April 2016 Issue - Burlington County Bar Association

The Straight Word
Vol. 50, No. 4
Burlington County Bar Association
Mark Your
Diary
April
19 Nursing Home Litigation Seminar – 4:30 p.m.
County Office Building, Mt. Holly
20 BCBA Board of Trustees Meeting – 4:30 p.m.
Medford Village Country Club, Medford
Haines Award Reception – 6 p.m.
Medford Village Country Club, Medford
21 Criminal Practice Seminar – 4:30 p.m.
County Office Building, Mt. Holly
26 Family Law Bench/Bar Dinner – 6 p.m.
Medford Village Country Club, Medford
27 How to Get Clients Seminar – 4:30 p.m.
County Office Building, Mt. Holly
28 Civil Bench/Bar Meeting – 4:00 p.m.
County Office Building, Mt. Holly
May
2
3
10
11
14
17
18
25
Supreme Court Group Admission – 9 a.m.
Washington, D.C.
Law Day Ceremonies – 9 a.m.
Old Courthouse, Mt. Holly
Law Day Dinner – 6 p.m.
Indian Spring Country Club, Marlton
Family Law Bench/Bar Meeting – 4 p.m.
Courtroom 7A, Mt. Holly
Commercial Law Seminar – 4:30 p.m.
County Office Building, Mt. Holly
Run for the Bar – 8 a.m.
Kings Grant, Marlton
Business Succession Planning Seminar –
4:30 p.m. – County Office Building, Mt. Holly
BCBA Board of Trustees Meeting – 4:30 p.m.
Bar Headquarters, Mt. Holly
BCBF Board of Trustees Meeting – 5:30 p.m.
Bar Headquarters, Mt. Holly
Running in Heels – 4 p.m.
Laurel Creek Country Club, Mt. Laurel
Inside This Issue
President’s Message. . . . . . . . . . . . . . . . . . . . 3
Wine Pick of the Month. . . . . . . . . . . . . . . . . 4
The Problem with Income Only Trusts. . . . . . 5
Update on NJ Employment Law. . . . . . . . . . 13
April 2016
Run for the Bar 5K
Join the Burlington County Bar Foundation as we “RUN FOR THE
BAR” on May 14, 2016 in Kings Grant in Marlton, NJ. The race
begins at 8:30 a.m. and will take runners and walkers on an easy flat
loop around Kings Grant. Walkers can also choose to take a scenic
1 mile walk around the lake instead of walking the 5K course.
Parking is available at the Kings Grant Community Center, located
at 50 Landings Drive in Marlton. The race will begin and end just a
few steps from the parking area.
Prizes will be awarded to the top male and female overall finishers;
and medallions will be awarded to the top three male and female
finishers in their age bracket. Amenities include t-shirts, awards
ceremony and refreshments.
Registration information is included in this issue of The
Straight Word or register online at https://runsignup.com/Race/
Register?raceId=7300&embedId2=BoWX4VRc. A registration link is also
available on our website at www.burlcobar.org; click the “Burlington
County Bar Foundation” tab. Sponsorship opportunities are also
available and information for sponsorship opportunities is
included in this issue. If you have a local business you frequent,
consider asking them to sponsor the 5K for the Foundation. All
proceeds benefit the Burlington County Bar Foundation’s Raising the
Bar Campaign. Call (609) 261-4542 with questions. See you there!
IN MEMORIAM
The Burlington County Bar Association was saddened to learn of the passing
of member Stephen H. Dunbar on March 13, 2016 at the age of 64.
A member for nearly 25 years, Steve will be remembered for his lighthearted
and good-natured demeanor.
In lieu of flowers, donations can be made to the James Baldwin Scholar
Program at Tinyurl.com/hampshireDonationsForSteve (please write “James
Baldwin Scholarship” in the memo box); or to Samaritan Hospice, 5 Eves
Drive, Marlton, NJ 08053.
We extend our sincerest condolences to our good friend and past president
Katie Hartman, and all of Steve’s family, friends and colleagues. He will
be missed.
The Straight Word
Bar Briefs
Published by
The Burlington County Bar Association
137 High Street, 3rd Floor
Mt. Holly, NJ 08060
New Members
Kevin M. Buttery, Esq.
Begley Law Group, P.C.
509 S. Lenola Road, Bldg. 7
Moorestown, NJ 08057
(856) 787-4242 Fax: (856) 273-1062
[email protected]
Ann S. Cantwell, Esq.
Sherman Silverstein Kohl Rose & Podolsky
308 Harper Drive, Suite 200
Moorestown, NJ 08057
(856) 662-0700 Fax: (856) 662-0165
[email protected]
Alison Chen, Esq.
Information withheld
Michael J. Fekete, Esq.
Dilworth Paxson LLP
457 Haddonfield Road, Suite 700
Cherry Hill, NJ 08002
(856) 675-1900 Fax: (856) 663-8855
[email protected]
Linda Galella, Esq.
Parker McCay, P.A.
9000 Midlantic Drive, Suite 300
Mount Laurel, NJ 08054
(856) 985-4052 Fax: (856) 489-6980
[email protected]
Mariel Giletto, Esq.
Parker McCay, P.A.
9000 Midlantic Drive, Suite 300
Mount Laurel, NJ 08054
(856) 596-8900
[email protected]
Robyn Goldenberg, Esq.
