FRATERNAL ORDER OF POLICE, NEWARK LODGE NO. 12 VS. CITY OF NEWARK (C-000177-16, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3298-17T3

FRATERNAL ORDER OF

POLICE, NEWARK LODGE

NO. 12,

APPROVED FOR PUBLICATION

Plaintiff-Respondent,

June 18, 2019

v. APPELLATE DIVISION

CITY OF NEWARK,

Defendant-Appellant.

______________________________

Argued May 13, 2019 – Decided June 18, 2019

Before Judges Messano, Fasciale and Rose.

On appeal from Superior Court of New Jersey,

Chancery Division, Essex County, Docket No. C-

000177-16.

Avion M. Benjamin argued the cause for appellant

(Kenyetta K. Stewart, Newark Corporation Counsel,

attorney; Avion M. Benjamin and Alana Miles, of

counsel and on the briefs).

Matthew D. Areman argued the cause for respondent

(Markowitz & Richman, attorneys; Matthew D.

Areman, on the brief).

Avram D. Frey argued the cause for amici curiae

American Civil Liberties Union of New Jersey and

Newark Communities for Accountable Policing

(Gibbons, PC, attorneys; Jeanne LoCicero, Legal

Director, American Civil Liberties Union, attorney;

Lawrence S. Lustberg, Avram D. Frey, and Jeanne

LoCicero, on the brief).

Gurbir S. Grewal, Attorney General, attorney for

amicus curiae Attorney General of New Jersey (Melissa

H. Raksa, Assistant Attorney General, of counsel;

Joseph C. Fanaroff, Assistant Attorney General, on the

brief).

The opinion of the court was delivered by

FASCIALE, J.A.D.

This appeal requires that we determine the validity of an Ordinance (the

Ordinance) enacted by defendant City of Newark (the City), which created a

civilian complaint review board (the CCRB) in response to an alarming "pattern

or practice of constitutional violations" by the Newark Police Department

(NPD). The United States Department of Justice (DOJ) uncovered the violations

after a lengthy and thorough investigation of the NPD, which led to the entry of

a consent decree in a federal lawsuit. The creation of the CCRB is the City's

decisive legislative policy response to the DOJ's findings, which tackled the

problem head on.

The City appeals from an order granting summary judgment to plaintiff

Fraternal Order of Police, Newark Lodge No. 12 (FOP). FOP is the exclusive

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collective negotiations representative for NPD officers. The order permanently

enjoined the City from "implementing and/or enforcing" the Ordinance, "except

to the extent" that the Ordinance authorized the CCRB to "serve strictly in an

oversight capacity . . . ." The practical effect of the order stopped the CCRB

from functioning as intended because it precluded the CCRB from investigating

alleged police misconduct, prevented the CCRB from utilizing subpoena power,

and thwarted implementation of the City's policy decision, which was intended

to definitively promote accountability, transparency, and public confidence in

the NPD.

We must address numerous legal questions, especially whether the City

validly set policy. We acknowledge that N.J.S.A. 40A:14-118 expressly

authorizes the City to create a board – such as the CCRB – to investigate and

examine allegations of police misconduct. But the same statute charges the

Chief of Police (the Chief) with responsibility for efficient and routine day-to-

day operations of the police force. Therefore, one of the primary legal questions

on this appeal is whether the Ordinance has infringed upon the Chief's statutory

mandate.

Understanding that the Ordinance also cannot alter the NPD's obligation

to follow the Attorney General Guidelines (AG Guidelines) when undertaking

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its own internal affairs (IA) investigations, we hold that the Ordinance is valid

on its face with two exceptions. First, the Ordinance infringes upon the Chief's

statutory rights by making the CCRB's findings of fact binding, absent clear

error, and second, the Ordinance improperly permits disclosure of complainant

and police officer identities. Otherwise, we conclude that the CCRB can

function as intended under the Ordinance, including providing an oversight role

by investigating alleged police misconduct, conducting hearings, participating

in the development of a disciplinary matrix, making recommendations, and

issuing subpoenas.

We therefore affirm in part and reverse in part.

I.

In May 2011, the DOJ, in conjunction with the Special Litigation Section

of the Civil Rights Division and the United States Attorney's Office for the

District of New Jersey, opened an investigation of the NPD. It did so after

receiving "serious allegations of civil rights violations" by NPD officers. The

investigation spanned a period of three years.

In July 2014, upon the conclusion of its investigation, the DOJ released a

forty-nine page report that communicated its findings and recommendations to

City officials and the NPD (the DOJ report). The DOJ acknowledged the "skills

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and dedication of the many [NPD] officers who abide by the rule of law and

commit themselves daily to the difficult, and too often thankless, job of

protecting public safety." Indeed, the DOJ report expressly states that the DOJ's

findings "are not meant to detract from these officers' efforts." We also do not

intend to undermine the important work that police officers perform.

Nevertheless, the DOJ report reflects that its investigation

showed a pattern or practice of constitutional violations

in the NPD's stop and arrest practices, its response to

individuals' exercise of their rights under the First

Amendment, the [NPD's] use of force, and theft by

officers. The investigation also revealed deficiencies

in the NPD's systems that are designed to prevent and

detect misconduct, including its systems for reviewing

force and investigating complaints regarding officer

misconduct. The investigation also identified concerns

that do not appear to amount to patterns of

constitutional misconduct, but which nonetheless are

significant and warrant consideration by the NPD.

These concerns relate to the NPD's practices in dealing

with potentially suicidal detainees, the NPD's sexual

assault investigations, and the impact of the NPD's

policing on the [lesbian, gay, bisexual, and transgender]

LGBT community.

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The DOJ found recurrent problems with the IA function of the NPD, 1 such

as the failure to collect evidence from complainants, to "probe officers' accounts

or assess officer credibility," and to give witness statements "sufficient weight."

The DOJ identified instances of needless and unnecessary use of Miranda2

warnings when interviewing complainants and witnesses with the effect of

intimidating and discouraging their participation. And it determined that the

disciplinary system lacked "transparent [and] objective criteria," resulting in

arbitrary decisions. The DOJ report concluded that the NPD failed to investigate

"officers with high numbers of credible complaints," and that these officers

"continued to work on the force . . . without any discipline or other corrective

action[.]" The DOJ concluded that these patterns and practices undercut the

community's trust and confidence in the NPD.

Like the DOJ, the New Jersey Attorney General (AG) has similarly

recognized that a failure in the IA function leads to a "negative impact on the

administration of criminal justice and the delivery of police services," which

1

The NPD currently refers to its IA department as the Office of Professional

Standards (OPS). For the sake of consistency, and to avoid confusion by adding

another acronym, we refer to it as the IA department.

2

Miranda v. Arizona, 384 U.S. 436 (1966).

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inevitably erodes "the respect and support of the community" and possibly

results in civil lawsuits. AG Guidelines on Internal Affairs Policy & Procedures,

at p. 5.

As to its finding that the constitutional violations resulted in a significant

lack of accountability, the DOJ report stated:

The NPD has neither a functioning early warning

system nor an effective [IA] structure. Those

inadequacies undermine the Department's ability to

identify and address officer misconduct. The NPD's

data collection and analysis, and its system for regular

review of officer use of force, are similarly deficient.

One indication of the ineffectiveness of the

NPD's [IA] system is that the [IA] Unit . . . sustained

only one civilian complaint of excessive force out of

hundreds received from 2007 through 2012. While

there is no "right" rate at which force complaints should

be sustained, only one finding of unreasonable force out

of hundreds of complaints over a six-year period is

symptomatic of deeply dysfunctional accountability

systems. The NPD also has failed to adequately collect

or analyze data about officers' use of force, stops, or

arrests. Nor has the NPD taken adequate steps to

implement an early warning system that would track

and identify officers' problematic behavior. As a result

of these systematic deficiencies, the NPD does not

discern or respond to problematic trends in officer

conduct that could constitute or lead to misconduct.

[(Emphasis added).]

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The DOJ determined that the IA system "tacitly permit[ted] [police]

officers to engage in such conduct," and crucially, that the NPD knew about the

problems but failed to address them. The DOJ report itself reflects that the City

agreed in principle to "establish a civilian oversight entity for the NPD" and to

"revise its [IA] practices to ensure effective complaint intake, objective

investigations of misconduct, and fair and consistent discipline." 3

On March 3, 2016, the United States of America filed a complaint against

the City in the United States District Court for the District of New Jersey,

alleging that the City was liable for the acts or omissions of the NPD. The

complaint referenced the DOJ report and its investigative findings and

conclusions. By filing the complaint, the United States attempted to remedy the

"pattern or practice" of the NPD that "has deprived persons of rights, privileges,

and immunities secured and protected by the Constitution and laws of the United

States." The United States sought to enjoin the NPD from further alleged

3

Under the agreement, in April 2015, the Mayor acted swiftly and issued an

executive order establishing a CCRB. Two months later, the then-Police

Director issued a proposed disciplinary matrix, with the goal of providing a

uniform manner of addressing progressive and corrective discipline within the

NPD. The CCRB, as contemplated by the executive order, never convened, and

the matrix was not adopted in the manner prescribed by the executive order. The

executive order and its related proposed disciplinary matrix are not the subject

of the present litigation.

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misconduct, and requested that the City "adopt and implement policies and

procedures to remedy the pattern or practice of unconstitutional and unlawful

conduct described [in the complaint]." This litigation was resolved a few weeks

later, on March 30, 2016, with a consent decree, which was subsequently revised

on April 29, 2016.

On March 17, 2016, fourteen days after the federal complaint was filed,

the City enacted the Ordinance, establishing the CCRB. In creating the CCRB,

the City joined multiple other cities nationwide with similar boards. 4 The

Ordinance is the embodiment of the City's legislative policy decision to enable

transparent investigation and examination into allegations of police misconduct.

The Ordinance details the CCRB's structure, power, and duties, which we will

outline.

As to its structure, the CCRB shall consist of eleven members of the

public, appointed by the Mayor, with the advice and consent of the Municipal

4

This includes New York City, Chicago, Philadelphia, Houston, Washington

D.C., Dallas, Baltimore, Miami, Las Vegas, Detroit, Memphis, Milwaukee, San

Francisco, Honolulu, Atlanta, Prince George's County, Indianapolis, Cleveland,

St. Louis, Cincinnati, Albuquerque, and Portland. See Udi Ofer, Getting It

Right: Building Effective Civilian Review Boards to Oversee Police, 46 Seton

Hall L. Rev. 1033, 1053-61 (2016).

