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

Four New Jersey unions are asking a court to stop mandatory furloughs of public workers. Yesterday, March 30, 2009, the New Jersey Policemen’s Benevolent Association and the Communication Workers of America, which collectively represent 93,000 police officers, firefighters and rank-and-file state and municipal workers, filed separate actions in the Superior Court of New Jersey, Appellate Division. The Probation Association of New Jersey and the Firemen’s Benevolent Association also filed similar suits. The actions seek to block a new Civil Service Commission rule giving the Governor and local governing bodies emergency power to impose temporary layoffs because of the economic crisis.

As stated in a previous blog entry, Governor Corzine and the State of New Jersey intend on instituting a mandatory furlough program, which requires various State of New Jersey employees to absorb unpaid days of absence from their position of employment. Initially, the mandatory furlough program requires certain State employees to absorb two (2) unpaid days of absence from the workplace, specifically one day each in May and June 2009. Thereafter, the State seeks to extend the mandatory furlough program into Fiscal Year 2010, whereby certain State employees are to absorb twelve (12) unpaid days of absence from the workplace, one day each month for the entire fiscal year.

To accomplish this goal, on March 25, 2009, the Civil Service Commission adopted, on less than 24 hours notice, a new, emergency rule, N.J.A.C. 4A:8-1.1, to permit “temporary layoffs,” or furloughs, for both State and local employees. The Commission did so without any notice to the parties who would be immediately affected by this action and without an opportunity to discuss the proposed rule. It is this rule which is being challenged by the various unions.

It goes without saying these lawsuits are of vital importance to any law enforcement officer, firefighter, and State of New Jersey employee. The outcomes of these actions might very well have a drastic impact not only on any and all State employees, but the public at large. As a result, please consult this blog periodically to ascertain updates regarding the status of these lawsuits.      

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

Point Pleasant Beach Police Chief, Daniel DePolo, has charged that the budgetary cuts initiated by the Borough Government are so deep that they are placing the public safety at risk and will prevent the police department from fulfilling its mission.  Recent budget cuts have chopped the Department's overtime budget by 75% and have made cuts to the Department's ability to hire special seasonal officers by 50%. 

After listening to Councilman John Mercun’s budget report on Tuesday night, Police Chief Daniel DePolo publicly stated:  “You’ve given me a budget I can’t work with.  It’s impossible for me to survive on this budget. There will be furloughs in the fall and layoffs.”  The chief said the finance committee has often talked of “trimming the fat from the budget, not the muscle,” but added, “this is a stake through the heart. Will the town recover? Beats me.”

We are bringing this article to your attention as another New Jersey municipality has chosen to place public safety on the back burner during times of economic recession.  As stated by the State Troopers Fraternal Association's President, David Jones, at a meeting with the New Jersey State Treasurer, "bad guys and criminals don't take time off during a recession.  If anything, crime increases when the economy turns sour."

Again, get out and support your fellow law enforcement officers.  During economic times such as these, no jobs are completely safe and away from the chopping block.

To read the complete article regarding the Point Pleasant Beach Police Department that was published in this weeks Ocean Star click on the link below.

Police Chief Blast Proposed Budget Cuts.

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

On March 20, 2009, the United States District Court for the District of New Jersey decided the case of Wade v. Colaner. In the case, plaintiff, a Tinton Falls police officer, was pulled over by New Jersey State Troopers for speeding. Plaintiff was subsequently charged with careless driving, obstruction of administration of law, and resisting arrest. On account of this incident, he was suspended from his position of employment.

Ultimately, plaintiff brought this action alleging excessive force and deliberate indifference. Defendants counterclaimed against Plaintiff for reimbursement of the wages paid to Plaintiff during his suspension and moved for summary judgment as to Plaintiff’s other claims. The Court denied Defendants’ motion to dismiss Plaintiff’s excessive force claim, but dismissed Plaintiff’s deliberate indifference claim. Moreover, the Court granted the Tinton Falls Defendants’ motion for summary judgment finding that Plaintiff was not entitled to a pre-suspension hearing and also granted the motion for summary judgment for reimbursement of the wages paid to Plaintiff during his suspension.

This case shows that a public safety officer who is suspended from his or her employment and is continuing to receive their wages during the period of suspension potentially may have to reimburse their employer for the wages they have received. As a result, public safety officers should be conscious of this possibility in the event they are suspended from employment.

A similar type concept was the subject of previous posts to this blog regarding the 180 day bill recently signed into law. As you will recall, the bill, in essence, allows certain law enforcement officers and firefighters to regain pay status when appeals of termination are not resolved within 180 days. Under this bill, if an officer and/or firefighter has been receiving his/her base salary after expiration of the 180 day period and he/she ultimately loses their appeal, the officer and/or firefighter will be required to reimburse the employing agency of department all of the base salary received during the period of appeal. Certain rules of law such as these make it imperative for public safety officers to be informed regarding all the potential consequences in the event they are targeted for suspension and/or removal.   

