On July 28, 2009, the Appellate Division decided In the Matter of Donald Michelson, Department of Safety, City of Union. In the case, Donald Michelson sought review of the Final Administrative Action of the Merit System Board accepting and adopting the initial decision of the Office of Administrative Law (“OAL”). The Administrative Law Judge (“ALJ”) found that the City of Union had proven its charges of neglect of duty, other sufficient cause, and absence without leave against Michelson and concluded that the penalty of suspension without pay for six (6) work days was reasonable and consistent with progressive discipline.

On October 14, 2005, Michelson, a sergeant in the Union Police Department, was assigned to work in the communication center from 2330 hours to 0730 hours but did not report for duty. The Police Department schedule cycle requires officers to report for duty four days on and three days off per week for three weeks, then report for duty four days on and two days off for one week (called “the short week”). Before 0400 hours, Sergeant Botti, the Desk Officer Supervisor called Michelson to inquire about his absence. Apparently, Michelson mistakenly believed he was on the short week and not scheduled to work that day. He ultimately reported for duty at 0400 hours.

The Police Department charged Michelson with neglect of duty, absence without leave, and other sufficient cause. Due to his absence, which was undisputed, the ALJ determined: (1) the communication center was without supervision for approximately four and one-half hours; and (2) the desk sergeant put aside his regular duties to conduct an inquiry into Michelson’s absence. The ALJ also noted the police department operates as a paramilitary organization and prompt attendance is critical to the efficient operation of the department. The ALJ further found that the six-day suspension comported with the concept of progressive discipline. The ALJ, reasoning that Michelson had no intention to report for duty until Botti called him, rejected Michelson’s contention that he was merely tardy, not absence without leave.   

The ALJ, noting that superior officers such as Michelson must set an example for subordinate officers, also rejected Michelson’s claim that he was subjected to disparate treatment because no other officer had been suspended for arriving late. Additionally, the ALJ concluded that the record was insufficient to support a claim of disparate treatment as it did not contain the prior disciplinary records of the other employees, a factor bearing on the discipline to be imposed. Thus, no reasoned comparison could be made. Consequently, the ALJ affirmed Union’s determination that Michelson be suspended for six (6) days.

On review by the Board, it accepted and adopted the ALJ’s findings of fact and conclusions of law and found “that the action of the appointing authority in suspending [Michelson] was justified.” Accordingly, it affirmed the action and dismissed Michelson’s appeal. This appeal ensued.Continue Reading Suspension of Union Police Officer Upheld

On July 23, 2009, the Superior Court of New Jersey, Appellate Division issued its opinion in the case of James Liik, et al v. New Jersey Department of Personnel/New Jersey Department of Corrections, Docket Number A-4121-06T2.

This particular opinion has widespread implications in regard to pay and seniority of thousands of New Jersey corrections officers presently employed with the New Jersey Department of Corrections.

By way of background, in 1997, the New Jersey Department of Corrections and New Jersey Department of Personnel created and implemented a pilot program which modified training procedures for corrections officer recruits. Prior to the implementation of the pilot program, candidates for employment with the Department of Corrections were hired as employees and assigned the rank of “correction officer recruit” during their period of training and completion of their working test period. During this time, corrections officer recruits received full salary and benefits available for this particular rank. Once the working test period associated with the position of corrections officer trainee was successfully completed, they were then promoted to the position of senior corrections officer. The pilot program eliminated this practice and those individuals seeking employment with the New Jersey Department of Corrections were designated as “students/trainees.”

As a result of this change, they were no longer considered employees of the New Jersey Department of Corrections, but instead received the lesser rank of corrections officer recruit/trainee during the 14-week training period. During this 14-week training period, instead of receiving the regular salary of a corrections officer recruit, they received a $300 weekly stipend. If a recruit trainee successfully completed the prescribed program of training, they then became “employees” of the New Jersey Department of Corrections and received the salary and benefits of a corrections officer recruit. Despite the fact that the program was to last for only a period of one year, the New Jersey Department of Corrections and Department of Personnel made the program permanent in 1999. A stipend of $300.00 that was to be paid to student trainees never increased over the following years and a significant financial burden and hardship was placed upon those individuals seeking employment with the New Jersey Department of Corrections.Continue Reading Correction Officer Recruit Trainee Pilot Demonstration Program Declared Void

On July 23, 2009, the Appellate Division decided Barbara Cannella v. Board of Trustees, The Public Employees’ Retirement System, Docket No.: A-4389-07T2. In the case, Barbara Cannella appealed the decision of the Board of Trustees of the Public Employees’ Retirement System (“Board”) denying her application for accidental disability retirement benefits under N.J.S.A. 43:15A-43.

