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

As reported by nj.com, leaders of New Jersey’s public workers unions said they will launch a full court press against a bill sponsored by Senate President Stephen Sweeney that would force public employees to pay more for their health care benefits. The unions have called the bill an attempt to throw out collective bargaining rights.

Hetty Rosenstein, state director for the Communication Workers of America, said her union would picket, extract pledges from lawmakers to oppose it and hold “lobby days” against the bill over the next several weeks. “It becomes illegal to negotiate anything different than what’s in that bill,” she said. “It preempts all collective bargaining.”

Bill Lavin, president of the state Firefighters Mutual Benevolent Association, said police and firefighters will protest it at a Statehouse rally and press all 120 lawmakers. “It’s totally unacceptable. I think if that were to pass, it will guarantee that the Democrats will lose the majority,” he said. “We’re shocked that Steve Sweeney, who calls himself a Democrat, would act in this manner…He’s rolled over for the governor in every instance.”

The pushback comes as the legislation has gained bipartisan support in the state Senate, with Jennifer Beck (R-Monmouth) signing on as a prime sponsor. Public employees pay 1.5 percent of their salaries towards their health benefits. Under Sweeney’s plan and a proposal by Governor Chris Christie, workers would pay a portion of their premiums instead and would have more plans to choose from.

Under Christie’s plan, public workers would pay 30 percent of their premiums within three years. Under Sweeney’s, they would pay a sliding scale based on income, with the highest earners eventually paying 30 percent. Christie’s plan would require current retirees to pay part of their premiums.

Beck said she still has reservations about parts of the bill. She agreed with Sweeney that employees should pay rates based on their income, but agreed with Christie that current retirees should pay part of their premiums. Christie spokesman Kevin Roberts said the governor’s office was not upset that Beck signed onto the Democratic proposal.

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As reported by nj.com, more than 40 city firefighters and police officers rallied around City Hall this morning in Camden, demanding Mayor Dana Reed bring back some of the laid off public safety employees that were let go earlier this year. Nearly half the police force and one-third of firefighters were laid off earlier this year.

The protest was organized over the weekend, after a firefighter was burned in a house fire on February 25, 2011. Union officials blamed the incident on delayed response time. Meanwhile, police say they were busy trying to handle three separate shootings, including one homicide.

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As reported by nj.com, more than 20,000 police officers, firefighters, teachers, and other public employees put in their retirement papers last year as momentum was building for sweeping health and pension reform in Trenton, state figures show. That is a 60 percent jump from 2009 retirements and the highest in at least a decade, according to the Division of Pension and Benefits.

Under nearly all the reform proposals circulating in Trenton, public employees would pay more for pension and health benefits, but would escape the additional costs if they retire before the reforms were enacted. “There has been a direct assault on the benefits that public employees have earned and fought for over the last 40 years,” said Dominick Marino, president of the state chapter of the International Association of Firefighters. “People were attracted to these jobs because of the certainty, now there is no certainty, and people are retiring.”

While those who put in retirement papers can opt to stay, the vast majority retire, officials say. Of the 20,327 public employees who put in for retirement, more than half were state and local workers. Specifically, retirement among police and firefighters swelled by 45 percent. Overall, 7,132 teachers retired last year. In the decade before, no more than 4,872 teachers called it quits in any given year, records show.

Pension and health benefit reform will be high on the agenda in Trenton this spring. Governor Chris Christie wants all public employees, state and local, to begin paying 30 percent of their health insurance premiums starting next fiscal year. Currently, public employees are required to pay at least 1.5 percent of their salary toward health benefits.

Christie has warned that if Democratic lawmakers refuse to go along with his proposal, or a similar plan, he would not be able to deliver an additional $190 million in property tax relief to seniors and middle-to-low income residents. State Senator Stephen Sweeney wants to phase in the increases over seven years and apply the rates on a sliding scale based on a employee’s salary. Under Christie’s plan, a teacher who makes a $66,000 salary would pay about $5,200 a year for health insurance. Under Sweeney’s plan, the same teacher would pay about $3,610.

In general, public employees with 25 years of service can retire and receive medical benefits at no cost, but that would change under both Sweeney’s and Christie’s plan. Current retirees, including those who retire before any proposal is enacted, would be protected from the changes. However, Christie has suggested he is willing to make some adjustments retroactive, even if it prompts a legal challenge.

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As reported by nj.com, the President of the state’s largest teachers union accused Governor Chris Christie of trying to foment a civil war within the middle-class. “All of New Jersey’s middle-class is hurting, but this governor and his right-wing supporters are trying to start a middle-class civil war,” said New Jersey Education Association President Barbara Keshishian. As she spoke, thousands of public workers filled the street in front of the Statehouse, wearing ponchos and holding umbrellas to keep as dry as possible in the pouring rain. State Police estimated the crowd at 3,100.

The rally, organized by the state AFL-CIO, was both aimed at pushing back against benefit concessions demanded by Christie, and in support of Wisconsin public unions, who are fighting Governor Scott Walker’s attempt to roll back their collective bargaining rights.

In his budget address earlier this week, Christie said private sector workers “support the rich benefits of public employees.” He’s pushing for major givebacks from the workforce, including paying more towards their health premiums and downgrading future pension benefits.

Local union officials spoke one after another at today’s rally, each handing over checks to the Wisconsin AFL-CIO Secretary-Treasurer Stephanie Bloomingdale, who told the crowd “our fight is your fight, and our fight is for the middle-class.” The featured speaker, national AFL-CIO President Richard Trumka, compared Christie to Walker and other Republican governors, saying “they were not elected to dictate.” “They were elected to solve problems, not create conflict,” Trumka said.

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As reported by nj.com, Governor Chris Christie began a town hall push to press lawmakers to make state employees pay more for benefits or be blamed for scotching property tax relief. The first meeting took place on February 24, 2011 in West Deptford, the hometown of Senate President Stephen Sweeney.

Speaking to a receptive crowd, Christie said residents needed to pressure lawmakers to take his deal. “Here’s the deal I offered the Legislature: If they pass my reform, which is very simple-have employees pay 30 percent of their costs that would save us this year alone $300 million-I will take that $300 million and I will use it to double your property tax relief,” Christie said. He also stated, “The public employee unions will go crazy-they already are. They need to pass that reform…If they don’t, then you know they’re taking the side of the special interests over the side of the property taxpayers in the state.”

The Governor’s proposed budget fell just short of doubling the relief. He recommended allocating $458 million, an increase of 70 percent, or about $189.8 million, from last year. Property tax relief would double if Christie dedicates all $300 million he says could be saved by hiking the health insurance payments.   

The increase in property tax rebates would be for households making less than $75,000 a year or seniors and the disabled making less than $150,000 a year. Christie did not make those distinctions when talking to the crowd in West Deptford. 

Sweeney did not attend the town hall meeting. Under Sweeney’s proposals for benefit changes, the health contributions would be phased in over several years and would be based on an employee’s salary. Sweeney dismissed Christie’s comments. “It is nice that the governor took time out from his busy schedule of raising property taxes, underfunding education and pitting New Jersey residents against one another to visit somewhere that is actually in New Jersey,” his spokesman Chris Donnelly said. “Senate President Sweeney hopes he enjoyed his time in the great town of West Deptford.”

Assembly Democrat spokesman Tom Hester reiterated charges that Christie is encouraging class warfare by juxtaposing health cost increases against property tax relief. “The governor’s pitting of neighbor against neighbor-teachers against senior citizens, police officers against retirees, firefighters against the disabled-is abhorrent politics,” Hester said. “Senior and disabled citizens shouldn’t be pawns in this governor’s awful political theater.”

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As reported by app.com on February 23, 2011, New Jersey Governor Chris Christie, who gained a national reputation fighting the state’s teachers and public employee unions, said that organized labor should have collective bargaining rights. One day after proposing a new state budget that requires public employees to pay more for pension and health benefits, Christie told MSNBC’s Joe Scarborough that he supports “responsible” collective bargaining, but quickly added, “We haven’t had that in New Jersey.”

Christie’s comments come as Wisconsin Governor Scott Walker attempts to limit collective bargaining to help balance the state’s budget. Walker’s proposals have upended Statehouse operations there. A solidarity protest is planned outside the New Jersey Statehouse on February 25, 2011.

Christie, a Republican who has accused his Democratic predecessor of being too lenient with state workers, said he does not think the bargaining process should be polite. “It should be an adversarial situation,” he said. “Somebody should be representing the taxpayers.”

Former New Jersey Governor Jon Corzine, a Democrat, negotiated state worker givebacks including an 18-month wage freeze and furlough days. Union workers’ contracts expire in June and leaders of the state’s largest union, the Communication Workers of America, say Christie has yet to meet with them. Even if Christie favored ending collective bargaining, he would not get support from the Democratic majority in the Legislature, especially not in 2011, when all 120 legislative seats are up for re-election.

Labor leaders also were vocal in opposing Christie’s efforts to privatize toll collections on the New Jersey Turnpike and Garden State Parkway. Christie’s second budget assumes millions in savings from privatizing certain, unspecified services and agencies. A task force told the governor in July that New Jersey could save $200 million a year by privatizing toll collections, prison food and medical services and other government services.

There are about 450 full-time and 175 part-time toll collectors on the Turnpike and Garden State Parkway. Longtime toll collectors earn an average of $65,000 a year. Toll collectors protested on February 23, 2011 outside the Turnpike Authority offices in Woodbridge. Union leaders say the administration is moving forward with its plan even after the union offered $16 million in wage and benefits concessions. A private contract could be awarded as early as April.

Prior efforts to privatize government functions have not always gone well in New Jersey. Long lines, frustrated customers and wasted millions resulted in a previous attempt to privatize motor vehicle inspection facilities.

