New Jersey Public Safety Officers Law Blog : New Jersey Public Safety Employee Lawyer & Attorney : Pellettieri, Rabstein & Altman Law Firm : Workers Compensation, Discipline Representation for Police & Firefighters : New Jersey

On January 21, 2010, the Appellate Division decided In the Matter of Rosemarie Tatusko, Docket No.: A-2888-08T3. The case involved an appeal from a final decision of the Board of Trustees of the Police and Firemen’s Retirement System which denied Rosemarie Tatusko’s (“Appellant”) application for an accidental disability pension.

Appellant was employed by the Department of Corrections as a senior correctional officer at the Burlington County Jail. Her application for an accidental disability pension was based on an incident that occurred on Ocotber 22, 2005, when she assisted in saving a female inmate who had attempted to commit suicide. Appellant heard a “hacking gagging noise,” and when she scanned the prison cells to determine the source of this noise, she found the inmate hanging from a sheet in her cell. Appellant called another correctional officer to help her and the two of them were able to cut down the sheet with scissors and get the inmate to the floor. Appellant though at the moment that the inmate had died, but later found out that she had survived the attempted suicide.

At the time of the incident, Appellant had been a corrections officer for eight years. During that time, she had witnessed three other attempted suicides, two of which involved inmates cutting their wrists and the third of which also involved a hanging. Appellant did not experience any psychological problems after any of those three prior incidents. However, Appellant suffered a total and permanent psychological disability as a result of the October 22, 2005 incident. When Appellant was asked at the hearing on her application before an Administrative Law Judge (“ALJ”) how the October 22, 2005 incident differed from those prior incidents, she responded: “I don’t know. I can’t explain.”

The ALJ concluded that Appellant’s observations of the inmate’s attempted suicide and efforts to save her constituted a traumatic psychological event and, therefore, granted Appellant’s application. The Board rejected this recommended conclusion and determined that Appellant’s application should be denied because Appellant’s observation of the inmate’s attempted suicide and her subsequent efforts to save the inmate were not objectively capable of causing a reasonable corrections officer with training and experience similar to appellant to suffer a disabling mental injury. This appeal ensued.

• Email This
• Print
• Comments
• Trackbacks

On January 14, 2010, the Appellate Division decided In the Matter of Jerry Duckworth, Department of Youth Services, County of Passaic, Docket No.: A-6007-07T1. In the case, Jerry Duckworth appeals from a final decision of the New Jersey Department of Personnel, Merit System Board, dismissing his appeal of removal from employment. The Board adopted the findings and conclusions of an Administrative Law Judge (“ALJ”), determining that Duckworth had entered into an enforceable settlement agreement with his employer, the County of Passaic.

Duckworth was employed as a senior juvenile detention officer at the Passaic County Juvenile Detention Center. In 1990, he injured his back at work and required surgery to remove a herniated disc. The surgery left Duckworth suffering chronic low back pain. In 2002 and 2003, a physician engaged by Passaic County, examined Duckworth and diagnosed permanent back injury and a chronic foot drop. The physician reported to the County that, because of these medical conditions, Duckworth was not able to perform safely the duties of a juvenile detention officer and that he was at risk for re-injury.

To accommodate Duckworth’s disability, the County reassigned him to less rigorous duties in the laundry room of the detention center. About one and a half years later, Duckworth objected to this reassignment and sought a hearing before the Merit System Board. In 2006, the Board determined that the duties assigned to Duckworth were outside his job description and ordered the County to reassign him and also conduct a complete fitness for duty examination. The same physician examined Duckworth again in May 2006 and reiterated his prior conclusions. 

The County gave notice to Duckworth of disciplinary action to remove him from his position because of unfitness for duty. After conducting departmental hearings, the County terminated his employment on December 6, 2006. Duckworth requested a hearing and also applied for disability retirement. Some months later, he withdrew his retirement application.

Pursuing his appeal, Duckworth appeared with his attorney for a hearing before an ALJ on January 9, 2008. The attorneys conferred and reached an agreement, which they reported to the ALJ as a settlement. No transcript was made on that date, but the ALJ discussed the terms of the settlement with counsel in the presence of Duckworth. The settlement required that the County support reinstatement of Duckworth’s disability retirement application in exchange for his dismissing the pending appeal.

