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As reported by nj.com, amid a rising tide of violence in Trenton, including a murder in the shadow of the Statehouse on Route 29, the State Attorney General sent officials yesterday to discuss helping Trenton’s layoff-depleted police department, Mercer County Prosecutor Joe Bocchini said today. The meeting between Bocchini, Trenton acting Police Director Dave Armitage, and officials from Attorney General Jeffrey Chiesa’s office was hosted at Bocchini’s office and included the discussion of State Police help.   

Trenton Mayor Tony Mack laid off roughly one-third of the 300 member police department in September amid sweeping city budget cuts. Some police officers were rehired through grants, but the department ended the year with at least 80 less officers. “Unfortunately it goes back once again to manpower, the department is severely understaffed,” Bocchini said.

Bocchini said he believes Trenton needs at least 50 more police officers to make a dent in the violence. Armitage wrote a letter to the State Police Superintendent seeking assistance on Monday and State Senator Shirley Turner has previously offered to broker a meeting regarding State Police intervention. Turner and Attorney General Chiesa had a lengthy meeting on the topic last week, Bocchini said. 

The State Police fall under the Office of the Attorney General. Bocchini said no guarantees have been made and he cautioned that any plans were still in the discussion stage.

Trenton had three reported murders in January, following a December that saw six slayings in the city. The city’s homicide rate spiked to a four-year high for 2011. The Mercer Prosecutor’s office and Mercer County Sheriff Jack Kemler have already sent additional manpower to augment the Trenton police anti-crime unit.

Bocchini said yesterday’s meeting with Director of the Division of Criminal Justice Stephen Taylor was set up last week, prior to a drive-by shooting on Route 29 that left a 23-year old city man dead a few hundred yards from the Statehouse.

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As reported by nj.com, complaints against New Jersey State Police troopers for everything from excessive force to minor paperwork violations fell for the fourth year in a row in 2010, but more troopers faced the most serious allegations of misconduct, a new report shows. The public and other officers filed 848 complaints against troopers in 2010, down from 886 in 2009 and the fewest of any year during the past decade, according to the report, issued late last week by the division’s Office of Professional Standards.

The complaints spawned misconduct investigations of 437 troopers, the most since 2006. With only about half of these 290 investigations against the troopers completed, 62 charges were substantiated, also the most since 2006, according to the report and past statistics. The State Police did not identify the troopers involved or elaborate on their infractions. The report also said that the division received 1,137 citizen compliments last year thanking troopers for their work.

Christopher Burgos, the newly-elected president of the State Troopers Fraternal Association, said the numbers were impressive given that troopers had more than two million encounters with citizens in 2010. “Put us against any agency out there, and no one’s under the scrutiny we are,” Burgos said. “The high performance and professionalism far excels any other agency out there. But we take seriously what goes on with disciplinary matters and will defend our members appropriately.”  

The American Civil Liberties Union of New Jersey said it was still reviewing the report but criticized the division for not including the race or ethnicity of those who filed complaints, the number of pending cases from prior years or the number of punishments handed down by the type of complaint. Deborah Jacobs, president of the ACLU, said it will be hard to draw any conclusions from the report because it is too vague. “Unfortunately, the state provides less and less information to the public about the State Police rather than more and more,” Jacobs said. “We’re also very concerned that it took a full calendar year to release.”

Lieutenant Stephen Jones, a spokesman for the State Police, said the report included the same information as it always has in the past. He said it came out late in the year because the office was more focused on closing outstanding cases. Jones also said a higher percentage of complaints are being generated internally, which shows the division is better policing itself.

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As reported by nj.com, in what some advocates of open government call an unprecedented overreach, Attorney General Paula Dow has blocked the public from knowing how much overtime State Police troopers and other state law enforcement officials earn. Dow’s rule, which took effect this month, is part of a larger effort by the Attorney General to make confidential any records that “may reveal or lead to information that may reveal” an officer’s assignment.

