FAGELLA
NOWAK
KLEINBAUM
& FRIEDMAN
*IMPORTANT INFORMATION REGARDING CORRECTIONS OFFICER TRAINING CLASS ACTION (STIPEND CLASS ACTION LITIGATION)
Please click here for an update and explanation of the terms of and issues surrounding the proposed settlement to the class action brought by the Firm regarding the Corrections Officer Recruit Trainee Pilot Program.
Please Note: If you are no longer employed by the New Jersey State Department of Corrections and may be a member of plaintiff class, please e-mail your current address information, including your name and the identify of your current employer, to: attorneys@zazzali-law.com
***************
Court Preliminarily Approves Proposed Stipend Class Action Settlement
On February 11, 2013, the Court preliminarily approved the proposed settlement in the Stipend Class Action lawsuit and simultaneously approved the form of Class Notice to be distributed to the members of the plaintiff class. A copy of the Class Notice may be viewed by clicking this link. The Class Notice, as well as additional information regarding the class action lawsuit, including the settlement agreement, are available at the Class Action website www.NJOfficerTrainee.com.
***************
Firm Associate and Election Law practitioner, Flavio Komuves, recently provided is insigts into the impact of Hurricane Sandy on the recent federal election to the the New Jersey Law Journal. His interview with the New Jersey Law journal may be found here.
***************
ELECTION LAW PRACTICE: FIRM ATTORNEY, FLAVIO KOMUVES, OBTAINS INJUCTION AGAINST STATUTORY RESIDENCY LIMITATIONS ON ELECTION PETITION CIRCULATORS
Under existing state law, when most candidates run for office, or when a citizen seeks the recall of an elected official, the only people who can carry or circulate that petition are registered voters from the specific ward, town, county or other jurisdiction at issue. This restricts the rights of interested people, including those who work or own a business in one town, yet live in a neighboring town, from volunteering or being employed as petition circulators. While out-of-town contributors can fund political efforts across jurisdictional boundaries, the law had mandated that volunteer labor was not allowed to cross those same boundaries. Similar restrictions on political activities have been struck down as unconstitutional around the United States, but New Jersey’s laws remained in effect. In a 37-page opinion issued October 3, 2012, Mercer County Assignment Judge Mary Jacobson enjoined enforcement of these laws, holding them in violation of the First and Fourteenth Amendments to the United States Constitution. While petition circulators must still be New Jersey residents, the judge’s order allows residents in any New Jersey municipality to participate in petition-gathering activity for independent candidates and officerholder recall efforts anywhere in the State. The case is Empower Our Neighborhoods v. Kimberly Guadagno, et al., Docket No. MER-L-3148-11.
***************
Firm Successfully Defends Suit Against New Jersey State PBA Legal Protection Plan Brought by Former Hackensack Police Chief
The Appellate Division, in a recent unpublished opinion, Zisa v. New Jersey State PBA-LPP, A-3705-10T3, reversed a trial court’s decision and dismissed a suit brought by the indicted former Chief of the Hackensack Police Department, Charles K. Zisa, against the New Jersey State PBA Legal Protection Plan (“LPP”) seeking a declaratory judgment requiring the LPP to provide coverage for the criminal and disciplinary claims pending against him. Zisa was a member of the State PBA, but had not provided payment of contributions required to participate in the LPP. As a result, the LPP denied his claim for coverage. Rather than following the claim denial appeal procedure set forth in the terms of the LPP, Zisa sued the LLP in State court for benefits. Firm Partner, Paul L. Kleinbaum argued that the courts did not have jurisdiction to intervene in the internal operations of the State PBA-LPP and that Zisa failed to exhaust his internal remedies before filing suit. The trial court rejected the State PBA’s arguments and declared that Zisa was a member of the LPP and entitled to coverage. The Appellate Division reversed and agreed with the State PBA’s arguments. It held that the trial court was required to defer to the internal decision making process of the LPP and that Zisa failed to exhaust his internal remedies. Thus, the Appellate Division reaffirmed the long-standing principle that private organizations, such as the State PBA, have the right to create rules for their internal operation which are not subject to undue interference by the courts.
***************
ZAZZALI FIRM FILES SUIT CHALLENGING LEGALITY OF ESSEX COUNTY PRIVATE CORRECTIONAL FACILITIES
In August 2012 the firm filed suit in State Court to invalidate Essex County’s contractual agreement to house over a thousand of its inmates at private facilities operated by Continuing Education Centers (“CEC”). The County pays CEC over $20 million per year. The suit follows a series of articles in the New York Times and hearings in the New Jersey legislature.
