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 January 27, 2010, the Appellate Division decided Gregory Russo v. Board of Trustees, Police and Firemen’s Retirement System, Docket No.: A-3706-08T2. In the case, Gregory Russo appealed from the March 10, 2009 final determination of the Board of Trustees of the Police and Firemen’s Retirement System (“Board”) denying his application for accidental disability benefits.

On November 29, 2001, during his first year as an officer for the Montclair Police Department, Russo was dispatched to the scene of a residential fire with three other officers. They entered the burning building, determined that there were four residents inside and escorted two children and an adult to safety from the first floor. They could hear a fourth person calling for help from the second floor and tried to reach him, but could not safely proceed upstairs because of the fire’s rapid advance. As they were attempting to rescue the fourth occupant, local fire department personnel entered the building and ordered the police officers to leave. The man on the second floor died as a result of the fire.

After being evacuated from the residence, Russo witnessed the fire department removing the fourth occupant’s body through a window and was verbally berated by the man’s family for not doing enough to rescue him. The officers were taken to the local emergency room to be treated for smoke inhalation and were released the following morning. As a result of this traumatic event, Russo was diagnosed with post-traumatic stress disorder.

The initial decision of an Administrative Law Judge (“ALJ”) who considered the matter, issued on November 6, 2008, found that Russo met the standard for receipt of accidental disability benefits. The ALJ found that Russo was eligible because he considered the reasonable person test to be “fully satisfied under the known facts of this case.” In contrast, the Board, although it adopted the ALJ’s factual findings, rejected the ALJ’s legal conclusions and denied Russo’s application. This appeal ensued.

The Appellate Division determined that it was constrained to agree with the Board in light of the substantial deference afforded to an administrative decision. According to the Court, none of the four officers who responded to the fire suffered any injuries beyond the smoke inhalation for which Russo was treated. Moreover, the Court noted that although the sight of the lifeless body of the fourth occupant of the burning building being removed was no doubt traumatic, police officers are trained to deal with injured and dead citizens under a multitude of horrific circumstances, including homicides, automobile accidents and natural disasters. Russo’s trauma was further compounded by being verbally berated by the surviving family members. However, the Court found that circumstance, in and of itself, does not constitute a traumatic event. Therefore, the Court agreed with the Board’s conclusion to deny Russo’s application for accidental disability retirement.

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On October 13, 2009, the Appellate Division decided Raymond Joseph Foster, III v. Board of Trustees, Police and Firemen’s Retirement System, Docket No.: A-5666-07T2. In the case, Raymond Joseph Foster, III, a member of the Police and Firemen’s Retirement System (“PFRS”), appealed from the final decision of the Board of Trustees (“Board”), upholding the May 5, 2008 initial decision of Administrative Law Judge (“ALJ”) Jeff Masin, finding that Foster “has failed to meet his burden to prove that the total and permanent disability from which he suffers is the direct result of the injuries received in the traumatic event [Foster suffered on March 5, 2002].”

Foster started working as a Bordentown Township police officer in February 1998. On March 5, 2002 at 9:51 p.m., Foster was injured in a motor vehicle accident, while working as a police officer. The police report indicated that it was a one-vehicle accident. Foster was responding to the ACME supermarket. As he entered the parking lot, he turned right, but missed the entrance and struck a light pole to the left of the entrance. At the time, Foster was thirty-seven years old.

More than four years later, in September 2006, Foster stopped working. According to Foster, he could no longer tolerate the pain, which had become more constant and excruciating. It was undisputed that Foster was totally and permanently disabled and unable to perform his work duties. Thereafter, Foster applied to the Board for accidental disability retirement benefits. The Board denied the application on the grounds that Foster’s disability was not a direct result of the automobile accident, thus he did not qualify for accidental disability benefits.

Foster challenged that decision. The matter was transferred to the Office of Administrative Law as a contested case. After hearings were conducted, ALJ Masin found that Foster’s application should be denied, concluding that Foster’s present disability was not the direct result of the accident. This appeal ensued.

