The case addressed whether Henderson was entitled to accidental disability retirement benefits based upon two (2) separate work-related incidents. Notably, it was undisputed that the first incident causing Henderson injury constituted a “traumatic event.” After initially becoming injured, Henderson was unable to work for some period of time, returned to light duty for a while, and then, ultimately, returned to full duty. The injury was then aggravated and accelerated by a second incident in which Henderson attempted to perform an ordinary task within the scope of his duties and responsibilities of employment.
The Board initially denied Henderson’s application for accidental disability retirement benefits. To support the denial, the Board determined that the second accident did not constitute a “traumatic event” within the meaning of the applicable case law. The Board also found that the injury originally suffered by Henderson in the first incident constituted a “pre-existing disease or condition,” thereby precluding him from receiving said benefits. This appeal ensued.
On appeal, Henderson argued that: (1) the second incident constituted a “traumatic event” within the meaning of the applicable case law; and (2) the term “pre-existing disease or condition” was never intended to include injuries suffered in prior traumatic events for purposes of whether an individual qualifies for accidental benefits.
In its decision, the Appellate Division agreed with the Board’s initial determination that the second incident did not constitute a traumatic event within the meaning of the applicable law. Significantly, however, the Court agreed with our contention that the term “pre-existing disease or condition” does not include injuries suffered in prior traumatic events. Rather, the Court found that term has been uniformly applied to bodily diseases or conditions that were not caused by a traumatic event. The Court cited a litany of case law to support this contention and articulated that the Board’s suggestion that the injuries resulting from the original traumatic event and their sequelae should be treated as pre-existing diseases or conditions is utterly inconsistent with the applicable law.
The Court found that Henderson’s case was simply a delayed manifestation case. Simply put, the Court determined that Henderson suffered a traumatic injury in 2003 that was the proximate cause of the delayed manifestation of his total permanent disability and, therefore, entitled to receive accidental disability retirement benefits. As such, the Board’s original determination was reversed and the case was remanded with instructions to award Henderson the benefits.
The Henderson ruling is significant in the realm of public pension law. Notably, New Jersey courts have finally clarified that injuries suffered by claimants in previous traumatic events do not constitute a “pre-existing disease or condition.” In many cases, the various pension boards characterized injuries suffered by claimants in previous traumatic events as “pre-existing conditions,” thereby precluding these persons from receive accidental disability benefits if they returned to work after the original injuries. In other words, many people were hurt on the job and returned to their employment, only to have their injuries aggravated which, in turn, ultimately disabled them. Prior to this ruling, they would not receive accidental disability retirement benefits. Now, under the current law, claimants can receive these benefits even after returning to work.
The Asbury Park Press published an article in today's Sunday edition addressing the ability of The State of New Jersey to honor its pension obligations to those public employees that have been paying into the retirement system since the start of their public employment . The article, entitled "Can New Jersey Keep its Pension Promises?" unfortunately reiterated the same information that we have been hearing for the last several years.......The Pension System is Broke.
The article stated that as of June, 2009, the state's pension system faced unpaid liabilities in the amount of $45.8 billion dollars. However, this is assuming that the state receives an annual 8.25% return on its pension investments. At this point in time, everyone is aware that the State hasn't seen 8.25% for several years now. Furthermore, many studies have demonstrated that the unfunded liability of $45.8 billion is a conservative estimate and the true unfunded liability is more along the lines of $173.9 billion, with unfunded health care costs reaching $55 billion dollars. Eileen Norcross, a George Mason University researcher has been quoted as stating, "It's mathematically impossible to pay this out. It's too large."
However, despite the fact that the public employment pension system is in dire straits, Governor Christie, has made the decision to "skip" the state's 2010 $3billion dollar pension payment. In reviewing the administration's decision to forgo the payment, one has to question if the Christie administration has already given up on attempting to save the state pension system and the countless amount of money that has been withheld from public employee's paychecks on a weekly basis since the inception of the system. I bet many of you who are reading this article would like to skip a few pension payments or take a "pension holiday" the way that the state, county and local governments have over the last sever years.
