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Judge Orders the Release of Body Camera Footage Citing an Exception to NJ Supreme Court Decision

Posted in Uncategorized

Superior Court Judge Mary Jacobson most recently ruled that body camera footage can be released under the State’s Open Public Records Act and ordered Burlington County to release a partial police body camera video that the county was attempting to keep private.

The video footage requested involved the interactions of a Kevin Lewis with sheriff’s officers who responded to a courthouse altercation in which Mr. Lewis was involved. Judge Jacobson ordered that most of one recording will be provided to Mr. Lewis, and a second recording will be withheld out of privacy concerns. Although Jacobson’s ruling allows partial disclosure of footage for this particular incident, the concern is that it could have far-reaching implications.

Jacobson’s ruling allowing body camera footage to be released under the state’s Open Public Records Act comes after a state Supreme Court decision found that such footage is not subject to disclosure under that same law. Thus, it is likely that Judge Jacobson’s order will be appealed. This will inevitably cause a legal controversy over how much access members of the public can have to body-worn camera footage.

Jacobson found that the records custodian could not deny a request to release body camera footage by simply declaring it a criminal investigatory record. In the Judge’s order, she wrote, “It is hereby declared that the body worn camera audio and video recordings in this matter do not fall within OPRA’s criminal investigatory exemption.”

The court’s decision does not necessarily mean that the public will always receive access to body camera footage. However, it may indicate that law enforcement will not be able to rely on the OPRA criminal investigatory exemption.

NJ Public Employee Pension Fund Investments Yield a Higher Return than Originally Predicted

Posted in Public Employment Pension Crisis

According to an article published in NJ Spotlight, New Jersey’s public-employee pension fund investments generated returns totaling 9.06% for fiscal year 2018. Some of the investments that were credited for lifting the fund’s overall performance included U.S. equities and real-estate holdings.

The NJ pension system covers the retirements of approximately 800,000 current and retired public workers in New Jersey. The system uses an assumed rate of return of 7.5% in accordance with a policy enacted under Governor Murphy. However, past returns have averaged in the range of 6.17% to 6.75%. As a result Murphy is considering reducing the assumed rate to 7%, which is more in conformance with past perforce.

Despite the good news of better than expected returns, some fear that this year’s returns will be hard to replicate, especially since the returns for fiscal year 2019 are already 2.5% lower. In addition, some analysts expect the booming stock market to slow down in the near future and reduced market performance will likely put more pressure on the state to continue increasing its contributions to the system.

The strong returns have assisted in increasing the pension system’s overall market value above $78 billion dollars. However, the retirement plan remains grossly underfunded as a result of insufficient and/or skipped contributions from State leadership over the past twenty years. Murphy’s budget increased the state payment in the 2019 fiscal-year budget to $3.2 billion dollars. Although this was a record-high contribution, it is still only 60% of what is necessary to restore the pension system to good health over time. It will take years before Murphy brings the state up to the full payment as he’s following a ramp-up plan established by former Gov. Chris Christie that calls for 10 percent increases each year over a 10-year period. Naturally, the slow pace of contributions is putting more pressure on investment performance, which is causing growing concerns due to the potential market slow down.

Clearly Governor Murphy has taken a step in the right direction to assist in fixing the pension crisis.  However it remains to be seen what the Senate and Assembly leadership will do to address the pension and benefit crisis as plans have been floated to switch certain employees from the defined contribution plan that is currently in place to a 401k plan.  While the increased investment returns are a nice “shot in the arm”, they certainly can not be counted on at all to fix the crisis that the State still currently faces.

Sweeney Panel Proposes 401(k) Pension For Certain State, Local Workers

Posted in Public Employment Pension Crisis

As reported by NJSpotlight.com, a proposal to move some state and local employees to a new 401(k)-like pension system is gaining support because it has the potential to save billions of dollars. However, long before anything is adopted, it is likely to draw strenuous pushback from the public workers’ labor unions. The recommendation is to move new hires and employees with less than five (5) years of service out of the defined-benefit pension system and into a proposed defined-contribution retirement system. It is one of the many outcomes of a Legislature-led working group of fiscal policy experts gathered by Senate President Steve Sweeney last summer. Out of all its proposals, the panel singled out this move as the one to save the most dollars.

Such a move would substantially change the way public workers earn pension benefits. The last major effort was launched in 2011 and drew mass protests from public employees. Still, Sweeney, who is now the leading proponent of the panel’s findings, is trying to tap into public frustration with high taxes to get the new proposal to the finish line.