The measure applies to the State Police and any other law enforcement officers that work under the Department of Law and Public Safety, but not local police departments, said Leland Moore, a spokesman for Dow. But open government advocates said the move by Dow restricts basic financial information, and that the taxpayers of New Jersey have a right to track public spending, including overtime. “Public employees, including law enforcement, have never liked the public knowing how much they make,” said Ron Miskoff of the New Jersey Foundation for Open Government. “But the public is paying the freight and I don’t see how knowing someone’s overtime is going to put anyone in danger.”

State records show that troopers earned $25.5 million in overtime last year, and as of September they made $15.7 million. Topping the list was Sergeant Robert Galik, assigned to Turnpike duty, who earned $63,221 in overtime last year. He had made $50,685 through the first nine months of this year, the second highest amount among troopers.

The State Treasury currently makes payroll information available for all state employees, including police, through a website created under Governor Chris Christie’s open government initiative. The website, yourmoney.nj.gov, billed as Christie’s “Transparency Center,” is updated every three months and is intended to help “taxpayers better understand public finances” and to “make government more accountable.” Moore said the Trasury will comply with Dow’s new rule and no longer post overtime information for police under the Department of Law and Public Safety.

Under the rules, total overtime figures for the department and its divisions will still be available. Paul Loriquet, a spokesman for Dow, said the rule reflected the long-standing position of the Attorney General’s Office. The Department of Corrections said there is no rule like the one imposed by the Attorney General to block overtime data for correctional officers.

Dow’s rule regarding overtime was enacted as part of several measures to make more records confidential, including those that detail background investigations or evaluations for job applicants and those concerning employee discipline, discharges or promotions. Many of the rules, other than the overtime provision, are similar to restrictions on public records under the state open records act. But Miskoff said they went too far in curtailing public access.

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As reported by nj.com, when the New Jersey State Police’s first class of recruits in two years reports for training today, only five of 123 will be black, a striking failure in the division’s decade long effort to achieve greater diversity. Now, the National Association for the Advancement of Colored People (“NAACP”), which settled discrimination claims with the State Police in 2000 to force greater minority recruitment, says it will return to court to argue the state has given only lip service to the problem.

The NAACP’s vow of legal action reignites a contentious debate about why the State Police struggles to enlist new black troopers. While minorities like Hispanics have gained ground in the past 11 years, the percentage of black troopers has fallen from 8 percent to 6.4 percent, state figures show. With more than one-third of black troopers nearing retirement, their ranks are expected to thin to levels not seen since the division was under federal oversight for discriminatory hiring decades ago.

The new State Police class, selected more than a year ago, is more diverse than the current 2,768 troopers. It is 72.4 percent white, 17.9 percent Hispanic, 4.9 percent Asian, 4.1 percent African-American and 0.8 percent Native American. It’s 88 percent male and 12 percent female. But the class is still less diverse than the state, which is 68.6 percent white and 13.7 percent black.

The State Police has faced scrutiny on hiring minorities for decades. Before the NAACP lawsuit, the division was under watch by the U.S. Department of Justice from 1975 to 1992. Minorities now make up 17 percent of the force. 

The NAACP says the state is not trying hard enough. The Attorney General’s Office says the African-American community is not referring enough qualified recruits. The troopers union says the company that scores the written tests for recruits uses a secretive system that may exclude good black candidates. ‘We’re not getting enough African-Americans and we’re not getting the best candidates,” State Troopers Fraternal Association President David Jones said. “The system is a complete farce because it’s not fair to anyone.”

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As reported by nj.com, four years after a State Police union leader, David Jones, tangled with radio talk show host Craig Carton, the sizzle has long gone out of the feud. Yet, the labor dispute it spawned lives on.

Jones faced a five-day suspension for bringing personal information about Carton to a news conference after the shock jock criticized troopers on his New Jersey 101.5 FM radio show. But Jones never served the suspension, and he filed a labor complaint saying the state was trying to silence him. The complaint has never been acted on by the Public Employment Relations Commission, which handles disputes between labor and management.

In a twist, the complaint has languished for so long that Jones is now a member of the commission with which it was filed. He was nominated by Governor Chris Christie last month. Christine Lucarelli-Carneiro, the commission’s deputy general counsel, said that members routinely recuse themselves from cases in which they have a stake.

