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Appellate Division Upholds Officers’ Suspension in Connection with Off-Duty Bar Fight

Posted in Public Employee Discipline, Public Employment Labor Law

Gavel Slam

As reported by N.J.com, the Pennsauken Police Department was right to suspend six officers in 2011 for violating rules and hindering the investigation of a fight that involved two off-duty officers, an appellate court has ruled.

The conduct was not directly related to the fight May 7, 2011, but to officers’ failure to properly report and investigate the incident and notify ranking officers, according to the decision published Thursday.

The officers appealed their suspensions, arguing that Police Chief John Coffey had violated the rules of internal affairs investigations. They appealed first to the Civil Service Commission and then to the Appellate Division of the New Jersey Superior Court, which affirmed the earlier decision.

Some of the same officers are currently suing police and township officials. They claim in a federal suit that their suspensions in the 2011 incident were part of Coffey’s alleged systematic retaliation against officers who were active in the union and advocating for 12-hour shifts.

One of the officers, Douglas Foster, was fired in 2015 and this summer filed a separate suit against the chief, the township and other officials alleging retaliation.

The decision Thursday affirming the suspensions, written by Judge William E. Nugent, states that the altercation occurred just before 11 p.m. at Pinsetters, a bar and bowling alley.

A fight broke out between officers Michael Biazzo and Michael Killion and other civilians after a “political discussion,” but those involved gave different accounts about who started the fight.

Killion, Biazzo and at least one civilian suffered facial injuries.

After the fight the three off-duty officers who were there, Killion, Biazzo and Vito Moles, left Pinsetters immediately. The department later ruled that they hindered the investigation by leaving the scene before officers could investigate.

Officer Foster, one of the officers who responded, later told his supervisor that a man pushed a woman at Pinsetters, Nugent wrote.

Responding officer William Hertline also did not report the incident to a superior officer. Brazzio eventually did so, but nearly two hours after the altercation.

Two sergeants, Michael Hutnan and Socrates Kouvatas, were notified and investigated. Neither contacted a higher ranking officer per department policy, Nugent wrote.

The chief, upon learning of the incident, initiated an internal affairs investigation. Disciplinary charges including hindering an investigation, conduct not becoming an officer and neglect of duty were filed against various officers.

Sgt. Hutnan was suspended for 10 days and the other officers were all suspended for 30 days.

The officers’ appeal argued that Chief Coffey violated the state regulations regarding internal investigations because he conducted the investigation himself, sought information through questionnaires instead of interviews, and did not inform the officers that they were subjects or witnesses in an internal investigation.

They also argued that he was not fair, but “politically motivated” in his investigation because he was angry with the involved officers for lobbying for 12-hour shifts.

The court found that the chief’s failure to comply with regulations did not taint the investigation.

Meanwhile, a federal civil rights lawsuit regarding the chief and some of the same officers is still alive in U.S. District Court in Camden.

The suit was initially filed by five of the officers suspended in connection with the 2011 fight, Biazzo, Killion, Foster, Kouvatas and Hertline, as well as officers Erik Morton and Mark Bristow.

They argued that the police chief, then lieutenant Michael Probasco, and other city officials had violated their right to free speech by retaliating against them for their outspoken support for 12-hour shifts.

They argued in the suit that in addition to targeting them for the 2011 suspensions, the chief had issued to them other reprimands and suspensions without good cause, given them undesirable assignments, refused their leave requests, shared the confidential internal affairs investigation with others, and caused them to be ostracized within the department.

A judge dismissed the suit in November, saying the officers failed to specify how they spoke out and to prove that their advocacy was protected speech. Five of them filed a new complaint in January, and the case is ongoing.

NJ Attorney General Announces $550K For Police Body Cameras

Posted in Uncategorized

Body Cameras

As reported by NJ.com, New Jersey’s Attorney General will give out more than half a million dollars in funding for police departments across the State to purchase body-worn cameras.  The announcement marks the second round of funding for the devices after the Attorney General’s Office distributed $2.5 million last year amid a climate of national scrutiny of police practices.

“Police in New Jersey are embracing this technology as a way to build public trust through accountability, while also protecting and assisting new officers in their difficult and dangerous jobs,” Attorney General Christopher Porrino said in a statement announcing the new funds. “Every picture tells a story, and ultimately body cameras tell a story of better police-community relations.”

Proponents of the technology say the cameras keep both police officers and citizens who might make false complaints of abuse honest.  But there has been resistance in the State from some police officers and police chiefs concerned about the costs of the devices and the rules governing their use.  Civil liberties advocates have also expressed concern about how the footage might be used and who will have access.

