On Thursday, March 26, 2020, on behalf of ten thousand (10,000) New Jersey State Correctional Police Officers, I sent correspondence to the Commissioner for the New Jersey Department of Corrections and the Acting Director for the New Jersey State Juvenile Justice Commission requesting that they petition the Governor for the State of New Jersey to establish, stand up and fund a COVID-19 testing facility that is dedicated to New Jersey State Sworn Correctional Personnel.  Despite the fact that the letter explained in explicit detail the need for the facility, I was questioned by a media outlet yesterday if such a facility was truly necessary in light of the lack of tests available to the general public.  I provided an explanation to the outlet in more “layman’s” terms and felt compelled to do so again in this article.

Unfortunately, COVID-19 has reached inside New Jersey State Correctional Facilities.  Putting aside County Jails, in state facilities alone there have been eleven (11) employees that have returned positive test results for the virus.  Of the eleven, over half of the positive results were sworn law enforcement officers.  To the Department’s credit, they have been strictly adhering to the CDC guidelines in an effort to stop the spread of the virus and eradicate it from the institutions.  Based on this fact, any officer that was directly exposed to the positively impacted officer has been ordered into self-quarantine for a period of fourteen (14) days in an effort to stop the virus from spreading.  The fourteen (14) day period of self-quarantine requires an officer to absent himself or herself from their workplace for a minimum of fourteen (14) days whether they are inflicted with the virus or not.  Thereafter, if they are diagnosed as having contracted coronavirus, their absence will be longer than fourteen (14) days.  However, if they are asymptomatic, they will still be required to be absent from work for fourteen (14) days under the current CDC guidelines.

In New Jersey and across America, for various reasons too numerous to be listed here, only individuals that are experiencing symptoms associated with COVID-19 are permitted to be tested.  Therefore a Correctional Police Officer that has been exposed to an affected individual may not be tested unless he or she demonstrates CDC recognized symptomology.  New Jersey State correctional facilities require numerous Correctional Police Officers to work in very close quarters alongside one another during a work shift in an effort to manage the inmates in their care, custody and control.  As a result of these working conditions, for each officer that has tested positive for the virus, on average, twenty (20) other officers have had to be removed from the workplace and ordered to self-quarantine for a period of fourteen (14) days.  To put such a scenario in baseball or football terms, one positive result takes approximately twenty (20) players out of the game and unfortunately, “the bench” isn’t deep enough to accommodate losses such as this.  Therefore, multiple positive results within an institution at a single or overlapping time will be extremely problematic.  Such a situation will cause officers to be overworked which thereby has the potential to cause dangerous security problems.  This is a circumstances that no member of society wants to see happen.

So, the question that needs to be asked is: How will the dedicated testing facility help to alleviate this potentially debilitating problem?  The answer is simple—If we can test an asymptomatic officer soon after exposure and a negative result is returned, the officer can be returned to work thereby alleviating the potentially critical manpower shortage.  If the manpower issue is solved, the potential security problem is thereby alleviated.  Please understand that Correctional Police Officers are not looking for special treatment during this worldwide pandemic.  All that they want to do is to “get back into the game” sooner rather than later to ensure the safety and security of our State’s Citizens.

On Wednesday, March 25, 2020, Governor Phil Murphy signed Executive Order No. 110 (EO-110), directing all child care centers in New Jersey to certify by Friday, March 27, that they will solely serve as emergency child care centers for the children of essential workers. Child care centers that do not certify that they can and will exclusively care for these children of essential workers must close by Wednesday, April 1.

“Essential personnel are a vital part of our response and limiting child care to solely these individuals will assist in flattening the curve of COVID-19 cases, as well as provide our front-line workers with the critical services they need to get through this emergency,” said Governor Murphy. “A lack of child care cannot be a barrier for our essential employees, and while these workers commit themselves to our New Jersey family, we will commit ourselves to protecting their families.”

“Safe, dependable childcare has always been a necessity for working families,” said New Jersey Department of Children and Families Commissioner Christine Norbut Beyer. “It is even more crucial now for parents working in professions deemed essential during this public health crisis.  The state’s response to, and recovery from, the Novel Coronavirus really hinges on the skills and ability of our dedicated first responders and essential personnel. We need to do all we can to help them do their jobs without the worry and distraction of losing safe childcare options.”

