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

 

In the case of In the Matter of Carpenito, Sergeant Vincent Capenito appealed a final agency decision dismissing him from the Division of State Police. The Appellate Division sustained Carpenito’s dismissal and rejected his contention that the policy of progressive discipline required a less severe sanction.

On March 24, 2006, Carpenito was charged with five disciplinary infractions of the rules and regulations of the Division of State Police. The case was eventually transferred to the Office of Administrative Law as contested matter. A seven day hearing was conducted by an administrative law judge (“ALJ”), who issued an initial decision finding Carpenito guilty of the charges against him and recommending his termination of employment. Thereafter, Colonel Joseph Fuentes, Superintendent of the State Police, adopted the findings of the ALJ and dismissed Carpenito from the Division. This appeal followed.

On appeal, Carpenito argued: (1) there was insufficient evidence to support the findings that he engaged in conduct that warranted discipline; and (2) the sanction of dismissal was inconsistent with the general policy of progressive discipline. The Court, in rejecting Carpenito’s arguments, found that the Superintendent’s determination that Carpenito left his post while on duty and lied to investigators was based on Carpenito’s own admissions and, therefore, Carpenito’s contention that he was denied his right to cross-examine his wife because of her invocation of her Fifth Amendment right was of no consequence. 

Moreover, the Court found the Superintendent was entirely justified in terminating Carpenito’s employment due to the seriousness of the misconduct. The Court held that the Superintendent properly: (1) recognized that some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished record and; (2) considered Carpenito’s prior disciplinary history and numerous occasions of alleged domestic disputes. As a result, the Court determined the application of progressive discipline was not appropriate in light of Carpenito’s egregious conduct.

This case illustrates an instance of where a general policy of progressive discipline will not be adhered to by a public employer. Should a disciplinary infraction be very serious in nature, a policy of progressive discipline can and will be abandoned so as to ensure a proper disciplinary response. This outcome should be noted by all public safety officers who intend to rely upon their employer’s policy of progressive discipline when contesting a disciplinary action. The seriousness of the misconduct, along with prior disciplinary history, may be used to circumvent a policy of progressive discipline and, therefore, may impose more serious consequences upon an officer than originally anticipated.  

         

         

 

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In State v. Thompson, A-2279-07T4, the Appellate Division held that a violation of the Conflicts of Interest Law and a code of conduct adopted pursuant thereto is not a sufficient basis for criminal prosecution for official misconduct.

In the case, the State appealed from an order dismissing 36 counts of a 42 count indictment. Thirty two counts charged six Treasury employees and two employees of OSI Collection Services, Inc., a vendor selected by the State, after competitive bidding, to collect tax deficiencies and delinquencies, with official misconduct. Four counts charged two of the State employees and the OSI employees with engaging in a pattern of official misconduct.

Twenty eight of the counts can be grouped into fourteen pairs. One count in each pair charged the State employee(s) and an OSI employee, as an accomplice, with the receipt of a benefit, including meals, entertainment, spa treatments and golf outings. The other count charged failure to report the receipt of the benefit to the appropriate ethics authority. In large part, the State relied on the Department’s Code of Ethics as the source of the duty allegedly breached.

Four counts also charged official misconduct when State employees failed to recuse themselves from the process involving an allegation of improper billing by OSI, the extension of OSI’s contract, selecting the committee that evaluated the bids, determined the winning bidder, and setting conditions on the bid that presumably gave OSI a competitive advantage in violation of N.J.S.A. 2C:30-2a.

The Appellate Division, in affirming the dismissal of the receiving and failure to report counts, held that reliance on a violation of the Conflicts of Interest Law alone does not set forth a basis to impose criminal sanctions under the official misconduct statute as the imposition of criminal sanctions does not follow from a simple conflict of interest. There must be some additional allegation of wrongdoing. 

Considering the case law regarding official misconduct, the Court concluded that the imposition of criminal sanctions does not follow from a simple conflict of interest. Culpability is not based on the receipt of a gift in the absence of some additional allegation of wrongdoing. The Conflicts of Interest Law does not set forth a basis for criminal liability under the official misconduct statute. Although it sets forth the ethical obligations of State employment, its terms are not self-executing and do not proscribe any conduct. 

The Court also noted that the Conflicts of Interest Law and Code of Ethics apply to all employees in the Department, providing general and generic rules. However, official misconduct requires an alleged failure to perform a duty specifically required of the defendant’s office. Moreover, the Conflicts of Interest Law does not provide sufficient notice that the unreasonable appearance of impropriety may lead to a defendant’s conviction of a crime.

