New Jersey Public Safety Officers Law Blog

The Difference Between Accidental and Ordinary Disability Benefits Under PERS, TPAF, SPRS, and JRS

fmcrivelli@crivellilaw.com (Frank Crivelli) — Thu, 20 Nov 2008 11:40:25 -0500

Following up on our previous entry, this article will help our readers understand the criteria that must be met in order for a public employee to qualify for an ordinary or accidental disability pension within one of the following State pension systems, the Public Employees Retirement System, the Teachers Pension and Annuity Fund, the State Police Retirement System, and the Judicial Retirement System. While these pension plans are similar in defined benefits and criteria for eligibility, each has their own specific nuances that are particular to the membership they serve.

Accidental v. Ordinary Disability Benefits

Public Employees Retirement System and Teachers Pension and Annuity Fund

In accordance with the Public Employees Retirement System (“PERS”) and Teachers Pension and Annuity Fund (“TPAF”) handbooks, in order to qualify for an ordinary disability retirement, an employee must:

· Have an active pension account;

· Have 10 or more years of New Jersey service credit;

· Be considered totally and permanently disabled; and

· Submit medical reports certifying the disability.

In order to qualify for an accidental disability retirement, a member must:

· Be an active member of PERS or TPAF on the date of the “traumatic event”;

· Be considered totally and permanently disabled as a result of a “traumatic event” that happened during and as a direct result of carrying out the member’s regular or assigned job duties;

· File an application for disability retirement within five (5) years of the date of the “traumatic event”; and

· Be examined by physicians selected by the retirement system.

If an employee claiming membership to either one of these retirement funds qualified for accidental disability, his/her annual retirement allowance will be 72.7% of their salary at the time of the “traumatic event.”

Should the public employee be receiving periodic workers’ compensation benefits, the accidental disability retirement benefits will be reduced dollar for dollar by the periodic benefits paid after the retirement date. However, the retirement benefit is not reduced by any Social Security or private insurance benefits that may be payable.

The New Jersey Division of Pensions and Benefits reports accidental disability retirement benefits as exempt from federal income tax. The benefits are also

not subject to New Jersey state income tax until the employee reached the age of 65.

State Police Retirement System

In accordance with the State Police Retirement System (“SPRS”) handbook, in order to qualify for an ordinary disability retirement, an employee must:

· Be a member in service at the time the application is filed with the Division of Pension and Benefits (an official leave of absence is considered in service);

· Be under age 55 and have four or more years of service credit as a State Trooper;

· Be considered totally and permanently disabled; and

· Submit medical reports certifying the disability.

Should an employee qualify for ordinary disability retirement, the annual benefit is equal to 40% of your final compensation or 1.5% percent of your final compensation for each year of service credit, whichever is higher.

An employee’s approval for workers’ compensation or Social Security has no bearing on his/her application for disability retirement from theSPRS .

In order to qualify for accidental disability retirement, the employee must:

· Be enrolled in the SPRS on or before the date of the “traumatic event”;

· Be a member in service at the time the application is filed with the Division of Pensions and Benefits (an official leave of absence is considered in service);

· Be considered totally and permanently disabled as a result of a “traumatic event” that happened during and as a direct result of carrying out the member’s regular or assigned job duties;

· Show that the disability was not a result of the member’s willful negligence;

· File an application within five (5) years of the date of the “traumatic event”; and

· Be examined by physicians selected by the retirement system.

If an employee qualifies for an accidental disability retirement, the annual benefit is equal to 2/3 of the member’s final compensation.

Judicial Retirement System

Unlike the other pension systems, the Judicial Retirement System (“JRS”) does not distinguish between accidental and ordinary disability retirement benefits. The JRS only provides disability retirement benefits is the following criteria is met:

· The employee is physically or otherwise incapacitated for full and efficient service to the State in a judicial capacity as determined by three (3) physicians appointed by the Governor; and

· The individual’s disability is certified by the Supreme Court and approved by the Governor.

