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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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