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Court Addresses Failure to Report Off-Duty Misconduct of Fellow Officer

Posted in Public Employee Discipline

Recently, the Appellate Division issued an opinion in the case New Jersey State Police v. Trooper Brandon Bruns that addressed an officer’s failure to report the misconduct of another off-duty officer. In that case, following an internal investigation, the New Jersey State Police served a charge upon the appellant for his failure to report the misconduct of an off-duty trooper to which the appellant had knowledge. Specifically, the appellant was charged with violating Article V, Section 8 of the New Jersey State Police’s rules and regulations.

The appellant denied the charge and the matter was referred to the Office of Administrative Law and an Administrative Law Judge (“ALJ”) for an evidentiary hearing. The ALJ rejected the appellant’s contention that he had no obligation to report the incident under the rules and regulations because he was off-duty at the time. The ALJ recommended that the appellant be suspended for thirty days, given this was the appellant’s third disciplinary infraction.  The appellant then appeal to the Appellate Division.

The Appellate Division affirmed, holding that the rules require members of the State Police to promptly report all crimes, breaches of the peace, misconduct, fires, and other significant events “that may come to [such] members’ attention.” In addition, the Court found the standard operating procedures provided that reportable incidents included “[a] complaint that a member [of the State Police] has engaged in misconduct whether on or off-duty.”  According to the Court, the appellant had more than sufficient information to report the trooper’s misconduct and, therefore, affirmed the violation for his failure to report.  More importantly, the Court held that the rules require a member to report crimes whether on or off-duty.

All New Jersey Public Safety Officers should be aware of their duties and responsibilities at all times. As this case illustrates, an Officer can be disciplined even though he/she did not engage in any misconduct, but failed to report the same, notwithstanding the alleged misconduct occurred in an off-duty capacity. Therefore, all Officers should be cognizant of the same to protect themselves going forward.  Please continue to check this blog periodically for important updates concerning all New Jersey Public Safety Officers.

Middlesex County Prosecutors Office Ordered to Pay $114,402 in Legal Fees for Failing to Turn Over 911 Recordings in the Use of Deadly Force

Posted in Uncategorized

As reported in the New Jersey Law Journal, the Appellate Division has confirmed a ruling made by a Superior Court Judge that orders the Middlesex County Prosecutor’s Office to pay two news outlets more than $100,000 in counsel fees after they successfully sued the office for access to 911 call recordings involving the fatal shooting of an individual.

The three-judge Appellate Division panel, in an unpublished decision on March 2, affirmed the $114,402 fee award to the Home News Tribune, which is owned by the Gannett Co., and NJ Advance Media, which publishes The Star-Ledger of Newark.

The Appellate Division Judges stated that the news outlets met the definition of prevailing parties under the state’s Open Public Records Act, even though the prosecutor’s office argued it complied with the law when it provided an edited version of the radio communications.  In its ruling, the court stated that “There is ample evidence in the record for the judge’s determination.”  The Judge awarded $74,818 to the Home News Tribune and $39,582 to NJ Advance Media after finding that they prevailed, which is a requirement for awarding fees under OPRA.

The incident involved a police response at the home of an Old Bridge family.  The report, by the prosecutor’s office, said the use of force was justifiable because an individual repeatedly ignored commands to drop a knife and threatened the officers on scene with it.  At the time that the officers arrived on scene the individual had already used the knife to slit his wrists and stab himself, according to the court. The police officer, that used the deadly force was forced into a position in which he could not retreat, and thus, his actions were deemed necessary.

According to reports in The Star-Ledger, the call for service began when a 911 call came in at 5:59 p.m. on Jan. 14, 2015, for medical assistance for a man with a knife who had reportedly attempted suicide by cutting his wrists. When the two officers arrived, one entered the house while the other retrieved a first-aid kit, the report said.  The first officer was directed to a downstairs room where he encountered a man who “was seated on the floor several feet away with a knife in his right hand,” according to the Star-Ledger. The report said the officer ordered the man to drop the knife, “to which he replied ‘No,’ and made a motion as if to throw the knife in the officer’s direction.”

