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 November 4, 2009, the Appellate Division decided In the Matter of Michael Curtin, Battalion Fire Chief (PM3593G), Elizabeth, Docket No.: A-4861-07T2. In the case, Michael Curtin appealed from the decision of the former Merit System Board (“Board”), now the New Jersey Civil Service Commission (“Commission”), denying his appeal of the scoring of his promotional examination as well as the Commission’s decision again denying the appeal following remand for consideration of supplemental information.

Curtin is employed by the Elizabeth Fire Department with the rank of captain. He took the Department of Personnel’s examination for the position of battalion fire chief, and received an overall score of 89.270. He was ranked third on the eligible list. He appealed the scoring of the oral portions of the examination to the Board. In a five-page decision dated October 11, 2007, the Board denied the appeal.

Curtis appealed to the Appellate Division. On April 14, 2009, in response to Curtin’s motion to supplement the record, the Appellate Division remanded the matter temporarily to the Commission, which had replaced the Board as of June 30, 2008, for consideration of the arguments raised in Curtin’s motion. Following its review of Curtin’s additional arguments and documents, the Commission issued its remand decision on August 20, 2009, again denying the appeal. As a result, the Court permitted Curtin to supplement his brief on appeal.

The Appellate Division noted that the burden is on a petitioner, not the Commission, when challenging the administration and scoring of examination. Moreover, when reviewing examinations, the Commission shall decide any appeal on the written record or such other proceeding as the Board deems appropriate. Finally, the Court indicated that courts should defer to an agency’s grading of a civil service examination except in the most exceptional of circumstances that disclose a clear abuse of discretion.

Applying these principles, the Court was satisfied that the Commission’s decision on the remand was not arbitrary, capricious, or unreasonable. The Commission duly re-evaluated the Board’s original decision in light of Curtin’s additional arguments and explained its reasons for disagreeing with his position. Moreover, the Court noted that it was not its role to second-guess the Commission with respect to the scoring of civil service examination and this case does not present “the most exceptional of circumstances that disclose a clear abuse of discretion” warranting such interference.

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

On October 5, 2009, the Appellate Division decided In the Matter of John Fasanella, Docket No.: A-4455-07T1. In the case, John Fasanella, a sheriff’s officer in Mercer County, appealed a decision of the Merit System Board (“Board”) upholding adverse administrative determinations regarding a promotional examination for lieutenant.

The promotional examination for lieutenant was announced with a closing date of December 21, 2004. Fasanella was one of the nine individuals who applied for and were admitted to that examination. The examination was conducted in written form on June 9, 2005, however, Fasanella, who was on active military duty from May 12, 2004 to June 25, 2006, was unavailable to take the examination on the date it was given.

The June 9, 2005 examination resulted in a four-name eligibles list, promulgated on September 29, 2005, with an expiration date of September 28, 2008. The first-ranked person on that list, a non-veteran, was appointed effective December 1, 2005.

On July 24, 2006, shortly after Fasanella’s return from active military duty, the Department of Military and Veterans Affairs granted his application for veteran’s status. He made several requests of the Department of Personnel (“DOP”) to schedule his make-up examination for the lieutenant position. His examination occurred in June 2007. A memorandum from DOP, dated September 10, 2007, noted an “employment list change” with Fasanella ranked first on the list with veteran’s status. An October 15, 2007 memorandum from the Sheriff’s Office to Fasanella advised that the ranking had been modified as “for future certifications only.” Fasanella promptly filed his internal appeal from the latter determination.     

Subsequently, DOP notified Fasanella that his veteran’s status designation had been incorrect and that the eligibles list had been corrected to reflect his rank on the then-existing list as “A1 non-veteran.” Fasanella appealed that decision.

In considering the issues raised in the two appeals, the Board rejected Fasanella’s contention that he was entitled to the lieutenant appointment because he was, ultimately, first on the eligibles list and had veteran’s status. The Board determined that Fasanella did not qualify for veteran’s status at the time the list was certified. The Board also decided that the latitude conferred on the appointing authority by operation of the “rule of three” validated the appointment of the person who had been designated, notwithstanding that he was second on the list after Fasanella’s name had been added.  This appeal ensued.

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

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.

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

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.

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

On June 18, 2009, the Appellate Division decided In the Matter of Andre Ruiz, Firefighter (M2271E), City of Camden, Docket No.: A-2611-07T2. In the case, Andrte Ruiz appealed the Final Administrative Action of the Merit System Board (“Board”) issued on October 11, 2007, concluding that the City of Camden (“City”) properly bypassed Ruiz under the “Rule of Three.” Ruiz also appeals from the Board’s January 22, 2008 Final Administrative Action denying his petition for reconsideration.

