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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.

Deadline For NJ Senate To Take Action On Public Worker Pension Amendment

Posted in Public Employment Pension Crisis

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As reported by NJ.com, Senate leaders have spent weeks trying to build a supermajority to override Governor Chris Christie’s opposition to a Transportation Trust Fund tax package, a plan that also holds the fate of a voter referendum on public worker pensions.  And for the last week, they’ve said they’re within a vote or two of clinching the veto-proof majority.  However, Monday is the final deadline for the state Senate to act to place the referendum on the November ballot.

As recently as Thursday, Senate President Stephen Sweeney signaled that putting the referendum to voters this fall was a long shot, because the uncertainty of the Transportation Trust Fund fix posed a risk to funding and passing the pension amendment, which would require the State to gradually increase payments into the public pension system.  Public labor unions have objected to Sweeney’s refusal to put the referendum to a vote.  It already passed in the Assembly.  Workers rallied out the Statehouse and outside the Senate President’s South Jersey legislative office last week.  They booed when he adjourned last Monday’s Senate session without posting the legislation.

“The fact that Senate President Sweeney-at the 11th hour-will not post it for a vote is the exact reason we’re demanding a constitutional amendment,” Hetty Rosenstein, state director of the Communications Workers of America, said last week.  “There is no reason the pension should be a casualty of the Legislature’s inability to secure votes for the Transportation Trust Fund.  But every time there is some other political or economic issue, the pension is traded for it.”

The amendment was sought by labor leaders and pushed by Sweeney to combat years of underfunding and to replace a guarantee workers thought they’d secured under a 2011 pension law that was later invalidated by the State Supreme Court.  The pension, fund, which supports the retirement of 800,000 active and retired workers, is short $43.8 billion what it would cost to pay for future benefits.

Please continue to check this blog periodically to ascertain updates regarding any action and/or inaction regarding the public worker pension amendment.

N.J. To Slash Pension Investments In Hedge Funds That Were Criticized By Unions

Posted in Public Employment Pension Crisis

As reported by nj.com, the State Investment Council on Wednesday agreed to slash New Jersey’s investments of public-sector pension dollars in hedge funds by more than half, responding to labor union concerns that the alternative investments are not paying off.

At the council’s last meeting in May, union representatives called for drastic reduction in the pension system’s hedge fund stake, from 12.5 percent to 4 percent, but the move failed on a tie vote.  Council members appointed by Governor Chris Christie warned such a change would be imprudent without fully vetting its impact on the total investment strategy.  The compromise plan will see the investments cut back to 6 percent, and reduce the investment in alternatives from abut one-third to a quarter.

“This is a good first step to significantly reduce hedge fund exposure,” Adam Liebtag, vice chairman of the council and a representative of the AFL-CIO, said in a statement.  “The new plan will reduce fees by $120 million and help put the pension plan on stronger footing.”  Liebtag wanted to shift that money to standard investments such as cash, stocks, and bonds.

Alternative investments, and hedge funds specifically, have been a matter of disagreement between union leaders who say the assets don’t pull their weight or warrant the high fees charged by managers, and investment representatives, who argue they provide a safety net in market downturns.  The fund paid out $400 million in management fees and $328.4 million in performance bonuses last year for its alternative investments, which make up about a third of the total portfolio.

The pension fund was valued at about $72 billion at the end of May.  The revised strategy will reduce the number of hedge funds from 40 to fewer than 25 and will adjust the management fee and bonus structure, according to a division report.  The change “seeks to address the concerns…in that it reduces the overall allocation to hedge funds while maintaining a reasonable level of diversification and downside protection,” the report said.

Panel Assembles in Philadelphia to Discuss Possible Solutions to Nationwide Public Employment Pension Crisis

Posted in Public Employment Pension Crisis

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On Tuesday, various state officials gathered just a few blocks from the Democratic National Convention to discuss the pension problems being faced by states across the country. Among the panelists was New Jersey Senate President Stephen Sweeney (D-Gloucester). Read about some of the interesting solutions proposed at: http://www.njspotlight.com/stories/16/07/26/how-can-new-jersey-other-states-rescue-underfunded-pension-systems/

 

 

NJ Republican Seeks to Reduce Government Health Care Costs in Exchange for Constitutional Amendment “Obligating” State Pension Payment

Posted in Uncategorized

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While Chapter 78 increased the average healthcare contributions required of public employees based upon a sliding percentage of the cost of coverage, if Assemblyman Declan O’Scanlon’s proposal is implemented, public workers can expect to pay higher out-of-pocket costs toward coverage provided under a lower-level plan. In exchange, the Assemblyman’s plan provides for a constitutional amendment obligating the state to contribute annually to the pension system. The obligation proposed by O’Scanlon’s plan, however, is qualified.

