As first reported in NorthJersey.com, by the date of September 17th, 2021, members of PBA Local #136, the certified Collective Negotiations Unit that represents Rank and File Law Enforcement Officers employed by Wayne Township in Passaic County, New Jersey will be forced by a mandate issued by Township’s Leadership to receive the Covid-19 vaccine, or face the consequences associated with their disobedience.

In an effort to try to thwart this mandate, Local #136 filed a lawsuit seeking a preliminary injunction to halt the implementation of the policy in the Passaic County Superior Court on behalf of all of its members.  Within the body of the complaint there is a side note indicating that three of its members remain unvaccinated by personal choice.

In its effort to obtain the injunction The PBA claimed that the vaccine mandate violated the civil rights of the police officers, placed the officers at risk of losing out on life insurance benefits if they were to die due to complications related to the vaccine and that the mandate could not be implemented as it was not collectively bargained for with the Union.  However, Superior Court Judge, Ernest M. Caposela, dismissed each of these arguments outright and denied the union’s request for an injunction stating that the policy is “justified in that it is a proper exercise of the [Township’s] police powers to protect the general public welfare.” In addition to the foregoing, the Court held that religious exemptions were still being honored, and therefore the mandate was not contrary to the United States Constitution.

This was the first legal challenge to a vaccine mandate that we are aware of in New Jersey that addresses the legalities of a policy with public employees.  Unfortunately, the documents filed with the Court in this matter have provided us with little insight concerning why the Judge ruled as he did, however this does establish a dangerous precedent moving forward on this very important issue.  We will keep our readers posted on this issue as more information becomes available.

 

As stated in NJ.com, in December of 2012, a former Jersey City municipal inspector, Bennie Anderson, took a $300 payoff to change the tax description on a building zoned for two units to one zoned for three units. Anderson pleaded guilty and was sentenced in federal court to two years of probation, five months of home confinement, and a $3,000 fine. Most recently, the New Jersey Supreme Court decided it was proper that Anderson forfeit his entire pension. In a 5-1 decision, with Chief Justice Stuart Rabner not participating, Justice Jaynee LaVecchia wrote that the Legislature had established a public pension based on the pre-condition of honorable service and rejected Anderson’s contention that forfeiting the benefit in its entirety represented an excessive fine.

Bennie Anderson was a city employee for almost forty years and his pension entitled him to $67,173 annually. Those that advocated for a total forfeiture argued that the receipt of pension benefits is always conditioned on honorable service and thus, Anderson did not earn the right to receive such a benefit by virtue of his criminal conviction. Counsel for the Pension Board stated, “It is neither unconscionable nor unreasonable to require honesty and integrity during an employee’s tenure in public service”.

However, not everyone considered the Court’s ultimate decision to forfeit Anderson’s entire pension a fair and equitable outcome. Anderson’s attorney stated, referring to the value of Anderson’s pension, that a total forfeiture was akin to a “million-dollar fine.” He went on to state, “For $300, it’s very sad. To me, that’s where it starts and ends. How is that not a punitive fine?” Anderson’s attorney said the pension would have paid out more than $1 million in benefits over Anderson’s expected lifespan.

The seminal case in pension forfeiture matters is Uricoli v. Board of Trustees, PFRS, 91 N.J. 62 (1982). In Uricoli, former police chief Uricoli petitioned for certification after the appellate court affirmed the Pension Board’s final administrative determination to forfeit his pension in totality after Uricoli was found to have committed the crime of “ticket fixing.” The Court granted certification and ultimately reversed and remanded the appellate court’s decision. The Court determined that a total forfeiture of Uricoli’s pension was not warranted based upon the facts presented, and alternatively recommended a partial forfeiture of Uricoli’s pension.

In making its recommendation for a partial forfeiture, the Uricoli Court developed a test for determining the extent to which a public employee who engaged in dishonorable service should forfeit his or her pension benefits. The Court set forth an eleven-point balancing test, which was later codified by the Legislature in N.J.S.A. 43:1-3. The factors that must be assessed, per Uricoli, are as follows:

  1. The member’s length in service;
  2. The basis for retirement;
  3. The extent to which the employee’s pension has vested;
  4. The duties of the particular employment;
  5. The employee’s public employment history and record;
  6. The employee’s other public employment and service;
  7. The nature of the misconduct or crime, including the gravity or substantiality of the offense, whether it was a single or multiple offense and whether it was continuing or isolated;
  8. The relationship between the misconduct and the employee’s public duties;
  9. The quality of moral turpitude or the degree of guilt and culpability, including the employee’s motives and reasons, personal gain and the like;
  10. The availability and adequacy of other penal sanctions; and
  11. Other personal circumstances relating to the employee bearing upon the justness of forfeiture.