The officer, who has not been identified, retreated to the stairwell for cover. The report said the man stood up and “began walking toward the officer, brandishing the knife at head level.”  The second officer went into the home and immediately heard the first officer’s vocal commands to drop the knife, the report said. He moved toward the sounds of the first officer’s voice and saw the first officer at the bottom of the stairs, against the wall with his weapon drawn.  From his vantage point in the foyer, he could not see the decedent the report said. “Before officer #2 could advance further, officer #1 fired one shot. Officer #2 immediately notified police headquarters of the shot fired and requested first aid.”

The report said the investigation into the shooting determined that before the original 911 call, the decedent had drawn a knife and attempted to strike his wife, who suffered lacerations to her hand and face. She was able to flee upstairs and wake her son, who on going downstairs discovered his father on the floor, actively bleeding from lacerations to both his wrists, the report said.  The decedent refused to give the knife to his son and reportedly pointed it in his direction when the son tried to take it from him, the report said.

The prosecutor’s office, which initially denied the news outlets’ requests for the 911 tape, eventually produced a redacted version. The news agencies filed a complaint, which the prosecutor’s office defended by arguing that the redactions were justified to protect the identity of the caller and others.  In his ruling the Superior Court Judge stated that the redactions were acceptable but rejected the office’s apparently unorthodox request for a protective order to protect individual identities. He awarded the fees, rejecting the office’s contention that the materials it sent to the newspapers were not as a result of the OPRA litigation.

“We agree with the motion judge that the Newspapers’ lawsuits were a catalyst for the disclosure of the 911 call,” the Appellate Division said. “As early as February 2015, the MCPO knew the Newspapers intended to file OPRA lawsuits if the 911 call was not released. Knowing the Newspapers planned to file litigation, the MCPO filed its ‘procedurally deficient’ motion for a protective order.”

Case law is now beginning to crystalize in regard to documents and audio and video recordings that must now be turned over in regard to Police Officers Use of Deadly Force.  We will continue to review this developing case law and keep our readers informed of the changes that are ongoing in this area of the law.


Murphy Rolls Back Recent Pension Change Made By Christie

Posted in Public Employment Pension Crisis

As reported by, Governor Phil Murphy’s administration is rolling back a change to New Jersey’s public worker pension system that Chris Christie slipped in during the waning days of his administration that raised government contributions by more than $800 million. The acting State Treasurer, Elizabeth Muoio, said Christie’s surprise reduction in assumed rate of return from 7.65 percent to 7 percent placed a “undo stress” on the governments that would have to find the extra cash. Muoio said she would phase in the rate cut over five years.

The State uses the assumed rate of return to calculate how much money state and local governments will need to pay out benefits to nearly 800,00 active and retired workers. Christie’s administration slashed the rate in December in a move that increased local governments’ bills by $422.5 million and the State’s by $390.3 million, according to actuary reports. If the State only contributes 60 percent of what actuaries recommend next year, as expected, the revised payment would have been $234 million higher. A spokesman for Murphy said then that Christie was “playing politics with the pension fund by rushing this decision at the 11th hour.”

The pension fund actuaries have said a 7 percent assumed rate of return is a more conservative estimate of what pension investments can achieve over the long term and is in line with other large funds. In contrast, assuming the investments will earn a high rate makes the pension fund look healthier than it really is and does not reflect the reality of the State’s investment outcomes, actuaries say. The fund returned 13 percent in the fiscal year that ended in June, but lost nearly 1 percent the year before. It returned 4.16 percent and 16.9 percent in the years prior.

Muoio said she will set the rate at 7.5 percent for the fiscal year beginning in July, otherwise known as fiscal year 2019, and fiscal year 2020. The rate will then drop to 7.3 percent for 2021 and 2022 and then finally land at 7 percent in 2023. “A gradual path to a lower rate will help mitigate the undue stress that would otherwise have been placed on local governments to address the significantly increased contributions required of them and the consequences this would have on their structural budget, reserves, and ultimately, their taxpayers,” Muoio said.

This seems to be one of the first measures taken by the new gubernatorial administration to address the pension crisis prevalent in New Jersey. As you know, the pension crisis is one of the foremost issues affecting New Jersey public employees, and most notably, public safety officers. Therefore, we are hopeful this a first step in the right direction in an effort to ensuring the pension of New Jersey Public Safety Officers remain intact. Please continue to check this blog periodically for updates regarding the pension crisis and other important issues affecting New Jersey Public Safety Officers.