As reported by NJ.com, Republican state lawmaker has introduced legislation to pay for billions of dollars in upcoming public pension bills by reducing state and local health care spending on government workers.

Assemblyman Declan O’Scanlon’s legislation, introduced Monday, revives a dormant plan proposed by the governor’s special pension commission last year to overhaul public employees’ benefits and save their employers billions of dollars a year.  While it would require workers to pick up more of the cost for their heath care, they would be rewarded with a constitutional amendment obligating the state to contribute to the public pension system annually — unless tax collections are in trouble.

O’Scanlon (R-Monmouth) unveiled the sweeping legislation Tuesday, just one day after an Assembly committee voted in favor of a Democratic plan to grant workers that constitutional protection.  However, O’Scanlon, who has railed against that proposal as dangerous and flawed, said New Jersey can’t afford to make that kind of binding commitment without extracting significant reforms.  “To choose not to do this is to choose one of two deaths: either massive reductions in services or massive tax increases, or both,” he told NJ Advance Media on Tuesday.

Gov. Chris Christie’s pension commission recommended as much when it released a highly anticipated report last year to drastically reduce the cost of public employee pension and health care costs.  After its release, Christie tried to sell the plan at public events across the state. But even as the pension commission issued a more detailed follow-up in February, the proposals didn’t get off the ground.

O’Scanlon said he’s turned the commission’s recommendations into legislation, which he described as a potential watershed in the pension system’s history.  The state portion of the public pension system is $43.8 billion short of what it would cost to pay for future benefits.  The state is contributing $1.3 billion into the pension system this year and $3.53 billion for health benefits. Absent reforms, the pension payment is on track to reach $5.48 billion in 2022 and health benefits, $5.43 billion by 2022.  O’Scanlon’s proposal would save the state $2.2 billion a year, including $1.42 billion through lower-cost benefits and $810 million by shifting the cost of retired teachers’ benefits to their employers (the commission assumes that will be offset by benefit changes at the local level).

Broadly, active employees would be moved onto health care plans equivalent to gold plans under the Affordable Care Act, and retirees would be given retiree reimbursement accounts to cover the cost of purchasing coverage through a private exchange.  Active employees would pay lower annual premiums, because the total cost of the plan is lower, but higher out-of-pocket expenses.  For example, a single worker making $33,000 and enrolled in the NJ Direct 15 plan would pay about $800 more a year — the difference between a $1,043 annual premium and $435 out of pocket and a $711 premium and $1,561 out of pocket.  A worker making $72,000 and enrolled in the family plan is paying a $6,404 premium and $1,213 out of pocket, but after reforms could pay a $4,366 premium and $4,356 out of pocket, an extra $1,100 a year, according to the commission’s report.

The assemblyman said his proposal contemplates rebates to help employees offset some of their new expenses.  “I want to minimize that impact,” he said. “These are not particularly painful reforms. They’re going from platinum plus plans to gold or gold plus plans. It still leaves public workers with wonderful health benefits. Better health benefits certainly than the average person in the private sector.”

For early and Medicare-eligible retirees, the public employer would cover the cost of purchasing the equivalent of a gold level plan or gold level equivalent supplemental insurance, respectively. Early retirees, who pay no premium, will likely see jumps in their out of pocket costs. But the employer would cover “average” out of pocket costs for those on Medicare.

The constitutional protection workers would receive in exchange for their troubles is not so bulletproof as the one envisioned by Democrats and public labor groups, which they say is needed to restore workers’ trust in state lawmakers and spare the pension system from customary underfunding.