Fritz & Goldenberg
1515 Market Street, Suite 705
Philadelphia, PA 19102
(215) 458-2221 Fax: (215) 689-1563
[email protected]
Melanie S. Kaplan, Esq.
Information withheld
Benjamin R. Kurtis, Esq.
Fox Rothschild, LLP
997 Lenox Drive, Bldg. 3
Lawrenceville, NJ 08648
(609) 895-3303 Fax: (609) 896-1469
[email protected]
Robert C. Levicoff, Esq.
Hulse & Germano, LLC
1624 Jacksonville Road
Burlington, NJ 08016
(609) 387-5300 Fax: (856) 387-9169
[email protected]
(Continued on page 8)
2
Members
on the Move
Michael S. Mikulski II
Connor, Weber & Oberlies
304 Harper Drive, Suite 201
Moorestown, NJ 08057
(856) 780-3800 Fax: (856) 778-0235
[email protected]
Jeffrey H. Pooner, Esq.
The Law Office of Jeffrey Pooner
1813 Berlin Road
Cherry Hill, NJ 08003
[email protected]
Christina Rogers-Spang, Esq.
Kent McBride
1040 Kings Highway North, Suite 600
Cherry Hill, NJ 08034
(267) 702-1768 Fax: (267) 702-1769
[email protected]
CIVIL BENCH/BAR
MEETING RESCHEDULED
The Civil Bench and Bar meeting
has been rescheduled from April 7
to Thursday, April 28 at 4 p.m.
in the County Office Building, 49
Rancocas Road, Courtroom 1. Judge
John Harrington, P.J.Cv.; Judge Aimee
R. Belgard; Judge Susan L. Claypoole
and Judge Janet Z. Smith will all be
in attendance at the meeting. We
encourage all members of the civil
bar to attend this important meeting.
SENIOR ATTORNEYS
LUNCHEON
Thursday, April 21, 2016
12:30 p.m.
Burlington Country Club
Mt. Holly, New Jersey
★ ★ ★
Have lunch with your friends
at the bar.
Order from the menu individually.
Dutch treat.
All those interested in attending
are welcome!
The Straight Word
Email: [email protected]
Website: www.burlcobar.org
Phone: (609) 261-4542
Fax: (609) 261-5423
Lawyer Referral Service: (609) 261-4862
OFFICERS
Kevin Walker. . . . . . . . . . . . . . . . President
Elizabeth M. Garcia. . . . . . . President-Elect
Douglas L. Heinold. . . . . . . . Vice President
Jennifer Stonerod . . . . . . . . . . . . Treasurer
Pamela A. Mulligan. . . . . . . . . . . Secretary
TRUSTEES
2013-2016: Cedric Edwards
Richard C. Klein
Nikitas Moustakas
Daniel Posternock
2014-2017:
Kim C. Belin
Emmett S. Collazo
John L. Laskey
Reema Scaramella
2015-2018:
Joan M. Burke
Brett E. J. Gorman
Steven A. Traub
Berge Tumaian
YOUNG LAWYER TRUSTEES
2014-2016: 2015-2017: Victoria A. Schall
Samantha Vander Wielen
Immediate Past President:
Roger Lai
New Jersey State Bar Trustee:
Edward W. Hoffman
Executive Director:
Kara E. Edens
EDITORIAL BOARD
Kara E. Edens . . . . . . . . . . . . . . . . . . Editor,
Print & Circulation Mgr.
All Officers and Trustees of
Burlington County Bar Association
STATEMENT OF POLICY
The existence of your Burlington County
Bar Association is made possible by your
financial support. However, our success
in fostering professional growth and
improving the practice depends on your
participation in meetings, programs,
seminars and the work of committees, as
well as your support of our publication,
The Straight Word, by way of suggestions
and contributions.
Contributions are welcome, subject to the
deadline of the 10th day of each month.
The Straight Word is published ten times
a year. The right to edit and publish is
reserved.
April 2016
Bar Briefs
(continued from page 2)
President’s Message
By President Kevin Walker
Members in the News
As obituaries go, this one was a doozy.
Begley Law Group partners, Thomas D.
Begley, Jr. and Ethan J. Ordog are pleased
to announce that attorneys Melanie S.
Kaplan and Kevin M. Buttery have joined
the Moorestown elder and disability law
firm. Ms. Kaplan obtained her undergraduate
degree at George Washington University and
her Juris Doctorate at Rutgers School of Law.
She brings extensive knowledge in estate
administration, guardianships and Medicaid
to the firm and shall represent clients in those
areas of practice. Mr. Buttery received his
undergraduate degree from Drexel University
and his Juris Doctorate from Rutgers School
of Law. With his experience representing
personal injury victims, Kevin is well
positioned to help the firm’s clients protect
benefits they receive, while enhancing their
lives through comprehensive planning.
Through the hire of Melanie and Kevin, who
are each licensed to practice law in New Jersey
and Pennsylvania, the firm has significantly
enhanced the Begley Law Group’s ability to
serve the needs of clients in New Jersey, as
well as Pennsylvania.
Capehart Scatchard shareholder John H.
