Correction Officer Recruit Trainee Pilot Demonstration Program Declared Void

Posted on July 28, 2009 by Frank Crivelli

 

On July 23, 2009, the Superior Court of New Jersey, Appellate Division issued its opinion in the case of James Liik, et al v. New Jersey Department of Personnel/New Jersey Department of Corrections, Docket Number A-4121-06T2.

This particular opinion has widespread implications in regard to pay and seniority of thousands of New Jersey corrections officers presently employed with the New Jersey Department of Corrections.

By way of background, in 1997, the New Jersey Department of Corrections and New Jersey Department of Personnel created and implemented a pilot program which modified training procedures for corrections officer recruits. Prior to the implementation of the pilot program, candidates for employment with the Department of Corrections were hired as employees and assigned the rank of “correction officer recruit” during their period of training and completion of their working test period. During this time, corrections officer recruits received full salary and benefits available for this particular rank. Once the working test period associated with the position of corrections officer trainee was successfully completed, they were then promoted to the position of senior corrections officer. The pilot program eliminated this practice and those individuals seeking employment with the New Jersey Department of Corrections were designated as “students/trainees.”

As a result of this change, they were no longer considered employees of the New Jersey Department of Corrections, but instead received the lesser rank of corrections officer recruit/trainee during the 14-week training period. During this 14-week training period, instead of receiving the regular salary of a corrections officer recruit, they received a $300 weekly stipend. If a recruit trainee successfully completed the prescribed program of training, they then became “employees” of the New Jersey Department of Corrections and received the salary and benefits of a corrections officer recruit. Despite the fact that the program was to last for only a period of one year, the New Jersey Department of Corrections and Department of Personnel made the program permanent in 1999. A stipend of $300.00 that was to be paid to student trainees never increased over the following years and a significant financial burden and hardship was placed upon those individuals seeking employment with the New Jersey Department of Corrections.

 

Sometime in 2007, PBA 105, the Certified Collective Bargaining Unit for Senior Corrections Officers employed by the New Jersey Department of Corrections, demanded that the Department of Personnel raise the stipend and terminate the pilot program which had been ongoing since 1997. The Department of Personnel and Department of Corrections refused their demand. As a result, an appeal was filed by the PBA challenging the Department of Corrections and Department of Personnel’s decision to continue the pilot program beyond the one year period of time.

The Superior Court of New Jersey, Appellate Division sided with PBA 105 and stated that the Civil Service Act provided that “pilot programs” may only be established and put into place for a period of one year. The Appellate Division went on to further state that if a pilot program was continued past the one year period of time, the Department of Personnel was required to issue rules and regulations allowing for such an extension under Title 4A of the New Jersey Administrative Code.

As a result of the Department carrying the program past the one year period of time, the Appellate Division declared that the continuation of the pilot program beyond the one year period of time without engaging in the rulemaking process as required by the New Jersey Administrative Procedure Act, declared the program null and void. While the Appellate Division’s decision is clear, we do not know what the New Jersey Department of Corrections or New Jersey Department of Personnel will do in regard to appealing the Appellate Court’s decision. Furthermore, we are also unsure as to whether or not the Department of Corrections will abide by the Appellate Court’s ruling and now treat those employees of the New Jersey Department of Corrections as corrections officer recruits and not recruit trainees.

Finally, a large issue looms on the horizon as to whether or not those individuals went through the corrections officer recruit training program as “students/trainees” will be entitled to back pay and benefits and a change in seniority date as a result of the ruling.

When more information is gathered from the unions as to how they will represent their members on this matter, we will update you accordingly.
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Termination of Middlesex County Sheriff's Officer Upheld

Posted on April 28, 2009 by Donald Barbati

On April 28, 2009, the Appellate Division decided In the Matter of Joan Ivan, Docket No.: A-1070-07T2.  Following a hearing conducted on April 15, 2003, appellant, Joan Ivan (“Ivan”), a Middlesex County Sheriff’s Officer, was suspended for thirty days as the result of disciplinary charges stemming from her alleged failure to truthfully report smoking by a fellow officer while in an official vehicle. In contrast, the officer committing the prohibited offense, after pleading guilty, was given a four-day suspension that could be served use of vacation days. Ivan appealed to the Merit System Board on May 16, 2003.

