Opinion
DOCKET NO. A-1691-12T3
12-03-2015
CHIEF LOUIS MERCURO, Plaintiff-Respondent, v. BOROUGH OF HALEDON, Defendant-Appellant.
Sandro Polledri argued the cause for appellant (Adams Gutierrez & Lattiboudere, LLC, attorneys; Mr. Polledri, of counsel and on the brief). Stuart J. Alterman argued the cause for respondent (Alterman & Associates, LLC, attorneys; Mr. Alterman, of counse;, Matthew R. Dempsky, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Accurso and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3500-11. Sandro Polledri argued the cause for appellant (Adams Gutierrez & Lattiboudere, LLC, attorneys; Mr. Polledri, of counsel and on the brief). Stuart J. Alterman argued the cause for respondent (Alterman & Associates, LLC, attorneys; Mr. Alterman, of counse;, Matthew R. Dempsky, on the brief). The opinion of the court was delivered by MANAHAN, J.A.D.
Defendant, Borough of Haledon (Haledon), appeals from a dismissal by the Law Division of a disciplinary action and an award of counsel fees in favor of Chief Louis Mercuro (plaintiff). The dismissal was predicated upon: Haledon's failure to pass an ordinance, as required by N.J.S.A. 40A:14-118, specifically designating the "appropriate authority" for disciplining police officers; Haledon's "Administrative Code," which prohibited the Borough Administrator from taking disciplinary action against any municipal employee; and the failure of the hearing officer, a private attorney, to disclose a conflict. On appeal Haledon argues that plaintiff failed to exhaust his administrative (municipal) remedies, that the court erred by dismissing the disciplinary charges, and the award of counsel fees and costs was improper. As we conclude the disciplinary action was not erroneously initiated nor was there a conflict involving the hearing officer, we reverse.
On June 5, 2009, Haledon's Acting Borough Administrator (Administrator), signed and issued, at the direction of the Mayor, a "Preliminary Notice of Disciplinary Action," charging plaintiff with seven violations of internal police rules arising from a statement he made during a public work session of Haledon's governing body. This led to a suspension without pay.
After the Borough Attorney noted that a conflict prohibited his participation, Haledon's governing body (the Mayor and Council) passed a resolution authorizing a private attorney, Richard Cushing, to serve as "hearing officer in the disciplinary matter."
On January 14, 2010, the Administrator issued a second "Preliminary Notice of Disciplinary Action," charging plaintiff with eight additional violations arising from events which occurred prior to the initial charges. It also sought plaintiff's removal or demotion. The hearing on the charges took place over sixteen days between May 5, 2010 and June 10, 2011. Subsequent to the eighth hearing day, Haledon withdrew all of the charges in the second preliminary notice, and all of the related charges in the amended notice. Those charges were "dismissed with prejudice . . . [and] without any admission of wrongdoing, bad faith."
After fifteen days of hearing, plaintiff moved to recuse Cushing based upon a conflict of interest. Upon his appointment, Cushing disclosed that he participated in writing Haledon's quarry ordinance. Plaintiff's counsel did not see this to be a conflict of interest precluding Cushing from hearing the disciplinary action. However, after plaintiff received documents from Haledon during the course of the hearings, pursuant to the Open Public Records Act, N.J.S.A. 14:1A-1 to -13, it was determined Cushing represented Haledon in litigation testing the ordinance. It was also determined from the records that Cushing previously represented Haledon's governing body, which included the current Mayor and three current councilpersons, in litigation instituted by a former Mayor challenging the dismissal of disciplinary charges against another police officer.
In response to the motion, Cushing issued a written decision denying plaintiff's recusal motion. Cushing acknowledged that he did not disclose the prior representations as he "had forgotten" about them. Cushing admitted that he had direct contact and conversations with various current council members and with the Administrator, who served as the Borough Clerk during the time period of the litigation. Nevertheless, Cushing held that no ethical law, canon, or provision required his recusal, and that "the appearance of bias by [his former] representation seems remote."
Thereafter, at a meeting of Haledon's governing body, plaintiff's counsel raised his objections to the disciplinary action. The Mayor and Council would not consider the issue and decided to abide Cushing's ultimate recommendation on the merits of the charges. The Mayor and Council suggested plaintiff seek relief in the Law Division.
Prior to any final recommendation plaintiff filed a verified complaint and order to show cause in the Superior Court Law Division seeking to dismiss the remaining disciplinary charges. Plaintiff argued the disciplinary charges were fatally defective and should be dismissed because Haledon's ordinances did not designate or appoint an "appropriate authority" as set forth in N.J.S.A. 40A:14-118.
Plaintiff further argued Cushing had an impermissible conflict of interest because, although he informed the parties about his prior representation of Haledon, he did not disclose the full extent of the legal services he had previously performed.
On the return date after argument, the judge held that the disciplinary charges should be dismissed since Haledon did not appoint an appropriate authority pursuant to N.J.S.A. 40A:14-118, and Cushing had an impermissible conflict of interest due to the extent of the legal services that he provided on behalf of Haledon.
Thereafter, plaintiff filed a motion before the assignment judge, seeking to recover counsel fees and costs, pursuant to N.J.S.A. 40A:14-155. Haledon opposed the motion. The motion was initially denied without prejudice, as the judge found "the assessment of the propriety of [counsel] fees under N.J.S.A. 40A:14-155 necessitates factual determinations at trial."
After a bench trial, presided over by a third judge, the plaintiff was awarded counsel fees and costs. The accompanying order stated plaintiff's counsel "shall be paid a lodestar of $302,092.93," which included counsel fees of $300 and $225 per hour, respectively, for plaintiff's two attorneys, and the reimbursement of $11,525.93 for out-of-pocket costs, expert fees, and investigation fees. The judge stayed "one-third" of that award (or $100,697.54) pending appeal, finding that amount coincided with the disciplinary charges that Haledon had not withdrawn during the administrative hearings. Pursuant to the order, Haledon paid plaintiff's counsel $201,395.29.