A year or two ago, myself and other attorneys representing public employee labor unions filed suit against the State of New Jersey for failing to fund the State Employee Pension Systems. An argument was made that the state had a constitution mandate or obligation to fund the pension system. Unfortunately all of the suits were dismissed under the notion that the state had very broad discretion in making decisions on how to appropriate funds concerning fiscal obligations. However, the court did leave the door open and stated that a suit would be entertained if pension recipients did not receive payment due to the state's inability to pay. With that being said, one has to ask the question: "Wont it be to late at that point in time?"
We will continue to follow this issue on this blog. You, the public employees of the State of New Jersey, and retired public employees of the state of New Jersey need to take affirmative steps to attempt to revive your retirement system. If you do not take immediate affirmative steps to protect your retirement income, unfortunately, it appears as if it will be lost due to government irresponsibility and mismanagement.
On May 5, 2006, the Department served a Preliminary Notice of Disciplinary Action on Dickerson charging him with: (1) incompetency, inefficiency or failure to perform duties; (2) insubordination; (3) conduct unbecoming an employee; and (4) neglect of duty. These charges stemmed from Dickerson’s failure to satisfy mandatory training requirements and to obtain permission for his outside employment, as well as his arrest in Tuxedo, New York for various motor vehicle violations and criminal possession of a firearm.
Following a departmental hearing, Dickerson received a Final Notice of Disciplinary Action on July 19, 2006, finding him guilty of the charges and ordering his removal from office effective immediately. Dickerson contested the decision and requested a hearing before the Office of Administrative Law. That hearing was held on January 2 and March 12, 2008, before an Administrative Law Judge (“ALJ”).
After the hearings, the ALJ determined that the Department failed to sustain its burden in sustaining the charges against Dickerson with the exception of conduct unbecoming a public employee by driving a motor vehicle while unlicensed. However, given Dickerson’s extensive prior disciplinary history, the ALJ ordered that Dickerson be fined 90 working days’ pay.
The Commission, upon its de novo review of the record, disagreed with the ALJ’s decision and upheld the Department’s decision to terminate Dickerson’s employment. This appeal followed.
On appeal, Dickerson argued that the Commission erred in failing to affirm the decision of the ALJ. Specifically, Dickerson contended that the Commission imposed an improper standard of review when it stated that it did not “agree” with the ALJ’s determination. Rather, Dickerson argued the Commission has the authority to modify or reverse the decision of the ALJ if the decision was not supported by credible evidence in the record or was otherwise arbitrary.
After considering Dickerson’s arguments, the Appellate Division affirmed the Commission’s determination and sustained the removal. The Court found the Commission’s decision comported with the applicable law regarding the review of ALJ decisions and was supported by sufficient credible evidence in the record. Specifically, the Court found, in rejecting and modifying the ALJ’s findings and conclusions, the Commission stated with particularity the reasons for doing so and made new findings supported by competent and credible evidence in the record.
Mayfield was charged with violations of Atlantic City Police Department Rules and Regulations relating to a domestic dispute involving J.M., who is deaf. In the early morning hours on April 1, 2006, J.M. sought help from police complaining that she was assaulted by her boyfriend, Mayfield. She was bruised and beaten by Mayfield because he thought she was communicating on the computer with an old boyfriend. Mayfield punched her in the face and threatened to hang himself if she left him. That night J.M. was distraught, upset and scared. She was treated in the hospital and photographed.
J.M. eventually dismissed her municipal court charges against Mayfield. She refused to testify at the administrative hearing because Mayfield is the father of her child and they resided together. She was arrested and forced to appear at the administrative hearing. At the hearing, she was defiant and appeared distraught, upset and scared.
During the investigation, Mayfield said that on the night in question he was with Rodney Jamal Armstrong and Ali Cottrell. Mayfield told the investigating detective that when they arrived at his house, J.M. said she was hit by a boot thrown by Mayfield’s son. Armstrong testified he was at a club with Cottrell, but not Mayfield. Armstrong said Mayfield called him telling him and Cottrell about the boot.
