Civil Service Commission's Denial of Appeal Upheld

Posted on November 4, 2009 by Donald Barbati

 

On November 4, 2009, the Appellate Division decided In the Matter of Michael Curtin, Battalion Fire Chief (PM3593G), Elizabeth, Docket No.: A-4861-07T2. In the case, Michael Curtin appealed from the decision of the former Merit System Board (“Board”), now the New Jersey Civil Service Commission (“Commission”), denying his appeal of the scoring of his promotional examination as well as the Commission’s decision again denying the appeal following remand for consideration of supplemental information.

Curtin is employed by the Elizabeth Fire Department with the rank of captain. He took the Department of Personnel’s examination for the position of battalion fire chief, and received an overall score of 89.270. He was ranked third on the eligible list. He appealed the scoring of the oral portions of the examination to the Board. In a five-page decision dated October 11, 2007, the Board denied the appeal.

Curtis appealed to the Appellate Division. On April 14, 2009, in response to Curtin’s motion to supplement the record, the Appellate Division remanded the matter temporarily to the Commission, which had replaced the Board as of June 30, 2008, for consideration of the arguments raised in Curtin’s motion. Following its review of Curtin’s additional arguments and documents, the Commission issued its remand decision on August 20, 2009, again denying the appeal. As a result, the Court permitted Curtin to supplement his brief on appeal.

The Appellate Division noted that the burden is on a petitioner, not the Commission, when challenging the administration and scoring of examination. Moreover, when reviewing examinations, the Commission shall decide any appeal on the written record or such other proceeding as the Board deems appropriate. Finally, the Court indicated that courts should defer to an agency’s grading of a civil service examination except in the most exceptional of circumstances that disclose a clear abuse of discretion.

Applying these principles, the Court was satisfied that the Commission’s decision on the remand was not arbitrary, capricious, or unreasonable. The Commission duly re-evaluated the Board’s original decision in light of Curtin’s additional arguments and explained its reasons for disagreeing with his position. Moreover, the Court noted that it was not its role to second-guess the Commission with respect to the scoring of civil service examination and this case does not present “the most exceptional of circumstances that disclose a clear abuse of discretion” warranting such interference.

Tags: , , , , , , , , ,

MSB Promotional Examination Decision Upheld

Posted on May 8, 2009 by Donald Barbati

On May 7, 2009, the Appellate Division decided In the Matter of Steven Howe and Joseph Mufalli, Docket No. A-3512-07T1. In the case, Steven Howe appealed from the final administrative determination of the Merit System Board (“Board”), issued December 21, 2007, and its determination of March 13, 2008, denying his motion for reconsideration of the determination that Howe did not meet the experience requirements necessary to sit for the promotional examination for Chief Operating Engineer 2 of the Juvenile Justice Commission.

On appeal, Howe argued that “the administrative agency acted either arbitrarily or capriciously by finding appellant’s prior supervisory experience to be out of title,” whereas only one of the three applicants, Barry Schneider, who did the same work as appellant, was found to qualify for the exam. Howe further argued that the agency acted “arbitrarily and capriciously in its attempt to correct the ambiguous language in the job specification of operating engineer 1 and should have either negated the examination results or should have allowed all three applicants to sit for the exam.” 

After reviewing the entire record, the Appellate Division concluded that it could not disturb the findings of the Board because the Court must defer to the agency’s expertise in implementing civil service law. Although the Court noted the job description for operating engineer 1 is ambiguous regarding supervisory responsibilities and the Board directed that it be amended, the Court determined Howe did not provide evidence that he had supervised while in that position and, therefore, was not qualified to sit for the exam. As such, the Court found the Board did not act arbitrarily, capriciously, or unreasonably in not permitting him to take the examination.

 

Tags: , , , , , , , , ,

180 Day Bill Signed and Committed Into Law

Posted on March 12, 2009 by Frank Crivelli

On March 5, 2009, New Jersey Governor Jon S. Corzine signed and committed into law the “180 day bill” designed to expedite disciplinary proceedings when law enforcement officers and firefighters are suspended without pay by limiting the number of days pay can be suspended while hearings are still pending.

