JJC Corrections and IAIU

1. JJC Corrections and IAIU Understanding the roles and responsibilities of each organization.

2. Introduction • How do we protect the personal rights of the juvenile resident housed within the JJC secure facilities? • How do we protect the professional rights of the juvenile correction officer who is working under the direction of the AG guidelines when using force within the JJC secure facilities?

3. Agenda • Defining the Correction Officer’s Role • Defining the Investigative Process • Internal Affairs • Institutional Abuse • Defining the Rights Of the Officers • Weingarten • Garrity • Appeal /Hearing Process

4. Overview • How do we put the two organizational puzzle pieces together so both objectives are accomplished without violating personal / professional rights. Garrity I / A DYFUS I/A Roles DYFUS Roles Right Weingarten Protection

5. Vocabulary • IAIU = Institutional Abuse Investigative Unit • I/A= JJC Internal Affairs • Garrity = Right of Immunity Protection against self incrimination granted to Law Enforcement Officers • Weingarten = Right of Invoking Union Representation, narrowly and specifically defining investigative questioning • AG = Attorney General • UOF = Use Of Force Policy

6. IAIU • The Institutional Abuse Investigation Unit (IAIU) is a child protective service unit that investigates allegations of child abuse and neglect in out-of-home settings such as foster homes, residential centers, schools, detention centers, etc.  The IAIU Chief of Investigations reports to the Director of Central Operations. • The investigative staff responds to allegations of institutional child abuse/neglect in their assigned region.  After the investigation is completed, a final report is issued within 60 days of the initial report • Example: JJC Secure Facilities

7. IAIU Definitions • Abuse is the physical, sexual or emotional harm or risk of harm to a child under the age of 18 caused by a parent or other person who acts as a caregiver for the child. (The JJC Correction Officer is not a care giver, (see JJC job description) we are the front lines to firm, fair, and Consistent safety and security measures.) • Neglect occurs when a parent or caregiver fails to provide proper supervision for a child or adequate food, clothing, shelter, education or medical care although financially able or assisted to do so.

8. IAIU Indicators of Child Abuse • Unexplained bruises and welts • Unexplained burns • Unexplained fractures • Unexplained laceration or abrasions • All of the actions and procedures initiated by the Law Enforcement Officer are EXPLAINED in the Officers package, which includes the following; • Medical Report(s) • Witness Report(s) • Supervisors Report(s) • Responders Report(s) • The packet articulates all of their (Officers) roles in maintaining order in regards to their response to all situations in dealing with the residents.

9. Internal Affairs • The New Jersey Legislature recognized the importance of the internal affairs function in 1996 with the enactment of N.J.S.A. 40A:14-181. The statute provides that: • Every law enforcement agency shall adopt and implement guidelines which shall be consistent with the guidelines governing the "Internal Affairs Policy and Procedures" of the Police Management Manual promulgated by the Police Bureau of the Division of Criminal Justice in the Department of Law and Public Safety, and shall be consistent with any tenure or civil service laws, and shall not supersede any existing contractual agreements.

10. Duties and Responsibilities • The purpose of the internal affairs unit is to establish a mechanism for the receipt, investigation and resolution of complaints of officer misconduct. The goal of internal affairs is to insure that the integrity of the department is maintained through a system of internal discipline where fairness and justice are assured by an objective and impartial investigation and review. The Internal Affairs Unit was solely and purposely established to investigate and resolve ALL allegations of Officer misconduct. A unit with all the Law Enforcement Rights granted it under the Attorney Generals Office.

11. Accepting Reports Alleging Officer Misconduct • All complaints of officer misconduct shall be accepted from all persons who wish to file a complaint regardless of the hour or day of the week. This includes reports from anonymous sources, juveniles and persons under arrest or in custody. The Internal Affairs Unit must accept all Juvenile Complaints and process them into the investigative unit initiating an investigation.

