Internal affairs policy & procedures

INTERNAL AFFAIRS

POLICY & PROCEDURES

Office of the Attorney General | State of New Jersey

November 2022

Version

INTERNAL AFFAIRS POLICY & PROCEDURES | November 2022

Table of Contents

1 Introduction ................................................................................................ 1

2 Fundamentals of the Disciplinary Process ................................................... 6

2.1 Policy Management System .................................................................................................... 6

2.2 Rules and Regulations .............................................................................................................. 7

2.3 Responsibility for Discipline ..................................................................................................... 9

2.4 Fitness for Duty ...................................................................................................................... 10

3 Prevention of Misconduct ......................................................................... 11

3.1 Recruitment and Selection .................................................................................................... 11

3.2 Training .................................................................................................................................. 11

3.3 Supervision ............................................................................................................................ 12

3.4 Early Warning and Risk Management ................................................................................... 12

3.5 Staff Inspections .................................................................................................................... 14

3.6 Community Outreach ............................................................................................................ 14

4 Internal Affairs Unit or Function ................................................................ 15

4.1 Duties and Responsibilities .................................................................................................... 15

4.2 Selection of Personnel for the Internal Affairs Function ....................................................... 16

4.3 Training of Internal Affairs Personnel .................................................................................... 18

5 Accepting Reports of Officer Misconduct .................................................. 19

5.1 Accepting Reports Alleging Officer Misconduct .................................................................... 19

5.2 Immediate Suspension Pending Investigation and Disposition ............................................. 22

6 Investigation of Internal Complaints ......................................................... 24

6.1 Time Limitations .................................................................................................................... 24

6.2 Investigation and Adjudication of Minor Complaints ............................................................ 26

6.3 Investigation and Adjudication of Serious Complaints .......................................................... 28

6.4 Domestic Violence Incidents Involving Agency Personnel .................................................... 31

7 Internal Affairs Investigation Procedures .................................................. 33

7.1 Interviewing the Complainant and Civilian Witnesses .......................................................... 33

7.2 Reports, Records and Other Documents ............................................................................... 34

7.3 Physical Evidence ................................................................................................................... 35

7.4 Photographs ........................................................................................................................... 35

7.5 Physical Tests ......................................................................................................................... 36

7.6 Drug Testing ........................................................................................................................... 36

7.7 Polygraph ............................................................................................................................... 37

7.8 Search and Seizure ................................................................................................................. 37

7.9 Electronic Surveillance ........................................................................................................... 39

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7.10 Lineups ................................................................................................................................... 41

7.11 Investigation of Firearm Discharges ...................................................................................... 41

7.12 Collateral Issues ..................................................................................................................... 43

8 Interviewing Members of the Agency ........................................................ 45

8.1 Overview of Interviews .......................................................................................................... 47

8.2 When the Investigation is Criminal and the Officer Is a Subject ........................................... 48

8.3 When the Investigation is Criminal and the Officer Is a Witness .......................................... 50

8.4 When the Investigation is Administrative and the Officer Is a Subject ................................. 50

8.5 When the Investigation is Administrative and the Officer Is a Witness ................................ 52

8.6 Interviewing Procedures ........................................................................................................ 52

9 Internal Affairs Records ............................................................................ 54

9.1 The Internal Affairs Report .................................................................................................... 54

9.2 Internal Affairs Index File ....................................................................................................... 55

9.3 Investigation Files .................................................................................................................. 55

9.4 Retention Schedule ................................................................................................................ 55

9.5 Security of Internal Affairs Records ....................................................................................... 56

9.6 Confidentiality ....................................................................................................................... 56

9.7 Coordination with Civilian Review Boards ............................................................................. 59

9.8 Coordination with Other Law Enforcement Agencies ........................................................... 62

9.9 Reporting to Law Enforcement Executive ............................................................................. 63

9.10 Reporting to County Prosecutor ............................................................................................ 63

9.11 Public Reports ........................................................................................................................ 65

9.12 Personnel Records ................................................................................................................. 67

10 The Responsibilities of County Prosecutors ............................................... 69

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Appendix

Appendix A Sample Civilian Complaint Information Sheet

Appendix B Internal Affairs Report Form

Appendix C Internal Affairs Complaint Notification

Appendix D Sample Immediate Suspension Notice

Appendix E Sample Response Letter

Appendix F Preliminary Notice of Disciplinary Action

Appendix G Miranda Warning

Appendix H Sample Use Immunity Grant

Appendix I Witness Acknowledgement Form

Appendix J Administrative Advisement Form

Appendix K Internal Affairs Policy Reporting Form

Appendix L Annual Major Discipline Reporting Form

Appendix M Final Notice of Disciplinary Action

Appendix N Representative Confidentiality Form

Appendix O Sample Summary and Conclusions Report

Electronic copies of the appendices may be found online at njoag.gov/iapp

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1 Introduction

1.0.1 The purpose of Internal Affairs Policy & Procedures is to assist the State’s law enforcement

agencies with investigating and resolving complaints of police misconduct that originate

with members of the public or are generated by the supervisors, officers, or employees of a

law enforcement agency. The goals of the policy are to enhance the integrity of the State’s

law enforcement agencies, improve the delivery of police services, and assure the people

of New Jersey that complaints of police misconduct are properly addressed. The policy

applies to all sworn law enforcement employees, as well as County Prosecutors and

assistant prosecutors and Assistant Attorneys General and Deputy Attorneys General in the

Division of Criminal Justice. This policy can also be more broadly applied to non-law

enforcement employees.

1.0.2 State and federal courts have emphasized the importance of the internal affairs function

for protecting the constitutional rights and civil liberties of the State’s residents. Case law

generally requires that law enforcement agencies do three things under the internal affairs

function. First, agencies must implement an internal affairs policy that provides for a

meaningful and objective investigation of complaints and other evidence of police

misconduct. Second, agencies must monitor and track the behavior of police officers for

incidents of misconduct. Third, when officers are found to have engaged in misconduct,

agencies must correct the behavior. The courts have with increasing frequency issued

decisions that set minimum standards of performance for the internal affairs function.

1.0.3 The New Jersey Legislature also recognized the importance of the internal affairs function

in 1996 with the enactment of N.J.S.A. 40A:14-181. The statute provides that:

Every law enforcement agency shall adopt and implement guidelines

which shall be consistent with the guidelines governing the "Internal

Affairs Policy and Procedures" of the Police Management Manual

promulgated by the Police Bureau of the Division of Criminal Justice in

the Department of Law and Public Safety, and shall be consistent with

any tenure or civil service laws, and shall not supersede any existing

contractual agreements.

1.0.4 In accordance with this mandate, and recognizing that proper administration of internal

affairs is a critical priority for the State’s criminal justice system, Attorneys General have

periodically issued updated versions of this Internal Affairs Policy & Procedures document

through the Division of Criminal Justice. This most recent round of revisions reflects the

need to incorporate emerging best practices into the State’s internal affairs system, and to

ensure that all law enforcement agencies in the State are adhering to the guidelines.

1.0.5 It is important for county and municipal law enforcement agencies to recognize that, as

they conduct internal affairs investigations, they do so under the general supervision of the

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Attorney General. The Criminal Justice Act of 1970 designates the Attorney General as the

State’s chief law enforcement officer. As the chief law enforcement officer of the State, the

Attorney General possesses broad authority over criminal justice matters in order to secure

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

administration of criminal justice throughout the State. N.J.S.A. 52:17B-98. This authority

includes the issuance of the IAPP, which carries the force of law. N.J.S.A. 40A:14-181. In re

Attorney General Law Enforcement Directive Nos. 2020-5 and 2020-6, 246 N.J. 462 (2021).

Subordinate law enforcement agencies, including county and municipal police forces, have

a duty to cooperate with the Attorney General to improve the administration of the

criminal justice system, including the efficient delivery of police services. For county and

municipal law enforcement agencies, cooperation in internal affairs matters begins with

strict adherence to the Attorney General’s policy requirements. Furthermore, N.J.S.A.

52:17B-107 grants the Attorney General broad authority to supersede in any investigation,

criminal action or proceeding, which includes internal affairs investigations and disciplinary

proceedings. Therefore, whenever the Attorney General determines that it would be

appropriate to do so, the Attorney General, or his or her designee, may: (a) supersede a

county prosecutor or other law enforcement agency in any investigation, criminal action or

proceeding; (b) participate in any investigation, criminal action or proceeding; or (c) initiate

any investigation, criminal action or proceeding. This statutory authority applies fully to any

and all aspects of the internal affairs process, and nothing in the IAPP is intended to limit or

circumscribe the Attorney General’s statutory authority. The Attorney General may

supersede and take control of an entire law enforcement agency, may supersede in a more

limited capacity and take control of the internal affairs function of an agency, or may

supersede and take control of a specific case or investigation. Whenever the Attorney

General determines that supersession is appropriate, the Attorney General may assume

any or all of the duties, responsibilities and authority normally reserved to the chief law

enforcement executive and the agency. Every member of the agency, including the chief

law enforcement executive, has a duty to cooperate fully with the Attorney General during

the investigation and adjudication of such matters. Within their respective counties, the

County Prosecutors shall be vested with the same authority to supersede possessed by the

Attorney General on a statewide basis. See N.J.S.A. 2A:158-5.

1.0.6 County and municipal law enforcement agencies must also recognize that they conduct

internal affairs investigations, particularly those that involve allegations of criminal

conduct, under the direct supervision of the County Prosecutors. County and municipal law

enforcement agencies must inform the appropriate County Prosecutor when allegations of

police misconduct involve potential criminal conduct. In addition, county and municipal law

enforcement agencies must confer with and follow the instructions given by the County

Prosecutor at all critical points in the investigative process. This is particularly true when

the agency is in the process of gathering evidence, including the taking of statements,

concerning allegations of criminal conduct. References to County Prosecutors throughout

this document should also be understood to refer to the Office of the Attorney General

wherever such an interpretation would be appropriate, such as when the Attorney General

has superseded the County Prosecutor or the law enforcement agency.

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1.0.7 This policy contains mandates that, at the Attorney General’s direction, every law

enforcement agency must implement. In some areas, the manner in which these agencies

must implement these mandates is a decision that is left to the individual law enforcement

agency’s discretion. For instance, every agency must establish an internal affairs function.

But certain aspects of the manner in which the mandate is satisfied are left to the

discretion of the individual agencies. Individual agencies shall decide, based on the

characteristics of their jurisdiction and the workload of their agency, whether the internal

affairs function is a full- or part-time unit and how many officers are assigned to work in

that unit.

1.0.8 Nothing in this document displaces other existing requirements for law enforcement

agencies or officers, such as those established by Attorney General Law Enforcement

Directives (“AG Directives”), including AG Directive 2018-2 (mandatory random drug

testing), AG Directive 2018-3 (mandatory early warning systems), and AG Directive 2019-4

(independent investigations of use-of-force and death-in-custody incidents).

1.0.9 Policy requirements that the Attorney General has determined are critical and must be

implemented by every law enforcement agency include the following:

General Practices

(a) Each agency must establish by written policy an internal affairs function.

(b) Each agency must accept reports of officer misconduct from any person, including

anonymous sources, at any time.

against its officers.

(d) Each agency must notify its officers in writing of complaints made against them,

unless this notification would interfere with any investigation resulting from these

complaints.

(e) Each agency must notify its officers of the outcome of any Internal Affairs

investigation involving them.

(f) Each agency must notify complainants of the outcome of their complaints.

(g) If an agency’s internal affairs investigators are unable to complete an investigation

within 45 days of receiving a complaint, they must notify the agency’s law

enforcement executive,

who may take steps to ensure prompt resolution of the

matter.

Notifications to the County Prosecutor

For the purposes of this document, “law enforcement executive” refers to a law enforcement agency’s highest ranking

sworn law enforcement officer, typically the chief of police. In situations where the highest ranking officer is recused

from a matter, then “law enforcement executive” refers to the next highest-ranking officer without a conflict. “Law

enforcement executive” also refers to the Attorney General and relevant County Prosecutor in cases of supersession,

whether that supersession is in whole or in part. Even without supersession, the law enforcement executive remains

subject to the direction of the Attorney General and relevant County Prosecutor.

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(h) Where a preliminary investigation indicates the possibility of a criminal act on the

part of the subject officer, the County Prosecutor must be notified immediately. No

further action should be taken, including the interviewing of, or the filing of charges

against the officer, until the County Prosecutor so directs.

(i) Pursuant to AG Directive 2019-4, the agency must notify the County Prosecutor

immediately of any use of deadly force, any use of force by an officer that results in

death or serious bodily injury, or any death in custody that occurs within its

jurisdiction.

(j) In the rare cases where the agency has not made a charging decision within 180 days

of receiving a complaint, the agency must notify the County Prosecutor, who may

take whatever steps he or she deems appropriate, including supersession of the

investigation, to ensure prompt resolution of the matter.

Recordkeeping & Data Reporting

(k) Pursuant to AG Directive 2018-3, each agency shall establish an “early warning”

protocol for monitoring and tracking the conduct of all officers.

(l) Each agency must establish and maintain an internal affairs records system which, at

a minimum, will consist of an internal affairs index system and a filing system for all

documents and records.

(m) On a quarterly basis, each agency shall submit to the County Prosecutor a report

summarizing the allegations received and the investigations concluded for that

period. The Attorney General shall establish a schedule for the submission of the

reports.

(n) On an annual basis, each agency shall publish on its public website a report to the

public summarizing the allegations received and the investigations concluded for that

period. These reports shall not contain the identities of officers or complainants.

(o) On a periodic basis, and at least once a year, each 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 suspension of 10 days or more was assessed to an agency

member. The synopsis shall not contain the identities of the officers or complainants.

Training

(p) Each agency shall ensure that officers assigned to the internal affairs function

complete training as mandated by the Division of Criminal Justice.

(q) Each County Prosecutor shall ensure that each agency within the Prosecutor’s

jurisdiction implement and maintain a system of ensuring appropriate training for all

personnel involved in the agency’s internal affairs function.

(r) The Division of Criminal Justice shall conduct periodic “train-the-trainer” courses for

all persons assigned responsibility for internal affairs training within the County

Prosecutor’s Offices.

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1.0.10 The above list represents critical performance standards that every county and municipal

law enforcement agency must implement. Agencies that make a vigorous commitment to

the internal affairs process signal their desire to comply with the highest standards of

professionalism in law enforcement. They also ensure that their officers will be

accountable for their actions to both the agency and the community. Agencies that fail to

make such a commitment run the risk of failing to uncover policies, practices and

procedures that may undermine legitimate efforts to provide the highest quality law

enforcement services.

1.0.11 Indifference to the internal affairs function will have a negative impact on the

administration of criminal justice and the delivery of police services to New Jersey’s

residents. Agencies that fail to make the internal affairs function a priority can lose the

respect and support of the community. The integrity of individual law enforcement

agencies, and the reputation of the State’s criminal justice system, can also suffer if

agencies fail to identify and correct officer misconduct. In addition, law enforcement

agencies that fail to implement a meaningful and objective internal affairs process may be

found liable in civil lawsuits for their failure to effectively address officer misconduct. It is

for these reasons that the Attorney General has issued this revised policy and directed that

the State’s law enforcement agencies implement the critical mandates set forth by the

policy.

1.0.12 The internal affairs process represents the agency's response to allegations and complaints

that have been brought to the agency's attention either by agency employees or members

of the public. Law enforcement agencies must establish and implement a process of

investigation and review that is both meaningful and objective. The process must be

designed to ensure that individuals receive adequate redress for legitimate complaints of

misconduct. It is not enough for law enforcement executives to adopt a policy governing

the receipt, investigation and resolution of complaints of officer misconduct; rather, the

policy must be implemented and executed with a commitment to the integrity of the

agency and the constitutional rights of the public. Agencies with an objective and fair

internal affairs process will limit their risk of civil liability.

1.0.13 This policy, the procedures set forth in the policy and the legal citations contained in the

text are intended for implementation by all State, county and municipal law enforcement

agencies. As made clear in AG Directive 2019-5 (issued concurrently with the publication of

this December 2019 version of this policy), all law enforcement and prosecuting agencies

operating under the authority of the laws of the State of New Jersey are directed to

implement and comply with this policy, and to take any additional measures necessary to

update their guidelines consistent with this policy, as required by N.J.S.A 40A:14-181.

1.0.14 Law enforcement agencies that fail to comply with the policies and procedures contained

within this document may be subject to the same sanctions arising from any other violation

of an AG Directive, including supersession of an agency’s law enforcement functions by the

Attorney General.

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2 Fundamentals of the Disciplinary Process

2.0.1 Achieving the desired level of discipline within the law enforcement agency is among the

most important responsibilities of the law enforcement executive. Yet, this is one of the

most frequently neglected processes within many law enforcement agencies. While the

word “discipline” was originally defined as instruction, teaching or training, its meaning has

shifted toward a concept of control through punishment. This emphasis on control has

resulted in discipline being viewed as a negative threat rather than a mechanism for

remediation and improvement. Too frequently rules of conduct and disciplinary procedures

are used as an end in themselves, and their purpose in reaching agency goals is forgotten.

Focusing on the negative aspects of discipline diminishes officer morale and productivity.

2.0.2 The first step toward positive discipline is to emphasize instruction and de-emphasize

control. This requires the law enforcement executive to focus on organizational practices.

The executive must first define the goals and objectives of the agency's units and then

announce management's expectations to guide the units toward realizing those goals. The

law enforcement executive must establish a means to monitor performance and to correct

improper actions.

2.0.3 This approach to management as it relates to discipline insures that all subordinates know

and understand what must be done, why it must be done, how it must be done and when it

must be done. Employees must be clearly told what constitutes satisfactory performance

through performance evaluations and similar procedures. N.J.A.C. 4A:6-5.1. Supervisors

and managers also must know when and how to take corrective action. To achieve this,

management must establish workable procedures for documenting all expectations and

advising individuals of their duties and responsibilities.

2.1 Policy Management System

2.1.1 The agency's policy management system serves as the foundation for effective discipline. A

clearly defined policy management system is designed to move the organization toward its

stated goals and set the standard for acceptable performance. The system must

incorporate a mechanism for distributing rules, regulations, policies and procedures, and

provide for periodic review and revision as necessary. The system should include a

classification and numbering mechanism that facilitates cross-referencing where necessary.

