Friday, July 29, 2016

Ethics officials "reprimand" former Cumberland County Freeholder Deputy Director and impose an "admonition" upon his law partner.

On July 29, 2016, the New Jersey Supreme Court's Disciplinary Review Board recommended that an attorney ethics complaint filed in 2014 against former Cumberland County Freeholder Deputy Director (and now Cumberland County Democratic Party Committee Chairman) Douglas M. Long be resolved with a "reprimand."  The Board also imposed an "admonition" upon Long's law partner Albert K. Marmero.  In a November 4, 2016 Order, the Supreme Court imposed a reprimand upon Long.

An admonition is the mildest form of discipline that can be imposed and a reprimand is the second mildest.  The types of discipline that can be imposed, in order of severity, are admonition, reprimand, censure, license suspension and disbarment.  The Board has the authority to impose an admonition, as it did with Marmero, but higher levels of discipline including a reprimand must be ordered by the Supreme Court.

In the ethics complaint, the OAE had charged that Long's and Marmero's law firm trust account funds were being "regularly invaded and utilized as a 'line of credit' to fund the firm's operating expenses."  In a September 5, 2014 Random Notes on NJ Government article, I called out Long and Marmero for suggesting in filed documents that the firm's bookkeeper, without Long's or Marmero's knowledge, reached out to Long's brother for a $10,000 cash loan to keep the firm's accounts from being overdrawn.

The Office of Attorney Ethics (OAE), with both Long's and Marmero's consent, had filed Motions for Discipline by Consent to resolve both matters. In Long's case the OAE recommended a discipline within a range of a reprimand to a three-month suspension.  In Marmero's case, the OAE recommended a "reprimand or such lesser discipline as the Board may deem warranted."

In making its recommendation, the Board found that Long had "made extraordinary contributions to his community" including heading up an effort to make 400 backpacks and school supplies available to needy Vineland children.  The Board also noted that Long, who previously worked for an engineering company and performed limited in-house counsel work "had no experience or involvement with trust accounting or recordkeeping.  The Board also credited Marmero for his firm's community service and his "unblemished career of thirteen years at the bar."

Reprimand sought for lawyer who drank alcohol, crashed car and left the scene with his 7 year-old daughter in car.

On June 20, 2016, the Office of Attorney Ethics petitioned the New Jersey Supreme Court's Disciplinary Review Board to impose a "reprimand" on a Gloucester County lawyer who pleaded guilty to Cruelty and Neglect to a Child in the Fourth Degree following a March 20, 2014 Clayton car crash while "[h]e was operating a motor vehicle after having consumed alcohol . .  while his seven year-old daughter . . . was a passenger in his vehicle."

According to the Motion for Final Discipline and supporting brief, Ronald P. Sierzega of the Woodbury law firm of Puff & Cockerill, LLC, pleaded guilty on November 19, 2014 to the Cruelty and Neglect charge and was sentenced to one year of probation and a substance abuse evaluation in accordance with a plea deal accepted by Superior Court Judge Robert Becker.

Charges of Driving Under the Influence, Refusal to Submit to a Breathalyzer and Leaving the Scene of an Accident were remanded to the Elk Township Municipal Court where two alcohol related offenses were dismissed and a guilty plea was entered on the Leaving the Scene of an Accident charge.  Sierzega was assessed $189 in fines and costs and lost his driver license for six months.

Sierzega reportedly enrolled in an intensive substance abuse treatment program and "voluntarily purchased and installed an ignition interlock device on his vehicle."

New Jersey lawyers who commit offenses can be disciplined even when the attorney’s offense is not related to the practice of law.  A reprimand is the second mildest form of discipline that can be imposed.  The range of discipline that can be imposed, in their order of severity, are admonition, reprimand, censure, license suspension and disbarment.

It is unknown when the Disciplinary Review Board will rule on the motion.

Sunday, July 24, 2016

Riverton cop who was placed on "permanent layoff" in 1995 is awarded retirement benefits in 2016.

New Jersey law, N.J.S.A. 43:16A-11.2, entitles members of the Police and Firemen's Retirement System (PFRS) who have served for ten years to get a "deferred retirement allowance" when they turn 55.  Such members are entitled to benefits whether they are "separated [from employment] voluntarily or involuntarily" but are not so entitled if they were removed from their positions "for cause on charges of misconduct or delinquency."

At its April 11, 2016 meeting, the PFRS Board granted former Riverton Borough (Burlington County) police officer Michael Nocella's application for deferred benefits.  The Board noted that Nocella entered into a settlement agreement that was ratified by the Borough Council on September 14, 1995 and called for him to be placed on "permanent layoff," to relinquish his tenure rights and to never work for the Borough again.  Since "Riverton's administrative charges were never formally served on him," Nocella "was not removed for cause" so Board approved his application.

Pension Board was unaware in 2014 of criminal charges filed in 2013 against a police officer who applied for a disability pension in 2013 for injuries he sustained in a 2007 auto accident.