         

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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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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 the case of Leek v. New Jersey Department of Corrections, 33-2-0497, a Senior Corrections Officer appealed the New Jersey Department of Personnel, Merit System Board's decision to uphold the Department's issuance of a thirty (30) day suspension for violation of the Department's internal rules and regulations and conduct unbecoming a public employee.  The case revolved around the conduct of Leek who repeatedly attended court hearings in uniform with a criminal defendant that was free on bail but had previously been a county jail inmate.  Leek further wrote a letter that identified himself as a Senior Corrections Officer and asked for leniency on behalf of the defendant. 

In defense of his actions Leek stated that he was acting in his capacity as an ordained minister and spiritual adviser on behalf of the inmate.  Leek never informed the Department or his superiors of his conduct and failed to request permission to appear on behalf of a defendant facing criminal charges in a New Jersey Court of Law.

Despite Leeks arguments that were based on his First Amendment rights, the New Jersey Superior Court, Appellate Division agreed with the Merit System Board that upheld the thirty day suspension imposed by the New Jersey Department of Corrections.  In summary, while Public Safety Officers do garner protections under the First Amendment of the United States Constitution, they can not call upon these protections when their actions are detrimental to their employer, public perception, and their sworn law enforcement duties. 

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          Achieving the desired level of discipline within a law enforcement unit is among the most important responsibilities of the law enforcement executive, and the governing body. Yet this is one of the most frequently neglected processes within many law enforcement agencies. This will be first of a series of Blog posts that concentrate on the public employee disciplinary process as promulgated by the New Jersey Department of Personnel under Title 4A of the New Jersey Administrative Code. Having a firm grasp of the disciplinary process is critical to the well being of all Public Safety Officers. Please take your time in reading these posts as they pertain directly to the security of your employment and the means that you support yourself and your families.

          The word “discipline” was originally defined by the courts as “instruction”, “teaching” or “training”. However, its meaning and the use of discipline has shifted toward a concept of control through punishment. This emphasis on control has resulted in discipline being viewed as a negative threat to employment rather than a mechanism for remediation and improvement. Too frequently rules of conduct and disciplinary procedures are used as an end in themselves, and their purpose in reaching departmental goals is forgotten.

          Focusing on the negative aspects of discipline diminishes morale and productivity. The first step that should be used toward positive discipline is to emphasize instruction and de-emphasize control. This requires the law enforcement executive to focus on organizational practices. Unfortunately in today’s world of public employment, this is rarely the case.

          In exercising appropriate discipline, the executive must first define the goals and objectives of the agency's units, and then announce management's expectations to guide the units toward the realization of those goals. The law enforcement executive must establish a means to monitor performance and to correct improper actions. This approach to management as it relates to discipline insures that all subordinates know and understand what must be done, why it must be done, how it must be done, and when it must be done.

          Employees must be clearly told what constitutes satisfactory performance, non-satisfactory performance, and how non satisfactory performance can lead to appropriate discipline. In addition, supervisors and managers must know when and how to take necessary corrective action. To achieve these goals, management must establish workable procedures for documenting all expectations and advising individuals of their duties and responsibilities.

          There are numerous levels of discipline under the rules and regulations of the New Jersey Department of Personnel to include:

• Official Written Reprimand;
• Fine;
• Minor Suspension (1 to 5 days);
• Major Suspension (6 to 180 days); and
• Termination

          In our next post we will discuss the various levels of discipline that is recognized under 4A, and the concept of progressive discipline under the New Jersey Administrative Code.

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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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This is the second entry drafted by Michael P. DeRose concerning the utilization and implementation of Weingarten rights by New Jersey Public Safety Officers.

Subsequent to the invocation of Weingarten Rights by a New Jersey Public Safety Officer, the supervising authority conducting the interview must:

• cease questioning until the union representative arrives;
• cancel or postpone the interview; or
• inform the subject of the interview that the interview will be called off unless the subject voluntarily waives his or her right to union representation.

In this situation, the union representative serves many vital functions when present at an investigatory interview. First and foremost, the union representative is to meet and speak privately with the officer or first responder subject to the interview prior to its commencement. It is at this meeting coupled with information gathered from administration that the union representative should ascertain the charges against the union member and advise he or she how to answer questions posed by the authority conducting the interview. It is important to remember that under Weingarten the interviewing party must advise the union representative of the purpose and subject of the investigatory interview.