If a JRS member is certified as disabled, they will receive disability retirement benefits calculated at 75% of their final salary. Moreover, approval for workers’ compensation or Social Security disability benefits has no bearing on a member’s application for JRS disability retirement.

Overview of PERS, TPAF, SPRS & JRS

fmcrivelli@crivellilaw.com (Frank Crivelli) — Thu, 20 Nov 2008 10:41:50 -0500

Recently, it has come to our attention that many individuals aside from Public Safety Officers utilize this website as a reference guide for the various pension systems available to individuals employed by municipalities, counties, and the New Jersey state government. As such, this entry will focus upon a few of these pension systems and help our readers understand their background, membrship, and administration.

Overview of the Various Pension Systems

Public Employees Retirement System

The State of New Jersey established the Public Employees Retirement System (“PERS”) in 1955 after repeal of the laws that created the former State Employees Retirement System. Like the Police and Firemen’s Retirement System (“PFRS”), the New Jersey Division of Pensions and Benefits is assigned all administrative functions of the retirement system except for investment of the assets.

The PERS Board of Trustees has the responsibility for the proper operation of the retirement system. The Board consists of six (6) employee representatives, the State Treasurer, and two (2) individuals appointed by the Governor with advice and consent of the Senate. The Board meets monthly to conduct its business.

Membership in the retirement system is generally required as a condition of employment for most employees of the State or any county, municipality, school district, or public agency. Generally, an employee is required to enroll in PERS if:

· They are employed on a regular basis in a position covered by Social Security;

· Their annual salary is $1,500.00 or more; and

· They are not required to be a member of any other State or local government retirement system on the basis of the same position which gives them membership in PERS.

Teachers Pension and Annuity Fund

The Teachers Pension and Annuity Fund (“TPAF”) was established in 1919 and completely reorganized in 1955. The New Jersey Division of Pensions and Benefits is assigned all administrative function of the retirement system except for investment of the assets.

The TPAF Board of Trustees has the responsibility for the proper operation of the retirement system. The Board consists of three (3) active or retired members of TPAF, one (1) individual appointed by the other trustees, the State Treasurer, and two (2) individuals appointed by the Governor with advice and consent of the Senate. The Board meets monthly to conduct its business.

Membership in TPAF requires that eligible members be appointed to positions of employment requiring certification by the New Jersey Department of Education as members of regular teaching or professional staff of a public school system in New Jersey. If the position of employment meets the membership criteria, the individuals that occupy the positions are required to enroll within TPAF as a term and condition of employment. Employees of the Department of Education holding unclassified, professional, and certification titles are also eligible for membership.

State Police Retirement System

The State Police Retirement System (“SPRS”) was established in 1965 as the successor to the State Police Retirement and Benevolent Fund (“SPRBF”). The Division of Pensions and Benefits is assigned all administrative functions of the retirement system except for investment of the assets.

The SPRS Board of Trustees has the responsibility for the proper operation of the retirement system. The Board consists of two (2) active or retired members appointed by the Superintendent of the State Police, the State Treasurer, and two (2) members appointed by the Governor with advice and consent of the Senate. The Board meets quarterly to conduct business.

All members of the SPRBF became members of the SPRS in 1965. Further, all individuals who became full-time troopers or commissioned or non-commissioned officers of the Division of State Police after July 1, 1965 are required to enroll in SPRS upon acceptance of employment.

Judicial Retirement System

The Judicial Retirement System (“JRS”) was established on June 1, 1973 after repeal of the laws which provided benefits to certain members of the judiciary and their beneficiaries since 1948. For administrative purposes, the State House Commission acts as the Board of Trustees for the JRS.

Membership for this retirement system is reserved for an elite few. If an individual is a member of the State Judiciary, he or she is required to join the JRS as a term and condition of employment. The JRS covers the Chief Justice and Associate Justices of the State Supreme Court as well as all judges of the New Jersey Superior Court and Tax Court.

