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Did Governor Christie Ever Have Any Intention of Keeping His Promise to Fully Fund the Pension System?

Posted in Contract Interpretation, Public Employment Labor Law

As reported on NJ.Com, The State of New Jersey argued before a State Superior Court Judge today that Governor Chris Christie cannot be forced to make full pension payments because the 2011 law committing him to fully fund the state system in exchange for union concessions was unconstitutional.

Interrupting the assistant attorney general, Superior Court Judge Mary Jacobson said the state’s position suggests that the 2011 promise was “a hollow commitment.”   “You’re saying it should have been known at the time that it was a false promise,” Jacobson asked. “You’re saying that from the get-go, this statute, the requirement to make these contributions was void.”

The 2011 overhaul was a signature achievement for the Governor, and one he hailed that saved public worker pensions. But when State revenues plummeted last year, plunging deep holes in two years’ budgets, Christie cut $2.4 billion out of the payments to balance the budget.  Those cuts triggered lawsuits from more than a dozen unions, saying that Christie is contractually bound to make the full payment determined by actuaries.

The state won the first part of this heated dispute over the summer when Jacobson ruled the budget shortfall created a dire fiscal emergency and Christie could slash the previous fiscal year’s payment to balance the budget.  The initial application to the Court that was heard over the summer was heard on an emergent basis.  However, Jacobsen left in question the $1.57 billion Christie cut from the current year’s budget.

With the fiscal year more than half over, “any addition to the budget would impermissibly disrupt both the State and the recipient of State funds,” Assistant Attorney General Jean Reilly argued again today.  Additionally, the attorneys for the State said that the contract was unlawful from the start because the State cannot be obligated to any spending unless it’s approved by the voters — barriers imposed through the debt limitation clause and appropriations act.   The contract would interfere with the Legislature’s discretion over how the state spends its money, lawyers for the State said, and the State can’t be obligated to debt unless it’s approved by the voters.

Jacobson was skeptical of the State’s arguments that the appropriations act and debt limitations clause would trump the contracts clause, which appears in both the state and federal constitutions.  However, the State countered that the appropriation and debt limitation measures apply to the formation of contracts, while the contract clause applies to the enforcement of contracts.

Lawyers for the unions drew a distinction between barred future appropriations, like debt and loans, and payments for services rendered.  They emphasized the harm skipping full payments does to the system, which they said depends on a continual flow of money.  “Those are the ordinary operating expenses of government, and those are not obligations that were intended to be covered by the debt limitations clause,” the attorney said.

Not withstanding the foregoing, it appears that the Christie Administration made a promise with public employees that he never had any intention to keep.  One only needs to remember back to 2011 when the Democratic Legislature agreed to the passage of Chapter 78 of Public Law 2011 that required unionized public employees to pay a higher percentage of their healthcare premiums in exchange for the promise that the Christie Administration would fully fund the public employees pension system.  Additionally, public employees were also forced to contribute a greater percentage of their gross pay to the pension in exchange for the promise.  Based upon the argument that was proffered by Christie’s attorneys yesterday, it is clear that the Administration never had any intention of keeping their word.

Open Letter from NJ State PBA President Patrick Colligan on the Recent Unrest Against Police

Posted in Uncategorized

Given the unrest that has erupted throughout our country in response to two Grand Jury decisions that failed to return True Bill’s of Indictment, we came across this letter from PBA President Patrick Colligan that offers an opinion from the perspective of a law enforcement officer.  Given our audience is New Jersey Public Safety Officers, we felt this letter should be republished on this Blog.

Our Nation is reeling from two unfortunate tragedies: the death of Michael Brown and the death of Eric Garner.  The reaction to these incidents show that it will take a long time for our communities to heal and our profession will be impacted forever by these two events. The divide and passion in the debate over these deaths is deep and palpable and I certainly respect a person’s right to peaceful and lawful protests. The freedom of speech is the greatest part of our Democracy.

To offer some perspective, in 2011 approximately 34,000 persons were arrested by Officers every single day throughout our Country. In New Jersey, that was approximately 930 arrests per day. A majority of those arrests take place without any incident whatsoever. They are transported, processed, entered into our Criminal Justice System and given their day in court.

