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In re Frey

Decided: June 16, 1978.

IN THE MATTER OF PATROLMAN CHARLES FREY, POLICE OFFICER, TOWNSHIP OF EAST BRUNSWICK, DEPARTMENTAL CHARGES


On appeal from the Middlesex County Court.

Michels, Pressler and Bilder.

Per Curiam

Appellant Township of East Brunswick (township) appeals from a judgment of the Middlesex County Court which ordered the dismissal with prejudice of all departmental charges filed against respondent Charles Frey, a patrolman employed in the township police department.

The facts necessary to a resolution of the issues raised by this appeal are not in dispute. On March 17, 1977 Frey was served with a notice of hearing and department charges for violating Department Rule and Regulation 219(5), "Unnecessary violence to a Prisoner." The specification of charges stated:

On March 4, 1977, at approximately 2025 hours, Patrolman Charles Frey did physically strike a handcuffed prisioner in custody unnecessarily causing facial injuries. These injuries sustained by the prisoner required immediate medical attention.

The departmental hearing was originally scheduled for April 4, 1977 but was adjourned due to the unavailability of the hearing officer and the complaining witness. The hearing was rescheduled for May 11, 1977. On that date the hearing was convened and Frey moved for dismissal of the charge because the hearing had not been held within 30 days from the date of service of the complaint, as required by N.J.S.A. 40A:14-147. The motion was denied and Frey immediately moved for and was granted an adjournment of the hearing to appeal the ruling.

Frey instituted this court action to review the denial by filing a "Written Notice of Appeal" and order to show cause

in the Middlesex County Court, apparently pursuant to the provisions of N.J.S.A. 40A:14-150. On the return day of the order the trial judge held that the action was improperly brought in the County Court under N.J.S.A. 40A:14-150 because the statutory prerequisite of trial and conviction upon the departmental charge had not been met by Frey. However, the judge accepted jurisdiction of the action. Following a consideration of the pleadings and argument, he held that the departmental charge against Frey should be dismissed with prejudice because a hearing was not held within 30 days from the service of the complaint, as N.J.S.A. 40A:14-147*fn1 requires. We disagree and reverse.

N.J.S.A. 40A:14-147 provides:

Except as otherwise provided by law, no permanent member or officer of the police department or force shall be removed from his office, employment or position for political reasons or for any cause other than incapacity, misconduct, or disobedience of rules and regulations established for the government of the police department and force, nor shall such member or officer be suspended, removed, fired or reduced in rank from or in office, employment or position therein, except for just cause as hereinbefore provided and then only upon a written complaint setting forth the charge or charges against such member or officer. Said complaint shall be filed in the office of the body, officer or officers having charge of the department or force wherein the complaint is made and a copy shall be served upon the member or officer so charged, with notice of a designated hearing thereon by the proper authorities, which shall be not less than 15 nor more than 30 days from date of service of the complaint. A failure to comply with said provisions as to the service of the complaint shall require a dismissal of the complaint. [Emphasis supplied]

The wording of the foregoing statute is clear and explicit and therefore we are not permitted to indulge in any interpretation other than that called for by the express words set forth. Duke ...


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