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As reported on trentonian.com, New Jersey Governor Chris Christie held fast to his national reputation for fiscal discipline amid the widespread financial crisis that has hit the United States, unveiling a $29.4 billion state budget that calls for heftier contributions from state workers for pension and health care benefits.

Christie proposes paying $500 million into the state’s severely underfunded pension system, the minimum required under a new state law to get the state to quit skipping its payments. But Christie says he’ll make the payment only if the Democratic Legislature agrees to reforms that require government workers to delay retirement and pay more. Union workers, a powerful Democratic constituency in a legislative election year, oppose the plan.

Christie’s carrot-and-stick budget plan also targets public workers’ health care. His plan calls for additional property tax credits to poor, disabled and senior households, but only if the Legislature significantly increases public workers’ health insurance contribution. Specifically, Christie wants legislation that would push one-third of the cost of health insurance onto state workers by 2014, up significantly from the 1.5 percent of their salary they pay now. Christie would apply the $323 million in savings to property tax relief for low-income, senior and disabled homeowners.

Unions plan to rally at the Statehouse on February 25, 2011 in support of public workers in Wisconsin, where protests have erupted over collective bargaining rights and public employees’ benefits are among the issues raising ire. In a speech at the American Enterprise Institute in Washington, Christie urged elected officials to follow his example in addressing spending and debt, and big-ticket items such as pensions and other benefits. “It’s time to do the big things-the really big things,” he said.

In New Jersey, Democratic leaders in the Legislature complained that Christie, through his budget, pits one group of middle-class residents against another. However, the League of Municipalities, an association of municipal mayors, says it’s pleased Christie’s budget proposal holds the line on spending and aid to towns.

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As reported by nj.com, the largest state employee unions in New Jersey are organizing a rally at the Statehouse on February 25, 2011 to express support for workers rallying in Wisconsin. The Communication Workers of America, which represents most of the state’s employees, will participate in the rally and National AFL-CIO President Richard Trumka will address the crowd. The rally is organized by the AFL-CIO and supported by the Change to Win unions and the National Education Association.

“We are all Wisconsin public workers this week,” Hetty Rosenstein, CWA state director, said in a statement. “They’re trying to blame middle class workers for the financial mess that Wall Street caused. It’s more politics as usual and we’re ready to fight back.”

Wisconsin state employees have staged large rallies at the Madison capitol to protest a move by Governor Scott Walker to eliminate collective bargaining for most employees, except police officers and firefighters. Walker has said the changes are needed to balance the budget. The move would allow collective bargaining only for wages, but wages would be capped to growth equal to changes in the Consumer Price Index.

Governor Chris Christie has expressed support for Walker, saying he understands the need to make bold steps to balance a budget. Christie, who made national headlines fighting with the teachers union last year, will have his own time to do battle with the unions this year. Contracts for most of the state’s employees expire this year. Christie has said he looks forward to collective bargaining, saying he will be “vigorous and adversarial” during the process.

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As reported by nj.com, Senate President Stephen Sweeney will unveil a plan that aims to slash the State’s huge medical costs by requiring public employees to kick in significantly more to health benefits, according to three officials familiar with the proposal.

The Sweeney plan shares much common ground with Governor Chris Christie’s reform agenda and signals significant momentum in Trenton for sweeping changes to public medical benefits. Sweeney is expected to unveil the plan at the Statehouse on February 15, 2011, one week before Christie delivers his proposed budget to the Legislature.

The Democrat’s plan would provide immediate savings and as much as $1 billion annually within seven years, according to the officials, who requested anonymity because they were not authorized to speak publicly on the proposal. Under Sweeney’s proposal, all public employees would pay a percentage of their premium instead of the current system that requires them to pay at least 1.5 percent of their salary. The increases would be phased in over seven years and would be applied on a sliding scale depending on the employees’ salary. 

For example, in the first year, public employees who make less than $30,000 would pay 2 percent of their premium, while those who earn more than $100,000 would pay 12 percent. When fully implemented after the seventh year, the lowest income workers would pay 12 percent of their premiums, while top earners would pay 30 percent. The annual payments would range from $2,280 to $5,700 a year.

Christie has called for all public employees to pay 30 percent of their premiums on a gradual basis, regardless of income. Current retirees, most of whom pay nothing for their medical benefits, would not be subject to the increase under both the proposals advanced by Christie and Sweeney. All increases would go into effect at the start of the next union contract. Like Christie, Sweeney will also call for the creation of a multi-tiered benefit plan where employees can pay less for less coverage and more for increased coverage.  

Unlike the laws governing public pension plan that typically require payments each year to fund the current and future costs, retiree medical benefits rules allow states to “pay as you go,” which means they pay on the current cost each year and ignore the long-term price tag. For New Jersey, that long-term price tag is nearly $67 billion, about $13 billion more than the State’s pension deficit. While the pension funds have $48 billion on hand, the State has not saved a dime for medical benefits.

New Jersey has the highest unfunded liability and annual medical benefit costs in the nation, according to an analysis by the Center for State and Local Government Excellence. As of the latest report, there are 394,521 active and retired employees enrolled in the state-administered health benefit plan. This includes active and retired employees from municipalities and school districts who participate in the state plan. Under Sweeney’s proposal, towns would be temporarily blocked from joining the state system to help the fund stabilize.

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As reported by nj.com, Democrats are pushing back against Gov. Chris Christie’s plan to privatize some state government functions by calling for a change in the state constitution to put a short leash on agencies that want to hire private firms.

Under a plan discussed in the Assembly State Government Committee, state and local government agencies would not be able to spend more than $250,000 on a contract with a private company for services government already provides, unless they can show it would save money without creating new fees or fare hikes, and will not reduce quality. Companies would have to give the employees the same pay and benefits as government workers with similar jobs. Unions would have a chance to review the agency’s cost estimates and propose their own cost-saving measures. Contractors would also have to offer available jobs and help to laid off public employees.

“I don’t believe (privatization) should be done just on the backs of union employees by taking livable wages and decimating them to minimum wage so the wealth flows up to the top again,” said Assembly State Government Committee Chairwoman Linda Stender. Christie spokesman Kevin Roberts called the resolution “bad legislation” that would “enshrine a special interest giveaway in the New Jersey Constitution.”   

A Christie administration task force last year recommended privatizing functions like health care for prison inmates, toll collections, state parks, highway rest stops and career centers for the unemployed. The task force estimated the state government could save $210 million through the changes. The New Jersey Turnpike Authority recently put out a request for proposals that calls for toll collectors to make $12 per hour, less than half what experienced employees now make. Democrats said they were trying to abuse and waste that occurred in the 1990s with the privatization of vehicle inspections and the installation of the E-ZPass toll system.

The Committee did not vote on the resolution to amend the constitution. But lawmakers have the power to put it on the ballot this fall without any action from the governor, if they get 24 of 40 votes in the Senate and 48 of 80 in the Assembly. Democrats hold 24 seats in the Senate; 47 in the Assembly. The resolution was opposed by business advocacy and championed by organized labor.

Union officials said the quality of services would decline under the private sector. “The bottom line is profit. Profit at all costs,” said Ray Stever, president of the New Jersey State Industrial Union Council. “Their point is to come in here and use our taxpayer dollars to line their pockets.” 

Please continue to check this blog periodically to ascertain updates regarding any and all efforts to privatize government functions. It goes without saying that such an attempt will have a direct impact on public employees, to include New Jersey Public Safety Employees.

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As reported by app.com, New Jersey’s credit rating was downgraded by a major Wall Street rating agency, whose concerns over state debt and obligations for public retirees’ benefits now mean higher costs for the state to borrow money. Standard & Poor’s moved New Jersey’s bond rating down a notch to its fourth highest level. The move ignited an immediate partisan skirmish over which party is to blame and upped the pressure for pension and health benefit changes.

“The clock is ticking away on a pension and benefit bomb that can damage the health of the finances of our state,” Governor Chris Christie said at a town-hall meeting in Union City. Democrats said Christie aggravated the situation by not putting any money into the pension fund in the current budget year, when $3 billion was due. This coming year $3.5 billion is due, though a state law says that roughly $500 million will be required.

“Gov. Christie inflicted severe damage last year when he skipped the state’s pension payment,” said Assemblyman Louis Greenwald. “It was reckless and made the problem much worse. It was so short-sighted, in fact, that it wiped out all the benefits from the bipartisan pension reforms ushered into law early last year.” 

Standard & Poor’s said in its report that pension funding “remains the most significant risk to the state’s long-term credit quality.” Christie and fellow Republicans want to increase the retirement age, reduce benefits and boost employees’ contribution to the pension fund. Democratic leaders have a counterproposal that would reduce benefits and give unions input over managing pension investments.

The change is expected to have little immediate impact on state costs, as the state’s financial difficulties have been well documented and taken into account in recent borrowings. One recent bond sale was reduced in size because the rates were not meeting expectations.

Credit ratings for various state agencies dependent on appropriations from the state budget were also lowered by Standard & Poor’s. “We understand that Gov. Chris Christie has recently announced various reform initiatives that, if approved, could help begin to manage the state’s pension liability,” said the report. “We will continue to monitor this, but in our view progress on this front is likely to be gradual and we expect the state’s debt and liability profile to remain weak and continue to be a source of budget pressure.”

Standard & Poor’s said New Jersey’s pension system was 56 percent funded as of last June and that it expects the “pension funding ratio will weaken further as a result of the failure to fund” the required payment this budget year, though solid growth in investment income could offset that. The State’s long-term obligation for health benefits for retirees, which it finances on a year-by-year basis, is estimated at close to $57 billion.

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As reported by nj.com on February 8, 2011, Governor Christie’s plan to drastically change the State’s troubled pension system was introduced by Republican lawmakers on February 7, 2011, but Democrats who control the Legislature indicated they will push their own plan instead.