I have two questions: First, is it reasonable to expect the Trustees and staff of the Police and Firemen's Retirement System (PFRS) Board to make themselves aware of pension applicants' criminal histories before rendering decisions on their pension applications?  Second, how can a January 24, 2007 automobile accident that allegedly rendered a police officer "totally and permanently disabled on an orthopedic basis" be a plausible basis for a disability retirement pension application when the officer remained on the job until January 10, 2014?

According to the minutes of the Board's May 2, 2016 meeting, on November 3, 2012 former Newark Police Officer Ugo Bellomo (the brother-in-law of former Newark Police Director Samuel DeMaio)  reportedly "pointed his service weapon at or in the direction of another driver who cut him off on Route 24 near the Short Hills Mall."  He was indicted for aggravated assault on March 15, 2013 and the first news report that I can find about the matter was a May 26, 2013 Star Ledger article that noted public criticism of Newark's decision to keep Bellomo on the job, despite his indictment, until January 10, 2014--ten days after his requested retirement date of January 1, 2014.  Subsequent news reports were published on January 10, 2014 and January 13, 2014.

Yet, the PFRS minutes report that as of October 16, 2014, when the PFRS Board considered (and denied) Bellomo's September 30, 2013 application, the Board's Trustees "were unaware of criminal charges levied against him, and unaware that he forfeited his employment with Newark as a condition of dismissing the criminal matter and entry into PTI." A simple Google search on Bellomo's name would have disclosed the three newspaper articles.

Also confusing is Bellomo's claim for Accidental Disability retirement benefits was based on a January 24, 2007 automobile accident that allegedly left him permanently disabled despite the fact that he continued to work for the Newark until January 10, 2014.  While I am certainly no employment or pension expert, it seems to me that "total and permanent disability" is something that would be immediately apparent and, at the very least, wouldn't take more than five years to claim.

Saturday, July 23, 2016

Pension Board: Officer's loss of right to possess firearm is not "disabling condition."

At its January 11, 2016 meeting, the Police and Firemen's Retirement System (PFRS) considered a former Washington Township (Gloucester County) police officer's application for disability retirement benefits.  The officer had claimed that his loss of the right to possess or carry a firearm was a "disabling condition" that entitled him to disability benefits.

According to the meeting minutes, Steven Navan, who was represented before the PFRS Board by Charles Schlager, was discharged after a November 3, 2013 domestic violence incident resulted in him being prohibited from possessing or carrying a firearm.

The PFRS Board disagreed with Navan and denied his application.

Hillsdale police officer stripped of pension for "egregious behavior."

At its January 11, 2016 meeting, the Police and Firemen's Retirement System (PFRS) voted to impose a "forfeiture of all salary and service credits" against Hillsdale Borough (Bergen County) police officer "due to the pattern of his egregious misconduct over numerous years."

According to its meeting minutes, the PFRS Board minutes noted that several Internal Affairs complaints were made between April 5, 2013 and May 28, 2013 against Officer Sean Kavanaugh.  One of the complaints alleged that during 2006, Kavanaugh, while working as the Pascack Valley High School's School Resource Officer, "cultivat[ed] an intimate relationship with a 17 year old female student and, after the student turned 18, "had sexual intercourse with her [in a police cruiser assigned to him while she was intoxicated] until she became scared and told him to stop."

In a March 10, 2011 article in Pascack Valley Community Life, Kavanaugh, then 36 and a former teacher at St. Joseph Regional High School in Montvale, was quoted as having said that "he loves being able to interact with the students and, hopefully, steer them down the right path." 

Kavanaugh was also charged by Internal Affairs with leaving two civilians alone and unsupervised in the police station while he had sex with another civilian, lying about not having a account, falsely claiming to the police chief that he had CML Leukemia, harassing a woman in 2012 to the point of her getting a restraining order against him and allowing underage persons to consume alcohol at police headquarters.
Note: None of the Internal Affairs allegations against Kavanaugh have been proven and the settlement agreement apparently disposed of these allegations before they were adjudicated.  Accordingly, these constitute unproved allegations.
Prior to the completion of the Internal Affairs investigations, Kavanaugh reportedly entered into a settlement agreement with Hillsdale in which he "irrevocably resign[ed] his position as a Police Office for the Borough effective October 1, 2013."  Update: August 16, 2016.  The settlement agreement provides that Kavanaugh was placed on an unpaid leave of absence in May 2013.

Kavanaugh's lawyer (referred to only as "Mr. Manetta") said that Kavanaugh "served the public honorably and well" and that the complained of matters "concern[ed] his personal life and should be kept apart from the his professional life."  He also said that since "Kavanagh was not charged with a crime, . . . his service should not be considered dishonorable." 

The PFRS Board rejected both of Manetta's contentions and noted that Kavanaugh's having sex in a police cruiser and police station "shows clearly the overlap between Mr. Kavanagh's personal and professional behavior."  The Board also noted that "[t]he fact that [Kavanaugh] was not charged criminally is not dispositive because the pattern of his actions over numerous years shows a high degree of moral turpitude that bears directly on his employment as a police officer."

