Articles Tagged with New Jersey civil service attorneys

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The Appellate Division recently issued a decision exploring the limits of progressive discipline in New Jersey civil service discipline in thepolice-officer-829628_640-300x199 case of Matter of Collins.

Background

Darius Collins was a senior corrections officer at Norther State Prison.  He had been a corrections officer for more than two years and had no prior discipline.  On January 6, 2019, he was the patrolling supervisor of prisoners in a high security unit.  Collins admitted that he left a gate between two floors open.  This allowed two prisoners to leave their tier to take unauthorized showers.  When they got back the contents of their cells had been destroyed.  The prisoners then became out of control and a ten man extraction team was required to get the two inmates back under control.

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The law invests law enforcement officers with significant authority.  New Jersey employment law therefore imposes on them a high standard of conduct. stone-judge-778488-m-thumb-240x320-71245-thumb-220x293-71246-thumb-220x293-71247 And while progressive discipline governs the review of disciplinary infractions, particularly in the civil service context, serious offenses can result in termination even for a first offense.  Sometimes these cases are close calls; some are not.  A New Jersey appeals court recently examined these principles in the case of In the Matter of Ruiz, City of Perth Amboy, Department of Public Safety.  The case is a good examination of some of these legal principles, even though the court found that it wasn’t a close call.

Background

Benjamin Ruiz was police chief for Perth Amboy, New Jersey, a civil service jurisdiction.  After being charged in 2014, he was indicted on February 6, 2015 for official misconduct, theft of services and witness tampering.  He was suspended with pay and required to turn in his badge and gun.  He was acquitted by a jury of all charges on September 20, 2016.

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A Federal Appeals Court’s recent precedential decision in the case of Gibbs v. City of Pittsburgh may have profound implications for New Jersey civil service appeals from psychological disqualification of law enforcement officer applicants.

Background

Christopher Gibbs applied to be a police officer with the Pittsburgh, Pennsylvania Police Department.  He was an honorably discharged Marine and had been accepted for employment with five other law enforcement agencies.  Similar to the practice in New Jersey and as required by Pennsylvania state law,  after he was found otherwise qualified Pittsburgh offered Gibbs an offer of employment conditioned upon passing an examination to determine whether he wascop psychologically fit for the job.  Gibbs had attention deficit hyperactivity disorder (“ADHD”).  The examining doctor found him unfit because of his ADHD.  The psychologists conducting the examination ignored the fact that Gibbs’s ADHD was under control, that five other departments had found him psychologically fit, that he had unblemished records as a police officer and a Marine, and they never explained how Gibbs’s ADHD would interfere with his ability to perform his duties as a police officer.

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As we have explained here before, the New Jersey Civil Service appeal process gives civil service employees a meaningful avenue for appealing discipline imposed by their government employers.  However, a recent appellate opinion is a good reminder that this meaningful avenue for appeal is a two-way street.police-1714956__340-300x200

The New Jersey Civil Service Appeal Process

When a governmental employer wants to discipline employees with civil service protections, it must first give them a Preliminary Notice of Disciplinary Action (a “PNDA”) listing the charges and specifications against them.  Employee then have the right to elect to have a hearing, and whether they do nor not, when final discipline is imposed, the employer must then give the employee a Final Notice of Disciplinary Action (an “FNDA”).  For major discipline (a fine or suspension of more than five days, or termination), the employee has 20 days to file an appeal.

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The State and Federal Constitutions require that when the government takes action against someone that person must receive due process.  For Civil Service employees, that process is the disciplinary appeals process.  Therefore, in the case of In re Smith, Irvington Township, Department of Public Safety, the Appellate Division ruled that an administrative law judge and the Civil Service Commission could not rely on fact findings in a related but separate criminal trial.  This is an copimportant New Jersey employment law decision, because to meet the constitutional requirements of due process and fundamental fairness, the New Jersey Civil Service disciplinary appeals process must give a meaningful hearing to effected civil service employees.

Monique Smith was a career officer with the Irvington Police Department.  On the day that she was promoted to captain, her boyfriend broke up with her by email.  Captain Smith went to his apartment after the ceremony, and followed him when she saw him leaving in his car.  Smith admitted driving over a center island during her drive.  Smith was charged with eight traffic violations for this drive, including leaving the scene of an accident and reckless driving.  The Department suspended Smith because of the charges.  Based on this incident, Smith was also criminally charged with second degree aggravated assault, fourth degree unlawful possession of a weapon, third degree possession of a weapon for unlawful purposes, and fourth degree criminal mischief.  The aggravated assault was dismissed by the State, and the criminal mischief charge was amended to a disorderly persons offense (a misdemeanor). A jury found Captain Smith not guilty of all the charges.  The trial judge also heard the traffic offenses and found Smith guilty of reckless driving.