Thereafter, on August 22, 2003, Ivan was terminated when, in nine attempts over three days, she was unable to requalify for use of her service weapon. She appealed on September 12, 2003 and she filed an order to show cause on September 19, 2003, in which she contended that the Sheriff’s Department had violated her right to due process of law as the result of its failure to conduct a hearing prior to termination. The Department reinstated Ivan and served her with a preliminary notice of disciplinary action on September 29, 2003. Following a hearing on September 30, 2003, Ivan was served, on October 14, 2003, with a final notice of disciplinary action removing her from her position.

The two matters were referred to the Office of Administrative Law for a hearing, where they were consolidated for that purpose without objection. Following the hearing, at which testimony was given by numerous witnesses, the Administrative Law Judge (“ALJ”) recommended dismissal of the charge leading to Ivan’s suspension, but affirmance of the termination decision. No attorney’s fees were awarded. The Merit System Board adopted the ALJ’s decision, and this appeal followed. On appeal, Ivan challenged the Board’s failure to award counsel fees in connection with her appeal from the thirty day suspension, and she challenges the Board’s adoption of the ALJ’s findings with respect to her termination and the ALJ’s legal ruling with respect to the admissibility of expert testimony in connection with her termination.

The Appellate Division affirmed the Merit System Board’s determination in its entirety. Specifically, the Court rejected Ivan’s arguments that: (1) she was given insufficient opportunity to qualify with her weapon; (2) the ALJ should have admitted the testimony of her firearms qualification expert; and (3) she was entitled to counsel fees on her successful appeal from her suspension. After reviewing the decision of the ALJ and the Board in detail, the Court determined the Board’s action was supported by sufficient, credible evidence in the record as well as well-established statutory law and, therefore, was not arbitrary, capricious, and unreasonable.

 

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Civil Service Commission to Hold Public Hearings on New Jersey State Employee Furloughs

Posted on April 21, 2009 by Frank Crivelli

As posted on the website for the New Jersey Law Enforcement Supervisors Association, at 6:00 p.m. on Thursday, April 23, 2009, the New Jersey Civil Service Commission will hold a public hearing on the new rules authorizing the unilateral imposition of involuntary, unpaid furloughs, or temporary layoffs affecting public employees.  The meeting will be held at the National Guard Armory located at 151 Eggert Crossing Road, Lawrenceville , NJ. 

If you wish to be included on the list of speakers, please call Elizabeth Rosenthal at (609) 984-7140.  All written comments regarding the new rule must be submitted by May 6, 2009, addressed to the following:

Henry Maurer, Director

Merit System Practices and Labor Relations

Civil Service Commission

P.O. Box 312

Trenton, NJ 08625-0312

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Various Unions Seek to Block Institution of Furlough Program

Posted on March 31, 2009 by Frank Crivelli

 

Four New Jersey unions are asking a court to stop mandatory furloughs of public workers. Yesterday, March 30, 2009, the New Jersey Policemen’s Benevolent Association and the Communication Workers of America, which collectively represent 93,000 police officers, firefighters and rank-and-file state and municipal workers, filed separate actions in the Superior Court of New Jersey, Appellate Division. The Probation Association of New Jersey and the Firemen’s Benevolent Association also filed similar suits. The actions seek to block a new Civil Service Commission rule giving the Governor and local governing bodies emergency power to impose temporary layoffs because of the economic crisis.

As stated in a previous blog entry, Governor Corzine and the State of New Jersey intend on instituting a mandatory furlough program, which requires various State of New Jersey employees to absorb unpaid days of absence from their position of employment. Initially, the mandatory furlough program requires certain State employees to absorb two (2) unpaid days of absence from the workplace, specifically one day each in May and June 2009. Thereafter, the State seeks to extend the mandatory furlough program into Fiscal Year 2010, whereby certain State employees are to absorb twelve (12) unpaid days of absence from the workplace, one day each month for the entire fiscal year.

To accomplish this goal, on March 25, 2009, the Civil Service Commission adopted, on less than 24 hours notice, a new, emergency rule, N.J.A.C. 4A:8-1.1, to permit “temporary layoffs,” or furloughs, for both State and local employees. The Commission did so without any notice to the parties who would be immediately affected by this action and without an opportunity to discuss the proposed rule. It is this rule which is being challenged by the various unions.

It goes without saying these lawsuits are of vital importance to any law enforcement officer, firefighter, and State of New Jersey employee. The outcomes of these actions might very well have a drastic impact not only on any and all State employees, but the public at large. As a result, please consult this blog periodically to ascertain updates regarding the status of these lawsuits.      

  

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