2.1.2 Law enforcement agencies should have a policy management system that, at a minimum,

includes:

(a) Rules and regulations. Principles of behavior that set forth acceptable and

unacceptable conduct. In municipal police agencies, the rules and regulations must be

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issued by the appropriate authority as designated by ordinance.

See N.J.S.A. 40A:14-

118.

(b) Standard operating procedures (SOPs). Written statements providing specific direction

for performing agency activities. Each SOP should also include the agency’s policy in

that area, which is a statement of agency principles that provides the basis for the

development of the procedures.

method of operation.

2.1.3 The policy management system should clearly and explicitly state management's

intentions. Employees must understand what management wants to accomplish and what

behavior is expected. Each category of documents in the policy management system

should be issued in a distinctive, readily identifiable format.

2.2 Rules and Regulations

2.2.1 The agency's rules and regulations should form a "code of conduct" for employees. It

should contain the broadly stated "do's and don'ts," without delving into specific details.

For instance, an agency's rules and regulations should state that any use of force by an

officer must comply with state and federal law, the Attorney General's and the County

Prosecutor's policies, and the agency's S.O.Ps. The specific details of what is considered

force, and what constitutes the acceptable use of force, should be found in the agency's

use of force S.O.P.

2.2.2 The rules and regulations should identify general categories of misconduct or inappropriate

behavior that are subject to disciplinary action. An incident of misconduct or inappropriate

behavior may fall into one or more of the following categories:

(a) Crime. Complaint regarding the commission of an illegal act that constitutes a

violation of the criminal code including disorderly and petty disorderly persons

offenses.

(b) Excessive force. Complaint regarding the use or threatened use of excessive force

against a person.

unjust, or violated the person's civil rights.

(d) Improper entry. Complaint that entry into a building or onto property was improper

or that excessive force was used against property to gain entry.

(e) Improper search. Complaint that the search of a person or property was improper,

unjust, violated established agency procedures or violated the person's civil rights.

(f) Differential treatment. Complaint that the taking of police action, the failure to take

police action or method of police action was predicated upon irrelevant factors such

as race, appearance, age or sex.

(g) Demeanor. Complaint that an agency member's bearing, gestures, language or other

actions were inappropriate.

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(h) Serious rule infractions. Complaint for conduct such as insubordination, drunkenness

on duty, sleeping on duty, neglect of duty, false statements or malingering.

(i) Minor rule infractions. Complaint for conduct such as untidiness, tardiness, faulty

driving, or failure to follow procedures.

2.2.3 The Rules and regulations shall provide for uniform classification of the resolution of

complaints as follows:

(a) Sustained. A preponderance of the evidence shows an officer violated any law;

regulation; directive, guideline, policy, or procedure issued by the Attorney General

or County Prosecutor; agency protocol; standing operating procedure; rule; or

training.

(b) Unfounded. A preponderance of the evidence shows that the alleged conduct did not

occur.

but did not violate any law; regulation; directive, guideline, policy, or procedure

issued by the Attorney General or County Prosecutor; agency protocol; standing

operating procedure; rule; or training. (For example, at the conclusion of an

investigation into an excessive force allegation, the agency finds that the officer used

force (alleged conduct) but that the force was not excessive (alleged violation).)

(d) Not Sustained. The investigation failed to disclose sufficient evidence to clearly prove

or disprove the allegation.

2.2.4 In addition, the rules and regulations should set forth a schedule of possible penalties an

officer might receive when discipline is imposed. The rules and regulations may incorporate

a system of progressive discipline. Progressive discipline serves an important role in the

process by which the agency deals with complaints of misconduct or inappropriate

behavior. In lieu of discipline, counseling, re-training, enhanced supervision, oral reprimand

and performance notices can be used as instructional or remedial devices to address

deficiencies or inadequate performance.

2.2.5 In providing a range of penalties, the agency can use the disciplinary process to achieve the

basic goals of instruction and address inappropriate behavior before minor problems

escalate into major problems. At the same time, the subject officer should be made aware

that repeated violations of the agency's rules will result in progressive discipline. An

internal affairs complaint that has a disposition of exonerated, unfounded or not sustained

should not be used to effect progressive discipline.

2.2.6 A system of progressive discipline can include the following elements:

(a) Oral reprimand or performance notice;

(b) Written reprimand;

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(d) Suspension without pay;

(e) Loss of a promotional opportunity;

(f) Demotion; and

(g) Discharge from employment.

2.2.7 The disciplinary process should be thoroughly explained in the agency's rules and

regulations, including a description of the officer's rights, the identity of the hearing officer,

an outline of the hearing process and, if applicable, appeal procedures available to the

officers.

2.2.8 An agency's rules and regulations, which include the description of the disciplinary process,

shall be distributed to all employees. The agency should document that this distribution

has taken place. In addition, a copy of the rules and regulations and a copy of the agency's

internal affairs S.O.P. shall be made available to a representative of any employee

collective bargaining unit.

2.3 Responsibility for Discipline

2.3.1 The successful implementation of discipline requires the law enforcement executive to

delegate responsibility for the disciplinary process to individual units and supervisors within

the agency, and perhaps to Human Resources. Although the levels of authority may vary

within an agency's chain of command, the failure to carry out disciplinary responsibilities at

any level in that chain will contribute to the organization's ineffectiveness. The task of

clearly delineating the authority and responsibility to initiate and impose discipline is

essential to the agency’s administration.

2.3.2 Every supervisor must establish a familiarity with the agency's disciplinary process and

develop an understanding of how to implement specific disciplinary procedures when

called upon to deal with inappropriate behavior or misconduct. If a supervisor fails to

follow these procedures or avoids their responsibility, that supervisor is not conforming to

expected behavior and must receive some sort of corrective action. Some supervisors

occasionally need to be reminded that the fundamental responsibility for direction and

control rests with the immediate supervisor at the operational level, not with the law

enforcement executive.

2.3.3 To provide such direction and control, supervisory personnel must be granted the proper

authority to carry out their responsibilities. To properly exercise this authority, supervisory

personnel must be fully familiar with applicable agency rules and regulations. Based on the

size and needs of the individual agency, supervisory personnel may be permitted to impose

Agencies operating under Civil Service Commission statutes (N.J.S.A. 11A:2-20) and regulations may only assess a fine in

lieu of a suspension where loss of the officer from duty would be "detrimental to the public health, safety or welfare" or

if the assessment is restitution or is agreed to by the employee.

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specific disciplinary measures (subject to approval of the law enforcement executive)

including oral reprimands or performance notices, written reprimands and suspensions. In

addition, the supervisor should be permitted to make written recommendations for other

disciplinary actions. The extent of this authority must be clearly stated in the agency's

disciplinary rules and regulations.

2.4 Fitness for Duty

2.4.1 One of the areas that often involves internal affairs is an employee's fitness for duty. This is

not exclusively an internal affairs issue; an officer's fitness may be impacted for reasons

other than misconduct. For instance, an officer may become unfit for duty because of a

medical problem unrelated to the job. There are occasions, however, when internal affairs

may be called upon to assist in determining whether or not an officer is fit for duty.

2.4.2 It is incumbent upon a law enforcement agency to ensure that its members are fit to safely

and effectively perform the duties of their profession. If, for whatever reason, an officer's

fitness for duty is questioned, the agency must have the officer evaluated by competent

professionals to answer that question. If a law enforcement executive, commander,

supervisor or internal affairs investigator has reasonable concerns about an officer’s fitness

for duty, they are obligated to begin the process necessary to obtain that evaluation. If the

officer in question is obviously unfit for duty, the officer in authority may effect an

immediate suspension pending the outcome of the evaluation and investigation. See

Section 5.2 (“Immediate Suspension Pending Investigation and Disposition”).

2.4.3 At the same time, law enforcement work places an extraordinary mental and emotional toll

on officers, and all officers must be free to seek treatment and support that enables them

to cope with those pressures. Accordingly, under no circumstances shall an officer face any

sort of discrimination or adverse internal affairs consequences for the sole reason that the

officer decided to seek medical or psychological treatment for a mental health concern,

including depression, anxiety, post-traumatic stress disorder, or substance use disorder. All

officers are encouraged to take advantage of the resources provided by the New Jersey

Resiliency Program for Law Enforcement, as well as the other resources identified in AG

Directive 2019-1, also known as the “Officer Resiliency Directive.”

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3 Prevention of Misconduct

3.0.1 Prevention is the primary means of reducing and controlling inappropriate behavior and

misconduct. Although disciplinary actions are properly imposed on officers who engage in

wrongdoing, they have limited utility if they shield or obscure organizational conditions

that permit the abuses to occur. Inadequate training and a lack of appropriate guidance too

often are factors that contribute to inappropriate behavior and misconduct. An agency

should make every effort to eliminate the organizational conditions that may foster, permit

or encourage an employee’s inappropriate behavior. In the furtherance of this objective,

special emphasis should be placed on the following areas.

3.1 Recruitment and Selection

3.1.1 Selecting and appointing the highest quality individuals to serve as law enforcement

officers must be a priority of every law enforcement agency. During the selection process,

written tests, psychological tests, background investigations and individual interviews

should be completed by each candidate in an attempt to identify those who would be best

suited for law enforcement employment. Background investigations must include a review

of the prior internal affairs files of any candidate.

3.1.2 New Jersey law enforcement agencies are required by this policy to disclose the entire

internal affairs file of a candidate to prospective law enforcement employers. See Section 9

(“Internal Affairs Records”). Candidates with out-of-state law enforcement experience

must sign waivers of confidentiality regarding their internal affairs files so that they may be

reviewed by the prospective employer, where legally permissible. These procedures may

also be used for promotional testing, and assignment to especially sensitive responsibilities

or those that pose the greatest opportunities for abuse or wrongdoing. Each agency should

establish policies and procedures for recruitment, oral and written examinations, selection

and the promotional process.

3.2 Training

3.2.1 Basic and in-service training for law enforcement officers should emphasize the sworn

obligation of those officers to uphold the law and ensure public safety. Police ethics should

be a major component in the training curricula. In addition, the rules, regulations, policies

and procedures of the agency, including the disciplinary process, should be stressed. There

must also be a process to advise veteran officers of any new statutory requirements or

significant procedural changes.

3.2.2 An agency’s supervisory personnel should always consider the need for training when

officers engage in inappropriate behavior or misconduct. The question should be, “Could

training have prevented this behavior and can training prevent it from happening in the

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future?” Perhaps a particular officer or group of officers needs a refresher course in a

certain subject. In addition, changes in the law, the agency or even within the community

may trigger the need for a type of training never before given to the officer or agency.

Training in this sense can be anything from informal counseling of an officer about a

particular policy or procedure to formal agency-wide training. The agency may also take

advantage of training offered by other agencies, including police academies, the County

Prosecutors, the Division of Criminal Justice, other public or private entities or web-based

programs.

3.3 Supervision

3.3.1 Proper supervision is critical to the discipline and management of a law enforcement

agency. To maximize their effectiveness, agency supervisors should receive appropriate

supervisory training as close as possible to the time of their promotion. Emphasis should be

placed on anticipating problems among officers before they result in improper

performance or conduct. Supervisors are expected to recognize potentially troublesome

officers, identify training needs of officers and provide professional support in a fair and

consistent manner.

3.4 Early Warning and Risk Management

3.4.1 Although the internal affairs process is frequently triggered by the filing of a civilian

complaint, law enforcement agencies must also proactively work to detect troubling

patterns in police conduct before that conduct escalates into more serious internal affairs

issues.

3.4.2 To enhance its integrity, provide an optimal level of service to the community and reduce

its exposure to civil liability, every law enforcement agency should establish procedures for

dealing with problem employees. Law enforcement agencies have a duty to monitor their

employees’ behavior, and establish mechanisms that provide the internal affairs function

and the law enforcement executive with the ability to track the complaint records of

individual officers and identify those officers with a disproportionate number of complaints

against them. Law enforcement agencies must utilize the information developed by these

mechanisms to prevent individual officers from engaging in conduct or behavior that

violates the constitutional liberties every member of the community enjoys. It also is

expected that law enforcement agencies will utilize the information to prevent

development of patterns, practices or trends of inappropriate behavior or conduct.

3.4.3 Per AG Directive 2018-3 v2.0, also known as the “Early Warning Systems Directive,” law

enforcement agencies are required to implement a specific mechanism to track employee

behavior, commonly known as an "early warning system." An early warning system should

be designed to identify any pattern or practice by any member of the agency that warrants

intervention or remediation before it develops into a more serious problem.

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3.4.4 Any mechanism or procedure a law enforcement agency establishes to monitor and track

the behavior and performance of individual police officers must have as two of its linchpins

quality supervision and an objective and impartial internal affairs process. Supervisors who

have sufficient time and resources to properly perform their duties should be able to timely

identify officers with performance and misconduct issues. Supervisors can react to

problems they identify through direction, counseling and effective performance

evaluations. Proper training of agency supervisors is critical to the discipline and

performance of law enforcement officers. Emphasis should be placed on anticipating

problems among officers before they result in improper performance or misconduct.

Supervisors are expected to recognize potentially troublesome officers, identify training

needs of officers and provide professional support in a consistent and fair manner.

3.4.5 Many different measures of officer performance can be regularly examined for any of

these troubling patterns or practices. Law enforcement executives shall determine what

performance measures are appropriate for the communities they serve, but at a minimum

an agency must track the following performance indicators:

(a) Internal affairs complaints against the officer, whether initiated by another officer or

by a member of the public;

(b) Civil actions filed against the officer;

(d) Any use of force by the officer that is formally determined or adjudicated (for

example, by internal affairs or a grand jury) to have been excessive, unjustified, or

unreasonable;

(e) Domestic violence investigations in which the officer is an alleged subject;

(f) An arrest of the officer, including on a driving under the influence charge;

(g) Sexual harassment claims against the officer;

(h) Vehicular collisions involving the officer that are formally determined to have been

the fault of the officer;

(i) A positive drug test by the officer;

(j) Cases or arrests by the officer that are rejected or dismissed by a court;

(k) Cases in which evidence obtained by an officer is suppressed by a court;

(l) Insubordination by the officer;

(m) Neglect of duty by the officer;

(n) Unexcused absences by the officer;

(o) Any other indicators, as determined by the agency’s chief executive.

3.4.6 This information should be maintained to facilitate analysis as to individual members,

supervisors, squads, districts and assignments, and the agency as a whole. Depending on

the size of the agency and the complexity of this data, computerized software that utilizes

mathematical algorithms may be best suited to assist in revealing the presence of

particular patterns of incidents. However, not all law enforcement agencies have the

computer capabilities for such an in-depth screening process. At a minimum, every law

enforcement agency should establish a protocol for tracking employee behavior and

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reviewing all internal affairs complaints made against its officers, regardless of outcome,

for evidence of a pattern or practice of inappropriate or unconstitutional conduct.

3.4.7 For further information regarding the Attorney General’s requirements for early warning

systems, agencies should consult the Early Warning Systems Directive.

3.5 Staff Inspections

3.5.1 While the primary responsibility for enforcing agency policies rests with the line

supervisors, management cannot rely solely on those supervisors for detecting violations.

Administrators should establish a mechanism to determine whether an agency's policies

and procedures are being properly implemented. It is necessary for management to know

if behavior is, in fact, consistent with the agency's rules and regulations, policies and

procedures. The task of detecting such defects should be delegated to an inspection unit or

function.

3.5.2 Large agencies might establish an inspection unit operating directly out of the office of the

law enforcement executive. Small and medium size agencies can successfully accomplish

this function by periodically assigning the inspection task to selected unit supervisors.

Individuals so assigned must be of unquestioned integrity and hold sufficient rank to

achieve the objectives of the inspection function.

3.5.3 The inspection function should determine by actual on-site inspection whether personnel

are properly implementing management’s policies at the operational level. This function is

also responsible for reviewing and evaluating procedures. In addition, the inspection unit

or function should evaluate the material resources of the agency and the utilization of

those resources. This includes, but is not limited to, motor vehicles, communications

equipment, computers, office machinery and supplies. The inspection function or unit

should report any deficiencies to the law enforcement executive, and recommend any

possible solutions and improvements.

3.6 Community Outreach

3.6.1 Commanding officers should strive to remain informed about and sensitive to the

community’s needs and problems. Regularly scheduled meetings to discuss community

concerns should be held with public advisory councils, religious groups, schools, businesses

and other community leaders. These meetings help commanding officers identify potential

crisis situations and keep channels of communication open between the agency and the

community. The disciplinary process should be publicized and clearly explained in these

forums.

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4 Internal Affairs Unit or Function

4.0.1 Every law enforcement agency shall establish, by written policy, an internal affairs unit or

function. Depending upon the need, the internal affairs function can be full- or part-time.

In either case, this requires the establishment of a unit or the clear allocation of

responsibility and resources for executing the internal affairs function. The unit will consist

of agency personnel assigned to internal affairs by the law enforcement executive.

Personnel assigned to the internal affairs function serve at the pleasure of and are directly

responsible to the law enforcement executive or the designated internal affairs supervisor.

4.1 Duties and Responsibilities

4.1.1 The purpose of the internal affairs function is to establish a mechanism for the receipt,

investigation, and resolution of officer misconduct complaints. The goal of internal affairs is

to ensure that the integrity of the agency is maintained through a system of internal

discipline where an objective and impartial investigation and review assure fairness and

justice.

4.1.2 The internal affairs function or officer will investigate alleged misconduct by members of

the agency and review the adjudication of minor complaints handled by supervisors. In

addition, internal affairs shall receive notice of:

(a) Any firearm discharge by agency personnel, whether on-duty or off-duty, unless the

discharge occurred during the course of: (1) a law enforcement training exercise; (2)

routine target practice at a firing range; (3) a lawful animal hunt; or (4) the humane

killing of an injured animal;

(b) Any discharge of an agency-owned firearm by anyone other than agency personnel;

(d) Any vehicular pursuit involving agency personnel; and

(e) Any collision involving agency-owned vehicles.

Upon receiving notification, the agency’s internal affairs function shall document the

incident and determine whether additional investigation is necessary.

4.1.3 An internal affairs function also has an obligation to investigate or review any allegation of

employee misconduct that is a potential violation of an AG Directive or Guideline, a

Directive issued by a County Prosecutor in that jurisdiction, the agency's rules and

regulations, or any allegation that indicates the employee is unable, unwilling or unfit to

perform their duties. The obligation to investigate includes not only acts of misconduct that

are alleged to have occurred while the subject officer was on-duty, but also acts of

misconduct that are alleged to have occurred outside the employing agency's jurisdiction

or while the subject officer was off-duty.

