For those of you in the know, it comes as no shock that the Licensing of sworn law enforcement officers in the State of New Jersey began on January 1, 2024. Now that the licensing implementation date has passed, with the exception of a very few, the vast majority of Patrol Officers, Sheriff’s Officers, Correctional Police Officers and State Troopers have been issued either one (1), two (2) or three (3) year licenses. The length of the licenses issued were staggered to permit the licensing board and the parent commands to perform the necessary investigations and back ground checks of each officer when he or she comes up for renewal in either one (1), two (2) or three (3) years from now.

However now that “licensing” is amongst us, attorneys that represent sworn law enforcement officers and the law enforcement officers themselves must now look at how they dispose of disciplinary actions a bit differently. Attorneys and officers must not only be concerned about the final outcome of a disciplinary proceeding itself, but one must also be cognizant of how the licensing committee will view the final disciplinary actions once they are disposed of.

Based on the foregoing, I thought it would be a good idea to revisit New Jersey Attorney General’s Guideline 2022-14, and in particular, section 9.11.2 of this guideline and the potential impact that it may have on law enforcement licensing. But first—what is the import of an Attorney General’s Guideline? Putting it in simple terms, the Attorney General is the Chief Law Enforcement Officer in the State of New Jersey. Thus, when the Attorney General issues a guideline, it is an Order that must be followed by all law enforcement officers, agencies and executives. Therefore, s long as the order is constitutional and not contrary to any State or Federal Statute, it must be followed and thereafter becomes the “law of the land” in regard to how policing takes place in the Garden State.

Attorney General Guideline 2022-14 is entitled “Transparency in Internal Affairs Investigations” and in summary its purpose is to:

establishes that certain categories of [officer] discipline will always require disclosure [to the public]…. These categories…include, but are not limited to, instances of differential treatment and excessive force. These disclosures expand upon Directive 2020-5’s focus on the length of discipline imposed, as experience has shown that [the major disciplinary] metric does not always capture serious misconduct.

With the stated intent in mind, section 9.11.2 of the guideline mandates that:

Every agency shall submit to the County Prosecutor and the Attorney General, and publish on the agency’s public website, a brief synopsis of all complaints misconduct where an agency member:

(a) Was terminated;

(b) Was reduced in rank or grade;

(c) Was assessed a suspension of more than five days.

(d) Had a sustained finding of discrimination or bias against any person because of the individual’s actual or perceived race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, sex, gender identity or expression, disability, nationality, familial status, or any other protected characteristic under N.J.S.A. 10:5-1 et seq., regardless of the type or severity of discipline imposed;

(e) Had a sustained finding that the officer utilized excessive force in violation of departmental policy or the Attorney General’s Use of Force Policy, regardless of the type or severity of discipline imposed;

(f) Had a sustained finding that the officer was untruthful or has demonstrated a lack of candor, regardless of the type or severity of discipline imposed;

(g) Had a sustained finding that an officer has filed a false report or submitted a false certification in any criminal, administrative, employment, financial, or insurance matter in their professional or personal life, regardless of the type or severity of discipline imposed;

(h) Had a sustained finding that an officer intentionally conducted an improper search, seizure or arrest, regardless of the type or severity of discipline imposed;

(i) Had a sustained finding that an officer intentionally mishandled or destroyed evidence, regardless of the type or severity of discipline imposed;

(j) Had a sustained finding of domestic violence, as defined in N.J.S.A. 2C:2519, regardless of the type or severity of discipline imposed;

(k) Resigned, retired, transferred or separated from the agency, regardless of the reason, while any internal affairs investigation or complaint was pending, and the misconduct ultimately sustained falls within categories (d)through (j) above or would have resulted in an action under categories (a)through (c) had the member not separated from the agency;

(l) Was charged with any indictable crime under New Jersey or an equivalent offense under federal law or the law of another jurisdiction related to the complaint.

