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NJ Public Employee Involuntary Disability Applications: Notice Must Be Given On Type of Benefits Being Sought

Posted in Disability Retirement

As reported by the New Jersey Law Journal, the Appellate Division recently issued an opinion in the matter Westphal v. Board of Trustees, Police and Firemen’s Retirement System, which addressed certain issues associated with the filing of involuntary disability retirement applications. In the case, the Petitioner, William Westphal, appealed from the Board of Trustees’ denial of his application for accidental disability retirement benefits. Previously, Westphal was employed as a police officer and enrolled in the Police and Firemen’s Retirement System. After a fitness examination, the police department found Westphal to be totally and permanently disabled.  As such, the Township authorized the filing of an involuntary disability retirement application on his behalf.

The Division of Pensions and Benefits informed Westphal that an application had been filed on his behalf. The Division also advised him of the thirty (30) day deadline to contest the application. Westphal did not take any action to contest the application, but, instead, subsequently filed an application for accidental disability retirement benefits on his own. However, due to the pending involuntary disability benefits application, the Division declined to process his application. Thereafter, the Board of Trustees denied Westphal’s request to change his application because he had not timely contested the involuntary application filed by the Township and was otherwise statutorily ineligible to file for accidental disability retirement benefits.

On appeal, Westphal argued that he was not provided with adequate notice of the type of benefits sought by the Township on his behalf and, therefore, the Board of Trustees’ failure to consider the lack of notice rendered its decision arbitrary and capricious. The Appellate Division agreed and reversed the Board’s decision. To this end, the Court ruled that the notice of application sent to Westphal failed to notify him of the difference between involuntary ordinary disability retirement benefits and accidental disability benefits or even make clear that there were multiple types of benefits.

The Court further held that the Board would not be prejudiced by consideration of a late change request, as it had not finalized the original application. Finally, the Court held that Westphal was not statutorily disqualified from seeking accidental disability benefits because he was still employed when the original application was filed.

This holding is important because it clarifies that an employer who files an involuntary disability retirement application on an employee’s behalf should provide the employee with notice of the types of benefits being sought in the involuntary application.  The difference between the amount a public safety officer will receive for accidental disability retirement benefits as opposed to ordinary disability retirement benefits is extraordinary.  As such, if an involuntary disability retirement application is filed on your behalf, it is crucial to know what exact type of benefits are being sought.  The Court’s holding in this matter seems to confirm this fact.

As such, if you are faced with an employer seeking to file an involuntary disability retirement application on your behalf, you should contact an experienced attorney to assist you.  As this case illustrates, there are a myriad of issues that could arise and you want to ensure you receive the maximum amount you are entitled to.

New Jersey Supreme Court to Determine if Volunteer Firefighters Can Receive Workers’ Compensation Benefits

Posted in Workers Compensation

As reported by the New Jersey Law Journal, the New Jersey Supreme Court has taken up the issue of whether a volunteer firefighter who was injured while responding to a fire should be awarded workers’ compensation benefits. The firefighter, Jennifer Kocanowski, is seeking to overturn an Appellate Division decision determining that, since she was unemployed at the time of the incident, and since she had no other paying job, she was not entitled to benefits.

In the underlying decision, the Appellate Division wrote that “Kocanowski’s claim is at odds with the underlying reason for awarding temporary disability, which is to replace lost wages.” “Indeed, the case law is clear that when there are no lost wages, the payment of temporary disability is considered a windfall.”

According to court documents, the accident occurred on March 6, 2015. At the time, Kocanowski was a 14-year volunteer with Finderne Fire Engine Company in Bridgewater. Kocanowski, a trained home health aide, had not worked professionally since 2013, when she left her job to take care of her elderly father. While responding to a fire on that date, Kocanowski slipped and fell on an icy sidewalk and broke her right leg. Over the course of the next year, she underwent surgeries to repair damage to her leg, foot and left knee. She never returned to work as a home health aide.