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4.1.4 An internal affairs function may conduct an internal investigation on its own initiative or

upon notice to or at the direction of the law enforcement executive or the internal affairs

supervisor. Internal affairs may refer investigations to the employee's supervisor for action

as permitted by agency policy and procedures.

4.1.5 Internal affairs investigations must be considered as important to the agency as any

criminal investigation. Members of the internal affairs function therefore should have the

authority to interview any member of the agency and to review records and reports of the

agency relative to their assignment. In addition, the agency's personnel should be

instructed that the internal affairs function acts at the behest of the law enforcement

executive in all internal affairs investigations. The agency's personnel should be further

instructed that during an internal affairs investigation, every member of the agency,

regardless of rank, shall treat an order or a request from a member of the internal affairs

function as if the order or request came directly from the law enforcement executive.

4.1.6 The internal affairs function shall maintain a comprehensive central file on all complaints

received, whether investigated by internal affairs or assigned to the officer's supervisors for

investigation and disposition. In addition, internal affairs should establish protocols for

tracking all complaints received by the agency and the conduct of all officers. The protocols

must include criteria for evaluating the number of complaints received by the agency and

the number of complaints filed against individual officers.

4.2 Selection of Personnel for the Internal Affairs Function

4.2.1 Personnel assigned to conduct internal affairs investigations should be energetic,

resourceful and committed to the agency's mission and the internal affairs function. They

must display a high degree of perseverance and initiative. The internal affairs investigator

must maintain an appropriate balance between professional commitment and personal

and group loyalties. Internal affairs personnel must be of unquestioned integrity and

possess the moral stamina to perform unpopular tasks. It is important that these

investigators possess the ability to withstand the rigors and tensions associated with

complex investigations, social pressures and long hours of work. The investigator must

possess the ability to be tactful when dealing with members of the agency and the

community. It is recommended that personnel assigned to the internal affairs function

provide the agency with the opportunity to access all segments of the community. For

example, if a particular community has a significant proportion of the population that

speaks a foreign language, the law enforcement executive may wish to consider assigning

an officer to the internal affairs function who speaks that language.

4.2.2 Law enforcement executives should assign personnel to internal affairs who have sufficient

experience and rank to effectively handle sensitive investigations that may include

investigations of supervising officers. In addition, law enforcement executives should

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encourage (but need not require) officers to complete a tour in the agency’s internal affairs

function prior to promotion to a leadership position in the agency.

4.2.3 Investigations of officer misconduct may proceed in one of two ways. An investigation may

be conducted for the purpose of imposing a disciplinary sanction or initiating a criminal

prosecution. The distinction between the two is important because each type of

investigation has differing legal requirements. Consequently, it is important that the

internal affairs investigator be familiar with proper investigative techniques and legal

standards for each type of proceeding. It is essential that experienced investigators be

assigned to internal affairs investigations. Each investigator must be skilled in interviews

and interrogation, observation, surveillance and report writing.

4.2.4 Internal affairs investigators should be trained not only in the elements of criminal law,

court procedures, rules of evidence and use of technical equipment, but also in the

disciplinary and administrative law process. Initially upon assignment, and on an ongoing

basis, these investigators should receive training in internal affairs and disciplinary

procedures, including training required by the Division of Criminal Justice.

4.2.5 Law enforcement executives shall not assign to the internal affairs function any person

responsible for representing members of a collective bargaining unit. The conflict of

interest arising from such an assignment would be detrimental to the internal affairs

function, the subject officer, the person so assigned, the bargaining unit and the agency as

a whole. In order to maintain the integrity and confidentiality of investigations, any witness

and representative present at an interview shall be required to sign and adhere to a non-

disclosure agreement. Witnesses shall be required to sign the form attached as Appendix I.

Representatives shall be required to sign the form attached as Appendix N.

4.2.6 Investigators must recuse from cases where they have a conflict of interest that may

prevent them from being impartial in the investigation of a subject officer. One example is

if the investigator and the officer are family members or close personal friends.

Additionally, agencies should ensure, if feasible, that the initial investigator of a subject

officer is not an officer who is a supervisor within the subject officer’s chain of command.

In rare cases, this requirement may prove difficult to fulfill because an agency is particularly

small.

4.2.7 Under no circumstances may a law enforcement agency’s internal affairs investigatory

function be contracted or delegated to a private entity. Instead, when necessary, law

enforcement agencies may request that an internal affairs complaint be investigated

directly by the County Prosecutor, who shall determine whether to investigate the matter,

refer the matter to the Internal Affairs function of another law enforcement entity, or

return the matter to the originating law enforcement agency if the County Prosecutor

determines that the original agency can appropriately investigate the matter.

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4.2.8 Where appropriate, an agency may enter into an agreement with another law enforcement

agency to conduct an Internal Affairs investigation, and smaller law enforcement agencies

that consistently have difficulty carrying out the internal affairs function are encouraged to

explore regional internal affairs arrangements in concert with other law enforcement

agencies.

4.2.9 Nothing in this policy shall prevent a law enforcement agency from retaining a qualified

private individual to serve as a hearing officer or an expert witness.

4.3 Training of Internal Affairs Personnel

4.3.1 Each agency shall ensure that officers assigned to the internal affairs function complete

training as mandated by the Division of Criminal Justice.

4.3.2 Each County Prosecutor shall ensure that each agency within the Prosecutor’s jurisdiction

implement and maintain a system of ensuring appropriate training for all personnel

involved in the agency’s internal affairs function.

4.3.3 The Division of Criminal Justice shall conduct periodic “train-the-trainer” courses for all

persons assigned responsibility for internal affairs training within the County Prosecutor’s

Offices. These trainers shall be responsible to train the internal affairs officers of agencies

within their jurisdiction of the County Prosecutor.

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5 Accepting Reports of Officer Misconduct

5.0.1 Every law enforcement agency shall establish a policy providing that any complaint from a

member of the public is readily accepted and fully and promptly investigated. Allegations

of officer misconduct or complaints of inappropriate behavior can alert the law

enforcement executive to problems that require disciplinary action or identify the need for

remedial training. In addition, executives must also recognize that complaints from the

public provide them with an invaluable source of feedback. Such complaints, whether

substantiated or not, increase the executive's awareness of both actual or potential

problems and the community's perceptions and attitudes about police practices and

procedures. The executive should use complaints from the public as one means of

determining whether the agency is falling short of its intended goals.

5.1 Accepting Reports Alleging Officer Misconduct

5.1.1 All complaints of officer misconduct shall be accepted from all persons who wish to file a

complaint, regardless of the hour or day of the week. This includes reports from

anonymous sources, juveniles, undocumented immigrants, and persons under arrest or in

custody. Internal affairs personnel, if available, should accept complaints. If internal affairs

personnel are not available, supervisory personnel should accept reports of officer

misconduct, and if no supervisory personnel are available, complaints should be accepted

by any law enforcement officer. At no time should a complainant be told to return at a

later time to file their report.

5.1.2 Members of the public should be encouraged to submit their complaints as soon after the

incident as possible. If the complainant cannot personally appear at the agency to file the

complaint, a member of the agency, preferably a member of the internal affairs function,

should visit the complainant at their home, place of business or other location if necessary

to complete the report. Law enforcement agencies are encouraged to establish systems to

enable complaints to be accepted by telephone or by email if a complainant does not wish

to be interviewed in person or wishes to remain anonymous. Under no circumstances shall

it be necessary for a complainant to make a sworn statement to initiate the internal affairs

process. Furthermore, every police agency shall accept and investigate anonymous

complaints.

5.1.3 The internal affairs investigator, supervisor or other officer receiving the complaint will

explain the agency's disciplinary procedures to the person making the complaint. The

officer shall advise the complainant that he or she will be kept informed of the status of the

complaint, if requested, and its ultimate disposition. To best accomplish this, the agency

shall prepare a fact sheet or brochure that includes information on the agency's internal

affairs process and what role the complainant can expect to play. If feasible, the fact sheet

or brochure should be provided to the complainant at the time the complaint is made. A

sample fact sheet is found in Appendix A.

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5.1.4 The supervisor or other officer receiving the complaint shall complete the appropriate

internal affairs report form. The report form should have adequate instructions for proper

completion. Attached to this directive as Appendix B is a standardized statewide public

complaint form that will be available in multiple languages in electronic format on the

Attorney General’s website. Agencies shall make available to complainants versions of the

standardized form in all of those languages in their offices and, if the agency has a website,

online.

5.1.5 Upon receipt of an internal affairs complaint, the internal affairs investigator can advise the

complainant of the importance of providing accurate and truthful information. However,

when providing such advice, internal affairs investigators must remember that it is

important to balance the need for receiving complaints of officer misconduct against the

danger of discouraging members of the public from coming forward with their complaints.

Therefore, any language that would serve to dissuade or intimidate a member of the public

from coming forward should be avoided. Accordingly, at no point during the initial intake of

a complaint should any officer affirmatively warn a complainant that consequences could

potentially result from making misrepresentations or a false report. This does not preclude

officers from explaining the potential consequences of false reports to complainants if the

officer is specifically asked about this.

5.1.6 Although there are complaints against officers that are legitimate and based upon facts,

others are contrived and maliciously pursued, often with the intent to mitigate or

neutralize the officer’s legal action taken against the complainant. The law enforcement

agency must fully and impartially investigate the former, while taking a strong stand to

minimize the latter. The law enforcement agency should notify the County Prosecutor in

any case where a complainant has fabricated or intentionally misrepresented material facts

to initiate a complaint of officer misconduct.

5.1.7 Anonymous reports of improper conduct by an officer shall be accepted. All efforts will be

made to encourage full cooperation by the complainant. The investigation of anonymous

complaints can be troublesome. However, accurate information about officer wrongdoing

may be provided by someone who, for any number of reasons, does not want to be

identified. Therefore, an anonymous report must be accepted and investigated as fully as

possible. In the event an agency receives an anonymous complaint, the officer accepting it

should complete as much of the internal affairs report form as he or she can given the

information received.

5.1.8 Complaints against a law enforcement executive, or a member of the executive’s senior

management team, may originate from a member of the public or from an employee of the

agency. All such complaints shall be documented and referred to the County Prosecutor for

review. If the subject of the Internal Affairs investigation is the Police Chief, Police Director,

Sheriff or Head of Internal Affairs, either the County Prosecutor or the Attorney General’s

Office shall handle the investigation. The investigation may involve any type of alleged

employee misconduct, as described in Section 4.1.3, and shall be conducted pursuant to

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Section 6 (Investigation of Internal Complaints). In such matters, the County Prosecutor or

the Attorney General’s Office shall exercise the authority of the law enforcement executive

under Sections 1.0.5 and 6.3.11. At the conclusion of the investigation, the internal affairs

investigator and/or the investigating agency shall make factual findings, summarize the

matter, and indicate the appropriate disposition (Sustained, Unfounded, Exonerated, or

Not Sustained) as to each allegation of misconduct. See Sections 6.2.3 and 6.3.9. In cases

involving Police Chiefs, factual findings and preliminary notices of discipline shall be

forwarded to the appropriate authority. While the appropriate authority must make the

final decision regarding discipline, the County Prosecutor or the Attorney General may

make a non-binding recommendation regarding the discipline to be imposed by the

appropriate authority. The County Prosecutor or the Attorney General’s Office also may

determine that it is appropriate to handle other internal affairs investigations in their

discretion. In those cases of supersession, the County Prosecutor or the Attorney General

may exercise any or all of the authority of the law enforcement executive under Sections

1.0.5 and 6.3.11. Nothing in this subsection shall be construed to limit the authority of the

Attorney General or the County Prosecutor to supersede in any other investigation,

criminal action or proceeding.

5.1.9 Complaints may also be received from other law enforcement agencies, such as

neighboring municipal police agencies, the County Prosecutors, the Division of Criminal

Justice or federal law enforcement agencies. Those complaints should be forwarded to

internal affairs for immediate investigation. In some jurisdictions, law enforcement

agencies may be subject to the oversight of a civilian review board authorized to accept

complaints directly from members of the public. If a civilian review board refers a

complaint to a law enforcement agency, then those complaints should be forwarded to

internal affairs for immediate investigation.

5.1.10 If a person comes to a particular law enforcement agency to make a complaint about a

member of another law enforcement agency, he or she should be referred to that agency.

The complainant should also be advised that if they have fear or concerns about making

the complaint directly to the agency, they may instead file a complaint with the County

Prosecutor or the Attorney General’s Office.

5.1.11 All complaints should be investigated if the complaint contains sufficient factual

information to warrant an investigation. In cases where the officer’s identity is unknown,

the internal affairs investigator should use all available means to determine proper

identification. Where civil litigation has been filed and the complainant is a party to or a

principal witness in the litigation, the internal affairs investigator shall consult with legal

counsel to determine whether an investigation is appropriate or warranted.

5.1.12 In some cases, a complaint is based on a misunderstanding of accepted law enforcement

practices or the officer’s duties. Supervisors should be authorized to informally resolve

minor complaints, whenever possible, at the time the report is made. If the complainant is

not satisfied with such a resolution, the complaint should be forwarded to internal affairs

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for further action as warranted. The process of informally resolving internal affairs

complaints requires the exercise of discretion by supervisors. The proper exercise of

discretion in such matters cannot be codified.

5.1.13 Even if the complainant is satisfied with the informal resolution, the process should be

recorded on an internal affairs report form. Regardless of the means of resolution, the

integrity of the internal affairs process, particularly the receipt of complaints, demands that

complaints and inquiries from any member of the public be uniformly documented for

future reference and tracking. The form should indicate that the matter was resolved to

the satisfaction of the complainant and sent to internal affairs for review and filing. The

internal affairs supervisor should periodically audit those reports indicating that the

complaint was informally resolved to ensure that the agency's supervisors are properly

implementing their authority to resolve complaints from members of the public.

5.1.14 Once a complaint has been received, the subject officer shall be notified in writing that a

report has been made and that an investigation will commence. Such notification shall not

include the name of the complainant. This notification is not necessary if doing so would

impede the investigation. An example of a notification form is found in Appendix C.

5.2 Immediate Suspension Pending Investigation and Disposition

5.2.1 In certain serious cases of officer misconduct, the agency may need to suspend the subject

officer pending the outcome of the investigation and subsequent administrative or criminal

charges. To effect an immediate suspension pending the investigation, at least one of the

following conditions must be met:

(a) The employee is unfit for duty;

(b) The employee is a hazard to any person if permitted to remain on the job;

direction of public services;

(d) The employee has been formally charged with a first, second or third degree crime;

(e) The employee has been formally charged with a first, second, third or fourth degree

crime or a disorderly persons offense committed while on duty, or the act touches

upon their employment.

5.2.2 Before the immediate suspension of an officer, the law enforcement executive or

authorized person should determine which of those criteria apply. The decision whether or

not to continue to pay an officer who has been suspended pending the outcome of the

investigation rests with the law enforcement executive and appropriate authority, who

should carefully consider all ramifications of these choices.

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5.2.3 It should be clear that the suspension of an officer before completing an investigation or

disposing of a case is a serious matter. Such suspensions may be immediately necessary, as

in the case of an officer reporting for work under the influence of alcohol. In other cases,

however, a suspension need not be immediate but rather would follow a preliminary

investigation into the matter that indicates that one of the above criteria has been met. In

any case, suspension prior to disposing of the case must be clearly documented and

justified. At the time of the suspension, the individual shall be provided with a written

statement of the reasons the action has been taken. (A sample form is found in Appendix

D). In the event of a refusal by the individual to accept that written statement, a copy shall

be provided to the individual's collective bargaining representative as soon as possible. If a

supervisor or commander authorized to do so imposes an immediate suspension, the law

enforcement executive must be advised without delay. He or she will then determine the

status of the suspension given the facts of the case in light of the above criteria. In no case

shall an immediate suspension be used as a punitive measure.

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6 Investigation of Internal Complaints

6.0.1 All allegations of officer misconduct shall be thoroughly, objectively, and promptly

investigated to their logical conclusion in conformance with this policy, regardless of

whether the officer resigns or otherwise separates from the agency.

6.1 Time Limitations

6.1.1 It is vitally important that agencies complete internal affairs investigations in a prompt

manner. Long, unnecessary delays do not simply create additional uncertainty for the

subject officer; they can also threaten the integrity of an investigation and the trust of the

community.

6.1.2 Most internal affairs complaints are straightforward, and most of these routine complaints

can be investigated and resolved quickly. In many cases, an internal affairs investigation

will take no more than 45 days from the receipt of the complaint to the filing of disciplinary

charges. The simpler the case, the quicker the inquiry should be completed.

6.1.3 In more complex matters, however, investigators sometimes need additional time to

collect evidence, interview witnesses, or take other necessary investigative steps. In

addition, when an officer’s alleged conduct gives rise to a criminal investigation, ordinarily,

internal affairs investigators should stay their own inquiry pending the resolution of the

criminal matter.

6.1.4 If investigators are unable to complete an internal affairs investigation within 45 days of

receiving a complaint, they must notify the agency’s law enforcement executive on or

about the 45th day.

In such situations, the law enforcement executive should seek to

identify the reasons for the extended investigation and whether the internal affairs

function requires additional resources or oversight to complete the inquiry in a prompt

manner. In addition, the law enforcement executive should ensure compliance with the

“45-day rule” established by N.J.S.A. 40A:14-147, which requires that certain disciplinary

charges be filed within 45 days of the date the person filing the charge obtained “sufficient

information” to do so.

6.1.5 Investigators are required to provide further notice to the law enforcement executive every

additional 45 days that the internal affairs investigation remains open (i.e., on or about the

90th, 135th, and 180th days from the receipt of the complaint), and the law enforcement

executive should exercise increasing scrutiny of the investigators’ work the longer the case

remains open.

The purpose of this notice is to facilitate prompt resolution of internal affairs investigations, not to create

an impediment to discipline in cases that take longer to resolve.

