From those PBA members who plunged wearing kilts and war paint to those who plunged dressed as superheroes to those who plunged wearing barely anything, they accentuated the reason thousands of them once again stepped up for the Polar Bear Plunge on Feb. 20 in Seaside Heights: Pride.
As we reported in the March issue of NJ COPS, Judge Mary Jacobson ruled in favor of the NJ State PBA and other New Jersey labor unions in concluding that the Gov. Christie administration violated its Chapter 78 funding obligations by failing to make the full pension contribution for Fiscal Year (F/Y) 2015. That same issue is pending in a new lawsuit which we just filed for F/Y 2016.
The state recently filed an appeal of that decision to the New Jersey Appellate Division. Shortly thereafter, it filed a request to the State Supreme Court to hear
the case directly. We have supported that application because this issue is far too important to be delayed through review of an intermediate appellate court and must ultimately be addressed by the Supreme Court.
We are pleased to advise that the Supreme Court has now taken the case and agreed to hear it on an expedited basis. Briefs are due by the time we go to press, and oral argument on the case is scheduled for May 6.
This is shaping up to be one of the most important cases decided by the Supreme Court this term, or possibly any term. It is likely to address the issues of how to characterize pension rights, the circumstances in which pension obligations can be relaxed and what obligation the state and the governor have to make the contribution amounts owed for 2015 and 2016. We expect a decision by June 30, and, of course, we will keep you advised.
Court sets standards for employer liability for harassment/hostile work environment complaints
Recently, the New Jersey Supreme Court issued a significant decision which will have an impact on the ability of a law enforcement officer, and any public employee, to pursue harassment complaints. The decision also addresses when, and under what circumstances, an employer can be held liable for the actions of supervisory officers and employees. In Aguas v. State, the Supreme Court concluded that the State Department of Corrections (DOC) may have had a valid defense to a correction officer’s complaint of sexual harassment by two of her supervisors if the employee did not reasonably follow the DOC’s harassment policy. The court also adopted a broader definition of who can be considered a “supervisor” for purposes of establishing an employer’s liability.
Like most employers, the DOC had issued a written policy prohibiting discrimination in the workplace, and prohibiting sexual or gender-based harassment of any kind, among other prohibited conduct. The policy encouraged employees to report incidents to a supervisor or to the DOC’s Equal Employment Division but did not require employees to submit the report in writing. A corrections officer subsequently claimed that she complained of sexual harassment by two of her supervisors on several occasions. While there was a dispute over whether the corrections officer reported the incidents in accordance with the policy, there was no dispute that she was aware of the policy and had, in fact, filed complaints in the past.
The officer filed suit under New Jersey’s Law Against Discrimination (LAD). The trial court granted the state’s motion for summary judgment and dismissed the correction officer’s complaint. On appeal, the Appellate Division affirmed the dismissal of her complaint. Because the Appellate Division’s decision was unanimous, the corrections officer petitioned the Supreme Court to hear the appeal. The court granted her request. The Supreme Court reversed the Appellate Division’s decision and remanded it for further proceedings. Specifically, the court held that the state could avoid liability by demonstrating that it exercised reasonable care to prevent and correct any sexually harassing behavior. It could further support its case by demonstrating that the corrections officer unreasonably failed to report her complaint or to take advantage of any preventive or corrective opportunities provided by the DOC’s policy.
Additionally, the court rejected the state’s claim that it could only be held liable by supervisors who were empowered by the employer to take concrete employment actions against an employee or, in other words, to make a significant change in an officer’s employment status such as hiring, firing, failing to promote or reassign or causing a significant change in benefits. Instead, the court adopted a much-less-restrictive standard by defining a supervisor as one who is in charge of an officer’s daily work activities or had the authority to take or recommend employment actions affecting the employee or to direct the employee’s day-to-day activities in the workplace.
This decision will have an impact on the extent to which an employee must comply with a public employer’s workplace harassment policy. It will also have an impact on whether the actions of supervisory law enforcement officers can create liability for an employer even if they are not involved in establishing or setting policy, or in actually making changes in an employee’s status.