In all, the pension system covers the retirements of nearly 800,000 current and retired public employees in New Jersey.  While some of the individual funds for different worker groups are in better shape than others, the system itself has an unfunded liability estimated at $115 billion, making it one of the worst-funded state retirement plans in the country. While some benefits changes were enacted in 2011 after Sweeney worked with then-Republican Governor Chris Christie to adopt bipartisan reforms, that effort was not as effective as originally designed because Christie did not follow an aggressive schedule of state pension payments.

But, just as unions loudly opposed Christie when he sought to adopt benefit changes in 2015, the proposals are already getting pushback from labor. For example, the New Jersey Education Association, the State’s largest teachers’ union, has labeled the panel’s findings, which include plans to reduce the quality of public workers’ healthcare coverage to save more taxpayer money, “unfair, unreasonable and unconscionable.” Many have argued, and rightfully so, that public workers have good reason to be upset regarding additional proposals to cut their pension and health benefits. To this end, the main source of the pension-funding problem is the State’s long history under governors of both parties of not making a full, actuarially-required pension contribution even as the workers themselves have been making legally-mandated employee contributions the whole time.

Please continue to check this blog periodically to ascertain updates regarding the aforementioned proposals. As you can expect, if such proposals were ultimately passed, this could have a drastic impact upon all public employees, most notably public safety officers.

 

Major NJ City Poised to Make Change from Self Insured Healthcare to the NJ State Health Benefits Plan

Posted in Uncategorized

The City of Paterson is looking at the possibility of ending its longstanding practice of using self-insurance for employee medical coverage and switching to New Jersey’s State Health Benefits program, as reported in Northjersey.com. By doing so, Paterson believes that it would save approximately 20 million dollars given that its cost for employee medical coverage in 2020 is estimated at 67 million, compared to 44 million under the state plan. Paterson’s current cost for health insurance is 50.5 million for 2018. A report that was presented to the City Council projected the expense for medical coverage would reach $96 million by 2025 if the City were to remain self insured.

The City Council is scheduled to vote on the proposed change next week, and if approved, the switch would be effective on January 1, 2019. This change would affect more than 2,000 employees and retirees.

The switch to the sate benefit health plan had been discussed previously, but never came to fruition as Paterson needed the consent of more than 15 employee labor unions to affect the change. However as reported, labor unions have reached agreements on health care insurance which were adopted in their contracts that will allow the switch to take place.  This fact has not been confirmed by an independent source at this time.

The City has further stated that the city’s savings will result in decreased payroll deductions for city workers. Furthermore, Michael Jackson, president of the union that represents supervisors in the public works department, said the administration has assured employees that coverage under the state health system would be on the same level as what they received under the self-insurance plan. “If it’s going to save what they say it’s going to save, then it’s well worth it,” said Jackson.

We will continue to follow this story as it develops.  It will be particularly interesting to see if the City is able to deliver the same level of benefits and healthcare under the State Plan as it does under its own self insured plan.

Murphy and NJ Public Employee Unions Negotiate Changes to Healthcare Plans That Will Save NJ Taxpayers Millions of Dollars

Posted in Public Employment Labor Law

As reported in Northjersey.com, the Murphy Administration has reached a health care deal with the state’s public workers’ unions that is expected to yield approximately $500 million in savings over the next two years. The pact directs union members and retirees to utilize “in-network doctors” and “generic prescription drugs”, according to a report by the Record. These are the same cost-cutting measures that have been employed by private sector employees for years.

The plan represents about 15 percent of the $3.4 billion New Jersey paid this year under its self insured healthcare plan. The changes were approved by a joint union-management panel, led by Union and Management representatives.

Currently, the State spends $15,680 on health care for the average employee and $12,988 for the average retiree, according to figures from the state treasurer’s office. Private-sector employers in New Jersey spend an average of $4,747 per employee for heath insurance, according to a Kaiser Family Foundation study.

The anticipated savings from the new healthcare plans will be attained by directing Medicare-eligible retirees from preferred-provider plans to Medicare Advantage plans and by making it more costly for employees and retirees to use out-of-network specialists and brand-name prescriptions. Employees and retirees will have no co-pays for in-network doctors and $3 co-pays for generic prescription drugs. These changes, as announced by Murphy’s office, are expected to yield $274 million in savings in the coming plan year and another $222 million in year 2020.  Also, the state could see up to an additional savings of $20 million if enrollees switch to a new low-cost health plan.