After we granted Haledon's motion for an extension, Haledon filed this appeal raising the following points:
POINT I
THE LAW DIVISION DID NOT HAVE JURISDICTION PURSUANT TO N.J.S.A. 40A:14-150 BECAUSE FINAL MUNICIPAL ACTION HAD NOT BEEN TAKEN AND THE ELEMENTS OF CROWE v . DE GIOIA HAD NOT BEEN MET.
A. The Superior Court did not have jurisdiction over this litigation.
B. The orders entered by the Law Division should be vacated because the Crowe v. De Gioia standards were not met.
POINT II
THE ABSENCE OF AN APPROPRIATE AUTHORITY, AS A MATTER OF LAW, DID NOT WARRANT THE DISMISSAL OF THE DISCIPLINARY CHARGES.
A. The Grasso decision no longer controls.
B. The post-Grasso case law allows police disciplinary actions to proceed in the absence of an appropriate authority.
POINT III
THE CONFLICT OF INTEREST OF THE HEARING OFFICER, EVEN ASSUMING ARGUENDO THAT IT EXISTED, WAS NOT A BASIS TO DISMISS THE DISCIPLINARY CHARGES.
POINT IV
THE ATTORNEY FEE AWARD SHOULD BE REVERSED.
A. The Superior Court did not have jurisdiction to decide the matter or award damages to plaintiff.
B. The attorney fee award should be reversed for substantive reasons.
Plaintiff was employed as a sheriff's officer in the Passaic County Sheriff's Department from 1970 until 1980. In 1980, he joined Haledon's Police Department as a patrol officer. He ultimately rose through the ranks and was appointed Chief of Police in 2005.
In June 2009, one month before a primary election involving the Mayor and various councilpersons, plaintiff attended Haledon's governing body's regular open public work session. Plaintiff was in uniform and brought three items with him to the session: a plastic skeleton in a cage, a replica of a glass house, and a basket of dirty laundry.
During the public hearing portion of the session, plaintiff addressed the group, first noting his title and address. He stated he was at an REC Center dance when he was approached by two officers from another law enforcement agency who asked to see him outside. The officers advised plaintiff of an impending arrest of a councilperson, adding that there was another councilperson of interest. Plaintiff announced at the session that one councilperson was arrested and pled guilty to the theft of 115 pounds of cocaine and heroin from the evidence locker at the Passaic County Sheriff's Department. That councilperson was a sergeant in charge of the evidence unit.
Plaintiff stated that a few days after the councilperson's arrest, he noticed two individuals on his property who wanted to ask him questions about the other councilperson. Plaintiff recognized one of the men as a narcotics officer. The officers produced a file which contained a sworn statement from a tavern owner. The statement detailed that councilpersons took a limousine ride to New York, during which time two councilpersons snorted cocaine.
Plaintiff repeatedly questioned the councilpersons' "ability to act in their capacity of borough council members while using cocaine." Plaintiff said he was going to try to get this file "and find out why these facts were 'swept under the rug.'" Plaintiff never identified the councilpersons under investigation for allegedly using cocaine, but displayed his three "props," declaring:
[P]eople that have skeletons in their closet should be concerned with their own business . . . and people who live in a glass house shouldn't throw stones . . . and people who have dirty laundry should have it aired out.
. . . .
. . . and I told them, I said I am the chief of police and I won't stand for any interference or any disrespect from anybody.
After the public hearing portion of the session closed, the Mayor declared that "he has supported [plaintiff,] as well as the Haledon Police Department," and that this was "the first time he [was] hearing" plaintiff's comments. After the meeting, the Mayor called plaintiff to his office and asked him about his statements. Plaintiff answered, "[Y]ou know exactly what I'm referring to," to which the Mayor denied any such knowledge.
The "Preliminary Notice of Disciplinary Action," charged plaintiff with violating internal police rules regarding: (1) impartial attitude; (2) making public statements; (3) willful violation of any of the provisions, rules, or regulations or other statutes relative to the employment of public employees; (4) conduct unbecoming an employee in the public service; (5) course of conduct indicating that a member had little or no regard for his responsibility as a member of the police department; (6) conduct subversive of good order and the discipline of the police department; and (7) defamation. Plaintiff was suspended with pay and was given five days to request a "departmental hearing."
Both prior to and after the disciplinary hearing commenced, plaintiff moved to dismiss the charges predicated upon procedural and jurisdictional grounds. Plaintiff argued that: (1) Haledon failed to provide any discovery or to provide an investigation report relating to the current Mayor and various councilpersons; (2) Haledon failed to comply with N.J.S.A. 40A:14-118 by not adopting an ordinance establishing the "appropriate authority" authorized to bring disciplinary charges against a chief of police; and (3) the Administrator's conduct was in violation of Haledon's Administrative Code § 5-5, which bars the Borough Administrator from taking disciplinary action against any municipal employee.
Haledon operates under the borough form of government, N.J.S.A. 40A:60-1 to -8.1. The Mayor and a six-member Council are elected by Haledon's citizens. N.J.S.A. 40A:60-2(a). The Mayor is "the head of the municipal government," N.J.S.A. 40A:60-5(a), and "shall nominate and, with the advice and consent of Council, appoint all subordinate officers of the borough, unless the specific terms of the general law clearly require a different appointment procedure[,]" N.J.S.A. 40A:60-5(g). The Council is "the legislative body of the municipality," N.J.S.A. 40A:60-6(a), and "subject to general law[,] [may] remove any officer of the municipality, other than those officers excepted by law, for cause[.]" N.J.S.A. 40A:60-6(b)(5). The Council also "shall have all the executive responsibilities of the municipality not placed, by general law or this act, in the office of the Mayor." N.J.S.A. 40A:60-6(c). Additionally, the "council may, by ordinance, delegate all or a portion of the executive responsibilities of the municipality to an administrator[.]" N.J.S.A. 40A:60-7(a).
N.J.S.A. 40A:60-7(b) states that a "borough council may, by ordinance, adopt an administrative code[,]" which "shall set forth the titles of the principal municipal officers, how the officers are appointed . . . whom they supervise, by whom they are supervised, what powers they have, and what procedure should be followed to carry on the activities of the borough government."