She applied for workers’ compensation benefits, arguing that she was entitled to benefits because she was injured on the job. Bridgewater Township objected to the application, saying that she was not entitled to benefits because she did not suffer any loss in salary. Kocanowski had been asking for about $855 a week in workers’ compensation benefits. The State Division of Workers’ Compensation Benefits agreed with the Township’s position and denied the application for benefits.

Kocanowski appealed and the Appellate Division found that while the workers’ compensation act was meant to be liberally construed, there had to be a loss of wages in order for a worker to be qualified to receive benefits. The Supreme Court granted Kocanowski’s Petition for Certification on March 14, 2018.

The question as to whether volunteer firefighters can receive workers’ compensation benefits is significant. Given that most fire company’s have a volunteer component to its firefighter composition, the Court’s ruling will have an enormous impact as to the protections afforded to volunteers and, thus, the incentive to volunteer going forward.  As such, please continue to check this blog periodically to obtain updates regarding this case and other important issues effecting New Jersey Public Safety Officers.

Proposed Bill Intended to Help Union Officials Gain Easier Access to Public Workers in NJ

Posted in Contract Negotiations, Public Employment Labor Law

 

As reported by whyy.org, a bill advancing in the New Jersey Legislature would ensure that union representatives have greater access to the public employees they represent.  Dubbed the Workplace Democracy Enhancement Act, the measure would allow unions to meet with employees during lunch and other breaks to talk about their issues and grievances.  It would also mean that union representatives could meet with newly hired employees while they’re on the clock, said Eric Richard a representative of the state AFL-CIO.

Michael Vrancik, representing the New Jersey School Boards Association, sounded a note of caution.  Public employers are already barred from interfering with union efforts to recruit members, he said.  “This idea of expanding the access and creating almost unfettered access to school facilities — in particular at this time, when everybody has all kinds of security concerns — this creates a potentially disruptive process,” Vrancik said.

This bill comes at a time when public sector unions across New Jersey and the rest of the Country await the United States Supreme Court’s decision in Janus v. AFSCME Council 31, which involves a challenge to a 40-year-old precedent that permits public sector unions to charge non-members who benefit from collective bargaining. With this new measure, New Jersey State lawmakers appear to be preparing for an adverse decision in the Janus case, given that such a decision will inevitably create new challenges for public sector unions in terms of organizing strategy, political activity, and bargaining for workers.

NJ Attorney General Directive: All NJ Police Officers Subject to Random Drug Testing

Posted in Public Employment Labor Law

As reported by NJ.com, all police officers in New Jersey are now subject to random drug-testing under a directive from the State’s new Attorney General. Police Departments are also required to implement “early warning systems” triggered by problem behavior such as misconduct accusations, lawsuits, domestic abuse and drunken driving under a separate directive announced by Attorney General Gurbir Grewal’s office.

Grewal said that most police departments and county prosecutors already have such policies in place. The two new directives would mandate them statewide. “We support our officers in their difficult jobs, and at times that means intervening with a troubled officer to protect the public, the individual officer, and his or her fellow officers,” he said in a statement announcing the move.

Under the new rules, every state, county, and local law enforcement agency is required to conduct one random drug screening in 2018 and perform such tests twice a year going forward. Departments are required to report any failed tests, or officers who refuse a test, as well as any resulting discipline to the county prosecutor or other supervising agency.

Additionally, the early warning system requirement spells out 15 “performance indicators” that would flag an officer for possible review if any three of them occur in a given year. The indicators include internal affairs complaints, lawsuits, criminal investigations targeting the officer, excessive force, domestic violence, drunken driving, sexual harassment and performance issues including insubordination and neglect o duty, amongst others. To this end, departments are required to create tracking systems that would flag potential problem officers for review and provide written notification to an oversight agency.

The new policies are the second major police accountability effort undertaken by the office during Grewal’s first few months on the job. Last month, the Attorney General announced a new policy requiring the release of videos from police shootings in most cases, a reversal for his office, which has long held such videos should be kept from public view.

