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3rd Circuit Rules that Citizens Have The Right to Film Law Enforcement Officers

Posted in Uncategorized

As reported in the New Jersey Law Journal, in the case entitled Fields v. City of Philadelphia, the U.S. Court of Appeals for the Third Circuit recently joined five other circuits in ruling that the First Amendment protects individuals’ rights to film police officers performing their official duties. The Third Circuit decision involved two civil rights suits by observers to police activity. The first involved an observer who was physically restrained from filming the arrest of an anti-fracking protestor. The second involved a university student who was arrested for trying to film police officers breaking up a house party. Each civil rights suit claimed the officers wrongfully interfered with the attempts to film.

The court unanimously agreed that each plaintiff possessed a First Amendment right to record the police and, that that right was violated in each instance.  The court was careful to say, however, that the First Amendment right to record government activity in public was subject to reasonable time, place and manner restrictions. It pointed out that one plaintiff videographer had been recording from across the street, and the other, “without getting in the officers’ way,” and it cautioned that recording that interferes with police activity, such as recording dealings with confidential informants, might not be protected.

All law enforcement officers must be cognizant of the unbroken string of circuit decisions, now including New Jersey, that recognize the First Amendment right to record official police activity. In addition to the advent of body cameras and dashboard cameras, citizens have the right (while not absolute) to film officers and “record” their actions while acting in the line of duty.

 

Police Dash Cam Footage and Use-of-Force Reports Must be Turned Over Under the New Jersey Open Public Records Act

Posted in Public Employment Labor Law

This past week the New Jersey Supreme Court ruled that dashboard recordings and use-of-force reports generated in connection with the fatal police shooting of a man who led officers on a high speed chase through several North Jersey towns are public records and thus subject to disclosure under the New Jersey Open Public Records Act.  The ruling by the Court was uninaimous in the case that was initiated by a North Jersey Media Outlet.

However notwithstanding the foregoing, the Court also ruled that reports involving an ongoing investigation and witness statements concerning the same were exempt from OPRA production and should thus remain confidential.  The decision means that the Township of Lyndhurst will be forced to turn over the use-of-force reports which will disclose the identity of the two officers that were involved in the shooting.

Justice Rabner writing the opinion for the Court stated “We conclude that the danger to an ongoing investigation would typically weigh against the disclosure of detailed witness statements and investigative reports while the investigation is underway.  Footage captured by dashboard cameras, however, presents less of a problem.”

The New Jersey Attorney General’s Office argued against the disclosure of the information while many public interest groups such as the American Civil Liberties Union argued for the cause.

The mandatory disclosure of documents and recordings such as those in this case is now the current state of the law.  One would believe, taking this holding to its logical conclusion, that in addition to dash cam footage, body camera footage and other reports will be accessible once an investigation is closed.  This is an important decision that all public safety officers must be aware of moving forward.,

 

New Jersey State Senate Approves Bill by 31-0 Margin to Pay State Workers Frozen Out of Their Jobs During Governmental Shutdown

Posted in Uncategorized

As reported in the NJ Observer, public employees frozen out of their jobs during the three-day government shutdown would receive back pay under a bill that passed the state Senate in a 31-0 vote Thursday.

Gov. Chris Christie has said he would sign the back-pay legislation, should it pass the Assembly. The bill was introduced in that house later on Thursday and will see a vote before the end of July, Assembly Speaker Vincent Prieto said at a rally with workers.

After initially saying state workers shouldn’t count on back pay, Christie pledged to sign the bill Wednesday if it’s sent to his desk. Senate President Steve Sweeney said Thursday that Christie agreed to pay furloughed workers after a conversation they had.

Nearly 35,000 state workers were furloughed when a budget dispute shut down state government this month, closing courts, state parks and beaches and government offices. The shutdown lasted from Saturday, July 1, through the early hours of Tuesday, July 4. Most workers were affected for only one day, a Monday.

The Senate bill (S-3422) added language to the fiscal 2018 budget to guarantee workers “promptly receive their full salary or wage payment” for the duration of the shutdown, according to a draft of the legislation. The bill required an emergency vote Thursday since it was walked onto the floor without a committee hearing. Still, it got wide bipartisan support and no opposition.