On October 3, 2005, the Department of Personnel (“DOP”) issued Certification Number Ol052133 to the City respecting open-competitive lists M2013A and M2271E containing the names of 150 eligible candidates for the position of firefighter. Ruiz was on list M2271E. The City returned the certification in March 2006 proposing the removal of several names, including that of Ruiz, ranked thirty-sixth, on the ground that he failed to meet the City’s residency requirements. On April 3, 2006, the City appointed thirty-five eligible candidates to the position of firefighter while the propriety of the proposed removals was still pending before the DOP.

On January 18, 2007, the Board determined that the City had failed to establish that Ruiz and five other eligible candidates, including Ruiz’s brother who resided at the same address as Ruiz, did not reside in the City. As such, the Board ordered the City to either produce sufficient documentation to support removal of the six eligible candidates based on non-residency, appoint them, or produce adequate justification for bypassing them or removing them on other grounds within sixty (60) days. 

On March 14, 2007, the City responded to the Board’s January 18, 2007 decision by submitting additional documentation to the DOP seeking to establish that Ruiz and the five other eligible candidates did not meet the City’s residency requirements. Thereafter, on April 3, 2006, the City notified the DOP that it had used the Rule of Three to appoint thirty-five eligible candidates to the position of firefighter. Despite stating it employed the Rule of Three, the City represented that no eligible candidates had been bypassed and appointments had been made through eligible candidate No. 74. The City sought entry of an order that it had properly disposed of open-competitive lists M2013A and M2271E.

On March 20, 2007, the DOP issued a disposition-deficiency notice to the City, notifying it that the reasons it had submitted for removal of Ruiz and two other eligible candidates, including Ruiz’s brother, based upon non-residency were not acceptable. It permitted the City to bypass two of the three eligible candidates provided the City submitted a short, written positive statement explaining why other lower or equally ranked eligible candidates were appointed. However, it required that the City appoint one of the three eligible candidates.

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

On May 7, 2009, the Appellate Division decided In the Matter of Steven Howe and Joseph Mufalli, Docket No. A-3512-07T1. In the case, Steven Howe appealed from the final administrative determination of the Merit System Board (“Board”), issued December 21, 2007, and its determination of March 13, 2008, denying his motion for reconsideration of the determination that Howe did not meet the experience requirements necessary to sit for the promotional examination for Chief Operating Engineer 2 of the Juvenile Justice Commission.

On appeal, Howe argued that “the administrative agency acted either arbitrarily or capriciously by finding appellant’s prior supervisory experience to be out of title,” whereas only one of the three applicants, Barry Schneider, who did the same work as appellant, was found to qualify for the exam. Howe further argued that the agency acted “arbitrarily and capriciously in its attempt to correct the ambiguous language in the job specification of operating engineer 1 and should have either negated the examination results or should have allowed all three applicants to sit for the exam.” 

After reviewing the entire record, the Appellate Division concluded that it could not disturb the findings of the Board because the Court must defer to the agency’s expertise in implementing civil service law. Although the Court noted the job description for operating engineer 1 is ambiguous regarding supervisory responsibilities and the Board directed that it be amended, the Court determined Howe did not provide evidence that he had supervised while in that position and, therefore, was not qualified to sit for the exam. As such, the Court found the Board did not act arbitrarily, capriciously, or unreasonably in not permitting him to take the examination.

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

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

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

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

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

In In the Matter of Thomas F. Fricano, Borough of Freehold, Docket No.: A-2280-07T3, the Appellate Division addressed Appellant Thomas Fricano’s appeal from final decisions of the Merit System Board (“Board”), dated September 27, 2007 and December 7, 2007, upholding his resignation in good standing from the Borough of Freehold Police Department.

By way of background, Fricano received a regular appointment as a police officer in Freehold on April 3, 2006. The appointment was subject to the successful completion of a one-year probationary working test period, commencing after completion of a police training course. On February 2, 2007, Fricano, in a written letter, resigned to pursue other opportunities in law enforcement. The appointing authority accepted the resignation, which was made effective February 22, 2007. 

The circumstances surrounding Fricano’s resignation are in dispute and at the core of the appeal. According to Fricano, on February 2, 2007, after having served ten months of his one-year probationary working term, he was summoned to the office of the Police Chief. Allegedly, the Chief ordered Fricano “to resign or be terminated immediately.” Denied his request for legal representation or to have a PBA representative present, Fricano drafted and submitted a letter of resignation under duress and coercion. Thereafter, on February 16, 2007, Fricano’s counsel wrote to the Chief requesting that he be able to rescind the resignation. The Borough attorney advised Fricano that he would not be reinstated, instead stating that “they could have fired him instead.” Subsequently, on March 13, 2007, Fricano was issued a preliminary notice of disciplinary action, charging him with numerous violations. On March 22, 2007, the appointing authority withdrew the charges and, thereafter, on March 28, 2007, issued Fricano a letter indicating that he did not satisfactorily complete his working test period and that he was being terminated effective April 3, 2007.