As sad and tragic as it is to admit, when 12.4 million people get arrested in one year, statistically there are cases that come to an unfortunate end. We are not infallible and we make mistakes. Our Officers must often make life or death decisions in split seconds. We have no time to resort to law books, case law, legal opinions, experts, attorneys, supervisors or clergy. Grand Juries, juries and the public are left to scrutinize that decision for months and years to come. Lives on both sides of the equation are changed forever.

That is not to suggest that law enforcement officers are always indifferent in the performance of their duties.  Are there those among over 900,000 sworn law enforcement officers in this country that are racist or abuse their authority? Absolutely. Despite rigorous testing, interviews and psychological tests they still get into our profession. But the overwhelming fact remains that in 2014 we have the most professional, best educated, best trained and best equipped law enforcement professionals in our Nation’s history.  Consider that when the millions of “calls for service” and non-arrest statistics are factored in, the number of times an officer removes his gun from his holster is so statistically insignificant that you probably have a better chance of being struck by lightning than stare down the barrel of an officer’s gun.  That is because of great training, good people and good relationships between a community and its officers.

I was not an eye witness on August 9th in Ferguson. I was not on the Grand Jury nor was anybody I know. I was ready to accept whatever verdict was rendered in both St. Louis County and Staten Island. Our Grand Jury System is certainly not perfect, but it is the best system we have. Over my years as a Detective the Grand Jury system has surprised me, disappointed me and satisfied me. Whatever the results were in any of my cases I accepted them and moved on.

Deadly force is not an easy option. The public has to realize that there is a gun at every single call. It is our gun. Our badges do not make us super-human. We cannot effect an arrest on everyone we meet just because we wear a uniform. It should come as no shock that not everyone complies with an arrest.

In my 23 years as a police officer, I have never once witnessed a person that complied with a lawful order get even a single scratch. Not once. At the very core of this issue, both Eric Garner and Michael Brown were violating a law. When they were given a lawful order by an Officer neither of the men complied. When they were being placed under arrest or ordered to stop they resisted that order. When they resisted they were tragically killed. In the simplest of terms, if Michael Brown and Eric Garner had complied with the lawful commands of those police officers they would both be alive today.

Patrick Colligan is the President of the New Jersey State Policemen’s Benevolent Association. The NJSPBA represents almost 33,000 Local, County, State & Federal Law Enforcement Officers throughout New Jersey.

Will New Jersey’s Pension Fund Run Dry in Four Years?

Posted in Retiree Benefits

As reported in NJ.COM, New Jersey’s unfunded public employee pension liabilities have soared to $83 billion, more than double previous estimates, as the state comes into compliance with new accounting rules, according to a report released today by Moody’s Investors Services,  a Wall Street ratings agency.

Governor Chris Christie’s administration acknowledged the change in a Nov. 25 supplement attached to a Transportation Trust Fund bond offering.  In a report released today examining the disclosure, Moody’s said it “underscores the significant pension funding challenges that New Jersey faces.”

The two largest pension plans, Public Employees Retirement System and the Teachers Pension and Annuity Fund, could run out of money by the end of 2024 and 2027, respectively, according to the bond disclosure.

A Moody’s ranking of pension liabilities as a percentage of total revenue puts New Jersey fourth behind Illinois, Connecticut and Kentucky. One reason for the higher pension liability is that the new rules call for a smaller rate of return when estimating how much money the pension system will earn in interest and investments.

New Jersey has been basing its calculations on optimistic investment returns of 7.9 percent. The new rules say that past the point a pension plan is projected to run out of money, liabilities will be based on a lower rate of return tied to municipal bond rates, Moody’s analyst Ted Hampton said.  With that change, the unfunded liability ballooned from $37.3 billion to $82.8 billion, according to the state’s bond offering.  Moody’s own methodology estimates unfunded liabilities at $77 billion for 2013, and once revised for 2014, that amount is expected to surpass the state’s $83 billion figure, Hampton said.