New Jersey State Senate to Vote on Supplemental Appropriations Bill to Pay Public Employees That Were Involuntarily Furloughed

Posted in Uncategorized

On Thursday, July 13, 2017, The New Jersey State Senate will vote on a supplemental appropriations bill to pay workers who were unable to work during the State governmental shutdown that was imposed over the last July 4th weekend.  This bill would amend the 2018 budget appropriations bill to ensure that those workers that were involuntarily furloughed be paid for the time that they were disallowed from working through no fault of their own.

Many State Public Safety Officers were forced off from work, some being deemed essential employees while others were not.  In addition, many public safety officers that had scheduled paid time off during the involuntary furlough such as vacation or personal days inexplicably had this time “returned” to their banks and were docked pay instead.  The reasoning behind these actions are bewildering to say the least.  We will update our readers tomorrow in regard to the supplemental appropriations bill as we recognize this is an important issue to State Public Safety Officers.

State Correction Officers Win Fight Over Sick Leave Pay as Christie Signs New Bill into Law

Posted in Public Employment Labor Law, Sick Leave Injury Benefits

As reported by Trentonian.com, following the publicity of numerous corrections officers beaten at work, Gov. Chris Christie has agreed to provide sick leave pay to prison workers assaulted by inmates.

Christie signed a bill into law on Monday that will make corrections, juvenile, parole and probation officers whole — albeit on a limited basis — if they were attacked by an inmate while on the job and suffered serious injuries.

Before the governor took action, corrections officers hurt during an inmate attack or riot had to wait until workers’ compensation kicked in to receive any pay as they are not entitled to salary while they are out of work. It could sometimes take several months before an injured officer received any compensation.

“These officers assume a significant deal of risk every day on the job, yet they have been excluded from provisions that make compensation available to other public safety officers,” Assemblyman Dan Benson (D-Mercer/Middlesex), a co-sponsor of the bill, said in a statement. “This new law is about taking action to eliminate that inconsistency so that people who put their lives on the line aren’t left helpless in the event of an attack.”

The corrections officers union has been on a crusade the past two years to highlight the need for sick pay protections for officers by releasing photos of injured employees and documenting attacks.

“Our juvenile justice officers risk limb and life every day while maintaining the peace in dangerous correctional facilities,” PBA Local 105 President Brian Renshaw said last month after highlighting another vicious attack at the Juvenile Medium Security Facility in Fieldsboro.

Christie conditionally vetoed the sick leave bill in May to place a time limit on how long an employee can received benefits.

Christie amended the bill to limit the supplemental compensation for up to six months for “serious” injuries. The initial pay before the workers’ compensation kicks in will also be limited to six months.

The new legislation will continue to pay officers injured at work as a result of an inmate attack until workers’ compensation is received. Then, the employees will be paid the difference of what workers’ compensation doesn’t cover from their regular salary until they can return to work.

In addition to corrections officers, the bill will cover Human Services police officers, state conservation officers, state park police officers, campus police officers, medical security officers, and civilian jail employees in relation injuries sustained from assaults or apprehensions.

“As it is, a public safety officer who gets attacked on the job essentially is punished for something he or she didn’t do,” Assemblywoman Liz Muoio (D-Mercer/Hunterdon) said in a statement. “By ensuring that these officers have financial stability after an attack, we can make it clear that New Jersey supports these vital professions and remove a deterrent to entering or staying in that line of work.”

The bill will take effect in October.

Paid sick leave for correction officers injured on the job had previously been the law of the State up until July of 2011, when they were eliminated by the State legislature. These “SLI” benefits allowed State Correction Officers to receive their full pay for a period of one year following an injury that occurred on duty. While the particulars of the new law remain unclear, based on the Trentonian’s reporting, the new version of the law appears to limit the type of incidents and injuries that qualify for sick leave pay to those stemming from an attack of an officer. Officers will also only be eligible for six months of sick leave payment, rather than the one year limit imposed by the prior conception of the law.

We previously discussed the specifics of SLI benefits as well as common reasons for denial under the predecessor law in a series of blog posts back in June and July of 2008.

Christie Banking that Lottery will Save Pensions

Posted in Public Employment Pension Crisis

Lotto Pensions

As reported by Philly.com, New Jersey Gov. Chris Christie is betting that the lottery is the ticket to shoring up one of the state’s most vexing money problems: ever-growing obligations to the pensions for public employees.