Despite the prima facie similarities between his case and Uricoli, the Supreme Court evidentially determined that the eleven Uricoli factors weighed in favor of a total forfeiture with respect to Anderson’s appeal. It should also be noted that the Court is generally compelled to afford a certain amount of deference to agency decisions, which includes those made by the Division of Pensions and Benefits.

As reported by nj.com, a new report is critical of how the New Jersey State Police has handled some low-level discipline cases and faults investigators for sometimes taking too long, but overall the review concluded the agency followed the law in handling internal investigations.

The Office of the State Comptroller also raised concerns that the attorney general’s office has never examined whether a trooper’s gender, race or rank affects how they’re disciplined.

“Although our review found general compliance with governing procedures for misconduct complaints, we identified several weaknesses and have provided recommendations … to prevent discrimination,” acting State Comptroller Kevin Walsh said in a statement.

Walsh’s report, his office’s seventh concerning how the state’s largest police department investigates its own, was published late last month.

A State Police spokesman said they were “committed to providing professional and compassionate service to the public.”

“As we look toward the future, we will continue to hold our troopers to the highest standards and incorporate practices that foster transparency and accountability,” Sgt. Lawrence Peele wrote in an email.

The agency has adopted at least two of the report’s recommendations to make it easier for residents to flag problems.

As part of its review, Walsh’s office reviewed dozens of State Police misconduct investigations, and it generally appeared “that discipline imposed was consistently meted out.”

But the report also said police were wrong to dismiss some complaints just because the accusations dealt with more minor issues, such as a trooper being rude to a driver. Leaving “even those unaddressed can lead troopers to develop poor work habits that can lead to more serious issues,” the review concluded.

The State Police disagreed and argued it was a better use of resources to focus on more serious complaints, according to the report.

Furthermore, a dozen internal investigations of alleged misconduct blew past the 120-day deadline, Walsh’s team said. The report only looked at 39 investigations, meaning almost a third were delayed — and investigators failed to formally ask for extensions in a handful of those cases.

Troopers accused of wrongdoing often can’t be promoted and transferred until investigations conclude, the report pointed out. “Additionally, complainants and the public will have greater confidence in the investigative process if the 120-day rule is adhered to unless extensions are requested.”

The State Police pledged to speed up investigations, according to report.

The comptroller also pushed the Office of Law Enforcement Professional Standards, a division of the state attorney general’s office, to use “existing data” to examine, for example, if Black troopers were disciplined more severely than other troopers. The division did not say whether they would adopt that recommendation.

It is similarly not uncommon for Internal Affairs investigations to “drag on” within numerous county and municipal police departments throughout New Jersey. These investigations are also sometimes rife with conflicts of interest which likewise tends to slow down their progression. However, the impact of these IA investigations on an individual officer’s career can be significant as it puts the officer in a state of “limbo” while hurting, at least in the interim, their chance at career advancement.

Notably, the topic of delayed IA investigations was touched on in a well-known Superior Court case entitled Aristizibal v. Atlantic City, 380 N.J. Super. 405 (Law. Div. 2005). Although that dispute involved application of the 45-day rule, referring to the statutory requirement that charges against an officer be filed within 45 days after a department obtains sufficient information to bring them, the Court recognized that there was somewhat of a gray area in regard to determining precisely when a department indeed has “obtained sufficient information” to bring administrative charges. To that end, the Court proclaimed that “extensive bureaucratic delay in conducting investigations and bringing disciplinary charges is unacceptable.” Id. at 427-428.