Prior to the decision, administrative disciplinary charges were filed against Smith for conduct unbecoming a public employee and five other violations stemming from the same conduct.  A departmental disciplinary hearing was held and a six month working day suspension without pay was imposed.  Smith appealed to the New Jersey Civil Service Commission.  The Commission referred the matter to the Office of Administrative Law (the “OAL”) as a contested case.  An administrative law judge (“ALJ”) held a two day hearing.  The ALJ issued a recommended decision that the charges be upheld but that the penalty be reduced to a ninety day suspension.  The ALJ also recommended that Irvington pay half of Smith’s attorneys fees as she was the prevailing party.  However, the ALJ based her findings not on the evidence produced at the hearing, but rather wholly on the evidence and findings of fact from the criminal trial.  Despite Smith’s exceptions, the Commission adopted the ALJ’s recommended decision, except that the ninety days would be ninety working days and it rejected the award of attorneys fees.

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A recent appellate decision in the case In the Matter of Christopher D’Amico, City of Plainfield Fire Department demonstrated once again that New Jersey civil service employees have an effect means of redress for when they are wrongfully disciplined.

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The D’Amico Case

Christopher D’Amico passed the New Jersey Civil Service test and was hired to be a firefighter by the City of Plainfield, a civil service jurisdiction.  As part of his application, D’Amico was required to prove their residency.  D’Amico submitted several documents, including an insurance card.  He admitted that he modified the card to list his actual residence in Plainfield.  Plainfield’s hiring committee recommended against hiring D’Amico because of the alteration, but the Fire Chief hired him anyway.  D’Amico attended the fire academy.  A citizen questioned several cadets’ residencies.  The concern about D’Amico was determined to be unfounded, but the City reexamined his application.  Even though the address was accurate and the change was known by the City when it hired him – and was admitted by D’Amico – the Director of Public Safety ordered the Chief to terminate D’Amico’s employment.  When D’Amico and two other cadets reported to the Department for their first day of work they were fired, in D’Amico’s case not because of his residence, but because of the alteration.

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Our employment attorneys represent employees in New Jersey Civil Service appeals and disciplinary proceedings.  One frequent matter of contention in the New Jersey Civil Service System is bypassing candidates for selection or promotion under the “Rule of Three.”

The Rule of Three

The New Jersey Civil Service Act requires that hiring and promotion must be based on fitness and merit, determined by competitive Civil Service examinations wherever possible.  After a test, the New Jersey Civil Service Commission will issue a list of eligible candidates ranked in order of their scores.  Hiring and coppromotion must be made according to the eligible candidates’ ranks on the list.  However, an exception exists.  The Rule of Three allows New Jersey Civil Service employers to bypass eligible candidates ranked higher on hiring and promotion lists in favor of lower ranked candidates so long as they select one of the top three eligible candidates remaining on the list.  After each decision to hire or promote, the Rule of Three evaluation begins all over again.  So, for example, if the first candidate is selected, the employer may then select any of the candidates ranked second through fourth for the second spot.

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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, police-hoboken-train-stationseniority 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”).

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In the tough economic times brought on by COVID-19, many governors and veterans-300x200mayors, including New Jersey’s Governor Murphy, have said that widespread layoffs may be necessary if federal assistance is not forthcoming.  Our attorneys represent New Jersey Civil Service employees, and we see the struggles they are facing.  Given this, we thought the time was right to review the layoff rights available under New Jersey Civil Service law.

 
Layoffs

A layoff is the termination of a permanent employee’s employment because of economic reasons.  Demotions or reduction of hours for economic reasons are also treated as layoffs, triggering the rights and procedures applicable to layoffs.

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A main goal of the New Jersey Civil Service Act is to ensure that employment decisions are based on merit and fitness, and therefore to prevent discrimination, political cronyism, corruption and nepotism from being a consideration.  Thus, the Legislature has given civil service office-workers-2-300x200employees the ability to appeal most employer imposed discipline to the New Jersey Civil Service Commission.

Right to Appeal Major Discipline to the New Jersey Civil Service Commission. 

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