The bond disclosure identified changes to both the asset and liability sides of the ledger. New Jersey has $40 billion in assets and $122.8 billion in liabilities, rather than $44 billion in assets and $81 billion in liabilities, according to Moody’s report.

State Sen. Paul Sarlo (D-Bergen), chairman of the senate budget committee, added that no matter the accounting standard, it’s clear the pension fund is grossly underfunded.

A task force appointed by Christie is expected to make recommendations on how state should deal with its pension problems.

A report issued by the commission in September said that the state faces $53 billion in unfunded health benefit liabilities on top of the pension problem.

South Hunterdon County Municipalities to Discuss the Consolodation of Public Safety Services

Posted in Pay and Overtime, Public Employment Labor Law, Shared Services/Consolodation

As reported in NJ.Com. the Mayors of the three South Hunterdon municipalities with local police forces are talking about a regionalized department and are moving forward with the support of county Prosecutor Anthony P. Kearns III and Freeholder Rob Walton.

The mayors of Lambertville, West Amwell and Delaware Townships advocate a police merger.  A state-funded study several years ago recommended merging the Lambertville and West Amwell police departments.  East Amwell was brought into the fold thereafter.  In 2010 Lambertville and West Amwell officials formed a committee to explore the concept, which was embraced at the time by Lambertville.  West Amwell officials and residents had reservations at the time, and Delaware Township officials had opted against taking part in the study.

Now, Delaware Mayor Ken Novak is saying, “We each may be different, but we all share in the need for effective community policing. A regional police force can meet that need.”  According to West Amwell Mayor George Fisher, “From a financial standpoint, consolidating our forces can create a more sustainable force over the long run.”  Pooling resources, the mayor say, would eliminate duplicative administrative work, expand cost-sharing purchases and could lead to better technology and upgrades toward better “readiness and response.”

This decision to engage in this study comes on the heals of the State supported creation of a county wide police force in Camden County.  When this occurred, Unions were busted, jobs were lost, and benefits were decreased.  Consolidation of public safety services must be closely followed with these concerns in mind.

Appellate Division Approves Jersey City Firefighter Application for Accidental Disability Benefits

Posted in Disability Retirement, Public Employment Labor Law
As reported on NJ.Com, a Jersey City firefighter who injured himself when he broke down the front door of a burning home and saved two people in 2010 was awarded accidental disability pension benefits by the Superior Court of New Jersey, Appellate Division, after the Board of Trustees for the Police and Firemen’s Retirement System originally denied the same.

At 2 a.m. on Jan. 12, 2010, James Moran was dispatched to the house, which was boarded up and appeared to be unoccupied. As he was preparing to prevent the fire from spreading, he heard screams coming from inside the building.  The truck company, which was equipped and prepared to forcefully enter the home, had not yet arrived on scene.  As a result, Moran used his shoulder, leg and back to push through the front door, allowing two people to be rescued from the burning building.  Moran said during hearings that the two would have died had he not entered the building.

More than a year after the incident, Moran applied to the Police and Firemen’s Retirement System seeking an accidental disability retirement pension for the injuries he sustained while rescuing the two men.  The pension board, however, ruled that Moran did not meet one of the criteria for such a pension, specifically that his injuries were not the result of a traumatic event that is “undesigned and unexpected.” The board instead awarded him an ordinary disability pension benefits.  An Administrative Law Judge sided with Moran and recommended accidental disability, but the board rejected the findings, stating, “simply kicking in a door or intentionally using one’s back to force entry does not constitute an ‘unexpected happening.’”  The board also found the actions to be within the normal scope of his job.

However, in this instance, the three-judge Appellate Panel agreed with the Administrative Law Judge’s findings and reversed the Board of Trustee’s denial of the accidental disability pension, ruling that it took too narrow a view of the law.  “The undesigned and unexpected event here was the combination of unusual circumstances that led to Moran’s injury: the failure of the truck unit to arrive, and the discovery of victims trapped inside a fully engulfed burning building, at a point when Moran did not have available to him the tools that would ordinarily be used to break down the door,” Judge Susan Reisner wrote on behalf of the panel.

