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 July 28, 2009, the Appellate Division decided In the Matter of Donald Michelson, Department of Safety, City of Union. In the case, Donald Michelson sought review of the Final Administrative Action of the Merit System Board accepting and adopting the initial decision of the Office of Administrative Law (“OAL”). The Administrative Law Judge (“ALJ”) found that the City of Union had proven its charges of neglect of duty, other sufficient cause, and absence without leave against Michelson and concluded that the penalty of suspension without pay for six (6) work days was reasonable and consistent with progressive discipline.

On October 14, 2005, Michelson, a sergeant in the Union Police Department, was assigned to work in the communication center from 2330 hours to 0730 hours but did not report for duty. The Police Department schedule cycle requires officers to report for duty four days on and three days off per week for three weeks, then report for duty four days on and two days off for one week (called “the short week”). Before 0400 hours, Sergeant Botti, the Desk Officer Supervisor called Michelson to inquire about his absence. Apparently, Michelson mistakenly believed he was on the short week and not scheduled to work that day. He ultimately reported for duty at 0400 hours.

The Police Department charged Michelson with neglect of duty, absence without leave, and other sufficient cause. Due to his absence, which was undisputed, the ALJ determined: (1) the communication center was without supervision for approximately four and one-half hours; and (2) the desk sergeant put aside his regular duties to conduct an inquiry into Michelson’s absence. The ALJ also noted the police department operates as a paramilitary organization and prompt attendance is critical to the efficient operation of the department. The ALJ further found that the six-day suspension comported with the concept of progressive discipline. The ALJ, reasoning that Michelson had no intention to report for duty until Botti called him, rejected Michelson’s contention that he was merely tardy, not absence without leave.   

The ALJ, noting that superior officers such as Michelson must set an example for subordinate officers, also rejected Michelson’s claim that he was subjected to disparate treatment because no other officer had been suspended for arriving late. Additionally, the ALJ concluded that the record was insufficient to support a claim of disparate treatment as it did not contain the prior disciplinary records of the other employees, a factor bearing on the discipline to be imposed. Thus, no reasoned comparison could be made. Consequently, the ALJ affirmed Union’s determination that Michelson be suspended for six (6) days.

On review by the Board, it accepted and adopted the ALJ’s findings of fact and conclusions of law and found “that the action of the appointing authority in suspending [Michelson] was justified.” Accordingly, it affirmed the action and dismissed Michelson’s appeal. This appeal ensued.

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On July 23, 2009, the Superior Court of New Jersey, Appellate Division issued its opinion in the case of James Liik, et al v. New Jersey Department of Personnel/New Jersey Department of Corrections, Docket Number A-4121-06T2.

This particular opinion has widespread implications in regard to pay and seniority of thousands of New Jersey corrections officers presently employed with the New Jersey Department of Corrections.

By way of background, in 1997, the New Jersey Department of Corrections and New Jersey Department of Personnel created and implemented a pilot program which modified training procedures for corrections officer recruits. Prior to the implementation of the pilot program, candidates for employment with the Department of Corrections were hired as employees and assigned the rank of “correction officer recruit” during their period of training and completion of their working test period. During this time, corrections officer recruits received full salary and benefits available for this particular rank. Once the working test period associated with the position of corrections officer trainee was successfully completed, they were then promoted to the position of senior corrections officer. The pilot program eliminated this practice and those individuals seeking employment with the New Jersey Department of Corrections were designated as “students/trainees.”

As a result of this change, they were no longer considered employees of the New Jersey Department of Corrections, but instead received the lesser rank of corrections officer recruit/trainee during the 14-week training period. During this 14-week training period, instead of receiving the regular salary of a corrections officer recruit, they received a $300 weekly stipend. If a recruit trainee successfully completed the prescribed program of training, they then became “employees” of the New Jersey Department of Corrections and received the salary and benefits of a corrections officer recruit. Despite the fact that the program was to last for only a period of one year, the New Jersey Department of Corrections and Department of Personnel made the program permanent in 1999. A stipend of $300.00 that was to be paid to student trainees never increased over the following years and a significant financial burden and hardship was placed upon those individuals seeking employment with the New Jersey Department of Corrections.

