New Jersey Lawyers Blog

Published on: July 24, 2015

Why Civil Service Matters

Our employment attorneys represent New Jersey public employees, such as police officers, firefighters, public works workers, professionals and others, who are covered by the civil service system. We hear many complaints about civil service: The rules are too rigid; it makes it too hard to fire an employee; it makes it too hard for an employee to find a job; discipline is either too hard or too easy to impose, depending on your point of view; the rules are too complex and burdensome.

Many of these complaints are true. However, they miss the point. The New Jersey civil service system is there for a reason. New Jersey has a long history of corruption, cronyism, bribery and nepotism. While there are many funny stories from this history, from Frank Hague’s “I am the law” quote to the recent closing of the George Washington Bridge, this history is awful. It has a terrible effect on government.

Hiring and promotion based on politics, bribes or “who you know” means that merit is removed from the equation. When merit is removed, government operations and the government’s services to its citizens inevitably suffer, and the cost of providing those services therefore increases.

To remedy this, New Jersey adopted the Civil Service system over a century ago in 1908. Indeed, in a wave of reform after World War II, and in reaction to the corrupt local government under Depression Era “bosses” like Hague, New Jersey passed the Constitution of 1947 which overhauled New Jersey’s state and local government. The drafters of the 1947 Constitution enshrined the principal that hiring and promotion should be based on merit, not politics, nepotism, cronyism or bribes. The Constitution specifically provides that “Appointments and promotions in the civil service of the State, and of such political subdivisions [counties and towns] as may be provided by law, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination, which, as far as practicable, shall be competitive….” Indeed, this is why civil service is often referred to as the “merit system.”
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Published on: July 23, 2015

Property Taxes & Appeals

by Pauline M.K. Young

It is no secret that New Jersey citizens pay the highest property taxes in the nation. Property taxes are assessed by local governments and used to pay for local programs and services. Therefore, things that may affect a homeowner’s property taxes include: the local (municipal and county) programs and services, including public schools, local revenues available through other sources, the market value of the homeowner’s property, and the total value of all properties in the municipality. All taxable property is assessed a value by the town tax assessor. “The assessor shall…after examination and inquiry, determine the full and fair value of each parcel situated in the taxing district at such price as, in his judgment, it would sell for at a fair and bona fide sale by private contract on October 1 next preceding the date on which the assessor shall complete his assessments…” N.J.S.A §54:4-23.

Therefore market value should correlate closely with the assessed value. However, it is too labor intensive to have tax assessors reassess every individual property each year. Indeed, New Jersey has 565 municipalities. Nearly every one has its own local tax assessor.

Therefore, generally the tax for each property is simply adjusted slightly each year to meet budget requirements. In that case, the municipality may only do town-wide reassessments once every several years depending on changes to and needs of the municipality, policies, and property sales. This is done to insure “equalization” – insuring that each property is carrying its fair share of the tax burden. For instance, if assessors see that properties are being sold for values that significantly differ from assessed values, then that might be an indicator that a reassessment needs to be done to ensure equalization. This is sometimes referred to as an assessment-sales ratio comparison.

Many people, particularly in New Jersey, believe that their property taxes may be incorrect. In order to determine this, the homeowner first needs to have a basis for what the accurate market price would be. If the home was recently sold – that may be a good indicator. Also, the recent sales prices of other similar properties in the municipality may also be good indicators. (In any case, if a homeowner is looking to challenge her tax assessment, an expert appraisal will most likely be required.)
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Published on: March 19, 2015

Effect of Teachers’ Termination or Early Resignation

by Maurice W. McLaughlin

Effect of Teachers’ Termination or Early Resignation
Our employment attorneys represent New Jersey teachers and other public employees. One issue that commonly arises is the suspension or revocation of a teacher’s license when she leaves without the required notice or is terminated for cause. Our attorney’s experience is that both leaving early and termination for cause can have drastic and severe consequences when reported to the Department of Education. It may render the teacher unemployable.

Leaving Early
Normally a teacher is required to give 60 days notice before she quits. However, there are many times when a teacher may want to leave before the normally required 60 day notice. For instance, she may have had a better offer in another district or she may just need a break. The reasons are many. However, there could be potentially severe consequences which result from this decision. A teacher who leaves employment prior to the expiration of her employment, generally requiring at least 60 days notice if prior to the end of the academic year, is deemed guilty of misconduct, and the Commissioner may suspend her certificate for up to one year.

