dbarbati@pralaw.com's Recent Articles from LexMonitor

Correction Officer Shoots Alleged Armed Robber

dbarbati@pralaw.com (dbarbati@pralaw.com) — Fri, 11 Dec 2009 16:12:04 GMT

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

dbarbati@pralaw.com (dbarbati@pralaw.com) — Tue, 01 Dec 2009 15:07:56 GMT

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

dbarbati@pralaw.com (dbarbati@pralaw.com) — Mon, 09 Nov 2009 13:32:09 GMT

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

dbarbati@pralaw.com (dbarbati@pralaw.com) — Wed, 04 Nov 2009 16:49:23 GMT

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

dbarbati@pralaw.com (dbarbati@pralaw.com) — Thu, 22 Oct 2009 16:28:51 GMT

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

dbarbati@pralaw.com (dbarbati@pralaw.com) — Tue, 13 Oct 2009 18:16:02 GMT

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

dbarbati@pralaw.com (dbarbati@pralaw.com) — Mon, 12 Oct 2009 14:49:59 GMT

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

dbarbati@pralaw.com (dbarbati@pralaw.com) — Fri, 02 Oct 2009 15:19:31 GMT

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

dbarbati@pralaw.com (dbarbati@pralaw.com) — Thu, 24 Sep 2009 13:06:10 GMT

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

dbarbati@pralaw.com (dbarbati@pralaw.com) — Tue, 22 Sep 2009 13:54:08 GMT

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

dbarbati@pralaw.com (dbarbati@pralaw.com) — Wed, 16 Sep 2009 16:57:55 GMT

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.

Suspension of Transit Police Sergeant Sustained

dbarbati@pralaw.com (dbarbati@pralaw.com) — Wed, 09 Sep 2009 14:27:14 GMT

On September 8, 2009, the Appellate Division decided In the Matter of Sergeant Maryelyn Conway, Docket No.: A-6162-07T3. In the case, Sergeant Maryelyn Conway appeals from an administrative determination of the New Jersey Transit Police Department suspending her for a period of four days for two related minor disciplinary infractions.

On the night of December 13, 2004, a car crashed onto an embankment above the New Jersey Transit train tracks in Waldwick. The vehicle was in a precarious position, with only a small tree preventing it from falling onto the tracks. Due to the danger that the vehicle might fall, train traffic in both directions was stopped.

Conway, a sergeant with the New Jersey Transit Police Department, was the supervising officer on duty at the time of these events. She did not go to the scene of the accident, but rather New Jersey Transit Police Officer Victor Migliorino was sent there. He reported to her that the Waldwick fire department, police, and emergency medical personnel were present, and that Waldwick personnel had taken charge of the scene. He did not believe Conway’s presence at the scene was necessary. She later deployed two other officers to the scene, contending that she did so in order that one of the officers could acquire more experience. She received periodic reports of the status of the scene from the officers present. She acknowledged in one radio transmission that it would have been easier if she were present. The New Jersey Transit police officers present did not play an active role in attending to the accident scene since Waldwick personnel were in charge. About an hour and one half after Conway was advised of the incident, the car was removed, and normal train traffic resumed.

Disciplinary charges were filed against Conway on January 10, 2005, due to her failure to go to the accident scene. She was charged with violating a General Order, which requires a police sergeant, as part of her duties and responsibilities, to “direct[ ] and participate[ ] in activities at the scene of emergencies.” Conway was also charged with “unsatisfactory performance” due to her failure to respond to the scene herself.

The internal disciplinary hearing was conducted on May 20, 2008. In a lengthy written opinion, the hearing officer found the charges to be substantiated. In the final agency decision dated July 1, 2008, New Jersey Transit Police Chief Jospeh C. Bober found Conway guilty of both charges and imposed a two-day suspension for each charge, for a total suspension of four days. This appeal ensued.