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Council. Newark, NJ, Code (Code) 2:2-86.1(a)(2)(a).5 One member shall be

the City's Inspector General, who will "serve as the administrative head of the

Board," Code 2:2-86.1(a)(2)(c); three members shall be elected members of the

Municipal Council, or their designees; and the remaining seven members shall

be selected from individuals recommended by seven organizations identified in

the Ordinance. Code 2:2-86.1(a)(2)(a).6"In selecting representatives to serve on

the CCRB, nominators are encouraged to consider potential members'

professional experience in law, civil rights or law enforcement." Code 2:2-

86.1(a)(2)(a). But "[n]o member of the [CCRB], excluding the Inspector

General, shall be former employees of the NPD." Code 2:2-86.1(a)(2)(c).

Training for CCRB members "shall be predominately obtained from such

independent, third party bodies or institutions that have experience with regard

to [IA] and civilian review investigations and audits." Code 2:2-86.5, § 1-23.

5

Newark's Code codified the Ordinance.

6

They are the (1) American Civil Liberties Union (ACLU) – New Jersey; (2)

National Association for the Advancement of Colored People – New Jersey; (3)

People's Organization for Progress; (4) La Casa de Don Pedro; (5) Ironbound

Community Corporation; (6) Newark Anti Violence Coalition; and (7) the

clergy, meaning any person who provides moral, spiritual, or philosophical

guidance as a profession. Code 2:2-86.1(a)(2)(a). By a separate ordinance

adopted July 1, 2016, the City replaced La Casa de Don Pedro with a

representative from the LGBT community.

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As to the CCRB's powers and duties, the Ordinance authorizes the CCRB

to "consider and make recommendations to the Public Safety Director,[7] Mayor,

Municipal Council, and the public [pertaining] to policies and procedures

concerning the general investigation of complaints by the Division of Police as

well as its [IA] procedures." Code 2:2-86.3(d). It authorizes the CCRB to

"investigate and make recommendations regarding practices and/or patterns of

behavior that are problematic with regard to" police interactions with the public.

Code 2:2-86.3(d). Along these lines, the CCRB must request certain

information from the NPD on a quarterly basis. Code 2:2-86.5, § 1-21(b).

The Ordinance also authorizes the CCRB to review the findings,

conclusions, and recommendations arising from the NPD's internal

investigations of individual complaints of police misconduct, as follows:

At the conclusion of the [NPD]'s investigation of a

complaint or behavior, the [CCRB] shall have the

power to conduct a review of the findings, conclusion

and recommendations of the Division of Police

(Investigation Review). The [CCRB] shall report its

findings of the Investigation Review to the Public

Safety Director. A semi-annual report of the

Investigation Reviews shall be submitted to the Mayor,

Public Safety Director and the Municipal Council. The

[CCRB] may utilize all the powers set forth in this

Section 2:2-86 to carry out the Investigation Reviews.

7

Pursuant to a different 2016 ordinance, the City established a Department of

Public Safety, in which the Division of Police is a sub-division. Code 2:22.

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[Code 2:2-86.3(b) and Code 2:2-86.5, § 1-02(d).]

The City expressly declared that the Ordinance was intended to allow the

CCRB to make recommendations to the Public Safety Director. The City did

not create the CCRB to impose discipline on police officers. Specifically, the

City, via the Ordinance, empowered the CCRB to consider and make

recommendations as to policies and procedures concerning

the general investigation of complaints by the Division

of Police as well as its [IA] procedures, and with regard

to evidence of practices or patterns of behavior or

practice that is problematic with regard to the

interaction of the Division of Police with the public at

large, as well as any failures of communication with

regard thereto.

[Code 2:2-86.5, § 1-02(c).]

The Ordinance authorizes the CCRB to conduct its own investigations of

complaints filed by members of the public (including NPD members) against

any member of the NPD. The CCRB can do so not to adjudicate complaints or

impose discipline – as it lacks such power under the Ordinance – but rather to

investigate alleged police misconduct and make recommendations. The

Ordinance therefore gives the CCRB concurrent jurisdiction with the NPD to

investigate complaints or behavior. Code 2:2-86.3(c). More specifically, the

ordinance states:

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The [CCRB] shall have the power to receive,

investigate, hear, make findings and recommend action

upon complaints by members of the public (including,

but not limited to[,] complaints made by other police

officers or personnel) against uniformed and sworn

personnel of the NPD that allege misconduct involving

inappropriate behavior or actions, including but not

limited to[,] excessive use of force, abuse of authority,

unlawful arrest, unlawful stop, unlawful searches,

discourtesy or use of offensive language, including, but

not limited to, slurs relating to race, ethnicity, religion,

gender, age, sexual orientation, gender identity or

expression, and disability, theft, and any other

categories protected under law. Any member of the

public is intended to have the broadest possible

meaning and interpretation.

[Code 2:2-86.3(a).]

The CCRB shall notify the NPD of any complaints it receives and indicate

whether it will (1) "contemporaneously initiate a parallel investigation of the

[c]omplaint or behavior with the Division of Police; and/or" (2) "not investigate

the [c]omplaint or behavior but will conduct an Investigation Review upon the

Division of Police's conclusion of its investigation . . . ." Code 2:2-86.5, § 1-

06. The Ordinance prevents the CCRB from "constrain[ing] or chang[ing] . . .

the obligations of the Division of Police to conduct appropriate and timely

investigations of NPD uniform and sworn members of [the] NPD and to be

compliant and consistent with the requirements of N.J.S.A. 40A:14-147." Code

2:2-86.5, § 1-16(d).

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To make its own investigation meaningful, the CCRB enjoys subpoena

power under the Ordinance. "Upon a majority vote of members of the [CCRB],

the [CCRB] may issue subpoenas ad testificandum and duces tecum, which may

be served to the extent permitted by law." Code 2:2-86.3(f) and 2:2-86.5, § 1-

10(e) (emphasis added). Under the Ordinance, the CCRB may: (1) make written

or oral requests for information or documents; (2) interview the complainant,

witnesses, and the subject officer to the extent consistent with the rights afforded

to officers by law, the NPD, and in collective negotiations agreements (CNAs);

and (3) make field visits to the site of the alleged misconduct. Code 2:2-86.5

§§ 1-10, 1-11.

As to interviews of police officers and other individuals, the Ordinance

importantly refers to officers' constitutional protections and their rights set forth

in CNAs.

(a) It is the intent of these Rules not to alter the rights

afforded to police officers by the NPD in standing

orders or other rules and procedures or in collective

negotiations contracts with respect to interviews so as

to diminish such rights, if any, including but not limited

to[,] any existing right to notice of an interview, the

right to counsel, and the right not to be compelled to

incriminate oneself.

(b) A member of the Division of Police who is the

subject of a complaint shall be given two business days'

notice prior to the date of an interview, to obtain and

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consult with representatives. A member of the Division

of Police who is a witness in an investigation of a

complaint shall be given a period of time, up to two

business days, to confer with [his or her]

representatives.

(c) All persons interviewed may be accompanied by up

to two (2) individuals to act as their representative,

inclusive of their chosen counsel. Such counsel or

representative may advise the person interviewed as

circumstances may warrant, but may not otherwise

participate in the proceeding.

(d) Prior to the commencement of the interviewing

of a police officer, the following statement shall be read

to such officer:

You are being questioned as part of an official

investigation of the [CCRB]. You will be asked

questions specifically directed and narrowly related to

the performance of your duties. You are entitled to all

the rights and privileges guaranteed by the laws of the

State of New Jersey, the Constitution of this State and

the Constitution of the United States, including the

right not to be compelled to incriminate yourself and

the right to have legal counsel or such other

representative present at each and every stage of this

investigation, however that person may not unduly

interfere or disrupt the proceedings.

(e) Interviews shall be scheduled at a reasonable

hour, and reasonable requests for interview scheduling

or rescheduling shall be accommodated. If possible, an

interview with a police officer shall be scheduled when

such officer is on duty and during daytime hours.

Interviews may be conducted at the [CCRB's] offices or

other locations designated by the [CCRB].

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(f) The interviewer shall inform the interviewee of

the name and position of the person in charge of the

investigation, name and position of the interviewer, the

identity of all persons present at the interview, whether

the interviewee is a subject or a witness in the

investigation, the nature of the complaint and

information concerning all allegations, and the identity

of witnesses and complainants, except that addresses

need not be disclosed and confidential sources need not

be identified unless they are witnesses to the alleged

incident.

(g) The interviewer shall not use off-the-record

questions, offensive language or threats, or promise of

reward for answering questions.

(h) The interviewer shall regulate the duration of

question periods with breaks for such purpose as meals,

personal necessity and telephone calls. The interviewer

shall record all recesses.

(i) Interviews shall be recorded by the CCRB. No

other recordings are permitted.

(j) If an interviewee needs an interpreter, he or she

shall advise the interviewer of such need as soon as

possible after being notified of the date and time of the

interview. A qualified interpreter will be obtained from

an official registry of interpreters or another reliable

source.

(k) Reasonable accommodations shall be made for

persons with disabilities who are participating in an

interview. Persons requiring such accommodations

shall advise the [CCRB] of such need as soon as

possible after being notified of the date and time of the

interview.

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[Code 2:2-86.5 § 1-11 (emphasis added).]

The Ordinance requires the CCRB to report its review of every complaint to the

Public Safety Director, as well as "all relevant forms, memoranda and

background information to assist the Public Safety Director in making [his or

her] final disciplinary determination." Code 2:2-86.5 § 1-17(a).

The Ordinance contemplates that the CCRB will make findings of fact and

propose disciplinary recommendations to the Public Safety Director. For

example:

The [CCRB] shall use an established discipline matrix

and guidelines to recommend discipline for outcomes

resulting from investigations and complaints filed with

the [CCRB] and/or the NPD. Said discipline matrix and

guidelines shall act as safeguards to ensure the

consistent application of discipline and should include

aggravating and mitigating factors. The discipline

matrix and guidelines should be developed by the

Public Safety Director and affected bargaining units, in

conjunction with the CCRB, and must accord with any

Consent Order or Judgment with the United States

[DOJ].