“In this ongoing emergency, child care providers and staff who care for the children of essential workers are vitally important to our children and to the State’s response,” Human Services Commissioner Carole Johnson said. “We thank the entire child care workforce for their dedication and commitment every day, and especially during this difficult time.”

Among the directives, the Governor’s executive order directs:

  • The Commissioner of the Department of Children and Families, in consultation with the Commissioners of the Departments of Education, Human Services, and Health, shall implement a plan permitting access to emergency child care services for the children of “essential persons.”
  • In order to be designated as an Emergency Child Care Center, any person or organization, requesting permission to stay open or resume operations on or after April 1, 2020, shall submit the certification form to the Commissioner of Children and Families for approval by Friday, March 27, 2020.  If the certification form demonstrates that it will provide child care services exclusively to “essential persons” during the school closure period, and that it will follow all applicable emergency child care standards, the Commissioner shall authorize it to remain open or resume operations as an emergency child care center.
  • Any child care centers, including those as defined in this executive order, that fail to timely certify shall be closed to the public as of Wednesday, April 1, 2020, and remain closed through the school closure period. Centers shall receive notice of the Commissioner of Children and Families’ certification decision by Monday, March 30, 2020.
  • Child care centers, for purposes of this order, include entities providing care on a regular basis for children aged 0-13, including licensed child care centers.
  • For purposes of this order, essential persons shall include, but not be limited to: 1) Health care workers, including staff working in health care facilities and in community-based services including home health and behavioral health; 2) law enforcement personnel, fire and emergency services personnel, and staff at correctional facilities; 3) individuals employed at emergency child care centers operating on or after April 1, 2020; 4) staff working for entities that provide essential social services, including, but not limited to, group home and shelter staff; 5) essential government employees who are unable to work from home, including child protection services workers, child welfare workers, foster care workers, unemployment compensation processing staff, and public health employees; and 6) certain critical workers, as defined by the Commissioner of DCF, at essential retail businesses, as defined in Executive Order No. 107 (2020) and subsequent Administrative Orders. The Commissioner of DCF shall have the authority to make changes to this list.

EO-110 should hopefully alleviate the impact that Executive Order No. 104 (EO-104) has had on law enforcement personnel and the many essential employees continuing to report for duty on a regular basis. EO-104, issued by Governor Murphy on March 16, 2020, mandated that all public, private, and parochial preschool programs, and elementary and secondary schools, including charter and renaissance schools, be closed to students as of Wednesday, March 18, 2020, and remain closed as long as EO-104 stays in effect. While EO-104 is greatly needed to suppress the spread of COVID-19, the closing of New Jersey’s schools placed great stress upon thousands of essential employees throughout the State of New Jersey. Fortunately, Governor Murphy has recognized the difficulty that closing the schools has caused in this regard as demonstrated by the issuance of this new executive order, EO-110.

 

As reported by NJ.Com, the City of Trenton opened a coronavirus testing center on Wednesday, March 25, 2020, to test the City’s first responders, namely firefighters, police, and EMS. In a statement, Mayor Reed Gusciora  announced the opening of the location, at the police impound lot on North Clinton Avenue.

Only first responders serving the City’s police, fire and EMS services can receive the test at the location as of now. The site had a soft opening Wednesday, but was formally opened today.

Connor Ilchert, a spokesman for Mayor Gusciora, said the tests the city has will be used for any first responder showing symptoms, who recently traveled to Europe or New York City, or who feels they were exposed to it on the job. To this end, he noted “They can’t work from home,” he said. “If they get a 911 call, they have to go out.”

During these uncertain times, it is welcoming to see a city looking out for the needs of first responders and the dangers they, as well as their loved ones, are facing on a daily basis.  We are hopeful that other cities, municipalities, towns, and the State will follow suit in the near future to ensure the health and well-being of all public safety officers going forward. As we know, first responders are critical to overcoming the COVID-19 outbreak and well being of the New Jersey citizenry as a whole.