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On July 23, 2009, the Appellate Division decided Barbara Cannella v. Board of Trustees, The Public Employees’ Retirement System, Docket No.: A-4389-07T2. In the case, Barbara Cannella appealed the decision of the Board of Trustees of the Public Employees’ Retirement System (“Board”) denying her application for accidental disability retirement benefits under N.J.S.A. 43:15A-43.

On December 26, 2002, Cannella, a State employee working for the Division of Youth and Family Services, arrived at the parking lot designated for State employees where she was assigned to park. The parking lot was located a block from the building where she worked. As she exited her vehicle, she slipped and fell on ice, sustaining injuries.

On April 19, 2006, the Board determined that due to the injuries incurred in the fall, Cannella was permanently and totally disabled from performing her regular and assigned duties, but did not qualify for accidental disability benefits within the meaning of N.J.S.A. 43:15A-43. In order to be entitled to accidental disability retirement benefits, the statute requires that the disabling injury be “as a direct result of a traumatic event occurring during and as a result of the performance of [her] regular or assigned duties.” The Board determined that she did not meet this criterion and denied her application for accidental disability retirement benefits.

Cannella appealed and the case was sent to an Administrative Law Judge (“ALJ”) for an administrative hearing. Following cross-motions for summary judgment, the ALJ found that because Cannella was a block away from her place of employment when she fell, she had not yet completed her commute and, as a result, the fall had not occurred “during and as a result of the performance of [her] regular or assigned duties.” As such, the ALJ granted the Board’s motion for summary judgment and dismissed the appeal. By letter dated May 27, 2008, the Board adopted the Initial Decision of the ALJ and denied Cannella’s application for accidental disability retirement benefits. This appeal ensued.

The Appellate Division affirmed the Board’s determination and dismissed Cannella’s appeal. The Court indicated that Cannella had not reached her employer’s building, but still had another block to go. Moreover, she was not at the premises where she worked when she fell. At the time of her fall, she had not begun any preliminary efforts in commencement of work, but rather still had to continue her commute on foot to her workplace. According to the Court, to award accidental disability retirement benefits under these circumstances would be to significantly extend the scope of coverage. The statutory language was designed to reassert the going and coming rule present in workers’ compensation law, providing that workers were not entitled to benefits for injuries sustained while traveling to and from work. Thus, the Court held the Board’s application of the accidental disability statute to the facts of the case was consistent with the legislative intent to enforce the going and coming rule.

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In New Jersey, this will mark the first time citizens will elect a lieutenant governor. New Jersey Republican gubernatorial candidate Chris Christie has picked a fellow lawyer for his running mate, Kim Guadagno. Kim Guadagno was a federal prosecutor before she was elected Monmouth County Sheriff.

In a video on Christie’s networking sites, Guadagno said she’s proud to be running for lieutenant governor at a time in New Jersey’s history where they’ll have to make tough decisions. Christie and Guadagno plan to make campaign stops in Asbury Park, Woodbridge, and Garfield on July 20, 2009.

Governor Jon Corzine has yet to announce who his running mate will be.

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On July 16, 2009, the Appellate Division decided In the Matter of Michael Brown, Monmouth County, Docket No.: A-5157-07T3. In the case, Michael Brown appealed from a final decision of the Merit System Board (“Board”) upholding the termination of his employment as a Monmouth County Corrections Officer after finding that he tested positive for marijuana.

Brown was employed by Monmouth County as a corrections officer for approximately fifteen to seventeen years. According to Captain Thomas J. Philburn, Personnel Captain at the correctional facility, Brown was “a very low-keyed, soft-spoken individual” who did his job and had no prior disciplinary problems other than some minor “attendance-related issues.”

The County uses National Safety Compliance (“NSC”), a safety services and compliance company certified by the Substance Abuse and Mental Health Administration, to perform random drug tests on its employees in accordance with the County’s substance abuse policy. NSC, in turn, employs Lab One, located in Kansas, to perform the actual laboratory tests on the samples.