Non-Civil Service Municipality's Promotion Decision Overturned

fmcrivelli@crivellilaw.com (Frank Crivelli) — Tue, 18 Nov 2008 12:26:23 -0500

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.

The matter was ultimately submitted to arbitration after the grievance was unable to be resolved. The arbitrator concluded that Amico was improperly deprived of the promotion contrary to statute and that he should be promoted with full back pay. In making his ruling, the arbitrator noted that Amico, whose education and seniority were greater than Highley’s, was 1.4 points ahead of Highley after Phases I and II, but then fell behind following the Phase III interview. The arbitrator also pointed out that there was nothing in the record to positively determine what elements in that interview caused Amico to fall behind Highley. The arbitrator further surmised from the testimony that Amico had recently moved away from the Borough and that a non-civil service municipality can only use residency in a tiebreaker on the promotional test, which was not the case here.

Thereafter, the Borough filed a complaint in the Superior Court, wherein the arbitrator’s award was stayed pending the outcome of the case. In the complaint, the Borough alleged: (1) that it had placed substantial evidence in the record noting what occurred during the Phase III interview; and (2) the arbitrator disregarded the testimony of the Borough Administrator, the Police Chief, and all the Phase III documentation referenced during the arbitration. Attached to the complaint were two pages of questions asked of each candidate in Phase III, as well as the Chief’s corresponding notes concerning each candidate’s answers.

The trial judge denied the Borough’s motion to vacate the arbitrator’s award or to hold a plenary hearing. In so holding, the judge noted that so long as the arbitrator’s determination is reasonably debatable it should not be disturbed. Accordingly, the judge affirmed the arbitrator’s award, but granted the Borough’s motion for a stay pending appeal.

The Appellate Division affirmed on appeal, essentially because it agreed with the arbitrator and the trial judge that the record was bare regarding the Borough’s reasoning for elevating Highley over Amico, thereby rendering the promotion of Highley arbitrary and capricious. The Borough appealed and the Supreme Court granted certification.

The Supreme Court held the arbitrator properly determined that the record did not adequately support the elevation of Highley over Amico. However, the Court did indicate it was beyond the arbitrator’s power to fashion a remedy that promoted Amico. Therefore, the judgment of Appellate Division was affirmed and reversed in part and the case was remanded for proceedings consistent with its holding.

In support, the Court noted that an arbitrator must uphold a non-civil service municipality’s promotion decision unless the decision was clearly arbitrary, capricious, or unreasonable, since judicial review of an arbitrator’s decision is limited and the decision should not be set aside easily. The New Jersey Arbitration Act permits courts to vacate an arbitration award in only limited defined circumstances. In addition, a court may vacate an arbitration award that is contrary to existing law or public policy as embodied in legislative enactments, administrative regulations, or legal precedents.

After reviewing the record in this case, the Court agreed with the arbitrator’s decision. The Court noted that the arbitrator’s conclusion that the record shows no reasoning by the Borough for elevating Highley is unassailable. The Court further noted this case stands for the unremarkable proposition that, should a grievant make the type of showing that Amico made here, and should the municipality not provide even the simplest explanation on the record for some kind of rational reason for its decision, the decision cannot stand.

The Court also indicated that the Legislature, through statue, clearly established residence as a tie-breaker in non-civil service municipalities. However, in this case, there was no tie after the first two phases, simply out, Amico was ahead of Highley. Moreover, the Court also noted that if the record was inadequate regarding how Highley passed Amico during Phase III, it was equally deficient in respect of Amico’s leadership skills and how, upon testing, he lost his lead. Therefore, it was beyond the arbitrator’s power to fashion a remedy that promoted Amico and, thus, the matter must be remanded to the Borough to conduct a new Phase III proceeding.

