New Jersey Public Safety Officers Law Blog : New Jersey Public Safety Employee Lawyer & Attorney : Pellettieri, Rabstein & Altman Law Firm : Workers Compensation, Discipline Representation for Police & Firefighters : New Jersey

As reported by nj.com, a group of state employees challenging the constitutionality of New Jersey’s new law covering pension and health benefits wants to combine their lawsuit to the one brought by a Superior Court judge. The employees said the lawsuit filed by Judge Paul DePacale was similar to the one filed on their behalf and that the two should be consolidated in challenging the pension and health benefits law that went into effect June 28.

However, lawyers for DePascale and those identified as Defendants insist the cases are not closely enough related to warrant consolidation and are asking Superior Court Judge Linda Feinberg to keep them separate. Feinberg, the assignment judge in Mercer County, is expected to issue a ruling on the request on October 5.

DePascale, the first to file suit over the state’s new pension and health benefits package, contends the changes are unconstitutional because they run counter to the state Constitution, which prohibits the salaries of Supreme Court justices and Superior Court judges from being “diminished” while in office. The new law, enacted June 28 but which will largely take effect October 14, phases in the pension contributions of judges from 3 percent to 7 percent of their annual salaries over seven years.

Judges current contribute 1.5 percent of their salaries toward health care benefits. The new law requires them to pay 35 percent of the premium cost. DePascale has said that would more than double his contribution toward health benefits to $5,230.86.

For the employees, the contributions are structured differently than those of judges. Contributions are on a sliding scale based on salary. In a seven count complaint, the employees contend the new law violates the State Constitution by denying their right to organize and present grievances through their unions. In addition, they contend the legislation unfairly creates classes of employees by requiring them to contribute different amounts for the same health benefits. They also claim the law creates an unconstitutional tax on their base salaries.

DePascale’s lawyer says the cases are only “tangentially” related and opposes the consolidation. In court papers, DePascale asserts the state Constitution addresses the salaries of judges and justices, but not other judicial employees. Attorneys for the Senate and Assembly said consolidation would be unfair because DePascale has not identified them as defendants in his lawsuit. Finally, attorneys for the State, the Treasury Department, and the State Treasurer said the cases should not be consolidated because they are seeking to dismiss DePascale’s suit, but have not taken that action against the others.

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As reported by nj.com, dozens of unions and public workers filed suit against the newly enacted pension and health benefit overhaul in federal court yesterday. The 58-page, 17-count suit charges the state violated the state and federal constitutions by suspending cost of living adjustments for at least 30 years, failing to make full payments into the pension system for the last decade, and handing administration of the systems to committees. The suit, whose plaintiffs include the NJEA, the CWA, and all the major public safety unions, charges that the law is a “violation of substantive and procedural due process rights.”  

“This lawsuit is about basic fairness and justice. Governor Christie and the Legislature passed a law which illegally takes away benefits that school employees and other have already earned through their service to the people of New Jersey,” said NJEA President Barbara Keshishian. “Perhaps most troubling is that this legislation amounts to a classic ‘bait and switch’ for current retirees. These are people who worked their entire careers believing in the promise that their pension benefits would be honored. They’ve already retired, and are living on a fixed income. Now they’re being told that the state is reneging on its promise.”

The law, pushed through the Legislature with the help of Democratic legislative leaders and signed by Governor Chris Christie on June 28, seeks to cut costs because the pension and health benefit systems are underfunded by a combined $120 billion. Unions fiercely protested against the bill, saying it prevented them from collectively bargaining their medical benefits, which will be set by a panel of union members and state managers.

All public workers-including police officers, firefighters, and teachers-will pay more for their pensions and health benefits. It would suspend cost-of-living increases to pensions for retirees and raise the retirement age for new workers.

Employees have “non-forfeitable rights” to cost-of-living adjustments, says the suit, which includes eight retirees as plaintiffs. “While employed and when they retired, these Class Plaintiffs fully expected and relied upon the promise that they would receive the promised required COLAs every year,” it reads.

It also says the state’s underfunding of the pension system violates workers’ contractual rights, and that forcing workers with fewer than 20 years of service to pay more for health benefits “violates the promises made to, and the contractual property rights of, active public employees with less than 20 years of credited service.”

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As reported by nj.com, New Jersey’s public worker pension and health benefits increases should be revoked for state judges because they unconstitutionally slash their salaries and undermine judicial independence, a state Superior Court judge claims in a lawsuit filed Thursday.

The complaint, filed by Superior Court Judge Paul DePascale, who sits in Hudson County, is the first legal challenge to the landmark health and benefits law enacted last month. State public employee unions angered by the changes are also vowing to go to court. 

The complaint says the law runs counter to the part of the state constitution that says the salaries of the Supreme Court justices and Superior Court judges “shall not be diminished during their term of appointment.” “It diminishes the salary of all justices and judges appointed before the enactment of the subject legislation during their term of appointment and, by doing so, unconstitutionally and adversely (affects) the public and the independence of the judiciary,” DePascale’s attorney wrote.

Set by law, judicial salaries range from $165,000 for Superior Court trial judges, including DePascale, to $192,795 for Supreme Court Chief Justice Stuart Rabner. New Jersey now has 430 judges. DePascale, however, said in his court filing that his deductions will increase “steadily and dramatically” over the next seven years. His pension deductions would be hiked $14,849 by 2017, when he would be paying $18,137 into the pension system. DePascale also said his health benefits contribution would more than double to $5,230.86, based on state estimates that would allow different levels of coverage.   

The new law, to be phased in over seven years, will make judges’ pension contributions go from 3 to 12 percent of their annual salaries. The same law will boost the contributions of members of the Public Employee Retirement System from 5.5 percent of their salaries to 7.5 percent over that same period.

An initial hearing before Mercer County Assignment Judge Linda Feinberg is set for September 16. Pension changes took effect July 1. However, actual deductions start October 14, along with health contribution hikes.

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As reported in the Star-Ledger on November 26, 2009, according to a lawsuit filed by the union representing prison investigators, senior officials at the Department of Corrections are illegally blocking internal investigations into bribery, cell phone smuggling and gang activity. In short, the lawsuit alleges that Correction officials shut down ongoing probes or prevented investigations from even beginning.

For example, the lawsuit alleges that investigators were told not to examine whether a prison employee was hiding a cell phone, or if an inmate had “put out a hit” on people outside the prison system. Other alleged spike investigations included probes into prison employees who fired service weapons, once during an alleged off-duty bar fight. Allegedly, both files were marked “no action taken” by senior officials.

The union, Fraternal Order of Police Lodge 174, represents about 90 officers within the Department of Corrections’ Special Investigations Division. The union has previously clashed with the Department’s leadership on issues of tactics and resources. 

The Special Investigations Division has been controversial for its dual role in probing gang activity and handling internal affairs. Officials inside and outside of the Division say its dual role creates distrust within the Department.

Spokespeople for the Department of Corrections and the Attorney General declined to comment on the pending lawsuit. Please check this blog periodically to ascertain updates regarding this lawsuit as the same become available.

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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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