New Jersey Public Safety Officers Law Blog

Christie Looking to Privatize State Jobs

Donald Barbati — Fri, 12 Mar 2010 12:16:16 -0500

As reported in the Trentonian on March 12, 2010, Governor Chris Christie is looking privatize State jobs. Yesterday, Governor Christie created a task force to look at ways to privatize State jobs to save money as he tries to find a plug for a projected $11 billion budget deficit for the 2011 fiscal year.

Christie signed an executive order creating the five-person group to look at “every aspect of the way government does business.” He said privatization could narrow the scope of public services provided by the State’s nearly 75,000 workers and increase efficiency. Christie also stated that he would have ordered the audit even if New Jersey was not in dire economic need. Privatizing jobs would inevitably mean layoffs for State workers, but Christie said he had not asked the task force to come back with a specific level of savings.

The creation of the task force comes just days after the new Republican Governor said he was wrong to think he could alter a deal Governor Corzine made with State workers that allowed them to keep pay raises and take furloughs in exchange for a no-layoff pledge. Democrats estimate that for every 1,000 workers laid off, the State would realize $30 million to $40 million in savings. However, according to Bob Master, spokesman for the Communications Workers of America District 1, privatization is a “failed tactic from the past that’s based on an ideological hostility to government.” Specifically, he indicated, “you get a real deterioration of services and you don’t save any money.”

Governor Christie’s potential privatization could have an enormous impact upon New Jersey Public Safety Officers. As such, please continue to check this blog periodically to ascertain updates regarding privatization and the workers it will affect.

Pension and Health Benefits Reform Introduced by Assembly

Donald Barbati — Mon, 01 Mar 2010 16:19:42 -0500

On Thursday, February 25, 2010, Assembly Speaker Sheila Oliver and Assembly Republican Leader Alex DeCroce announced bipartisan Assembly legislation to reform public worker pensions and health benefits has been introduced.

They also said additional legislation to target pension and benefit reforms at state authorities and agencies and to close a loophole that allows public employees to collect a full pension while collecting an additional public salary are being finalized and will soon also be introduced.

Oliver and DeCroce sponsored the bills introduced, but additional sponsors will soon be added. The following bills were introduced:

· A2461, which would:

o Limit pension system enrollment to new full-time employees who work at least 35 hours per week for the State or 32 hours for local government and schools;

o Base pensions for new police and firefighters on the three highest salary years rather than the highest single year;

o Impose a pensionable salary cap for new employees of the Police and Firemen’s Retirement System and the State Police Retirement System; and

o Repeal 2003 legislation that allowed a police or firefighter to retire at any age with 25 years of service credit on a special retirement allowance of 70 percent of final compensation.

· A2460, which would:

o Require all public employees to pay at least 1.5 percent of their salary toward health benefits after the expiration of a current contract;

o Require new state workers to work at least 35 per hours per week to qualify for health benefits; and

o Require all newly-hired employees to pay at least 1.5 percent of their base pension toward health benefits upon retirement.

· A2459, which would:

o Eliminate the sick leave injury program; and

· ACR115, which would:

o Ask voters during a November election to amend the State Constitution to eventually require the State to pay the full amount of its required pension fund contribution.

This legislation serves as a companion to the legislation that was recently introduced in the State Senate. As such, please continue to check this blog periodically to ascertain updates regarding the same as it has tremendous implications for New Jersey Public Safety Officers.

New Jersey Pension Reform Introduced

Donald Barbati — Tue, 09 Feb 2010 07:44:44 -0500

As reported in the Trentonian on February 9, 2010, legislation requiring public workers to assume a portion of their health benefits costs and providing relief to the State pension system has been introduced. The package of bills introduced follows vows by Democratic leaders in the State Senate to revisit pension reform recommendations made four years ago.

One bill requires state, local, and school district workers to contribute at least 1.5 percent of their salary toward their health care costs. Another caps at $15,000 the amount of unused sick time that can be cashed in at retirement. A third bill repeals the 9 percent pension benefit increase put in place in 2001 by changing the way pensions are calculated. The last bill in the package requires the State to make its annual payment to the pension system, not skip it or short it, as has been the custom in recent years.

Most of the proposals would affect new hires, not those already in the pension system. However, the measure requiring public workers to contribute toward their health care costs would take effect when their current contract expires. No figures were immediately available on the potential savings.

The pension system is underfunded by about $34 billion and is in danger of becoming insolvent unless fixes are made. The proposals were first made in 2006 after the Legislature met in special session to come up with ways to lower New Jersey’s property taxes, which average $7,045 a household and are the highest in the country. Pension and health care costs are major drivers of property taxes.

Former Governor Jon Corzine halted some of the legislative-driven reforms, arguing that they should be part of the collective bargaining process. The State’s Unions, which have long resisted pension reforms, supported Corzine’s position.

Other highlights of the bills include: (1) limiting enrollment in the pension system to those considered full time; (2) enrollment in a defined contribution plan for part-timers; (3) calculating pension benefits based on the 5 highest years of salary, instead of the 3 highest years, for future public workers, and basing benefits on the 3 highest years, instead of the highest year, for future State Police employees; and (4) allowing pension benefits based on one job, not multiple positions.