The suit contains three basic allegations. The first is that it is simply illegal for Essex County to send its inmates to any private facility because there is no specific statutory or regulatory authority allowing counties to do so.
The second claim is that even if the County can house its inmates in a private facility, the facility must be operated by through a non-profit corporation. Education and Health Centers of America (“EHCA”) is technically a non-profit, but it is a mere “conduit” for Community Education Centers (“CEC”), rather than a non-profit which actually provides inmate services. It is undisputed that EHCA subcontracts virtually all contractual requirements, and pays over virtually all the monies it receives from the County, to CEC. In other words, our claim is that it is not enough for a non-profit corporation to be a named party to the contract; it must actually carry out the contractual obligations.
The third argument is that even if the current arrangement– the utilization of the purportedly non-profit EHCA to be signatory to the contract while utilizing CEC to perform the services – is nominally legal, the contract remains unlawful since EHCA is not actually a non-profit entity. While EHCA is treated as a 501(c)(3) corporation by the Internal Revenue Service, the suit contends that, for purposes of the statutes in New Jersey, it is a de facto “for-profit” entity.
The suit, brought on behalf of the New Jersey State Policemen Benevolent Association and Essex County Corrections PBA 382 seeks both a declaration that the County’s contract with the EHCA is unlawful and an injunction barring the further transfer of inmates into the private correctional facilities operated by CEC.
***************
New York Magazine recently named the Zazzali Firm as one of the top ranked law firms in the New York metropolitan area:
This distinction derives from an analysis of law firms across the Tri-State area conducted by Lexis-Nexis and Martindale-Hubbell based on the number of attorneys with the firm receiving Martindale-Hubbell’s AV Preeminent Ranking.
***************
Robert A. Fagella, Paul L. Kleinbaum, and Sidney H. Lehmann named "Super Lawyers":
Congratulations to firm Partners, Robert A. Fagella, Paul L. Kleinbaum, and Sidney H. Lehmann who were recently named, for the sixth consecutive year, to New Jersey Lawyer Magazine’s list of Super Lawyers in the field of labor and employment law.
***************
New Jersey Appellate Division Affirms Commissioner of Education's Decision Holding That Elizabeth Board of Education failed to Comply With Maximum Class Size Regulation:
Of Counsel to the firm, Aileen O'Driscoll, representing the Elizabeth Education Association, successfully defended in the Appellate Division a decision of the Commissioner of Education finding that the Elizabeth Board of Education violated the maximum class size regulation, governing high poverty districts, N.J.A.C. 6A:13-3.1. In its initial Petition to the Commissioner, the Elizabeth Education Association challenged the Board's failure to comply with the class size regulation governing at risk, high poverty, school districts, such as Elizabeth. The Board defended its actions, claiming that it was without sufficient funding to comply. The Commissioner of Education, nonetheless, concluded that regardless of the Board of Education's funding levels, it was required to comply with the applicable regulation.
On appeal, the Board raised a jurisdictional issue, arguing that the class size regulation at issue was an unconstitutional unfunded mandate subject to review by the Council on Local Mandates. The Board also argued that the Association and the individual petitioners (the Association President and a resident taxpayer) lacked standing to challenge the class size regulatory violation. The Appellate Division rejected both of the Board's arguments. First, it concluded that the regulation was exempt from the unfunded mandate law because the regulation serves to implement the constitutionally guaranteed right to a thorough and efficient education. The Court also rejected the Board's standing arguments, concluding that New Jersey's liberal application of standing doctrine provided both the Association and the individual taxpayer petitioners standing to challenge the violation of the class size regulation. The case is entitled Elizabeth Education Association, et als. v. Board of Education of the City of Elizabeth, A-5506-09T3 (App. Div. 2011). Click here to view a copy of the decision.
***************
New Jersey District Court Allows Multi-Employer Pension Fund to Pursue Employers for Unpaid Minimum Funding Contributions:
Member of the Firm, Kenneth I. Nowak, and Firm Associate, Flavio L. Komuves, representing a multi-employer pension benefit fund, successfully defeated a motion to dismiss a claim brought on behalf of the fund against several company owners for breach of their fiduciary duties in failing to pay minimum funding contributions under the Employee Retirement Income Security Act ("ERISA"). In ruling against the company owners on their motion to dismiss the fund's claims, the Hon. Jose L. Linares of the United States District Court for the District of New Jersey held that the fund could pursue the minimum funding deficiency pursuant to ERISA Section 515's delinquent contributions provision. In so ruling, Judge Linares found that the collective bargaining agreement between the fund's sponsoring Union and the company incorporated the fund's trust agreement, which in turn incorporated provisions of ERISA requiring employers to meet minimum funding requirements. Judge Linares also held that the company's owners could also potentially be individually liable for failing to make the required contributions as fiduciaries of the fund. The case is entitled Local Union No. 863 I.B. of T. Pension Fund, et als. v. RLB Food Distributors, et als., 11-cv-01068 (D.N.J January 4, 2012).
