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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.

Senate President Sweeney Wants To Put Public Employee Benefits and Pensions On the Chopping Block Again

Posted in Contract Negotiations

As reported in NorthJersey.com, New Jersey Senate President Stephen Sweeney has plans to wring savings out of government which could fall hard on public employee unions.  Supposedly Sweeny wants to enlist Governor Philip Murphy as his “partner”, but Murphy wants no part of it.

Sweeney’s post-budget focus on cost cutting poses a dilemma for Murphy. Will he be able to effectively govern without inflicting pain on the very people who carried him to victory last November? And can he find a way to collaborate with Sweeney and Assembly Speaker Craig Coughlin, D-Middlesex, who loom as powerful counterweights and impediments to his agenda, or can he go it alone?

The last governor to “partner” with Sweeney was Republican Chris Christie, and that led to sweeping rollbacks in public worker pension and health benefits in 2011.  It is for these reason amongst others than many public employee labor unions have concerns regarding Sweeney and question whether he is a true friend of labor.

In short, Murphy said he has no interest in teaming up with Sweeney to cut benefits through legislation.  Instead, he prefers to negotiate savings at the bargaining table. “The problem I have of re-cutting a deal on the pension side is that we have left the public-sector employees at the altar now for 20 years,” Murphy said in an interview with The Record and NorthJersey.com, referring to the reckless practice of shortchanging or skipping the state’s annual pension payments since the mid-1990s. Workers “have done what they said they would do. We haven’t as a state, and I think reclaiming the trust factor is a big deal, and that’s a big deal for me,” he said.

Sweeney, a self proclaimed fiscally conservative Democrat has been clashing with public-employee unions over cost-containment issues for more than a decade. Sweeney said in an interview. “We’re at a place where we can’t continue to raise taxes. We need to start fixing things.”

Some of the ideas being explored by the Sweeney Camp include raising the retirement age from 65 to 67; capping the pensionable salary for all government workers except state judges; and moving collective bargaining from the local to the state level to “foster leverage” with state unions.

Sweeney argues that Murphy is ideally suited to work with him, however Murphy has his own plans on ways to grow jobs and expand the economy. He is moving forward with a minimize-the-pain approach to unionized public workers. Last week, for example, state Treasurer Elizabeth Muoio announced several administrative steps that could save $100 million in health benefits without cutting packages for state workers — what Murphy has called the “holy grail combo”. However, there was a subtext to the announcement. It was Murphy saying: “We can rein in costs without harming our base supporters or signing on to Sweeney’s crusade.”

Here at Crivelli & Barbati we acknowledge and recognize the cost of benefits and pensions.  However the collective bargaining process that is already in place and well established provides the necessary vehicle to address these issues without the involvement of the State Legislature.  Allow Management and Labor to address these issues at the bargaining table through the collective negotiations process.  One must remember that the pension mess that we are in is not the result of collective bargaining and/or the public employee labor unions themselves.  Instead, the Legislature and former Governors of this state needs to perform a self examination of the their actions that permitted the numerous pension holidays to persist over the years that was the primary factor that created the short fall that we are now trying to correct.

Supreme Court Clarifies Meaning of “Undesigned and Unexpected” Event To Qualify For Accidental Disability Benefits For A Mental Disability

Posted in Disability Retirement

As reported by the New Jersey Law Journal, the New Jersey Supreme Court recently clarified the meaning of the term “undesigned and unexpected” event as it pertains to qualifying for accidental disability retirement benefits for a mental disability in the case of Mount v. Board of Trustees, Police and Firemen’s Retirement System. In the case, the Supreme Court consolidated two appeals stemming from the Board’s denial of two police officers’ applications for accidental disability retirement benefits.

In the first case, Officer Mount responded to a motor vehicle accident. The vehicle was on fire when Mount responded, and without firefighting gear, Mount was unable to attempt a rescue of the three occupants of the vehicle. Instead, Mount had to look on until firefighters arrived and removed the victims from the vehicle. After being diagnosed with PTSD, Mount resigned from the police department and applied for accidental disability retirement benefits. The Board denied the application and the Appellate Division affirmed, ruling that the “horrific” motor vehicle accident was within Mount’s job description and scope of his training.

In the second case, Officer Martinez was a trained hostage negotiator responding to a hostage situation. Martinez managed to convince the suspect to release his hostages, however, without Martinez’s knowledge, the tactical team later entered the building.  While speaking with the suspect, Martinez heard the team open fire and kill the suspect. Martinez was later diagnosed with PTSD and major depressive disorder. The Board initially denied Martinez’s application for accidental disability retirement benefits, but the Appellate Division reversed.

On appeal, the Supreme Court reversed both Appellate Division decisions. The Supreme Court first noted that, to qualify for accidental disability retirement benefits for a mental disability, a plaintiff was required to show he or she suffered a mental disability from a terrifying or horror-inducing event that was undesigned and unexpected. In Mount’s case, the Supreme Court ruled that he had sufficiently demonstrated that he experienced a terrifying or horror-inducing event that was undesigned and unexpected for the course of work of a police officer in watching three occupants of a crashed motor vehicle burn to death. Accordingly, the Supreme Court remanded for the Appellate Division to render a decision on whether Mount’s PTSD was the direct result of watching the car crash.

