In James Meyers v. State Health Benefits Commission, (New Jersey Supreme Court Slip Opinion A-27-22) (087633) the New Jersey Supreme Court examined a New Jersey public employee’s right to “free” retiree health benefits under the legal doctrine of Equitable Estoppel.  In this matter, James Meyers, was a New Jersey State Trooper that had since retired from employment.  On the date that he retired from employment (October 1, 2015), the Division of Pensions and Benefits (the Division) offered him retiree health benefits at “no premium cost” based on the Division’s interpretation of the law (Chapter 78 of Public Law 2011) and the number of years of service that Trooper Meyers had in the New Jersey State Police Retirement System.  Unfortunately for Trooper Meyers, the Division misinterpreted the law in providing answers to his questions and informed him that he was entitled to free healthcare benefits when he truly was not.  Thereafter, Trooper Meyers built his retired life around the premise that he would not be paying for healthcare in retirement and collected the free benefits for two (2) years.  Notwhttsanding the foregoing, the Division recognized their error and as a result of their error, they discontinued the “free” healthcare benefits for Trooper Meyers in June of 2017.  Thereafter, the State of New Jersey began deducting premium-sharing contributions from Trooper Meyer’s pension payments.

Trooper Meyers appealed this decision to the New Jersey State Health Benefits Commissions who referred the matter to the New Jersey Office of Administrative Law for a plenary hearing where the Judge would issue findings of fact and conclusions of law. The Administrative Law Judge assigned to the case concluded that an injustice had taken place based on the legal doctrine of equitable estoppel and issued an order barring the State Health Benefits Commission from deducting healthcare premium cost sharing contributions from Trooper Meyer’s pension payments.

The State Health Benefits Plan rejected the decision of the Administrative Law Judge and as a result, Trooper Meyer appealed their decision to the Appellate Division who affirmed the State Health Benefits Commission’s decision.  Trooper Meyer then appealed the Appellate Division’s decision to the Supreme Court of New Jersey who agreed to hear the case.

Meyers argued to the Supreme Court that the legal doctrine of equitable estoppel should prevent the State of New Jersey from backing away from the decision that they originally made that he was entitled to “free” healthcare under the current state of the law. In simple terms, the legal principle of equitable estoppel is intended to prevent unfair outcomes. Thus, if a person (Meyer in this instance) relies on assertions or promises made by someone whom one should be able to trust (the Division of Pensions and Benefits in this instance), it would be an unfair outcome if the person or company upon which one relied upon could act as if those assertions or promises were never made (or in this instance provided one with an incorrect statement of the law).

Unfortunately for Trooper Meyers, the Supreme Court affirmed the Appellate Division’s ruling and stated that equitable estoppel could not be applicable in this instance because a governmental entity cannot be estopped from refusing to take an action that it was never authorized to take under the law — even if it had mistakenly agreed to that action.  In other words, because the law that is relevant to this situation (Chapter 78 of Public Law 2011) never permitted Meyer to be entitled to free healthcare, the Division’s statement to the contrary could not be considered in applying the legal principle of equitable estoppel.  As a result, Meyer was unsuccessful in reversing the Appellate Division’s decision in this matter and he was forced to make premium sharing contributions if he wanted to continue receiving healthcare benefits in retirement.

We bring this case to your attention for the simple reason that many public employees in the State of New Jersey have questions and concerns regarding pension benefits, retiree healthcare benefits, accidental and ordinary disability retiree benefits and re-employment in the public sector after retirement.  Often times, an employee will call on the Division of Pensions and Benefits to seek answers to their questions and regretfully, the information that they sometimes receive is incorrect.  When such a situation occurs, the employee/retiree may have a false belief that they will be entitled to continue receiving benefits or perhaps continue their post-retirement employment because they relied on the information that was provided to them by the Division of Pensions and Benefits.  What you as the reader must understand is that when the Division provides one with a benefit or a right that is contrary to the law, or advice that is contrary to the law that one acts on, an individual very well may be forced to forfeit that benefit if he or she is receiving the benefit or privilege that they may not be entitled to under the law. 

