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 April 28, 2009, the Appellate Division decided In the Matter of Joan Ivan, Docket No.: A-1070-07T2.  Following a hearing conducted on April 15, 2003, appellant, Joan Ivan (“Ivan”), a Middlesex County Sheriff’s Officer, was suspended for thirty days as the result of disciplinary charges stemming from her alleged failure to truthfully report smoking by a fellow officer while in an official vehicle. In contrast, the officer committing the prohibited offense, after pleading guilty, was given a four-day suspension that could be served use of vacation days. Ivan appealed to the Merit System Board on May 16, 2003.

Thereafter, on August 22, 2003, Ivan was terminated when, in nine attempts over three days, she was unable to requalify for use of her service weapon. She appealed on September 12, 2003 and she filed an order to show cause on September 19, 2003, in which she contended that the Sheriff’s Department had violated her right to due process of law as the result of its failure to conduct a hearing prior to termination. The Department reinstated Ivan and served her with a preliminary notice of disciplinary action on September 29, 2003. Following a hearing on September 30, 2003, Ivan was served, on October 14, 2003, with a final notice of disciplinary action removing her from her position.

The two matters were referred to the Office of Administrative Law for a hearing, where they were consolidated for that purpose without objection. Following the hearing, at which testimony was given by numerous witnesses, the Administrative Law Judge (“ALJ”) recommended dismissal of the charge leading to Ivan’s suspension, but affirmance of the termination decision. No attorney’s fees were awarded. The Merit System Board adopted the ALJ’s decision, and this appeal followed. On appeal, Ivan challenged the Board’s failure to award counsel fees in connection with her appeal from the thirty day suspension, and she challenges the Board’s adoption of the ALJ’s findings with respect to her termination and the ALJ’s legal ruling with respect to the admissibility of expert testimony in connection with her termination.

The Appellate Division affirmed the Merit System Board’s determination in its entirety. Specifically, the Court rejected Ivan’s arguments that: (1) she was given insufficient opportunity to qualify with her weapon; (2) the ALJ should have admitted the testimony of her firearms qualification expert; and (3) she was entitled to counsel fees on her successful appeal from her suspension. After reviewing the decision of the ALJ and the Board in detail, the Court determined the Board’s action was supported by sufficient, credible evidence in the record as well as well-established statutory law and, therefore, was not arbitrary, capricious, and unreasonable.

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Recently, the primary authors of this blog, Frank M. Crivelli, Esq. and Donald Barbati, Esq., released a publication entitled “Taking the Necessary Steps to Win Your New Jersey Public Employee Disability Pension Appeal.” 

The publication thoroughly examines the different New Jersey Pension Systems, including the Public Employees’ Retirement System, Police and Firemen’s Retirement System, and the State Police Retirement System and the difference between accidental and ordinary disability benefits under the various pension systems. Moreover, the publication analyzes the applicable decisional and statutory law surrounding public employee disability pension appeals and articulates the necessary criteria to be satisfied and the steps one must take in order to obtain accidental and/or ordinary disability benefits.

This publication is a must have for all State of New Jersey, County and Municipal employees, especially New Jersey Public Safety Officers. Public employee disability pension law is a specialized and highly complex area of law. Should you ever find yourself in need of accidental or ordinary disability benefits, you would be hard pressed to find as useful a resource.

To obtain a free copy of the publication or, alternatively, to discuss its contents in more detail, please contact Frank Crivelli, Esq. or Donald Barbati, Esq. at (609) 890-1900 or via mail at: 2653 Nottingham Way, Hamilton, New Jersey 08619.  

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On April 17, 2009, the Appellate Division decided Tracey Wilde v. Township of Cranford, Docket No.: A-3391-07T2. In the case, the Workers’ Compensation Court awarded dependency benefits to petitioner, Tracey Wilde (“Tracey”) and her two children. On appeal, the Township of Cranford contended the court erred in finding that petitioner’s husband, Russell Scott Wilde, Sr., (“Wilde”) suffered a stress-induced occupational suicide which was compensable.