Please check this blog periodically to ascertain updates with regard to this proposed legislation. Were the bills ultimately passed, there is no doubt they would have a drastic effect on New Jersey Public Safety Officers.

Montclair Police Officer Responds to Fire Then Denied Accidental Disability

Donald Barbati — Thu, 28 Jan 2010 09:03:57 -0500

On January 27, 2010, the Appellate Division decided Gregory Russo v. Board of Trustees, Police and Firemen’s Retirement System, Docket No.: A-3706-08T2. In the case, Gregory Russo appealed from the March 10, 2009 final determination of the Board of Trustees of the Police and Firemen’s Retirement System (“Board”) denying his application for accidental disability benefits.

On November 29, 2001, during his first year as an officer for the Montclair Police Department, Russo was dispatched to the scene of a residential fire with three other officers. They entered the burning building, determined that there were four residents inside and escorted two children and an adult to safety from the first floor. They could hear a fourth person calling for help from the second floor and tried to reach him, but could not safely proceed upstairs because of the fire’s rapid advance. As they were attempting to rescue the fourth occupant, local fire department personnel entered the building and ordered the police officers to leave. The man on the second floor died as a result of the fire.

After being evacuated from the residence, Russo witnessed the fire department removing the fourth occupant’s body through a window and was verbally berated by the man’s family for not doing enough to rescue him. The officers were taken to the local emergency room to be treated for smoke inhalation and were released the following morning. As a result of this traumatic event, Russo was diagnosed with post-traumatic stress disorder.

The initial decision of an Administrative Law Judge (“ALJ”) who considered the matter, issued on November 6, 2008, found that Russo met the standard for receipt of accidental disability benefits. The ALJ found that Russo was eligible because he considered the reasonable person test to be “fully satisfied under the known facts of this case.” In contrast, the Board, although it adopted the ALJ’s factual findings, rejected the ALJ’s legal conclusions and denied Russo’s application. This appeal ensued.

The Appellate Division determined that it was constrained to agree with the Board in light of the substantial deference afforded to an administrative decision. According to the Court, none of the four officers who responded to the fire suffered any injuries beyond the smoke inhalation for which Russo was treated. Moreover, the Court noted that although the sight of the lifeless body of the fourth occupant of the burning building being removed was no doubt traumatic, police officers are trained to deal with injured and dead citizens under a multitude of horrific circumstances, including homicides, automobile accidents and natural disasters. Russo’s trauma was further compounded by being verbally berated by the surviving family members. However, the Court found that circumstance, in and of itself, does not constitute a traumatic event. Therefore, the Court agreed with the Board’s conclusion to deny Russo’s application for accidental disability retirement.

Denial of Accidental Disability for Mental Injury Sustained

Donald Barbati — Wed, 27 Jan 2010 08:02:23 -0500

On January 21, 2010, the Appellate Division decided In the Matter of Rosemarie Tatusko, Docket No.: A-2888-08T3. The case involved an appeal from a final decision of the Board of Trustees of the Police and Firemen’s Retirement System which denied Rosemarie Tatusko’s (“Appellant”) application for an accidental disability pension.

Appellant was employed by the Department of Corrections as a senior correctional officer at the Burlington County Jail. Her application for an accidental disability pension was based on an incident that occurred on Ocotber 22, 2005, when she assisted in saving a female inmate who had attempted to commit suicide. Appellant heard a “hacking gagging noise,” and when she scanned the prison cells to determine the source of this noise, she found the inmate hanging from a sheet in her cell. Appellant called another correctional officer to help her and the two of them were able to cut down the sheet with scissors and get the inmate to the floor. Appellant though at the moment that the inmate had died, but later found out that she had survived the attempted suicide.

At the time of the incident, Appellant had been a corrections officer for eight years. During that time, she had witnessed three other attempted suicides, two of which involved inmates cutting their wrists and the third of which also involved a hanging. Appellant did not experience any psychological problems after any of those three prior incidents. However, Appellant suffered a total and permanent psychological disability as a result of the October 22, 2005 incident. When Appellant was asked at the hearing on her application before an Administrative Law Judge (“ALJ”) how the October 22, 2005 incident differed from those prior incidents, she responded: “I don’t know. I can’t explain.”

The ALJ concluded that Appellant’s observations of the inmate’s attempted suicide and efforts to save her constituted a traumatic psychological event and, therefore, granted Appellant’s application. The Board rejected this recommended conclusion and determined that Appellant’s application should be denied because Appellant’s observation of the inmate’s attempted suicide and her subsequent efforts to save the inmate were not objectively capable of causing a reasonable corrections officer with training and experience similar to appellant to suffer a disabling mental injury. This appeal ensued.

The Appellate Division determined the Board correctly concluded that the determination whether a mental stressor was “objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury” should be made from the perspective of “a reasonable corrections officer with similar experience and training.” The Court also noted that the Board, which is composed partly of law enforcement officers, is in a better position than the Court to decide whether “a reasonable corrections officer with similar experience and training” could suffer a disabling mental injury as a result of the October 22, 2005 incident upon which Appellant based her claim for an accidental disability. As such, the Court affirmed the Board’s decision to deny Appellant’s application.

