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 December 21, 2009, the Appellate Division decidedIn the Matter of Edwin Garcia, Department of Corrections Hudson County, Docket No.: A-1404-08T3. In the case, Edwin Garcia appeals from the final administrative action of the Civil Service Commission, terminating his employment as a corrections officer with the Hudson County Department of Corrections.

At issue were two disciplinary matters. In the first, the County maintained that Garcia failed to include in a report the fact that another officer had lunged at a handcuffed inmate and grabbed the inmate’s shirt. As a result, the County charged Garcia with insubordination, conduct unbecoming a public employee, neglect of duty, and other sufficient cause. In the second disciplinary matter, the County asserted that, while involved in an incident with an inmate, Garcia used excessive force despite being ordered numerous times to cease. For this incident, Garcia was charged with conduct unbecoming a public employee, neglect of duty, and other sufficient cause. The County sought to terminate Garcia’s employment.

The County held a hearing on the disciplinary charges on March 2, and April 4, 2007, wherein the hearing officer sustained the charges. A final notice of disciplinary action terminating Garcia’s employment was issued on June 7, 2007. Garcia appealed the decision to the Civil Service Commission and a hearing was held before an Administrative Law Judge.

The ALJ sustained both charges, finding, with respect to the first incident, that “Garcia submitted a report omitting the use of excessive force on an inmate” and, with respect to the second incident, that “Garcia used excessive force to subdue inmate E.B. by striking him, although ordered to desist by superior officers.” In the Initial Decision, the ALJ concluded that Garcia had committed conduct unbecoming a public employee, neglect of duty, and insubordination. In light of Garcia’s prior record and the nature of these offenses, the ALJ imposed the sanction of removal. The Commission, in its independent evaluation of the record, concluded that the removal was justified. This appeal ensued.

 On appeal, Garcia argued the findings of the Commission were not justified and the sanction of removal was arbitrary and capricious. The Appellate Division affirmed Garcia’s termination. Specifically, the Court found that there was substantial credible evidence supporting the findings of the ALJ and the conclusions reached by the Commission. The Court also determined the sanction of termination for the infractions is not unreasonable or disproportionate in light of the offenses, particularly when viewed in conjunction with Garcia’s prior disciplinary record.     

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On September 8, 2009, the Appellate Division decided In the Matter of Sergeant Maryelyn Conway, Docket No.: A-6162-07T3. In the case, Sergeant Maryelyn Conway appeals from an administrative determination of the New Jersey Transit Police Department suspending her for a period of four days for two related minor disciplinary infractions.

On the night of December 13, 2004, a car crashed onto an embankment above the New Jersey Transit train tracks in Waldwick. The vehicle was in a precarious position, with only a small tree preventing it from falling onto the tracks. Due to the danger that the vehicle might fall, train traffic in both directions was stopped.

Conway, a sergeant with the New Jersey Transit Police Department, was the supervising officer on duty at the time of these events. She did not go to the scene of the accident, but rather New Jersey Transit Police Officer Victor Migliorino was sent there. He reported to her that the Waldwick fire department, police, and emergency medical personnel were present, and that Waldwick personnel had taken charge of the scene. He did not believe Conway’s presence at the scene was necessary. She later deployed two other officers to the scene, contending that she did so in order that one of the officers could acquire more experience. She received periodic reports of the status of the scene from the officers present. She acknowledged in one radio transmission that it would have been easier if she were present. The New Jersey Transit police officers present did not play an active role in attending to the accident scene since Waldwick personnel were in charge. About an hour and one half after Conway was advised of the incident, the car was removed, and normal train traffic resumed.

Disciplinary charges were filed against Conway on January 10, 2005, due to her failure to go to the accident scene. She was charged with violating a General Order, which requires a police sergeant, as part of her duties and responsibilities, to “direct[ ] and participate[ ] in activities at the scene of emergencies.” Conway was also charged with “unsatisfactory performance” due to her failure to respond to the scene herself. 