Corzine stated in a press release that "This bill provides a fair safeguard to law enforcement and fire services-a safeguard that is appropriate in light of their unique contribution to the state by risking themselves to protect others," said Governor Corzine. "We know that the fact-finding and deliberative process can take many months; and that this places a very heavy burden on people, who then must cope with extreme financial hardship caused by a protracted suspension of salary at a difficult and emotional time when their careers are, essentially, in limbo."

The bill, A3481/S1336, was signed during the Police Benevolent Association Mini Convention in Atlantic City. For a full review and analysis of the “180 Day Bill”, please review our blog post of February 4, 2009 entitled, Legislative Proposal Seeks To Provide Law Enforcement Officers Pay Status When Appeals of Termination Are Not Resolved In 180 Days.

 

Tags: , , , , , , , ,

Police Promotion Discrimination Suit Dismissed

Posted on March 4, 2009 by Frank Crivelli

 On February 9, 2009, the United States District Court for the District of New Jersey decided the case of Martin v. City of East Orange. In the case, plaintiffs, two police officers, alleged that in failing to promote them in 2003, when officers ranked below them were recommended for promotion, although not promoted, the defendants discriminated against them in favor of officers more politically favored in violation of 42 U.S.C. §1983, the federal and state constitutions, and the New Jersey Law Against Discrimination. 

The Court dismissed all of plaintiffs’ federal claims. The Court held the officers had no constitutional right to promotion and they failed to produce any evidence of political favoritism or retaliation for having complained about being improperly bypassed for promotion. Further, the Court declined to assert subject-matter jurisdiction over the state law claim, thereby not addressing those issues. 

This case illustrates the importance of producing credible, substantive evidence in support of a claim alleging that one was improperly bypassed for promotion. It is vital that any public safety officer who seeks to assert such a claim should consult with a qualified attorney who is able to produce such competent evidence or determine whether such evidence exists so as to avoid the pitfalls present in this matter. Without the necessary proofs, such a claim will likely fail, as articulated by the Court in this case.

 

Tags: , , , , , , , , , , , , , , , ,

Legislative Proposal Seeks to Provide Law Enforcement Officers Pay Status When Appeals of Termination Are Not Resolved Within 180 Days

Posted on February 4, 2009 by Frank Crivelli

 

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.

 

Should a final determination of the discipline not be rendered within those 180 days, the proposal states that the officer shall, commencing on the 181st calendar day, begin to receive the base salary he/she was being paid at the time of the suspension and shall continue to do so until a final determination on the termination is rendered. Simply put, this addition to the statute would allow officers who are suspended without pay to begin collecting their base pay once again if the appeal of their termination is not resolved within 180 days. It goes without saying that this addition helps to alleviate the problem many officers find themselves in currently, namely being economically starved for an extended amount of time while trying to challenge their removal from employment.    

The proposal also instructs how the 180 day period should be calculated. While the 180 day period seems to be a favorable time period for the officers, it is important to note that this time period might be significantly extended and keep an officer without pay for a period much larger than 180 days. For example, time periods such as: (1) the period between an officer’s termination and the date on which his/her appeal is filed; and (2) the days that accrue during a postponement, should an officer have requested one, will not toll the 180 day period. Therefore, it is imperative that New Jersey public safety officers become intimately familiar with the events which can extend the 180 day time frame should this bill be accepted into law. That way, the officers can maximize their resources efficiently so as to ensure the time frame without pay remains as close to the 180 days as possible.

Next, it is important to note that if the Civil Service Commission denies the officer’s appeal, the officer will be required to reimburse his employing agency or department all of the base salary received during the period of the appeal. Put another way, if an officer has been receiving his base salary after the 180 day period expired and he/she ultimately loses, the officer has to pay all the monies he or she has received. Moreover, the proposal provides that if an officer fails to reimburse the employing agency for the payments, the employing agency may obtain a lien for those amounts on any property and income of the officer, including the officer’s pension, sick and vacation leave to which the officer is entitled.

Finally, the bill directs the Director of the Office of Administrative Law to establish a special unit, known as the Law Enforcement and Firefighter Unit, to deal with removal cases. The unit will be made up of Administrative Law Judges who are qualified and experienced in disciplinary matters and cases which fall under the purview of this statute. As a result of the establishment of this unit, the Office of Administrative Law will be better able to adhere to the 180 day time frame which will, potentially, result in quicker resolutions than what is currently being experienced for all parties involved.

