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

Yesterday, I had the opportunity to sit down with the Treasurer for the State of New Jersey, David Rousseau, the Director for the Governor's Office of Employee Relations and Union officials that I represent.  The purposes of the meeting was to listen to the Treasurer's doom and gloom speech regarding the State budget, how broke the state is, and how difficult it is to balance the State budget as mandated by the New Jersey State Constitution.  With that being said, it can not be denied that we are in an extraordinary economic climate that has not been experienced in our life times. 

One of the plans to cut the budget that was proposed by Governor Corzine and his staff is to issue mandatory involuntary furloughs to all State Law Enforcement Officers.  Of course this idea when presented to union officials was met with disdain and discontent.  First, under New Jersey State law, there is no such thing as an "involuntary furlough".  Furloughs as defined by the New Jersey Department of Personnel are voluntarily absences initiated by public employees at the request of the government.  When the government makes a unilateral decision to absent an employee from work against his or her will, even if it is for a day or two, it is a "layoff".  When layoffs are initiated by State, County, or Municipalities, again, these governmental bodies must follow the rules and regulations promulgated by the New Jersey Department of Personnel.  Thus, special re-employment lists must be created, and all of the seniority and bumping rights contained in collective bargaining agreements must be followed.

I am writing this entry for two reasons.  First, to educate our readers and union officials about the fallacy of "involuntary furloughs"; and second to call all public safety officers throughout the state of New Jersey to action.  Laying off public safety officers, whether they be state, county or municipal, in an effort to save a few dollars to balance a budget is a horrific idea.  Think about it.  When there are less police officers on the streets due to layoffs, are the criminals going to take a vacation?  Are the buildings in New Jersey going to stop burning?  How about the security of our prisons.  Are the convicted murders, rapists and gang members housed in institutions through out the state going to be more cooperative because there are less corrections officers walking the tier?

It is a shame that some politicians do not commit to public safety the same way that all of the professional police officers, firefighters and corrections officers do on a daily basis.  Thus, please call you Assembly Members and State Senators.  Make them aware that public safety officers through out the state will not stand for the public safety of our loved ones to be diminished because of the fiscal crisis that we are in due to the politically poor planning and lack of foresight.  Now is time that all public safety officers must come together in solidarity to protect your employment rights, your health and safety, and the health and safety of those citizens that you protect and serve on a daily basis.

As always--Thank you for all of the protection and piece of mind that you provide on a daily basis. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Jerry DeMarco, a reporter with the website www.examiner.com has reported that significantly more police unions around the state are turning towards interest arbitration as a means to settle their contract due to the hard line stance that many municipalities and county governments have taken during negotiations.

DeMarco reported that the average salary increase for arbitration awards dipped slightly last year, to 3.73 percent from 3.77 percent, according to the New Jersey Public Employee Relations Commission (PERC). Furthermore, salary increases from voluntary settlements averaged 3.92 percent, down from 3.97 percent in 2007. PERC records show that in Northern New Jersey, nearly a half-dozen awards made by arbitrators this year average 3.92 a year in their overall impact on police salaries over the life of the contracts.

The article further reports that a long-running contract dispute in Englewood, New Jersey, finally ended in December, with police getting a 4% hike for 2007 through 2009, and a 3.8% increase for 2010. Fort Lee police, similarly, got 4%for 2007 and 2008 and 3.5%for 2009 and 2010.  North Arlington police, who filed for arbitration nearly a year ago, were awarded 15.25%over four years in September, 2008.

Interest arbitration is always a viable option for dispute resolution when public safety unions reach an impasse with their governmental employers. The Police and Fire Public Interest Arbitration Reform Act is the statute that governs interest arbitration within the state of New Jersey; and should a public safety collective bargaining unit make the decision that contract negotiations have reached an impasse, this act will be the controlling piece of legislation in the arbitration process. 

Prior to filing for interest arbitration, it is advisable that the union’s executive board familiarize themselves with the Police and Fire Public Interest Arbitration Reform Act, and the criteria that is utilized by arbitrators in issuing an award. Furthermore, the collective bargaining unit should ensure that they do not walk into the arbitration process alone. It is imperative that they consult with and hire competent counsel prior to the initiation of the petition for interest arbitration.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In the matter of Florence v. Board of Chosen Freeholders of the County of Burlington, Civil Action No. 05-3619, the United States District Court, District of New Jersey, addressed the issue of strip searches of non-indictable offenders.

Plaintiffs consisted of a certified class to include all arrestees charged with non-indictable offenses, which were processed at Burlington County Jail and/or the Essex County Correctional Facility and were strip searched without a reasonable belief that they were concealing contraband, drugs, or weapons. Defendants were the Board of Chosen Freeholders of Burlington County, Burlington County Jail, Warden Juel Cole, Essex County Correctional Facility, Essex County Sheriff’s Department, and several John Does.