 

 

As reported in the New Jersey Law Journal, Firefighters Mutual Benevolent Association Local 67 (FMBA #67), filed a grievance against the Borough of Carteret in regard to a staffing issue that the parties had agreed to which was subsequently retracted by the Borough. The case was taken to an arbitration hearing and the arbitrator ruled in favor of the union. Thereafter, the Borough appealed the decision to the Chancery Division of the Superior Court of New Jersey, who affirmed the Arbitrator’s decision. Notwithstanding the Chancery Decision affirming the arbitrator’s decision, the Borough again appealed the decision to the Appellate Division of the Superior Court of New Jersey, who reversed the Chancery Court’s decision, finding that the Arbitrator “erred” stating that, “the CSC’s job descriptions for firefighters and fire lieutenants created ambiguity as to the applicability of the CBA” and thus the arbitrator was incorrect in his interpretation of the same. However, the case did not end there as FMBA #67 filed a Petition for Certiorari with the New Jersey Supreme Court who agreed to hear the matter on appeal.

In another turn of events, the Supreme Court reversed the Appellate Division’s judgment, and found that the arbitrator’s ruling was actually supported by a plausible interpretation of the collectively negotiated agreement (“CNA”) and therefore satisfied the “reasonably debatable” standard.

In summary the Court held as follows:

1. An arbitrator’s award resolving a public sector dispute will be accepted so long as it is “reasonably debatable.” Under that standard, a court may not substitute its judgment for that of the arbitrator, regardless of the court’s view of the correctness of the arbitrator’s position. If two or more interpretations of a labor agreement could be plausibly argued, the outcome is at least reasonably debatable.

2. The arbitrator’s award in this matter was supported by a plausible interpretation of the CNA and therefore satisfies the “reasonably debatable” standard. In reversing the arbitrator’s award, the Appellate Division incorrectly substituted its own judgment and did not afford proper deference to the arbitrator’s interpretation of the CNA.

The Court found that both the FMBA and Borough’s interpretation of the CNA was plausible and the arbitrator sided with the FMBA. The inquiry on appeal is not whether the appellate court has a better interpretation of the agreement. It is the arbitrator’s interpretation of the CNA that the parties bargained for here and, thus, the decision should not have been disturbed.

While the standard adopted by the New Jersey Supreme Court has always been the “gold” standard for Court’s reviewing grievance arbitration awards, it is beneficial for everyone to have a firm understanding that the New Jersey Supreme Court has once again put its stamp of approval on how arbitrations awards should be reviewed at the appellate level in the State of New Jersey.

As reported by NJ.com, nearly 8,000 New Jersey Police Officers and Firefighters with twenty (20) years of service can now retire early under a bill signed into law on Monday. The legislation, S107, known as the “burnout bill,” allows public safety workers who reach twenty (20) years of service within the next two years to retire with a pension, regardless of their age. Current law limits the early retirement benefit, the equivalent of half their salary, for public safety workers hired after January 2000 to those at least 55 years old.

The unions who advocated for the change said it was not creating a new benefit, but rather bringing officers and firefighters after 2000 in line with those hired before 2000. It corrects what they argued was a misinterpretation of the 1999 law creating the early retirement benefit by former Governor Chris Christie’s administration.  Opponents, including local government representatives, have said they were concerned about putting additional strain on the woefully underfunded public employee pension system and about higher bills for government employees. The nonpartisan Office of Legislative Services said it could not calculate the fiscal impact of the bill “with a reasonable degree of certainty.”

Rob Nixon, the New Jersey State Policemen’s Benevolent Association’s Government Affairs Director, said historically only a small percentage of members opt for early retirement, which has a reduced benefit. “An individual member is leaving well over $1 million on the table by taking this benefit,” Nixon said, noting their early retirement pension allowance is 50% of their final salary and they forfeit post-retirement medical benefits. “Why would they take it? They take it because they’re burning out.” The legislation would extend eligibility for an additional two years, which Nixon described as a limited window to test the financial impact of early retirement.

As you can expect, the extension of this benefit is significant for all New Jersey law enforcement officers and firefighters throughout the State. However, deciding whether to retire after twenty (20) is an inherently personal decision that must be made based upon an evaluation of all the attendant facts and circumstances. As such, if you are deciding whether to avail yourself of his benefit, we are here to offer any assistance we can. Moreover, please continue to check this blog periodically to ascertain updates regarding this topic and other important legal developments pertaining to New Jersey Public Safety Officers.