And while this case involved claims of sexual harassment, it is not limited to only that type of harassment or discrimination. The same, or similar, issues could arise for any claims of unlawful harassment or discrimination prohibited by the LAD. In such cases, the courts or administrative agencies will look to whether the employer had a written policy, whether the policy was followed and who committed the alleged harassing conduct, among other issues. The Aguas decision will not only affect whether an employee can demonstrate liability based upon an employer’s workplace discrimination policy, but also it will affect supervisory law enforcement officers and whether their conduct may result in liability of the employer or that supervisor.
Most public employers, if they want to try to avoid liability, have adopted workplace harassment/discrimination polices. The case emphasizes the importance of law enforcement officers being familiar with the policies adopted by their employers, and to follow those policies if a claim of prohibited harassment and/or a hostile workplace environment based on prohibited discrimination is being contemplated. By the same token, it is important that supervisory law enforcement officers become familiar with the policies adopted by their employers so any complaints that are made can be properly dealt with pursuant to the terms of the policy. The actions or inaction of supervisory officers may result in liability on the part of the employer and perhaps also discipline of the supervisor.
What every police officer needs to know
By Jennifer Trattler
Who best to inform you on how to use the evidence of video cameras to your advantage than the man who does it for a living? So, the NJ State PBA flew in Michael Rains, the principal and founding member of the California-based Rains Lucia Stern Law Firm, to speak to PBA members at the annual mini-convention in Atlantic City on March 4.
Rains, the head of the Criminal Defense and Legal Defense of Peace Officers Practice Groups at his law firm, was a former officer with the Santa Monica (California) Police Department and came from a place of understanding during his nearly two-hour long presentation.
“I’m here to talk about your new world. Your new world consists of video evidence. The realities of video evidence and recent events in Ferguson and New York have changed the way of police work forever,” stated Rains.
Body cameras are coming. There’s no way around it. Departments and the PBA have to prepare for it but as officers; you have to prepare yourself.
Rain first explained the six assumptions that every officer needs to make about video evidence.
The six assumptions
- Video and audio evidence of police use of force is usually graphic and ugly.
- Every contact between an officer and individual is being recorded.
- The fact that an officer does not recall an incident as it is shown on the video does not mean the officer is lying.
- Video evidence is more clearly and accurately analyzed if audio recordings accompany it.
- Video may not capture the event precisely and may only provide circumstantial evidence.
- Forget about watching a video replay of an incident once and understanding what the video shows. In most cases analyzing video evidence accurately requires hours of time.
And Rains wrapped up his segment by addressing the most important takeaways from the lecture.
The 10 most important takeaways from wearing body cameras
- When should the body camera be activated?
- Right of police officers to review video before preparing reports and giving interviews.
- Procedures for redacting private and personal information accidently recorded.
- The length of time video is stored and retained.
- Monitoring by supervision unrelated to a complaint or investigation.
- Department use of video for training.
- Can video be obtained under the Freedom of Information Act?
- The cost:
- Paying overtime to review video at the end of shift before writing a report.
- Storage space and uploading video content to a server.
- Repair and maintenance of equipment.
- Hiring a systems administrator.
- Educating the public about limitations of video evidence and why officer’s accounts differ from the video.
- Re-thinking how the agency will respond to the public and media when a graphic or ugly use of force captured on video goes viral.
- Freeze and close existing state and local pension plans.
- Replace pension plans with a new “cash balance” retirement plan (similar to a 401K but with several distinctions to make it less volatile).
- Transfer assets, liabilities and responsibility for old and proposed pension plans to the unions to manage.
- Shift certain pension costs from the state to local governmentsand offset increased local costs by using combined pension “savings” (which means that any money saved from closing PFRS and other funds would be used to offset what the state would have been paying to fund the teacher pension plan).
- Adopt a constitutional amendment to mandate that the state pay off its pension debt but also to eliminate the “nonforfeitable right” to a pension (meaning in part it would abolish the law that says the state can’t cut your pension once you’re on the job).
