Disciplinary suspensions: Paid and unpaid
LEGAL CASE STUDY
One of the most important aspects our firm deals with in representing law enforcement officers is representing accused officers in disciplinary proceedings. Often, these proceedings are accompanied by a suspension of the accused officer, and these suspensions may be paid or unpaid. However, the circumstances of the alleged infractions or misconduct will determine whether the suspension is paid or not, and all law enforcement officers should be made aware of their rights when facing potential discipline and how the courts interpret these rights.
Rights
Procedural due process rights are rooted in the Fifth Amendment to the U. S. Constitution and made applicable to the states though the Due Process Clause of the Fourteenth Amendment. Essentially, the Fifth Amendment mandates that a person cannot be deprived of his life, liberty or property without due process of law. Traditionally, courts have held that public employees have liberty and / or property interests in their jobs. Accordingly, public employees enjoy Fifth Amendment procedural due process rights in situations in which their liberty and / or property interests are at stake. These rights are most commonly implicated during disciplinary proceedings, which could result in suspension or termination.
Certain rights, such as a right to notice and a hearing, are well established, and the suspension itself cannot proceed without a hearing( Cleveland Board of Education v. Loudermill).
The Third Circuit Court of Appeals determined, in Bradley v. Pittsburgh Board of Education, that the suspension cannot precede the notice and Loudermill hearing required by law, as this would be a suspension without due process. In Bradley, the Court stated that suspending an employee without pay is not appropriate when it is done prior to affording the employee reasonable notice that he or she is going to be terminated and giving the employee an opportunity to be heard, even if the terminated employee finds employment after being terminated, which may affect the amount of damages available to the affected employee.
In New Jersey, a law enforcement officer’ s property interest in his or her job is protected by statute. 40A: 14-147 requires that all actions for removal, suspension, reduction in rank or fine be brought by written complaint and that a hearing be held before the proper authorities. The grounds for action under this statute are incapacity, misconduct or disobedience of departmental rules and regulations. Civil Service lists 11 grounds for disciplinary action, including incompetence, inefficiency, chronic absenteeism, conduct unbecoming, neglect of duty, misuse of property, including motor vehicles and“ other sufficient cause.”
Limits on Suspensions
Generally, suspensions proceeding through Civil Service Jurisdictions for local and county law enforcement officers are paid suspensions, pending the resolution of the disciplinary hearing. Except for state-service law enforcement, and specific circumstances described below, the employer may not summarily suspend an employee without pay, and may not be suspended or fined in excess of six months, unless such suspension is imposed pending a criminal complaint or indictment. Under the Administrative Code, the employer may provide for suspensions with or without pay in local service. In state service, suspensions must be without pay unless directly authorized by approving a paid suspension. Additionally, fines may only be levied for the following purposes:( 1) as a form of restitution;( 2) in lieu of suspension when the employer can establish that suspension of the officer would be detrimental to the public health, safety or welfare; or( 3) where the employee agrees. Fines are limited to the equivalent of five days suspension or may be imposed up to 15 percent of gross salary in installments.
In Civil Service departments, a hearing must be conducted within 30 days of the notice of disciplinary action, unless a prompt hearing is waived. Additionally, a“ Preliminary Notice of Disciplinary Action” must contain specific information concerning the nature of the charges and the penalty the employer wishes to impose. It is important to remember that a hearing must be requested within five days of receipt of the Preliminary Notice( unless the five-day period is enlarged by the agency or collective negotiations agreement) or the right to a hearing may be considered to have been waived and the agency may impose the discipline in the notice. The discipline must be recorded in all cases on a form known as a Final Notice of Disciplinary Action, which must be distributed to the individual officer by the department. Always remember to ask for a hearing in writing.
In Non-Civil Service Departments, you must receive proper notice of the filing of a written complaint and hearing no more than 30 days from the date of service of the complaint, unless the officer chooses to waive this requirement. It is also important to note that there is a 45-day time limitation upon a complaint charging an officer with a violation of the department’ s internal rules and regulations. A complaint of this type must be filed“ no later than the 45th day after the date on which the person filing the complaint obtained sufficient information to file the Matter upon which the complaint is based.” Generally, the time limits discussed above also apply to both Civil Service Departments and Non-Civil Service Departments.
Pursuant to the recently passed Law Enforcement Officers’ Protection Act, an officer is permitted to waive the local hearing and proceed directly to arbitration or to an Administrative Law Judge, as if he or she had appealed an adverse finding at the local level. As mentioned above however, an officer should
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