The requirement that all NJ police officers are now subject to random drug testing is something all officers must be aware of going forward. Although most agencies and/or departments already have a random drug testing policy in place, the same are now required statewide. Moreover, all officers must be mindful of “performance indicators” as they pertain to the implementation of “early warning systems” as well. As you can expect, several of these “performance indicators” do not correlate with substance abuse and/or troubled behavior by a law enforcement officer in any meaningful way. As such, we suspect several issues will arise amongst departments and collective negotiations units in the future as to whether the presence of these “performance indicators” truly justify any actions taken in relation thereto.

Please continue to check this blog periodically to ascertain important updates affecting all New Jersey Public Safety Officers.

Court Addresses Failure to Report Off-Duty Misconduct of Fellow Officer

Posted in Public Employee Discipline

Recently, the Appellate Division issued an opinion in the case New Jersey State Police v. Trooper Brandon Bruns that addressed an officer’s failure to report the misconduct of another off-duty officer. In that case, following an internal investigation, the New Jersey State Police served a charge upon the appellant for his failure to report the misconduct of an off-duty trooper to which the appellant had knowledge. Specifically, the appellant was charged with violating Article V, Section 8 of the New Jersey State Police’s rules and regulations.

The appellant denied the charge and the matter was referred to the Office of Administrative Law and an Administrative Law Judge (“ALJ”) for an evidentiary hearing. The ALJ rejected the appellant’s contention that he had no obligation to report the incident under the rules and regulations because he was off-duty at the time. The ALJ recommended that the appellant be suspended for thirty days, given this was the appellant’s third disciplinary infraction.  The appellant then appeal to the Appellate Division.

The Appellate Division affirmed, holding that the rules require members of the State Police to promptly report all crimes, breaches of the peace, misconduct, fires, and other significant events “that may come to [such] members’ attention.” In addition, the Court found the standard operating procedures provided that reportable incidents included “[a] complaint that a member [of the State Police] has engaged in misconduct whether on or off-duty.”  According to the Court, the appellant had more than sufficient information to report the trooper’s misconduct and, therefore, affirmed the violation for his failure to report.  More importantly, the Court held that the rules require a member to report crimes whether on or off-duty.

All New Jersey Public Safety Officers should be aware of their duties and responsibilities at all times. As this case illustrates, an Officer can be disciplined even though he/she did not engage in any misconduct, but failed to report the same, notwithstanding the alleged misconduct occurred in an off-duty capacity. Therefore, all Officers should be cognizant of the same to protect themselves going forward.  Please continue to check this blog periodically for important updates concerning all New Jersey Public Safety Officers.

Middlesex County Prosecutors Office Ordered to Pay $114,402 in Legal Fees for Failing to Turn Over 911 Recordings in the Use of Deadly Force

Posted in Uncategorized

As reported in the New Jersey Law Journal, the Appellate Division has confirmed a ruling made by a Superior Court Judge that orders the Middlesex County Prosecutor’s Office to pay two news outlets more than $100,000 in counsel fees after they successfully sued the office for access to 911 call recordings involving the fatal shooting of an individual.

The three-judge Appellate Division panel, in an unpublished decision on March 2, affirmed the $114,402 fee award to the Home News Tribune, which is owned by the Gannett Co., and NJ Advance Media, which publishes The Star-Ledger of Newark.

The Appellate Division Judges stated that the news outlets met the definition of prevailing parties under the state’s Open Public Records Act, even though the prosecutor’s office argued it complied with the law when it provided an edited version of the radio communications.  In its ruling, the court stated that “There is ample evidence in the record for the judge’s determination.”  The Judge awarded $74,818 to the Home News Tribune and $39,582 to NJ Advance Media after finding that they prevailed, which is a requirement for awarding fees under OPRA.