However, in my opinion, the most important changes that are derived from the Directive is how the Attorney General redefines what a “sustained finding” means for purposes of whether an offense must be “published” and thus disclosed discipline to the public. In the Directive, the AG states that a:

“Sustained finding” refers to any finding where a preponderance of the evidence shows an officer violated any law, regulation, directive, guideline policy or procedure issued by the Attorney General or County Prosecutor; agency protocol; standard operating procedure, rule or training, following the last supervisory review of the incident(s) during the internal affairs process where the deadline for appeal has passed or following a ruling by a hearing officer, arbitrator, Administrative Law Judge, Civil Service Commission, or the Superior Court where the deadline for any subsequent appeal has passed. Allegations that cannot be sustained, are not credible, or have resulted in the exoneration of an employee, including where the previous finding has either been vacated, or overturned on the merits in any subsequent action, generally are not considered to be sustained findings subject to the disclosure requirements of this Policy. On the other hand, if the officer negotiates a plea or there is an administrative or civil settlement with the employer whereby the charge is dismissed, the charge would still be considered sustained, if there was sufficient credible evidence to prove the allegation, and the officer does not challenge the finding and obtain a favorable ruling by a hearing officer, arbitrator, Administrative Law Judge, Civil Service Commission or the Superior Court. The reporting and public dissemination requirements of (a) through (j) above become applicable once an officer’s discipline is sustained, as defined above. The reporting and public dissemination requirements of (k) and (l) above become applicable at the close of the reporting period during which they occur.

So, if you have gotten this deep into this article, you are probably one of four (4) types of people. You are either:

1—an attorney who dabbles in the representation of law enforcement officers facing discipline;

2—an attorney who focuses on representing law enforcement officers in disciplinary actions;

3—a law enforcement officer or union representative that wants to ensure he or she understands his or her rights and/or the rights of their membership; or

4—a law enforcement officer that is currently facing discipline and wants to be sure that his or her license is not in jeopardy

No matter what category you fall in, you have to understand what this directive states and means in regard to how discipline will be handled and disclosed; and, how charges are disposed of in a plea agreement. You can bet your bottom dollar that as a result of this directive coupled with the licensing regulations; more disciplinary cases will be tried in the future than in the past because of the interplay and impact that it will have on licensing. Furthermore, disposing of minor disciplinary infractions will be more difficult because of this directive and the interplay with licensing. Was this the intended consequence of the directive, probably not. However, it is like many of the other scenarios that today’s law enforcement officers have to face in New Jersey. They are the unintended consequences of intentional political acts that make policing more difficult and regretfully, a less desirable profession.

Both the federal Family Medical Leave Act (FMLA) and New Jersey’s Family Leave Act (FLA) provide that an employer may adopt a policy requiring an employee to exhaust accrued paid leave during periods of FMLA/ FLA leave. In these situations, an employee would have to simultaneously utilize paid leave during periods of FMLA/ FLA leave before they are able to take the unpaid FMLA/ FLA leave. At first glance, this might seem beneficial, and in many cases it is. However, it’s always better if the employee has the option to take such leave on a paid or an unpaid basis. Why would an employee want to take federal or state family/ medical leave in an unpaid capacity rather than a paid one? Well, because that employee may be able to avail him or herself to a monetary benefit through New Jersey Family Leave Insurance (FLI) (to bond with a newborn, newly adopted, newly placed foster child, or to provide care for a seriously ill or injured loved one) or New Jersey Temporary Disability Insurance (TDI) (for New Jersey workers who have to stop working due to a physical or mental health condition or other disability unrelated to their work).