On appeal, Foster contended that the decision of ALJ Masin and the Board was not supported by the evidence. The Appellate Division disagreed. Based on its review of the record, the Court found that the Board’s findings were supported by the appropriate proofs and, therefore, its decision was supported by sufficient credible evidence on the record as a whole. As such, the Board’s decision was affirmed.

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On July 7, 2009, the New Jersey Supreme Court decided State v. Anthony Bogan, Docket No.: A-7-08. In the case, the Court considered whether, during an investigation into an alleged sexual assault, a police officer’s warrantless entry into an apartment was justified under the community caretaking exception to the warrant requirement.

In 2004, a receptionist at Passaic Mill Work noticed a young girl outside on the sidewalk crying hysterically. The receptionist invited the girl inside. The girl’s name was Kathleen and she was fourteen years old. Kathleen stated that a person who was supposed to drive her to school had molested her. The police were called and Kathleen informed the officers that she had been offered a ride by a male family friend, later identified as Defendant Anthony Bogan. Instead of taking her to school, Bogan drove Kathleen to an apartment in Clifton, where he lured her into a second-floor apartment and molested her. Kathleen gave a description of Bogan that included his race, age, height, and clothing, and told the officers that while she was inside the apartment a young boy named Wally was there.

Accompanied by Kathleen, three officers proceeded to the apartment. On their arrival, they found parked in front a gray Audi, which Kathleen identified as the car driven by Bogan. The officers rang the bell to the second-floor apartment. They heard an adult-sounding male voice yell from inside the apartment, “Who is it?” The officers identified themselves as police. Wally, who was approximately twelve years old, answered the door in his pajamas. The officers followed Wally up the stairs toward the apartment, asking him if he was home alone. Wally’s response that no one was home was inconsistent with the adult male voice that had responded when they rang the doorbell. At the top of the stairs, with Wally inside the apartment and the officers on the landing outside the doorway, the conversation continued. When officers asked the whereabouts of Wally’s mother, he gave conflicting answers and seemed nervous. The officers thought that Wally might be in danger. When the telephone rang in the kitchen, which was located immediately inside the apartment, Wally picked up the receiver and told the officers that his father was on the phone. One of the officers asked Wally if he could speak with his parent, and Wally responded “certainly.” The officer walked a few steps into the apartment and was handed the receiver by Wally. While on the telephone, the officer was able to see into a bedroom where Bogan was lying on the bottom level of a bunk bed. Bogan fit the description given by Kathleen, and the officer motioned for the other officers to enter the apartment.

An officer read Bogan the Miranda warnings. Bogan identified himself as “Anthony Green.” Another officer, who was on the telephone with Wally’s mother, was told that Anthony Bogan was supposed to be caring for Wally. Upon further questioning, Defendant stated that Bogan was his “maiden name.” While communicating with headquarters, the officers learned that there were multiple arrest warrants for Anthony Bogan. 

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On June 23, 2009, the Appellate Division decided New Jersey Transit Corporation v. P.B.A. Local 304, Docket No.: A-3341-07T3. In the case, PBA Local 304 (“PBA”) appealed from an order of the Chancery Division, General Equity Part, overturning an arbitration award that declared that New Jersey Transit (“NJT”) police officers who are transferred involuntarily by the Chief of Police are entitled to additional pay for travel time. The court held that the arbitrator’s decision violated public policy because it restricted the chief’s authority to reassign officers, thereby limiting his ability to enhance operational awareness and public safety.

This matter concerned the arbitrator’s interpretation of Article XXIII, Section 6 of the Collective Bargaining Agreement. The article provides in relevant part:

(a) A temporary position may, at the discretion of the Chief of Police, be assigned to an officer for a period not to exceed 30 calendar days.

(b) After a 30 calendar day period or less, the assigned officer will then be reassigned to his original position, and a second officer may then be assigned, then the third, etc.