The complaint, not yet closed, may never need to reach the full commission, which includes labor and management advocates. Lucarelli-Carneiro said the state and the union indicated early on that the dispute could be settled amicably.

The labor dispute stems from a 2007 feud between Jones, the outspoken president of the State Troopers Fraternal Association, and Carton, an acerbic radio talker who was one of two “Jersey Guys” on 101.5 known for their irreverence. Carton and his co-host, Ray Rossi, accused the State Police of planning a “ticket blitz” to harass motorists. Enraged, Jones called a news conference at the Statehouse to denounce the accusation as false. He brought a piece of paper with Carton’s home address and other personal information.

Jones halted his campaign at the request of State Police Superintendent Rick Fuentes. But the state attorney general at the time, Stuart Rabner, said Jones’ actions were inappropriate and undermined the State Police. Fuentes responded by issuing a five-day suspension to Jones, who wants it rescinded on the grounds that the disciplinary action infringes on his right to represent his union members.

“The wrongful actions taken by the public employer are retaliatory in nature,” the complaint says. ‘The actions are clearly intended to discourage union representatives in the exercise of rights guaranteed by the (New Jersey Employer-Employee Relations Act).”

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As reported by nj.com, the State Police should drop all charges against the protesters arrested at Thursday’s contentious budget hearing, Senate President Stephen Sweeney said today. “The issues of pension and health reform are tough and emotional,” he said in a statement. “I understand that. And as someone who has spent my life in a union fighting for working people, I know that sometimes emotions bubble over.”

Sweeney was the focus of heated criticism throughout the day for pushing a bill that overhauls the state’s pension and benefits system for public workers, requiring them to devote more of their salaries to cover those costs. The bill passed the Senate budget committee Thursday 9-4 despite an outcry inside and outside the hearing room. Before the vote, 25 union workers, including the state director of the AFL-CIO, were escorted out of the Statehouse by State Police troopers. They were promptly let go with disorderly conduct charges.

Stephen Jones, a spokesman for the State Police, said the matter is out of their hands. “It’s been submitted to the court,” he said. “At this point it’s up to them.”

The show of resistance was planned a few days before the hearing, however. Bob Master, political director of the Communications Workers of America, said they warned police “at the last minute.” “Nobody wants to resort to this kind of activity,” he said. “You want to be able to accomplish your goals through the normal legislative process, but I think people felt a sense of real betrayal here.”

Sweeney had a different take on the rancor outside. Christopher Shelton, a national CWA official addressing thousands of demonstrators, repeatedly called Sweeney, Governor Chris Christie, and Assembly Speaker Sheila Oliver “nazis.” Other speakers disowned that comparison and rebuked Shelton from the stage.

“While the rank-and-file who protested in the committee room were largely respectful, their leaders outside were not,” Sweeney said. “When you defame the character of those with whom you differ and use over-the-top and over-heated rhetoric not to actually further an argument but simply to stir up a crowd, you degrade and diminish yourself and your cause.” Shelton apologized hours after the event, after Democrats and a national group of holocaust survivors denounced the remarks.

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As reported by nj.com, for the second year in a row, public employees across New Jersey are retiring at a record rate, state figures show. Nearly 15,000 public workers are expected to retire from January through the end of July, a slight increase from the same period last year, when a record number of state employees left their jobs.

The steady rise in retirements comes amid economic uncertainty, with changes in pension and health benefits for public employees remaining at the top of the state’s political agenda. As a result, an increasing number of the more than 500,000 state and municipal employees are choosing to retire rather than risk having their benefits cut by legislators.

“People have a certain set of expectations, and at some point, it just makes sense to retire,” said Jim Ryan, a spokesman for the state Policemen’s Benevolent Association. Ryan said retirements, combined with layoffs, have left police departments across the state understaffed and in many cases without the streetwise experience needed to conduct adequate investigations.

