Police licensing has begun in earnest and one of the areas that will be targeted by the Police Training Commission are domestic violence matters. Allegations of domestic violence carry serious consequences in terms of licensing. N.J.A.C. § 13:1-10.1 provides that any person employed as a law enforcement officer, including a full-time permanent law enforcement officer; a class one, class two, or class three special law enforcement officer; or a probationary or temporary law enforcement officer shall hold a valid, active license as a law enforcement officer. N.J.A.C. § 13:1-12.1(g)(2) states that proof of a conviction for “an act of domestic violence pursuant to N.J.S.A. 2C:25-17 et seq.” shall “result in the mandatory denial of licensure, a refusal to renew a license, or a revocation of licensure.” According to N.J.S.A. § 2C:25-19, “Domestic violence” means the occurrence of one or more of the following acts inflicted upon a person protected under this act by an adult or an emancipated minor: (1) Homicide; (2) Assault; (3) Terroristic threats; (4) Kidnapping; (5) Criminal restraint; (6) False imprisonment; (7) Sexual assault; (8) Criminal sexual contact; (9) Lewdness; (10) Criminal mischief; (11) Burglary; (12) Criminal trespass; (13) Harassment; (14) Stalking; (15) Criminal coercion; (16) Robbery N.J.S.2C:15-1; (17) Contempt of a domestic violence order pursuant that constitutes a crime or disorderly persons offense; (18) Any other crime involving risk of death or serious bodily injury to a person protected under the “Prevention of Domestic Violence Act of 1991,” (C.2C:25-17 et al.); or (19) Cyber-harassment P.L.2013, c.272 (C.2C:33-4.1). Therefore, N.J.A.C. § 13:1-12.1(g)(2) makes it abundantly clear that a conviction for an act of domestic violence (as defined by N.J.S.A. § 2C:25-19) will be fatal to one’s ability to obtain or maintain a law enforcement license in New Jersey.

What about when an officer is not subject to criminal charges of domestic violence, and instead has a temporary restraining order (TRO) imposed upon them that is later dismissed? Pursuant to N.J.A.C. § 13:1-12.1(e)(1)(iii), the Commission also “shall have the authority to deny a license to an applicant, refuse to renew a license, or impose adverse licensure actions, upon proof by a preponderance of evidence, that the applicant or licensee has committed acts that constitute a criminal violation as evidenced by… the entry of a domestic violence restraining order issued pursuant to N.J.S.A. 2C:25-17 et seq.” This provision is not as narrowly tailored as the previously once referenced. And unlike the prior provision discussed, it does not absolutely mandate revocation or denial as a domestic violence conviction does. I recently spoke to a family law practitioner who, ironically, questioned what the term “domestic violence restraining order” meant as used in the licensing regulations. The point was well-taken because the provision does not distinguish between a TRO or a final restraining order (FRO). But I don’t believe that distinction is necessary.

For one, if an officer has a FRO imposed upon them, they can’t be licensed as they won’t be able to carry a firearm. Secondly, by using the phrase “upon proof by a preponderance of evidence,” it implies that the Commission can take action against any individual accused of domestic violence, even if that person was acquitted of an underlying criminal charge. This is because prosecutors in a criminal case have a higher burden of proof (beyond a reasonable doubt) than the Commission has in an adverse licensing action (proof by a preponderance of evidence). Moreover, because a TRO would qualify as a “domestic violence restraining order issued pursuant to N.J.S.A. 2C:25-17 et seq.” this means the Commission can impose an adverse licensure action (up to denial and or non-renewal), pursuant to N.J.A.C. § 13:1-12.1(e)(1)(iii), even if that TRO is dismissed and never becomes a FRO. In such cases, N.J.A.C. § 13:1-12.1(e)(1)(iii) allows the Commission to review the specific facts associated with a case and make their own determination, even if it involved the imposition of a TRO which is later dismissed.

Police licensing is obviously new in New Jersey and “adverse licensing actions” have only recently started to be filed against officers. We will do our best to keep readers updated with the various decisions stemming from these actions as they will likely aid in our ongoing efforts to interpret these regulations and statutes.

One of the mechanisms that law enforcement officers and unions have at the negotiations table is the characterization of or “free agent” mentality. In simple terms, this refers to an individual officer’s ability to transfer or seek employment with another agency that is offering better wages, benefits, and employment conditions. When this occurs, however, employers are routinely attempting to recoup the training costs they expended on the officer upon initially hiring them, to include certifications, equipment, uniforms, and academy training. Suffice it to say, the employers believe they should be reimbursed the same since the benefit of such training will now be provided to another agency/department.