On December 26, 2002, Cannella, a State employee working for the Division of Youth and Family Services, arrived at the parking lot designated for State employees where she was assigned to park. The parking lot was located a block from the building where she worked. As she exited her vehicle, she slipped and fell on ice, sustaining injuries.

On April 19, 2006, the Board determined that due to the injuries incurred in the fall, Cannella was permanently and totally disabled from performing her regular and assigned duties, but did not qualify for accidental disability benefits within the meaning of N.J.S.A. 43:15A-43. In order to be entitled to accidental disability retirement benefits, the statute requires that the disabling injury be “as a direct result of a traumatic event occurring during and as a result of the performance of [her] regular or assigned duties.” The Board determined that she did not meet this criterion and denied her application for accidental disability retirement benefits.

Cannella appealed and the case was sent to an Administrative Law Judge (“ALJ”) for an administrative hearing. Following cross-motions for summary judgment, the ALJ found that because Cannella was a block away from her place of employment when she fell, she had not yet completed her commute and, as a result, the fall had not occurred “during and as a result of the performance of [her] regular or assigned duties.” As such, the ALJ granted the Board’s motion for summary judgment and dismissed the appeal. By letter dated May 27, 2008, the Board adopted the Initial Decision of the ALJ and denied Cannella’s application for accidental disability retirement benefits. This appeal ensued.

The Appellate Division affirmed the Board’s determination and dismissed Cannella’s appeal. The Court indicated that Cannella had not reached her employer’s building, but still had another block to go. Moreover, she was not at the premises where she worked when she fell. At the time of her fall, she had not begun any preliminary efforts in commencement of work, but rather still had to continue her commute on foot to her workplace. According to the Court, to award accidental disability retirement benefits under these circumstances would be to significantly extend the scope of coverage. The statutory language was designed to reassert the going and coming rule present in workers’ compensation law, providing that workers were not entitled to benefits for injuries sustained while traveling to and from work. Thus, the Court held the Board’s application of the accidental disability statute to the facts of the case was consistent with the legislative intent to enforce the going and coming rule.Continue Reading Going and Coming Rule Serves as Basis for Denial of Application for Accidental Disability

In New Jersey, this will mark the first time citizens will elect a lieutenant governor. New Jersey Republican gubernatorial candidate Chris Christie has picked a fellow lawyer for his running mate, Kim Guadagno. Kim Guadagno was a federal prosecutor before she was elected Monmouth County Sheriff.

In a video on Christie…

On July 16, 2009, the Appellate Division decided In the Matter of Michael Brown, Monmouth County, Docket No.: A-5157-07T3. In the case, Michael Brown appealed from a final decision of the Merit System Board (“Board”) upholding the termination of his employment as a Monmouth County Corrections Officer after finding that he tested positive for marijuana.

Brown was employed by Monmouth County as a corrections officer for approximately fifteen to seventeen years. According to Captain Thomas J. Philburn, Personnel Captain at the correctional facility, Brown was “a very low-keyed, soft-spoken individual” who did his job and had no prior disciplinary problems other than some minor “attendance-related issues.”

The County uses National Safety Compliance (“NSC”), a safety services and compliance company certified by the Substance Abuse and Mental Health Administration, to perform random drug tests on its employees in accordance with the County’s substance abuse policy. NSC, in turn, employs Lab One, located in Kansas, to perform the actual laboratory tests on the samples.

On July 13, 2004, Brown was randomly selected for a drug test pursuant to the County’s policy. When the test was reported as positive for marijuana use, the matter was heard internally and Brown was found to have violated the County’s substance abuse policy. After a final notice of disciplinary action was served on Brown on August 24, 2004, the matter was transferred to the Office of Administrative Law (“OAL”) as a contested case.

A hearing was held before the OAL on December 7, 2005 and two witnesses testified on behalf of the County, Captain Philburn and Ronald Raslowsy, President of NSC. Neither of the witnesses had any personal knowledge of the procedures used for the testing, nor could they establish a chain of custody from the time the sample was taken to the time it was purportedly tested at the laboratory in Kansas.