However, the Supreme Court ruled that Martinez had failed to show that listening to the suspect be taken down by the tactical team was terrifying or horror-inducing or was an undesigned or unexpected event for a hostage negotiator.  Commensurate therewith, the Supreme Court ruled that Martinez was not eligible for accidental disability retirement benefits.

The Supreme Court’s recent ruling illustrates that the question as to whether an particular incident is properly classified as “undesigned and unexpected” for purposes of obtaining accidental disability retirement benefits for a mental disability is a fact sensitive inquiry and, generally, “unclear.”  To this end, there is a lack of uniformity among Courts as what “type” of event qualifies.  Therefore, should you ever find yourself pondering whether to file for accidental disability retirement benefits for a mental disability, you should consult with a qualified, experienced attorney to determine whether such an application is viable.

Please continue to check this blog periodically for updates regarding the state of law pertaining to accidental disability retirement benefits and other areas vital to New Jersey Public Safety Officers.

New Jersey Lawmakers Advance Bill Capping Sick Leave Payouts

Posted in Public Employment Labor Law

As reported by Observer.com, lawmakers have resurrected a proposal to cap unused sick time payouts for all New Jersey public workers. Last week, the Assembly State and Local Government Committee advanced a bill that would cap sick leave payouts to public workers at $7,500 or whatever the employee has banked so far if they have already earned more than that. Public workers who retire with less than $7,500 in unused sick pay would receive payments over a five-year period to cover the cost of healthcare coverage or medical expenses, according to the bill.

New Jersey currently caps sick leave payouts for all state workers at $15,000. In 2010, former Governor Chris Christie signed a law capping newly-hired local government employees at $15,000, but he conditionally vetoed a separate bill that would have capped all public employees at $15,000, saying there should be no sick leave payouts at all. He then rejected an offer to reduce the cap to $7,500.

Public sector labor unions were outraged at the new bill, arguing it would interfere with their ability to collectively bargain. They said many local governments already have caps on sick leave payouts and noted public workers have seen cutbacks to their benefits and a freeze in yearly cost-of-living adjustments for retirees since 2011. “It’s an attack on collective bargaining, and by extension, it is an attack on the sustainability of the middle class,” said Ginger Gold Schnitzer, director of Government Relations at the New Jersey Education Association, the state’s largest teachers union. “This bill, if enacted, would undermine collectively negotiated agreements.”

Pat Colligan, President of the New Jersey State Policemen’s Benevolent Association, said he was “befuddled” to see a new sick leave payout bill move through a Democrat-controlled Legislature while there is a Democratic governor. “For those of you who are sitting on the dais with a ‘D’ next to your name, there is not one description of ‘Democrat’ in any encyclopedia and any dictionary that doesn’t say it supports labor,” he told lawmakers.

As you can expect, this bill could have an enormous impact upon all New Jersey public employees, most notably New Jersey Public Safety Officers, and the compensation they are ultimately entitled to. Moreover, this seems to be another attempt to circumvent the collective negotiations process through the passage of legislation. As such, please continue to check this blog periodically to ascertain important updates regarding the progression of this bill.

Governor Signs Law Expanding Public Worker Union Rights

Posted in Public Employment Labor Law

As reported by NJ.com, Governor Phil Murphy recently signed a bill strengthening the rights of public worker unions, which could face a big threat from a looming decision by the United States Supreme Court. The bill, A3686, the Workplace Democracy Enhancement Act, gives public labor unions in New Jersey greater access to their members and penalizes public employers that encourage people to resign their union membership. “As a strong advocate for organized labor, I recognize the myriad benefits of employee unionization, as well as the continued challenges unions face in maintaining and growing their membership,” Murphy said in a statement.

In the Janus v. AFSCME case before the Supreme Court, public labor unions nationwide stand to lose the right to collect agency fees workers pay in lieu of compulsory dues if they do not want to pay the full freight, which includes money for political activities. Agency fees for non-members cannot exceed 85 percent of the full membership fee and are meant to support the unions’ nonpartisan activities, like contract negotiations. The plaintiff in Janus, an employee with the Illinois Department of Healthcare and Human Services, argues that it is impossible to distinguish between unions’ political and nonpartisan activities and being forced to pay agency fees violates the First Amendment.

The Supreme Court deadlocked on a nearly identical case in 2016 following the death of Justice Antonin Scalia, but the addition of Justice Neil Gorsuch is expected to the tip the Court in favor of the Plaintiff. A ruling against agency fees would make it even more important for labor unions to recruit and retain members, who will have a choice between paying full member dues or none at all.