In conformance thereupon, Haledon adopted by ordinance an administrative code relative to the Borough Administrator:
Borough of Haledon, N.J., Code of the Borough of Haledon, Ordinance § 5-1 to -12 (Mar. 20, 2002) (hereinafter "Administrative Code").
The Borough Administrator shall be the full-time chief administrative officer of the Borough in the absence of the Mayor and shall be responsible to the Mayor and governing body of the municipality. Among the powers and duties for which the Borough Administrator shall have and be responsible include but are not limited to the following:
A. Serve as chief administrative officer of the Borough in the absence of the Mayor, and he/she shall perform such powers and duties as from time to time are assigned to him by the Mayor and/or the governing body.
. . . .
F. He/she shall supervise the administration of all departments, including but not limited to the review, recommendation, and implementation of administrative procedures and policies of the Borough and its departments in consultation with the respective committee chairman, Mayor and department heads.
. . . .O. He/she shall be the chief executive and administrative official of the Borough of Haledon in the absence of the Mayor and shall in all matters act under the direction and supervision of the Mayor and the governing body. He shall, however, in the day-to-day performance of his duties, comply with any direction to him by the Mayor.
P. He/she shall ensure that the terms and conditions in any statute . . . are faithfully kept and performed and, upon knowledge of any violation, call the same to the attention of the governing body.
. . . .
R. He/she shall direct and supervise the administration of all departments of the municipal government and be responsible for the maintenance of sound personnel policies and administrative practices under the direction and approval of the governing body.
S. He/she shall not have the power to take disciplinary action against any employee, except that he shall, where he deems it to be appropriate, make recommendations to the governing body for disciplinary action. In any disciplinary action requiring a hearing, he shall serve as hearing officer and shall make a report and recommendations to the governing body which alone shall have the authority to take final disciplinary action, except that where exigent circumstances exist, the Mayor may suspend an employee until the next regular meeting of the governing body.
[Administrative Code § 5-5 (emphasis added).]
N.J.S.A. 40A:60-4 states that boroughs are "subject to . . . other general law" which would encompass the law governing municipal police departments:
The governing body of any municipality, by ordinance, may create and establish, as an executive and enforcement function of municipal government, a police force . . . and provide for the maintenance, regulation and control thereof. Any such ordinance shall, in a manner consistent with the form of government adopted by the municipality and with general law, provide for a line of authority relation to the police function and for the adoption and promulgation by the appropriate authority of rules and regulations for the government of the force and for the discipline of its members. The ordinance may provide for the appointment of a chief of police . . . as shall be deemed necessary, the determination of their terms of office, the fixing of their compensation and the prescription of their powers, functions and duties, all as the governing body shall deem necessary for the effective government of the force. Any such ordinance, or rules and regulations, shall provide that the chief of police, if such position is established, shall be the head of the police force and that he shall be directly responsible to the appropriate authority for the efficiency and routine day-to-day operations thereof, and that he shall, pursuant to policies established by the appropriate authority:
a. Administer and enforce rules and regulations and special emergency directives for the disposition and discipline of the force and its officers and personnel;
b. Have, exercise, and discharge the functions, powers and duties of the force;
c. Prescribe the duties and assignments of all subordinates and other personnel;
d. Delegate such of his authority as he may deem necessary for the efficient operation of the force to be exercised under his direction and supervision; and
e. Report at least monthly to the appropriate authority in such form as shall be prescribed by such authority on the operation of the force during the preceding month, and make such other reports as may be requested by such authority.
As used in this section, "appropriate authority" means the mayor, manager, or such other appropriate executive or administrative officer, such as a full-time director of public safety, or the governing body or any designated committee or member thereof, or any municipal board or commission established by ordinance for such purposes, as shall be provided by ordinance in a manner consistent with the degree of separation of executive and administrative powers from the legislative powers provided for in the charter or form of government either adopted by the municipality or under which the governing body operates.
Except as provided herein, the municipal governing body and individual members thereof shall act in all matters relating to the police function in the municipality as a body, or through the appropriate authority if other than the governing body.
Nothing herein contained shall prevent the appointment by the governing body of committees or commissions to conduct investigations of the operation of the police force, and the delegation to such committees or commissions of such powers of inquiry as the governing body deems
necessary or to conduct such hearing or investigation authorized by law. Nothing herein contained shall prevent the appropriate authority, or any executive or administrative officer charged with the general administrative responsibilities within the municipality, from examining at any time the operations of the police force or the performance of any officer or member thereof. In addition, nothing herein contained shall infringe on or limit the power or duty of the appropriate authority to act to provide for the health, safety or welfare of the municipality in an emergency situation through special emergency directives.
[N. J.S.A. 40A:14-118 (emphasis added).]
"The [Borough of] Haledon Police Department was established in 1908 by ordinance[.]" Quaglietta v. Haledon, 182 N.J. Super. 136, 142 (Law Div. 1981) (prerogative writ action by the Borough of Haledon's police chief challenging validity of Haledon's ordinance establishing office of Director of Police). It is undisputed that, at the time of the charges and the hearing, Haledon had not adopted an ordinance, rule, regulation, or otherwise specifically naming the "appropriate authority" pursuant to the statutory mandate. Nevertheless, Cushing denied plaintiff's motion to dismiss based upon that statute.
In November 2011, Haledon adopted an ordinance expressly designating the "Borough of Haledon Public Safety Committee" as the "appropriate authority" pursuant to N.J.S.A. 40A:14-118, and by making the Chief of Police accountable to that committee. See Borough of Haledon, N.J., Code of the Borough of Haledon, Ordinance § 48-4 (Nov. 10, 2011).
Citing our decision in Grasso v. Borough Council of Glassboro, 205 N.J. Super. 18 (App. Div. 1985), certif. denied, 103 N.J. 453 (1986), and relying on statements by both the Administrator and past and current council members, the judge on the order to show cause found Haledon never specifically designated the appropriate authority in any ordinance, and that this was not "a minor flaw" or "technicality" that could be ignored. The judge held that because N.J.S.A. 40A:14-118 is "not self-executing[,]" the Mayor and Council cannot be the appropriate authority by default, citing Grasso, supra, 205 N.J. Super. at 30. The judge further held the "appropriate authority" had to be addressed by appropriate legislation of the Borough of Haledon.