Employers typically seek to recoup such training costs through a specific provision contained in the parties’ collective negotiations agreement/contract. To this end, the Public Employment Relations Commission (“PERC”) has held that the reimbursement or recoupment of training costs is a mandatorily negotiable topic. As a result, such provisions are enforceable against the officers leaving employment. In some cases, this has required officers to pay their employer several thousand dollars in training costs merely for pursuing a better employment opportunity.

Therefore, if such a provision is contained in your collective negotiations agreement/contract, you may want to propose revisions to the same in order to lessen the impact on officers who leave, such as: (1) shortening the amount of time the officer needs to be employed with the agency before having to reimburse them if they choose to leave; or (2) capping the amount of the reimbursement. Conversely, if no such provision is contained in your agreement/contract, you may want to adamantly oppose any such proposal by the employer. Quite simply, a provision mandating that officers reimburse their employers for training costs serves as a deterrent of sorts for officers seeking better opportunities, thereby reducing the union’s leverage at the table for better wages and other terms and conditions of employment. As we all know, possessing leverage at the table is of paramount importance and should be preserved in all facts to the extent possible.

In collective negotiations, union are always looking for ways to increase their leverage at the negotiating table. One of the ways to do so is to have access to all the relevant information you need, whether it be financial documentation, comparable contracts, relevant policies, or staffing information. However, obtaining this information can sometimes seem like a daunting task as the same may require contacting numerous individuals and consuming extraordinary amounts of time.

One of the most underappreciated and underutilized ways of obtaining the information you need is through the New Jersey Open Public Records Act (“OPRA”). OPRA is codified in N.J.S.A. 47:1A-1 to -13. and provides that “government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions…” OPRA defines a government record as:

…any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file…or that has been received in the course of his or its official business…

N.J.S.A. 47:1A-1.1

As such, most of the typical information unions seeks to utilize at the negotiating table can be obtained through an OPRA request filed with the particular public entity you are negotiating with, whether it be a State, County, or township. In essence, an OPRA request could be “one stop shop.” Additionally, OPRA imposes strict deadlines on public entities to produce the information sought and certain consequences if records/information are wrongfully denied, to include attorneys’ fees. Therefore, OPRA can be a key asset in numerous ways from both a legal and practical standpoint and save your unit significant time and expense.

At the negotiating table, it is vital to have competent counsel who is familiar with all the “avenues” to assist you in obtaining all the information you need to increase your position at the table. As we all know, the “end goal” is to obtain the best contract you can for your members. OPRA can assist in this endeavor and is one of the tools our firm routinely utilizes when negotiating a collective negotiations agreement.

Often in disciplinary actions the employer will propose, as part of a settlement to resolve administrative charges, that the employee sign a last chance agreement (“LCA”). An LCA is an agreement between an employer and an employee that is generally supposed to result in an employee’s immediate termination if they violate the terms of the LCA. It is entered into by employer and employee as part of a settlement to resolve pending disciplinary charges and in most cases, the employee agrees to the LCA to avoid termination from employment on that pending disciplinary action. The agreement will usually provide that if the employee is found guilty of committing another disciplinary infraction, he or she will be removed from employment and cannot challenge that penalty.  There are plenty of situations where it makes sense for an employee to sign a last chance. For instance, they may have admitted to an act or omission during the investigative phase of the case and the admission alone might be grounds for significant discipline. Similarly, agreeing to an LCA may be a definitive way to avoid termination when such an outcome is very much a possibility should the case go to a full hearing. Sometimes LCAs are unavoidable. In these instances, however, it is important that the employee and his/ her attorney or union representative take steps to mitigate the impact of the LCA.

Ideally, an LCA should be limited in both duration and scope. In terms of duration, there should be a provision included in the agreement that limits the applicability of the LCA to a defined time period, such as, e.g., one, two, or three years. By placing a time frame on the LCA, the officer or employee will be limiting the period wherein the LCA can be enforced by the employer. Often an employer will try to impose a substantial term, such as five years or the draconian “lifetime” LCA. Its always best to avoid agreeing to such terms if possible because an LCA will be a “dark cloud” over one’s head during the time it is active.

