Officers’ Rights
The chill of Winters is here to stay for the foreseeable future
STUART ALTERMAN
When you have represented law enforcement officers for a number of years, very few things surprise you or faze you as an attorney. However, the New Jersey Supreme Court threw most attorneys who represent law enforcement officers for a loop in 2012 when it issued its decision in the matter of Winters v. North Hudson Regional Fire and Rescue.
The New Jersey Supreme Court framed the issued in Winters as follows:
In this matter, we consider whether a plaintiff, who was removed from public employment after positing a claim of employer retaliation in a civil service disciplinary proceeding, should be barred from seeking to circumvent that discipline through a subsequent Conscientious Employee Protection Act( CEPA) action also alleging retaliation.
The New Jersey Supreme Court went on to note: As a general matter, it is critical that there be intelligent and respectful interplay between the two systems of relief that may be called on to review the discipline of public employees – the civil service disciplinary system and CEPA’ s relief from retaliatory adverse employment action by an employer.
Winters involved the identical facts in both the administrative proceeding and the CEPA claim. As the New Jersey Supreme Court described it:
A litigant should not be permitted to participate in the administrative system designed to promote a fair and uniform statewide system of public employee discipline, raise a retaliation defense( as plaintiff did here), and then hold back on the defense in an attempt to save it for later duplicative litigation. No efficient and respected system of justice can permit the spectacle, resulting disrepute of inconsistent litigated matters involving the same transactional set of facts, notwithstanding that the forums embrace judicial and quasi-judicial proceedings.
The New Jersey Supreme Court repeated that holding
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