New Jersey Public Safety Officers Law Blog : New Jersey Public Safety Employee Lawyer & Attorney : Pellettieri, Rabstein & Altman Law Firm : Workers Compensation, Discipline Representation for Police & Firefighters : New Jersey

As reported by nj.com, with a flood of retirements, the sluggish economy, and a governor intent on shrinking the size of government, the number of public workers in New Jersey has dropped to its lowest level in eight years, a Star-Ledger analysis shows. New Jersey shed about 29,100 state and local government jobs during Governor Chris Christie’s first 19 months in office, trailing only New York and California in the total number of public sector jobs lost, according to federal labor statistics.

The latest figures, released earlier this month, show the state has fewer public employees-from police and teachers to college administrators and state workers-on the payrolls than at any other point since September 2003. In fact, New Jersey’s sizable decline accounts for more than 8 percent of the 357,100 public sector jobs lost in states across the country since January 2010, the month Christie took office.

The loss of public sector jobs comes as New Jersey’s post-recession economy continues to struggle, translating into a 9.5 percent unemployment rate that is 13^th highest in the nation. In recent months, Christie has recast the unemployment rate-a critical yardstick for governors-saying it’s more a measure of his success than his failures. He said the stubbornly high jobless figure is an unavoidable consequence of his mission to shrink the size of government in New Jersey.

But economists and critics argue that Christie’s outlook ignorers how the loss of so many jobs, regardless of their origin, threatens the state’s broader economy. In January 2010, there were 590,200 employees on public payrolls in New Jersey. But that has dropped by more than 5 percent, the fifth highest percentage decline in the nation. In the same time period, the total number of jobs in New Jersey-accounting for gains in the private sector and losses in public jobs-rose by 20,300. That ranks New Jersey behind 38 other states in percentage of job growth. Christie’s critics say he may have been successful at shrinking government, but he has failed to expand the economy and provide new employment opportunities.

“In previous times, the decline in public sector jobs hit administration, but these last two years we are seeing a dramatic dip in police, fire, and EMS employees because the state aid was cut,” said William Dressel, executive director of the New Jersey League of Municipalities. Police and firefighters across the state have reacted with anger, framing the issue as a matter of public safety. “Our members are being asked to do their job without the manpower necessary to get things done. And at any given time, we can go to work and not come home,” said Dominick Marino, president of the International Association of Firefighters of New Jersey.

The city of Trenton is preparing to layoff 108 officers, which union officials there say would put staffing at 1930s levels.

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As reported by nj.com, a Democratic state senator said that Governor Chris Christie is looking into eliminating the Division of Fire Safety, which is responsible for enforcing the state fire code, education programs, and firefighter training. In a news release criticizing the plan, Senator Jim Whelan said the administration wants to divide the duties of the office across state government, though the discussions have not been made public. 

The governor’s office declined to comment, and referred questions to the Department of Community Affairs, which oversees the Division of Fire Safety. Hollie Gilroy, a spokeswoman for the department, did not dispute that such a move was under consideration, but said no decisions have been made.

“Reorganizations are always discussed, but those considerations are preliminary and no decisions have been made,” Gilroy said in an email. “As we consider increasing efficiencies and decreasing redundancies in government, the number one priority will always be the people the Department is charged with protecting and serving.”

Whelan called on the Christie administration to disclose more details about eliminating the office and to conduct the planning in public. “The Christie Administration needs to answer some questions about their proposal and any further discussions on it should be done in public,” Whelan said in a statement. 

Dominick Marino, president of the Professional Fire Fighters Association of New Jersey, said he is concerned that discussions are taking place about disbanding an agency that is crucial to the public’s safety. In addition to investigating large fires or firefighter injuries, he said the division provides a centralized location for municipalities to contact the state.

“The Division of Fire Safety is a very valuable division for the fire services, for both paid and volunteer,” Marino said. “We all know what happens when you divide things in state government, they get lost in the shuffle and the fire service will be hurt by that.”

Whelan, a former mayor of Atlantic City, said it does not appear to him that eliminating the office will be getting rid of redundancies. “As a former mayor of an urban area, I can attest to the importance of coordinated firefighting and investigative efforts,” Whelan said. “The division often plays a crucial component in those areas. I will await to hear the administration’s response, but I fail to see the logic of this proposal.”

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As reported by nj.com, municipalities hiring from a civil service list have to give a “legitimate” reason for skipping over a candidate in favor of one who placed lower in test ranking, the state Supreme Court ruled yesterday.

