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

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 case Reilly v. City of Atlantic City, 06-2591, the United States Court of Appeals for the Third Circuit held that a police officer’s testimony in a police corruption case is protected speech and his superiors are not entitled to qualified immunity regarding his retaliation claim. 

Appellee, Robert Reilly, a former Atlantic City police officer, filed suit against Robert Flipping, the Director of Public Safety, and Arthur Snellbaker, the Chief of Police, claiming that they retaliated against him for his participation, including trial testimony, in an investigation into police corruption a decade earlier. The alleged retaliation involved defendants formally recommending Reilly be demoted and suspended for 90 days, despite, after an extensive investigation, an independent hearing officer’s recommendation that Reilly serve a four day suspension for violating police department regulations.

Reilly accepted Flipping’s offer that he retire instead of being disciplined. Thereafter, Reilly filed this action alleging defendants’ actions violated his First Amendment free speech rights and Fourteenth Amendment right to procedural due process. The District Court denied defendants’ motion for summary judgment on the procedural due process claim, thereby declining to grant them qualified immunity. The Court also denied their motion for summary judgment on the First Amendment retaliation claim. This appeal followed.

The Third Circuit indicated that determining whether a public official is entitled to qualified immunity involves a two-step analysis. First, the court must decide whether a constitutional right would have been violated on the facts alleged and, if so, whether the right was clearly established. If the answer to the latter is “yes,” the defendant is not entitled to qualified immunity.

In analyzing whether Reilly had the claimed First Amendment right, the Third Circuit cited Garcetti v. Ceballos, 547 U.S. 410 (2006), which distinguished between employee speech and citizen speech and held that the First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities. Defendants argued under Garcetti they are entitled to qualified immunity on Reilly’s First Amendment claim because his testimony was made pursuant to his official duties and, thus, not protected by the First Amendment. 

In rejecting this argument, the Third Circuit noted: (1) every citizen owes the duty of giving testimony to aid in the enforcement of the law; (2) the overwhelming weight of authority concludes that an employee’s truthful testimony is protected by the First Amendment; and (3) there is a need to protect the integrity of the judicial process. Therefore, the Court concluded that the fact that Reilly’s official duties provided the impetus to appear in court is immaterial to his independent obligation as a citizen to testify truthfully. Reilly’s testimony constituted citizen speech and his claim is not foreclosed by the “official duties” doctrine announced in Garcetti and, as a result, defendants are not entitled to qualified immunity. 

This case has significance for any public safety officer who is called to testimony in a matter related to his official duties. Public safety officers, as with other citizens, have an obligation to testify truthfully in a court proceeding not only to preserve the integrity of the judicial process, but to ensure just enforcement the law. More importantly, however, this case illustrates that an officer’s superiors who retaliate against him/her will not be entitled to qualified immunity in a subsequent civil suit.      

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On September 11, 2008, the New Jersey Law Enforcement Supervisors Association (“NJLESA”) and New Jersey Law Enforcement Commanding Officers Association (“NJLECOA”), jointly filed a lawsuit in the Superior Court of New Jersey, Law Division, Mercer County against the State of New Jersey challenging the viability of N.J.S.A. 11A:6-10 and N.J.A.C. 4A:6-1.13, the provisions of New Jersey law providing convention leave for State employees.

It is alleged that on or around July 15, 2008, NJLESA, the exclusive representative of those employees in the primary level supervisory law enforcement unit, and NJLECOA, the exclusive representative of superior officers and other command law enforcement personnel holding the rank of Captain or its equivalency in classified career service, requested a leave of absence with pay for certain union officials and duly authorized delegates within their organizations to attend a state convention jointly hosted by NJLESA and NJLECOA. In response, the New Jersey State Office of Employee Relations denied the request and took the position that it was not permitted to grant plaintiffs’ request because neither NJLESA nor NJLECOA were affiliated with any of the organizations delineated in N.J.S.A. 11A:6-10 and N.J.A.C. 4A:6-1.13 which are entitled to convention leave.

The complaint asserts N.J.S.A. 11A:6-10 and N.J.A.C. 4A:6-1.13 are arbitrarily exclusive in conferring the benefit of convention leave on certain fraternal organizations while excluding others, thereby violating certain provisions of the United States and New Jersey Constitutions. Consequently, NJLESA and NJLECOA seek a declaration that N.J.S.A. 11A:6-10 and N.J.A.C. 4A:6-1.13 are unconstitutional or, alternatively, for an order directing the State of New Jersey to award convention leave to members of their organization. It will be interesting to see how this suit develops and how the state of New Jersey reacts to preserving this piece of legislation.

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