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 Officers 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
DYFUS
I / A
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. 40A14-181.
  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 Generals 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. 40A14-147
• 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 AGs 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 prosecutors 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 officers
  right against self-incrimination in criminal
  interviews and the officers 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 officers
  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 agencys 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 officers 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 AGs
  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 AGs
  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
  AGs 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 prosecutors
  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 officers 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 AGs
  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 enforcements
  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 officers
  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 AGs 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 subjects physical
  resistance to the exertion of the law enforcement
  officers 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 subjects resistance to the exertion
  of the law enforcement officers 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.