Geaney recently spoke at a meeting of the
Monmouth-Ocean Counties Shared Services
Insurance Fund (MOCSSIF). Mr. Geaney
addressed issues school boards face in
workers’ compensation cases, including the
decisions in Williams v. Deptford Board of
Education and High v. Rose. Mr. Geaney also
spoke on workers’ compensation fraud. A
seasoned workers’ compensation practitioner
for over 30 years, Mr. Geaney is the author of
Geaney’s New Jersey Workers’ Compensation
Manual and A Guide to Employment Issues
Under the ADA & FMLA distributed by the
New Jersey Institute for Continuing Legal
Education. Mr. Geaney concentrates his
practice in the representation of employers
in workers’ compensation defense matters,
the Americans with Disabilities Act, and the
Family and Medical Leave Act.
April 2016 In fact, initially, I thought it was a hoax. After all, what
kind of death notice describes the dearly departed
as a “former soccer player, tool and die maker and
David Bowie look-alike [who] ate his last Philadelphia
soft pretzel on February 25, 2016”? Or attributes his
demise to “a week-long battle with torso failure and the lasting effects
of a 1992 alien abduction”? Or lists as one of the decedent’s survivors a
“battery-operated, cymbal-smashing monkey”?
What kind? The kind penned by Lisa Razzi, the self-described “life partner”
of Elwood “Buddy” Segeske III, the subject of the obit, which ran in
The Philadelphia Inquirer, a few days after Buddy, age 60, succumbed to a
heart attack.
What first drew me to the notice—and here I must confess that, as ghoulish
as it sounds, my perusal of obituaries has become a daily ritual—was the
photograph that accompanied it, a grainy black-and-white image of, if
not a Bowie clone, a young man with a mischievous glint in his eyes and
a haircut reminiscent of the 1970s. He could have been any one of the
shambling, polyester-clad kids with whom I attended high school during
that dreary decade.
But what really captivated me—and apparently thousands of others, after
the obit went viral—was how, in 350 carefully chosen, ribald words, the
author, Razzi, was able to so perfectly capture the spirit of a man who, to
quote a subsequent feature in the Inquirer, streaked like an “oddball comet”
through the lives of the people he encountered.
Most death notices are couched in stilted, often cryptic language. Not this
one. Buddy had requested a funny obit. And, boy, did he get one.
As Razzi noted in the unexpurgated version that appeared online, Buddy
Segeske was raised on “the mean streets of Kensington, where he claimed
the men were men, and so were half the women.” His neighborhood had
a “hardscrabble reputation,” she wrote. Still, “Buddy says he cried the first
time he made love, although it was probably due to the pepper spray.”
(That last crack somehow eluded the editors of the Inquirer’s print version.)
“And although he achieved many things in his life, [Buddy] was most
proud of his years playing soccer, his near-perfect recall of Beatles lyrics
and his ability to hit the urinal cake with pinpoint accuracy.”
Razzi continued: “To relieve stress, Buddy preferred smoking and drinking
over yoga, although he did cut a fine figure in yoga pants”—or so said
“an undisclosed number of female (and male) admirers.”
Razzi concluded her tribute—which seemed to revel in her beau’s
humanity—by writing that Buddy “will be remembered for his contagious
smile, sparkling blue eyes, gentle heart and inappropriate sense of humor.”
It seems that Razzi had met Buddy 10 years earlier at a local psychiatric
hospital. There was a patient there, recalled Razzi, who became very angry,
(Continued on page 16)
The Straight Word
3
NOTICE TO THE BAR
Wine
Pick
of the
Month
CENTRAL JUDICIAL
PROCESSING
Beginning Monday, March 7, 2016, the
Burlington County Superior Court will begin
holding Central Judicial Processing (CJP)
events. This is one of several changes to
our processes that will be occurring over the
next year as the entire state moves toward
Criminal Justice Reform, which will fully take
effect on January 1, 2017.
Historically, the superior court has heard first
appearances for those individuals that are
incarcerated, while the municipal courts would
hold first appearances on indictable offenses
for those individuals who have posted bail or
were released on a summons. The purpose
of CJP is to have all first appearances heard
in a central location. Our program will also
include other components. Individuals will
have the opportunity to apply for the services
of the office of the public defender, and those
that qualify will meet with an attorney on
site. Applications for pre-trial intervention
(PTI) and drug court will be taken at this
stage. Additionally, if a case can be resolved
at this stage, arrangements will be made for
that matter to be disposed immediately. We
will also have preliminary screening decisions
from the prosecutor’s office and will be able
to notify defendants if their case has been
downgraded, dismissed, etc.
The first appearance can still be waived
utilizing the same form that has been utilized in
the past (See webpage: http://www.judiciary.
state.nj.us/burlington/First%20Appearance%
20Program%20waiver.pdf). However, the form
should be sent to the criminal division instead
of the municipal court. If an attorney waives
the first appearance event, the defendant will
still be required to appear for the CJP event.
This is a change for everyone, and we
understand there will be questions as we go
through this process. Do not hesitate to reach
out to the criminal division or Tim Farrow, the
bar representative for this initiative, with any
questions you may have.
Criminal Division contact information:
Connie Nelson: 609-518-2959
Charles Marvin: 609-518-2578
4
By Janice L. Heinold
Having just finished a book that takes place around
the battle of Waterloo, and being reminded by current
events how the actions of one egotistical madman
claiming to make his country “great again” can cause
disastrous repercussions for an entire continent, I
thought I would take a foray into the
wines of the birthplace of Napoleon: Corsica.