***************
Civil Service Commission Upholds Decision of Administrative Law Judge Reducing Disciplinary Penalty of Removal For Northern State Prison Corrections Officer:
Firm Partner, Colin M. Lynch, successfully appealed the removal of a Northern State Prison Corrections Officer from employment with the Department of Corrections for allegedly passing contraband in the form of controlled dangerous substances and a cell phone to a prisoner during a strip search following inmate visitation. Judge Barry Moskowitz, of the New Jersey Office of Administrative Law, dismissed the vast majority of the charges against the Officer, finding that the Department of Corrections failed to present competent evidence that the Officer at issue was negligent in conducting the post-visitation strip search, or in any way participated in the smuggling of contraband. While Judge Moskowitz found that the Officer breached a Department policy, by proceeding to his personal vehicle during lunch break without appropriate authorization, he found that a written reprimand was a sufficient penalty. On review of Judge Moskowitz’s decision, the New Jersey Civil Service Commission adopted Judge Moskowitz’s factual findings in their entirety. However, the Commission increased the proposed penalty of an official written reprimand to a thirty day suspension. Left untouched by the Commission was Judge Moskowitz’s recommendation to return the Officer to employment with approximately three years back pay, benefits and seniority.
***************
The law firm of Zazzali, Fagella, Nowak, Kleinbaum & Friedman organized and ran a food drive from August-September 2011 that benefited the Community Food Bank of New Jersey. The Firm raised $2,000 dollars for the Food Bank, which annually assists up to 900,000 people in need, and every dollar of its operating budget is able to distribute $9.59 dollars with of food. To learn more about the Food Bank, go to www.njfoodbank.org.
Zazzali Law Firm photo credits from left to right, taken at the Food Bank Warehouse: Paul Kleinbaum, Elaine Barnett, Ed O’Hare, Richard Friedman, Marissa McAleer, Richard Uniacke (Director of Marketing, Community Food Bank of New Jersey), Colin Lynch, Helen Mitchell, Jim Zazzali, Jr. See New Jersey Law Journal article.
***************
The firm is pleased to announce that Flavio Komuves, the newest attorney to join Zazzali, Fagella, was recently appointed Chair of the Election Law Committee of the New Jersey State Bar Association. He has also been named to the Board of Trustees of the New Jersey Appleseed Public Interest Law Center. Komuves, a former State Deputy Public Advocate, is looking forward to applying his extensive election law experience to serve these organizations.
***************
Our partner Paul Kleinbaum will participate as a panelist in the 2011 Hot Tips in Labor and Employment Law Seminar sponsored by New Jersey ICLE and the Labor and Employment Law Section of the New Jersey State Bar Association. Paul will present an analysis and critique of the recent amendments to the “Police & Fire Public Interest Arbitration Reform Act” which became effective on January 1, 2011 and radically altered the interest arbitration process available to law enforcement officers and firefighters.
***************
The firm is pleased to announce that Managing Partner Robert A. Fagella was appointed on February 2, 2011 to the Police and Fire Interest Arbitration Impact Task Force by Assembly Speaker Sheila Oliver. The Task Force was created by the Legislature in P.L. 2010, c.105 which became effective on January 1, 2011. Bob is the State PBA's representative. Among other provisions, this new law drastically shortens the amount of time for completion of interest arbitration hearings, caps the amount of compensation an arbitrator may award, limits the compensation for arbitrators and imposes fines if arbitrators do not issue decisions within the statutory time frame for completion of arbitration proceedings. The Task Force will study the effect and impact of the arbitration award cap upon local property taxes; collective bargaining agreements; arbitration awards; compensation rates, and the interest arbitration process. It will issue a final report by April 1, 2014 with any recommendations for amendments to the arbitration award cap provisions of the new law.