The idea of linking the lottery to pensions has been around for years, but legislation backed by the Republican governor was introduced this week to make the lottery the property of the pension system for 30 years.

Analysts and advocates say the deal – an arrangement that would be unique to New Jersey – probably won’t hurt, but there’s not a consensus on how much it might help.

 “Where it does provide tremendous relief is optically,” said Lisa Washburn, managing director at Municipal Market Analytics, a firm that analyzes government bonds. “The numbers look better on a whole lot of levels. Whether or not they’re truly better is questionable.”

Since Christie took office in 2010, the state has contributed more than $6 billion to retirement funds to which past governors have often skimped on payments – or skipped them entirely. Still, the gap between the money expected to be in the funds and that which is owed to retirees has only grown. By any measure, it’s among the biggest unfunded pension liabilities in the country.

Trying to solve the problem makes it harder for officials to expand other government services or make major tax cuts.

State Sen. Paul Sarlo, a Democrat sponsoring the legislation, called it an “intriguing” proposal that deserves to be debated. He said there’s a long-term benefit under the administration’s projections. “The next governor will have the huge benefit after five years of being able to reduce the pension payment,” he said.

Here’s how the measure that will now be debated by the state’s Democratic-controlled Legislature would work:

THE CLEAR BENEFIT – AND COST

There’s a consensus that the lottery deal would give the state a guaranteed stream of money coming in to make a portion of its pension contributions.

That income – a projected average of more than $1 billion annually – is a bit more than one-fifth of the $5 billion the state would have to annually contribute to fully fund the pension funds.

Christie’s budget proposal for the fiscal year that starts July 1 calls for about $2.5 billion in pension contributions – which would be a record.

But the lottery revenue isn’t found money: It is currently used to help pay for institutions including the state’s universities, psychiatric hospitals and a home for disabled soldiers. The state would still need to pay for those programs; officials say the move would not increase costs for taxpayers.

The state hired a private company in 2013 to handle lottery sales and marketing, but the firm has missed its revenue targets.

___

ADDRESSING THE UNFUNDED LIABILITY

The state treasurer’s office is promoting a second benefit of the lottery deal. This is the part Washburn and others are skeptical about.

Christie’s administration says the value of the lottery, assessed at $13.5 billion, could be used to offset the unfunded liabilities in the pension funds.

The administration says that would immediately shrink the gap – which it pegs at $49 billion, but some other calculations say could be as high as $136 billion.

Using the state’s evaluation of those unfunded liabilities of $49 billion, that would shrink the gap significantly and immediately. Under accounting rules, it would mean the state could recalculate how much it needs to pay into the fund to meet its obligations. That could mean the state would need to contribute less each year. A better pension position could result in a better bond rating for the state, allowing it to get more favorable borrowing rates.

Hetty Rosenstein, the New Jersey director of Communications Workers of America, the biggest union of state government workers, said she isn’t taking a position on the idea because she doubts it would reduce the liability anywhere but on paper. “At the end of the day, you can’t pay out pieces of the lottery,” she said.

Tom Byrne is a former chairman of the state Democratic State Committee who currently heads the Council on Investment, which oversees investment of pension funds. He says that the move could be helpful, despite the doubts of union leaders.

“Their brows might be a little furrowed,” he said. “They’re saying, ‘It’s not cash, so is this real?’ From an accounting standpoint, it is.”

Judge Halts Christie’s Atlantic City Police Layoffs

Posted in Contract Negotiations, Public Employment Labor Law

ACPD

As reported by Philly.com, a Superior Court judge has temporarily blocked the State of New Jersey from unilaterally imposing layoffs and schedule changes on the Atlantic City Police Department.

The ruling is the second time Judge Julio Mendez has checked the vast powers granted the Christie administration under the Municipal Stabilization and Recovery Act, which went into force in November.

The judge previously prevented the state from laying off half the fire department, but allowed other changes, including a switch to a 24-hour work schedule for firefighters, to go ahead while a lawsuit challenging the state’s powers goes forward.

The 59-page decision, released Tuesday, also blocks the state’s plan to eliminate terminal leave payouts under $15,000 for police officers, but allows the state to go forward with plans to cut payouts — the so-called “boat payments” that officers get when they leave, based on unused sick and vacation time — that are more than $15,000.

