New Jersey employment law provides that government employees may be fired for conviction of a crime, and for many crimes they must be fired. However, if they are exonerated they may be reinstated to their position. They may be subject to further discipline, but if they are not they may also receive back pay, seniority and benefits for the period of their suspension.
Suspension During Criminal Charges
New Jersey Civil Service Commission regulations provide that an employee’s conviction of a crime is grounds for discipline. An employee suspended while a criminal complaint or indictment is pending must be served with a Preliminary Notice of Disciplinary Action (known as a “PNDA”). The PNDA should include a statement that forfeiture of the employee’s position may result, and that the employee may choose to consult with an attorney. In this case representation by an attorney is always advisable. Within five days of receipt of the PNDA, the employee may request a departmental hearing. If no request is made (within five days or an agreed upon extension) the employer may issue a Final Notice of Disciplinary Action (an “FNDA”).
The hearing is limited to:
whether the public interest would best be served by suspending the employee until disposition of the criminal complaint or indictment. The standard for determining that issue shall be whether the employee is unfit for duty or is a hazard to any person if permitted to remain on the job, or that an immediate suspension is necessary to maintain safety, health, order or effective direction of public services.
If the crime charged is of the first, second or third degree, or is a crime of the fourth degree occurring while on the job or which directly relates to the employee’s job, the suspension may be indefinite, but not beyond the disposition of the criminal complaint or indictment.
Forfeiture of Employment By Court Order.
The New Jersey Criminal Code requires that a public employee forfeit her employment, and that the court hearing the criminal matter must order such forfeiture, if she is convicted of: an offense involving dishonesty; a crime of the third degree or above under New Jersey law or the equivalent in a different state; an offense involving or “touching” upon her Job, office or employment; or a crime for which the New Jersey Constitution requires forfeiture.
Disciplinary Action Where No Forfeiture Order by Court
Even when an employee is found not guilty, discipline may still remain because even though the conduct may not have been a crime, it may have still been a disciplinary infraction (such as, for example, conduct unbecoming a public employee), or because discipline requires a lower burden of proof than a criminal prosecution does. If the criminal action did not result in a forfeiture order, the appointing authority is required to issue a second PNDA specifying any charges which may remain against the employee upon final disposition of the complaint or indictment, and proceed with appropriate discipline. When an employee has pled guilty or been convicted of a forfeiture level crime or offense but the court has not entered a forfeiture order, the appointing authority may also seek forfeiture by applying to the court for an order of forfeiture. Departmental hearings are not required. If the court still declines to enter an order of forfeiture, the appointing authority may pursue other disciplinary charges.
Relief After Suspensions Pending Criminal Charges
The New Jersey Civil Service Commission’s regulations provide that “Where an employee, other than a municipal police officer, has been suspended based on a pending criminal complaint or indictment, following disposition of the charges the employee shall receive back pay, benefits and seniority if the employee is found not guilty at trial, the complaint or indictment is dismissed, or the prosecution is terminated.” In other words, the employee must be exonerated to receive back pay, benefits and seniority.
However, if the appointing authority pursues discipline after disposition of the criminal charges, back pay, benefits and seniority will not be awarded in the case of removal. If the discipline results in suspension, “where the employee has already been suspended for more than six months pending disposition of the complaint or indictment, the disciplinary suspension shall be applied against the period of indefinite suspension” and the employee will receive back pay for the period of suspension beyond six months.” However, the appointing authority may “for good cause” deny back pay.
Pre-Trial Intervention and Conditional Discharges
If an employee enters Pre-Trial Intervention (“PTI”) or receives a conditional discharge, the regulation makes clear for employees other than municipal police officers that the criminal complaint or indictment will not be considered “disposed of” until completion of PTI or final dismissal of the previously conditionally dismissed charges. During such time, the employer has the option of continuing the indefinite suspension. If an appointing authority decides to suspend the employee indefinitely, it shall issue a Final Notice of Disciplinary Action (“FNDA”) stating that the employee has been indefinitely suspended pending disposition of the criminal complaint or indictment.
Likewise, if an employee enters Pre-Trial Intervention (“PTI”) or receives a conditional discharge, the regulation makes clear for employees other than municipal police officers that the PTI or conditional discharge will not be deemed an exoneration, and thus the employee will not receive back pay, seniority and benefits.
Municipal Police Officers and Pre-Trial Intervention and Conditional Discharges
This leaves open the question of whether a municipal police officer who receives PTI or a conditional discharge can receive back pay, benefits and seniority during this period of suspension. The Appellate Division of the Superior Court recently directly addressed this question in the case of Matter of Gauthier. It expressly held that the officer could not. Summarizing the history of the common law rule that a public employee should not be paid for periods she did not actually work, it ruled that any exception must be narrowly construed. Here, the officer’s claim for back pay could not survive scrutiny.
The officer argued that Title 40A of New Jersey Statutes, which applies to officers in both civil service and non-civil service jurisdictions, did not contain such an exception for police officers. The statutory section on which the officer relied provides that:
Notwithstanding any other law to the contrary, whenever any municipal police officer is charged under the law of this State, another state, or the United States, with an offense, said police officer may be suspended from performing his duties, with pay, until the case against said officer is disposed of at trial, until the complaint is dismissed, or until the prosecution is terminated; provided, however, that if a grand jury returns an indictment against said officer, or said officer is charged with an offense which is a high misdemeanor or which involves moral turpitude or dishonesty, said officer may be suspended from his duties, without pay, until the case against him is disposed of at trial, until the complaint is dismissed or until the prosecution is terminated.
The Appellate Division rejected this argument. First, it explained, the relevant section was the very next one, which provided that:
If a suspended police officer is found not guilty at trial, the charges are dismissed or the prosecution is terminated, said officer shall be reinstated to his position and shall be entitled to recover all pay withheld during the period of suspension subject to any disciplinary proceedings or administrative action.
This meant, the court explained, that for the officer to be awarded back pay, the charges must be dismissed, the prosecution terminated, or she must be found not guilty at trial. Thus, the officer must be exonerated, ie., received a favorable outcome based on the evidence. PTI and conditional discharges do not exonerate a defendant. While they are great practical outcomes, PTI and conditional discharges are not a resolution based on the evidence that clears the defendant, but rather an alternative sentencing option to avoid a decision on the merits.
Thus, when a police officer was suspended for criminal charges and the eventual outcome is PTI or a conditional discharge, relief such as back pay, benefits, counsel fees, etc., will not be awarded.
Our New Jersey employment law attorneys represent civil service and non-civil service employees in all matters concerning their employment with their government employers, including disciplinary appeals. Call us at (973) 890-0004 or fill out the contact form on this page to schedule an appointment with one of our New Jersey employment lawyers. We can help.