The Board voted to strip Kavanaugh of all his pension service and held that he is not eligible for ordinary disability retirement benefits.

Lawyer, who serves as Mayor of Orange, battles ethics charges.

On May 6, 2016, the District VC Ethics Committee, which processes ethics complaints against lawyers in west Essex County, filed a formal ethics complaint against Orange Mayor Dwayne D. Warren.  Warren denied the charges in a June 23, 2016 response filed by Aaron Mizrahi who is Warren's partner in the Orange-based firm of Mizrahi Warren, LLP.  Both the complaint and answer are on-line here.

The ethics complaint, which is being presented by Nancy A. Del Pizzo, a partner in the Hackensack firm of Rivkin Radler LLP, arose out of Warren's alleged failure to represent Sharon Berry in a foreclosure matter and also his alleged failure to reimburse her $3,000 retainer payment even after having been ordered to do so by a Fee Arbitration Committee.  The complaint also alleges that Warren was uncooperative with ethics officials and "falsely represented to the hearing panel chair that the matter was settling."

Warren claims that Berry retained him to file a motion to vacate a foreclosure judgment that had been entered against her home because she had not been properly served with the foreclosure complaint.  After investigating the matter, Warren claims that he learned that Berry actually had been properly served and that he advised her that the planned motion to vacate would be fruitless.  Warren claimed that Berry then "shift[ed] course" and asked him to instead "file a motion to rescind the Sheriff's Sale based upon her claim that she had been granted a loan modification by [the mortgage lender]."  Warren claims that the lender denied offering a loan modification and that he told Berry that he could not pursue the motion and that a lawsuit against the lender "could expose both Warren and her to damages because it was a frivolous claim."

Regarding the $3,000 retainer, Warren said that he did not actively participate in the Fee Arbitration matter because he had verbally settled with Berry by promising to reimburse her the retainer in full.  According to the complaint, however, Berry "testified under oath that she had not agreed to a settlement and that she had signed nothing."

Regarding the alleged false representations and non-cooperation charges, Warren claimed that he provided Fee Arbitration Committee Chair Marianne Greenwald with a copy of the settlement agreement signed by him (but not by Berry) and a copy of the $3,000 check Warren was prepared to give to Berry and that Greenwald told him that he didn't need to appear at the hearing. 

He said that after learning about the Fee Committee's award, he attempted to send Berry the $3,000 but that the address he had on file for Berry was incorrect and that he sent the check after learning the correct address.

This is only a summary of the complaint and answer and readers who want more information and context are directed to the filed documents which are on-line at the link above. None of the allegations against Warren have been proven. The charges will be tried before an ethics panel and the burden is on the ethics authorities to prove their allegations. 

Since 1995, attorney disciplinary hearings have been open to the public.  Anyone who is interested in being notified in advance of any hearings on this matter may complete and send a hearing request form to Ethics Secretary Jay M. Silberner via fax to 973-379-3197.

Tuesday, July 19, 2016

Sussex/Warren Land Use attorney faces ethics charges.

On April 28, 2016, the Office of Attorney Ethics filed a formal ethics complaint against a local land use attorney alleging that his conduct related to a White Township subdivision constituted a "knowing misappropriation of client funds and/or escrow funds" and "dishonesty, fraud, deceit or misrepresentation."

The ethics complaint charges Lyn P. Aaroe, who serves as attorney for both the Green Township (Sussex County) Land Use Board and the Hardwick Township (Warren County) Zoning Board of Adjustment, mainly concerns representations that Aaroe allegedly made to the purchaser of a lot in the Castle Ridge development in White Township regarding an encumbrance resulting from a debt the Castle Ridge Development Corporation owed to the Brian Plushanski Construction Company. 

According to the complaint, the development corporation, which was started by Aaroe and his wife Barbara Aaroe and transferred in 1995 to Robert Godusch, settled the construction company's lawsuit by agreeing to encumber seven lots of lands with a $390,000 mortgage.  The mortgage, however, was not filed with the Warren County Clerk when the development corporation sold a building lot to Andrew and Valarie Discafani.  The complaint alleges that Aaroe misled the title company and the Discafanis' lawyer, Michael Discafani, by not informing them of the unfiled mortgage and by mischaracterizing a notice of lis pendens that the construction company had filed against the lot.

In his June 27, 2016 response, Aaroe denies any wrongdoing and claimed that John R. Lanza, the construction company's lawyer, was supposed to have recorded the mortgage and that Lanza's decision to "sit" on the unfiled mortgage for more than a year enabled the development company to exercise a "creditor preference." 

According to the complaint, out of the closing proceeds, Aaroe paid himself $15,000 as a legal fee, paid Godusch $49,938.74 and used another $85,067.96 to pay off a tax sale lien that Washington Township held against his and Barbara's residence.  Aaroe said that the $85,067.96 and $15,000 were just compensation for his legal services and the excavating work that Aaroe said he personally did to improve the lots' value.