The state is also free to go ahead with unilateral changes in salary, health insurance, overtime, longevity, and educational incentive pay and worker compensation.

The judge reiterated his opinion that the takeover law, which allows the state to unilaterally change union contracts, provides “broad but not unlimited authority.”

He said he allowed changes to go forward that involve financial issues, but drew the line at issues that dealt with ensuring public safety.

Matt Rogers, head of the police union, Policemen’s Benevolent Association Local 24, said the order blocks an estimated 20 layoffs, which would have lowered the number of officers to 250, and prevents the state from switching schedules from a 10-hour to a 12-hour day. The judge accepted arguments by the union that the police chief should retain day-to-day control over operations. Police Chief Henry White testified that the 12-hour shifts would compromise public safety.

The department has seen drastic cuts. It was down from a peak of 423 officers in 2001 to 275 full and 75 Class 2 officers in 2017. With recent retirements, the current force is 269.

Rogers said he was disappointed that the judge did not halt all the unilateral changes the state sought to impose under the takeover law, which the union and the fire department union will continue to challenge in court.

“We’re not angry at anyone but the man responsible,” Rogers said. “It’s not the city, the mayor, or the City Council. It’s the governor and his appointees. We tried our best to negotiate a deal and it was pulled away from us.”

The state, after negotiations with the union broke down, ordered White to fire 27 employees to reduce the department to 250 members, and he was given no criteria but to “fire the problem employees,” the judge’s decision noted. White refused, “considering the directives arbitrary.”

The ruling comes at a fraught time in the resort, which has seen three recent homicides in the Marina district. The Police Department is set to unveil a surveillance system that will allow officers to keep watch over the Boardwalk and other areas.

The state argued the changes would save $19 million for the cash-strapped resort town. The two parties met 12 times in negotiations, but the judge noted that “mutual bravado …  led to the breakdown in negotiations.” He urged them to keep negotiating and noted that both sides were close to a resolution that included early retirement incentives.

“Tragically, negotiations collapsed,” Mendez wrote. “The bottom line is that both sides’ gamesmanship and recalcitrance is a detriment to reach important common ground.”

The state called the police union position a “money grab,” and the plaintiffs described the state’s position as a “nuclear bomb” with no concern for public safety, the judge noted.

“The court acknowledges that the state’s proposed changes to plaintiffs’ [contracts] are harsh,” Mendez wrote. The contracts, he said, “reflected the city’s economic prosperity and properly rewarded plaintiffs for the important work they perform. Now, Atlantic City is financially depressed and regrettably, everyone must share in the burden to stabilize the city.”

He also ruled that the state’s proposal to do away with terminal leave of up to $15,000 for accumulated sick leave upon retirement is “unreasonable and inconsistent with the requirements of the Recovery Act.”

Lisa Ryan, a spokeswoman for the state’s designee in Atlantic City, said in an email that the decision “reaffirms our authority under the Municipal Stabilization and Recovery Act and allows us to proceed with reductions to police salaries and benefits, which are critical to stabilizing Atlantic City’s finances. It is also the latest sign that the state is holding the line on expenses and producing quantifiable results, including the first municipal property tax decrease in the city in a decade. While we respectfully disagree with parts of the decision, overall the court found that the state has wide latitude to intervene in the city in order to protect the public’s welfare, health and safety.”

Police Call Layoffs a Union-Busting Tactic

Posted in Pay and Overtime, Public Employment Labor Law

Bergen County PD

As reported by northjersey.com, members of the Bergen County Bureau of Police Services police union on Monday protested more than two dozen impending layoffs and about a dozen demotions that, the union head said, is an attempt to bust the 75-officer organization.

But Bergen County Sheriff Michael Saudino, the target of the union’s ire, said there’s another reason for the staffing cuts — namely, his need for more sheriff’s officers in order to satisfy a state-mandated increase in courthouse security.

Det. Chris Weston, president of PBA Local 49, delivered an address at the bureau’s Paramus headquarters Monday afternoon that again accused county officials, including Saudino and County Executive James J. Tedesco III, of breaking promises they made two years ago, when they said bureau officers were not facing layoffs.

“We had believed that our leadership had made a promise that we could count on. And based on their promise … people have made life choices: Families have decided to have children, to buy their first house,” Weston said. “This course of action by county politicians was about one thing, and one thing only: getting rid of PBA 49 and our contract.”

