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Oches v. Township of Middletown Police Dept.

June 01, 1998

ROBERT OCHES, APPELLANT-APPELLANT,
v.
TOWNSHIP OF MIDDLETOWN POLICE DEPARTMENT, RESPONDENT-RESPONDENT, AND MERIT SYSTEM BOARD, APPELLANT.



Chief Justice Poritz and Justices Handler, O'hern, and Coleman join in Justice STEIN's opinion. Justice Garibaldi has filed a separate Minority OPINION(S)ing opinion, in which Justice Pollock joins.

The opinion of the court was delivered by: Stein, J.

Argued February 2, 1998

On certification to the Superior Court, Appellate Division.

This appeal requires us to determine whether a provision of the Civil Service Act, and an implementing regulation, authorizing the award of counsel fees to a police officer exonerated in a disciplinary proceeding involving conduct not in furtherance of his official duties, can be reconciled with a provision in the statutes regulating municipal police forces that does not authorize such a counsel fee award.

Respondent Middletown Township, a civil service municipality, filed disciplinary charges against petitioner Robert Oches, a police officer in Middletown Township. In the course of those proceedings, an Administrative Law Judge (ALJ) and the Merit System Board (Board) exonerated Oches on the ground that the departmental regulation he allegedly violated was inapplicable because the conduct on which the charges were based did not constitute action in furtherance of his official duties. The charges were eventually dismissed and, pursuant to N.J.S.A. 11A:2-22 and N.J.A.C. 4A:2-2.12, the Board awarded counsel fees to Oches.

N.J.S.A. 40A:14-155 provides that whenever a police officer 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 or her official duties, and if the proceedings are dismissed or determined in favor of the officer, the officer shall be reimbursed for defense expenses. Pursuant to N.J.S.A. 11A:2-22, the Board is authorized to award back pay, benefits, seniority, and reasonable attorney fees to an employee as provided by rule. The relevant regulation, N.J.A.C. 4A:2-2.12, provides: "The Merit System Board shall award partial or full reasonable counsel fees where an employee has prevailed on all or substantially all of the primary issues."

The Appellate Division reversed the Board's award of counsel fees, holding that N.J.S.A. 40A:14-155, rather than N.J.S.A. 11A:2-22, applied, and determining that because the two statutes were in conflict the more specific statute, N.J.S.A. 40A:14-155, must control. Because Oches had not acted in furtherance of his official duties, the court concluded that he was not entitled to reimbursement under N.J.S.A. 40A:14-155. This Court granted petitions for certification by Oches and the Board. 151 N.J. 75 (1997). We denied Middletown's petition for certification concerning whether Oches's disciplinary charges arose out of the performance of his official duties. 151 N.J. 75 (1997).

I.

In June 1993, Middletown filed disciplinary charges against Oches, then a Police Lieutenant in the Middletown Township Police Department. Middletown alleged that Oches improperly tape recorded his promotion interview in violation of Middletown's General Order #80-2, which regulates police officers in the use of electronic surveillance equipment while in the performance of their duties. Oches waived a departmental hearing and was demoted to the position of "Police Sergeant." Oches appealed his demotion to the Board and a hearing was held before an ALJ. After hearing testimony, the ALJ concluded that because the tape recording incident occurred while Oches was participating in an interview concerning a potential promotion, Oches had not been performing his official duties when the conduct giving rise to the charges against him occurred. The ALJ determined that Oches should not have been disciplined because General Order #80-2 specifically regulates police conduct only in the performance of official duties. The Board thereafter adopted the ALJ's findings of fact and Conclusions of law, dismissed the charges against Oches, reinstated him to the position of Lieutenant, and awarded him counsel fees.

Middletown appealed. The Appellate Division affirmed the Board's dismissal of the charges on the ground that Oches was not performing official duties when the alleged misconduct occurred, but reversed the award of counsel fees. The court held that N.J.S.A. 40A:14-155 and N.J.S.A. 11A:2-22 were in conflict, and that because the former specifically addressed the award of counsel fees in police officer disciplinary matters it was the more specific of the two statutes and therefore governed. Concluding that Oches was not performing official duties when he taped the interview, the court determined that he was not entitled to counsel fees pursuant to N.J.S.A. 40A:14-155.

II.

When considering statutory provisions that relate to the same or similar subject matter, we make every effort to reconcile those laws that appear to be in conflict and attempt to interpret them harmoniously. Loboda v. Township of Clark, 40 N.J. 424, 435 (1963); see also 2B Norman J. Singer, Sutherland Statutory Construction § 51.02 at 122 (5th ed. 1992)(stating that statutes on same subject, "although in apparent conflict, are construed to be in harmony if reasonably possible").

N.J.S.A. 40A:14-155, which provides for the reimbursement of counsel fees to police officers who successfully defend themselves in proceedings arising out of conduct in furtherance of their official duties, states:

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 officialduties, 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 adisciplinary proceeding instituted against him by the municipality or in criminal proceedinginstituted 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 orofficer, he shall be reimbursed for the expense of his defense.