Plaintiffs sought summary judgment on the issue of whether Defendants violated Plaintiffs’ constitutional rights by their policy of strip searching non-indictable arrestees without reasonable suspicion. Plaintiffs also sought injunctive relief on behalf of the class against the correctional facilities’ strip search policies.

In response, Defendants also sought summary judgment as to whether the strip searches were constitutional. In addition, Defendants sought summary judgment on the following issues: (1) 11^th Amendment immunity for the Board of Chosen Freeholders of Burlington County, Burlington County Jail, and Warden Cole in his official capacity; (2) qualified immunity for Warden Cole in his individual capacity; and (3) the dismissal of count five involving section 1983 municipality custom violations regarding Essex County.

The District Court held that blanket strip searches of non-indictable offenders, performed without reasonable suspicion for drugs, weapons or other contraband are unconstitutional. Specifically, the Court indicated that the search policies at Burlington and Essex County jails do not pass constitutional muster under the balancing test set forth by the U.S. Supreme Court in Bell v. Wolfish. The Court also determined the justification for the blanket policy is not compelling, where it is based on general security concerns and health concerns, as nothing prohibits jail officials from searching non-indictable offenders, assuming they have reasonable suspicion to do so.  

Based upon its finding that blanket strip searches of non-indictable offenders, performed without reasonable suspicion for drugs, weapons or other contraband, are unconstitutional, the Court granted Plaintiffs’ motion for summary judgment. As to a remedy, the Court denied Plaintiffs’ motion for injunctive relief on account of a lack of standing, since Plaintiffs have failed to show irreparable harm in that they are unlikely to be subjected to strip searches in the future. 

Lastly, the Court denied Defendants’ Motion to dismiss in its entirety. The Court found Defendants’ arguments and factual averments are too scant to support a finding of 11^th Amendment immunity and Plaintiffs’ factual allegations regarding municipal liability under section 1983 sufficiently complied with pleading requirements under Federal rules. Finally, the Court determined Warden Cole was not entitled to qualified immunity since a constitutional violation was present and Warden Cole ought to have been put on notice that the strip search policy was unconstitutional.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On February 5, 2008, in State v. DeAngelo, Docket No. A-73-07, the New Jersey Supreme Court held that a municipality violated free speech rights by banning temporary signs on public streets, including a 10-foot high inflatable rat at a labor protest. This case was the subject of a previous blog entry wherein our office analyzed the oral argument which took place in September 2008.

The Court unanimously called a Lawrence Township ordinance, which prohibited “banners, pennants, streamers…portable signs, balloons or other inflated signs (except grand opening signs,” unduly restrictive of free speech and expression. Specifically, Justice John Wallace, Jr. wrote that the ordinance “is content-based, does not fairly advance any governmental interest, and is not narrowly tailored to prevent no more than the exact source of that evil that is seeks to remedy.” 

By way of background, in 2005, Wayne DeAngelo, a senior official with the International Brotherhood of Electrical Workers Local 269, was fined $100 and assessed $33 in costs for using the inflatable rat to protest a Gold’s Gym being built in the township without union labor. A trial judge and the Appellate Division panel rejected constitutional challenges by DeAngelo and the union, but a dissenting appeals judge, Jack Sabatino, agreed the ordinance was constitutionally deficient.

In the Supreme Court’s ruling, Justice Wallace said DeAngelo’s protest was protected by the state and federal constitutions, as to both content and location. To support same, he cited U.S. Supreme Court precedents holding that public streets, parks, and sidewalks are traditionally public forums that occupy a “special position in terms of First Amendment protection” and that government cannot restrict expressive activity in such venues without a “compelling reason.”

The Court also rejected the rationale advanced by the township that the ordinance was designed to promote aesthetics and maintain public safety. Specifically, the Court stated, “although they are salutary goals, they do not justify a content-based restriction on free speech” and that an ordinance that prohibits a union from displaying a rat balloon, while authorizing a similar display as part of a grand opening, is content-based.

This ruling is expected to have statewide implications since municipalities across New Jersey have similar ordinances. Therefore, many municipalities will have to rework their own ordinances in order to conform to the ruling. Moreover, according to Andrew Watson, DeAngelo’s attorney, the ruling is a landmark victory for labor activists. Specifically, Watson stated, “this vindicates their [labor union’s] rights to an orderly, non-threatening means of protest.” As such, this case represents another important judicial decision regarding labor protesting and its collision with free speech.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Most recently, I was contacted by Jim Messier, President of the New Jersey Law Enforcement Association, and informed that he received notification from the Association's accountants, McEnerney, Brady & Company, L.L.C., that Sick Leave Injury payments are not subject to state and federal income tax in accordance with Internal Revenue Code 104(A)(1) and Dyer v. Commissioner 71 TC 560 (1979).  The accounting firm opined that when a law enforcement officer is injured in the line of duty and the officer will continue to receive full wages (such as SLI payments), said payments are considered workers compensation benefits and thus not subject to taxation.