Settlement to Remove Senior Juvenile Detention Officer Enforced

Donald Barbati — Fri, 15 Jan 2010 11:30:02 -0500

On January 14, 2010, the Appellate Division decided In the Matter of Jerry Duckworth, Department of Youth Services, County of Passaic, Docket No.: A-6007-07T1. In the case, Jerry Duckworth appeals from a final decision of the New Jersey Department of Personnel, Merit System Board, dismissing his appeal of removal from employment. The Board adopted the findings and conclusions of an Administrative Law Judge (“ALJ”), determining that Duckworth had entered into an enforceable settlement agreement with his employer, the County of Passaic.

Duckworth was employed as a senior juvenile detention officer at the Passaic County Juvenile Detention Center. In 1990, he injured his back at work and required surgery to remove a herniated disc. The surgery left Duckworth suffering chronic low back pain. In 2002 and 2003, a physician engaged by Passaic County, examined Duckworth and diagnosed permanent back injury and a chronic foot drop. The physician reported to the County that, because of these medical conditions, Duckworth was not able to perform safely the duties of a juvenile detention officer and that he was at risk for re-injury.

To accommodate Duckworth’s disability, the County reassigned him to less rigorous duties in the laundry room of the detention center. About one and a half years later, Duckworth objected to this reassignment and sought a hearing before the Merit System Board. In 2006, the Board determined that the duties assigned to Duckworth were outside his job description and ordered the County to reassign him and also conduct a complete fitness for duty examination. The same physician examined Duckworth again in May 2006 and reiterated his prior conclusions.

The County gave notice to Duckworth of disciplinary action to remove him from his position because of unfitness for duty. After conducting departmental hearings, the County terminated his employment on December 6, 2006. Duckworth requested a hearing and also applied for disability retirement. Some months later, he withdrew his retirement application.

Pursuing his appeal, Duckworth appeared with his attorney for a hearing before an ALJ on January 9, 2008. The attorneys conferred and reached an agreement, which they reported to the ALJ as a settlement. No transcript was made on that date, but the ALJ discussed the terms of the settlement with counsel in the presence of Duckworth. The settlement required that the County support reinstatement of Duckworth’s disability retirement application in exchange for his dismissing the pending appeal.

The attorney for the County drafted a written settlement agreement and sent it to Duckworth’s attorney. When he received no response for several months despite several inquiries, he filed a motion before the ALJ to enforce the settlement. In the meantime, Duckworth re-submitted his application for disability retirement. In March and April 2008, he heard from the Division of Pensions and Benefits that the County had not responded to its requests for information relevant to his application.

On April 22, 2008, the parties appeared before the ALJ, Duckworth now accompanied by a different attorney from the same law firm. The County sought enforcement of the oral agreement it claimed had been reached on January 9. The County reported that Duckworth’s application had in fact been reinstated and would be considered as dating back to its original filing in December 2006. Duckworth’s attorney responded that no final settlement had been reached at the January hearing, that the County had not supported his retirement application as promised, that Duckworth refused to sign the written settlement agreement for that reason, and that Duckworth had changed his mind and wanted settlement to be contingent on the Division of Pensions and Benefits approving his disability retirement.

In May 2008, the ALJ issued a written decision, making detailed findings of fact regarding the January 9 session and the terms of the parties’ agreement. She stated that she was present during the resolution of the matter on that date and that approval of Duckworth’s pension application was not a condition of the agreement. Rather, the agreement required that “Duckworth would withdraw his request for a hearing and the [County] would do everything in its power to reinstate appellant’s application for accidental disability retirement benefits and support the application.” She found that the proposed written settlement agreement submitted by the County accurately represented the agreement of the parties, and she concluded that it should be reinforced.

On June 30, 2008, the Merit System Board accepted and adopted the written findings and conclusions of the ALJ and dismissed Duckworth’s appeal. This appeal ensued.

The Appellate Division affirmed the final decision of the Board and dismissed Duckworth’s appeal. The Court found substantial credible evidence in the record to support the finding of the ALJ that there was an enforceable settlement where, although there is no written settlement agreement, the ALJ recounted the essential terms of the settlement which was reached in her presence.

Lawsuit Alleges New Jersey Sergeant Promotional Exams are Badly Biased

Donald Barbati — Fri, 08 Jan 2010 09:58:51 -0500

As reported in the Trentonian on January 8, 2010, the United States Department of Justice filed a lawsuit against the State of New Jersey alleging that New Jersey’s widespread use of a written exam to promote police sergeants discriminates against blacks and Hispanics. The lawsuit, filed in federal court in Newark, accuses New Jersey of civil rights violations for using a written exam in which black and Hispanic candidates scored significantly and consistently lower than their white counterparts.

Moreover, according to the complaint, even when minority candidates passed the test, they were not promoted as often as white candidates because their scores were lower and promotions were granted first to those with the highest scores and most seniority. Significantly, the Department of Justice has not taken issue with using seniority as a factor for promotions. As such, the lawsuit seeks to stop New Jersey from continuing to use the exam and asks the court to order it to offer relief to officers “harmed” by the exam by extending them promotions, back pay and retroactive seniority.

Test scores from 2000 to 2008 reviewed by the Justice Department showed that 89 percent of the white candidates who took the exam passed, compared to 77 percent of Hispanics and 73 percent of black candidates. With the exception of the New Jersey State Police, most law enforcement agencies across the state use the exam.