The Administrative Law Judge disbelieved the testimony from J.M. that she was struck by a boot. The injuries were not consistent with being struck by a boot, and it was clear to the ALJ that J.M. did not want to contribute to the case against Mayfield. The ALJ found that Mayfield was untruthful by attempting to create an alibi and blame his son. As such, the ALJ found Mayfield assaulted J.M. and was untruthful in his response to the investigation. The Commission adopted the findings of fact made by the ALJ and found the termination of Mayfield as a police officer was justified. This appeal ensued.
On appeal, Mayfield contended the administrative decision was not based on legally competent evidence and that, even if the record supports a finding of guilt, his termination was not in accordance with the principles of progressive discipline. The Appellate Division rejected his arguments and affirmed his termination. Specifically, the Court found that Mayfield failed to demonstrate that the ALJ’s decision was arbitrary, capricious or unreasonable. Moreover, the Court agreed with the ALJ that Mayfield’s offenses in this case were severe enough to warrant his removal despite lack of a substantial prior disciplinary history.
Sottilare, after more than ten years as a corrections officer, received four preliminary notices of disciplinary action arising from events commencing on November 30, 2005 and continuing through December 23, 2005. The final incident resulted in his termination.
While on leave due to an on-the-job injury, Sottilare was videotaped working at a construction site in contravention of Hudson County’s policy requiring persons on leave to remain at home unless they are receiving medical care or purchasing medication. A disciplinary charge of malingering issued as a result. Shortly thereafter, on December 23, 2005, Sottilare made a telephone call to the New Jersey Policemen’s Benevolent Association Local 109 office in order to obtain legal representation for the hearing scheduled on the malingering charge and to request a postponement. Officer Shaara Marie Green, then the Vice President of PBA Local 109, answered the phone call.
When Green testified before the Office of Administrative Law, she said she told Sottilare that the union could not provide him with legal representation because the Internal Affairs Unit (“IAU”) officers were no longer members. Sottilare had been assigned to IAU since 1995 or 1996. Green also told Sottialre to obtain his own attorney, and gave him the name of the person that his attorney should contact in order to request the postponement.
Green also testified that after she told Sottialre that PBA Local 109 could not provide him with counsel, Sottilare informed her that she was under investigation by IAU. Sottialre explained to Green that surveillance was being initiated because she was reportedly living with an ex-inmate in violation of departmental policy.
Green immediately telephoned Ricardo Alves, Sottilare’s supervisor at IAU, to report the conversation. When Alves testified, he confirmed that he received a call from Green about the complaint that had been filed against her and that Sottilare had told her that she was the subject of an IAU investigation. Deputy Warden David Krusznis confirmed that Green was being investigated and said that disclosure of the existence of a pending IAU investigation is a violation of departmental policies and procedures, as well as of guidelines promulgated by the Office of the Attorney General.
After considering all the available testimony, which included testimony by Sottilare refuting Green’s version of events, the Administrative Law Judge (“ALJ”) found Green to be more believable, persuasive, and more credible than Sottilare. Based on this testimony, the ALJ found Sottilare disclosed a pending investigation. Since this was a serious violation of his job responsibilities, the ALJ concluded that removal was the appropriate penalty for his conduct. After the Commission affirmed the ALJ’s determination, this appeal ensued.
On appeal, Sottilare argued that even if Green’s testimony is credited and he breached the applicable confidentiality rules, termination was too severe a penalty. The Appellate Division rejected this argument and affirmed the Commission’s decision to remove him. According to the Court, Sottilare’s breach of confidentiality displays a fundamental lack of trustworthiness, thereby warranting his removal. As indicated by the Court, termination is warranted whenever the employee’s conduct is unbecoming to the employee’s condition or renders the employee unsuitable for continuation in the position. Consequently, the Court determined that Sottialre’s conduct made him unsuitable to continue in his employment as an IAU officer.