The 4-2 decision reverses a practice that labor experts said had given too much power to hiring authorities who in the past gave vague reasons for bypassing qualified candidates in favor of family members or those with political connections.

The court ruled in the case of Nicholas Foglio, who was skipped over for a firefighter’s position in Ocean City in 2007. In hiring three firefighters that year, the city picked a bartender and a lifeguard over Foglio, an eight-year volunteer fireman and emergency medical technician in several communities, despite his higher ranking on the civil service test.

The city initially cited the other candidates’ better educational background, but Foglio had the relevant firefighter educational experience. The city then said the other candidates performed better in their interviews, but city officials could not produce any notes or a list of standard questions they asked all the candidates. Finally, the city said the other candidates “best met the needs” of the fire department. The Civil Service Commission upheld the city’s finding, saying it was Foglio’s obligation to prove the city had improper motives, such as age or gender discrimination, in selecting others. An appeals court agreed.

However, the Supreme Court said a “boilerplate” reason is insufficient and the city was obligated to provide to the state Department of Personnel a statement of “legitimate” reasons why Foglio was not selected. “In the absence of such reasons, the appointment is presumably in violation of the principles of merit and fitness and it is the city that bears the burden of justifying its actions,” Justice Virginia Long wrote for the majority.

Dissenting Justices Jaynee LaVecchia and Helen Hoens said the ruling creates a “new rigidity” in hiring practices where the appointing authorities ought to have some discretion to appoint from the top three candidates.

Ocean City’s solicitor, Dorothy McCrosson, declined to comment on the case. She said many of those officials involved in the selection process in 2007 no longer work for the city. The city now has to decide whether to give Foglio a legitimate reason for why he was skipped or it has to give him a job on the fire department.

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As reported by trentonian.com, Trenton firefighters are bracing for a major shake-up and legal battle as the State of New Jersey encourages Mayor Tony Mack’s administration to institute a restructuring plan that fire department insiders say violates the firefighters’ contracts and may force unions to go on the offensive.

The plan calls for the creation of a rank the Trenton Fire Department (“TFD”) never had before, lieutenant, bringing back the rank of deputy chief, which the TFD had before it was eliminated to make way for a director position, and eliminating the rank of captain. Currently, the TFD has three ranks, firefighter, captain, and battalion chief, and a director. The restructuring plan calls for the ranks of firefighter, lieutenant, battalion chief, deputy chief and a director. All but a few captains, who will be promoted to battalion chief, will have their titles changed to lieutenant and will receive up to a 15 percent pay decrease. 

The Mack administration is referring to the change of title as a “demotion,” but the firefighters don’t see it that way. “It is not a demotion because with a demotion they wouldn’t be able to change your pay,” a firefighter who requested anonymity said. 

Creating a new rank would also mean creating a new pay scale for that rank. Per contract, salaries are “mandatory negotiable,” meaning the Mack administration would have to negotiate the salary with firefighter unions and that the unions have a say in the pay scale dimensions, the Mack administration cannot arbitrarily impose a pay scale.

Or can they? That’s the question a judge may have to answer in the near future. According to TFD sources, Mack is not honoring a contractual stipulation that 45-day notice be given to firefighters who face layoff, demotion or any other major change in their public employment.

Last year, firefighter Union 206 offered a concession to Trenton that no union in this history of New Jersey has ever offered a municipality. They offered “straight-time overtime,” meaning that firefighters would be paid their regular hourly wage no matter how many hours they work. The union says that could have saved the City of Trenton $2.5 million since the time that it was turned down last year. In a recent memo distributed by Fire Director Qareeb Bashir, the City is now asking the union for another shot at that concession, on top of restructuring.

The plan is being instituted at the behest of former Irvington fire chief, Donald Hubert, who has become the state’s point-man on municipal fire companies. Union members said they would be fine with the straight-time overtime concession, but not the 15 percent pay decrease and rank restructuring the plan entails, which means the issue could likely end up in a courtroom.

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As reported by nj.com, when William Stephens ran for Mayor of Edison in 2005, township firefighters supported his opponent Jun Choi, who won. Firefighters claims Stephens never forgot. Four years later, then-Councilwoman Antonia Ricigliano defeated Choi, took office and appointed Stephens as her management specialist. 

In a federal court suit filed last week, firefighters say they have been targets of political payback from Stephens through policies he imposed to cut shifts and reduce firefighters’ assignments. The firefighters’ union, and three firefighters, filed suit naming Ricigliano, Stephens, assistant public safety director Richard Laid, and recently fired business administrator Dennis Gonzalez.