Earlier this year, two unions representing State Police troopers and commissioned officers fought unsuccessfully in court to overturn a 2015 directive on body camera use from the Attorney General.  A bill that would require every uniformed officer in the State to wear a camera also died in committee amid concerns it amounted to an unfunded mandate.

An estimate from the nonpartisan Office of Legislative Services put the first-year price tag of outfitting the more than 35,000 officers in the State with the technology at $88.5 million.  Nationally, some police departments have been temporarily shelving their body cameras as they grapple with data storage costs, which can burden small police departments who do not have the infrastructure to deal with the large video files and say they cannot afford third-party storage services.  The grants provided by the Attorney General’s Office provide $500 for each body camera and related equipment.

Elie Honig, the Director of the State Division of Criminal Justice, called the use of body cameras an “investment” that “promises generous returns in the form of public confidence as well as savings in the resources devoted to internal affairs investigations.” The Attorney General’s Office said the first round of funding quadrupled the number of police departments in the State using body cameras, from 50 to about 200 of New Jersey’s some 500 agencies.  Under the new grant program, priority will be given to police departments that currently do not have any body cameras at all, as well as departments that meet other criteria including population and crime rates according to the Attorney General’s Office.

Bill to Require AG Investigations of Deaths in Police Custody Advances

Posted in Uncategorized

AG Office

As reported by Observer.com, a bill that would have the New Jersey state Attorney General’s office investigate all civilian deaths at the hands of police advanced in a legislative committee Monday. Against misgivings from a representative of the Attorney General’s office, the Assembly Judiciary Committee released the bill following a 4-2 vote.

Currently, civilian deaths that occur in police custody or during interaction with police are investigated by the county prosecutor in the county where the incident occured—the new law would have the Attorney General investigate instead, and move any subsequent trials to a different county to avoid conflicts of interest.

Assembly sponsor Sheila Oliver (D-34) called the bill an attempt to restore public trust at a time when violence by and against police is making more headlines than ever before.

“The failure of grand juries to indict police officers in the deaths of unarmed African-American victims across the nation has led to widespread concern for many, many reasons, including a stark lack of confidence by some in the criminal justice system,” Oliver wrote in a statement.

“These high-profile cases are sensitive enough without local communities having to wonder whether the collaborative relationship between the local prosecutor’s office and local law enforcement gives rise to a conflict of interest that would influence the proceedings.”

Stephan Finkel of the Attorney General’s office believes the Attorney General’s existing authority to intervene in cases is sufficient when there is a clear conflict of interest between a county prosecutor and a police department.

“I understand the concern of the public: ‘Who’s watching the watchmen,’ especially when they’re involved,” he said in his testimony. “We believe that what we need to do is help the public understand better what this system is and how it works to improve public confidence.”

Co-sponsor Shavonda Sumter (D-35) said in a statement after the vote that she supports the bill as a way to eliminate both real conflicts of interest and perceived partiality toward police departments on the part of county prosecutors.

“The simplest way to remove the appearance of a conflict created by putting prosecutors in charge of investigating police officers they regularly work directly with is, in fact, to no longer have them be in charge of prosecuting those police officers,” Sumter wrote. “For grieving families this may help provide a measure of closure, rather than living the rest of their lives with the sense that justice was never served.”

The bill will now go on to a vote in the Senate Law and Public Safety Committee.

New Jersey Senate Passes Bill Placing Armed, Retired Police Officers in Schools

Posted in Pay and Overtime, Uncategorized

As reported by N.J.com, a bill creating a new class of police officer — and stationing armed, retired cops inside New Jersey schools — passed the New Jersey State Senate on Thursday after lawmakers adopted an amendment recommended by Governor Christie.

The measure (S2983), which was unanimously approved, establishes “Class Three” special police officers designated to provide security at both public and private schools.

First proposed in the wake of the 2012 attack at Sandy Hook Elementary School in Newtown, Connecticut, the measure passed both houses of the Legislature in June. But it was conditionally vetoed by Gov. Chris Christie, who requested that it come with a requirement that Class Three officers undergo school resource officer training.

The Class Three designation would be open to retired officers under the age of 65 who retired from a police department in good standing. The newly hired Class Three officers would be required to meet the same firearm qualifications as active-duty police officers.

In accordance with the legislation, Class Three officers would work during regular school hours and their jurisdiction would be limited to school grounds. They also would not be eligible for the same benefits as regular police officers.

