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Creation of the Administrative Hearing Disciplinary Review Board through Collective Bargaining Agreement
The purpose of this article is to assure fair Administrative Hearings in police disciplinary matters.
If a law enforcement officer is brought up on charges internally, the charges are first heard at the local level by either a police or township official. The authority for these hearings is either Title 4A, (civil service), Title 40A, or a combination of both.
Title 4A states that an employee is entitled to a hearing at a local level before the appointing authority or it's designee, but does not define this further. It does not dictate whether it should be conducted before a board or a hearing officer.
N.J.S.A. 40A:14-148, similarly states that disciplinary matters may be heard by a hearing officer, authority or board.
The disciplinary hearings at a local level are usually referred to as Loudermill hearings. The landmark case of Cleveland Board of Education v. Loudermill, only essentially clarified that a worker cannot be fired without some type of pre-termination hearing or due process. There is no structural component established or final due process garnered in Loudermill.
Garrity Rights: Apply to the right of a public employee not to be compelled to incriminate themselves by their employer. These rights are based on the 1967 United States Supreme Court decision Garrity v. New Jersey. Garrity Rights apply only to public employees, because they are employed by the government itself. |
Weingarten Rights: Apply to the right of a unionized employee to request union representation for any investigatory interview conducted by their employer, in which the employee has the reasonable belief that the discussion could lead to disciplinary action. These rights are based on the 1975 United States Supreme Court decision NLRB v. J. Weingarten Inc. The Weingarten decision itself applies only to private sector employees, but the federal government and many states have extended similar rights to public employees via legislation, court decision, and/or rulings by state labor boards. In some cases, unionized public employees have enshrined Weingarten Rights into their collective bargaining agreements. |
Loudermill Rights: Require due process before a public employee can be dismissed from their job. These rights are based on the 1985 United States Supreme Court decision Cleveland Board of Education v. Loudermill. Generally, these rights require a public employer to offer to have a "pre-termination" meeting with the affected employee; at this meeting, the employer presents their grounds for termination, and the employee is given the opportunity to respond. |
Unfortunately, due to lack of structure in these hearings, they are used only as a formality to impose discipline. The hearing officers are very often local officials with no clear understanding of the law, who are led as puppets by the Administration. A good Administrator would research the impact of his decisions prior to making them. Unfortunately, do to the slow turn around time of these cases, an officer who is fired during the term of one Administration will more than likely not be adjudicated during the same term.
An Administrator should be shown the costs of processing these cases through the court system, including the legal costs, back pay, front pay, emotional distress and punitive damages, which will be passed on to the tax payers. He should consider these costs before rendering a costly decision. The misappropriation of Department funds to pay for the defense of a wrongful termination suit will be absorbed by the taxpayer and should instead be appropriated to operating costs of the Department. These expenses will also drive up the costs of insurance for employees, a cost which ties up bargaining agreements.
He/she should also be supplied with similar case law that will act as a guide in making a determination. More often than not, the City solicitor authors the decision and the hearing officer simply signs it.
This process has caused these hearings to be fondly referred to as a Joke, Kangaroo Court, Henchman's Tribunal, Hangman's Court or a Guilty. On a national level, the US Senate addressed many of these matters in Senator Biden's Law Enforcement Discipiline Accountability Act of 2005, which was enacted in 2011 and provides that an officer is to have a hearing within a certain amount of time or be placed back on the payroll.
It is important to note that N.J.S.A.40:14-148 and Title 4A have no language that excludes police unions from establishing contractual language that call for any number of unlimited alternatives to the manner in which a disciplinary hearing may be conducted.
The following is a list of alternative strategies that Unions may incorporate into their Collective Bargaining Agreements to remove the disciplinary hearing from the local level and implement comprehensive measures to deal with issues relevant to disciplinary actions. (Please consult with your Union attorney as to the plausibility of these suggestions).
1. The formation of a Disciplinary Review Board to conduct disciplinary hearings at the Administrative level.
2. Members of a Disciplinary Review Board may not be employed by the same municipality as the effected employee.
3. The Disciplinary Review Board (DRB) is to be established by mutual agreement of management and labor, and incorporated in the Collective Bargaining Agreement (CBA).
4. The DRB shall be comprised of an odd number of members to include one police officer with no rank, one ranking supervisor, and one neutral administrator (none of whom may be from the same municipality).
5. The Disciplinary Review Board's decision shall be binding on the appointing authority in terms of disposition of disciplinary cases.
6. The costs of the DRB Administrative hearing shall be split between the charging authority and the disciplined officer's union.
7. Statute of Limitations in which a disciplinary charge may be brought must be strictly adhered to, the 45 day rule.
8. The disciplinary hearing will be properly recorded by either a court reporter or electronic recording.
9. All parties retain full access to labor representatives and counsel.
10. All parties retain rights of full discovery and access to witnesses.
11. That the disciplined officer have the option of having the hearing in the full view and venue of the public.
12. The DRB will convene on two occasions for each incident. The first hearing will be to decide guilt or innocence, the second to determine the penalty. This specifically calls for the separation of fact finding and penalty phases.
13. The DRB shall not have access to the employee's service record until and only after an employee been found guilty of a specific charge. The employee's service record may then be examined by a second DRB to determine penalty in the actual penalty phase.
14. A second DRB is to be convened for the penalty phase of the hearing and may not consist of the same members.
15. If a Union chooses a lone hearing officer, said hearing officer must be neutral and impartial person that is not employed in the same municipality as the effected employee and must be approved by mutual agreement of all parties concerned.
16. An employee's work violation history is to have a definitive retention duration period. A reprimand or suspension record should be deleted after a set number of months, as per stipulation of contract agreement.
17. Once an infraction is removed from an employee's file, it may not be introduced in any subsequent proceedings.
18. Employees terminated as a result of a DRB hearing retain pay status until the matter is resolved either through arbitration or through the appropriate court.
19. All parties concerned will have ample opportunities to produce witnesses and or exculpatory information and resources.
20. The DRB's decision will be appealable through Arbitration, prior to presentation to the Office of Administrative Law.
The implementation of these measures should effectively control the Devious Tactics used by police management to assassinate the character of an individual and debauch the morale of the organization.
These tactics include:
The starving out consists of an employee improperly discharged or knowingly discharged improperly and starved by the brutal economic conditions imposed by no wages in the interim between termination and redress at the Administrative Law level.
The intent of this measure is to force the ousted worker to either accept a very long suspension, give up, quit or accept termination and seek out another career. By analogy, it is not that much different than a innocent person accepting a plea bargain.
Stacking consists of an employee being bombarded by a myriad of minor and major disciplinary complaints in the shortest amount of time possible. Stacking is designed to give the trier of fact the impression that the employee is a much bigger problem than he really is.
The stacking method consists of deliberate and set exaggerations as to the the seriousness of a charge. Specifically, stacking consists of a deliberate misuse of New Jersey's 4A Statues under general causes.
In stacking, the most minuscule of infractions appear under the most serious of headings under the general causes provisions, such as not wearing a hat being manfisted as incompetency, insubordination and the inability to perform duties.
All Unions and their attorneys are further reminded to have definitive contractual agreements on the use of psychological Fitness for Duty exams on seasoned officers.
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