[Code 2:2-86.3(j).]

But the Ordinance violates the law, as we will later explain, by requiring

the Public Safety Director to accept the CCRB's findings of fact. This part of

the Ordinance improperly provides:

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The [CCRB] shall provide its findings of fact to the

Public Safety Director and, absent clear error, the

Public Safety Director shall accept those findings of

fact. The [CCRB] shall also make disciplinary

recommendations, and the Public Safety Director shall

make all disciplinary decisions based on the CCRB's

findings of fact, absent clear error, and consistent with

the matrix and guidelines.

[Code 2:2-86.3(k).]

According to the Ordinance: "Clear error exists when the CCRB's findings of

fact are based upon obvious and indisputable errors and cannot be supported by

any reasonable interpretation of the evidence." Code 2:2-86.5 § 1-17(b). The

practical effect of this requirement, as we will explain later, is that it interferes

with the Chief's statutory responsibility for the routine day-to-day operations of

the force.

Notwithstanding the binding nature of the CCRB's findings – which we

invalidate – the Public Safety Director nevertheless retains the authority and

discretion to make final disciplinary determinations. Code 2:2-86.4(d) and 2:2-

86.5 § 1-16(a). This is so because the Ordinance specifically limits the CCRB's

authority.

The provisions of this section shall not be construed to

limit or impair the authority of the Public Safety

Director to discipline members of the NPD nor obviate

the responsibility of the NPD to investigate citizen

complaints or incidents to which NPD is made known,

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involving uniformed and sworn members of the NPD,

and to promptly inform the CCRB of all such

complaints or incidents. [8] Nor shall the provisions of

this section be construed to limit the rights of members

of the NPD with respect to disciplinary action,

including, but not limited to[,] the right to notice and a

hearing, which may be established by any provisions of

law or otherwise.

[Code 2:2-86.4(d).]

The Ordinance further states that it should not be construed to interfere

with other external investigations of NPD members:

e. The provisions of this Ordinance shall not be

construed to prevent or hinder the investigation or

prosecution of a member of the NPD for violations of

law by any court of competent jurisdiction, a grand

jury, [c]ounty or [s]tate [p]rosecutor or any other

authorized officer, agency or body.

f. The processing and review of civilian complaints

shall not be deferred because of any pending or parallel

disciplinary proceeding or criminal investigation unless

such request for deferment is made by the office of a

[c]ounty [p]rosecutor or a [s]tate or [f]ederal law

enforcement agency or prosecutor or by a court order.

8

We emphasize that the Ordinance cannot alter the NPD's obligation to comply

with the AG Guidelines as part of the NPD's IA investigations. But the AG

Guidelines do not prevent the NPD from disclosing to a municipal oversight

body, such as the CCRB, "citizen complaints or incidents to which NPD is made

known, involving uniformed and sworn members of the NPD," especially

because the CCRB is also required to maintain confidentiality. Furthermore,

this Ordinance disclosure requirement is consistent with the oversight authority

granted to municipalities under N.J.S.A. 40A:14-118.

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[Code 2:2-86.4(e)–(f).]

The Ordinance also addresses complainant confidentiality and correctly

guarantees confidentiality during the investigatory process, but – improperly –

not at public hearings.

During the investigatory process, neither the identity

of, nor personally-identifiable information about,

complainants or witnesses shall be released beyond the

CCRB staff, [CCRB] members, and NPD staff engaged

in the specific investigation of the complainant's

allegation. If the complaint is substantiated and is

referred to a CCRB hearing, the complainant's identity

may be released in the course of any public hearing

about the alleged misconduct.

[Code 2:2-86.5, § 1-07 (emphasis added).]

We invalidate this part of the Ordinance. A complainant's identity should

always remain confidential, for reasons that we express later in our opinion.

Moreover, although this section of the Ordinance only addresses the

confidentiality of complainants and witnesses, other parts of the Ordinance

require the CCRB to maintain the subject officers' confidentiality in its public

reporting, see Code 2:2-86.5 §§ 1-17(d), 1-20(a), 1-21(a), consistent with the

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AG Guidelines at p. 44.9 We emphasize that a police officer's identity should

remain confidential as well.

The CCRB also must publish certain information on its website, on a

quarterly basis, "with personally identifiable information redacted." Code 2:2-

86.5, § 1-21(a). And the CCRB must publish an annual report on its website,

with statistical information, identifying "trends, patterns, areas of concern, or

areas of excellence," in the NPD's practices. Code 2:2-86.5, § 1-21(c) (emphasis

added). The Ordinance also sets the procedures for the CCRB to report case

dispositions to complainants. Code 2:2-86.5, § 1-22.

The April 29, 2016 consent decree that terminated the federal litigation

against the City reflected the minimum duties and responsibilities of the CCRB.

Section V, Paragraph A of the consent decree provides in pertinent part that the

CCRB "shall, at a minimum," perform

substantive and independent review of internal

investigations and the procedures for resolution of

civilian complaints; monitoring trends in complaints,

findings of misconduct, and the imposition of

discipline; and reviewing and recommending changes

to NPD's policies and practices, including, but not

limited to, those regarding use of force, stop, search,

and arrest.

9

The Ordinance is also subordinate to other State law, for example, the Open

Public Records Act (OPRA), which provides for the confidentiality of personnel

records in the possession of a public agency. N.J.S.A. 47:1A-10.

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The consent decree appointed a former Attorney General of the State of New

Jersey to act as an independent monitor and to ensure compliance with the

consent decree.

In August 2016, FOP filed an order to show cause and a verified

complaint. FOP alleged ultra vires creation of subpoena power by the

Ordinance, in violation of N.J.S.A. 40:48-25 and the Faulkner Act, N.J.S.A.

40:69A-36 (Count One). It contended that there existed an inconsistency

between the Ordinance and the AG Guidelines and discipline of police officers

by the IA division, in violation of the Law Enforcement Officers Protection Act,

N.J.S.A. 40A:14-181 (Count Two). It alleged that the Ordinance deprived

officers of due process, in violation of N.J.S.A. 40A:14-147, N.J.S.A. 11A:2-

13, and N.J. Const. art. I, ¶ 1 (Count Three). Finally, FOP claimed that the

Ordinance violated N.J.S.A. 40A:14-118, by infringing on the Chief's rights

(Count Four).

The judge entertained cross-motions for summary judgment and

invalidated the Ordinance with two exceptions: (1) the CCRB could perform an

oversight function, and (2) the CCRB could consult with the Public Safety

Director and NPD in the creation of the discipline matrix. In his oral opinion,

the judge "expressly prohibited" the CCRB "from engaging in investigations,

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hearings, adjudications, or the issuance of subpoenas relating to police

misconduct and/or discipline[.]"

II.

On appeal, the City argues that the Ordinance does not violate N.J.S.A.

40A:14-118; the judge erroneously concluded (sua sponte) that the Ordinance

violates due process rights; N.J.S.A. 40A:14-181 and the AG Guidelines do not

preempt the Ordinance; and the judge erred by concluding that the CCRB's

subpoena power was invalid.

The ACLU joins the contentions made by the City. The ACLU

emphasizes that neither N.J.S.A. 40A:14-181 nor the AG Guidelines preempt

municipal regulation in the field of civilian complaints of police misconduct.

Additionally, the ACLU maintains that the City correctly implemented its own

police power – relying on its home rule authority – and properly established

legislative policy consistent with N.J.S.A. 40A:14-118.

FOP maintains that the Ordinance contravenes N.J.S.A. 40A:14-118

because it transfers the power to administer and discipline police officers from

the Police Chief to the CCRB; disregards police officers' due process rights;

violates N.J.S.A. 40A:14-181 and the AG Guidelines; and improperly empowers

the CCRB with subpoena power.

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The AG, who accepted our invitation to appear as amicus, primarily

contends that the Ordinance violates N.J.S.A. 40A:14-118 by giving the CCRB's

findings dispositive weight unless clearly erroneous. The AG argues the

Ordinance "impermissibly assigns to the CCRB functions that the [statute]

assigns to the [Chief]," maintaining that the CCRB's purported authority to

"conduct investigations, find facts, and make recommendations for the

discipline of officers and members of the police force falls within the ambit of

the [C]hief's authority under the statute."

III.

We begin by addressing the City's argument that the Ordinance is

consistent with N.J.S.A. 40A:14-118. We agree, with one exception: the

Ordinance interferes with the Chief's statutory rights by making the CCRB's

findings of fact binding, absent clear error. To analyze this argument, we must

interpret the statute, giving the Ordinance a presumption of validity. Indeed,

our standard of review is well settled.

"In matters of statutory interpretation, our review is de novo." Verry v.

Franklin Fire Dist. No. 1, 230 N.J. 285, 294 (2017). "The Legislature's intent is

the paramount goal when interpreting a statute and, generally, the best indicator

of that intent is the statutory language." DiProspero v. Penn, 183 N.J. 477, 492

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(2005). In reading the text of the statute, courts should "ascribe to the statutory

words their ordinary meaning and significance, and read them in context with

related provisions so as to give sense to the legislation as a whole[.]" Ibid.

(citations omitted). "[I]f there is ambiguity in the statutory language that leads

to more than one plausible interpretation, we may turn to extrinsic evidence,

'including legislative history, committee reports, and contemporaneous

construction.'" Id. at 492-93 (quoting Cherry Hill Manor Assocs. v. Faugno,

182 N.J. 64, 75 (2004)).

Municipal ordinances are "afforded a presumption of validity[.]"

Grabowsky v. Twp. of Montclair, 221 N.J. 536, 551 (2015). Accord Hawthorne

PBA Local 200 v. Borough of Hawthorne, 400 N.J. Super. 51, 60 (App. Div.

2008). Moreover, our State constitution and case law require us to liberally

construe the law in favor of municipal authority and an ordinance's validity. N.J.

Const. art. IV, § 7, ¶ 11; 388 Route 22 Readington Realty Holdings, LLC v.

Twp. of Readington, 221 N.J. 318, 339-40 (2015). Thus, statutes, like the one

here, that delegate to municipalities the authority to adopt ordinances on a

particular subject, should be read expansively. Holmdel Builders Ass'n v. Twp.

of Holmdel, 121 N.J. 550, 566 (1990); In re Egg Harbor Assocs., 94 N.J. 358,

366-67 (1983).