Termination
When an employee is faced with termination, she may choose not to avail herself of her remedies if the board of education allows her to resign rather than be fired. Local boards can use this as a tool to get rid of teachers they don’t want but don’t have grounds to validly fire because the consequences of termination for cause are so dire that the teacher may not want to chance it. This is grossly unfair by the boards, but it is a common tactic.

Revocation and Suspension
The New Jersey Department of Education’s Board of Examiners has the power to revoke or suspend a teacher’s certificate because of demonstrated inefficiency, incapacity, conduct unbecoming a teacher or “other just cause.” The phrase “other just cause,” in turn, is defined to include offenses under the New Jersey’s “forfeiture statute,” which requires that a government employee’s employment be terminated upon conviction of certain offenses. These offenses include crimes of dishonesty, crimes of the third degree or above, crimes touching on the certificate holder’s office or when required by the Constitution. Other laws further define “just cause” to include endangering the welfare of a child or incompetent person; abuse, abandonment, cruelty and neglect of a child; resisting arrest; offenses involving the manufacture, transportation, sale, possession, distribution or habitual use of a controlled dangerous substance or drug paraphernalia; a crime involving the use of force or the threat of force to or upon a person or property including, but not limited to, robbery, aggravated assault, stalking, kidnapping, arson, manslaughter and murder; any crime of whatever degree relating to firearms, other dangerous weapons and instruments of crime; any crime of the third degree; any crime of the fourth degree where the victim was a minor; recklessly endangering another person; terroristic threats; criminal restraint; luring or enticing child into motor vehicle, structure or isolated area; causing or risking widespread injury or damage; criminal mischief; burglary; usury; threats and other improper influence; perjury and false swearing; resisting arrest; escape; bias intimidation; or conspiracy to commit any of these crimes.
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Published on: March 16, 2015

New Jersey Supreme Court Weighs In On Who Is An Employee and Who Is An Independent Contractor Under New Jersey Employment Law

by Maurice W. McLaughlin

The New Jersey Supreme Court recently clarified an employment law issue which has been vexing employment lawyers for decades. In its recent landmark decision in Hargrove versus Sleepy’s LLC, the Supreme Court laid out the rules for determining when a worker should be considered an employee under different New Jersey employment laws. The specific laws it addressed governed the payment of wages and overtime to employees.

This is an extremely important issue for both employers and employees – it normally determines whether a worker will get benefits such as health insurance and 401(k), and whether the worker or employer will be responsible for paying the worker’s payroll taxes, not to mention overtime.

Background

Published on: March 11, 2015

What Happens When You Are Arrested for Driviing Under The Influence in New Jersey?

by Jennifer C. Meusel

While driving under the influence is a traffic violation under NJSA 39:4-50, the procedure is very different from that followed for any other traffic violation, and there are significant penalties associated with an arrest for driving under the influence.

At the time of your arrest, the officer will give you a ticket which is called a “Summons and Complaint.” In the Summons and Complaint, there will be a Notice to Appear which requires you to appear in the local municipal court on the date and time specified. This first appearance is called the “arraignment.” If you are not represented by an attorney you must appear in court on the date and time specified. The judge will then advise you of your rights and read the charges against you. At that time, you must enter a plea to the charge: either guilty or not-guilty. If you plead guilty you will be convicted of driving under the influence (or “DUI”), the municipal court will then suspend your license and driving privileges, and require you to tender your license to the clerk of the court. There are additional penalties (see the above link for significant penalties), including additional fines and surcharges, required attendance in classes through the Intoxicated Driver Resource Center, installation of an interlock device and potential jail time. An attorney can be valuable in helping to receive the minimum sentence possible and navigate this complex area of the law to protect your rights. If you want to plead not guilty, you should either contact an attorney prior to the arraignment date, or appear on at the arraignment and request an adjournment. Then contact an attorney as soon as possible.

If you have retained an attorney to represent you prior to the arraignment date, the attorney can waive your appearance at the arraignment and enter your plea by written submission to the court. The attorney will then request discovery from the prosecutor. Under New Jersey DUI law, this requires the municipal prosecutor to give you all the evidence and anything relevant to your charges. This is extremely important and is the best way to determine if the charges brought against you may be successfully fought in court. If the discovery shows that the law officer violated your rights or failed to follow the procedural requirements your attorney may be able to get the charges dismissed at trial. This is an important and strategic reason to retain legal counsel right away for your DUI/DWI charge.