“This complaint should send a clear message to all public employers that employment practices with unlawful discriminatory impact on account of race or national origin will not be tolerated,” said Thomas Perez, Assistant Attorney General for the Civil Rights Division. “The Justice Department will take all necessary action to ensure that such discriminatory practices are eliminated and that the victims of such practices are made whole.”

In a similar case, a federal judge in July sided with the Justice Department in ruling that New York City had discriminated against minorities in its hiring of firefighters, causing blacks and Hispanics to comprise only 10 percent of the fire department’s work force, even though most city residents are minorities.

Irvington Township Police Officer Terminated

Donald Barbati — Tue, 05 Jan 2010 15:31:02 -0500

On December 24, 2009, the Appellate Division decided In the Matter of Eugene I. Otto, Police Department, Township of Irvington, Docket No.: A-1112-08T3. In the case, Eugene Otto appealed from a final decision of the Civil Service Commission finding that his removal as a member of the Irvington Police Department was justified and dismissing his appeal.

On February 1, 2006, Otto was served with fifteen separate disciplinary charges for violating various provisions of the Irvington Police Manual. Various offenses were alleged, including withholding information, failing to perform his duties, insubordination, using derogatory terms, and being untruthful. Following a departmental hearing, all the charges were sustained, and Otto was removed from the force.

Otto appealed to the Merit System Board, now known as the Civil Service Commission, and a hearing was held before an administrative law judge who sustained the following charges: one count of conduct unbecoming a public employee, two counts of being untruthful, and one count of using derogatory terms. The administrative law judge also concluded that there was insufficient evidence to sustain the remaining charges and they were dismissed. He also concluded that the charge of using derogatory language was not of sufficient import to warrant significant discipline, but the remaining charges constituted “mutinous and disruptive behavior” that, in light of Otto’s disciplinary hearing, warranted his dismissal from the force. The Civil Service Commission agreed. This appeal followed.

On appeal, Otto contended that the charges against him should have been dismissed as untimely, that certain evidence was insufficient to support the charges against him, and that the punishment of dismissal was arbitrary and capricious. The Appellate Division found: (1) the disciplinary charges were timely filed within 45 days of the prosecutor’s office advising the township that it had determined that Otto’s statements were not truthful; (2) Otto’s actions constituted conduct unbecoming a public employee; (3) Otto’s charges that that department chief had deliberately shirked his responsibilities and acted out of improper racial motivations was not protected speech and therefore was not speech for which he could not be disciplined; and (4) the sanction of removal was not unduly severe give Otto’s disciplinary record and the gravity of the offenses. As such, the Court affirmed the Civil Service Commission’s decision.

Termination of Corrections Officer Sustained

Donald Barbati — Wed, 23 Dec 2009 08:04:53 -0500

On December 21, 2009, the Appellate Division decidedIn the Matter of Edwin Garcia, Department of Corrections Hudson County, Docket No.: A-1404-08T3. In the case, Edwin Garcia appeals from the final administrative action of the Civil Service Commission, terminating his employment as a corrections officer with the Hudson County Department of Corrections.

At issue were two disciplinary matters. In the first, the County maintained that Garcia failed to include in a report the fact that another officer had lunged at a handcuffed inmate and grabbed the inmate’s shirt. As a result, the County charged Garcia with insubordination, conduct unbecoming a public employee, neglect of duty, and other sufficient cause. In the second disciplinary matter, the County asserted that, while involved in an incident with an inmate, Garcia used excessive force despite being ordered numerous times to cease. For this incident, Garcia was charged with conduct unbecoming a public employee, neglect of duty, and other sufficient cause. The County sought to terminate Garcia’s employment.

The County held a hearing on the disciplinary charges on March 2, and April 4, 2007, wherein the hearing officer sustained the charges. A final notice of disciplinary action terminating Garcia’s employment was issued on June 7, 2007. Garcia appealed the decision to the Civil Service Commission and a hearing was held before an Administrative Law Judge.

The ALJ sustained both charges, finding, with respect to the first incident, that “Garcia submitted a report omitting the use of excessive force on an inmate” and, with respect to the second incident, that “Garcia used excessive force to subdue inmate E.B. by striking him, although ordered to desist by superior officers.” In the Initial Decision, the ALJ concluded that Garcia had committed conduct unbecoming a public employee, neglect of duty, and insubordination. In light of Garcia’s prior record and the nature of these offenses, the ALJ imposed the sanction of removal. The Commission, in its independent evaluation of the record, concluded that the removal was justified. This appeal ensued.

On appeal, Garcia argued the findings of the Commission were not justified and the sanction of removal was arbitrary and capricious. The Appellate Division affirmed Garcia’s termination. Specifically, the Court found that there was substantial credible evidence supporting the findings of the ALJ and the conclusions reached by the Commission. The Court also determined the sanction of termination for the infractions is not unreasonable or disproportionate in light of the offenses, particularly when viewed in conjunction with Garcia’s prior disciplinary record.

