NJ Police Officers Now Subject to Random Drug Testing

 

March 26,2018

the staff of the Ridgewood blog

TRENTON NJ,  Attorney General Gurbir S. Grewal today announced the following new law enforcement policies designed to identify and address problematic behavior and illegal drug use by police officers:

Random Drug Testing Policy – Attorney General Directive 2018-2 establishes a uniform policy requiring all law enforcement agencies statewide to conduct mandatory random drug testing of all sworn officers and requires that officers who test positive for illegal drug use must be suspended immediately from all duties pending termination of their employment.

Early Warning Systems Policy – Attorney General Directive 2018-3 establishes a uniform policy requiring all law enforcement agencies statewide to establish early warning systems to identify officers at risk for harmful behavior and mandate remedial programs for them before their conduct escalates.

The Attorney General’s Office developed both of these policies in close collaboration with stakeholders, including law enforcement leaders, community leaders, and advocacy groups. Indeed, the new statewide policies improve upon and standardize protocols that a great number of law enforcement agencies have already implemented as part of their efforts to not only improve officer and public safety, but also the public’s confidence in law enforcement.
“For our police to perform their jobs effectively, they need the trust of all of the communities they serve,” said Attorney General Grewal. “These policies promote that trust by assuring the public that police are going to be proactive in addressing internal problems. A majority of our police departments already have implemented random drug testing and early warning systems to identify at-risk officers, but these directives make these important programs universal in New Jersey. We support our officers in their difficult jobs, and at times that means intervening with a troubled officer to protect the public, the individual officer, and his or her fellow officers.”
“These are commonsense policies to promote safety and build trust in police-community relations,” said Director Elie Honig of the Division of Criminal Justice. “Police officers are granted extraordinary authority to protect us and enforce our laws, including authority to use lethal and non-lethal force, and we must ensure that those who wield such power are individuals of sound mind, body and judgment. An officer who uses illegal drugs or has repeatedly shown poor judgment cannot be trusted to make rational decisions and exercise appropriate discretion.”

Random Drug Testing
Testing of law enforcement officers in New Jersey for illegal drug use is governed by the Attorney General’s Law Enforcement Drug Testing Policy (“AG Drug Testing Policy”). That policy was established in 1986 and has been regularlyreviewed and updated over the years. The AG Drug Testing Policy already included a requirement that applicants and trainees be tested, and that individual officers be tested when there is reasonable suspicion that they are using drugs illegally. That does not change under the new directive.

With respect to random drug testing, the policy previously encouraged such testing, but did not require it. The new directive issued by Attorney General Grewal, Directive 2018-2, amends the AG Drug Testing Policy to require, at a minimum, that every police agency in New Jersey conduct random drug testing at least once in 2018, and at least twice in every subsequent calendar year, and that at least 10 percent of the officers within an agency be tested each time. Each agency must ensure that its random drug testing policy is consistent with the procedures set forth in the AG Drug Testing Policy.
The AG Drug Testing Policy is found at this link: www.nj.gov/oag/dcj/agguide/drugtest2012.pdf

In the event of (1) a positive drug test by an officer, (2) a refusal by an officer to take the drug test, or (3) administration of a reasonable suspicion drug test to an officer, the law enforcement agency’s chief executive or a designee shall provide a confidential written notice to the county prosecutor or a designee within 10 days. Upon completion of any disciplinary action, each agency shall report the discipline to the county prosecutor or designee.
Early Warning Systems

Early warning systems are designed to monitor officer conduct using objective measures that indicate a potentially escalating risk of harm to the public, the agency, and/or the officer. They are intended to increase public safety and public confidence, while assisting officers through early intervention. While such systems previously have been adopted by individual police departments and mandated by certain county prosecutors, Attorney General Grewal’s directive is the first statewide mandate that all police agencies in New Jersey must implement them.

Under Directive 2018-2, the following performance indicators are required to be included in all early warning systems:
Internal affairs complaints against the officer, whether initiated by another officer or by a member of the public;
Civil actions filed against the officer;
Criminal investigations of or criminal complaints against the officer;
Any use of force by the officer that is formally determined or adjudicated (for example, by internal affairs or a grand jury) to have been excessive, unjustified, or unreasonable;
Domestic violence investigations in which the officer is an alleged subject;
An arrest of the officer, including on a driving under the influence charge;
Sexual harassment claims against the officer;
Vehicular collisions involving the officer that are formally determined to have been the fault of the officer;
A positive drug test by the officer;
Cases or arrests by the officer that are rejected or dismissed by a court;
Cases in which evidence obtained by an officer is suppressed by a court;
Insubordination by the officer;
Neglect of duty by the officer;
Unexcused absences by the officer; and
Any other indicators, as determined by the agency’s chief executive.

Under the policy, if an officer engages in conduct involving three separate instances of performance indicators within any 12-month period, then the department’s early warning system review and intervention process will be triggered. If one incident triggers multiple performance indicators, that incident shall not be double- or triple-counted, but instead shall count as one performance indicator. The agency’s chief executive may, in his or her discretion, adopt additional performance indicators tailored to the department and the community it serves and determine that a lower number of performance indicators within a 12-month period will trigger the intervention process. Each department is required to adopt a tracking system to enable it to identify officers who display the requisite number of performance indicators necessary to trigger the early warning system review process.
The agency’s chief executive must assign personnel to conduct the early warning system function, typically members of the internal affairs unit. Supervisory officers in the subject officer’s chain of command also will be directly involved in any early warning system review process. Once an officer has displayed the requisite number of performance indicators necessary to trigger the review process, assigned supervisory personnel must initiate remedial action to address the officer’s behavior, which may include, but is not limited to, the following:

Training or re-training;
Counseling;
Intensive supervision;
Fitness-for-duty examination;
Employee Assistance Program referral; and
Any other appropriate remedial or corrective action.

Early warning system personnel must continue to monitor the subject officer for at least three months, or until the supervisor concludes that the officer’s behavior has been remediated, whichever is longer. Early warning systems generally are focused on corrective actions to remediate officer behavior and to provide assistance to the officer. They generally do not address disciplinary actions (to include termination of an officer) that might be warranted against an officer, which remain within the purview of the agency’s internal affairs function.

The agency’s chief executive must notify the county prosecutor in writing regarding any officer who triggers the early warning system, both at the initiation of the review process and upon completion of that process. The written notifications are to include information on the triggering performance indicators, the outcome of the review process, and the remedial steps planned/taken for the officer.
If any officer who is or has been subject to an early warning system review process applies to or accepts employment at a different law enforcement agency than the one where he or she underwent such process, it is the responsibility of the prior or current employing law enforcement agency to notify the subsequent employing law enforcement agency of the officer’s early warning system review process history and outcomes.