ATTORNEY GENERAL'S GUIDELINES MUST BE FOLLOWED IN INTERNAL AFFAIRS INVESTIGATION

fmcrivelli@crivellilaw.com (Frank Crivelli) — Tue, 11 Nov 2008 13:04:04 -0500

In the matter of O’Rourke v. City of Lambertville, Docket No. A-0481-07T3, the Defendants appeal the trial court’s decision: (1) reversing the Lambertville City Council’s decision removing Plaintiff, Michael O’Rourke, from his position as a police officer; (2) reinstating Plaintiff to his position; and (3) denying their motion for reconsideration. Defendant, Bruce Cocuzza, is the city’s civilian police director. Plaintiff, a sergeant first class, was the police department’s Terminal Agency Coordinator (“TAC”) for the National Crime Information Center (“NCIC”) system, which contains a wide array of law enforcement information.

The city charged Plaintiff with conducting unauthorized and improper employee background investigations, in defiance of Cocuzza’s direct order, and engaging in conduct subversive to the good order and discipline of the department in doing so. At the disciplinary hearing, Cocuzza testified that he and Plaintiff were discussing the temporary transfer of an employee from city hall to the department when Plaintiff told him that the employee would have to submit to a background check or be fingerprinted for security purposes. Cocuzza said he told Plaintiff that no action should be taken until Cocuzza received written authorization from “somebody in authority” and spoke with the city attorney regarding same. Later, Cocuzza learned Plaintiff had performed background investigations of five civilian employees of the department, including Cocuzza, without authorization.

After the officer assigned who was assigned to the department’s internal affairs unit declined to investigate because of his long-term social relationship with Plaintiff, Cocuzza decided to conduct the investigation himself. In his report, Cocuzza wrote that Plaintiff had been insubordinate and that his actions constituted a serious breach of discipline and a flagrant abuse of authority.

Plaintiff testified that he performed the checks under his authority as TAC officer, indicating that under the State’s security policy anyone with access to the NCIC system had to have a background check and fingerprints taken. He also stated that he understood Cocuzza to mean that he should not ask anyone for their fingerprints, which he did not do. He did concede that he did criminal checks on five employees, including Cocuzza.

The City Council found plaintiff guilty of insubordination and ordered his removal. Plaintiff then filed this action seeking a de novo review of the city’s action. He alleged that Cocuzza exceeded his authority by conducting the investigation and, in doing so, violated the department’s internal affairs procedures, the attorney general’s guidelines, N.J.S.A. 40A:14-181, and his right to due process. The trial judge found that regardless of whether plaintiff violated Cocuzza’s order or any other department rule, the investigation was not conducted in conformity with the rules and regulations adopted by the city and the attorney general’s guidelines and, as a result, Plaintiff’s due process rights were violated. The trial judge reinstated Plaintiff with back pay and awarded him attorneys’ fees and costs. This appeal followed.

The Appellate Division held that when a law enforcement agency adopts rules pursuant to N.J.S.A. 40A:14-181 to implement the attorney general’s guidelines, it has an obligation to comply with those rules. Since the department failed to do so and deficiencies tainted the entire disciplinary process, the city’s decision to remove Plaintiff cannot stand. The Court further noted that Cocuzza’s failure to comply with the city’s rules does not rise to the level of denying Plaintiff’s constitutional rights to due process, but the failure warrants affirmance of the trial court’s order reinstating Plaintiff.

The rules at issue were adopted pursuant to 40A:14-181, which requires every law enforcement agency in this state to adopt guidelines that are consistent with those promulgated by the attorney general. The guidelines require every law enforcement agency to establish an internal affairs unit to receive, investigate and resolve complaints of officer misconduct. They also detail the procedures to be followed in investigating such complaints, including that serious complaints must be investigated by an internal affairs investigator, who must conduct a thorough and objective investigation and submit an objective report.

In this case, the City Council adopted rules governing the operations of the city’s police department in accordance with the guidelines. When Cocuzza undertook the investigation himself, he failed to adhere to the city’s rules. Moreover, the city’s rules require that the investigation be undertaken in a fair and objective manner. Since the principle allegation was that Plaintiff acted in defiance of Cocuzza’s directives and Cocuzza was the focus of one of the background checks, he could not be expected to perform the kind of objective investigation required by the attorney general’s guidelines and the city’s rules. In addition, Cocuzza wrote a report that was not objective. It contained his “opinions, conclusions and personality” in violation of the rules.

