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

The Asbury Park Press published an article in today's Sunday edition addressing the ability of The State of New Jersey to honor its pension obligations to those public employees that have been paying into the retirement system since the start of their public employment .  The article, entitled "Can New Jersey Keep its Pension Promises?" unfortunately reiterated the same information that we have been hearing for the last several years.......The Pension System is Broke.

The article stated that as of June, 2009, the state's pension system faced unpaid liabilities in the amount of $45.8 billion dollars.  However, this is assuming that the state receives an annual 8.25% return on its pension investments.  At this point in time, everyone is aware that the State hasn't seen 8.25% for several years now.  Furthermore, many studies have demonstrated that the unfunded liability of $45.8 billion is a conservative estimate and the true unfunded liability is more along the lines of $173.9 billion, with unfunded health care costs reaching $55 billion dollars.  Eileen Norcross, a George Mason University researcher has been quoted as stating, "It's mathematically impossible to pay this out.  It's too large."

However, despite the fact that the public employment pension system is in dire straits, Governor Christie, has made the decision to "skip" the state's 2010 $3billion dollar pension payment. In reviewing the administration's decision to forgo the payment, one has to question if the Christie administration has already given up on attempting to save the state pension system and the countless amount of money that has been withheld from public employee's paychecks on a weekly basis since the inception of the system.  I bet many of you who are reading this article would like to skip a few pension payments or take a "pension holiday" the way that the state, county and local governments have over the last sever years. 

A year or two ago, myself and other attorneys representing public employee labor unions filed suit against the State of New Jersey for failing to fund the State Employee Pension Systems.  An argument was made that the state had a constitution mandate or obligation to fund the pension system.  Unfortunately all of the suits were dismissed under the notion that the state had very broad discretion in making decisions on how to appropriate funds concerning fiscal obligations.  However, the court did leave the door open and stated that a suit would be entertained if pension recipients did not receive payment due to the state's inability to pay.  With that being said, one has to ask the question:  "Wont it be to late at that point in time?"

We will continue to follow this issue on this blog.  You, the public employees of the State of New Jersey, and retired public employees of the  state of New Jersey need to take affirmative steps to attempt to revive your retirement system.  If you do not take immediate affirmative steps to protect your retirement income, unfortunately, it appears as if it will be lost due to government irresponsibility and mismanagement. 

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This blog entry will focus upon our review of certain statutory proposals currently pending in the New Jersey Legislature concerning the pay status of law enforcement officers when appeals of termination are not resolved within 180 days. These proposals are set forth in Assembly Bill Number 3481. 

Assembly Bill 3481 concerns the suspensions of certain law enforcement officers and firefighters and supplements Title 40A of the New Jersey statutes and specifically amends N.J.S.A. 40A:14-150 and N.J.S.A. 40A:14-22. In essence, the bill allows certain law enforcement officers and firefighters to regain pay status when appeals of termination are not resolved within 180 days.

The first part of the bill provides:

When a law enforcement officer employed by a law enforcement agency…that is subject to the provisions of Title 11A of the New Jersey Statutes is suspended from performing his official duties without pay for a complaint or charges, other than (1) a complaint or charges relating to the subject matter of a pending criminal investigation…whether pre-indictment or post indictment, or (2) when the complaint or charges allege conduct that also would constitute a violation of the criminal laws of this State or any other jurisdiction, and the law enforcement agency employing the officer…seeks to terminate that officer’s…employment for the conduct that was the basis for the officer’s…suspension without pay, a final determination on the officer’s…suspension and termination shall be rendered within 180 calendar days from the date the officer…is suspended without pay.

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 Since the New Jersey Supreme Court’s decision in Richardson v. Board of Trustees, Police and Firemen’s Retirement System, 192 N.J. 189 (2007), we have witnessed more denials of accidental disability applications based on the premise that the member suffered from a pre-existing illness or injury which contributed to the overall disability that prevented the member from returning to employment. However, where the scenario gets particularly interesting is when the pre-existing injury or illness was the result of a work related traumatic event. One would think that such a denial does not make sense under the Richardson decision as a “traumatic event,” as redefined by the Supreme Court,  and the resulting injuries sustained therefrom should not qualify or be viewed as a pre-existing illness or injury. Such a scenario and situation has not been addressed by New Jersey courts and is ripe for review to further flush out this new and evolving area of the law. 