Correction Officer Shoots Alleged Armed Robber

Donald Barbati — Fri, 11 Dec 2009 11:12:04 -0500

On December 7, 2009, New Jersey State Correction Officer Darrell Kornegay was walking to his car after buying food at a restaurant on Springfield Avenue in Irvington Township, one of the township’s main drags, when he was attacked close to 9:00 p.m. A masked man carrying a handgun, later identified as Raymon Scott, stopped Officer Kornegay, demanding money and car keys. After Kornegay said he was a corrections officer, Scott opened fire and ran.

According to State officials, Kornegay carries a handgun when off duty and fired at Scott, hitting him several times. Scott then entered a vehicle that later dropped him off at East Orange General Hospital. Thereafter, Scott was charged with attempted murder, aggravated assault, unlawful possession of a weapon, possession of a weapon for an unlawful purpose, and robbery.

Officer Kornegay is a 17 year veteran at Northern State Prison in Newark. This incident illustrates the dangers that public safety officers face not only during the course of their employment, but outside of it. It also shows how public safety officers try to ensure public safety whether on duty or off. Please check this blog periodically to ascertain updates regarding this incident as an investigation by the Attorney General’s office is underway.

SID Union Accuses NJDOC of Preventing, Blocking Prison Investigations

Donald Barbati — Tue, 01 Dec 2009 10:07:56 -0500

As reported in the Star-Ledger on November 26, 2009, according to a lawsuit filed by the union representing prison investigators, senior officials at the Department of Corrections are illegally blocking internal investigations into bribery, cell phone smuggling and gang activity. In short, the lawsuit alleges that Correction officials shut down ongoing probes or prevented investigations from even beginning.

For example, the lawsuit alleges that investigators were told not to examine whether a prison employee was hiding a cell phone, or if an inmate had “put out a hit” on people outside the prison system. Other alleged spike investigations included probes into prison employees who fired service weapons, once during an alleged off-duty bar fight. Allegedly, both files were marked “no action taken” by senior officials.

The union, Fraternal Order of Police Lodge 174, represents about 90 officers within the Department of Corrections’ Special Investigations Division. The union has previously clashed with the Department’s leadership on issues of tactics and resources.

The Special Investigations Division has been controversial for its dual role in probing gang activity and handling internal affairs. Officials inside and outside of the Division say its dual role creates distrust within the Department.

Spokespeople for the Department of Corrections and the Attorney General declined to comment on the pending lawsuit. Please check this blog periodically to ascertain updates regarding this lawsuit as the same become available.

New IRS Regulations Extended Again

Donald Barbati — Mon, 09 Nov 2009 08:32:09 -0500

After much concern regarding the new Treasury Regulations promulgated by the Internal Revenue Service (“IRS”) and their potential impact on members of government pensions plans, the IRS and the Department of Treasury extended the date by which a government plan must comply with final regulations on distributions from a pension plan upon attainment of normal retirement age. Under the extension, the new regulations will be effective for a governmental plan for plan years beginning on or after January 1, 2013.

As described in three previous blog entries, the IRS modified Treasury Regulation §1.401(a)-1 to provide an exception to the rule that pension benefits be paid only after retirement by permitting a pension plan to commence payment of retirement benefits to a participant after the participant has attained normal retirement age even if the participant has not yet had a severance from employment with the employer maintaining the plan.

The new regulations also require a pension plan’s normal retirement age to be an age that is not earlier than the earliest age that is reasonably representative of the typical retirement age for the industry in which the covered workforce is employed. In the case of a retirement plan where substantially all of the participants are qualified public safety officers, a normal retirement age of age 50 or later is deemed not to be earlier than the earliest age that is reasonably representative of the typical retirement age for the industry in which the covered workforce is employed.

Notice 2007-69, which provided temporary relief of certain plans that may have to change their definitions of normal retirement age to satisfy the new regulations, indicated that the new regulations do not contain a safe harbor or other guidance with respect to a normal retirement age conditioned on the completion of a stated number years of service. The notice requested comments on whether and how a pension plan with a normal retirement age conditioned on the completion of a stated number of years of service satisfies the requirement in §1.401(a)-1 that a pension plan be maintained primarily to provide for the payment of definitely determinable benefits after retirement or attainment of normal retirement age and how such a plan satisfies the pre-ERISA vesting rules.

Although the implementation of the new regulations has been delayed, it is critical to keep apprised of the comments regarding whether a pension plan with a normal retirement age conditioned on the completion of a stated number of years of service satisfies the new regulations. Clearly, the resolution of this issue could drastically impact many public safety officers not only in New Jersey, but across the country. Please be sure to check this blog periodically as updates regarding these regulations will be posted as more information becomes available.

Civil Service Commission's Denial of Appeal Upheld

Donald Barbati — Wed, 04 Nov 2009 11:49:23 -0500

On November 4, 2009, the Appellate Division decided In the Matter of Michael Curtin, Battalion Fire Chief (PM3593G), Elizabeth, Docket No.: A-4861-07T2. In the case, Michael Curtin appealed from the decision of the former Merit System Board (“Board”), now the New Jersey Civil Service Commission (“Commission”), denying his appeal of the scoring of his promotional examination as well as the Commission’s decision again denying the appeal following remand for consideration of supplemental information.