On May 20, 2010, a New Jersey judge ruled that a new law requiring public employees to pay at least 1.5 percent of their salaries toward health insurance can go into effect on May 21, 2010.
As reported in the Asbury Park Press, unions for police and firefighters asked the Superior Court for a temporary restraining order that would have kept the law from taking effect in certain situations. The request was part of a larger lawsuit that seeks to block the new law, which is part of the State’s efforts to hold down costs by being tougher on public employees and their unions, including those working for local government.
The new law, championed by Governor Chris Christie, requires the contributions of employees once their current collective bargaining agreements expire. Many public employees already contribute at least 1.5 percent of their salaries to health coverage. Other locals have chosen smaller pay raises to keep free health care, or have switched to inferior insurance coverage to keep it free.
The unions’ main contention was that the amount employees pay for their health insurance should be worked out in contract negotiations, not imposed by the State. According to the judge, “not every term and condition on which a collective bargaining unit would want to negotiate is fair play.” The judge also rejected the unions’ arguments that the law amounts to an unfair tax on the State’s roughly 400,000 public employees or that the law is vague.
The unions will get another chance to make their case in court later. While the unions ultimately hope to stop the law from being enforced entirely, the main concern in this case was narrow. Police and firefighters are prohibited by state law from going on strike. When their contract negotiations reach an impasse, they go to a lengthy arbitration process. In essence, the unions argued the 1.5 percent payment requirement should not apply to the 215 local unions currently in the arbitration process.
Please continue to check this blog periodically for updates regarding this litigation.
Reid began working as a corrections officer at Riverfront State Prison on July 26, 2002. As a result of an incident occurring on August 6, 2005, she was charged with assaulting an inmate and filing a false report in which she represented she had been the victim. The charges were sustained at a departmental hearing and on April 25, 2007, she was removed from employment. Following an appeal, the contested case was transmitted to the Office of Administrative Law, wherein a hearing was conducted on April 30, 2008.
Testimony and evidence were presented by Captain Tommy Stahl regarding the internal affairs investigation, which concluded that Reid had assaulted an inmate and misrepresented that she was the victim; Officers Cherril Davis and Dyshella Kee who were eyewitnesses to the incident and reported that the inmate used profanity towards Reid but did not strike her, and that Reid beat the inmate and falsely claimed he assaulted her; and nurse Evelyn Mamuyac who observed only a slight swelling on Reid’s right cheek and lower lip. Reid testified on her own behalf stating that the inmate used profanities indicating he had to use the restroom after which an argument ensued and the inmate pushed her and hit her in the face, causing swelling to the right side of her face and lip and resulting in a scar under her right eye. She further testified to her exemplary performance assessment review from June 15, 2004 through June 15, 2005.
On November 14, 2008, an Administrative Law Judge (“ALJ”) issued an initial decision, making express credibility assessments and finding Reid engaged in the charged conduct. Based on several inconsistencies in Reid’s testimony, the ALJ discredited her version of the events as self-serving. In determining the appropriate sanction, the ALJ considered Reid’s status as a Senior Corrections Officer, which “subjects her to a higher standard of conduct and responsibility than is required of other public employees.” Consequently, the ALJ found this conduct so egregious as to warrant removal despite the absence of a disciplinary history. On January 16, 2009, the Commission issued a final determination adopting the ALJ’s initial decision as to the charges and the sanction of removal. This appeal ensued.
On appeal, Reid challenged the agency’s determination on the charges as not based on sufficient credible evidence in the record. She further contended the penalty of removal is not reflective of progressive discipline and, as such, the sanction should be reduced.
The Appellate Division, given its limited standard of review and the deference afforded an administrative agency, concluded Reid’s arguments were without merit. Specifically, the Court found that the ALJ clearly articulated her reasons for finding the testimony of the other witnesses as credible and disbelieving Reid’s testimony. Therefore, the Court determined that the Commission’s decision to sustain the charges was supported by substantial credible evidence in the record and was neither arbitrary, capricious not unreasonable.
