By Mitchell Krugel
The North Plainfield Police Department bosses had enough of Local 85 State Delegate Mark Messinger. He had been the target of so many internal affairs investigations, with so many of them coming after he helped a member win a grievance.
Now, they were hitting him with an IA probe for “insubordination and criticism of official acts.” The bosses were moving toward having Messinger declared unfit for duty and offered to let him retire, which would have left him with 50 percent of his pension. What he describe as a farce – “The entire thing was a complete fabrication,” Messinger said – caused him to be suspended from duty for three years and threatened to flush his career for doing nothing more than aggressively representing his Local 85 members.
Clearly, Messinger needed protection. This was one of those better-call-a-lawyer-and-wake-him-up moments. This was one of those pickles the NJ State PBA Legal Protection Plan, the vaunted LPP, was built for, and Messinger made that midnight call. With LPP representation in his corner, he sustained the three-year ordeal, reached vindication and was back on the job in 2015.
“It’s nice to know you have somebody in your corner that believes in you and your case,” Messinger declared about the plan and/or the attorney, or probably both. “The target had been on my back for a long time. The plan gives members the opportunity to defend themselves from unjust charges.”
Nearly 25 years ago, the LPP was hatched during a PBA convention at the Crystal Palace in the Bahamas. NJ State PBA attorney Robert Fagella authored the initial document that was intended to provide protection for rookie officers. After 10 years of independent oversight, the LPP came in-house to the PBA in 2002, and under the direction of LPP coordinator Kevin Lyons since 2007, it has grown to be the pre-eminent program of its kind in the entire country.
Covering on-duty-related issues ranging from time and attendance discipline to excessive force complaints, the LPP has leveled the playing field for members dealing with those would-be-king police department administrators who think they can go after anybody for anything. The Plan’s more than 500 attorneys include the best of the state in labor and criminal specialties for less than one-third of the cost to retain this caliber of high-end lawyers, which members will find can protect them, their livelihood and their families.
“We have outperformed expectations,” notes Fagella, whose firm Zazzali Fagella Nowak Kleinbaum & Friedman was one of the plan’s charter members. “I don’t think anybody thought it would be a successful as it turned out to be.”
Adds Stuart Alterman, one of the LPP attorneys who was there at the Crystal Palace that day in 1992: “It became the single most important move that the NJ State PBA made and most certainly one of the reasons why the organization is so successful. If the plan wasn’t there, a lot of members wouldn’t have their jobs.”
The Bahama drama in ’92 bubbled up with a first-pass plan that then-recently-retired member Ron Cohen would administrate through a private insurance company. Legal protections plans had been in use in the corporate and private sector for several years, and that’s what version 1.0 attempted to emulate.
Disciplinary charges were on the rise in 1992, so the initial goal was to give plan members the wherewithal to fight disciplinary claims, some of which were termed frivolous. Similarly, many Locals did not have the funds to provide the substantive defense members would need to meet or beat such challenges.
The private insurance company was operating with pooled money, and as the plan started to grow it became apparent that a cash reserve would probably needed. The growth also created a volume of claims and payments for services. A definitive structure was needed, and Fagella took on his best Thomas Jefferson to create a declaration of legal protection that would facilitate the funding, the process and the talent to put forth a viable Plan.
“Initially, we wanted to have it broken down to cover three categories: Disciplinary, civil matters and criminal cases,” he explained. “As time went on, we kept revising the plan, increasing the coverages and increasing the base of participation among attorneys. We realized we had to increase the membership in the plan, because without a big base we weren’t going to be able to do it.”
And eventually, they wouldn’t be able to do it without bringing the plan in-house. So in 2002, the PBA took over administration of plan finances and formed an LPP Committee, which included Lyons as chair and a Passaic Local 14 member named Marc Kovar as a member. Lyons took on the role as coordinator in 2008 while remaining as chair until he retired in 2013 and turned over leading the committee to Raritan Township Local 337 State Delegate and Executive Board Member Meg Hammond in 2013.