This measure raises important questions concerning the fate and positions of those police officers currently assigned to schools across the State of New Jersey. Several school districts across the State already have active rank and file police officers patrolling the hallways of schools, providing security services to the schools and serving as school resource officers during regular school hours. Based on the foregoing, there are obvious pros and cons associated with the newly passed bill. While the measure clearly benefits those newly retired officers looking to supplement their pensions, it remains to be seen whether it could potentially cut into those jobs assigned to police officers that are part of the municipality’s permanent force and still working toward retirement.  We will follow the track of this bill closely and keep our readers informed.

 

Christie, NJEA Agree To Meet About Changes in Healthcare For Retirees

Posted in Retiree Benefits

Healthcare-Icon

As reported by NJ.com, the New Jersey Education Association (“NJEA”) and Governor Chris Christie’s administration agreed to hold an information-only meeting on proposed changes to retiree healthcare.  The administration took the teacher’s union to court to compel members who sit on the School Employees’ Health Benefits Commission to attend commission meetings.  They have boycotted recent meetings to block the administration from forcing a vote to move retirees onto Medicare Advantage.

Superior Court Judge Mary Jacobson signed a consent order in which both sides agreed to attend a meeting Thursday “for informational purposes only” at which “the commission shall not conduct or take any vote with regard to any retiree medical plan for (School Employees Health Benefits Plan) current or future retirees or any other substantive matter.”  Jacobson suggested at a hearing last week that the legal spat could have been avoided if the State simply presented the Medicare Advantage proposal at one meeting and held the vote at another.

NJEA President Wendell Steinhauer said in a statement the consent order “means that the state has to answer our questions.”  “We will continue to defend our members’ rights to receive the benefits they have earned,” he continued.  A spokesman from the Attorney General’s Office declined to comment.

The State initially sought for the court to force the members to attend one or more meetings or allow the commission to meet without a quorum.  Assistant Attorney General Jean Reilly told the court that the NJEA’s absence was holding the Medicare Advantage proposal “hostage” and effectively forcing a negative vote.  The NJEA, which represents more than 200,000 members, has accused Christie of refusing to fill a vacant seat aside for a labor representative in an effort to manipulate the vote.  The seat, belonging to a member of the AFL-CIO, has been vacant since August 2015.  The NJEA has also accused the administration of withholding information on Medicare Advantage in addition to arguing that the medical plan adjustment falls outside the commission’s jurisdiction and instead should be before the commission’s plan design committee, which oversees things like copays and deductibles.

Steinhauer said the union will review the information expected to be provided by medical plan consultants Thursday “to determine whether the State’s proposed changes are harmful to members or illegal.”

Officers Involved In Fatal Shootings Would Be Identified Under Proposed Law

Posted in Public Employment Labor Law

police car

As reported by NJ.com, a bill before the State Legislature would require state authorities to identify police officers involved in fatal shootings and in-custody deaths within 48 hours of the incident.  The public notification requirement was added as an amendment to legislation that would put all fatal police shooting investigations under the State’s Attorney General, which was approved by the Senate Budget Committee by a 7-4 vote.

The measure calls for names of every officer present at the scene to be published online except in cases where the Attorney General find such a disclosure “will jeopardize the officer’s safety or the safety of the officer’s immediate family,” according to the proposed text.  The bill’s sponsors say the measure will improve public confidence in police shooting investigations by taking them out of the counties in which they occur. Currently, fatal shootings involving local police departments are investigated by county prosecutors, while deaths involving county or state agencies are investigated by a shooting response team at the State Division of Criminal Justice, which is part of the Attorney General’s office. State law also allows the Attorney General, the State’s Chief Law Enforcement Officer, to step in on any investigation where there may by a conflict of interest.

The proposed law would put all fatal shooting and in-custody death investigations under a special unit within the Attorney General’s office.  It was met with criticism by representatives of the New Jersey’s police unions, who called it an unnecessary intrusion.  Rob Nixon, a lobbyist with the New Jersey State PBA, said the bill “starts with an assumption that’s never been proven: that our county prosecutors are incapable of impartiality in seeking justice when police officers are involved in a shooting.”  Nixon also said requiring special prosecutors from the State Attorney General’s Office could undermine fatal shooting investigations by locking county authorities out of the process while they wait for a state investigator to arrive.

Sen. Ronald Rice (D-Essex), one of the bill’s sponsors, said the measure was meant to eliminate the “perception” of conflicts of interest where county prosecutors are investigating police officers at agencies with whom they regularly work. “To me, it benefits everybody, including police officers,” said Rice, a former member of the Newark Police Department.