Opponents of that amendment, including O’Scanlon, say it would create a “super priority” likely to force severe spending cuts or tax hikes if the state economy doesn’t drum up enough cash to cover the payments.  O’Scanlon’s includes a safeguard in the event of a fiscal emergency, like those that prompted Christie to contribute less than he’s promised. But if tax collections are even just a little better than expected, the pension gets its regular contribution plus half of the improvement, he said.  “So we are in this together, on the downside and the upside,” he said.

Hetty Rosenstein, state director of the Communications Workers of America, said O’Scanlon’s “safety valve,” which kicks in when revenues fall at least 1.5 percent below projections, would “probably allow the Christie administration to never make the pension payment anyway, since that would merely allow (lawmakers) to do what they have done for two decades — that is, whenever they need any cut to eliminate the pension payment first.”

While the assemblyman’s bills do not alter pension benefits, he said none of the reforms would prevent future reforms.

To Move or Not To Move…That is the Question. A Practical Examination of the Decisions that Must be Made by a Law Enforcement Union Following the Expiration of a Collective Bargaining Agreement

Posted in Uncategorized

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Most recently, our office has received numerous inquiries from various law enforcement unions throughout the state regarding the effect of the Appellate Division’s decision in two (2) seminal cases upon contractually mandated step movement on a salary guide once a collective negotiations agreement expires. The two cases that are at issue are entitled In the Matter of County of Atlantic and PBA Local 243 et al., Docket Number: A-2477-13T4, and In the Matter of Township of Bridgewater and PBA Local 174, Docket Number: A-0107-14T1. The cases were consolidated before the Appellate Court and a single decision was issued on March 9, 2016.

 For the reader of this post to have an understanding of this discussion, it is necessary to briefly review the facts of the Appellate Division decision as it relates to the landscape of collective negotiations under the two percent (2%) salary cap. First, both Atlantic County and Bridgewater revolve around a county and municipality making the conscious decision that, at the expiration of the collective negotiations agreements between the parties, the governmental entity stopped paying increments to the members of the negotiations units on their anniversary dates until a new successive negotiations agreement was reached. The Unions responded by filing both contractual grievances as well as unfair labor practice charges against the governmental entities. PERC restrained arbitration and refused to issue an unfair labor practice charge, thereby reversing thirty (30) years of legal precedence by stating that the legal theory that allowed step movement to continue after the expiration of a contract, the “dynamic status quo,” was no longer operable due to the two percent (2%) salary cap that was put in place by the State legislature.

Instead, in their decisions PERC adopted what it called the “static status quo,” which, in essence, allowed governmental entities to freeze step movement at the expiration of the collective negotiations agreements. On appeal, the Appellate Division reversed PERC and stated that employees must move on the salary guide on their designated anniversary dates after the expiration of the collective negotiations agreement and receive their increment payments. The governmental entities have filed for certification to the New Jersey Supreme Court and the Court has not yet made a decision as to whether it will take the case or not. However, the current state of the law today dictates that governmental entities do not have the unilateral authority to freeze movement on a salary guide at the time that a collective negotiations agreement expires. 

Notwithstanding the foregoing, the limitation on the amount of an across the board monetary increase that the members of a law enforcement union may receive under what is commonly referred to as the two (2%) percent cap is still applicable despite the Atlantic County and Bridgewater decision. Taking this one step further, under the New Milford and Ramsey decisions issued by PERC, the monetary increases that a member receives when they move on the salary guide following the expiration of a collective negotiations agreement “counts against” the money that is allotted under the two percent (2%) cap. Thus, unions are often placed in a very precarious situation if their members continue to move on the salary guide following the expiration of a collective negotiations agreement.

To provide you with an example of such a situation, prior to the “dynamic status quo” doctrine being suspended by PERC, our office negotiated a collective negotiations agreement with a county governmental entity and the members of the negotiations unit continued to move on the salary guide subsequent to the expiration of the collective negotiations agreement. As a result of the cost of the movement on the salary guide for the first year following the expiration of the agreement, the cost of the movement alone consumed two (2) years’ worth of the money that was allotted under the two percent (2%) salary cap. Based on this fact, the negotiations unit requested that the County freeze their members from moving on the salary guide while they were still in negotiations to allow them to have some flexibility in making decisions on how to continue negotiations under the two percent (2%) salary cap.