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6.1.6 In the rare cases where the agency has not filed disciplinary charges (or decided not to do

so) within 180 days of receipt of the complaint, the agency must notify the County

Prosecutor. The County Prosecutor, or their designee, shall investigate the reasons for the

extended investigation and shall also examine whether the agency’s internal affairs

function faces any systemic issues that require additional resources or oversight. The

County Prosecutor may take any steps necessary to ensure prompt resolution of the

pending matter, including supersession of the agency’s investigation. The agency shall

provide further notice to the County Prosecutor every additional 90 days that the

investigation remains open (i.e., on or about the 270th and 360th days from the receipt of

the complaint). The chart in Figure 1 provides an overview of that information.

Figure 1.

Timing of Internal Affairs Investigations

Length of investigation

from receipt of complaint

Special notice required

1 to 44 days (“Routine”)

None. Case resolved in the

ordinary course.

45 days (“More complex”)

Law enforcement executive

90 days

Law enforcement executive

135 days

Law enforcement executive

180 days (“Rare cases”)

County Prosecutor

Law enforcement executive

225 days

Law enforcement executive

270 days

County Prosecutor

Law enforcement executive

6.1.7 The law enforcement executive should consult with counsel about compliance with the 45-

day rule, which includes several exceptions and tolling provisions. For example, the "45-day

rule" does not apply to internal affairs investigations alleging incapacity. In addition,

members of the public are not required to make their complaint within 45 days of the

incident. But once the agency has received the individual's complaint, the 45-day rule

applies.

6.1.8 Commencing a criminal investigation into the subject matter of an internal affairs

complaint will suspend the 45-day rule pending the disposition of that investigation; such

suspension remains until the disposition of the criminal investigation. (Similarly, a criminal

investigation will toll the notice requirements established in Sections 6.1.4 – 6.1.6.) Upon

disposition of the criminal investigation, agencies will once again be bound by the 45-day

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rule, with the 45-day period starting anew upon termination of the criminal investigation.

Therefore, in the event a County Prosecutor has initiated a criminal investigation of an

internal affairs matter, the internal affairs function must remain in contact with the County

Prosecutor on a regular basis to determine the investigation’s progress. Where a County

Prosecutor has decided to terminate a criminal investigation and return the matter to the

agency for appropriate disciplinary action, the internal affairs investigator and County

Prosecutor must be able to document the date on which the County Prosecutor disposed

of the criminal investigation.

6.1.9 When an agency can conduct an internal affairs investigation and file disciplinary charges

within 45 days of the receipt of a complaint, the 45-day rule does not become an issue. In

many instances this will be possible. However, if an agency cannot do so, the burden is on

the investigator and ultimately the agency to identify the point at which "sufficient

information" was developed to initiate disciplinary action. Therefore, it is important that a

detailed chronology be maintained of each investigation so that critical actions and

decisions are documented.

6.1.10 Along these same lines, it is important that there is no unreasonable delay between the

conclusion of the investigation by the assigned investigator and the decision to file charges

by the person who has that responsibility. Although the 45-day clock begins at the time the

person who has the responsibility to file charges has sufficient information, an agency

would have a difficult time justifying an extensive bureaucratic delay once any member of

that agency has established sufficient information. The need to eliminate bureaucratic

delay is one of the reasons that the internal affairs function should be closely aligned with

the office of the law enforcement executive in the agency's organizational structure.

6.1.11 In addition, all agencies must comply with the time limitations established by N.J.S.A.

40A:14-200 et seq. regarding the imposition of discipline. Lastly, agencies operating under

the purview of Title 11A must comply with the deadlines for disciplinary action imposed by

Civil Service Commission Rules. See N.J.A.C. 4A:1-1.1, et seq.

6.2 Investigation and Adjudication of Minor Complaints

6.2.1 Following the principle that the primary goal of internal affairs and discipline is to correct

problems and improve performance, management in the subject officer's chain of

command should handle relatively minor complaints. Complaints of demeanor and minor

rule infractions should be forwarded to the commanding officer of the subject officer's unit

because it is often difficult for an immediate supervisor to objectively investigate a

subordinate. In addition, that arrangement might obscure the possibility that part of the

inappropriate conduct was the result of poor supervision by the immediate supervisor.

While the structure of each law enforcement agency is different, it is recommended that

minor complaints be assigned to and handled by a commanding officer at least one step

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removed from the officer's immediate supervisor. This includes complaints from within the

agency. Often Human Resources may need to be notified and involved.

6.2.2 Supervisors investigating minor complaints of inappropriate behavior must strive to

conduct a thorough and objective investigation without violating the rights of the subject

officer or any other law enforcement officer. Accordingly, all officers who may be called

upon to do an internal investigation must be thoroughly familiar with the agency's entire

internal affairs policy, including the protection of the subject officer's rights and the

procedures for properly investigating internal complaints.

6.2.3 The investigator should interview the complainant, all witnesses and the subject officer,

and review relevant reports and documents, gather evidence and conduct any other

investigation as appropriate. The investigator should then submit a report to the law

enforcement executive or appropriate supervisor summarizing the matter and indicating

the appropriate disposition. Possible dispositions include:

(a) Sustained. A preponderance of the evidence shows an officer violated any law;

regulation; directive, guideline, policy, or procedure issued by the Attorney General

or County Prosecutor; agency protocol; standard operating procedure; rule; or

training.

(b) Unfounded. A preponderance of the evidence shows that the alleged conduct did not

occur.

but did not violate any law; regulation; directive, guideline, policy, or procedure

issued by the Attorney General or County Prosecutor; agency protocol; standard

operating procedure; rule; or training. (For example, at the conclusion of an

investigation into an excessive force allegation, the agency finds that the officer used

force (alleged conduct) but that the force was not excessive (alleged violation).)

(d) Not Sustained. The investigation failed to disclose sufficient evidence to clearly prove

or disprove the allegation.

6.2.4 If the investigator determines that the complaint is unfounded, exonerated or not

sustained, the investigative report is to be forwarded to internal affairs for review and

entry in the index file and filing. The subject officer shall be notified in writing of the

investigation’s outcome.

6.2.5 If the complaint is sustained, the superior officer so authorized should determine the

appropriate disciplinary action. Typical disciplinary actions for minor infractions include

performance notices, oral reprimands or written reprimands. The superior officer shall

complete the appropriate disciplinary document and provide a copy of that document to

the officer being disciplined. A copy of the disciplinary document shall be forwarded to the

law enforcement executive or appropriate supervisor for review, placed in the officer's

personnel file and sent to internal affairs for entry into the index file and filing.

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6.2.6 Each agency should establish its own protocol for reviewing and purging performance

notices and oral reprimands from an employee's personnel file. Written reprimands should

remain permanently in the employee's personnel file.

6.2.7 A letter shall be sent to the complainant explaining the outcome of the investigation. If the

allegation was unfounded or the officer was exonerated, this conclusion shall be stated and

defined for the civilian complainant. If the allegation was not sustained, the letter shall

provide the complainant with a brief explanation why the complaint was not sustained

(e.g., insufficient proof, lack of witnesses, etc.). If the allegation was sustained and

discipline was imposed, the letter shall state that the allegation was sustained and that the

officer has been disciplined according to agency procedures. See Appendix E.

6.3 Investigation and Adjudication of Serious Complaints

6.3.1 All serious complaints shall be forwarded to the internal affairs function. This includes

complaints of criminal activity, excessive force, improper or unjust arrest, improper entry,

improper or unjustified search, differential treatment, serious rule infractions and repeated

minor rule infractions.

6.3.2 Unless otherwise directed to do so by the County Prosecutor, the prosecutor's office must

be immediately notified of all allegations of criminal conduct. The internal affairs

investigator shall refrain from taking any further investigative action until directed to do so

by the County Prosecutor unless an imminent threat exists to the safety or welfare of an

individual. Once a complaint has been forwarded to the prosecutor's office, that office shall

endeavor to review the allegation within 30 days and advise the law enforcement agency

whether a criminal investigation will be conducted. In the event the prosecutor's office

cannot reach a decision within the initial 30 day period, the deadline may be extended in

30 day increments at the discretion of the County Prosecutor. The law enforcement agency

shall be advised of any extensions of the deadline.

6.3.3 If a criminal investigation is initiated, the law enforcement agency shall receive periodic

and timely updates concerning the course of the investigation. While a criminal

investigation is pending, complainants and witnesses may be referred by the law

enforcement agency to the county victim witness office for information concerning the

criminal investigation. Once the criminal investigation is complete and a disposition of the

allegation has been made, the prosecutor's office shall provide the law enforcement

agency with its investigative file for use in the internal affairs investigation subject to

applicable state statutes, court rules and case law. If the prosecutor's office declines to

initiate a criminal investigation or the investigation is administratively closed, it shall notify

the law enforcement agency of the outcome in writing.

6.3.4 As for administrative complaints, the internal affairs supervisor or law enforcement

executive will direct that an internal affairs investigator conduct an appropriate

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investigation. Investigators must strive to conduct a thorough and objective investigation

without violating the rights of the subject officer or any other law enforcement officer.

Internal affairs investigators, and anyone who may be called upon to do an internal

investigation, must be thoroughly familiar with the agency's entire internal affairs policy,

including the protection of the subject officer's rights and the procedures for properly

investigating internal complaints.

6.3.5 Internal affairs shall notify the suspect officer in writing that an internal investigation has

been started, unless the nature of the investigation requires secrecy. The internal affairs

investigator should interview the complainant, all witnesses and the subject officer, review

relevant reports and documents, and obtain necessary information and materials.

6.3.6 If an officer subject to an administrative investigation has a good-faith basis to question the

impartiality or independence of the investigation, then they may report their concerns to

the County Prosecutor. Law enforcement officers employed by a County Prosecutor’s

Office or the Division of Criminal Justice may report concerns to the Office of Public

Integrity & Accountability (OPIA). The County Prosecutor may, within their discretion,

conduct their own review of the internal affairs investigation and determine whether any

further action is warranted, including potential reassignment of the investigation to a

different entity.

6.3.7 An administrative investigation may commence with the disposition of a complaint against

the subject officer by the Superior Court or a municipal court. In the alternative, an

administrative investigation may commence with a county or municipal prosecutor’s

decision to dismiss a complaint against a subject officer. A finding of guilt by the Superior

Court or a municipal court may assist in resolving an administrative investigation because

such a finding requires proof beyond a reasonable doubt, which is more than is required to

meet the burden of proof in administrative matters.

6.3.8 A disposition that does not involve a finding of guilt by the courts or where a complaint is

dismissed by a county or municipal prosecutor means that proof beyond a reasonable

doubt has not been found. However, it does not mean that an administrative investigation

cannot be pursued or should be closed. The absence of proof beyond a reasonable doubt

does not foreclose the possibility that an investigation may reveal evidence that meets the

burden of proof in administrative matters. Thus, the internal affairs investigator must

continue the administrative investigation to determine whether evidence exists or can be

developed that meets the “preponderance of the evidence” burden of proof for

administrative proceedings. Under no circumstances shall an internal affairs administrative

investigation be closed merely because a criminal investigation was declined or terminated.

In all cases where an investigation is returned to internal affairs because the prosecutor

declined or terminated the criminal investigation, internal affairs shall inform the County

Prosecutor as to the disposition of the complaint, including any discipline imposed, once

the administrative investigation is completed.

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6.3.9 Upon completing the investigation, the internal affairs investigator will recommend

dispositions for each allegation through the chain of command to the law enforcement

executive. As previously described, these dispositions may include exonerated, sustained,

not sustained or unfounded. Each level of review may provide written recommendations

and include comment for consideration by the law enforcement executive.

6.3.10 The law enforcement executive, upon reviewing the report, supporting documentation and

information gathered during any supplemental investigation, shall direct whatever action is

deemed appropriate. If the complaint is unfounded or not sustained or the subject officer

is exonerated, the disposition shall be entered in the index file and the report filed. The

determination must remain within the discretion of the law enforcement executive.

6.3.11 If the complaint is sustained and it is determined that formal charges should be made, the

law enforcement executive, as defined in the footnote to Section 1.0.9, will direct either

internal affairs or the appropriate commanding officer to prepare, sign and serve charges

upon the subject officer or employee. The individual assigned shall prepare the formal

notice of charges and hearing on the charging form. This form will also be served upon the

officer charged in accordance with N.J.S.A. 40A:14-147. An example of a charging form is in

Appendix F (Note: Civil Service jurisdictions must use forms authorized by the Civil Service

Commission).

6.3.12 The notice of charges and hearing shall direct that the subject officer may: (1) enter a plea

of guilty to the charges; (2) enter a plea of not guilty to the charges; or (3) waive their right

to a hearing. If the officer enters a plea of guilty or waives their right to a hearing, he or she

is permitted to present mitigating factors prior to being assessed a penalty. Conclusions of

fact and the penalty imposed will be noted in the officer's personnel file after he or she has

been given an opportunity to read and sign it. Internal affairs will cause the penalty to be

carried out and complete all required forms.

6.3.13 If the subject officer enters a plea of not guilty and requests a hearing, the law

enforcement executive will set the date for the hearing as provided by statute and arrange

for the hearing of the charges. Internal affairs may assist the assigned supervisor or

prosecutor in preparing the agency's prosecution of the charges. This includes proper

notification of all witnesses and preparing all documentary and physical evidence for

presentation at the hearing.

6.3.14 The hearing shall be held before the designated hearing officer. The hearing officer shall

recommend a disposition of the charges, including modifying the charges in any manner

deemed appropriate. The decision of the hearing officer must be in writing and should be

accompanied by findings of fact for each issue in the case.

6.3.15 If the hearing officer finds that the complaint against the officer is sustained by a

preponderance of the evidence, he or she should recommend any of the penalties which

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he or she deems appropriate under the circumstances and within the limitations of state

statutes and the agency's disciplinary system.

6.3.16 A copy of the decision and accompanying findings and conclusions shall be delivered to the

officer or employee who was the subject of the hearing and to the law enforcement

executive (if he or she was not the hearing officer) for the imposition of discipline. Upon

completion of the hearing, internal affairs will complete all required forms (Civil Service

Commission jurisdictions use the Final Notice of Disciplinary Action form DPF-31C),

including the entry of the disposition in the index file. If the charges were sustained,

internal affairs will cause the penalty to be carried out. Documentation of the charge and

the discipline shall be permanently placed in the officer's or employee's personnel file.

6.3.17 Upon final disposition of the complaint, in cases where the officer was not notified of the

outcome through some written form of discipline, the officer shall be notified of the

outcome of the case through a written internal agency communication.

6.3.18 In all cases, a letter shall be sent to the complainant explaining the outcome of the

investigation. If the allegation was unfounded or the officer was exonerated, this

conclusion shall be stated and defined for the civilian complainant. If the allegation was not

sustained, the letter shall provide the complainant with a brief explanation why the

complaint was not sustained (e.g., insufficient proof, lack of witnesses, etc.). If the

allegation was sustained and discipline was imposed, the letter shall state that the

allegation was sustained and that the officer has been disciplined according to agency

procedures. See Appendix E.

6.4 Domestic Violence Incidents Involving Agency Personnel

6.4.1 Law enforcement personnel may become involved in domestic violence incidents. It is

important to the integrity of the agency, the safety of the victim and the career of the

officer that such matters are handled appropriately. Thus, it is imperative that every law

enforcement agency establish a policy for investigating and resolving domestic violence

complaints involving its employees.

6.4.2 Whenever an officer is involved in a domestic violence incident, either as an alleged

perpetrator or as a victim, internal affairs must be promptly notified. Where the officer was

the alleged perpetrator, investigating officers must seize their service weapon or any other

weapon possessed, as mandated by AG Directives 2000-3 and 2000-4.

6.4.3 Every law enforcement agency should promulgate a rule which requires any officer or

employee to notify the agency if he or she has been charged with an offense, received a

motor vehicle summons or been involved in a domestic violence incident. In cases of

domestic violence, the investigating agency should also notify the employing agency's

internal affairs investigators as soon as possible.

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6.4.4 The primary responsibility for investigating the domestic violence incident itself, along with

any related offenses, belongs to the agency with jurisdiction over the incident. The

processing of domestic violence complaints, restraining orders, criminal complaints, etc.,

will remain with that agency. In many cases, this will not be the officer's employing agency.

6.4.5 The employing agency's internal affairs officers will be responsible for receiving the

information and documenting the matter as they would any other misconduct allegation. If

the report is that the officer is the victim of domestic violence, it should still be recorded

and followed up in case employee assistance is warranted.

6.4.6 If a criminal charge has been filed, internal affairs must notify the County Prosecutor

immediately even if the incident took place in another county. As the chief law

enforcement officer of the county, it is critical that a prosecutor be made aware of any

outstanding criminal charges against any law enforcement officer in their county.

6.4.7 Internal affairs is responsible for reviewing the incident’s investigation and conducting

whatever further investigation is necessary to determine if the officer violated agency rules

and regulations or if the officer's fitness for duty is in question. In addition, internal affairs

will track the proceedings of any criminal charges or civil matters that may arise out of the

incident. Internal affairs will also work with the Division of Criminal Justice or the County

Prosecutor to determine if and when an officer may have their weapon(s) returned.

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7 Internal Affairs Investigation Procedures

7.0.1 Only after a thorough and impartial investigation can an informed decision be made as to a

complaint’s proper disposition. Decisions based upon such an investigation will support the

credibility of the agency both among its ranks and the public at large.

7.0.2 As with all other investigations, lawful procedures must be used to gather all evidence

pertaining to allegations against a law enforcement officer. Investigations for internal

disciplinary or administrative purposes involve fewer legal restrictions than criminal

investigations.

7.0.3 Restrictions that do exist, however, must be recognized and followed. Failure to do so may

result in improperly gathered evidence being deemed inadmissible in court. Restrictions

that apply to internal affairs investigations may have their basis in state statutes, case law,

collective bargaining agreements, local ordinances, Civil Service Commission rules or

agency rules and regulations. Internal affairs investigators shall familiarize themselves with

all of these provisions.

7.0.4 Complaints must be professionally, objectively and expeditiously investigated in order to

gather all information necessary to arrive at a proper disposition. It is important to

document complainants’ concerns, even those that appear to be unfounded or frivolous. If

such complaints are not documented or handled appropriately, public dissatisfaction will

grow, fostering a general impression of agency insensitivity to community concerns.

7.0.5 The internal affairs investigator may use any lawful investigative techniques including

inspecting public records, questioning witnesses, interviewing the subject officer,

questioning agency employees and surveillance. The investigator therefore must

understand the use and limitations of such techniques.

