These consolidated actions in lieu of prerogative writs raise the question of whether this court has subject matter jurisdiction to review a five- and a three-day suspension of plaintiff police officers who are employed by a municipality which is subject to N.J.S.A. 11:1-1, the Civil Service Act. If the court has such power, should the review be on the record made below at the administrative hearing, or are plaintiffs entitled to a de novo hearing in this court?
On February 25, 1980 plaintiff Jeffrey Romanowski, a patrolman employed by the Brick Township Police Department, was dispatched with another officer to transport a prisoner, Craig Gant, from the Ocean County Jail to the Brick Township Municipal Court. The officers received an envelope from the jail which allegedly contained the prisoner's belongings consisting of $56.23
in cash. After the court hearing the prisoner was transported to police headquarters to await being sent to Marlboro State Hospital for evaluation. Plaintiff Romanowski left police headquarters and returned to his patrol car to resume patrol duty and found the prisoner's envelope in the patrol car. Plaintiff Romanowski maintains that he returned to headquarters with the envelope and gave it to plaintiff Robert Forrester, a lieutenant, who was the desk officer on duty that afternoon. Plaintiff Forrester maintains that departmental forms filled out on that day reveal that the prisoner and his property were maintained in the usual course until the end of his shift, after which the custody and control of the prisoner and his belongings were assigned to the desk officer who assumed duty for the night shift.
About 15 days later the prisoner, through his family, complained that the money was missing. After an investigation, complaints were filed by the investigating officer against plaintiffs for neglect of duty, incompetence and inefficiency in that they failed to maintain proper control and custody of the $56.23. A hearing was held before a municipal hearing officer on May 19, 1981 and on June 3, 1981, at which time plaintiffs were present with counsel, witnesses were sworn and called and a record made. Findings were made against the plaintiffs, resulting in the imposition of the three-day suspension against plaintiff Romanowski and the five-day suspension against plaintiff Forrester. The suspensions have not been enforced pending disposition of these actions.
Plaintiffs instituted separate actions in lieu of prerogative writs seeking a trial de novo as to the charges against them, together with counsel fees. Defendant moves pursuant to R. 4:6-2(a) for dismissal, arguing that the court has no subject matter jurisdiction over these matters. It argues that the statutory right to review an administrative determination suspending policemen is limited to procedures found in two separate
statutes. The first is N.J.S.A. 11:2A-1, which reads as follows:
Appeal in case of suspension, fine or demotion
No employee of any . . . municipality . . . shall be suspended, fined, or demoted more than 3 times in any 1 year, nor for more than 5 days at any 1 time, nor for a period of greater than 15 days in the aggregate in any 1 year or discharged without the same right of appeal to the commission. . . as in the case of removal as provided in sections 11:15-2 to 11:15-6 of the Revised Statutes. [Emphasis supplied]
The second is N.J.S.A. 40A:14-150 which reads as follows:
Any member or officer of a police department or force in a municipality wherein Title 11 (Civil Service) of the Revised 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 court shall hear the cause de novo ...