It is just as important to try to negotiate a limit to the scope of the LCA. By scope, I am referring to the types of future offenses which might “trigger” the provisions of the LCA. For example, if you’re a police officer who has gotten into multiple accidents in your duty vehicle where you’re deemed to be at fault, and you find yourself in a position where you might have to agree to a last chance, you should try to limit the scope of that LCA to future accidents in your police vehicle where you are deemed at fault. Try to avoid signing an LCA that will simply apply if you are found guilty of “any future disciplinary infraction.”

LCAs are problematic on several fronts. They hinder, if not eliminate, the ability to argue for a lesser penalty than that which is called for by the LCA, which is almost always termination. When challenging a disciplinary action, public employees in New Jersey can raise arguments centered on “progressive discipline.” This allows the employee to argue that while they might have engaged in conduct warranting discipline, the penalty sought by the employer should be significantly lower based on certain circumstances, such as the positive aspects of an employee’s overall employment record. If the LCA is valid and enforceable, it eliminates the employee’s ability to raise these progressive discipline arguments. This is why you must be very cautious about agreeing to a last chance. And if you find that you may have to enter into an LCA for one reason or another, it is crucial that you negotiate limitations on duration and scope. This will mitigate the applicability and enforceability of the LCA.

In James Meyers v. State Health Benefits Commission, (New Jersey Supreme Court Slip Opinion A-27-22) (087633) the New Jersey Supreme Court examined a New Jersey public employee’s right to “free” retiree health benefits under the legal doctrine of Equitable Estoppel.  In this matter, James Meyers, was a New Jersey State Trooper that had since retired from employment.  On the date that he retired from employment (October 1, 2015), the Division of Pensions and Benefits (the Division) offered him retiree health benefits at “no premium cost” based on the Division’s interpretation of the law (Chapter 78 of Public Law 2011) and the number of years of service that Trooper Meyers had in the New Jersey State Police Retirement System.  Unfortunately for Trooper Meyers, the Division misinterpreted the law in providing answers to his questions and informed him that he was entitled to free healthcare benefits when he truly was not.  Thereafter, Trooper Meyers built his retired life around the premise that he would not be paying for healthcare in retirement and collected the free benefits for two (2) years.  Notwhttsanding the foregoing, the Division recognized their error and as a result of their error, they discontinued the “free” healthcare benefits for Trooper Meyers in June of 2017.  Thereafter, the State of New Jersey began deducting premium-sharing contributions from Trooper Meyer’s pension payments.

Trooper Meyers appealed this decision to the New Jersey State Health Benefits Commissions who referred the matter to the New Jersey Office of Administrative Law for a plenary hearing where the Judge would issue findings of fact and conclusions of law. The Administrative Law Judge assigned to the case concluded that an injustice had taken place based on the legal doctrine of equitable estoppel and issued an order barring the State Health Benefits Commission from deducting healthcare premium cost sharing contributions from Trooper Meyer’s pension payments.

The State Health Benefits Plan rejected the decision of the Administrative Law Judge and as a result, Trooper Meyer appealed their decision to the Appellate Division who affirmed the State Health Benefits Commission’s decision.  Trooper Meyer then appealed the Appellate Division’s decision to the Supreme Court of New Jersey who agreed to hear the case.

Meyers argued to the Supreme Court that the legal doctrine of equitable estoppel should prevent the State of New Jersey from backing away from the decision that they originally made that he was entitled to “free” healthcare under the current state of the law. In simple terms, the legal principle of equitable estoppel is intended to prevent unfair outcomes. Thus, if a person (Meyer in this instance) relies on assertions or promises made by someone whom one should be able to trust (the Division of Pensions and Benefits in this instance), it would be an unfair outcome if the person or company upon which one relied upon could act as if those assertions or promises were never made (or in this instance provided one with an incorrect statement of the law).

Unfortunately for Trooper Meyers, the Supreme Court affirmed the Appellate Division’s ruling and stated that equitable estoppel could not be applicable in this instance because a governmental entity cannot be estopped from refusing to take an action that it was never authorized to take under the law — even if it had mistakenly agreed to that action.  In other words, because the law that is relevant to this situation (Chapter 78 of Public Law 2011) never permitted Meyer to be entitled to free healthcare, the Division’s statement to the contrary could not be considered in applying the legal principle of equitable estoppel.  As a result, Meyer was unsuccessful in reversing the Appellate Division’s decision in this matter and he was forced to make premium sharing contributions if he wanted to continue receiving healthcare benefits in retirement.