We interpreted an earlier version of the same statute in Moya v. City of New Brunswick, 90 N.J. 491 (1982). In its previous form, N.J.S.A. 40A:14-155 required reimbursement of counsel fees when an officer was a defendant in any action "arising out of or incidental to the performance of his duties," rather than "arising out of and directly related to the lawful exercise of police powers in the furtherance of his official duties," as required by the present statute. See id. at 495. We held in Moya that although the police officer was off-duty during the alleged burglary of which he was acquitted, the charges were brought because of his status as a police officer. Id. at 498. We therefore concluded that Moya was entitled to reimbursement of counsel fees. Id. at 510-11.

After Moya, in 1985, the Legislature amended N.J.S.A. 40A:14-155 to replace the phrase "arising out of or incidental to the performance of his duties" with the words "arising out of and directly related to the lawful exercise of police powers in the furtherance of his official duties" as the type of conduct for which an exonerated police officer would be entitled to reimbursement. L. 1985, c. 457, § 1. The legislative history verifies the Legislature's intent to limit the type of charges for which reimbursement would be provided under N.J.S.A. 40A:14-155. The statement accompanying the amendment provided:

The purpose of this bill is to clarify the legislative intent with regard to the scope of the law requiring municipalities to pay for the defense of municipal police officers and to eliminate the impact of the recent of the New Jersey Supreme Court in Moya v. NewBrunswick, 90 N.J. 491 (1982), which expands the legislative coverage well beyond a literal reading of this statute as existing at the time of its decision.

In the Moya decision, [sic] the Supreme Court, while acknowledging that the charges involved did not arise from the performance of the officer's duty, held that the officer, charged with conduct as a common burglar, directly opposite to that which he is [sic] hired to perform, and while not on duty wasnevertheless entitled to reimbursement for legal expenses incurred in successfully defending himself against those charges, which were not initiated by or on behalf of the municipality.

[Statement to Senate Bill No. 1684, L. 1985, c. 457 (May 14, 1985).]

Another statement to the same bill provided:

Senate Bill No. 1684 would amend [N.J.S.A.] 40A:14-155 to clarify the scope of a municipality's obligation to provide for the defense, or reimburse the expense of defense, of members or officers of the municipal policedepartment or force who are defendants in any action or legal proceeding. A number of decisions by the courts of this State have expanded the obligation imposed by the literalterms of this section to reach, not only charges of improper performance of police duties, but also charges arising from acts outside the scope of police duties, but occurring in the course of the performance of those duties, and charges arising solely from the person's status as a police officer. The bill would 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."

[Senate County and Municipal Government Committee, Statement to Senate Bill No. 1684, L. 1985, c. 457 (June 18, 1984).]

Courts have reviewed the legislative history of the amendment and agreed that the Legislature intended N.J.S.A. 40A:14-155 to authorize counsel fees only to police officers charged with infractions arising out of the lawful exercise of police powers in furtherance of their official duties. See Gordon v. Borough of Middlesex, 268 N.J. Super. 177, 182-83 (App. Div. 1993); Sparkman v. City of Atlantic City, 237 N.J. Super. 623, 628-29 (App. Div.), certif. denied, 121 N.J. 660 (1990). The plain language of N.J.S.A. 40A:14-155 makes clear that counsel fees are not available where the "acts of the officer, even though occurring at a time when the officer was coincidentally performing official duties, were not occasioned by mere careless or overzealous performance of those duties, but rather by an ulterior illegal goal of the officer which actually constituted a perversion of his job." Bruno v. City of Atlantic City, 239 N.J. Super. 469, 473 (App. Div.), certif. denied, 122 N.J. 165 (1990). However, concerning officers exonerated of charges arising out of the lawful exercise of police powers in the furtherance of official duties, N.J.S.A. 40A:14-155 by its terms guarantees reimbursement of counsel fees.

The ALJ found, and the Appellate Division agreed, that Oches was not acting in the performance of his official duties at the time of the alleged conduct that gave rise to the disciplinary proceedings. The issue is not before us and we do not question that Conclusion. Moreover, we acknowledge that N.J.S.A. 40A:14-155 does not authorize an award of counsel fees to Oches. Although Oches was exonerated, the charges did not arise out of the lawful exercise of police powers in the furtherance of official duties as the statute requires.

That Conclusion, however, does not end our inquiry. We next look to N.J.S.A. 11A:2-22, which Oches and the Board contend authorizes the Board to award reasonable counsel fees as provided by rule irrespective of whether charges arise out of official duties. N.J.A.C. 4A:2-2.12, promulgated pursuant to the Civil Service Act, provides that the Board shall award fees where an employee has prevailed on substantially all of the primary issues. Those provisions specifically apply to disciplinary appeals to the Board by all civil service employees under the authority of the Civil Service Act. Because Oches is an employee in a civil service municipality and he prevailed on substantially all of the issues in his disciplinary action, the plain language of the statute and implementing regulation indicate that the Board has the authority to grant him counsel fee reimbursement. We also note that pursuant to N.J.S.A. 34:13A-5.3, public employers and non-civil service employees may negotiate written policies setting forth disciplinary ...


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