The attorney for the County drafted a written settlement agreement and sent it to Duckworth’s attorney. When he received no response for several months despite several inquiries, he filed a motion before the ALJ to enforce the settlement. In the meantime, Duckworth re-submitted his application for disability retirement. In March and April 2008, he heard from the Division of Pensions and Benefits that the County had not responded to its requests for information relevant to his application.

• Email This
• Print
• Comments
• Trackbacks

As reported in the Trentonian on January 8, 2010, the United States Department of Justice filed a lawsuit against the State of New Jersey alleging that New Jersey’s widespread use of a written exam to promote police sergeants discriminates against blacks and Hispanics. The lawsuit, filed in federal court in Newark, accuses New Jersey of civil rights violations for using a written exam in which black and Hispanic candidates scored significantly and consistently lower than their white counterparts.

Moreover, according to the complaint, even when minority candidates passed the test, they were not promoted as often as white candidates because their scores were lower and promotions were granted first to those with the highest scores and most seniority. Significantly, the Department of Justice has not taken issue with using seniority as a factor for promotions. As such, the lawsuit seeks to stop New Jersey from continuing to use the exam and asks the court to order it to offer relief to officers “harmed” by the exam by extending them promotions, back pay and retroactive seniority.

Test scores from 2000 to 2008 reviewed by the Justice Department showed that 89 percent of the white candidates who took the exam passed, compared to 77 percent of Hispanics and 73 percent of black candidates. With the exception of the New Jersey State Police, most law enforcement agencies across the state use the exam.

“This complaint should send a clear message to all public employers that employment practices with unlawful discriminatory impact on account of race or national origin will not be tolerated,” said Thomas Perez, Assistant Attorney General for the Civil Rights Division. “The Justice Department will take all necessary action to ensure that such discriminatory practices are eliminated and that the victims of such practices are made whole.”

In a similar case, a federal judge in July sided with the Justice Department in ruling that New York City had discriminated against minorities in its hiring of firefighters, causing blacks and Hispanics to comprise only 10 percent of the fire department’s work force, even though most city residents are minorities.

• Email This
• Print
• Comments
• Trackbacks

On December 24, 2009, the Appellate Division decided In the Matter of Eugene I. Otto, Police Department, Township of Irvington, Docket No.: A-1112-08T3. In the case, Eugene Otto appealed from a final decision of the Civil Service Commission finding that his removal as a member of the Irvington Police Department was justified and dismissing his appeal.

On February 1, 2006, Otto was served with fifteen separate disciplinary charges for violating various provisions of the Irvington Police Manual. Various offenses were alleged, including withholding information, failing to perform his duties, insubordination, using derogatory terms, and being untruthful. Following a departmental hearing, all the charges were sustained, and Otto was removed from the force. 

Otto appealed to the Merit System Board, now known as the Civil Service Commission, and a hearing was held before an administrative law judge who sustained the following charges: one count of conduct unbecoming a public employee, two counts of being untruthful, and one count of using derogatory terms. The administrative law judge also concluded that there was insufficient evidence to sustain the remaining charges and they were dismissed. He also concluded that the charge of using derogatory language was not of sufficient import to warrant significant discipline, but the remaining charges constituted “mutinous and disruptive behavior” that, in light of Otto’s disciplinary hearing, warranted his dismissal from the force. The Civil Service Commission agreed.  This appeal followed.

On appeal, Otto contended that the charges against him should have been dismissed as untimely, that certain evidence was insufficient to support the charges against him, and that the punishment of dismissal was arbitrary and capricious. The Appellate Division found: (1) the disciplinary charges were timely filed within 45 days of the prosecutor’s office advising the township that it had determined that Otto’s statements were not truthful; (2) Otto’s actions constituted conduct unbecoming a public employee; (3) Otto’s charges that that department chief had deliberately shirked his responsibilities and acted out of improper racial motivations was not protected speech and therefore was not speech for which he could not be disciplined; and (4) the sanction of removal was not unduly severe give Otto’s disciplinary record and the gravity of the offenses.  As such, the Court affirmed the Civil Service Commission’s decision.

• Email This
• Print
• Comments
• Trackbacks

On December 21, 2009, the Appellate Division decidedIn the Matter of Edwin Garcia, Department of Corrections Hudson County, Docket No.: A-1404-08T3. In the case, Edwin Garcia appeals from the final administrative action of the Civil Service Commission, terminating his employment as a corrections officer with the Hudson County Department of Corrections.