The incident involved a police response at the home of an Old Bridge family.  The report, by the prosecutor’s office, said the use of force was justifiable because an individual repeatedly ignored commands to drop a knife and threatened the officers on scene with it.  At the time that the officers arrived on scene the individual had already used the knife to slit his wrists and stab himself, according to the court. The police officer, that used the deadly force was forced into a position in which he could not retreat, and thus, his actions were deemed necessary.

According to reports in The Star-Ledger, the call for service began when a 911 call came in at 5:59 p.m. on Jan. 14, 2015, for medical assistance for a man with a knife who had reportedly attempted suicide by cutting his wrists. When the two officers arrived, one entered the house while the other retrieved a first-aid kit, the report said.  The first officer was directed to a downstairs room where he encountered a man who “was seated on the floor several feet away with a knife in his right hand,” according to the Star-Ledger. The report said the officer ordered the man to drop the knife, “to which he replied ‘No,’ and made a motion as if to throw the knife in the officer’s direction.”

The officer, who has not been identified, retreated to the stairwell for cover. The report said the man stood up and “began walking toward the officer, brandishing the knife at head level.”  The second officer went into the home and immediately heard the first officer’s vocal commands to drop the knife, the report said. He moved toward the sounds of the first officer’s voice and saw the first officer at the bottom of the stairs, against the wall with his weapon drawn.  From his vantage point in the foyer, he could not see the decedent the report said. “Before officer #2 could advance further, officer #1 fired one shot. Officer #2 immediately notified police headquarters of the shot fired and requested first aid.”

The report said the investigation into the shooting determined that before the original 911 call, the decedent had drawn a knife and attempted to strike his wife, who suffered lacerations to her hand and face. She was able to flee upstairs and wake her son, who on going downstairs discovered his father on the floor, actively bleeding from lacerations to both his wrists, the report said.  The decedent refused to give the knife to his son and reportedly pointed it in his direction when the son tried to take it from him, the report said.

The prosecutor’s office, which initially denied the news outlets’ requests for the 911 tape, eventually produced a redacted version. The news agencies filed a complaint, which the prosecutor’s office defended by arguing that the redactions were justified to protect the identity of the caller and others.  In his ruling the Superior Court Judge stated that the redactions were acceptable but rejected the office’s apparently unorthodox request for a protective order to protect individual identities. He awarded the fees, rejecting the office’s contention that the materials it sent to the newspapers were not as a result of the OPRA litigation.

“We agree with the motion judge that the Newspapers’ lawsuits were a catalyst for the disclosure of the 911 call,” the Appellate Division said. “As early as February 2015, the MCPO knew the Newspapers intended to file OPRA lawsuits if the 911 call was not released. Knowing the Newspapers planned to file litigation, the MCPO filed its ‘procedurally deficient’ motion for a protective order.”

Case law is now beginning to crystalize in regard to documents and audio and video recordings that must now be turned over in regard to Police Officers Use of Deadly Force.  We will continue to review this developing case law and keep our readers informed of the changes that are ongoing in this area of the law.

 

Murphy Rolls Back Recent Pension Change Made By Christie

Posted in Public Employment Pension Crisis

As reported by NJ.com, Governor Phil Murphy’s administration is rolling back a change to New Jersey’s public worker pension system that Chris Christie slipped in during the waning days of his administration that raised government contributions by more than $800 million. The acting State Treasurer, Elizabeth Muoio, said Christie’s surprise reduction in assumed rate of return from 7.65 percent to 7 percent placed a “undo stress” on the governments that would have to find the extra cash. Muoio said she would phase in the rate cut over five years.

The State uses the assumed rate of return to calculate how much money state and local governments will need to pay out benefits to nearly 800,00 active and retired workers. Christie’s administration slashed the rate in December in a move that increased local governments’ bills by $422.5 million and the State’s by $390.3 million, according to actuary reports. If the State only contributes 60 percent of what actuaries recommend next year, as expected, the revised payment would have been $234 million higher. A spokesman for Murphy said then that Christie was “playing politics with the pension fund by rushing this decision at the 11th hour.”