Curtin is employed by the Elizabeth Fire Department with the rank of captain. He took the Department of Personnel’s examination for the position of battalion fire chief, and received an overall score of 89.270. He was ranked third on the eligible list. He appealed the scoring of the oral portions of the examination to the Board. In a five-page decision dated October 11, 2007, the Board denied the appeal.

Curtis appealed to the Appellate Division. On April 14, 2009, in response to Curtin’s motion to supplement the record, the Appellate Division remanded the matter temporarily to the Commission, which had replaced the Board as of June 30, 2008, for consideration of the arguments raised in Curtin’s motion. Following its review of Curtin’s additional arguments and documents, the Commission issued its remand decision on August 20, 2009, again denying the appeal. As a result, the Court permitted Curtin to supplement his brief on appeal.

The Appellate Division noted that the burden is on a petitioner, not the Commission, when challenging the administration and scoring of examination. Moreover, when reviewing examinations, the Commission shall decide any appeal on the written record or such other proceeding as the Board deems appropriate. Finally, the Court indicated that courts should defer to an agency’s grading of a civil service examination except in the most exceptional of circumstances that disclose a clear abuse of discretion.

Applying these principles, the Court was satisfied that the Commission’s decision on the remand was not arbitrary, capricious, or unreasonable. The Commission duly re-evaluated the Board’s original decision in light of Curtin’s additional arguments and explained its reasons for disagreeing with his position. Moreover, the Court noted that it was not its role to second-guess the Commission with respect to the scoring of civil service examination and this case does not present “the most exceptional of circumstances that disclose a clear abuse of discretion” warranting such interference.

Grievance Arbitration Award Affirmed

Donald Barbati — Thu, 22 Oct 2009 11:28:51 -0500

On October 21, 2009, the Appellate Division decided Township of Irvington v. Irvington P.B.A. Local 29, Docket No.: A-0152-08T1. In the case, the Township of Irvington appealed from Law Division orders of April 13, 2007 and July 25, 2008 that respectively confirmed an arbitration award and supplemental arbitration award rendered in arbitration proceedings resulting from grievances filed by Irvington PBA Local 29 and Irvington Superior Officers Association (hereinafter “unions”).

In December 2003, Township officials notified all salaried Township employees that in the upcoming year, instead of their annual salaries being divided by twenty-six, they would be divided by twenty-seven and be paid in twenty-seven biweekly pay periods. Of course, each paycheck would be smaller than if the twenty-six pay period schedule was followed. After some objections and discussions, the Township changed its position. Employees would be paid in twenty-six pay periods, and their annual salaries would be divided by twenty-six, but some of the mid-year pay dates would be adjusted so the pay periods were longer than fourteen days.

On July 30, 2004, the unions filed a grievance claiming that the Township’s adjustment to the four pay dates violated the terms of their collective bargaining agreements. The unions requested that the Township refrain from adjusting the payroll dates, or else pay all union members the eighty “unpaid” hours at the overtime rate of time and one half. After going through all of the required procedural steps for a grievance, the matter was presented to Arbitrator Gerard Restaino.

In his initial award, Arbitrator Restaino required the Township to pay the employees represented by the unions for an additional two-week pay period in 2004. The trial court affirmed the award, but remanded the matter to Arbitrator Restaino for further consideration of the remedy, namely the manner in which the Township would be required to pay the award, in light of the Township’s claim that payment of the total amount required would cause it a severe adverse financial impact. In a supplemental award, the arbitrator modified the remedy to lessen the fiscal impact on the Township. This appeal ensued.

In its brief, the Township argued: (1) the initial award should not have been confirmed because the arbitrator exceeded his authority by disregarding the clear terms of the parties’ collective bargaining agreements; and (2) the supplemental award should not have been confirmed because the arbitrator did not adequately consider the fiscal impact on the Township, and because the court incorrectly ruled as a matter of law that it lacked authority to determine the public policy impact of the award. The unions disputed the arguments raised by the Township, and further argued that the supplemental award was properly confirmed because the Township’s motion to vacate it was untimely.

At oral argument, the Township withdrew argument (1) described above, and advised the Court that it was limiting its argument to the fiscal impact issue. The Appellate Division, after considering the same, affirmed the determination of the trial court. After a thorough review of the record, the Court was satisfied that the trial court did not err in finding that the arbitrator sufficiently considered and addressed the fiscal impact issue in rendering his supplemental award. As a result, the Court found the award was properly confirmed.

Denial of Accidental Disability Retirement Application Upheld

Donald Barbati — Tue, 13 Oct 2009 13:16:02 -0500

On October 13, 2009, the Appellate Division decided Raymond Joseph Foster, III v. Board of Trustees, Police and Firemen’s Retirement System, Docket No.: A-5666-07T2. In the case, Raymond Joseph Foster, III, a member of the Police and Firemen’s Retirement System (“PFRS”), appealed from the final decision of the Board of Trustees (“Board”), upholding the May 5, 2008 initial decision of Administrative Law Judge (“ALJ”) Jeff Masin, finding that Foster “has failed to meet his burden to prove that the total and permanent disability from which he suffers is the direct result of the injuries received in the traumatic event [Foster suffered on March 5, 2002].”