At issue were two disciplinary matters. In the first, the County maintained that Garcia failed to include in a report the fact that another officer had lunged at a handcuffed inmate and grabbed the inmate’s shirt. As a result, the County charged Garcia with insubordination, conduct unbecoming a public employee, neglect of duty, and other sufficient cause. In the second disciplinary matter, the County asserted that, while involved in an incident with an inmate, Garcia used excessive force despite being ordered numerous times to cease. For this incident, Garcia was charged with conduct unbecoming a public employee, neglect of duty, and other sufficient cause. The County sought to terminate Garcia’s employment.

The County held a hearing on the disciplinary charges on March 2, and April 4, 2007, wherein the hearing officer sustained the charges. A final notice of disciplinary action terminating Garcia’s employment was issued on June 7, 2007. Garcia appealed the decision to the Civil Service Commission and a hearing was held before an Administrative Law Judge.

The ALJ sustained both charges, finding, with respect to the first incident, that “Garcia submitted a report omitting the use of excessive force on an inmate” and, with respect to the second incident, that “Garcia used excessive force to subdue inmate E.B. by striking him, although ordered to desist by superior officers.” In the Initial Decision, the ALJ concluded that Garcia had committed conduct unbecoming a public employee, neglect of duty, and insubordination. In light of Garcia’s prior record and the nature of these offenses, the ALJ imposed the sanction of removal. The Commission, in its independent evaluation of the record, concluded that the removal was justified. This appeal ensued.

 On appeal, Garcia argued the findings of the Commission were not justified and the sanction of removal was arbitrary and capricious. The Appellate Division affirmed Garcia’s termination. Specifically, the Court found that there was substantial credible evidence supporting the findings of the ALJ and the conclusions reached by the Commission. The Court also determined the sanction of termination for the infractions is not unreasonable or disproportionate in light of the offenses, particularly when viewed in conjunction with Garcia’s prior disciplinary record.     

• Email This
• Print
• Comments
• Trackbacks

On December 7, 2009, New Jersey State Correction Officer Darrell Kornegay was walking to his car after buying food at a restaurant on Springfield Avenue in Irvington Township, one of the township’s main drags, when he was attacked close to 9:00 p.m. A masked man carrying a handgun, later identified as Raymon Scott, stopped Officer Kornegay, demanding money and car keys. After Kornegay said he was a corrections officer, Scott opened fire and ran.

According to State officials, Kornegay carries a handgun when off duty and fired at Scott, hitting him several times. Scott then entered a vehicle that later dropped him off at East Orange General Hospital. Thereafter, Scott was charged with attempted murder, aggravated assault, unlawful possession of a weapon, possession of a weapon for an unlawful purpose, and robbery.

Officer Kornegay is a 17 year veteran at Northern State Prison in Newark. This incident illustrates the dangers that public safety officers face not only during the course of their employment, but outside of it. It also shows how public safety officers try to ensure public safety whether on duty or off. Please check this blog periodically to ascertain updates regarding this incident as an investigation by the Attorney General’s office is underway.    

• Email This
• Print
• Comments
• Trackbacks

As reported in the Star-Ledger on November 26, 2009, according to a lawsuit filed by the union representing prison investigators, senior officials at the Department of Corrections are illegally blocking internal investigations into bribery, cell phone smuggling and gang activity. In short, the lawsuit alleges that Correction officials shut down ongoing probes or prevented investigations from even beginning.

For example, the lawsuit alleges that investigators were told not to examine whether a prison employee was hiding a cell phone, or if an inmate had “put out a hit” on people outside the prison system. Other alleged spike investigations included probes into prison employees who fired service weapons, once during an alleged off-duty bar fight. Allegedly, both files were marked “no action taken” by senior officials.

The union, Fraternal Order of Police Lodge 174, represents about 90 officers within the Department of Corrections’ Special Investigations Division. The union has previously clashed with the Department’s leadership on issues of tactics and resources. 

The Special Investigations Division has been controversial for its dual role in probing gang activity and handling internal affairs. Officials inside and outside of the Division say its dual role creates distrust within the Department.

Spokespeople for the Department of Corrections and the Attorney General declined to comment on the pending lawsuit. Please check this blog periodically to ascertain updates regarding this lawsuit as the same become available.