The internal disciplinary hearing was conducted on May 20, 2008. In a lengthy written opinion, the hearing officer found the charges to be substantiated. In the final agency decision dated July 1, 2008, New Jersey Transit Police Chief Jospeh C. Bober found Conway guilty of both charges and imposed a two-day suspension for each charge, for a total suspension of four days. This appeal ensued.

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On August 17, 2009, the Appellate Division decided In the Matter of Juan Melendez, Docket No.: A-4617-07T1. In the case, Juan Melendez, a Hudson County Corrections Officer, appealed from a final administrative determination of the Merit System Board (“Board”) imposing a fifteen-day suspension for neglect of duty and other sufficient cause warranting discipline.

The Board adopted the initial determination of an Administrative Law Judge on a remand following his first determination that the suspension should only be for three days following Hudson County’s suspension of thirty days. On appeal, Melendez argues that: (1) the decision of the Board upholding the charges is not supported by credible evidence in the record; (2) the penalty of a fifteen day suspension is at odds with the concept of progressive discipline and appellant’s prior disciplinary history; and (3) he is entitled to attorneys’ fees based on having prevailed on all or substantially all of the primary issues.

The testimony before the ALJ revealed that Sgt. Kevin Orlik reported, and testified, that Melendez was asleep at his post in a trailer annexed to the jail on March 19, 2006 when Orlik and other officers arrived to conduct a search of the cells. In his testimony, Orlik testified that when he entered the trailer he “saw Officer Melendez reclined back in a chair with a roll of toilet paper as a pillow or cushion behind his neck,” “his eyes were closed,” and he was “motionless” as he was observed “for approximately a minute to two minutes” until other officers entered the trailer and started to make noise. Melendez testified that he wasn’t sleeping and told that to Orlik when he directed Melendez “to write a report on why [he] was sleeping.” Melendez challenged Orlik’s credibility by noting that his written report omitted details embodied in his testimony.

There was also testimony about the practice of standing when a superior officer enters the room. Melendez did not do so on the night in questions, and testified that it wasn’t a “regular routine” and he generally did not do so. Although the failure to stand was not itself a basis for discipline, it was determined to be relevant to the issue of “attentiveness” at the time, as well as to the ALJ’s finding that the inattentive conduct was a “sufficient cause” for the three-day suspension he initially imposed.

On the remand, despite making credibility determinations against Orlik because of the failure to include certain details in his written report, the ALJ found neglect of duty and “other sufficient cause” for the discipline, and found that “the failure to stand and acknowledge Sgt. Orlik’s when he entered the trailer to constitute being inattentive.”

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On July 31, 2009, the Appellate Division decided In the Matter of Eddie Gonzalez, Docket No.: A-0644-07T2. In the case, Eddie Gonzalez, a Newark Police Officer, appealed from a final decision of the Merit System Board (“Board”) adopting the findings of fact and conclusions of an Administrative Law Judge (“ALJ”), concluding that Gonzalez engaged in conduct unbecoming a public employee and violating certain Newark Police Department (“Department”) rules and regulations. The Board adopted the ALJ’s recommendation and imposed a six-month suspension.

In June 2003, Richard Diaz lived in Newark, and Gonzalez was his next-door neighbor. Diaz and Gonzalez were involved in a dispute, which resulted in Diaz filing a harassment claim against Gonzalez alleging that Gonzalez kissed Diaz’s minor daughter. On June 9, 2003, Newark Police Officer Philip Turzani was assigned as a dispatcher for the Department. Near the end of his 6:00 a.m. to 2:00 p.m. shift, he received a call from Gonzalez asking Turzani if he would like Gonzalez to bring him coffee. 

Gonzalez then arrived at the Newark Police and Fire Public Safety Communications Center (“Center”) at approximately 1:30 p.m., in plainclothes, and requested that Turzani run a license plate number through the Department’s computer system. Turzani asked Gonzalez if his purposes for running the plate were “legal,” and Gonzalez responded that his neighbor was trying to obtain a job and wanted to check his driving history. Turzani admitted to running the license plate, but could not recall the name of the individual connected with the search. Turzani stated that Gonzalez viewed the screen with the results on it.