Many times, individuals apply for positions in law enforcement and are fortunate enough to be certified to the eligible list for the position. In simple terms, this means they have “made the list” in order to be considered for the position. After being certified, those persons are required to undergo a psychological evaluation to determine whether they are suitable for the position they are seeking, whether it be Police Officer, Correctional Police Officer, etc., as part and parcel of the hiring process. Unfortunately, however, certain applicants are deemed “not psychologically suitable” for employment as a law enforcement officer. In turn, they are removed from the eligible list.

At that point, the individual can file an appeal with the New Jersey Civil Service Commission challenging their removal from the eligible list. The appeal usually consists of the individual submitting written arguments and a rebuttal psychological report refuting the finding that they are “not psychologically suitable” for employment. Thereafter, the individual is personally evaluated by the Medical Review Panel, which consists of certain psychologists, physicians, etc. The Panel reviews the competing psychological reports, questions the individual, considers the arguments, and ultimately makes a recommendation as to whether the individual is “psychologically suitable” for employment. This recommendation is transmitted to the Civil Service Commission wherein it is, typically, adopted in totality.

While the appeal process is relatively simple and straightforward, the deadlines associated with the same are very stringent. To this end, the individual has only 90 days from the filing of the appeal to submit a rebuttal report from a licensed psychologist or psychiatrist in accordance with N.J.A.C. 4A:4-6.5(e). When considering: (1) the underlying records need to be provided to your psychological expert; (2) an appointment with the expert needs to be made; (3) the evaluation must take place; and (4) the rebuttal report ultimately written, much must be completed within this 90 day time frame.

Even more concerning, the Civil Service Commission is somewhat reluctant to grant any extensions, irrespective if the psychologist’s schedule is not accommodating or when the records used in removing the individual’s name are provided from the prospective employer. While the Commission may grant an extension for “good cause,” it is unclear what constitutes such “good cause” as many requests for extensions are denied. In accordance therewith, Courts have routinely held that the Commission’s denial of extension requests are proper. As a result, if an individual attempts to submit a psychological report after the requisite deadline, the Commission will not consider the same. For all intents and purposes, this eviscerates any likelihood of success of the appeal and reinstatement to the eligible list.

Therefore, when filing a psychological appeal challenging your removal from an eligible list, deadlines matter. The failure to adhere to the requisite deadlines can be fatal to your appeal and, as demonstrated above, much must be accomplished within a short period of time. This is further compounded by the fact that any extension requests will likely be denied. As such, if you are considering filing such an appeal, you should contact an attorney experienced in such appeals to properly counsel you throughout the process.

In a recently issued ruling by New Jersey’s Appellate Division, the Court upheld an earlier ruling by a superior court judge holding that an officer did not commit “willful misconduct” under New Jersey’s Tort Claims Act when he engaged in a pursuit of a vehicle after the driver pulled away from a traffic stop. The plaintiff in the case, entitled Jackson v. County of Hudson, et al., Docket No. A-3111-22 (issued April 4, 2024) filed the lawsuit for injuries he sustained when his car was hit by the motor vehicle that was being pursued by the officer.  

On January 23, 2018, at approximately 5:00 a.m., the Hudson County Sheriff’s Department was conducting radar enforcement in Jersey City.  At that time, the officer in question observed a vehicle pass through three consecutive red lights while traveling at sixty-eight and seventy miles per hour.  The posted speed limit on the road in question, Kennedy Boulevard, is twenty-five miles per hour. The officer followed the driver and attempted to “close the gap” without turning on his patrol car’s lights or sirens.  Once he began following, the officer radioed the on-duty communications officers to inform them he was following a vehicle traveling at a high speed.  The vehicle subsequently slowed down and the officer initiated a traffic stop. After initially stopping, the driver then suddenly sped away. The officer then radioed communications officers to update them and to notify that he was going to pursue. Subsequently, the driver of the fleeing vehicle ran a red light and collided with the plaintiff’s car who was injured because of the collision.

The injured driver ultimately filed a lawsuit contending, in part, that the officer committed willful misconduct by pursuing the fleeing vehicle. Attorneys for the officer prevailed on summary judgment, as the trial court recognized that the Tort Claims Act, in particular, N.J.S.A. 59:5-2(b)(2), grants immunity to police officers for injuries resulting from pursuits. On appeal, the plaintiff argued the trial court erred in his application of N.J.S.A. 59:5-2(b)(2), and contended that a jury should resolve the question of whether the officer’s decision to initiate the pursuit and his subsequent failure to terminate the pursuit violated the Attorney General’s Vehicular Pursuit Policy (hereinafter “Guidelines”) and was thus willful misconduct. Notably, willful misconduct is an exception to the immunity conferred to an officer for injuries resulting from a pursuit. The appellate division rejected the argument.