12. The agency must notify an officer in writing that a complaint has been made against him, and that an investigation will begin, unless this notification would interfere with the investigation. • There is NO written notification sent to the officer in regards to an allegation being made against her / him by the Institutional Abuse Investigative Unit

13. Attorney General’s Guidelines • INTERNAL AFFAIRS POLICY & PROCEDURES • Issued August 1991 • Revised November 1992 • Revised November 2000

14. AG Guidelines • The law enforcement executive, upon reviewing the report, supporting documentation and information gathered during any supplemental investigation, shall direct whatever action is deemed appropriate. If the complaint is unfounded or not sustained, or the subject officer is exonerated, the disposition shall be entered in the index file and the report filed. If the complaint is sustained and it is determined that formal charges should be made, the law enforcement executive will direct either internal affairs or the appropriate commanding officer to prepare, sign, and serve charges upon the subject officer or employee. The individual assigned shall prepare the formal notice of charges and hearing on the charging form. This form will also be served upon the officer charged in accordance with N.J.S.A. 40A:14-147 AG Guideline 11-23

15. If the subject officer enters a plea of not guilty and requests a hearing, the law enforcement executive will set the date for the hearing as provided by statute and arrange for the hearing of the charges. Internal affairs shall be responsible for or assist the assigned supervisor or prosecutor in the preparation of the department's prosecution of the charges. This includes proper notification of all witnesses and preparing all documentary and physical evidence for presentation at the hearing. AG Guideline 11-23 There is no procedural (steps) process for the Law Enforcement Officer to follow in regards to appealing the findings of the Institutional Abuse Investigative Unit. We must go before OAL and are required to present before the Board with an Attorney, thus, infringing on the contractual rights of the officers.

16. The hearing shall be held before the designated hearing (This process does not exist within the findings issued by the IAIU, yet it is a requirement by the AG’s guidelines) officer. The hearing officer should be empowered to enter a finding of guilty or not guilty, or to modify in any manner deemed appropriate the charges in question. The decision of the hearing officer must be in writing and should be accompanied by findings of fact for each issue in the case. AG guideline 11-24

17. The difficulty in conducting officer interviews, particularly subject officer interviews, is the differing legal principles that apply depending on the nature of the interview and the type of investigation being conducted. For example, a subject officer suspected of (IAIU investigations) criminal conduct will be interviewed in a manner far different than an officer suspected of committing a disciplinary infraction. A further distinction may be made when the officer to be interviewed is believed to be a witness to either criminal conduct or an administrative infraction. AG Guideline 11-36

18. While a police officer has the same constitutional rights as any other citizen during a criminal investigation, their status as a police officer may create special (non-existent during the IAIU investigation, solely because the IAIU is not a Law Enforcement Agency) concerns. For the most part, the internal affairs investigator should utilize the same procedures and apply the same legal principles to the subject officer as he or she would to any other target or suspect in a criminal investigation. However, the internal affairs investigator should recognize that the interview process of a police officer (The officer has rights granted him / her by the supreme court, ie: Miranda / Garrity) is somewhat different than the interview of any other citizen AG Guideline 11-36

19. Because the county prosecutor is ultimately responsible for the prosecution of criminal cases, the internal affairs investigator shall defer to the supervision and direction of the county prosecutor in conducting officer interviews. The investigator shall ( The IAIU does not conform to this AG directive) consult with the county prosecutor prior to the initiation of an officer interview in matters that could involve (IAIU investigations) criminal conduct. The investigator shall pay particular attention to the county prosecutor’s instructions concerning the type of interview to be conducted and types of procedures to be utilized (e.g.Miranda warning, Garrity warning, etc.). AG Guideline 11-37

20. Police officer interviews during an internal affairs investigation are rendered difficult by the conflict that exists between the officer’s right against self-incrimination in criminal interviews and the officer’s obligation to answer questions truthfully during an administrative investigation. In other words, while an agency may compel an officer to answer questions posed during the course of an administrative investigation, an officer cannot be forced to give answers that could be used against him or her in a criminal action, cannot have that evidence used against them in a criminal prosecution. AG Guideline 11-37

