Sergeant Can Be Disciplined For Working Without Permission

Sergeant George Foss works for the Township of Pennsauken, New Jersey Police Department. In 2010, the Township and Lodge No. 3 of the Fraternal Order of Police (FOP) entered into an agreement that, for the balance of the year, all covered officers would be furloughed for four days without pay. In August, all officers were notified of their scheduled furlough days and each, including Foss, acknowledged receipt of the information. Foss was assigned September 4, October 4, November 7, and December 11 as furlough days.

On September 4, 2010, Foss appeared for duty. According to the Police Chief, the Department had not been advised how to proceed if an officer came to work on his furlough day; therefore, the officer on duty permitted Foss to work his shift. As a result of this incident, the Chief issued a memorandum informing all officers that if any officer reported to work on their furlough day, they would not be paid for that day. The Chief later issued another memorandum, reiterating the earlier directive and adding that any officer who reported to work on an assigned furlough day may face disciplinary action.

On October 4, his second furlough day, Foss reported for his 7:00 p.m. shift. The officer on duty contacted the Chief at home to inform him that Foss reported to work. The Chief immediately went to the Police Department to discuss the matter with Foss. Once there, Foss told him that “he was not purposely violating any order or being insubordinate, it was that he did not agree with the FOP’s stance on the implementation of furlough days.” The Chief advised Foss that he would not order him from headquarters because he, like every Police Department employee, was allowed access to headquarters when off duty. However, he informed Foss that he would not be assigned any duties and would not be paid for that day.

Eventually, the City imposed a four-day suspension on Foss. An appeals court recently upheld the suspension.

The Court held that “we recognize the importance of maintaining discipline within the paramilitary organization to a police department. Refusal to obey orders and disrespect cannot be tolerated. Such conduct adversely affects the morale and efficiency of the department. As long as one remains a member of the police department, he must comport himself properly and not do any acts which tend to impair the morale and discipline of the police department.

“Foss intentionally violated the Chief’s directive. Moreover, Foss’s claim that he did not violate any direct order or code is irrelevant. A finding of misconduct need not be predicated on the violation of any particular department rule or regulation. Foss’s conduct violated the implicit standard of good behavior and integrity of a ranking member of the Police Department.”

Foss v. Township of Pennsauken, 2014 WL 502547 (N.J. Super. 2014).