In a second count of the complaint, ethics authorities claim that the Castle Ridge Development Corporation failed to pay management consultant Barry Bourquin and in 2009 transferred a Vermont property it owned to a corporation Barbara owned for well under market price in order to hamper Bourquin from collecting a nearly $200,000 arbitration award he later won against Castle Ridge.  Aaroe countered in his answer that he had no interest in Castle Rock at the time of the transfer, that the $100,000 price was fair because the property was subject to a 10 year time share agreement and that "it is the absolute right of any property owner at any time and on any terms and conditions he, she or it deems appropriate to sell and convey real estate."

None of the allegations against Aaroe have been proven. The charges will be tried before an ethics panel the burden is on the ethics authorities to prove their allegations.  The above is a summary of the complaint and answer and readers who want more information are directed to the filed documents which are on-line here.

Monday, July 18, 2016

Tuckerton cop charged with siccing dog on woman maintains innocence, sues former employer.

At the root of one of my Open Public Records Act (OPRA) lawsuits headed to the Supreme Court is a police dashcam video of a January 29, 2014 incident which allegedly shows former Tuckerton Police Corporal Justin Cherry intentionally siccing a K-9 on a 57-year-old woman.

Despite having been indicted for the canine incident, Cherry filed a federal lawsuit against Tuckerton Borough on March 3, 2016 claiming that although he made a "split-second decision to deploy his K-9 partner [Gunner] to attempt to apprehend" Wendy Tucker, the 57-year-old woman, the "dog never apprehended Tucker."  In a May 2, 2016 court filing in response to the Borough's motion to dismiss, Cherry said that he "maintains his absolute innocence."

Beyond Tucker's alleged siccing incident, Cherry complained that Tuckerton officials failed to reimburse him for his "at home care" of Gunner and denied him training opportunities.  He also claimed that Police Chief Michael Caputo accused him of hacking his e-mails and that Caputo spoke to his son, Patrolman Joseph Caputo, about the Tucker incident instead of the officer who was in charge during that incident.  He also said that officials violated his rights by depriving him of being present at a meeting where his employment was discussed.

Cherry's civil complaint and the briefs in support and in opposition to the Borough's motion to dismiss are on-line here.  Sergeant Christopher Anderson is also named as a defendant in the suit.

Saturday, July 16, 2016

Haddon sued by fired cop who previously sued as a "whistleblower" and settled for $48,400

Update:  The court dismissed Brodo's complaint on September 15, 2017 (Order here) and Brodo appealed (Notice of Appeal here.)
On April 20, 2016, former Haddon Township (Camden County) Police Officer Denise Brodo filed a lawsuit against the Township alleging that her October 22, 2015 firing was in retaliation for having previously questioned why a fellow officer had been paid in cash for a working a special detail.  In 2013 she had filed a similar suit claiming that the Township wrongfully suspended her for five days for questioning the payment. The previous suit settled in July 2015 for $48,400.

Brodo's new lawsuit tracks the language of her prior one but alleges that after the old lawsuit was settled, the Township fired her for arriving to work six minutes late on one day and seven minutes late on another. She claims that no other employees were held to the same standard, that the lateness violations were a pretext and that her firing was retaliatory.

But, in a June 30, 2016 brief, the Township argues that Brodo's case should be dismissed because Brodo was habitually late to work and was previously suspended for 30 days and told that further lateness would result in her termination. 

The dismissal motion is scheduled to be heard by Judge Anthony M. Pugliese on July 22, 2016 and 9 a.m.

Laborer's discrimination suit against Mullica to be tried in September.

Jose Robles, who works as a laborer for Mullica Township (Atlantic County), filed a lawsuit against the Township on March 10, 2014 charging that his supervisor and coworkers, who are all white, discriminated against him because he "is of mixed race, both African-American and Puerto Rican."  Robles also claimed that he was harassed and retaliated against.

Robles, a Hammonton resident, alleged that his Supervisor, Steven Sperlak, would refer to him as "Hector, Carlos, Jesus and other traditionally Hispanic names" and that his coworkers told him that some equipment that was outside a local hunting club was for "hanging n****ers." Sperlak also allegedly made a joke about hangings that Robles found offensive.  His lawsuit claimed that when he asked why he wasn't give a code to access fuel from the fuel pumps, coworker Ronald Kahn said that it was "because you're Puerto Rican and you might steal gas."

The Township moved for summary judgment and Superior Court Judge Joseph L. Marczyk, in a June 10, 2016 order, dismissed one count of Robles' five-count complaint.  The dismissed count charged that Robles had been denied a promotion because of the alleged discrimination.  The remaining counts of the lawsuit are currently scheduled for trial on September 19, 2016, 9 a.m. before Judge Marczyk.  Most such cases, however, settle prior to trial.

The Township's brief in support of summary judgment, written by the Township's attorney, Robert A. Baxter of Haddonfield, states that Roble's allegations about the "hanging n****ers" charge was fully investigated and could not be sustained.  According to the brief, Karl Chase, a former employee who allegedly made the comment, denied making it and that an "independent witness stated that he did not hear it.  According to the brief, Kahn had filed a complaint against Robles for allegedly spreading rumors that Kahn was a racist. 