The pension fund actuaries have said a 7 percent assumed rate of return is a more conservative estimate of what pension investments can achieve over the long term and is in line with other large funds. In contrast, assuming the investments will earn a high rate makes the pension fund look healthier than it really is and does not reflect the reality of the State’s investment outcomes, actuaries say. The fund returned 13 percent in the fiscal year that ended in June, but lost nearly 1 percent the year before. It returned 4.16 percent and 16.9 percent in the years prior.

Muoio said she will set the rate at 7.5 percent for the fiscal year beginning in July, otherwise known as fiscal year 2019, and fiscal year 2020. The rate will then drop to 7.3 percent for 2021 and 2022 and then finally land at 7 percent in 2023. “A gradual path to a lower rate will help mitigate the undue stress that would otherwise have been placed on local governments to address the significantly increased contributions required of them and the consequences this would have on their structural budget, reserves, and ultimately, their taxpayers,” Muoio said.

This seems to be one of the first measures taken by the new gubernatorial administration to address the pension crisis prevalent in New Jersey. As you know, the pension crisis is one of the foremost issues affecting New Jersey public employees, and most notably, public safety officers. Therefore, we are hopeful this a first step in the right direction in an effort to ensuring the pension of New Jersey Public Safety Officers remain intact. Please continue to check this blog periodically for updates regarding the pension crisis and other important issues affecting New Jersey Public Safety Officers.

NJ Attorney General Issues Directive That Dashcam and Bodycam Footage of Deadly Force Should be Subject to Public Release

Posted in Uncategorized

As reported in the New Jersey Law Journal, New Jersey Attorney General, Gurbir Grewal made an announcement that police dashcam and body cam videos documenting use of deadly force should be subject to public release once the corresponding initial investigation is complete.  According to the press release, the directive is being issued in the interests of “transparency in police community relations,” though it will not go into effect until it has undergone an analysis for compliance with attorney ethics rules.

The Attorney General’s press release states that AG Directive 2018-1 provides that in any case where a police officer uses force resulting in death or serious bodily injury – or where a firearm or other deadly force is used without injury – and video footage of the incident is captured by a body-worn camera or dashboard camera, the investigating law enforcement agencies will presumptively make the video available, upon formal request by a member of the public or media, once the initial investigation of the incident is substantially complete.

While determination as to when the initial investigation is substantially complete is left to the discretion of the County Prosecutor – or Director of the Division of Criminal Justice in cases investigated by the Attorney General’s Office – the initial investigation will typically be deemed substantially complete after principal, material eyewitnesses have been interviewed and the most relevant physical and documentary evidence has been gathered.  Generally this should occur within 20 days of the incident.

In cases where it takes more than 20 days to substantially complete the initial use-of-force investigation, the County Prosecutor or Director may decline to release the video footage, but must document the reasons that additional time is necessary and estimate when substantial completion will be achieved, submitting that information to the Attorney General or a designee within the Attorney General’s Office.

Before releasing a deadly-force recording, prosecutors are directed to consult with persons appearing in the video footage or their families in the case of decedents. Where release of the video would unduly compromise the safety or privacy of any person, including any law enforcement officers, the prosecutor may seek approval from the Attorney General’s Office to postpone or decline release of the video. In other cases, the released video footage may be digitally modified to obscure the identity of a person, where that person’s identity has not been disclosed, provided the editing does not conceal any actions by a person constituting a use of force.

In New Jersey, investigations of police-involved shootings and other deadly force incidents are directly overseen by the Attorney General, who acts as an independent prosecutor in such matters. Specifically, these investigations are governed by an Attorney General directive that establishes detailed procedures and safeguards to ensure independent and impartial investigations. With respect to body-worn cameras, the Attorney General’s Office has issued a statewide policy establishing guidelines for deploying such devices for those agencies that elect to deploy them. The Attorney General’s Office also has provided over $4.5 million to enable the New Jersey State Police and other police departments across New Jersey to equip their officers with body cameras.