Along the way, the plan has been continuously revised to the point where Fagella says it will always be a work in progress to meet members’ ever-evolving needs. To get attorneys integrated, the LPP conducted seminars to make sure they knew how it worked and how to comply with all the necessary documentation.
Under Lyons’ administration, the LPP has been able to keep up with it ongoing goal of increasing membership. Many Locals made an adjunct to dues because the having the protection has become that important. And the Plan has built up a cash reserve to meet virtually even the most extreme requests like the manslaughter charge Hudson County Prosecutor’s Office Local 232 Detective Joseph Walker beat in 2014.
“We have tried to make it very user-friendly,” confided Lyons, whom Fagella compliments for devoting so much to improving the plan. “When I first started, there were about 17 steps to a claim. Now, there are about four. It’s become a big security thing, knowing that you have the PBA behind you funding your legal defense and you don’t have to worry about putting your mortgage up.”
When Alterman speaks to officers, whether in large groups or one-to-one, he reminds them about getting to the “finish line.” The lesson teaches that something will happen to virtually every law enforcement officer during a 25-year career that could threaten making it to the end with full benefits. A shooting, a public complaint, a chief who is out to get you – something is going to necessitate the protection the LPP provides.
“A Local wants somebody they can knock on their door in the middle of the might if they need help quick,” comments Hammond about why members need the LPP and what it does in terms of benefits.
Now, Hammond would not call being an LPP member a no-brainer. But membership in the Basic Plan is a meager $156 per year; the Unlimited Plan is just $256 per year.
So do the math; If you took the Unlimited Plan for the duration of your 25-year career, that $6,400 would buy about 21 hours of legal representation on the open market at the conservative rate of $300 per hour. (LPP lawyers typically get 50 percent more per hour on the open market).
That 21 hours might defend one minor to medium disciplinary complaint. In the Unlimited Plan, you get a $25,000 cap per claim, which at the LPP payout of $130 per billable hour to plan attorneys would net more than 192 hours of representation. For one incident. And that representation covers any on-duty-related matter – administrative, civil or criminal – from bar fights to getting you weapon back for being involved in a domestic to anything threatening loss of pay, rank or certificate, not to mention excessive force, on-duty shootings and whatever might happen with time-and-attendance-related charges.
The reasons for charges that leave members facing an internal are too numerous to list here, and it would take twice that space to explain some of the logic behind those charges being brought. But the more illogical and more nit-picking the charge, the more value from the LPP. As it has evolved, the plan has actually become a deterrent to chiefs and their charges.
“It has helped the members get a little more active negotiating discipline,” Lyons submits. “The LPP doesn’t get a letter in its file for objecting, and it keeps management from thinking you don’t have the money to afford representation to negotiate it from becoming bigger discipline.”
When contemplating the it’s-going-to-happen-to-you-at-some-point changing administrative environment in which you police, Lyons evokes one county Local that pays $10,000 in LPP membership fees per year. And that Local uses nearly $40,000 of LPP fees per year because the department is always looking to fire its people, suspend them and/or fine them days off.
Some departments are like that, Lyons adds, and some departments have formed such meaningful relationships with LPP attorneys over the years that they won’t go there. But with the public calling for more accountability and departments needing to create more transparency with everything on camera and everything questioned, you won’t make it to the finish line without the LPP.
“The plan has a great breadth of coverage,” Fagella emphasizes, “not only in the amounts but in scope. And we just expanded it again.”
Part of that expansion is providing psychologists and other professionals to conduct fitness-for-duty evaluations. Like several members facing such an evaluation, Messinger was sent by his department to an evaluator whose reports have been known to be called into question. The support of the Plan enabled him to see his own psychologist, who provided a refuting report and was a big part of helping to win his case.
Less than 1 percent of all claims actually go to the max, and administrative charges lead to the lion’s share of the claims. But don’t let that lull you into a false sense of security when the LPP offers the fluffiest blue style of all security blankets.