The numbers provided by the state Treasurer’s office show that State Police officers are also retiring at a record pace, a trend that the superintendent recently told a state Senate committee was disturbing. By the end of July, records show, 144 state troopers are expected to retire, significantly higher than any 12-month period since at least 2000. In the previous decade, an average of 61 state troopers retired each year.

Overall, more than 20,000 public workers retired last year, a 60 percent increase over 2009 and the highest number in at least a decade, according to the state Department of the Treasury. The unexpected surge may eventually force the state to pay more money into its troubled pension fund. Every three years, the state examines such assumptions as retirement rates and employee levels, which serve as the basis for pension payments, and adjusts accordingly. The next study will look at the three-year period from June 2008 to June 2011, when retirements jumped.

While public employees ponder whether to remain at their jobs or retire and lock in their benefits, Governor Chris Christie and Democratic leaders are trying to work out the details of health and pension reform. Under all of the proposals that have been floated so far, public employees who have spent a prescribed amount of time on the job, generally 25 years, would not have their benefits cut upon retirement.

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As reported by nj.com, despite a new round of public safety budget cuts, it could be a good year for the State Police. There will be new troopers, new cars and new civilian support staff in the upcoming budget year, Attorney General Paula Dow said.

Dow told the Senate Budget and Appropriations Committee that the State Police is a “core funding priority” for Governor Chris Christie. “The class is expected to begin this August and provide us with approximately 100 new state troopers by graduation early next year,” she said. The class is expected to cost $3 million.

The State Police’s ranks are being depleted by a spike in retirements. Even with the new class, the total number of troopers is projected to drop from 2,819 this summer to 2,799 in June of next year. Another 50 civilians will be hired to handle administrative tasks, allowing higher-paid troopers to focus on police work, Dow said.

The State is also buying 325 new vehicles. Marked cars cost $51,000 while unmarked cars go for $30,000, according to Lee Moore, spokesman for the attorney general. About 850 State Police cars, 37 percent of the total fleet, have reached the 125,000 mile threshold and require replacement. Between the current fiscal year and the next fiscal year, 725 of those cars will be replaced.

Aging vehicles have been a concern for the Christie administration. The governor’s transition team reported that “certain elements of the State Police vehicle fleet have deteriorated to the point where safety is an issue.” 

The Department of Law and Public Safety, which oversees the State Police, is facing a $5 million budget cut. However, other areas of the organization will likely see new staff members. The state’s Division of Law, which has lost 100 lawyers because of a six-year hiring freeze, is expected to hire another 33 attorneys. The Office of Forensic Sciences, which operates the state crime lab, is slated to take on 29 new people, including scientists and evidence handlers.

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As reported by nj.com, a security decision by State Police to turn union members away from the Statehouse hours before the Senate went into session was criticized as unfair by a key lawmaker and public employee unions. About 50 public employee union members trying to participate in a lobbying day never got inside the Statehouse on March 21, 2011, which was the third day of collective bargaining meetings between Communication Workers of America, the state’s largest union, leaders and Governor Chris Christie’s office.

It is not unusual for groups to flood the Statehouse halls and meet with their individual representatives and talk to others in the hallways. It was the first time CWA political director Bob Master encountered a problem with members passing security. “This came as a complete surprise, and they dug out this policy from 1997, which no one had ever seen before,” Master said. “It seems like a systematic effort to prevent people from engaging in the democratic process.” 

People were delayed entering the building because they were headed to packed areas, said State Police spokesman Sgt. Stephen Jones. “We are in charge of the security of that building, and we’re only going to do things in the interest of that security,” Jones said. “There was no attempt to stifle any opinion or keep any group out. We’re only concerned with the security and safety of those in that building.” When someone enters the Statehouse, State Police require a destination be designated. When a large number of CWA members all gave the same destination, police stopped the group when the room’s maximum occupancy was reached, Jones said.    

Senator Loretta Weinberg questioned whether the size of the group, estimated by union officials at about 150, came close to creating any safety concerns, adding that the Statehouse has been filled with many more people on other days. Weinberg said she suspects someone told State Police to turn the union members away, but she does not know who was behind the restrictions. She added that she hopes legislation or a resolution is not needed to prevent a similar event from happening again. “I feel very passionately about this, the Statehouse is owned by the people,” Weinberg said. “I would never recommend to anyone that you try to control public opinion by controlling the public.”

