circumstances" to make a warrantless vehicle search. If you conduct a vehicle search without a warrant and without exigency, the evidence will likely be suppressed. Whenever possible, attempt to obtain a warrant before searching a vehicle. Call for a telephonic search warrant or impound the vehicle impound and apply for a warrant later.

If you must search a vehicle immediately and can't obtain a warrant, document the following factors in your report: (1) how many suspects and officers were involved, (2) the kind of neighborhood where the stop took place, and if it was known for high levels of crime, (3) the time of day, and (4) whether other people were present at or close to the scene.

These recommendations are inconvenient, but if you comply with them, you can decrease the chance that your suspect will not get off on a technicality, something we all hate to see.

The Court and Civil Service Can Modify Discipline on Appeal – Brian Jacobs, Esquire- accepted for publication.

Discipline, imposed on an officer from a department hearing, can be appealed. An Administrative Law Judge (ALJ) handles the first appeal for Civil Service Departments. The next level, the Civil Service Commission, can accept or modify this determination, which may then be appealed to the Superior Court.

In a recent case, an officer won a partial victory when, on appeal, an ALJ reduced a department imposed six-month suspension (for being untruthful when questioned about submitting questionable travel expenses) to 90 days. Subsequently, both sides appealed to the Civil Service Commission. The officer claimed that the entire process was flawed and applied for dismissal while the department pushed for reinstatement of the original sentence. The Commission upheld the ALJ's position and both sides then appealed to the Superior Court on procedural and factual grounds.

On November 15, 2011 the Superior Court heard the case, Jones v. City of Millville Police Department, Sup Ct. (App. Div) A-0093-10T3, affirmed the ALJ decisions and agreed that some discipline was appropriate. Fortunately for the officer, termination, a potential penalty for either untruthfulness or theft, was not imposed.

In cases of imposed discipline by a department, several levels of appeal may exist. This process allows the aggrieved officer and the department to appeal an ALJ finding and decisions made by the Civil Service Commission. When choosing to appeal a disciplinary decision, an officer must always consider the risk of receiving an increased penalty. In this case, the officer's decision to appeal was the right one for him.

Our recent client was temporarily out of work due to an injury. Charged for not adhering to department rules or physician directed limitations and for being unfit, he was suspended and terminated by his Chief without a hearing. This action occurred after the officer was certified as unfit for a disability pension by the Chief! If the Chief's action stood, our client would have lost his job and his pension.

Our client's representation required an appeal based on constitutional due process grounds. Subsequently, Counsel for the employer agreed to settle the charges and the officer was approved to receive his disability pension.

In Ruroede v. Borough of Hasbrouck Heights, App. Div. (per curiam) A-2200-10T1, (October 11, 2011), the Court decided for an officer in a duty fitness case. While this officer received an initial hearing and was terminated, found guilty of being unfit for duty, the Court subsequently found major procedural deficiencies and no support for the adverse finding. The Court remanded the case for a new hearing, restored that officer to his position and provided with him with back pay.

In addition to dealing with the challenges of their injuries, injured officers may have to deal with related legal and job security issues. If you have questions about this or related issues, please give us a call and we'll be happy to help.

If anyone files a complaint against you in your role as an officer, you should be notified of the details quickly. In practice, days, weeks, or even months can pass without your knowing that you are the subject of an internal affairs investigation. If you are notified at the beginning of the investigation, you may wait a long time before the internal affairs officer interviews you. Usually by the time you are interviewed, the decision has been made not to charge you with a crime. But not always!

Two special warnings, Garrity and Weingarten, should be given to any officer at the beginning of an IA investigation. They serve different functions. The remainder of this article will focus on Garrity and, next month, stay tuned for more on Weingarten, which is very different.

At the beginning of your internal affairs interview, you should be given special warnings, called "Garrity" warnings. These warnings advise you that nothing that you say can be used against you criminally. If you are talking to your employer and you get the warnings, the State cannot use anything you say in that setting to prosecute you. Your employer can choose to bring criminal charges, but can't use your interview statement or anything they get from it to help prove criminal charges.

After Garrity warnings, you generally have two choices: 1) Answer the questions honestly, or 2) Be terminated. You can't ask to wait to answer until your lawyer or union representative arrives. You can't refuse to answer because your lawyer told you not to.

