Opinion
DOCKET NO. A-4290-13T4
05-27-2015
BLOOMFIELD POLICE OFFICER MICHAEL MCCRACKEN and BLOOMFIELD POLICE OFFICER HECTOR CARTAGENA, Plaintiffs-Respondents, v. TOWNSHIP OF BLOOMFIELD, MAYOR AND COUNCIL OF THE TOWNSHIP OF BLOOMFIELD, BLOOMFIELD BUSINESS ADMINISTRATOR TED EHRENBURG, BLOOMFIELD POLICE CHIEF CHRISTOPHER GOUL, BLOOMFIELD DIRECTOR OF LAW/TOWNSHIP ATTORNEY BRIAN ALOIA, ESQ., and BLOOMFIELD ASSISTANT DIRECTOR OF LAW STEVEN MARTINO, ESQ., Defendants-Appellants.
Steven R. Nevolis argued the cause for appellants (Weiner Lesniak, LLP, attorneys; Bryant Gonzalez, of counsel and on the briefs). Cathlene Y. Banker argued the cause for respondents (C. Elston & Associates, LLC, attorneys; Catherine M. Elston, of counsel and on the brief; Ms. Banker, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Haas. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9892-13. Steven R. Nevolis argued the cause for appellants (Weiner Lesniak, LLP, attorneys; Bryant Gonzalez, of counsel and on the briefs). Cathlene Y. Banker argued the cause for respondents (C. Elston & Associates, LLC, attorneys; Catherine M. Elston, of counsel and on the brief; Ms. Banker, on the brief). PER CURIAM
Defendants, Township of Bloomfield and various Township officials, appeal from the Law Division's May 5, 2014 order, which granted plaintiffs Michael McCracken and Hector Cartagena attorneys' fees and costs pursuant to N.J.S.A. 40A:14-155. That statute permits an award of attorneys' fees to a police officer who obtains a dismissal of disciplinary charges filed against him, but only when the disciplinary charges "aris[e] out of and [are] directly related to the lawful exercise of police powers in furtherance of his official duties[.]" Ibid. We affirm.
Unless otherwise noted, we refer to defendants collectively as "the Township."
We derive the following facts from the motion record. Plaintiffs are Township police officers. They also both serve as members of the Air Force Reserve. In November 2012, the Police Department's Internal Affairs Division sent McCracken a "Complaint Notification," which advised him that the Division was investigating allegations that he improperly filed reports indicating he was performing military service on "15 separate days between June 20, 2008 and July 3, 2011." In February 2013, the Division served Cartagena with a similar notification, alleging he improperly claimed he was on military leave on "29 separate days between May 17, 2007 and Dec. 18, 2011." Plaintiffs assert the Division also advised them that they were "being criminally investigated by the Essex County Prosecutor's Office based on the reporting of [their] military leave time." Shortly thereafter, both plaintiffs retained the same law firm to represent them during the investigations.
On December 4, 2013, the Township served Preliminary Notices of Disciplinary Action upon plaintiffs alleging they violated departmental rules and regulations by submitting written reports indicating they would be performing military service rather than performing their duties for the Township, when their military records indicated they were not doing so on those dates. Thus, the Township asserted plaintiffs "should have used [their] contractual days off rather than deceive the [police] department into believing [they were] on an official military function." The Township suspended plaintiffs without pay and proposed that they be terminated from employment.
However, the disciplinary notices did not set forth the specific dates on which this conduct allegedly occurred.
The specific charges were: incompetency, inefficiency or failure to perform duties, N.J.A.C. 4A:2-2.3(a)1; insubordination, N.J.A.C. 4A:2-2.3(a)2; chronic or excessive absenteeism, 4A:2-2.3(a)4; conduct unbecoming a public employee, 4A:2-2.3(a)6; neglect of duty, 4A:2-2.3(a)7; and other sufficient cause, 4A:2-2.3(a)12.