The Borough offers a different version. When called to his office, the Chief advised Fricano that his performance during the working test period had not been satisfactory, and, therefore, offered him the option to resign effective February 22 or face termination for failure to satisfactorily complete his working test period. This offer was made so that Fricano could avoid any stigma which might attach to an involuntary termination. Fricano decided to resign and submitted a resignation letter the same day. In the letter, Fricano explain that he resigned to pursue “a different choice in the Law Enforcement Career.” Although he did not work after February 2, he was paid through February 22, and his resignation was recorded effective February 22, 2007. After being subsequently informed of Fricano’s intention to challenge his resignation, the police department issued the preliminary notice of disciplinary action on March 13, 2007. On March 22, 2007, the police department withdrew the charges and, instead, as a cautionary measure, issued a letter to

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

In the case entitled, In the Matter of Herrick, etc. 33-2-1258, The New Jersey Superior Court, Appellate Division opined that a police officer serving in the elevated civil service title of captain in order to fill a vacancy created by a temporary leave of absence due to a military obligation has no claim to permanent appointment for the title that was temporarily filled.  However despite this ruling,  in its opinion the court did differentiate between temporarily filling a vacancy due to a disciplinary action versus a military leave of absence.  It appears based on the courts reasoning that had the vacancy been temporarily filled due to the fact that the individual that occupied the permanent title were suspended for disciplinary reasons, the appellants would have had a legitimate claim to the permanent title.  Expanded reasoning in this case would have been helpful to understand the direction of the court. 

It is important to note that should a public safety officer occupy an elevated civil service title for a period of time due to the fact that the permanent title holder is suspended from employment for disciplinary infractions, the court may entertain a cause of action that the individual that is temporarily occupying the position may have a legitimate claim to the title of employment.

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

 In the Matter of Martinez, A-0090-07T2, the Appellate Division held a civil service appointing authority violates the Rule of Three, N.J.S.A. 11A:4-8, in guaranteeing a promotional candidate that he or she will receive the appointment if he or she attains the highest score on the examination. 

After taking the civil service examination for promotion to deputy fire chief on March 30, 2006, appellant Kenneth Martinez, a fire captain in Passaic, was ranked first among the eligible nonveterans. A promotional list listing Martinez first was promulgated by the State Department of Personnel on June 22, 2006. However, the City was separately arranging for another candidate, Captain Christopher Szczygiel, to receive the promotion. The City had previously bypassed Szczygiel and appointed lower-ranked individuals to the rank of captain, causing Szczygiel to file an administrative appeal before the Merit System Board, as well as a civil action in the Law Division. 

A settlement of Szczygiel’s litigation was attained and on January 31, 2007, the Board issued a final decision approving the proposed settlement terms that the parties had disclosed it. Although it was not disclosed to the Board at the time, the settlement terms would allow Szczygiel to compete for the deputy chief position. In fact, the settlement guaranteed Szczygiel appointment to deputy chief, so long as his exam grade proved to be higher than that of anyone else who sat for the exam. 

Following the Board’s approval of the settlement, the Department of Personnel graded Szczygiel’s exam and determined that he had the highest score. It then generated a new promotional list for deputy chief ranking Szczygiel first and Martinez second. Thereafter, the City appointed Szczygiel deputy chief on April 1, 2007. 

Martinez filed an administrative appeal, contending that the Board’s ratification of the settlement, and the City’s actions in guaranteeing Szczygiel the appointment, violated the longstanding “Rule of Three” principle of New Jersey Civil Service Law, as well as the merit and fitness clause of the state constitution. On July 27, 2007, the Board rejected Martinez’s challenge and this appeal followed.

On appeal, Judge Sabatino opined that the guarantee in the Szczygiel was troublesome because it provided that Szczygiel would receive the promotion to deputy chief so long as he scored first on the promotional exam. The Board was not informed of the guarantee prior to its January 31, 2007 approval, final determination of Martinez’s appeal, nor was the guarantee disclosed to Martinez, who had every right to expect that the normal selection processes under the Rule of Three would be observed.

In addition, the Court stated it is doubtful that the Legislature wished to allow municipalities to dispense with the Rule of Three and reach agreements with applicants guaranteeing them a position if they scored high enough on an exam. Such individualized guarantees run contrary to the objectives of the civil service system and also deviate from the Rule of Three’s aim to include “other merit criteria” in the selection process.

This decision reinforces the importance for an appointing authority to follow the requisite procedures in granting promotions. The Rule of Three, much like other required procedures, cannot be usurped in favor of settlement agreements which undermine the goals of the Civil Service System, namely a fair and objective selection process based on merit and other criteria. 

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