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

On January 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 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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As reported in the Star-Ledger on November 26, 2009, according to a lawsuit filed by the union representing prison investigators, senior officials at the Department of Corrections are illegally blocking internal investigations into bribery, cell phone smuggling and gang activity. In short, the lawsuit alleges that Correction officials shut down ongoing probes or prevented investigations from even beginning.

For example, the lawsuit alleges that investigators were told not to examine whether a prison employee was hiding a cell phone, or if an inmate had “put out a hit” on people outside the prison system. Other alleged spike investigations included probes into prison employees who fired service weapons, once during an alleged off-duty bar fight. Allegedly, both files were marked “no action taken” by senior officials.

The union, Fraternal Order of Police Lodge 174, represents about 90 officers within the Department of Corrections’ Special Investigations Division. The union has previously clashed with the Department’s leadership on issues of tactics and resources. 

The Special Investigations Division has been controversial for its dual role in probing gang activity and handling internal affairs. Officials inside and outside of the Division say its dual role creates distrust within the Department.

Spokespeople for the Department of Corrections and the Attorney General declined to comment on the pending lawsuit. Please check this blog periodically to ascertain updates regarding this lawsuit as the same become available.

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A previous entry to this blog focused upon the presence of illicit cell phones in prisons. In the entry, it was explained how illicit cell phones remain a major problem inside New Jersey’s prisons, as inmates use the devices to secretly communicate with each other, intimidate witnesses and direct drug deals and other illegal activity.

On September 16, 2009, the Trentonian reported that New Jersey Attorney General Anne Milgram is now utilizing sniffing dogs and orifice scanners to address the problem. Recently, twenty-five convicts from five different gangs and 10 other New Jersey prison inmates have been indicted for possession of cell phones.

Attorney General Milgram announced the indictments at a press conference in which police dogs demonstrated their ability to sniff out hidden phones and authorities unveiled a new cell detection device called the BOSS, for “Bodily Orifice Security Scanner.” The BOSS is a device for looking into a body like and x-ray machine or airport surveillance equipment that can see hidden items. The scanner is within a chair that inmates sit in to be checked for contraband.

Prison officers and others in New Jersey are concerned that the gangs which overpopulate state prisons are trying to run the prisons at the same time they try to call the shots for other gang members still on the outside. “Safety and security both inside and outside the prison walls are paramount to our mission,” said New Jersey Department of Corrections Commissioner George W. Hayman. “Illegal cell phones potentially provide the offender population with an opportunity to compromise public safety. This cannot and will not be allowed to happen, and we will continue to utilize aggressive, proactive measures in our efforts to protect law-abiding citizens.”

Attorney General Milgram stated that between August 2008 and July 2009, New Jersey Corrections Officers seized 391 cell phones from inmates. She also noted that the gang population in New Jersey prisons keeps escalating because of all the recent arrests of gang members, almost 2,000 in the last 13 months.

To read the article in its entirety, please click on the following link.

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As reported by the Asbury Park Press on August 24, 2009, Keith Trimmer, 41, a senior corrections officer at Mountainview Youth Correctional Facility, has been charged with bringing an imitation hand grenade into the facility on May 13, 2009, creating a disturbance, according to the Hunterdon County Prosecutor’s Office.

Other correction officers saw the device, prompting a response from the Department of Corrections’ Special Operations Group. The Special Operations Group provides tactical and technical support during a crisis. 

The incident was investigated by the Hunterdon County Prosecutor’s Office, Major Crimes Unit and the Department of Corrections, and the Special Investigations Division of Mountainview Youth Correctional Facility. As a result, Officer Trimmer has been suspended without pay since May 15, 2009.

To read the article in its entirety, please click on the following link.

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As reported in the Trentonian on August 24, 2009, illicit cell phones remain a major problem inside New Jersey’s prisons, as inmates use the devices to secretly communicate with each other, intimidate witnesses and direct drug deals and other illegal activity. As a result, one New Jersey lawmaker is proposing to give corrections officials more tools to deal with the problem. 

Assemblyman Patrick Diegnan, Jr. recently proposed legislation calling on the State to seek proposals for installing and operating a wireless communications device detection system. Another measure calls for blocking the transmission and reception of cell phone equipment carrying voice, text messages, images and other data within correctional facilities.  No hearings have been scheduled yet on either measure.