On July 13, 2004, Brown was randomly selected for a drug test pursuant to the County’s policy. When the test was reported as positive for marijuana use, the matter was heard internally and Brown was found to have violated the County’s substance abuse policy. After a final notice of disciplinary action was served on Brown on August 24, 2004, the matter was transferred to the Office of Administrative Law (“OAL”) as a contested case.

A hearing was held before the OAL on December 7, 2005 and two witnesses testified on behalf of the County, Captain Philburn and Ronald Raslowsy, President of NSC. Neither of the witnesses had any personal knowledge of the procedures used for the testing, nor could they establish a chain of custody from the time the sample was taken to the time it was purportedly tested at the laboratory in Kansas.

Radomsky testified that he “believed” that the Attorney General guidelines for testing a law enforcement officer were followed, but had no personal knowledge as to whether they actually were. He did know, however, that the proper interview form was not used. He had no knowledge of who was present when Brown was tested, who witnessed the test, whether the sample was properly labeled, packaged and shipped, or who participated in the shipping of the sample. Nevertheless, the Administrative Law Judge (“ALJ”) rendered an initial decision on October 20, 2006 sustaining the charges and ordering Brown’s removal.

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U.S District Court Judge Frieda L. Wolfson dismissed a lawsuit by a group of New Jersey State Troopers seeking to overturn the ban on allowing them to practice law while being employed by the State Police. The decision was filed on July 9, 2009.

“If the troopers were to prevail on this argument, state agencies would be precluded from holding their public employees, specifically attorneys, to a higher ethical standard than those imposed on private attorneys,” Judge Wolfson wrote in her decision. 

Two trooper unions, and twenty one (21) troopers working as lawyers, had argued the State was preventing troopers from pursuing another profession. The State said representing clients and enforcing the law presents an inherent conflict of interest, prohibited under a 2007 revision of the State’s ethics code.

Frederick J. Gordon, president of the Non-Commissioned Officers Association, said they hoped troopers already practicing law could be exempted. “We’re disappointed in the outcome,” he said. “I don’t know what our next step is.”

The unions argued that troopers’ legal work, such as drafting wills or helping with real estate closings, does not conflict with their criminal justice work. However, the State argued that even basic legal tasks could cause problems.”

“By way of example, if a trooper is retained to draft a will for a client, and happens to come across nefarious, possibly illegal, activity during his review of his client’s confidential personal records, the trooper would find himself in an unenviable position, obligated by his duties as an officer of the law to report the crime while simultaneously constrained by his oath as an attorney to protect his client’s confidences,” Judge Wolfson’s decision explained.

The debate centered on a 2007 change to the State’s ethics code. The previous version prohibited almost all attorneys in the department from practicing law outside their job. The revision extended that prohibition to state troopers.

David Wald, spokesman for Attorney General Anne Milgram, praised Judge Wolfson’s decision. “In rejecting the state troopers’ challenge to that rule, Judge Wolfson recognized the potential for conflicts between a private attorneys’ responsibilities to their clients and the department’s law enforcement responsibilities,” he said. “She concluded that the prohibition on the private practice of law by state troopers was an appropriate means to preserve the public trust.”

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On July 2, 2009, the United States Court of Appeals for the Third Circuit decided United Steel v. E.I. Dupont de Nemours and Company, No. 08-1911. In two consolidated cases, Plaintiffs are unions who were seeking to compel Defendants, employers of the unions’ members, to arbitrate Plaintiffs’ grievances about unilateral changes the Defendants made to employee benefit plans. In both cases, the lower court granted summary judgment in favor of the unions on the grounds that: (1) a collective bargaining agreement (“CBA”) between the parties provided for arbitration; and (2) there is no strong and forceful evidence that the parties intended to exclude these disputes from arbitration. 

In appealing the lower courts’ determinations, Defendants contended that the Plaintiff’s grievances are disputes over benefit eligibility and, thus, should be resolved using the dispute resolution provisions of the Summary Plan Description rather than the CBA. Moreover, Defendants argued that ERISA, which governs the employee benefit plans maintained by Defendants, mandates that benefit eligibility disputes of this nature should be resolved by the designated ERISA fiduciary.

