Discipline Regading Dissemination of Internal Affairs Documents Upheld

Posted on January 14, 2009 by Frank Crivelli

 

In Division of State Police v. In the Matter of Detective Sergeant First Class Daniel Flaherty, Docket No. A-0257-07T20257-07T2, the Appellate Division addressed the validity and ultimate imposition of disciplinary charges lodged against a Detective Sergeant of the New Jersey State Police. The appeal arose out of disciplinary charges filed by the New Jersey Division of State Police (“Division”) against Detective Sergeant First Class Daniel Flaherty, charging him with: (1) disseminating Division documents without proper authorization; (2) behaving in an official capacity to the personal discredit of a member of the State Police or to the Division; and (3) willfully disobeying a lawful verbal or written order.

The underlying facts of this case were not substantially in dispute. In 2001, Flaherty filed an age discrimination complaint with the New Jersey State Police Equal Employment Opportunity/Affirmative Action (“EEO/AA”) intake unit. He alleged that since 1995, the State Police had denied him numerous specialist positions because of his age. The EEO/AA assigned Lieutenant Patrick Reilly to investigate his claim. After two years, in which the allegations still had not been resolved, the EEO/AA replaced Reilly with DSFC Kevin Rowe.

On May 5, 2003, Flaherty filed a New Jersey State Police Reportable Incident Form alleging “culpable inefficiency” against Reilly. Pursuant to a Division policy regarding non-disclosure of confidential internal investigations, the Office of Professional Standards (“OPS”) denied his request to access the file regarding his complaint against Reilly.

The following month, the State Police administratively closed Flaherty’s complaint file against Reilly and transferred the matter to the Attorney General’s EEO/AA section. In a letter dated September 24, 2003, a Senior Deputy Attorney General informed Flaherty that his claim against Reilly could not be substantiated. 

Thereafter, on May 31, 2003, the Division assigned Flaherty to the OPS, which was then called the State Police Internal Affairs Investigation Bureau. Pursuant to Division of Internal Affairs policies and procedures, “[t]he nature and source of internal allegations, the progress of internal affairs investigations, and the resulting materials are confidential information. The contents of internal investigation case files shall be retained in the internal affairs unit and clearly marked as confidential.” Notwithstanding these provisions, internal investigation files can be released in certain enumerated circumstances.  As such, Flaherty executed a confidentiality agreement which provided the dissemination of all confidential information and/or documents.

In a letter dated February 20, 2004, the Department of Law and Public Safety found that Flaherty’s age discrimination claims could not be substantiated. In his appeal to the Department of Personnel, Flaherty questioned the manner in which the State Police and the Attorney General’s office investigated his

 

discrimination claims and his complaint against Reilly. Attached to the appeal were several documents from OPS internal investigation files relating to Reilly and several documents from the internal investigation file regarding his culpable inefficiency claim against Reilly. He also claimed that two other State troopers had filed reportable incident forms against Reilly, specifically citing to one of the internal investigation files.

The Department of Personnel acknowledged receipt of Flaherty’s appeal and forwarded a copy of same to the Attorney General’s office. In responding to the appeal, it became apparent Flaherty might have breached confidentiality by attaching Division documents from internal investigation files. Consequently, an investigation was commenced regarding Flaherty’s acquisition and dissemination of several of the documents referenced in and attached to his appeal. After the investigation, on August 25, 2005, the Division filed the above referenced disciplinary charges against Flaherty. 

The case was ultimately transferred to the Office of Administrative Law. The Administrative Law Judge (“ALJ”) assigned to the case granted a summary decision in favor of the State on charges one and three, dismissed charge two, and ordered Flaherty suspended from duty for five days without pay. After the State filed exceptions seeking to increase the penalty and Flaherty challenged the grant of summary decision as well as the penalty, the Superintendent of the State Police issued a final decision on August 1, 2007, upholding the summary decision on charges one and three, but increasing the suspension to ten days. This appeal ensued.

On appeal, Flaherty asserted: (1) genuine issues of material fact precluded summary decision; (2) the ALJ failed to consider relevant evidence; (3) the ALJ applied the incorrect burden of proof; (4) the Superintendent erred by adopting the Department of Personnel’s finding that his discrimination claims were “unsubstantiated”; (5) the Superintendent erred in asserting that he has “absolute discretion” to promulgate rules and regulations; (6) he was unfairly charged with two violations based on the same facts; and (7) the ten day suspension is disproportionately harsh.