On appeal, Conway raises due process and fundamental fairness issues, maintaining that the three-year delay between the filing of the charges and the hearing violated her constitutional rights. In addition, she asserts that in conducting the investigation in this matter, New Jersey Transit violated the internal affairs guidelines promulgated by the New Jersey Attorney General’s Office. Conway also contends that New Jersey Transit has failed to meet its burden of proof with respect to the charges.

The Appellate Division noted that the record contained substantial credible evidence supporting New Jersey Transit’s finding that Conway committed the two infractions. Further, the Court found no merit in Conway’s contention that her due process rights or principles of fundamental fairness were violated because of the delay between the filing of the charges against her and the date for the hearing. Nor did the Court find that principles of laches barred the prosecution due to this gap in time. As such, the Court affirmed the final agency determination and upheld the four day suspension.

Corrections Officer Charged In Fake Grenade Incident

dbarbati@pralaw.com (dbarbati@pralaw.com) — Tue, 25 Aug 2009 15:42:34 GMT

As reported by the Asbury Park Press on August 24, 2009, Keith Trimmer, 41, a senior corrections officer at Mountainview Youth Correctional Facility, has been charged with bringing an imitation hand grenade into the facility on May 13, 2009, creating a disturbance, according to the Hunterdon County Prosecutor’s Office.

Other correction officers saw the device, prompting a response from the Department of Corrections’ Special Operations Group. The Special Operations Group provides tactical and technical support during a crisis.

The incident was investigated by the Hunterdon County Prosecutor’s Office, Major Crimes Unit and the Department of Corrections, and the Special Investigations Division of Mountainview Youth Correctional Facility. As a result, Officer Trimmer has been suspended without pay since May 15, 2009.

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

Legislation Proposed Regarding Illicit Cell Phones Inside NJ Prisons

dbarbati@pralaw.com (dbarbati@pralaw.com) — Mon, 24 Aug 2009 13:44:43 GMT

As reported in the Trentonian on August 24, 2009, 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. As a result, one New Jersey lawmaker is proposing to give corrections officials more tools to deal with the problem.

Assemblyman Patrick Diegnan, Jr. recently proposed legislation calling on the State to seek proposals for installing and operating a wireless communications device detection system. Another measure calls for blocking the transmission and reception of cell phone equipment carrying voice, text messages, images and other data within correctional facilities. No hearings have been scheduled yet on either measure.

Officials would have to ensure that the latter technology would not interfere with emergency or public safety communications and that it operates at the lowest possible transmission level necessary, nor interfere with cell phone signals that originate and end outside the state’s correctional facilities.

Nearly 400 cell phones have been seized in correctional facilities since August 2008, when officials started keeping track of confiscations, according to State data. More than a third were found in Northern State Prison in Newark, which houses the State’s most dangerous gang members, and four associated halfway houses. Officials say the smuggling problem has worsened in recent years as cell phone technology has improved. They note that newer, smaller phones are made with less metal, making them harder to detect.

“Incarceration should be a time for reflection and rehabilitation, not for continuing criminal enterprises or intimidating witnesses,” Diegnan said. “We should take advantage of the technology we have to ensure offenders aren’t simply moving the bases of their operations behind bars thanks to cell phones.”

New Jersey, though, is not the only state dealing with a phone smuggling problem. About 3,500 phones have been found in California institutions this year, which is more than the entire total seized in 2008. In Texas, officers have found more than 900 phones so far, compared with 1,200 for all of last year.

“Illegal cell phone use by prisoners has become a leading worry throughout the country and has played a leading role in the expansion of gangs both behind bars and on our streets,” said Diegnan. “While we’ve taken aggressive steps here in New Jersey to combat it, these bills would simply boost our efforts and enhance public safety.”

U.S. State Pensions Face Overhaul in Bad Economy

dbarbati@pralaw.com (dbarbati@pralaw.com) — Fri, 21 Aug 2009 15:25:10 GMT

Recently, Karen Pierog and Jim Christie published an article addressing state pension overhauls during these tough economic times. Specifically, the article examines how Illinois, California, and other states have instituted reforms to combat increasing and debilitating unfunded pension liabilities.