Radomsky testified that he “believed” that the Attorney General guidelines for testing a law enforcement officer were followed, but had no personal knowledge as to whether they actually were. He did know, however, that the proper interview form was not used. He had no knowledge of who was present when Brown was tested, who witnessed the test, whether the sample was properly labeled, packaged and shipped, or who participated in the shipping of the sample. Nevertheless, the Administrative Law Judge (“ALJ”) rendered an initial decision on October 20, 2006 sustaining the charges and ordering Brown’s removal.Continue Reading Termination of Corrections Officer Reversed

U.S District Court Judge Frieda L. Wolfson dismissed a lawsuit by a group of New Jersey State Troopers seeking to overturn the ban on allowing them to practice law while being employed by the State Police. The decision was filed on July 9, 2009.

“If the troopers were to prevail on this argument, state …

On July 2, 2009, the United States Court of Appeals for the Third Circuit decided United Steel v. E.I. Dupont de Nemours and Company, No. 08-1911. In two consolidated cases, Plaintiffs are unions who were seeking to compel Defendants, employers of the unions’ members, to arbitrate Plaintiffs’ grievances about unilateral changes the Defendants …

On July 7, 2009, the New Jersey Supreme Court decided State v. Anthony Bogan, Docket No.: A-7-08. In the case, the Court considered whether, during an investigation into an alleged sexual assault, a police officer’s warrantless entry into an apartment was justified under the community caretaking exception to the warrant requirement.

In 2004, a receptionist at Passaic Mill Work noticed a young girl outside on the sidewalk crying hysterically. The receptionist invited the girl inside. The girl’s name was Kathleen and she was fourteen years old. Kathleen stated that a person who was supposed to drive her to school had molested her. The police were called and Kathleen informed the officers that she had been offered a ride by a male family friend, later identified as Defendant Anthony Bogan. Instead of taking her to school, Bogan drove Kathleen to an apartment in Clifton, where he lured her into a second-floor apartment and molested her. Kathleen gave a description of Bogan that included his race, age, height, and clothing, and told the officers that while she was inside the apartment a young boy named Wally was there.

Accompanied by Kathleen, three officers proceeded to the apartment. On their arrival, they found parked in front a gray Audi, which Kathleen identified as the car driven by Bogan. The officers rang the bell to the second-floor apartment. They heard an adult-sounding male voice yell from inside the apartment, “Who is it?” The officers identified themselves as police. Wally, who was approximately twelve years old, answered the door in his pajamas. The officers followed Wally up the stairs toward the apartment, asking him if he was home alone. Wally’s response that no one was home was inconsistent with the adult male voice that had responded when they rang the doorbell. At the top of the stairs, with Wally inside the apartment and the officers on the landing outside the doorway, the conversation continued. When officers asked the whereabouts of Wally’s mother, he gave conflicting answers and seemed nervous. The officers thought that Wally might be in danger. When the telephone rang in the kitchen, which was located immediately inside the apartment, Wally picked up the receiver and told the officers that his father was on the phone. One of the officers asked Wally if he could speak with his parent, and Wally responded “certainly.” The officer walked a few steps into the apartment and was handed the receiver by Wally. While on the telephone, the officer was able to see into a bedroom where Bogan was lying on the bottom level of a bunk bed. Bogan fit the description given by Kathleen, and the officer motioned for the other officers to enter the apartment.

An officer read Bogan the Miranda warnings. Bogan identified himself as “Anthony Green.” Another officer, who was on the telephone with Wally’s mother, was told that Anthony Bogan was supposed to be caring for Wally. Upon further questioning, Defendant stated that Bogan was his “maiden name.” While communicating with headquarters, the officers learned that there were multiple arrest warrants for Anthony Bogan. Continue Reading Officer’s Warrantless Entry Into Apartment Justified

Employees in New Jersey’s largest state-worker union overwhelmingly ratified a revised contract agreement on Tuesday, June 30, 2009 that defers a raise and trades furloughs this year for future vacation days. With a little over 13,000 votes cast online or by phone by the deadline, the margin was 69 percent to 31 percent according to…

An association of retired cops has warned Hamilton Township to not tamper with their retirement package. The association alleges it would be illegal to change the terms of their benefits “in the middle of the stream.” The Mercer County Local 12 of the Retired Police and Firemen’s Association sent the warning to the Hamilton …