Wilde joined the Cranford Police Department in 1985. He was promoted to detective in 1990, sergeant in 1994, and lieutenant in 1999. As lieutenant, Wilde was responsible for supervising approximately fifteen patrolmen and two sergeants. During the course of his fourteen-year career, Wilde received numerous awards for professionalism and heroism.

On September 16, 1999, when Hurricane Floyd struck, Wilde was designated Incident Commander and he was put in charge of coordinating the Township’s rescue and recovery efforts. From September 16, 1999 to September 18, 1999, Wilde worked approximately 38 hours in a 51 hour period.

Tracey testified that her husband did not come home from work on September 16, 1999. When she visited him at the police station on September 17, 1999, she stated he was the only one “with his heavy rain gear on” even though the sun was out. She also testified that her husband was “wired” when he arrived home on that Friday evening, he could not “settle down,” and he did “not really” sleep “much” that night. Thereafter, Wilde left for work at approximately 5:00 or 5:30 a.m. Saturday morning and did not return home until approximately 6:00 p.m.

Later that evening, Tracey and Wilde attended a fellow police officer’s wedding. Tracey testified that her husband looked “very tired” so she drove to the wedding. During the reception, Tracey did not note anything unusual in his behavior. Before leaving the wedding, Wilde spoke to his father, Harry Wilde, who was Chief of Police for the Township. After Wilde spoke with his father, Tracey testified he “seemed more wired again and more…on edge and worrying about the next day, and what…his duties were going to be.”

As Tracey drive home, Wilde appeared tired, and he was talking about the next day. Tracey testified that Wilde appeared to be worried about what was going to happen the next day, which was unusual because he was not a “worrier.” After arriving home, Tracey and Wilde went to their bedroom, wherein Wilde was discussing what happened at work and stating he was “very exhausted.” Tracey further testified that although her husband was not a religious person, he stated “you have to be so thankful for God. You must have an angel looking over you….You know how lucky we are. We had an angel looking over us.” According to Tracey, her husband “never talked like that before,” and it was “very strange.”

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On Friday, April 17, 2009, The Superior Court of New Jersey, Appellate Division, upheld the ability of state and local governments to furlough public employees. The court agreed with the decision of the state government that the fiscal crisis that the state and nation currently faces allows for emergency action.

In citing its opinion the court stated, "Given the economic crisis confronting the state and nation, and the fluid and rapidly unfolding circumstances in which we live, we find the statement of 'imminent peril' to be sufficient," said the panel of three appellate judges in their decision.

Union lawyers argued in court the preceding day that the state has not proved it is in "imminent peril," a requirement to pass the emergency rule that authorized furloughs between now and June 30, the end of the current fiscal year. The appeals court did not say whether departments could stagger furloughs over a period of time, leaving that decision for the New Jersey Public Employment Relations Commission. More information on this topic will be reported when the same becomes available.  To read the entire article printed in the Newark Star Ledger click on the link below.

Furloughed Employees

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Yesterday, April 16, 2009, the Appellate Division conducted oral argument on the Emergency Temporary Layoff Rule. Specifically, the Appellate Division heard argument on the four appeals from the Civil Service Commission’s emergency rule authorizing temporary layoffs, also known as mandatory furloughs. The argument was conducted in the Morris County Courthouse in Morristown, New Jersey, with dozens of union members packing the courtroom. 

Lawyers arguing for the public employee unions said the State did not prove it was in “imminent peril,” a requirement to pass the emergency rule that authorizes the furloughs. Moreover, it was asserted that the furloughs are a clear breach of contract in violating numerous collective bargaining agreements.

The Assistant Attorney General, who represented the State, said the Civil Service Commission followed all the rules when it authorized furloughs. He further contended that public employees were risking layoffs by protesting furloughs.

The Appellate Division did not make a ruling on the case, but said to expect one soon. Therefore, please continue to check this blog periodically for updates as further information becomes available.  

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Yesterday, April 15, 2009, Governor Corzine issued a press release announcing plans by the State department and agencies to implement one-day furloughs of state employees in May and June as a cost-saving measure.