We bring this case to your attention for the simple reason that many public employees in the State of New Jersey have questions and concerns regarding pension benefits, retiree healthcare benefits, accidental and ordinary disability retiree benefits and re-employment in the public sector after retirement.  Often times, an employee will call on the Division of Pensions and Benefits to seek answers to their questions and regretfully, the information that they sometimes receive is incorrect.  When such a situation occurs, the employee/retiree may have a false belief that they will be entitled to continue receiving benefits or perhaps continue their post-retirement employment because they relied on the information that was provided to them by the Division of Pensions and Benefits.  What you as the reader must understand is that when the Division provides one with a benefit or a right that is contrary to the law, or advice that is contrary to the law that one acts on, an individual very well may be forced to forfeit that benefit if he or she is receiving the benefit or privilege that they may not be entitled to under the law. 

Many times, individuals apply for positions in law enforcement and are fortunate enough to be certified to the eligible list for the position. In simple terms, this means they have “made the list” in order to be considered for the position. After being certified, those persons are required to undergo a psychological evaluation to determine whether they are suitable for the position they are seeking, whether it be Police Officer, Correctional Police Officer, etc., as part and parcel of the hiring process. Unfortunately, however, certain applicants are deemed “not psychologically suitable” for employment as a law enforcement officer. In turn, they are removed from the eligible list.

At that point, the individual can file an appeal with the New Jersey Civil Service Commission challenging their removal from the eligible list. The appeal usually consists of the individual submitting written arguments and a rebuttal psychological report refuting the finding that they are “not psychologically suitable” for employment. Thereafter, the individual is personally evaluated by the Medical Review Panel, which consists of certain psychologists, physicians, etc. The Panel reviews the competing psychological reports, questions the individual, considers the arguments, and ultimately makes a recommendation as to whether the individual is “psychologically suitable” for employment. This recommendation is transmitted to the Civil Service Commission wherein it is, typically, adopted in totality.

While the appeal process is relatively simple and straightforward, the deadlines associated with the same are very stringent. To this end, the individual has only 90 days from the filing of the appeal to submit a rebuttal report from a licensed psychologist or psychiatrist in accordance with N.J.A.C. 4A:4-6.5(e). When considering: (1) the underlying records need to be provided to your psychological expert; (2) an appointment with the expert needs to be made; (3) the evaluation must take place; and (4) the rebuttal report ultimately written, much must be completed within this 90 day time frame.

Even more concerning, the Civil Service Commission is somewhat reluctant to grant any extensions, irrespective if the psychologist’s schedule is not accommodating or when the records used in removing the individual’s name are provided from the prospective employer. While the Commission may grant an extension for “good cause,” it is unclear what constitutes such “good cause” as many requests for extensions are denied. In accordance therewith, Courts have routinely held that the Commission’s denial of extension requests are proper. As a result, if an individual attempts to submit a psychological report after the requisite deadline, the Commission will not consider the same. For all intents and purposes, this eviscerates any likelihood of success of the appeal and reinstatement to the eligible list.

Therefore, when filing a psychological appeal challenging your removal from an eligible list, deadlines matter. The failure to adhere to the requisite deadlines can be fatal to your appeal and, as demonstrated above, much must be accomplished within a short period of time. This is further compounded by the fact that any extension requests will likely be denied. As such, if you are considering filing such an appeal, you should contact an attorney experienced in such appeals to properly counsel you throughout the process.

In a recently issued ruling by New Jersey’s Appellate Division, the Court upheld an earlier ruling by a superior court judge holding that an officer did not commit “willful misconduct” under New Jersey’s Tort Claims Act when he engaged in a pursuit of a vehicle after the driver pulled away from a traffic stop. The plaintiff in the case, entitled Jackson v. County of Hudson, et al., Docket No. A-3111-22 (issued April 4, 2024) filed the lawsuit for injuries he sustained when his car was hit by the motor vehicle that was being pursued by the officer.  