“Defendants have consistently imposed penal policies on the fire department in retribution for (firefighters) political opposition to Stephens,” as well as firefighters’ criticism of the administration’s policies, the suit states. Stephens denies the retribution claim and said charges were made to cut costs.

When Ricigliano ran for mayor in 2009, firefighters stumped for her as she promised to bolster public safety. Since the mayor took office in January 2010, her alliance with the union has dissolved.

Named as the plaintiffs in the federal lawsuit are firefighters Anthony Pepe, James Walsh, and Christopher Seich along with the union, International Association of Firefighters Local 1197, and union president Robert Yackel. According to the suit, in 2005, the firefighters individually campaigned against Stephens, who indicated he would retaliate. 

The suit also states that firefighters have public criticized Ricigliano’s policies. In retaliation, the suit contends, staffing at each firehouse was cut from 22 firefighters per 24-hour shift to 20. In addition, Ricigliano hired full-time emergency medical technicians, ending the practice of rotating firefighters to staff first aid squads. Walsh and Pepe received an additional $279.39 in every biweekly pay check for work as EMTs the suit states.

Ricigliano and Stephens defend the charges as saving tax dollars, and say that fire department overtime cost Edison $2 million in 2010, but has been cut to $25,000 for the first four months of this year. “We are very proud that we are able to provide a service to the people of Edison and at a cost-savings,” Stephens said. He said the township has volunteer firefighters to supplement the department, and the staff cut was not a safety risk, a contention union members dispute.

In the suit, the plaintiffs claim the retribution violates their rights to free speech and free assembly as union members.

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As reported by pressofatlanticcity.com, Atlantic City’s 30 laid-off firefighters will return to work on April 4, 2011. There will be an orientation, which will begin the process to get them back in uniform, and filling positions that currently require either overtime or closing companies, Fire Chief Dennis Brooks said.

The rehires will be paid for by a $9.7 million grant from the U.S. Department of Homeland Security. The Staffing for Adequate Fire and Emergency Response, or SAFER, grant provides money to paid and volunteer fire departments to help keep them at safe personnel levels. It provides money only to those who man equipment.

Atlantic City was awarded the grant two months ago, and the City Council unanimously approved it on March 9. Now, they have until May 5 to get everything into place so that none of the money is lost, Brooks said. 

Atlantic City cut 30 firefighters and 40 police officers last year in an effort to trim millions of dollars from the budget. The grant will pay for the returning firefighters’ salaries for two years, along with allowing the city to hire 21 additional firefighters to fill jobs lost to attrition. The money also covers 10 promotions to fire captain.

Exactly how the new firefighters will be hired remains uncertain. There is a list to hire from for the new firefighters, which needs to be approved by the Department of Community Affairs because it is a civil service job. Brooks said he believes that approval has been received, but will know for sure in the immediate future. However, he did not know the status in getting the new fire captains, many who have been filling the position in an “acting” capacity.

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As reported by nj.com, Camden Mayor Dana Reed says her crime-ridden city will rehire 50 police officers and 15 firefighters two months after deep layoffs to public safety departments. Reed announced that she will use $2.5 million paid to the City by the South Jersey Port Corp, plus federal grants, to bring back the officers through the summer.

The quasi-state agency announced it would make the payment late last year after skipping a larger payment it owed the cash-strapped city government. Reed said she would use it to stave off layoffs. However, she said she would not do so unless unions for public workers made concessions first. She reversed course, rehiring workers without concessions. Crime has been up since January, when nearly half the police force was laid off.

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On June 25, 2009, the Appellate Division decided IAFF, Local 1197 v. Township of Edison, Docket No.: A-0194-08T1. In the case, IAFF, Local 1197 appeals from an order entered by the trial court on August 4, 2008, denying its motion for an award of attorneys’ fees and costs incurred in this action to enforce an arbitration award against defendant Township of Edison (“Township”) and for interest on the arbitration award.

Plaintiff is the exclusive representative for firefighters and certain other emergency workers employed by the Township. A collective bargaining agreement between the parties had been in effect from January 1, 2001 to December 31, 2004. The parties engaged in negotiations, but were unable to reach an agreement on a new contract. 

Consequently, on May 12, 2005, plaintiff initiated compulsory interest arbitration by filing a petition with the Public Employment Relations Commission (“PERC”). The proceedings ultimately resulted in a decision by the arbitrator on April 7, 2008, which granted the affected employees retroactive and future salary increases.