Plaintiffs' attorney immediately entered an appearance in opposition to the proposed disciplinary actions, requested a hearing, and asked for discovery. On December 30, 2013, plaintiffs filed a Verified Complaint In Lieu of Prerogative Writs in the Law Division. Plaintiffs asserted that two Township attorneys, who were involved in the disciplinary proceeding, had conflicts of interest because they had a business relationship with an Internal Affairs investigator. Thus, plaintiffs sought an order: enjoining the two attorneys from participating in the disciplinary proceedings; returning them to employment with back pay; and granting them counsel fees and costs.
Approximately an hour after the complaint was filed, one of the two Township attorneys sent an e-mail to plaintiffs' counsel, stating that he had advised the Township Administrator and the Police Chief that "major discipline [was] not warranted" in this case and that plaintiffs should be "immediately reinstated" to their positions with back pay. The issue of how to treat the leave time plaintiffs had taken, however, was not resolved. On January 3, 2014, plaintiffs amended their complaint to remove the demand that they be restored to employment with back pay because they had already received this relief.
The record does not indicate whether the Township attorney was aware that plaintiffs had filed a Law Division complaint at the time he notified plaintiffs' attorney by e-mail of the advice to reinstate plaintiffs with back pay.
The Township attorney suggested the matter be addressed by converting the disputed military leave "days in question to vacation time."
On January 6, 2014, the trial judge entered an order to show cause which temporarily restrained the two Township attorneys from participating in the disciplinary proceedings. Later that same day, the Township retained outside counsel to represent it in the disciplinary proceedings. Nevertheless, the judge subsequently entered several orders temporarily suspending the restraints against one of the Township attorneys, so that he could participate in settlement discussions concerning the disposition of plaintiffs' leave time and other outstanding issues between the parties.
When the matter could not be resolved, the Township adopted a resolution on March 3, 2014, dismissing the pending disciplinary proceedings against plaintiffs. The next day, it filed a Final Notice of Disciplinary Action with the Civil Service Commission for each plaintiff. The Final Notices incorporated the Township's resolution dismissing "all disciplinary charges" against plaintiffs.
The resolution also stated that outside counsel "is hereby authorized to continue to work to obtain terms of a global settlement of all possible claims . . . , including the payment of reasonable attorney's fees, if any, that are required to be paid by statute, which payment and amount are still in dispute."
Plaintiffs refused to voluntarily withdraw their verified complaint seeking to remove the Township's prior attorneys. The Township then filed a motion to dismiss the complaint. Plaintiffs filed a cross-motion for counsel fees pursuant to N.J.S.A. 40A:14-155. In support of this motion, plaintiffs' attorneys submitted redacted billing statements, and detailed certifications explaining the bills. Plaintiffs' attorneys represented that the redactions were necessary to protect plaintiffs' attorney-client privilege, which was especially important in this case because plaintiffs planned to file a civil action against the Township as a result of the dismissed disciplinary charges. Plaintiffs subsequently submitted unredacted copies of the bills to the trial judge for his in camera review.
The attorneys who represented plaintiffs in the disciplinary proceedings were not involved in the proposed civil action.
The Township opposed plaintiffs' request for counsel fees, arguing that N.J.S.A. 40A:14-155 was inapplicable because plaintiffs' submission of military leave request forms was not directly related to the lawful exercise of police powers in furtherance of plaintiffs' official duties. The Township also asserted that N.J.S.A. 40A:14-155 did not apply to any fees and costs plaintiffs incurred in the Law Division action because plaintiffs were not "defendants" in that action. Finally, the Township alleged that the fees plaintiffs sought were excessive.
At oral argument, the trial judge asked the Township's attorney about the importance of the duty imposed upon police officers to properly report their leave time, and the following colloquy occurred:
THE COURT: What would happen if a police officer just doesn't show up for duty and doesn't file any requests or notify the superiors; what would happen in that instance?
[TOWNSHIP'S ATTORNEY]: If he didn't notify his superiors?
THE COURT: Yeah, just doesn't show up.
[TOWNSHIP'S ATTORNEY]: Well, I think he could be disciplined for that.
THE COURT: Why?
[TOWNSHIP'S ATTORNEY]: For failing to report for duty; for failing to advise his superior officers of his location and whether he's reporting for duty, and those are manpower issues that have to be resolved there. It's a public safety concern, if he doesn't report. So there's -- there's significant concerns there, Your Honor.