On January 23, 2018, at approximately 5:00 a.m., the Hudson County Sheriff’s Department was conducting radar enforcement in Jersey City.  At that time, the officer in question observed a vehicle pass through three consecutive red lights while traveling at sixty-eight and seventy miles per hour.  The posted speed limit on the road in question, Kennedy Boulevard, is twenty-five miles per hour. The officer followed the driver and attempted to “close the gap” without turning on his patrol car’s lights or sirens.  Once he began following, the officer radioed the on-duty communications officers to inform them he was following a vehicle traveling at a high speed.  The vehicle subsequently slowed down and the officer initiated a traffic stop. After initially stopping, the driver then suddenly sped away. The officer then radioed communications officers to update them and to notify that he was going to pursue. Subsequently, the driver of the fleeing vehicle ran a red light and collided with the plaintiff’s car who was injured because of the collision.

The injured driver ultimately filed a lawsuit contending, in part, that the officer committed willful misconduct by pursuing the fleeing vehicle. Attorneys for the officer prevailed on summary judgment, as the trial court recognized that the Tort Claims Act, in particular, N.J.S.A. 59:5-2(b)(2), grants immunity to police officers for injuries resulting from pursuits. On appeal, the plaintiff argued the trial court erred in his application of N.J.S.A. 59:5-2(b)(2), and contended that a jury should resolve the question of whether the officer’s decision to initiate the pursuit and his subsequent failure to terminate the pursuit violated the Attorney General’s Vehicular Pursuit Policy (hereinafter “Guidelines”) and was thus willful misconduct. Notably, willful misconduct is an exception to the immunity conferred to an officer for injuries resulting from a pursuit. The appellate division rejected the argument.

The Guidelines state a police officer may only pursue a suspect if they have committed a first- or second-degree offense or if the officer reasonably believes the suspect poses an immediate threat to either the public or the officer.  Off. of the Att’y Gen., New Jersey Vehicular Pursuit Policy § I(A)(1) (rev. 2009). During his deposition, the officer explained his decision to pursue the fleeing driver was based, in part, on him pulling away from the initiated traffic stop.  The officer explained this was a second-degree offense of eluding, N.J.S.A. 2C:29-2(b), warranting police pursuit.  According to N.J.S.A. 2C:29-2(b), any person “operating a motor vehicle . . . who knowingly flees or attempts to elude any police or law enforcement officer . . . is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person.”  Considering the Guidelines in conjunction with the characterization of the driver’s action as a second-degree offense under N.J.S.A. 2C:29-2(b), the Court ruled that the officer’s decision was authorized and did not constitute willful misconduct. The Court thus concluded that the trial court correctly determined there were no credible facts in the record to establish that the officer engaged in willful misconduct during his pursuit of the fleeing driver.

Most recently the new Jersey Superior Court, Appellate Division issued a decision in the matter of Behar v. Board of Trustees, Public Employees Retirement System, Docket Number A-0296-22, that discusses the very real pitfalls of post-retirement employment for public employees in the state of New Jersey. We want to bring these pitfalls to your attention and help you take prophylactic measures to avoid the same wherever and whenever possible.

Behar worked for the Division of Criminal Justice (DCJ) as a Detective 2 State Investigator. On March 13, 2017, he applied for a Special Service Retirement from PERS meaning that he had twenty five (25) years of pensionable service credit and was thus eligible to retire given that he was a sworn law enforcement officer. On that date, Behar completed an Application for Retirement Allowance and acknowledged three terms and conditions of retirement by checking off boxes on the application which state:

  • I agree to comply with all of the retirement application terms and conditions.
  • I certify that I have made no pre-arrangement to return to public employment after retirement in any capacity.
  • I certify that I have read the Post-Retirement Employment Restrictions.

After filing the application the Board approved the same at its regular meeting and sent a letter stating: [I]f you are considering working after retirement, you should be aware of the restrictions imposed by laws and regulations governing post-retirement employment. The letter also cautioned that it is your responsibility to inform your prospective employer that you are receiving retirement benefits from a New Jersey public retirement system and that his retirement benefits may be suspended or even cancelled entirely in the event of a violation, and you will be responsible for the repayment of benefits you were not entitled to receive.

In addition, the letter advised Behar if he became re-employed post retirement, he may be required to “re-enroll” in his former retirement system or a different retirement system. Behar was instructed to read “Fact Sheet #86,” a publication of the Division of Pensions and Benefits, regarding “Post- Retirement Employment Restrictions.”

In August 2021, Behar applied for an investigator position with the DOL, which is covered by PERS. He participated in a video interview and stated that he had retired from the DCJ and was receiving a State pension. On January 3, 2022, after collecting PERS retirement benefits for four and-a-half years, Behar began working thirty-five hours per week for the DOL.