On April 25, 2008, plaintiff’s counsel wrote to the Township and inquired as to when the arbitration award would be implemented. The Township responded that the award would be implemented when the new agreement was executed. Plaintiff asserted that arbitrator’s award should be implemented immediately. On May 8, 2008, the Township sent plaintiff a draft of the new contract. Plaintiff responded on May 22, 2008 and informed the Township that the salary rates in the draft agreement had not been calculated correctly. Thereafter, Plaintiff provided the Township with its own salary schedule.

By letter dated May 29, 2008, the Township advised Plaintiff that it was reviewing the salary rates submitted by Plaintiff to determine if they were correct. The Township also informed Plaintiff that retroactive payments would be made as soon as it concluded its review of the salary rates. 

On May 30, 2008, Plaintiff filed a petition in the trial court to enforce the arbitration award. On June 9, 2008, the Township advised Plaintiff that it had completed its review of the salary rates submitted by Plaintiff and had determined that the rates were correct. The Township informed Plaintiff, however, that retroactive payments could not be processed until it received information concerning contributions by the employees to the Township’s deferred compensation plan. On July 1, 2008, the Township provided Plaintiff with its calculations of the retroactive payments due to the affected employees.

The trial court heard oral argument on July 3, 2008. The Township did not oppose Plaintiff’s application to enforce the arbitration award, but argued that the court should not award Plaintiff attorneys’ fees, costs, or interest on the award because it had been actively implementing the award.

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On June 18, 2009, the Appellate Division decided In the Matter of Andre Ruiz, Firefighter (M2271E), City of Camden, Docket No.: A-2611-07T2. In the case, Andrte Ruiz appealed the Final Administrative Action of the Merit System Board (“Board”) issued on October 11, 2007, concluding that the City of Camden (“City”) properly bypassed Ruiz under the “Rule of Three.” Ruiz also appeals from the Board’s January 22, 2008 Final Administrative Action denying his petition for reconsideration.

On October 3, 2005, the Department of Personnel (“DOP”) issued Certification Number Ol052133 to the City respecting open-competitive lists M2013A and M2271E containing the names of 150 eligible candidates for the position of firefighter. Ruiz was on list M2271E. The City returned the certification in March 2006 proposing the removal of several names, including that of Ruiz, ranked thirty-sixth, on the ground that he failed to meet the City’s residency requirements. On April 3, 2006, the City appointed thirty-five eligible candidates to the position of firefighter while the propriety of the proposed removals was still pending before the DOP.

On January 18, 2007, the Board determined that the City had failed to establish that Ruiz and five other eligible candidates, including Ruiz’s brother who resided at the same address as Ruiz, did not reside in the City. As such, the Board ordered the City to either produce sufficient documentation to support removal of the six eligible candidates based on non-residency, appoint them, or produce adequate justification for bypassing them or removing them on other grounds within sixty (60) days. 

On March 14, 2007, the City responded to the Board’s January 18, 2007 decision by submitting additional documentation to the DOP seeking to establish that Ruiz and the five other eligible candidates did not meet the City’s residency requirements. Thereafter, on April 3, 2006, the City notified the DOP that it had used the Rule of Three to appoint thirty-five eligible candidates to the position of firefighter. Despite stating it employed the Rule of Three, the City represented that no eligible candidates had been bypassed and appointments had been made through eligible candidate No. 74. The City sought entry of an order that it had properly disposed of open-competitive lists M2013A and M2271E.

On March 20, 2007, the DOP issued a disposition-deficiency notice to the City, notifying it that the reasons it had submitted for removal of Ruiz and two other eligible candidates, including Ruiz’s brother, based upon non-residency were not acceptable. It permitted the City to bypass two of the three eligible candidates provided the City submitted a short, written positive statement explaining why other lower or equally ranked eligible candidates were appointed. However, it required that the City appoint one of the three eligible candidates.

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New York Governor David Patterson dropped a bombshell on two powerful unions yesterday when he unexpectedly vetoed a routine measure that for nearly thirty (30) years had allowed New York city cops and firefighters to retire with generous pensions.

“These are not routine times,” Paterson said in vetoing the “temporary” measure that, since 1981, had been habitually renewed by legislators, giving the Finest and Bravest gold-plated pensions known as “Tier II” even as new, less-generous tiers were created for non-uniformed workers. Paterson added, “Instead of a rubber stamp on a temporary fix, we need to move forward with real reform to the pension system.”