Upon returning home from vacation on June 19, 2003, Diaz received twelve motor vehicle summonses in the mail. The summonses were allegedly issued by Officer Edward Sculthorpe of the Department on June 9, 2003 at approximately 2:00 p.m. Diaz challenged the summonses, claiming that he had not been stopped by a Newark police officer on that date. At the court hearing regarding the summonses, Officer Sculthorpe denied writing them and they were dismissed.

The summonses prompted a further investigation as on June 25, 2003, Diaz filed an Internal Affairs complaint with the Department against Gonzalez. In response to the complaint, Captain Robert Sbaraglio of the Department spoke with Sculthorpe, who confirmed that he had not written the summonses. Following the dismissal of the summonses, Sbaraglio conducted a preliminary investigation and identified the summons book that had been issued to Sculthorpe as the source of the summonses. Sbaraglio then had both Gonzalez and Sculthorpe submit administrative reports regarding the summonses. Both denied issuing the summonses.

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On July 16, 2009, the Appellate Division decided In the Matter of Michael Brown, Monmouth County, Docket No.: A-5157-07T3. In the case, Michael Brown appealed from a final decision of the Merit System Board (“Board”) upholding the termination of his employment as a Monmouth County Corrections Officer after finding that he tested positive for marijuana.

Brown was employed by Monmouth County as a corrections officer for approximately fifteen to seventeen years. According to Captain Thomas J. Philburn, Personnel Captain at the correctional facility, Brown was “a very low-keyed, soft-spoken individual” who did his job and had no prior disciplinary problems other than some minor “attendance-related issues.”

The County uses National Safety Compliance (“NSC”), a safety services and compliance company certified by the Substance Abuse and Mental Health Administration, to perform random drug tests on its employees in accordance with the County’s substance abuse policy. NSC, in turn, employs Lab One, located in Kansas, to perform the actual laboratory tests on the samples.

On July 13, 2004, Brown was randomly selected for a drug test pursuant to the County’s policy. When the test was reported as positive for marijuana use, the matter was heard internally and Brown was found to have violated the County’s substance abuse policy. After a final notice of disciplinary action was served on Brown on August 24, 2004, the matter was transferred to the Office of Administrative Law (“OAL”) as a contested case.

A hearing was held before the OAL on December 7, 2005 and two witnesses testified on behalf of the County, Captain Philburn and Ronald Raslowsy, President of NSC. Neither of the witnesses had any personal knowledge of the procedures used for the testing, nor could they establish a chain of custody from the time the sample was taken to the time it was purportedly tested at the laboratory in Kansas.

Radomsky testified that he “believed” that the Attorney General guidelines for testing a law enforcement officer were followed, but had no personal knowledge as to whether they actually were. He did know, however, that the proper interview form was not used. He had no knowledge of who was present when Brown was tested, who witnessed the test, whether the sample was properly labeled, packaged and shipped, or who participated in the shipping of the sample. Nevertheless, the Administrative Law Judge (“ALJ”) rendered an initial decision on October 20, 2006 sustaining the charges and ordering Brown’s removal.

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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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Recently, the Public Employment Relations Commission (“PERC”) has proposed temporary rules to implement the provisions of L.2009, c.16. That law allows non-Civil Service law enforcement officers and firefighters who are terminated pursuant to a complaint or charges not involving any alleged violation of criminal law to have the option of having their terminations reviewed by means of binding arbitration.

Review through binding arbitration is an alternative to review through a proceeding in the Superior Court pursuant to N.J.S.A. 40A:14-22, pertaining to firefighters, and/or N.J.S.A. 40A:14-150, pertaining to law enforcement personnel. The new statute is applicable to terminations for non-criminal conduct in which the underlying conducts occurs after June 1, 2009. In addition, the new statute directs that PERC establish a special panel of arbitrators to review the terminations.