The Guidelines state a police officer may only pursue a suspect if they have committed a first- or second-degree offense or if the officer reasonably believes the suspect poses an immediate threat to either the public or the officer.  Off. of the Att’y Gen., New Jersey Vehicular Pursuit Policy § I(A)(1) (rev. 2009). During his deposition, the officer explained his decision to pursue the fleeing driver was based, in part, on him pulling away from the initiated traffic stop.  The officer explained this was a second-degree offense of eluding, N.J.S.A. 2C:29-2(b), warranting police pursuit.  According to N.J.S.A. 2C:29-2(b), any person “operating a motor vehicle . . . who knowingly flees or attempts to elude any police or law enforcement officer . . . is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person.”  Considering the Guidelines in conjunction with the characterization of the driver’s action as a second-degree offense under N.J.S.A. 2C:29-2(b), the Court ruled that the officer’s decision was authorized and did not constitute willful misconduct. The Court thus concluded that the trial court correctly determined there were no credible facts in the record to establish that the officer engaged in willful misconduct during his pursuit of the fleeing driver.

Pension
Coins falling into jam jar labelled pension.

Most recently the new Jersey Superior Court, Appellate Division issued a decision in the matter of Behar v. Board of Trustees, Public Employees Retirement System, Docket Number A-0296-22, that discusses the very real pitfalls of post-retirement employment for public employees in the state of New Jersey. We want to bring these pitfalls to your attention and help you take prophylactic measures to avoid the same wherever and whenever possible.

Behar worked for the Division of Criminal Justice (DCJ) as a Detective 2 State Investigator. On March 13, 2017, he applied for a Special Service Retirement from PERS meaning that he had twenty five (25) years of pensionable service credit and was thus eligible to retire given that he was a sworn law enforcement officer. On that date, Behar completed an Application for Retirement Allowance and acknowledged three terms and conditions of retirement by checking off boxes on the application which state:

  • I agree to comply with all of the retirement application terms and conditions.
  • I certify that I have made no pre-arrangement to return to public employment after retirement in any capacity.
  • I certify that I have read the Post-Retirement Employment Restrictions.

After filing the application the Board approved the same at its regular meeting and sent a letter stating: [I]f you are considering working after retirement, you should be aware of the restrictions imposed by laws and regulations governing post-retirement employment. The letter also cautioned that it is your responsibility to inform your prospective employer that you are receiving retirement benefits from a New Jersey public retirement system and that his retirement benefits may be suspended or even cancelled entirely in the event of a violation, and you will be responsible for the repayment of benefits you were not entitled to receive.

In addition, the letter advised Behar if he became re-employed post retirement, he may be required to “re-enroll” in his former retirement system or a different retirement system. Behar was instructed to read “Fact Sheet #86,” a publication of the Division of Pensions and Benefits, regarding “Post- Retirement Employment Restrictions.”

In August 2021, Behar applied for an investigator position with the DOL, which is covered by PERS. He participated in a video interview and stated that he had retired from the DCJ and was receiving a State pension. On January 3, 2022, after collecting PERS retirement benefits for four and-a-half years, Behar began working thirty-five hours per week for the DOL.

On January 28, 2022, the Division received a Notification of Employment After Retirement Form from the DOL’s External Audit Unit advising of Behar’scnew post-retirement employment. Based on its investigation, the Division concluded Behar was required to re-enroll in PERS because he was employed full-time after retirement in a PERS covered position, citing N.J.S.A. 15A-57.2 and N.J.S.A. 43:15A-7(d)(4).

On February 3, 2022, the Division sent a letter to Behar and the DOL advising he was required to re-enroll in PERS, had to repay any retirement benefits he received after his enrollment, and that his pension benefit would be cancelled. The Division determined it was entitled to recoup the retirement benefits Behar received while he should have been enrolled in PERS. The Division informed Behar that he must terminate all PERS-covered employment in order to receive retirement benefits again, and he would have to re-apply for retirement benefits thereafter. As a result, the Division suspended payment of Behar’s retirement benefits effective March 1, 2022.

