Court Reinstates Princeton Borough Police Officer

Posted on January 25, 2011 by Donald Barbati

 

As reported in the Trenton Times on January 25, 2011, a judge has ordered Princeton Borough to reinstate a police officer who was suspended without pay in 2008 and to reimburse the officer for back pay and legal fees totaling an estimated $400,000.

Last week, Superior Court Judge Linda Feinberg dismissed all charges against Sergeant Kenneth Riley related to allegations that he wrongfully accessed a police department video database of motor vehicle stops in January of 2008. Feinberg issued an order requiring the borough to reinstate Riley effective this week.

Riley allegedly reviewed a video of a police stop that involved a drive suspected of drunken driving. A sergeant and three patrolmen were involved in the stop, and two of the patrol officers were under Riley’s supervision. During the stop, the sergeant allowed the driver to urinate in bushes on private property. Riley learned about the incident and believed the sergeant had violated policy.

A borough officer for 17 years and sergeant since 2006, Riley was suspended with pay in March 2008 along with two other officers as part of an internal affairs investigation related to the access of the video database. He was indicted by a grand jury in September 2008 and the borough stopped paying him in late September of 2008.

The Mercer County Prosecutor’s Office contended that Riley showed the footage to other officers in order to hurt the other sergeant’s standing in the department. Prosecutors claimed he was untruthful during questioning about when and why he accessed the database.

But, in November of 2009, a judge threw out the six-count indictment because Riley was authorized to access the database. Despite this finding, the Borough continued to pursue the case internally, racking up thousands of dollars more it would owe in back pay and legal fees. An administrative hearing officer upheld Riley’s suspension, which Riley then appealed in Superior Court.

Riley, who earned a salary of $103,706 annually, is owed about 28 months of pay, or more than $241,000, plus money he spent on health insurance and legal fees, for a total estimated to be about $400,000. Including the borough’s fees for its own lawyer, staff, and an administrative hearing officer, the case could cost borough taxpayers about $500,000.

Councilman Roger Martindell, a vocal critic of the borough’s handling of disciplinary matters, called the pursuit of disciplinary action against Riley “a colossal waste for borough taxpayers.” “It appears that the borough has spend hundreds of thousands of dollars in pursuit of disciplinary action against Sgt. Riley without a firm foundation for doing so,” he said.

 

Borough Council President Kevin Wilkes, who starting serving as a police commissioner in 2010 after the council revived its police commission, said the borough will abide by the judge’s order. The governing body has not decided whether to appeal the case, and will discuss the matter in closed session at the next council meeting. 

The Borough banked Riley’s salary in the event that he would return, so the borough does not need to find the additional money for that cost, Wilkes said. Riley was also counted as one of the borough officers until recently, and one officer who is out on disability is moving to dispatch, so the Borough will not exceed its limit of officers with Riley’s return.
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Merit System Board Increase of Disciplinary Penalty Upheld

Posted on March 24, 2009 by Frank Crivelli

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

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

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

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

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

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

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Defense to Lawsuit Arising Out of Action During Side-Business Not Subject to Reimbursement

Posted on March 17, 2009 by Frank Crivelli

On March 16, 2009, the Appellate Division decided Siaw v. Valenzuala. In the case, Defendant Diomedes Valenzuala, a police officer, appealed from the judgment of the trial court denying his claims against his former employer, the Township of Irvington, for indemnification pursuant to N.J.S.A. 40A:14-155 in connection with his defense of a lawsuit against him arising out of his exercise of police powers in arresting Plaintiff.

TheCourt indicated that the central question in the case was whether, at the time Valenzuala lawfully arrested Plaintiff, Valenzuala was acting “in the furtherance of his official duties.” If he stopped to investigate a suspicious incident on his way to the police station in response to a call for him to report there on police business, as Valenzuala maintained, then Valenzuala would be entitled to reimbursement under N.J.S.A. 40A:14-155. If he was engaged in a side-business of “keeping the peace” for a towing company, as the trial judge found, then he was not acting “in the furtherance of his official duties” within the meaning of N.J.S.A. 40A:14-155, even if he acted lawfully in arresting Plaintiff.

The Appellate Division affirmed, finding that the trial court appropriately determined that Valenzuala was engaged in a side-business of “keeping the peace” for a towing company at the time of the arrest and not “acting in the furtherance of his official duties.” As a result, the Court dismissed Valenzuala’s action seeking reimbursement for costs associated with his defense of a civil action filed by Plaintiff. 