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

A very interesting article and interview most recently appeared in the New York Times regarding police salaries, pay raises, furloughs, and lay offs in the Township of East Brunswick.  The article has relevance to the entire state of the economy in New Jersey.  We wanted to share this article with you as it is pertinent to what many departments are going through during this difficult period of securing a raise in wages and benefits.  The article can be found in its entirety at the link listed below.

New York Times Article

Best --Frank M. Crivelli, Esq.

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

 On March 20, 2009, the Appellate Division decided In the Matter of Larry Martin, Docket No.: A-3271-07T3. In the case, Larry Martin, a police officer with the City of Jersey City, appealed from a disciplinary penalty imposed upon him by the Merit System Board.

Martin, who had been a member of the Jersey City Police Department for 22 years, failed to attend mandatory weapons qualification training for a new service weapon, a Glock .45 caliber handgun, on May 10, 2005. As a result, he was charged with “disobedience to a lawful order” and “absence without leave” in violation of the Police Department’s rules. After holding a hearing, Jersey City sustained the charges and imposed an eight-day loss of vacation days. Martin appealed to the Board.

The matter was referred to an administrative law judge (“ALJ”) who conducted a hearing. The ALJ, in his decision, found that Martin had been given a direct order by his superior officer to attend the training session and failed to do so. The ALJ sustained the charges and the disciplinary penalty. Neither party filed exceptions and the matter went to the Merit System Board for a final decision.

After conducting its independent review of the record, the Merit System Board agreed the charges had been proven. However, the Board increased the penalty to a 120 day suspension based on Martin’s previous major disciplinary history. In reaching this conclusion, the Board considered the seriousness of the underlying incident, the concept of progressive discipline, and Martin’s prior record. This appeal ensued. 

On appeal, Martin contended that the Board’s decision to increase the penalty was arbitrary, capricious, and unreasonable and unsupported by the record. The Appellate Division disagreed and affirmed the Board’s determination. The Court found no basis to overturn the decision and noted that Martin had defied a direct order of his superior officer, on a very important issue, namely firearms training. The Court further noted that Martin had a prior history of four substantial disciplinary sanctions. Based on the nature of the underlying infraction, Martin’s past history of disciplinary sanctions, and the Board’s policy of progressive discipline, the Court did not find the increase in the penalty to be arbitrary, capricious, or unreasonable. 

The case illustrates the principle that an agency can increase the penalty imposed upon a public safety officer in appealing a disciplinary determination. Many times, the increase will be upheld if the agency, such as the Civil Service Commission, adequately considered an officer’s disciplinary history, the nature of the underlying matter, and the policy of progressive discipline.

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

On March 16, 2009, the Appellate Division decided Siaw v. Valenzuala. In the case, Defendant Diomedes Valenzuala, a police officer, appealed from the judgment of the trial court denying his claims against his former employer, the Township of Irvington, for indemnification pursuant to N.J.S.A. 40A:14-155 in connection with his defense of a lawsuit against him arising out of his exercise of police powers in arresting Plaintiff.

TheCourt indicated that the central question in the case was whether, at the time Valenzuala lawfully arrested Plaintiff, Valenzuala was acting “in the furtherance of his official duties.” If he stopped to investigate a suspicious incident on his way to the police station in response to a call for him to report there on police business, as Valenzuala maintained, then Valenzuala would be entitled to reimbursement under N.J.S.A. 40A:14-155. If he was engaged in a side-business of “keeping the peace” for a towing company, as the trial judge found, then he was not acting “in the furtherance of his official duties” within the meaning of N.J.S.A. 40A:14-155, even if he acted lawfully in arresting Plaintiff.

The Appellate Division affirmed, finding that the trial court appropriately determined that Valenzuala was engaged in a side-business of “keeping the peace” for a towing company at the time of the arrest and not “acting in the furtherance of his official duties.” As a result, the Court dismissed Valenzuala’s action seeking reimbursement for costs associated with his defense of a civil action filed by Plaintiff. 

This case illustrates the principle that officers who work a side-job may not be reimbursed for defending a legal proceeding brought against them for actions which arose out of their performance of the side-job. Many public safety employees, especially during these economic times, work side-jobs in order to obtain additional compensation. All of these officers, however, should be aware of this case. In the event a lawsuit is brought against you, on account of your exercise of police powers while engaged in the side-job, the potential is great that you will not be reimbursed for defending such a lawsuit.

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

On March 5, 2009, New Jersey Governor Jon S. Corzine signed and committed into law the “180 day bill” designed to expedite disciplinary proceedings when law enforcement officers and firefighters are suspended without pay by limiting the number of days pay can be suspended while hearings are still pending.

Corzine stated in a press release that "This bill provides a fair safeguard to law enforcement and fire services-a safeguard that is appropriate in light of their unique contribution to the state by risking themselves to protect others," said Governor Corzine. "We know that the fact-finding and deliberative process can take many months; and that this places a very heavy burden on people, who then must cope with extreme financial hardship caused by a protracted suspension of salary at a difficult and emotional time when their careers are, essentially, in limbo."