Both FLI and TDI are only available to employees that pay into those programs. The programs, by definition, provide monetary benefits to eligible employees on leaves of absences that generally qualify as FMLA and/or FLA leave. However, according to the governing statutes and regulations, an employee is unable to receive FLI/ TDI benefits during FMLA/ FLA leave if they are utilizing accrued paid leave during such an absence. Because the FMLA and FLA leave afforded to employees is limited (12 weeks in a 12 month period and 12 weeks in a 24 month period, respectively), when a “concurrent exhaustion” or “stacking” requirement is in place, the employee will not be able to obtain FLI or TDI so long as they have accrued paid leave to use and won’t be able to collect said benefits (FLI/ TDI) until they have exhausted their accrued paid leave time. As such, a concurrent exhaustion requirement will limit the employee’s eligibility for FLI or TDI benefits during periods of FMLA/ FLA leave.

Conversely, when an employee is authorized to take unpaid FMLA/ FLA leave without having to “concurrently exhaust” accrued paid leave, the employee can avail him/ herself to FLI/ TDI during such a period while preserving their accrued paid leave for later usage. This is referred to as the “consecutive use” of FMLA/ FLA and accrued paid leave.

Thus, while an employer “may” adopt a policy requiring an employee to exhaust accrued paid leave during periods of FMLA/ FLA leave, both the FMLA and FLA statutes provide that nothing within either law is intended to diminish the benefits provided by an employer through a collective negotiations agreement. In other words, if your union contract expressly permits the “consecutive use” of unpaid FMLA/ FLA leave with paid accrued leave or there is otherwise an established past practice in place whereby your employer has permitted the consecutive use of such time, then the subsequent unilateral establishment of a policy requiring the “concurrent exhaustion” of FMLA/ FLA leave with paid leave by an employer, without negotiations, is likely grounds for an unfair practice charge and/ or grievance, depending upon the particular facts. In such situations, both the courts and New Jersey’s Public Employment Relations Commission (PERC) have held that the employer may not take such unilateral action as the concurrent versus consecutive use of FMLA/ FLA and paid leave is mandatorily negotiable. In other words, when your union contract allows for the “consecutive” use of such time or there is an established past practice in place that permits it, the employer is not permitted to simply establish a “concurrent exhaustion” policy and must instead negotiate the topic with the union.

In conclusion, if your employer has unilaterally adopted a “concurrent exhaustion” policy that contravenes past practice and/or explicit language in your union contract, it is important that prompt action is taken by the union to challenge the policy. Failure to take prompt action may result in a waiver by the union of their members’ ability to take unpaid FMLA/ FLA leave and accrued paid leave on a consecutive basis.

When filing an application for disability retirement benefits with any of New Jersey public employee pension systems, there are a myriad of considerations that must be taken into account and certain pitfalls that can occur along the way. One of the considerations and/or pitfalls that must be considered is whether a member has any active litigation pertaining to their employment pending at the time the application is filed. In the event there is such litigation, whether it be criminal, disciplinary, or civil, a member’s application will be held in abeyance or be placed “on hold” until such time as the litigation is concluded. Dependent upon the type of litigation, this could be for a period of months, if not years.

The Superior Court of New Jersey, Appellate Division, recently reaffirmed this principle in the unpublished case Roe v. Board of Trustees, Police and Firemen’s Retirement System, Docket No. A-3839-21, Decided March 11, 2024. In that case, the Court relied on the plain wording of N.J.A.C. 17:1-6.2, which provides that applications for disability retirement will be held in abeyance when a member is subject to criminal charges, disciplinary charges, or has any active litigation pertaining to their employment. Simply put, the outcome of those types of cases may have direct impact on a member’s employment date, compensation, and other factors utilized in determining whether a member is entitled to disability retirement benefits and/or the monies they can potentially obtain in retirement.

As such, if you are thinking about whether to file for disability retirement benefits, be mindful if you are subject to criminal charges, disciplinary charges, or in active litigation of some type pertaining to your employment. If that is the case, contact competent, qualified counsel to discuss your options and potential issues going forward.

As indicated in our post last week, deciding whether to utilize an attorney when filing for application for disability retirement benefits is an important initial consideration. Many individuals utilize the services of an attorney, while others do not. Nevertheless, many applications for disability retirement are routinely rejected by a Board of Trustees of a pension system for a myriad of reasons, irrespective of whether an attorney is utilized or not. Additionally, an application may be “partially denied,” wherein an individual seeking accidental retirement benefits may be approved for ordinary disability retirement benefits, but denied the accidental disability retirement benefits.

