April 6, 2009 by Peter B. Paris, Esq.

The concept of progressive discipline is easy to understand:  when facing discipline for misconduct, a police officer’s past performance record should be considered in determining a fair and appropriate punishment.  Such discipline is “progressive” because the penalties for misconduct should “progressively” increase each time the officer is convicted of misconduct.  On the other hand, progressive discipline in its purest form would preclude severe punishment for a first offense, if that officer’s prior record was spotless. 

 In practice, the notion of progressive discipline is usually discussed when a police officer is fired or severely punished for a single instance of misconduct despite an exemplary prior record of performance.  Courts are more likely to discuss progressive discipline principles when justifying a reduction of punishmnet due to a stellar performance record.  Although courts are not required to adhere strictly to principles of progressive discipline when examining disciplinary actions, it is critical for police officers with good prior disciplinary records to vigorously and persuasively argue for leniency under progressive discipline principles.  It is equally important for officers to fight any disciplinary charge, even for “minor” infractions, because a spotless record will be extremely valuable if something serious happens in the future. 

In a recent unpublished case, Ackermann v. Borough of Glen Rock and Glen Rock Police Department, a sergeant-detective was charged by his Chief with sexually harassing a female colleague.  The Chief recommended a 3-day suspension.  The officer challenged this suspension, and a hearing was held.  The hearing officer concluded that the officer had violated numerous rules and recommended a 10-day suspension without pay, as well as attendance at sensitivity training.  The hearing officer’s conclusions were accepted by the Mayor and Council, except for the degree of discipline.  Substantially increasing the officer’s punishment, the Council suspended the officer for 60 days, demoted him from detective-sergeant to police officer, and required him to attend sensitivity training. 

In response, the officer filed a complaint in lieu of prerogative writs in Superior Court, resulting in a trial de novo.  After hearing the evidence, the trial court found that the demotion was excessive, noting that the officer had not been the subject of any prior disciplinary procedures.  Thus, the trial court found, ”to order [the officer] demoted would not be in accordance with the principles of progressive discipline.” 

The appellate court upheld the trial court’s rejection of the demotion on the basis of progressive discipline, stating, “[i]t is entirely appropriate to discipline an employee with an otherwise blameless record in a manner different than an employee whose record is studded with disciplinary charges.”  In this case, the officer benefitted from the court’s application of progressive discipline principles.

However, in a 2007 case called In Re Carter, the New Jersey Supreme Court upheld the removal of an officer for sleeping on duty, even though the Appellate Division had previously held that removal was too severe under progressive discipline principles.  The New Jersey Supreme Court noted that “we have not regarded the theory of progressive discipline as a fixed and immutable rule to be followed without question.”  According to the Court, “some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished record.” 

 Sleeping on duty, according to the Court, was “so serious” that termination was appropriate.  Unfortunately, the Court left for another day the answer to the most critical question: what other kinds of infractions are so serious to cause an otherwise perfectly behaved police officer to lose his job?  The answer to that question presumably lies somewhere in the thousands of pages of case law on the subject; but, I can tell you, there are no definite answers.

The Supreme Court’s analysis in In Re Carter, as in many other progressive discipline cases, is unsatisfying because it says, essentially, that while certain infractions can result in extreme punishment, only the Court knows those infractions when it sees them.  Because progressive discipline is not a “fixed and immutable rule,” and the jurisprudence surrounding the concept is typically limited to the facts of a particular case, Court precedent offers precious little guidance to police officers in the field who are left to wonder what conduct could get them fired, even if they have a perfect record. 

There are lessons to be learned, however.  First, do not accept any adverse employment actions, like suspensions or reprimands, lying down.  You should fight all such blemishes on your record because you never know if you will be accused of something more serious later.  The cleaner your file, the better your argument for leniency under progressive discipline principles will be.  Second, if you face disciplinary charges, and your prior record is relatively clean, make sure your attorney has carefully analyzed the applicable case law on progressive discipline so that the most potent arguments can be made on your behalf. 