Corsica, the French island floating between France and
Italy, has a diverse geography and climate. Both maritime
and continental (owing to the mountainous terrain),
there is also a near-constant wind (the Mistral from the
northwest and the Sirocco from the south) which lessens
the effect of frequent and sudden rainfall. The soils are
limestone in the north and granite in the South.
Sangiovese (called Niellucciu here) is grown in the
Northern half of the island, although it is expressed as
a much more rustic and heartier wine than a typical Italian Sangiovese,
such as Chianti. Mammolo (called Sciaccarellu here) is the dominant grape
in the South, which is used a blending grape in Italy, but is considered
“Corsica’s Pinot Noir”, very expressive and elegant. The major white grape
island-wide is Vermentino (called Vermentinu here).
Although still hard to find stateside, Wineworks does
has three Corsican wines: a 2013 Vignerons de L’ile –
Aleria XX 270 Syrah for $17 (inky
black, dark fruit and pepper yet very
elegant); an Orin Swift Verminto
$16 (floral, green apples, almonds)
and a 2010 Domaine Marengo –
Muscat Du Cap Corse 2010 (500ml)
$28 (a white dessert wine, 100% Muscat).
Several Domaine Giacometti wines are available
on order through Traino’s in Marlton, including
a 2013 Domaine Giacometti Cru des Agriate
Rouge (a 97% Nielluciu/3% Grenache blend)
for $20. Also available on order from Traino’s
are several Domaine Maestracci wines from the
region of Prove (a granite-soiled micro-climate in
the northwest of the island), including blends
of Niellucciu, Sciaccarellu and Grenache, all
around the $20 mark.
Let’s hope that come November, American
citizens remember history, and learn from its
lessons. If not, I’ll be drinking plenty of wine
to forget.
The Straight Word
April 2016
The Problem with Income-Only Trusts in
Medicaid Planning
By Thomas D. Begley, Jr., CELA
Purpose
Income Only Trusts are a means by
which seniors transfer assets to a trust
rather than to their children. Seniors
tend to view transfers to trusts as
protection, while they tend to view
transfers to children as gifts. Trusts
provide them with a sense of dignity and security.
Requirements
Income only trusts are permitted by OBRA-93.1 They must be
irrevocable. The trust instrument provides that the grantor or
the grantor’s spouse receive all of the income from the trust,
but has no access to principal.
Design of the Trust
In order to structure the trust as a Grantor Trust and to
receive a step up in basis on death, practitioners often give
the grantor a right to substitute and reacquire property and/
or a limited power of appointment. The grantor can reserve
the right to income, but the trust must absolutely prohibit
any access to principal by the grantor or grantor’s spouse.
The trust can permit the trustee to make distributions to
third parties, such as children.
distribution, practitioners in the field of family law
indicate that judges often find ways to give additional
assets, other than the transferred assets, to the other
spouse. In addition, the assets transferred could affect
alimony or support rights or obligations.
• Bad Habits. If a parent transfers assets to a child who is
a gambler, a drug addict, an alcoholic, or a spendthrift,
the assets may be squandered and no longer available to
the parent.
• Death of Child. If the child dies holding the parent’s assets
in the child’s name, the assets will likely pass by Will or
Intestacy to the spouse or children of the deceased child.
• Capital Gains Tax. If a parent has highly appreciated
assets and transfers them to children, the transfer is
subject to carryover basis and will result in the children
paying significant capital gains tax in the future. If the
highly appreciated assets are transferred to an Income
Only Trust, since the trust is a grantor trust and the assets
will be included in the estate of the parent on death, the
children will receive a “step up” in basis and will be able
to avoid paying significant capital gains taxes.
(Continued on page 6)
When Income Only Trusts are Useful
There are a number of reasons why transfers to an Income
Only Trust should be considered in lieu of transfers to
children. When transferring assets to the Income Only
Trust, the grantor can retain the right to receive income.
The principal will not be counted as an asset, but there will
be a transfer of asset penalty if the transfer occurs during
the five-year lookback period.
If the elderly parent transfers assets to children, rather than
put them in a trust, certain risks must be anticipated. These
risks can be avoided if the assets are put in a trust. The risks
of an outright transfer include:
• Claims of Creditors. The claims of the creditors of
the adult children could be satisfied through the assets
of the parent, if the parent makes outright transfers to
the children.
• Matrimonial Action. If a child to whom assets are
transferred is subsequently divorced, the transferred
assets may become subject to a claim of equitable
distribution. While the law dictates that assets transferred
from a parent to a child are not subject to equitable
April 2016 The Straight Word
5
The Problem with Income Only Trusts in Medicaid Planning
(Continued from page 5)
Planning Considerations
Tax Consequences
Availability
An Income Only Trust can be designed as a grantor trust.
The trust assets are unavailable for Medicaid, but there are
some potentially significant tax benefits to the grantor. The
Internal Revenue Code contains certain requirements for a
grantor trust.2
The principal in the Income Only Trust would not be
considered an available resource, but the income would be
available to the recipient of the income.