Officials would have to ensure that the latter technology would not interfere with emergency or public safety communications and that it operates at the lowest possible transmission level necessary, nor interfere with cell phone signals that originate and end outside the state’s correctional facilities. 

Nearly 400 cell phones have been seized in correctional facilities since August 2008, when officials started keeping track of confiscations, according to State data. More than a third were found in Northern State Prison in Newark, which houses the State’s most dangerous gang members, and four associated halfway houses. Officials say the smuggling problem has worsened in recent years as cell phone technology has improved. They note that newer, smaller phones are made with less metal, making them harder to detect. 

“Incarceration should be a time for reflection and rehabilitation, not for continuing criminal enterprises or intimidating witnesses,” Diegnan said. “We should take advantage of the technology we have to ensure offenders aren’t simply moving the bases of their operations behind bars thanks to cell phones.”

New Jersey, though, is not the only state dealing with a phone smuggling problem. About 3,500 phones have been found in California institutions this year, which is more than the entire total seized in 2008. In Texas, officers have found more than 900 phones so far, compared with 1,200 for all of last year.

“Illegal cell phone use by prisoners has become a leading worry throughout the country and has played a leading role in the expansion of gangs both behind bars and on our streets,” said Diegnan. “While we’ve taken aggressive steps here in New Jersey to combat it, these bills would simply boost our efforts and enhance public safety.”

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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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In the matter of Florence v. Board of Chosen Freeholders of the County of Burlington, Civil Action No. 05-3619, the United States District Court, District of New Jersey, addressed the issue of strip searches of non-indictable offenders.

Plaintiffs consisted of a certified class to include all arrestees charged with non-indictable offenses, which were processed at Burlington County Jail and/or the Essex County Correctional Facility and were strip searched without a reasonable belief that they were concealing contraband, drugs, or weapons. Defendants were the Board of Chosen Freeholders of Burlington County, Burlington County Jail, Warden Juel Cole, Essex County Correctional Facility, Essex County Sheriff’s Department, and several John Does.

Plaintiffs sought summary judgment on the issue of whether Defendants violated Plaintiffs’ constitutional rights by their policy of strip searching non-indictable arrestees without reasonable suspicion. Plaintiffs also sought injunctive relief on behalf of the class against the correctional facilities’ strip search policies.

In response, Defendants also sought summary judgment as to whether the strip searches were constitutional. In addition, Defendants sought summary judgment on the following issues: (1) 11^th Amendment immunity for the Board of Chosen Freeholders of Burlington County, Burlington County Jail, and Warden Cole in his official capacity; (2) qualified immunity for Warden Cole in his individual capacity; and (3) the dismissal of count five involving section 1983 municipality custom violations regarding Essex County.

The District Court held that blanket strip searches of non-indictable offenders, performed without reasonable suspicion for drugs, weapons or other contraband are unconstitutional. Specifically, the Court indicated that the search policies at Burlington and Essex County jails do not pass constitutional muster under the balancing test set forth by the U.S. Supreme Court in Bell v. Wolfish. The Court also determined the justification for the blanket policy is not compelling, where it is based on general security concerns and health concerns, as nothing prohibits jail officials from searching non-indictable offenders, assuming they have reasonable suspicion to do so.  

Based upon its finding that blanket strip searches of non-indictable offenders, performed without reasonable suspicion for drugs, weapons or other contraband, are unconstitutional, the Court granted Plaintiffs’ motion for summary judgment. As to a remedy, the Court denied Plaintiffs’ motion for injunctive relief on account of a lack of standing, since Plaintiffs have failed to show irreparable harm in that they are unlikely to be subjected to strip searches in the future. 

Lastly, the Court denied Defendants’ Motion to dismiss in its entirety. The Court found Defendants’ arguments and factual averments are too scant to support a finding of 11^th Amendment immunity and Plaintiffs’ factual allegations regarding municipal liability under section 1983 sufficiently complied with pleading requirements under Federal rules. Finally, the Court determined Warden Cole was not entitled to qualified immunity since a constitutional violation was present and Warden Cole ought to have been put on notice that the strip search policy was unconstitutional.

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