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 July 30, 2010, the Appellate Division decided James Henderson v. Board of Trustees, Public Employees’ Retirement System, Docket No.: A-6176-08T2. In the case, James Henderson appealed the Board of Trustees of the Public Employees’ Retirement System’s (“Board”) denial of his application for accidental disability benefits. Frank M. Crivelli, Esq. and Donald C. Barbati, Esq. of the Pellettieri, Rabstein & Altman law firm, and the authors of this blog, successfully argued to reverse the denial, thereby obtaining accidental disability benefits for Henderson.

The case addressed whether Henderson was entitled to accidental disability retirement benefits based upon two (2) separate work-related incidents. Notably, it was undisputed that the first incident causing Henderson injury constituted a “traumatic event.” After initially becoming injured, Henderson was unable to work for some period of time, returned to light duty for a while, and then, ultimately, returned to full duty. The injury was then aggravated and accelerated by a second incident in which Henderson attempted to perform an ordinary task within the scope of his duties and responsibilities of employment.

The Board initially denied Henderson’s application for accidental disability retirement benefits. To support the denial, the Board determined that the second accident did not constitute a “traumatic event” within the meaning of the applicable case law. The Board also found that the injury originally suffered by Henderson in the first incident constituted a “pre-existing disease or condition,” thereby precluding him from receiving said benefits. This appeal ensued.

On appeal, Henderson argued that: (1) the second incident constituted a “traumatic event” within the meaning of the applicable case law; and (2) the term “pre-existing disease or condition” was never intended to include injuries suffered in prior traumatic events for purposes of whether an individual qualifies for accidental benefits.

In its decision, the Appellate Division agreed with the Board’s initial determination that the second incident did not constitute a traumatic event within the meaning of the applicable law. Significantly, however, the Court agreed with our contention that the term “pre-existing disease or condition” does not include injuries suffered in prior traumatic events. Rather, the Court found that term has been uniformly applied to bodily diseases or conditions that were not caused by a traumatic event. The Court cited a litany of case law to support this contention and articulated that the Board’s suggestion that the injuries resulting from the original traumatic event and their sequelae should be treated as pre-existing diseases or conditions is utterly inconsistent with the applicable law.

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On July 20, 2010, the Appellate Division decided In the Matter of Latief Dickerson, Hudson County, Docket No.: A-1323-08T2. In the case, Latief Dickerson appealed from a final decision of the Civil Service Commission (“Commission”) terminating his employment as a corrections officer with the Hudson County Department of Corrections (“Department”).

On May 5, 2006, the Department served a Preliminary Notice of Disciplinary Action on Dickerson charging him with: (1) incompetency, inefficiency or failure to perform duties; (2) insubordination; (3) conduct unbecoming an employee; and (4) neglect of duty. These charges stemmed from Dickerson’s failure to satisfy mandatory training requirements and to obtain permission for his outside employment, as well as his arrest in Tuxedo, New York for various motor vehicle violations and criminal possession of a firearm.

Following a departmental hearing, Dickerson received a Final Notice of Disciplinary Action on July 19, 2006, finding him guilty of the charges and ordering his removal from office effective immediately. Dickerson contested the decision and requested a hearing before the Office of Administrative Law. That hearing was held on January 2 and March 12, 2008, before an Administrative Law Judge (“ALJ”).

After the hearings, the ALJ determined that the Department failed to sustain its burden in sustaining the charges against Dickerson with the exception of conduct unbecoming a public employee by driving a motor vehicle while unlicensed. However, given Dickerson’s extensive prior disciplinary history, the ALJ ordered that Dickerson be fined 90 working days’ pay.

The Commission, upon its de novo review of the record, disagreed with the ALJ’s decision and upheld the Department’s decision to terminate Dickerson’s employment. This appeal followed.

On appeal, Dickerson argued that the Commission erred in failing to affirm the decision of the ALJ. Specifically, Dickerson contended that the Commission imposed an improper standard of review when it stated that it did not “agree” with the ALJ’s determination. Rather, Dickerson argued the Commission has the authority to modify or reverse the decision of the ALJ if the decision was not supported by credible evidence in the record or was otherwise arbitrary.

After considering Dickerson’s arguments, the Appellate Division affirmed the Commission’s determination and sustained the removal. The Court found the Commission’s decision comported with the applicable law regarding the review of ALJ decisions and was supported by sufficient credible evidence in the record. Specifically, the Court found, in rejecting and modifying the ALJ’s findings and conclusions, the Commission stated with particularity the reasons for doing so and made new findings supported by competent and credible evidence in the record.