In Grasso, the acting chief of police brought disciplinary charges against Grasso, a detective. Id. at 21. The Mayor and Council heard the charges as a body and dismissed Grasso from the police force. Ibid. Grasso appealed to the Law Division, where his dismissal was upheld. Id. at 21-22.
This court reversed, agreeing with Grasso's argument that the Mayor and Council had no authority under N.J.S.A. 40A:14-147 to hear a disciplinary action against any police officer. Id. at 28-31. The court explained that Glassboro's ordinance establishing the police department:
makes no reference to the Mayor and Council as a hearing tribunal; [the ordinance] requires that a member of the police department may be fined, reprimanded, removed, suspended, or dismissed on the written charges but only after the written charges "have been examined, heard, and investigated by the director, or by a board of discipline selected from among the members of the police force."
Nor, does the reference to the word "director," . . . refer to the chief of police. The term "director" is not defined in the ordinance but could refer only to the Director of Public Safety. Since the chief of police is referred to in that capacity throughout the ordinance the term "director" cannot . . . refer to the "Director of Police." While an ordinance may designate the chief of police as the hearing officer, nothing contained in the ordinance or N.J.S.A. 40A:14-118 designates the chief of police as the authority to act as a hearing officer in police disciplinary matters.
[Id. at 28-29 (citation omitted) (emphasis added).]
We noted that N.J.S.A. 40A:14-118 "is not self-executing. Id. at 30. The 'appropriate authority' means an individual or a group of individuals 'as shall be provided by ordinance.'" Ibid.
The judge further found Cushing had "a conflict of interest such that he should never have been appointed as the hearing officer." The judge relied upon our decision in Bd. of Educ. of Town of West Orange v. Int'l Union of Operating Eng'rs, Local No. 68, 109 N.J. Super. 116 (App. Div. 1970). In that case, a board of education appealed a unanimous decision against it by the Public Employment Relations Commission (PERC), arguing that one of the commissioners, an attorney, should not have participated because the union was one of his law firm's clients. Id. at 118-19. We agreed and reversed, stating:
The [Current N.J. Court Rules] mandate that a judge in any court disqualify himself when he is closely related to any party or any attorney in the action. R. 1:12-1. These rules further provide that he disqualify himself if he "is interested in the event of the action" or "when there is any other reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so." R. 1:12-1(e), (f).
We perceive no valid reason why the conduct of those acting in a quasi-judicial capacity should be governed by a lesser standard. The same consideration of public policy expressed in the rules which require neutrality and impartiality on the part of a judge rendering decisions in a court of law are present in the adjudicative process involved here.
These considerations are well known and require little elaboration. The presence or absence of good faith or honest motives is not the test. Representatives of the public acting in a judicial or quasi-judicial capacity must be required to perform their duties free of any interest, personal or pecuniary, possessing the potentiality of influencing their judgment.
[Id. at 119-20 (citations omitted).]
Here, in reaching the decision, the judge stated:
[I am] satisfied that based upon the attorney-client relationship that existed between the Borough, members of the council, the significant fees that have been generated by Mr. Cushing representing Haledon, that the possibility exists that there could be temptation to serve his own purpose.
This is not an ad hominem with respect to Mr. Cushing. It just creates the appearance of impropriety. And as indicated, this is not a basis of any wrongdoing on the part of the hearing officer. It is the potential.
"Jurisdiction"
Haledon contends the Law Division lacked jurisdiction to hear plaintiff's application since he did not exhaust his municipal remedies as required by N.J.S.A. 40A:14-150, and since he failed to satisfy the essential elements to enjoin the disciplinary action per Crowe v. De Gioia, 90 N.J. 126 (1982). We disagree.
Haledon did not raise lack of jurisdiction as an issue below. In the ordinary course we would decline to consider an issue not presented to a trial court unless, as here, the issue goes to jurisdiction of that court. See Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
The discipline of police officers in municipalities like Haledon that have not adopted the Civil Service Act, N.J.S.A. 11A:1-1 to 11A:12-6, is governed by N.J.S.A. 40A:14-147 to -151. In Ruroede v. Borough of Hasbrouck Heights, 214 N.J. 338, 355-56 (2013) (citations omitted), the Supreme Court held that the statutory framework in N.J.S.A. 40A:14-147 to -151 "provides a police officer with well-defined procedures for an efficient and fair hearing process on alleged charges against the officer":
[A] police officer cannot "be suspended, removed, fined or reduced in rank" without "just cause." N.J.S.A. 40A:14-147. An officer cannot be removed "for political reasons or for any cause other than incapacity, misconduct, or disobedience of rules and regulations." Ibid. As such, a police department has the burden of filing "a written complaint setting forth the charge or charges against such . . . officer." Ibid. An officer is entitled to a hearing on the charges but "may waive the right to a hearing and may appeal the charges directly to any available authority specified by law or regulation." Ibid.
. . . .
For purposes of the disciplinary hearing, . . . the charges must be established by a preponderance of the evidence.
If the charges are upheld at the conclusion of a disciplinary hearing, an officer can seek review from the Superior Court. N.J.S.A. 40A:14-150. 'The court shall hear the cause de novo on the record below and may either affirm, reverse or modify such conviction.' Ibid. . . . When an officer has been removed from his position, 'the court may direct that he be restored to such office, employment or position.' Ibid. Finally, when a suspension or dismissal is 'judicially determined to be illegal, [an] officer shall
be entitled to recover his salary from the date of such suspension or dismissal.' N.J.S.A. 40A:14-151.
. . . .
. . . The hearing must commence promptly, and the burden of proving the charges is on the police officer's employer. N.J.S.A. 40A:14-147. The officer is provided with multiple opportunities to have the relevant evidence reviewed and to present his or her own evidence to ensure a fair and meaningful result: an officer can elect to submit to a disciplinary hearing before a neutral party instead of having a departmental hearing, an officer can seek a de novo review and supplement the evidentiary record in Superior Court, see N.J.S.A. 40A:14-150; and an officer can seek reinstatement or back pay depending on the eventual outcome, see N.J.S.A. 40A:14-149, -149.1, -151. Finally, an officer has the opportunity for appellate review in accordance with the Court Rules governing practice before the Appellate Division, see R. 2:2-3(a), or this Court, as in the present appeal, see R. 2:12-3.