On March 1, 2005, the NJT Chief of Police issued orders temporarily assigning two police officers to each other’s regular assignments for a period of twenty-eight calendar days. Specifically, Officer Trumble was transferred from his position in Hoboken, and assigned to Officer Sepe’s position in Newark, while Officer Sepe was assigned to Officer Trumble’s Hoboken position. The assignment orders were effective from March 5, 2005 until April 1, 2005.

On March 22, 2005, the PBA filed a grievance, alleging that the assignments constituted an “involuntary tour swap,” because the affected orders were required to change their bid work location (regular assignment) and to work each other’s bid position. On May 9, 2006, the matter was submitted to arbitration. The parties framed the issue thusly: “Was the effectuation of personnel orders P 05-047 and/or P 05-048 in violation of the Collective Bargaining Agreement?”

At arbitration, the PBA argued that the assignments are limited under the Article to positions that are open or vacant, and not to those positions that are already filled by officers who had been awarded those positions. NJT argued that, except for certain time limitations, the Article does not limit the Chief’s discretionary authority to assign temporary positions.

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On June 11, 2009, the Appellate Division decided Michael Kappre v. Borough of Paulsboro, Docket No.: A-3573-07T3. In the case, the Paulsboro Police Chief filed misconduct charges against Michael Kappre, a former patrolman and sniper for the Paulsboro Police Department’s SWAT team. The Borough of Paulsboro sought Kappre’s termination. Kappre pleaded not guilty to the charges filed and a hearing was held before a hearing officer. Following administrative review, the hearing officer upheld the decision to terminate Kappre.

Kappre filed a complaint in lieu of prerogative writs, seeking a de novo review pursuant to N.J.S.A. 40A:14-150. Judge Farrell heard additional testimony from Kappre and Chief Thomas Sullivan of the Gloucester County Prosecutor’s Office and rendered factual findings and conclusions in a written opinion. The trial judge sustained three charges of insubordination and untruthfulness and one charge of incapacity to hold office. Accordingly, Judge Farrell concluded the charges warranted Kappre’s removal. This appeal ensued.

On appeal, Kappre argued the charges lodged against him should have been dismissed because the record does not support his conduct demonstrated insubordination. Moreover, Kappre asserted there was a lack of credible evidence in the record to suggest he committed misconduct and the trial judge erred in discounting the testimony of his expert.

After evaluating the record in light of the arguments raised by Kappre in conjunction with the applicable legal standards, the Appellate Division affirmed Judge Farrell’s determinations. The Court was satisfied from its review of the record that Judge Farrell’s findings of fact were supported by substantial credible evidence and the conclusions based thereon should not be disturbed. Specifically, the Court noted that deference to Judge Farrell’s findings, which include determinations of credibility, was particularly appropriate in this case since they were substantially influenced by his opportunity to hear and see the witnesses and to have the “feel” of the case, which the Appellate Division, as a reviewing court, cannot enjoy.

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On May 28, 2009, the Honorable Peter A. Buchsbaum, J.S.C. decided Mark Petersen v. Township of Raritan, Docket No. HNT-L-446-08. The complaint alleged contractual violations of the 1997-1999 collective bargaining agreement between the Township of Raritan and the Plaintiff.

Plaintiff was police officer who retired in 1999. The 1997-99 collective bargaining agreement included retiree health benefits at Article XXII. As of July 1, 2008, current employees and retirees would no longer be able to enroll in the Traditional Plan. Those who were already enrolled in that plan, such as Plaintiff, could switch to the POS plan without any cost to them. They could, however, choose to remain in the Traditional Plan, provided they agreed to pay the excess premium between these two plans from that point in time.