Based on our review of these proposals, I am of the opinion that while many of the proposals are favorable to New Jersey public safety officers, the benefits are somewhat misleading. I believe the Legislature in: (1) installing a deadline for resolving cases regarding the termination of an officer; (2) allowing the officer to regain pay status when appeals are not resolved within that deadline; and (3) establishing the Law Enforcement and Firefighter Unit addresses a number of important concerns, namely forcing these types of cases to be resolved in an expedited fashion and allowing officers certain financial alleviation should an appeal persist for an extended amount of time.

However, (1) the various ways in which the 180 day deadline could be significantly extended; (2) the provision providing reimbursement to the employment agency in the event the appeal is unsuccessful; and (3) permitting a lien on an officer’s property to include his/her pension, severely undermines many of the advantages of the bill. Therefore, it is important that, if this bill passes, officers are mindful of what it specifically includes, excludes, and requires by way of affirmative action on the part of the member or association. Our office will keep apprised of the bill’s progression through the Legislature so make sure to check this blog periodically to ascertain any updates.
Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

Officer's Resignation Not Attributed to Duress, Upheld

Posted on January 21, 2009 by Frank Crivelli

 

In In the Matter of Thomas F. Fricano, Borough of Freehold, Docket No.: A-2280-07T3, the Appellate Division addressed Appellant Thomas Fricano’s appeal from final decisions of the Merit System Board (“Board”), dated September 27, 2007 and December 7, 2007, upholding his resignation in good standing from the Borough of Freehold Police Department.

By way of background, Fricano received a regular appointment as a police officer in Freehold on April 3, 2006. The appointment was subject to the successful completion of a one-year probationary working test period, commencing after completion of a police training course. On February 2, 2007, Fricano, in a written letter, resigned to pursue other opportunities in law enforcement. The appointing authority accepted the resignation, which was made effective February 22, 2007. 

The circumstances surrounding Fricano’s resignation are in dispute and at the core of the appeal. According to Fricano, on February 2, 2007, after having served ten months of his one-year probationary working term, he was summoned to the office of the Police Chief. Allegedly, the Chief ordered Fricano “to resign or be terminated immediately.” Denied his request for legal representation or to have a PBA representative present, Fricano drafted and submitted a letter of resignation under duress and coercion. Thereafter, on February 16, 2007, Fricano’s counsel wrote to the Chief requesting that he be able to rescind the resignation. The Borough attorney advised Fricano that he would not be reinstated, instead stating that “they could have fired him instead.” Subsequently, on March 13, 2007, Fricano was issued a preliminary notice of disciplinary action, charging him with numerous violations. On March 22, 2007, the appointing authority withdrew the charges and, thereafter, on March 28, 2007, issued Fricano a letter indicating that he did not satisfactorily complete his working test period and that he was being terminated effective April 3, 2007.

The Borough offers a different version. When called to his office, the Chief advised Fricano that his performance during the working test period had not been satisfactory, and, therefore, offered him the option to resign effective February 22 or face termination for failure to satisfactorily complete his working test period. This offer was made so that Fricano could avoid any stigma which might attach to an involuntary termination. Fricano decided to resign and submitted a resignation letter the same day. In the letter, Fricano explain that he resigned to pursue “a different choice in the Law Enforcement Career.” Although he did not work after February 2, he was paid through February 22, and his resignation was recorded effective February 22, 2007. After being subsequently informed of Fricano’s intention to challenge his resignation, the police department issued the preliminary notice of disciplinary action on March 13, 2007. On March 22, 2007, the police department withdrew the charges and, instead, as a cautionary measure, issued a letter to

 

Fricano informing him that he had not successfully completed his working test period. 

Thereafter, Fricano filed an administrative appeal challenging his resignation. In a September 27, 2007 decision, the Board upheld the resignation, finding insufficient evidence that Fricano’s resignation was the product of duress or coercion. This appeal followed.

The Appellate Division affirmed the Board’s finding that Fricano voluntarily resigned his position. The Court determined there was sufficient credible evidence that Fricano was told he would be terminated because he had not satisfactorily performed during his working test period. Moreover, the Court found that Fricano voluntarily chose to accept the offered opportunity to resign to avoid any stigma attached to termination. According to the Court, Fricano’s deliberate choice of available alternatives cannot, under the circumstances of this case, be ascribed to duress.
Tags: , , , , , , , , , , , , , , , , , , , , ,