Based upon this, the Court indicated that the deficiencies in the investigative process were not trivial and not cured by the evidentiary hearing provided by the City Council. Cocuzza’s lack of objectivity in the investigation undermined the fairness of the entire proceeding and required reversal of the decision to remove him.

BOROUGH'S PROMOTIONAL PROCESS UPHELD

fmcrivelli@crivellilaw.com (Frank Crivelli) — Mon, 10 Nov 2008 11:36:58 -0500

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.

STATE TROOPER'S CLAIM FOR ATTORNEYS' FEES DENIED

fmcrivelli@crivellilaw.com (Frank Crivelli) — Thu, 06 Nov 2008 15:18:04 -0500

In the matter of Gary Stolinski v. State of New Jersey, Division of State Police, A-2412-07T3, the Appellate Division considered whether Gary Stolinski, a New Jersey State Trooper, was entitled to an award of counsel fees pursuant to N.J.S.A. 53:1-30, as a result of having to defend against an indictment charging official misconduct, credit card fraud, and identity theft.

On July 15, 2005, Stolinski was indicted and charged with official misconduct, credit card fraud, and identity theft based on the allegation that he used a State Police computer to make online credit card applications through the use of false information and by assuming the identity of others. Subsequent to being indicted, Stolinski was suspended from the force without pay.

The indictment was ultimately dismissed on December 15, 2005. Thereafter, Stolinski was reinstated and reimbursed for the pay withheld during his suspension. Stolinski then demanded reimbursement for the counsel fees he expended in defending against the indictment. In response, the Attorney General’s office advised that the request for the payment of legal fees incurred in seeking back pay would be honored. However, the Division rejected the remaining aspects of Stolinski’s request and asserted there was no statutory basis for the reimbursement of attorney fees associated with: (1) the defense of criminal charges; (2) responding to the administrative disciplinary charge; or (3) seeking the expungement of his criminal record. This appeal ensued.

The Appellate Division concluded that the Division’s final agency decision was neither arbitrary, capricious, nor unreasonable because it was based upon a correct understanding of N.J.S.A. 53:1-30 and an accurate application of its terms to the allegations contained in the indictment. N.J.S.A. 53:1-30 provides that a law enforcement officer is entitled to be reimbursed only for those fees incurred “in an action or legal proceeding arising out of or directly related to the lawful exercise of police powers in the furtherance of official duties.”

The Court determined N.J.S.A. 53:1-30 did not provide support for Stolinski’s claim because the allegations of the indictment were not directly related to his lawful exercise of police powers in the furtherance of official duties. In this case, Stolinski was alleged to have used a State Police computer to make false credit card application. Regardless of whether the allegations could or could not be substantiated, it is clear Stolinski was not charged with conduct that was in furtherance of his official duties on that occasion. As a result, the Court affirmed the Division’s determination.

Ocean City Agrees To Lower Starting Salaries for New Police Officers

fmcrivelli@crivellilaw.com (Frank Crivelli) — Mon, 03 Nov 2008 09:00:00 -0500

On October 30, 2008, The Press of Atlantic City reported that new Ocean City, New Jersey Police Officers will make approximately $5,000 less under the contract that was recently approved by the PBA and city council. The contract with the Policemen's Benevolent Association Local 61 also reflected a move to the state health-insurance system from the city’s own health system. The city has cited double digit increases in premium costs as the reason for moving from its own plan to the State Health Benefits Program. The city further stated that it plans to move all municipal employees to the state benefits program as soon as practicable.

The contract also reflected a 3.5 percent increase in salary for 2008, a 3.85 percent increase in salary for 2009, a 3.9 percent increase in salary for 2010 and a 3.8 percent increase in salary for 2011.