Weston maintains that the layoffs are political payback for grievances the union filed over its contract. And he asked members to plan to attend Wednesday’s meeting of the Bergen County Freeholder Board to further protest Saudino’s layoff plan, which will cut 26 bureau officers and demote 11 more.

 But Saudino, who declined to comment on the union’s Monday statements, said in a Friday interview that his choice is stark: He needs about three dozen more sheriff’s officers to meet state requirements regarding courthouse security and bail reform, but can’t hire more with a newly imposed 2 percent cap on his budget. The unfunded mandates, he said, have driven his decision.

“I don’t want anyone to lose a job,” Saudino said. “I have a solid reputation for working to help cops. This is not something I enjoy … but what are my other solutions? I have no options here. I have no options.”

It’s the latest volley in the ongoing clash between the union and Saudino, who took control of the bureau — which was formerly called the Bergen County Police Department — after its 2015 merger with the Bergen County Sheriff’s Office. The Police Department, which had a separate chain of command, has continued to maintain its own union, separate from the sheriff’s officers.

Tedesco said in an emailed statement, sent by his spokesperson, that he’d been assured by Saudino that any of the 56 bureau officers who received notices of impending layoff or demotion could transfer to the Sheriff’s Office.

Saudino has confirmed that bureau officers can join his office if they choose. But the bureau’s union has balked, saying such a move would mean pay cuts for its officers.

When the two agencies merged in January 2015, officials touted it as a cost-saving measure that would reduce redundancies.

Though the original agreement, approved by the Freeholder Board and signed by Tedesco, said the bureau would eventually be reduced to 49 officers, it explicitly said the reduction would be by attrition only.

But an April 2017 amendment to the agreement changed the document’s wording and included the phrase “attrition to the extent practicable” — thus opening the door to possible layoffs.

Weston has said the bureau’s officers can be used for the court security Saudino says he needs, provided the assignment judge condones it. Saudino said neither he nor the Sheriff’s Office attorneys believe that to be true.

Furthermore, such a move would cause “mutiny” in his ranks, the sheriff said.

“How do I have a county police officer and a sheriff’s officer in the same courtroom when one is making $25,000 more doing the same job? That is a union nightmare. I will be handed down all kinds of grievances — and they’re probably legitimate grievances,” Saudino said. “I want no part of that. I cannot have that.”

The union has also accused Saudino of refusing to meet with PBA representatives. Saudino contends the union tried to ambush him by recruiting other PBAs to attend what the sheriff thought was to be a private meeting, and he has refused to meet since.

Atlantic City Firefighters Won’t Face Layoffs — for now

Posted in Public Employment Labor Law

AC Fire Truck

As reported by Philly.com, a New Jersey judge temporarily blocked the state Friday from laying off firefighters in Atlantic City, but ruled that their work schedules, salaries, and overtime can be changed by former U.S. Sen. Jeffrey S. Chiesa (R., N.J.), who is directing the state takeover of Atlantic City.

The firefighters union had sued to stop layoffs and changes to its contract.

In his ruling, Superior Court Judge Julio Mendez said the state’s proposal to cut 100 firefighters — reducing the total to 125 — would compromise public safety. But Mendez concluded a smaller number of layoffs would be justified, given the city’s “serious economic distress.”

“A reduction to 180 would be more than reasonable,” he wrote.

The state takeover law, the Municipal Stabilization and Recovery Act, gives Trenton broad powers in Atlantic City — including amending contracts with public employees — to try to stabilize the city’s finances.

Mendez said that Chiesa, under that act, has “broad, extensive, and unilateral powers in order to achieve financial stability for Atlantic City” — but that he can’t base decisions only on cost savings, particularly when it comes to public safety.

Mendez said that before the litigation, Chiesa had offered few reasons as to why Atlantic City should have 125 firefighters, as opposed to another number. The union had argued having that fewer firefighters would leave the city undermanned.

Atlantic City’s full-time population is nearly 40,000, but it can swell to 165,000 with visitors and commuters.

In a statement Friday, Bill Dilorenzo, president of International Association of Fire Fighters Local 198, slammed the idea of layoffs.

“If you’re trying to increase the number of visitors to Atlantic City and improve its perception as a family destination, why in the world would you make these types of drastic cuts to public safety?” he said.