In affirming the determination of the lower courts, the Third Circuit noted that the arbitration clauses in the CBAs at issue were broadly worded. Specifically, the New Jersey CBAs provide for arbitration of grievances “relating to the interpretation or to any alleged violation” of those CBAs, while the Delaware CBA provides for arbitration of “[a]ny question as to the interpretation, or any alleged violation, of any provision of” that CBA. There was no express provision in any of the CBAs that excluded Plaintiffs’ grievances. Therefore, a presumption of arbitrability applied and Defendants could only overcome this presumption by showing forceful evidence of a purpose to exclude these claims from arbitration.

The Court determined that there was no forceful evidence that the parties did not intend to submit these disputes to arbitration. In rejecting Defendants’ argument which characterized the grievances as disputes about “benefit eligibility”, the Court found the disputed issue is not whether any particular employee was eligible under the terms of the plan, but rather whether Defendants violated the CBAs by unilaterally modifying its terms. Moreover, the Court noted that were it to accept Defendants’ characterization of the grievances, this would eliminate any opportunity for a meaningful challenge to Defendants’ unilateral plan amendments and thereby thwarting the CBAs’ arbitration clauses. As such, the Court affirmed the determination of the lower courts.

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Employees in New Jersey’s largest state-worker union overwhelmingly ratified a revised contract agreement on Tuesday, June 30, 2009 that defers a raise and trades furloughs this year for future vacation days. With a little over 13,000 votes cast online or by phone by the deadline, the margin was 69 percent to 31 percent according to the Communication Workers of America. All four bargaining units, those represented clerical workers, professionals and two tiers of supervisors, voted for the revised deal, which bars layoffs until 2011. 

Workers in the CWA, which covers about half the state’s workforce, agreed to defer a 3.5 percent raise that was due July 1, 2009 by 18 months; they will get two 3.5 percent raises in fiscal 2011. Workers also agreed to nine furlough days over the coming year, on top of one taken in May. In exchange, they receive seven days off from work they can take starting in July 2010 or cash out when they leave state employment, at their pay rate at that time. 

The State agreed not to layoff any workers until January 2011 or add more unpaid furloughs before July 2011. If the State lays off any worker before January 2011, not counting any fired for disciplinary reasons or for cause, all state workers immediately get the deferred 3.5 percent raise and no further furloughs are required.

Workers due to receive increment raised in fiscal 2010 based on their years of service will get those increases. The nine unpaid furlough days include the day after Thanksgiving this year and Lincoln’s Birthday in 2010. The other seven dates will be worked out by workers and their supervisors and must be taken by the end of June 2010.

Republicans, who are hopeful that Governor Corzine will be replaced in this fall’s election, said the agreement ties the hands of the next governor to deal with next year’s multi-billion dollar deficit. “The governor did not need to negotiate these costly, election-year concessions. The courts had upheld his right to furlough workers as he originally proposed. The governor traded a plan that would have saved money during a recession for one that may very well slow the state’s recovery,” said Senate Minority Leader Thomas Kean, Jr., R-Union.

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An association of retired cops has warned Hamilton Township to not tamper with their retirement package. The association alleges it would be illegal to change the terms of their benefits “in the middle of the stream.” The Mercer County Local 12 of the Retired Police and Firemen’s Association sent the warning to the Hamilton Township Business Administrator John Ricci this week in a letter.

Ricci confirmed he received the letter a letter from Trenton attorney Sid Lehman, saying the association “objected” to the Township’s plan to change retirees’ prescription drug co-pays to match the co-pay terms of active employees. “Sid sent a letter saying you can’t do that because they are retirees and they are entitled to the same benefit they had when they retired,” Ricci said. “He gave me the case law, and I agreed with him, and that was the end of that.”

Thomas Murphy,a retired Trenton cop and president of the 400-member Local 12, said there is nothing “adversarial” about the issue. “We want to sit down and see if we can come to an agreement at the table. We have precedent on our side, and we won’t hesitate to use it.”

“They’re not a union, they have no right negotiate,” Ricci said, “but they do have certain rights to continue receiving the same benefits they had when they retired, and that’s what this is about.” 

Both Ricci and Murphy expressed optimism that the issue would be resolved without any legal action.

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