However where the contract strayed from the traditional path was the establishment of a two-tier pay system reflecting a cut in salary for new hires from $42,200 to $37,500. The contract also changed a longevity payment from a range of 0 to 12 percent to a flat dollar bonus based on years of service.

Presently contract negotiations with the city fire union have reached an impasse and are in binding interest arbitration.

We should take a few teaching points away from the settlement of this particular contract.

First, I believe we will see a greater trend developing where municipalities will continue to move away from their own health plan system and opt into the State Health Benefit Program as a cost saving measure.

Second, in today’s economy and with the poor self inflicted financial condition of the state of New Jersey, municipal aide is being cut which means less money for pay raises and benefits. The days of seeing 4% increases will be harder to come by in the immediate future. Furthermore, raises for 2008 will probably be less than the years that follow.

Finally, it is interesting that the PBA agreed to lower the starting salary of new officers. While there may be a multitude of economic reasons for this decision, we should not speculate why this concession was made without understanding the dynamics of the department’s man power, Table of Organization, and the benefits conferred upon the members for making the concession.

State Trooper Discipline Overturned

fmcrivelli@crivellilaw.com (Frank Crivelli) — Fri, 31 Oct 2008 16:01:17 -0500

In the case of In the Matter of Mark Moncho, Mark Moncho, a Sergeant First Class, appealed a final decision of the Division of State Police finding him in violation of Article VI, Section 2a of the Division’s regulations (performance of duties) and imposing a ten day suspension.

Moncho was assigned to the State Police Construction Inspection Unit. The Construction Unit is a component of the Traffic Bureau and operates as a partnership between the New Jersey State Police and the New Jersey Department of Transportation. In this capacity, Moncho was responsible for overseeing five sergeants who, in turn, supervised subordinate troopers. His responsibilities included: (1) reviewing the patrol charts and weekly reports of the sergeants and the subordinates; (2) time-keeping; and (3) day-to-day supervision of the Construction Unit.

Ultimately, the Division of State Police charged Moncho with violating a series of rules and regulations involving billing and overtime. Moncho pled not guilty to the charges and, on June 28, 2004, the Division transmitted the matter to the Office of Administrative Law. After conducting numerous hearing, the Administrative Law Judge (“ALJ”) concluded: (1) Moncho violated none of the specifications underlying disciplinary charges; and (2) nevertheless, Moncho was guilty of the performance of duties disciplinary charge based solely upon the amount of overtime he had earned. On August 2, 2007, the Division of State Police issued a final decision upholding the ALJ’s decision in its entirety. This appeal ensued.

On appeal, Moncho argued that when the ALJ found that the Division had not met its burden of proof as to the specifications in the charges, the ALJ dismissed all bases of liability of which Moncho had notice. Moreover, Moncho argued the Division’s decision to discipline him absent a showing that he engaged in fraud, misleading conduct, or the violation of a policy is arbitrary and capricious.

In its decision, the Appellate Division agreed with Moncho’s contentions. The Court concluded that the record did not support the Division’s decision and this was further compelled by the ALJ’s incongruous findings. In effect, the ALJ created a new basis on which to justify disciplinary action after hearing and rejecting the official charges and specifications lodged against Moncho. The Court further noted that at no time was Moncho ever notified that the accrual of overtime, in and of itself, could subject him to disciplinary action. Accordingly, the Court determined the final decision of the Division to be arbitrary, capricious, and unreasonable and thereby vacated the penalty imposed.

Firefighters' Discrimination Suit Dismissed

fmcrivelli@crivellilaw.com (Frank Crivelli) — Tue, 28 Oct 2008 11:05:04 -0500

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.

Municipalities Will Not Pay For State Police Patrols

fmcrivelli@crivellilaw.com (Frank Crivelli) — Mon, 27 Oct 2008 06:14:13 -0500

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.

Policy of Progressive Discipline Circumvented/Dismissal of Officer Upheld

fmcrivelli@crivellilaw.com (Frank Crivelli) — Fri, 24 Oct 2008 14:03:19 -0500

In the case of In the Matter of Carpenito, Sergeant Vincent Capenito appealed a final agency decision dismissing him from the Division of State Police. The Appellate Division sustained Carpenito’s dismissal and rejected his contention that the policy of progressive discipline required a less severe sanction.