Therefore, despite the fact that Atlantic County and Bridgewater now mandate that members of a collective negotiations unit continue to move on the salary guide following the expiration of a collective negotiations agreement, movement on the guide after the expiration of the agreement may not always be in the union’s interest as a collective whole. Unfortunately, the two percent (2%) salary cap has entirely changed they manner in how we now negotiate collective negotiations agreements. We can no longer look towards across the board salary increases for any units that have step guides or salary increments built into their contracts due to the simple fact that member’s movement on these guides count as “raises” and thus “eat” into the money that is allotted to the unit as a whole. Therefore, members’ movement or advancement on these salary guides have the ability to remove any flexibility that a unit may have in negotiations.

The bottom line is that each negotiations unit must evaluate their situation as a collective body prior to the expiration of a collective negotiations agreement so that a determination can be made if it is in the unit’s best interest to move members on the salary guide once the contract expires. While this may seem to be intuitively incorrect, maintaining flexibility during the negotiations process is paramount in achieving an agreement that has benefits for all members of the negotiations unit.

The US Supreme Court agrees that Paterson Police Officer’s Demotion Violated his First Amendment Right to Free Speech

Posted in Public Employee Discipline, Public Employment Labor Law

supreme-court-sealThe U.S. Supreme Court sided with former Paterson police officer Jeffrey J. Heffernan and ruled that his First Amendment rights were violated when he was demoted after picking up a campaign sign for the mayor’s opponent.  Heffernan had been demoted after supporters of Mayor Jose “Joey” Torres saw him picking up a campaign sign for challenger Lawrence Spagnola, a former police chief. The police officer said he was off duty and simply was picking up the sign for his mother.

“When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment” even if “the employer makes a factual mistake about the employee’s behavior,” Justice Stephen Breyer wrote for the majority in the 6-2 decision.

The case now goes to back to the U.S. District Court to determine whether Heffernan was the victim of retaliation, and if so, what damages he would be entitled to. Hefffernan was initially was awarded more than $100,000 by a jury, however a U.S. District Court judge and then the Third Circuit U.S. Court of Appeals ruled that his rights were not violated because he wasn’t actually supporting the challenger.

The city had been supported in legal briefs by several municipal organizations, including the National Conference of State Legislatures, National Association of Counties, National League of Cities and U.S. Conference of Mayors.  Heffernan received support in briefs filed by the U.S. government, as well as the National Association of Government Employees and the Becket Fund for Religious Liberty.

Justices Clarence Thomas and Samuel Alito dissented, noting that Heffernan said he was not exercising any First Amendment rights.  “Heffernan denies speaking in support of or associating with the Spagnola campaign,” Thomas wrote. “He has claimed that he picked up the yard sign only as an errand for his bedridden mother. Demoting a dutiful son who aids his elderly, bedridden mother may be callous, but it is not unconstitutional.”

This is an important decision for all public safety officers and public employees in the State of New Jersey as politics often permeate into the workplace and thus clarification of what is protected speech is needed.

The Costs of Chapter 78, P.L., 2011 on New Jersey Retirees’ Healthcare Contributions

Posted in Public Employment Labor Law, Retiree Benefits, Uncategorized

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Chapter 78, P.L., 2011 (hereinafter referred to as “Chapter 78”) went into effect on June 28, 2011, and has increased the average healthcare contributions required of public employees substantially. However, not all employees and retirees are equally effected. This article will briefly outline the effect Chapter 78 will have on newly and prospective retirees.

Chapter 78 requires all New Jersey public employees and certain public retirees to contribute toward the costs of health care benefits based upon a “sliding” percentage of the cost of coverage. Under this legislation, all active public employees will pay a percentage of the cost of health care benefits coverage for themselves and any dependents. However, lower compensated employees will pay a smaller percentage and more highly compensated employees will pay a higher percentage. In addition, the applicable employee cost associated with coverage varies based upon whether the employee has family, individual, or member with child or spouse coverage.

The healthcare contributions mandated by Chapter 78 were codified under subsection (a) of N.J.S.A. § 52:14-17.28d. Furthermore, the health care contributions required under subsection (a) commenced as follows:

(1) for employees who do not have a majority representative for collective negotiations purposes Chapter 78 went into effect on June 28, 2011; or

(2) for those employees that are members of a collective negotiations unit, Chapter 78 went into effect upon the expiration of any applicable binding collective negotiations agreement that was in full force and effect on June 28, 2011.