The state applauded Mendez’s ruling.

“We appreciate Judge Mendez’s thoughtful decision and are very pleased that our authority under the Municipal Stabilization and Recovery Act was recognized,” said Lisa Ryan, spokeswoman for the state Department of Community Affairs. “We look forward to continuing to have discussions with the city’s firefighters, which is something we’ve wanted to do all along.”

She added: “In order for Fire Department savings to be realized, we must act now, because further delays imperil our ability to achieve a balanced city budget without requiring greater sacrifices by Atlantic City taxpayers, many of whom are homeowners and small-business owners who are already overburdened by property taxes.”

In his ruling, Mendez bluntly described the tension between the state and Atlantic City officials.

“The tenor of this case has so far been hostile at best,” Mendez wrote, “with the parties utilizing terms such as ‘greedy’ and phrases such as ‘robbing the candy store’ to describe one another’s actions.”

Indeed, at a news conference early Friday afternoon, Mayor Don Guardian found another word to describe Trenton officials: “Snakes.”

“This is a fight between the governor of this state and the people of this state,” Guardian said. He added: “Let’s find the money we need.”

NJ Supreme Court Hears Argument Over Government Imposed Salary Freeze

Posted in Contract Negotiations, Pay and Overtime

Supreme Court

 

As reported by N.J.com, public employee unions and government officials clashed Monday in a case before the state Supreme Court that could determine whether workers across New Jersey will get pay raises.

The state’s highest court heard oral arguments over the whether “step” increases — increases in pay when workers reach annual milestones in years of service — should be granted after a contract has expired.

Atlantic County, Bridgewater Township and the Public Employment Relations Commission asked the court to reverse an appellate court ruling, which found PERC overstepped its authority when it upended a four-decades-old doctrine that says step increases outlive the term of a contract.

The Fraternal Order of Police Lodge 34 and Policemen’s Benevolent Association Local 77 charged Atlantic County with unfair labor practices, alleging the county violated that “dynamic status quo” doctrine during contract negotiations and arbitration.

Police officers who were not yet at the top of the pay scale were due 5 percent or 6 percent step increases.

PERC dismissed the unions’ charges, rejecting a policy it said no longer reflected the economic landscape or the challenges local governments face in complying with state-imposed 2 percent caps on tax levy hikes.

The appellate court said, “Concerns regarding budgets are not a primary consideration when the agency safeguards the rights of public employees,” and that “PERC’s abandonment of the dynamic status quo doctrine was action outside the scope of its legislative mandate.”

That panel also slapped PERC in a dispute out of Bridgewater in which it deemed automatic salary increases during a lapse in contracts could no longer be negotiated or arbitrated.

The dynamic status quo doctrine has been applied to step increases since 1975. PERC said it created a level playing field for negotiations.

Now, said David Rapuano, who argued against the automatic step increases, the doctrine has an effect opposite to the one intended: contract negotiations are more difficult and unions have a disincentive to quickly settle labor disputes.

A passage in the contracts that reads “All provisions of this agreement will continue in effect until a successor agreement is negotiated,” proved a sticking point for the justices.

Rapuano said PERC didn’t recognize that any language in the contracts that would require increment payments after they expired.

Justices Barry Albin and Jaynee LaVecchia questioned PERC’s decision to apply the policy reversal to contracts that were already negotiated and implemented.

PERC’s decision altered the playing ground of negotiations “suddenly and unexpectedly after 40 years,” LaVecchia said. “Doesn’t that deserve prospective notice to parties?”

Rapuano argued PERC’s reversal did not upset any existing contracts, rather it changed the period after a contract runs out.

In effect, LaVecchia asked, hasn’t “PERC has become a player, a thumb on the scale” in contract negotiations?

Rapuano disagreed.

“Actually no. I think it finally took its hand off the negotiations. I think the dynamic status quo was the thumb.”

State employees lodged a similar complaint against Gov. Chris Christie’s administration, which similarly froze salaries for tens of thousands of workers whose contracts expired.

A union win in this case would affect every state and local public employee in New Jersey, said Ira Mintz, who represented the police unions before the court.

Patrick Colligan, president of the state Policemen’s Benevolent Association, said “If (the justices) follow all the case law and all the labor law and all the PERC decisions from the past 40 years, they will make a decision that is favorable to us,” he said.

 

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