The new plans are being praised as a positive step in controlling the state’s growing costs for employee benefits. In a separate panel established last month by State senator Sweeney, D-Gloucester, recommendations were made to roll back employee health benefits to the federal “gold” level. Sen. Tom Kean Jr., the Republican minority leader, said in a statement that such a shift in benefits would save state and local governments more than $1 billion a year.  Kean said that although he is “encouraged by the modest savings” announced by Murphy, “taxpayers deserve to know that every opportunity to achieve savings on the massive cost of public employee health benefits is being investigated.”

In commentary, it is refreshing to see that the Murphy Administration has made a conscious policy change in negotiating healthcare benefits rather than legislating the changes as his predecessor Chris Christie did over his two terms as Governor.  Healthcare has always been a subject that has been negotiated between management and labor and now that both employees and management incur substantial costs in providing benefits it is in everyone’s best interests to find alternatives that present the best possible coverage for the least amount of money.  We will of course keep you posted as developments continue in this area.

Public Safety Officers Must Be Mindful of Impact of Restraining Orders On Their Employment

Posted in Public Employee Discipline

Recently, the Superior Court of New Jersey, Appellate Division (“Appellate Division”) issued an opinion in the case In the Matter of Frank Harkcom, Bayside State Prison, Department of Corrections.  This case reinforces the fact that New Jersey Public Safety Officers must be mindful if there is a temporary (“TRO”) or final restraining order (“FRO”) entered against them and the impact the same can have upon their employment going forward.

In Harkcom, a Correction Officer appealed his termination from employment.  To this end, he was required to reapply for his job after his conviction of reckless driving and subsequent suspension. The Department of Corrections charged the Officer with falsifying his reapplication by failing to report an active FRO. He was also charged with conduct unbecoming an employee, falsification and intentional misstatement of material fact in connection with work among other charges.

At the hearing, the Officer argued the service section of the FRO was not complete and he was not aware of the same nor the harassment charges. As such, he moved for a directed verdict at the end of the Department’s case.  The Administrative Law Judge denied the motion and determined the hearsay nature of the database records used by the Department to show the FRO went to the weight he would give them. Thereafter, the Judge found that the officer had knowledge of the FRO and harassment charges and, thus, falsified his application.  Subsequently, the Commission adopted the Judge’s decision in its entirety.

On appeal, the Appellate Division noted that no witness testified to qualify the database documents as admissible non-hearsay or hearsay exceptions or to authenticate the documents.  As such, the Appellate Division determined the Department failed to present competent evidence on the harassment complaints or the FRO and, as a result, the admitted FRO document contained no information as to the officer’s knowledge of it.  As such, the officer’s termination was reversed.

This case illustrates the enormous impact the entry of a TRO or FRO can have upon a public safety officer.  In many circumstances, the entry of a FRO can lead to an officer being terminated from employment, suspended indefinitely, or, initially, being prohibited from being hired in the first place. Therefore, should you ever be faced with the situation wherein a TRO or FRO is entered against you, it is imperative to consult with an experienced attorney to ensure your rights are protected.

New Jersey Supreme Court Rules Police Dashcam Videos Not Subject to Public Disclosure In Most Circumstances

Posted in Public Employment Labor Law

As reported by NJ.com, the New Jersey Supreme Court issued a ruling wherein video of New Jersey Police Officers chasing down and arresting suspects will not be turned over to the public and the media in many cases. A divided Supreme Court ruled 4-3  in the matter entitled Paff v. Ocean County Prosecutor’s Office that police dashboard videos are criminal investigatory records exempt under the State’s Open Public Records Act, known as OPRA, which is the primary method by which many police records are disclosed.

The decision still allows for some videos to be released, but largely cements a common practice among police departments across the State: refusing to release any video tied to a criminal investigation, sometimes even months or years after that investigation is closed. In a majority ruling last summer, the Supreme Court found that videos of deadly police shootings should be made public under what’s known as the common law right of access.  This case, however, argued a wider category of police videos should be made public, in part because they are records required to be maintained by order of local police chiefs and prosecutors.

Writing for the majority of the Court, Justice Anne Patterson found that while directives from the State Attorney General, the State’s top law enforcement official, carry the force of law, the same cannot be said for local police executives.  In other words, the majority found that, unless the Attorney General orders police officers to keep the cameras rolling, the video they produce are not subject to OPRA. In dissent, Justice Barry Albin wrote that the lesser-known common law right of access is “a difficult and burdensome path fraught with litigation and increased costs” that would limit the public’s access. To this end, the Supreme Court declined to weigh in on whether the video should have been released under the common law right of access, sending that question back to the lower court to rule upon.