NJ Attorney General Issues Directive That Dashcam and Bodycam Footage of Deadly Force Should be Subject to Public Release

Posted in Uncategorized

As reported in the New Jersey Law Journal, New Jersey Attorney General, Gurbir Grewal made an announcement that police dashcam and body cam videos documenting use of deadly force should be subject to public release once the corresponding initial investigation is complete.  According to the press release, the directive is being issued in the interests of “transparency in police community relations,” though it will not go into effect until it has undergone an analysis for compliance with attorney ethics rules.

The Attorney General’s press release states that AG Directive 2018-1 provides that in any case where a police officer uses force resulting in death or serious bodily injury – or where a firearm or other deadly force is used without injury – and video footage of the incident is captured by a body-worn camera or dashboard camera, the investigating law enforcement agencies will presumptively make the video available, upon formal request by a member of the public or media, once the initial investigation of the incident is substantially complete.

While determination as to when the initial investigation is substantially complete is left to the discretion of the County Prosecutor – or Director of the Division of Criminal Justice in cases investigated by the Attorney General’s Office – the initial investigation will typically be deemed substantially complete after principal, material eyewitnesses have been interviewed and the most relevant physical and documentary evidence has been gathered.  Generally this should occur within 20 days of the incident.

In cases where it takes more than 20 days to substantially complete the initial use-of-force investigation, the County Prosecutor or Director may decline to release the video footage, but must document the reasons that additional time is necessary and estimate when substantial completion will be achieved, submitting that information to the Attorney General or a designee within the Attorney General’s Office.

Before releasing a deadly-force recording, prosecutors are directed to consult with persons appearing in the video footage or their families in the case of decedents. Where release of the video would unduly compromise the safety or privacy of any person, including any law enforcement officers, the prosecutor may seek approval from the Attorney General’s Office to postpone or decline release of the video. In other cases, the released video footage may be digitally modified to obscure the identity of a person, where that person’s identity has not been disclosed, provided the editing does not conceal any actions by a person constituting a use of force.

In New Jersey, investigations of police-involved shootings and other deadly force incidents are directly overseen by the Attorney General, who acts as an independent prosecutor in such matters. Specifically, these investigations are governed by an Attorney General directive that establishes detailed procedures and safeguards to ensure independent and impartial investigations. With respect to body-worn cameras, the Attorney General’s Office has issued a statewide policy establishing guidelines for deploying such devices for those agencies that elect to deploy them. The Attorney General’s Office also has provided over $4.5 million to enable the New Jersey State Police and other police departments across New Jersey to equip their officers with body cameras.





Data Shows that NJ’s Most Violent Cities Have Lost The Most Police Officers Since 2010

Posted in Uncategorized

As reported by, retaining police officers has been a challenge for many New Jersey municipal police departments.  Shortfalls in city and municipal budgets can, and have lead to layoffs and demotions. When Senior police officers retire their positions never get refilled and the data shows that this occurs more often than not in New Jersey cities with the most violent crime rates.  In addition, as a result of the two percent (2%) interest arbitration salary cap, the two percent (2%) property tax cap levy and the “social media” difficulties associated with policing, recruitment and retention has been extremely difficult.

Despite the foregoing, there are police departments that are actively taking steps to reverse attrition and bolster their ranks.  NJ Advance Media analyzed seven years worth of data turned in by municipal law enforcement agencies to the FBI and found the 20 police departments across the state that have lost the most employees — both civilians and officers — from 2010 to 2016.

In terms of percentage decreases, Medford and Pemberton having each lost over 40% of their officers from 2010 to 2016, have experienced the largest reduction in ranks according to the NJ.Com sampling. Yet, in terms of the sheer number of officer reductions, Newark, Paterson, Trenton, and East Orange lead the pack as they have all experienced a substantial reduction in their law enforcement workforce.

It is also worth noting that in performing a cross reference with’s list of towns with the highest violent crime rates,  thirteen of the municipalities with the highest increases in crime were also included in the towns with the largest shrinking police forces.  Taking all of this together, one must scratch their head in trying to figure out the phenomenon that is occurring across the state of New Jersey where our largest most violent cities are now being policed with less officers. Additionally, the pay that our largest city’s officers receive is no where near the top officer salary reflected across the state.  While are cities are being asked to do more with less money so to are our law enforcement officers.  We will continue to review this data as it becomes available, especially in light of the changing social perceptions of police work and the changes in pay and benefits associated with the position of employment.