The text of the proposed temporary rules can be found on the Rulemaking page of the NJ PERC Web Site or by clicking on the following link.

Following receipt of comments from interested parties, PERC plans to adopt temporary rules. The temporary rules can remain in effect for thirteen (13) months. Before that period expires, PERC plans to propose and adopt permanent rules in accordance with the Administrative Procedure Act.

Comments on the temporary rules can be submitted by May 15, 2009 to: Lawrence Henderson, Chariman, Public Employment Relations Commission, P.O. 429, Trenton, New Jersey 08625-0429 or via fax to (609) 777-0089 or email to lhenderson@perc.state.nj.us. 

It goes without saying that these rules will have a significant impact upon numerous New Jersey Public Safety Officers going forward. As such, please check this blog periodically to ascertain updates regarding the adoption of these temporary rules.

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

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

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

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

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On April 15, 2009, the Appellate Division decided In the Matter of Cornelius Caruso, Docket No.: A-1612-07T1. In the case, Cornelius Caruso appealed his termination as police officer in the City of Orange Police Department.

Caruso became a police officer in 2000. In 2005, he began to experience serious problems related to his use of alcohol. He voluntarily entered a program at the Carrier Clinic in December 2005. When he did so, he failed to follow the Department’s requirement that he notify the communication supervisor and apply for a leave of absence. No charges were filed with respect to that omission.

Caruso left the Carrier Clinic in March 2006. He was found by the Department to be fit for duty and returned to work on April 1, 2006. Caruso was instructed to make periodic reports concerning his recovery, which instruction was confirmed in a letter from the City’s attorney to Caruso’s attorney. No such periodic reports were ever made.

The Department permits fifteen days of sick leave per year. The Department assessed Caruso for use of 2006 sick leave only during the period from January 1 to January 10, 2006. The period from January 11 to March 31, 2006, was charged as a combination of administrative and compensatory leave. After Caruso’s return to duty in April, he went out on sick leave from April 6 to April 18; May 10 to July 7; October 25 to November 4; and December 12 to the end of 2006. Consequently, by December 2006, Caruso had taken significantly more sick leave than was permitted by the Department.

On December 12, 2006, Caruso left work because of an eye infection. However, according to Caruso, his problem with alcohol use returned in December 2006. On December 22, 2006, Caruso left his home and traveled to Hazelden, a rehabilitation clinic located in Minnesota. He again failed to notify the communications supervisor, although others apparently notified one of his superiors who subsequently contacted Caruso and arranged for him to surrender his service weapon. Caruso also failed to complete the required form for a leave of absence.

As a result, on January 18, 2007, the City filed formal disciplinary charges against Caruso. The disciplinary charges were as follows: (1) performance of duty; (2) insubordination; (3) obedience to laws and rules; and (4) abuse of sick leave. 

Caruso left Hazelden and returned to New Jersey on January 19, 2007. He started intensive outpatient aftercare on January 23, 2007, which required his attendance at a program for four hours a day, four days per week, as well as attendance at Alcoholics Anonymous sessions.

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On March 30, 2009, the Superior Court of New Jersey, Appellate Division decided the case In the Matter of Richard J. Rivera, Docket No. A-3672-07T2. In the case, Richard J. Rivera, a county corrections officer assigned to the Monmouth County Correctional Institute (“MCCI”), appealed from a final decision of the Merit System Board suspending him for ten (10) days without pay for violating Rule 4.1.28 of the Monmouth County Sheriff’s Department.

The alleged violation was based upon Rivera’s failure to disclose a relationship with a “current offender,” which includes probationers, after he purchased a home with a woman who was on probation. On appeal, Rivera contended the rule was unconstitutionally vague, both on its face and as applied to him. The Court, in rejecting Rivera’s arguments, noted that a serious conflict of interest could arise if a corrections officer maintained a close relationship with a probationer who violated his/her probation and ultimately became incarcerated. To support this, the Court cited Bowden v. Bayside State Prison, a 1993 Appellate Division case, which held, “[t]he need for proper control over the conduct of inmates in a correctional facility and the part played by proper relationships between those who are required to maintain order and enforce discipline and the inmates cannot be doubted.” Consequently, the Court affirmed the Board’s final decision and upheld the penalty imposed.