The panel also criticized the board for its “backhanded” criticism of Moran in its reference to him deviating from training in failing to use the ax on the truck to open the door. Moran’s Captain testified that he did not have access to the ax at the time he needed it.

All too often we see the Board of Trustees for the various Public Employment Retirement Systems misapply the well settled case law that pertains to disability retirement benefits and deny applicants either the accidental or ordinary disability retirement pensions that they are entitled too.  When an applicant believes that he or she has been subjected to a wrongful and/or unwarranted decision from a pension board, they should immediately seek the advice of counsel to discuss the possibility of appealing the decision.  However as we have stated in the past, there are very few attorneys in the State of New Jersey that specialize in public employment pension appeals, and therefore, to increase an applicant’s chance of receiving these life time benefits, they must seek out the services of these experienced practitioners.


NJ Public Workers Pay High Percentage of Health Care Costs, Analysis Says

Posted in Retiree Benefits

As reported by, a new analysis says the State’s employees pay more than the national average for state government workers toward their health insurance costs.  The analysis by NJ Spotlight notes that the cost of New Jersey’s public employee health insurance coverage remains the third-highest in the United States.  But it also shows the average New Jersey government worker pays more for individual health insurance coverage than public workers in any other state and the 10th-highest premium for family coverage in the nation.  In addition, the analysis shows New Jersey’s state and local government employees are paying a much higher percentage of the cost of their individual health insurance policies than private-sector workers in the state have been paying.

The State’s pension system, which governs the retirement and health care payments for thousands of public workers, has become one of the most controversial issues of Governor Christie’s second term.  in 2011, the Republican governor worked with Democrats to overhaul the pension system, which has been neglected by governors from both parties for years.  At the time, the NJ Spotlight analysis says, the average state worker paid just 3.6 percent of health premium costs, while some teachers, police, and local government employees were paying nothing at all.  But the reforms and Christie and lawmakers ushered in called for the State to make annual payments to the system, while workers promised to pay more into their pensions and health care costs.

As part of the overhaul, how much an employee paid toward their health care would be based on their “ability to pay”-ranging from a low of 3 percent of the premium cost for those making less than $25,000 to a high of 35 percent for those earning more than $110,000 for family coverage.  Earlier this year, though, Christie cut billions in pension payments to balance the state budget after his administration missed revenue projections.  He also said the 2011 pension reforms didn’t go far enough.

Thus, he formed a bipartisan panel of pension experts to come up with suggestions on how to solve the problem.  Last month, they released a report that said the pension system faces $90 billion in unfunded pension and health care liabilities-one of the largest gaps in the country.  The commission is expected to release a second report, with recommendations, sometime this month.  Experts expect one suggestion the panel to make is to ask current employees to pay even more into their health costs.

Democrats have said they are unwilling to consider further reforms until Christie funds the system like he promised under the 2011 overhaul.  They also accused the governor of forming the panel as political cover as he decides whether to launch a 2016 presidential bid.

How to Calculate The Amount of Available Money To Be Dispersed to A Union Under New Jersey’s 2% Salary Cap in an Interest Arbitration Proceeding

Posted in Uncategorized


All Public Safety Law Enforcement Unions in New Jersey must have a solid understanding of the methodology in which the New Jersey Public Employment Relations Commission (“PERC”) has interpreted how the 2% cap is to be evaluated and adhered to by an interest arbitrator. To this end, PERC has issued two decisions clarifying the same: In the Matter of Borough of New Milford and PBA Local 83 and In the Matter of Borough of Ramsey and Ramsey PBA Local 155.  At the current time, the New Milford decision is the seminal authority in delineating how an interest arbitrator must determine and/or apply the 2% cap.  In New Milford, the Borough argued that the interest arbitration award exceeded the 2% cap when all the economic factors contained in the award were included and accounted for.  Alternatively, the PBA responded that the Borough’s calculations ignored the savings it [the Borough] had realized from the retirement of several officers.