The Appellate Division rejected all of Flaherty’s arguments and affirmed the Superintendant’s decision. According to the Court, the record sustained the ALJ’s grant of summary decision imposing disciplinary action on Flaherty for attaching the records from the Internal Affairs Unit of the State Police. The Court determined Flaherty knew the records he attached to and referenced in his appeal were confidential. Moreover, the Court noted Flaherty even executed a confidentiality agreement which specifically prohibited such dissemination. As such, the Court held the ten day suspension was not disproportionately harsh and sustained the findings of the ALJ and Superintendent.
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Distinction Between Public and Private Speech

Posted on January 6, 2009 by Frank Crivelli

 

In Brennan v. Township of Fairfield, the United States District Court for the District of New Jersey addressed an important topic for public safety officers, freedom of speech. In this case, Plaintiff, a police officer, alleged he was retaliated against for distributing a memorandum on police letterhead to the Mayor and Township Council. The memorandum contained the officer’s reasons for having issued two motor vehicle summonses to a township administrator.   

Defendants moved for summary judgment of plaintiff’s claim. The Court granted the motion because Plaintiff’s speech was made pursuant to his duties as a police officer. Therefore, his speech was not protected by the First Amendment. In addition to seeking summary judgment, Defendants also moved for sanctions against Plaintiff for the assertion of a claim which Plaintiff later withdrew. The Court denied this motion along with Defendants’ other motions to disqualify counsel and to compel mediation.   

This case, although very brief, illustrates how one’s freedom of speech can be limited based on the context in which the speech is offered. Speech made pursuant to one’s duties as a public safety officer will not be protected by the First Amendment, thereby negating support of a retaliation claim. As a result, it is important for public safety officers to be cognizant of the distinction between speech made pursuant to their employment from all other forms.

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Non-Civil Service Municipality's Promotion Decision Overturned

Posted on November 18, 2008 by Frank Crivelli

 

On November 17, 2008, the New Jersey Supreme Court decided the case of Borough v. Glassboro v. Fraternal Order of Police Lodge No. 108,  A-75-07. In this case, the Court addressed the validity of an arbitrator’s award addressing the legality of a police officer promotion made by the Borough of Glassboro, a non-civil service municipality.

In 2004, the Borough of Glassboro Police Department (“Borough”) announced an opening for the position of lieutenant. Three candidates applied, including Sergeants Peter Amico and William Highley. As a non-civil service municipality, the Borough is not subject to the statutory requirements of a comprehensive promotional procedure. Rather, state law only requires that due consideration is given to the officer proposed for promotion and to the length and merit of the officer’s service, with preference being given to seniority in service.

The Borough implemented a three stage promotional procedure. The scores from Phase I and II were aggregated for a total possible score of 100%. Phase I consisted of an interview with the Borough Chief of Police and was worth 20%. Phase II involved an oral and written exam and was worth 80%. Phase IIA, the written portion, was a multiple-choice test designed by the International Association of Police Chiefs. Phase IIB, the oral component, consisted of interviews with a panel of four independent police chiefs. Following Phase I and II, the cumulative final scores were as follows: Sergeant Amico, 93.8, and Sergeant Highley, 92.4.

In Phase III, each applicant was interviewed by the Borough Public Safety Committee, which included Borough Council members, the Borough Administrator, and the Chief of Police. Candidates were advised that they would be asked questions “concerning their department’s SOPs Rules and Regulations, in addition to questions concerning the Boro Personnel Policy & Procedures and Boro Ordinances.” The purpose of Phase III was to test leadership intangibles that are necessary for the position and evade formal testing. After the completion of Phase III, Highley, ranked second in the Phase I and II testing, was awarded the promotion.

Amico learned in subsequent conversations with the Chief of Police and the Borough Administrator that his move out of the Borough had a possible negative effect on the promotional decision. The Fraternal Order of Police, Local 108 (“FOP”) filed a grievance on Amico’s behalf, thereby claiming: (1) that the use of Phase III as more than a “confirmatory interview” altered the terms and conditions of employment in violation of the collective bargaining agreement between the Borough and FOP; and (2) the Borough violated N.J.S.A. 40A:14-122.6 by making residency a factor in its promotional decision.

 

The matter was ultimately submitted to arbitration after the grievance was unable to be resolved. The arbitrator concluded that Amico was improperly deprived of the promotion contrary to statute and that he should be promoted with full back pay. In making his ruling, the arbitrator noted that Amico, whose education and seniority were greater than Highley’s, was 1.4 points ahead of Highley after Phases I and II, but then fell behind following the Phase III interview. The arbitrator also pointed out that there was nothing in the record to positively determine what elements in that interview caused Amico to fall behind Highley. The arbitrator further surmised from the testimony that Amico had recently moved away from the Borough and that a non-civil service municipality can only use residency in a tiebreaker on the promotional test, which was not the case here.

Thereafter, the Borough filed a complaint in the Superior Court, wherein the arbitrator’s award was stayed pending the outcome of the case. In the complaint, the Borough alleged: (1) that it had placed substantial evidence in the record noting what occurred during the Phase III interview; and (2) the arbitrator disregarded the testimony of the Borough Administrator, the Police Chief, and all the Phase III documentation referenced during the arbitration. Attached to the complaint were two pages of questions asked of each candidate in Phase III, as well as the Chief’s corresponding notes concerning each candidate’s answers.