We have previously reported on the Appellate Division’s favorable ruling in July, 2014 in the matter entitled Berg v. Christie, et als. The case involves the PBA attack on the effective “freeze” upon COLA increases for PFRS and other public employees. Chapter 78 effectively eliminated COLA increases for the foreseeable future and this suit was designed to compel those payments. In its decision, the Appellate Division ruled that retirees do have a “contractual right” to annual COLA increases and that COLAs are part of the promised pension benefit.
First, the court held that COLA benefits are part and parcel of the base pension benefit itself. The court rejected the governor’s argument that COLA benefits were not an integral part of the pension system, but were instead gratuitous payments periodically authorized by the legislature.
Second, the court agreed with us that COLA benefits, like the base benefits, are a “contract right” to which retired members may seek enforcement. This was based upon the “non-forfeitable right” to pension benefits contained in a 1997 statute. No court had previously ruled that pension benefits – either COLA or the base benefit – constitute a “contract” which is enforceable under law. The Appellate Division remanded the case to the trial court to address a number of issues, including whether there is a sufficient “fiscal emergency” which allows the state to “breach” the contract right of retirees to the COLA benefit.
Since we last reported on this case, the governor has sought review by the New Jersey Supreme Court. We have opposed that request, arguing this is a matter which first should go back to the trial court for a full record before the Supreme Court reviews it. Further trial court proceedings have to wait until the Supreme Court acts.
One issue which has been raised by members is whether this court decision, if upheld, applies equally to retirees who retired prior to 1997. Arguably, there is a distinction between pre- and post-1997 retirees. As noted, in 1997 the legislature enacted the “non-forfeitable right” statute (N.J.S.A. 43:3C-9.5(b)) which is effectively the springboard for our claim that there is a “contract” right to COLA benefits. While we have also taken the position that there is a contract right to a vested pension even without regard to the statute, obviously the statute is our strongest point.
We believe, and continue to argue, that statute applies to individuals who were already retired when it was enacted in 1997. However, the Appellate Division in Berg noted it specifically was not deciding this issue. In footnote 19 of its decision, the Appellate Division stated:
We have intentionally refrained from addressing the scope of the class entitled to protection under section 9.5.As previously noted, a class has not been certified in this case, and the record contains minimal information about the individual plaintiffs. Those employed between 1997 and 2010 gave the State the benefit of their labor in exchange for the contractual protection section 9.5 provided, and those who retired during that time presumably did so in reliance on having contractually-guaranteed COLA benefits in retirement. The parties have not briefed, and we have not addressed, whether the necessary elements for the formation of a contract exist with respect to employees who retired before section 9.5 was enacted, and who had since July 1, 1970, been receiving COLAs. That issue may be raised on remand to the trial court.
In short, while we continue to take the position that the 1997 “non-forfeitable right” statute applies to all retirees, regardless of the year in which they retired. This remains an open issue that will also have to be addressed by the trial court on remand. That should occur once the Supreme Court decides whether to hear the State’s appeal of the Appellate Division decision.
There is an old saying in government that there is no Republican or Democratic way to pick up the garbage. In the case of analyzing elections, there is certainly a Republican and a Democratic way to view the 2014 midterm elections. There is also a PBA way to view the election, but I will get to that later.
What is obvious about the latest election nationally is that the Republicans came out with a massive sweep of wins throughout the country from the U.S. Senate into a number of State Houses. A Republican will call this result a repudiation of the President and his policies and a victory for limiting government and growing the economy. A Democrat will look at the numbers and point out the two-thirds of the electorate failed to vote and that it was general unhappiness about partisan gridlock that poisoned the well against their candidates.