At approximately 10:30 PM on July 9, 2020, The State Attorney General sought permission to file a motion seeking  emergent relief to dissolve the stay to implement Directives 2020-5 & 2020-6 entered by the Appellate Division earlier that day. The stay as currently entered delays the Attorney General’s ability to implement Directives 2020-5 & 2020-6 until a full hearing takes place concerning the legality of the Directives themselves.  Oral argument on the issue is set for October 15, 2020 and we expect the Supreme Court for the State of New Jersey to rule on the Attorney General’s application in the most immediate future.  When we receive a ruling we will report it to our readers.

Today, the New Jersey Superior Court Appellate Division Issued a Temporary Stay on the release of public disclosure of the identities of Law Enforcement Officer who have been sanctioned for “serious disciplinary violations”, defined as
“termination of employment, reduction in rank or grade, and/or suspension greater than five days”.  In issuing the Stay a briefing schedule was established culminating in oral argument on the date of October 15, 2020.  We will continue to keep you posted on this matter as it progresses and a link to the complete copy of the order is attached below.

ORDER (GRANTED AND OTHER)

 

As reported by NJ.com, a plan offered by Governor Phil Murphy for New Jersey’s state government to make up for massive losses in tax revenue with up to $14 billion in borrowing passed the State Assembly yesterday, but still lacks support from State Senate President Stephen Sweeney. The measure cleared the lower house in a 51-28 vote along party lines.

The State Treasurer has lowered by $10 billion how much tax revenue the State may collect through next summer. The coronavirus pandemic crisis and business closures ordered to slow its spread have spurred an economic crisis that’s slammed state tax collections, including personal income taxes, sales taxes, and taxes on corporate income. Murphy says the State would have to make draconian cuts and “historic” layoffs if the State Legislature does not agree to its borrowing plan and the federal government doesn’t come through with more aid. Under the worst case scenario, Governor Murphy pegs the number of public worker layoffs at 200,000.

“It’s a huge step forward,” Murphy said of the Assembly vote. “Bonding is not something we all wake up reflexively wanting to do. But the alternative is devastation for our front-line workers, the very people we need at their positions and posts…health care workers to firefighters, police, educators, EMS and everybody in between. That’s a big step in the right direction.”

The administration is seeking authorization to issue $5 billion in general obligation bonds in the public or private markets, and to have the ability to borrow up to $9 billion from the Federal Reserve.  However, officials say they do not anticipate borrowing the full amount. The bill, which has not been taken up by the State Senate, authorizes the Governor to take out the $9 billion from the federal reserve for a term of up to three years for the State directly and also on behalf of local governments that can’t access the lending program on their own. The State would pay the Federal Reserve 2.8 percent in interest, based on its credit rating and the Fed’s pricing grid. The bill also permits the administration to refinance the general obligation bonds on the public or private markets before they come due.

Please continue to check this blog periodically regarding updates to this bill.  As we all know, the economic fallout from the coronavirus pandemic may have a drastic impact upon all New Jersey public employees, to include New Jersey Public Safety Officers.  As such, it is imperative to ensure all New Jersey Law Enforcement Officer positions and their accompanying rights are adequately protected during these uncertain times.

The COVID-19 pandemic has taken hold of our lives and has undoubtedly had an impact on First Responders from both a personal and professional standpoint.  Over the past several weeks, our firm’s attorneys have had the unique perspective of witnessing individual administrators from across the State of New Jersey exhibit fantastic leadership qualities, while other administrators have again proven to be the poor leaders that we always knew that they were. Unfortunately, the poor leaders panic in a state of crisis and believe that rules, regulations, statutory law and bargained for agreements no longer apply or have to be followed. When such situations occur, First Responders often bear witness and are victimized by administrations taking unwanted and unneeded liberties in operating their organizations. Such situations have resulted in blatant overt and attempted covert violations of collective negotiations agreements.  Suffice it to say, it is the poor leaders that believe that they can take what they want, act how they want, and make decisions unilaterally without consulting with the men and women that they lead.

However, on the other hand, we have been fortunate to witness certain outstanding leaders recognize and predict potential problems and issues and in turn, reach out to the men and women under their charge in an effort to resolve the problems together and tackle them head on for the betterment of all involved.  When administrators have taken the time to consult with Union Leadership, certain Locals have agreed to relax terms and conditions within their bargaining agreements in an effort to ensure operational efficiency and the protections of the First Responders and the public at large.  We are of firm opinion that agreed to temporary contractual concessions are not a sign of a Local’s weakness, but instead a sign of strength and the fostering of strong labor relations that are needed to accomplish the departmental mission.

