NJ Public Employee Discipline

Recently, the Public Employment Relations Commission (“PERC”) has proposed temporary rules to implement the provisions of L.2009, c.16. That law allows non-Civil Service law enforcement officers and firefighters who are terminated pursuant to a complaint or charges not involving any alleged violation of criminal law to have the option of having their terminations reviewed by means

On April 15, 2009, the Appellate Division decided In the Matter of Cornelius Caruso, Docket No.: A-1612-07T1. In the case, Cornelius Caruso appealed his termination as police officer in the City of Orange Police Department.

Caruso became a police officer in 2000. In 2005, he began to experience serious problems related to his use of alcohol. He voluntarily entered a program at the Carrier Clinic in December 2005. When he did so, he failed to follow the Department’s requirement that he notify the communication supervisor and apply for a leave of absence. No charges were filed with respect to that omission.

Caruso left the Carrier Clinic in March 2006. He was found by the Department to be fit for duty and returned to work on April 1, 2006. Caruso was instructed to make periodic reports concerning his recovery, which instruction was confirmed in a letter from the City’s attorney to Caruso’s attorney. No such periodic reports were ever made.

The Department permits fifteen days of sick leave per year. The Department assessed Caruso for use of 2006 sick leave only during the period from January 1 to January 10, 2006. The period from January 11 to March 31, 2006, was charged as a combination of administrative and compensatory leave. After Caruso’s return to duty in April, he went out on sick leave from April 6 to April 18; May 10 to July 7; October 25 to November 4; and December 12 to the end of 2006. Consequently, by December 2006, Caruso had taken significantly more sick leave than was permitted by the Department.

On December 12, 2006, Caruso left work because of an eye infection. However, according to Caruso, his problem with alcohol use returned in December 2006. On December 22, 2006, Caruso left his home and traveled to Hazelden, a rehabilitation clinic located in Minnesota. He again failed to notify the communications supervisor, although others apparently notified one of his superiors who subsequently contacted Caruso and arranged for him to surrender his service weapon. Caruso also failed to complete the required form for a leave of absence.

As a result, on January 18, 2007, the City filed formal disciplinary charges against Caruso. The disciplinary charges were as follows: (1) performance of duty; (2) insubordination; (3) obedience to laws and rules; and (4) abuse of sick leave. 

Caruso left Hazelden and returned to New Jersey on January 19, 2007. He started intensive outpatient aftercare on January 23, 2007, which required his attendance at a program for four hours a day, four days per week, as well as attendance at Alcoholics Anonymous sessions.


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On March 30, 2009, the Superior Court of New Jersey, Appellate Division decided the case In the Matter of Richard J. Rivera, Docket No. A-3672-07T2. In the case, Richard J. Rivera, a county corrections officer assigned to the Monmouth County Correctional Institute (“MCCI”), appealed from a final decision of the Merit System Board suspending him

This blog entry will focus upon our review of certain statutory proposals currently pending in the New Jersey Legislature concerning the pay status of law enforcement officers when appeals of termination are not resolved within 180 days. These proposals are set forth in Assembly Bill Number 3481

Assembly Bill 3481 concerns the suspensions of certain law enforcement officers and firefighters and supplements Title 40A of the New Jersey statutes and specifically amends N.J.S.A. 40A:14-150 and N.J.S.A. 40A:14-22. In essence, the bill allows certain law enforcement officers and firefighters to regain pay status when appeals of termination are not resolved within 180 days.

The first part of the bill provides:

When a law enforcement officer employed by a law enforcement agency…that is subject to the provisions of Title 11A of the New Jersey Statutes is suspended from performing his official duties without pay for a complaint or charges, other than (1) a complaint or charges relating to the subject matter of a pending criminal investigation…whether pre-indictment or post indictment, or (2) when the complaint or charges allege conduct that also would constitute a violation of the criminal laws of this State or any other jurisdiction, and the law enforcement agency employing the officer…seeks to terminate that officer’s…employment for the conduct that was the basis for the officer’s…suspension without pay, a final determination on the officer’s…suspension and termination shall be rendered within 180 calendar days from the date the officer…is suspended without pay.


