On appeal from Superior Court, Law Division, Essex County.
Approved for Publication January 30, 1996. As Corrected March 19, 1996.
Before Judges Petrella, P.g. Levy and Eichen. The opinion of the court was delivered by Eichen, J.A.D.
The opinion of the court was delivered by: Eichen
The opinion of the court was delivered by EICHEN, J.A.D.
Following a disciplinary hearing, Donald Dolan, a provisional, at-will employee, was terminated from his employment with the recreation department of the City of East Orange (the City) as greens superintendent at the municipal golf course. Dolan was charged with "conduct unbecoming an employee" in violation of certain unspecified rules and regulations arising from a physical altercation with a subordinate employee, Fred Caldwell. Dolan's labor union representative, the Engineering Supervisory Personnel Association, Inc. (ESPA), presented Dolan's case before a municipal hearing officer. Based entirely upon a letter allegedly submitted by Caldwell to the City which charged Dolan with instigating the fight, the hearing officer recommended that Dolan be removed. The letter consisted of a typed, unsworn, unsigned statement of questionable origin, purporting to be Caldwell's statement, which presented a contradictory version of the event. The City accepted the hearing officer's discharge recommendation and terminated Dolan as greens supervisor.
After the City rejected Dolan's request for a rehearing, Dolan and the ESPA (plaintiffs) filed a complaint against the City and the City Administrator, Leroy J. Jones (defendants). The complaint alleged that Dolan's state and federal constitutional due process rights, as well as his civil rights under 42 U.S.C. § 1983, had been violated because he was terminated from employment without a hearing conducted by an unbiased hearing officer, and because he was denied his right to confront and cross-examine Caldwell. The complaint sought declaratory and injunctive relief, back pay and benefits, attorneys fees and costs.
The Law Division Judge granted summary judgment in favor of plaintiffs, directing the City to reinstate Dolan pending a new hearing. We granted leave to appeal and now affirm the summary judgment ordering a new hearing. However, we reverse and dismiss the § 1983 claim because, although Dolan was denied administrative due process as a matter of fundamental fairness, he did not suffer a constitutional deprivation which would support such a claim.
The facts are uncomplicated and derive from the hearing officer's written decision because the hearing was not transcribed. There were no witnesses to the alleged altercation between Dolan and Caldwell. The only witnesses who testified at the hearing were Dolan and another employee who, although not present at the altercation, saw Dolan afterward and corroborated his injuries. Caldwell did not appear at the hearing; *fn1 nonetheless, the hearing officer permitted the City to introduce the letter purportedly submitted by Caldwell reporting that Dolan had instigated the fight. Dolan testified that Caldwell had assaulted him and denied provoking Caldwell. Based solely upon this evidence, the municipal hearing officer observed that the matter was essentially "one person's word against another," and ruled against Dolan.
On Dolan's motion for summary judgment, plaintiffs asserted that the City did not disclose the letter until the hearing and that the City offered no explanation as to the circumstances under which the letter was written. Plaintiffs also contended the City's reliance on the letter, without affording plaintiffs the opportunity to confront and cross-examine Caldwell, denied Dolan his constitutional right to procedural due process of law. The City responded that the Law Division lacked subject matter jurisdiction, arguing that review of the hearing officer's decision is in the Appellate Division, not the Law Division.
On the return date of the motion, the Judge rejected the City's argument and granted summary judgment to plaintiffs, noting that "this is not an appeal from an administrative agency." The Judge also concluded that Dolan "didn't get a hearing," finding there was no "substantive basis" for the agency's determination that Dolan had "incited the altercation" and concluded Dolan had been denied his constitutional right to due process of law. The Judge ordered Dolan reinstated to his job as greens superintendent pending a new hearing before a different hearing officer and directed that the record be transcribed. The Judge did not determine whether Dolan is entitled to an award of back pay, benefits or attorneys fees under 42 U.S.C. § 1983, retaining jurisdiction to consider the merits of these claims. Subsequently, the Judge issued a letter opinion and entered an order directing the City to "provide ... Dolan with the opportunity to confront and cross-examine ... Caldwell unless there is good cause for his nonproduction."
On appeal, defendants again assert that the trial court lacked subject matter jurisdiction because proper jurisdiction lies directly with the Appellate Division. Alternatively, the City contends that summary judgment should not have been granted because a factual dispute exists as to whether the City had good cause for not producing Caldwell at the hearing. We find these contentions clearly without merit, see R. 2:11-3(e)(1)(E).
Dolan was not entitled to a direct appeal to this court from the City's decision to remove him. The City of East Orange is a municipality. Rule 2:2-3(a) provides that "appeals may be taken to the Appellate Division as of right ... to review final decisions or actions of any state administrative agency or officer." (emphasis added) Judicial review of decisions of agencies which are not state agencies is by a civil action "In Lieu of Prerogative Writs" brought in the Law Division of the Superior Court, under R. 4:69-1. See Walsh Trucking Co. v. Hackensack Meadowlands District Constr. Bd. of Appeals, 240 N.J. Super. 525, 526, 573 A.2d 951 (App. Div. 1990). Likewise, judicial review of the actions of a municipality where there is no administrative appeal procedure is in the Law Division by an action in lieu of prerogative writs. Cermele v. Township of Lawrence, 260 N.J. Super. 45, 48, 615 A.2d 264 (App. Div. 1992) (holding that municipal employee was entitled to review of a suspension decision de novo under R. 4:69-1 in the Law Division because there was no administrative appeals procedure available).
The instant case involves a municipality. The record does not indicate whether an administrative appeals procedure was available to Dolan. If such a procedure was available, defendants did not argue below that plaintiffs should have first exhausted that remedy. Defendant's argument is simply that direct appeal to the Appellate Division from the decision of the municipal hearing officer is the appropriate review process. We disagree.
Pursuant to N.J.R.E. 201(a), we take judicial notice of the fact that the City operates under the provisions of N.J.S.A. 11A:2-1 to -24, the Civil Service Act. See Perrella v. Board of Educ., 51 N.J. 323, 332, 240 A.2d 417 (1968). As such, a disciplined employee ordinarily has a right of appeal to the Merit System Board. N.J.S.A. 11A:2-14; see Carr v. Sharp, 454 F.2d 271 (3d Cir. 1971). Although the motion Judge did not inquire as to Dolan's employment status, we understand that Dolan's disciplinary discharge was not reviewable by the Merit System Board because he was a provisional employee. *fn2 See N.J.S.A. 11A:2-13, -14; N.J.A.C. 4A:2-2.1. Thus, the Law Division properly exercised jurisdiction to review the municipal action taken by the City in an action in lieu of prerogative writs. See Cermele v. Township of Lawrence, supra, 260 N.J. Super. at 48. "This ...