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

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

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

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

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

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DONALD C. BARBATI, JR.

Donald C. Barbati is a shareholder of Crivelli, Barbati & DeRose, L.L.C. His primary practice revolves around the representation of numerous public employee labor unions in various capacities to include contract negotiation, unfair labor practice litigation, contract grievance arbitration, and other diverse issues…

Donald C. Barbati is a shareholder of Crivelli, Barbati & DeRose, L.L.C. His primary practice revolves around the representation of numerous public employee labor unions in various capacities to include contract negotiation, unfair labor practice litigation, contract grievance arbitration, and other diverse issues litigated before the courts and administrative tribunals throughout the State of New Jersey. In addition, Mr. Barbati also routinely represents individuals in various types of public pension appeals, real estate transactions, and general litigation matters. He is a frequent contributor to the New Jersey Public Safety Officers Law Blog, a free legal publication designed to keep New Jersey public safety officers up-to-date and informed about legal issues pertinent to their profession. During his years of practice, Mr. Barbati has established a reputation for achieving favorable results for his clients in a cost-efficient manner.

Mr. Barbati has also handled numerous novel legal issues while representing New Jersey Public Safety Officers. Most notably, he served as lead counsel for the Appellants in the published case In re Rodriguez, 423 N.J. Super. 440 (App. Div. 2011). In that case, Mr. Barbati successfully argued on behalf of the Appellants, thereby overturning the Attorney General’s denial of counsel to two prison guards in a civil rights suit arising from an inmate assault.  In the process, the Court clarified the standard to be utilized by the Attorney General in assessing whether a public employee is entitled to legal representation and mandated that reliance must be placed on up-to-date information.

Prior to becoming a practicing attorney, Mr. Barbati served as a judicial law clerk to the Honorable Linda R. Feinberg, Assignment Judge of the Superior Court of New Jersey, Mercer Vicinage. During his clerkship Mr. Barbati handled numerous complex and novel substantive and procedural issues arising from complaints in lieu of prerogative writs, orders to show cause, and motion practice. These include appeals from decisions by planning and zoning boards and local government bodies, bidding challenges under the Local Public Contract Law, Open Public Records Act requests, the taking of private property under the eminent domain statute, and election law disputes. In addition, Mr. Barbati, as a certified mediator, mediated many small claims disputes in the Special Civil Part.

Mr. Barbati received a Bachelor of Arts degree in history, magna cum laude, from Rider University in Lawrenceville, New Jersey. Upon graduating, Mr. Barbati attended Widener University School of Law in Wilmington, Delaware. In 2007, he received his juris doctorate, magna cum laude, graduating in the top five percent of his class. During law school, Mr. Barbati interned for the Honorable Joseph E. Irenas, Senior United States District Court Judge for the District of New Jersey in Camden, New Jersey, assisting on various constitutional, employment, and Third Circuit Court of Appeals litigation, including numerous civil rights, social security, and immigration cases.