Count one of the complaint alleges a violation of Section 5 of the insurance clause of the collective bargaining agreement because, as of July 1, 2008, Plaintiff is paying a premium differential for the Traditional Plan in which he is enrolled, that is, the difference in premium costs between the Traditional Plan and the POS plan offered by the Township. Count two of the complaint alleges a violation of Section 5 of the insurance clause of the collective bargaining agreement because, as of July 1, 2008, Plaintiff’s co-pays for certain prescription drugs have increased. In response to the complaint, Defendant moved for summary judgment.

The trial court found the language of the collective bargaining agreement sufficiently complex to warrant further examination. Specifically, the court found ambiguity in the insurance clause as to whether the language “shall continue to receive all health and medical benefits provided by the employer for the remainder of his life” would reasonably lead Plaintiff to believe that he would receive health coverage equivalent to the Traditional Plan for the remainder of his life. Therefore, the court determined Defendant’s motion for summary judgment was premature and, thus, factual exploration of the issues in this matter is necessary.

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On May 19, 2009, the Appellate Division decided State of New Jersey v. Yusef Gethers, Docket No.: A-5323-06T4. By way of background, on March 24, 2005, a Union County grand jury returned an indictment charging Defendant, Yusef Gethers, with second-degree certain persons not to possess a weapon, N.J.S.A. 2C:39-7(b)(1). On the same date, a Union County grand jury returned an indictment charging Defendant with third-degree unlawful possession of a weapon, a handgun, N.J.S.A. 2C:39-5(b) (count one), and fourth-degree possession of a prohibited device, hollow point bullets, N.J.S.A. 2C:39-3(f). 

Following denial of his motion to suppress evidence, Defendant pled guilty to count one of the indictment, third-degree unlawful possession of a weapon. Pursuant to a plea bargain reached with the State, Defendant was sentence to five (5) years probation, conditioned upon 364 days of house arrest. The trial court dismissed the remaining charges under the indictments as well as an outstanding municipal court warrant. The trial court also imposed the appropriate fees and penalties. Thereafter, this appeal ensued when Defendant appealed the suppression ruling.

In this case, the Appellate Division determined the motion to suppress evidence obtained in a vehicular search, specifically, a gun found in a backpack not in plain view, was improperly denied by the trial judge. The Court found the State did not carry its burden of demonstrating a recognized exception to the warrant requirement where: (1) both occupants were outside the car and did not have access to the backpack; (2) there was no possibility they would leave the area; (3) the officers’ conduct did not indicate a belief the occupants were armed and dangerous; (4) there was no evidence of accomplices who might have come onto the scene or other persons who had access to the car destroying or disposing of the evidence or moving the car; (5) the car was parked in a residential driveway so there was no issue of traffic obstruction; (6) the ratio of officers to suspects was 4-to-2; and (7) the Defendant was in a wheelchair. Consequently, the Court reversed the trial judge’s ruling and remanded the case back to the trial court.

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On May 4, 2009, the Appellate Division decided City of Clifton v. Clifton P.B.A. Local #36, Docket No.: A-4806-07T3. In the case, Defendant, Clifton P.B.A. Local #36, appealed from a trial judge’s decision vacating an arbitrator’s award of thirteen (13) shift differential (SD) days to police detectives. 

The trial judge ruled that, in a case in which the union’s grievance was filed eighteen (18) months after the alleged wrong first occurred, and not within the twenty (20) days provided for in the collective bargaining agreement, the arbitrator exceeded his powers when stated that he had waived the twenty (20) day contractual time limit. In reaching that conclusion, the judge discussed the Supreme Court’s decision in Board of Ed. Of Borough of Alpha v. Alpha Ed. Ass’n, a case in which the Court recognized and applied the continuing violation doctrine to preserve a late-filed grievance by the union resulting from the Board’s cessation of payment of health insurance benefits. Because the trial judge found that the arbitrator exceeded his powers in considering the matter, the judge did not render an opinion on any substantive issue raised by the parties.

On appeal, the union claimed that the award was timely pursuant to the continuing violation doctrine as recognized by the Supreme Court. The City of Clifton argued, like the trial judge, that the arbitrator did not find a continuing violation to have occurred, but rather, determined to waive the contractual twenty (20) day requirement.

The Appellate Division determined the arbitrator’s decision is susceptible to both interpretations. According to the Court, the arbitrator’s decision suggests that he nominally declined to decide the applicability of the continuing violation doctrine, instead couching his decision in terms of waiver. However, the result reached was identical to the one reached in Alpha by application of the continuing violation doctrine. Consequently, the Court remanded the matter to the arbitrator for clarification of the basis for his decision on the timeliness of the action.

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On February 3, 2009, the United States Court of Appeals for the Third Circuit decided the case of LaPosta v. Borough of Roseland. In the case, plaintiff, Joseph LaPosta, a police officer, alleges Defendants, the Borough of Roseland and its Police Chief, retaliated against him after he attempted to join a police organization of which the Police Chief did not approve. Plaintiff’s claims were brought pursuant to 42 U.S.C. §1983 and state tort law. 

Plaintiff was employed as a police officer with the Borough of Roseland. After completing his police academy training, Plaintiff was forced to join the Fraternal Order of Police (“FOP”) union. When Plaintiff expressed an interest in joining an alternative union, the Policemen’s Benevolent Association (“PBA”), the Police Chief advised Plaintiff that neither he nor any other officers were to have any influence from the PBA. Nevertheless, Plaintiff joined the PBA. Thereafter, the Police Chief allegedly retaliated against Plaintiff, specifically by subjecting Plaintiff to smoke from cigarettes, cigars, and scented candles, charging him with insubordination, denying him an earned stipend, belittling him in front of other officers, filing frivolous internal affairs claims against him, and denying him the opportunity to attend career-advancing classes and seminars.

Plaintiff’s complaint asserted six claims: (1) violation of 42 U.S.C. §1983; (2) intentional infliction of emotional distress against the Police Chief; (3) hostile work environment; (4) negligence; (5) intentional interference with prospective economic advantage against the Police Chief; and (6) conspiracy. Both the Borough and Police Chief filed motions to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Thereafter, the United States District Court for the District of New Jersey entered an opinion and order granting the motions. This appeal followed.

The United States Court of Appeals for the Third Circuit affirmed the District Court’s ruling in part, reversed in part, and remanded the case for further consideration. Specifically, the Third Circuit affirmed the dismissal of all but one of Plaintiff’s claims for failing to file a notice of claim under the New Jersey Tort Claims Act. However, the Third Circuit determined the District Court erred in dismissing Plaintiff’s §1983 claim. The Third Circuit held the retaliation claim was not barred by the statute of limitations and should be remanded to the District Court to be adequately analyzed as a claim based on freedom of association.

This case illustrates the importance of obtaining an experienced, qualified attorney prior to initiating an action similar to the one recounted above. There are many procedural hurdles one must follow, to include filing certain notices, to perfect the filing of such a claim. Consequently, it is imperative one obtains a qualified, experienced attorney to ensure their rights are protected. Moreover, this case shows that viable retaliation claims can be pursued against public employers. With the right set of facts, many courts are willing to explore such a claim and, potentially, hold the employer liable for infringing on one's right to join a certain collective bargaining unit.

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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

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In Frohner v. City of Wildwood, the United States District Court for the District of New Jersey addressed a very unusual and interesting factual scenario. The lawsuit asserted numerous claims arising out of the arrest and handcuffing of plaintiff, an undercover FBI agent, by defendants, local police officers. Defendants suspected plaintiff was a motorcyclist impersonating an FBI agent.

Defendants moved for summary judgment on a variety of plaintiff’s claims. First, the Court denied defendants’ motions as to the false-arrest claims because defendants failed to show as a matter of law that they had probable cause or arguable probable cause to believe plaintiff was impersonating an FBI agent. Next, the Court denied defendants’ motion as to the claim that defendants’ conducted an unlawful search and seizure of plaintiff’s car. The Court indicated that it could not be concluded that the search was incident to a lawful arrest.

The Court also denied defendants’ motion as to plaintiff’s excessive-force and punitive damages claims. The Court held that such a claim will lie for the use of excessively tight handcuffs and that expert testimony is not required. With regard to plaintiff’s punitive damages claim, the Court noted that the issue as to whether any defendant was recklessly indifferent to plaintiff’s rights was a jury question. 

Although the vast majority of plaintiff’s claims were upheld, the Court did grant defendants summary judgment on one of the claims. The Court determined that since plaintiff has not shown a pattern of constitutional violations indicating defendants were deliberately indifferent to the likelihood that constitutional violations such as those alleged in this case would occur, defendants were entitled to summary judgment on that claim.

This case shows that arrests of undercover agents by local police departments, much like arrests of everyday citizens, can give rise to various claims being brought against the departments. Even with the unusual nature of the facts of this case, this case also illustrates that Courts are typically reluctant to dismiss certain claims as long as some evidence in support thereof has been offered.    

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On November 17, 2008, the New Jersey Supreme Court decided the case of Borough v. Glassboro v. Fraternal Order of Police Lodge No. 108,  A-75-07. In this case, the Court addressed the validity of an arbitrator’s award addressing the legality of a police officer promotion made by the Borough of Glassboro, a non-civil service municipality.

In 2004, the Borough of Glassboro Police Department (“Borough”) announced an opening for the position of lieutenant. Three candidates applied, including Sergeants Peter Amico and William Highley. As a non-civil service municipality, the Borough is not subject to the statutory requirements of a comprehensive promotional procedure. Rather, state law only requires that due consideration is given to the officer proposed for promotion and to the length and merit of the officer’s service, with preference being given to seniority in service.

The Borough implemented a three stage promotional procedure. The scores from Phase I and II were aggregated for a total possible score of 100%. Phase I consisted of an interview with the Borough Chief of Police and was worth 20%. Phase II involved an oral and written exam and was worth 80%. Phase IIA, the written portion, was a multiple-choice test designed by the International Association of Police Chiefs. Phase IIB, the oral component, consisted of interviews with a panel of four independent police chiefs. Following Phase I and II, the cumulative final scores were as follows: Sergeant Amico, 93.8, and Sergeant Highley, 92.4.

In Phase III, each applicant was interviewed by the Borough Public Safety Committee, which included Borough Council members, the Borough Administrator, and the Chief of Police. Candidates were advised that they would be asked questions “concerning their department’s SOPs Rules and Regulations, in addition to questions concerning the Boro Personnel Policy & Procedures and Boro Ordinances.” The purpose of Phase III was to test leadership intangibles that are necessary for the position and evade formal testing. After the completion of Phase III, Highley, ranked second in the Phase I and II testing, was awarded the promotion.

Amico learned in subsequent conversations with the Chief of Police and the Borough Administrator that his move out of the Borough had a possible negative effect on the promotional decision. The Fraternal Order of Police, Local 108 (“FOP”) filed a grievance on Amico’s behalf, thereby claiming: (1) that the use of Phase III as more than a “confirmatory interview” altered the terms and conditions of employment in violation of the collective bargaining agreement between the Borough and FOP; and (2) the Borough violated N.J.S.A. 40A:14-122.6 by making residency a factor in its promotional decision.

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In the matter of O’Rourke v. City of Lambertville, Docket No. A-0481-07T3, the Defendants appeal the trial court’s decision: (1) reversing the Lambertville City Council’s decision removing Plaintiff, Michael O’Rourke, from his position as a police officer; (2) reinstating Plaintiff to his position; and (3) denying their motion for reconsideration. Defendant, Bruce Cocuzza, is the city’s civilian police director. Plaintiff, a sergeant first class, was the police department’s Terminal Agency Coordinator (“TAC”) for the National Crime Information Center (“NCIC”) system, which contains a wide array of law enforcement information. 