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On June 1, 2010, the Appellate Division decided In the Matter of Michael Sottilare, Department of Corrections Hudson County, Docket No.: A-4761-08T3. In the case, Michael Sottilare appealed from a Civil Service Commission (“Commission”) decision affirming the Hudson County Division of Personnel’s termination of his employment with the county’s Department of Corrections.

Sottilare, after more than ten years as a corrections officer, received four preliminary notices of disciplinary action arising from events commencing on November 30, 2005 and continuing through December 23, 2005. The final incident resulted in his termination.

While on leave due to an on-the-job injury, Sottilare was videotaped working at a construction site in contravention of Hudson County’s policy requiring persons on leave to remain at home unless they are receiving medical care or purchasing medication. A disciplinary charge of malingering issued as a result. Shortly thereafter, on December 23, 2005, Sottilare made a telephone call to the New Jersey Policemen’s Benevolent Association Local 109 office in order to obtain legal representation for the hearing scheduled on the malingering charge and to request a postponement. Officer Shaara Marie Green, then the Vice President of PBA Local 109, answered the phone call.

When Green testified before the Office of Administrative Law, she said she told Sottilare that the union could not provide him with legal representation because the Internal Affairs Unit (“IAU”) officers were no longer members. Sottilare had been assigned to IAU since 1995 or 1996. Green also told Sottialre to obtain his own attorney, and gave him the name of the person that his attorney should contact in order to request the postponement.

Green also testified that after she told Sottialre that PBA Local 109 could not provide him with counsel, Sottilare informed her that she was under investigation by IAU. Sottialre explained to Green that surveillance was being initiated because she was reportedly living with an ex-inmate in violation of departmental policy. 

Green immediately telephoned Ricardo Alves, Sottilare’s supervisor at IAU, to report the conversation. When Alves testified, he confirmed that he received a call from Green about the complaint that had been filed against her and that Sottilare had told her that she was the subject of an IAU investigation. Deputy Warden David Krusznis confirmed that Green was being investigated and said that disclosure of the existence of a pending IAU investigation is a violation of departmental policies and procedures, as well as of guidelines promulgated by the Office of the Attorney General.

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On March 23, 2010, the Appellate Division decided In the Matter of Keith Curry, Vernon Township, Docket No.: A-4662-07T2. In the case, Keith Curry, a police officer with the Vernon Township Police Department (“the Department”), appealed from a final decision of the Merit System Board (“the Board”) rejecting the Administrative Law Judge’s (“ALJ”) initial decision reducing his suspension to 15 days and imposing a 30 day suspension for conduct unbecoming a public employee.

On March 31, 2005, a murder-suicide occurred in Vernon Township. Detective Sean Talt participated in the crime scene investigation and took a photograph of the suicide victim on his cellular telephone. Although not involved in the investigation, Curry asked Talt if he could view the photograph, as he had never been involved in such an investigation. Talt forwarded the photograph to Curry via cellular telephone and advised him not to share the photograph with anyone else, describing it as “for police eyes only.” Despite these instructions, Curry forwarded the photograph to a civilian female friend and told her to view it and delete it. However, before being deleted, this individual’s brother viewed the photograph, forwarded it to his own cellular phone, and shared it with several other members of the public.

Curry was charged with conduct unbecoming a public employee and violation of departmental rules and regulations. As to the latter, the ALJ concluded that the Department had not demonstrated a violation of a rule or regulation, but the ALJ concluded that “appellant’s conduct constituted conduct unbecoming a public employee, as it clearly signaled poor judgment.” 

On appeal, Curry does not challenge the finding, but argues that the 30 day suspension imposed by the Board was excessive. The Appellate Division rejected Curry’s argument and affirmed the Board’s determination. After carefully reviewing the record, the Court found no abuse of discretion and was satisfied the Board’s decision was not arbitrary or capricious and the suspension imposed was justified. According to the Court, the police investigation and the rights of the family may have been compromised by the unlawful distribution of the photograph.  Specifically, the Court indicated that there is a significant difference between sharing evidence with a fellow police officer and exposing the same evidence to the public for no good or valid reason.

The case illustrates the importance of law enforcement officers to not disseminate case evidence to the public and be guided in their use of cellular telephones. Though the technology age and the use of cellular telephones has no doubt aided law enforcement and streamlined certain investigations, they have also increased the exposure of law enforcement officers and increased the likelihood of investigations being compromised.