While driving under the influence trials are not heard by a jury, you are entitled to a bench trial. At the trial, the municipal judge will listen to the evidence presented by your DUI attorney and the municipal prosecutor and make a ruling on your case. The State – ie. the municipal prosecutor – has the burden of proof and must prove that you drove under the influence of alcohol or drugs. You can cross-examine the witnesses presented by the State, including the arresting officer, and you can offer your own witnesses, usually a DWI expert. You are permitted but not required to testify on your own behalf. If you are found guilty at trial, you will be convicted and sentenced by the judge.
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Published on: March 9, 2015

New Jersey Pet Trusts Ensure Your Pets Are Cared For During Their Lives

by Jennifer C. Meusel

Many people feel that their pets are members of their family and want to make sure that their pets will be well cared for in the event of their death or incapacity. You must plan if you want to make sure that someone will care for your pet were you to pass away or become incapacitated, since that is not necessarily the case and people and normally under no obligation to do so. As a result, pets are often abandoned after their owners are no longer able to care for them.

In order to ensure that your beloved pets continue to be cared for, you can establish an “animal care trust,” which will designate a caregiver, provide funding for your pet’s care and appoint a trustee to fulfill the terms of the trust. New Jersey is one of forty-six states which have laws allowing for the creation of a pet trust. These trusts are gaining in popularity with pet owners who love their pets and want to guarantee that their pets are well cared for, and want to determine who will provide that care.

New Jersey law, NJ ST 3B:11-38, authorizes the creation of an animal care trust. The trust must be created specifically for the purpose of providing care for a domestic animal. It is only permitted to last for a period of 21 years, or the life of the pet (whichever is shorter). The trust must designate who shall be the caregiver of the pet in the event you are no longer able to provide such care. It must also designate a trustee who will be charged with carrying out the terms of the trust. TheTrustee will ensure that the pet is delivered to the caregiver and will oversee disbursement of the funds in the trust for the purposes of caring for the pet. The trust should designate an alternate caregiver and an alternate trustee to serve if the primary caregiver and/or trustee are not able or willing to do so. The principal and income of the trust must only be used to provide care for the pet. The trust must also designate who will receive any funds remaining upon the trust’s termination. The trustee’s final duty under the trust shall be to transfer the unused trust property pursuant to the terms of the trust.

Typically, an animal care trust will direct the trustee to utilize the principal and income of the trust as the trustee deems necessary for the care, maintenance and medical treatment of the pet. The caregiver must request funds from the trustee, and the trustee must decide if the funds should be paid out of the trust.
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Published on: September 5, 2014

Retainage in New Jersey Construction Law

by Maurice W. McLaughlin

Retainage in New Jersey Construction Law

One of the areas which our construction lawyers often address is retainage.

The Use Retainage in New Jersey Construction Law

Retainage is an important device in construction law. Our attorneys have helped New Jersey contractors, subcontractors, owners and construction suppliers with issues related to retainage.

Retainage is an amount intentionally withheld from payment. It may be withheld by an owner from payment to a contractor, from a general contractor, to a subcontractor, or from a subcontractor to a lower tier subsubcontractor.

Retainage in Construction Contracts & Drafting Effective Retainage Provisions

Retainage is a creature of contract law. It is governed by the provisions of the contract or subcontract between the parties. Whatever the contract says about retainage will control; and if retainage is not provided for in the contract, it is not allowed.

Since the terms of the retainage are governed by the terms of the contract or subcontract, drafting the contract is extremely important. It is essential to have an experienced attorney on your side. Our construction attorneys negotiate and draft contracts, subcontracts and supplier contracts. We review construction contracts for our clients and advise them on their rights and responsibilities.

Litigation Over Construction Disputes

Disputes are common, as retainage is typically required to be paid when the work is “subtanitially complete.” Parties often disagree on what that term means. When these disputes arise, our attorneys fight aggressively for our clients’ rights in negotiations, mediation, arbitration and litigation. However, we first attempt to avoid these disputes by drafting clear language in contracts which protect our clients’ rights.
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Published on: August 29, 2014

Payroll Withholding Tax Basics for Both Employers and Employees

by Pauline M.K. Young

Requirements regarding withholding payroll taxes are something that every business owner should be familiar with, particularly businesses which handle their own payroll internally (as opposed to outsourcing to a payroll company). Employers are almost always required to withhold taxes from employees’ salaries, wages, and other compensation, such as commissions or bonuses.

