On December 24, 2009, the Appellate Division decided In the Matter of Eugene I. Otto, Police Department, Township of Irvington, Docket No.: A-1112-08T3. In the case, Eugene Otto appealed from a final decision of the Civil Service Commission finding that his removal as a member of the Irvington Police Department was justified and dismissing his appeal.

On February 1, 2006, Otto was served with fifteen separate disciplinary charges for violating various provisions of the Irvington Police Manual. Various offenses were alleged, including withholding information, failing to perform his duties, insubordination, using derogatory terms, and being untruthful. Following a departmental hearing, all the charges were sustained, and Otto was removed from the force. 

Otto appealed to the Merit System Board, now known as the Civil Service Commission, and a hearing was held before an administrative law judge who sustained the following charges: one count of conduct unbecoming a public employee, two counts of being untruthful, and one count of using derogatory terms. The administrative law judge also concluded that there was insufficient evidence to sustain the remaining charges and they were dismissed. He also concluded that the charge of using derogatory language was not of sufficient import to warrant significant discipline, but the remaining charges constituted “mutinous and disruptive behavior” that, in light of Otto’s disciplinary hearing, warranted his dismissal from the force. The Civil Service Commission agreed.  This appeal followed.

On appeal, Otto contended that the charges against him should have been dismissed as untimely, that certain evidence was insufficient to support the charges against him, and that the punishment of dismissal was arbitrary and capricious. The Appellate Division found: (1) the disciplinary charges were timely filed within 45 days of the prosecutor’s office advising the township that it had determined that Otto’s statements were not truthful; (2) Otto’s actions constituted conduct unbecoming a public employee; (3) Otto’s charges that that department chief had deliberately shirked his responsibilities and acted out of improper racial motivations was not protected speech and therefore was not speech for which he could not be disciplined; and (4) the sanction of removal was not unduly severe give Otto’s disciplinary record and the gravity of the offenses.  As such, the Court affirmed the Civil Service Commission’s decision.

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DONALD C. BARBATI, JR.

Donald C. Barbati is a shareholder of Crivelli, Barbati & DeRose, L.L.C. His primary practice revolves around the representation of numerous public employee labor unions in various capacities to include contract negotiation, unfair labor practice litigation, contract grievance arbitration, and other diverse issues…

Donald C. Barbati is a shareholder of Crivelli, Barbati & DeRose, L.L.C. His primary practice revolves around the representation of numerous public employee labor unions in various capacities to include contract negotiation, unfair labor practice litigation, contract grievance arbitration, and other diverse issues litigated before the courts and administrative tribunals throughout the State of New Jersey. In addition, Mr. Barbati also routinely represents individuals in various types of public pension appeals, real estate transactions, and general litigation matters. He is a frequent contributor to the New Jersey Public Safety Officers Law Blog, a free legal publication designed to keep New Jersey public safety officers up-to-date and informed about legal issues pertinent to their profession. During his years of practice, Mr. Barbati has established a reputation for achieving favorable results for his clients in a cost-efficient manner.

Mr. Barbati has also handled numerous novel legal issues while representing New Jersey Public Safety Officers. Most notably, he served as lead counsel for the Appellants in the published case In re Rodriguez, 423 N.J. Super. 440 (App. Div. 2011). In that case, Mr. Barbati successfully argued on behalf of the Appellants, thereby overturning the Attorney General’s denial of counsel to two prison guards in a civil rights suit arising from an inmate assault.  In the process, the Court clarified the standard to be utilized by the Attorney General in assessing whether a public employee is entitled to legal representation and mandated that reliance must be placed on up-to-date information.

Prior to becoming a practicing attorney, Mr. Barbati served as a judicial law clerk to the Honorable Linda R. Feinberg, Assignment Judge of the Superior Court of New Jersey, Mercer Vicinage. During his clerkship Mr. Barbati handled numerous complex and novel substantive and procedural issues arising from complaints in lieu of prerogative writs, orders to show cause, and motion practice. These include appeals from decisions by planning and zoning boards and local government bodies, bidding challenges under the Local Public Contract Law, Open Public Records Act requests, the taking of private property under the eminent domain statute, and election law disputes. In addition, Mr. Barbati, as a certified mediator, mediated many small claims disputes in the Special Civil Part.

Mr. Barbati received a Bachelor of Arts degree in history, magna cum laude, from Rider University in Lawrenceville, New Jersey. Upon graduating, Mr. Barbati attended Widener University School of Law in Wilmington, Delaware. In 2007, he received his juris doctorate, magna cum laude, graduating in the top five percent of his class. During law school, Mr. Barbati interned for the Honorable Joseph E. Irenas, Senior United States District Court Judge for the District of New Jersey in Camden, New Jersey, assisting on various constitutional, employment, and Third Circuit Court of Appeals litigation, including numerous civil rights, social security, and immigration cases.