09 Jun TRANSPARENCY, FAIRNESS, AND THE AUTHORITY TO NAME NAMES
This week the New Jersey Supreme Court, under the banner of promoting transparency and accountability, blessed two directives issued last June by NJ Attorney General Gurbir S. Grewal. These directives ordered law enforcement agencies, like those I recently oversaw, to publicly disclose the names of officers who were subject to both prospective and retroactive major administrative discipline. In In re Attorney General Law Enforcement Directive Nos. 2020-05 and 2020-06 (085017), Chief Justice Stuart Rabner, writing for a unanimous court, authorized the annual public disclosure of the names of officers who had been subject to termination, demotion or a suspension of more than 5 days, dating back to the year 2000.
The AG directives, issued in the immediate aftermath of the killing of George Floyd at the hands of a Minneapolis police officer, represent a “sea change” in the way that law enforcement agencies must handle administrative discipline. As recently as 2019, the AG successfully argued in court against the release of the name of a state trooper linked to a disciplinary charge, reasoning that law enforcement officers are “entitled to . . . [a] reasonable expectation of privacy” in their disciplinary history.
The NJ Supreme Court, in upholding these directives, likened this new procedure to the disciplinary practices for doctors, lawyers, judges, plumbers, dentists and the like. Organizations supporting the implementation of these directives say the directives will promote public trust in law enforcement and public safety.
As a former chief law enforcement executive at the helm when these directives were first announced, I see this new level of accountability and transparency as inevitable, and a trend that law enforcement departments need to embrace. As we say in the Navy, a rising tide floats all boats, and the new directives have clear benefits to both citizens and law enforcement alike. Police departments may not necessarily like it, but these directives now have been legally tested and upheld.
The more difficult issue is what will happen to police officers who previously settled disciplinary charges on the promise of confidentiality. In this not-so-small category of cases, the disciplinary charges were not subject to contested hearings and these officers, weighing the pros and cons of settling these proceedings, relied on promises that their names would be protected from disclosure. Such promises were frequently made (just ask the former Superintendent of the State Police, who submitted a certification in these proceedings attesting to this very point). These confidential, contractual settlements of administrative discipline were undertaken with material conditions negotiated by both sides. In other words, these promises were representations that officers relied on when they decided to settle their disciplinary actions in the past. In legal terms, this is called the equitable doctrine of promissory estoppel.
Balanced against the doctrine of promissory estoppel, the argument for absolute transparency for this category of officers cedes to principles of fairness. The NJ Supreme Court acknowledged as much, setting forth a formal procedure so that these officers, who relied on promises of confidentiality (now to their possible detriment), will have a legal forum to continue to contest the public disclosure of their names. Instead of viewing this as a loss for the proponents of transparency at the hands of secrecy, it is rather a victory for procedural and contractual fairness.
Contact Chris Gramiccioni at chris@kingstoncoventry.com with any questions.