The trial judge denied the Borough’s motion to vacate the arbitrator’s award or to hold a plenary hearing. In so holding, the judge noted that so long as the arbitrator’s determination is reasonably debatable it should not be disturbed. Accordingly, the judge affirmed the arbitrator’s award, but granted the Borough’s motion for a stay pending appeal. 

The Appellate Division affirmed on appeal, essentially because it agreed with the arbitrator and the trial judge that the record was bare regarding the Borough’s reasoning for elevating Highley over Amico, thereby rendering the promotion of Highley arbitrary and capricious. The Borough appealed and the Supreme Court granted certification.

The Supreme Court held the arbitrator properly determined that the record did not adequately support the elevation of Highley over Amico. However, the Court did indicate it was beyond the arbitrator’s power to fashion a remedy that promoted Amico. Therefore, the judgment of Appellate Division was affirmed and reversed in part and the case was remanded for proceedings consistent with its holding.

In support, the Court noted that an arbitrator must uphold a non-civil service municipality’s promotion decision unless the decision was clearly arbitrary, capricious, or unreasonable, since judicial review of an arbitrator’s decision is limited and the decision should not be set aside easily. The New Jersey Arbitration Act permits courts to vacate an arbitration award in only limited defined circumstances. In addition, a court may vacate an arbitration award that is contrary to existing law or public policy as embodied in legislative enactments, administrative regulations, or legal precedents.

After reviewing the record in this case, the Court agreed with the arbitrator’s decision. The Court noted that the arbitrator’s conclusion that the record shows no reasoning by the Borough for elevating Highley is unassailable. The Court further noted this case stands for the unremarkable proposition that, should a grievant make the type of showing that Amico made here, and should the municipality not provide even the simplest explanation on the record for some kind of rational reason for its decision, the decision cannot stand. 

The Court also indicated that the Legislature, through statue, clearly established residence as a tie-breaker in non-civil service municipalities. However, in this case, there was no tie after the first two phases, simply out, Amico was ahead of Highley. Moreover, the Court also noted that if the record was inadequate regarding how Highley passed Amico during Phase III, it was equally deficient in respect of Amico’s leadership skills and how, upon testing, he lost his lead. Therefore, it was beyond the arbitrator’s power to fashion a remedy that promoted Amico and, thus, the matter must be remanded to the Borough to conduct a new Phase III proceeding.
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STATE'S AUTHORITY TO REVOKE A RETIRED POLICE OFFICER'S PERMIT TO CARRY A HANDGUN IS NOT PREEMPTED BY FEDERAL LAW

Posted on October 22, 2008 by Frank Crivelli

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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New Jersey Public Employment Labor Law 101

Posted on September 28, 2008 by Frank Crivelli

Many public safety officers in the state of New Jersey understand that the terms and conditions of their employment to include the wages they are paid and the benefits they receive are derived from a collective bargaining agreement reached between the public employer and their collective bargaining unit.  However many public safety officers are not aware of the inner-workings of public employment labor law in the state of New Jersey.  This post is being written to provide public safety officers with a brief oversight of the statutes and agencies that govern public employment labor law in the state of New Jersey.  It will be the first post in a series that discusses public employee labor law and the effect it has on New Jersey Public Safety Officers.

In 1968, the New Jersey State Legislature passed the New Jersey Employer-Employee Relations Act (hereinafter referred to as “the Act”). This Act granted to all public employees the right to join or refrain from joining employee organizations (labor unions), and the right to conduct collective negotiations with public employers through majority representatives. N.J.S.A. 34:13A-5.3. The avowed purpose of the Act was to foster the prevention and prompt settlement of labor disputes in the public employment sector of the state. N.J.S.A. 34:13A-2. To that end, the Act authorized majority representatives to negotiate agreements with public employers on behalf of the employees in the relevant bargaining unit. N.J.S.A. 34:13A-5.3. It further required that the majority representative “be responsible for representing the interest of all such employees without discrimination and without regard to employee organization membership.” Ibid. 

The Act also established PERC, the Public Employment Relations Commission. N.J.S.A. 34:13A-5.2. This administrative body was granted exclusive jurisdiction over reviewing and adjudicating unfair labor practices, grievance arbitrations, and compulsory interest arbitration for public safety officers in the state of New Jersey. PERC was also authorized to make policy and establish rules and regulations governing employer-employee relations in public employment. N.J.S.A. 34:13A-5.2, -5.4.  Almost all labor disputes and aspects of public employment labor law is under the oversight of PERC, its administrative rules and regulations, and the New Jersey Employer-Employee Relations Act.  An association acting as the majority representative must be sure that it has leadership that is familiar with the inner workings of PERC but even more importantly, has counsel to call on that is familiar with public employment labor law. 

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