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As reported in the Trentonian on March 12, 2010, Governor Chris Christie is looking privatize State jobs. Yesterday, Governor Christie created a task force to look at ways to privatize State jobs to save money as he tries to find a plug for a projected $11 billion budget deficit for the 2011 fiscal year.

Christie signed an executive order creating the five-person group to look at “every aspect of the way government does business.” He said privatization could narrow the scope of public services provided by the State’s nearly 75,000 workers and increase efficiency. Christie also stated that he would have ordered the audit even if New Jersey was not in dire economic need. Privatizing jobs would inevitably mean layoffs for State workers, but Christie said he had not asked the task force to come back with a specific level of savings.     

The creation of the task force comes just days after the new Republican Governor said he was wrong to think he could alter a deal Governor Corzine made with State workers that allowed them to keep pay raises and take furloughs in exchange for a no-layoff pledge. Democrats estimate that for every 1,000 workers laid off, the State would realize $30 million to $40 million in savings. However, according to Bob Master, spokesman for the Communications Workers of America District 1, privatization is a “failed tactic from the past that’s based on an ideological hostility to government.” Specifically, he indicated, “you get a real deterioration of services and you don’t save any money.” 

Governor Christie’s potential privatization could have an enormous impact upon New Jersey Public Safety Officers. As such, please continue to check this blog periodically to ascertain updates regarding privatization and the workers it will affect.

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As reported in the Trentonian on February 9, 2010, legislation requiring public workers to assume a portion of their health benefits costs and providing relief to the State pension system has been introduced. The package of bills introduced follows vows by Democratic leaders in the State Senate to revisit pension reform recommendations made four years ago.

One bill requires state, local, and school district workers to contribute at least 1.5 percent of their salary toward their health care costs. Another caps at $15,000 the amount of unused sick time that can be cashed in at retirement. A third bill repeals the 9 percent pension benefit increase put in place in 2001 by changing the way pensions are calculated. The last bill in the package requires the State to make its annual payment to the pension system, not skip it or short it, as has been the custom in recent years.

Most of the proposals would affect new hires, not those already in the pension system. However, the measure requiring public workers to contribute toward their health care costs would take effect when their current contract expires. No figures were immediately available on the potential savings. 

The pension system is underfunded by about $34 billion and is in danger of becoming insolvent unless fixes are made. The proposals were first made in 2006 after the Legislature met in special session to come up with ways to lower New Jersey’s property taxes, which average $7,045 a household and are the highest in the country. Pension and health care costs are major drivers of property taxes. 

Former Governor Jon Corzine halted some of the legislative-driven reforms, arguing that they should be part of the collective bargaining process. The State’s Unions, which have long resisted pension reforms, supported Corzine’s position. 

Other highlights of the bills include: (1) limiting enrollment in the pension system to those considered full time; (2) enrollment in a defined contribution plan for part-timers; (3) calculating pension benefits based on the 5 highest years of salary, instead of the 3 highest years, for future public workers, and basing benefits on the 3 highest years, instead of the highest year, for future State Police employees; and (4) allowing pension benefits based on one job, not multiple positions.  

Please check this blog periodically to ascertain updates with regard to this proposed legislation. Were the bills ultimately passed, there is no doubt they would have a drastic effect on New Jersey Public Safety Officers.

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On January 21, 2010, the Appellate Division decided In the Matter of Rosemarie Tatusko, Docket No.: A-2888-08T3. The case involved an appeal from a final decision of the Board of Trustees of the Police and Firemen’s Retirement System which denied Rosemarie Tatusko’s (“Appellant”) application for an accidental disability pension.

Appellant was employed by the Department of Corrections as a senior correctional officer at the Burlington County Jail. Her application for an accidental disability pension was based on an incident that occurred on Ocotber 22, 2005, when she assisted in saving a female inmate who had attempted to commit suicide. Appellant heard a “hacking gagging noise,” and when she scanned the prison cells to determine the source of this noise, she found the inmate hanging from a sheet in her cell. Appellant called another correctional officer to help her and the two of them were able to cut down the sheet with scissors and get the inmate to the floor. Appellant though at the moment that the inmate had died, but later found out that she had survived the attempted suicide.

At the time of the incident, Appellant had been a corrections officer for eight years. During that time, she had witnessed three other attempted suicides, two of which involved inmates cutting their wrists and the third of which also involved a hanging. Appellant did not experience any psychological problems after any of those three prior incidents. However, Appellant suffered a total and permanent psychological disability as a result of the October 22, 2005 incident. When Appellant was asked at the hearing on her application before an Administrative Law Judge (“ALJ”) how the October 22, 2005 incident differed from those prior incidents, she responded: “I don’t know. I can’t explain.”