Christie spokesman Michael Drewniak said his office was not aware of the issue and no directive had come from the administration to turn people away. “I don’t think anybody should be turned away from the Statehouse, but we leave security decisions up to the State Police,” Drewniak said.

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

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

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

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

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

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As reported in the Trentonian on September 22, 2009, federal oversight of the New Jersey State Police has come to an end. U.S. District Court Judge Mary L. Cooper has ended federal monitoring of the New Jersey State Police more than 10 years after the shooting of unarmed minority men during a highway traffic stop prompted intervention over racial profiling.

Judge Cooper signed the order dissolving a consent decree, following a joint motion filed in August by the State and U.S. Justice Department. The move followed Governor Jon Corzine’s bill signing in August that established an office within the State Attorney General’s office to oversee the State Police.

State Police agreed to federal oversight after troopers on the New Jersey Turnpike shot at a van containing four minority men during a 1998 traffic stop, wounding three of them. The agency has implemented major changes since then, including training and new supervisory policies to monitor road stops. In addition, trooper vehicles now contain dashboard cameras to videotape traffic stops. 

In a 2007 semiannual report, federal monitor Jim Ginger said that the State Police force is a different organization than when troopers fired on the van. Ginger and a second monitor tracked troopers’ stops of minority motorists for years, issuing reports every six months. The monitors found the State Police consistently in compliance for several years before the judge lifted the order. Corzine confirmed the finding with an independent review.

David Jones, President of the State Police Fraternal Association, commended the troopers but condemned the Attorney General’s office for not having policies and systems in place that would have allowed the State Police to identify and resolve isolated incidents of profiling. Specifically, Jones stated, “Former attorneys general for their own political expediency were willing to throw the state police under the bus…a decade later, we can look back at who the true professionals are and at those people who would sacrifice public safety for their own careers.”

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

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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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U.S District Court Judge Frieda L. Wolfson dismissed a lawsuit by a group of New Jersey State Troopers seeking to overturn the ban on allowing them to practice law while being employed by the State Police. The decision was filed on July 9, 2009.

“If the troopers were to prevail on this argument, state agencies would be precluded from holding their public employees, specifically attorneys, to a higher ethical standard than those imposed on private attorneys,” Judge Wolfson wrote in her decision. 

Two trooper unions, and twenty one (21) troopers working as lawyers, had argued the State was preventing troopers from pursuing another profession. The State said representing clients and enforcing the law presents an inherent conflict of interest, prohibited under a 2007 revision of the State’s ethics code.

Frederick J. Gordon, president of the Non-Commissioned Officers Association, said they hoped troopers already practicing law could be exempted. “We’re disappointed in the outcome,” he said. “I don’t know what our next step is.”

The unions argued that troopers’ legal work, such as drafting wills or helping with real estate closings, does not conflict with their criminal justice work. However, the State argued that even basic legal tasks could cause problems.”

“By way of example, if a trooper is retained to draft a will for a client, and happens to come across nefarious, possibly illegal, activity during his review of his client’s confidential personal records, the trooper would find himself in an unenviable position, obligated by his duties as an officer of the law to report the crime while simultaneously constrained by his oath as an attorney to protect his client’s confidences,” Judge Wolfson’s decision explained.

The debate centered on a 2007 change to the State’s ethics code. The previous version prohibited almost all attorneys in the department from practicing law outside their job. The revision extended that prohibition to state troopers.

David Wald, spokesman for Attorney General Anne Milgram, praised Judge Wolfson’s decision. “In rejecting the state troopers’ challenge to that rule, Judge Wolfson recognized the potential for conflicts between a private attorneys’ responsibilities to their clients and the department’s law enforcement responsibilities,” he said. “She concluded that the prohibition on the private practice of law by state troopers was an appropriate means to preserve the public trust.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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 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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