According to the article, the National Association of State Retirement Administrators found a nearly $443 billion collective unfunded liability for the 125 state, local government, and teacher pension funds in its most recent survey. The situation is likely to worsen as the recession punches holes in budgets nationwide and causes big investment losses for defined-benefit pension plans that pay out a fixed income. As a result, it is suggested that the economic downturn may also lead to more reforms as politicians and taxpayers realize they can no longer afford plush pensions compared to defined-contribution 401(k) plans in the private sector which pay income based on variable investment returns.

This year, laws were enacted in Georgia, Louisiana, Nevada, New Mexico, Rhode Island, and Texas that reduced benefits for new employees. On the local level, New York City has repeatedly trimmed pension benefits for new hires by creating pension tiers. Illinois and California are among the states evaluating various reform suggestions and/or establishing pension commissions in order to adequately address the problem. In all, it is clear state pension systems are facing a major overhaul in response to the poor economic climate.

This article is of particular importance because the status of the New Jersey public pension system is vital to every resident of this state and especially crucial to public safety employees. Consequently, all current or retired New Jersey public safety officers should read this article in order to fully understand the measures being taken across the country to rectify the problems that have become prevalent in defined-benefit pension plans. To read the full article, click on the following link.

Suspension of Hudson County Corrections Officer Upheld

dbarbati@pralaw.com (dbarbati@pralaw.com) — Mon, 17 Aug 2009 21:58:12 GMT

On August 17, 2009, the Appellate Division decided In the Matter of Juan Melendez, Docket No.: A-4617-07T1. In the case, Juan Melendez, a Hudson County Corrections Officer, appealed from a final administrative determination of the Merit System Board (“Board”) imposing a fifteen-day suspension for neglect of duty and other sufficient cause warranting discipline.

The Board adopted the initial determination of an Administrative Law Judge on a remand following his first determination that the suspension should only be for three days following Hudson County’s suspension of thirty days. On appeal, Melendez argues that: (1) the decision of the Board upholding the charges is not supported by credible evidence in the record; (2) the penalty of a fifteen day suspension is at odds with the concept of progressive discipline and appellant’s prior disciplinary history; and (3) he is entitled to attorneys’ fees based on having prevailed on all or substantially all of the primary issues.

The testimony before the ALJ revealed that Sgt. Kevin Orlik reported, and testified, that Melendez was asleep at his post in a trailer annexed to the jail on March 19, 2006 when Orlik and other officers arrived to conduct a search of the cells. In his testimony, Orlik testified that when he entered the trailer he “saw Officer Melendez reclined back in a chair with a roll of toilet paper as a pillow or cushion behind his neck,” “his eyes were closed,” and he was “motionless” as he was observed “for approximately a minute to two minutes” until other officers entered the trailer and started to make noise. Melendez testified that he wasn’t sleeping and told that to Orlik when he directed Melendez “to write a report on why [he] was sleeping.” Melendez challenged Orlik’s credibility by noting that his written report omitted details embodied in his testimony.

There was also testimony about the practice of standing when a superior officer enters the room. Melendez did not do so on the night in questions, and testified that it wasn’t a “regular routine” and he generally did not do so. Although the failure to stand was not itself a basis for discipline, it was determined to be relevant to the issue of “attentiveness” at the time, as well as to the ALJ’s finding that the inattentive conduct was a “sufficient cause” for the three-day suspension he initially imposed.

On the remand, despite making credibility determinations against Orlik because of the failure to include certain details in his written report, the ALJ found neglect of duty and “other sufficient cause” for the discipline, and found that “the failure to stand and acknowledge Sgt. Orlik’s when he entered the trailer to constitute being inattentive.”

In its opinion, the Board agreed with Melendez that “his failure to stand was not a specific infraction or charge,” but concluded that it constituted “evidence that he was inattentive, which he was charged with,” and “[i]t was the appellant’s inattentiveness that constituted his neglect of duty as it could have resulted in harm to the inmates.”