On March 24, 2006, Carpenito was charged with five disciplinary infractions of the rules and regulations of the Division of State Police. The case was eventually transferred to the Office of Administrative Law as contested matter. A seven day hearing was conducted by an administrative law judge (“ALJ”), who issued an initial decision finding Carpenito guilty of the charges against him and recommending his termination of employment. Thereafter, Colonel Joseph Fuentes, Superintendent of the State Police, adopted the findings of the ALJ and dismissed Carpenito from the Division. This appeal followed.

On appeal, Carpenito argued: (1) there was insufficient evidence to support the findings that he engaged in conduct that warranted discipline; and (2) the sanction of dismissal was inconsistent with the general policy of progressive discipline. The Court, in rejecting Carpenito’s arguments, found that the Superintendent’s determination that Carpenito left his post while on duty and lied to investigators was based on Carpenito’s own admissions and, therefore, Carpenito’s contention that he was denied his right to cross-examine his wife because of her invocation of her Fifth Amendment right was of no consequence.

Moreover, the Court found the Superintendent was entirely justified in terminating Carpenito’s employment due to the seriousness of the misconduct. The Court held that the Superintendent properly: (1) recognized that some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished record and; (2) considered Carpenito’s prior disciplinary history and numerous occasions of alleged domestic disputes. As a result, the Court determined the application of progressive discipline was not appropriate in light of Carpenito’s egregious conduct.

This case illustrates an instance of where a general policy of progressive discipline will not be adhered to by a public employer. Should a disciplinary infraction be very serious in nature, a policy of progressive discipline can and will be abandoned so as to ensure a proper disciplinary response. This outcome should be noted by all public safety officers who intend to rely upon their employer’s policy of progressive discipline when contesting a disciplinary action. The seriousness of the misconduct, along with prior disciplinary history, may be used to circumvent a policy of progressive discipline and, therefore, may impose more serious consequences upon an officer than originally anticipated.

STATE'S AUTHORITY TO REVOKE A RETIRED POLICE OFFICER'S PERMIT TO CARRY A HANDGUN IS NOT PREEMPTED BY FEDERAL LAW

fmcrivelli@crivellilaw.com (Frank Crivelli) — Wed, 22 Oct 2008 11:48:38 -0500

In the case of In re Carry Permit of Andros, A-4077-06T4, the Appellate Division held that the State of New Jersey’s authority to revoke a retired police officer’s permit to carry a handgun is not preempted by federal law.

James Andros was an Atlantic City police officer from 1968 to 2003. Prior to his retirement in good standing, Andros applied for and obtained a permit to carry a handgun. This action concerns Andros’ appeal from a judgment granting the State’s application, under N.J.S.A. 2C:39-6L(6), to revoke his permit to carry a firearm.

Andros challenged denial of his motion to dismiss the State’s application because of federal preemption under 18 U.S.C.A. § 926C, enacted as part of the Law Enforcement Officers’ Safety Act of 2004, which amended 18 U.S.C.A. § 921, et. seq., relating to firearms. Andros contended: (1) that the revocation was preempted; and (2) the Law Division erred in finding that the State had presented “good cause” for the revocation.

The Law Division Judge denied Andros’ motion to dismiss on the grounds that the State was not preempted from revoking the license under N.J.S.A. 2C:39-6L(6). The Judge found that N.J.S.A. 2C:39-6L(6) did not bar a retired New Jersey law enforcement officer, or officers from other states who are qualified in those states, from carrying a concealed weapon as long as he meets New Jersey’s qualification standards. Consequently, the Judge concluded that N.J.S.A. 2C:39-6L remained valid.