As with most things in politics, there is some truth in both opinions. Polls showed voters were disgusted by politics in Washington that blamed both parties for a lack of progress. In addition, recent Congressional redistricting throughout the country has provided the GOP with a nearly built-in House majority from districts drafted to be friendly to them. But there is no doubt that after six years of President Obama, a struggling economy, chaos in the Middle East, the failure to implement Obamacare as planned, gridlock in Congress and the history of midterms for a second-term president that those that did vote overwhelmingly expressed their displeasure with the Democratic Party leadership.
Republicans didn’t just win the easy seats, they won in Democratic districts, in Democratic states and they defeated moderate and conservative Democrats in the South and West. They took a majority in the U.S. Senate that likely will be 54 Republican Senators. They expanded their majority in the House to numbers they haven’t had since Herbert Hoover was president.
There will be 32 Republican governors next year after the GOP won formerly Democratic spots in Illinois, Maryland and Massachusetts. They also have taken control in more state legislatures than ever before. Even in Pennsylvania, where a hugely unpopular Republican governor lost, GOP candidates trounced Democrats across the state to expand their majority.
Why should PBA members care what happens in Maryland or Pennsylvania or in the U.S. Senate? First, the people and groups that funded those wins came after public sector labor across the nation and now there is a solid foundation to push for the end to collective bargaining and pensions in more places. New Jersey does not exist in a vacuum. What happens in other states does have an impact here as ideas, legislation and the game plan to implement those travels fast.
Second, the closeness of many of these contested races, some still undecided, proves that every single vote makes a difference and blocks of unified voters can control an election. Legislators of both parties do not forgot the groups that stood with them in close elections. Roughly one-third of voters came to the polls; that leaves a lot of room for a unified voting block to make or break a campaign.
While there was a massive wave of change hitting nationally, absolutely nothing really changed federally in New Jersey as Sen. Booker and every incumbent House member was re-elected. For the PBA that means that 100 percent of your endorsed candidates were re-elected or elected to their first terms. The PBA did make a difference, especially in District 3 where Republican Tom MacArthur took an open seat in Congress by a wide margin in a District many thought would come down to the wire. MacArthur was so appreciative of the PBA that among his first calls to say “thank you” was to the State PBA.
Election Day also saw State Senator Donald Norcross elected to Congress in the 1st District. This is significant in that he will be filling in the remainder of the term starting in mid-November left vacant when Congressman Andrews stepped down and that his leaving will necessitate the appointment of a new chairman of the Senate Law and Public Safety Committee. That Committee is obviously important to the State PBA and we will be engaging the new chairman as soon as the appointment is made by the Senate President.
The key big picture question following the election is whether a Congress controlled again by Republicans can work with a lame duck Democratic president. Will either side be willing to deal or will they just let politics dictate more gridlock? Will conservatives in Congress allow the Republican leadership to work with the President? Will Democrats hopeful of replacing the President in 2016 and winning back Congress allow the President to give Republicans any policy victories?
So PBA members should reflect on these elections not only for their national implications but on what it means here in New Jersey. First, turnout was low in 2014 but it could be even lower in 2015 when only the General Assembly is on the ballot. Voter turnout is historically low when the legislature tops the ticket – it was 27 percent in 2011. That equals opportunity for State PBA members to impact the legislature. A lot more will be written and discussed about how that could happen but there has never been a more important time for PBA members to act as one at the ballot box.
Second, while it is widely assumed Gov. Christie will run for President, no one knows when he may announce or if he will resign to run. If he is running for President does he leave Republicans to run for Assembly seats on their own in 2015 or does he make it his mission to have one last major victory before leaving for the Presidential trail by putting all his eggs in the basket of making the Assembly Republican? Or he could stay put to be a king-maker for the eventual GOP nominee and continue on as he has before.
PBA members therefore must be thinking about 2015 today and watching carefully what is going on in Trenton as the decisions made there now will dictate PBA positions this time next year. The choice to ensure members register to vote, to do a “PBA Day in Trenton,” PAC discussions and greater focus on individual legislator relationships aren’t happening by accident. As we can tell from the last election, campaigns have meaning and who wins really matters. It is therefore best to be the one who decides who wins and who loses before they decide whether you win or lose in the legislature.