Forfeiture of Public Employment for Conviction of a Crime, and the Supreme Court’s Decisions on Waivers of Forfeiture of Public Employment

supreme-court-building-1209701__340-300x200Our employment attorneys represent New Jersey Civil Service employees in appeals of disciplinary action. Recently, New Jersey’s Supreme Court had the opportunity to clarify some of the circumstances in which a government employee can obtain a waiver of the rule that he forfeit his job when convicted of a criminal offense.

In the case of Flagg v. Essex County Prosecutor, the New Jersey Supreme Court had the opportunity to review the effect of a public employee’s conviction for a disorderly persons offense (the equivalent of a misdemeanor) on their government job. New Jersey’s forfeiture law requires that employees forfeit their public employment if the conviction is for a crime (the equivalent of felony) of dishonesty, is required by the New Jersey Constitution, or is a disorderly persons offense “involving or touching such office, position or employment.” However, a subsection of this law provides an exception. This provides that “forfeiture or disqualification… which is based upon a conviction of a disorderly persons or petty disorderly persons offense [misdemeanors] may be waived by the court upon application of the county prosecutor or the Attorney General and for good cause shown.” The law is silent about what standard a prosecutor should use to review such applications.

Flagg was a maintenance worker for the City of Newark. He was convicted in municipal court of illegal disposition of solid waste, a disorderly persons offense. He did this in the course of his job at the direction and in the presence of his supervisor. He was sentenced to a six month loss of his drivers license, a $5,000 fine, and five days of community service. He was not sentenced to jail, nor did the statute provide for jail for this solid waste violation.

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