The judge said there may have been retaliation, but cops didn't prove it was for "protected speech."
PENNSAUKEN TWP. -- A superior court judge this week dismissed a lawsuit filed by five Pennsauken police officers who claimed the department's leadership retaliated against them for advocating for 12-hour shifts.
Judge Renee Marie Bumb found that the officers failed to prove that their advocacy for the longer shifts was protected speech under the First Amendment.
However, she noted in her written decision Wednesday that the officers did have a legitimate claim that they were retaliated against.
Officers Michael Killion, Michael Biazzo, William Hertline, Erik Morton and Socrates Kouvatas had claimed that after they began advocating for the implementation of 12-hour shifts, their superiors began reprimanding and disciplining them without good cause, denying their requests for time off, reassigning them to undesirable shifts, and generally treating them different than other officers who hadn't spoken up about the shifts.
The defendants are Police Chief John Coffey, Capt. Michael Probasco, Mayor Rick Taylor, Township Administrator Ed Growchowski, Township Committee members Betsy McBride, John Kneib, and John Figueroa, and the township.
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"We are glad that the court has thoroughly reviewed the evidence and has dismissed this frivolous lawsuit. Our department and township administration will continue to move forward with this behind us," Probasco said in a statement regarding the dismissal.
Katherine Hartman, the Moorestown attorney representing the officers, did not return a call seeking comment.
The original suit filed in 2013 involved two other officers, but Judge Bumb dismissed it in November, saying that the officers could file an amended complaint that included more specifics about their alleged protect speech.
The five officers did so in January, but Bumb found this week that it still was not specific enough about when and how the alleged speech took place, among other flaws.
"The lack of specificity as to the form, timing, content, and context of any potentially protected speech or conduct is fatal to plaintiffs' claims," she wrote. She pointed out that the complaint sometimes said officers were simply "outspoken" about the topic, without explaining how.
To be speech protected under the First Amendment, the officers would have to prove that they spoke as private citizens addressing a public concern, and not as police officers addressing police matters, the judge wrote. They failed to do so, she ruled.
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Bumb said that while she dismissed the complaint twice, she found in both cases that the officers had "adequately" made a case that they were retaliated against, but failed to show that it was linked to protected speech.
Among the examples of treatment the officers claimed was retaliatory was an internal affairs investigation into officers' handling of a 2011 off-duty fight that injured two officers, Biazzo and Killion. Four of the five plaintiffs in this suit were suspended for between 10 and 30 days after the department found that they neglected their duty as police officers when responding to and investigating the fight.
They claimed that other officers who were subjects of the investigation were not suspended, and only the officers who advocated for 12-hour shifts were.
However, an appellate court ruled last week that the department was justified in suspending a total of six officers in connection with the May 7, 2011 incident.
Another suit regarding alleged retaliation from the Pennsauken Police Department is still alive in U.S. District Court in Camden.
Former officer Douglas Foster, one of the officers suspended in 2011, was fired in 2015. He sued the department and top officials, alleging the firing, and a series of reprimands, suspensions and other actions from the police chief were all in retaliation for his support of 12 hour shifts.
Rebecca Everett may be reached at reverett@njadvancemedia.com. Follow her on Twitter @rebeccajeverett. Find NJ.com on Facebook.