Plans for implementing two furlough days in the current 2009 Fiscal Year were developed by the departments and submitted to the Governor’s Office for approval. Additional furlough days in the 2010 Fiscal Year that begins July 1 remain in the department planning process and have not yet been finalized. 

As stated in previous entries to this blog, late last year, Governor Corzine proposed the furloughs, a one-day layoff for state employees, along with a wage freeze in response to the steep decline in state revenues as a result of the national economic crisis.  According to Corzine, it was preferable to achieve the same payroll savings through furloughs and wage freezes rather than through permanent layoffs.

Specific information as to when the various state departments and agencies will implement the furloughs in May and June is available on the Civil Service Commission website. 

Please check this blog periodically for updates regarding the mandatory furloughs as more information becomes available.

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On April 15, 2009, the Appellate Division decided In the Matter of Cornelius Caruso, Docket No.: A-1612-07T1. In the case, Cornelius Caruso appealed his termination as police officer in the City of Orange Police Department.

Caruso became a police officer in 2000. In 2005, he began to experience serious problems related to his use of alcohol. He voluntarily entered a program at the Carrier Clinic in December 2005. When he did so, he failed to follow the Department’s requirement that he notify the communication supervisor and apply for a leave of absence. No charges were filed with respect to that omission.

Caruso left the Carrier Clinic in March 2006. He was found by the Department to be fit for duty and returned to work on April 1, 2006. Caruso was instructed to make periodic reports concerning his recovery, which instruction was confirmed in a letter from the City’s attorney to Caruso’s attorney. No such periodic reports were ever made.

The Department permits fifteen days of sick leave per year. The Department assessed Caruso for use of 2006 sick leave only during the period from January 1 to January 10, 2006. The period from January 11 to March 31, 2006, was charged as a combination of administrative and compensatory leave. After Caruso’s return to duty in April, he went out on sick leave from April 6 to April 18; May 10 to July 7; October 25 to November 4; and December 12 to the end of 2006. Consequently, by December 2006, Caruso had taken significantly more sick leave than was permitted by the Department.

On December 12, 2006, Caruso left work because of an eye infection. However, according to Caruso, his problem with alcohol use returned in December 2006. On December 22, 2006, Caruso left his home and traveled to Hazelden, a rehabilitation clinic located in Minnesota. He again failed to notify the communications supervisor, although others apparently notified one of his superiors who subsequently contacted Caruso and arranged for him to surrender his service weapon. Caruso also failed to complete the required form for a leave of absence.

As a result, on January 18, 2007, the City filed formal disciplinary charges against Caruso. The disciplinary charges were as follows: (1) performance of duty; (2) insubordination; (3) obedience to laws and rules; and (4) abuse of sick leave. 

Caruso left Hazelden and returned to New Jersey on January 19, 2007. He started intensive outpatient aftercare on January 23, 2007, which required his attendance at a program for four hours a day, four days per week, as well as attendance at Alcoholics Anonymous sessions.

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On April 8, 2009, the Administrative Office of the Courts issued a press release announcing that the Appellate Division will be conducting oral argument on the Emergency Temporary Layoff Rule. Specifically, the Appellate Division, Part H will hear oral argument on the four appeals from the Civil Service Commission’s emergency rule authorizing temporary layoffs, also known as mandatory furloughs. 

These lawsuits were the subject of a recent entry on this blog. The appeals were filed by the New Jersey State PBA; the Communication Workers of America, AFL-CIO, Council 73 of the American Federation of State, County and Municipal Employees, AFL-CIO, and Camden County Council 10; the Probation Association of New Jersey; and the New Jersey State Firemen’s Benevolent Association.

The argument will be heard by Appellate Division Judges Edwin H. Stern, Ariel A. Rodriguez and Edith K. Payne on Thursday, April 16, 2009 at 11:00 a.m. in Courtroom 12, third floor, Morris County Courthouse, Washington and Court Streets in Morristown, New Jersey.  

Please continue to check this blog periodically for updates regarding this appeal. As you are aware, the outcome of these actions will have a significant impact upon all State employees, to include public safety officers. Should the emergency rule be upheld, temporary layoffs will be instituted beginning in May 2009.   

