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Cermele v. Township of Lawrence

Decided: March 13, 1992.

ANTHONY CERMELE, PLAINTIFF-APPELLANT,
v.
THE TOWNSHIP OF LAWRENCE, A MUNICIPAL CORPORATION, DEFENDANT-RESPONDENT



On appeal from the Superior Court of New Jersey, Law Division, Mercer County.

Dreier and Brochin. The opinion of the court was delivered by Dreier, J.A.D.

Dreier

Plaintiff appeals from a dismissal of his complaint in lieu of prerogative writs. The trial Judge determined that plaintiff had no basis to claim a due process violation for the lack of internal review procedures when the Lawrence Township Municipal Manager suspended plaintiff for three days without pay. The court thus did not review the charge itself. Rather he determined that this matter was moot because under the terms of the Township ordinances the record is expunged after one year. (We do not, however, find this provision in any ordinance of the municipality). Furthermore, the Judge apparently felt that since this was such a minor matter, the court should not be concerned with it.

Plaintiff is the Lawrence Township construction official, and as one of the department heads he is responsible directly to the Municipal Manager on non-professional matters. Prior to the incident in question, there apparently had been some history of dissatisfaction with plaintiff's ability to handle public relations within his office. The manager had on at least two occasions given plaintiff oral or written warnings that his actions were creating problems, and she indicated that plaintiff should become aware of the problem and correct the deficiencies. No formal charges had been filed.

The incident here involved plaintiff's ejecting a plumbing contractor for verbally abusing employees in plaintiff's office. Plaintiff claimed that he walked outside the office with the contractor in order to prevent further trouble and to try to quiet him down. The contractor continued to be abusive, and an employee in plaintiff's office, fearing that there might be a more serious altercation, called the police who came to the scene and determined that there was no continuing problem.

One of the reasons cited by the manager for her discipline of plaintiff was that he

proceeded outside of the building to carry on an obviously heated Discussion with an irate contractor to the point that your staff called in the Police who

arrived on the scene only to have you dismiss the situation as having been resolved.

The memorandum from the employee who called the police indicated that she was concerned that the contractor's conduct might escalate. She therefore properly decided to call the police. She explained that had she not called and had the contractor become violent, criticism could be leveled that the police were not called. We will not review here the issue of whether plaintiff was right or wrong in the way he handled the situation, or whether his handling of this situation coupled with his history of perceived problems in public relations warranted the penalty. We will confine our Discussion to the procedural availability of a remedy.

The reference to the municipal ordinances, contracts and the like are superfluous in this case. There was no contractual review procedure or alternative appeal established by ordinance for plaintiff's conduct, other than the review by the Township manager as plaintiff's superior (which ordinarily would have been the third step in any grievance proceeding, if plaintiff were subject to that procedure). We also note that there is no question that the manager had the right to determine whether plaintiff violated any particular municipal disciplinary rule of general application. But whether the penalty was as minor as one day's suspension, or as major as dismissal, plaintiff had certain due process rights. Plaintiff was entitled to know of the charges facing him and was entitled to an opportunity to answer them. On minor matters such as this, we do not even require a formal hearing so long as plaintiff's position can be presented. If there is no actual bias shown, there is no problem with the disciplinary officer (the appointing authority) being the same as the person advancing the charges. Cf. Matter of Carberry, 114 N.J. 574, 584-586, 556 A.2d 314 (1989), and cased cited therein (relating to the procedure for disciplinary review in administrative agencies).

N.J.S.A. 11A:2-16 provides that a municipal employee who receives a suspension or fine of five days ...


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