21. A subject officer who reasonably believes that what he or she might say during an internal affairs interview could be used against him or her in a criminal case cannot ordinarily be disciplined for exercising his or her Miranda rights. However, an officer can be disciplined for refusing to answer questions during an internal affairs interview if he or she has been told that whatever he or she says during the interview will not be used against the officer in a criminal case. The procedure by which an officer is informed that his or her statement will not be used against him or her in a criminal case is called a Garrity warning. • (I/A claims the officer cannot invoke their Garrity Right during an administrative only investigation, yet, Internal Affairs shares their findings with the IAIU investigator who can proceed criminally against the officer.) Through this warning, the officer being interviewed is informed that he or she must cooperate with the investigation and can be disciplined for failing to do so because the county prosecutor has decided to provide the officer with “use immunity”. Under this doctrine, the officer’s statement cannot be introduced as evidence against him or her in a criminal case. (IAIU is a criminal investigation, yet Garrity is non-existent) AG Guideline 11-37

22. It is for this reason (“use immunity”) that the internal affairs investigator must continually reassess (INFORMATION SHARING should not be done with the IAIU investigator) the nature of an internal affairs investigation as evidence is being gathered. Having initially determined that a particular allegation is criminal or administrative in nature, it is important for the internal affairs investigator to revisit that decision during the course of an investigation to determine whether any of the evidence gathered following the initial determination changes the nature and scope of the investigation. In the event the nature and scope of an investigation has changed, the investigator must be prepared to change the methods and procedures he or she was utilizing to reflect the new focus. • For example, if an investigator initially determines that an allegation appears to be a disciplinary matter, but later evidence leads the investigator to conclude that criminal conduct may have occurred, the investigator must cease(IAIU unknowingly causes the I/A unit to violate this AG directive)using the methods and procedures appropriate for an administrative investigation and notify the county prosecutor immediately before proceeding further. AG Guideline 11-37

23. AG Guidelines and IAIU Conflicting Concerns • Serious allegations of misconduct by a law enforcement officer may implicate both a violation of a criminal statute and a violation of an agency’s rules and regulations. As a result, a criminal investigation and an administrative disciplinary investigation may be needed to properly resolve a misconduct complaint. In those cases where both a criminal investigation and an administrative disciplinary investigation are needed, the internal affairs investigator from the subject officer’s agency is often expected to perform both investigations. Under these circumstances, the methods employed in the criminal investigation conflict (IAIU investigation automatically conflicts with this AG directive) with the methods used in the administrative investigation. AG Guideline 11-38

24. Where The Conflict Begins? • Typically, this conflict will become most apparent during subject officer interviews. As has already been pointed out, a subject officer has the right to remain silent during a criminal investigative interview. On the other hand, the same officer must cooperate and answer questions posed by his or her employer during an administrative disciplinary interview. Thus, while the internal affairs investigator cannot require a subject officer to answer questions during a criminal interview, the investigator can require a subject officer to answer questions during an administrative disciplinary interview. AG Guideline 11-38 • This is truly a conflict because the officers are undergoing two simultaneous investigations, one by a Law Enforcement Agency which SHALL honor the officers rights and privileges due to his / her capacity under the protections of the AG’s guidelines. • A second investigation by a NON-Law Enforcement Unit which is not compelled to honor the officers rights and privileges granted to his / her capacity under the protections of the AG’s guidelines.

25. Conflict Examples • The Institutional Abuse Investigative Unit does not confer with the County Prosecutors Office. • The Institutional Abuse Investigative Unit holds no law enforcement power, thus cannot Mirandise an officer once the officer invokes his / her rights. • The Institutional Abuse Investigative Unit does not conform to the parameters outlined within the AG’s guidelines.

26. The confusion caused by these issues can be alleviated several ways. One method is to separate the investigations by time - the criminal investigation is completed first, and then the administrative investigation may follow. Another method is the utilization of bifurcated investigations. In a bifurcated investigation, the responsibility for a criminal investigation is separated from the responsibility for an administrative investigation. Thus, one investigator (typically from the prosecutor’s office) (TWO LAW ENFORCEMENT AGENCIES, IAIU is not a Law Enforcement Agency) is assigned the responsibility of gathering evidence of criminal wrongdoing while a second investigator (typically the internal affairs investigator from the subject officer’s agency) is assigned the responsibility of gathering evidence of a disciplinary infraction. AG Guidelines 11-38

27. The Two Investigations • Internal Affairs conducting a Disciplinary investigation (“Administrative Only”). • Institutional Abuse Investigative Unit conducting an investigation unabated by the Law Enforcement Officers rights and privileges outlined within the Attorney Generals Guidelines. Which could ultimately result in outside criminal charges being filed by the state.