Appellate Division Addresses 45 Day Rule Argument

Posted in Public Employee Discipline

Recently, the Appellate Division issued an opinion in the case In the Matter of Sanchez that addressed the applicability of the 45 Day Rule in a removal case. In that case, a police officer, the appellant, appealed his termination for engaging in sexual acts with a civilian in his marked police car while on duty. During the course of an internal affairs investigation of another officer, the appellant admitted to having sex with an individual but denied having sex in his patrol car. In a later interview, however, the appellant admitted to having sex in his patrol car. Subsequently, he was charged with multiple violations of the Division’s regulations and rules as well as conduct unbecoming a public employee and misuse of public property.

The Civil Service Commission adopted the findings of fact and conclusions of law rendered by an Administrative Law Judge, wherein which the Judge dismissed some of the charges, upheld others, and upheld the appellant’s termination from employment. On appeal, the appellant argued the charges were time-barred under the auspices of the 45 Day Rule, N.J.S.A. 40A:14-147, and that a substantial suspension, rather than termination was warranted.

The Appellate Division affirmed the Civil Service Commission’s determination for substantially the same reasons stated by the Administrative Law Judge, thereby upholding the appellant’s removal from employment. To this end, the Court determined the Judge correctly found that the 45 Day period in N.J.S.A. 40A:14-147 did not begin to run until the day the appellant admitted he had sex with an individual in his patrol car. Additionally, the Court found that progressive and/or incremental discipline did not have to be applied in every disciplinary setting and the appellant’s conduct was sufficiently egregious to warrant removal.

The time period as to when the 45 Day Rule contained in N.J.S.A. 40A:14-147 or in a collective negotiations agreement applies is a fact sensitive determination. In simple terms, it is not always clear as to when the 45 Day Rule begins to “run” in a given case. Nevertheless, the 45 Day Rule is an important protection afforded to most law enforcement officers that ensures certain disciplinary charges are brought in a timely fashion. As such, should you ever be faced with disciplinary charges, it is imperative you consult with an experienced attorney familiar with the nuances of the 45 Day Rule and its potential applicability in a given situation.

Bail Reform Reduces Jail Population Across New Jersey by 20.3%

Posted in Uncategorized

As reported in the Press of Atlantic City, since its implementation on Jan. 1, 2017, Bail Reform has reduced the population of pretrial inmates in jails across the state by 20.3 percent from 7,173 to 5,718, according to court records.

Cumberland County Prosecutor Jennifer Webb-McRae said the reforms are the biggest change she has seen in her 24-year career in criminal justice.  “It’s changed the way we do business,” she said, adding the county hired two more assistant prosecutors to help accommodate the new workload.

However, critics of the reform, to include Newark Mayor, Ras Baraka,  also contend that the new law increases the possibility that a dangerous person could be set free and is a risk to public safety.  For instance, on Feb. 6, a Newark man who was released twice under the new law on domestic violence charges shot and killed his ex-girlfriend. The man, Kareem Dawson, 31, shot himself to death when police came to arrest him for the slaying.  In a statement, Baraka said the law needs to be fully examined so a similar situation does not occur again.  “We can’t go on losing lives like this,” Baraka said in a statement. “We need to look at the downgrading of charges by prosecutors, especially in cases of domestic violence, and to fix the serious flaws in bail reform.”

Under the new system, the decision to keep a defendant in jail is based in part on a new scanning system that brings up alleged offenders’ criminal histories and helps determine whether they are a risk to the community or a risk of fleeing before a court date.

In addition to the public safety risks, the law itself faces the possibility of collapse if more revenue is not brought in to sustain it.  The law relies on funding from court fees instead of the state budget.  As of the beginning of this year, the judiciary was spending more on the program than it was collecting in fees and is expected to hit the wall within a year.  Because there is a 48-hour deadline to make a decision on whether an offender must stay in jail or be freed until trial, many counties have had to hire more staff in sheriff’s departments, prosecutor’s offices and courts.  Courts now must be open on weekends and holidays to adhere to this deadline.  However, as one can imagine, as the jail population shrinks, Counties also believe that the number of corrections officers on staff should also shrink.