The proposed bill now goes before the full Senate for a vote.  As such, please continue to check this blog periodically for updates regarding the proposed bill given its potential impact on New Jersey Public Safety Officers.

Correction Officer Hit In Face With Feces Gets New Pension Appeal Hearing

Posted in Disability Retirement

Seal_of_New_Jersey_svg

As reported by NJ.com, a State Correction Officer will get another chance to prove he deserves a higher pension due to a fight with an inmate who threw a tray of feces into his face, the Appellate Division ruled.  George Garrett will get a new pension board hearing because an administrative law judge did not determine whether the tray of feces to the face was a “terrifying or horror-inducing event.’

Garrett was a Senior Correction Officer assigned to New Jersey State Prison in Trenton in February 2009 when he entered a cell because he believed an inmate was attempting suicide, the decision states.  When Garrett got inside, the inmate threw the tray, which also contained a liquid.  Garret fought with the inmate and backup officers were needed to subdue the situation.  Garrett, an 18-year officer at the time, was cleaned off at the prison, then went to a hospital and sought follow-up blood tests and received psychological counseling, which was provided by the New Jersey Department of Corrections.  He stopped working as an officer shortly after the incident due to emotional stress and filed for disability retirement months later. Garrett reported that he feared for his life during the incident because he could not see and he did not know if the inmate had a weapon.  Additionally, he suffered anxiety because he feared he might have been exposed to an infectious disease.

The Board of Trustees for his pension system, the Police and Firemen’s Retirement System, agreed he was disabled, but granted him an ordinary disability.  However, the Board found he did not experience a “terrifying or horror-inducing event.”  Garrett appealed, requesting an accidental disability, which has a higher benefit. Generally, ordinary disability is 40 percent of an employee’s final year’s salary, while accidental is 66 2/3 percent.

To determine if he should get the accidental retirement benefit, the Board send the case to the Office of Administrative Law (“OAL”).  To this end, the OAL needed to determine whether Garrett’s psychological disability was precipitated by a physical injury during the incident or whether the event was terrifying or horror-inducing to a reasonable person.  However, the judge assigned the case never analyzed Garrett’s confrontation with the inmate against case law to determine that question, the Appellate Division determined.  The judge did rule Garrett’s psychological disability was a pre-existing condition not caused by the fight in the cell and ruled the incident was minor, as were Garrett’s injuries, and they did not lead to any disabling condition.  Thereafter, the case went back to the Board.

Garrett appealed to the Appellate Division, which decided that the OAL needs to re-hear the case and finally answer the question.  As such, the Court stated, “[t]hus, we remand this matter…for the factual determination of whether a reasonable person having a tray of feces thrown in his or her face would find that event ‘a terrifying or horror-inducing event that involves actual or threatened death or serious injury.”

As a law firm specializing in helping individuals obtain accidental disability retirement benefits, this case illustrates the need for competent legal representation at all stages of a pension appeal, from submitting the initial application through formal hearings.  The unique facts and circumstances regarding a certain individual or the incident in question can have a drastic effect on whether an individual is entitled to accidental disability retirement benefits under the prevailing case law.  As such, any person considering filing an application for accidental disability retirement, feel free to contact our office as we are attorneys experienced in this field of law.

 

 

NJEA, Christie Administration Fight In Court Over Public Retiree Health Coverage

Posted in Retiree Benefits

Healthcare-Icon

As reported by NJ.com, a Superior Court judge is expected to decide whether to order members of the State’s teachers’ union in a dispute with Governor Chris Christie’s administration to give up its boycott of meetings setting health care benefits for public employees.  The administration took members of the New Jersey Education Association who sit on the School Employees’ Health Benefits Commission to court, arguing they are neglecting their responsibilities by skipping meetings in order to block the State from pushing through changes in health care coverage for retirees.

The change will save the State $74 million this year, according to court documents filed by the State.  The State also contends the teachers’ union’s absence is preventing the Commission from setting premium rates for next year.  The NJEA, which represents more that 200,000 members, has accused Christie of refusing to fill a vacancy set aside for union representatives to manipulate the vote.  The seat, which belongs to a representative of the AFL-CIO, has been vacant since August 2015.

The State seeks to require the members to commit to attend one or more meetings from September 8 to September 15.  If they do not comply, the State wants the Commission to set the rates and vote on the Medicare Advantage change without a quorum.  “If they are allowed to continue to remain truant from the meeting, they hold Medicare Advantage hostage and are in effect forcing a no vote without the other commissioners, without public deliberation, without anything,” said Jean Reilly, an assistant attorney general.  The attorney for the union said that members have not received adequate information about how the switch would affect retirees’ benefits.