On January 28, 2022, the Division received a Notification of Employment After Retirement Form from the DOL’s External Audit Unit advising of Behar’scnew post-retirement employment. Based on its investigation, the Division concluded Behar was required to re-enroll in PERS because he was employed full-time after retirement in a PERS covered position, citing N.J.S.A. 15A-57.2 and N.J.S.A. 43:15A-7(d)(4).

On February 3, 2022, the Division sent a letter to Behar and the DOL advising he was required to re-enroll in PERS, had to repay any retirement benefits he received after his enrollment, and that his pension benefit would be cancelled. The Division determined it was entitled to recoup the retirement benefits Behar received while he should have been enrolled in PERS. The Division informed Behar that he must terminate all PERS-covered employment in order to receive retirement benefits again, and he would have to re-apply for retirement benefits thereafter. As a result, the Division suspended payment of Behar’s retirement benefits effective March 1, 2022.

Behar appealed the matter to the Board claiming the DOL interview panel did not inform him that his re-employment would affect his retirement benefits. He also blamed the Division for not contacting him before he started working for the DOL. The Board rejected these arguments and affirmed. The Board considered Behar’s appeal and determined his return to full-time employment with the DOL violated PERS statutes and regulations regarding post-retirement employment. The Board decided Behar was an active employee in a PERS eligible position when he began working for the DOL, and thus, he was required to reimburse the retirement benefits he improperly receive. Bear appealed the decision to the Appellate Division

What is important to note in this case is that the Appellate Division has a very limited scope in reviewing matters such as Behar’s. The Court noted that a strong presumption of reasonableness attaches to [an agency decision] and the Court will not disturb that decision unless it is arbitrary, capricious and unreasonable, contrary to applicable law… or . . . not supported by substantial credible evidence in the record as a whole. Stallworth, 208 N.J. at 194. Furthermore, the Court was clear in stating that We [the Court] “may not substitute [our] own judgment for the agency’s, even though [we] might have reached a different result. Stallworth, 208 N.J. at 194 (quoting
In re Carter, 191 N.J. 474, 483 (2007)).

As a result of the case law cited above, the Court affirmed the Pension board’s decision stating that The Board had the statutory obligation to cancel Behar’s benefits because he became re-employed in a position with the DOL eligible for membership in PERS. N.J.S.A. 43:15A-57.2(a). Such an individual shall be re-enrolled in PERS and shall contribute thereto at a rate based on his age at the time of re- enrollment. N.J.S.A. 43:15A-57.2(a).

The reason that we are bringing this case to your attention is to inform you of the statutory post-retirement re-employment restrictions that are in place for public employees in the State of New Jersey. These restrictions do not just exist for law enforcement officers and individuals that retire and collect “special retirement pensions” in the state of New Jersey. Instead, restrictions exist in each of the retirement systems and apply for not only regular retirement pensions but also disability pensions as well.

If you have questions regarding situations such as the one referenced in this blog post, or questions regarding employment if you are receiving disability retirement benefits, consult with counsel that practices in this area of the law. Being one of these attorneys that practices and consults on public employee retirements, we often look into such situations and call on the Board of Trustees from the various retirement systems to issue a ruling on the matter before the member undertakes affirmative action that can have dire consequences. As they often say—An Ounce of Prevention is Worth Far More than a Pound of Cure.

When a New Jersey law enforcement officer or firefighter is suspended without pay pending the outcome of a disciplinary action, namely, termination charges, state law provides that a final determination on the charges shall be rendered within 180 calendar days from the date he or she is suspended without pay. Under the law, if a final determination is not rendered within that period, the officer or firefighter shall, commencing on the 181st calendar day, begin receiving the base salary he/she was being paid at the time of their suspension and shall continue to do so until a final determination on the officer’s or firefighter’s termination is rendered. The law also provides for exceptions that will “toll” application of the “180-day rule,” such as when a delay in proceedings is caused by the officer/ firefighter. There are also some technical differences in terms of the application of the 180-day rule between employees subject to the jurisdiction of the New Jersey Civil Service Commission and those working for non-civil service employers. Regardless, the 180-day rule applies in some form to both civil service and non-civil service law enforcement officers/ firefighters suspended without pay pending the outcome of removal charges.