The ALJ concluded that Appellant’s observations of the inmate’s attempted suicide and efforts to save her constituted a traumatic psychological event and, therefore, granted Appellant’s application. The Board rejected this recommended conclusion and determined that Appellant’s application should be denied because Appellant’s observation of the inmate’s attempted suicide and her subsequent efforts to save the inmate were not objectively capable of causing a reasonable corrections officer with training and experience similar to appellant to suffer a disabling mental injury. This appeal ensued.

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On December 7, 2009, New Jersey State Correction Officer Darrell Kornegay was walking to his car after buying food at a restaurant on Springfield Avenue in Irvington Township, one of the township’s main drags, when he was attacked close to 9:00 p.m. A masked man carrying a handgun, later identified as Raymon Scott, stopped Officer Kornegay, demanding money and car keys. After Kornegay said he was a corrections officer, Scott opened fire and ran.

According to State officials, Kornegay carries a handgun when off duty and fired at Scott, hitting him several times. Scott then entered a vehicle that later dropped him off at East Orange General Hospital. Thereafter, Scott was charged with attempted murder, aggravated assault, unlawful possession of a weapon, possession of a weapon for an unlawful purpose, and robbery.

Officer Kornegay is a 17 year veteran at Northern State Prison in Newark. This incident illustrates the dangers that public safety officers face not only during the course of their employment, but outside of it. It also shows how public safety officers try to ensure public safety whether on duty or off. Please check this blog periodically to ascertain updates regarding this incident as an investigation by the Attorney General’s office is underway.    

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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 28, 2009, the Appellate Division decided In the Matter of Donald Michelson, Department of Safety, City of Union. In the case, Donald Michelson sought review of the Final Administrative Action of the Merit System Board accepting and adopting the initial decision of the Office of Administrative Law (“OAL”). The Administrative Law Judge (“ALJ”) found that the City of Union had proven its charges of neglect of duty, other sufficient cause, and absence without leave against Michelson and concluded that the penalty of suspension without pay for six (6) work days was reasonable and consistent with progressive discipline.

On October 14, 2005, Michelson, a sergeant in the Union Police Department, was assigned to work in the communication center from 2330 hours to 0730 hours but did not report for duty. The Police Department schedule cycle requires officers to report for duty four days on and three days off per week for three weeks, then report for duty four days on and two days off for one week (called “the short week”). Before 0400 hours, Sergeant Botti, the Desk Officer Supervisor called Michelson to inquire about his absence. Apparently, Michelson mistakenly believed he was on the short week and not scheduled to work that day. He ultimately reported for duty at 0400 hours.

The Police Department charged Michelson with neglect of duty, absence without leave, and other sufficient cause. Due to his absence, which was undisputed, the ALJ determined: (1) the communication center was without supervision for approximately four and one-half hours; and (2) the desk sergeant put aside his regular duties to conduct an inquiry into Michelson’s absence. The ALJ also noted the police department operates as a paramilitary organization and prompt attendance is critical to the efficient operation of the department. The ALJ further found that the six-day suspension comported with the concept of progressive discipline. The ALJ, reasoning that Michelson had no intention to report for duty until Botti called him, rejected Michelson’s contention that he was merely tardy, not absence without leave.   

The ALJ, noting that superior officers such as Michelson must set an example for subordinate officers, also rejected Michelson’s claim that he was subjected to disparate treatment because no other officer had been suspended for arriving late. Additionally, the ALJ concluded that the record was insufficient to support a claim of disparate treatment as it did not contain the prior disciplinary records of the other employees, a factor bearing on the discipline to be imposed. Thus, no reasoned comparison could be made. Consequently, the ALJ affirmed Union’s determination that Michelson be suspended for six (6) days.

On review by the Board, it accepted and adopted the ALJ’s findings of fact and conclusions of law and found “that the action of the appointing authority in suspending [Michelson] was justified.” Accordingly, it affirmed the action and dismissed Michelson’s appeal. This appeal ensued.

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On July 23, 2009, the Superior Court of New Jersey, Appellate Division issued its opinion in the case of James Liik, et al v. New Jersey Department of Personnel/New Jersey Department of Corrections, Docket Number A-4121-06T2.

This particular opinion has widespread implications in regard to pay and seniority of thousands of New Jersey corrections officers presently employed with the New Jersey Department of Corrections.