7.0.6 It is generally recommended that the complainant and other lay witnesses be interviewed

prior to interviewing sworn members of the agency. This will often eliminate the need to

do repeated interviews with agency members. However, this procedure does not have to

be strictly adhered to if circumstances and the nature of the investigation dictate

otherwise.

7.1 Interviewing the Complainant and Civilian Witnesses

7.1.1 The investigator assigned an internal investigations case should initially outline the case to

determine the best investigative approach and identify those interviews immediately

necessary. The investigator should determine if any pending court action or ongoing

criminal investigation might delay or impact upon the case at hand. If it appears that the

conduct under investigation may have violated the law or the investigation involves the

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officer’s use of force that resulted in serious bodily injury or death, the County Prosecutor

shall be immediately notified of the internal affairs investigation.

7.1.2 If the investigation involves a criminal charge against the complainant, an initial interview

should be conducted with the complainant. However, the investigator must realize that the

complainant is simultaneously a criminal defendant arising out of the same incident and

must be accorded all of the appropriate protections. Thus, all further contact with the

complainant should be arranged with and coordinated through the County Prosecutor and

the complainant's defense attorney.

7.1.3 The complainant should be personally interviewed if circumstances permit. If the

complainant cannot travel to the investigator's office, the investigator should conduct the

interview at the complainant's home or place of employment if feasible. If not, a telephonic

interview may be conducted. All relevant identifying information concerning the

complainant should be recorded, e.g., name (unless the complainant wishes to remain

anonymous), complete address, telephone numbers and area codes, race or ethnic

identity, sex, date of birth, place of employment, social security number if necessary and

place of employment (name and address). The investigator should grant reasonable

requests for accommodations to protect the complainant’s identity, such as meeting the

complainant at a place other than the investigator’s office if the complainant’s identity

cannot be kept confidential at that location.

7.1.4 All relevant facts known to the complainant should be obtained during the interview. An

effort should be made to obtain a formal statement from the complainant at the initial

interview. Whenever possible, all witnesses to the matter under investigation should be

personally interviewed and formal statements taken.

7.1.5 When taking a formal statement from a civilian, the investigator shall video- or audio-

record the statement according to the same protocols that would apply if the civilian were

being interviewed in connection with a criminal investigation. If a witness objects to the

recording of the interview, the investigator may proceed with the interview without

recording, but must document in writing the reasons for doing so.

7.1.6 When taking a formal statement from an officer, the investigator shall video or audio-

record the statement, except that in cases that did not arise from a civilian complaint, the

investigator need not record the statement unless the officer being interviewed requests

such.

7.2 Reports, Records and Other Documents

7.2.1 All relevant reports should be obtained and preserved as expeditiously as possible. Internal

agency reports relating to a subject officer's duties should be examined. Examples of such

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reports include arrest and investigative reports, and radio, patrol, vehicle and evidence logs

pertaining to or completed by the officer.

7.2.2 The investigator should also examine and retrieve all electronic, computer, digital and

video records. These may include analog and digital records created by radio and

telephone recorders, computer aided dispatch systems, mobile data terminals, in-car video

systems, video surveillance systems and other forms of audio and video recording. In these

cases, the relevant data should be copied to an appropriate medium as soon as possible

and retained by internal affairs.

7.2.3 Records and documents of any other individual or entity that could prove helpful in the

investigation should be examined. These may include reports from other law enforcement

agencies, hospital records, doctors' reports, jail records, court transcripts, F.B.I. or S.B.I.

records, motor vehicle abstracts and telephone and cellular phone records. In some

instances, a search or communications data warrant or a subpoena may be necessary to

obtain the information.

7.3 Physical Evidence

7.3.1 Investigators should obtain all relevant physical evidence. All evidence, such as fingerprints,

clothing, hair or fabric fibers, bodily fluids, stains and weapons should be handled

according to established evidence procedures.

7.3.2 With respect to radio and telephone recordings, the original recording is the best evidence

and should be secured at the investigation’s outset. Transcripts or copies of the original

recordings can be used as investigative leads. Entire tapes or transmissions should be

reviewed to reveal the totality of the circumstances.

7.4 Photographs

7.4.1 Photographs and video recording tapes can be useful tools if relevant to the investigation.

If a complaint involves excessive use of force, photographs of the complainant and the

officer should be taken as close as possible to the time of the incident. Photographs also

can be used to create a record of any other matter the investigator believes is necessary.

Whenever possible, digital color photography should be used.

7.4.2 The law enforcement agency should maintain a recent photograph of each officer. These

can be used if a photo array is needed for identification purposes. If a photo array is used,

it must be properly retained for possible evidentiary purposes.

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7.5 Physical Tests

7.5.1 Police officers who are the subjects of internal investigations may be compelled to submit

to various physical tests or procedures to gather evidence.

7.5.2 N.J.R.E. 503(a) states that "no person has the privilege to refuse to submit to examination

for the purpose of discovering or recording his corporal features and other identifying

characteristics or his physical or mental condition." Evidence that may be obtained or

procedures that may be used to obtain evidence under this rule include:

(a) Breath sample;

(b) Blood sample;

(d) Requiring suspect to speak;

(e) Voice recordings;

(f) Participation in a lineup;

(g) Handwriting samples;

(h) Hair and saliva samples;

(i) Urine specimens;

(j) Video recording; and

(k) Field sobriety tests.

7.5.3 For internal affairs investigations that may result in a criminal prosecution, physical tests

should be conducted pursuant to a court order or an investigative detention under Rule

3:5A. Officers that refuse to perform or participate in a court-ordered physical test may be

subject to a contempt of court sanction and agency discipline for failing to comply with the

order.

7.5.4 For internal affairs investigations that may result in an administrative disciplinary

proceeding, the internal affairs investigator or the appropriate supervisor may order

subject officers to perform or participate in a physical test. The order must be reasonable

and relevant to the investigation at hand. Officers that refuse to perform or participate in a

lawfully ordered physical test can be disciplined for their refusal.

7.6 Drug Testing

7.6.1 The testing of law enforcement officers in New Jersey for the illegal use of drugs is strictly

regulated by the Attorney General's Law Enforcement Drug Testing Policy. This policy

permits the testing of applicants and trainees for law enforcement positions. It further

specifies that veteran law enforcement officers may be tested for drugs if reasonable

suspicion exists that they are using drugs or if they have been chosen as part of a random

drug testing program. In any case, drug testing is done through an analysis of urine samples

by the State Toxicology Laboratory within the Department of Health.

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7.6.2 The Attorney General's Law Enforcement Drug Testing Policy identifies specific

responsibilities that may be assigned to internal affairs. These include the collection of

specimens, the establishment of a chain of custody and the maintenance of drug testing

records. Every officer assigned to internal affairs should be familiar with the Attorney

General's Law Enforcement Drug Testing Policy.

7.7 Polygraph

7.7.1 N.J.S.A. 2C:40A-1 states that an employer shall not influence, request or require an

employee to take or submit to a lie detector test as a condition of employment or

continued employment. To do so constitutes a disorderly persons offense. Therefore, a law

enforcement officer should never be asked to take a polygraph examination as part of an

internal affairs investigation. The investigator should not even suggest to the officer that a

polygraph examination would be appropriate or that it "might clear this whole thing up."

However, the subject officer may voluntarily request to take a polygraph examination.

7.7.2 Polygraph tests of civilian complainants and witnesses should only be used when a

reasonable suspicion exists that their statements are false. Polygraph examinations should

not be used routinely in internal affairs investigations. Under no circumstances should

polygraph examinations be used to discourage or dissuade complainants. In addition, a

victim of sexual assault cannot be asked or required to submit to a polygraph examination.

7.8 Search and Seizure

7.8.1 All people, including police officers, have a Fourth Amendment right to be free from

unreasonable searches and seizures. In an internal affairs investigation, the Fourth

Amendment applies to any search the employing agency undertakes. The internal affairs

investigator must be cognizant of the various principles governing search and seizure,

particularly where the investigator will conduct a search as part of a criminal investigation

or will search personal property belonging to the subject officer.

7.8.2 Criminal investigations generally require the investigator to obtain a search warrant to

conduct a search. Search warrants require probable cause to believe that the search will

reveal evidence of a crime. In internal affairs investigations, a search warrant should be

obtained before a search is conducted of a subject officer's personal property, including

any home, personal car, bank accounts, safety deposit boxes, briefcases, etc. A warrant

also may be necessary where a search of the subject officer's workplace is conducted and it

is determined that the officer has a high expectation of privacy in the place to be searched.

The internal affairs investigator should consult with the County Prosecutor’s Office before

undertaking the search of any workplace area in a criminal investigation.

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7.8.3 The law is somewhat less restrictive as to searches conducted during an administrative

investigation. While it appears that an employing agency does not need a warrant to

conduct a search during an administrative investigation, the investigator should exercise

great care when searching property or items in which the subject officer has a high

expectation of privacy. Internal affairs investigators should document their reasons for

conducting the search and limit its intrusiveness. If any doubts or concerns exist about the

propriety or legality of a search, the investigator should seek advice from legal counsel

before proceeding with the search.

7.8.4 During either administrative or criminal investigations, generally workplace areas may be

searched without a warrant. The critical question is whether the public employee has a

reasonable expectation of privacy in the area or property the investigator wants to search.

The determination of this expectation must be decided on a case-by-case basis. There are

some areas in a person's workplace where this privacy expectation can exist just as there

are some where it does not. Areas that several employees share or where numerous

employees go to utilize files or equipment would present no expectation, or a diminished

expectation, of privacy. Included here would be squad rooms, lobby areas, dispatch areas,

government- provided vehicles (patrol cars), general filing cabinets, etc.

7.8.5 However, employees may have a greater expectation of privacy in their own lockers,

assigned desks or possibly in a vehicle assigned to them solely for their use. If an agency

intends to retain the right to search property it assigns to officers for their use, including

lockers and desks, it should put officers on notice of that fact. This notification will help

defeat an assertion of an expectation of privacy in the assigned property. The agency

should issue a directive regarding this matter and provide notice of the policy in any

employee handbook or personnel manual (including the rules and regulations) the agency

provides. Notice should also be posted in the locker area and on any bulletin boards. The

following is a sample of what such a notice should contain:

The agency may assign to its members and employees agency-owned

vehicles, lockers, desks, cabinets, etc., for the mutual convenience of the

agency and its personnel. Such equipment is and remains the property of

the agency. Personnel are reminded that storage of personal items in

this property is at the employee's own risk. This property is subject to

entry and inspection without notice.

7.8.6 In addition, if the agency permits officers to use personally owned locks on assigned lockers

and other property, it should be conditioned on the officer providing the agency with a

duplicate key or the lock combination.

7.8.7 With the introduction of new technologies in law enforcement, it may become necessary to

search computers and cell phones or other digital devices, (hereafter “devices”), and seize

their contents. The critical question remains whether the public employee has a reasonable

expectation of privacy in information stored in a device. While the determination of a

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reasonable expectation of privacy must be decided on a case-by-case basis, the law

enforcement agency should take steps to actively and affirmatively diminish this

expectation. The agency should state, in writing, that it retains the right to enter and

review the contents of any agency-issued device at any time. This notice may be worded as

follows:

The agency may assign to its members and employees agency-owned

electronic devices, including computers and smartphones, for business

purposes. Such equipment and its contents are and remain the property

of the agency. Personnel are prohibited from installing unauthorized

software and from storing personal information in the device, regardless

of any password protection or encryption. The devices, their contents,

and any email or electronic correspondence originating from or arriving

at the device are the property of the agency and are subject to entry and

inspection without notice.

7.8.8 The courts routinely examine agency practice in evaluating the expectation of privacy.

Written notification thus would quickly be nullified if representatives of the agency never

entered or inspected any of these areas. In addition to notifying employees of the agency's

right to search and inspect, the agency should also, with some regularity, inspect these

areas to establish the practice coinciding with the policy. Any search of agency or personal

property should be conducted in the presence of the subject officer and a property control

officer.

7.8.9 A voluntary consent to a search may preclude some Fourth Amendment problems. A

consent search eliminates the need to determine what threshold standard must be met

before conducting the search or seizure, either for an administrative or criminal

investigation. For consent to be legally valid in New Jersey, a person must be informed that

he or she has the right to refuse to permit a search.

If a consent search is undertaken, the

internal affairs investigator shall follow standard law enforcement procedures and have the

subject officer sign a consent form after being advised of the right to refuse such a search.

7.9 Electronic Surveillance

7.9.1 N.J.S.A. 2A:156A-1 et seq. governs the use of electronic surveillance information in New

Jersey. This statute specifically covers the areas of:

(a) Wire communication, which essentially means any conversation made over a

telephone, N.J.S.A. 2A:156A-2a;

State v. Johnson, 68 N.J. 349 (1975).

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(b) Oral communication, which means any oral communication uttered by a person who

has an expectation that such communication will not be intercepted, N.J.S.A.

2A:156A-2b;

communication through the use of any electronic, mechanical or other device,

N.J.S.A. 2A:156A- 2c; and

(d) Electronic communication, which means the transfer of signs, signals, writings,

images, sounds, data or intelligence of any nature transmitted in whole or in part by

a wire, radio or other system, N.J.S.A. 2A:156A-2m.

All of these forms of communication are protected from intrusion and interception except

under very narrowly defined exceptions.

7.9.2 One such exception is when one person in a communication decides to intercept (e.g.,

record) the conversation. As long as this person is a part of the conversation, such

recording is lawful. But if the person stops being a party to the conversation (e.g., he or she

walks away from the group or turns the telephone over to someone else), it is no longer

lawful for him or her to intercept the conversation.

7.9.3 Another exception exists where a person, acting at the direction of an investigative or law

enforcement officer, gives prior consent to intercept a wire, electronic or oral

communication and is a party to the communication. This "consensual intercept" can only

be made after the Attorney General or a County Prosecutor, or their designee, approves it.

7.9.4 Pursuant to N.J.S.A. 2A:156A-4b, a law enforcement officer may intercept and record a

wire or oral communication using a body transmitter if that officer is a party to the

communication or where another officer who is a party requests or requires that such

interception be made. Individual departmental or agency policy dictates procedures for

such recordings. This kind of law enforcement non-third party intercept can be used during

internal affairs investigations.

7.9.5 Generally, the use of evidence derived from an authorized wiretap is limited to criminal

investigations and prosecutions. Agencies that wish to use wiretap information in a

disciplinary proceeding should consult with their County Prosecutor because it may be

necessary to obtain a court order to so use it.

7.9.6 The monitoring of 9-1-1 telephone lines is required by law. Nothing prohibits the

monitoring of other telephones used exclusively for agency business if the agency can

demonstrate a regulatory scheme or a specific office practice of which employees have

knowledge. In such instances a diminished expectation of privacy exists in the use of these

telephones, and monitoring would be acceptable.

7.9.7 The New Jersey Wiretap Act applies only to oral, wire and electronic communications.

While not specifically covered by this law, reasonable limitations should exist on video

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surveillance. The primary issue is one of privacy. Video surveillance, especially covert

surveillance, should not be used in areas where employees have a high expectation of

privacy, such as locker rooms and bathrooms. In public areas, video surveillance may be

used. In many law enforcement agencies, certain areas such as lobbies, cell blocks and sally

ports have video surveillance for security reasons. Video obtained from these sources is

applicable to internal investigations. Questions about the specific application of video

surveillance, especially covert surveillance, should be addressed to the County Prosecutor’s

Office. It must be emphasized that this refers to video surveillance with no sound recording

component.

7.9.8 Many law enforcement agencies use in-car video systems, which record the video image

from a camera mounted in the car and an audio signal from a microphone worn by the

officer. These recordings can be used in internal investigations because the video image is

not restricted at all and the officer is a party to the audio portion of the recording at all

times.

7.9.9 Some agencies equip their patrol vehicles or other vehicles with GPS devices. These devices

can locate a vehicle with great accuracy. Information gleaned from these devices may be

used in internal affairs investigations because the subject officer has no expectation of

privacy in their whereabouts when performing police duties.

7.10 Lineups

7.10.1 A law enforcement officer may be ordered to stand in a lineup to be viewed by witnesses

or complainants. Probable cause need not exist, and the officer may be disciplined for

refusal.

7.10.2 The lineup must be constructed so as not to be unfairly suggestive. The same rule applies

to photo arrays. See Attorney General Guidelines for Preparing and Conducting Photo and

Live Lineup Identification Procedures; October 4, 2012, Memorandum and Revised Model

Eyewitness Identification Procedure Worksheets.

7.11 Investigation of Firearm Discharges

7.11.1 An agency’s internal affairs function shall receive notice of any incidents involving:

(a) Any firearm discharge by agency personnel, whether on-duty or off-duty, unless the

discharge occurred during the course of (1) a law enforcement training exercise; (2)

routine target practice at a firing range; (3) a lawful animal hunt; or (4) the humane

killing of an injured animal; or

Biehunik v. Felicetta, 441 F.2d 228 (2d Cir.), cert. denied, 403 U.S. 932 (1971).

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(b) Any discharge of an agency-owned firearm by anyone other than agency personnel.

7.11.2 Upon receiving notice, the internal affairs function shall determine whether additional

investigation is necessary and whether information must be reported to the County

Prosecutor and/or OPIA, pursuant to AG Directive 2019-4, also known as the “Independent

Prosecutor Directive,” and other state law. If the firearm discharge occurs while the agency

employee is on duty, then the County Prosecutor must be notified. If the firearm discharge

results in a fatality, the matter shall be investigated by OPIA or another entity pursuant to

the Independent Prosecutor Directive.

7.11.3 Any public statements by a law enforcement agency about the conduct of law enforcement

officers involved in a firearm discharge require approval by the County Prosecutor or the

Attorney General’s Office, depending upon which entity is supervising the investigation.

7.11.4 Agency law enforcement officers including internal affairs personnel will participate in the

initial investigation only if directed to do so by the County Prosecutor, OPIA, or other

designee of the Attorney General. In the general course, employees of the same agency as

the subject officer shall not participate in the investigation or attend any investigative

activities. This does not, however, preclude any officer from acting as a first responder to

the scene of a use-of-force incident, helping to secure the scene, or participating in a be-

on-the-lookout search or pursuit related to the incident. All officers are also obligated to

comply with any orders of recusal that may be issued pursuant to the investigation.