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In Division of State Police v. In the Matter of Detective Sergeant First Class Daniel Flaherty, Docket No. A-0257-07T20257-07T2, the Appellate Division addressed the validity and ultimate imposition of disciplinary charges lodged against a Detective Sergeant of the New Jersey State Police. The appeal arose out of disciplinary charges filed by the New Jersey Division of State Police (“Division”) against Detective Sergeant First Class Daniel Flaherty, charging him with: (1) disseminating Division documents without proper authorization; (2) behaving in an official capacity to the personal discredit of a member of the State Police or to the Division; and (3) willfully disobeying a lawful verbal or written order.

The underlying facts of this case were not substantially in dispute. In 2001, Flaherty filed an age discrimination complaint with the New Jersey State Police Equal Employment Opportunity/Affirmative Action (“EEO/AA”) intake unit. He alleged that since 1995, the State Police had denied him numerous specialist positions because of his age. The EEO/AA assigned Lieutenant Patrick Reilly to investigate his claim. After two years, in which the allegations still had not been resolved, the EEO/AA replaced Reilly with DSFC Kevin Rowe.

On May 5, 2003, Flaherty filed a New Jersey State Police Reportable Incident Form alleging “culpable inefficiency” against Reilly. Pursuant to a Division policy regarding non-disclosure of confidential internal investigations, the Office of Professional Standards (“OPS”) denied his request to access the file regarding his complaint against Reilly.

The following month, the State Police administratively closed Flaherty’s complaint file against Reilly and transferred the matter to the Attorney General’s EEO/AA section. In a letter dated September 24, 2003, a Senior Deputy Attorney General informed Flaherty that his claim against Reilly could not be substantiated. 

Thereafter, on May 31, 2003, the Division assigned Flaherty to the OPS, which was then called the State Police Internal Affairs Investigation Bureau. Pursuant to Division of Internal Affairs policies and procedures, “[t]he nature and source of internal allegations, the progress of internal affairs investigations, and the resulting materials are confidential information. The contents of internal investigation case files shall be retained in the internal affairs unit and clearly marked as confidential.” Notwithstanding these provisions, internal investigation files can be released in certain enumerated circumstances.  As such, Flaherty executed a confidentiality agreement which provided the dissemination of all confidential information and/or documents.

In a letter dated February 20, 2004, the Department of Law and Public Safety found that Flaherty’s age discrimination claims could not be substantiated. In his appeal to the Department of Personnel, Flaherty questioned the manner in which the State Police and the Attorney General’s office investigated his


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In the matter of O’Rourke v. City of Lambertville, Docket No. A-0481-07T3, the Defendants appeal the trial court’s decision: (1) reversing the Lambertville City Council’s decision removing Plaintiff, Michael O’Rourke, from his position as a police officer; (2) reinstating Plaintiff to his position; and (3) denying their motion for reconsideration. Defendant, Bruce Cocuzza, is the city’s civilian police director. Plaintiff, a sergeant first class, was the police department’s Terminal Agency Coordinator (“TAC”) for the National Crime Information Center (“NCIC”) system, which contains a wide array of law enforcement information. 

The city charged Plaintiff with conducting unauthorized and improper employee background investigations, in defiance of Cocuzza’s direct order, and engaging in conduct subversive to the good order and discipline of the department in doing so. At the disciplinary hearing, Cocuzza testified that he and Plaintiff were discussing the temporary transfer of an employee from city hall to the department when Plaintiff told him that the employee would have to submit to a background check or be fingerprinted for security purposes. Cocuzza said he told Plaintiff that no action should be taken until Cocuzza received written authorization from “somebody in authority” and spoke with the city attorney regarding same. Later, Cocuzza learned Plaintiff had performed background investigations of five civilian employees of the department, including Cocuzza, without authorization.

After the officer assigned who was assigned to the department’s internal affairs unit declined to investigate because of his long-term social relationship with Plaintiff, Cocuzza decided to conduct the investigation himself. In his report, Cocuzza wrote that Plaintiff had been insubordinate and that his actions constituted a serious breach of discipline and a flagrant abuse of authority. 

Plaintiff testified that he performed the checks under his authority as TAC officer, indicating that under the State’s security policy anyone with access to the NCIC system had to have a background check and fingerprints taken. He also stated that he understood Cocuzza to mean that he should not ask anyone for their fingerprints, which he did not do. He did concede that he did criminal checks on five employees, including Cocuzza.


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