Moreover, the Court affirmed the decision to remove Reid from employment. The Court found Reid’s conduct was both violent and dishonest and, therefore, removal was warranted considering that the Department of Corrections and her colleagues could no longer trust her to tell the truth or behave appropriately as a corrections officer.
As reported by various media outlets, Governor Chris Christie announced a 33-bill legislative package on May 10, 2010 that plans to place stricter limits on property tax increases and a put a permanent 2.5 percent limit on annual raises for public workers.
Christie also discussed several potential reforms, including raising the retirement age to 65 from 62; having public employees pay more toward their pensions and allowing towns to discard some civil service rules.
Union leaders have criticized many of the proposals, doubting that they will save much money. They also fear that allowing towns to opt-out of civil service will open the system to more hiring decisions based on patronage.
The proposed legislation includes: (1) a constitutional 2.5 percent cap on the annual increases in municipal, school, and county property tax levies; (2) a 2.5 percent limit on the annual increases of public employee contracts, including wages, health benefits, vacation time, and other perks; (3) limiting the amount of unused sick time that current employees can cash out at $15,000; and (4) allowing towns to opt-out of the civil service system through an ordinance or a petition by 15 percent of the voters.
These new legislative proposals have the potential to impact every public employee in the State of New Jersey. Specifically, the proposal regarding the 2.5 percent limit on the annual increases of public employee contracts, which would affect all public employees, seems to usurp the purpose behind the collective bargaining process and the concept of organized labor. As such, this legislation must be followed closely by all New Jersey Public Safety Officers. Please continue to check this blog periodically to ascertain updates regarding this legislation and its ultimate progression.
On March 31, 2005, a murder-suicide occurred in Vernon Township. Detective Sean Talt participated in the crime scene investigation and took a photograph of the suicide victim on his cellular telephone. Although not involved in the investigation, Curry asked Talt if he could view the photograph, as he had never been involved in such an investigation. Talt forwarded the photograph to Curry via cellular telephone and advised him not to share the photograph with anyone else, describing it as “for police eyes only.” Despite these instructions, Curry forwarded the photograph to a civilian female friend and told her to view it and delete it. However, before being deleted, this individual’s brother viewed the photograph, forwarded it to his own cellular phone, and shared it with several other members of the public.
Curry was charged with conduct unbecoming a public employee and violation of departmental rules and regulations. As to the latter, the ALJ concluded that the Department had not demonstrated a violation of a rule or regulation, but the ALJ concluded that “appellant’s conduct constituted conduct unbecoming a public employee, as it clearly signaled poor judgment.”
On appeal, Curry does not challenge the finding, but argues that the 30 day suspension imposed by the Board was excessive. The Appellate Division rejected Curry’s argument and affirmed the Board’s determination. After carefully reviewing the record, the Court found no abuse of discretion and was satisfied the Board’s decision was not arbitrary or capricious and the suspension imposed was justified. According to the Court, the police investigation and the rights of the family may have been compromised by the unlawful distribution of the photograph. Specifically, the Court indicated that there is a significant difference between sharing evidence with a fellow police officer and exposing the same evidence to the public for no good or valid reason.
The case illustrates the importance of law enforcement officers to not disseminate case evidence to the public and be guided in their use of cellular telephones. Though the technology age and the use of cellular telephones has no doubt aided law enforcement and streamlined certain investigations, they have also increased the exposure of law enforcement officers and increased the likelihood of investigations being compromised.
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.
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:
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;
Base pensions for new police and firefighters on the three highest salary years rather than the highest single year;
Impose a pensionable salary cap for new employees of the Police and Firemen’s Retirement System and the State Police Retirement System; and
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:
Require all public employees to pay at least 1.5 percent of their salary toward health benefits after the expiration of a current contract;
Require new state workers to work at least 35 per hours per week to qualify for health benefits; and
Require all newly-hired employees to pay at least 1.5 percent of their base pension toward health benefits upon retirement.
A2459, which would:
Eliminate the sick leave injury program; and
ACR115, which would:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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