This case illustrates the principle that officers who work a side-job may not be reimbursed for defending a legal proceeding brought against them for actions which arose out of their performance of the side-job. Many public safety employees, especially during these economic times, work side-jobs in order to obtain additional compensation. All of these officers, however, should be aware of this case. In the event a lawsuit is brought against you, on account of your exercise of police powers while engaged in the side-job, the potential is great that you will not be reimbursed for defending such a lawsuit.

 

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Distinction Between Public and Private Speech

Posted on January 6, 2009 by Frank Crivelli

 

In Brennan v. Township of Fairfield, the United States District Court for the District of New Jersey addressed an important topic for public safety officers, freedom of speech. In this case, Plaintiff, a police officer, alleged he was retaliated against for distributing a memorandum on police letterhead to the Mayor and Township Council. The memorandum contained the officer’s reasons for having issued two motor vehicle summonses to a township administrator.   

Defendants moved for summary judgment of plaintiff’s claim. The Court granted the motion because Plaintiff’s speech was made pursuant to his duties as a police officer. Therefore, his speech was not protected by the First Amendment. In addition to seeking summary judgment, Defendants also moved for sanctions against Plaintiff for the assertion of a claim which Plaintiff later withdrew. The Court denied this motion along with Defendants’ other motions to disqualify counsel and to compel mediation.   

This case, although very brief, illustrates how one’s freedom of speech can be limited based on the context in which the speech is offered. Speech made pursuant to one’s duties as a public safety officer will not be protected by the First Amendment, thereby negating support of a retaliation claim. As a result, it is important for public safety officers to be cognizant of the distinction between speech made pursuant to their employment from all other forms.

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Arrest of Undercover Agent Gives Rise to Various Claims

Posted on December 8, 2008 by Frank Crivelli

 

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

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

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

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

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

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Non-Civil Service Municipality's Promotion Decision Overturned

Posted on November 18, 2008 by Frank Crivelli

 

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

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

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

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

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

 

The matter was ultimately submitted to arbitration after the grievance was unable to be resolved. The arbitrator concluded that Amico was improperly deprived of the promotion contrary to statute and that he should be promoted with full back pay. In making his ruling, the arbitrator noted that Amico, whose education and seniority were greater than Highley’s, was 1.4 points ahead of Highley after Phases I and II, but then fell behind following the Phase III interview. The arbitrator also pointed out that there was nothing in the record to positively determine what elements in that interview caused Amico to fall behind Highley. The arbitrator further surmised from the testimony that Amico had recently moved away from the Borough and that a non-civil service municipality can only use residency in a tiebreaker on the promotional test, which was not the case here.

Thereafter, the Borough filed a complaint in the Superior Court, wherein the arbitrator’s award was stayed pending the outcome of the case. In the complaint, the Borough alleged: (1) that it had placed substantial evidence in the record noting what occurred during the Phase III interview; and (2) the arbitrator disregarded the testimony of the Borough Administrator, the Police Chief, and all the Phase III documentation referenced during the arbitration. Attached to the complaint were two pages of questions asked of each candidate in Phase III, as well as the Chief’s corresponding notes concerning each candidate’s answers.

The trial judge denied the Borough’s motion to vacate the arbitrator’s award or to hold a plenary hearing. In so holding, the judge noted that so long as the arbitrator’s determination is reasonably debatable it should not be disturbed. Accordingly, the judge affirmed the arbitrator’s award, but granted the Borough’s motion for a stay pending appeal. 

The Appellate Division affirmed on appeal, essentially because it agreed with the arbitrator and the trial judge that the record was bare regarding the Borough’s reasoning for elevating Highley over Amico, thereby rendering the promotion of Highley arbitrary and capricious. The Borough appealed and the Supreme Court granted certification.

The Supreme Court held the arbitrator properly determined that the record did not adequately support the elevation of Highley over Amico. However, the Court did indicate it was beyond the arbitrator’s power to fashion a remedy that promoted Amico. Therefore, the judgment of Appellate Division was affirmed and reversed in part and the case was remanded for proceedings consistent with its holding.

In support, the Court noted that an arbitrator must uphold a non-civil service municipality’s promotion decision unless the decision was clearly arbitrary, capricious, or unreasonable, since judicial review of an arbitrator’s decision is limited and the decision should not be set aside easily. The New Jersey Arbitration Act permits courts to vacate an arbitration award in only limited defined circumstances. In addition, a court may vacate an arbitration award that is contrary to existing law or public policy as embodied in legislative enactments, administrative regulations, or legal precedents.