This case illustrates that correction officers who become socially and/or intimately associated with persons who are either incarcerated or on parole could be subject to discipline. As a result, all correction officers should consult their respective collective bargaining agreements and/or department policies to determine whether their particular employer places limits on fraternization with certain persons.

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 On March 20, 2009, the Appellate Division decided In the Matter of Larry Martin, Docket No.: A-3271-07T3. In the case, Larry Martin, a police officer with the City of Jersey City, appealed from a disciplinary penalty imposed upon him by the Merit System Board.

Martin, who had been a member of the Jersey City Police Department for 22 years, failed to attend mandatory weapons qualification training for a new service weapon, a Glock .45 caliber handgun, on May 10, 2005. As a result, he was charged with “disobedience to a lawful order” and “absence without leave” in violation of the Police Department’s rules. After holding a hearing, Jersey City sustained the charges and imposed an eight-day loss of vacation days. Martin appealed to the Board.

The matter was referred to an administrative law judge (“ALJ”) who conducted a hearing. The ALJ, in his decision, found that Martin had been given a direct order by his superior officer to attend the training session and failed to do so. The ALJ sustained the charges and the disciplinary penalty. Neither party filed exceptions and the matter went to the Merit System Board for a final decision.

After conducting its independent review of the record, the Merit System Board agreed the charges had been proven. However, the Board increased the penalty to a 120 day suspension based on Martin’s previous major disciplinary history. In reaching this conclusion, the Board considered the seriousness of the underlying incident, the concept of progressive discipline, and Martin’s prior record. This appeal ensued. 

On appeal, Martin contended that the Board’s decision to increase the penalty was arbitrary, capricious, and unreasonable and unsupported by the record. The Appellate Division disagreed and affirmed the Board’s determination. The Court found no basis to overturn the decision and noted that Martin had defied a direct order of his superior officer, on a very important issue, namely firearms training. The Court further noted that Martin had a prior history of four substantial disciplinary sanctions. Based on the nature of the underlying infraction, Martin’s past history of disciplinary sanctions, and the Board’s policy of progressive discipline, the Court did not find the increase in the penalty to be arbitrary, capricious, or unreasonable. 

The case illustrates the principle that an agency can increase the penalty imposed upon a public safety officer in appealing a disciplinary determination. Many times, the increase will be upheld if the agency, such as the Civil Service Commission, adequately considered an officer’s disciplinary history, the nature of the underlying matter, and the policy of progressive discipline.

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This blog entry will focus upon our review of certain statutory proposals currently pending in the New Jersey Legislature concerning the pay status of law enforcement officers when appeals of termination are not resolved within 180 days. These proposals are set forth in Assembly Bill Number 3481. 

Assembly Bill 3481 concerns the suspensions of certain law enforcement officers and firefighters and supplements Title 40A of the New Jersey statutes and specifically amends N.J.S.A. 40A:14-150 and N.J.S.A. 40A:14-22. In essence, the bill allows certain law enforcement officers and firefighters to regain pay status when appeals of termination are not resolved within 180 days.

The first part of the bill provides:

When a law enforcement officer employed by a law enforcement agency…that is subject to the provisions of Title 11A of the New Jersey Statutes is suspended from performing his official duties without pay for a complaint or charges, other than (1) a complaint or charges relating to the subject matter of a pending criminal investigation…whether pre-indictment or post indictment, or (2) when the complaint or charges allege conduct that also would constitute a violation of the criminal laws of this State or any other jurisdiction, and the law enforcement agency employing the officer…seeks to terminate that officer’s…employment for the conduct that was the basis for the officer’s…suspension without pay, a final determination on the officer’s…suspension and termination shall be rendered within 180 calendar days from the date the officer…is suspended without pay.