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25

We first analyze the power N.J.S.A. 40A:14-118 gives to the Chief and

the City. After that, we address the City's establishment of local policy and its

authority to do so. And then, we specifically respond to FOP's contention that

the CCRB infringes upon the Chief's day-to-day operations of the force.

A.

Broadly speaking, N.J.S.A. 40A:14-118 authorizes municipalities to

create a police department and appoint a police chief as the head of that

department. Pursuant to the statute, the police chief is responsible for the

department's day-to-day operations, and reports to the "appropriate authority"

within the municipal government, who is responsible for promulgating rules and

regulations for the control of the police force. The statute also authorizes

municipalities to investigate and examine the operations of their police forces ,

and individual members thereof.

Thus, N.J.S.A. 40A:14-118 recognizes two things: "[T]he principle of

non-interference of elected officers individually in the operation of the police

force"; and "the power of the governing body to conduct official investigations

of the police force, and the power of executive and administrative officers in

their official capacity to examine the operations of the police force and the

performance of any officer therein." S. Cty. & Mun. Gov't Comm. Statement to

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S.1243 (Nov. 24, 1980). Accord Assembly Judiciary, Law, Public Safety &

Defense Comm. Statement to Assembly Comm. Substitute for S.1243 (June 22,

1981).

Consistent with this statute, the City enacted an ordinance providing for a

Department of Public Safety, headed by the Director of Public Safety,

containing the Division of Police, headed by the Chief of Police. The Chief

reports to the Mayor through the Public Safety Director, who, as the "appropriate

authority," is responsible for adopting rules and regulations for the NPD,

including the imposition of discipline of police officers. Code 2:22. See PBA

Local 160 v. Twp. of N. Brunswick, 318 N.J. Super. 544, 552 (App. Div. 1999)

(stating that under N.J.S.A. 40A:14-118, "[t]he appropriate authority adopts

rules and regulations for the department, and the discipline of the members;

additionally, the appropriate authority establishes policies for the daily

operations of the department. The appropriate authority is a civilian position.").

As we stated in Gauntt v. City of Bridgeton, 194 N.J. Super. 468, 486

(App. Div. 1984),

[i]n the context of N.J.S.A. 40A:14-118 which in part

spells out the relationship of the municipal governing

body, including its appropriate executives, and the

chief of police, we deem the authority to fix policy as

one comprehending the formulation of fundamental

principles to serve as broad guides to the chief of police

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27

in making his decisions with respect to discharging his

responsibility for the efficiency and routine day to day

operation of the police department.

[(Emphasis added).]

Thus, the Code provides that the Public Safety Director is the "Chief Executive

Officer of the Police Division," Code 2:22-2.2(i), and is responsible for

"[m]ak[ing], administer[ing] and enforc[ing] rules and regulations for the

control, disposition and discipline of the Department of Public Safety, and of its

officers and employees in all of its Divisions and Offices." Code 2:22-2.2(j).

The Code also establishes a Division of Police, Code 2:22-3, and sets forth

the duties of the Police Chief. Code 2:22-3.3. Under the Code,

[t]he Police Chief shall be the head of the Police Force

and shall be directly responsible to the Mayor through

the Public Safety Director designated by the Mayor as

the Appropriate Authority for the Police Force's

efficiency and day to day operations and shall carry out

the powers and duties established under N.J.S.A.

40A:14-118 . . . .

[Code 2:22-3.3(c).]

N.J.S.A. 40A:14-118 expressly grants certain rights to a chief of police,

and certain rights to a governing body. As to the rights afforded to a chief of

police, the plain text of the statute provides:

Any such ordinance, or rules and regulations, shall

provide that the chief of police, if such position is

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28

established, shall be the head of the police force and

that he shall be directly responsible to the appropriate

authority for the efficiency and routine day to day

operations thereof, and that he shall, pursuant to

policies established by the appropriate authority:

a. Administer and enforce rules and

regulations and special emergency

directives for the disposition and discipline

of the force and its officers and

personnel[.]

[N.J.S.A. 40A:14-118 (emphasis added).]

As this statute is applied in Newark, the Director of Public Safety

exercises a great deal of control over the disciplinary process within the NPD.

For example, the Code provides that the Director of Public Safety shall:

k. Establish procedures for the hearing and

determination of charges of violation of departmental

rules and regulations by any member of the Police

Division provided that a member may be fined,

reprimanded, removed, suspended or dismissed from

the Division only on written charges made or preferred

against him or her, after such charges have been

examined, heard and investigated by a Disciplinary

Trial Board selected from among the members of the

Police Division as provided for herein, upon such

reasonable notice to the member charged, and

according to such practice, procedure and manner as

may be prescribed by rules and regulations of the

Department.

....

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m. Be responsible for appointing members to serve on

the Disciplinary Trial Boards . . . .

[Code 2:22-2.2(k), (m).]

The Director of Public Safety assigns NPD officers to the IA Department.

Also, members of the IA Department investigate complaints of alleged officer

misconduct and provide completed reports through the chain of command to the

Public Safety Director. Thereafter, should a complaint be sustained, the Public

Safety Director is responsible for directing that charges be prepared, signed, and

served upon the subject officer or employee.

Meanwhile, pursuant to N.J.S.A. 40A:14-118 and the Code, the Police

Chief is responsible for day-to-day operations of the NPD, with members of the

IA Department responsible to the Police Chief, through their chain of command.

The IA Department's completed reports go through the chain of command, and

thus to the Police Chief, and to the Director of Public Safety. And, should the

Director of Public Safety direct that an officer be charged, the Police Chief then

becomes responsible for implementing the disciplinary process and

administering discipline, pursuant to established rules and regulations.

As to the rights afforded to a municipal governing body, the plain text of

the statute authorizes the creation of a board such as the CCRB, for the purpose

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of investigating and examining, at any time, the operations of the police force,

stating:

Nothing herein contained shall prevent the

appointment by the governing body of committees or

commissions to conduct investigations of the operation

of the police force, and the delegation to such

committees or commissions of such powers of inquiry

as the governing body deems necessary or to conduct

such hearing or investigation authorized by law.

Nothing herein contained shall prevent the appropriate

authority, or any executive or administrative officer

charged with the general administrative responsibilities

within the municipality, from examining at any time the

operations of the police force or the performance of any

officer or member thereof.

[Ibid. (emphasis added).]

The statute does not expressly define or limit the meaning of "examine,"

or for that matter, "investigate." Merriam-Webster defines "examine" as "to

inspect closely," "to test the condition of," "to inquire into carefully," or "to

interrogate closely." And it defines "investigate" as "to observe or study by

close examination and systematic inquiry" and "to conduct an official inquiry."

Merriam-Webster's Collegiate Dictionary 434, 639 (11th ed. 2012). Consistent

with our standard of review, we apply these ordinary definitions when

interpreting the text of N.J.S.A. 40A:14-118.

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Notably, "examining" and "investigating" appear in the paragraph of the

statute that expressly contemplates investigations of police misconduct by

municipal government bodies. Also importantly, "the courts and the Legislature

have long recognized that because police officers are different from other public

employees, the scope of discretion accorded to the public entities that administer

police departments is necessarily broad." City of Jersey City v. Jersey City

PBA, 154 N.J. 555, 572 (1998).

B.

By adopting the Ordinance and creating the CCRB, the City proactively

addressed the variety of problems uncovered by the DOJ. It made a policy

decision to encourage transparency, protect its citizenry, and root out unfair

treatment by the NPD. The City took control of the situation – characterized by

the judge as "broken" – by addressing the specific needs of its community.

The City adopted the Ordinance as an exercise of its police power,

invoking the doctrine of home rule expressed in the New Jersey State

Constitution, Article IV, § VII, ¶ 11:

The provisions of this Constitution and of any law

concerning municipal corporations formed for local

government, or concerning counties, shall be liberally

construed in their favor. The powers of counties and

such municipal corporations shall include not only

those granted in express terms but also those of

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necessary or fair implication, or incident to the powers

expressly conferred, or essential thereto, and not

inconsistent with or prohibited by this Constitution or

by law.

"Home rule is basic in our government" and "embodies the principle that

the police power of the State may be invested in local government to enable

local government to discharge its role as an arm or agency of the State and to

meet other needs of the community." Inganamort v. Borough of Ft. Lee, 62 N.J.

521, 528 (1973). Home rule permits each municipality to act in a way it believes

will best meet the local need. W. Morris Reg'l Bd. of Educ. v. Sills, 58 N.J. 464,

477 (1971).

"Whether the State alone should act or should leave the initiative and the

solution to local government, rests in legislative discretion." Inganamort, 62

N.J. at 528. The presumption of the validity of local legislative action is

constrained by the obvious understanding that "[a] statute has supremacy over

an ordinance," In re Ordinance 04-75, 192 N.J. 446, 469 (2007), and "a local

municipality is but a creature of the State, capable of exercising only those

powers granted to it by the Legislature . . . . " Moyant v. Paramus, 30 N.J. 528,

535 (1959). See also Dome Realty, Inc. v. Paterson, 83 N.J. 212, 225 (1980)

("[M]unicipalities, being created by the State, have no powers save those

delegated to them by the Legislature and the State Constitution.").

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N.J.S.A. 40:48-2, which is akin to the necessary and proper clause in the

United States Constitution, 10 gives a municipality broad general police power,

stating:

Any municipality may make, amend, repeal and enforce

such other ordinances, regulations, rules and by-laws

not contrary to the laws of this state or of the United

States, as it may deem necessary and proper for the

good government, order and protection of persons and

property, and for the preservation of the public health,

safety and welfare of the municipality and its

inhabitants, and as may be necessary to carry into effect

the powers and duties conferred and imposed by this

subtitle, or by any law.

[(Emphasis added).]

Moreover, the City derives further governmental power under the

Faulkner Act, which the Legislature enacted to present New Jersey's

municipalities "with various optional methods of organizing their local

governments." Keuerleber v. Twp. of Pemberton, 260 N.J. Super. 541, 544

(App. Div. 1992). In Keuerleber, we pointed out that the Faulkner Act was

"intended to confer upon the municipalities the greatest possible powers of local

self-government and home rule consistent with the Constitution of this State."