Even before this decision, many police departments across the State only released dashboard or body camera footage in a few circumstances. Those included drunken driving cases, which are not motor vehicle violations nor criminal matters, and fatal police shootings. The particular video sought in the Paff matter depicted a 2014 incident in which a Tuckerton police officer utilized a K-9 on a woman during an arrest. Nevertheless, in the years between the Plaintiff’s initial request and the Supreme Court ruling, the video already surfaced and was published online by certain media outlets.

All New Jersey Public Safety Officers should be cognizant of the Supreme Court ruling to determine whether the practices of their respective departments will be altered to conform with the decision. To this end, please continue to check this blog periodically to ascertain important updates going forward.

NJ’s Public Employee Donated Sick Leave Policy May Soon Become Law

Posted in Uncategorized

In New Jersey under an existing employment regulation, state employees can donate unused time off to a co-worker who has exhausted his/her own allotted leave bank due to a catastrophic illness or injury that has kept them from returning to work. As reported on the website, NJSpotlight.com, State lawmakers want to see this longstanding policy become codified as a matter of law.

Senate Majority Leader Loretta Weinberg, the legislation’s primary sponsor, has been trying for years to convert the state’s donated-leave policy into law. However now under the new Democratic gubernatorial regime the legislation seems to have more momentum as the Democrats who control the Legislature have already found common ground with Governor Phil Murphy making state labor laws more progressive.

The State’s existing donated-leave policy was established by the Civil Service Commission many years ago. Under this regulation an employee is eligible to receive donated leave from a co-worker if they’ve already exhausted all of their accrued sick and vacation time and administrative leave time off. While the rule applies only to state-government workers, a donated-leave program can also be established at the local level if government leaders receive permission from the commission, according to the employment regulation.  Some local municipal and county collective negotiations units have been successful in convincing management in seeking this approval through the collective negotiations process while others have not.

Under the proposed legislation, workers would have to have at least one year of continuous service with the state government to be eligible to receive donated leave. Additional qualifications to be eligible for a leave donation include suffering from a catastrophic health condition or injury; providing long-term care to a family member suffering from a catastrophic health condition or injury; or requiring an extended absence due to the donation of an organ.

The proposed program would benefit workers at all levels of government, i.e. rank-and-file employees, senior executives, and those in unclassified positions. Furthermore, there appears to be no restrictions regarding which groups of employees can share banked time off with each other, or that major differences in pay levels would prevent a leave donation from occurring.

According to the proposed legislation, an employee could receive up to 260 donated sick or vacation days in total, but no more than 30 days from a single co-worker.  In addition, workers making a leave donation must have at least 20 days of accrued sick leave and 12 days of accrued vacation days left on their own leave bank after making a donation. Furthermore, those workers who have been disciplined for lateness or chronic absenteeism within two years of seeking a leave donation would not be eligible to donate.

Finally, in addition to making the donated-leave policy a matter of law, the proposed legislation would also change the rules related to leave that can be donated to a pregnant co-worker to make it easier for women to become eligible for a donation. Currently, a pregnant co-worker is not eligible to receive donated leave unless she is required to be out of work for at least 60 days. The bill would reduce the minimum amount of time needed to qualify for a donation to 30 days.

While this law will not change the existing donated leave program significantly, it will protect the program from possibly being abolished by a Civil Service Commission that may find it important to curtail public employee benefits in the State of New Jersey.  We will keep our eye on this bill to see if it receives legislative approval and then the final signature of Governor Murphy.

Appellate Division Addressed PERC’s Authority, Security Camera Issues

Posted in Public Employment Labor Law

As reported by the New Jersey Law Journal, the Superior Court of New Jersey, Appellate Division (“Appellate Division”) ruled that the State’s Public Employment Relations Commission (“PERC”) has near-exclusive jurisdiction over labor disputes between public workers and their employers. To this end, the three judge panel stated PERC has “exclusive jurisdiction to decide complaints arising under the New Jersey Employer-Employee Relations Act.” “We further hold that the Law Division does not have jurisdiction to enforce an order entered by PERC,” said Appellate Division Judge Jose Fuentes for the panel, joined by Judges Ellen Koblitz and Karen Suter. The Court also upheld a teachers’ union’s right to “engage in good faith negotiations to ascertain the impact the installation of exposed cameras with both audio and video capabilities would have on the terms and conditions of employment for the employees.”

