
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.