“Every police officer is under so much scrutiny because of the audio and video technology, and because the internal affairs process has become so onerous, every incident must be viewed as a serious development,” Alterman warns. “I’ve seen the most benign event blow up into members fighting for their careers simply because they went into an interview and said the wrong thing. So we get those calls in the middle of the night because somebody is involved in an incident and making the call is the only thing to get you to stop shaking.”
The LPP proudly offers experts in the legal field. From Fagella and his partners Paul Kleinbaum and Colin Lynch at Zazzali Fagella Nowak Kleinbaum & Friedman, which has been representing the NJ State PBA for more than 50 years; to Alterman, who is a former corrections and law enforcement officer and former member of Vineland Local 266; to the Union County-based Mets Schiro McGovern & Paris; to one of the original LPP-member firms, Galantucci, Paluto, DeVencentes, Potter & Doyle; to Iacullo Martino in Essex County, there are many different lawyers for many different needs who have each built up rapports and relationships with Locals and the towns they serve.
The Plan has grown to more than 100 firms and more than 500 attorneys virtually one lawyer at a time. Locals can suggest adding an attorney through their County Conferences, which sends the recommendation to the LPP Committee. A review vets the attorney to make sure there are no political ties to the upper echelon or other potential conflicts, and then the committee brings the name to the floor of a State Board of Delegates meeting for vote to add. Each attorney gets two readings on the floor, and, if there are no objections, welcome to the LPP family.
Likewise, any Local can suggest the removal of an attorney from the plan. If the committee concurs, the decision can still be appealed on the floor of a state meeting.
“Variety is the spice of life,” says Middlesex County Corrections Officers Local 152 State Delegate Mike Kaniuk, a longtime LPP Committee member. “Everybody gravitates toward the attorneys they have relationships with, but we want to give them a choice from a bunch that have done good business. We want them to make individual decisions.”
Procedurally, opening a claim is fairly simple. When members are targeted, they must first go to their State Delegate. Customized software that GreenPoint Solutions has written includes a database tracking all Plan attorneys, which expedites entering and processing claims. In many cases, the attorney responds while the claim is being processed, because in many cases time is of the essence and getting an attorney on site might save a job. (Lyons reminds never undergoing any type of questioning relating to an incident or an IA inquiry without having an attorney present.)
Administering a claim shows the personal attention from Lyons and the committee that makes the program so vital. When you call to request Plan protection, you get a human voice on the phone, not a “touch 2” and wait. When the claim is filed, the committee reviews and approves, and then Lyons sets the terms and limits of coverage for that claim.
“Every decision is made by somebody in law enforcement or a law enforcement officer,” Lyons states. “Believe me, I want to cover every single claim to the max and then everybody would love me. Our philosophy is, ‘How do we cover this?’ not ‘Do we cover this?’”
Appeals can be made to the State PBA Judiciary Committee and ultimately to the State Board of Delegates. Bills come directly from the attorney to the PBA, and every member attorney will unequivocally confirm that the bills get paid on time.
The win-win in this attorney-client relationship is that the lawyers get the guaranteed work, and PBA members get a lower rate for an attorney who has long-standing experience and expertise. “There’s nothing in discipline that they haven’t seen,” Lyons shares.
The LPP case files are filled with examples of disciplinary actions that have been avoided and criminal charges that have been dismissed. It might be a necessary evil with the current climate of internal affairs investigations increasing, but if that’s the truth, then don’t you want somebody in your corner who will stand by you and stand by you and see it through?
Messinger relates how his attorney, Charlie Sciarra, stood by him for three years to get vindication and the unfit-for-duty charge dismissed. In the end, the court wound up awarding Sciarra $65,000 in legal fees that were covered by the plan until the award. Do the math: That’s about 500 hours in coverage, and Messinger believes that Sciarra provided another 250 hours or so on top of that to ensure another officer would make it to the finish line.
“The odds are in your favor that you are going to use the Plan,” Messinger concludes. “And with the attorneys we have on the Plan, you can rest-assured that you will have top-notch representation.”