In addressing this inquiry, PERC ruled as follows:

Since an arbitrator, under the new law, is required to project costs for the entirety of the duration of the award, calculation of purported savings resulting from anticipated retirements, and for that matter costs added costs due to replacement by hiring new staff or promoting existing staff are all too speculative to be calculated at the time of the award.  The Commission believes that the better model to achieve compliance with [the 2% cap] is to utilize the scattergram demonstrating the placement on the guide of all of the employees in the bargaining unit as of the end of year preceding the initiation of the new contract, and to simply move those employees forward through the newly awarded salary scales and longevity entitlements.  Thus, both reductions in costs resulting from retirements or otherwise, as well as any increases in costs stemming from promotions or additional new hires would not effect the costing out of the award required by the new amendments…

PERC clarified its holding later in the opinion in stating:

We note that the cap on salary awards in the new legislation does not provide for the PBA to be credited with savings that the Borough receives from retirements or any other legislation that may reduce the employer’s costs.  It is an affirmative calculation based on the total 2011 base salary costs regardless of any changes in 2012.  Likewise, the PBA will not be debited for any increased costs the employer assumes for promotions or other costs associated with maintaining its workforce.

The Ramsey case reaffirmed the holding in New Milford.  In the Ramsey case, the PBA likewise contended that the arbitrator should have taken into account the retirement of a Lieutenant and two promotions in projecting salary costs.  Relying on the New Milford decision, PERC stated the following:

In New Milford, we determined that reductions in costs resulting from retirements or otherwise, or increases in costs stemming from promotions or additional new hires, should not affect the costing out of the award.  N.J.S.A. 34:13A-16.7(b) speaks only to establishing a baseline for the aggregate amount expended by the public employer on base salary items for the twelve months immediately preceding the expiration of the collective negotiations agreement subject to arbitration.  The statute does not provide for a majority representative to be credited with savings that a public employer receives from any reduction in costs, nor does it provide for the majority representative to be debited for any increased costs the public employer assumes for promotions or other costs associated with maintaining its workforce.

It must be noted that PERC’s interpretation of how the 2% cap is to be calculated has not been reviewed by the New Jersey Superior Court, Appellate Division.

The New Milford and Ramsey cases delineate how the 2% cap is to be applied by an interest arbitrator or, for our purposes, how the same must be evaluated and/or calculated. Essentially, a baseline amount expended by the public employer on base salary items for the twelve months immediately preceding the expiration of the collective bargaining agreement between a Public Safety Union and a governmental entity must be established. In short, this “baseline” amount will be the total amount expended by the governmental entity on Union members for “base salary” items in the last year of the expired collective negotiations agreement.

Starting with this number, all Union members employed by the governmental entity on the last day of the expired agreement can be evaluated by simply “moving those employees through the guide” irrespective as to whether a certain officer retired and/or if new hires were made since that time. In short, PERC has provided this simplified model because it deemed that the evaluation of employee “breakage” is too speculative. Thereafter, it must be determined how much cost to the governmental entity is incurred when these members receive their next increment on the salary guide. After determining the cost of step movement, one must determine how much that increased cost counts towards the 2% cap and then determine what is left, if anything, to apply to an across-the-board pay increase.

While this methodology may appear to be esoteric and confusing, it is the current state of the law at this time and thus, must be followed.








Reviewing the “2% Cap” Under New Jersey’s Interest Arbitration Statute

Posted in Contract Interpretation, Contract Negotiations, Interest Arbitration, Public Employment Labor Law, Uncategorized

It has been quite a while since we have provided our readers with information related to the legal issues surrounding New Jersey  Public Safety Officers.  With that being said, we believe it is now very important to provide an overview or a “re-cap” of the New Jersey 2% Salary Cap under the Current Interest Arbitration Statute.  As all of you are keenly aware, having a solid understanding of this statute is vital when preparing for collective negotiations which may lead to interest arbitration.  Therefore, allow this publication to apprise you of the applicable law pertaining to the two percent (2%) salary cap.  In a future publication we will provide you with the mechanics of how to calculate the same under the current state of the law.