Behar appealed the matter to the Board claiming the DOL interview panel did not inform him that his re-employment would affect his retirement benefits. He also blamed the Division for not contacting him before he started working for the DOL. The Board rejected these arguments and affirmed. The Board considered Behar’s appeal and determined his return to full-time employment with the DOL violated PERS statutes and regulations regarding post-retirement employment. The Board decided Behar was an active employee in a PERS eligible position when he began working for the DOL, and thus, he was required to reimburse the retirement benefits he improperly receive. Bear appealed the decision to the Appellate Division

What is important to note in this case is that the Appellate Division has a very limited scope in reviewing matters such as Behar’s. The Court noted that a strong presumption of reasonableness attaches to [an agency decision] and the Court will not disturb that decision unless it is arbitrary, capricious and unreasonable, contrary to applicable law… or . . . not supported by substantial credible evidence in the record as a whole. Stallworth, 208 N.J. at 194. Furthermore, the Court was clear in stating that We [the Court] “may not substitute [our] own judgment for the agency’s, even though [we] might have reached a different result. Stallworth, 208 N.J. at 194 (quoting
In re Carter, 191 N.J. 474, 483 (2007)).

As a result of the case law cited above, the Court affirmed the Pension board’s decision stating that The Board had the statutory obligation to cancel Behar’s benefits because he became re-employed in a position with the DOL eligible for membership in PERS. N.J.S.A. 43:15A-57.2(a). Such an individual shall be re-enrolled in PERS and shall contribute thereto at a rate based on his age at the time of re- enrollment. N.J.S.A. 43:15A-57.2(a).

The reason that we are bringing this case to your attention is to inform you of the statutory post-retirement re-employment restrictions that are in place for public employees in the State of New Jersey. These restrictions do not just exist for law enforcement officers and individuals that retire and collect “special retirement pensions” in the state of New Jersey. Instead, restrictions exist in each of the retirement systems and apply for not only regular retirement pensions but also disability pensions as well.

If you have questions regarding situations such as the one referenced in this blog post, or questions regarding employment if you are receiving disability retirement benefits, consult with counsel that practices in this area of the law. Being one of these attorneys that practices and consults on public employee retirements, we often look into such situations and call on the Board of Trustees from the various retirement systems to issue a ruling on the matter before the member undertakes affirmative action that can have dire consequences. As they often say—An Ounce of Prevention is Worth Far More than a Pound of Cure.

When a New Jersey law enforcement officer or firefighter is suspended without pay pending the outcome of a disciplinary action, namely, termination charges, state law provides that a final determination on the charges shall be rendered within 180 calendar days from the date he or she is suspended without pay. Under the law, if a final determination is not rendered within that period, the officer or firefighter shall, commencing on the 181st calendar day, begin receiving the base salary he/she was being paid at the time of their suspension and shall continue to do so until a final determination on the officer’s or firefighter’s termination is rendered. The law also provides for exceptions that will “toll” application of the “180-day rule,” such as when a delay in proceedings is caused by the officer/ firefighter. There are also some technical differences in terms of the application of the 180-day rule between employees subject to the jurisdiction of the New Jersey Civil Service Commission and those working for non-civil service employers. Regardless, the 180-day rule applies in some form to both civil service and non-civil service law enforcement officers/ firefighters suspended without pay pending the outcome of removal charges.

The 180-day rule is beneficial because it allows subject cases to be fast tracked and is intended to provide for a prompt resolution to discipline when individuals have been indefinitely suspended without pay. It likewise encourages the Office of Administrative Law and/ or arbitrators appointed by the Public Employees Relations Commission to prioritize disciplinary actions subject to the 180-day rule so that they are concluded in an expedient manner. Litigation, however, can be complicated, particularly when the parties are unwilling (or unable) to settle the matter short of trial or arbitration. These proceedings are time consuming, fact-sensitive, and often involve numerous witnesses and multiple hearing dates. As a result, it is not uncommon for these matters to exceed that 180-day time span and at that point, a decision must be made as to whether the officer/ firefighter should seek to be placed back into “paid status” pending the outcome of the disciplinary action.