Assemblymen Declan O’Scanlon and Gary Chiusano sponsored Christie’s proposals in the lower house, while State Senator Joseph Pennacchio said he would introduce them in the upper house. The 139 page bill mirrors ideas Christie first laid out in the fall and would only affect future retirees. “We’re in dire shape and we’re trying to save the system,” said O’Scanlon.

The State’s pension fund faces a $54 billion shortfall, brought on by investment losses, increased benefits, growth in the number of public employees and the State’s decision over the years to repeatedly reduce or skip payments. Last year, Christie skipped a $3.1 billion payment. The proposals would not affect already-retired workers. Among the biggest changes:

·         All public employees would pay 8.5 percent of their wages towards pensions

·         The retirement age would be raised to 65 for most workers. To retire early, employees would need to have accumulated 30 years on the job, rather than 25, and would be docked one-quarter of 1 percent for every month of their age under 65

·         Pensions for most workers would be calculated on a five-year average of their highest salaries, up from three

·         The 9 percent pension bump given to employees 10 years ago would be rolled back for current and future employees

·         Police and firefighter retirees would see their maximum benefit shrink from 70 percent to 65 percent of their salaries

·         Annual cost of living adjustments would be eliminated

Democrats also promoted their own proposal outlined in January. That plan would create joint labor/management boards to administer the system; force employees to pay more if the fund’s fiscal health declines; roll back the pension boost or make employees pay more for it; and eliminate cost of living adjustment for new and recent hires.

“The Senate President has put forward a plan that would blow up the pension system as it currently exists and recreate it so it works and is no longer a political football,” said Chris Donnelly, a spokesman for Senate President Stephen Sweeney. “The Governor’s plan is simply more of the same that got us to where we are now.”

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As reported by nj.com on February 7, 2011, lawmakers in the New Jersey Senate will hear from police and firefighters about how layoffs are impacting public safety.

The Senate Law and Public Safety Committee has invited several speakers to address a recent spike in violent crime. The hearing scheduled for February 7, 2011 will examine how the ongoing fiscal crisis is effecting the ability of cities and towns to maintain public safety. Municipalities around the State have laid off police officers and firefighters to help balance their budgets.

Governor Chris Christie recently met with Newark Mayor Cory Booker, Camden Mayor Dana Redd, and Trenton Mayor Tony Mack to discuss the issue. The Governor says he is looking to maintain a balance between his responsibility to taxpayers and public safety.

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As reported by nj.com on February 7, 2011, Newark police have made nearly half as many arrests, issued fewer summonses and conducted fewer inquiries in the second half of 2010 than in the same period the previous year, a decline some law enforcement officials say was tied to hostile layoff negotiations.

A public and protracted fight between the administration of Mayor Cory Booker and union leaders over the layoffs of more than 160 officers severely damaged morale, likely leading to a precipitous drop in production, officials said. “Morale is definitely at an all-time low and I don’t know what it’s going to take to bring it back,” said Derrick Hatcher, president of Newark’s Fraternal Order of Police. “Years ago, you used to love coming into work. Now some guys dread coming to work.”

Booker insists morale has not affected crime fighting, and said it is impossible to link arrest totals with crime rates. “Correlation is not causation,” Booker said. “You can cut the statistics any way you want, but the fact of the matter is there is so much evidence that shows arrest rates don’t necessarily correlate with crime.”

Between July and December of 2010, police made 7,577 arrests, according to records. Newark recorded 14,920 arrests during the same period in 2009 and 15,332 the year before. The public and often contentious talks between the administration and the police union coincided with steep declines in monthly arrests. The largest monthly dip, 42.8 percent, came in November, when layoff negotiations hit a fever pitch. The second largest monthly drop, nearly 20 percent, occurred in July, when Booker first said layoffs would be inevitable without union concessions.

In December, the month after the layoffs were imposed, police recorded just 837 arrests, the lowest monthly total in three years. There were 2,443 arrests in December 2009 and 2,167 in December 2008. Newark saw at 7 percent increase in crime last year and the department recorded 6,717 fewer arrests than in 2009.  

Informed of the arrest numbers, Acting Essex County Prosecutor Robert Laurino said in a statement that he would “not tolerate any police officer in Essex County turning a blind-eye on people who should be arrested for criminal offenses.” In addition to fewer arrests, the number of summonses issued fell by 28 percent last year compared to 2009, and the number of field inquiries conducted, interactions between officers and citizens for a public safety purpose, fell 12 percent.

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As reported by nj.com on February 4, 2011, the effort to reform the State of New Jersey’s civil service system stalled as Governor Chris Christie conditionally vetoed a bill to overhaul the system and Democratic legislative leaders declared they will not agree to his proposed changes. 

Christie called the Democrats’ bill “tepid, ineffective and meaningless” and said it would not save property taxpayers’ money. “The Legislature has sent me special interest approved ‘reform’ that will do nothing to constrain property taxes,” said Christie in his veto message. “The time for real reform of civil service is overdue.”

The Governor proposed allowing the State’s 193 towns in the Civil Service system, rules that govern the hiring, promotion and firing of employees, to opt out of it through voter referendum. Democrats had balked at this, saying it would open the door to more political cronyism and nepotism. 

Senate President Stephen Sweeney said he was willing to compromise with the Governor after they passed the bill, but Christie “didn’t want to give an inch.” Sweeney said he will not put Christie’s conditional veto up for a vote in the Senate, and will not start from scratch on another civil service reform bill. “I’m not going to beg the governor to try to find reform. We’re equal branches of government,” he said. “This was the first time the governor was not willing to compromise on something. What he’s going to find out is when there’s no compromise, there’s no legislation.”

Changing the State’s Civil Service system is the biggest remaining piece of Christie’s proposed “tool kit” to help towns curtail property taxes. Starting this year, towns face a 2 percent limit on property tax increases. In addition to the 193 towns, most state workers and 20 of the State’s 21 counties are in the Civil Service system.

The Democrats said their bill was “real reform” because it allowed local leaders to move employees between departments and set up a task force to reduce the number of employee titles and give towns more flexibility in assigning work duties. In his veto, Christie struck language about creating the task force on civil service titles, saying it would add an unnecessary layer of bureaucracy.

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On January 20, 2011, a New Jersey Superior Court Judge rejected an attempt by various public employee unions to overturn pension changes for new government employees enacted early last year. The laws challenged required new employees to pay 1.5 percent of their salaries toward current health benefits and 1.5 percent of their pensions after they retire. The laws also limited pensions to full-time employees and capped payments of unused sick time to $15,000.

The decisions, released by the Honorable Linda R. Feinberg, were largely expected.  The Communication Workers of America, AFL-CIO, and the American Federation of State, County and Municipal Employees all challenged the laws as vague and unconstitutional.  New Jersey’s largest teachers union, the New Jersey Education Association, the Teamsters Union, and the Fraternal Order of Police argued the Legislature overstepped its authority and that these new laws amounted to an unlawful “taking” by the government.

Feinberg rejected these and other arguments and dismissed the lawsuits “with prejudice,” meaning that the unions could not bring another lawsuit again on the claim. Please click on the links below to read the decisions in their entirety.

CWA Decision

NJSPBA Decision

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As reported by nj.com on January 13, 2011, Governor Chris Christie proposed significantly higher health insurance premiums for hundreds of thousands of public workers in New Jersey, saying overly generous benefits are threatening to bankrupt the system.

Christie told a town hall audience in Bergen County that state and local workers, teachers, police, and firefighters must begin paying more for their medical and dental benefits if the system is to remain afloat. The health benefits fund is $67 billion shy of meeting its eventual obligations.

Christie wants benefits changes that make the health insurance system more like the private sector or the federal government, with employees paying about one-third of the costs of whatever benefits plan they choose. The government picks up the other two-thirds. That would amount to a significant increase from the 1.5 percent of salary employees now pay. A teacher earning $60,000 now pays $900 a year toward a plan that costs $22,000, Christie said. Under his new proposal, that teacher would contribute $7,333 a year for an identical plan. The changes also could result in inferior benefits, as some workers would be forced to accept plans with higher deductibles and co-pays or limited choice of doctors, to keep down costs.

Christie said health benefits for current workers and retirees cost New Jersey taxpayers $4.3 billion a year and growing. He said the State cannot afford to have worker benefits eating a larger and larger portion of state, local and school budgets. The Governor also renewed his call for changes to the pension system which include: raising the retirement age to 65, from 62, rolling back a 9 percent pension increase granted a decade ago and requiring all workers to contribute 8.5 percent of their salaries toward retirement, a higher portion than all but police and firefighters pay now. He said adopting major changes to the pension system this year would cut the funds’ $34 billion unfunded liability in half in 30 years.

As one can see, Governor Christie’s looming healthcare proposals will have a significant impact on New Jersey public safety employees going forward. The contributions that members currently pay could become significantly higher, while the level of benefits they currently receive could drastically decrease. Please continue to check this blog periodically to ascertain updates regarding the impending proposals.   

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As reported in the Star Ledger on November 10, 2010, hundreds of Newark city police officers, firefighters, and civilian employees, barring a last-minute reprieve, will be laid off on Friday, November 12, 2010 after a judge dismissed a lawsuit aimed at blocking the city’s cost-cutting measures.

Superior Court Judge Patricia Costello told lawyers for the unions filing suit that she did not have the authority to issue a temporary stay to prevent 167 city police officers, 24 firefighters, and several hundred civilian employees from losing their jobs. While the Judge appeared sympathetic to the plaintiff’s claim that layoffs might adversely affect public safety and that the city had not engaged in meaningful negotiations, she said only the state Civil Service Commission can hear such a request.

Judge Costello also voiced frustration that the Commission, which had earlier approved the city’s layoff plan, is now one member short of the minimum needed to hold another hearing. “While the case law is completely clear, it’s hollow if the CSC is not meeting,” she said of the Commission, which is a defendant in the lawsuit along with Newark Mayor Cory Booker. The Appellate Division, however, can rule on the request for a temporary stay, Judge Costello said, and can issue a decision itself or return the case to her with that authority.