Suffice it to say, the imposition of the 2% cap has narrowed the focus of contract negotiations, interest arbitration proceedings, and what will be considered and ultimately awarded from an economic standpoint. Consequently, it is imperative that we are cognizant of this impact so that we may avail ourselves of the best course of action going forward and make the best arguments in support of our positions.

In order to place this overview of the law into an intelligible context, a review of the changes to the statute surrounding interest arbitration proceedings is warranted and/or appropriate.  In 2010, the New Jersey State Legislature enacted new laws regarding the interest arbitration process in the Garden State. The Legislature passed these laws on or around December 13, 2010 and the same became effective on January 1, 2011.  In simple terms, the legislation, which amended various provisions of N.J.S.A. 34:13A-16, et. seq., revised the procedure for police and fire contract disputes and imposed a cap on certain arbitration awards. According to the statement accompanying the bill, the legislation streamlines the procedure for resolving contractual impasses between public employers and their police and fire departments and imposes a 2% cap on arbitration awards under certain circumstances.

Recently, the legislation was again revised, on or about June 24, 2014. According to the statement accompanying the renewal bill, the legislation made several changes to the current law governing arbitration awards in disputes between public employers and their police and fire departments. Of particular importance, the legislation also renewed and extended the applicability of the two percent (2%) cap until December 31, 2017 and made the same retroactive to April 2, 2014.  it is important to note that the “original” two percent (2%) cap imposed by the 2010/2011 legislative changes expired on April 1, 2014. Significantly, however, the new legislation also made changes to the calculation of the two percent (2%) cap in interest arbitration proceedings going forward.

 Under the “old” two percent (2%) cap law, an arbitrator could not render an award which, on an annual basis, increases the base salary items by more than two percent (2%) of the aggregate amount expended by the public employer on base salary items for the members of the affected employee organization in the year immediately preceding the expiration of the agreement. Under the new legislation, however, after the first year of the agreement, the award cannot exceed two percent (2%) of the base salary items as annually compounded at the end of each year of the collective negotiations agreement. In simple terms, the two percent (2%) cap is now calculated on a compounded basis for each year of the agreement being arbitrated.

For our purposes, the legislation’s establishment, renewal, and revision of the two percent (2%) cap on interest arbitration awards is critical. The statute establishing the applicable version of the two percent (2%) cap reads as follows:

 An arbitrator shall not render any award pursuant to section 3 of P.L.1977, c. 85 (C.34:13A-16) which, in the first year of the collective negotiation agreement awarded by the arbitrator, increases base salary items by more than 2.0 percent of the aggregate amount expended by the public employer on base salary items for the members of the affected employee organization in the twelve months immediately preceding the expiration of the collective negotiation agreement subject to arbitration. In each subsequent year of the agreement awarded by the arbitrator, base salary items shall not be increased by more than 2.0 percent of the aggregate amount expended by the public employer on base salary items for the members of the affected employee organization in the immediately preceding year of the agreement awarded by the arbitrator.

The parties may agree, or the arbitrator may decide, to distribute the aggregate monetary value of the award over the term of the collective negotiation agreement in unequal annual percentage increases, which shall not be greater than the compounded value of a 2.0 percent increase per year over the corresponding length of the collective negotiation agreement. An award of an arbitrator shall not include base salary items and non-salary economic issues which were not included in the prior collective negotiations agreement.

 [N.J.S.A. 34:13A-16.7(b).]

Under the statute’s provisions, an arbitrator’s award on disputed “base salary” items is subject to a two percent (2%) cap, calculated on an annual, compounded basis over the term of the collective negotiations agreement governed by the award. The aggregate monetary value of the award, however, does not have to be distributed in equal annual percentages. Consequently, the monetary value of an award may exceed the two percent (2%) cap in a single contract year, however, the total monetary value of the award allocated in other contract years must be adjusted so that the aggregate value of the award over the term of the agreement does not exceed the maximum monetary award permitted under the new, compounded two percent (2%) salary cap.