THE COURT: Related to his police duty, significant functions related to police duty and obligations.
[TOWNSHIP'S ATTORNEY]: And public safety, yes, Your Honor.
[(Emphasis added).]
Following oral argument, the trial judge rendered a thorough oral opinion dismissing plaintiffs' complaint and granting plaintiffs' request for fees. The judge found that the Township had retained outside counsel to handle plaintiffs' disciplinary action and, once that occurred, "there was no basis for plaintiffs' request for permanent injunctive relief barring [the Township's prior attorneys] from participating in any present or future disciplinary action against plaintiffs." Therefore, the judge dismissed plaintiffs' complaint.
The judge then granted plaintiffs' request for $214,147.50 in counsel fees and costs under N.J.S.A. 40A:14-155. The judge stated that "plaintiffs faced administrative charges for allegedly falsely reporting leave time for military service." The judge found that "plaintiffs had an informative duty to report leave time for military service so that the [Township] Police Department could maintain adequate staffing levels in order to ensure appropriate public safety, [and] an informative duty not to knowingly and willfully make false entries in police department records and reports." The judge concluded that "[a] failure to report would . . . [a]ffect public safety[,]" and that "falsely reporting military leave time would amount to knowingly and willfully making a false entry in a departmental record or report, which is a clear exercise of police powers." Thus, the judge held that the Township was obligated to pay plaintiffs' counsel fees under N.J.S.A. 40A:14-155.
As to the amount of the fees plaintiffs sought, the judge found that "[p]laintiffs['] in[]camera submission of billing records along with their accompanying certifications clearly outline the labor intensive research required to defend against the underlying claims." Following his review of the bills, the judge stated, "[t]here's nothing in the record that indicates that plaintiffs' billing records are in any [way] inaccurate or unreasonable." Thus, he granted plaintiffs all the fees they sought up to March 3, 2014, the date the Township dismissed all of the disciplinary charges against them. This appeal followed.
The judge subsequently stayed the order pending appeal.
On appeal, the Township asserts that N.J.S.A. 40A:14-155 does not apply when the charge against a police officer involves the alleged improper filing of military leave requests. We disagree.
Our review of a trial court's legal conclusion is de novo. Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). N.J.S.A. 40A:14-155 states:
Whenever a member or officer of a municipal police department or force is a defendant in any action or legal proceeding arising out of and directly related to the lawful exercise of police powers in the
furtherance of his official duties, the governing body of the municipality shall provide said member or officer with necessary means for the defense of such action or proceeding, but not for his defense in a disciplinary proceeding instituted against him by the municipality or in criminal proceeding instituted as a result of a complaint on behalf of the municipality. If any such disciplinary or criminal proceeding instituted by or on complaint of the municipality shall be dismissed or finally determined in favor of the member or officer, he shall be reimbursed for the expense of his defense.
[(Emphasis added).]
As our Supreme Court explained in Oches v. Township of Middletown Police Department, this statute previously
required reimbursement of counsel fees when an officer was a defendant in any action "arising out of or incidental to the performance of his duties," rather than "arising out of and directly related to the lawful exercise of police powers in the furtherance of his officials duties," as required by the present statute.Thus, the statute previously permitted police officers, charged with criminal offenses committed while they were off-duty, to recover counsel fees where "the charges were brought because of [their] status as a police officer." Ibid. (citing Moya v. City of New Brunswick, 90 N.J. 491, 498, 510-11 (1982) (permitting a police officer charged with burglary to seek counsel fees under the prior version of N.J.S.A. 40A:14-155).
[155 N.J. 1, 6 (1998) (citation omitted).]
To avoid this result in the future, the Legislature
amended N.J.S.A. 40A:14-155 to replace the phrase "arising out of or incidental to the performance of his duties" with the words "arising out of and directly related to the lawful exercise of police powers in the furtherance of his official duties" as the type of conduct for which an exonerated police officer would be entitled to reimbursement.Thus,
[Ibid.]
[t]he plain language of N.J.S.A. 40A:14-155 [now] makes clear that counsel fees are not available where the "acts of the officer, even though occurring at a time when the officer was coincidentally performing official duties, were not occasioned by mere careless or overzealous performance of those duties, but rather by an ulterior illegal goal of the officer which actually constituted a perversion of his job."
[Id. at 7-8 (quoting Bruno v. City of Atlantic City, 239 N.J. Super. 469, 473 (App. Div.) (holding that police officers accused of offenses relating to cocaine possession were not entitled to counsel fees under the statute), certif. denied, 122 N.J. 165 (1990); see also Sparkman v. City of Atlantic City, 237 N.J. Super. 623, 629 (App. Div.) (holding that a police officer charged with the criminal offense of official misconduct could not recover counsel fees under the statute), certif. denied, 121 N.J. 660 (1990).]
However, in cases were police officers are "exonerated of charges arising out of the lawful exercise of police powers in furtherance of official duties, N.J.S.A. 40A:14-155 by its terms guarantees reimbursement of counsel fees." Id. at 8.
Applying these principles, we agree with the trial judge that plaintiffs were lawfully exercising police powers in furtherance of their official duties when they completed their military leave reports and submitted them to their supervisors. As the Township expressly acknowledged at oral argument before the trial judge, the timely and accurate submission of the reports is critically important to public safety. The reports were completed while the officers were on duty; were mandated by the Township Police Department; and were used by plaintiffs' supervisors to determine the staffing needs for the Department and to set the officers' schedules.
Having represented to the judge that the filing of timely and accurate leave requests directly serves the public interest and is related to an officer's duties, and the judge having relied upon that representation in his decision, it is unclear why the Township seeks to take a different position here. See Kimball Intern, Inc. v. Northfield Metal Products, 334 N.J. Super. 596, 606 (App. Div. 2000) (a party is generally barred by the doctrine of judicial estoppel from "advocat[ing] a position contrary to a position it successfully asserted in the same or a prior proceeding"), certif. denied, 167 N.J. 88 (2001).
--------
Thus, this is not a case like the situation in Oches, supra, where the Court found that a police officer, who violated a department regulation by tape-recording his interview for a promotion, was not performing "official duties at the time of the alleged conduct that gave rise to the disciplinary proceedings." 155 N.J. at 8. Here, plaintiffs were serving the public interest by accurately completing and timely submitting the military leave reports. Under these circumstances, we conclude that plaintiffs' actions arose out of and were directly related to the lawful exercise of their police powers in the furtherance of their official duties. Therefore, they were entitled to recover counsel fees under the clear terms of N.J.S.A. 40A:14-155.
Turning to the question of counsel fees, the Township first argues that N.J.S.A. 40A:14-155 only allows a police officer who is "a defendant in any action or legal proceeding" to recover counsel fees. (Emphasis added). Plaintiffs initiated the Law Division action seeking to disqualify the Township's attorneys from participating in the disciplinary proceedings because of a perceived conflict of interest. Because they were not "defendants" in that action, the Township argues that N.J.S.A. 40A:14-155 is inapplicable to any expenses they incurred in the Law Division and that the trial judge erred in granting them fees and costs for that proceeding. This argument lacks merit.
Plaintiffs were the subject of a criminal investigation and an Internal Affairs investigation. The Township subsequently filed Preliminary Notices of Disciplinary Action against plaintiffs, charging them with various disciplinary rule violations, and seeking to remove them from employment. Plaintiffs filed the Law Division action to bar the Township's two attorneys from participating in the disciplinary proceedings in which plaintiffs were the defendants.
Contrary to plaintiffs' contention, this case is plainly distinguishable from Van Horn v. Trenton, 80 N.J. 528 (1979). In that case, which concerned the prior version of N.J.S.A. 40A:14-155, a police officer brought a Law Division action for the sole purpose of compelling the municipality to pay the counsel fees he incurred "while he was the subject of a grand jury investigation." Id. at 531. The Court held that the officer was entitled to counsel fees for his defense in the grand jury proceedings, but could not recover the additional legal expenses he incurred in the enforcement action he filed in the Law Division to collect those fees. Id. at 538.