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In Division of State Police v. In the Matter of Detective Sergeant First Class Daniel Flaherty, Docket No. A-0257-07T20257-07T2, the Appellate Division addressed the validity and ultimate imposition of disciplinary charges lodged against a Detective Sergeant of the New Jersey State Police. The appeal arose out of disciplinary charges filed by the New Jersey Division of State Police (“Division”) against Detective Sergeant First Class Daniel Flaherty, charging him with: (1) disseminating Division documents without proper authorization; (2) behaving in an official capacity to the personal discredit of a member of the State Police or to the Division; and (3) willfully disobeying a lawful verbal or written order.

The underlying facts of this case were not substantially in dispute. In 2001, Flaherty filed an age discrimination complaint with the New Jersey State Police Equal Employment Opportunity/Affirmative Action (“EEO/AA”) intake unit. He alleged that since 1995, the State Police had denied him numerous specialist positions because of his age. The EEO/AA assigned Lieutenant Patrick Reilly to investigate his claim. After two years, in which the allegations still had not been resolved, the EEO/AA replaced Reilly with DSFC Kevin Rowe.

On May 5, 2003, Flaherty filed a New Jersey State Police Reportable Incident Form alleging “culpable inefficiency” against Reilly. Pursuant to a Division policy regarding non-disclosure of confidential internal investigations, the Office of Professional Standards (“OPS”) denied his request to access the file regarding his complaint against Reilly.

The following month, the State Police administratively closed Flaherty’s complaint file against Reilly and transferred the matter to the Attorney General’s EEO/AA section. In a letter dated September 24, 2003, a Senior Deputy Attorney General informed Flaherty that his claim against Reilly could not be substantiated. 

Thereafter, on May 31, 2003, the Division assigned Flaherty to the OPS, which was then called the State Police Internal Affairs Investigation Bureau. Pursuant to Division of Internal Affairs policies and procedures, “[t]he nature and source of internal allegations, the progress of internal affairs investigations, and the resulting materials are confidential information. The contents of internal investigation case files shall be retained in the internal affairs unit and clearly marked as confidential.” Notwithstanding these provisions, internal investigation files can be released in certain enumerated circumstances.  As such, Flaherty executed a confidentiality agreement which provided the dissemination of all confidential information and/or documents.

In a letter dated February 20, 2004, the Department of Law and Public Safety found that Flaherty’s age discrimination claims could not be substantiated. In his appeal to the Department of Personnel, Flaherty questioned the manner in which the State Police and the Attorney General’s office investigated his

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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 Gary Stolinski v. State of New Jersey, Division of State Police, A-2412-07T3, the Appellate Division considered whether Gary Stolinski, a New Jersey State Trooper, was entitled to an award of counsel fees pursuant to N.J.S.A. 53:1-30, as a result of having to defend against an indictment charging official misconduct, credit card fraud, and identity theft.

On July 15, 2005, Stolinski was indicted and charged with official misconduct, credit card fraud, and identity theft based on the allegation that he used a State Police computer to make online credit card applications through the use of false information and by assuming the identity of others. Subsequent to being indicted, Stolinski was suspended from the force without pay.   

The indictment was ultimately dismissed on December 15, 2005. Thereafter, Stolinski was reinstated and reimbursed for the pay withheld during his suspension. Stolinski then demanded reimbursement for the counsel fees he expended in defending against the indictment. In response, the Attorney General’s office advised that the request for the payment of legal fees incurred in seeking back pay would be honored. However, the Division rejected the remaining aspects of Stolinski’s request and asserted there was no statutory basis for the reimbursement of attorney fees associated with: (1) the defense of criminal charges; (2) responding to the administrative disciplinary charge; or (3) seeking the expungement of his criminal record. This appeal ensued.

The Appellate Division concluded that the Division’s final agency decision was neither arbitrary, capricious, nor unreasonable because it was based upon a correct understanding of N.J.S.A. 53:1-30 and an accurate application of its terms to the allegations contained in the indictment. N.J.S.A. 53:1-30 provides that a law enforcement officer is entitled to be reimbursed only for those fees incurred “in an action or legal proceeding arising out of or directly related to the lawful exercise of police powers in the furtherance of official duties.”   

The Court determined N.J.S.A. 53:1-30 did not provide support for Stolinski’s claim because the allegations of the indictment were not directly related to his lawful exercise of police powers in the furtherance of official duties. In this case, Stolinski was alleged to have used a State Police computer to make false credit card application. Regardless of whether the allegations could or could not be substantiated, it is clear Stolinski was not charged with conduct that was in furtherance of his official duties on that occasion. As a result, the Court affirmed the Division’s determination.       

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In the case of In the Matter of Mark Moncho, Mark Moncho, a Sergeant First Class, appealed a final decision of the Division of State Police finding him in violation of Article VI, Section 2a of the Division’s regulations (performance of duties) and imposing a ten day suspension.

Moncho was assigned to the State Police Construction Inspection Unit. The Construction Unit is a component of the Traffic Bureau and operates as a partnership between the New Jersey State Police and the New Jersey Department of Transportation. In this capacity, Moncho was responsible for overseeing five sergeants who, in turn, supervised subordinate troopers. His responsibilities included: (1) reviewing the patrol charts and weekly reports of the sergeants and the subordinates; (2) time-keeping; and (3) day-to-day supervision of the Construction Unit.

Ultimately, the Division of State Police charged Moncho with violating a series of rules and regulations involving billing and overtime. Moncho pled not guilty to the charges and, on June 28, 2004, the Division transmitted the matter to the Office of Administrative Law. After conducting numerous hearing, the Administrative Law Judge (“ALJ”) concluded: (1) Moncho violated none of the specifications underlying disciplinary charges; and (2) nevertheless, Moncho was guilty of the performance of duties disciplinary charge based solely upon the amount of overtime he had earned. On August 2, 2007, the Division of State Police issued a final decision upholding the ALJ’s decision in its entirety. This appeal ensued.

On appeal, Moncho argued that when the ALJ found that the Division had not met its burden of proof as to the specifications in the charges, the ALJ dismissed all bases of liability of which Moncho had notice. Moreover, Moncho argued the Division’s decision to discipline him absent a showing that he engaged in fraud, misleading conduct, or the violation of a policy is arbitrary and capricious.

In its decision, the Appellate Division agreed with Moncho’s contentions. The Court concluded that the record did not support the Division’s decision and this was further compelled by the ALJ’s incongruous findings. In effect, the ALJ created a new basis on which to justify disciplinary action after hearing and rejecting the official charges and specifications lodged against Moncho. The Court further noted that at no time was Moncho ever notified that the accrual of overtime, in and of itself, could subject him to disciplinary action. Accordingly, the Court determined the final decision of the Division to be arbitrary, capricious, and unreasonable and thereby vacated the penalty imposed. 

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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 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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The New Jersey Superior Court, Appellate Division recently ruled that a firefighter who has called in false alarms, goes to respond to the false alarms that he called in, and is convicted for Official Misconduct, N.J.S.A. 2C:30-2, as a result of this behavior, can not be convicted separately for the setting of the false alarms, N.J.S.A. 2C:33-3.  In the case of State v. Quezada, 33-2-1431, Judge Stern, the Presiding Judge of the Appellate Division, reasoned that under the legal doctrine of "merger",  the defendant could not be convicted of setting false alarms due to the fact that the actual official misconduct (calling in false alarms) was the underlying basis of the charge.  

Official Misconduct as it relates to public employees and their office is a second degree crime and carries a maximum prison term of 10 years.  Furthermore, the New Jersey criminal code lists a presumption of incarceration for second degree criminal convictions, meaning a court must specify why imprisonment is not imposed in a particular case.  In essence, a Public Safety Officer who strays from path truth and justice and is in hot water, may be able to avoid the conviction of the underlying offense that was the basis for the conviction of Official Misconduct. 

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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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