In making this assessment, one should be familiar with the potential pitfalls of going back into paid status after the 180-day time frame has expired should he or she subsequently lose their appeal of the disciplinary action. In such cases, the law requires that the officer/ firefighter must reimburse their employer for all pay received after the 180-day time period. If the individual fails to make reimbursement, the governing statute provides that the employer shall have a lien on any or all property or income which that officer or firefighter shall have, or in which the officer or firefighter may acquire an interest. This includes funds contributed by the officer or firefighter to the Police and Firemen’s Retirement System of New Jersey, any other State retirement system established by law, and all terminal pay, such as compensation for earned sick and vacation leave, to which the officer or firefighter is entitled.

Simply put, one must be cautious when deciding whether to take immediate action to go back into paid status under the 180-day rule as there is a significant downside if the officer or firefighter is unsuccessful in appealing their disciplinary action. There are certainly times when it makes strategic sense to seek relief under the 180-day rule. It may put pressure on the employer to offer a suspension in lieu of termination and it might pressure the judge or arbitrator overseeing the matter to promptly schedule hearing dates if the case has been on the “back burner” for one reason or another. It can likewise provide some short-term financial relief to an individual who has not received wages for six months or more. That said, if the officer or firefighter elects not to file an application to be placed back into paid status under the 180-day rule during the pendency of termination charges, this does not mean that he or she waived back pay. In other words, if the individual is ultimately successful in their appeal of the disciplinary action, they will be entitled to any and all back salary for the time period for which they were suspended without pay. As such, in cases where the outcome of a termination or removal action could go either way, it might make sense to wait it out without having to worry about potential liens / judgements should the individual not prevail in their appeal of the discipline.

One of the most common misconceptions is that suffering from pre-existing diseases and/or conditions is an automatic disqualifier from receiving accidental disability retirement benefits. Nevertheless, many applications for accidental disability retirement benefits are denied by the various pension boards due to an employee’s total and permanent disability being attributable to a pre-existing disease or condition. However, under the law, suffering from a pre-existing disease or condition is not an automatic disqualifier from receiving accidental disability retirement benefits.

Rather, the “traumatic” event from which the employee claims to have suffered from must be the essential, significant, or substantial contributing cause of the disability. In other words, the pre-existing disease or condition cannot be the essential, significant, or substantial contributing cause of the employee’s disability. This is an important distinction that New Jersey public employees must recognize.

Candidly, any individual over the age of 30 likely suffers from some type of pre-existing disease or condition, whether it be degenerative changes to our bodies, long-standing medical conditions, or some injury suffered during childhood or adolescence. Therefore, denying an employee’s application for accidental disability retirement benefits under the notion that an individual’s total and permanent disability is a result of a pre-existing disease, condition, or injury is often a convenient pretext or “easy way out” for pension boards. As such, individuals must be cognizant of the relevant law as it pertains to pre-existing diseases and conditions in the accidental disability realm.

In short, employees must establish that the work-related injury or “traumatic event” they suffered was the essential, significant, or substantial contributing cause of their disability. Therefore, both the pre-existing condition and the “traumatic event” can sometimes act in combination and still enable the employee to recover accidental disability benefits. As such, various factors such as what the pre-existing disease or conditions consists of, whether such disease or condition affected the employee’s job performance in prior years, and how the “traumatic event” occurred all become crucial considerations. Moreover, it will be imperative to present expert testimony that is able to differentiate and convey to the pension board and/or Court that an employee’s disability was substantially caused by the traumatic event as opposed to an underlying, pre-existing condition.

Quite simply, the law does not bar every worker who has a substantial or significant pre-existing medical condition and who is then severely injured at work from qualifying for accidental disability benefits. Nevertheless, if your application is denied for such a reason, it is vital that competent counsel be retained to properly assist you and help you obtain the benefits you seek.

For those of you in the know, it comes as no shock that the Licensing of sworn law enforcement officers in the State of New Jersey began on January 1, 2024. Now that the licensing implementation date has passed, with the exception of a very few, the vast majority of Patrol Officers, Sheriff’s Officers, Correctional Police Officers and State Troopers have been issued either one (1), two (2) or three (3) year licenses. The length of the licenses issued were staggered to permit the licensing board and the parent commands to perform the necessary investigations and back ground checks of each officer when he or she comes up for renewal in either one (1), two (2) or three (3) years from now.