[Ruroede, supra, 214 N.J. at 354-56 (citation omitted).]
Haledon argues the Law Division lacked jurisdiction to review plaintiff's application as a de novo action as the court's jurisdiction over police disciplinary matters must abide a final decision at the municipal level. Haledon cites N.J.S.A. 40A:14-150, which states:
Any member or officer of a police department or force in a municipality wherein Title 11A of the New Jersey Statutes is not in operation, who has been tried and
convicted upon any charge or charges, may obtain a review thereof by the Superior Court . . . . The officer or board shall transmit to the court a copy of the record of such conviction, and of the charge or charges for which the applicant was tried. The court shall hear the cause de novo on the record below and may either affirm, reverse or modify such conviction. If the applicant shall have been removed from his office, employment or position the court may direct that he be restored to such office, employment or position and to all his rights pertaining thereto, and may make such other order or judgment as said court shall deem proper.
[(emphasis added).]
Plaintiff argues he was not required to exhaust his municipal remedies as N.J.S.A. 40A:14-150 is inapplicable since he sought relief based upon "ultra vires" municipal acts rather than Haledon's final disposition of the disciplinary action. Plaintiff argues in instituting the action in the Law Division he challenged: the propriety and neutrality of the proceedings in instituting the action in the Law Division; the governing body's initial right to bring a disciplinary action against him without an ordinance designating the "appropriate authority"; and the Administrator's lack of authority under Haledon's Administrative Code to initiate the disciplinary charges against him and the bias of the conflicted hearing officer. Premised on those challenges, plaintiff asserts that N.J.S.A. 40A:14-147 is the controlling statute.
N.J.S.A. 40A:14-147 states that an officer charged in a disciplinary action "may waive the right to a hearing and may appeal the charges directly to any available authority specified by law or regulation, or follow any other procedure recognized by a contract, as permitted by law."
We conclude that neither statute argued for as "controlling" is applicable here. It is clear from a plain reading of N.J.S.A. 40A:14-150 that the Superior Court lacks original jurisdiction to hear police disciplinary matters and to make a de novo finding. Grasso, supra, 205 N.J. Super. at 27; Grubb v. Borough of Hightstown, 333 N.J. Super. 592, 598 (Law Div. 2000). "[T]he drafters anticipated a departmental hearing at the local level as a condition precedent to the Superior Court exercising jurisdiction." Grubb, supra, 333 N.J. Super. at 598. However, plaintiff's verified complaint did not seek as relief that the court make a de novo finding on the merits of the charges. Thus, N.J.S.A. 40A:14-150 is not applicable.
Nor is N.J.S.A. 40A:14-147 applicable. Plaintiff never waived his right to the municipal hearings. N.J.S.A. 40A:14-147 requires that the officer waive the disciplinary hearing before the procedural avenue of appeal to the "appropriate authority" is activated. DeBenedictis v. State, 381 N.J. Super. 233, 239 (App. Div. 2005).
Neither party has raised whether the trial court had jurisdiction pursuant to Rule 4:69-1 to -7. Rule 4:69-1 provides that "[r]eview, hearing and relief heretofore available by prerogative writs and not available under R. 2:2-3 or R. 8:2 shall be afforded by an action in the Law Division, Civil Part, of the Superior Court." "In other words, any action available under a pre-1947 prerogative writ that is not an appeal of a state administrative agency decision or under the jurisdiction of the Tax Court must be filed in the Law Division pursuant to Rule 4:69-1." Vas v. Roberts, 418 N.J. Super. 509, 522 (App. Div. 2011).
Historically, "prerogative-writ actions had been used by citizens to challenge agency decisions or actions." Alexander's Dep't Stores v. Paramus, 125 N.J. 100, 107 (1991). In order to "'streamline and strengthen the traditional prerogative writs [of certiorari, quo warranto, prohibition, and mandamus,] which were available in the pre-1947 Supreme Court[,]'" N.J. Const. art. VI, § 5, ¶ 4 consolidated those established prerogative writs "into one action that guaranteed a petitioner the same rights to appeal as were provided by those writs." Ibid. (quoting In re Li Volsi, 85 N.J. 576, 593-94 (1981)). Importantly, "the 1947 Constitution did not alter the substance of prerogative writ appeals, thus requiring a plaintiff to continue to demonstrate that an appeal could have been brought under one of the common law prerogative writs." Vas, supra, 418 N.J. Super. at 521; see also Alexander's, supra, 125 N.J. at 107; Li Volsi, supra, 85 N.J. at 594.
Here, we find plaintiff's action to be one in lieu of prerogative writs, notwithstanding plaintiff's verified complaint did not "bear the designation 'In Lieu of Prerogative Writs,'" as required by Rule 4:69-1. In Hawthorne PBA Local 200 v. Borough of Hawthorne, 400 N.J. Super. 51, 55 (App. Div. 2008), a suit challenging the appointment of police officers, the court declared that "[e]ven though plaintiff's complaint was not so designated [as one in lieu of prerogative writs], it may be characterized as such because it challenges the Borough's action." The action which we find triggered judicial review was the refusal of the governing body to grant plaintiff's request to recuse Cushing after his denial of plaintiff's request to recuse him as hearing officer.
Despite our finding that plaintiff's action was appropriately styled as an action in lieu of prerogative writs, the determination whether the trial court had jurisdiction over the matter does not end there.
Since we have determined that the action was before the court pursuant to R. 4:69-1 to -7, we need not address the argument raised by Haledon that in seeking a stay plaintiff failed to meet the exacting standard of Crowe, supra, 90 N.J. at 132-134. Rule 4:69-3 provides for a stay, restraint or otherwise "as the interest of justice requires."