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On March 31, 2008, the Superior Court of New Jersey, Appellate Division, decided the case Detective Sergeant Dean Ackermann v. Borough of Glen Rock and Glen Rock Police Department, Docket Number A-2947-07T2. In the case, the parties appealed and cross-appealed from an order entered by the trial court.

Plaintiff has been a member of the Glen Rock Police Department for more than twenty years. He holds the rank of sergeant and the title of detective. Defendants are the Borough of Glen Rock and its police department. On October 3, 2006, Steven D. Cherry, Chief of the Department, served Plaintiff with a disciplinary notice, charging him with acting contrary to good order and discipline and violating Glen Rock’s “No Tolerance Policy” with respect to wrongdoing in the workplace. The notice contained no recommendation with respect to discipline.

Three days later, Chief Cherry served an amended notice of disciplinary action which set forth nine charges. In the amended notice, Chief Cherry recommended that Plaintiff be suspended for three days without pay and be required to attend an approved course in sensitivity training. The charges were based upon complaints by Anna Maria Mattina, the Borough’s first female police officer. She alleged certain conduct by Plaintiff toward her was unwanted and harassing.

Plaintiff denied any wrongdoing, would not accept the proposed discipline, and requested a hearing. The hearing officer sustained the charges, but rejected the recommendation as to discipline. He recommended Plaintiff be suspended without pay for ten days as well as attend an approved course in sensitivity training. The report was submitted to the mayor and council, which accepted his findings but rejected the recommendation for discipline. The council passed a resolution suspending Plaintiff without pay for sixty days, demoting him to police officer and requiring completion of a course in sensitivity training before returning to active duty. 

In response, Plaintiff filed a three-count complaint in lieu of prerogative writ, contending that the evidence presented did not support the findings that were made, the procedure utilized did not conform to the Attorney General’s Internal Affairs policies and procedures that the Borough adopted, and that the increase in penalty was retaliatory.

The trial court, hearing the matter as a trial de novo, concluded that only two of the violations had been proven and that the penalty imposed by the Borough was excessive. The Court directed Plaintiff be suspended for two concurrent periods of thirty days without pay and complete a course in sensitivity training. This appeal ensued.

On appeal, the Appellate Division held that, when hearing a police disciplinary matter de novo, a trial court has the authority to impose a sanction other than that imposed by the municipality. In this case, the Court found no error in directing that Plaintiff not be demoted and instead imposing a suspension and directing attendance at sensitivity training. Moreover, the Court found that although Defendants violated the Attorney General’s guidelines for conducting a disciplinary hearing, the trial court correctly found that the errors did not prejudice the Plaintiff.

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Most recently, the New Jersey Supreme Court heard argument and deceided the case of Hemsey v. Police and Firemen's Retirement System, A-15 September 2008 Term, on Certification from the Appellate Division, 393 NJ Super 254 (App. Div. 2007).

Hemsey was hired as a police officer by the City of Trenton in 1973.  In 1998, he retired and began receiving retirement benefits from PFRS.  Most of his employment with the city was spent as a police dispatcher.  In the same year that he retired, Hemsey entered into a consulting contract with the City of Trenton in which he worked directly under the Department's commanding officer and evaluated and worked with police and fire communication center personnel.  In 1999, Hemsey was appointed to the position of Director of Communications.  This was a newly created civilian position of employment.

Thereafter, PFRS requested information from the City regarding Hemsey'e employment and called Hemsey before the board to answer questions regarding the same.  In October 2002, PFRS informed Hemsey that he was required to re-enroll in the reitement system due to the fact that the functions he was performing as a retiree were essentially the same duties that he was performing prior to retirement.  As a result of the ruling, Hemsey's retirement benefits were cancelled  retroactively to January 1, 1999.  Hemsey appealed and the case was sent to the Office of Administrative Law as a contested case. 

The OAL concluded that the retirement benefits were properly cancelled, with  the Appellate Division affirming the decision.  However, the Supreme Court for the State of New Jersey reversed the Appellate Division and held that the retirement benefits were improperly cancelled because there was insufficient evidence to conclude that the duties of the two positions were the same and the position of civilian director of communications started six (6) months after Hemsey retired from employment with the police department. 