Contact me by telephone or email if you have any questions about progressive discipline or any other issue relating to police-defense.  

Peter B. Paris, Esq. 609-452-8411, ext. 117 or pparis@maselliwarren.com.

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March 31, 2009 by Peter B. Paris, Esq.

When Ryan Moats, an NFL football player, raced to the hospital with his wife to visit his mother-in-law before she died, he ran red lights, ran stop signs, and failed to stop for a police officer trying to pull him over.   To read the blogging and reporting on this incident, one might think the police officer beat him within an inch of his life.  Nothing of the sort happened.  Before you jump on the all too familiar anti-police bandwagon, watch the video and consider the following points.  

(Here is the two part video.  The first part is most important and about half of th second.) http://fifthdown.blogs.nytimes.com/2009/03/30/dallas-police-officer-makes-death-even-worse/

We can certainly all agree that Mr. Moats’ vehicle was driving fast and did not stop for the police officer, whose sirens were visible and audible to the driver.  There is no way for the officer to know why the driver refused to stop, so the officer must address the situation at that moment as if the driver and passengers are a potential safety threat.  The fact that the driver pulled into the hospital would not reduce the officer’s concern.  With the benefit of hindsight and the glare of after-the-fact scrutiny under which police are always judged, Mr. Moats’ conduct was consistent with a person whose family member is dying.  However, there are an infinite number of less benign scenarios.  For example, shooting victims are often brought to the hospital by their comrades who may or may not still be armed.  Moreover, there have been situations in which gang members or family members attack rivals in hospital emergency rooms.  In any event, the officer’s demeanor when the car stopped and people began to stream out of the car was certainly not out of line.  

When Ryan Moats got out of the car, he and other passengers immediately began screaming at the officer, who was alone.  While we can all sympathize with Mr. Moats’ concern for the health of his mother-in-law, take one minute to look at the situation from the officer’s perspective.  He has just followed a vehicle that refused to stop.  Red flag.  People emerge from the vehicle in an emotional state.  Red flag.  The occupants and driver begin yelling at him as he tried to understand and gain control of the situation.  Red flag.   And, the officer was outnumbered and unable to know whether the occupants were armed or how many other people might be in the vehicle.  In sum, there was no way that the officer could simply let everyone in the car do what they please in this situation — at least not until people calmed down and explained what was going on.

The situation would have been far different if Mr. Moats had behaved differently.  First, he could have pulled over when the officer turned on the lights and siren.  When the officer approached his car, he could have calmly explained the situation and would probably have gotten a police escort to the hospital.  Even if he didn’t pull over, he could have obeyed the officer’s initial commands at the hospital and given the officer a few moments to assess and understand what was going on.  Even if he had exited the vehicle in a calm manner and explained the situation, I’m sure the officer would have proceeded differently. 

The officer in this case has reportedly apologized, but I do not believe he has anything to apologize for, except to placate the media and his chief, who has already determined his guilt before a hearing.  I am sure that his apology has more to do with Mr. Moats being an NFL player than the officer feeling truly remorseful.  What was the officer supposed to do?  Simply let the driver and his passengers walk away because they said their mother was dying?  That’s simply unrealistic.

People have to understand that, from a police officer’s perspective, the moment of contact with a motorist is a dangerous situation, especially a motorist who has refused to stop, and especially when the officer is alone.  Faced with emotional people who are ignoring lawful commands, I would expect that officer to use a stern tone and try to freeze the situation until all the facts can be discerned.  That is what this officer did.  The encounter did not take an inordinate amount of time, and the officer was not rude or verbally forceful until the occupants of the vehicle demonstrated no intention of obeying his lawful commands.  On Law and Order or CSI, perhaps the super-police could read the minds of the occupants.  But in real life, that is too high a standard.