Transfer of Asset Penalty
The problem with Income Only Trusts is that if money
remains in the trust at the death of the grantor, it is subject
to Medicaid estate recovery. If assets are distributed out of
the trust during the lifetime of the grantor, there is a transfer
of asset penalty. The transfer to the Income Only Trust
would be subject to the Medicaid and Supplemental Security
Income (“SSI”) transfer of asset penalties. There is an issue as
to whether a transfer from an Income Only Trust is subject
to transfer of asset penalties. New Jersey takes the position
that a distribution of principal from an Income Only Trust
to a third party constitutes a transfer of an income interest.
The penalty is calculated by multiplying the annual income
by the actuarial life expectancy of the income beneficiary
and dividing by the divisor. In states with a broad definition
of estate recovery that would include assets in a Living Trust,
it is necessary to distribute assets from the Income Only
Trust at the time of the Medicaid application.
No payback provision is required for an Income Only Trust.
Ideal assets to fund an Income Only Trust are appreciated
assets. Retirement accounts are not suitable, because the
income tax would have to be paid on the withdrawal of the
assets prior to funding the trust.
• Income tax. Income is taxed at the grantor’s individual
tax rate, which is usually less than the trust’s compressed
tax rate.
• Capital gains exclusion for sale of principal residence. Capital
gains tax treatment is maintained. This is particularly
important if the trust is funded with a primary residence.
The §121 exclusion from capital gains tax can be
maintained and the beneficiary can receive a step-up in
basis on the death of the grantor, if the property has not
been sold during the lifetime of the grantor. The trust
must contain a provision that the trustee must allocate
the gain on the sale of the home to principal and not
to income. The benefit of the capital gains tax can be
achieved for non-home appreciated assets as well
• Estate tax. Since the trust is a grantor trust, the entire
value of the estate would be included in the grantor’s
estate for federal estate tax purposes.3
Estate Recovery
The assets in the Income Only Trust would not be subject to
estate recovery in states having a probate definition of estate,
but would be included in states having a broad definition of
estate for estate recovery purposes, such as New Jersey.
Elective Share
State Medicaid agencies require that a Medicaid recipient
who is predeceased by a spouse assert
the Medicaid recipient’s right to an
Our focus is where it should be…
elective share against the estate of the
On You. On Your Family. On Your Future.
predeceased spouse. Failure to do so is
considered a transfer of assets subject
Lifestyle & Money
to the Medicaid transfer penalty rules.
Management
If an Income Only Trust for the benefit
Trust & Estate Planning
of the community spouse provides for
Investment Services
distribution to the children on the
True independence and understanding are
death of the community spouse, then
at the core of our unique value proposition.
these assets, in most states, would be
Caring for and thoughtfully guiding our
clients has created the strong trusting
subject to the elective share provisions.
relationships we have nurtured over many
The surviving Medicaid recipient
decades. That’s why so many people rely
upon our independent company for wealth
would, therefore, have an obligation
management and trust & estate services:
to assert his or her right to the elective
Garden State Trust Company.
share against the trust assets. Failure to
To learn how we can focus on you and
your family, contact us today.
do so would constitute a transfer for
Medicaid eligibility purposes.
Toms River, NJ | Cherry Hill, NJ | Lebanon, NJ
888.323.5535 | gstrustco.com
GSTC_7.25x4.5_AD_CMYK_3416_3.4.16_FINAL 3/4/16 5:18 PM Page 1
(Continued on page 7)
6
The Straight Word
April 2016
The Problem with Income Only
Trusts in Medicaid Planning
(Continued from page 6)
TRUSTS V. TRANSFERS COMPARISON
Issue
Income
Individuals
Only Trusts
Look-Back
Five Years
Five Years
Control
None
None
Risk Avoidance
Yes
No
Estate Recovery
Maybe
No
Income Tax
Parent
Children
Gift Tax
Maybe
Yes
Step Up in Basis
Yes
No
Principal Residence Exclusion Yes
No
Funding the Income Only Trust
Ideally, the trust will be funded with the least amount of
assets possible. In calculating how much to put in the trust,
the client can carve out assets that can be used in the future
for the following:
• Community Spouse Resource Allowance (CSRA)
• Spend down
• Key money to gain admission to a facility
• Any amount of money the client is willing to lose
Good/Bad Assets for Funding Trust
• Ideal assets. Ideal assets to fund an Income Only Trust
would include appreciated real estate, such as a primary
residence or a vacation home, or appreciated securities.
There are significant tax advantages in utilizing trusts for
these assets as opposed to transferring outright to children.
• Bad assets. Bad assets to use in funding trusts include
retirement accounts, deferred annuities, and government
bonds with significant accumulated interest. The problem
is the transfer of those assets would result in immediate
income tax. To the extent possible, these assets should be
left outside the trust.
3
1
2
42 U.S.C. § 1396p(d)(3)(B).
I.R.C. §§ 673–677.
I.R.C. §§ 1014, 2036, 2038; Treas.Reg. §§ 1.1014-2(a)(3), (b).
© 2015 Begley Law Group, P.C. All rights reserved.
FAMILY LAW BENCH/BAR DINNER
6:00 pm • Medford Village Country Club
April 2016 Serving the Legal Profession for over 20 years
The Straight Word
7
More Bar Briefs
New Members
(Continued from page 2)
Daniel Reinganum, Esq.
McDowell Posternock Apell & Detrick, P.C.
46 W. Main Street, Maple Shade, NJ 08052
(856) 482-5544
[email protected]
Debra Rosen, Esq.