When an application for ordinary or accidental disability retirement is rejected, a member is notified of the rejection by a letter from the respective pension system. Within the body of the letter, it will often be specified as to the exact reason why the application was denied, whether it be for a procedural or substantive reason. After an application for disability retirement benefits is denied or partially denied, many individuals have the same question, now what?

Once an application is denied, a member has the right to file an appeal. Specifically, the member must notify the Board of Trustees in writing that they desire to appeal the decision, the reasons why they believe the Board’s decision was flawed, and requesting the matter be transferred to the Office of Administrative Law as a contested case. When you want to challenge the Board’s determination to deny or partially deny your application for disability retirement benefits, it is imperative to retain counsel at this stage.

When the matter is transferred to the Office of Administrative Law, the matter will proceed as a “court case” so to speak. There will be a judge, opposing counsel, and discovery/records exchanged. Eventually, a hearing will held where testimony is offered, usually by you [the member] and expert witnesses. Thereafter, written Closing Arguments will be filed for the Judge’s consideration. As you can expect, a qualified attorney can assist you with all these tasks and ensure your appeal is presented in the best way possible to maximize your chances at a positive result.

Therefore, the answer to the question “now what” is relatively simple. That is, the member needs to consult with competent counsel to: (1) determine if they have a viable appeal; and (2) seek their assistance in the appeal going forward. As illustrated above, the appeal process can be very complex and often involves highly intricate legal and medical issues. The process should not be taken lightly as receiving the requisite retirement and medical benefits is often critical to a member’s economic stability.

You don’t get paid for the hour…..You get paid for the value you bring to the hour.

Jim Rohn

Taking a seat at the collective negotiations bargaining table for the last 25 years has taught me how people are paid in relation to the time that is spent with their employer. Undoubtedly, one of the cornerstones of a negotiations demand in collective bargaining is an increased hourly wage. In fact, I cannot remember a single negotiations demand that did not call for an increase in wages. However, the demand for an increased wage is predicated upon a number of factors. We often make the demand for a wage increase to “remain competitive” with our peers in the workforce, to maintain our purchasing power because of rising inflation, or sometimes I simply hear form the client—“we deserve it”. While most reasons for an increased wage are valid, the manner in which I have approached and viewed negotiating an increase in wages and employment benefits has evolved.

To paraphrase the late great Jim Rohn, “You are not paid for the hour spent working, but instead, you are paid for the value that you bring to the employer in that hour while you are working”. Think about that for a moment as I believe our collective negotiations position needs to be centered around this premise. Surely, everyone wants and needs the purchasing power of their dollar to be maintained through a higher wage that keeps up with inflation. However, when you approach negotiations from the converse, by telling the employer that a higher wage needs to be paid because of the “value” you or your members bring to the workplace, it has the ability to bring significant leverage to your bargaining position.

For instance, let’s look at a sworn law enforcement officer. Law enforcement officers are paid a wage often times based on experience. In other words, they are paid a “sliding salary” based on a salary guide that increases year over year based on the experience that the officer brings to his or her position of employment. Clearly, an officer that is more experienced brings greater value to the community that he or she serves through the relationships that he or she has built, their experience in defusing crisis situations, and responding to critical incidents in a manner that will result in a more favorable outcome than perhaps the younger less experienced officer can produce. Based on this premonition, the value that an officer brings to the community and/or workplace increases exponentially over time. Thus, it is critical to the employing community that the law enforcement officer remains with that employer because of the value that is brought to its constituency.

