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

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In a letter dated December 15, 2008, Wendy Jamison, Secretary for the Police and Firemen's  Retirement System (PFRS),  explained that PFRS has recently adopted amendments to the New Jersey Administrative Code that addresses training requirements for Police Officers and Firefighters and the potential affect of the same to pension eligibility for some members of PFRS.

In her letter, Ms. Jamison explained that in order for a member of PFRS to meet the eligibility criteria for the pension system, he or she must work in a title that meets the definition of "police officer" or "firefighter" and meet specific minimal training requirements.  The training requirements for eligibility in PFRS is that each member of the retirement system must complete the basic training course for Police Officers as prescribed by the New Jersey Police Training Commission, and Firefighters must receive Firefighter 1 certification through the New Jersey Department of Community Affairs, Division of Fire Safety.  What is important to note is that N.J.A.C. 17:4-2.4 mandates that should pension members not pass and/or receive said certification within eighteen (18) months after the final adoption of the new regulation, they will be dis-enrolled and removed as an active member of PFRS.

In essence, PFRS members that do not have the required training as specified under N.J.A.C. 17:4-2.4, have until June 30, 2010, to complete the required training.  If any active member of the retirement system not be fully trained by July 1, 2010, they will be removed as an active member of PFRS. 

in closing, Ms. Jamison notes that certain federal, state, or county training may be substituted for the training required under N.J.A.C. 17:4-2.4, so long as the same is approved by the New Jersey Police Training Commission and the PFRS Board of Trustees.  However for Firefighters, no other training other than Firefighter 1 certification through the New Jersey Department of Community Affairs, Division of Fire Safety, will be accepted.  It should also be noted that while the letter is silent regarding Corrections Officers; common sense dictates that completion of the Corrections Officers Training Academy (COTA) will satisfy the requirements of N.J.A.C. 17:4-2.4.  However at this time we are contacting the Board of trustees to obtain clarification to ensure Corrections personnel are protected and covered.

The reason that we are bringing this to the attention of our readers is to ensure that all Public Safety Officers are made aware of the new regulation and that their training certification is up to date for purposes of qualifying as a member of the Police and Firemen's Retirement System.  PFRS is regarded as the "gem" of the public employment retirement systems in the State of New Jersey.  For obvious reasons, the retirement system garners great benefits for its membership in comparison to the other large public employment retirement systems provided by the state of New Jersey.  over the years, PFRS and the New Jersey State Legislature has been lobbied by administrators and non public safety officer groups to obtain membership in the retirement system.  With the passage of the new regulation, there should no longer be a question as to which employees have the right and ability to claim membership in PFRS.

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In In the Matter of Thomas F. Fricano, Borough of Freehold, Docket No.: A-2280-07T3, the Appellate Division addressed Appellant Thomas Fricano’s appeal from final decisions of the Merit System Board (“Board”), dated September 27, 2007 and December 7, 2007, upholding his resignation in good standing from the Borough of Freehold Police Department.

By way of background, Fricano received a regular appointment as a police officer in Freehold on April 3, 2006. The appointment was subject to the successful completion of a one-year probationary working test period, commencing after completion of a police training course. On February 2, 2007, Fricano, in a written letter, resigned to pursue other opportunities in law enforcement. The appointing authority accepted the resignation, which was made effective February 22, 2007. 

The circumstances surrounding Fricano’s resignation are in dispute and at the core of the appeal. According to Fricano, on February 2, 2007, after having served ten months of his one-year probationary working term, he was summoned to the office of the Police Chief. Allegedly, the Chief ordered Fricano “to resign or be terminated immediately.” Denied his request for legal representation or to have a PBA representative present, Fricano drafted and submitted a letter of resignation under duress and coercion. Thereafter, on February 16, 2007, Fricano’s counsel wrote to the Chief requesting that he be able to rescind the resignation. The Borough attorney advised Fricano that he would not be reinstated, instead stating that “they could have fired him instead.” Subsequently, on March 13, 2007, Fricano was issued a preliminary notice of disciplinary action, charging him with numerous violations. On March 22, 2007, the appointing authority withdrew the charges and, thereafter, on March 28, 2007, issued Fricano a letter indicating that he did not satisfactorily complete his working test period and that he was being terminated effective April 3, 2007.

