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Gabbianelli v. Township of Monroe

Decided: March 28, 1994.

MICHAEL GABBIANELLI, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT,
v.
TOWNSHIP OF MONROE, DEFENDANT-RESPONDENT AND CROSS-APPELLANT



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

Havey, A.m. Stein and A.a. Rodriguez. The opinion of the court was delivered by Havey, J.A.D.

Havey

[271 NJSuper Page 545] The issue raised by this appeal is whether plaintiff, a police officer employed by defendant Township of Monroe, is entitled to reimbursement for his counsel fees pursuant to N.J.S.A. 40A:14-155, where he ultimately prevailed in a disciplinary proceeding instituted by the Township. The infraction which caused the

Township to initiate the proceeding did not arise from the lawful exercise of plaintiff's police powers in furtherance of his official duties. Nevertheless, plaintiff argues that the plain language of the second part of N.J.S.A. 40A:14-155 compels reimbursement when a proceeding, in which the police officer prevails, is initiated by the municipality rather than by another entity. We disagree, and affirm the summary judgment dismissing plaintiff's complaint. We also affirm on the Township's cross-appeal from the denial of its claim under the frivolous claims statute, N.J.S.A. 2A:15-59.1.

On September 21, 1989, plaintiff appeared to testify before a Gloucester County Grand Jury in his capacity as a police officer. The charges being investigated involved an alleged aggravated assault and terroristic threat upon him by a third party.

While waiting to be called as a witness, plaintiff became "very agitated" and expressed an intention to leave. He told Assistant Prosecutor Keith Warburton that he was going to leave because he had been waiting since 9:00 a.m. and it was his day off. According to Warburton, plaintiff threatened to slap him if Warburton did not return to the grand jury room. Warburton thereupon instructed plaintiff to leave. Because of plaintiff's absence, the Grand Jury returned a "no bill" on the criminal charges being investigated.

As a result of the incident, the Township's Chief of Police initiated a disciplinary proceeding against plaintiff charging him with violating various provisions of the Township's police manual. A hearing officer found plaintiff guilty of the charges and recommended a ten-day suspension. The Merit System Board affirmed. Plaintiff thereupon filed an appeal before us. In an unpublished opinion, we held that the Chief's complaint was not filed within the forty-five day limitation period of N.J.S.A. 40A:14-147, and accordingly reversed. (A-1386-91T1).

Plaintiff filed the present action against the Township pursuant to N.J.S.A. 40A:14-155, demanding reimbursement for $14,866.83 incurred in counsel fees during the disciplinary proceeding and subsequent appeal. The motion Judge granted the Township

summary judgment dismissing the complaint, concluding that since plaintiff's conduct was not directly related to the lawful exercise of police powers and in furtherance of his official duties, plaintiff was not entitled to reimbursement under the statute.

N.J.S.A. 40A:14-155 provides:

Whenever a member or officer of a municipal police department or force is a defendant in any action or legal proceeding arising out of and directly related to the lawful exercise of police powers in the furtherance of his official duties, the governing body of the municipality shall provide said member or officer with necessary means for the defense of such action or proceeding, but not for his defense in a disciplinary proceeding instituted against him by the municipality or in criminal proceeding instituted as a result of a complaint on behalf of the municipality. If any such disciplinary or criminal proceeding instituted by or on complaint of the municipality shall be dismissed or finally determined in favor of the member or officer, he shall be reimbursed for the expense of his defense.

The language "and directly related to the lawful exercise of police powers in the furtherance of his official" duties was added in 1986 by the Legislature (L. 1985, c. 457 § 1) to "eliminate the coverage of this section for charges arising from acts outside the scope of police duties, but occurring in the course of the performance of those duties, and for 'status charges.'" See Senate County & Mun. Gov't Comm., Statement to Senate Bill No. 1684 (1985). The amendment was in response to an interpretation of the preamendment version of the statute by the Supreme Court in Moya v. City of New Brunswick, 90 N.J. 491, 448 A.2d 999 (1982), where the Court expanded the municipality's obligation to reimburse police officers beyond the literal terms of the statute. See Sparkman v. City of Atlantic City, 237 N.J. Super. 623, 628-29, 568 A.2d 917 (App.Div.1990). Thus, a police officer is now entitled to a "means for the defense" of an action or reimbursement for counsel fees only where he is "charged with an infraction arising from the lawful exercise of police powers in the furtherance ...


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