7.11.5 No law enforcement officer shall share, either directly or indirectly (i.e., through another

person), any information learned in the course of the use-of-force investigation with any

witness without authorization. Nor shall any law enforcement officer who was a witness to

the use-of-force incident receive any such information from any sworn or civilian employee

of a law enforcement agency without first obtaining authorization from the authority in

charge of the investigation or their designee. If any law enforcement officer learns of such

an unauthorized dissemination or receipt of information, then they must immediately

report that to the authority in charge of the investigation or their designee.

7.11.6 Officers who are directed to assist with an initial firearm discharge investigation may be

required to operate independently of their ordinary chain of command and report directly

to the authority in charge of the investigation or their designee. In all such circumstances,

officers shall comply with that requirement.

7.11.7 In cases where discharge of a firearm does not result in criminal charges, the prosecutor,

OPIA, or other designee of the Attorney General will refer the incident back to the agency

for an internal affairs administrative review.

7.11.8 Officers conducting administrative investigations of firearm discharges must strive to

conduct a thorough and objective investigation without violating the rights of the subject

officer or any other law enforcement officer. All supervisors and any other officer who may

INTERNAL AFFAIRS POLICY & PROCEDURES | November 2022

be called upon to participate in a firearm discharge investigation therefore must be

thoroughly familiar with the agency's entire internal affairs policy, including protection of

the subject officer's rights and the procedures for properly investigating firearm discharges.

Investigators should review all administrative reports the agency requires. These reports

should include a description of the incident, the date, time and location of the incident, the

type of firearm used, the type of ammunition used and number of rounds fired, the identity

of the officer, and any other information a superior officer requests. The involved officer's

supervisor must assist the internal affairs investigator as needed.

7.11.9 The investigator must consider relevant law, any Attorney General or County Prosecutor

policies and guidelines, and agency rules, regulations and policy. In addition to determining

if the officer's actions were consistent with agency regulations and policy, the internal

affairs investigator should also examine the relevance and sufficiency of these policies. The

investigator should also consider any relevant aggravating or mitigating circumstances.

7.11.10 The investigation of a shooting by an officer should include photographs, ballistics tests,

and interviews with all witnesses, complainants and the officer involved. All firearms

should be treated as evidence according to agency procedures. A complete description of

the weapon, its make, model, caliber and serial number must be obtained and, if

appropriate, N.C.I.C. and S.C.I.C. record checks should be made.

7.11.11 In a firearm discharge investigation, the investigator must determine if the weapon was an

approved weapon for that officer and if the officer was authorized to possess and carry it

at the time of the discharge. The investigator must also determine if the weapon was

loaded with authorized ammunition. The weapon must be examined for its general

operating condition and to identify any unauthorized alterations made to it.

7.12 Collateral Issues

7.12.1 The work of an internal affairs function should not be limited to resolving complaints by

narrowly focusing on whether the subject officer engaged in misconduct. In many cases,

the examination of collateral issues presented by the complaint can be as important as the

resolution of the allegation itself. For example, while investigating an allegation of

excessive force during an arrest, the officer’s actions in making the arrest may be improper.

In such cases, even though the investigation may exonerate the officer of the excessive

force allegation, internal affairs must still examine whether the officer should have been

effecting the arrest at all.

7.12.2 Examining collateral issues can provide the law enforcement agency and its executive

officers with information concerning:

(a) The utility and effectiveness of the agency's policies and procedures.

(b) The competency and skills of individual law enforcement officers.

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(d) The allocation of resources by the law enforcement agency and other municipal

agencies.

7.12.3 The identification and examination of collateral issues is critically important to the internal

affairs process. Internal affairs investigators are in the unique position of examining law

enforcement operations from the inside. Their insight, if properly used, can be extremely

helpful to management. In contrast, the failure to use this resource can deprive the law

enforcement agency of the ability to identify and correct problems with personnel and

procedures through self-critical analysis. It can also lead to an erosion of community

support for the agency. An internal affairs process that is objective and complete is critical

to the credibility and reputation of the law enforcement agency within the community.

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8 Interviewing Members of the Agency

8.0.1 The interview of a police officer as either the subject of an internal affairs investigation or

as a witness to an incident that is the subject of such an investigation represents a critical

stage in the investigative process. The information gained during such an interview often

will go a long way toward resolving the matter, regardless of the outcome.

8.0.2 The difficulty in conducting officer interviews, particularly subject officer interviews, is the

differing legal principles that apply depending on the nature of the interview and the type

of investigation being conducted. For example, a subject officer suspected of criminal

conduct will be interviewed in a manner far different than an officer suspected of

committing just a disciplinary infraction. A further distinction may be made when the

officer to be interviewed is believed to be a witness to either criminal conduct or an

administrative infraction.

8.0.3 While a police officer has the same constitutional rights as any other person during a

criminal investigation, their status as a police officer may create special concerns. For the

most part, the internal affairs investigator should utilize the same procedures and apply the

same legal principles to the subject officer as he or she would to any other target or

suspect in a criminal investigation. However, the internal affairs investigator should

recognize that the interview process of a police officer is somewhat different than that of

civilians.

8.0.4 A police officer has the same duty and obligation to their employer as any other employee.

Thus, where an internal affairs investigation is being conducted solely to initiate

disciplinary action, the officer has a duty to cooperate during an administrative interview.

The officer also must truthfully answer all questions put to him or her during the course of

the investigation. Failure to fully cooperate with an administrative investigation and/or to

be completely truthful during an administrative interview can form the basis for

disciplinary action separate and apart from the allegations under investigation. This duty to

fully cooperate in an investigation applies to every employee of the agency, whether law

enforcement officer or civilian.

8.0.5 For the internal affairs investigator, it is critical to distinguish between those investigations

involving potential criminal conduct and those limited to administrative disciplinary

infractions. The investigator also must be able to identify and apply the appropriate

procedures to be utilized during the interview process in either a criminal or an

administrative investigation. Failure to identify and apply the appropriate procedures can

compromise and render inadmissible evidence gathered during the interview process in a

criminal investigation or needlessly complicate the interview process during an

administrative investigation.

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8.0.6 The vast majority of internal affairs investigations will be limited to alleged disciplinary

infractions and the vast majority of law enforcement officer interviews conducted during

an internal affairs investigation will be limited to gathering evidence of disciplinary

infractions. But in cases of a potential criminal violation, it is absolutely necessary that the

internal affairs investigator coordinate officer interviews with the County Prosecutor’s

Office.

8.0.7 Because the County Prosecutor is ultimately responsible for prosecuting criminal cases, the

internal affairs investigator shall defer to the prosecutor’s supervision and direction in

conducting officer interviews. The investigator shall consult with the County Prosecutor

prior to initiating an officer interview in matters that could involve criminal conduct, and

shall pay particular attention to the County Prosecutor's instructions concerning the types

of interviews to be conducted and procedures to be utilized (e.g., Miranda warning, Garrity

warning,

etc.).

8.0.8 Police officer interviews during an internal affairs investigation are rendered difficult by the

conflict that exists between the officer's right against self-incrimination in criminal

interviews and the obligation to answer questions truthfully during an administrative

investigation. So while an agency may compel an officer to answer questions posed during

the course of an administrative investigation, an officer cannot be forced to give answers

that could be used against him or her in a criminal prosecution. Officers who have been

compelled by order to produce incriminating information, with the belief that a failure to

do so will result in termination or other serious disciplinary action, cannot have that

evidence used against them in a criminal prosecution. However, an officer can be

compelled to provide answers during an internal affairs investigation if those answers are

to be used as evidence only in a disciplinary proceeding.

8.0.9 A subject officer who reasonably believes that what he or she might say during an internal

affairs interview could be used against him or her in a criminal case cannot ordinarily be

disciplined for exercising their Miranda rights. However, an officer can be disciplined for

refusing to answer questions during an internal affairs interview if he or she has been told

that whatever he or she says during the interview will not be used in a criminal case.

Informing an officer that their statement will not be used against him or her in a criminal

case is called a Garrity warning. This warning informs the officer being interviewed that he

or she must cooperate with the investigation and can be disciplined for failing to do so

because the County Prosecutor has decided to provide the officer with "use immunity."

8.0.10 It is for this reason that the internal affairs investigator must continually reassess the

nature of an internal affairs investigation as evidence is being gathered. Having initially

determined that a particular allegation is criminal or administrative in nature, it is

important for the internal affairs investigator to revisit that decision during the course of

an investigation to determine whether any of the evidence gathered following the initial

Garrity v. New Jersey, 385 U.S. 493 (1967) (coerced statements obtained by threat of removal from office cannot be

used in criminal proceedings); see Appendix J.

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determination changes the investigation’s nature and scope. If the nature and scope of an

investigation change, the investigator must be prepared to change the methods and

procedures he or she utilizes to reflect the new focus. For example, if an investigator

initially determines that an allegation appears to be a disciplinary matter but later evidence

leads the investigator to conclude that criminal conduct may have occurred, he or she must

cease using the methods and procedures appropriate for an administrative investigation

and notify the County Prosecutor immediately before proceeding further.

8.1 Overview of Interviews

8.1.1 In the sections that follow, the details of interviewing law enforcement officers in internal

matters will be discussed. The chart in Figure 2 provides an overview of that information.

Figure 2.

Investigation is

CRIMINAL

Investigation is

ADMINISTRATIVE

Officer is

SUBJECT

• Prosecutor notification

• Treat as any other defendant

• Miranda warning if appropriate

• No Garrity warning unless prosecutor

approves

• May require routine business reports

• No special reports

• Right to counsel (attorney)

• Obligation to cooperate

• Administrative interview form

• May require special reports

• Cannot charge as a subterfuge

• Right to representative

Officer is

WITNESS

• Obligation to cooperate

• No Miranda warning

• Witness acknowledgement form

• May be entitled to a Weingarten

representative

• Obligation to cooperate

• Witness acknowledgement form

• May be entitled to a Weingarten

representative

8.1.2 Serious allegations of officer misconduct may implicate both a violation of a criminal

statute and of an agency’s rules and regulations. As a result, a criminal investigation and an

administrative disciplinary investigation may be needed to properly resolve a misconduct

complaint. In general, criminal investigations and administrative investigations should be

kept separate to the extent possible, with criminal investigations led by the County

Prosecutor’s Office preceding internal affairs disciplinary investigations. However, in some

cases where both a criminal and an administrative disciplinary investigation are needed,

the internal affairs investigator from the subject officer's agency may be expected to help

conduct both. Under these circumstances, the methods employed in the criminal

investigation conflict with those used in the administrative investigation.

N.L.R.B. v. Weingarten, 420 U.S. 251 (1975) (unionized employee who reasonably believes that an investigatory

interview may result in disciplinary action against him or her is entitled to union representation).

INTERNAL AFFAIRS POLICY & PROCEDURES | November 2022

8.1.3 Typically, this conflict will become most apparent during subject officer interviews. As

already explained, a subject officer has the right to remain silent during a criminal

investigative interview. But the same officer must cooperate and answer questions posed

by their employer during an administrative disciplinary interview. So while the internal

affairs investigator cannot require a subject officer to answer questions during a criminal

interview, he or she can require that officer to answer questions during an administrative

disciplinary interview.

8.1.4 The confusion caused by these issues can be alleviated several ways. One way is to

separate the investigations by time—the criminal investigation is completed first and then

the administrative investigation may follow. Another way is to conduct bifurcated

investigations. In a bifurcated investigation, the responsibility for a criminal investigation is

separated from that for an administrative investigation. Thus, one investigator (typically

from the prosecutor's office) is assigned the responsibility of gathering evidence of criminal

wrongdoing while a second (typically the internal affairs investigator from the subject

officer's agency) is assigned the responsibility of gathering evidence of a disciplinary

infraction.

8.1.5 With a bifurcated investigation, the internal affairs investigator will not be forced to juggle

the roles of criminal and administrative investigator during an internal affairs investigation.

This is particularly important during the subject officer interview for three reasons. First,

the internal affairs investigator will not be forced to decide whether and when to issue a

Miranda or a Garrity warning during the interview. In a bifurcated investigation, the

criminal investigator will be limited to issuing a Miranda warning while the administrative

investigator will be limited to issuing a Garrity warning. Second, by assigning distinct roles

to each investigator, there will be no confusion on the part of the subject officer as to the

particular interview’s purpose. Third, because a bifurcated investigation permits both the

criminal and administrative investigations to take place simultaneously, the administrative

investigator can be confident that, once the criminal investigation has been completed, the

administrative investigation will also be substantially complete. As a result, the subject

officer's agency will have no difficulty complying with the 45-day rule under N.J.S.A.

40A:14-147.

8.1.6 In all cases where a subject officer is interviewed pursuant to an administrative or criminal

investigation, the interview must be audio recorded by the investigator, and should be

video recorded, if practical.

8.2 When the Investigation is Criminal and the Officer Is a Subject

8.2.1 Criminal interviews should be conducted only with the prior approval, or at the direction,

of the County Prosecutor. Once an investigation becomes criminal in nature, the subject

officer shall be advised that he or she is not required to answer questions as a condition of

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employment. Of course, an officer who is the subject of a criminal investigation may elect

to voluntarily answer questions with or without an attorney so that the facts known to him

and his perspective are available to the investigators.

8.2.2 Miranda warnings generally are triggered whenever an individual’s questioning is custodial

in nature. For custodial interviews, the question is whether a reasonable person would

believe that he or she is free to leave. So a subject officer who is not free to leave a criminal

interview should be provided a Miranda warning. See Appendix G.

8.2.3 However, the internal affairs investigator should be aware that other factors may also

serve to affect a subject officer's decision to answer questions during a criminal interview.

For example, directing an officer to appear at a particular time and place may generate

confusion on the officer’s part as to whether he or she is being required to participate in

the interview. When these circumstances or any other questions as to the need to provide

a warning in criminal interviews are present, the internal affairs investigator should always

consult with the County Prosecutor regarding whether the subject officer should be

advised of their right against self-incrimination.

8.2.4 If the subject officer agrees to voluntarily provide a statement or waives his rights, the

interview may then continue. Unless the officer specifically waives their Fifth Amendment

rights, any incriminating statements obtained under direct order will not be admissible in a

criminal prosecution but will be admissible in an administrative hearing. The subject officer

should be afforded the opportunity to consult with an attorney prior to a compelled

interview.

8.2.5 If the officer has invoked their Miranda rights but the agency deems that it must have the

answers to specific questions to properly conduct its investigation, the agency must

contact the County Prosecutor to request use immunity for the interview to continue. This

contact should be made timely so that the County Prosecutor can review all relevant

reports and have a full briefing prior to determining whether to grant use immunity. Use

immunity provides that anything the officer says under the grant of immunity, and any

evidence derived from their statements, cannot be used against him or her in a criminal

proceeding (except for perjury or false swearing if the information is not truthful). But use

immunity does not eliminate the possibility that the subject officer will be prosecuted. A

criminal prosecution may proceed even though the target or defendant has received use

immunity.

8.2.6 If the County Prosecutor grants use immunity, the agency shall advise the subject officer in

writing that he or she has been granted such immunity in the event their answers implicate

him or her in a criminal offense. The officer must then answer the questions specifically

and narrowly related to the performance of their official duties, but no answer given nor

any evidence derived from the answer may be used against this officer in a criminal

proceeding. At this point, any officer refusing to answer is subject to disciplinary charges

and possible dismissal from employment.

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8.2.7 A grant of use immunity shall be recorded on a form the subject officer signs and whose

signature is witnessed. The completed form must be made a part of the investigative file.

See the sample form in Appendix H. In all cases, approval from the authorizing assistant

prosecutor or deputy attorney general must be obtained before giving the Garrity warning.

8.3 When the Investigation is Criminal and the Officer Is a Witness

8.3.1 When interviewing a law enforcement officer as a witness, he or she must be made aware

of the differences between being a witness in a criminal investigation and being the subject

of a criminal investigation. The officer also shall be advised that he or she is not the subject

of the investigation at this time. Appendix I provides a model form that may be used for

this purpose. If at any time the officer becomes a subject of the investigation, he or she

shall be advised of that fact and the appropriate procedures must be followed.

8.3.2 Officers who are witnesses must cooperate. They must truthfully answer all questions

narrowly and directly related to performing their duty. "Performance of duty" includes an

officer's actions, observations, knowledge and any other factual information of which they

may be aware, whether it concerns their own performance of duty or that of other officers.

If the officer feels their answer would incriminate him or her in a criminal matter, the

officer must assert their Miranda rights.

8.4 When the Investigation is Administrative and the Officer Is a

Subject

8.4.1 A public employee must answer questions specifically, directly and narrowly related to the

performance of their official duties, on pain of dismissal. This obligation exists even though

the answers to the questions may implicate them in a violation of agency rules, regulations

and procedures that may ultimately result in some form of discipline up to and including

dismissal. In short, no “right to remain silent” exists in administrative investigations.

8.4.2 However, internal affairs investigators in civil service jurisdictions should be aware that,

under civil service rules, an employee cannot be forced to testify at their own disciplinary

hearing.

As a matter of fairness, the internal affairs investigator in a civil service

jurisdiction should refrain from questioning a subject officer about a particular disciplinary

offense if the officer has already been charged with that offense and is awaiting an

administrative hearing on the charge.

8.4.3 Prior to the start of any questioning, the officer shall be advised that he or she is being

questioned as the subject of an investigation into potential violations of agency rules and

N.J.A.C. 4A:2-2.6(c).

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regulations, or fitness for duty. He or she should be advised of the subject matter under

investigation, and that he or she will be asked questions specifically related to performing

their official duties.

8.4.4 This information shall be recorded on a form which the subject officer signs and whose

signature is witnessed. The completed form must be made a part of the investigative file.

See the sample form in Appendix I. The form in Appendix I shall only be used for

administrative, non-criminal investigations.

8.4.5 If the subject officer refuses to answer questions during this interview, the interviewer

should inquire about the reason for that refusal. If the officer states that he refuses to

answer any questions on the grounds that he may incriminate himself in a criminal matter,

even though the investigators do not perceive a criminal violation, the agency should

discontinue the interview and contact the County Prosecutor.