Superior Court Judge Mary Jacobson suggested the legal spat could have been avoided if the State simply presented the Medicare Advantage proposal at one meeting and held the vote at another.

Please continue to check this blog periodically for updates pertaining to this case.

Correction Officers Union Wants Inmates Moved After Attack, Protest

Posted in Sick Leave Injury Benefits

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As report by NJ.com, officials from the State’s Corrections Officer’s union say prison administrators reneged on an agreement to relocate inmates who staged a protest following the return of an officer injured in an attack earlier this month.  The turmoil comes after an August 3 incident in which six correction officers were injured, said Brian Renshaw, the president of PBA Local 105, the State Corrections Officers’ Union.

Renshaw and other union members said that administrators at Northern State Prison had agreed to their request to move the inmates, but later discovered that was not the case.  Renshaw declined to identify the inmates or the officers involved, but said the August 3 scuffle started when one of his members attempted to clear a group of Muslim inmates who were conducting a prayer service in an unauthorized area.  An altercation ensued involving four inmates and six corrections officers were hospitalized with injuries ranging from wounds to their faces to swollen ligaments, he said.  It was unclear whether the inmates had sustained any injuries.

The inmates remains under investigation, according to a spokesman for the State Department of Corrections, who declined to comment further.  One of the officers involved was returning to his post after being medically cleared of his injuries when a group of inmates began staging a demonstration demanding the officer be reassigned elsewhere, Renshaw said.  The inmates refused food and disobeyed orders that they leave their cells as part of a group demonstration, according Renshaw and other officials from the union, who claim prison officials complied with the inmates’ request and sent the officer home.

Renshaw said that the move set a dangerous precedent.  “By allowing inmates to think they will dictate how we run these facilities or how we work certain areas, is going to put all of us-inmates, officers, staff-in harm’s way,” he said.  He said prison administrators also declined the union’s request to deploy officers from the prison’s Special Operations Group, a unit akin to a prison SWAT team, to maintain order.

Union members and their allies have been advocating for a bill that would restore pay and benefits to corrections officers injured on the job, who currently do not receive the same protection as most injured police officers in the State.  That measure (S596) us currently before the State’s Senate Budget and Appropriations Committee.

State Pension Guarantee Dead For November Ballot

Posted in Public Employment Pension Crisis

Pension Crisis

As reported by NJ.com, Senate President Stephen Sweeney rejected calling for a crucial vote Monday on a referendum asking voters to constitutionally guarantee state payments into the government worker pension fund, killing its chances of appearing on the November ballot and disappointing public labor unions.  The likelihood that Sweeney, once the prime champion of that amendment, would hold the vote had grown increasingly slim in recent weeks as the pension question became embroiled in an impasse over transportation funding.  Monday was the deadline for the State Senate to vote to place the referendum on the fall ballot.

If approved by voters, the amendment would have required the State to make increasing contributions into the pension system, which is short about $43.8 billion, to reverse decades of underfunding. The State would have needed to drum up an additional $550 to $800 million a year to make the payments.  Sweeney has maintained that the clash over the transportation funding cast doubt over the viability of the pension amendment.  “Without a resolution to the Transportation Trust Fund crisis-and a full accounting of how much future tax cuts will cost-it would have been too easy for opponents to argue that the State could not afford to pass the pension amendment,” he said in a statement Monday afternoon.  “The pension amendment would have been doomed to defeat, and that would have given carte blanche to current and future governors to slash pension payments.”  Sweeney also noted that with a simple majority the Legislature can still put the referendum on next year’s general election ballot at no loss to public workers because the State is already complying with the payments schedule.

But labor unions have made clear they won’t tolerate another “broken promise,” holding yet another protest outside the Statehouse calling on Sweeney to post the measure.  They also cautioned they would harness their votes, manpower, and money come June, when voters are expected to have a crowded pool of Democratic primary candidates for governor, including Sweeney, to choose from.

The pension amendment was expected to spark an expensive summer fight between labor unions, who say the constitutional amendment is the only way to ensure the bill gets paid, and business groups that warned it would spur massive spending cuts or tax hikes.  For his part, Governor Chris Christie argued it would foist a $3 billion tax increase on the people of New Jersey.  Sweeney has argued the State budget could absorb the increased pension costs with modest, 3 percent, growth in State revenues.

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