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Grasso v. Borough Council of Borough of Glassboro

Decided: October 16, 1985.

JOSEPH GRASSO, PLAINTIFF-APPELLANT,
v.
THE BOROUGH COUNCIL OF THE BOROUGH OF GLASSBORO AND THE POLICE DEPARTMENT OF THE BOROUGH OF GLASSBORO, DEFENDANTS-RESPONDENTS



On appeal from Superior Court, Law Division, Gloucester County.

Michels and Deighan. The opinion of the court was delivered by Deighan, J.A.D.

Deighan

Plaintiff Detective Joseph Grasso, a member of the Glassboro Police Department, was dismissed by the Mayor and Council of the Borough of Glassboro (Mayor and Council) after 14 years of service. He appealed to the Superior Court, Law Division pursuant to N.J.S.A. 40A:14-150 where his dismissal was affirmed. This appeal followed.

On December 14, 1983, plaintiff was notified in writing that he was suspended without pay pending the preparation and execution of disciplinary charges against him. Subsequently, he was served with a notice of hearing and a six count complaint stating grounds for the disciplinary action. After two hearings, the Mayor and Council, acting as the disciplinary board, found plaintiff guilty of the first five counts for which he was suspended from the police department for one year. He was also ordered to undergo a psychological examination as a condition to returning to active duty.

A hearing on the sixth count of the complaint was continued pending determination by the Superior Court, Chancery Division, Family Part, as to whether certain evidence arising out of a juvenile matter involving plaintiff's son could be released and used in the prosecution of plaintiff on that charge. On March 2, 1984 the Superior Court permitted some of the evidence to be released for use against plaintiff. On April 25, 1984, after a hearing before the Mayor and Council, plaintiff was found guilty of the sixth count which charged him with interfering with an ongoing criminal investigation. As a result, plaintiff was dismissed from the police department. On appeal to the Superior Court, Law Division pursuant to N.J.S.A. 40A:14-150

the trial judge affirmed the determinations of the Mayor and Council on all counts. Plaintiff appealed to this court. We reverse and remand.

On appeal plaintiff contends that: (1) the trial court erred in denying his application to introduce supplemental testimony on the trial de novo; (2) the composition of the disciplinary board was in violation of N.J.S.A. 40A:14-118 as well as the Borough ordinance establishing the police department rules and regulations; (3) he was denied a fair and impartial hearing on the charges; (4) the department rules and regulations allegedly violated by him are unconstitutionally vague and overbroad, and at any rate were erroneously applied; (5) under the facts and circumstances presented, his one year suspension and subsequent dismissal were excessive, and (6) the sixth count of the complaint is barred by laches and is not supported by the evidence.

In our view the trial judge erred in denying plaintiff's application to introduce additional testimony on the de novo hearing on the record and the Mayor and Council erred in hearing the disciplinary charges against plaintiff. We therefore need not review the detailed charges nor consider the remaining issues presented by plaintiff.

The charges were brought against plaintiff by Robert L. Toughill, Acting Chief of Police for Glassboro. The Mayor and Borough Council heard the charges as a body and dismissed the plaintiff from the police force. Since the Borough of Glassboro has not adopted the Civil Service Act, N.J.S.A. 11:20-1 to 11:20-8, plaintiff, pursuant to N.J.S.A. 40A:14-150, appealed to the Superior Court, Law Division. That statute provides:

40A:14-150. Review of disciplinary conviction in non-civil service municipalities

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. Such review shall be obtained by serving a written notice of an application therefor upon the officer or board whose action is to be reviewed within 10 days after written notice to the member or officer of the conviction. 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.

Either party may supplement the record with additional testimony subject to the rules of evidence. [Emphasis supplied to indicate amendment by L.1981, c. 75, ยง 6].

Under this statute, the Superior Court sits as a special statutory tribunal, "and not by reason of any constitutional or inherited common law jurisdiction." Romanowski v. Brick Tp., 185 N.J. Super. 197, 201 (Law Div.1982), aff'd o.b. 192 N.J. Super. 79 (App.Div.1983); Wildwood v. Neiman, 44 N.J. Super. 209, 212 (App.Div.1959). On appeal to the Superior Court, the trial judge denied a motion by the plaintiff to supplement the record with additional testimony and held "that plaintiff had ample opportunity to fully present his case and build a complete record before the Council, but for tactical reasons, he chose to withhold some testimony until the hearing before [the Superior Court]." In his written opinion, affirming the dismissal by the Mayor and Council, the trial judge concluded that

The court wholeheartedly agrees with the Borough Council's position that if this testimony were permitted at this stage of the proceedings, the court would be aiding plaintiff to make a mockery of the hearings before the Council; litigants in plaintiff's position would be able to render such hearings useless by cleverly maneuvering to hold back testimony. It is clear that N.J.S.A. 40A:14-150 was never intended to produce such a result. Rather, as the Council pointed out, that statute is meant to aid a litigant whose proffered evidence is wrongfully excluded by a governing body. Under the Statute, the court can hear such evidence without the necessity for a time-consuming remand.

The Mayor and Council contend that the "statute was to permit police officers to supplement the municipal hearing record with additional testimony which was either unavailable at the time of the initial hearing or was newly discovered." They further submit that: "To hold otherwise would create an intolerable situation. Police officers would contemptuously hold back evidence ...


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