The bill, A3481/S1336, was signed during the Police Benevolent Association Mini Convention in Atlantic City. For a full review and analysis of the “180 Day Bill”, please review our blog post of February 4, 2009 entitled, Legislative Proposal Seeks To Provide Law Enforcement Officers Pay Status When Appeals of Termination Are Not Resolved In 180 Days.

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

On February 3, 2009, the United States Court of Appeals for the Third Circuit decided the case of LaPosta v. Borough of Roseland. In the case, plaintiff, Joseph LaPosta, a police officer, alleges Defendants, the Borough of Roseland and its Police Chief, retaliated against him after he attempted to join a police organization of which the Police Chief did not approve. Plaintiff’s claims were brought pursuant to 42 U.S.C. §1983 and state tort law. 

Plaintiff was employed as a police officer with the Borough of Roseland. After completing his police academy training, Plaintiff was forced to join the Fraternal Order of Police (“FOP”) union. When Plaintiff expressed an interest in joining an alternative union, the Policemen’s Benevolent Association (“PBA”), the Police Chief advised Plaintiff that neither he nor any other officers were to have any influence from the PBA. Nevertheless, Plaintiff joined the PBA. Thereafter, the Police Chief allegedly retaliated against Plaintiff, specifically by subjecting Plaintiff to smoke from cigarettes, cigars, and scented candles, charging him with insubordination, denying him an earned stipend, belittling him in front of other officers, filing frivolous internal affairs claims against him, and denying him the opportunity to attend career-advancing classes and seminars.

Plaintiff’s complaint asserted six claims: (1) violation of 42 U.S.C. §1983; (2) intentional infliction of emotional distress against the Police Chief; (3) hostile work environment; (4) negligence; (5) intentional interference with prospective economic advantage against the Police Chief; and (6) conspiracy. Both the Borough and Police Chief filed motions to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Thereafter, the United States District Court for the District of New Jersey entered an opinion and order granting the motions. This appeal followed.

The United States Court of Appeals for the Third Circuit affirmed the District Court’s ruling in part, reversed in part, and remanded the case for further consideration. Specifically, the Third Circuit affirmed the dismissal of all but one of Plaintiff’s claims for failing to file a notice of claim under the New Jersey Tort Claims Act. However, the Third Circuit determined the District Court erred in dismissing Plaintiff’s §1983 claim. The Third Circuit held the retaliation claim was not barred by the statute of limitations and should be remanded to the District Court to be adequately analyzed as a claim based on freedom of association.

This case illustrates the importance of obtaining an experienced, qualified attorney prior to initiating an action similar to the one recounted above. There are many procedural hurdles one must follow, to include filing certain notices, to perfect the filing of such a claim. Consequently, it is imperative one obtains a qualified, experienced attorney to ensure their rights are protected. Moreover, this case shows that viable retaliation claims can be pursued against public employers. With the right set of facts, many courts are willing to explore such a claim and, potentially, hold the employer liable for infringing on one's right to join a certain collective bargaining unit.

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

In the case of Spicuzzo, Sheriff of Middlesex County et al. v. Barcheski, App Div., 33-2-2859, the Appellate Division approved a final judgment entered in favor of the Plaintiff, the Sheriff of Middlesex County, where in the Defendant in the case was ordered to reimburse the department $8,469.48 pursuant to a written contract outside of the collective bargaining agreement.  In the outside contract, the Defendant in the case, Barcheski, entered into a written agreement with the sheriff's department that if he left employment prior to the completion of forty eight (48) months active service, he would be required to reimburse the Sheriffs department for the full cost of his training and uniforms.  The trial court ruled that the contract between the parties was a lawful binding agreement despite the fact that there was no mention of the requirement for reimbursement in the collective bargaining agreement.  The Appellate Division affirmed the trial court's decision.

The lesson to take away from this case is simple.  Be very weary of "side agreements" or written contracts external to the collective bargaining agreement that are entered into between the department and individual officers.  While such contracts may not be binding upon a union, the courts have upheld such agreements as being valid when entered into between individual officers and the department despite the contract differing from the collective bargaining agreement. 

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

 On February 9, 2009, the United States District Court for the District of New Jersey decided the case of Martin v. City of East Orange. In the case, plaintiffs, two police officers, alleged that in failing to promote them in 2003, when officers ranked below them were recommended for promotion, although not promoted, the defendants discriminated against them in favor of officers more politically favored in violation of 42 U.S.C. §1983, the federal and state constitutions, and the New Jersey Law Against Discrimination. 

The Court dismissed all of plaintiffs’ federal claims. The Court held the officers had no constitutional right to promotion and they failed to produce any evidence of political favoritism or retaliation for having complained about being improperly bypassed for promotion. Further, the Court declined to assert subject-matter jurisdiction over the state law claim, thereby not addressing those issues. 

This case illustrates the importance of producing credible, substantive evidence in support of a claim alleging that one was improperly bypassed for promotion. It is vital that any public safety officer who seeks to assert such a claim should consult with a qualified attorney who is able to produce such competent evidence or determine whether such evidence exists so as to avoid the pitfalls present in this matter. Without the necessary proofs, such a claim will likely fail, as articulated by the Court in this case.

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