Newark CCRB History - Legal

Fraternal Order of Police, Newark Lodge No. 12 v. City of Newark
(A-15-2019 (083197)

 

 

On March 17, 2016, the Newark Municipal Council (“Council”) passed Municipal Ordinance 6PSF-B (“Ordinance”) establishing the City’s first Civilian Complaint Review Board (“CCRB”). This Ordinance was passed in response to the Department of Justice’s (“DOJ”) May 2011 investigation of the Newark Police Department (“NPD”) regarding complaints of civil rights violations (i.e., excessive force, unwarranted stop and arrests, and discriminatory police action).  After three years of investigating these claims, the DOJ issued a report detailing practices and patterns of constitutional violations by the NPD, and the NPD’s deficiency in reviewing force and investigating complaints regarding officer conduct. 

 

On March 3, 2016, the DOJ sued the City of Newark in federal court seeking relief to remedy the NPD’s conduct of depriving certain citizens of their constitutional rights.On April 20, 2016, the City of Newark and the DOJ entered into a Consent Decree to enhance community engagement and civilian oversight.  The Consent Decree called for the fostering of better relations between police and the communities they serve via the creation of a civilian oversight entity to enhance NPD’s accountability and transparency and the public’s confidence. 

 

Shortly thereafter, the Council passed an Ordinance creating the CCRB.  The Ordinance provided that: (1) CCRB membership shall be comprised of individuals to be appointed by the Mayor with the advice and consent of the Council; (2) the CCRB shall be funded with municipal funds; (3) the CCRB shall be granted subpoena power, concurrent jurisdiction to investigate complaints of misconduct while an Internal Affairs (“IA”) investigation is also taking place, and the authority to review the findings, conclusions and recommendations of IA investigations;
(4) the CCRB shall recommend procedures for investigating police misconductand play a consultative role in the development of a disciplinary matrix to be used by the Public Safety Director; and (5) the NPD and the Department of Public Safety shall cooperate with the CCRB by providing assistance, full cooperation during investigations, and records upon request.

 

On August 5, 2016, the Fraternal Order of Police, Newark Lodge No. 12 (“FOP”) filed a complaint alleging the Ordinance creating the CCRB was unlawful.  The trial court declared the Ordinance invalid and enjoined its operation in virtually all respects on the grounds that it permitted the CCRB to file a complaint against and investigate a police officer, which conflicted with the Chief of Police’s daily management operations. The Court further noted that because the Council lacked power to investigate such complaints in its own capacity, it could not, by Ordinance, transfer such power to the CCRB.  Furthermore, the CCRB’s concurrent investigation with IA of an allegation of police misconduct, if permitted, would undermine the uniformity of the IA investigation.  The Court opined that the CCRB could neither guarantee strict confidentiality during an investigation, nor provide experienced investigators to investigate such claims.  The Court also questioned the CCRB’s neutrality due to the composition of its members and viewed investigating and hearing matters as “separate functions” antithetical to each other.  The Court also noted that the CCRB had no legal authority to exercise its subpoena power as prescribed by the Ordinance.  The Court left intact the CCRB’s right to conduct general oversight functions such as aiding in the development of a disciplinary matrix.

 

The City of Newark appealed the trial court’s decision, and the Appellate Division affirmed in part and reversed in part.  Specifically, the Court: (1) invalidated the CCRB’s investigatory findings of facts as binding on the Public Safety Director, absent clear error, because it interfered with the Chief of Police’s statutory rights to superviseIA; (2) concluded thatthe Ordinance’s procedure for the CCRB did not violate due process; (3) invalidated a provision authorizing the disclosure of complainant’s identities, on the grounds that it might deter them from coming forward; and (4) reversed the trial court by concluding that the Council could confer subpoena power on the CCRB.  The FOP appealed the Court’s decision to the New Jersey Supreme Court.

 

On appeal, the New Jersey Supreme Court: (1) invalidated the CCRB as a second “appropriate authority”, because the Newark Municipal Code identified the Public Safety Director as the primary “appropriate authority”; (2) upheld the Council’s right to create a commission to conduct investigations of the operation of the police force, which the Court concludedwas different from examining the operations of a police force or the performance of an officer or member;
(3)concluded that a CCRB investigation of a complaint against a police officer that is conducted concurrent with an IA investigation of the same matter created a conflict and decided that the CCRB can investigate claims that are not under IA review.  In such cases the CCRB can investigate, conduct a hearing, and make findings of fact and make discipline recommendations to the Public Safety Director.  The Public Safety Director can then order the Chief of Police to initiate charges and/or discipline the offending officer; (4) agreed with the Appellate Division that the CCRB can create a disciplinary matrix to be used by the Public Safety Director,  conduct oversight reviews,and report periodically to the Public Safety Director and the Council; (5)concluded that Council cannot legally confer subpoena power on the CCRB; and finally (6) declared the FOP’s due process claim premature since no procedures had been established with respect to CCRB investigations.  The Court also noted that the CCRB is not an adjudicative body and is merely tasked with investigating.