"Exhaustion of Administrative Remedies"
Rule 4:69-5 states that, "[e]xcept where it is manifest that the interest of justice requires otherwise, actions under [Rule] 4:69 shall not be maintainable as long as there is available a right of review before an administrative agency which has not been exhausted."
The principle of requiring litigants to exhaust administrative remedies before seeking relief in the courts is well established in our jurisprudence. See City of Atlantic City v. Laezza, 80 N.J. 255, 265 (1979); Macleod v. City of Hoboken, 330 N.J. Super. 502, 508 (App. Div. 2000). The exhaustion requirement is "'designed to allow administrative bodies to perform their statutory functions in an orderly manner without preliminary interference from the courts.'" Paterson Redevelopment Agency v. Schulman, 78 N.J. 378, 386-87, cert. denied, 444 U.S. 900, 100 S. Ct. 210, 62 L. Ed. 2d 136 (1979) (quoting Brunetti v. Borough of New Milford, 68 N.J. 576, 588 (1975)). This ensures that the agency with appropriate expertise will hear the claims as a preliminary matter. Id. at 387. Additionally, the requirement furthers the policy of avoiding unnecessary adjudication. Ibid.
In general, available and appropriate administrative remedies should be fully explored before judicial action is sanctioned. Garrow v. Elizabeth Gen. Hosp. & Dispensary, 79 N.J. 549, 558 (1979). The interests to be furthered by the exhaustion requirement include: (1) having claims heard initially by a body with expertise in the area; (2) allowing the parties to create a factual record necessary for meaningful appellate review; and (3) pursuing whether an agency decision may satisfy the parties and thus obviate resort to the court. Abbott v. Burke, 100 N.J. 269, 397-98 (1985).
To be sure, as Rule 4:69-5 acknowledges, there are limited situations in which the exhaustion of administrative remedies is not mandatory. The exceptions to the requirement include: (1) when only a question of law needs to be resolved; (2) when the administrative remedies would be futile; (3) when irreparable harm would result; (4) when jurisdiction of the agency is doubtful; or (5) when an overriding public interest calls for a prompt judicial decision. Abbott, supra, 100 N.J. at 298.
A court must carefully weigh various considerations to determine whether to require exhaustion of administrative remedies. Ibid. Those considerations include "the relative delay and expense, the necessity for taking evidence and making factual determinations thereon, the nature of the agency and the extent of judgment, discretion and expertise involved," and any other pertinent factors that may aid in determining whether "the interests of justice dictate the extraordinary course of bypassing the administrative remedies made available by the Legislature." N.J. Civil Serv. Ass'n v. State, 88 N.J. 605, 615 (1982) (citation omitted).
In Brunetti, the Supreme Court provided instruction on waiver:
[T]he exhaustion requirement [in Rule 4:69-5] will be waived where 'the interest of justice so requires.' This has been held to mean that exhaustion of remedies will not be required where administrative review will be futile, where there is a need for prompt decision in the public interest, where the issues do not involve administrative expertise or discretion and only a question of law is involved and where irreparable harm will otherwise result from denial of immediate judicial relief.
[Brunetti, supra, 68 N.J. at 589 (citations omitted).]
The issues presented in this case implicate the lack of administrative expertise of the governing body, as interpreting an ordinance involves a matter of law. Therefore, a reviewing court would not extend any deference to the governing body as to its interpretation. The court would be required to make that decision de novo. Jantausch v. Borough of Verona, 41 N.J. Super. 89, 96 (Law Div. 1956), aff'd, 24 N.J. 326 (1957); Grancagnola v. Planning Bd. of Verona, 221 N.J. Super. 71, 75 (App. Div. 1987); Pullen v. So. Plainfield Planning Bd., 291 N.J. Super. 303 (Law Div. 1995), aff'd, 291 N.J. Super. 1 (App. Div. 1996).
Therefore, we conclude that waiver of the exhaustion doctrine was required in the interest of justice based upon the presence of a judicially recognized exception, i.e., the matter in dispute involved only questions of law.
"Ultra Vires"
Haledon argues that it was error to dismiss the disciplinary charges due to failure to pass an ordinance naming the "appropriate authority" pursuant to N.J.S.A. 40A:14-118. Haledon argues that the court should have followed a line of post-Grasso cases holding that disciplinary charges may be brought against a member of the police department even when an appropriate authority is not expressly designated by municipal ordinance, as required by N.J.S.A. 40A:14-118. See In re Phillips, 117 N.J. 567 (1990); Marjarum v. Twp. of Hamilton, 336 N.J. Super. 85 (App. Div. 2000); Hartmann v. Police Dep't of Village of Ridgewood, 258 N.J. Super. 32 (App. Div. 1992).
Citing our holding in In re Tuch, 159 N.J. Super. 219, 224 (App. Div. 1978), Haledon claims that "the real issue is whether [the police officer] was properly notified of the charges against him and whether he was afforded a fair hearing[,]" and not which municipal official was designated as the appropriate authority. In this vein, Haledon further asserts the Administrator was the "de facto appropriate authority" since Administrative Code § 5-5 vests the Administrator with essentially the same powers contemplated by N.J.S.A. 40A:14-118.
Subsequent to Grasso, this court has held that disciplinary charges may be brought against a police officer even when the municipality has not followed N.J.S.A. 40A:14-118 by expressly naming the "appropriate authority" in its existing ordinances.
In Hartmann, supra, 258 N.J. Super. at 38-39, we ruled that the village's failure to include the exact phrase "appropriate authority" in its ordinance giving the village manager the "'power to hear and determine any charge or charges filed against a member of the police force'" and to promulgate the "rules of police discipline" was "of no consequence . . . because the ordinance clearly delegated to the [village] manager functions assigned to the appropriate authority by N.J.S.A. 40A:14-118[.]" This court further held that the village manager's status as the appropriate authority was "consistent with the substantial power granted to that office in the council-manager form of government and [was] also supported in other sections of the applicable ordinance." Ibid.