While an employee in a manufacturing plant should be viewed in the same way (increased time and experience = increased value), unfortunately, these points are often missed by the bargaining unit or given short attention by the employer. Think about it—it is critical to a corporation manufacturing widgets that they retain the “seasoned” employees that produce value, whether it be skilled and/or unskilled labor. What is that value that is brought through time and experience? Perhaps it is the production of a product that has less incidents of return and/or recall. Perhaps it is a greater rate of production because the employee has learned to work more efficiently over time.

Think about these principles in earnest the next time you take a seat at the bargaining table. If these principles are employed correctly, it has the potential to produce very good results.

Part and parcel to our firm’s practice is receiving phone calls an emails from our clients asking that we evaluate specific problems and issues they are experiencing in the workplace concerning the administration of their collective bargaining agreement (CBA). When the call or email comes in, the evaluation process is always handled the same way. First, we listen to the facts of the matter and then ask the client, what sections of the CBA do you believe are being violated? Sometimes the client will provide us with an answer that cites the specific sections of the contract that they believe are at issue. In other situations, they may point to the contract in a more generalized way. However, the response that we frequently receive is that the client does not believe the CBA is being violated; rather, the behavior of the employer runs afoul of a “longstanding past practice” that has been in place between the union and the employer. When we hear this statement, the client will typically follow it up with “we have been doing it this way forever” or words to that effect, in support of their belief that their claim of breach is not so much embedded in a violation of the contract itself, but rather it is deeply rooted in the behavior of the parties.

When we hear statements such as those listed above, we often have to explain to the client that the analysis of their problem must start with the language of the contract itself in an effort to see if there is a violation of the agreement. With this being the case, it is imperative to understand that so long as the language of the contract is clear and unambiguous, it will always control the conduct of the parties and carry the day at a grievance arbitration hearing.

Precedents provide that when contract language is “clear and unambiguous”, an arbitrator should only assess the language of the agreement itself, i.e. the “four corners” of the document, to determine if a violation has occurred. This longstanding principle of contract interpretation is widely known as the “plain meaning rule.” See Elkouri & Elkouri, How Arbitration Works, Ch. 9.2.A, 9-8 (8th Ed. 2016). When these “plain meaning” circumstances occur, the Arbitrator should not consider extrinsic evidence of any kind. Ibid. Moreover, “the scope of the arbitrator’s authority depends on the terms and conditions contained within the agreement between the parties and, properly, the arbitrator can neither disregard those terms nor rewrite the agreement for the parties.” PBA Local 160 v. Twp. of North Brunswick, 272 N.J. Super 467, 474 (App. Div. 1994) (emphasis added).

To this end, when a contract is silent with respect to a given activity or if the language is not “clear and unambiguous”, the presence of a well-established practice which has been accepted or condoned by the parties may effectively constitute an unwritten principle on how the given situation should be treated. Elkouri & Elkouri, How Arbitration Works, Ch. 12, pg. 606 (8th Edition 2016).

To have a past practice applied in an arbitration, the party relying on past practice must show that the plain meaning rule is inapplicable and the practice is: 1) unequivocal; 2) clearly enunciated and acted upon; and 3) readily ascertainable over a reasonable period of time as a fixed and established practice accepted by both parties. Elkouri & Elkouri at pg. 608. However, it is important to note that past practice that is contrary to the express unambiguous and clear language of a contract must be disregarded. See In re Bergen Pines Cty. Hosp. and JNESO, 1991 NJ PERC LEXIS 229, at 37. This principle must be followed because once again, the language of the contract is controlling.

Finally, it is important to know that past practice can take three forms: it can be independent, contract-conflicting, or contract-clarifying. Independent refers to situations when a past practice is not addressed by the contract language whatsoever. Contract-conflicting is when a past practice clearly conflicts with the contract language; and, contract-clarifying past practices are situations in which the past practice between the parties is relied upon because the contract language is vague or ambiguous, or to help give clarity to a general contract provision.

While this is a short summary of evaluating whether past practice must be considered in a grievance analysis, we hope it provides the reader with a better understanding on how conflict resolution should be approached and analyzed in a union workplace.