An arbitrator’s award on economic issues not included in what the Legislature defined as “base salary” is not subject to the cap. Similarly, agreements arrived at through independent negotiation between the parties and agreements reached with the assistance of a mediator and/or fact finder are not subject to a contractual cap. According to N.J.S.A. 34:13A-16.7, “base salary” is defined as follows:

 …means the salary provided pursuant to a salary guide or table and any amount provided pursuant to a salary increment, including any amount provided for longevity or length of service. It also shall include any other item agreed to by the parties, or any other item that was included in the base salary as understood by the parties in the prior contract.  Base salary shall not include non-salary economic issues, pension and health and medical insurance costs.

 “Non-salary economic issues” means any economic issue that is not included in the definition of base salary.

[N.J.S.A. 34:13A-16.7(a).]

Of particular note, as highlighted above, the statutory definition of “base salary” includes the costs of the salary increments paid to members of the bargaining unit as they move through the steps on the salary guide. In other words, when a member of the bargaining unit moves to the next step of the salary guide in accordance with the collective negotiations agreement, that pay raise or “rise in cost” is considered an increase in “base salary” as contemplated by the two percent (2%) cap.


Now that the two percent (2%) cap and what it includes has been adequately defined, the question then becomes which organizations are subject to the cap.  The logical starting point in addressing this inquiry is N.J.S.A. 34:13A-16.9, entitled “Effective Date.”  The statute provides:

This act shall take effect January 1, 2011; provided however, section 2 of P.L. 2010, c.105 (C.34:13A-16.7) shall apply only to collective negotiations between a public employer and the exclusive representative of a public police department or public fire department that relate to negotiated agreements expiring on that effective date or any date thereafter until or on December 31, 2017, whereupon, after December 31, 2017, the provisions of section 2 of P.L.2010, c.105 (C.34:13A-16.7) shall become inoperative for all parties except those whose collective negotiations agreements expired prior to or on December 31, 2017 but for whom a final settlement has not been reached.

[N.J.S.A. 34:13A-16.9 (emphasis added).]

According to the wording of N.J.S.A. 34:13A-16.9, the two percent (2%) cap shall only apply to: (1) collective negotiations between a public employer and the exclusive representative of a public police and/or fire department; and (2) those negotiations must relate to a negotiated agreement expiring on the effective date of the act, January 1, 2011, or any date thereafter until December 31, 2017.

In our next publication we will discuss in detail how the 2% salary cap is calculated under the current state of the law.


Qualifying For Accidental Disability Retirement Benefits: The Facts Matter

Posted in Uncategorized

Unfortunately, during the course of a law enforcement officer’s career, "on and off the many officers become job" and "off the job" injuries and illnesses occurred and, which ultimately lead to, disabled both on and off the job one’s inability to continue to work as a law enforcement officer. If such an officer is unable to continue his or her employment as a result of the injuries, When one faces such an unfortunate scenario, they are often left with no other alternative but to medically retire. To this end, the New Jersey pension systems covering law enforcement officers have disability retirement plans in place which that provide accidental disability retirement benefits if certain criteria is met.

If a law enforcement officer qualifies for an accidental disability retirement benefits under the Police and Firemen’s Retirement System ("PFRS"), the annual benefit will be two-thirds (2/3) of the annual compensation on which pension contributions were being made at the time of retirement or the date of the event leading to the disability, whichever is provides the greater benefit. Of critical importance, accidental disability retirement benefits are also exempt from federal income tax and not subject to New Jersey State income tax until the age of 65. Thus, accidental disability retirement benefits provide much needed economic stability for injured law enforcement officers for the duration of their lives, and provide far greater benefits than "ordinary" disability benefits.

However, notwithstanding the foregoing, and despite what some people may believe, however, accidental disability benefits are awarded only when an officer meets particular legal and factual criteria. Amongst other things, this criteria determination is often based on the factual scenario that revolves around the officer’s disabling injury. Thus consequently, describing how an accident occurred to either PFRS or an Administrative Law Judge is vitally important and often determinative as to whether or not one is awarded accidental disability pension benefits.