The Borough offers a different version. When called to his office, the Chief advised Fricano that his performance during the working test period had not been satisfactory, and, therefore, offered him the option to resign effective February 22 or face termination for failure to satisfactorily complete his working test period. This offer was made so that Fricano could avoid any stigma which might attach to an involuntary termination. Fricano decided to resign and submitted a resignation letter the same day. In the letter, Fricano explain that he resigned to pursue “a different choice in the Law Enforcement Career.” Although he did not work after February 2, he was paid through February 22, and his resignation was recorded effective February 22, 2007. After being subsequently informed of Fricano’s intention to challenge his resignation, the police department issued the preliminary notice of disciplinary action on March 13, 2007. On March 22, 2007, the police department withdrew the charges and, instead, as a cautionary measure, issued a letter to

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In Division of State Police v. In the Matter of Detective Sergeant First Class Daniel Flaherty, Docket No. A-0257-07T20257-07T2, the Appellate Division addressed the validity and ultimate imposition of disciplinary charges lodged against a Detective Sergeant of the New Jersey State Police. The appeal arose out of disciplinary charges filed by the New Jersey Division of State Police (“Division”) against Detective Sergeant First Class Daniel Flaherty, charging him with: (1) disseminating Division documents without proper authorization; (2) behaving in an official capacity to the personal discredit of a member of the State Police or to the Division; and (3) willfully disobeying a lawful verbal or written order.

The underlying facts of this case were not substantially in dispute. In 2001, Flaherty filed an age discrimination complaint with the New Jersey State Police Equal Employment Opportunity/Affirmative Action (“EEO/AA”) intake unit. He alleged that since 1995, the State Police had denied him numerous specialist positions because of his age. The EEO/AA assigned Lieutenant Patrick Reilly to investigate his claim. After two years, in which the allegations still had not been resolved, the EEO/AA replaced Reilly with DSFC Kevin Rowe.

On May 5, 2003, Flaherty filed a New Jersey State Police Reportable Incident Form alleging “culpable inefficiency” against Reilly. Pursuant to a Division policy regarding non-disclosure of confidential internal investigations, the Office of Professional Standards (“OPS”) denied his request to access the file regarding his complaint against Reilly.

The following month, the State Police administratively closed Flaherty’s complaint file against Reilly and transferred the matter to the Attorney General’s EEO/AA section. In a letter dated September 24, 2003, a Senior Deputy Attorney General informed Flaherty that his claim against Reilly could not be substantiated. 

Thereafter, on May 31, 2003, the Division assigned Flaherty to the OPS, which was then called the State Police Internal Affairs Investigation Bureau. Pursuant to Division of Internal Affairs policies and procedures, “[t]he nature and source of internal allegations, the progress of internal affairs investigations, and the resulting materials are confidential information. The contents of internal investigation case files shall be retained in the internal affairs unit and clearly marked as confidential.” Notwithstanding these provisions, internal investigation files can be released in certain enumerated circumstances.  As such, Flaherty executed a confidentiality agreement which provided the dissemination of all confidential information and/or documents.

In a letter dated February 20, 2004, the Department of Law and Public Safety found that Flaherty’s age discrimination claims could not be substantiated. In his appeal to the Department of Personnel, Flaherty questioned the manner in which the State Police and the Attorney General’s office investigated his

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In Brennan v. Township of Fairfield, the United States District Court for the District of New Jersey addressed an important topic for public safety officers, freedom of speech. In this case, Plaintiff, a police officer, alleged he was retaliated against for distributing a memorandum on police letterhead to the Mayor and Township Council. The memorandum contained the officer’s reasons for having issued two motor vehicle summonses to a township administrator.   

Defendants moved for summary judgment of plaintiff’s claim. The Court granted the motion because Plaintiff’s speech was made pursuant to his duties as a police officer. Therefore, his speech was not protected by the First Amendment. In addition to seeking summary judgment, Defendants also moved for sanctions against Plaintiff for the assertion of a claim which Plaintiff later withdrew. The Court denied this motion along with Defendants’ other motions to disqualify counsel and to compel mediation.   

This case, although very brief, illustrates how one’s freedom of speech can be limited based on the context in which the speech is offered. Speech made pursuant to one’s duties as a public safety officer will not be protected by the First Amendment, thereby negating support of a retaliation claim. As a result, it is important for public safety officers to be cognizant of the distinction between speech made pursuant to their employment from all other forms.

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