In recent months, the New York Post has detailed the spiraling costs of public-employee pensions and the growing threat they pose to state and local budgets. Paterson’s veto, which caught the lawmakers off guard, was his most aggressive move yet in his push to establish a pared-down pension tier for newly hired employees. Recently, the governor re-introduced his cost-saving pension proposal, which legislators flatly rejected during this year’s budget negotiations. In fact, Paterson estimates that his proposal for a new pension tier would save the state $48 billion over the next thirty (30) years. 

Labor unions and their allies in the Legislature said they were blindsided by the governor’s veto and argued that state and local governments will see no savings from the move because it’s unclear which pension tiers new cops and firefighters would join. According to Civil Service Committee Chairwoman Diane Savino, who sponsored the bill, “There was no cost to extending the current system. We don’t know what the cost would be. We don’t know what the savings will be.” 

The bill passed overwhelmingly, 136-6 in the Assembly and 58-0 in the Senate, leading to talk of a veto override, which requires a two-thirds majority of each house. 

The savings would come from, among other items, raising the minimum retirement age and banning overtime “spiking,” where workers run up OT in their final years to boost pension payouts.

As one can expect, developments such as these do not bode well for public safety officers across the county, to include those of our state. As detailed in previous entries, public pension reform has become an important topic, especially during these tough economic times. This article illustrates the types of responses that are being taken by government in response to the issue and the resulting effect upon public safety officers. Please continue to check this blog periodically to ascertain updates in regard to this matter.

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On March 20, 2009, the United States District Court for the District of New Jersey decided the case of Wade v. Colaner. In the case, plaintiff, a Tinton Falls police officer, was pulled over by New Jersey State Troopers for speeding. Plaintiff was subsequently charged with careless driving, obstruction of administration of law, and resisting arrest. On account of this incident, he was suspended from his position of employment.

Ultimately, plaintiff brought this action alleging excessive force and deliberate indifference. Defendants counterclaimed against Plaintiff for reimbursement of the wages paid to Plaintiff during his suspension and moved for summary judgment as to Plaintiff’s other claims. The Court denied Defendants’ motion to dismiss Plaintiff’s excessive force claim, but dismissed Plaintiff’s deliberate indifference claim. Moreover, the Court granted the Tinton Falls Defendants’ motion for summary judgment finding that Plaintiff was not entitled to a pre-suspension hearing and also granted the motion for summary judgment for reimbursement of the wages paid to Plaintiff during his suspension.

This case shows that a public safety officer who is suspended from his or her employment and is continuing to receive their wages during the period of suspension potentially may have to reimburse their employer for the wages they have received. As a result, public safety officers should be conscious of this possibility in the event they are suspended from employment.

A similar type concept was the subject of previous posts to this blog regarding the 180 day bill recently signed into law. As you will recall, the bill, in essence, allows certain law enforcement officers and firefighters to regain pay status when appeals of termination are not resolved within 180 days. Under this bill, if an officer and/or firefighter has been receiving his/her base salary after expiration of the 180 day period and he/she ultimately loses their appeal, the officer and/or firefighter will be required to reimburse the employing agency of department all of the base salary received during the period of appeal. Certain rules of law such as these make it imperative for public safety officers to be informed regarding all the potential consequences in the event they are targeted for suspension and/or removal.   

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On October 2, 2008, the United States District Court for the District of New Jersey decided the case of Figueroa v. City of Camden. In the case, plaintiffs, Camden firefighters who were on the eligible list for promotion to captain, alleged employment discrimination on the basis of race on account of defendants’ refusal to promote using the existing list and the announcement of a new test and new requirements. 

The Court dismissed plaintiffs’ claims under Title VII of the Civil Rights Act of 1964 against all defendants because plaintiffs failed a file a complaint with the EEOC. Moreover, plaintiffs’ claim under 42 U.S.C. §1983 were dismissed because nothing in the pleadings indicated the unions were acting under color of state law, despite plaintiffs’ contention that the unions conspired with the other defendants to deprive them of their rights. Finally, the §1983 claims against the New Jersey Department of Personnel, its director of selection services, and the Camden chief operating officer were also dismissed because plaintiffs failed to identify any specific acts on their part that violated plaintiffs’ federally protected rights. 

This case illustrates the importance of following the procedural requirements in filing an employment discrimination lawsuit as well as recognizing the elements required to sustain a successful cause of action. Employment discrimination lawsuits against governmental entities contain a myriad of procedural and substantive hurdles. As a result, public safety officers who intend on bringing such a cause of action should seek out competent, experienced legal representation in order to ensure their rights are protected. Without obtaining such representation, it is likely the claims will fail, either procedurally or substantively.      

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