As strange as this may sound, I currently feel extremely fortunate that for the past twelve days the attorneys and support personnel within our firm have had the ability to “quarantine” ourselves from the nuclear work space by separating from one another and working from individualized “remote” locations.  We took these steps before we were ordered by the government to do so because the tools of our trade are all located within a cloud based remote storage site accessible from any modern computer or internet based mobile system.  Thus, when the COVID-19 virus began to spread it simply made sense and was easy to go remote.  However this has not been the case for our State’s First Responders who are clearly “Essential Personnel” thus requiring them to report to work and make efforts to re-arrange their lives, attempt to get child care issues into line, and manage the nuances and idiosyncrasies of home life now that school is being taught from a remote location.  And just think, all of this had to take place and is still taking place while each and every one of them reports to workplaces that the rest of society has been banned or discouraged from entering.

In reviewing the Center for Disease Control’s guidelines for practicing proper social distancing the American public is told to remain six feet apart from one another at all times and to wash our hands with soap and water as frequently as possible for a minimum time period of twenty seconds per wash.  However the National guidelines for practicing social distancing are not the same guidelines that apply to our law enforcement officers while they are on the job.  The guidance that the CDC provides to Law Enforcement Officers recognizes the difficulties associated with their employment when it comes to Social Distancing by stating:

  • If possible, maintain a distance of at least 6 feet.
  • Practice proper hand hygiene. Wash your hands with soap and water for at least 20 seconds. If soap and water are not readily available and illicit drugs are NOT suspected to be present, use an alcohol-based hand sanitizer with at least 60% alcohol.

I bring this to everyone’s attention to demonstrate the practical realities that First Responders face on a daily basis during this national crisis.  However, different Law Enforcement jobs bring unique issues and problems.  Police Officers patrolling our streets have to respond to calls for service that demand that they enter houses and buildings that may be severely infected with the COVID-19 virus.  Each call for service presents this “unknown”.  On the other hand, Correctional Police Officers have their own concerns.  A prison or jail ushers in hundreds of people a day from the “outside” into a closed circulated environment.  This includes everyone from civilian and law enforcement personnel to newly booked and incarcerated prisoners.  Despite the very thorough screening processes that have been put in place, we all currently know that a person can be asymptomatic for weeks while still carrying the COVID-19 Virus.  In addition, in plain and simple terms, inmates and detainees can not be routinely managed safely from a distance of six feet.  Thus close contact is an inevitable consequence of the profession, and perfect social distancing is an impossibility.

All of this brings me to my point.  In speaking to many law enforcement officers this week, both Patrol Officers and Correctional Police Officers, it seems that some Administrations have taken the position of “rationing” Personal Protective Equipment (PPE).  Not so much with the use of latex gloves as these items were being used by law enforcement officers long before the outbreak, but with the much needed disposable N95 Respirator Masks.  Many officers have informed me that they have not been issued masks by their respective correctional facility despite the fact that there are masks within the Department’s internal supply chain.  Instead, the masks are being withheld “until” there is a confirmed positive case of COVID-19 within the institution.  Recognizing that there is a shortage of NIOSH approved N95 Respirator Masks, common sense tells us that it is counter intuitive to “wait” until the virus is confirmed to be within the prison walls before we take measures to protect our officers.  Such a policy is reacting to the spread of the disease rather than proactively trying to prevent the spread of the disease.

Every officer that is reading this article most likely has a health and safety article or clause in their collective negotiations agreement that mandates that the administration meet and confer with your Local to discuss health and safety issues on a periodic basis.  Whether such an article or clause is present in the agreement or not, I urge all of our Union Leaders to call for these meetings, review the safety standards that have been put into place to prevent the spread of COVID-19 and other infectious diseases, review what PPE is in the current supply coffers; and consider making demands that officers be permitted to use the same PRIOR to an outbreak occurring.  If the supply of PPE is inadequate, demand to know the resupply efforts being taken by the Administration and the Department.  These are your rights under the contract that you negotiated.  Exercise these rights and protect yourselves and your families.

 

LAPD officers in the Van Nuys Division leave a potential coronavirus call in the Van Nuys Civic Center on Thursday, March 19, 2020. (Photo by Sarah Reingewirtz, Pasadena Star-News/SCNG)

This recent article from ABC News vividly depicts the impact the pandemic has had on members of law enforcement throughout the country and describes some of the measures departments have taken in response to its many challenges:

Local law enforcement officials across the country are rapidly making major operational changes in preparation for the continued spread of coronavirus, as they face potential strains in resources and staffing without precedent in modern American history.

While policing is a public service centered around direct interactions with members of the public, several departments have already sought to limit responses to certain incidents and prioritize arrests of serious and violent offenses over some misdemeanor crimes.

Steve Casstevens, the head of the International Association of Chiefs of Police (IACP) told ABC News Wednesday that “consistently” across the country, departments are changing the way they respond to calls in cases where an officer is not needed on scene.

“We’re looking at essential calls for service,” Casstevens, who is also the police chief of Buffalo Grove, Illinois, said in an interview. Situations like losing a license, getting into a fender bender “don’t require an emergency response or a sworn officer to respond to.”

In Chicago, the police department has told officers “that certain crimes can be handled via citation and misdemeanor summons as opposed to physical arrest,” spokesman Anthony Guglielmi told ABC News.

The measures, officials explained, are intended to protect not just the police and sheriffs who come into contact with citizens — but limit crowding in jails that could lead to rapid spread of the virus among vulnerable populations.

Sheriffs around the country are also raising alarm about the potential crisis of the virus entering local jails, the majority of which do not have in-house medical care, according to Sheriff David Mahoney, the incoming president of the National Sheriffs Association.

“We’re working with all of our law enforcement partners, local, state and federal, to decrease the number of people who are physically arrested and brought to jail,” Mahoney, the sheriff of Dane County, Wisconsin told ABC News in a phone interview. “In my county what we have asked our chiefs of police in our 10 cities, our village police departments, our state law enforcement and our federal partners is to look for alternatives to incarcerating people in jail, look for opportunities to cite with a ticket or order in and give a court date to appear.”

Additionally, Mahoney said he’s working with probation and parole officials in his own jurisdiction to avoid incarcerating probation violators who don’t pose a public risk, and to release individuals currently in jail for minor probation violations.

The policy shifts echo a series of recommendations made by at least 30 district and county prosecutors in a letter this week that urged officials to “adopt cite and release policies” for offenses that pose no immediate physical threat to the broader public, including simple drug possession.

The prospect of departments announcing that certain crimes will not lead to arrest has caused alarm among some in the law enforcement community, however.

“It sends a message out to criminals that you’ve got a free pass right now while all this is going on, which is the wrong message to send,” said Don Mihalek, a law enforcement expert and ABC News contributor. “Of course all of this concerns over exposure and I think you’re seeing law enforcement agencies trying to address exposure issues, which is tough for them because law enforcement’s job is to interact with people, particularly suspects, and be out on the streets.”

In Philadelphia, Police Commissioner Danielle Outlaw expressed concern on Wednesday after reports emerged that officers had been instructed to stop making arrests for certain non-violent crimes until next month.

Outlaw said that the department “is not turning a blind eye to crime.”

“Persons who commit certain non-violent offenses will be arrested at the scene,” Outlaw said. “Once their identity has been confirmed, they will be released and processed via arrest warrant.”

Agencies such as the Kansas City, Missouri Police Department and the Rhode Island State Police expressed confidence about their ability to handle the crisis and said they remain fully operational and not paring down operations, department spokespeople told ABC News.

An additional burden facing officers will be enforcing the orders from governors and local officials seeking to limit the amount of people allowed to gather in certain places in order to stop the spread of the virus, with some threatening criminal penalties for those who refuse to comply.

In Maryland, where Gov. Larry Hogan issued an order banning the gathering of more than 50 people, police told ABC News that if the situation warrants, they will take the “the appropriate action” to control crowds.

“Maryland State Police response to a complaint will be prompt and appropriate,” Col. Woodrow Jones III, the agency’s superintendent, said in a statement. “Depending on the call and location, we will first make contact with the owner or manager of the establishment. If voluntary compliance does not occur, we will take enforcement action, in cooperation with the local state’s attorney. That could result in the issuance of a criminal summons or warrant, or it could result in immediate arrest, depending on the circumstances in the particular situation,.”

Jones said that a violation of the governor’s executive order could be punishable by one year in jail or a $5,000 fine.

As reported by various news outlets to include CNN.com, the first cases of coronavirus in the federal correctional system emerged earlier this week as the number of infected inmates and staff at facilities across the country continued to climb.  This, in turn, has heightened concerns about the spread of the pandemic within the institutions housing the nation’s inmates amongst the inmates and correctional staff.

Certain developments have arisen as many staff at prisons have voiced worries about an unprepared system, with officials citing short staffing and a lack of proper protective equipment. Criminal justice advocates have also called for the release of certain nonviolent offenders, including those who may be at greater risk from the virus.  Certain high-profile inmates have actually asked to be released.

In response, the Federal Bureau of Prisons moved to a defensive posture, temporarily blocking social visitors as well as attorneys in some circumstances from visiting inmates at the system’s 122 facilities across the country.  Local facilities, where most the U.S.’s prison population is housed, have also taken steps to lock down buildings and reduce the possibility of the virus making it inside.  As you can expect, this is extremely challenging given cramped cell blocks and routine gatherings among inmate populations.  As such, measures such as staggering mealtimes and recreation in certain areas has been implemented. Moreover, while new inmates have continued to report to federal prisons throughout the crisis, the Federal Bureau of Prisons has suspended internal inmate transfers between facilities to minimize the spread of possible infections.

The issues encountered by the Federal Bureau of Prisons will surely arise, if they have not already, in New Jersey, both on the State and local level. As such, we want all of our Public Safety Officers to be prepared and take the necessary precautions for not only themselves, but their families and loved ones. As you can expect, all State and local authorities are not entirely prepared to deal with this unprecedented situation. Therefore, we suggest all Officers take note of the precautions and/or actions being utilized by their respective employers to minimize the risk of infection.  Should you believe your respective employers are not engaging the proper mechanisms to do so, it is imperative to contact us so that we may assist in ensuring your safety remains the highest priority.

Please continue to check this blog periodically for updates on this and other important topics.

 

On March 9, 2020, Governor Philip D. Murphy signed Executive Order No. 103 (EO-103) in response to the Coronavirus disease (“COVID-19”) invoking “a State of Emergency pursuant to N.J.S.A. App. A:9-33 et seq. and a Public Health Emergency as contemplated by N.J.S.A. 26:13-1 et seq.” Executive Order No. 103 further prohibits any political subdivision of the State, including counties and municipalities, from enforcing any “rule, regulation, ordinance, or resolution, which will or might in any way, conflict with any of the provisions of the Orders, or which will in any way interfere with or impede the achievement of the purpose of the Orders.”

In furtherance of Executive Order No. 103, on March 10, 2020, the New Jersey Civil Service Commission (“CSC”) adopted “Guidelines For State Employee Leave Time And Staffing – COVID-19.” (“CSC Guidelines”) While the CSC Guidelines are not directly applicable to County and Municipal employees, they are meant to offer guidance to local employers regarding implementing effective steps to manage the shared responsibility to protect the health and well-being of New Jersey residents.  While not mandated, and in an effort to seek guidance in the development of policies and procedures concerning COVID-19, most counties and municipalities are either abiding by the CSC Guidelines or utilizing them as guidance in implementing their own policies and procedures.

On March 16, 2020, Governor Murphy issued Executive Order 104 (EO-104).  EO-104 mandates that all public, private, and parochial preschool program premises, and elementary and secondary schools, including charter and renaissance schools, shall be closed to students beginning on Wednesday, March 18, 2020, and shall remain closed as long as EO-104 remains in effect. While EO-104 is greatly needed to suppress the spread of COVID-19, the closing of New Jersey’s schools has placed great stress upon thousands of families throughout our State.  As a result of these school closures, many First Responders like other parents in our State, are currently experiencing child care issues or will experience child care issues in the immediate future. Rest assured, no one expected that such a drastic, statewide response would be needed to stop the spread of this world-wide pandemic and, as a result, no one has had ample time to put plans into place to adequately cope with such a situation.

Notwithstanding the foregoing, nowhere, within EO-103, EO-104 or the CSC Guidelines does it state that First Responders are excluded from the orders and that the rules and regulations have no applicability to their urgent familial needs.  To the contrary, the CSC Guidelines state : “Government operations need flexibility to address staffing capabilities to ensure essential operational needs are met.  Similarly, employees require greater latitude in applicable leave time procedures to prevent further spread of the virus and to prioritize their health and the health of their immediate family members.”

Unfortunately we have encountered some public employers that have taken an extremely inflexible position in granting First Responders time off from work to address unexpected and unplanned child care needs.  Such a position not only violates the legal provisions espoused in Governor Murphy’s Executive Orders, but also dismisses the cooperative effort that is needed between labor and management in these most difficult times.  Instead of enacting policies that have no concern for the personal and familial needs of First Responders, employers are urged to sit with Union Leadership in an effort to develop a Continuity of Operations Plans (COOPs) that will ensure that essential services are delivered while being mindful of our First Responders human and familial needs.

On July 30, 2019, the New Jersey Appellate Division issued a formal opinion in Docket No.: A-3194-17T1 reversing an earlier decision by the the Civil Service Commission (CSC) refusing to reopen the appeal of a Corrections Sergeant (Appellant) of his removal from employment with the New Jersey Department of Corrections (NJDOC). The Appellant was previously removed from his position at New Jersey State Prison after charges alleging that he employed excessive force upon an inmate were sustained. The matter was first tried in the Office of Administrative Law, where the Administrative Law Judge recommended the Appellant’s removal from employment. That recommendation was subsequently converted to a Final Administrative Decision by the CSC.

The Appellant later petitioned the CSC to reopen his removal appeal after evidence surfaced that was previously withheld by the Mercer County Prosecutor’s Office. The evidence was produced in connection with a separate civil lawsuit against the Appellant, among other defendants, in United State District Court (NJ), that ended with a jury rendering a “no cause of action” verdict in Appellant’s favor on various Civil Rights and 1983 claims. The basis for the later petition to the CSC concerned the exculpatory nature of the withheld evidence and the impact it may have had on the Administrative Law Judge’s decision had it been produced in accordance with the Rules of Administrative Procedure. The CSC, however, was not moved and simply refused to consider Appellant’s petition, deeming it untimely.

A formal appeal was subsequently lodged with the Appellate Division, leading to the July 30th decision referenced above. The Appellate Division ultimately reversed the CSC, reasoning that the CSC’s decision to reject, on procedural grounds, Appellant’s application to reopen the case to consider evidence previously not available to him was “clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction.” The appellate court then ordered the CSC to consider the Appellant’s application to reopen the hearing on his removal in light of the new evidence.

Donald C. Barbati, Esq., of Crivelli & Barbati, L.L.C., argued the matter in the Appellate Division on behalf of the Appellant. Frank M. Crivelli, Esq., also of Crivelli & Barbati, L.L.C., tried and defended the earlier civil lawsuit for the Appellant in the United States District Court of New Jersey that ended in a “no cause” jury verdict. The Appellant has maintained his innocence throughout the entirety of this process.

As reported by NJ.com, New Jersey first responders who volunteered at Ground Zero after the Sept. 11 attacks are now eligible for an accidental disability pension under a bill signed into law by Gov. Phil Murphy on Monday. It was one of two 9/11-related measures Murphy signed during a ceremony attended by more than 100 police officers, firefighters and other first responders at Liberty State Park, just across the Hudson River from where the Twin Towers once stood. The second law allows first responders in the Garden State who die or suffer from an illness or disability because of their work to be covered by workers compensation.

“They didn’t think of themselves, they only thought of others,” Murphy said of those who responded after the 2001 terrorist attacks. “They didn’t ask to go, they just went.” But, over the last 18 years, the governor added, the effects of breathing the toxic fumes at Ground Zero “have taken their toll on the health of too many of these heroes.” “We remember their sacrifice, we honor their service, and today we act to help them when they need that help the most,” Murphy said during the ceremony at the old Central Railroad of New Jersey terminal.

The first law (A4882) is named after Bill Ricci, a Clifton firefighter who assisted in rescue and recovery efforts at the World Trade Center after the attacks and was later diagnosed with a respiratory disease that left him unable to work.

Ricci said because he volunteered and wasn’t on official duty at the time, he didn’t qualify for an accidental disability pension — about two-thirds of his salary.

“I was shocked, angry,” Ricci said at Monday’s ceremony. “’That can’t be right, can it?’ Well, it no longer is.”

This law allows public employees in New Jersey who weren’t on duty but volunteered at Ground Zero and who have qualifying medical conditions to receive such retirement benefits.

Both houses of the New Jersey Legislature overwhelmingly passed the bipartisan bill last month — 37-0 in the state Senate and 76-0 in the state Assembly. The second law (S716) is named after the late Thomas Canzanella, a Hackensack Fire Department deputy chief who spent several weeks at Ground Zero and advocated for better conditions for first responders.