Robles is being represented in the lawsuit by Drake P. Bearden, Jr. of Mount Laurel.  Beardon's brief in opposition to the summary judgment motion is on-line supports the allegations made in the complaint.

Monday, July 11, 2016

Tenure charges filed against Penns Grove-Carney's Point teacher/union official.

I learned today by way of an Open Public Records Act (OPRA) request that tenure charges were brought on January 20, 2016 against a teacher employed by the Penns Grove-Carney's Point School District (Salem County). 

In the statement of charges, Ryan Tirrell was alleged to have used another district employee's login credentials without that employee's knowledge "to alter the schedules of a multitude of students and staff in the District Middle School in order to change teachers' duty schedules and to benefit himself."  Tirrell was alleged to have changed his own schedule to give himself a preparation period during the last period of his work day.

Tirrell, an executive with the Penns Grove-Carney's Point School Education Association (SEA), was allegedly suspended with pay on October 7, 2015.  According to DataUniverse, his annual salary is $56,749.

During a December 23, 2015 interview, he allegedly invoked the Fifth Amendment's protection against self-incrimination.

The charges are merely allegations and not proof of wrongdoing.   


Update: July 12, 2016

Further documents suggest that:

a) Tirrell was suspended with pay on October 7, 2015.
b) Tirrell was suspended without pay on January 19, 2016.
c) Tirrell, a Middle School science teacher, was discharged on February 16, 2016.
d) Tirrell, through attorney Keith Waldman, denied all allegations set forth in the charges.

Appellate Division affirms drunk driving conviction of man sleeping in car with engine running.

Jeffrey Gerber claimed that he was sleeping in his car in a tavern parking lot because he "did not feel like himself" and turned on the vehicle's engine to stay warm.  Millville Police Officer Nelson Ferrer said that although he did not observe Gerber enter or move the vehicle, he found him "slumped over the steering wheel" and that Gerber "appeared passed out." 

The Cumberland County Superior Court, Law Division, affirmed the municipal court's finding that Gerber was guilty of driving while intoxicated.  The court observed that a person can "operate" a motor vehicle within the meaning of the statute "even though actual driving is not observed."  The Appellate Division, in today's decision, affirmed Gerber's conviction.

One of the factors the court considered was that Gerber "was not in a reclined position, indicative of sleeping but was 'slumped forward over the steering wheel indicating that he had lost consciousness almost immediately."  Perhaps those who want to sleep it off after a hard night's out should recline in the passenger seat rather than the driver seat.  More information about similar cases can be found here.

Saturday, July 9, 2016

Gloucester municipal police lieutenant loses promotional challenge because he filed too late.

On January 8, 2016, Gloucester County Superior Court Judge Eugene J. McCaffrey dismissed a Gloucester County municipal police lieutenant's lawsuit that claimed that a less qualified sergeant had been wrongly promoted to police chief.  Judge McCaffrey ruled that lieutenant's lawsuit was untimely and did not reach the merits of the issue.

At issue is Woolwich Township (Gloucester County) Police Lieutenant Joseph A. Morgan, III's lawsuit against the Mayor and Township Committee that argued that Sergeant Richard Jaramillo, who assumed the chief's position on January 1, 2016, "does not meet the minimum mandatory requirements concerning experience" and scored much lower than Morgan on promotional examination.

The Township, however, pointed out that the Township Committee's resolution to promote Jaramillo was passed on September 21, 2015 and argued that according to law the deadline for filing a lawsuit to challenge Jaramillo's promotion was November 5, 2015--45 days after the date the resolution was passed.  Since Morgan's lawsuit was not filed until November 19, 2015, Jean S. Chetney of Woodstown, the Township's lawyer, argued that the lawsuit must be dismissed.

Morgan's attorney, Michael C. Mormando of Moorestown, had argued that the forty-five day filing period should not being to run on September 21, 2015.  Rather, he argued, the filing period should run from October 5, 2015 because that was the day that the Township Committee considered changing its mind on Jaramillo's promotion but ultimately elected to stay with its decision.

It is presently unknown whether Morgan is appealing the ruling.

Thursday, July 7, 2016

Ocean City firefighter who was prescribed medical marijuana challenged his suspension in court.

 Update: July 12, 2016

On June 9, 2016, Cape May County Superior Court Judge J. Christopher Gibson issued an eleven-page written decision holding that Wiltshire is not entitled to an injunction because he had not yet exhausted his administrative remedies.

Judge Gibson did, however, find that "the purpose of the New Jersey Compassionate Use Medical Marijuana Act is to protect patients, such as [Wiltshire] from being subjected to penalties for the use of medicinal marijuana. Although the Act does not explicitly address adverse employment action, the legislative intent and the pending legislation of Assembly Bill 2482 show that [Wiltshire] would be protected by the statute and Defendant must establish that the lawful use of medical marijuana has impaired the Plaintiffs ability to perform his job responsibilities as a firefighter."  Judge Gibson further found that the "determination of impairment is based on mere suspicion not supported by any expert or medical testimony in the record, nor does the policy articulate the basis for the threshold amount."