Ibid. (emphasis added).

10

U.S. Const., art. I, § 8, cl. 18.

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34

Any specific enumeration of municipal powers

contained in this act or in any other general law shall

not be construed in any way to limit the general

description of power contained in this article, and any

such specifically enumerated municipal powers shall be

construed as in addition and supplementary to the

powers conferred in general terms by this article. All

grants of municipal power to municipalities governed

by an optional plan under this act, whether in the form

of specific enumeration or general terms, shall be

liberally construed, as required by the Constitution of

this State, in favor of the municipality.

[N.J.S.A. 40:69A-30 (emphasis added).]

Our Supreme Court provided further guidance – especially in the context

of N.J.S.A. 40A:14-118 – on what constitutes accepted policy properly entrusted

to municipal government. This guidance is particularly relevant here. In

Falcone v. De Furia, 103 N.J. 219 (1986), the Court analyzed the validity of an

ordinance that provided for appointment of detectives to the police force with

approval by the governing body.

The Court considered the authority accorded the police chief under

N.J.S.A. 40A:14-118, and addressed whether the designation of a detective is

more like an appointment/promotion than an assignment of a subordinate within

the police force. Id. at 224. The former is permanent and not subject to change

at the discretion of the chief of police. Ibid. The latter pertains to a chief of

police's statutory responsibility to conduct the routine day-to-day operations of

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35

the police force. Ibid. The Falcone Court held that the designation of detectives

was a policy decision because "detectives [were] entrusted with . . . more

sensitive responsibility" and because "the appointment of detectives [was]

permanent, and not subject to changes at the discretion of the chief [of police.]"

Ibid.11

Therefore, applying Falcone and Gauntt, a governing body decision

constitutes a matter of policy properly entrusted to a municipal government

when it concerns "fundamental principles" that are intended to serve as "broad

guides to the chief of police," and where the determination concerns a "sensitive

responsibility" and is not subject to change by the discretion of the chief of

police. Id. at 224-25. Here, the City addressed "fundamental principles"

pertaining to constitutional violations and related problems uncovered by the

DOJ by developing a system for transparent investigations into police

misconduct. It did so while simultaneously employing the City's express right ,

under N.J.S.A. 40A:14-118, to investigate and examine the police force and its

members. And the City's local determination to create a board, such as the

11

Recall that in Newark, the Director of Public Safety appoints officers to the

IA department.

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36

CCRB, concerns the City's "sensitive responsibility" to ensure law-enforcement

accountability, which is not subject to change by the discretion of the Chief.

C.

Notwithstanding the express statutory authority to investigate and

examine the operations of the police force or any officer/member, and even

though the City responsibly set local policy enabling transparency and police

accountability, FOP correctly maintains that the CCRB interferes with the

Chief's day-to-day routine operations of the force in one limited way. As

previously discussed, and as counsel conceded at oral argument before us, the

Chief's day-to-day routine operations of the force include supervising the IA

Department, through the chain of command, administering the disciplinary

process, and imposing any resulting discipline. That part of the Ordinance

requiring the Director of Public Safety to accept as binding the CCRB's findings

of fact, absent clear error violates N.J.S.A. 40A:14-118 to the extent it makes

the CCRB's factual findings paramount to the findings of the IA department. In

this respect, the Ordinance impermissibly undermines the Chief's statutory

authority to run the NPD's day-to-day operations by rendering the results of the

IA Department's investigation nugatory and commandeering the disciplinary

process.

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37

The Ordinance expressly provides that it "shall not be construed to limit

or impair the authority of the Public Safety Director to discipline members of

the NPD . . . ." Code 2:2-86.4(d). And the CCRB rules provide that as to the

recommendations of the CCRB, "[t]he Public Safety Director shall retain in all

respects the authority and discretion to make final disciplinary determinations."

Code 2:2-86.5, § 1-16(a). The CCRB can only make recommendations to the

Public Safety Director as to the appropriate discipline. It cannot impose

discipline. By imposing binding findings on the Public Safety Director – and

by extension, the Chief – this part of the Ordinance does more than establish

policies, rules, and regulations. We conclude, though, that the CCRB can still

meet its objectives even without imposing such a requirement.

The statute expressly authorizes municipalities to set rules and regulations

for their police departments. It is essentially undisputed that participating in the

creation of a disciplinary matrix does not interfere with the Chief's routine day-

to-day operations of the force. Indeed, N.J.S.A. 40A:14-118 contemplates that

a governing body may "provide for the maintenance, regulation and control" of

a police force, including "the adoption and promulgation by the appropriate

authority of rules and regulations for the government of the force and for the

discipline of its members." But by "expressly prohibit[ing]" the CCRB "from

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38

engaging in investigations, hearings, . . . or the issuance of subpoenas relating

to police misconduct and/or discipline," as the judge ordered, the CCRB cannot

examine or investigate alleged police misconduct as contemplated by N.J.S.A.

40A:14-118, or the policy set by the City.

FOP maintains that the CCRB renders the IA process meaningless and

divests the Chief of his powers. But the Ordinance plainly states that the Public

Safety Director "shall retain in all respects the authority and discretion to make

final disciplinary determinations." Code 2:2-86.5, § 1-16(a). As such, the City

is correct in classifying the CCRB as "solely a [B]oard of fact finding,

investigatory review and public transparency, designed to provide civilian

oversight [in]to the [NPD], and to make recommendations to the Public Safety

Director as to what discipline the Public Safety Director should impose within

his authority, and at his discretion." The CCRB has no power to impose "minor

or major discipline" upon NPD officers. It can only make recommendations to

the Public Safety Director after reaching its own findings and by using a

disciplinary matrix developed by the Public Safety Director, bargaining units,

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39

and the CCRB. Thus, absent the binding nature of its findings, the CCRB will

not interfere with the Chief's oversight role of investigations by IA.12

In concluding that the Ordinance violates N.J.S.A. 40A:14-118, the judge

relied on Gauntt, 194 N.J. Super. 468, overruled in part by Falcone, 103 N.J.

219. Gauntt is a different case entirely. In Gauntt, the Police Director violated

N.J.S.A. 40A:14-118(c) (reserving to the Chief the power to "[p]rescribe the

duties and assignments of all subordinates and other personnel"). There is no

such violation or contention here. And in Gauntt, we considered a different

ordinance than the Ordinance at issue here.

In Gauntt, we concluded that the Police Director interfered with the

responsibilities and duties of the chief of police and therefore violated Section

(c) of the statute. 194 N.J. Super. at 487. He did this by requiring an IA officer

to report to him rather than the chief of police, ibid.; assigning an officer to

investigate a purported theft of money in the clerk's office, ibid.; assigning a

lieutenant and detective to a neighborhood crime watch, id. at 487-88;

12

Another part of the Ordinance provides that the Public Safety Director may

need to explain his or her reasons for not following the disciplinary

recommendations of the CCRB. Code 2:2-86.5, § 1-17(c). We conclude that

aspect of the Ordinance is facially valid, and, as we will later explain, is subject

to as applied challenges. Notwithstanding that aspect of the Ordinance, we

emphasize that the CCRB's findings of fact and recommendations are not

binding.

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overruling the chief of police's decision to appoint an individual as head of the

detective division, id. at 488; removing detectives from homicide investigation

school and ordering the chief of police to assign an officer to attend a

breathalyzer course, ibid.; ordering a police department secretary to post a sign-

up list to work on a specific police shift, id. at 489; and temporarily appointing

a lieutenant to the position as acting chief of police, id. at 490-91.

As its plain language confirms, the Legislature

amended the statute to simply "redefine the relationship

between a municipal governing body and the chief of

police." [Falcone, 103 N.J. at 221]. As amended,

N.J.S.A. 40A:14-118 limited the authority of

municipalities to regulate the [IA] of police

departments, designated properly-appointed chiefs of

police as the heads of police forces, and granted such

chiefs the authority to "[p]rescribe the duties and

assignments of all subordinates and other personnel."

N.J.S.A. 40A:14-118(c). The amended statute thus

"sought to avoid undue interference by a governing

body into the operation of the police force." Falcone,

103 N.J. at [222].

[Paff v. Ocean Cty. Prosecutor's Office, 235 N.J. 1, 21

(2018) (third alteration in original).]

Here, the Ordinance does not prescribe the duties and assignments of

subordinates and other personnel.

We recognize that the current version of N.J.S.A. 40A:14-118 gives chiefs

of police "express statutory authority . . . to avoid undue interference by a

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41

governing body into the operation of the police force." Falcone, 103 N.J. at 222.

But the Ordinance was not intended to, nor does it, divest the Chief of his

statutory authority to oversee investigations by IA. Thus, other than making the

CCRB's findings binding, the Ordinance does not divest the Chief of his

responsibility under the statute.

IV.

We do not share the judge's general view that the entire Ordinance violates

due process on its face. Of course, both the federal and state constitutions

protect against the deprivation of life, liberty, or property without due process

of law. U.S. Const. amend. XIV; N.J. Const. art. 1, ¶ 1; Doe v. Poritz, 142 N.J.

1, 99 (1995). Fundamentally, procedural due process entails notice and an

opportunity to be heard. Doe, 142 N.J. at 106. "Due process is not a fixed

concept, however, but a flexible one that depends on the particular

circumstances." Ibid. Accord In re Promulgation of Guardianship Serv.

Regulations, 103 N.J. 619, 632 (1986).

Due process considerations are premature at this point because the

Ordinance contemplates the development of further procedural safeguards once

the CCRB is up and running. Along those lines, Code 2:2-86.5, § 1-08 requires

the CCRB to develop "procedures" for investigating complaints to best facilitate

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42

"accurate, orderly and thorough fact-finding." Code 2:2-86.3(e) contemplates

that the CCRB may propose amendments to those "procedures," subject to

public comment. Code 2:2-86.4(d) provides safeguards for "members of the

NPD with respect to disciplinary action" by expressly stating that their rights

shall not be limited "to the right to notice and a hearing, which may be

established by any provisions of law or otherwise." And Code 2:2-86.5, § 1-23

mandates that CCRB board members must be appropriately trained. A full due

process analysis is premature because multiple sections of the Ordinance

anticipate the need to establish procedural due process protections. An as

applied due process challenge, if warranted, may be raised on a more fully

developed record.