The criteria for obtaining accidental disability retirement benefits are well-settled. As set forth by the Supreme Court in Richardson v. Bd. of Trs., Police and Firemen’s Retirement System, in order obtain accidental disability benefits, an law enforcement officer must prove:

1. He/ or she is permanently and totally disabled;

2. The disability is the direct result of a "traumatic event" that is:

     a. Identifiable as to time and place;

     b. "Undesigned and unexpected;" and

     c. Caused by a circumstance external to the member.

3. The "traumatic event" must have occurred during and as a result of the officer’s regular or assigned duties;

4. The disability was not the result of the member’s willful negligence; and

5. The officer is physically incapacitated from performing his or her usual or any other duty.

Recently, much litigation has revolved around the meaning of the terms "undesigned and unexpected." In a recent decision in the case Brooks v. Bd. of Trs., Public Employees Retirement System, 425 N.J. Super. 277 (App. Div. 2012), the Appellate Division examined the Richardson requirement that a work-connected event must be "undesigned and unexpected" to constitute a "traumatic event." In Brooks, the Court held that an accident can be "undesigned and unexpected" under the Richardson test even though it may be concluded in retrospect that the employee/officer could have anticipated the risk of such an accident and taken steps to avoid it. In other words, an employee and/or officer’s "simple negligence," as opposed to "willful negligence," was not a disqualifying factor for an accidental disability pension.

Therefore, if a law enforcement officer undertakes a particular work related activity that is associated with his or her regular duties of employment and such an activity results in a disabling injury, he or she can be awarded accidental disability benefits even if the risk could have been anticipated by the officer. On the other hand, injuries that occur purely during the course of "regular work effort,", without any external factor causing injury, will not be "qualifying events" under Richardson for which Accidental Disability Benefits will be awarded.

So what are we really talking about here? The best way we can put it into perspective is to use an example: A police officer is chasing a suspect. While in full stride, he steps on some loose gravel, hears a "pop" and tears a ligaments in his knee. He can not return to work as a result. If the officer injures his knee while merely chasing a suspect, chances are, he may not be awarded accidental disability benefits due to the fact that because chasing a suspect is a duty expected of an officer and is part of his "regular work effort.". However, the fact that he slipped on loose gravel should be a sufficient enough "external factor" that caused the injury and takes the scenario out of the realm of "regular work effort." . What we are trying to emphasize here is that the facts matter , and often the success or failure of an application or an appeal for benefits will often turn on how the facts are portrayed by the applicant or able, competent counsel.

The Current State of the Interest Arbitration Process: A Fractured System

Posted in Interest Arbitration

In accordance with a report issued by NJ.Com, more than 40 towns and counties filed petitions to compel compulsory interest arbitration in anticipation of the expiration of what is commonly referred to as the “2% cap” law. Today, April 1, 2014, a state law in effect since 2011 that caps interest arbitration awards at 2 percent, sunsets and renewal of the same appears to be unlikely.
The State Senate and Assembly on Thursday sent Gov. Chris Christie a bill that would extend the cap until the end of 2017. The bill had slight modifications to the current law that is set to expire. However, Christie conditionally vetoed the bill, stating that it did not impose the necessary restraints on law enforcement unions to collectively bargain for wages and conditions of employment. The State Senate concurred with the Governor’s recommendations, however, the Assembly has yet to address the veto.
Based on the foregoing, various municipalities and counties filed for interest arbitration due to the fact that they believe it is unclear if the cap will apply to contracts that are under negotiation but have not yet gone into arbitration.
Under the current law, the New Jersey Public Employment Relations Commission is mandated to appoint an Arbitrator the following business day that a petition to compel arbitration is received. However, at this point in time, there are approximately five (5) arbitrators that sit on the special panel that has been appointed to hear these highly complex legal and economic cases. Thus, it appears evident that it will be an impossibility for arbitrator appointments to be made in accordance with the mandate. As we have all known for the past three years, the system to address an impasse regarding public safety contracts is fractured and in need of an overhaul. However, now, State Government must recognize the problems with the current law as they most likely will not be able to comply with the very same rules and regulations that they have put into place.