New Jersey has about 344,000 public union members. The bill allows labor representatives to meet with members in their workplace and during work hours to investigate workplace complaints, to conduct on-site meeting with members during breaks, and to meet with newly hired employees. Public employers, in turn, are required to furnish the organizations with contact information for all covered employees and to allow the group to use the employers’ email to reach out to members. Additionally, if a public employer is found to have encouraged employees to shed their union membership or discouraged them from joining or forming a union, it must reimburse the union for those lost dues.  The bill would also extend union membership to the majority of part-time government employees.

In April, the State Assemble passed the bill 50-22, with one abstention and it went 26-9 in the State Senate. Supporters say the law codifies what are already common practices in some places, while opponents have called it premature, unnecessary and overreaching.

As you can see, the impact of an adverse holding in Janus v. AFSCME can potentially have an enormous impact upon public labor unions.  As such, this bill anticipates such an impact and proactively attempts to address the same.  Consequently, please continue to check this blog periodically to ascertain updates regarding the Janus case and the resulting impact upon organized labor.

Assembly Votes On Bill Requiring Public Employees Guilty of Sexual Assault and/or Sexual Harassment To Forfeit Pensions

Posted in Public Employment Labor Law, Retiree Benefits

As reported by NJSpotlight.com, inspired by the nationwide campaign against sexual harassment known as the #MeToo movement, lawmakers in New Jersey are proposing a costly new punishment for elected officials and public workers who use their positions to commit a sexual assault or related offense. A bill that was easily approved by a State Assembly committee last week would result in the complete loss of a taxpayer-funded pension by an elected official or public worker who commits a sexual assault or related offense that somehow involves their official position.

The measure would adopt the same approach currently written into state law to discourage acts of public corruption, and sponsors of the bill have drawn a direct line between the bill and the growing movement known by the social-media tag #MeToo that has raised public awareness about the issue of sexual assault and harassment in the workplace.

The pension-forfeiture bill approved by the Assembly State and Local Government Committee would amend the law that already requires a loss of taxpayer-funded retirement benefits for elected officials and public workers for offenses that primarily relate to instances of public corruption, like bribery and official misconduct. The legislation would add sexual assault, sexual contact, lewdness, and harassment to the list of offenses that result in a forfeiture of pension benefits, with the requirement that the offense be “related directly to the person’s performance in or circumstances flowing from, the specific public office or employment held by the person.” The pension forfeiture would occur when the person is either found guilty by a court of has pleaded guilty to one of the offenses that trigger the loss of retirement benefits, according to the bill.

By including the offense of harassment among the list of additional crimes that would trigger the loss of pension benefits, the impact of this bill upon public workers, to include public safety officers, has the potential to be significant. A harassment offense is typically charged in New Jersey as a petty disorderly person’s offense, resulting in just a fine. However, under the bill, a harassment conviction can now force an employee to lose a pension earned over a lifetime of work and potentially worth hundreds of thousands of dollars. Therefore, all public employees must be mindful of this if charged with such an offense should the bill become law.

Please continue to check this blog periodically to ascertain important updates regarding the progress of this bill and other issues involving New Jersey Public Safety Officers.

 

Labor Arbitration Awards: Be Mindful of The Standard of Review

Posted in Contract Interpretation, Interest Arbitration, Public Employment Labor Law

As reported by the New Jersey Law Journal, the Appellate Division recently issued an opinion in the case Policemen’s Benevolent Association v. Camden County Board of Chosen Freeholders, which addressed a challenge to a labor arbitration decision revolving around “bonus vacation days.” In the case, the Union appealed from an Order which dismissed its complaint and confirmed a labor arbitration decision. The Union claimed that the arbitrator’s award should have been vacated because it was contrary to public policy. The Union further argued that the trial court’s decision ratified the arbitrator’s failure to render a decision on an issue of substantive law and that the trial court’s decision approved the rewriting to the collective negotiations agreement at issue.

The Appellate Division found that the County’s policy regarding bonus vacation days did not violate public policy and the decision was not the product of undue means. The Court reasoned that nothing that the Union suggested fell within the narrow scope of a clear public policy exception that would have allowed for an arbitration award to be vacated. Finally, the Court found that the arbitrator used a reasonable and pragmatic means of addressing the past practice of awarding bonus vacation days and did not, in effect, rewrite the contract.  As such, the Court affirmed the trial court and, thus, confirmed the arbitration award.

This case illustrates the standard of review utilized by Courts in reviewing labor arbitration decisions.  Typically, an arbitration award will be confirmed so long as it is “reasonably debatable” and is not contrary to public policy.  Moreover, the decision cannot be premised upon mistakes of fact or law.  Therefore, the standard of review is somewhat high as Courts will normally give deference to an arbitrator’s decision.

Nevertheless, each and every arbitration decision is based upon a different set of facts and circumstances.  As a result, should you seek to overturn a labor arbitration decision imposed against you, you should seek the counsel of an experienced labor attorney to determine whether such a challenge is viable. In all instances, however, you must be mindful as to the standard of review employed by Courts in reviewing labor arbitration decisions.

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