Foster started working as a Bordentown Township police officer in February 1998. On March 5, 2002 at 9:51 p.m., Foster was injured in a motor vehicle accident, while working as a police officer. The police report indicated that it was a one-vehicle accident. Foster was responding to the ACME supermarket. As he entered the parking lot, he turned right, but missed the entrance and struck a light pole to the left of the entrance. At the time, Foster was thirty-seven years old.

More than four years later, in September 2006, Foster stopped working. According to Foster, he could no longer tolerate the pain, which had become more constant and excruciating. It was undisputed that Foster was totally and permanently disabled and unable to perform his work duties. Thereafter, Foster applied to the Board for accidental disability retirement benefits. The Board denied the application on the grounds that Foster’s disability was not a direct result of the automobile accident, thus he did not qualify for accidental disability benefits.

Foster challenged that decision. The matter was transferred to the Office of Administrative Law as a contested case. After hearings were conducted, ALJ Masin found that Foster’s application should be denied, concluding that Foster’s present disability was not the direct result of the accident. This appeal ensued.

On appeal, Foster contended that the decision of ALJ Masin and the Board was not supported by the evidence. The Appellate Division disagreed. Based on its review of the record, the Court found that the Board’s findings were supported by the appropriate proofs and, therefore, its decision was supported by sufficient credible evidence on the record as a whole. As such, the Board’s decision was affirmed.

Promotional Examination Results Remanded in Light of USERRA

Donald Barbati — Mon, 12 Oct 2009 09:49:59 -0500

On October 5, 2009, the Appellate Division decided In the Matter of John Fasanella, Docket No.: A-4455-07T1. In the case, John Fasanella, a sheriff’s officer in Mercer County, appealed a decision of the Merit System Board (“Board”) upholding adverse administrative determinations regarding a promotional examination for lieutenant.

The promotional examination for lieutenant was announced with a closing date of December 21, 2004. Fasanella was one of the nine individuals who applied for and were admitted to that examination. The examination was conducted in written form on June 9, 2005, however, Fasanella, who was on active military duty from May 12, 2004 to June 25, 2006, was unavailable to take the examination on the date it was given.

The June 9, 2005 examination resulted in a four-name eligibles list, promulgated on September 29, 2005, with an expiration date of September 28, 2008. The first-ranked person on that list, a non-veteran, was appointed effective December 1, 2005.

On July 24, 2006, shortly after Fasanella’s return from active military duty, the Department of Military and Veterans Affairs granted his application for veteran’s status. He made several requests of the Department of Personnel (“DOP”) to schedule his make-up examination for the lieutenant position. His examination occurred in June 2007. A memorandum from DOP, dated September 10, 2007, noted an “employment list change” with Fasanella ranked first on the list with veteran’s status. An October 15, 2007 memorandum from the Sheriff’s Office to Fasanella advised that the ranking had been modified as “for future certifications only.” Fasanella promptly filed his internal appeal from the latter determination.

Subsequently, DOP notified Fasanella that his veteran’s status designation had been incorrect and that the eligibles list had been corrected to reflect his rank on the then-existing list as “A1 non-veteran.” Fasanella appealed that decision.

In considering the issues raised in the two appeals, the Board rejected Fasanella’s contention that he was entitled to the lieutenant appointment because he was, ultimately, first on the eligibles list and had veteran’s status. The Board determined that Fasanella did not qualify for veteran’s status at the time the list was certified. The Board also decided that the latitude conferred on the appointing authority by operation of the “rule of three” validated the appointment of the person who had been designated, notwithstanding that he was second on the list after Fasanella’s name had been added. This appeal ensued.

On appeal, Fasanella argues that: (1) the eligible list resulting from the initial examination should have been conditional pending his return from the active military service; (2) his name should have been added to the eligibles list as first-ranked following the result of the make-up examination; and (3) he was entitled to veteran’s status in that listing.

The Appellate Division agreed with the Board that Fasanella was not entitled to veteran’s status on the eligibles list since when he qualified for the examination, Fasanella had not yet engaged in his active military service. However, the Court remanded this matter to the Board for a determination of Fasanella’s rights in light of the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). On remand, the Board must determine what the promotions result would have been or should have been if the choice had been properly made from the superseding list on which Fasanella’s name appeared as first-ranked, without veteran’s status, subject to the rule of three.

Possible Move of Juvenile Inmates to Adult Prisons

Donald Barbati — Fri, 02 Oct 2009 10:19:31 -0500

According to an article published in the Trentonian on October 1, 2009, plans are in the works to put New Jersey’s most troublesome juvenile inmates in the custody of the adult prison system. This move, in turn, could potentially take the Juvenile Justice Commission (“JJC”) out of the incarceration business. In connection with this move, sources indicated that some JJC guards and teachers have been transferred back to adult prisons.

The article stated the JJC has stressed rehabilitation over punishment since it was formed in 1995 to take criminal children from the custody of the juvenile wing of New Jersey’s Department of Corrections. Recently, however, many guards in the JJC have complained about being attacked and injured by the increasing number of young gang members.