Archer & Greiner, P.C.
One Centennial Square, Haddonfield, NJ 08033
(856) 354-3084 Fax: (856) 795-0574
[email protected]
Charles J. Strowhouer, Esq.
Information withheld
Law Clerk Members
Stephen Burke
Law Clerk to Hon. Gerard Breland
49 Rancocas Road, Mount Holly, NJ 08060
[email protected]
Dylan T. Hastings
Law Clerk to Hon. Anne McDonnell
1 N. Broad Street, Woodbury, NJ 08096
(609) 351-8863
[email protected]
8
FAMILY LAW BENCH/BAR MEETING
The Family Law Section has scheduled a general Bench and Bar meeting for
Tuesday, May 10, at 4 p.m. at the Burlington County Courthouse, courtroom
7A. This meeting will include Presiding Family Part Judge John L. Call, introduce
new judges Hon. Gerard H. Breland and Hon. Guy P. Ryan, and discuss new
procedures. Additionally, a spokesperson from the Administrative Office of the
Courts (AOC) will make an appearance and address the attendees about the
new filing fees.
Report of the Committee to Nominate Officers and
Trustees of the Burlington County Bar Association
The Nominating Committee, pursuant to Article IV, Section 2 of the Association
By-Laws, submits the following list of candidates for Officers and Trustees for
the year 2016-2017:
President-elect ............................................ Douglas L. Heinold
Vice President................................................. Jennifer Stonerod
Treasurer .....................................................Pamela A. Mulligan
Secretary ............................................................. Joan M. Burke
Two Year Trustee............................................ Nikitas Moustakas
Three Year Trustees ......................................... Ashley H. Buono
Cedric Edwards
Daniel Posternock
Victoria A. Schall
Young Lawyer Trustee......................................... Mark R. Natale
The Straight Word
April 2016
YOUNG LAWYERS HAPPY HOUR
Members of the Bench and Bar celebrated an early St. Patrick’s Day at the Young Lawyers Committee’s (YLC) Happy Hour
on Thursday, March 10 at PJ Whelihan’s in Maple Shade. The event included light appetizers and first beer or wine free with
a small donation to the Food Bank of South Jersey. Food Bank of South Jersey representative Lisa Sherwin attended and
shared information with the attendees about some of their fundraising initiatives. In all, the YLC raised $212 for the Food
Bank of South Jersey! Want more information on the Food Bank of South Jersey—check them out at http://foodbanksj.org/.
(l to r) Mark Natale, Judge Aimee
Belgard and Erin Campbell
(l to r) Brian Guest and Hon. Ronald
Bookbinder
(l to r) Reema Scaramella and
Jennifer Stonerod
Lisa Sherwin from
Food Bank of South Jersey
with YL Trustee Samantha
Vander Wielen and Mark Natale
Judge Aimee Belgard came out
to show her support for the
Young Lawyers Committee
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April 2016 The Straight Word
9
PIZZA, PINS AND POP
The Young Lawyers Committee recently hosted their annual Bowling Night on February 26 at Laurel Lanes in Maple Shade.
Members of the Bar brought their families and friends for some friendly competition and enjoyed pizza, pretzels and soft
drinks and 2 hours of bowling. As the pictures show, a great time was had by all!.
Below, George Morris and
Elyse Crawford with their families
Future members?
Law Clerks by day, bowlers by night
YL Trustee Samantha Vander Wielen and her
husband Ryan (left) pose with Leonard Wizmur
The Buck Family always comes out for pizza, pins
and pop!
10
Daniel Posternock, Judge Judith Wizmur, Judge Ronald
Bookbinder and Leonard Wizmur
The Straight Word
April 2016
9th Annual Bench/Bar Luncheon
Members of the Bench and Bar convened at Deerwood Country Club on Wednesday, March 9 for the 9th annual Bench/
Bar Luncheon. This year’s special event was called “Burlington County at the Crossroads” and featured Assignment Judge
Ronald E. Bookbinder updating attendees about
such issues as judicial shortages, upcoming judicial
retirements and judicial appointments. Additionally,
Judge Jeanne Covert, Presiding Judge of Criminal
Division, gave a brief overview of the Criminal
Justice Reform program. Finally, the newest judges,
Judge Aimee Belgard, Judge Gerard Breland and Judge
Guy Ryan took a moment to introduce themselves
and speak to the attendees. It was a great luncheon
of networking and camaraderie. Below are some
pictures of the guests enjoying themselves.
(l to r) David Frank, Hon. Mark Tarantino and Hon. Dennis McInerney
Hon. Terrence Cook and Hon. Kenneth Domzalski
(l to r) Charles Nugent, Hon. Paula Dow, Cedric Edwards and
Hon. John Call
(l to r) Cynthia Earl, Christopher Vanette and
Hon. Christopher Garranger
Above (l to r):
Timothy Annin,
Robert Rupinski
and Kathleen
Rupinski
Left: Kevin
Aberant and
Melanie Lavan
April 2016 (l to r) Vanessa Patrizi, John Borbi and
Hon. Aimee Belgard
The Straight Word
11
COMMITTEE CORNER
Diversity Leadership Committee Participates in Read Across America
The Burlington County Bar Association’s Diversity Leadership Committee
participated in Read Across America on Wednesday, March 2, 2016. Judges and
attorneys from the Committee read to students at Delran Intermediate School
in Delran and Hawthorne Elementary
School in Willingboro.