However now that “licensing” is amongst us, attorneys that represent sworn law enforcement officers and the law enforcement officers themselves must now look at how they dispose of disciplinary actions a bit differently. Attorneys and officers must not only be concerned about the final outcome of a disciplinary proceeding itself, but one must also be cognizant of how the licensing committee will view the final disciplinary actions once they are disposed of.

Based on the foregoing, I thought it would be a good idea to revisit New Jersey Attorney General’s Guideline 2022-14, and in particular, section 9.11.2 of this guideline and the potential impact that it may have on law enforcement licensing. But first—what is the import of an Attorney General’s Guideline? Putting it in simple terms, the Attorney General is the Chief Law Enforcement Officer in the State of New Jersey. Thus, when the Attorney General issues a guideline, it is an Order that must be followed by all law enforcement officers, agencies and executives. Therefore, s long as the order is constitutional and not contrary to any State or Federal Statute, it must be followed and thereafter becomes the “law of the land” in regard to how policing takes place in the Garden State.

Attorney General Guideline 2022-14 is entitled “Transparency in Internal Affairs Investigations” and in summary its purpose is to:

establishes that certain categories of [officer] discipline will always require disclosure [to the public]…. These categories…include, but are not limited to, instances of differential treatment and excessive force. These disclosures expand upon Directive 2020-5’s focus on the length of discipline imposed, as experience has shown that [the major disciplinary] metric does not always capture serious misconduct.

With the stated intent in mind, section 9.11.2 of the guideline mandates that:

Every agency shall submit to the County Prosecutor and the Attorney General, and publish on the agency’s public website, a brief synopsis of all complaints misconduct where an agency member:

(a) Was terminated;

(b) Was reduced in rank or grade;

(c) Was assessed a suspension of more than five days.

(d) Had a sustained finding of discrimination or bias against any person because of the individual’s actual or perceived race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, sex, gender identity or expression, disability, nationality, familial status, or any other protected characteristic under N.J.S.A. 10:5-1 et seq., regardless of the type or severity of discipline imposed;

(e) Had a sustained finding that the officer utilized excessive force in violation of departmental policy or the Attorney General’s Use of Force Policy, regardless of the type or severity of discipline imposed;

(f) Had a sustained finding that the officer was untruthful or has demonstrated a lack of candor, regardless of the type or severity of discipline imposed;

(g) Had a sustained finding that an officer has filed a false report or submitted a false certification in any criminal, administrative, employment, financial, or insurance matter in their professional or personal life, regardless of the type or severity of discipline imposed;

(h) Had a sustained finding that an officer intentionally conducted an improper search, seizure or arrest, regardless of the type or severity of discipline imposed;

(i) Had a sustained finding that an officer intentionally mishandled or destroyed evidence, regardless of the type or severity of discipline imposed;

(j) Had a sustained finding of domestic violence, as defined in N.J.S.A. 2C:2519, regardless of the type or severity of discipline imposed;

(k) Resigned, retired, transferred or separated from the agency, regardless of the reason, while any internal affairs investigation or complaint was pending, and the misconduct ultimately sustained falls within categories (d)through (j) above or would have resulted in an action under categories (a)through (c) had the member not separated from the agency;

(l) Was charged with any indictable crime under New Jersey or an equivalent offense under federal law or the law of another jurisdiction related to the complaint.

However, in my opinion, the most important changes that are derived from the Directive is how the Attorney General redefines what a “sustained finding” means for purposes of whether an offense must be “published” and thus disclosed discipline to the public. In the Directive, the AG states that a:

“Sustained finding” refers to any finding where a preponderance of the evidence shows an officer violated any law, regulation, directive, guideline policy or procedure issued by the Attorney General or County Prosecutor; agency protocol; standard operating procedure, rule or training, following the last supervisory review of the incident(s) during the internal affairs process where the deadline for appeal has passed or following a ruling by a hearing officer, arbitrator, Administrative Law Judge, Civil Service Commission, or the Superior Court where the deadline for any subsequent appeal has passed. Allegations that cannot be sustained, are not credible, or have resulted in the exoneration of an employee, including where the previous finding has either been vacated, or overturned on the merits in any subsequent action, generally are not considered to be sustained findings subject to the disclosure requirements of this Policy. On the other hand, if the officer negotiates a plea or there is an administrative or civil settlement with the employer whereby the charge is dismissed, the charge would still be considered sustained, if there was sufficient credible evidence to prove the allegation, and the officer does not challenge the finding and obtain a favorable ruling by a hearing officer, arbitrator, Administrative Law Judge, Civil Service Commission or the Superior Court. The reporting and public dissemination requirements of (a) through (j) above become applicable once an officer’s discipline is sustained, as defined above. The reporting and public dissemination requirements of (k) and (l) above become applicable at the close of the reporting period during which they occur.

So, if you have gotten this deep into this article, you are probably one of four (4) types of people. You are either:

1—an attorney who dabbles in the representation of law enforcement officers facing discipline;

2—an attorney who focuses on representing law enforcement officers in disciplinary actions;

3—a law enforcement officer or union representative that wants to ensure he or she understands his or her rights and/or the rights of their membership; or

4—a law enforcement officer that is currently facing discipline and wants to be sure that his or her license is not in jeopardy

No matter what category you fall in, you have to understand what this directive states and means in regard to how discipline will be handled and disclosed; and, how charges are disposed of in a plea agreement. You can bet your bottom dollar that as a result of this directive coupled with the licensing regulations; more disciplinary cases will be tried in the future than in the past because of the interplay and impact that it will have on licensing. Furthermore, disposing of minor disciplinary infractions will be more difficult because of this directive and the interplay with licensing. Was this the intended consequence of the directive, probably not. However, it is like many of the other scenarios that today’s law enforcement officers have to face in New Jersey. They are the unintended consequences of intentional political acts that make policing more difficult and regretfully, a less desirable profession.

Both the federal Family Medical Leave Act (FMLA) and New Jersey’s Family Leave Act (FLA) provide that an employer may adopt a policy requiring an employee to exhaust accrued paid leave during periods of FMLA/ FLA leave. In these situations, an employee would have to simultaneously utilize paid leave during periods of FMLA/ FLA leave before they are able to take the unpaid FMLA/ FLA leave. At first glance, this might seem beneficial, and in many cases it is. However, it’s always better if the employee has the option to take such leave on a paid or an unpaid basis. Why would an employee want to take federal or state family/ medical leave in an unpaid capacity rather than a paid one? Well, because that employee may be able to avail him or herself to a monetary benefit through New Jersey Family Leave Insurance (FLI) (to bond with a newborn, newly adopted, newly placed foster child, or to provide care for a seriously ill or injured loved one) or New Jersey Temporary Disability Insurance (TDI) (for New Jersey workers who have to stop working due to a physical or mental health condition or other disability unrelated to their work).

Both FLI and TDI are only available to employees that pay into those programs. The programs, by definition, provide monetary benefits to eligible employees on leaves of absences that generally qualify as FMLA and/or FLA leave. However, according to the governing statutes and regulations, an employee is unable to receive FLI/ TDI benefits during FMLA/ FLA leave if they are utilizing accrued paid leave during such an absence. Because the FMLA and FLA leave afforded to employees is limited (12 weeks in a 12 month period and 12 weeks in a 24 month period, respectively), when a “concurrent exhaustion” or “stacking” requirement is in place, the employee will not be able to obtain FLI or TDI so long as they have accrued paid leave to use and won’t be able to collect said benefits (FLI/ TDI) until they have exhausted their accrued paid leave time. As such, a concurrent exhaustion requirement will limit the employee’s eligibility for FLI or TDI benefits during periods of FMLA/ FLA leave.

Conversely, when an employee is authorized to take unpaid FMLA/ FLA leave without having to “concurrently exhaust” accrued paid leave, the employee can avail him/ herself to FLI/ TDI during such a period while preserving their accrued paid leave for later usage. This is referred to as the “consecutive use” of FMLA/ FLA and accrued paid leave.

Thus, while an employer “may” adopt a policy requiring an employee to exhaust accrued paid leave during periods of FMLA/ FLA leave, both the FMLA and FLA statutes provide that nothing within either law is intended to diminish the benefits provided by an employer through a collective negotiations agreement. In other words, if your union contract expressly permits the “consecutive use” of unpaid FMLA/ FLA leave with paid accrued leave or there is otherwise an established past practice in place whereby your employer has permitted the consecutive use of such time, then the subsequent unilateral establishment of a policy requiring the “concurrent exhaustion” of FMLA/ FLA leave with paid leave by an employer, without negotiations, is likely grounds for an unfair practice charge and/ or grievance, depending upon the particular facts. In such situations, both the courts and New Jersey’s Public Employment Relations Commission (PERC) have held that the employer may not take such unilateral action as the concurrent versus consecutive use of FMLA/ FLA and paid leave is mandatorily negotiable. In other words, when your union contract allows for the “consecutive” use of such time or there is an established past practice in place that permits it, the employer is not permitted to simply establish a “concurrent exhaustion” policy and must instead negotiate the topic with the union.