On February 5, 2016, a twenty year veteran Ocean City firefighter who served as an acting captain for seven years filed a lawsuit against the City of Ocean City (Cape May County) for suspending him without pay on November 12, 2015 because of his use of medical marijuana to treat a disease that causes involuntary muscle spasms and which he claimed could have rendered him unable to function if left untreated.

The Court's computer lookup portal show that the lawsuit was dismissed on June 9, 2016 and an Open Public Records Act has been filed to determine if the dismissal resulted from a ruling on the merits or a settlement by the parties.

In his lawsuit, Donald Brad Wiltshire claimed that he has Meige Syndrome and that marijuana "is the most comprehensive and effective medical treatment that his has experienced since being diagnosed in 2006."   Given that extended shifts gives him several days off per week, Wiltshire said that he can treat on his days off "and then perform without hesitation or limitation on his assigned work shifts.  He claimed that he "never brings his prescription medication to the workplace [or] takes that medication during his assigned work hours . . . and has never reported to duty while impaired by any medication."  He claimed that he had disclosed his marijuana use to command supervisors.

Shortly after the Ocean City Fire Department adopted a drug testing policy but prior to the policy's implementation, Wiltshire met with Fire Chief Christopher Breunig to review the policy and discuss what would happen if a random drug test resulted in Wiltshire testing positive for marijuana use.  The lawsuit claims that the City's drug policy initially exempted medical marijuana from its scope but that the exemption had been removed prior to the policy's final adoption.

According to the lawsuit, Breunig responded to the meeting by immediately removing Wiltshire from active duty and requiring him to take a drug test even though "it was plain and clear that the drug screen would reveal the metabolites of medical marijuana." Wiltshire was suspended without pay on November 12, 2015 "and that suspension according to defendant Breunig is with intent that plaintiff's position be terminated."

Wiltshire's lawsuit sought a declaration of his legal rights under the New Jersey Compassionate Use of Medical Marijuana Act and a court ruling "that the medical use of marijuana pursuant to the Compassionate Care Act cannot be deemed an 'illegal use' for the purpose of the City's drug policy."

Tuesday, July 5, 2016

Are members of the Hainesport Township Committee entitled to State Health Plan benefits?

Michael Dickinson
Mayor of Hainesport
Update: July 15, 2016

I have researched this question a bit more and now tend to think that:

1. Prior to May 21, 2010, an "elective officer" of a municipality was considered an "employee" for the purposes of enrollment in the State Health Benefits Program (SHBP) without regard to how many hours the officer worked or whether or not he or she was on the payroll or drew a salary.  N.J.S.A. 52:14-17.26.

2. On and after May 21, 2010, an "elective officer" was not eligible for SHBP enrollment unless he or she "appeares on a regular payroll and receives a salary or wages for an average of the number of hours per week [that is] not less than 25."  Ibid.

3. The critical question is whether an elective officer who was enrolled in the SHBP prior to May 21, 2010 and who still serves in office is "grandfathered" into the SHBP.  Stated another way, should the 2010 statutory change apply prospectively (allowing for the "grandfathering" of those who were enrolled on the statute's effective date) or should those enrolled on the effective date be required to conform to the new rules.

4. The SHBP Member Handbook states: "Any newly appointed or elected officer will be required to work a minimum of 35 hours per week to be considered “full-time” and eligible for coverage under the SHBP/SEHBP. Any employee or officer of a local employer or the State who was enrolled on or before May 21, 2010, is eligible for continued coverage based on the minimum work hour requirements in place prior to May 21, 2010, provided there is no break in the employee’s/officer’s service or reduction in work hours."

5. The Handbook's authors have determined that the 2010 statute applies prospectively.  While this is persuasive authority, it does not mean that a court, if asked, would necessarily come to the same conclusion.

6. When construing statutes, courts favor their prospective application. Lombardo v. Revlon, Inc., 328 N.J.Super. 484, 489 (App. Div. 2000).  So, the presumption is that elected officials who were enrolled in the SHBP on May 21, 2010 are "grandfathered" in.

7. But, there are three exceptions to the presumed prospective application: (1) the express or implied legislative intent required retroactive application because it was necessary to make the statute workable or give it the most sensible interpretation, (2) the statute is ameliorative or curative, or (3) the parties' expectations warrant retroactive application. Ibid.

8. The 2010 statute was widely regarded as "reform" legislation.  See, e.g. Governor Chris Christie's March 22, 2010 statement when he signed the law in which he calls the statute a "solid start" to reforming "a pension system that is rife with abuse, that promises substantial payouts with little buy-in, and that provides benefits that are wildly out of proportion with the private sector."  While Governor Christie's comments were directed at New Jersey's pension system, I believe that it is reasonable to also apply them to the health benefits system since both systems were "reformed" under the same package of bills. A reform bill such as this could be considered "ameliorative or curative" of what was a very bad deal for taxpayers.