Needless to say, because of such poor administrative leadership, our firm has found ourselves filing more grievances and unfair practice charges than we have had to file over the previous six (6) months prior to the outbreak of the pandemic. That being the case, we believe it is important to inform our members that, much to the chagrin of administration, the terms and conditions of your collective negotiations agreement do not fall by the wayside during a government declared state of emergency.

In reviewing this issue in detail, it must be noted that there is a dearth of case law on the specific subject of an administration’s engagement in illegal behavior by violating the terms and conditions of a collective negotiations agreement during a declared state of emergency. Guidance, however, can be taken from the case Robbinsville Twp. Bd. of Educ. v. Washington Twp. Educ. Ass’n, 227 N.J. 192 (2016). In Robbinsville, the Supreme Court held that the board of education’s unilateral alteration of a collectively negotiated agreement based on a declared financial crisis was illegal and constituted an unfair labor practice. In rendering their decision, the Court used very strong language and stated that managerial prerogative did not allow a public employer to “throw a collectively negotiated agreement out the window” during an economic crisis.

The Supreme Court went on to further state that “allowing a claimed need for management prerogative to prevail in tight budgetary times in order for municipal government policy to be properly determined would eviscerate the durability of collective negotiation agreements. The Legislature and the Court have, time and again, emphasized the value of collective negotiated agreements in society.”

In addition to the foregoing, NJPERC just issued an order on May 26, 2020, granting interim relief and restraining the Passaic County Sheriff from violating PBA #286 and #197’s collective negotiations agreement when he recalled both Union Presidents from full union release.  In the decision bearing Docket No.’s IR-2020-23, CO-2020-263 and CO-2020-264 the PERC Hearing Officer rejected the County’s arguments that managerial prerogative provided them with a sound basis to recall the two officer’s which eviscerated the terms of the two Union Contracts.  Instead, the Sheriff was restrained from engaging in his unlawful actions and the two President’s were returned to full release.

Based on the foregoing, protect the terms and conditions of employment that your Local has negotiated into your collective bargaining agreements.  If management wants to eviscerate your agreement by “taking without asking,” we know that your collective bargaining training will “kick in” and appropriate action will be taken to protect your rights.  The sooner management recognizes and respects your collective negotiations agreement, the sooner that they will learn the reasonableness and willingness of our Locals in ensuring that the mission and the protection of our citizens is always our top priority

As reported by NJ.com, legislation to automatically pay federal death benefits to first responders who die of the coronavirus unanimously passed the United States Senate yesterday.  The measure removes the requirement that families of police officers, firefighters and emergency medical technicians  have to prove that the first responder was infected while on the job as long as the person was diagnosed with COVID-19 within 45 days of his or her last shift.

“Our firefighters, police officers, EMTs, and other emergency services personnel risk their lives to keep us safe, and face significantly increased hazards during this pandemic,” said the bill’s Chief Democratic sponsor, U.S. Senator Cory Booker. “A staggering number of public safety officers have already lost their lives to COVID-19 and we must make sure that their families are supported when they face unimaginable loss-and that’s exactly what this bill does.” The bill attracted bipartisan support, with U.S. Senator Chuck Grassley of Iowa as the lead Republican sponsor.

Under the legislation, death benefits would be paid if a first responder is diagnosed with the coronavirus within 45 days of his or her last shift. The benefits would go to public employees and volunteers, though lawmakers said they hoped to expand the program to also include those working for private companies. Similar legislation is being sponsored in the U.S. House by Representative Bill Pascrell Jr., D-9th Dist., and a benefits provision was included in the $3 trillion coronavirus stimulus bill expected to pass the chamber on Friday. Under the Public Safety Officers Benefits Program, the federal government pays death benefits to survivors of first responders who die in the line of duty or due to a work-related event. The Justice Department program also benefits to those permanently disabled due to their work.

Unfortunately, as we all know, New Jersey Public Safety Officers have been hit particularly hard by the COVID-19 pandemic.  Specifically, about twenty (20) first responders in New Jersey have died due to COVID-19, although this number may be under reported.  This bill provides a step in the right direction for all New Jersey Public Safety Officers in order to protect and provide for their families in the unfathomable event of a death due to COVID-19. Please continue to check this blog periodically to ascertain updates regarding this bill and its progress going forward.  Stay Safe!