In Marjarum, supra, 336 N.J. Super. at 98-100, a case cited as support by both parties, the township adopted an ordinance naming the Director of Public Safety as the "appropriate authority" to "promulgate the rules and regulations for the control, disposition and discipline" of the police division under N.J.S.A. 40A:14-118. However, because the position was not filled at the time the police code was enacted, we found that the disciplinary rules under which he was charged had not been validly adopted. Id. at 98. Nevertheless, we held that the invalidity of the township's rules and regulations was "not dispositive of the issue presented," as "[a] finding of misconduct by a police officer need not necessarily be predicated on the violation of any particular department rule or regulation." Id. at 99. It concluded that the officer's "abject failure to conduct himself in accordance with that implicit standard was punishable without reference to any written rule or regulation." Id. at 100.
A municipal ordinance is entitled to a "general presumption of reasonableness which attends all municipal enactments." H.P. Higgs Co. v. Madison, 188 N.J. Super. 212, 222 (App. Div.), certif. denied, 94 N.J. 535 (1983). When reviewing an ordinance, our courts "apply the same rules of judicial construction as they apply when construing statutes." AMN, Inc. of N.J. v. S. Brunswick Rent Leveling Bd., 93 N.J. 518, 524-25 (1983). The best indication of legislative intent is the language of the legislation, which should be given its ordinary meaning and significance. DiProspero v. Penn, 183 N.J. 477, 492 (2005). Clear and unambiguous plain language should control. Bergen Commercial Bank v. Sisler, 157 N.J. 188, 202 (1999). Furthermore, it is a fundamental principle of statutory construction that "when there is a conflict between general and specific provisions of a statute, the specific provisions will control." Wilson v. Unsatisfied Claim & Judgment Fund Bd., 109 N.J. 271, 278 (1988); accord Bergen Cty. PBA Local 134 v. Donovan, 436 N.J. Super. 187, 199 (App. Div. 2014); Brundage v. Randolph, 54 N.J. Super. 384, 396 (App. Div.), aff'd, 30 N.J. 555 (1959).
In accord with these precepts, N.J.S.A. 40A:14-118 would authorize the Administrator to examine the chief of police's performance as "nothing herein contained shall prevent . . . any executive or administrative officer charged with the general administrative responsibilities within the municipality, from examining at any time the operations of the police force or the performance of any officer or member thereof." Haledon's Administrative Code § 5-5(A) provides that "[t]he Borough Administrator shall be the full-time chief administrative officer of the Borough," and § 5-5(S) declares that the Administrator "shall serve as hearing officer."
We conclude that Haledon's failure to adopt an "appropriate authority" ordinance did not warrant dismissal of the charges. In accord with our decision in Tuch, we hold that, in the context of disciplinary proceedings, notice and opportunity to be heard outweigh the existence of specific language in an ordinance. In this vein, we agree with Haledon that the Administrator was the "de facto" authority premised upon Administrative Code § 5-5(S). We are satisfied as well that to the extent there was not a designated "appropriate authority," it did not deprive plaintiff of his right to have notice of the charges or his opportunity to defend against them.
We next address the issue of the institution of the charges. Administrative Code § 5-5(S) provides the Administrator "shall not have the power to take disciplinary action against any employee." Predicated upon the testimony of the Administrator and the Mayor from the hearing, we find that while the Administrator signed and issued the disciplinary action, he did so at the express direction of the Mayor. The Mayor, as a member of the governing body, had the authority to take disciplinary action against the plaintiff. As such, we find no legal deficiency in the process and the manner in which the action was initiated. To hold otherwise would inappropriately elevate form over substance in this important area of municipal governance.
Notwithstanding our determination as to the legitimacy of the action's inception, we next address the conflict of interest issue.
"Conflict of Interest"
On appeal, Haledon has not renewed the argument that Cushing did not have a conflict serving as the hearing officer. Instead, Haledon argues the dismissal of the disciplinary charges was erroneous in that the governing body should have been provided with the opportunity to appoint a new hearing officer to complete the proceedings and to file a recommended disposition predicated upon the existing record. Haledon further argues the Administrator could have served as the hearing officer under Administrative Code § 5-5, and that plaintiff would not be precluded after the hearing to appeal the governing body's final decision pursuant to N.J.S.A. 40A:14-150.
We note that Haledon chose not to pursue the issue of whether Cushing had a conflict of interest on appeal because plaintiff's pending attorney ethics claim against Cushing makes the appointment of a new hearing officer the "more sensible and efficient course of action."
Haledon cites as authority Chandok v. Chandok, 406 N.J. Super. 595 (App. Div.), certif. denied, 200 N.J. 207 (2009) (a divorce action), and Bd. of Educ. of Town of West Orange, supra, 109 N.J. Super. at 116 (an administrative PERC proceeding).
In Chandok, supra, 406 N.J. Super. at 607, we remanded for a new trial based on the trial judge's conflict of interest. "'[A] full retrial is required to restore public confidence in the integrity and impartiality of the proceedings, to resolve the dispute in particular, and to promote generally the administration of justice.'" Ibid. (quoting DeNike v. Cupo, 196 N.J. 502, 519 (2008)).
In Bd. of Educ. of Town of West Orange, supra, 109 N.J. Super. at 124, we held that a PERC member's conflict of interest invalidated his final vote and remanded the matter to PERC for a new vote or determination on the merits. We concluded there was "nothing in the record" indicating "that the defect in the determination of the Commission extend[ed] to the action of the hearing officer or require[d] that a new hearing be held or a new report be made by the hearing officer to the Commission." Ibid.
Our Supreme Court cited the standard for assessing quasi-judicial decision makers' conflicts of interest in Kane Properties, LLC v. City of Hoboken, 214 N.J. 199, 221 (2013). The Court explained that the "appearance of impropriety" test continues to apply to judicial and municipal officials acting in a quasi-judicial capacity, though it no longer applies to attorneys generally. Id. at 220-21. The standard is whether "a reasonable, fully informed person [would] have doubts about the judge's impartiality." Id. at 221. No showing of actual prejudice is required; rather, "an objectively reasonable belief that the proceedings were unfair is sufficient." Id. at 222 (citations omitted) (internal quotation marks omitted). Nonetheless, "it remains true that an appearance of impropriety must be 'something more than a fanciful possibility' and 'must have some reasonable basis[.]'" Id. (quoting Higgins v. Advisory Comm. on Prof'l Ethics of Supreme Court, 73 N.J. 123, 129 (1977)).