In conclusion, I believe that given the stated purpose of the 2010 legislation, a case could be made, despite the Handbook's contrary interpretation, that the presumption of "grandfathering" should not apply to the 2010 statutory amendment and that Hainesport's elected officials should lose their health benefits unless they qualify as "employees" under the current definition in N.J.S.A. 52:14-17.26.

In order to test this conclusion, a resident in or taxpayer in Hainesport would need to file a complaint in Superior Court seeking declaratory and injunctive relief.  Since there are no facts in dispute and the court would only need to apply the law to a straightforward question, I don't believe that the legal fees would be too great and it is possible that a resident could ably present the question without need of a lawyer.

-----------------------Original Post ------------------------

Back in 2014, Clinton attorney Walter M. Luers successfully sued Hainesport Township (Burlington County) on my behalf to learn which Township officials and employees were receiving taxpayer-subsidized health insurance benefits. It turned out that all five members of the Township Committee had coverage for themselves and their families subsidized by Hainesport taxpayers.  The total 2014 cost of the coverage for the five Committee members and their families was $128,683.08 of which the five members contributed a total of $3,964.38 leaving the taxpayers to fund the other $124,718.70.

Lately, I looked into the changes made to the State Health Benefits Plan by a 2010 enactment that sought to reform it as well the state's pension system.  After reading it over, I am starting to think that none of the Hainesport Committee members are eligible for enrollment in the State Health Benefits Plan and that they haven't been since at least 2010.

The object of this posting to see if anyone who reads my blog and who has experience with the State Health Benefits Plan can look over my reasoning and advise me if I am right or point out my errors if I am wrong. This is still a work in progress and is out of my area of expertise and I freely admit that I could be wrong.

My reasoning as expressed in my e-mail today to Leo Selb, the Hainesport Administrator.  Unfortunately, Mr. Selb politely declined to correspond with me mainly because the coverage was obtained prior to his employment with the Township.
Dear Mr. Selb:

I realize that you are under no duty to correspond with me, but perhaps discussing the eligibility requirements for the New Jersey State Health Benefits Plan may be mutually educational--or at least educational for me.

What confuses me is why the Township Committee members feel it necessary to write letters confirming that they spend more than 26 hours per week on Township business-see, for example, Committeeman Fitzpatrick's attached, October 1, 2012 letter.  Here is some background on why I find this confusing.

The law that governs the State Health Benefits Plan was amended by a reform bill (Senate Bill 3/Assembly Bill 2460) that was signed by Governor Christie on March 22, 2010 and went into effect sixty days later.

This bill amended  N.J.S.A. 52:14-17.26 to read as follows:
After [the effective date the reform bill], the term “employee” means (i) a full-time appointive or elective officer whose hours of work are fixed at 35 or more per week, a full-time employee of the State, or a full-time employee of an employer other than the State who appears on a regular payroll and receives a salary or wages for an average of the number of hours per week as prescribed by the governing body of the participating employer which number of hours worked shall be considered full-time, determined by resolution, and not less than 25 . . .  (Emphasis mine.)
So, in order to be eligible for state health benefits, a person employed by the Township must be "a full-time employee" and be "on a regular payroll."  The 25 hours per week requirement only describes how many hours a person on the "regular payroll" must work to be considered a "full time employee."  It doesn't--at least to me--suggest that a person who claims to work 26 hours per week is a "full time employee" even if he or she isn't on the Township's "regular payroll." The threshold question is whether or not Fitzpatrick et al are "on a regular payroll."  If they are not, it seems to me that they're not eligible for state health benefits no matter how many hours they claim to work on township business.

I think that the overall aim of the reform bill was to make sure that health benefits went only to regular, full time Township employees who show up for work everyday.  I'm talking about people who work for the DPW and the like.  It seems like a stretch that the Legislature intended for a Township Committeeman who, I understand makes a $5,200 a year stipend (roughly four dollars an hours based on working 26 claimed hours per week), to get these valuable benefits.  And, the idea of letters like the one attached seems ridiculous because any elected or appointed official could plausibly claim to work 26 hours a week and there would be no way for anyone to prove otherwise. 

If Fitzpatrick et al are truly on the Township's "regular payroll," there should be something in writing that shows how many hours they are required to work.  Does such a writing exist?  If not, it would seem to me that they are not on the "regular payroll" and are not eligible for the State Health Benefits Plan.

Before I go to the State with this, I wanted to get your thoughts.

Very truly yours,

John Paff

Monday, July 4, 2016

Former employee's lawsuit against City is still pending despite guilty finding.

On October 1, 2014, an Air Force Reservist who worked as a senior clerk typist for the City of Salem Police Department (Salem County) filed a racial discrimination and false arrest lawsuit against the City, the Salem County Prosecutor's Office, Salem Police Chief John Pelura and other City and County employees.  On February 6, 2015, the same employee was found guilty of publicly releasing confidential Division of Youth and Family Service (DYFS) records in an alleged attempt to derail the mayoral campaign of Charles Washington.  Despite the criminal finding and the fact that the employee was sentenced to one year probation, her lawsuit is still pending.  Update 07/07/16: I learned from Gross' attorney that her conviction is under appeal.