 

 

 

 

Data Shows that NJ’s Most Violent Cities Have Lost The Most Police Officers Since 2010

Posted in Uncategorized

As reported by NJ.com, retaining police officers has been a challenge for many New Jersey municipal police departments.  Shortfalls in city and municipal budgets can, and have lead to layoffs and demotions. When Senior police officers retire their positions never get refilled and the data shows that this occurs more often than not in New Jersey cities with the most violent crime rates.  In addition, as a result of the two percent (2%) interest arbitration salary cap, the two percent (2%) property tax cap levy and the “social media” difficulties associated with policing, recruitment and retention has been extremely difficult.

Despite the foregoing, there are police departments that are actively taking steps to reverse attrition and bolster their ranks.  NJ Advance Media analyzed seven years worth of data turned in by municipal law enforcement agencies to the FBI and found the 20 police departments across the state that have lost the most employees — both civilians and officers — from 2010 to 2016.

In terms of percentage decreases, Medford and Pemberton having each lost over 40% of their officers from 2010 to 2016, have experienced the largest reduction in ranks according to the NJ.Com sampling. Yet, in terms of the sheer number of officer reductions, Newark, Paterson, Trenton, and East Orange lead the pack as they have all experienced a substantial reduction in their law enforcement workforce.

It is also worth noting that in performing a cross reference with NJ.com’s list of towns with the highest violent crime rates,  thirteen of the municipalities with the highest increases in crime were also included in the towns with the largest shrinking police forces.  Taking all of this together, one must scratch their head in trying to figure out the phenomenon that is occurring across the state of New Jersey where our largest most violent cities are now being policed with less officers. Additionally, the pay that our largest city’s officers receive is no where near the top officer salary reflected across the state.  While are cities are being asked to do more with less money so to are our law enforcement officers.  We will continue to review this data as it becomes available, especially in light of the changing social perceptions of police work and the changes in pay and benefits associated with the position of employment.

 

Appellate Division Addresses 45 Day Rule Argument

Posted in Public Employee Discipline

Recently, the Appellate Division issued an opinion in the case In the Matter of Sanchez that addressed the applicability of the 45 Day Rule in a removal case. In that case, a police officer, the appellant, appealed his termination for engaging in sexual acts with a civilian in his marked police car while on duty. During the course of an internal affairs investigation of another officer, the appellant admitted to having sex with an individual but denied having sex in his patrol car. In a later interview, however, the appellant admitted to having sex in his patrol car. Subsequently, he was charged with multiple violations of the Division’s regulations and rules as well as conduct unbecoming a public employee and misuse of public property.

The Civil Service Commission adopted the findings of fact and conclusions of law rendered by an Administrative Law Judge, wherein which the Judge dismissed some of the charges, upheld others, and upheld the appellant’s termination from employment. On appeal, the appellant argued the charges were time-barred under the auspices of the 45 Day Rule, N.J.S.A. 40A:14-147, and that a substantial suspension, rather than termination was warranted.

The Appellate Division affirmed the Civil Service Commission’s determination for substantially the same reasons stated by the Administrative Law Judge, thereby upholding the appellant’s removal from employment. To this end, the Court determined the Judge correctly found that the 45 Day period in N.J.S.A. 40A:14-147 did not begin to run until the day the appellant admitted he had sex with an individual in his patrol car. Additionally, the Court found that progressive and/or incremental discipline did not have to be applied in every disciplinary setting and the appellant’s conduct was sufficiently egregious to warrant removal.

The time period as to when the 45 Day Rule contained in N.J.S.A. 40A:14-147 or in a collective negotiations agreement applies is a fact sensitive determination. In simple terms, it is not always clear as to when the 45 Day Rule begins to “run” in a given case. Nevertheless, the 45 Day Rule is an important protection afforded to most law enforcement officers that ensures certain disciplinary charges are brought in a timely fashion. As such, should you ever be faced with disciplinary charges, it is imperative you consult with an experienced attorney familiar with the nuances of the 45 Day Rule and its potential applicability in a given situation.

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