Facing an $83 million deficit, the Newark City Council approved the mayor’s budget last month, which includes a total of 866 layoffs and a 16 percent property tax hike. The Commission had earlier approved the city’s layoff plan and deemed an earlier appeal “not ripe” until the layoffs occur.

It is expected the unions will be filing a similar request for a temporary injunction with the Appellate Division. Therefore, please continue to check this blog periodically to ascertain any updates that become available.

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On September 28, 2010, the Appellate Division decided In the Matter of Manuel Oliveira, Docket No.: A-3325-08T2. In the case, Manuel Oliveira appealed from a final decision of the Civil Service Commission (“Commission”) denying his application for back pay and counsel fees.

Oliveira is a Senior Corrections Officer with the Department of Corrections (“DOC”), who was removed from his employment on May 31, 2001. On October 20, 2005, the Merit System Board found that mitigating circumstances warranted a six-month suspension rather than removal. Following denial of a motion for reconsideration by the DOC, Oliveira returned to duty and pay status on April 24, 2006.

When the parties failed to agree on the amount of back pay and other benefit credits due to Oliveira, he requested the Merit System Board resolve these issues. In support of his application for back pay, Oliveira certified that he did not work for the entire time of his suspension. He further certified that he applied for three security positions with three different companies, but did not obtain a position. He further stated that he applied for a job in construction, which he did not obtain. He surmised that he was perceived as “damaged goods” and made not further efforts to obtain employment.

In its final decision, the Commission found that Oliveira was not entitled to back pay because he did not make reasonable efforts to mitigate his damages. The agency also found that Oliveira was not entitled to counsel fees because the record did not support a finding that his employer unreasonably delayed implementation of the reinstatement order. The Commission awarded Oliveira twenty (20) vacation days for 2005 and 2006, the maximum number of days permitted by statute. This appeal ensued.

On appeal, Oliveira argued that the Commission acted arbitrarily and unreasonably in denying back pay and limiting his vacation time. He further contended that he was entitled to counsel fees. After considering Oliveira’s arguments and the contents of the record, the Court affirmed the Commission’s determination in its entirety. Specifically, the Court found the Commission’s determination was supported by sufficient, credible evidence in the record and the ruling was consistent with the law governing the award of back pay and benefits.

The case illustrates the principle that public employees who are terminated from their employment and, thereafter, ultimately reinstated to their position are not automatically entitled to back pay during their period of separation. Rather, the employee must make reasonable efforts to obtain alternate employment in order obtain an award of back pay. Without making such efforts, a court will likely find that the employee is not entitled to any back pay such as in this case. Therefore, in the event you are ever terminated from your employment, it is imperative to speak with an experienced attorney to ensure you rights are protected.

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As reported by various media outlets, Governor Chris Christie announced a 33-bill legislative package on May 10, 2010 that plans to place stricter limits on property tax increases and a put a permanent 2.5 percent limit on annual raises for public workers.

Christie also discussed several potential reforms, including raising the retirement age to 65 from 62; having public employees pay more toward their pensions and allowing towns to discard some civil service rules.

Union leaders have criticized many of the proposals, doubting that they will save much money. They also fear that allowing towns to opt-out of civil service will open the system to more hiring decisions based on patronage.

The proposed legislation includes: (1) a constitutional 2.5 percent cap on the annual increases in municipal, school, and county property tax levies; (2) a 2.5 percent limit on the annual increases of public employee contracts, including wages, health benefits, vacation time, and other perks; (3) limiting the amount of unused sick time that current employees can cash out at $15,000; and (4) allowing towns to opt-out of the civil service system through an ordinance or a petition by 15 percent of the voters.

These new legislative proposals have the potential to impact every public employee in the State of New Jersey. Specifically, the proposal regarding the 2.5 percent limit on the annual increases of public employee contracts, which would affect all public employees, seems to usurp the purpose behind the collective bargaining process and the concept of organized labor. As such, this legislation must be followed closely by all New Jersey Public Safety Officers. Please continue to check this blog periodically to ascertain updates regarding this legislation and its ultimate progression.

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As reported in the Trentonian on March 12, 2010, Governor Chris Christie is looking privatize State jobs. Yesterday, Governor Christie created a task force to look at ways to privatize State jobs to save money as he tries to find a plug for a projected $11 billion budget deficit for the 2011 fiscal year.

Christie signed an executive order creating the five-person group to look at “every aspect of the way government does business.” He said privatization could narrow the scope of public services provided by the State’s nearly 75,000 workers and increase efficiency. Christie also stated that he would have ordered the audit even if New Jersey was not in dire economic need. Privatizing jobs would inevitably mean layoffs for State workers, but Christie said he had not asked the task force to come back with a specific level of savings.     

The creation of the task force comes just days after the new Republican Governor said he was wrong to think he could alter a deal Governor Corzine made with State workers that allowed them to keep pay raises and take furloughs in exchange for a no-layoff pledge. Democrats estimate that for every 1,000 workers laid off, the State would realize $30 million to $40 million in savings. However, according to Bob Master, spokesman for the Communications Workers of America District 1, privatization is a “failed tactic from the past that’s based on an ideological hostility to government.” Specifically, he indicated, “you get a real deterioration of services and you don’t save any money.” 

Governor Christie’s potential privatization could have an enormous impact upon New Jersey Public Safety Officers. As such, please continue to check this blog periodically to ascertain updates regarding privatization and the workers it will affect.

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As reported in the Trentonian on January 8, 2010, the United States Department of Justice filed a lawsuit against the State of New Jersey alleging that New Jersey’s widespread use of a written exam to promote police sergeants discriminates against blacks and Hispanics. The lawsuit, filed in federal court in Newark, accuses New Jersey of civil rights violations for using a written exam in which black and Hispanic candidates scored significantly and consistently lower than their white counterparts.

Moreover, according to the complaint, even when minority candidates passed the test, they were not promoted as often as white candidates because their scores were lower and promotions were granted first to those with the highest scores and most seniority. Significantly, the Department of Justice has not taken issue with using seniority as a factor for promotions. As such, the lawsuit seeks to stop New Jersey from continuing to use the exam and asks the court to order it to offer relief to officers “harmed” by the exam by extending them promotions, back pay and retroactive seniority.

Test scores from 2000 to 2008 reviewed by the Justice Department showed that 89 percent of the white candidates who took the exam passed, compared to 77 percent of Hispanics and 73 percent of black candidates. With the exception of the New Jersey State Police, most law enforcement agencies across the state use the exam.

“This complaint should send a clear message to all public employers that employment practices with unlawful discriminatory impact on account of race or national origin will not be tolerated,” said Thomas Perez, Assistant Attorney General for the Civil Rights Division. “The Justice Department will take all necessary action to ensure that such discriminatory practices are eliminated and that the victims of such practices are made whole.”

In a similar case, a federal judge in July sided with the Justice Department in ruling that New York City had discriminated against minorities in its hiring of firefighters, causing blacks and Hispanics to comprise only 10 percent of the fire department’s work force, even though most city residents are minorities.

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According to an article published in the Trentonian on October 1, 2009, plans are in the works to put New Jersey’s most troublesome juvenile inmates in the custody of the adult prison system. This move, in turn, could potentially take the Juvenile Justice Commission (“JJC”) out of the incarceration business. In connection with this move, sources indicated that some JJC guards and teachers have been transferred back to adult prisons.

The article stated the JJC has stressed rehabilitation over punishment since it was formed in 1995 to take criminal children from the custody of the juvenile wing of New Jersey’s Department of Corrections. Recently, however, many guards in the JJC have complained about being attacked and injured by the increasing number of young gang members.

Under the plan being talked about in the Governor’s office, the JJC will continue to be part of state government, supervising group homes, halfway houses and other programs for keeping convicted juveniles out of prison. According to various sources, up to 80 percent of New Jersey’s juvenile offenders are doing well in the JJC system of not locking up most convicted teenage offenders. The sources also stated the New Jersey Department of Corrections’ Commissioner George Hayman has checked out the Johnstone State Mental Complex Facility in Bordentown to see if it can handle some of the overflow of inmates stemming from the JJC policy change as well as the closure of Riverfront State Prison in Camden.

Please check this blog periodically to ascertain any updates with regard to this new policy. To view the article published by the Trentonian in its entirety, please click on the following link.

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Illustrating the potential dangers New Jersey Public Safety Officers encounter on a daily basis, gunfire erupted as a police tactical squad executed a no-knock search warrant in Lakewood on September 23, 2009, leaving four officers and a suspect shot. The incident was reported by the Associated Press in an article on September 24, 2009.  

One Lakewood police officer who was shot in the face and another who was shot in the foot were taken to the hospital, Deputy Chief Michael Mohel of the Ocean County Prosecutor’s Office said. Two others sustained minor injuries when they were struck in their bulletproof vests. The suspect, Jamie Gonzalez, 39, was taken to this hospital with multiple gunshot wounds. There was no word on their conditions and the names of the officers have not been released.  

Police had planned to search the home for narcotics and weapons. The shooting comes more than two months after Jersey City Police Detective Marc DiNardo was shot in the face storming an apartment where two armed robbery suspects were holed up. Four other officers were wounded in the gun battle and the suspects were killed. DiNardo was taken off life support and pronounced dead one day before his 38^th birthday.   

To view the article in its entirety, please click on the following link.

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As reported in the Trentonian on September 22, 2009, federal oversight of the New Jersey State Police has come to an end. U.S. District Court Judge Mary L. Cooper has ended federal monitoring of the New Jersey State Police more than 10 years after the shooting of unarmed minority men during a highway traffic stop prompted intervention over racial profiling.

Judge Cooper signed the order dissolving a consent decree, following a joint motion filed in August by the State and U.S. Justice Department. The move followed Governor Jon Corzine’s bill signing in August that established an office within the State Attorney General’s office to oversee the State Police.