If you know or suspect that you are facing an internal affairs investigation, contact an attorney immediately. Don't wait to get representation until the day of your Garrity interview or, even worse, after it happens. Only discuss the charges with your lawyer and your employer's internal affairs officer. Garrity protections are generally only applicable to your employer. If you speak to another agency, such as the prosecutor's office, they can use the statement against you in criminal proceedings.

If you have a Garrity interview, be sure to answer honestly and completely. Realize that every situation is different. No general advice is 100%, but it's almost always true that while you may lose your job by answering questions, you will lose your job if you don't.

If you have any questions or concerns about an internal affairs investigation, or would like additional information about Garrity warning, please call us anytime and we will be happy to help.

Most eyewitness identifications take place in police stations soon after crimes have occurred. Witnesses are brought in and shown a lineup or given photos of possible suspects from which to choose. The old test for using those kinds of identifications was relatively lenient. Under the new standards, judges can exclude eyewitness identifications for many reasons and with much less evidence of bias.

The following dos and don'ts should help you make your identifications more reliable:

• Do use a different officer to conduct the identification, and don't tell the officer doing the identification who the actual suspect is.
• Do tell the witness that the perpetrator might not be in the group you're showing them.
• Do make sure that all lineups are composed of look-alikes, so the real suspect doesn't stand out.
• Don't confirm to the witness that they picked the "right" person.
• Don't show the witness the same suspect more than once.
• Don't show a witness only a single person; do use a lineup instead.

If you follow these rules you will have eliminated the most serious problems with most eyewitness identifications, and there is a good chance that your identifications will be usable in court.

Mr. Conley is an associate with the firm of Helmer, Conley and Kasselman, PA. In addition to his law degree, he also earned a Master of Public Administration (MPA) degree from Rutgers University at Camden. If you require further information about this topic, Mr. Conley may be reached at 856-547-7888.

The investigator testified that after she prepared her final report concerning interviews of the victim and suspect she destroyed the notes she made and stated that her superiors taught her not to retain those "contemporaneous" notes.

The Attorney General argued (1) once notes are used to produce a final report, they are no longer needed; and (2) officers at crime scenes or engaged in emergent activities may not accurately record events or statements. Rather than accepting the Attorney General's argument to justify disposal of such notes, the Court found the opposite. The Court said that precisely because there is a possibility of a mistake or a misrecording those notes must be preserved to allow a defendant to test the accuracy or inaccuracy of the notes and the final report through cross-examination of the officer who prepared them.

Clearly, New Jersey discovery rules require that initial notes of any police officer under the County Prosecutor's supervision be preserved for discovery. If they are not, the defendant may receive an "adverse inference" charge which is a jury instruction that they may devalue or disregard proofs introduced by the prosecution because the police officer's initial notes were not supplied to the defendant in discovery.

Your lesson: MAKE SURE THAT YOUR NOTES ARE ACCURATE AND SAVE THEM!

Mr. Conley, a partner in the firm of Helmer, Conley and Kasselman and formerly the section chief of the Homicide and Crime Scene Investigation Units in the Camden County Prosecutor's Office, is certified by the Supreme Court of New Jersey as a Criminal Trial Attorney. He may be reached at 856-547-7888 if you have further questions.

The bill mandates forfeiture of pensions for misconduct occurring during the member's public service, which renders the member's service or part thereof dishonorable. The forfeiture may be complete or could be apportioned depending on the type and scope of the misconduct. The bill orders the court to order the forfeiture immediately upon a finding of guilt, or to refer the matter for another hearing to determine the scope of the forfeiture. If the conviction or plea is for a disorderly or petty disorderly person's offense then the judge can waive the forfeiture.

The bill also invokes mandatory minimum terms of imprisonment without parole for public officials who are convicted. That parole ineligibility prevents public officials from entering the Intensive Supervision Program until the mandatory minimum term is served.

The pre-trial intervention program is also affected by the bill. Public officials are not precluded from receiving the consent of the prosecutor and entering the PTI program.

In Frazier v. Northern State Prison Department of Corrections, an Appellate Division decision from May 4, 2007, the Appellate Division held that a conviction for simple assault under NJSA 2C:12-1a(3) that is not based on use of force, does not disqualify a police officer from having a gun.