Continuing with this notion, the following benefits must be recognized during a period of injury or infirmity that was caused during a line of duty mishap:

• Federal income tax is not charged on wages received during the time that the Law Enforcement Officer is injured and out of work.
• Wages received during the time that the Law Enforcement Officer is out of work due to a line of duty injury is also not subject to New Jersey state income tax.
• Social Security and Medicare with holdings also cease during the time the officer is injured and out of work. 

If the employer continues to withhold taxes during a period of injury or infirmity, a formula must be utilized to compute the amount of wages that are not subject to taxation, and federal and state forms must be completed and attached when filing one's taxes.  Furthermore, if taxes were withheld unjustifiably and the injury occurred within the last three years, the injured Public Safety Officer may file an amendment to his or her taxes using federal tax form 1040x.

I am posting this information for two very important reasons.  First, I want to make all Public Safety Officers aware of this very important exception to the tax code that has the potential to keep more money in an officer's pocket during the time he or she is out of work with a line of duty injury. 

Second, I am reminding all readers of our blog that this web site needs to be used as a forum to exchange information and ideas that are vitally important to the lives and careers of all New Jersey Public Safety Officers.  There are very few forums that allow Public Safety Officers to openly share information that has an impact on one anothers lives and careers.  Therefore, lets use this website as a forums to make all Public Safety Officers aware of issues that are occurring through out the entire state of New Jersey and the Country as a whole.

If you or your department has encountered an issue or problem that you feel is note worthy or important, let me know about it.  I will write about your issue and make all of our readers (which is growing by the day) aware of it so that a discussion can take place and information exchanged that can solve the problem.  I am sure one department's novel issue has already been experienced by another.  The Internet is a great communication tool to exchange important information.  Lets use this forum to our advantage.  Tell me your issues so we can discuss them and solve them together.  Comments to the blog posts are always welcomed and encouraged.

Best--Frank

• Email This
• Print
• Comments (3)
• Trackbacks
• Share Link

This blog entry will focus upon our review of certain statutory proposals currently pending in the New Jersey Legislature concerning the pay status of law enforcement officers when appeals of termination are not resolved within 180 days. These proposals are set forth in Assembly Bill Number 3481. 

Assembly Bill 3481 concerns the suspensions of certain law enforcement officers and firefighters and supplements Title 40A of the New Jersey statutes and specifically amends N.J.S.A. 40A:14-150 and N.J.S.A. 40A:14-22. In essence, the bill allows certain law enforcement officers and firefighters to regain pay status when appeals of termination are not resolved within 180 days.

The first part of the bill provides:

When a law enforcement officer employed by a law enforcement agency…that is subject to the provisions of Title 11A of the New Jersey Statutes is suspended from performing his official duties without pay for a complaint or charges, other than (1) a complaint or charges relating to the subject matter of a pending criminal investigation…whether pre-indictment or post indictment, or (2) when the complaint or charges allege conduct that also would constitute a violation of the criminal laws of this State or any other jurisdiction, and the law enforcement agency employing the officer…seeks to terminate that officer’s…employment for the conduct that was the basis for the officer’s…suspension without pay, a final determination on the officer’s…suspension and termination shall be rendered within 180 calendar days from the date the officer…is suspended without pay.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On January 31, 2009, the Louisville Courier-Journal reported that approximately 50 Louisville Metro Police officers decided to turn in their patrol cars so they will not have to pay an increased fee for using them after work hours. Police Chief Robert White announced in December, 2008 that officers who take their vehicles home would have to pay a $100 monthly fee to help cut expenses in the department and help address a $20 million projected city budget shortfall. Officers who use their cars for off-duty employment will have to pay $160 per month.

Previous to the announcement, officers were paying a $30 monthly fee or $60 for off-duty employment use. The fees have been an issue of contention between the police administration and the Fraternal Order of Police, the union that represents officers. The union contends that assessing the fee violates their contract because it was not negotiated as a change. However, police department managers say driving cars home is a privilege and is not part of the officers' contract.

The policy that assessed the original fee is the subject of a grievance that is presently outstanding. When the fee was increased, the grievance was amended to include the new proposed charges.

The police department estimates that approximately 1,094 police department vehicles are used as take-home cars. With the policy in place and the increased fees, the police department estimates that a savings for the city in the amount of $110,000.00 will be realized on a monthly basis.

While this particular article does not have direct applicability to New Jersey Public Labor Law, it does demonstrate that state, county, and municipal police departments throughout the country are looking to curtail spending and reduce costs due to the economic recession. If cuts have not been made in many departments throughout New Jersey, union leaders can expect to see the implementation of cost savings measures soon. It is vitally important to the rights of organized public safety officers that each one of these “cuts” or cost savings measures be assessed and evaluated to determine if the actions are contractual violations and should therefore be the subject of a group grievance. Keep your eyes and ears open and be sure that the rights of your members are being protected.  Finally, always be sure to fight within the confines of the law to preserve the integrity of your collective bargaining agreement.

• Email This
• Print
• Comments
• Trackbacks
• Share Link