The Court’s ruling resolved two disputes between the Belleville Education Association, which represents the unionized school district employees in the township, and the Belleville Board of Education. The first dispute involved the Board’s decision, which dated back to January 2014, to issue radio frequency identification cards to every school employee and to install video cameras, with audio capabilities, in virtually all areas of the district schools, though no cameras were installed in restrooms, locker rooms or in the nurses’ office. The Board said both measures were to improve security. The Association complained about the installations of the cameras, saying it would improperly interfere with its members’ ability to discuss union matters.

PERC held that installation of the cameras was a condition that should have been negotiated between the Board and the Association. The Board appealed and the Appellate Division affirmed PERC’s determination. In affirming, the Court stated, “In our view, PERC’s thoughtful decision properly applied the test to strike a proper balance between the Board’s managerial prerogative and obligation to ensure the safety of students and staff, and the [Association’s] right to advocate and negotiate for the interests of its members.  The issues PERC addressed include, but are not limited to, good faith negotiations concerning the designation of zones of privacy where cameras would not be installed.”  To this end, the Court agreed with at least one aspect of the Board’s reasoning. “The district has a prerogative, and a responsibility, to take the measures it deems appropriate to protect the safety of its students and staff, particularly in light of the numerous instances of public violence in our schools nationwide in recent past.”

The second issue involved the enforcement of a disciplinary matter. After an individual was disciplined, PERC modified the penalty. The individual then sought relief in the County Superior Court, but the trial judge dismissed the action, saying PERC had the authority to decided work-related matters. The Appellate Division agreed. “[PERC] had the exclusive authority to enforce its own orders and decisions,” the Court stated, adding that the Law Division “does not have jurisdiction to enforce an order entered by PERC under the summary enforcement proceedings available in Rule 4:67-6.”

The Appellate Division’s ruling is noteworthy for New Jersey Public Safety Officers on several fronts. First, the negotiability of the impact of the installation of security cameras is quite significant.  Although this case involved cameras in a public school district, the installation of cameras in correctional facilities as well as the police departments and the resulting impact of the cameras on the officers was always a cause of concern.  This case seems to reinforce the notion that the “impact” of the cameras are negotiable, thereby allowing unions to address many concerns of their members.  Second, the notion that an employee cannot enforce a PERC order or decision in the Law Division is  somewhat troubling.  Quite simply, it is unclear as to what specific measures PERC can undertaken to enforce its own decision, whereas the Law Division always possessed sanctioning authority when an order is not complied with.  Nevertheless, we will continue to monitor the forthcoming case law regarding PERC’s powers to enforce one of its own orders and decisions going forward.

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

NJ 2019 Fiscal Year Budget Funds The Public Employee Pension System at a Greater Level Than Ever Before

Posted in Public Employment Pension Crisis

As reported in multiple news sources, the current New Jersey State budget signed into law by Governor Philip Murphy increased state spending by more than one billion dollars and a large portion of that increase is going to the state’s grossly underfunded public-employee pension system.

The new budget adds $700 million to what the state will be contributing to the retirement plans for teachers, judges and other government workers during the 2019 fiscal year. This will push the total state pension contribution to a record high of $3.2 billion. It’s also nearly 10 percent of the entire state budget, which now totals $37.4 billion.

Despite the planned record spending on the pension system, the state still has a large hole to fill. New Jersey’s worker-retirement funds are routinely rated as being in the worst shape of any in the nation. This is due, in part, to its history of prior New Jersey governors and Legislatures ignoring the payments that were recommended by actuaries who closely study the pension system.

New Jersey is now trying to boost its pension contribution incrementally each year until the gap is filled so as to ensure the pension system remains solvent. This year’s record contribution will equal about 60 percent of the payment that the state should be making, which means Murphy will have to secure billions more for the pension system over the next few years if he wants to stick to the schedule that will eventually get the state up to the full funding of its pension obligation.

Murphy’s predecessor, former Gov. Chris Christie, had pressed lawmakers to reduce pension-funding costs by changing worker benefits, and even by moving some employees into a different and cheaper retirement system that would more closely resemble the 401(k) plans that are now popular in the private sector. However, the Democrats who control both houses of the Legislature resisted those more drastic changes.

The pension contribution is set to increase to about four billion dollars next year. Such an increase may force Murphy to consider making some benefits changes, increase taxes or find the founds that were previously earmarked for other sources.  In this instance, no matter where the money has been derived from one can not countenance the fact that more funds were allocated from the 2019 fiscal year state budget that went towards funding public employees pensions than any other year in recent history.

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