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Should a final determination of the discipline not be rendered within those 180 days, the proposal states that the officer shall, commencing on the 181^st calendar day, begin to receive the base salary he/she was being paid at the time of the suspension and shall continue to do so until a final determination on the termination is rendered. Simply put, this addition to the statute would allow officers who are suspended without pay to begin collecting their base pay once again if the appeal of their termination is not resolved within 180 days. It goes without saying that this addition helps to alleviate the problem many officers find themselves in currently, namely being economically starved for an extended amount of time while trying to challenge their removal from employment.    

The proposal also instructs how the 180 day period should be calculated. While the 180 day period seems to be a favorable time period for the officers, it is important to note that this time period might be significantly extended and keep an officer without pay for a period much larger than 180 days. For example, time periods such as: (1) the period between an officer’s termination and the date on which his/her appeal is filed; and (2) the days that accrue during a postponement, should an officer have requested one, will not toll the 180 day period. Therefore, it is imperative that New Jersey public safety officers become intimately familiar with the events which can extend the 180 day time frame should this bill be accepted into law. That way, the officers can maximize their resources efficiently so as to ensure the time frame without pay remains as close to the 180 days as possible.

Next, it is important to note that if the Civil Service Commission denies the officer’s appeal, the officer will be required to reimburse his employing agency or department all of the base salary received during the period of the appeal. Put another way, if an officer has been receiving his base salary after the 180 day period expired and he/she ultimately loses, the officer has to pay all the monies he or she has received. Moreover, the proposal provides that if an officer fails to reimburse the employing agency for the payments, the employing agency may obtain a lien for those amounts on any property and income of the officer, including the officer’s pension, sick and vacation leave to which the officer is entitled.

Finally, the bill directs the Director of the Office of Administrative Law to establish a special unit, known as the Law Enforcement and Firefighter Unit, to deal with removal cases. The unit will be made up of Administrative Law Judges who are qualified and experienced in disciplinary matters and cases which fall under the purview of this statute. As a result of the establishment of this unit, the Office of Administrative Law will be better able to adhere to the 180 day time frame which will, potentially, result in quicker resolutions than what is currently being experienced for all parties involved.

Based on our review of these proposals, I am of the opinion that while many of the proposals are favorable to New Jersey public safety officers, the benefits are somewhat misleading. I believe the Legislature in: (1) installing a deadline for resolving cases regarding the termination of an officer; (2) allowing the officer to regain pay status when appeals are not resolved within that deadline; and (3) establishing the Law Enforcement and Firefighter Unit addresses a number of important concerns, namely forcing these types of cases to be resolved in an expedited fashion and allowing officers certain financial alleviation should an appeal persist for an extended amount of time.

However, (1) the various ways in which the 180 day deadline could be significantly extended; (2) the provision providing reimbursement to the employment agency in the event the appeal is unsuccessful; and (3) permitting a lien on an officer’s property to include his/her pension, severely undermines many of the advantages of the bill. Therefore, it is important that, if this bill passes, officers are mindful of what it specifically includes, excludes, and requires by way of affirmative action on the part of the member or association. Our office will keep apprised of the bill’s progression through the Legislature so make sure to check this blog periodically to ascertain any updates.

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.