State Police agreed to federal oversight after troopers on the New Jersey Turnpike shot at a van containing four minority men during a 1998 traffic stop, wounding three of them. The agency has implemented major changes since then, including training and new supervisory policies to monitor road stops. In addition, trooper vehicles now contain dashboard cameras to videotape traffic stops. 

In a 2007 semiannual report, federal monitor Jim Ginger said that the State Police force is a different organization than when troopers fired on the van. Ginger and a second monitor tracked troopers’ stops of minority motorists for years, issuing reports every six months. The monitors found the State Police consistently in compliance for several years before the judge lifted the order. Corzine confirmed the finding with an independent review.

David Jones, President of the State Police Fraternal Association, commended the troopers but condemned the Attorney General’s office for not having policies and systems in place that would have allowed the State Police to identify and resolve isolated incidents of profiling. Specifically, Jones stated, “Former attorneys general for their own political expediency were willing to throw the state police under the bus…a decade later, we can look back at who the true professionals are and at those people who would sacrifice public safety for their own careers.”

To view the article in its entirety, please click on the following link.

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A previous entry to this blog focused upon the presence of illicit cell phones in prisons. In the entry, it was explained how illicit cell phones remain a major problem inside New Jersey’s prisons, as inmates use the devices to secretly communicate with each other, intimidate witnesses and direct drug deals and other illegal activity.

On September 16, 2009, the Trentonian reported that New Jersey Attorney General Anne Milgram is now utilizing sniffing dogs and orifice scanners to address the problem. Recently, twenty-five convicts from five different gangs and 10 other New Jersey prison inmates have been indicted for possession of cell phones.

Attorney General Milgram announced the indictments at a press conference in which police dogs demonstrated their ability to sniff out hidden phones and authorities unveiled a new cell detection device called the BOSS, for “Bodily Orifice Security Scanner.” The BOSS is a device for looking into a body like and x-ray machine or airport surveillance equipment that can see hidden items. The scanner is within a chair that inmates sit in to be checked for contraband.

Prison officers and others in New Jersey are concerned that the gangs which overpopulate state prisons are trying to run the prisons at the same time they try to call the shots for other gang members still on the outside. “Safety and security both inside and outside the prison walls are paramount to our mission,” said New Jersey Department of Corrections Commissioner George W. Hayman. “Illegal cell phones potentially provide the offender population with an opportunity to compromise public safety. This cannot and will not be allowed to happen, and we will continue to utilize aggressive, proactive measures in our efforts to protect law-abiding citizens.”

Attorney General Milgram stated that between August 2008 and July 2009, New Jersey Corrections Officers seized 391 cell phones from inmates. She also noted that the gang population in New Jersey prisons keeps escalating because of all the recent arrests of gang members, almost 2,000 in the last 13 months.

To read the article in its entirety, please click on the following link.

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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 June 29, 2009, the U.S. Supreme Court ruled that white firefighters in New Haven, Connecticut were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.

New Haven was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results, the Court said in a 5-4 decision. The city said that it had acted to avoid a lawsuit from minorities.

The ruling could alter employment practices nationwide and make it harder to prove discrimination when there is no evidence it was intentional. “Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions,” Justice Anthony Kennedy said in his opinion for the Court. He was joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia, and Clarence Thomas.

In dissent, Justice Ruth Bader Ginsburg said the white firefighters “understandably attract this court’s sympathy. But they had no vested right to promotion. Nor have persons received promotions in preference to them.” Justices Stephen Breyer, David Souter, and John Paul Stevens signed onto Ginsburg’s dissent, which she read aloud in Court.

The decision had its origins in New Haven’s need to fill vacancies for lieutenants and captains in its fire department. It hired an outside firm to design a test, which was given to 77 candidates for lieutenant and 41 candidates for captain. Fifty six firefighters passed the exams, including 41 whites, 22 blacks and 18 hispanics. Of those, only 17 whites and two whites could expect promotion. 

The city eventually decided to not use the exam to determine promotions. It said it acted because it might have been vulnerable to claims that the exam had a “disparate impact” on minorities in violation of the Civil Rights Act of 1964. The white firefighters said the decision violated the same law’s protection on intentional discrimination.  

The city declined to validate the test after it was given, a step that could have identified flaws or determined that there were no serious problems with it. In addition, city officials could not say what was wrong with the test, other than the racially skewed results. 

Justice Kennedy said, “The city could be liable for disparate-impact discrimination only if the examinations were not job related” or the city failed to use a less discriminatory alternative. We conclude that there is no strong basis in evidence to establish that the test was deficient in either of these respects.” 

Alternatively, Ginsburg said the court should have assessed “the starkly disparate results” of the exams against the backdrop of historical and ongoing inequality in the New Haven fire department. As of 2003, she said, only one of the city’s 21 fire captains was African-American.

Until this decision, Ginsburg said, the civil rights law’s prohibitions on intentional discrimination and disparate impact were complimentary, both aimed at ending workplace discrimination. “Today’s decision sets these paired directives at odds,” she said.

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On June 8, 2009, 2009, the Appellate Division decided In the Matter of Tanya Johnson, Docket No.: A-0482-07T2. In the case, Tanya Johnson appealed from a final decision of the Merit System Board (“Board”) terminating her employment as a parole officer recruit.

In her position as a recruit, Johnson was required to complete a Police Training Commission (“PTC”) course. She began the basic course on January 9, 2006. On March 24, 2006, she failed a test for unarmed defensive tactics. She was given remediation training, but on March 29, Johnson failed the test again and was dismissed from the PTC course.

On the same date, March 29, 2006, Johnson was served with a notice of dismissal from her position as a parole officer recruit. On March 31, 2006, she was served with a preliminary notice of disciplinary action for failure to comply with N.J.A.C. 4A:2-2.3(a)(11), which required her to successfully complete all of the instructional areas of the training cycle. She was removed effective April 4, 2006, and a departmental hearing was held on July 19, 2006. The charge was sustained.

Johnson appealed to the Department of Corrections (“DOC”) Training Academy on April 20, 2006. The Training Academy, however, was not the proper venue for the appeal and Johnson’s counsel was advised that the appeal had been filed with the wrong party and had to be filed with the PTC. The appeal was not sent to the proper venue until almost a year after her dismissal, however.

Ultimately, the matter was referred to the Office of Administrative Law (“OAL”) and, thereafter, the appointing authority moved to dismiss on the grounds that the appeal was not timely filed with the PTC. The administrative law judge (“ALJ”) granted the motion and the matter was dismissed with prejudice. Johnson appealed to the Board and the Board affirmed the ALJ’s dismissal of the appeal. However, the Board dismissed the appeal without prejudice. This appeal ensued.

Since the dismissal of the appeal was without prejudice, the Appellate Division held the matter was not ripe for appeal because it did not know whether Johnson was ultimately successful in having the PTC accept her untimely appeal. Although Johnson argued that the Court should order a preliminary hearing on the merits, the Court determined it could not do so since Johnson has not complied with the procedural requirements for an administrative hearing. Accordingly, the Court dismissed the appeal without prejudice because is interlocutory.     

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On May 19, 2009, the Appellate Division decided State of New Jersey v. Yusef Gethers, Docket No.: A-5323-06T4. By way of background, on March 24, 2005, a Union County grand jury returned an indictment charging Defendant, Yusef Gethers, with second-degree certain persons not to possess a weapon, N.J.S.A. 2C:39-7(b)(1). On the same date, a Union County grand jury returned an indictment charging Defendant with third-degree unlawful possession of a weapon, a handgun, N.J.S.A. 2C:39-5(b) (count one), and fourth-degree possession of a prohibited device, hollow point bullets, N.J.S.A. 2C:39-3(f). 

Following denial of his motion to suppress evidence, Defendant pled guilty to count one of the indictment, third-degree unlawful possession of a weapon. Pursuant to a plea bargain reached with the State, Defendant was sentence to five (5) years probation, conditioned upon 364 days of house arrest. The trial court dismissed the remaining charges under the indictments as well as an outstanding municipal court warrant. The trial court also imposed the appropriate fees and penalties. Thereafter, this appeal ensued when Defendant appealed the suppression ruling.

In this case, the Appellate Division determined the motion to suppress evidence obtained in a vehicular search, specifically, a gun found in a backpack not in plain view, was improperly denied by the trial judge. The Court found the State did not carry its burden of demonstrating a recognized exception to the warrant requirement where: (1) both occupants were outside the car and did not have access to the backpack; (2) there was no possibility they would leave the area; (3) the officers’ conduct did not indicate a belief the occupants were armed and dangerous; (4) there was no evidence of accomplices who might have come onto the scene or other persons who had access to the car destroying or disposing of the evidence or moving the car; (5) the car was parked in a residential driveway so there was no issue of traffic obstruction; (6) the ratio of officers to suspects was 4-to-2; and (7) the Defendant was in a wheelchair. Consequently, the Court reversed the trial judge’s ruling and remanded the case back to the trial court.

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On May 16, 2009, the Public Employment Relations Commission (“PERC”) issued a decision in response to certain unfair practice charges and requests for interim relief filed against the State of New Jersey regarding the imposition of unpaid, “furlough” days. 

By way of background, on April 14, 2009, the Communications Workers of America, AFL-CIO (“CWA”), filed an unfair practice charge and a request for interim relief against the State of New Jersey. CWA alleged that the State committed unfair practices proscribed by the New Jersey Employer-Employee Relations Act by: (1) unilaterally imposing a reduction in the work year and compensation of employees represented by CWA by requiring them to take unpaid leave days; (2) failing to negotiate over the effects of the decision to impose involuntary unpaid leave days; and (3) conspiring with the Civil Service Commission to enact temporary layoff rules for the purpose of circumventing the State’s obligation to negotiate over staggered unpaid leave days. The charges alleged that, through these actions, the State repudiated various sections of the collective negotiations agreements it has entered into with CWA and breached its duty to negotiate over terms and conditions of employment in violation of the Employer-Employee Relations Act. Additional charges and requests for interim relief were filed between April 14 and April 29 by other employee organizations representing units of various State employees, including P.B.A. 105.