We disagree with the judge's general conclusion that the "potential for

political mischief with [the CCRB] is evident." The judge reached that

determination noting that prospective CCRB members would be members of

organizations that advocated changing the structure of an existing ineffective

method of disciplining police. But a decisionmaker is not disqualified "simply

because he [or she] has taken a position, even in public, on a policy issue related

to the dispute, in the absence of a showing that he is not 'capable of judging a

particular controversy fairly on the basis of its own circumstances.'" Hortonville

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Joint Sch. Dist. v. Hortonville Educ. Ass'n, 426 U.S. 482, 493 (1976) (quoting

United States v. Morgan, 313 U.S. 409, 421 (1941)). As such, "policymakers

with decision making power" are afforded a "presumption of honesty and

integrity." Id. at 497.

Disqualification is not "automatically required merely because a

decisionmaker has announced an opinion on a disputed issue." In re Carberry,

114 N.J. 574, 585 (1989). "[A]ctual bias or a likelihood of bias must appear if

an otherwise valid administrative sanction is to be overturned because of a

denial of due process." In re Seidman, 37 F.3d 911, 925 (3d. Cir. 1994).

"[A]ctual bias is grounds for disqualification when the decisionmaker has a

pecuniary interest in the outcome of the matter or has been the target of personal

criticism from one seeking relief." Carberry, 114 N.J. at 586. On its face, we

see no evidence of such bias on the part of prospective CCRB members, or an

inability of the CCRB to be neutral or detached.

It is important to remember that the CCRB does not adjudicate cases. It

operates as an investigatory and oversight body. It has no authority to discipline

officers. Based upon the investigations performed by staff members, the CCRB

produces a report, consisting of findings of fact and recommendations for

disciplinary action, which it provides to the Director of Public Safety. However,

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44

the CCRB does not take disciplinary action against any officer, nor does it make

any disciplinary rulings. It also does not interfere with the NPD's internal

investigatory and disciplinary procedures, or the court's role in reviewing cases

under the civil service law. The CCRB does not function as an adversarial

board.

After receiving the investigation report, it is the Director of Public Safety,

and not the CCRB, who determines the appropriate disciplinary action, if any.

If disciplinary charges are appropriate, officers will be subject to the internal

disciplinary proceedings of the NPD. Thereafter, they may pursue appeals

through any available administrative and judicial processes, and they may

pursue any rights they might have under their CNAs. On its face, the Ordinance

does not interfere with any due process rights that officers may have in these

other proceedings.

Based upon an IA investigation report, or a CCRB investigation report, or

both, the Director of Public Safety may decide to file disciplinary charges

against an officer. In making that decision, the Public Safety Director is not

bound by the CCRB's findings, as the Ordinance provides. As a matter of due

process and fundamental fairness, Doe, 142 N.J. at 108-09, the Public Safety

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Director should consider all of the facts presented, and must be permitted to

consider the entirety of the evidence.

On this record, there is no evidence demonstrating that the CCRB could

not perform its oversight function and simultaneously investigate matters

contemporaneously with and independently of ongoing investigations conducted

by IA. And of course, any such concurrent investigation is subject to being

stopped by a prosecutor or court. Code 2:2-86.4(e)–(f). The United States

Supreme Court explained that,

[t]he mere exposure to evidence presented in

nonadversary investigative procedures is insufficient in

itself to impugn the fairness of the Board members at a

later adversary hearing. Without a showing to the

contrary, state administrators "are assumed to be

[people] of conscience and intellectual discipline,

capable of judging a particular controversy fairly on the

basis of its own circumstances."

[Withrow v. Larkin, 421 U.S. 35, 55 (1975) (quoting

Morgan, 313 U.S. at 421).]

"If an interested party has a right to cross-examine witnesses and present proof,

the mere fact that an administrative agency has conducted an investigation and

formulated a policy position does not necessarily mean that the mind of the

agency head is closed." Carberry, 114 N.J. at 586. "The combination of

investigative, charging, and adjudicative functions in the same administrative

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tribunal does not, without more, constitute a violation of due process." Ende v.

Cohen, 296 N.J. Super. 350, 362 (App. Div. 1997).

Although "[i]t has often been argued that casting the same individuals

within an agency in these dual roles violates due process," the "general rule is

that proof of actual bias is necessary to overturn administrative actions on this

basis." In re Opinion No. 583, 107 N.J. 230, 236 (1987). There is no such proof

here. "The wisdom of creating an agency with a responsibility for both initiating

and adjudicating a proceeding is a legislative function, and not a judicial one."

In re Bd. of Educ. of Trenton, 176 N.J. Super. 553, 565 (App. Div. 1980). "[T]he

mere fact that the administrative agency has investigated the matter in question

does not render it or its members incompetent, consistent with due process, to

adjudicate the case as presented at the evidentiary hearing." Id. at 565-66

(alteration in original).

Finally, at this point, we perceive no facial concerns with one additional

provision of the Ordinance. The Ordinance requires the Public Safety Director

to provide an explanation, in writing, and potentially in person before the CCRB,

when he or she disagrees with the CCRB's findings of fact, or chooses to impose

discipline that is of a lower level than that recommended by the CCRB. Code

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2:2-86.5, § 1-17(c). On its face, such a requirement does not violate due process,

N.J.S.A. 40A:14-118, or Newark's Code.

Requiring the Public Safety Director to explain his or her reasons for

rejecting the CCRB's findings or recommendations serves a legitimate public

interest because the Public Safety Director's responses will assist the CCRB in

performing its oversight functions, including as required under the consent

decree. This provision of the Ordinance serves the legitimate public interests of

transparency and improving the critical relationship between the NPD and the

Newark community. And it is consistent with that part of N.J.S.A. 40A:14-118

allowing for investigations by boards like the CCRB, it promotes police

accountability in ways beyond those contemplated by the IA function, and it

complements the Public Safety Director's general obligation to report to the

Mayor. Indeed having the Public Safety Director – under the circumstances

described in the Ordinance – explain his or her reasons to the CCRB cannot

interfere with the Chief's day-to-day operations of the police force because it is

the Public Safety Director – not the Chief – who may have to appear before the

CCRB. Nevertheless, as the CCRB gets up and running, as applied challenges

to this part of the Ordinance may be made on a more fully developed record if

warranted.

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V.

We now move to the subject of preemption. A local government, like the

City, may not act contrary to State law. FOP maintains that the City acted

contrary to State law by enacting an Ordinance that purportedly conflicts with

N.J.S.A. 40A:14-181 and the AG Guidelines. Therefore, FOP argues that the

doctrine of preemption requires that we invalidate the Ordinance.

N.J.S.A. 40A:14-181 and the AG Guidelines do not expressly address the

Ordinance's grant of oversight authority to the CCRB. Indeed, the statute is

directed towards law enforcement agencies (which the CCRB is not), and the

AG Guidelines are designed to assist law enforcement agencies, enhance their

integrity, improve delivery of police services, and ensure proper consideration

of police misconduct.

N.J.S.A. 40A:14-181 states in part that,

Every law enforcement agency, . . . shall adopt and

implement guidelines which shall be consistent with the

guidelines governing the "[IA] 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.

[(Emphasis added).]

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The text of this statute does not expressly state that an executive or legislative

agency is barred from concurrently investigating police misconduct – as part of

a CCRB with broad oversight authority to statutorily investigate and examine

complaints of police misconduct – when a law enforcement agency has adopted

and implemented guidelines consistent with those promulgated by the AG.

To be sure, the AG has issued guidelines pursuant to this statute, and as

chief law enforcement officer of the State, N.J.S.A. 52:17B-98, these guidelines

are binding upon local law enforcement agencies. O'Shea v. Twp. of W.

Milford, 410 N.J. Super. 371, 384 (App. Div. 2009); In re Carroll, 339 N.J.

Super. 429, 439, 442-43 (App. Div. 2001). 13 The AG Guidelines pertain to law

enforcement agencies. The AG Guidelines recognize that proper administration

of the IA function is "a critical issue for the criminal justice system in New

Jersey today," (AG Guidelines, at p. 3), with the IA function viewed by the

courts "as an important means of protecting the constitutional rights and civil

liberties of the state's citizens." (AG Guidelines, at p. 3). The Guidelines state:

Agencies that make a vigorous commitment to the [IA]

process signal their desire to comply with the highest

13

The most recent AG Guidelines on IA Policy & Procedures are dated

November 2017. See https://www.state.nj.us/lps/dcj/agguide/internalaffairs200

0v1_2.pdf (last visited May 22, 2019). In its summary judgment papers, FOP

referred to the 2014 version of the AG Guidelines. We apply the most recent

guidelines, as did the judge.

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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.

Indifference to the [IA] function will have a

negative impact on the administration of criminal

justice and the delivery of police services to New

Jersey's citizens. Agencies that fail to make the [IA]

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 [IA] process may be found

liable in civil lawsuits for their failure to effectively

address officer misconduct.

[(AG Guidelines, at p. 5; see also AG Guidelines at pp.

31, 46) (emphasis added).]

As we have said, the purpose of the AG Guidelines "is to assist the State's

law enforcement agencies with investigating and resolving complaints of police

misconduct that originate with private citizens or are generated by the

supervisors, officers or employees of a law enforcement agency." (AG

Guidelines at p. 3) (emphasis added). And the stated goal of the AG Guidelines

is "to enhance the integrity of the State's law enforcement agencies, improve the

delivery of police services and assure the citizens of New Jersey that complaints

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of police misconduct are properly addressed." (AG Guidelines at p. 3)

(emphasis added).

The AG Guidelines contain the following eleven mandates, which every

law enforcement agency must implement:

1. Each agency must establish by written policy an

[IA] function.

2. Each agency must accept reports of officer

misconduct from any person, including anonymous

sources, at any time.

3. 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 filing of charges against the officer, until

the county prosecutor so directs.

4. The agency must notify the county prosecutor

immediately of any use of force by an officer that

results in death or serious bodily injury.

5. Each agency must thoroughly and objectively

investigate all allegations against its officers.

6. Each agency must notify its officers of

complaints and their outcomes.14

7. Each agency must notify complainants of the

outcomes of their complaints.