(See N.J.S.A. § 52:14-17.28d).

Section Forty (40) of Chapter 78 also mandated that any employee with less than twenty (20) years of creditable pension service in one or more of the public employees’ retirement systems on the effective date that Chapter 78 went into effect make a statutorily specified contribution towards the cost of his or her health insurance when in retirement. More specifically, subsection (b) (2) illustrates in detail precisely which employees will be subject to the contribution rates delineated in Chapter 78.  However, N.J.S.A. § 52:14-17.28d(b)(3) carves out an exception (or to be more precise, an exemption) for those employees who have twenty (20) or more years of creditable pension service in one or more State or locally-administered retirement systems on the effective date that Chapter 78 went into effect (June 28, 2011). The employees that are subject to the exemption shall not be subject to the significant contribution increases faced by employees that otherwise fall within the scope of subsection (b)(2) of the aforementioned statute.

In short, for those employees that have accumulated at least twenty (20) or more years of creditable service, but less than twenty-five (25) years of service, as of June 28, 2011 (Chapter 78’s effective date), the law provides that the amount these employees must pay towards healthcare is 1.5% of their retirement allowance or the amount negotiated in the collective bargaining agreement that was applicable at the time the law went into effect, so long as that agreement was not expired on the law’s effective date. Therefore, employees that fall within that category will pay the amount they are contractually obligated to pay, not the amount payable by current employees or retirees with less than twenty (20) years on the effective date of Chapter 78, nor the amount payable by those employees/ retirees with more than twenty (20) years of service credit on the statute’s effective date with expired collective bargaining agreements on said date.  With June 28, 2016 quickly approaching, there will be many employees potentially effected by this exemption now that we are post five (5) years since the statute was enacted.

 

Investigation Concludes that Brick Police Officers were Justified in Using Deadly Force in 2015 Shooting

Posted in Uncategorized

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As reported by the Brick Patch online, the shooting of a 21-year-old Brick Township man in August 2015 during a confrontation with police has been ruled a justifiable use of deadly force, Ocean County Prosecutor Joseph Coronato announced Thursday.

In a statement released Thursday morning, Coronato said the investigation into the Aug. 23 shooting that killed Julian Hoffman was justified by “the undisputed facts of this case.”

“Although there is a presumption of grand jury review when the use of force results in death, the directive (from the state Attorney General’s Office) provides that the county prosecutor is not required to present the matter to the grand jury where the undisputed facts indicate that the use of force was justifiable under the law,” the statement from Coronato’s office said. “Ocean County Prosecutor Joseph D. Coronato has determined that the undisputed facts of this case indicate that the use of deadly force was justifiable under the law, and that presentation of the matter to the grand jury is not required.”

The statement released by the prosecutor’s office says the state Attorney General’s office agreed with Coronato’s findings.

Coronato’s statement says Hoffman had what appeared to be a gun in his hand when he answered the door after calling 911 to report he was “raising hell.” The handgun was a BB gun, which Hoffman refused to drop, according to the statement.

The two Brick officers who fired on Hoffman each shot four bullets, with three total striking Hoffman, the statement said.

And despite a concerted effort to retrieve video from a home security system belonging to Hoffman’s father, none was able to retrieved because it had been overwritten, the statement said.

The statement from the prosecutor’s office concluded the following:

“After analyzing all of the facts and circumstances of this incident within the context of the use-of-force policy promulgated by the New Jersey Attorney General, it is the conclusion of the Ocean County Prosecutor’s Office that Officers 1 and 2 used an acceptable level of force in unholstering, pointing and firing their weapons at Hoffman.

The facts and circumstances reasonably led Officers 1 and 2 to believe that their actions in discharging their firearms were immediately necessary to protect their own lives as well as the lives of the other officers present.

The entire matter has been reviewed by Ocean County Prosecutor Joseph D. Coronato and all portions of the Attorney General’s Law Enforcement Directive regarding uniform statewide procedures and best practices for conducting police use-of-force investigations that were in effect during the course of the investigation were complied with.”

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