The 180-day rule is beneficial because it allows subject cases to be fast tracked and is intended to provide for a prompt resolution to discipline when individuals have been indefinitely suspended without pay. It likewise encourages the Office of Administrative Law and/ or arbitrators appointed by the Public Employees Relations Commission to prioritize disciplinary actions subject to the 180-day rule so that they are concluded in an expedient manner. Litigation, however, can be complicated, particularly when the parties are unwilling (or unable) to settle the matter short of trial or arbitration. These proceedings are time consuming, fact-sensitive, and often involve numerous witnesses and multiple hearing dates. As a result, it is not uncommon for these matters to exceed that 180-day time span and at that point, a decision must be made as to whether the officer/ firefighter should seek to be placed back into “paid status” pending the outcome of the disciplinary action.

In making this assessment, one should be familiar with the potential pitfalls of going back into paid status after the 180-day time frame has expired should he or she subsequently lose their appeal of the disciplinary action. In such cases, the law requires that the officer/ firefighter must reimburse their employer for all pay received after the 180-day time period. If the individual fails to make reimbursement, the governing statute provides that the employer shall have a lien on any or all property or income which that officer or firefighter shall have, or in which the officer or firefighter may acquire an interest. This includes funds contributed by the officer or firefighter to the Police and Firemen’s Retirement System of New Jersey, any other State retirement system established by law, and all terminal pay, such as compensation for earned sick and vacation leave, to which the officer or firefighter is entitled.

Simply put, one must be cautious when deciding whether to take immediate action to go back into paid status under the 180-day rule as there is a significant downside if the officer or firefighter is unsuccessful in appealing their disciplinary action. There are certainly times when it makes strategic sense to seek relief under the 180-day rule. It may put pressure on the employer to offer a suspension in lieu of termination and it might pressure the judge or arbitrator overseeing the matter to promptly schedule hearing dates if the case has been on the “back burner” for one reason or another. It can likewise provide some short-term financial relief to an individual who has not received wages for six months or more. That said, if the officer or firefighter elects not to file an application to be placed back into paid status under the 180-day rule during the pendency of termination charges, this does not mean that he or she waived back pay. In other words, if the individual is ultimately successful in their appeal of the disciplinary action, they will be entitled to any and all back salary for the time period for which they were suspended without pay. As such, in cases where the outcome of a termination or removal action could go either way, it might make sense to wait it out without having to worry about potential liens / judgements should the individual not prevail in their appeal of the discipline.

One of the most common misconceptions is that suffering from pre-existing diseases and/or conditions is an automatic disqualifier from receiving accidental disability retirement benefits. Nevertheless, many applications for accidental disability retirement benefits are denied by the various pension boards due to an employee’s total and permanent disability being attributable to a pre-existing disease or condition. However, under the law, suffering from a pre-existing disease or condition is not an automatic disqualifier from receiving accidental disability retirement benefits.

Rather, the “traumatic” event from which the employee claims to have suffered from must be the essential, significant, or substantial contributing cause of the disability. In other words, the pre-existing disease or condition cannot be the essential, significant, or substantial contributing cause of the employee’s disability. This is an important distinction that New Jersey public employees must recognize.

Candidly, any individual over the age of 30 likely suffers from some type of pre-existing disease or condition, whether it be degenerative changes to our bodies, long-standing medical conditions, or some injury suffered during childhood or adolescence. Therefore, denying an employee’s application for accidental disability retirement benefits under the notion that an individual’s total and permanent disability is a result of a pre-existing disease, condition, or injury is often a convenient pretext or “easy way out” for pension boards. As such, individuals must be cognizant of the relevant law as it pertains to pre-existing diseases and conditions in the accidental disability realm.

In short, employees must establish that the work-related injury or “traumatic event” they suffered was the essential, significant, or substantial contributing cause of their disability. Therefore, both the pre-existing condition and the “traumatic event” can sometimes act in combination and still enable the employee to recover accidental disability benefits. As such, various factors such as what the pre-existing disease or conditions consists of, whether such disease or condition affected the employee’s job performance in prior years, and how the “traumatic event” occurred all become crucial considerations. Moreover, it will be imperative to present expert testimony that is able to differentiate and convey to the pension board and/or Court that an employee’s disability was substantially caused by the traumatic event as opposed to an underlying, pre-existing condition.

Quite simply, the law does not bar every worker who has a substantial or significant pre-existing medical condition and who is then severely injured at work from qualifying for accidental disability benefits. Nevertheless, if your application is denied for such a reason, it is vital that competent counsel be retained to properly assist you and help you obtain the benefits you seek.