We will continue to monitor this controversial social justice program and the effects that it has on public safety and public safety officers throughout the State of New Jersey.

Appellate Division Again Considers Meaning of “Undesigned and Unexpected” in NJ Public Employee Accidental Disability Appeals

Posted in Disability Retirement

The Appellate Division once again the considered the “undesigned and unexpected” standard as it pertains to qualifying for accidental disability retirement benefits in the case of Mason v. Bd. of Trustees, Police and Firemen’s Retirement System. In the case, the appellant alleged she was injured while qualifying with a firearm for her work as a Correction Officer with the New Jersey Department of Corrections. To this end, she had qualified on the range each year for the prior 18 years without injury. While qualifying, the appellant felt a soreness in her shoulder, but continued with the qualification process to obtain her firearms certification.

After qualifying, the appellant reported her injury, filled out the requisite paperwork, and went to the emergency room for treatment. Unfortunately, she subsequently had several shoulder surgeries, did not return to work, and was terminated. Thereafter, the appellant filed an application for accidental disability retirement benefits. The Board of Trustees of the Police and Firemen’s Retirement System (“Board”) awarded the appellant ordinary disability retirement benefits, finding her to be totally and permanently disabled from the performance of her assigned duties. However, the Board determined that the incident was not “undesigned and unexpected” and, thus, the appellant did not qualify for accidental disability retirement benefits. To this end, the Board noted that the potential recoil from firing a shotgun was anticipated and expected based on the appellant having qualified with a shotgun in each of the 18 years prior to the incident.

Following an administrative hearing, an Administrative Law Judge determined that the incident did not qualify as an unexpected happening for an award of accidental disability retirement benefits. In turn, the Board adopted the Judge’s decision. The appellant appealed the determination to the Superior Court of New Jersey, Appellate Division.

On appeal, the Appellate Division affirmed the Board’s determination. Specifically, the Appellate Division held that it was not unusual or extraordinary circumstances as the appellant was required to qualify with a shotgun each year to maintain her position as a correction officer. Accordingly, the Appellate Division supported the Board’s determination that appellant’s total and permanent disability was not the result of an event that was “undesigned and unexpected.”

In recent years, New Jersey courts have addressed and analyzed the “undesigned and unexpected” standard in many opinions.  Typically, the determination as to whether an incident is “undesigned and unexpected” to qualify for accidental disability retirement benefits is a factually sensitive. In other words, it depends upon the specifics behind the incident in question.  As a result, courts have issued a myriad of inconsistent results as to when an incident qualifies as “undesigned and unexpected.” Consequently, if you are thinking about filing for accidental disability retirement benefits, it is imperative that that you consult with an experienced attorney who is familiar with the applicable law pertaining to accidental disability retirement benefits and, more specifically, pertaining to the “undesigned and unexpected” standard.

NJ Senate Bill S-1858 Proposes to Implement a Permanent 2% Salary Cap on Police and Fire Interest Arbitration Awards

Posted in Interest Arbitration, Public Employment Labor Law

On Friday, February 9th, 2018, New Jersey State Senator Declan O’Scanlon introduced legislation that would reinstate New Jersey’s interest arbitration salary cap that limits two-percent (2%) annual salary increases that can be awarded when disputed police and fire contracts enter the process of binding arbitration.

O’ Scanlon stated on his website that “One of the biggest mistakes made by the Legislature in recent memory was allowing the arbitration cap to expire at the end of 2017.  If we don’t act quickly to reinstate the arbitration cap we’ll quickly see arbitration awards that exceed the 2% tax cap and the beginning of the evisceration of that essential property tax control. As the noose tightens, we’ll see labor costs skyrocket over time and eat up local budgets at the exp

ense of other important programs and services. That would likely lead to the failure of New Jersey’s two-percent property tax cap. Let me be clear, any legislator who doesn’t back this bill is standing for higher property taxes. One cannot legitimately say he or she backs property tax caps without embracing this bill.”