The Appellate Division affirmed the determination of the Board in its entirety. The Court agreed with Melendez that the failure to stand when Orlik entered the trailer was neither a basis for the disciplinary charges nor can be a basis by itself for disciplinary action. However, the Court noted that it could be considered by the Board to be part of the overall neglect of the circumstances by Melendez. His response to the entry of a superior officer was relevant to whether he was paying proper attention and was sufficiently attentive to his circumstances. While it may not be a specific violation for not standing when a superior officer entered the trailer, the Court did not disagree that the subject related to Melendez’s “inattentiveness,” and “[i]t was the appellant’s inattentiveness that constituted his neglect of duty as it could have resulted in harm to the inmates.”

The Court also determined that the discipline imposed cannot be considered “shocking to one’s sense of fairness,” although the Court may have reached a different result. Lastly, the Court found that the Board did not abuse its discretion in determining that Melendez did not prevail on “substantially all of the primary issues,” and thereby denying him counsel fees. Some of the charges were sustained and a fifteen-day suspension was imposed on the Board’s review and, therefore, the Court agreed with the Board that Melendez was not entitled to fees despite the reduction of fifteen days of the suspension.

Suspension of Newark Police Officer Upheld

dbarbati@pralaw.com (dbarbati@pralaw.com) — Mon, 03 Aug 2009 17:21:21 GMT

On July 31, 2009, the Appellate Division decided In the Matter of Eddie Gonzalez, Docket No.: A-0644-07T2. In the case, Eddie Gonzalez, a Newark Police Officer, appealed from a final decision of the Merit System Board (“Board”) adopting the findings of fact and conclusions of an Administrative Law Judge (“ALJ”), concluding that Gonzalez engaged in conduct unbecoming a public employee and violating certain Newark Police Department (“Department”) rules and regulations. The Board adopted the ALJ’s recommendation and imposed a six-month suspension.

In June 2003, Richard Diaz lived in Newark, and Gonzalez was his next-door neighbor. Diaz and Gonzalez were involved in a dispute, which resulted in Diaz filing a harassment claim against Gonzalez alleging that Gonzalez kissed Diaz’s minor daughter. On June 9, 2003, Newark Police Officer Philip Turzani was assigned as a dispatcher for the Department. Near the end of his 6:00 a.m. to 2:00 p.m. shift, he received a call from Gonzalez asking Turzani if he would like Gonzalez to bring him coffee.

Gonzalez then arrived at the Newark Police and Fire Public Safety Communications Center (“Center”) at approximately 1:30 p.m., in plainclothes, and requested that Turzani run a license plate number through the Department’s computer system. Turzani asked Gonzalez if his purposes for running the plate were “legal,” and Gonzalez responded that his neighbor was trying to obtain a job and wanted to check his driving history. Turzani admitted to running the license plate, but could not recall the name of the individual connected with the search. Turzani stated that Gonzalez viewed the screen with the results on it.

Upon returning home from vacation on June 19, 2003, Diaz received twelve motor vehicle summonses in the mail. The summonses were allegedly issued by Officer Edward Sculthorpe of the Department on June 9, 2003 at approximately 2:00 p.m. Diaz challenged the summonses, claiming that he had not been stopped by a Newark police officer on that date. At the court hearing regarding the summonses, Officer Sculthorpe denied writing them and they were dismissed.

The summonses prompted a further investigation as on June 25, 2003, Diaz filed an Internal Affairs complaint with the Department against Gonzalez. In response to the complaint, Captain Robert Sbaraglio of the Department spoke with Sculthorpe, who confirmed that he had not written the summonses. Following the dismissal of the summonses, Sbaraglio conducted a preliminary investigation and identified the summons book that had been issued to Sculthorpe as the source of the summonses. Sbaraglio then had both Gonzalez and Sculthorpe submit administrative reports regarding the summonses. Both denied issuing the summonses.