Our office receives daily telephone calls and emails from New Jersey public employees who have either been injured at work, or are experiencing an unfortunate medical episode that leaves them with the inability to continue public employment. While each call has unique facts and circumstances, they are very much the same in that the individual is calling our office to tap into our expertise and gather information on how the public employment disability pension application process works. Just to be sure we are on the same page, a “public employee” as it is being defined in this post, is any individual that works for either the State of New Jersey, a county in New Jersey or a municipality in New Jersey and is a member of one of New Jersey’s Public Employee Retirement Systems.

When the call or email comes in, a telephone appointment is established, and thereafter we will normally spend some time with the individual talking him or her through the entire pension application process. We do this not only to educate the individual, but also to assist in answering the question that we often hear the most—“Do I need an attorney to assist me in filing my application for disability retirement?” The response to this question is not a “one size fits all” answer. Instead, we always preference the answer that some people take no issue in filing the application on their own, while others seek the assistance of counsel in an effort to ensure that the application is filed correctly, and all of the supporting documentation is filed with the Pension System to ensure that their application moves through the process as quickly and painlessly as possible.

It is important for people to understand that there are numerous “pitfalls” in the application process, and at this point in my career, there aren’t to many of them that I haven’t worked through. In addition to the foregoing, it is incredibly important to note that how the application is filled out, particularly when it comes to describing how the work related accident occurred that led to the disability, can be a “make or break” factor in whether an individual receives accidental disability benefits, ordinary disability benefits, or no benefits at all. The reason why this is so important is because legal and medical standards need to be met in order to receive these benefits. That legal standard to receive accidental disability benefits is articulated in Richardson v. Board of Trustees, and the lineage of case law that has followed.

So what’s the bottom line? Do you need an attorney? That is an individualized question that can be answered by you and you only. However, I do encourage you to contact counsel to learn a bit more about the disability application process as it is only through education that you can make an informed decision.

According to an article by the Associated Press dated September 28, 2021, Governor Phil Murphy recently signed three bills into law directed at increasing racial diversity among law enforcement officers which will facilitate underrepresented populations to pursue law enforcement careers.  Murphy also signed an executive order creating the Office of Diversity, Equity, Inclusion and Belonging. The new office’s responsibilities will include, overseeing training, addressing racial/discrimination inequalities in state government, and expanding opportunities for underserved New Jersey residents.

The three laws require the state’s Civil Service Commission to implement programs to boost diversity and make law enforcement more representative and equitable as follows:

S-2765–This law requires the Civil Service Commission to analyze the racial composition of police agencies in the state to identify those that could benefit from eliminating hiring preferences based on residency. The aim of this law is to ensure the racial makeup of police forces reflect the populations of the towns they serve.

S-2766–This law requires the Civil Service Commission to establish a mentoring program for law enforcement applicants who reside in underprivileged areas. The goal of this program is to connect applicants with mentors who will assist them in  navigating the application and hiring process.

S-2767–This law requires the Civil Service Commission to set up a universal background application and to develop and provide a database to collect all background information submitted by applicants, and track hiring decisions.  The database will be confidential.

The purpose behind these three newly enacted laws is to address the alleged “challenges” that underrepresented groups disproportionately face; and to bring more diversity to police forces and other law enforcement agencies by reducing or eliminating the alleged “obstacles” that make it difficult for minorities to join the ranks. It will be very interesting to see the operability of these new laws and whether they have the true desired effect that the Democratic Governor, House and Senate believe that it will.  In essence, other than S-2766, all that these new laws truly do is create a few studies in regard to diversity within our state’s law enforcement departments.  As far as I am concerned, this information is already readily available and easily discernable.  If the politicians truly seek to diversify our state’s law enforcement departments for the better, common sense dictates that a lot more than this must be done.  Time will tell whether we give them an “A” for effort, or if this will be nothing more than another “feel good” project that does nothing to bring this state and country back together.

As first reported in, 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, 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.