The city charged Plaintiff with conducting unauthorized and improper employee background investigations, in defiance of Cocuzza’s direct order, and engaging in conduct subversive to the good order and discipline of the department in doing so. At the disciplinary hearing, Cocuzza testified that he and Plaintiff were discussing the temporary transfer of an employee from city hall to the department when Plaintiff told him that the employee would have to submit to a background check or be fingerprinted for security purposes. Cocuzza said he told Plaintiff that no action should be taken until Cocuzza received written authorization from “somebody in authority” and spoke with the city attorney regarding same. Later, Cocuzza learned Plaintiff had performed background investigations of five civilian employees of the department, including Cocuzza, without authorization.

After the officer assigned who was assigned to the department’s internal affairs unit declined to investigate because of his long-term social relationship with Plaintiff, Cocuzza decided to conduct the investigation himself. In his report, Cocuzza wrote that Plaintiff had been insubordinate and that his actions constituted a serious breach of discipline and a flagrant abuse of authority. 

Plaintiff testified that he performed the checks under his authority as TAC officer, indicating that under the State’s security policy anyone with access to the NCIC system had to have a background check and fingerprints taken. He also stated that he understood Cocuzza to mean that he should not ask anyone for their fingerprints, which he did not do. He did concede that he did criminal checks on five employees, including Cocuzza.

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In the matter of Paul Weber v. Borough of Glen Rock, A-1079-07T3, Plaintiff, Paul Weber, appealed from two trial court orders: (1) an order dated May 3, 2006 dismissing some of his claims; and (2) an order dated September 5, 2007 granting summary judgment to defendants on the balance of the claims. After reviewing the contentions raised on appeal, the Appellate Division affirmed the trial court’s determinations. 

Weber is a member of the Glen Rock Police Department. After joining the Department as a patrolman in 1978, he was promoted to the rank of sergeant in 1985. Since 1985, there have been four occasions when there was an opening within the Department for a member to be promoted to the rank of lieutenant. Weber applied for this promotion on each occasion and was unsuccessful. 

In 2004, the successful applicant was Garret Merselis, who was promoted from sergeant to lieutenant. In 2005, a vacancy developed for the position of captain. Thereafter, Merselis, the only lieutenant on the Glen Rock force at that time, was promoted to the rank of captain. The promotion of Merselis to captain created a vacancy for the position of lieutenant. Plaintiff applied, as did three other members of the Department. On this occasion, Frederick Stahman was selected for promotion to the rank of lieutenant.

Plaintiff, who had more seniority than did either Merselis or Stahman at the time of their respective promotions, filed suit contending that the promotional process was flawed. Specifically, he sought to reopen the process relating to the most recent promotional opening. In support, Weber contended: (1) the Borough was required to administer examinations to those applying for promotion and not rely exclusively on interviews; and (2) the Borough, in passing him over for promotion, did not comply with N.J.S.A. 40A:14-129. 

The Court rejected both of Weber’s assertions. The Borough is not a civil service municipality and followed its own two-step promotional process, a written test followed by interviews, until 1992 when, under the new police chief, only interviews were used to select a candidate for promotion to lieutenant. The Court found that where all members of the committee participated in the interviews of all the candidates, the process employed by Glen Rock does not suffer from the same deficiencies criticized in Rox v. Dep’t of Civil Service, 141 N.J. Super. 463, 467 (App. Div. 1976). In Rox, different panels interviewed the various candidates and used different criteria in making promotional decisions. This was not the situation in this case.

Moreover, the Court held that seniority, in and of itself, is not determinative of promotion. The Court indicated seniority is merely an additional factor to be considered on the merits of the evaluation of individuals for promotion and not a mechanical rule which guarantees promotion to a senior employee. In this case, it was established Weber’s seniority was considered. That is all he was entitled to; he was not entitled to have it treated as controlling.          

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