An order to show cause was executed and the return date was ultimately scheduled on May 14. Once numerous briefs, certifications, and exhibits were filed, all parties appeared on the return date.  After entertaining argument, the Commission Designee Stuart Reichman, in an extensive written opinion, denied the applications for interim relief. The Designee found that where a monetary remedy could normally be issued by the Commission in the event the furloughs were found to constitute an unfair practice, as is the case here, an injunction to prevent the institution of the furloughs is not appropriate because monetary loss does not constitute irreparable harm. As a result, the unfair practice charges will proceed in the normal course. To read the decision in its entirety, download the same from the PERC website.

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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 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 16, 2009, the Appellate Division decided Siaw v. Valenzuala. In the case, Defendant Diomedes Valenzuala, a police officer, appealed from the judgment of the trial court denying his claims against his former employer, the Township of Irvington, for indemnification pursuant to N.J.S.A. 40A:14-155 in connection with his defense of a lawsuit against him arising out of his exercise of police powers in arresting Plaintiff.

TheCourt indicated that the central question in the case was whether, at the time Valenzuala lawfully arrested Plaintiff, Valenzuala was acting “in the furtherance of his official duties.” If he stopped to investigate a suspicious incident on his way to the police station in response to a call for him to report there on police business, as Valenzuala maintained, then Valenzuala would be entitled to reimbursement under N.J.S.A. 40A:14-155. If he was engaged in a side-business of “keeping the peace” for a towing company, as the trial judge found, then he was not acting “in the furtherance of his official duties” within the meaning of N.J.S.A. 40A:14-155, even if he acted lawfully in arresting Plaintiff.

The Appellate Division affirmed, finding that the trial court appropriately determined that Valenzuala was engaged in a side-business of “keeping the peace” for a towing company at the time of the arrest and not “acting in the furtherance of his official duties.” As a result, the Court dismissed Valenzuala’s action seeking reimbursement for costs associated with his defense of a civil action filed by Plaintiff. 

This case illustrates the principle that officers who work a side-job may not be reimbursed for defending a legal proceeding brought against them for actions which arose out of their performance of the side-job. Many public safety employees, especially during these economic times, work side-jobs in order to obtain additional compensation. All of these officers, however, should be aware of this case. In the event a lawsuit is brought against you, on account of your exercise of police powers while engaged in the side-job, the potential is great that you will not be reimbursed for defending such a lawsuit.

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On February 3, 2009, the United States Court of Appeals for the Third Circuit decided the case of LaPosta v. Borough of Roseland. In the case, plaintiff, Joseph LaPosta, a police officer, alleges Defendants, the Borough of Roseland and its Police Chief, retaliated against him after he attempted to join a police organization of which the Police Chief did not approve. Plaintiff’s claims were brought pursuant to 42 U.S.C. §1983 and state tort law. 

Plaintiff was employed as a police officer with the Borough of Roseland. After completing his police academy training, Plaintiff was forced to join the Fraternal Order of Police (“FOP”) union. When Plaintiff expressed an interest in joining an alternative union, the Policemen’s Benevolent Association (“PBA”), the Police Chief advised Plaintiff that neither he nor any other officers were to have any influence from the PBA. Nevertheless, Plaintiff joined the PBA. Thereafter, the Police Chief allegedly retaliated against Plaintiff, specifically by subjecting Plaintiff to smoke from cigarettes, cigars, and scented candles, charging him with insubordination, denying him an earned stipend, belittling him in front of other officers, filing frivolous internal affairs claims against him, and denying him the opportunity to attend career-advancing classes and seminars.

Plaintiff’s complaint asserted six claims: (1) violation of 42 U.S.C. §1983; (2) intentional infliction of emotional distress against the Police Chief; (3) hostile work environment; (4) negligence; (5) intentional interference with prospective economic advantage against the Police Chief; and (6) conspiracy. Both the Borough and Police Chief filed motions to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Thereafter, the United States District Court for the District of New Jersey entered an opinion and order granting the motions. This appeal followed.

The United States Court of Appeals for the Third Circuit affirmed the District Court’s ruling in part, reversed in part, and remanded the case for further consideration. Specifically, the Third Circuit affirmed the dismissal of all but one of Plaintiff’s claims for failing to file a notice of claim under the New Jersey Tort Claims Act. However, the Third Circuit determined the District Court erred in dismissing Plaintiff’s §1983 claim. The Third Circuit held the retaliation claim was not barred by the statute of limitations and should be remanded to the District Court to be adequately analyzed as a claim based on freedom of association.

This case illustrates the importance of obtaining an experienced, qualified attorney prior to initiating an action similar to the one recounted above. There are many procedural hurdles one must follow, to include filing certain notices, to perfect the filing of such a claim. Consequently, it is imperative one obtains a qualified, experienced attorney to ensure their rights are protected. Moreover, this case shows that viable retaliation claims can be pursued against public employers. With the right set of facts, many courts are willing to explore such a claim and, potentially, hold the employer liable for infringing on one's right to join a certain collective bargaining unit.

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 On February 9, 2009, the United States District Court for the District of New Jersey decided the case of Martin v. City of East Orange. In the case, plaintiffs, two police officers, alleged that in failing to promote them in 2003, when officers ranked below them were recommended for promotion, although not promoted, the defendants discriminated against them in favor of officers more politically favored in violation of 42 U.S.C. §1983, the federal and state constitutions, and the New Jersey Law Against Discrimination. 

The Court dismissed all of plaintiffs’ federal claims. The Court held the officers had no constitutional right to promotion and they failed to produce any evidence of political favoritism or retaliation for having complained about being improperly bypassed for promotion. Further, the Court declined to assert subject-matter jurisdiction over the state law claim, thereby not addressing those issues. 

This case illustrates the importance of producing credible, substantive evidence in support of a claim alleging that one was improperly bypassed for promotion. It is vital that any public safety officer who seeks to assert such a claim should consult with a qualified attorney who is able to produce such competent evidence or determine whether such evidence exists so as to avoid the pitfalls present in this matter. Without the necessary proofs, such a claim will likely fail, as articulated by the Court in this case.

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Yesterday, I had the opportunity to sit down with the Treasurer for the State of New Jersey, David Rousseau, the Director for the Governor's Office of Employee Relations and Union officials that I represent.  The purposes of the meeting was to listen to the Treasurer's doom and gloom speech regarding the State budget, how broke the state is, and how difficult it is to balance the State budget as mandated by the New Jersey State Constitution.  With that being said, it can not be denied that we are in an extraordinary economic climate that has not been experienced in our life times. 

One of the plans to cut the budget that was proposed by Governor Corzine and his staff is to issue mandatory involuntary furloughs to all State Law Enforcement Officers.  Of course this idea when presented to union officials was met with disdain and discontent.  First, under New Jersey State law, there is no such thing as an "involuntary furlough".  Furloughs as defined by the New Jersey Department of Personnel are voluntarily absences initiated by public employees at the request of the government.  When the government makes a unilateral decision to absent an employee from work against his or her will, even if it is for a day or two, it is a "layoff".  When layoffs are initiated by State, County, or Municipalities, again, these governmental bodies must follow the rules and regulations promulgated by the New Jersey Department of Personnel.  Thus, special re-employment lists must be created, and all of the seniority and bumping rights contained in collective bargaining agreements must be followed.

I am writing this entry for two reasons.  First, to educate our readers and union officials about the fallacy of "involuntary furloughs"; and second to call all public safety officers throughout the state of New Jersey to action.  Laying off public safety officers, whether they be state, county or municipal, in an effort to save a few dollars to balance a budget is a horrific idea.  Think about it.  When there are less police officers on the streets due to layoffs, are the criminals going to take a vacation?  Are the buildings in New Jersey going to stop burning?  How about the security of our prisons.  Are the convicted murders, rapists and gang members housed in institutions through out the state going to be more cooperative because there are less corrections officers walking the tier?

It is a shame that some politicians do not commit to public safety the same way that all of the professional police officers, firefighters and corrections officers do on a daily basis.  Thus, please call you Assembly Members and State Senators.  Make them aware that public safety officers through out the state will not stand for the public safety of our loved ones to be diminished because of the fiscal crisis that we are in due to the politically poor planning and lack of foresight.  Now is time that all public safety officers must come together in solidarity to protect your employment rights, your health and safety, and the health and safety of those citizens that you protect and serve on a daily basis.

As always--Thank you for all of the protection and piece of mind that you provide on a daily basis. 

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In the matter of Florence v. Board of Chosen Freeholders of the County of Burlington, Civil Action No. 05-3619, the United States District Court, District of New Jersey, addressed the issue of strip searches of non-indictable offenders.

Plaintiffs consisted of a certified class to include all arrestees charged with non-indictable offenses, which were processed at Burlington County Jail and/or the Essex County Correctional Facility and were strip searched without a reasonable belief that they were concealing contraband, drugs, or weapons. Defendants were the Board of Chosen Freeholders of Burlington County, Burlington County Jail, Warden Juel Cole, Essex County Correctional Facility, Essex County Sheriff’s Department, and several John Does.

Plaintiffs sought summary judgment on the issue of whether Defendants violated Plaintiffs’ constitutional rights by their policy of strip searching non-indictable arrestees without reasonable suspicion. Plaintiffs also sought injunctive relief on behalf of the class against the correctional facilities’ strip search policies.