New Jersey law dictates that an individual who retires and then accepts employment in a PFRS covered position will lose retirement benefits and be required to re-enroll in PFRS, N.J.S.A. 43:16A-3.1.  Hemsey successfully argued that his new position of employment did not meet the statutory requirements that mandated re-enrollment in PFRS.  After a review of all of the credible evidence including testimony and the consulting contract itself, the Supreme Court agreed with Hemsey.

To simplify this case for retirees collecting a PFRS pension and still performing duties in a law enforcement capacity, you must be very careful that your new duties are not substantially the same or similar to the duties for which you are collecting the pension.  Furthermore, the duties associated with the new position of employment must not meet the statutory definition of a PFRS covered position.  Each case is different and will be evaluated on a case by case basis with a thorough evaluation of the facts.  Its always advisable to research and evaluate the facts before you accept re-employment.  It is much easier to draft an employment agreement that falls outside the statutory requirements of PFRS than to have your pension benefits cancelled, whereby you are left with no choice but to appeal the issue before the Office of Administrative Law. 

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Gannet News Services ran an article in today's Asbury Park Press that discussed how the New Jersey Department of Corrections saved 2.6 million dollars in overtime spending by slightly "tinkering" with the Department's overtime policies.  As all corrections officers and supervisory personnel are aware, the minor tinkering that is discussed in the article is what is commonly referred to as "shift overlap".  For the readers that are not familiar with the concept of shift overlap, shift overlap is a brief period of time where two officers man a single post at shift change so that information can be passed between personnel regarding the previous tour of duty, and any unusual or unsafe circumstances that need to looked after.  Needless to say, shift overlap is paramount to the safety of uniformed public safety officers working in our prison systems.

Shift overlap is vitally important to the safety of corrections personnel.  So the question becomes--is ten minutes of shift overlap enough?  Many officers and supervisory personnel that walk the tiers of the prisons on a daily basis make a good argument that ten minutes is not enough.   However ten minutes is certainly better than nothing.  What we need to be concerned about at this time is when the next cut in shift overlap is going to be proposed.  The politicians in Trenton are ignorant regarding the safe operation of a correctional facility.  Eliminating shift overlap in its entirety will save the state another five million plus in overtime costs.  However the safety of our public safety officers will be severely compromised.  No amount of savings is worth such a risk.  

To access the Asbury Park Press article follow the link below.

Asbury Park Press Overtime Article

Continually fighting for your rights and safety--Frank M. Crivelli. 

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On March 30, 2009, the Superior Court of New Jersey, Appellate Division decided the case In the Matter of Richard J. Rivera, Docket No. A-3672-07T2. In the case, Richard J. Rivera, a county corrections officer assigned to the Monmouth County Correctional Institute (“MCCI”), appealed from a final decision of the Merit System Board suspending him for ten (10) days without pay for violating Rule 4.1.28 of the Monmouth County Sheriff’s Department.

The alleged violation was based upon Rivera’s failure to disclose a relationship with a “current offender,” which includes probationers, after he purchased a home with a woman who was on probation. On appeal, Rivera contended the rule was unconstitutionally vague, both on its face and as applied to him. The Court, in rejecting Rivera’s arguments, noted that a serious conflict of interest could arise if a corrections officer maintained a close relationship with a probationer who violated his/her probation and ultimately became incarcerated. To support this, the Court cited Bowden v. Bayside State Prison, a 1993 Appellate Division case, which held, “[t]he need for proper control over the conduct of inmates in a correctional facility and the part played by proper relationships between those who are required to maintain order and enforce discipline and the inmates cannot be doubted.” Consequently, the Court affirmed the Board’s final decision and upheld the penalty imposed.

This case illustrates that correction officers who become socially and/or intimately associated with persons who are either incarcerated or on parole could be subject to discipline. As a result, all correction officers should consult their respective collective bargaining agreements and/or department policies to determine whether their particular employer places limits on fraternization with certain persons.

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