O’Scanlon’s new legislation, S-1858, would implement the following changes to police and fire interest arbitration:

  • Making the interest arbitration cap permanent.
  • Maintaining that arbitrators have 90 days to render a decision.
  • Maintaining the 14-day deadline to file an appeal and 60-day period for a final PERC decision.
  • Keeping the compensation of arbitrators capped at $10,000.
  • Continuing to compound the two-percent cap each year over the length of the collective negotiations agreement.
  • Continuing to include the cost of increments previously negotiated, such as step movements and longevity payments, when determining base salaries.
  • Requiring contracts to be posted conspicuously on the municipal or county website at least 10 days prior to the execution of the contract.
  • Voiding final agreements not filed with PERC or that don’t contain a cost summary.
  • Abolishing “dynamic status quo” step increases after a collectively negotiated agreement has expired.

Despite what Senator O’Scanlon believes, reinstating the cap on interest arbitration awards would be a mistake.  Anyone who believes in the importance of collective labor negotiations and has an understanding of the dynamics that exist at the bargaining table realize that parties reach an accord based on good faith negotiations that take place because each understands the potential repercussions that exist if an impasse is reached.  This statement is true for collective negotiations in both the private and public sectors of our economy.  Furthermore, anyone who has a firm understanding of negotiations and interest arbitration in the public sector recognize the fact that the law, as it presently exists without a two percent salary cap, mandates that interest arbitrators take into consideration the effect their award will have on the two percent (2%) property tax cap levy and the interest and welfare of the taxpayers in general.

Over the last seven (7) years the result of the two percent (2%) salary cap on collective negotiations between public safety negotiations units and management was disastrous.  Because of the New Jersey Public Employment Relations Commission’s interpretation of the two percent salary cap, the bargaining table was no longer level but instead titled so far in favor of management that bargaining in good faith between the parties became non-existent.  Instead, management bargained with the “safety net” that they now had and no matter what the empirical evidence showed, they utilized the salary cap as a sword in achieving what one would believe to be draconian results.

What Senator O’Scanlon has failed to state in his press release is that now, as a result of the two percent (2%) salary cap, the cost of mandatorily legislated health care contributions and the various municipalities, counties and the State of New Jersey freezing increments upon the expiration of a contract; many law enforcement officers today are making less money than they were ten (10) years ago.  This empirical evidence can not be countenanced and when coupled with the cost of inflation, the effect of the cap has had a negative effect on our economy.

Take a look at the cold hard facts and figures and the undeniable truth that every tool one needs to limit police and fire salary increases is already in place in the existing law that governs interest arbitration.  The answer can no longer be legislative evisceration of collective bargaining and thus labor relations amongst management and employees.  Instead keep the playing field level and use the tools that are already at your disposal.

NY Court of Appeals to Review NJ Man’s Demand for Surveillance Records Held by The NYPD

Posted in Uncategorized

As reported in, a man from Paramus heads to New York State’s highest court, the Court of Appeals, today in a potentially precedent-setting case that’s being closely watched by open-government advocates and media companies.

Samir Hashmi sought records after reading news reports that the NYPD had secretly monitored Muslim houses of worship and businesses in New York and New Jersey, as well as student groups at 16 Northeast colleges, including Rutgers University, where Hashmi was a student.

Hashmi has alleged that he was illegally monitored by the NYPD for expressing his First Amendment rights on the State University’s campus.  He further stated that the purpose of the suit was to ensure that Muslims feel safe to express themselves on college campuses and everywhere else in this county.”

Other students who also believed that they were monitored requested records and were told that none existed. But the NYPD informed Hashmi that it could “neither confirm nor deny” the existence of such records — a response that a New York appellate Court ruled was justified.

Omar T. Mohammed, Hashmi’s lawyer, said the NYPD’s reply was the first time he knows of that a local agency attempted to use the so-called federal “Glomar Response” to deny a records request.

In Hashmi’s case the NYPD said it could not confirm the existence of records because doing so could reveal information about targets of counterterrorism surveillance.   The NYPD was the first state or local agency to use the Glomar response to deny a public-information request.   However more are following New York City’s lead. In 2013, Indiana authorized the Glomar response through a state statute and in 2016, a New Jersey state appeals court ruled that government agencies in New Jersey may deny access to public records by saying they can “neither confirm nor deny” their existence.

The decision of this case will go a long way in drawing the line in what law enforcement agencies believe are necessary actions to protect the citizens of our country while counter-balancing invading the privacy of others.  We wont be surprised if this is not the last we hear of this case or others like it as the Federal Courts will be sure to weigh in.