14

The Ordinance does not explicitly contain this requirement. However, since

the Ordinance requires the CCRB to notify the NPD of any complaints it

receives, the NPD's IA Department will provide such notice to officers.

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8. Each agency must establish and maintain an [IA]

records system which, at a minimum, will consist of an

[IA] index system and a filing system for all documents

and records. In addition, each agency shall establish a

protocol for monitoring and tracking the conduct of all

officers.

9. Each agency must submit quarterly reports to the

county prosecutor summarizing the allegations

received and the investigations concluded for that

period. Each county prosecutor shall establish a

schedule for the submission of the reports and specify

the content of the reports.

10. Each agency must annually release reports 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. In addition, each agency shall

periodically release a brief synopsis of all complaints

where a fine or suspension of [ten] days or more was

assessed to an agency member. The synopsis shall not

contain the identities of the officers or complainants.

11. Each agency shall ensure that officers assigned to

the [IA] function complete training as mandated by the

Division of Criminal Justice.

[(AG Guidelines at pp. 4-5) (emphasis added).]

The AG Guidelines next describe the fundamentals of the disciplinary

process for law enforcement agencies, including a system of discipline, and a

schedule of possible penalties when discipline is imposed. (AG Guidelines at

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pp. 6-11). Thus, the Ordinance cannot impede the NPD's obligation – as part of

its IA investigations – to follow the AG Guidelines.

We reject the idea that preemption principles invalidate the Ordinance on

its face, because N.J.S.A. 40A:14-181 and the AG Guidelines apply to law

enforcement agencies and do not address a board like the CCRB, which has the

important and vital oversight role of providing transparency into investigations

of police misconduct. We nevertheless perform a preemption analysis.

Although we see no inconsistency of consequence between how the CCRB

operates under the Ordinance and how the IA investigations occur under the

requirements imposed by the AG Guidelines or N.J.S.A. 40A:14-181, as with

our due process analysis, as applied challenges may be raised – if warranted –

once the CCRB begins functioning as intended under the Ordinance. At this

point, we add the following remarks on preemption.

We review de novo the legal question of whether State law preempts the

Ordinance. "[A] court may declare an ordinance invalid if it . . . is preempted

by superior legal authority." Rumson Estates, Inc. v. Mayor of Fair Haven, 177

N.J. 338, 351 (2003) (citing United Bldg. & Constr. Trades Council v. Mayor of

Camden, 88 N.J. 317, 343 (1982)). "Preemption is a judicially created principle

based on the proposition that a municipality, which is an agent of the State,

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cannot act contrary to the State." Redd v. Bowman, 223 N.J. 87, 108 (2015)

(citing Overlook Terrace Mgmt. v. Rent Control Bd. of W.N.Y., 71 N.J. 451,

461 (1976)).

"[A]n ordinance will fall if it permits what a statute expressly forbids or

forbids what a statute expressly authorizes." Summer v. Twp. of Teaneck, 53

N.J. 548, 554 (1969). In analyzing the question of preemption, "[t]he ultimate

question is whether, upon a survey of all the interests involved in the su bject, it

can be said with confidence that the Legislature intended to immobilize the

municipalities from dealing with local aspects otherwise within their power to

act." Id. at 555. "It is not enough that the Legislature has legislated upon the

subject[.]" Id. at 554. Instead, for preemption purposes, the Legislature's intent

to occupy the field "must appear clearly." Ibid. (emphasis added).

In Redd, our Supreme Court reiterated the five governing factors that a

court must consider to determine whether state law preempts a municipal

ordinance:

(1) Does the ordinance conflict with state law, either

because of conflicting policies or operational effect

(that is, does the ordinance forbid what the Legislature

has permitted or does the ordinance permit what the

Legislature has forbidden)?

(2) Was the state law intended, expressly or impliedly,

to be exclusive in the field?

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(3) Does the subject matter reflect a need for

uniformity?

(4) Is the state scheme so pervasive or comprehensive

that it precludes coexistence of municipal regulation?

(5) Does the ordinance stand "as an obstacle to the

accomplishment and execution of the full purposes and

objectives" of the Legislature?

[223 N.J. at 109 (quoting Overlook, 71 N.J. at 461-62).]

Applying these five factors, we reject FOP's contention that the statute, or for

that matter, the AG Guidelines, preempt the Ordinance. Our conclusion does

not undermine the importance of the AG Guidelines, or their applicability to law

enforcement agencies.

(1)

We cannot say with confidence that the Legislature clearly intended to

immobilize municipalities from promoting police accountability in ways beyond

those contemplated by the IA function. Neither N.J.S.A. 40A:14-181 nor the

AG Guidelines preclude municipalities from implementing a CCRB with

oversight power to investigate and examine civilian complaints of police

misconduct. Therefore, in that sense, the Ordinance does not permit what the

Legislature has generally forbidden, or forbid what the Legislature has

authorized.

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Furthermore, reading the AG Guidelines to preclude civilian municipal

investigations of police departments ignores not only the City's right to set

policy, but also the City's express rights contained in N.J.S.A. 40A:14-118. As

we previously stated, N.J.S.A. 40A:14-118 expressly permits:

the appointment by the governing body of committees

or commissions to conduct investigations of the

operation of the police force, and the delegation to such

committees or commissions of such powers of inquiry

as the governing body deems necessary or to conduct

such hearing or investigation authorized by law[; and]

the appropriate authority, or any executive or

administrative officer charged with the general

administrative responsibilities within the municipality,

[to] examin[e] at any time the operations of the police

force or the performance of any officer or member

thereof.

[(Emphasis added).]

We make every effort to read N.J.S.A. 40A:14-118 and the Guidelines, adopted

pursuant to N.J.S.A. 40A:14-181, as compatible. See In re Petition for

Referendum on City of Trenton Ordinance 09-02, 201 N.J. 349, 359 (2010)

(stating that when reviewing two separate statutes addressing the same subject

matter, courts must read the statutes in pari materia and attempt to reconcile

them). Here, the Ordinance does not replace an IA investigation with an

investigation performed by the CCRB. Rather, the Ordinance provides for the

possibility of concurrent investigations, and, as we have determined in this

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opinion, the upshot of the investigation performed by the CCRB cannot bind the

Public Safety Director when it comes to law enforcement disciplinary

determinations.

(2)

Under the second factor, we conclude that there is no evidence that State

law intended, either expressly or impliedly, to be exclusive in the field. That is,

we do not read N.J.S.A. 40A:14-181 or the AG Guidelines as providing the

exclusive means for the investigation of civilian complaints of police

misconduct. The AG Guidelines do not preclude municipalities from creating

separate entities to investigate complaints (solely in an oversight function).

Once again, any such reading of N.J.S.A. 40A:14-181 or the AG Guidelines

would violate N.J.S.A. 40A:14-118, which expressly empowers investigation

and examination of police forces by boards like the CCRB, and contravenes the

City's fundamental right to set local policy.

(3)

Under the third factor, there is no need for uniformity in the conclusions

reached by separate IA and CCRB investigations. Regardless of whether the

conclusions and recommendations made by the IA department and the CCRB

conflict, it is the Public Safety Director who determines – without limitation –

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whether any disciplinary action should be taken. We have already invalidated

that part of the Ordinance that provided that the CCRB's findings would be

binding. Thus, the Public Safety Director still determines disciplinary action,

and does so by considering the entirety of the evidence. In this sense, the

CCRB's investigation is consistent with State law and vitally promotes

transparency and law enforcement accountability of the NPD.

(4)

Under the fourth factor, the state scheme is not so pervasive or

comprehensive that it precludes the coexistence of municipal regulation.

N.J.S.A. 40A:14-181 and the AG Guidelines do not preclude civilian municipal

investigations into the police department or individual members of the police

department. That is primarily so because such a reading ignores N.J.S.A.

40A:14-118, which explicitly permits such civilian investigations.

N.J.S.A. 40A:14-181 requires law enforcement agencies to adopt

guidelines that are consistent with the AG Guidelines, any tenure or civil service

law, and existing contractual agreements. The oversight role of the CCRB does

not interfere in any way with a law enforcement agency's obligation under

N.J.S.A. 40A:14-181 or the AG Guidelines. Thus, there exists room for

important municipal regulation.

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(5)

Under the fifth factor, the Ordinance importantly does not stand "as an

obstacle to the accomplishment and execution of the full purposes and

objectives" of the Legislature. The AG Guidelines state that "[t]he 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 citizens of New Jersey

that complaints of police misconduct are properly addressed." (AG Guidelines,

at p. 3) (emphasis added). The goal of the Ordinance is to further the same

objectives, particularly in light of the NPD's past failures, as set forth in the

DOJ's report. In our view, the CCRB furthers, rather than impedes, the

Legislature's objectives.

Moreover, the City's powers should not be constrained in an area in which

the Legislature has expressly permitted municipalities to act. N.J. Const. art.

IV, § 7, ¶ 11; N.J.S.A. 40:48-2, N.J.S.A. 40:42-4, N.J.S.A. 40:69A-30. In

establishing an independent body to perform oversight of the NPD – in

furtherance of quality policing and a trusting relationship between the

community and the police – the City squarely acted within the authority granted

to it by the Legislature.

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Furthermore, the Ordinance does not permit CCRB investigations to

interfere with or taint criminal prosecutions of police officers. Both the

Ordinance and the AG Guidelines require coordination with the prosecutor's

office, and deferral to the prosecutor's office, where potentially criminal conduct

is at issue. (Compare AG Guidelines at pp. 20-22, 24, 32-38, with Code 2:2-

86.4(e)–(f)). The only difference is that the Ordinance requires deferral of case

processing only if a request for deferral is made by the prosecutor, federal law

enforcement agency, or by court order.

The AG Guidelines and the Ordinance require training of investigatory

staff. (Compare AG Guidelines, at p. 13, with Code 2:2-86.3(h), and 2:2-86.5,

§ 1-23). Also, the Ordinance requires the recusal of any Board members who

have a conflict of interest. Code 2:2-86.5, § 1-24. To be sure, IA officers may

have greater tools at their disposal for the investigation of complaints, based

upon their access to the officer's workplace and their existence within the chain

of command of the police department. (AG Guidelines, at pp. 25-31). However,

that does not mean that CCRB investigations stand as an obstacle to

accomplishing and executing the full objectives of the AG Guidelines. To the

contrary, the fact that IA officers are police officers is a double-edged sword.

