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

New York Governor David Patterson dropped a bombshell on two powerful unions yesterday when he unexpectedly vetoed a routine measure that for nearly thirty (30) years had allowed New York city cops and firefighters to retire with generous pensions.

“These are not routine times,” Paterson said in vetoing the “temporary” measure that, since 1981, had been habitually renewed by legislators, giving the Finest and Bravest gold-plated pensions known as “Tier II” even as new, less-generous tiers were created for non-uniformed workers. Paterson added, “Instead of a rubber stamp on a temporary fix, we need to move forward with real reform to the pension system.”

In recent months, the New York Post has detailed the spiraling costs of public-employee pensions and the growing threat they pose to state and local budgets. Paterson’s veto, which caught the lawmakers off guard, was his most aggressive move yet in his push to establish a pared-down pension tier for newly hired employees. Recently, the governor re-introduced his cost-saving pension proposal, which legislators flatly rejected during this year’s budget negotiations. In fact, Paterson estimates that his proposal for a new pension tier would save the state $48 billion over the next thirty (30) years. 

Labor unions and their allies in the Legislature said they were blindsided by the governor’s veto and argued that state and local governments will see no savings from the move because it’s unclear which pension tiers new cops and firefighters would join. According to Civil Service Committee Chairwoman Diane Savino, who sponsored the bill, “There was no cost to extending the current system. We don’t know what the cost would be. We don’t know what the savings will be.” 

The bill passed overwhelmingly, 136-6 in the Assembly and 58-0 in the Senate, leading to talk of a veto override, which requires a two-thirds majority of each house. 

The savings would come from, among other items, raising the minimum retirement age and banning overtime “spiking,” where workers run up OT in their final years to boost pension payouts.

As one can expect, developments such as these do not bode well for public safety officers across the county, to include those of our state. As detailed in previous entries, public pension reform has become an important topic, especially during these tough economic times. This article illustrates the types of responses that are being taken by government in response to the issue and the resulting effect upon public safety officers. Please continue to check this blog periodically to ascertain updates in regard to this matter.

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On May 14, 2009, the Appellate Division decided Harry G. Parkin v. Board of Trustees, Public Employees Retirement System, Docket No.: A-2466-07T1. In the case, Harry Parkin appealed from the final agency decision of the Board of Trustees of the Public Employee Retirement System (“Board”) resulting in the partial forfeiture of his service and salary credits. Specifically, Parkin contended that the Board failed to follow its own regulations governing partial forfeiture of pension benefits and further contended that the Board “adopted a rule regarding the partial termination of pension benefits without going through the regulatory process.” 

With the exception of a four-year break in service, from 1972 to January 1, 2004, Parkin was continuously employed in various public positions until he retired as Mercer County Chief of Staff. Based upon his veteran’s status, his service time, and additional credit he received as part of an early retirement incentive program, he had accumulated twenty-eight (28) years and nine (9) months of service credit equating to a monthly pension of $5,864.49.

On March 11, 2004, Parkin was indicted by a Federal grand jury and charged with having participated in a wide-ranging, corrupt scheme utilizing his office as Chief of Staff to defraud Mercer County and its citizens. The indictment alleged numerous acts Parkin committed in furtherance of the plan while employed as Chief of Staff. After a jury trial, in March 2005, he was convicted of all charges. In August 2005, he was sentenced to a period of ninety (90) months imprisonment.

The Board considered Parkin’s entitlement to pension benefits at its September 2005 meeting. Applying the factors set forth in N.J.S.A. 43:1-3(c), the Board determined a partial forfeiture was warranted for the period of time Parkin served as Chief of Staff, i.e., from June 1, 1994, to the date of his retirement. As a result, Parkin became ineligible for veteran retirement status and additionally lost early retirement incentives. His monthly pension was significantly reduced and he no longer qualified for lifetime medical benefits.        

Thereafter, Parkin appealed to the Office of Administrative Law, wherein he argued that the Board had arbitrarily chosen the forfeiture period to run from his first day as Chief of Staff, rather than the time his misconduct allegedly first occurred, i.e., in September 2000. The Administrative Law Judge (“ALJ”) initially recommended the Board supplement the record regarding its selection of the date upon which to commence the forfeiture period. In September 2007, the Board filed a supplementary statement of its reasons for selecting the initial date of Parkin’s employment as Chief of Staff as the operative date of forfeiture, relying heavily upon the statements made by the sentencing judge in which he outlined the nature and extent of Parkin’s criminal conduct. Subsequently, the ALJ issued his initial decision in November 2007 ordering forfeiture of all of Parkin’s service from the date he became Chief of Staff. The Board adopted the ALJ’s recommendations and this appeal followed.

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On May 12, 2009, Kate Benner published an article entitled “The Public Pension Bomb” in Fortune Magazine. The article addresses how states all across the country, for many years, have been starving their retirement plans. More importantly, however, the article focuses upon how the crisis is playing out in New Jersey, where the bill is coming due and the State does not have the money to pay it.

According to Benner, the New Jersey public pension situation is dire. In June 2008, the State estimated that the plan, one of the nation’s largest covering teachers, state employees, firefighters, and police officers, had $34 billion less than it needed to meet its obligations. Since then the market value of the plan has dropped from $82 billion to $56 billion. A new estimate of underfunding is due in July.

Benner also indicated that, overall, states nationwide have shortchanged the retirement programs that cover teachers, police, and other public employees. Now, the stock market plunge has wiped out billions of dollars from already underfunded plans. California, New York, and Illinois are among the states scrambling to plug multibillion dollar holes in their pension systems. As a result, these growing obligations raise the specter of higher taxes, diminished services, or even another round of costly federal bailouts.

Lastly, the article traces a 20 year time line to figure out how New Jersey dug itself into this hole. It also delineates the steps that have been and currently are being taken to address the problem. As such, any current or retired New Jersey public safety officer should read this article in order to fully understand the problems with the New Jersey public pension system. The status of the New Jersey public pension system is vital to every resident of this state and especially crucial to public safety employees. Consequently, one must be conscious of this in order to adequately prepare for its financial impact. To read the full article, click on the following link.

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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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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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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.

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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. 

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Everyone is in agreement that K-9 units are an important part of law enforcement. Dogs are used to find hidden illegal narcotics, bombs, improvised explosive devises, injured and trapped individuals, and even dead bodies. However, what is not common knowledge is that law enforcement officers that are assigned to K-9 units often care for these important animals in their own home due to the fact that the Police, Fire or Corrections department that they work for do not have kennels or other space to house them. K-9 handlers are asked to care for these highly trained animals on their own time and in their own home as if it were part of the job. Well now it is part of the job, literally, and those that care for these dogs during their own time are entitled to compensation.

The United States District Court, District of New Jersey, has now made it clear that compensation is due when Police, Fire and Corrections personnel care for K-9 animals during their own time. In the case of Falzo, et al. v. County of Essex, et al., U.S.D.C. (District of New Jersey), 33-7-0509, Judge Linares ruled that K-9 handlers were entitled to compensatory damages for un-paid overtime and other damages under the Fair Labor Standards Act of 1983 (FLSA) for time that they spent caring for the police dogs. Judge Linares went on to state that any off-the-clock work performed by the Plaintiffs in the care and maintenance of police dogs is compensable under the FLSA. Summary Judgment was granted in favor of the Plaintiffs, and overtime wages and damages will have to be paid for past time and future time spent caring for the dogs. The bottom line is that all dog handlers that care and maintain K-9s in their own home should be entitled to some extra cash for their troubles.

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