Here, on the other hand, plaintiffs' Law Division action was part and parcel of the entire disciplinary proceeding and, indeed, plaintiffs initiated it to ensure they would receive fair treatment when their charges were considered at the upcoming departmental hearing. Cf. Myron Corp. v. Atl. Mut. Ins. Corp., 407 N.J. Super. 302, 312 (App. Div. 2009), aff'd o.b., 203 N.J. 537 (2010) (permitting a litigant to recover counsel fees incurred in several actions in different jurisdictions where each action "was an integral part of the entire controversy" and could "fairly be characterized . . . as part of the same 'action'" in which the litigant prevailed). Therefore, plaintiffs were entitled to recover the counsel fees and costs they incurred in the Law Division action because those expenses were plainly related to the defense of the Township's charges against them within the intendment of N.J.S.A. 40A:14-155.
Finally, the Township argues that the fees the judge awarded to the Township were excessive. Again, we disagree.
A trial court's award of counsel fees "will be disturbed only on the rarest occasions, and then only because of a clear abuse of discretion." Rendine v. Pantzer, 141 N.J. 292, 317 (1995). Under state fee-shifting statutes, "the first step in the fee-setting process is to determine the 'lodestar': the number of hours reasonably expended multiplied by a reasonable hourly rate." Id. at 334-35. This is "the most significant element in the award of a reasonable fee because that function requires the trial court to evaluate carefully and critically the aggregate hours and specific hourly rates advanced by counsel for the prevailing party to support the fee application." Id. at 335.
The Supreme Court has cautioned that trial courts "should not accept passively the submissions of counsel to support the lodestar amount[.]" Ibid. "'It does not follow that the amount of time actually expended is the amount of time reasonably expended.'" Ibid. (quoting Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980). Hours are not considered reasonably expended if they are "excessive, redundant, or otherwise unnecessary" or are spent on "claims on which the party did not succeed" or "that were distinct from claims on which the party did succeed." Ibid. (internal quotation marks and citations omitted).
Applying these principles, and bearing in mind the trial court's discretion in awarding counsel fees, we discern no basis for disturbing the judge's counsel fee determination.
Plaintiffs' attorneys submitted detailed billing statements setting forth the specific tasks they performed and the time expended on those tasks. The Township correctly notes that some of the entries contained redactions. For example, when the attorneys had telephone conversations with some individuals, the names of those individuals were redacted. Similarly, the identity of some specific documents reviewed by the attorneys was excised from the billing records.
As plaintiffs' attorneys advised the trial court, however, these redactions were necessary to protect their clients' attorney-client privilege. This was especially important in a case where, as here, a separate civil suit was about to be instituted by plaintiffs against the Township. Moreover, plaintiffs submitted unredacted copies of the billing statements to the trial judge for an in camera review.
Having completed that review, the judge found that the hours expended by plaintiffs' attorneys were reasonable. As set forth in the detailed certifications plaintiffs' attorneys submitted in support of their fee motion, the Township refused to specifically divulge the dates on which it alleged plaintiffs submitted false military leave requests. Instead, the Township simply advised plaintiffs of the total number of days on which the infractions allegedly occurred, which spanned a period of several years.
Under these circumstances, plaintiffs' attorneys were forced to undertake a comprehensive review of all of plaintiffs' military service in an attempt to address the Township's allegations. As one of the attorneys explained in her certification:
The reconstruction of [plaintiffs'] military time included obtaining and reviewing voluminous and assorted military records, such as "job memos," military
orders, certified orders that amended initial orders, "MMPA" forms, (Master Military Pay Account forms), "LES" forms, (Leave and Earning Statements), and travel vouchers. For months, the firm prepared innumerable and detailed federal Freedom of Information, "FOIA", requests for each [plaintiff's] military base . . . . Innumerable phone calls were made to each base concerning the types of documentation relevant to the investigation, what each document represented, and requesting interpretation of documents that contained military coding. After [plaintiffs] executed the appropriate releases, hundreds of documents were received from both military bases.
Thus, as the judge found, the work performed by the attorneys was extremely "labor intensive." The attorneys' efforts were also well documented. Under these circumstances, we perceive no abuse of discretion in the trial judge's conclusion that the attorneys' time records and the fees they sought were reasonable and appropriate.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION