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Padovano v. Borough of East Newark

March 17, 2000

CAPTAIN MICHAEL PADOVANO, PLAINTIFF-APPELLANT,
v.
BOROUGH OF EAST NEWARK, BOROUGH OF EAST NEWARK POLICE DEPARTMENT, KENNETH LINDSAY, CHIEF OF POLICE, DEFENDANTS-RESPONDENTS.
EAST NEWARK BRANCH OF HARRISON PATROLMAN'S BENEVOLENT ASSOCIATION LOCAL 22, AND MICHAEL PADOVANO,
PLAINTIFFS-RESPONDENTS,
V.
BOROUGH OF EAST NEWARK, CHIEF OF POLICE AND BOROUGH OF ADMINISTRATOR, KENNETH J. LINDSAY, POLICE COMMISSIONER VICTOR CERAFIN, BOROUGH OF EAST NEWARK MAYOR, JOSEPH SMITH,
DEFENDANTS-APPELLANTS.



A-3483-98T3 on appeal from the Superior Court of New Jersey, Law Division, Hudson County. A-4863-98T5 on appeal from the Superior Court of New Jersey, Chancery Division, Hudson County.

Before Judges Stern, Kestin and Wefing.

The opinion of the court was delivered by: Wefing, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: January 20, 2000 Decided: March 17, 2000

These two appeals arise out of the same factual complex and were argued together before us. We thus consolidate them for purposes of this opinion.

I.

Michael Padovano (Padovano) served as a member of the East Newark Police Department for more than twenty years; by 1996, he had achieved the rank of captain. In May 1996, he was served with twelve disciplinary charges arising out of an allegation that he falsely reported that he had been struck by a hit-and-run vehicle, and that he had subsequently attempted to interfere with a departmental investigation of the same. Padovano went on sick leave for injuries he said he received in the accident. In October 1996, he was suspended without pay.

The Borough appointed a hearing officer to hear these charges. Despite the time requirements of N.J.S.A. 40A:14-147, disciplinary hearings did not commence until February 1997. Before us, the parties dispute the reasons for that delay. The hearing officer held three days of hearings, all in February 1997, but did not issue his report until August 21, 1997.

Within his seventeen page written report, the hearing officer sustained three of the charges against Padovano: neglect of duty; conduct subversive of good order and discipline; and conduct unbecoming an officer and gentleman. He dismissed the remainding charges. He recommended that Padavano be removed from the force. Padovano's attorney wrote to the hearing officer, indicating that he intended to move for reconsideration solely on the issue of discipline. The hearing officer responded that he would keep the record open until September 15, 1997 to permit the attorney to do so. A supplementary hearing was finally held on June 15, 1998. In apparent recognition that Padovano had never before been the subject of disciplinary proceedings, the hearing officer changed his recommendation from a dismissal to a 120 day suspension.

The Borough, however, did not agree with the hearing officer's amended recommendation. The Borough commenced a declaratory judgment action seeking a judgment that the hearing officer had no authority to entertain an application for reconsideration. At the same time Padovano commenced an action seeking reinstatement to the police force. Both matters were consolidated and presented to the Law Division on orders to show cause. After hearing oral argument, the Law Division judge ruled in favor of the Borough, and entered a corresponding order on October 7, 1998.

After entry of that order, Padovano learned that the Borough had never adopted an ordinance pursuant to N.J.S.A. 40A:14-118 authorizing the appointment of a hearing officer to hear such disciplinary matters. He then filed a motion for reconsideration with the Law Division judge, arguing that the hearing officer's initial recommendation of termination was void because the hearing officer had never been properly appointed in the first instance. The Law Division judge refused reconsideration, concluding that Padovano was judicially estopped from challenging the authority of the hearing officer, because Padovano had originally taken the position that the hearing officer had the power to grant reconsideration of his earlier decision, an argument that had to posit that the hearing officer was validly appointed at the outset. In A-3483-98, Padovano appeals from the Law Division judge's disposing of his motion for reconsideration.

II.

In November 1996, after service of the disciplinary charges, but prior to commencement of the proceedings before the hearing officer, Padovano, who was a member of the East Newark branch of the Harrison Patrolman's Benevolent Association (the PBA), filed a grievance relating to those disciplinary charges. Although the Borough and the PBA had been engaged in labor negotiations for a period of time, they had yet to come to an agreement on the terms of a contract for the period in question. Despite the absence of a contract, the PBA processed Padovano's grievance in accordance with the terms of the prior contract through the first two stages. When the grievance did not result in a favorable resolution, the PBA refused to proceed to arbitration on Padovano's behalf. In April 1997, Padovano filed a demand for arbitration on his own behalf.

In December 1998, the arbitrator ruled that the Borough had violated Padovano's statutory rights by not conducting the disciplinary hearings in a timely fashion; he directed that Padovano be reinstated with back pay. Padovano moved to confirm the arbitrator's award and the Borough moved to vacate it. In A-4863-98, the Borough appeals from the Chancery Division judge's order of April 23, 1999 confirming the award and directing that Padovano be reinstated to the force with back pay. We turn first to the issues projected in that appeal, but before doing so, note for the sake of completeness that Padovano advised us at oral argument that he does not seek to return to active duty with the department. Rather, he seeks reinstatement so that, in addition to collecting back pay, he may submit an application for retirement.

III.

The Borough raises several arguments in support of its position that the arbitrator's award should have been vacated rather than confirmed. We do not consider it necessary to address all of those contentions for we agree with the Borough that ...


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