28. Criminal Investigation, Officer Is SubjectRequirement 7 • Whenever there is a possibility that the investigation may result in criminal prosecution of the officer or that the county prosecutor may be conducting a separate criminal investigation, the internal affairs investigator must consult(The IAIU does not adhere to this, thus violating the officers rights) with the county prosecutor prior to interviewing the officer. AG Guideline 11-39

29. Any questions asked of officers during an internal investigation must be “narrowly and directly” related to the performance of their duties and the ongoing investigation. Officers do not have the right to refuse to answer questions directly and narrowly related to the performance of their duties. All answers must be complete and truthful. However, officers cannot be forced to answer questions having little to do with their performance as law enforcement officers(IAIU perceives the Correction Officer as a caregiver) or questions unrelated to the investigation. AG Guideline 11-43

30. Confidentiality • The nature and source of internal allegations, the progress of internal affairs investigations, and the resulting materials are confidential information. The contents of the internal investigation case files shall be retained in the internal affairs unit and clearly marked as confidential. The information and records of an internal investigation shall only be released under the following limited circumstances: • AG Guideline 11-46

31. Exceptions to confidentiality • In the event that administrative charges have been brought against an officer, and a hearing will be held, a copy of those internal investigation reports to be used as evidence in the administrative hearing shall be provided to the officer. (Investigative confidentiality is non-existent when TWO investigative units are sharing information.) • In the event that the subject officer, agency or governing jurisdiction has been named as a defendant in a lawsuit arising out of the specific incident covered by an internal investigation, a copy of the internal investigation reports may be released to the attorney representing the subject officer, agency or jurisdiction. • Upon the request or at the direction of the county prosecutor or Attorney General. • Upon a court order.

32. Conflicts in confidentiality • The IAIU investigator is using the Internal Affairs Investigators findings / discoveries in whole or in part within their report findings, at times quoting the Internal Affairs Investigator within their own discoveries. • They are referencing the case as outlined with the Internal Affairs investigation. The confidentiality requirement under the AG’s guideline is non-existent between the Internal Affairs department and the IAIU.

33. Weingarten • EMPLOYEE'S RIGHT TO UNION REPRESENTATION • The right of employees to have union representation at investigatory interviews was announced by the U.S. Supreme Court in a 1975 case (NLRB vs. Weingarten, Inc. 420 U.S. 251, 88 LRRM 2689). These rights have become known as the Weingarten rights. • Employees have Weingarten rights only during investigatory interviews. An investigatory interview occurs when a supervisor questions an employee to obtain information which could be used as a basis for discipline or asks an employee to defend his or her conduct.

34. Weingarten Q / A • Q: What if I'm told to be in my Supervisor's office at 10am but I do not know the nature of the meeting? A: You have the right to know beforehand what the subject of the discussion will be. And, you have the right to consult (caucus) with your Steward before and during the meeting. (The IAIU investigator should notify the officer of an interview 24 hours prior to the interview so preparation can be made by the officer and the steward) • Q: What is the role of a Steward in a investigatory meeting? A: 1. When a Steward arrives, the Supervisor must inform him/her of the subject matter of the interview, i.e. the type of action/misconduct for which discipline is being considered.2. The Steward must be allowed a private pre-interview conference before the questioning begins.3. The Steward must be allowed to speak during the interview.(IAIU perceives the steward as just a witness) 4. The Steward can give advice on how the employee should answer questions

35. Garrity Right • Technically, there are two prongs under the Garrity rights. First, if an officer is compelled to answer questions as a condition of employment, the officer's answers and the fruits of those answers may not be used against the officer in a subsequent criminal prosecution. (Internal Affairs under their “administrative Only” investigative process does not allow the officer to invoke Garrity, yet, in turn shares the investigative findings with an Investigator from the IAIU Unit which can proceed with a criminal investigation and or charge). Second, the department becomes limited as to what they may ask. Such questions must be specifically, narrowly, and directly tailored to the officer's job.Thus, the basic thrust of the Garrity Rights or Garrity Rule is that a department member may be compelled to give statements under threat of discipline or discharge but those statements may not be used in the criminal prosecution of the individual officer. This means that the Garrity Rule only protects a department member from criminal prosecution based upon statements he or she might make under threat of discipline or discharge.

