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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 40, 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 known nationally as a Loudermill hearing. The landmark case of Cleveland Board of Education v. Loudermill, only essentially clarified that a worker can not be fired without some type of hearing. There is no structural component established or final due process garnered in Loudermill.
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 fund raises for the officers. 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
is attempting to address many of these matters in Senator
Biden's
Law Enforcement Accountability Act of 2005.
However, this legislation has not
been signed into law.
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.
18. All parties concerned will have ample opportunities to produce witnesses and or exculpatory information and resources.
19. 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:
"Starving
Out"
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"
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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presented at this site should not be construed to be formal legal
advice nor the formation of a lawyer/client relationship.