After reviewing the record in this case, the Court agreed with the arbitrator’s decision. The Court noted that the arbitrator’s conclusion that the record shows no reasoning by the Borough for elevating Highley is unassailable. The Court further noted this case stands for the unremarkable proposition that, should a grievant make the type of showing that Amico made here, and should the municipality not provide even the simplest explanation on the record for some kind of rational reason for its decision, the decision cannot stand. 

The Court also indicated that the Legislature, through statue, clearly established residence as a tie-breaker in non-civil service municipalities. However, in this case, there was no tie after the first two phases, simply out, Amico was ahead of Highley. Moreover, the Court also noted that if the record was inadequate regarding how Highley passed Amico during Phase III, it was equally deficient in respect of Amico’s leadership skills and how, upon testing, he lost his lead. Therefore, it was beyond the arbitrator’s power to fashion a remedy that promoted Amico and, thus, the matter must be remanded to the Borough to conduct a new Phase III proceeding.
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BOROUGH'S PROMOTIONAL PROCESS UPHELD

Posted on November 10, 2008 by Frank Crivelli

 

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

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

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

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

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

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

         

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Accidental and Ordinary Disability Benefits Under The Police and Firemen's Retirement System

Posted on June 5, 2008 by Frank Crivelli

During the course of a public safety officer’s career, many uniformed employees become injured and disabled on the job. If a public safety officer is unable to continue his or her employment as a result of the injury, they are often left with no choice but to medically retire. The Police and Firemen’s Retirement System (PFRS), is the New Jersey public employee retirement system that services the vast majority of public safety officers in the state of New Jersey. PFRS offers two disability retirement pensions that have diverse entitlements based primarily on how the accident occurred that lead to the disabling injury. It is the Board of Trustees for PFRS that makes the determination of what type of disability pension an individual will qualify to receive. In this post, I will talk briefly about the two types of disability pensions and the benefits associated with each. In my next post, I will discuss the current state of the law as it pertains to accidental versus ordinary disability, and how the applicable pension standards are being interpreted by the Board of Trustees for PFRS and the New Jersey Courts.    

ORDINARY DISABILITY

To qualify for Ordinary Disability retirement benefits a public safety officer must:

  • be a member in service at the time the application is filed with the Division of Pensions and Benefits;
  • have 4 or more years of New Jersey service credit in the pension system (the purchase of out-of-state, military, and U.S. government civilian service cannot be used to attain the 4 years); and
  • be considered totally and permanently disabled (the member must prove that he or she is physically or mentally incapacitated from performing the normal or assigned job duties with no possibility for significant improvement).

Ordinary Disability Retirement benefits are not reduced by any Social Security or private insurance benefits that may be payable.   However, any Workers' Compensation award receive from the accident that may have caused the disability may be reduced, or receive a “setoff”.

Ordinary Disability retirement benefits are subject to federal tax to the same extent as other pensions.

ACCIDENTAL DISABILITY

To qualify for Accidental Disability retirement benefit,s a public safety officer must:

  • be a member in service at the time the application is filed with the Division of Pensions and Benefits;
  • be an active member of PFRS on the date the “traumatic event” occurred that caused the injury;
  • be considered totally and permanently disabled as a direct result of a” traumatic event” that happened during and as a direct result of carrying out his or her regular or assigned job duties;
  • file an application within five years of the date of the traumatic event; and
  • be examined by physicians selected by PFRS. Said physicians must render an opinion that the member is totally and permanently disabled as a result of the “traumatic event”.

The definition of a "Traumatic Event" has been the subject of great debate and disagreement by the New Jersey courts. This definition will be discussed in more detail in my next post.

If a public safety officer qualifies for an Accidental Disability Retirement pension, the annual benefit will be 2/3 of the annual compensation on which pension contributions were being made at the time of retirement or the date of the traumatic event, whichever provides the higher benefit.

If the Public Safety Officer is receiving periodic Workers' Compensation benefits, the Accidental Disability retirement benefits will be reduced dollar for dollar by the periodic benefits paid after the retirement date. The retirement benefit is not reduced by any Social Security or private insurance benefits that may be payable.

The Division of Pensions and Benefits reports Accidental Disability retirement benefits as exempt from federal income tax; and benefits are not subject to New Jersey State income tax until the age 65.

With the high occurrence of injury on the job, public safety officers and union leadership must make themselves familiar with the different retirement benefits in order to give proper guidance to their membership. It is often disability retirement benefits that injured public safety officers rely on to support their family members after they can no longer protect and serve.


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