In response, Defendants also sought summary judgment as to whether the strip searches were constitutional. In addition, Defendants sought summary judgment on the following issues: (1) 11^th Amendment immunity for the Board of Chosen Freeholders of Burlington County, Burlington County Jail, and Warden Cole in his official capacity; (2) qualified immunity for Warden Cole in his individual capacity; and (3) the dismissal of count five involving section 1983 municipality custom violations regarding Essex County.

The District Court held that blanket strip searches of non-indictable offenders, performed without reasonable suspicion for drugs, weapons or other contraband are unconstitutional. Specifically, the Court indicated that the search policies at Burlington and Essex County jails do not pass constitutional muster under the balancing test set forth by the U.S. Supreme Court in Bell v. Wolfish. The Court also determined the justification for the blanket policy is not compelling, where it is based on general security concerns and health concerns, as nothing prohibits jail officials from searching non-indictable offenders, assuming they have reasonable suspicion to do so.  

Based upon its finding that blanket strip searches of non-indictable offenders, performed without reasonable suspicion for drugs, weapons or other contraband, are unconstitutional, the Court granted Plaintiffs’ motion for summary judgment. As to a remedy, the Court denied Plaintiffs’ motion for injunctive relief on account of a lack of standing, since Plaintiffs have failed to show irreparable harm in that they are unlikely to be subjected to strip searches in the future. 

Lastly, the Court denied Defendants’ Motion to dismiss in its entirety. The Court found Defendants’ arguments and factual averments are too scant to support a finding of 11^th Amendment immunity and Plaintiffs’ factual allegations regarding municipal liability under section 1983 sufficiently complied with pleading requirements under Federal rules. Finally, the Court determined Warden Cole was not entitled to qualified immunity since a constitutional violation was present and Warden Cole ought to have been put on notice that the strip search policy was unconstitutional.

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On February 5, 2008, in State v. DeAngelo, Docket No. A-73-07, the New Jersey Supreme Court held that a municipality violated free speech rights by banning temporary signs on public streets, including a 10-foot high inflatable rat at a labor protest. This case was the subject of a previous blog entry wherein our office analyzed the oral argument which took place in September 2008.

The Court unanimously called a Lawrence Township ordinance, which prohibited “banners, pennants, streamers…portable signs, balloons or other inflated signs (except grand opening signs,” unduly restrictive of free speech and expression. Specifically, Justice John Wallace, Jr. wrote that the ordinance “is content-based, does not fairly advance any governmental interest, and is not narrowly tailored to prevent no more than the exact source of that evil that is seeks to remedy.” 

By way of background, in 2005, Wayne DeAngelo, a senior official with the International Brotherhood of Electrical Workers Local 269, was fined $100 and assessed $33 in costs for using the inflatable rat to protest a Gold’s Gym being built in the township without union labor. A trial judge and the Appellate Division panel rejected constitutional challenges by DeAngelo and the union, but a dissenting appeals judge, Jack Sabatino, agreed the ordinance was constitutionally deficient.

In the Supreme Court’s ruling, Justice Wallace said DeAngelo’s protest was protected by the state and federal constitutions, as to both content and location. To support same, he cited U.S. Supreme Court precedents holding that public streets, parks, and sidewalks are traditionally public forums that occupy a “special position in terms of First Amendment protection” and that government cannot restrict expressive activity in such venues without a “compelling reason.”

The Court also rejected the rationale advanced by the township that the ordinance was designed to promote aesthetics and maintain public safety. Specifically, the Court stated, “although they are salutary goals, they do not justify a content-based restriction on free speech” and that an ordinance that prohibits a union from displaying a rat balloon, while authorizing a similar display as part of a grand opening, is content-based.

This ruling is expected to have statewide implications since municipalities across New Jersey have similar ordinances. Therefore, many municipalities will have to rework their own ordinances in order to conform to the ruling. Moreover, according to Andrew Watson, DeAngelo’s attorney, the ruling is a landmark victory for labor activists. Specifically, Watson stated, “this vindicates their [labor union’s] rights to an orderly, non-threatening means of protest.” As such, this case represents another important judicial decision regarding labor protesting and its collision with free speech.

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On January 31, 2009, the Louisville Courier-Journal reported that approximately 50 Louisville Metro Police officers decided to turn in their patrol cars so they will not have to pay an increased fee for using them after work hours. Police Chief Robert White announced in December, 2008 that officers who take their vehicles home would have to pay a $100 monthly fee to help cut expenses in the department and help address a $20 million projected city budget shortfall. Officers who use their cars for off-duty employment will have to pay $160 per month.

Previous to the announcement, officers were paying a $30 monthly fee or $60 for off-duty employment use. The fees have been an issue of contention between the police administration and the Fraternal Order of Police, the union that represents officers. The union contends that assessing the fee violates their contract because it was not negotiated as a change. However, police department managers say driving cars home is a privilege and is not part of the officers' contract.

The policy that assessed the original fee is the subject of a grievance that is presently outstanding. When the fee was increased, the grievance was amended to include the new proposed charges.

The police department estimates that approximately 1,094 police department vehicles are used as take-home cars. With the policy in place and the increased fees, the police department estimates that a savings for the city in the amount of $110,000.00 will be realized on a monthly basis.

While this particular article does not have direct applicability to New Jersey Public Labor Law, it does demonstrate that state, county, and municipal police departments throughout the country are looking to curtail spending and reduce costs due to the economic recession. If cuts have not been made in many departments throughout New Jersey, union leaders can expect to see the implementation of cost savings measures soon. It is vitally important to the rights of organized public safety officers that each one of these “cuts” or cost savings measures be assessed and evaluated to determine if the actions are contractual violations and should therefore be the subject of a group grievance. Keep your eyes and ears open and be sure that the rights of your members are being protected.  Finally, always be sure to fight within the confines of the law to preserve the integrity of your collective bargaining agreement.

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In Brennan v. Township of Fairfield, the United States District Court for the District of New Jersey addressed an important topic for public safety officers, freedom of speech. In this case, Plaintiff, a police officer, alleged he was retaliated against for distributing a memorandum on police letterhead to the Mayor and Township Council. The memorandum contained the officer’s reasons for having issued two motor vehicle summonses to a township administrator.   

Defendants moved for summary judgment of plaintiff’s claim. The Court granted the motion because Plaintiff’s speech was made pursuant to his duties as a police officer. Therefore, his speech was not protected by the First Amendment. In addition to seeking summary judgment, Defendants also moved for sanctions against Plaintiff for the assertion of a claim which Plaintiff later withdrew. The Court denied this motion along with Defendants’ other motions to disqualify counsel and to compel mediation.   

This case, although very brief, illustrates how one’s freedom of speech can be limited based on the context in which the speech is offered. Speech made pursuant to one’s duties as a public safety officer will not be protected by the First Amendment, thereby negating support of a retaliation claim. As a result, it is important for public safety officers to be cognizant of the distinction between speech made pursuant to their employment from all other forms.

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In Frohner v. City of Wildwood, the United States District Court for the District of New Jersey addressed a very unusual and interesting factual scenario. The lawsuit asserted numerous claims arising out of the arrest and handcuffing of plaintiff, an undercover FBI agent, by defendants, local police officers. Defendants suspected plaintiff was a motorcyclist impersonating an FBI agent.

Defendants moved for summary judgment on a variety of plaintiff’s claims. First, the Court denied defendants’ motions as to the false-arrest claims because defendants failed to show as a matter of law that they had probable cause or arguable probable cause to believe plaintiff was impersonating an FBI agent. Next, the Court denied defendants’ motion as to the claim that defendants’ conducted an unlawful search and seizure of plaintiff’s car. The Court indicated that it could not be concluded that the search was incident to a lawful arrest.

The Court also denied defendants’ motion as to plaintiff’s excessive-force and punitive damages claims. The Court held that such a claim will lie for the use of excessively tight handcuffs and that expert testimony is not required. With regard to plaintiff’s punitive damages claim, the Court noted that the issue as to whether any defendant was recklessly indifferent to plaintiff’s rights was a jury question. 

Although the vast majority of plaintiff’s claims were upheld, the Court did grant defendants summary judgment on one of the claims. The Court determined that since plaintiff has not shown a pattern of constitutional violations indicating defendants were deliberately indifferent to the likelihood that constitutional violations such as those alleged in this case would occur, defendants were entitled to summary judgment on that claim.

This case shows that arrests of undercover agents by local police departments, much like arrests of everyday citizens, can give rise to various claims being brought against the departments. Even with the unusual nature of the facts of this case, this case also illustrates that Courts are typically reluctant to dismiss certain claims as long as some evidence in support thereof has been offered.    

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On November 17, 2008, the New Jersey Supreme Court decided the case of Borough v. Glassboro v. Fraternal Order of Police Lodge No. 108,  A-75-07. In this case, the Court addressed the validity of an arbitrator’s award addressing the legality of a police officer promotion made by the Borough of Glassboro, a non-civil service municipality.

In 2004, the Borough of Glassboro Police Department (“Borough”) announced an opening for the position of lieutenant. Three candidates applied, including Sergeants Peter Amico and William Highley. As a non-civil service municipality, the Borough is not subject to the statutory requirements of a comprehensive promotional procedure. Rather, state law only requires that due consideration is given to the officer proposed for promotion and to the length and merit of the officer’s service, with preference being given to seniority in service.

The Borough implemented a three stage promotional procedure. The scores from Phase I and II were aggregated for a total possible score of 100%. Phase I consisted of an interview with the Borough Chief of Police and was worth 20%. Phase II involved an oral and written exam and was worth 80%. Phase IIA, the written portion, was a multiple-choice test designed by the International Association of Police Chiefs. Phase IIB, the oral component, consisted of interviews with a panel of four independent police chiefs. Following Phase I and II, the cumulative final scores were as follows: Sergeant Amico, 93.8, and Sergeant Highley, 92.4.