• Email This
• Print
• Comments
• Trackbacks

After much concern regarding the new Treasury Regulations promulgated by the Internal Revenue Service (“IRS”) and their potential impact on members of government pensions plans, the IRS and the Department of Treasury extended the date by which a government plan must comply with final regulations on distributions from a pension plan upon attainment of normal retirement age. Under the extension, the new regulations will be effective for a governmental plan for plan years beginning on or after January 1, 2013.

As described in three previous blog entries, the IRS modified Treasury Regulation §1.401(a)-1 to provide an exception to the rule that pension benefits be paid only after retirement by permitting a pension plan to commence payment of retirement benefits to a participant after the participant has attained normal retirement age even if the participant has not yet had a severance from employment with the employer maintaining the plan.

The new regulations also require a pension plan’s normal retirement age to be an age that is not earlier than the earliest age that is reasonably representative of the typical retirement age for the industry in which the covered workforce is employed. In the case of a retirement plan where substantially all of the participants are qualified public safety officers, a normal retirement age of age 50 or later is deemed not to be earlier than the earliest age that is reasonably representative of the typical retirement age for the industry in which the covered workforce is employed.

Notice 2007-69, which provided temporary relief of certain plans that may have to change their definitions of normal retirement age to satisfy the new regulations, indicated that the new regulations do not contain a safe harbor or other guidance with respect to a normal retirement age conditioned on the completion of a stated number years of service. The notice requested comments on whether and how a pension plan with a normal retirement age conditioned on the completion of a stated number of years of service satisfies the requirement in §1.401(a)-1 that a pension plan be maintained primarily to provide for the payment of definitely determinable benefits after retirement or attainment of normal retirement age and how such a plan satisfies the pre-ERISA vesting rules.

Although the implementation of the new regulations has been delayed, it is critical to keep apprised of the comments regarding whether a pension plan with a normal retirement age conditioned on the completion of a stated number of years of service satisfies the new regulations. Clearly, the resolution of this issue could drastically impact many public safety officers not only in New Jersey, but across the country. Please be sure to check this blog periodically as updates regarding these regulations will be posted as more information becomes available.

• Email This
• Print
• Comments
• Trackbacks

On November 4, 2009, the Appellate Division decided In the Matter of Michael Curtin, Battalion Fire Chief (PM3593G), Elizabeth, Docket No.: A-4861-07T2. In the case, Michael Curtin appealed from the decision of the former Merit System Board (“Board”), now the New Jersey Civil Service Commission (“Commission”), denying his appeal of the scoring of his promotional examination as well as the Commission’s decision again denying the appeal following remand for consideration of supplemental information.

Curtin is employed by the Elizabeth Fire Department with the rank of captain. He took the Department of Personnel’s examination for the position of battalion fire chief, and received an overall score of 89.270. He was ranked third on the eligible list. He appealed the scoring of the oral portions of the examination to the Board. In a five-page decision dated October 11, 2007, the Board denied the appeal.

Curtis appealed to the Appellate Division. On April 14, 2009, in response to Curtin’s motion to supplement the record, the Appellate Division remanded the matter temporarily to the Commission, which had replaced the Board as of June 30, 2008, for consideration of the arguments raised in Curtin’s motion. Following its review of Curtin’s additional arguments and documents, the Commission issued its remand decision on August 20, 2009, again denying the appeal. As a result, the Court permitted Curtin to supplement his brief on appeal.

The Appellate Division noted that the burden is on a petitioner, not the Commission, when challenging the administration and scoring of examination. Moreover, when reviewing examinations, the Commission shall decide any appeal on the written record or such other proceeding as the Board deems appropriate. Finally, the Court indicated that courts should defer to an agency’s grading of a civil service examination except in the most exceptional of circumstances that disclose a clear abuse of discretion.

Applying these principles, the Court was satisfied that the Commission’s decision on the remand was not arbitrary, capricious, or unreasonable. The Commission duly re-evaluated the Board’s original decision in light of Curtin’s additional arguments and explained its reasons for disagreeing with his position. Moreover, the Court noted that it was not its role to second-guess the Commission with respect to the scoring of civil service examination and this case does not present “the most exceptional of circumstances that disclose a clear abuse of discretion” warranting such interference.

• Email This
• Print
• Comments
• Trackbacks