 While the last paragraph may sound like a tongue twister, we will try to explain it in plain english. New Jersey courts are currently grappling with scenarios revolving around multiple injuries caused by separate traumatic events which together cause a member to be permanently disabled from performing his or her job. However, the Police and Firemen’s Retirement System, Public Employees' Retirement System and Teachers' Pension and Annuity Fund do not believe that a person with multiple injuries that occurred as the result of multiple traumatic events should be entitled to receive accidental disability benefits. As a result, the various pension funds have been disqualifying applicants with multiple injuries caused by multiple traumatic events. 

          In Richardson, the New Jersey Supreme Court revisited the “traumatic event” standard under the accidental disability retirement provision of the Police and Firemen’s Retirement System, N.J.S.A. 43:16A-1. After conducting an exhausting analysis of conflicting court decisions which interpreted the traumatic event standard differently and the legislative history of the amendments to the accidental disability statutes, the Court opined that a “traumatic event” is essentially the same as what has been historically understood as an “accident” to be. An “accident” as defined under Richardson, is an unexpected, external happening that directly causes injury and is not the result of pre-existing disease alone or in combination with work. Based on establishing this baseline definition of “accident,” the Court held that in order to obtain accidental disability benefits, a member must prove amongst other things that he or she is totally and permanently disabled as a direct result of a traumatic event that is:

1.   Identifiable as to time and place;

2.   Undesigned and unexpected; and

3.   Caused by a circumstance external to the member (not the result of pre-existing disease that is aggravated or accelerated by the work).

          The Richardson Court also provided examples of situations that satisfy the newly enunciated traumatic event standard. The first example depicted a police officer who suffers a heart attack while chasing a suspect. The Court instructed that the police officer in such a situation has not experienced a traumatic event. In that case, the work effort, alone or in combination with a pre-existing disease, was the cause of the disabling injury. However, the Court stated if that the same police officer became permanently and totally disabled during the chase solely because of a fall, the officer has suffered a traumatic event that would give rise to an award of accidental disability benefits. Thereafter, the court provided another example. A gym teacher who develops arthritis from the repetitive effects of his work over the years has not suffered a traumatic event as defined and articulated under Richardson. Such a disability is the result of degenerative disease and is not related to an event that is identifiable as to time and place. On the contrary, the same gym teacher who trips over a riser, is injured and becomes permanently and totally disabled as a result of the fall, has satisfied the accidental disability standard. 

          In sum, the Court held that a member who is injured while performing his or her ordinary duties does not disqualify him or her from receiving accidental disability benefits; some injuries sustained during the ordinary work effort will pass muster and others will not. However, the polestar of the inquiry is whether, during the regular performance of his or her job, an unexpected happening, not the result of pre-existing disease alone or in combination with the work, has occurred and directly resulted in the permanent and total disability of the member. 

In our next post, we will look further into Richardson and whether members with multiple injuries resulting from multiple traumatic events should qualify for accidental disability benefits.

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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.   

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In the case entitled, In the Matter of Herrick, etc. 33-2-1258, The New Jersey Superior Court, Appellate Division opined that a police officer serving in the elevated civil service title of captain in order to fill a vacancy created by a temporary leave of absence due to a military obligation has no claim to permanent appointment for the title that was temporarily filled.  However despite this ruling,  in its opinion the court did differentiate between temporarily filling a vacancy due to a disciplinary action versus a military leave of absence.  It appears based on the courts reasoning that had the vacancy been temporarily filled due to the fact that the individual that occupied the permanent title were suspended for disciplinary reasons, the appellants would have had a legitimate claim to the permanent title.  Expanded reasoning in this case would have been helpful to understand the direction of the court. 

It is important to note that should a public safety officer occupy an elevated civil service title for a period of time due to the fact that the permanent title holder is suspended from employment for disciplinary infractions, the court may entertain a cause of action that the individual that is temporarily occupying the position may have a legitimate claim to the title of employment.

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