Under the plan being talked about in the Governor’s office, the JJC will continue to be part of state government, supervising group homes, halfway houses and other programs for keeping convicted juveniles out of prison. According to various sources, up to 80 percent of New Jersey’s juvenile offenders are doing well in the JJC system of not locking up most convicted teenage offenders. The sources also stated the New Jersey Department of Corrections’ Commissioner George Hayman has checked out the Johnstone State Mental Complex Facility in Bordentown to see if it can handle some of the overflow of inmates stemming from the JJC policy change as well as the closure of Riverfront State Prison in Camden.

Please check this blog periodically to ascertain any updates with regard to this new policy. To view the article published by the Trentonian in its entirety, please click on the following link.

Four New Jersey Police Officers Shot

Donald Barbati — Thu, 24 Sep 2009 08:06:10 -0500

Illustrating the potential dangers New Jersey Public Safety Officers encounter on a daily basis, gunfire erupted as a police tactical squad executed a no-knock search warrant in Lakewood on September 23, 2009, leaving four officers and a suspect shot. The incident was reported by the Associated Press in an article on September 24, 2009.

One Lakewood police officer who was shot in the face and another who was shot in the foot were taken to the hospital, Deputy Chief Michael Mohel of the Ocean County Prosecutor’s Office said. Two others sustained minor injuries when they were struck in their bulletproof vests. The suspect, Jamie Gonzalez, 39, was taken to this hospital with multiple gunshot wounds. There was no word on their conditions and the names of the officers have not been released.

Police had planned to search the home for narcotics and weapons. The shooting comes more than two months after Jersey City Police Detective Marc DiNardo was shot in the face storming an apartment where two armed robbery suspects were holed up. Four other officers were wounded in the gun battle and the suspects were killed. DiNardo was taken off life support and pronounced dead one day before his 38^th birthday.

To view the article in its entirety, please click on the following link.

Federal Monitoring of New Jersey State Police Ends

Donald Barbati — Tue, 22 Sep 2009 08:54:08 -0500

As reported in the Trentonian on September 22, 2009, federal oversight of the New Jersey State Police has come to an end. U.S. District Court Judge Mary L. Cooper has ended federal monitoring of the New Jersey State Police more than 10 years after the shooting of unarmed minority men during a highway traffic stop prompted intervention over racial profiling.

Judge Cooper signed the order dissolving a consent decree, following a joint motion filed in August by the State and U.S. Justice Department. The move followed Governor Jon Corzine’s bill signing in August that established an office within the State Attorney General’s office to oversee the State Police.

State Police agreed to federal oversight after troopers on the New Jersey Turnpike shot at a van containing four minority men during a 1998 traffic stop, wounding three of them. The agency has implemented major changes since then, including training and new supervisory policies to monitor road stops. In addition, trooper vehicles now contain dashboard cameras to videotape traffic stops.

In a 2007 semiannual report, federal monitor Jim Ginger said that the State Police force is a different organization than when troopers fired on the van. Ginger and a second monitor tracked troopers’ stops of minority motorists for years, issuing reports every six months. The monitors found the State Police consistently in compliance for several years before the judge lifted the order. Corzine confirmed the finding with an independent review.

David Jones, President of the State Police Fraternal Association, commended the troopers but condemned the Attorney General’s office for not having policies and systems in place that would have allowed the State Police to identify and resolve isolated incidents of profiling. Specifically, Jones stated, “Former attorneys general for their own political expediency were willing to throw the state police under the bus…a decade later, we can look back at who the true professionals are and at those people who would sacrifice public safety for their own careers.”

To view the article in its entirety, please click on the following link.

Illicit Cell Phone Crackdown, New Measures Unveiled

Donald Barbati — Wed, 16 Sep 2009 11:57:55 -0500

A previous entry to this blog focused upon the presence of illicit cell phones in prisons. In the entry, it was explained how illicit cell phones remain a major problem inside New Jersey’s prisons, as inmates use the devices to secretly communicate with each other, intimidate witnesses and direct drug deals and other illegal activity.

On September 16, 2009, the Trentonian reported that New Jersey Attorney General Anne Milgram is now utilizing sniffing dogs and orifice scanners to address the problem. Recently, twenty-five convicts from five different gangs and 10 other New Jersey prison inmates have been indicted for possession of cell phones.

Attorney General Milgram announced the indictments at a press conference in which police dogs demonstrated their ability to sniff out hidden phones and authorities unveiled a new cell detection device called the BOSS, for “Bodily Orifice Security Scanner.” The BOSS is a device for looking into a body like and x-ray machine or airport surveillance equipment that can see hidden items. The scanner is within a chair that inmates sit in to be checked for contraband.

Prison officers and others in New Jersey are concerned that the gangs which overpopulate state prisons are trying to run the prisons at the same time they try to call the shots for other gang members still on the outside. “Safety and security both inside and outside the prison walls are paramount to our mission,” said New Jersey Department of Corrections Commissioner George W. Hayman. “Illegal cell phones potentially provide the offender population with an opportunity to compromise public safety. This cannot and will not be allowed to happen, and we will continue to utilize aggressive, proactive measures in our efforts to protect law-abiding citizens.”

Attorney General Milgram stated that between August 2008 and July 2009, New Jersey Corrections Officers seized 391 cell phones from inmates. She also noted that the gang population in New Jersey prisons keeps escalating because of all the recent arrests of gang members, almost 2,000 in the last 13 months.

To read the article in its entirety, please click on the following link.