While many people think of paying income taxes as what they do when they file tax returns by mid-April of each year, income taxes are actually considered a “pay as you go” tax. The tax returns at the end of the year then adjust the withholdings calculation depending on various other considerations such as deductions, marital status, and other income.

The employer withholds a certain amount of taxes from each paycheck which the employer is then required to turnover to the government.

There are both federal withholdings and New Jersey state withholdings.
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Published on: August 6, 2014

New Jersey’s Use Tax

by Pauline M.K. Young

New Jersey’s Sales and Use Tax Act is most often cited to refer to sales taxes while the use tax http://www.state.nj.us/treasury/taxation/pdf/pubs/sales/anj7.pdf tends to be less well known. When goods or services are purchased outside of the state for use in New Jersey, and the sales tax was not collected by the out of state retailer, or collected at a rate less than the New Jersey sales tax rate, then the use tax comes into play.

New Jersey recognizes the concept of reciprocity when considering the sales taxes of other states. This means that when goods or services are purchased and received in another state to be brought into and used in New Jersey, and sales tax is paid to that non-New Jersey state, New Jersey credits the purchaser for the taxes paid. However, New Jersey does not allow this credit unless there is a reciprocity agreement between the two states where both states recognize and honors the same reciprocity for each other.

If the tax rate in the state is equal to or greater than New Jersey’s, no use tax is due. (New Jersey’s current sales tax rate is 7 percent.) For example, if the non-New Jersey purchase was for $100 and the sale tax rate paid by the purchaser in that state was 5 percent, the purchase paid taxes in the amount of $5.00. Thus, the New Jersey use tax would be $2.00. If the non-New Jersey purchase taxed at a rate of 8 percent, no additional use tax would be due and owing to New Jersey.

If the out of state purchase is delivered directly to the purchaser in New Jersey, there is no credit for any sales tax paid to the other state. New Jersey’s use tax is therefore due for the full 7 percent of the purchase price, including any delivery charges.
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Published on: June 13, 2014

New Jersey Property Tax Sale Certificates and Foreclosures

by Jennifer C. Meusel

In New Jersey, every municipality is required by law to hold sales of unpaid property taxes at least once each year. The municipalities sell the tax liens to obtain the tax revenue which they should have been paid by the property owner. The municipal tax collector conducts the sale which allows third parties and the municipality itself to bid on the tax sale certificates (this is the document evidencing the taxes due and owing). The successful highest bidder then pays the outstanding taxes to the municipality and become the tax sale certificate holder. Then the holder records the tax sale certificate with the county clerk, who records the tax sale certificate as a lien against the property.

Purchasing the tax sale certificate is merely the first step. The tax sale certificate holder does not own the property, but merely has a lien against the property. The amount of the lien is the amount paid for the tax sale certificate plus interest (which normally accrues at a rate of 18%), costs and fees, including the certificate holder’s attorneys fees. The tax sale certificate holder must foreclose on the tax lien in order to become the owner of the property. The certificate holder has priority over any other liens against the property, including mortgages and other lien holders. The certificate holder must wait a statutorily proscribed period after the date of the sale of the certificate to initiate a foreclosure action. A municipality which purchased the certificate must wait six months; any other purchaser must wait two years.

Non-municipal tax sale certificate holders must provide thirty days written notice of their intention to foreclose before they can begin the foreclosure process on the certificate. This notice must include the amount which the delinquent property owner can pay to redeem the tax sale certificate and have the lien released. The notice must be sent by certified mail return receipt to all owners and to the municipal tax collector.

Then, if the property owner does not redeem the tax sale certificate within that 30 day period, the certificate holder is permitted to file its complaint for foreclosure. The complaint must name everyone who has a recorded interest in the property, which includes all mortgage and lien holders. The complaint must identify the property, the property owner and state the redemption amount. It must be served by certified mail return receipt. The property owner continues to have the right to redeem the tax sale certificate up until date of the final judgment. If the certificate is redeemed after a foreclosure action has been commenced, the property owner should file an Affidavit of Redemption and the foreclosure action will be dismissed by entry of an Order.
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