I have read articles and blog entries about this situation in which people accuse the officer of murder and call for the officer’s resignation.  Each position is utterly ludicrous.  Ryan Moats’ behavior was the proximate cause of his being pulled over and detained for several minutes as the officer awaited back up, figured out what was going on, and got control of a potentially volatile situation.  It is certainly unfortunate that Mr. Moats was unable to say goodbye to his mother-in-law, but if he had acted differently, he would have had that opportunity.

The main lesson to be learned from this situation must be learned over and over again:  before condemning police officers for not living up to television-standards, understand the facts and understand the nature of the job.  Of course, some police officers make mistakes and even purposefully cross the line of proper conduct.  The Ryan Moats incident, however, was not such a case.

(Maselli Warren’s Peter B. Paris is a former police officer and represents police officers accused of misconduct.)

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February 26, 2009 by Peter B. Paris, Esq.

Homeowners who are contemplating or undergoing major home-improvement projects must know their rights when dealing with contractors.  The first step is SIGN A CONTRACT.  Long gone are the days of handshake deals with the local contractor.  It is imperative that homeowners insist on obtaining a detailed bid and contract before any work begins and certainly before writing any checks.

We all know that major renovations often encounter “unanticipated” construction problems.  Usually, these “unanticipated” issues should have been anticipated by a careful contractor and accounted for in the contract.  Unfortunately, many contractors take advantage of homeowners by underbidding the job, securing the contract, beginning work, and then trying to coerce homeowners into paying more money for “unanticipated” problems.  By doing so, they are essentially altering the contract in midstream – and it always means more money. 

Homeowners take one look at their incomplete house – with a dumpster in the front yard, drywall stacked against the walls, and holes in the roof — and say to themselves, “I guess we have to pay the extra money.  What else can we do?” 

While that reaction is understandable, homeowners must understand that you signed a contract for a reason.  If there are “unanticipated” problems with the job, it’s not your fault.  It is the fault of the contractor, who is supposed to have the expertise to anticipate the necessary work, and to be able to estimate beforehand what the job will take and what it will cost.  If the contractor is wrong about the estimates, and completing the job ends up costing more than the contract price, it is the contractor, not the homeowner, who must bear those extra costs. 

For example, in a recent New Jersey case, a contractor agreed to remove and replace the homeowners’ roof as well as other smaller tasks.  The parties signed a contract.  Soon after, the contractor told the homeowners that the contract was not priced correctly and tried to get them to sign a new contract which was for the same price but called for less work to be done.  The homeowners signed this new contract and made a downpayment. 

But when the contractor felt the job was completed, the homeowners disagreed, saying that the contractor had promised to do a lot more work under the original contract.  The contractor then had the nerve to try to get the homeowners to sign a THIRD contract to complete the work he had promised to do in the original contract, but had omitted from the second contract.  The homeowners were smart, and they refused to pay the balance of the second contract and did not sign the third. 

To add insult to injury, the contractor sued the homeowners for the balance on the second contract.  The homeowners counter-sued under New Jersey’s Consumer Fraud Act.  The Court was not amused, finding in favor of the homeowners.  The contractor was not allowed to change the original contract, because he bears the risk of underbidding the job, not the homeowners.  As the court stated, “If in fact a job is underbid, it is the bidder who bears that risk…This is a horribly botched job, which begins with an underbidding and then continues with a … lack of finishing or having an acceptance signed by the homeowners.”  Thus, the homeowners were justified in withholding payment on the balance of the contract.   And, the court awarded treble damages under the Consumer Fraud Act.  That is, the contractor had to pay three times the costs to fix the shoddy work and complete the original job. 

If you are remodeling or building a home, and your contractor has changed the contract in midstream, you may be the victim of consumer fraud.  Under the Consumer Fraud Act, and you may be entitled to compel the contractor to pay you three times the amount it takes to finish the job.   

Contact Peter B. Paris, Esq. at Maselli Warren if your contractor has violated your rights under the Consumer Fraud Act.

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February 15, 2009 by admin.

Welcome to The Law Blog for Maselli Warren, P.C.

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