when it opined:
Findings made as part of the discipline process will have
preclusive impact in later employment-discrimination litiga-
tion raising allegations of employer retaliation based on the
same transactional set of facts.
The New Jersey Supreme Court specifically held:
Rather, if an employee and employer engage the system of
public employee discipline established by law and the em-
ployee raises a claim that employer retaliation at least par-
tially motivated the decision to bring the charge or the level of
discipline sought, then both the employee and employer must
live with the outcome, including its potential preclusive effect
on related employment-discrimination litigation as a matter
of the equitable application of estoppel principles.
A corollary of the holding of Winters is that if the employee
does not raise a claim of employer retaliation as a defense
in the administrative proceeding, then nothing prevents that
employee from making such a claim in pending or subse-
quent litigation.
Winters now forces law enforcement officers, as well as
their attorneys, to make difficult strategic decisions. One
choice consists of defending administrative charges sole-
ly on the merits of the charges in order to preserve the
ability to portray those administrative charges as retaliatory
in concurrent or subsequent civil litigation. That means that
the law enforcement officer and his or her attorney may be
showing up with less ammunition to the departmental-level
hearing, and any appeal thereto, than each previously would
have had before Winters.
An alternative choice consists of defending administrative
charges not only on their merits, but also by claiming retali-
ation. However, that alternative choice comes at the expense
of trying to claim those administrative charges as retaliatory
in concurrent or subsequent civil litigation. That means the
strength and value of the lawsuit of the law enforcement of-
ficer are undermined.
Attorneys representing law enforcement officers believe
that Winters is fundamentally unfair and violates the consti-
tutional rights of their clients. For now, the New Jersey Su-
preme Court disagrees. For now, the New Jersey legislature
has done nothing to reverse Winters through legislation.
Winters is relatively new in legal circles and is still evolv-
ing. Only a handful of New Jersey courts have commented
on the decision in writing. Trial judges and administrative
law judges grapple with the real-life impact of Winters on a
day-to-day basis and are continuing to look for additional
guidance from the New Jersey Supreme Court.
That guidance will likely come one day. Perhaps,
intervention from the New Jersey legislature will come one
day. However, for now, Winters is here and its chilling effect
is a bitter pill that law enforcement officers and those who
represent them must swallow. d
A former municipal police officer, county corrections officer
and municipal prosecutor, Stuart J. Alterman has represent-
ed law enforcement officers for more than 25 years in all ar-
eas of employment issues. He is a NJ State PBA Lifetime Silver
Card recipient. Arthur J. Murray, who has extensive practice in
the Office of Administrative Law in Law Enforcement Disci-
plinary Matters, contributed to this report.
We appreciate the New Jersey State PBA, its members and families
Thank You for All that You Do
www.njcopsmagazine.com
■ JANUARY 2018 27