New Jersey Public Safety Employee Lawyer & Attorney : Arpaia & Crivelli Law Firm : Police, Firefighters, Workers Compensation, Discipline Representation : New Jersey

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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In the case entitled, In The Matter of Poplawski, 33-2-0649, the New Jersey Superior Court, Appellate Division rendered a decision that upheld the New Jersey Department of Personnel, Merit System Board's decision that the removal of the Appellant's name from a promotional list was proper due to his past disciplinary history.  Poplawski appealed his employer's action of removing his name from a promotional list due to his alleged adverse employment history.  Poplawski's employment history included two adverse actions that resulted in suspensions from employment due to charges centering around N.J.A.C. 4A:2-2.3 (a) 6, conduct unbecoming a public employee.  Both of the charges that resulted in suspension were disposed of by way of settlement agreement.  The Appellate Division held that the Merit System Board's actions were not arbitrary, capricious or unreasonable due to the fact that the Appellant had actually agreed with the disposal of the disciplinary charges by a settlement and based upon the same, the action's of the board were upheld.

It is important to remember that the disposal of discipline by way of a settlement agreement may seem like a good idea when you are staring down the charges.  However, settlement agreements can have repercussions concerning promotion from a civil service list of eligibles.  Thus, if at all possible, when disposing of charges by way of settlement agreement, a clause that states that the discipline can not be used against the employee for promotion should be included.

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In an unpublished opinion, the Appellate Division, Superior Court of New Jersey upheld the decision of the Merit System Board, New Jersey Department of Personnel, that the appellant's failure to file his appeal of the Final Notice of Disciplinary Action within twenty (20) days from the issuance of the Final Notice of Disciplinary Action barred him from appealing said charges on any level. 

In the Matter of Santiago, New Jersey Department of Corrections, 25-2-1072, App. Div., the Appellant was employed by the New Jersey Department of Corrections as a Senior Corrections Officer.  The Appellant waived his Departmental or Agency Hearing pertaining to the Preliminary Notice of Disciplinary Action that charged him with conduct unbecoming a public employee.  His attorney requested the issuance of a Final Notice of Disciplinary Action subsequent to the waiver however the Appellant claimed that he never received said final notice despite the contentions of the New Jersey Department of Corrections that the same was issued.  Appellant waited five (5) months prior to pursuing the appeal and the Merit System Board refused to accept the appeal and transmit the case to the New Jersey Office of Administrative Law for a De Novo hearing.

The Appellate Division affirmed the decision of the Merit System Board stating that the Appellant's delay of five (5) months in issuing his appeal was well beyond the allotted twenty (20) day period and his removal from employment was upheld.

The bottom line is that it is the employee's responsibility to ensure that his or her appeal of any major disciplinary action is perfected within 20 days of the issuance of the Final Notice of disciplinary Action.  Excuses such as the one offered by Santiago where five (5 ) months lapse before an appeal is filed will not be accepted nor recognized by the Courts.

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