8.4.6 If the agency wants to continue its administrative interview and the County Prosecutor

agrees to grant use immunity, the agency shall advise the subject officer in writing that he

or she has been granted use immunity if their answers implicate him or her in a criminal

offense. The officer must then answer the questions specifically related to performing their

official duties, but no answer given, nor evidence derived therefrom, may be used against

the officer in a criminal proceeding. If the officer still refuses to answer, he or she is subject

to disciplinary charges for that refusal, including dismissal. This information shall be

contained in a form that the subject officer signs and whose signature is witnessed. The

completed form must be made a part of the investigative file. See the sample form in

Appendix H.

8.4.7 If the subject officer refuses to answer on any other grounds, he or she should be advised

that such refusal will subject him or her to disciplinary action, including dismissal, in

addition to discipline for the matter that triggered the interview in the first place. If the

officer still refuses, the interview should be terminated and appropriate disciplinary action

initiated.

8.4.8 The courts have decided that a public employer must permit an employee to have a

representative present at an investigative interview if the employee requests

representation and reasonably believes the interview may result in disciplinary action.

However, a representative shall be permitted to be present at the interview of a subject

officer whenever he or she requests a representative. While the Sixth Amendment right to

counsel does not extend to administrative investigations, an officer shall be permitted to

choose an attorney as their representative if he or she so desires.

8.4.9 If it appears that the presence of counsel or another representative the subject requests

will not disrupt or delay the interview, no reason exists to prevent their presence as an

observer. But the representative or attorney cannot cause undue delay in scheduling

N.L.R.B. v. Weingarten, 420 U.S. 251 (1975).

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interviews or interfere in the interview process. If the representative or attorney is

disruptive or interferes, the investigator can discontinue the interview and should

document the reasons for doing so. The investigator must control the interview and cannot

allow the representative or subject to take control.

8.5 When the Investigation is Administrative and the Officer Is a

Witness

8.5.1 When interviewing a law enforcement officer as a witness, he or she must be made aware

of the differences between being a witness in an administrative investigation and being the

subject of an administrative investigation. The officer also should be advised that he or she

is not the subject of the investigation at this time. Appendix I provides a model form that

may be used for this purpose. If at any time the officer becomes a subject of the

investigation, he or she should be advised of that fact and the appropriate procedures

followed.

8.5.2 Officers who are witnesses must cooperate and truthfully answer all questions narrowly

and directly related to performing their duty. "Performance of duty" includes an officer's

actions, observations, knowledge and any other factual information of which they may be

aware, whether it concerns their own performance of duty or that of other officers. If the

officer feels their answer would incriminate him or her in a criminal matter, the officer

must assert their Miranda rights.

8.6 Interviewing Procedures

8.6.1 Interviews should take place at the internal affairs office or a reasonable and appropriate

location the investigator designates. The subject officer's supervisor should be made aware

of the time and place of the interview so the officer's whereabouts are known. Interviews

shall be conducted at a reasonable hour when the officer is on duty, unless the seriousness

of the matter requires otherwise.

8.6.2 The employee shall be informed of the name and rank of the interviewing investigator and

all others present during the interview. The questioning session must be of reasonable

duration, considering the subject matter’s complexity and gravity. The officer must be

allowed time for meal breaks and to attend to personal physical necessities.

8.6.3 In cases of potential criminal conduct, interviews of subject officers should be recorded

consistent with AG Directives 2006-2 and 2006-4. As to serious disciplinary infractions, the

agency should audio or video record the interview. A transcript or copy of the recording

shall be made available to the officer, if applicable, at the appropriate stage of a criminal or

disciplinary proceeding. If the subject officer wishes to record the interview, he or she may

do so, and a copy of the recording shall be made available to the agency upon request, at

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the agency's expense. Agencies should consider adopting a policy requiring officers to

inform the agency or internal affairs investigator if the officer plans to record the interview.

8.6.4 Any questions asked of officers during an internal investigation must be "narrowly and

directly" related to performance of their duties and the ongoing investigation.

Officers

must answer questions directly and narrowly related to that performance. All answers

must be complete and truthful, but officers cannot be compelled to answer questions

having nothing to do with their performance as law enforcement officers, that do not

implicate a rule or regulation violation, or that are unrelated to the investigation.

8.6.5 At the interview’s conclusion, the investigator should review with the subject officer all the

information obtained during the interview to alleviate any misunderstandings and to

prevent any controversies during a later proceeding.

Gardner v Broderick, 392 U.S. 273 (1968).

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9 Internal Affairs Records

9.0.1 Every law enforcement agency shall maintain a system for documenting the work of its

internal affairs function and preserving records of this work.

9.1 The Internal Affairs Report

9.1.1 At the conclusion of the internal affairs investigation, the investigator shall submit two

separate and distinct reports as follows:

(a) Investigative Report. This report will be an objective recounting of all the relevant

information the investigation disclosed, including statements, documents and other

evidence. Such report shall be similar in all respects to a standard law enforcement

investigative report, and should contain a complete account of the investigation.

(b) Summary and Conclusions Report. This report shall summarize the case and provide

conclusions of fact for each allegation. The report should be organized as follows:

(1) A Summary of the Allegations against the officer, including a recitation of the

alleged facts;

(2) A Summary of Factual Findings in which the investigator outlines the facts proven

or supported by the evidence reviewed during the investigation, and applies those

facts to each allegation. This shall include a conclusive finding on whether each

allegation is to be recorded as exonerated, sustained, not sustained or unfounded.

For sustained findings that qualify for disclosure under Section 9.11.2, the

summary of factual findings, along with the discipline imposed, should be the basis

for the brief synopsis required under Section 9.11.2;

(3) A Discipline Imposed section in which the final discipline imposed on the officer will

be recorded. This section should be completed once the discipline imposed

becomes final. See Section 9.11.2 for guidance on when the officer’s discipline is

final.

Examples of completed Summary and Conclusions Reports are included in Appendix O.

9.1.2 If the conduct of an officer was found to be improper, the Summary and Conclusions Report

must cite the agency rule, regulation, or SOP violated. Any aggravating or mitigating

circumstances surrounding the situation, such as unclear or poorly drafted agency policy,

inadequate training or lack of proper supervision, shall also be noted in the Summary and

Conclusions Report.

9.1.3 If the investigation reveals evidence of misconduct not based on the original complaint, this

too must be reported and memorialized in both the Investigative Report and the Summary

and Conclusions Report. An investigation concerning this secondary misconduct shall be

conducted.

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9.2 Internal Affairs Index File

9.2.1 The purpose of the internal affairs index file is to serve as a record control device to

maintain an inventory of internal affairs case files and to summarize each case’s status for

authorized personnel. The instrument used for such an index file will vary by agency and

could include a log book, index cards or a computerized data base.

9.2.2 All internal affairs complaints shall be recorded in the index file. Entries should record each

case’s basic information, including the subject officer, allegations, complainant, date

received, investigator assigned, disposition and disposition date for each complaint. A

unique case number assigned to each internal affairs complaint will point to the complete

investigation file’s location and will simplify case tracking.

9.3 Investigation Files

9.3.1 An internal affairs investigation file is needed for all internal affairs reports. Given the wide

range of internal affairs allegations a law enforcement agency receives, these investigation

files might consist of only the initial report form and the appropriate disposition document.

On the other hand, investigation files might include extensive documentation of an

investigation.

9.3.2 The internal affairs investigation file should contain the investigation’s entire work product,

regardless of the author. This includes investigators' reports, transcripts of statements, and

copies of all relevant documents. The file should also include all related material from

other agency incidents that may be applicable. For instance, if an allegation is made of

excessive force during an arrest, the internal affairs investigation file should contain copies

of the reports from that arrest.

9.3.3 Where an internal affairs investigation results in the filing of criminal charges, the file shall

be made available to the prosecuting agency. It is the responsibility of that agency to

decide which items are discoverable and which are likely admissible. In these cases, the

agency must follow the prosecuting agency’s instructions. The prosecuting agency must

have a procedure in place to ensure, in the rare case where a compelled statement has

been taken from a subject officer and a criminal case results, that any compelled

statements from a subject officer are not impermissibly used in the criminal case.

9.4 Retention Schedule

9.4.1 Investigative records created during an internal affairs investigation are included in the

"Records Retention and Disposition Schedule for Local Police Departments" issued by the

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New Jersey Division of Archives and Records Management. Under the schedule, files

concerning a criminal homicide must be permanently maintained. The schedule also

requires that any other file involving a criminal matter resulting in the subject officer’s

arrest must be maintained for 75 years. While the schedule further suggests that all other

criminal or administrative internal affairs investigative records be maintained for at least 5

years, agencies should maintain these files as they relate to a particular officer for that

officer’s career plus 5 years.

9.4.2 Agencies are not required to purge their records at the intervals outlined above, and may

adopt longer retention schedules if such schedules benefit the agency. In the case of

internal affairs investigative records, longer retention times will provide agencies with the

resources and evidence necessary to assist with defending civil lawsuits.

9.4.3 While the internal affairs records of other types of law enforcement agencies are not yet

specified by the Division of Archives and Records Management, it would be appropriate for

all law enforcement agencies to follow essentially the same retention schedule.

9.5 Security of Internal Affairs Records

9.5.1 Internal affairs personnel shall maintain a filing system accessible only to unit personnel

and the law enforcement executive. Other personnel may be given access based on a

specific need, such as a deputy chief in the law enforcement executive's absence. Access to

these records must be specifically addressed with agency policy and procedures. The list of

those authorized to access these files must be kept to a minimum.

9.5.2 Physical security measures also should be taken, such as using securely locked filing

cabinets in secured offices. If a law enforcement agency uses computers to maintain

internal affairs records of any kind, special security measures must be taken. A stand-alone

personal computer is the most secure system to limit unauthorized access to internal

affairs records. If a stand-alone computer is not feasible, reasonable measures, including

the use of fire walls and/or password protected software, should be utilized to control

access to investigative files and related materials.

9.6 Confidentiality

9.6.1 The nature and source of internal allegations, the progress of internal affairs investigations,

and the resulting materials are confidential information and remain exempt from access

under the New Jersey Open Public Records Act, N.J.S.A. 47:1A-1.1 to -13. The contents of

an internal investigation case file, including the original complaint, shall be retained in the

internal affairs function and clearly marked as confidential. The information and records of

an internal investigation shall only be released or shared under the following limited

circumstances:

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(a) If administrative charges have been brought against an officer and a hearing will be

held, a copy of all discoverable materials shall be provided to the officer and the

hearing officer before the hearing;

(b) If the subject officer, agency or governing jurisdiction has been named as a defendant

in a lawsuit arising out of the specific incident covered by an internal investigation, a

copy of the internal investigative reports may be released to the attorney representing

the subject officer, agency or jurisdiction;

(d) Upon a court order; or

(e) Upon a request from the Division of Pensions, following an officer’s application for a

retirement allowance.

9.6.2 (a) The Summary and Conclusions Report described in Section 9.1.1(b) shall

be released in response to a request made under the common law right of

access by any member of the public or press where it satisfies any of the

following conditions:

(1) The Summary and Conclusions Report led to a result on or after January 1, 2023,

that requires disclosure pursuant to Section 9.11.2;

(2) The agency otherwise concludes that the Summary and Conclusions Report is

subject to release pursuant to applicable law or court order; or

(3) Upon the request or at the direction of the County Prosecutor or Attorney General

at any time.

(b) When an agency concludes that a report is subject to disclosure under Section 9.6.2(a),

it shall redact the following before disclosure:

(1) The names of complainants, witnesses, informants, victims and cooperators, in

addition to information that could reasonably lead to discovery of their identities;

(2) Non-public, personal identifying information about any individual named in the

report, such as their home addresses, phone numbers, dates of birth, social

security numbers, familial relationships, etc.;

(3) Medical information or history, including but not limited to, mental health or

substance abuse services and drug or alcohol evaluation, counseling or treatment;

(4) Information regarding any criminal investigation or prosecution that is not already

contained in a public filing, or any information that would impede or interfere with

a pending criminal or disciplinary proceeding;

In instances of domestic violence, in addition to redaction of the victim’s name, all reference to the specific

nature of the qualifying relationship should also be redacted to protect the identity of the victim. For

example, if the victim is an intimate partner, terms such as ‘spouse,” “partner,” “girlfriend,” “boyfriend,”

“husband,” or “wife,” should also be redacted, and to the extent possible the report should just indicate that

the relationship between the victim and the officer was an enumerated relationship under the Prevention of

Domestic Violence Act (N.J.S.A. 2C:25-17 et seq.).

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(5) Any records or material prohibited from disclosure by law;

(6) Juvenile records;

(7) Any information which is the subject of a judicial order compelling confidentiality

(8) Any other information that would violate a person’s reasonable expectation of

privacy; and

(9) Any information regarding law enforcement personnel, procedures, or resources

that could create a risk to the safety of any person, including but not limited to law

enforcement personnel.

9.6.3 In addition to the situations described in Sections 9.6.1 and 9.6.2, the law enforcement

executive may authorize access to a particular file or record for good cause. The request

and the authorization shall be in writing, and the written authorization shall specify who is

being granted access, to which records access is being granted and for what time period

access is permitted. The authorization shall also specify any conditions (i.e., the files may

be reviewed only at the internal affairs office and may not be removed). In addition, the

law enforcement executive may order any redactions consistent with Section 9.6.2(b). The

law enforcement executive should grant such access sparingly, given the purpose of the

internal affairs process and the nature of many of the allegations against officers.

As a general matter, a request for internal investigation case files may satisfy the good

cause requirement:

(a) If a Civilian Review Board that meets certain minimum requirements requests access to

a completed or closed investigation file, subject to the conditions described in this

section; or

(b) If another law enforcement agency requests the files because it is considering hiring an

officer who was formerly employed at the agency with the internal investigation files.

9.6.4 Agencies may receive law enforcement or judicially sanctioned subpoenas directing the

production of internal affairs investigative records. Before responding to the subpoena, the

law enforcement executive or internal affairs investigator should consult with the agency's

legal counsel to determine whether the subpoena is valid and reasonable. Courts may

modify or quash invalid or unreasonable subpoenas, but will require the agency seeking to

so modify or quash to file an appropriate motion. Similar considerations may provide

grounds for opposing a records request from a Civilian Review Board that otherwise

satisfies the minimum requirements described below. For that reason, the appropriate

agency personnel should consult with legal counsel to determine under what

circumstances it would be appropriate to provide notice to any individual who is

referenced in records requested by a Civilian Review Board.

9.6.5 If the release of internal affairs documents is appropriate, the agency should inventory the

reports released and obtain a signed receipt.

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9.6.6 Law enforcement agencies may not waive, restrict, or otherwise limit the power of the

County Prosecutor or Attorney General to direct that the information or records of an

internal investigation be released or shared pursuant to Section 9.6.1(c).

9.7 Coordination with Civilian Review Boards

9.7.1 Internal investigation case files generally are not releasable to Civilian Review Boards, but

the “good cause” standard may be satisfied when a Civilian Review Board requests records

from a completed or closed investigation file and the Civilian Review Board has in place

certain minimum procedural safeguards, as described in Section 9.7.2, to preserve the

confidentiality of the requested records and the integrity of the internal affairs function, in

addition to complying with all other applicable legal requirements. A violation of any of

these requirements may result in the revocation of a Civilian Review Board’s access to

confidential law enforcement information, including internal affairs records, and

potentially may result in other adverse or remedial actions under federal, state, or local

law.

9.7.2 For the purposes of satisfying the requirements of Section 9.7.1, a Civilian Review Board

must implement the following minimum procedural safeguards:

(a) Avoidance of Interference with Ongoing Investigations or Proceedings

The Civilian Review Board must establish policies to avoid interference with ongoing

investigations or proceedings, similar to the policies that an internal affairs function

must adopt to avoid interference with ongoing criminal investigations or proceedings.

Specifically, the policy must make clear that the Board may not commence an

investigation of a particular civilian complaint or incident until after any criminal and/or

internal affairs investigations have concluded and any resulting discipline has been

imposed. This requirement applies regardless of whether the Civilian Review Board is

granted authority to recommend discipline, or request reconsideration of any findings

or disciplinary decisions, or is limited in its authority to auditing completed

investigations. This requirement also applies regardless of whether, as a general

matter, the Civilian Review Board is granted access to redacted or unredacted internal

affairs records.

After reviewing the relevant internal affairs records and conducting any other lawful

investigation that the Civilian Review Board deems appropriate, the Board may, to the

extent permitted by law, present its conclusions to the law enforcement executive or

appropriate authority; request additional information or clarification regarding the

findings or decisions made in the course of the internal affairs investigation; and/or

request that the internal affairs investigation be re-opened. Whether to re-open an

internal affairs investigation remains within the discretion of the law enforcement

executive and, with regard to criminal matters, the County Prosecutor’s Office.

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The Civilian Review Board may not override any finding or decision made as part of the

internal affairs process, impose discipline, require that another official impose

discipline, or render any finding or decision that requires deference from any other

official. If a law enforcement agency declines to re-open an investigation at the request

of the Civilian Review Board, the Board may issue a final public report regarding the

complaint or incident after appropriately redacting the report in accordance with

instructions from the law enforcement executive. The personal identity of specific

subject officers, complainants, or witnesses may not be disclosed to the public.

Under no circumstances may a Civilian Review Board immunize any person from

prosecution or take any other action that would have the effect of conferring immunity

on any person.

(b) Confidentiality

The Civilian Review Board must establish and adhere to written policies and procedural

safeguards to preserve the confidentiality of internal affairs records and other

confidential information, which shall include at least the following requirements:

(1) Closed sessions for reviews or investigations. The Board must be in a closed session

whenever the content of internal affairs records are discussed or testimony or

other evidence regarding a specific incident is presented.

(2) Protection of internal affairs information. No part of any internal affairs file may be

disclosed by the Civilian Review Board under any circumstances to any person who

is not a Board member or employee, the law enforcement executive, or a member

of the law enforcement agency’s internal affairs function, except in a final public

report appropriately redacted in accordance with instructions from the law

enforcement executive. This prohibition on disclosure includes any statement

made by police officers to law enforcement investigators under the provisions of

Garrity v. New Jersey, 385 U.S. 493 (1967).

(3) Personal identifiers. Even in the Civilian Review Board’s final public report, the

Board may not disclose the personal identity of subject officers, complainants, or

witnesses.

(4) Dedicated location for reviewing internal affairs records. Whenever Civilian Review

Board members and staff are granted access to internal affairs records, that review

shall take place only in a secure location designated by the law enforcement

executive and no internal affairs records may be copied or removed from the

designated location.