***************
The firm successfully represented the New Jersey State PBA in defeating a constitutional challenge to the statutes granting paid leave to law enforcement officers and fire fighters to attend their organizations’ conventions. In NJLESA, et al. v. State of New Jersey, the New Jersey Supreme Court dismissed an appeal of an Appellate Division decision which upheld the constitutionality of the convention leave statutes. NJLESA et al. v. State, 414 N.J. Super. 111 (App. Div.) appeal dismissed, - N.J. - (2010). The firm represented the State PBA as amicus curiae before both the Appellate Division and the Supreme Court.
***************
James R. Zazzali, Esq., counsel to the firm, retired Chief Justice of the New Jersey Supreme Court and former New Jersey State Attorney General, will moderate a panel discussion at the 32rd Annual National Labor Relations Board Conference on November 12, 2010, sponsored by Region 22 of the Board. The conference will take place at the New Jersey Institute for Continuing Legal Education located at One Constitution Square in New Brunswick, New Jersey. The conference will commemorate the Board’s 75th Anniversary. The panelists will discuss their reflections on the Board then and now, as well as the recent appointments to the Board and panel members’ thoughts on the ongoing political implications and impact of labor law reform.
***************
Congratulations to our partner Paul Kleinbaum upon his induction into The College of Labor and Employment Lawyers. The College is comprised of labor, management and employee advocates as well as government officials, judges and arbitrators throughout the United States, Canada and Puerto Rico. Its mission is to promote achievement, advancement and excellence in the practice of labor and employment law and to establish high standards of professionalism and civility in the field.
***************
The firm successfully represented the New Jersey State PBA as an amicus in a case in which the constitutionality of the statute granting law enforcement officers and fire fighters paid leave to attend conventions was challenged. The lawsuit was filed by a small group of supervisors in the Dept. of Corrections who sought to have the statute declared unconstitutional. The State PBA joined with the Attorney General in defending the statute. In New Jersey Law Enforcement Supervisors Association et al. v. State, the Appellate Division unanimously rejected all constitutional and equal protection challenges and upheld the validity of the statutes thereby protecting the paid convention leave benefit for thousands of law enforcement officers and fire fighters in New Jersey.
***************
Recent technological changes have created circumstances which the law never contemplated even a decade ago. Computers and other technology have combined to provide extraordinary public access to personal information, while simultaneously masking the identity of persons communicating to the public via the internet. The law has struggled to keep up with these recent developments. See recent cases relating to the confidentiality of electronic documents.
***************
On March 2, 2010 the firm filed suit seeking emergent relief in the New Jersey Superior Court, Appellate Division, on behalf of the New Jersey Education Association and the New Jersey State PBA. The suit sought to invalidate Governor Christie's Executive Order #7 which extends the State's "pay-to-play" restrictions to labor unions that negotiate collective bargaining agreements with the public employers in New Jersey. On May 7, 2010 the Appellate Division issued its decision, ruling in favor of our clients and invalidating the Governor's Executive Order as an unconstitutional infringement on legislative authority. See NJEA v. Christie and NJ State PBA v. Christie (App. Div. 2010).
***************
Following six years of service with the Supreme Court of New Jersey, Chief Justice James R. Zazzali has returned to the firm as Of Counsel. Former Chief Justice Zazzali wrote more than 100 opinions during his tenure on the bench and is generally acknowledged to be one of the outstanding lawyers in the State during his 40 years of practice.
***************
On March 2, 2010, Andrew F. Zazzali, Jr. and James R. Zazzali were each awarded the Social Justice Award at the Annual Archbishop of Newark's Business and Labor Dinner, an event which benefits the Archdiocese's CYO/Youth & Young Adult Ministries. The awards were presented by the Most Reverend John J. Myers, Archbishop of Newark, who honored the Zazzalis for their commitment to social justice and "the many thousands of workers and their families they have helped throughout the years and will continue to assist in the future".
***************
Congratulations to our partners Robert Fagella, Paul Kleinbaum and Sidney Lehmann, who were recently named by New Jersey Magazine as Super Lawyers. This is Mr. Fagella's 20th consecutive year as an AV rated attorney.
***************
The firm is actively pursuing a class action suit against the New Jersey Department of Corrections seeking to obtain backpay and benefits for thousands of Recruit Trainees who were underpaid during their training period pursuant to an unlawful regulation. This suit seeks upwards of $10 million in damages against the State of New Jersey.
***************
The firm recently and successfully represented the New Jersey State PBA in a suit against the State of New Jersey, obtaining injunctive relief preventing the furlough of thousands of law enforcement officers pursuant to emergency regulations issued by the Civil Service Commission.
***************
The firm is pleased to announce it has recently been retained by Teamsters Local Union No. 804, which represents approximately 7,000 UPS workers in the New York metropolitan area.