By way of background, in 1997, the New Jersey Department of Corrections and New Jersey Department of Personnel created and implemented a pilot program which modified training procedures for corrections officer recruits. Prior to the implementation of the pilot program, candidates for employment with the Department of Corrections were hired as employees and assigned the rank of “correction officer recruit” during their period of training and completion of their working test period. During this time, corrections officer recruits received full salary and benefits available for this particular rank. Once the working test period associated with the position of corrections officer trainee was successfully completed, they were then promoted to the position of senior corrections officer. The pilot program eliminated this practice and those individuals seeking employment with the New Jersey Department of Corrections were designated as “students/trainees.”

As a result of this change, they were no longer considered employees of the New Jersey Department of Corrections, but instead received the lesser rank of corrections officer recruit/trainee during the 14-week training period. During this 14-week training period, instead of receiving the regular salary of a corrections officer recruit, they received a $300 weekly stipend. If a recruit trainee successfully completed the prescribed program of training, they then became “employees” of the New Jersey Department of Corrections and received the salary and benefits of a corrections officer recruit. Despite the fact that the program was to last for only a period of one year, the New Jersey Department of Corrections and Department of Personnel made the program permanent in 1999. A stipend of $300.00 that was to be paid to student trainees never increased over the following years and a significant financial burden and hardship was placed upon those individuals seeking employment with the New Jersey Department of Corrections.

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Employees in New Jersey’s largest state-worker union overwhelmingly ratified a revised contract agreement on Tuesday, June 30, 2009 that defers a raise and trades furloughs this year for future vacation days. With a little over 13,000 votes cast online or by phone by the deadline, the margin was 69 percent to 31 percent according to the Communication Workers of America. All four bargaining units, those represented clerical workers, professionals and two tiers of supervisors, voted for the revised deal, which bars layoffs until 2011. 

Workers in the CWA, which covers about half the state’s workforce, agreed to defer a 3.5 percent raise that was due July 1, 2009 by 18 months; they will get two 3.5 percent raises in fiscal 2011. Workers also agreed to nine furlough days over the coming year, on top of one taken in May. In exchange, they receive seven days off from work they can take starting in July 2010 or cash out when they leave state employment, at their pay rate at that time. 

The State agreed not to layoff any workers until January 2011 or add more unpaid furloughs before July 2011. If the State lays off any worker before January 2011, not counting any fired for disciplinary reasons or for cause, all state workers immediately get the deferred 3.5 percent raise and no further furloughs are required.

Workers due to receive increment raised in fiscal 2010 based on their years of service will get those increases. The nine unpaid furlough days include the day after Thanksgiving this year and Lincoln’s Birthday in 2010. The other seven dates will be worked out by workers and their supervisors and must be taken by the end of June 2010.

Republicans, who are hopeful that Governor Corzine will be replaced in this fall’s election, said the agreement ties the hands of the next governor to deal with next year’s multi-billion dollar deficit. “The governor did not need to negotiate these costly, election-year concessions. The courts had upheld his right to furlough workers as he originally proposed. The governor traded a plan that would have saved money during a recession for one that may very well slow the state’s recovery,” said Senate Minority Leader Thomas Kean, Jr., R-Union.

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

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

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

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

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

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

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

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On 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 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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Recently, the primary authors of this blog, Frank M. Crivelli, Esq. and Donald Barbati, Esq., released a publication entitled “Taking the Necessary Steps to Win Your New Jersey Public Employee Disability Pension Appeal.” 

The publication thoroughly examines the different New Jersey Pension Systems, including the Public Employees’ Retirement System, Police and Firemen’s Retirement System, and the State Police Retirement System and the difference between accidental and ordinary disability benefits under the various pension systems. Moreover, the publication analyzes the applicable decisional and statutory law surrounding public employee disability pension appeals and articulates the necessary criteria to be satisfied and the steps one must take in order to obtain accidental and/or ordinary disability benefits.

This publication is a must have for all State of New Jersey, County and Municipal employees, especially New Jersey Public Safety Officers. Public employee disability pension law is a specialized and highly complex area of law. Should you ever find yourself in need of accidental or ordinary disability benefits, you would be hard pressed to find as useful a resource.

To obtain a free copy of the publication or, alternatively, to discuss its contents in more detail, please contact Frank Crivelli, Esq. or Donald Barbati, Esq. at (609) 890-1900 or via mail at: 2653 Nottingham Way, Hamilton, New Jersey 08619.  

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

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

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

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

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