Their experience creates the possibility of both better-informed analysis of the

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evidence, as well as potentially biased analysis of the evidence. Civilian review

provides a different perspective in furtherance of the same legislative objective.

The AG Guidelines provide that in publishing reports on IA

investigations, law enforcement agencies "shall not" publish the names of

complainants and subject officers. (AG Guidelines at p. 44). As to

confidentiality of officers, like the AG Guidelines mandate for IA

investigations, the Code requires that the identity of a police officer must remain

confidential in any of the CCRB's public reporting. Code 2:2-86.5 §§ 1-17(d),

1-20(a), 1-21(a). By contrast, the Ordinance provides that if a complaint is

substantiated and referred for a CCRB hearing, "the complainant's identity may

be released in the course of any public hearing about the alleged misconduct ."

Code 2:2-86.5, § 1-07.

Disclosure of a complainant's identity could thwart an IA investigation,

criminal investigation, or prosecution, or could disclose the name of an

informant, and could taint an officer who was wrongfully accused. It could also

discourage complainants from coming forward, or encourage unwarranted

complaints from people seeking notoriety. For this reason alone, we elect to

invalidate that part of the Ordinance allowing disclosure of a complainant's

identity. But we uphold the remainder of the Ordinance sans the binding nature

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of the CCRB's findings. See Brunetti v. Borough of New Milford, 68 N.J. 576,

603 (1975) (stating that the invalidity of the provisions of an ordinance does not

affect the enforceability of the remainder of the ordinance because they are

"clearly severable"). Such a conclusion is consistent with the severability

paragraph of the Ordinance, which provides that if any part of the ordinance is

declared unconstitutional or illegal, the remaining provisions shall not be

affected and shall continue in full force and effect. See Code 1:1-10. Any other

purported discrepancies between the AG Guidelines and the Ordinance can be

addressed, if warranted, on an as applied challenge on a more fully developed

record once the CCRB commences its oversight role under the Ordinance.

VI.

Finally, the City has widespread authority to issue and delegate subpoena

power to the CCRB. 15 This power is incidental to the City's policy and express

statutory power under N.J.S.A. 40A:14-118 to create a CCRB for the limited

purpose of providing oversight in investigating and examining complaints of

police misconduct. Without such power to issue subpoenas, its effectiveness

will be undermined.

15

Indeed, in its amicus brief, the AG did not specifically raise an objection to

the CCRB's subpoena power.

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Code 2:2-86.3(f) authorizes the CCRB to issue subpoenas. It provides:

The [CCRB] may require the production of . . . records

and other materials as are necessary for the

investigation of complaints submitted to the [CCRB],

pursuant to this section [of the Ordinance] through the

issuance of subpoenas. Upon a majority vote of the

members of the [CCRB], the [CCRB] may issue

subpoenas ad testificandum and duces tecum, which

may be served, to the extent permitted by law.

By enacting the Ordinance, the City tailored the CCRB's subpoena power to the

CCRB's task: investigating civilian complaints alleging police misconduct. The

City specifically delegated this power to remedy the problems associated with

the DOJ investigation. Indeed, the purpose of the Ordinance supplies sufficient

guidance for the City's delegation.

Both the United States Supreme Court and the Supreme Court of New

Jersey have recognized that a legislative body has the inherent authority to issue

subpoenas to fulfill its legislative and investigative authority. See McGrain v.

Daugherty, 273 U.S. 135 (1927); In re Shain, 92 N.J. 524 (1983). The Ordinance

by itself does not grant the power to subpoena. The power to subpoena comes

from constitutional and legislative authority. Shain, 92 N.J. at 532. "[S]uch

authority may be fairly implied from the legislative scheme without being

expressly stated within the four corners of a statute." Ibid. In reaching that

conclusion, our Court relied on the rationale expressed in McGrain:

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A legislative body cannot legislate wisely or effectively

in the absence of information respecting the conditions

which the legislation is intended to affect or change;

and where the legislative body does not itself possess

the requisite information – which not infrequently is

true – recourse must be had to others who do possess it.

Experience has taught that mere requests for such

information often are unavailing, and also that

information which is volunteered is not always accurate

or complete; so some means of compulsion are essential

to obtain what is needed.

....

[S]tate courts quite generally have held that the power

to legislate carries with it by necessary implication

ample authority to obtain information needed in the

rightful exercise of that power, and to employ

compulsory process for the purpose.

[Id. at 532-33 (quoting McGrain, 273 U.S. at 175, 165)

(alterations in original) (emphasis added).]

Thus, "[a] reasonable incident of the Council's power to investigate under

N.J.S.A. 40:69A-37[16] is the power to compel testimony, i.e., to issue

subpoenas." Id. at 533. Our Court elaborated:

16

This statute is entitled "Investigative, removal powers" and states:

The council, in addition to such other powers and duties

as may be conferred upon it by this charter or otherwise

by general law, may:

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Unless an investigating committee has power to compel

[documents and] testimony, it has no feasible method

to obtain all the information it needs to perform its

legislative function. Without the power to interrogate

knowledgeable officials under oath, its investigation

may become a nullity.

[Ibid. (emphasis added) (citations omitted).]

For investigations to be conducted by either the executive or legislative branches

of municipal government, these entities must have subpoena power. Id. at 532.

Thus, implicit in the Legislature's creation of investigatory authority

through policy and N.J.S.A. 40A:14-118 is the creation of the subpoena power.

Ibid. As for the delegation of subpoena power to the CCRB, N.J.S.A. 40A:14-

118 expressly anticipates such delegation. It anticipates a municipal governing

body's creation of "committees" or "commissions" to perform investigations,

and/or the executive's appointment of an administrative officer to perform

investigations. Cf. Jansco v. Waldron, 70 N.J. 320, 326-27 (1976) (stating that

(a) Require any municipal officer, in its discretion, to

prepare and submit sworn statements regarding his

official duties in the performance thereof, and

otherwise to investigate the conduct of any department,

office or agency of the municipal government;

(b) Remove, by at least two-thirds vote of the whole

number of the council, any municipal officer, other than

the mayor or a member of council, for cause, upon

notice and an opportunity to be heard.

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the pre-1981 version of N.J.S.A. 40A:14-118 anticipated sub-delegation of

power to adopt disciplinary rules and regulations for police department s).

Where such delegation occurs within the legislative branch, State law expressly

anticipates the delegation of subpoena power. Specifically, N.J.S.A. 40:48 -25

states:

When the governing body of a municipality shall have

appointed a committee of its members upon any subject

or matter within its jurisdiction, the committee may

issue a subpoena ad testificandum, or subpoena duces

tecum, to any person within this state, to appear before

it to give testimony or information required.

[(Emphasis added).]

Thus, in Shain, 92 N.J. at 530-39, the Court held that a municipal council

in a Faulkner Act municipality, like here, had the authority to delegate its

subpoena power to a special investigatory committee that consisted entirely of

council members. In so holding, the Court noted the power of legislatures to

perform investigations, id. at 530-34, and stated that "[n]o specific statutory

grant is necessary to vest a legislative body with subpoena power," because

"[t]he power to compel testimony is inherent in the legislative power to

investigate." Id. at 532.

Moreover, the New Jersey State Constitution Article IV, § VII, ¶ 11, and

the necessary and proper clause of N.J.S.A. 40:48-2, provide further support for

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our conclusion that the CCRB enjoys subpoena power as it fulfills its function

under the Ordinance. The New Jersey Supreme Court has "consistently held

[N.J.S.A. 40:48-2] is itself a reservoir of police power." Inganamort, 62 N.J. at

536.

[N.J.S.A. 40:48-2 is] an express grant of general police

powers to municipalities [and] has been made

impregnable by the continued legislative acquiescence

therein, by the mandate of Article IV, Section VII,

paragraph 11 of the Constitution of 1947 that acts

concerning municipalities be liberally construed, and

by the adherence thereto of the more recent judicial

decisions . . . .

Plainly, therefore, [N.J.S.A. 40:48-2] must be

considered as an express grant of broad general police

powers to municipalities.

[Ibid. (citations omitted).]

Relying on its express and implied powers, the City is authorized to delegate to

the CCRB authority to issue subpoenas in accordance with the terms outlined in

the Ordinance.17

17

Under federal law, the United States Supreme Court has held that the parallel

"Necessary and Proper Clause" of U.S. Const. art. I, § 8 permits Congress to

delegate subpoena power. See Oklahoma Press Publ'g Co. v. Walling, 327 U.S.

186, 214 (1946), which incidentally was decided two decades after McGrain,

the case that our Court relied on in Shain.

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Finally, FOP's reliance on City of Newark v. Benjamin, 144 N.J. Super.

58 (Ch. Div. 1976), is misplaced. Benjamin pertains to an attempt to create a

CCRB by voter initiative with elected members, which essentially created

another elected body, in violation of the Faulkner Act. Id. at 63. Here, the City

established the CCRB by Ordinance with appointed members, not voter

initiative. Indeed, the Benjamin court drew that distinction by stating, "what is

involved here is not whether the Newark council had the power to enact an

ordinance for civilian review of police conduct, but whether it can be done by

initiative in a Faulkner Act city." Id. at 68.

In Benjamin, the court recognized that "the subpoena power of a

municipal investigative body is set forth in N.J.S.A. 40:48-25." Id. at 72. The

court did not consider whether municipal executive and legislative bodies were

authorized to issue subpoenas, or delegate the authority to issue subpoenas,

under N.J.S.A. 40A:14-118 because the relevant language of N.J.S.A. 40A:14-

118 was not adopted until after Benjamin was decided. Here, the City seized its

power and acted decisively by creating the CCRB.

In summary, the CCRB's findings are not binding and the identity of

complainants and police officers must remain confidential. The Ordinance is

valid on its face and cannot alter the NPD's obligation to follow the AG

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Guidelines when undertaking its own IA investigations. Consequently, the

CCRB can function as intended under the Ordinance, including providing an

oversight role by investigating alleged police misconduct, conducting hearings,

participating in the development of a disciplinary matrix, making

recommendations, and issuing subpoenas. Consistent with this opinion, as

applied challenges may be made if warranted.

Affirmed in part; reversed in part.

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