36. AG Use Of Force Policy • USE OF FORCE • Attorney General's Use of Force Policy • Issued April 1985 • Revised June 2000

37. Policy • Sworn law enforcement officers have been granted the extraordinary authority to use force(This extraordinary authority is not considered within the IAIU investigators findings, and since the officer is denied an opportunity to appeal any IAIU finding through the hearing process the IAIU violates the officers extraordinary authority as a law enforcement officer) when necessary to accomplish lawful ends. That authority is grounded in the responsibility of every sworn law enforcement officer to comply with the laws of the State of New Jersey regarding the use of force and to comply with the provisions of this policy. Equally important is law enforcement’s obligation to prepare individual officers in the best way possible to exercise that authority. (All JJC Correction Officers are Academy trained, certified under the PTC guidelines)

38. In situations where law enforcement officers are justified in using force, the utmost restraint should be exercised. The use of force should never be considered routine. In determining to use force, the law enforcement officer shall be guided by the principle that the degree of force employed in any situation should be only that reasonably (To the Law Enforcement Officer who is trained in UOF) necessary. Law enforcement officers should exhaust all other reasonable means before resorting to the use of force. It is the policy of the State of New Jersey that law enforcement officers will use only that force which is objectively reasonable and necessary.

39. Definitions • A. Constructive Authority • 1. Constructive authority does not involve actual physical contact with the subject, but involves the use of the law enforcement officer’s authority to exert control over a subject. (This Authority Command is exhausted prior to any form of force being used unless an assault or fight has been initiated.)

40. Physical Contact 1. Physical contact involves routine or procedural contact with a subject necessary to effectively accomplish a legitimate law enforcement objective. (If a resident pulls away, slaps away, or attempts to evade this contact, escalation to Physical Force is justified in accordance to the AG’s policy.) • Physical Force 2. Physical force involves contact with a subject beyond that which is generally utilized to effect an arrest or other law enforcement objective. Physical force is employed when necessary to overcome a subject’s physical resistance to the exertion of the law enforcement officer’s authority, or to protect persons or property. • Examples include wrestling a resisting subject to the ground, using wrist locks or arm locks, striking with the hands or feet, or other similar methods of hand-to-hand confrontation.

41. Mechanical Force • 1. Mechanical force involves the use of some device or substance, other than a firearm, to overcome a subject’s resistance to the exertion of the law enforcement officer’s authority. • Deadly Force • 1. Deadly force is force which a law enforcement officer uses with the purpose of causing, or which the officer knows to create a substantial risk of causing, death or serious bodily harm.

42. Reasonable Belief • 1. Reasonable belief is an objective assessment based upon an evaluation of how a reasonable law enforcement officer with comparable training and experience would react to, or draw inferences from, the facts and circumstances confronting and known by the law enforcement officer at the scene. The understanding of reasonable belief is key to the Correction Officer WHO IS CALLED UPON TO ACT when a code 33 (emergency) is called over the all call or radio. A high percentage of the Correction Officers “reasonable belief” of the situation is initiated when he / she is called to quell an uprising, a fight, or a potential assault, etc. If there is no emergency there is NO CODE 33!!

43. Authorization and Limitations • A. Use of Force • 1. A law enforcement officer may use physical force or mechanical force when the officer reasonably believes it is immediately necessary at the time: • a. to overcome resistance directed at the officer or others; or • b. to protect the officer, or a third party, from unlawful force; or • c. to protect property; or • d. to effect other lawful objectives, such as to make an arrest.

44. Summary The challenges we face in regards to the roles and responsibilities of each department must be met, and should be paramount in the discussion and dialogue put before us today. We all must adhere to the fundamental truths concerning the RIGHTS of the residents within the care of the JJC without impeding and diminishing the RIGHTS and RESPONSIBILITIES of the Law Enforcement Officers. The Officers are the front line in maintaining firm, fair, and consistent order within the secure facilities, and upon THEIR RESONABLE BELIEF their rights to a firm, fair, and consistent investigation should not be diminished.

45. PBA #105 Questions and Answers Thank you for taking the time out of your schedule to meet with the “Collective Bargaining Agent” representing all of the JJC Correction Officers.