At this point, Captain Brian Gaven of Internal Affairs directed Sbaraglio to turn over the investigation to Internal Affairs. Captain Gaven reviewed the summonses and noticed that they contained Diaz’s full name, address, driver’s license and vehicle registration, which led him to believe that someone had obtained this information from the NCIC computer system in the Department. With the assistance of the F.B.I., Gaven found that on June 9, 2003, at 1:34 p.m., someone had accessed Diaz’s license plate number and driver information through the Department’s dispatch center, specifically on channel two. Gaven discovered that Turzani operated channel two during the time the check occurred.

In a subsequent interview with Gaven, Turzani confirmed his earlier statement of his interaction with Gonzalez. Following this interview, Gaven contacted William Davis, a document examiner with the Division of Criminal Justice of New Jersey, in an effort to analyze the handwriting on the summonses.

Davis appeared before the ALJ as an expert in forensic document examination, specifically handwriting. He indicated that his examination of the summonses and the writing samples allowed him to eliminate Sculthorpe as the author of the summonses. Although Davis found similarities between the summonses and the examples of appellant’s handwriting, he could not state Gonzalez was the author. However, Davis concluded in his report that, “the suspect was probably the author…” On October 28, 2003, Gaven conducted a videotaped interview of Gonzalez. During that interview, Gonzalez denied having any knowledge of the summonses. He also provided a differing version of his interaction with Turzani. Based upon his investigation, Gaven filed charges against Gonzalez.

On appeal, Gonzalez asserted that the action of the Board was arbitrary, capricious, unreasonable, and contrary to law. The Appellate Division disagreed. According to the Court, the thrust of Gonzalez’s arguments on appeal focused on the ALJ’s findings as to credibility. In her decision, the ALJ rejected Gonzalez’s testimony as “self-serving.” She found Turzani and Sculthorpe to be credible and concluded that Gonzalez issued the twelve summonses to Diaz. The Court noted the totality of the evidence presented at the hearing supported her findings and, therefore, there was no basis for the Court’s intervention. As such, the action of the Board was affirmed.

Suspension of Union Police Officer Upheld

dbarbati@pralaw.com (dbarbati@pralaw.com) — Wed, 29 Jul 2009 15:54:10 GMT

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

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

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

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

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

On appeal, Michelson contended that the Board erred in concluding that he was absent without leave and urges that the agency erred in failing to consider disparate treatment in this case. After reviewing the record, the Appellate Division affirmed the determination by the Board. Specifically, the Court determined the findings and conclusions of the agency were supported by substantial, credible evidence in the record. As such, Michelson’s six (6) working day suspension was upheld.

Going and Coming Rule Serves as Basis for Denial of Application for Accidental Disability

dbarbati@pralaw.com (dbarbati@pralaw.com) — Thu, 23 Jul 2009 21:09:48 GMT

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

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

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

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

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

This case illustrates some of the crucial issues which arise during the course of a public pension appeal. Factors such as where and when an accident took place become vital in determining whether an individual qualifies for accidental disability retirement benefits under the statue. As such, it is important that you retain a highly qualified, experienced attorney should you determine to file for accidental disability retirement benefits in order to maximize your chances for recovery.dual qualifies for accidental disability retirement benefits under the statue. As such, it is important that you retain a highly qualified, experienced attorney should you determine to file for accidental disability retirement benefits in order to maximize your chances for recovery.

Christie Picks Monmouth County Sheriff as Running Mate

dbarbati@pralaw.com (dbarbati@pralaw.com) — Mon, 20 Jul 2009 16:11:01 GMT

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

In a video on Christie’s networking sites, Guadagno said she’s proud to be running for lieutenant governor at a time in New Jersey’s history where they’ll have to make tough decisions. Christie and Guadagno plan to make campaign stops in Asbury Park, Woodbridge, and Garfield on July 20, 2009.

Governor Jon Corzine has yet to announce who his running mate will be.