Important PERC Decision on Sheriff’s Investigators

Posted on Monday, November 4th, 2013.

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Important PERC Decision on Sheriff’s Investigators
Trimboli & Prusinowski, LLC

On October 31, 2013, the Public Employment Relations Commission issued an important decision on Sheriff’s Investigators based on a scope of negotiations petition our office filed on behalf of Mercer County Sheriff John Kemler.

Sheriff’s Investigators are a special class of law enforcement officers. Unlike Sheriff’s Officers, who have statutory tenure and may be removed only for cause, Sheriff’s Investigators enjoy no statutory protection and were intended to serve at the will of the Sheriff who appointed them. N.J.S.A. 40A:9-117a provides:

The sheriff of each county may appoint a number of persons, not to exceed 15% of the total number of sheriff’s officers employed by the sheriff and set forth in the sheriff’s table of organization in the county budget, to the position of sheriff’s investigator. All sheriff’s investigators shall serve at the pleasure of the sheriff making their appointment and shall be included in the unclassified service of the civil service.

A sheriff’s investigator appointed pursuant to this section shall have the same compensation, benefits, powers and police officer status as is granted to sheriff’s officers. The duties of sheriff’s investigators shall be law enforcement investigations and related duties. A person appointed to the position of sheriff’s investigator shall, within 18 months of appointment, complete a police training course at an approved school and receive certification by the Police Training Commission as provided in P.L.1961, c. 56 (C.52:17B-66 et seq.,). The implementation of this act shall not result in the layoff of permanent sheriff’s officers.

The clear intent of the Legislature was to grant each Sheriff the right to appoint a relatively small cadre of Investigators who enjoyed the Sheriff’s trust and confidence, but otherwise would perform the same duties as Sheriff’s Officers.

But when Sheriff Kemler took office, he inherited a full complement of Sheriff’s Investigators appointed by his predecessor. Because the number of Investigators cannot exceed 15% of the number of Sheriff’s Officers, Sheriff Kemler had no ability to appoint additional Investigators of his own. Therefore, Sheriff Kemler ultimately decided to replace three of his predecessor’s Investigators with Investigators he wanted.

The terminated Investigators responded by filing arbitration demands, claiming that they could not be removed absent proof of “good cause.” In other words, they claimed that they could be removed only for workplace misconduct or incapacity, citing contract language that they claimed entitled them to just cause protection. In fact, Sheriff Kemler’s predecessor was prepared to testify that he had negotiated that contract language specifically to provide his Investigators with a form of tenure protection. Our office filed a series of petitions with PERC to enjoin the arbitrations, asserting that any such alleged contractual tenure provisions for Investigators would be contrary to law.

In its decision, PERC agreed with our position that each Sheriff has the non-negotiable right to replace the Sheriff’s Investigators appointed by predecessors with Investigators of the current Sheriff’s own choosing. Accordingly, any contract provision purporting to tie a Sheriff’s hands in this regard, or to bind a current Sheriff to provide “tenure” or “just cause” protection to a predecessor’s Investigators, is not enforceable. PERC then enjoined all three arbitrations filed by the Investigators that Sheriff Kemler had replaced.

PERC analogized Investigators to Undersheriffs, who serve at the Sheriff’s pleasure. Just as a Sheriff cannot be bound to employ his predecessor’s Undersheriffs, a Sheriff cannot be bound to employ his predecessor’s Investigators.

This important decision is the first time that PERC has addressed the issue of Sheriff’s Investigators, and therefore constitutes new law. The decision clarifies the powers of Sheriffs to appoint Investigators of their own choosing.

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