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(5) Training. All Civilian Review Board members and staff shall undergo training

approved by the County Prosecutor’s Office on the confidentiality of internal affairs

records and other investigative material prior to being granted access to such

information.

(6) Attestation. All Civilian Review Board members and staff shall receive a copy of the

Board’s written confidentiality policies and sign a sworn statement that they will

comply those policies prior to being granted access to internal affairs records.

The law enforcement executive may condition the Civilian Review Board’s access to

internal affairs records on the Board’s agreement to other protections that the law

enforcement executive reasonably considers necessary to safeguard their

confidentiality.

The Civilian Review Board must adopt a written conflicts-of-interest policy that

addresses both inherent conflicts—which preclude a person’s service entirely as a

Board member or staffer—and incident-specific conflicts—which require a Board

member or staffer’s recusal from particular matters. Prior to commencing their service,

Board members and staff must sign a sworn statement that they will comply with the

Civilian Review Board’s written conflicts-of-interest policy.

The Civilian Review Board’s conflicts-of-interest policy must include, at a minimum, the

following stipulations:

(1) Incident-specific conflicts. Any Board member or staffer with an incident-specific

conflict must immediately recuse from all proceedings related to that matter.

(2) Inherent conflicts. At least the following categories of persons are considered

inherently conflicted and may not serve as a Board member or staffer:

a. A sworn officer or employee of a law enforcement agency within the

Board’s jurisdiction, or any person who has held such a position in the last

five years;

b. A sworn officer or employee of any other state, county, or local law

enforcement agency;

c. A prosecutor or criminal defense attorney currently practicing in the

county within the Board’s jurisdiction;

d. A relative of any of the aforementioned individuals, as defined in the New

Jersey Conflicts of Interest Law at N.J.S.A. 52:13D-21.2(2)(d);

e. A current candidate for public office; or

f. With respect to Board membership, a current officer or employee of the

municipality.

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(3) Duty to disclose. Board members and staff have an ongoing duty to affirmatively

disclose any conflict of interest that they may reasonably become aware of,

whether that conflict is inherent or incident-specific.

(4) Screening. If a Board member or staffer has a close personal or business

relationship with an interested party or any individual who meets any of the

criteria listed under the “inherent conflicts,” the Board member or staff should

establish a screen to ensure the non-disclosure of sensitive information involving

the Board.

(d) Criminal History of Board Members and Staff

All Civilian Review Board members and staff who support the Board’s work, on a full- or

part-time basis, must undergo a criminal history background check. A person who has

been convicted of a crime or offense may not be granted access to the content of

internal affairs records unless both the law enforcement executive and the County

Prosecutor consent to that person being granted such access.

9.8 Coordination with Other Law Enforcement Agencies

9.8.1 In some instances, an officer who was formerly an employee of one law enforcement

agency may apply to join a different law enforcement agency. It is imperative that the law

enforcement agency that may hire the officer has access to all internal investigative files

related to that officer’s previous employment. Without such information, a law

enforcement agency is unable to make a fully informed hiring decision.

9.8.2 Accordingly, in any case where a law enforcement agency has reason to believe that a

candidate for employment was previously a sworn officer of another law enforcement

agency, the hiring agency has an affirmative obligation to identify all such former

employers. The hiring agency shall then request all internal affairs files for cases where the

candidate was the subject officer, regardless of the ultimate disposition or status of the

complaint. If requested, the hiring agency shall provide a written acknowledgement to the

releasing agency that it will maintain the confidentiality of said files in accordance with this

policy.

9.8.3 If a law enforcement agency receives such a request regarding a former employee, then it

shall immediately share copies of all internal investigative information related to that

candidate with the hiring agency, in accordance with N.J.S.A. 52:17B-247. Confidential

internal affairs files shall not be disclosed to any other party.

9.8.4 This disclosure requirement does not apply when the agency responsible for sharing

internal affairs files is unable to do so because the information is clearly subject to a non-

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disparagement or non-disclosure agreement. Such agreements must be followed even

though they inhibit the ability of law enforcement agencies to fully evaluate candidates

applying for positions of public trust, and therefore have the potential to compromise

public safety. Given the public safety risks that such agreements pose, county and

municipal governing entities and their counsel are strongly discouraged from entering into

them.

9.8.5 In all cases, law enforcement executives retain the authority to defer a decision on hiring a

particular candidate until all extant internal affairs information has been received and

reviewed.

9.9 Reporting to Law Enforcement Executive

9.9.1 The internal affairs function should prepare periodic reports for the law enforcement

executive that summarize the nature and disposition of all misconduct complaints the

agency received. This report should be prepared at least quarterly, but may be prepared

more often as directed by the executive. The report should include the principal officer; the

allegation; the complainant; the age, sex, race and other complainant characteristics that

might signal systematic misconduct by any member of the agency; and the investigation’s

status.

9.9.2 Concluded complaints should be recorded and the reasons for termination explained.

9.9.3 This report shall be considered a confidential, internal work product. Dissemination of the

report should be limited to command personnel, the County Prosecutor, the appropriate

authority, or a civilian review board that meets the minimum requirements for access to

internal affairs information, if mandated by the governing body.

9.10 Reporting to County Prosecutor

9.10.1 On a quarterly basis, every law enforcement agency shall report internal affairs activity to

the County Prosecutor on an internal affairs summary report form attached as Appendix K

(The fillable form may be found on the Attorney General’s website). Each County

Prosecutor will provide those law enforcement agencies—including municipal police

departments—in their jurisdiction with instructions on completing the forms, and a

reporting schedule.

9.10.2 The summary report forms must contain sufficient information to enable the County

Prosecutor to identify warning signs of potential deficiencies in the internal affairs process.

At a minimum, each report must include a brief summary of each internal affairs complaint

that was pending before the agency at any point during the reporting period. The summary

shall at least include the nature of the complaint, the date the complaint was received, the

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current status of the complaint, and, if the case is closed, the final disposition of the

complaint with any discipline imposed. A sample form is found at Appendix K.

9.10.3 Honesty is an essential job function for every New Jersey law enforcement officer. Officers

who are not committed to the truth, who cannot convey facts and observations in an

accurate and impartial manner and whose credibility can be impeached in court cannot

advance the State’s interests in criminal matters. In addition, defendants in criminal

matters may be entitled to certain evidence the prosecutor has concerning the credibility

of prosecution witnesses, including police officers. Prosecutors are considered to possess

such evidence even when law enforcement agencies create and maintain information

concerning the honesty of individual officers. Furthermore, prosecutors may be required to

provide such evidence to the court. It is therefore imperative that the internal affairs

investigator assist prosecutors with their legal duty to review and, if necessary, disclose

evidence that may impact the credibility of police officers. (See Attorney General Law

Enforcement Directive No. 2019-6). Thus, the following matters shall be reported to the

County Prosecutor so that he or she may evaluate the material’s relevance:

(a) A finding that a police officer has filed a false report or submitted a false certification in

any criminal, administrative, employment, financial or insurance matter in their

professional or personal life;

(b) A pending court complaint or conviction for any criminal, disorderly persons, petty

disorderly persons, municipal ordinance or driving while intoxicated matter;

qualifications as an expert witness;

(d) A finding of fact by a judicial authority or administrative tribunal that is known to the

officer's employing agency that concludes that a police officer intentionally did not tell

the truth in a matter;

(e) A sustained finding that a police officer intentionally mishandled or destroyed

evidence; and

(f) A sustained finding that a police officer is biased against a particular gender or ethnic

group.

9.10.4 That law enforcement agencies report the above-listed incidents to the County

Prosecutor's Office does not constitute a mandate or requirement that the information be

disclosed to the court. Prosecutors should conduct an independent review of the

information provided to determine whether it needs to be disclosed and whether the

officer can participate in the prosecution of criminal cases.

This provision is not intended to require that law enforcement agencies initiate internal affairs investigations into the

accuracy of every statement, report or certification that may be filed with respect to civil litigation, including matrimonial

and employment matters or any other personal or financial matters not directly related to the officer's employment. In

most cases, such investigations would be inappropriate. Determinations as to the credibility of statements or

certifications made in the context of litigation should be made by the courts or administrative tribunals. Determinations

as to the credibility of statements or certifications in other personal or financial matters should be addressed if they arise

in the context of an ongoing internal affairs investigation.

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9.10.5 Once a decision is reached as to a particular case or defendant, the prosecutor shall, if

necessary, discuss their decision with the internal affairs investigator and the law

enforcement executive. If it is determined that an officer cannot participate in a criminal

prosecution, the prosecutor must advise the agency whether the officer's disability is

limited to a particular case, a particular category of cases or all criminal matters.

9.11 Public Reports

9.11.1 On an annual basis, every law enforcement agency shall provide to the County Prosecutor

and publish on its public website a report summarizing the types of complaints received

and the dispositions of those complaints. This report should be statistical in nature. The

County Prosecutor shall submit a summary of the reports from all agencies in its

jurisdiction to the Office of Public Integrity and Accountability. The Annual Internal Affairs

Summary attached to Appendix K shall be used to satisfy the requirements of this Section.

This process shall be overseen and directed by the Attorney General’s Office of Public

Integrity & Accountability and the Office of Justice Data.

9.11.2 On a periodic basis, and no later than January 31 of the following year, every agency shall

submit to the County Prosecutor and the Attorney General, and publish on the agency’s

public website, a brief synopsis of all misconduct where an agency member:

(a) Was terminated;

(b) Was reduced in rank or grade;

shall be broadly construed to include any disposition involving a suspension of more

than 40 hours of time or the equivalent of five days/shifts if less than 40 hours,

regardless of whether any of the suspension time was suspended or held in abeyance.

It shall include the loss of vacation, sick or leave time totaling more than 40 hours or

the equivalent of five days/shifts. It shall include any combination of suspension time

assessed plus loss of vacation, sick or leave time that aggregates to more than 40 hours

or the equivalent of five days/shifts. It shall also include any fine that exceeds the

gross value of 40 hours, or the equivalent of five days/shifts, of pay;

(d) Had a sustained finding of discrimination or bias against any person because of the

individual’s actual or perceived race, creed, color, national origin, ancestry, age, marital

status, civil union status, domestic partnership status, affectional or sexual orientation,

genetic information, sex, gender identity or expression, disability, nationality, familial

status, or any other protected characteristic under N.J.S.A. 10:5-1 et seq, regardless of

the type or severity of discipline imposed;

(e) Had a sustained finding that the officer utilized excessive force in violation of

departmental policy or the Attorney General’s Use of Force Policy, regardless of the

type or severity of discipline imposed;

(f) Had a sustained finding that the officer was untruthful or has demonstrated a lack of

candor, regardless of the type or severity of discipline imposed;

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(g) Had a sustained finding that an officer has filed a false report or submitted a false

certification in any criminal, administrative, employment, financial, or insurance matter

in their professional or personal life, regardless of the type or severity of discipline

imposed;

(h) Had a sustained finding that an officer intentionally conducted an improper search,

seizure or arrest, regardless of the type or severity of discipline imposed;

(i) Had a sustained finding that an officer intentionally mishandled or destroyed evidence,

regardless of the type or severity of discipline imposed;

(j) Had a sustained finding of domestic violence, as defined in N.J.S.A. 2C:25-19, regardless

of the type or severity of discipline imposed;

(k) Resigned, retired, transferred or separated from the agency, regardless of the reason,

while any internal affairs investigation or complaint was pending, and the misconduct

ultimately sustained falls within categories (d) through (j) above or would have resulted

in an action under categories (a) through (c) had the member not separated from the

agency;

(l) Was charged with any indictable crime under New Jersey or an equivalent offense

under federal law or the law of another jurisdiction related to the complaint.

“Sustained finding” refers to any finding where a preponderance of the evidence shows an

officer violated any law, regulation, directive, guideline policy or procedure issued by the

Attorney General or County Prosecutor; agency protocol; standard operating procedure,

rule or training, following the last supervisory review of the incident(s) during the internal

affairs process where the deadline for appeal has passed or following a ruling by a hearing

officer, arbitrator, Administrative Law Judge, Civil Service Commission, or the Superior

Court where the deadline for any subsequent appeal has passed. Allegations that cannot

be sustained, are not credible, or have resulted in the exoneration of an employee,

including where the previous finding has either been vacated, or overturned on the merits

in any subsequent action, generally are not considered to be sustained findings subject to

the disclosure requirements of this Policy. On the other hand, if the officer negotiates a

plea or there is an administrative or civil settlement with the employer whereby the charge

is dismissed, the charge would still be considered sustained, if there was sufficient credible

evidence to prove the allegation, and the officer does not challenge the finding and obtain

a favorable ruling by a hearing officer, arbitrator, Administrative Law Judge, Civil Service

Commission or the Superior Court.

The reporting and public dissemination requirements of (a) through (j) above become

applicable once an officer’s discipline is sustained, as defined above. The reporting and

public dissemination requirements of (k) and (l) above become applicable at the close of

the reporting period during which they occur.

Section 6.0.1 of the IAPP requires that “All allegations of officer misconduct shall be thoroughly,

objectively, and promptly investigated to their logical conclusion in conformance with this policy, regardless

of whether the officer resigns or otherwise separates from the agency.”

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The synopsis of each case, required by this section, shall follow the format provided in

Appendix L and shall include the identity of each officer subject to final discipline, a full

explanation of the rule, regulation, policy, directive, or law violated, a factual summary of

their conduct, and a statement of the sanction imposed. The synopsis shall provide

sufficient detail to enable a reader who is not familiar with the case to fully understand the

factual scenario that resulted in the disciplinary action. Examples of acceptable synopses

may be found in Appendix L (updated November 2022). This synopsis shall not contain the

identities of the complainants or any victims. Where discipline relates to domestic violence,

the synopsis shall not disclose the relationship between a victim and an officer. In rare

circumstances, further redactions may be necessary to protect the identity of a victim.

Whenever practicable, notice shall be given to victims of domestic or sexual violence in

advance of an agency’s disclosure of discipline related to the incident.

The required posting to the agency’s public website shall remain in place and publicly

accessible.

9.11.3 Agencies may not, as part of a plea or settlement agreement in an internal affairs

investigation or otherwise, enter into any agreement concerning the content of a synopsis

subject to public disclosure under Section 9.11.2, including any agreement regarding the

identities of officers subject to final discipline, summaries of misconduct, or statements of

the sanctions imposed. No State, county, or municipal agency, law enforcement unit, or

licensed law enforcement officer shall enter into any non-disclosure agreement which

seeks to conceal or prevent public review of the circumstances under which the officer

separated from or was terminated or fired from employment by the law enforcement unit

or State, county, or municipal agency.

9.11.4 Whenever a law enforcement officer makes an application to the New Jersey Division of

Pensions for retirement benefits, in anticipation of upcoming retirement and the receipt of

a pension, both the employing law enforcement agency and the officer shall have an

affirmative obligation to report to the Division of Pensions the existence of any pending

internal affairs investigation, complaint or case, including those on appeal, as well as any

criminal charges against that officer.

9.12 Personnel Records

9.12.1 Personnel 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. When a complaint has a

disposition of exonerated, not sustained or unfounded, there shall be no indication in the

employee's personnel file that a complaint was ever made.

See N.J.S.A. 43:1-3 (“honorable service” and the evaluation by the relevant board for same); 43:1-4

(notification to Division of Criminal Justice, and Pensions and Benefits, about prosecutions or convictions of

members); 43:1-5 (employer must notify the board of disciplinary action taken against a member).

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9.12.2 Where 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. See Appendix M for a sample form (Note: Civil Service jurisdictions must

use forms authorized by the Civil Service Commission). No part of the internal affairs

investigative report shall be placed in the personnel file.

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10 The Responsibilities of County Prosecutors

10.0.1 County Prosecutors are responsible for conducting substantive oversight to ensure that the

internal affairs functions of all law enforcement agencies within their jurisdiction are

operating professionally and effectively. As specialists with deep experience in the criminal

justice system and working in the community, prosecutors are well situated for identifying

procedural deficiencies before serious issues emerge with an agency’s internal affairs

function. As such, County Prosecutors must review the information they receive from law

enforcement and the public regarding internal affairs, and swiftly follow up if there are any

signs of trouble.

10.0.2 County Prosecutor Offices are an important alternative venue for the filing of internal

affairs complaints against an officer of any law enforcement agency in their jurisdiction.

Prosecutors must be especially alert to any indication from complainants or the public that

the process for receiving and investigating complaints of misconduct is not operating in

accordance with the guidelines in this document. For instance, any indication that a

member of the public who attempted to file a complaint was turned away or dissuaded is

extremely serious and must be immediately investigated.

10.0.3 It is also critical that County Prosecutors substantively review the summary reports that

they receive from the internal affairs functions of agencies in their jurisdiction, including

municipal police departments. The role of the prosecutor is not limited to ensuring that

such reports are submitted on time. Instead, prosecutors must examine the reports, and

conduct follow up investigation when concerning patterns emerge. For instance, if an

agency consistently appears to summarily close administrative investigations in instances

where criminal investigations are declined, then that would be cause for further

investigation. Or, if an agency’s officers have been the subjects of numerous serious

complaints over a long span of time, but no such complaint has ever been sustained, then

that would merit a close review. County Prosecutors are at all times empowered to direct

that an agency’s internal affairs files be shared with prosecutors for the purposes of

facilitating further investigation.

10.0.4 County Prosecutors should conduct reviews of agencies with concerning patterns, as well

as instituting a process for random reviews of the internal affairs functions of agencies in

their jurisdiction. For instance, a County Prosecutor might direct a randomly selected

agency to share all internal affairs files for cases that were closed in the previous quarter,

so that the prosecutor can ascertain whether the internal affairs guidelines are being

rigorously observed both in the procedures being employed and in the substance of the

results. Likewise, if excessive force complaints are never sustained by an agency, the

County Prosecutor may elect to review the body worn camera footage of force incidents to

make an independent assessment. Even if the County Prosecutor’s Office finds that there

have been no substantive errors in an agency’s dispositions or disciplinary decisions,

periodic reviews might uncover procedural deficiencies that, if allowed to continue, might

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result in serious errors in the future. In instances where a County Prosecutor reviewed a

matter for potential criminal prosecution, declined prosecution and referred back for

administrative action, the County Prosecutor must review the ultimate disposition of those

matters.