A total of 15 attorneys and judges
volunteered their time to read to the
students. Volunteer readers included
Committee Chairperson Kim C.
Belin, Esq., of Cooper Levenson; Hon.
Terrence R. Cook, J.S.C., Superior Court
of New Jersey, Burlington Vicinage; A.
Anna Abraham, Esq.; Carolyn V. Chang,
Esq.; Patricia P. Davis, Esq.; Licardo E.
Gwira, Esq.; Sharon D. Larmore, Esq.;
Mark R. Sander, Esq.; Cynthia Sora, Esq.;
Margaret L. Tarver, Esq. and more.
Judge Terrence Cook shares a laugh
with students
Diversity Leadership Committee
Chair Kim Belin reading to students
The goal of this activity was to have the
students see judges and attorneys of color up close and to plant the seed of a
potential future career as an attorney or judge. Each volunteer reader told the
students if they were an attorney or judge and briefly described their jobs. The
Committee intends to make this an annual event.
Sherman Silverstein
isSherman
pleased Silverstein
to welcome
is pleased to welcome
Anne
Esq.
Anne Cantwell,
Cantwell,
Esq.
to the firm.
to the firm.
She will be a member of the
She will
a member
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firm’s
realbe
estate
department.
firm’s real estate department.
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& Employment
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& Indemnity
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and
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Mediation
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Financial
Services
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Divorce
& Family Law
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Health
Law &
Tax Planning
Strategies
Tax
Planning &
Strategies
Bankruptcy, Insolvency
&
Workouts Insolvency
Bankruptcy,
& Workouts
Moorestown, NJ (856) 662-0700 | Woodbury, NJ (856) 848-2152 | Bala Cynwyd, PA (215) 923-2513 | shermansilverstein.com
Moorestown, NJ (856) 662-0700 | Woodbury, NJ (856) 848-2152 | Bala Cynwyd, PA (215) 923-2513 | shermansilverstein.com
12
The Straight Word
April 2016
UPDATE ON NEW JERSEY EMPLOYMENT LAW:
Anonymous Letter Calling Fellow Employee “Time Bomb Ready
To Explode” Does Not Justify Compulsory Psychological Exam
By Richard M. Schall, Esq.
Schall & Barasch, LLC
With all the terrible news
about work place shootings of late, important and
interesting employment
law questions arise: At
what point can a New
Jersey employer require
an employee to undergo
a psychological or psychiatric examination? Should
there be any limits? Or does workplace safety simply “trump”
any concern about privacy rights?
Well, a recent decision from the Appellate Division of
the New Jersey Superior Court has provided some answers to
these questions.
The case, In re Williams, 2016 N.J. Super. LEXIS 15 (January
25, 2016) arose when the Lakewood, New Jersey Township
manager received an anonymous letter from “a very concerned
employee at Lakewood Public Works,” in which the author of
the letter wrote as follows:
I am writing this letter because I am very concerned
about the mental well-being of Paul Williams. We
as co-workers dread being assigned with him and
everyone knows he has some sort of mental issues
and I truly feel it puts us all at risk with his tirades
and outbursts on a daily basis like the one he had
today with his union stewards [M.C., B.T., and P.R.]
as well. The men and women here at Lakewood
public works deserve to come to work and not be
afraid of this man, we deserve a hostile free working
environment and you as our employer are legally
obligated to provide us such. For years we have
complained about this man to former Director
[J.F.], to our current administration in place now
and it seems like a joke, it’s not. In 1992 there were
over 750 workplace killings and this is no laughing
matter; it’s very real and very serious. Williams is a
time bomb waiting to explode and he needs help,
and it’s your responsibility to ensure he gets it
or provide some way for us to feel safe at work. I
truly hope there is something you can do to ensure
our safety, please don’t put the township’s fear of
liability ahead of the employee’s safety.
For eight months after receiving this anonymous letter, the
Township took no action. But then, after the prolonged delay,
it ordered Mr. Williams to attend a psychological fitness-forduty evaluation and informed him that failure to attend would
subject him to disciplinary action. After Williams refused to
attend the examination, the Township instituted the threatened
disciplinary actions and ultimately terminated Williams from
his employment for “insubordination” in refusing to attend
the psychological examination it had ordered.
As a public employee in the State of New Jersey, Williams had
the right to appeal his case through the State’s civil service
administrative hearing process, and he chose to do so. While
Administrative Law Judge who heard the evidence in the case
found in Williams’ favor, noting that the Township waited
eight months to conduct its investigation and lacked sufficient
evidence of any real risk of injury to a fellow employee or the
public, the Civil Service Commission overturned the Judge’s
decision, ruling that the Township had the right to force
Williams to undergo the examination.
The case then made its way to the New Jersey Superior Court’s
Appellate Division, which, “in a case of first impression in New
Jersey” held that the Township had overstepped its bounds and
violated the provisions of the Americans with Disabilities Act
in attempting to force Williams to attend the psychological
evaluation and then firing him for refusing to do so.
In its very thorough decision, the Appellate Division reviewed
the provisions of the Americans with Disabilities Act that
limit employers’ ability to require “medical examinations
and inquiries, as well as the guidelines issued by the Equal
Employment Opportunity Commission in enforcing those
provisions.
