Criminal charges against public employees can have serious consequences under New Jersey civil service law. In this post, we’ll examine
Suspensions of New Jersey Civil Service Employees While Criminal Charges Are Pending
First, if a New Jersey civil service employee is facing criminal charges, she can be suspended while the charges are pending. The employee must be served with a preliminary notice of disciplinary action (PNDA). The PNDA must advise her that she may be subject to being fired if the charges are upheld, and that she has the right to consult with an attorney. The employee may request a hearing about the suspension. If no request is made within five days the appointing authority may issue a final notice of disciplinary action (FNDA). If the employee is charged with a third degree crime or higher, if she is charged with a crime of the fourth degree on the job, or if the charges are “directly related to the job,” the employee may be suspended indefinitely until the charges are resolved.
The hearing is limited to whether it is best in the public interest to suspend the employee until the criminal charges are resolved. The standard is whether the employee is unfit for duty or is a hazard if she remained on the job, or that the suspension is required for safety, health, order, or provision of public services.
Pre-Trial Intervention (“PTI”) and conditional discharges are not considered final dispositions until completion of PTI or final dismissal of the previously conditionally dismissed charges. The employer has the option of continuing the indefinite suspension. If an appointing authority decides to suspend the employee indefinitely, it shall issue a FNDA stating that the employee has been indefinitely suspended pending disposition of the criminal complaint or indictment. When a police officer was suspended for criminal charges, relief such as back pay, benefits, counsel fees, etc., will not be awarded if the officer receives PTI.
Forfieture By Court Order
Under the Forfeiture Statute in the New Jersey Criminal Code, a court will order that the employee forfeit his public employment if:
(1)He is convicted under [New Jersey law] of an offense involving dishonesty or of a crime of the third degree or above or under the laws of another state or of the United States of an offense or a crime which, if committed in this State, would be such an offense or crime;
(2)He is convicted of an offense involving or touching such office, position or employment; or
(3)The [New Jersey] Constitution so provides.
The forfeiture is a civil penalty which is a collateral consequence of the conviction because criminal convictions bear directly on the employee’s competency and capacity, and violate the public trust.
Disciplinary Action Where No Forfeiture Order
When the court does not issue a forfeiture order, the employer is required to give the employee a PNDA advising of any remaining disciplinary charges and proceed with appropriate discipline. The employer may also directly apply to the court for an order of forfeiture; departmental hearings are not required. If the court still declines to enter an order of forfeiture, the appointing authority may still pursue disciplinary charges.
Relief After Suspensions Pending Criminal Charges
The regulations issued by the New Jersey Civil Service Comission provide that “Where an employee, other than a municipal police officer, has been suspended based on a pending criminal complaint or indictment, following disposition of the charges the employee shall receive back pay, benefits and seniority if the employee is found not guilty at trial, the complaint or indictment is dismissed, or the prosecution is terminated.” In other words, the employee must be exonerated; PTI and conditional discharge are not exoneration.
However, if the employer pursues discipline after disposition of the criminal action, back pay, benefits and seniority will not be awarded if the result is the employee being terminated. If the outcome is suspension, “where the employee has already been suspended for more than six months pending disposition of the complaint or indictment, the disciplinary suspension shall be applied against the period of indefinite suspension” and the employee will receive back pay for the period of suspension beyond six months.”
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