In conclusion, if your employer has unilaterally adopted a “concurrent exhaustion” policy that contravenes past practice and/or explicit language in your union contract, it is important that prompt action is taken by the union to challenge the policy. Failure to take prompt action may result in a waiver by the union of their members’ ability to take unpaid FMLA/ FLA leave and accrued paid leave on a consecutive basis.

When filing an application for disability retirement benefits with any of New Jersey public employee pension systems, there are a myriad of considerations that must be taken into account and certain pitfalls that can occur along the way. One of the considerations and/or pitfalls that must be considered is whether a member has any active litigation pertaining to their employment pending at the time the application is filed. In the event there is such litigation, whether it be criminal, disciplinary, or civil, a member’s application will be held in abeyance or be placed “on hold” until such time as the litigation is concluded. Dependent upon the type of litigation, this could be for a period of months, if not years.

The Superior Court of New Jersey, Appellate Division, recently reaffirmed this principle in the unpublished case Roe v. Board of Trustees, Police and Firemen’s Retirement System, Docket No. A-3839-21, Decided March 11, 2024. In that case, the Court relied on the plain wording of N.J.A.C. 17:1-6.2, which provides that applications for disability retirement will be held in abeyance when a member is subject to criminal charges, disciplinary charges, or has any active litigation pertaining to their employment. Simply put, the outcome of those types of cases may have direct impact on a member’s employment date, compensation, and other factors utilized in determining whether a member is entitled to disability retirement benefits and/or the monies they can potentially obtain in retirement.

As such, if you are thinking about whether to file for disability retirement benefits, be mindful if you are subject to criminal charges, disciplinary charges, or in active litigation of some type pertaining to your employment. If that is the case, contact competent, qualified counsel to discuss your options and potential issues going forward.

As indicated in our post last week, deciding whether to utilize an attorney when filing for application for disability retirement benefits is an important initial consideration. Many individuals utilize the services of an attorney, while others do not. Nevertheless, many applications for disability retirement are routinely rejected by a Board of Trustees of a pension system for a myriad of reasons, irrespective of whether an attorney is utilized or not. Additionally, an application may be “partially denied,” wherein an individual seeking accidental retirement benefits may be approved for ordinary disability retirement benefits, but denied the accidental disability retirement benefits.

When an application for ordinary or accidental disability retirement is rejected, a member is notified of the rejection by a letter from the respective pension system. Within the body of the letter, it will often be specified as to the exact reason why the application was denied, whether it be for a procedural or substantive reason. After an application for disability retirement benefits is denied or partially denied, many individuals have the same question, now what?

Once an application is denied, a member has the right to file an appeal. Specifically, the member must notify the Board of Trustees in writing that they desire to appeal the decision, the reasons why they believe the Board’s decision was flawed, and requesting the matter be transferred to the Office of Administrative Law as a contested case. When you want to challenge the Board’s determination to deny or partially deny your application for disability retirement benefits, it is imperative to retain counsel at this stage.

When the matter is transferred to the Office of Administrative Law, the matter will proceed as a “court case” so to speak. There will be a judge, opposing counsel, and discovery/records exchanged. Eventually, a hearing will held where testimony is offered, usually by you [the member] and expert witnesses. Thereafter, written Closing Arguments will be filed for the Judge’s consideration. As you can expect, a qualified attorney can assist you with all these tasks and ensure your appeal is presented in the best way possible to maximize your chances at a positive result.

Therefore, the answer to the question “now what” is relatively simple. That is, the member needs to consult with competent counsel to: (1) determine if they have a viable appeal; and (2) seek their assistance in the appeal going forward. As illustrated above, the appeal process can be very complex and often involves highly intricate legal and medical issues. The process should not be taken lightly as receiving the requisite retirement and medical benefits is often critical to a member’s economic stability.