In summary, here’s what the New Jersey court made clear about
what the Americans with Disabilities Act (the ADA) requires of
an employer before it can order a medical or psychological
evaluation:
•The ADA allows employers to require medical or
psychological evaluations only when they can show they
are “job related and consistent with business necessity.”
• Before ordering such examinations, under the ADA, an
employer must have “a reasonable belief, based on objective
evidence that (1) an employee’s ability to perform essential
job functions will be impaired by a medical condition;
or (2) an employee will impose a direct threat due to a
medical condition.” (Emphasis added).
Thank you for your time.
April 2016 (Continued on page 14)
The Straight Word
13
UPDATE ON NEW JERSEY EMPLOYMENT LAW (Continued from page 5)
• If an employer wants to require an examination based on
information received from co-workers, the information
must be “reliable information from a credible third party.”
(Emphasis added).
• In order to determine if the source of the information is
“reliable” and “from a credible third party,” the employer
should consider “(1) the relationship of the person
providing the information to the employee about whom
it is being provided; (2) the seriousness of the medical
condition at issue; (3) the possible motivation of the
person providing the information; (4) how the person
learned the information (e.g., directly from the employee
whose medical condition is in question or from someone
else); and (5) other evidence that the employer has that
bears on the reliability of the information provided.”
Applying these requirements of the ADA to the Lakewood
Township’s actions against its employee, Mr. Williams, the
New Jersey Court found that Lakewood had failed to comply
with the law. In finding in favor of the employee, the Court
noted the Township could not likely have considered him to
be a “direct threat to other employees or property” because
it waited over eight months to demand that he attend the
examination, during which time Williams continued to
14
perform his duties without incident. The Court also noted
that the Township had conceded at the hearing that, while
Williams may have times been “confrontational,” he was “no
different” in this regard than other employees. And, as to the
anonymous letter, the Court held that, “it did not represent
the type of reliable information from a credible source upon
which the Township could reasonably rely in ordering a
psychological examination” and was instead “exactly the type
of innuendo and rumor that the EEOC has advised employers
is insufficient to support a mandatory evaluation.”
Finally, in response to the Township’s argument that it was
being “rendered powerless to take appropriate action,” the
Court noted that it might have reached a different decision
if the Township had conducted any reasonable investigation
into the allegations of the anonymous letter but that the
Township had instead failed to interview any of the witnesses
identified in the anonymous letter.
The takeaway here: When alerted to potential threats in
the workplace, New Jersey employers have an obligation
to conduct some reasonable investigation before simply
demanding of an employee that he or she be examined by a
psychologist or psychiatrist.
The Straight Word
April 2016
Diversity Leadership Committee
HON. MARC M. BALDWIN, J.S.C. (Ret.)
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The Diversity Leadership Committee recently hosted
a seminar “Implicit Bias: Awaken to the Forces in Your
Mind” on February 23 at the Old Historic Courthouse in
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the impact implicit bias has on our workplaces; and best
practices for mitigating bias and promoting inclusion in
the legal profession. Speakers included Debra S. Rosen,
Esq. of Archer & Greiner, P.C.; Stella M. Tsai, Esq. of Archer
& Greiner, P.C.; and Alita Wingfield, Esq., Chairperson,
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The Straight Word
15
President’s Message — Continued from page 3
SURETY
CHARITABLE
FOUNDATION
and she “looked at me and said, ‘You evil red hen.’” The
patient then “picked up a piece of chicken and threw it at me
across the table, and Buddy caught the chicken.”
A laughing Razzi later told the Inquirer: “Flying poultry
brought us together, and to this day, we can’t eat chicken
without tears in our eyes. How can you not have a goofy life
together after a meeting like that?”
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People instantly connected with Buddy, in all his zaniness.
Hundreds of strangers, from all over the country, signed the
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“Buddy, we love that you lived a full life that was honored by
your friends and family,” posted John from Australia. “That
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guy.” Some, in keeping with the spirt of the obit, worried
about the disposition of the cymbal-clanging monkey, which
quickly became an online trope for Buddy’s merry life.
Why am I devoting my monthly column to Buddy Segeske,
this gloriously wacky, unemployed tool and die maker who
spent his life telling deliciously off-color jokes and spreading
good cheer? Because, as lawyers, we sometimes take ourselves
too seriously. Overwhelmed by professional obligations,
we carry the weight of the world on our shoulders—or so it
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Buddy, in his short but incandescent life, did not eschew the
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The Straight Word
April 2016
Join Us for a Fun, Casual Celebration!
The annual Installation of Officers dinner will take place on
Friday, June 3, 2016
at
Kings Grant Community Center
Marlton, NJ
Elizabeth M. Garcia
will be installed as the 85th president of the Burlington County Bar Association and
Pamela Mulligan
will be installed as president of the Burlington County Bar Foundation.
•••
Featuring delicious hot and cold hors d’oeuvres and stations, live music, wine and
beer all evening, and more, it is sure to be a lovely early summer evening.
Join us for this very special event and support your Association and Foundation
Officers and Trustees. Look for the flier in this month’s issue for more information!
April 2016 The Straight Word
17
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18
The Straight Word
April 2016
April 2016 The Straight Word
19
The Straight Word
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