In Phase III, each applicant was interviewed by the Borough Public Safety Committee, which included Borough Council members, the Borough Administrator, and the Chief of Police. Candidates were advised that they would be asked questions “concerning their department’s SOPs Rules and Regulations, in addition to questions concerning the Boro Personnel Policy & Procedures and Boro Ordinances.” The purpose of Phase III was to test leadership intangibles that are necessary for the position and evade formal testing. After the completion of Phase III, Highley, ranked second in the Phase I and II testing, was awarded the promotion.

Amico learned in subsequent conversations with the Chief of Police and the Borough Administrator that his move out of the Borough had a possible negative effect on the promotional decision. The Fraternal Order of Police, Local 108 (“FOP”) filed a grievance on Amico’s behalf, thereby claiming: (1) that the use of Phase III as more than a “confirmatory interview” altered the terms and conditions of employment in violation of the collective bargaining agreement between the Borough and FOP; and (2) the Borough violated N.J.S.A. 40A:14-122.6 by making residency a factor in its promotional decision.

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In the matter of Paul Weber v. Borough of Glen Rock, A-1079-07T3, Plaintiff, Paul Weber, appealed from two trial court orders: (1) an order dated May 3, 2006 dismissing some of his claims; and (2) an order dated September 5, 2007 granting summary judgment to defendants on the balance of the claims. After reviewing the contentions raised on appeal, the Appellate Division affirmed the trial court’s determinations. 

Weber is a member of the Glen Rock Police Department. After joining the Department as a patrolman in 1978, he was promoted to the rank of sergeant in 1985. Since 1985, there have been four occasions when there was an opening within the Department for a member to be promoted to the rank of lieutenant. Weber applied for this promotion on each occasion and was unsuccessful. 

In 2004, the successful applicant was Garret Merselis, who was promoted from sergeant to lieutenant. In 2005, a vacancy developed for the position of captain. Thereafter, Merselis, the only lieutenant on the Glen Rock force at that time, was promoted to the rank of captain. The promotion of Merselis to captain created a vacancy for the position of lieutenant. Plaintiff applied, as did three other members of the Department. On this occasion, Frederick Stahman was selected for promotion to the rank of lieutenant.

Plaintiff, who had more seniority than did either Merselis or Stahman at the time of their respective promotions, filed suit contending that the promotional process was flawed. Specifically, he sought to reopen the process relating to the most recent promotional opening. In support, Weber contended: (1) the Borough was required to administer examinations to those applying for promotion and not rely exclusively on interviews; and (2) the Borough, in passing him over for promotion, did not comply with N.J.S.A. 40A:14-129. 

The Court rejected both of Weber’s assertions. The Borough is not a civil service municipality and followed its own two-step promotional process, a written test followed by interviews, until 1992 when, under the new police chief, only interviews were used to select a candidate for promotion to lieutenant. The Court found that where all members of the committee participated in the interviews of all the candidates, the process employed by Glen Rock does not suffer from the same deficiencies criticized in Rox v. Dep’t of Civil Service, 141 N.J. Super. 463, 467 (App. Div. 1976). In Rox, different panels interviewed the various candidates and used different criteria in making promotional decisions. This was not the situation in this case.

Moreover, the Court held that seniority, in and of itself, is not determinative of promotion. The Court indicated seniority is merely an additional factor to be considered on the merits of the evaluation of individuals for promotion and not a mechanical rule which guarantees promotion to a senior employee. In this case, it was established Weber’s seniority was considered. That is all he was entitled to; he was not entitled to have it treated as controlling.          

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On October 2, 2008, the United States District Court for the District of New Jersey decided the case of Figueroa v. City of Camden. In the case, plaintiffs, Camden firefighters who were on the eligible list for promotion to captain, alleged employment discrimination on the basis of race on account of defendants’ refusal to promote using the existing list and the announcement of a new test and new requirements. 

The Court dismissed plaintiffs’ claims under Title VII of the Civil Rights Act of 1964 against all defendants because plaintiffs failed a file a complaint with the EEOC. Moreover, plaintiffs’ claim under 42 U.S.C. §1983 were dismissed because nothing in the pleadings indicated the unions were acting under color of state law, despite plaintiffs’ contention that the unions conspired with the other defendants to deprive them of their rights. Finally, the §1983 claims against the New Jersey Department of Personnel, its director of selection services, and the Camden chief operating officer were also dismissed because plaintiffs failed to identify any specific acts on their part that violated plaintiffs’ federally protected rights. 

This case illustrates the importance of following the procedural requirements in filing an employment discrimination lawsuit as well as recognizing the elements required to sustain a successful cause of action. Employment discrimination lawsuits against governmental entities contain a myriad of procedural and substantive hurdles. As a result, public safety officers who intend on bringing such a cause of action should seek out competent, experienced legal representation in order to ensure their rights are protected. Without obtaining such representation, it is likely the claims will fail, either procedurally or substantively.      

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The Associated Press recently reported that a state council on Wednesday, October 22, 2008, struck down New Jersey's plan to have rural towns pay for the state police coverage that they receive due to the fact that the town’s do not have their own police force. The New Jersey Council on Local Mandates effectively voided a plan contained in Gov. Jon Corzine's budget that would have charged small towns who don't have their own police force but instead are provided with public safety coverage by the New Jersey State Police. Corzine has stated that this loss of revenue would have to be absorbed by further cuts in municipal aid.

The Council, which is an independent body created to review the constitutionality of state laws and regulations, said the requirement to force towns to pay for state police was an illegal unfunded mandate. Under New Jersey's Constitution, the Council's decision is final.

Seventy-six New Jersey towns get full-time state police patrols free, while 13 get free part-time patrols, regardless of size, population, taxes and wealth.

This is an interesting proposition as it could be an integral part of the continued push to consolidate municipal services and benefits. As a tax saving measure the Governor’s office has already started an initiative to consolidate smaller school districts within the state.  Public services will certainly follow.  While a reduction of officers on the road is unlikely, it is not too speculative to state that the suggestion of sharing administrative duties between departments may be viewed as a feasible cost saving measure. As the budget gets tighter, taxes go higher, and there is a continual cry from the public for assistance; we may see novel propositions that can have an effect upon the employment of public safety officers and the administrators of public safety departments. Let’s keep an eye on this one.

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On September 23, 2008, the New Jersey Supreme Court entertained oral argument in the case of State v. DeAngelo, A-73-07, wherein the issues of labor protesting and free speech collide. The case involves a union official who was fined for displaying a 10-foot tall, inflatable rat at a Lawrence Township labor rally, thereby claiming the municipality violated his constitutional and statutory rights.

Wayne DeAngelo, a senior official with the International Brotherhood of Electrical Workers Local 269, was fined $100 and assessed $33 in court costs for using the balloon to protest a gym being built without union labor. DeAngelo asked the Court to declare the ordinance in question, which prohibits “banners, pennants streamers, pinwheels, or similar devices; vehicle signs, portable signs, balloon signs or other inflated signs (except grand opening signs)”, unconstitutional and violative of the National Labor Relations Act. The trial court and the Appellate Division have rejected the challenge, finding the ordinance a valid time, place, and manner restriction on commercial speech.

At the hearing, DeAngelo asserted the ordinance was “overbroad” because it prohibits all forms of signs used in protests, while allowing a variety of other signs, such as political and industrial signs and those at grand openings and real estate sales. In response, the Township asserted the ordinance and its enforcement were both within constitutional bounds, namely because DeAngelo’s use of the rat balloon amounted to commercial speech, which can be regulated.

Despite its listed exceptions, Justice Roberto Rivera-Soto said the ordinance appeared strictly worded and content-neutral. Conversely, Justice Barry Albin seemed troubled by the ordinance because it gave the gym owner permission to use an inflatable sign to announce his grand opening, but barred labor protesters from using inflatable signs at the same location. It will be interesting to see how the Court ultimately rules and addresses the intersection of these important issues. Undoubtedly, the case will be followed closely by labor organizations, who want to ensure their rights are adequately protected. 

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Many public safety officers in the state of New Jersey understand that the terms and conditions of their employment to include the wages they are paid and the benefits they receive are derived from a collective bargaining agreement reached between the public employer and their collective bargaining unit.  However many public safety officers are not aware of the inner-workings of public employment labor law in the state of New Jersey.  This post is being written to provide public safety officers with a brief oversight of the statutes and agencies that govern public employment labor law in the state of New Jersey.  It will be the first post in a series that discusses public employee labor law and the effect it has on New Jersey Public Safety Officers.

In 1968, the New Jersey State Legislature passed the New Jersey Employer-Employee Relations Act (hereinafter referred to as “the Act”). This Act granted to all public employees the right to join or refrain from joining employee organizations (labor unions), and the right to conduct collective negotiations with public employers through majority representatives. N.J.S.A. 34:13A-5.3. The avowed purpose of the Act was to foster the prevention and prompt settlement of labor disputes in the public employment sector of the state. N.J.S.A. 34:13A-2. To that end, the Act authorized majority representatives to negotiate agreements with public employers on behalf of the employees in the relevant bargaining unit. N.J.S.A. 34:13A-5.3. It further required that the majority representative “be responsible for representing the interest of all such employees without discrimination and without regard to employee organization membership.” Ibid. 

The Act also established PERC, the Public Employment Relations Commission. N.J.S.A. 34:13A-5.2. This administrative body was granted exclusive jurisdiction over reviewing and adjudicating unfair labor practices, grievance arbitrations, and compulsory interest arbitration for public safety officers in the state of New Jersey. PERC was also authorized to make policy and establish rules and regulations governing employer-employee relations in public employment. N.J.S.A. 34:13A-5.2, -5.4.  Almost all labor disputes and aspects of public employment labor law is under the oversight of PERC, its administrative rules and regulations, and the New Jersey Employer-Employee Relations Act.  An association acting as the majority representative must be sure that it has leadership that is familiar with the inner workings of PERC but even more importantly, has counsel to call on that is familiar with public employment labor law. 

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