Under previous law, New Jersey’s first responders had the burden of proving that their job cause their illness. The new law, Murphy said, places the burden on the employer. Former Gov. Chris Christie, a Republican, vetoed it in 2016. But the Democratic-controlled Legislature took it up again after Murphy, a Democrat took office. The state Senate passed the bill 38-0 and the Assembly 73-5 last month.

Canzanella’s daughter, Allison Canzanella, grew emotional at Monday’s event as she remembered her father, who died at age 50.

“I’m so proud to be his daughter every single day,” she said.

Both laws take effect immediately. Murphy also contrasted New Jersey with how Republican-controlled Congress has treated 9/11 first responders. Last month, comedian Jon Stewart, a New Jersey native, went to Washington, D.C., to chastise federal lawmakers for not acting to reauthorize a fund to compensate victims and their families.

“Our message today is crystal clear,” Murphy said. “We remember, we honor, we act.”

A4882 amends N.J.S.A. 43:16A-7, the statute governing the issuance of accidental disability benefits for members of the Police and Firemen’s Retirement System, or PFRS. One of the new additions to the statute affords a PFRS member who sustained a qualifying, disabling condition due to participating in “World Trade Center rescue, recovery, or cleanup operations” the presumption that his or her condition occurred “during and as a result of the performance of the member’s regular or assigned duties,” unless the contrary can be proved by competent evidence. This presumption is only afforded under the statute if the member participated in these recovery operations for a minimum of eight (8) hours. However, the presumption is still available to those members who assisted in recovery operations despite not being directly ordered to do so by their employer.

A4882 can be found here.

A recent opinion rendered by the Appellate Division has important implications for all law enforcement officers, and all public employees for that matter, who are considering applying for disability retirement while simultaneously fighting disciplinary charges.  The case, Cardinale v. Board of Trustees, Police and Firemen’s Retirement System, A-1997-17T1, involved a police officer who was subject to disciplinary charges in connection with a positive drug screening. The officer initially admitted to using cocaine, completed drug and alcohol treatment, but then tested positive for the substance thereafter.  The officer was charged with violating departmental rules and regulations and was suspended from duty. While the disciplinary charges were pending an initial hearing, the officer submitted an application for ordinary disability retirement benefits with the Board of Trustees for the Police and Firemen’s Retirement System (“the Board”).

A hearing was eventually conducted in the officer’s disciplinary matter and the charges lodged against him were sustained, resulting in his termination from duty. The officer then appealed the termination but managed to settle the disciplinary action while the appeal was pending. In short, the officer agreed to irrevocably resign in exchange for the department’s withdrawal of his termination.

The officer then turned his attention to the application for disability retirement he filed with the Board. The Board, however, declined to process his application in light of his resignation from the department that came about as a result of the settlement he reached in his disciplinary proceeding.  The Board noted that it would have no statutory authority to stop paying benefits to the Officer if his disability later ended. The matter was then transmitted to the Office of Administrative Law before an Administrative Law Judge (“ALJ”). Ultimately,  the ALJ sided with the Board. The ALJ held that because the officer had irrevocably resigned from the police department, neither the department nor the Board would be able to fulfill their statutory obligations to reinstate plaintiff and terminate his benefits.

The Officer then appealed the matter to the Appellate Division. There, the appellate court likewise agreed with the Board and affirmed its refusal to process the officer’s application for ordinary disability retirement benefits.  It affirmed the position taken by the Board that once a PFRS member irrevocably resigns his/her position, he/she is ineligible for ordinary disability benefits because he/she cannot return to their position as required by the disability retirement statutes if their disability ends.  Thus, the court noted that the Board would never be able to terminate that person’s benefits.

The statutory requirement at issue stems from N.J.S.A. 43:16A-8(2), which calls for an employer to return a previously disabled employee back to work if that individual is no longer disabled and thus, no longer entitled to disability retirement benefits. Therefore, the Appellate Division held that entertaining an ordinary disability retirement application for members who irrevocably resign from service to settle disciplinary charges would violate public policy, contravene the above-referenced statutory framework, and encourage abuse of the disability retirement system.

The import of this particular decision involves its impact on an officer’s ability to settle pending disciplinary charges. In sum, if you are weighing an application for disability retirement and also have disciplinary charges pending, keep in mind that irrevocable resignation is not a viable option to resolve the latter if you still intend on pursuing the former.