In Kane, the Court found there was a clear conflict of interest when an attorney represented the primary objector in a hearing on a company's request for zoning variances and then became counsel to the governing body to which the primary objector appealed because such a representation violated the Rules of Professional Conduct. Id. at 220. The Court acknowledged that the attorney's participation in the matter as counsel to the governing body was limited, but held that even if the attorney's actions did not affect the governing body's decision, the "appearance of impropriety" standard was nonetheless satisfied.
The cases cited in Bd. of Educ. of West Orange or Kane do not address a conflict similar to the one at issue here. The conflicted officials in the cited cases had a direct interest in the matter they were deciding or a current business relationship with an interested party or an interested party's counsel. See, e.g., DeNike, 196 N.J. at 506-07 (trial judge had conflict when he entered into negotiations with a lawyer about joining that lawyer's firm upon retirement when that lawyer was handling a contested matter pending before the judge); see also In re Cipriano, 68 N.J. 398, 402 (1975) (attorney had conflict when he represented a landlord in a matter against tenants whom he had previously represented in a matter against the landlord); Randolph v. City of Brigantine Planning Bd., 405 N.J. Super. 215, 231-33 (App. Div. 2009) (board member had conflict of interest in matters in which the board's engineer reviewed the application and made a recommendation to the board when the board member had a personal relationship with and owned a home with the principal of an engineering firm that employed the board's engineer); Haggerty v. Red Bank Borough Zoning Bd. of Adjustment, 385 N.J. Super. 501 (App. Div. 2006) (zoning board member had conflict of interest when his father was "of counsel" to a law firm that had a financial interest in the board's decision because it represented one of the applicants while the matter was pending before the board); Bd. of Educ. of Town of West Orange, 109 N.J. Super. at 119 (PERC commissioner had conflict because he was a partner in the law firm that represented a party in the proceeding); S & L Assocs., Inc. v. Washington, 61 N.J. Super. 312, 335 (App. Div. 1960) (members of town planning commission had conflict because they had a competitive interest in the board's zoning decision), rev'd in part on other grounds, 35 N.J. 224 (1961); Aldom v. Roseland, 42 N.J. Super. 495, 507 (App. Div. 1956) (councilman who participated in discussions and vote on a rezoning measure had conflict when he was an employee of a company that would benefit from the measure); Lafayette v. Bd. of Chosen Freeholders, 208 N.J. Super. 468, 474 (App. Div. 1986) (County Counsel who advised and represented Board of Freeholders during proceedings on waste disposal site selection had conflict of interest when he was the President and Chairman of the Board of Directors of a bank of which the owner of the chosen waste disposal site was the largest shareholder).
The majority of cases applying the "appearance of impropriety" standard to quasi-judicial decision makers pertain to zoning boards of adjustment and city councils. The standard has not yet been applied to a hearing officer in disciplinary proceedings although we have held that the hearing examiner may be conflicted if he or she has a personal bias against the police officer charged. See Ferrari v. Melleby, 134 N.J. Super. 583, 586-87 (App. Div. 1975) (noting that a superior police officer may act as hearing officer when designated to do so but precluding the police chief from hearing a case when the inferior officer presented evidence indicating the chief was personally prejudiced against him); see also In re Bruni, 166 N.J. Super. 284, 286 (App. Div. 1979) (disciplinary hearing held before Mayor and director of public safety).
Cases involving city councils or land use boards apply the conflicts provisions in the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-69, or the Local Government Ethics Law (LGEL), N.J.S.A. 40A:9-22.59(d). The MLUL does not apply in this case because this is not a zoning issue. Further, the LGEL does not apply because "that statue addresses 'direct or indirect financial or personal involvement,' N.J.S.A. 40A:9-22.5(d). See Kane, supra, 214 N.J. at 219 n.1 (noting the LGEL was not applicable to [a] case where municipal attorney's conflict was not financial or personal).
We note Cushing, in his role of hearing officer, was not vested with final decision-making authority. Administrative Code § 5-5(S) provides that the hearing officer shall make a recommendation to the governing body, "which alone shall have the authority to take final disciplinary action." Given the limitations of his role, it does not follow absolutely that Cushing's previous affiliation with the governing body constitutes a conflict.
There was no complaint by plaintiff, nor has it been argued on appeal, that Cushing demonstrated a bias or was other than impartial in his role as hearing officer.
Further, in terms of a "conflict," Administrative Code § 5-5(S) permits the Borough Administrator, a borough employee appointed "with the advice and consent of the Council," see Administrative Code § 5-2, to serve as a hearing officer. When an employee accountable directly to the governing body may serve as a hearing officer without the specter of conflict, it weighs against a finding that Cushing, a non-employee not directly accountable to the governing body, was conflicted to serve in that same capacity based solely upon his prior legal representation.
The judge held Cushing's critical role as the hearing officer presented the "appearance" of a conflict of interest such that it called for dismissal. We note that whether the "appearance of conflict" standard is to be employed under the circumstances presented here, i.e., an attorney acting in a quasi-judicial capacity, is unsettled. Nonetheless, from our review of the hearing officer's role as proscribed by the operative ordinances, we do not share the judge's opinion that his prior representation presented even an "appearance of conflict." Therefore, we reverse the dismissal of the complaint with prejudice on that basis.
As noted, Haledon has agreed to the appointment of a new hearing officer, and seeks a continuation of the hearing with the substituted hearing officer. Predicated upon our holding on the issue of the conflict, and mindful of the expenditure of public funds associated with the fifteen days of hearing, we conclude that the hearing need not commence anew. However, in recognition of the limits posed by transcript review, we leave it to the hearing officer to determine whether witnesses need to be recalled for the purpose of credibility findings.
Finally, we are confident that the safeguards inherent in the disciplinary process, including judicial review of the governing body's decision, will serve the interest of both the public and the plaintiff, and will promote confidence in the outcome.
Given our decision, we vacate the award of counsel fees relative to the involuntary dismissal of the complaint.
Reversed and remanded for a continued hearing. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION