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

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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