On appeal, the Appellate Division, in affirming the revocation, held that the federal Law Enforcement Officers’ Safety Act of 2004, 18 U.S.C.A. §926C, does not pre-empt a state from revoking a retired police officer’s permit to carry a handgun under N.J.S.A. 2C:39-6L. In conceding Andros satisfied the requirements of federal act, the Court indicated a retired officer’s conduct permits the licensing state to revoke the permit, as evidenced by the requirements for qualification and testing every year in U.S.C.A. § 926C(c)(5). In other words, the federal act expressly permits states to set standards for training and qualification consistent with those of “active law enforcement officers.”

The Court agreed with the Law Division Judge that the federal act merely preempts a state’s ability to preclude, or change the requirements for, carrying the firearm interstate, if the state permits licensing of the retired officer. As a result, New Jersey retains jurisdiction to hear the state’s contention that it can establish good cause justifying the revocation. With these principles in mind, the Court found no congressional intent to preclude the action taken by the State here and no basis for concluding that a state cannot revoke a handgun permit because Congress authorizes a carrier when licensed in one state to possess it in another.

This case illustrates the State’s ability to limit a retired public safety officer’s ability to carry a firearm. Recently, this topic has become an important issue for retired officers throughout the State of New Jersey. This case is significant in that shows the State of New Jersey is not precluded under federal law from seeking and ultimately obtaining revocation of an officer’s permit to carry a firearm. The evolving case law regarding retired officers and their ability to carry a firearm should be followed closely so as to ensure the officers’ rights are protected.

Violation of Conflicts of Interest Law and Code of Conduct Not a Sufficient Basis for Official Misconduct

fmcrivelli@crivellilaw.com (Frank Crivelli) — Tue, 21 Oct 2008 12:39:54 -0500

In State v. Thompson, A-2279-07T4, the Appellate Division held that a violation of the Conflicts of Interest Law and a code of conduct adopted pursuant thereto is not a sufficient basis for criminal prosecution for official misconduct.

In the case, the State appealed from an order dismissing 36 counts of a 42 count indictment. Thirty two counts charged six Treasury employees and two employees of OSI Collection Services, Inc., a vendor selected by the State, after competitive bidding, to collect tax deficiencies and delinquencies, with official misconduct. Four counts charged two of the State employees and the OSI employees with engaging in a pattern of official misconduct.

Twenty eight of the counts can be grouped into fourteen pairs. One count in each pair charged the State employee(s) and an OSI employee, as an accomplice, with the receipt of a benefit, including meals, entertainment, spa treatments and golf outings. The other count charged failure to report the receipt of the benefit to the appropriate ethics authority. In large part, the State relied on the Department’s Code of Ethics as the source of the duty allegedly breached.

Four counts also charged official misconduct when State employees failed to recuse themselves from the process involving an allegation of improper billing by OSI, the extension of OSI’s contract, selecting the committee that evaluated the bids, determined the winning bidder, and setting conditions on the bid that presumably gave OSI a competitive advantage in violation of N.J.S.A. 2C:30-2a.

The Appellate Division, in affirming the dismissal of the receiving and failure to report counts, held that reliance on a violation of the Conflicts of Interest Law alone does not set forth a basis to impose criminal sanctions under the official misconduct statute as the imposition of criminal sanctions does not follow from a simple conflict of interest. There must be some additional allegation of wrongdoing.

Considering the case law regarding official misconduct, the Court concluded that the imposition of criminal sanctions does not follow from a simple conflict of interest. Culpability is not based on the receipt of a gift in the absence of some additional allegation of wrongdoing. The Conflicts of Interest Law does not set forth a basis for criminal liability under the official misconduct statute. Although it sets forth the ethical obligations of State employment, its terms are not self-executing and do not proscribe any conduct.

The Court also noted that the Conflicts of Interest Law and Code of Ethics apply to all employees in the Department, providing general and generic rules. However, official misconduct requires an alleged failure to perform a duty specifically required of the defendant’s office. Moreover, the Conflicts of Interest Law does not provide sufficient notice that the unreasonable appearance of impropriety may lead to a defendant’s conviction of a crime.