According to her lawsuit, Terri Gross was suspended from her senior clerk typist position on November 28, 2012 because Chief Pelura, along with Brian Facemeyer and David Cornman of the Salem County Prosecutor's Office, cooked up a false story that she had unlawfully released the DYFS records to Washington's detriment--the very charge of which she convicted on February 6, 2015.  (According to a May 13, 2014 news article, the Washington named in the DYFS documents was not the mayoral candidate.) She also claims that Pelura, Facemeyer, Cornman, and Frederick Parkell conspired to falsely arrest her. 

Her suit also alleges that Chief Pelura, well prior to her suspension, harassed her for taking time off from work for Reserve service despite her compliance with a City policy on military leave.  According to the suit, Pelura "falsely reported to Salem City Council that [Gross] was abusing military leave" and allegedly told his staff that "he was going to put a stop to [it]."  Gross said that in 2010 she complained to then Mayor Robert Davis who told Pelura to stop harassing Gross about her military leave.

Gross claims that in retaliation for reporting him to the mayor, "Pelura begin circulating false information . . . that [Gross] did not live in the City; began conducting surveillance of [Gross] after she left work; solicited [defendant] Anthony Vanaman to surveil [Gross'] activities at work; solicited Sharon Vanaman, Dominique Callahan and others to follow [Gross] after she left work; increased his conversations with staff telling them that [Gross] was not performing her duties because she was taking too much time off for military duty [and] conducting staff meetings without including [Gross]."  She also claimed that Pelura "had a microphone installed in the vent of [Gross'] room to monitor [her] conversations [and] used an internal security camera to monitor [Gross] while she was in her room."

Gross also claims that Pelura worked to have Gross, who is African-American, replaced by Sharon Vanaman who is white and who is also named in the suit.  The suit claimed that Pelura and Sharon Vanaman openly referred to her as a "black bitch" and an "old black n***er." and Sharon Vanaman said "I hate that bitch and her in that f**ing military, I'm going to fix that n***er."  Vanaman allegedly took over Gross' position after she was suspended.

Finally, Gross' lawsuit claims that Dominique Callahan, who is white, was paid more than Gross even though she had less job responsibility.

The lawsuit was scheduled for trial on early June 13, 2016.  But that trial was cancelled, apparently because Gross' lawyer, Roland G. Hardy, Jr. of Pitman, was disbarred on May 3, 2016. Gross' new attorney is Christian A. Pemberton of Sicklerville.

Friday, July 1, 2016

Camden County: Municipal DPW worker files sex harassment lawsuit against Borough Clerk.

On April 22, 2016, a Department of Public Works employee filed a sexual harassment lawsuit against the Borough's Clerk alleging, among other things, that the Clerk would ask him he was wearing a thong and say "Hubba hubba hubba."

In his lawsuit, Stratford DPW employee Andrew Marano claimed that Borough Clerk John Keenan has been sexually harassing him and other employees "for years."  Marano's lawsuit, which was filed on April 22, 2016, claims that Keenan would repeatedly comment on "how tan he was," rub his shoulders and back while they were in Borough Hall and sometimes "grab or rub Marano's rear end." 

According to the lawsuit, Keenan, who reportedly oversees the DPW, asked Marano who was soaked after changing a lightbulb in the rain, to "take his jeans off and wear a yellow thong for the rest of the day."  According to Marano, Keenan "frequently made it known that he was homosexual" and "would text Marano while he was on vacation and ask Marano if he was 'at the nude beach' [and] to take pictures for him."

He claimed that Stratford had no meaningful sexual harassment policy and that "Keenan would frequently hire people to whom he was sexually attracted, even if they were not qualified or otherwise prohibited from working for Stratford."  Marano's lawsuit alleged that one of Keenan's favored hirees "would work during the summer with just a vest, without a shirt underneath" and said that "If I blow him [Keenan], he'll get me a motorcycle."  According to the lawsuit, the hiree soon ended up owning a motorcycle shop.  Marano claimed that Keenan's sexual harassment compelled to go on a leave of absence and ultimately lose his job.

Marano's suit also claims that Keenan retaliated against him after he complained that Keenan allegedly stole "hundreds of pounds of metal from Stratford."

The lawsuit is captioned Andrew Marano v. Borough of Stratford, et al, Docket No. CAM-L-1577-16 and Marano's attorney is Leo B. Dubler III of Mount Laurel.  On June 21, 2016, Stratford Borough and Keenan, through Ian C. Doris of the firm of Keenan & Doris in Rutherford, filed an answer to the complaint.  No proceeding are presently scheduled for the case which was assigned to Superior Court Judge Michael J. Kassel.

Marano's allegations are just that--allegations.  Nothing has been proven and Keenan and the Borough are entitled to civil discover, their day in court and to a trial by jury.