The union representative may also object to questions or tactics he/ she deems inappropriate or coercive that are utilized by the individual conducting the interview. Finally, at the conclusion of the interview, the union representative can offer mitigating circumstances to the employer or the authority conducting the interview, investigate leads, offer information to support the interviewee’s case and question the interviewee to either clear up information that has been provided or provide new information if needed.

Under Weingarten, the functions of the union representative at the investigatory interview does not exceed those set forth above. The union representative cannot dictate verbatim how the officer or first responder should answer questions posed in the interview. The representative can make assertions regarding the investigation; however, the authority conducting the interview has no obligation to take note of these assertions and can in fact ignore them. Furthermore, the authority conducting the investigatory interview has no duty to bargain with the union representative concerning any aspect of the investigation.

In conclusion, the single most important element for any New Jersey Public Safety Officer to retain pursuant to reviewing this blogosphere article is the importance of invoking one’s rights under NLRB v. Weingarten. The invocation of one’s Weingarten rights should be as follows:

• “If this discussion could in any way lead to my being disciplined or terminated, or affect my personal working conditions, I request that my union representative be present at this meeting.
• Without representation, I choose not to answer any questions.
• This is my right under a Supreme Court decision called N.L.R.B. v. Weingarten.”

The Law Offices of Arpaia & Crivelli, L.L.C. has had durable plastic cards constructed that contain a Public Safety Officer’s Weingarten Rights. These cards are the exact size of a credit card and should be carried in the wallet or billfold of every New Jersey Public Safety Officer at all times. These cards are free of charge to any Public Safety Officer that would like to ensure that they are protecting their rights. You can obtain a card for yourself or your entire department by calling 609-890-1900. Take advantage of this offer. There are not too many things that are free any longer in today’s world.

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This particular post was drafted by Michael P. DeRose. As stated in a previous post, Michael is a paralegal employed with the Law Offices of Arpaia & Crivelli, L.L.C. Michael will be leaving the office in August, 2008, for purposes of attending Law School in Michigan. While we are very sad to see him leave, we are excited that he has the opportunity to further his education and pursue his dream of becoming attorney. We look forward to his return as a law clerk in the summer of 2009, and truly wish him the very best in law school. 

This is the first of two posts centered on the case of NLRB v. Weingarten, 420 U.S. 251 (1975).

The brave men and women who comprise the long list of New Jersey Public Safety Officers should maintain a solid foundation of knowledge in regard to the rights they possess within the institutions where they are employed. As such, a brief discussion of Weingarten Rights is in order.

The United States’ Supreme Court case known as NLRB v. Weingarten solidified the notion that unionized employees possess the right to obtain union representation during investigatory interviews. This principle applies to both private employee collective bargaining units and public employee collective bargaining units. “Investigatory interviews” as defined under Weingarten can pertain to criminal issues or departmental matters which may lead to discipline. However the invocation of Weingarten rights only applies to investigatory interviews conducted by a supervising authority within the organization where the subject of the interview is employed.  

In particular to Public Safety Officers, investigatory interviews are regularly conducted by agents of an Internal Affairs Department or the Special Investigations Division of their respective organizations. Simply stated, an investigatory interview occurs when a supervising or investigatory authority questions a subordinate to obtain information which could be used as a basis for discipline. The supervising authority is also engaged in conducting an investigatory interview when they ask a subordinate to defend his or her conduct in a formal setting. Weingarten rights only apply to NJ Public Safety Officers who face the possibility of undergoing an investigatory interview.

It is both necessary and essential for law enforcement personnel and first responders to detect when a potential interview qualifies as “investigatory.” An important question to ask one’s self when uncertain of whether the interview is “investigatory” is: “could this interview or its fruits possibly lead to disciplinary action?” If the Public Safety Officer being questioned reasonably believes that the answer to this question is yes, he or she is entitled to have union representation present at the meeting before a question is posed. Also, it is important to note that the supervising authority conducting the investigatory interview is not compelled to advise the subject of his or her Weingarten rights. This is a common misconception that merits mention. It is the responsibility of the Public Safety Officer being questioned to invoke Weingarten to ensure representation is present during the investigatory interview. In the next post we will discuss Weingarten in more detail, and the effect of invoking the rights during an investigatory interview.  

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