Appellate Division Rules that the Charge of Setting False Alarms Merges into Charge of Official Misconduct.

The New Jersey Superior Court, Appellate Division recently ruled that a firefighter who has called in false alarms, goes to respond to the false alarms that he called in, and is convicted for Official Misconduct, N.J.S.A. 2C:30-2, as a result of this behavior, can not be convicted separately for the setting of the false alarms, N.J.S.A. 2C:33-3.  In the case of State v. Quezada, 33-2-1431, Judge Stern, the Presiding Judge of the Appellate Division, reasoned that under the legal doctrine of "merger",  the defendant could not be convicted of setting false alarms due to the fact that the actual official misconduct (calling in false alarms) was the underlying basis of the charge.  

Official Misconduct as it relates to public employees and their office is a second degree crime and carries a maximum prison term of 10 years.  Furthermore, the New Jersey criminal code lists a presumption of incarceration for second degree criminal convictions, meaning a court must specify why imprisonment is not imposed in a particular case.  In essence, a Public Safety Officer who strays from path truth and justice and is in hot water, may be able to avoid the conviction of the underlying offense that was the basis for the conviction of Official Misconduct. 

New Jersey Public Safety Officers Law Blog Featured on Inter-Alia

I am pleased to announce that the New Jersey Public Safety Officers Law Blog was recently featured as the "blawg of the day" on Inter-Alia, An Internet Legal Research Weblog, amongst other things.  Inter-Alia is authored by Tom Mighell.  Tom is the author of The Lawyer's Guide to Collaboration Tools and Technologies: Smart Ways to Work Together.  The book is published by the American Bar Association Law Practice Management Section

Tom is senior counsel and Litigation Technology support coordinator at Cowles & Thompson in Dallas. He is a frequent speaker and writer on the Internet, and has published the Internet Legal Research Weekly newsletter since 2000 and the Internet and technology blog Inter Alia since 2002. He is a member of the ABA TECHSHOW Planning Board, and currently serves as chair of ABA TECHSHOW 2008
 

I want to thank Tom for the recognition and state that I am grateful that our work in educating Public Safety Officers as to their legal rights in the Garden State has not gone unnoticed.  I also want to thank everyone who visits our blog on a routine basis to learn about the laws that affect Police Officers, Corrections Officers and Firefighters in the state of New Jersey.

Once Again--Thank You

Frank M. Crivelli, Esq.

When it Comes to Public Employee Discipline--Watch Out for the Repercussions of Settlement Agreements

In the case entitled, In The Matter of Poplawski, 33-2-0649, the New Jersey Superior Court, Appellate Division rendered a decision that upheld the New Jersey Department of Personnel, Merit System Board's decision that the removal of the Appellant's name from a promotional list was proper due to his past disciplinary history.  Poplawski appealed his employer's action of removing his name from a promotional list due to his alleged adverse employment history.  Poplawski's employment history included two adverse actions that resulted in suspensions from employment due to charges centering around N.J.A.C. 4A:2-2.3 (a) 6, conduct unbecoming a public employee.  Both of the charges that resulted in suspension were disposed of by way of settlement agreement.  The Appellate Division held that the Merit System Board's actions were not arbitrary, capricious or unreasonable due to the fact that the Appellant had actually agreed with the disposal of the disciplinary charges by a settlement and based upon the same, the action's of the board were upheld.

It is important to remember that the disposal of discipline by way of a settlement agreement may seem like a good idea when you are staring down the charges.  However, settlement agreements can have repercussions concerning promotion from a civil service list of eligibles.  Thus, if at all possible, when disposing of charges by way of settlement agreement, a clause that states that the discipline can not be used against the employee for promotion should be included.

Service as a Public Safety Officer and The First Amendment--Blurring the Line

In the case of Leek v. New Jersey Department of Corrections, 33-2-0497, a Senior Corrections Officer appealed the New Jersey Department of Personnel, Merit System Board's decision to uphold the Department's issuance of a thirty (30) day suspension for violation of the Department's internal rules and regulations and conduct unbecoming a public employee.  The case revolved around the conduct of Leek who repeatedly attended court hearings in uniform with a criminal defendant that was free on bail but had previously been a county jail inmate.  Leek further wrote a letter that identified himself as a Senior Corrections Officer and asked for leniency on behalf of the defendant. 

In defense of his actions Leek stated that he was acting in his capacity as an ordained minister and spiritual adviser on behalf of the inmate.  Leek never informed the Department or his superiors of his conduct and failed to request permission to appear on behalf of a defendant facing criminal charges in a New Jersey Court of Law.

Despite Leeks arguments that were based on his First Amendment rights, the New Jersey Superior Court, Appellate Division agreed with the Merit System Board that upheld the thirty day suspension imposed by the New Jersey Department of Corrections.  In summary, while Public Safety Officers do garner protections under the First Amendment of the United States Constitution, they can not call upon these protections when their actions are detrimental to their employer, public perception, and their sworn law enforcement duties. 

Fundementals of the New Jersey Department of Personnel Disciplinary Process

          Achieving the desired level of discipline within a law enforcement unit is among the most important responsibilities of the law enforcement executive, and the governing body. Yet this is one of the most frequently neglected processes within many law enforcement agencies. This will be first of a series of Blog posts that concentrate on the public employee disciplinary process as promulgated by the New Jersey Department of Personnel under Title 4A of the New Jersey Administrative Code. Having a firm grasp of the disciplinary process is critical to the well being of all Public Safety Officers. Please take your time in reading these posts as they pertain directly to the security of your employment and the means that you support yourself and your families.

          The word “discipline” was originally defined by the courts as “instruction”, “teaching” or “training”. However, its meaning and the use of discipline has shifted toward a concept of control through punishment. This emphasis on control has resulted in discipline being viewed as a negative threat to employment rather than a mechanism for remediation and improvement. Too frequently rules of conduct and disciplinary procedures are used as an end in themselves, and their purpose in reaching departmental goals is forgotten.

          Focusing on the negative aspects of discipline diminishes morale and productivity. The first step that should be used toward positive discipline is to emphasize instruction and de-emphasize control. This requires the law enforcement executive to focus on organizational practices. Unfortunately in today’s world of public employment, this is rarely the case.

          In exercising appropriate discipline, the executive must first define the goals and objectives of the agency's units, and then announce management's expectations to guide the units toward the realization of those goals. The law enforcement executive must establish a means to monitor performance and to correct improper actions. This approach to management as it relates to discipline insures that all subordinates know and understand what must be done, why it must be done, how it must be done, and when it must be done.

          Employees must be clearly told what constitutes satisfactory performance, non-satisfactory performance, and how non satisfactory performance can lead to appropriate discipline. In addition, supervisors and managers must know when and how to take necessary corrective action. To achieve these goals, management must establish workable procedures for documenting all expectations and advising individuals of their duties and responsibilities.

          There are numerous levels of discipline under the rules and regulations of the New Jersey Department of Personnel to include:

  • Official Written Reprimand;
  • Fine;
  • Minor Suspension (1 to 5 days);
  • Major Suspension (6 to 180 days); and
  • Termination

          In our next post we will discuss the various levels of discipline that is recognized under 4A, and the concept of progressive discipline under the New Jersey Administrative Code.