On appeal from Superior Court of New Jersey, Law Division, Union County, L-4192-99.
Before Judges Baime and Carchman.
The opinion of the court was delivered by: Carchman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This is an appeal by defendant Springfield Township from an order of the Law Division dismissing disciplinary charges filed against plaintiff, Joseph Pepe, a firefighter with the Springfield Fire Department (the Department). Following a disciplinary hearing resulting in his conviction and a three- month suspension without pay, plaintiff filed a de novo appeal in the Law Division pursuant to N.J.S.A. 40A:14-22. The Law Division judge found that plaintiff had been disciplined for offenses beyond the scope of the charges and specifications. We conclude that the charges and specifications provided adequate and appropriate notice of the charges; accordingly, we reverse and remand.
We briefly review the essential facts adduced at the hearing. The genesis of the underlying disciplinary proceeding arises from a false fire alarm perpetrated by members of the Department. On November 9, 1998, plaintiff and others went to Scotty's Bar in Springfield. During the course of the evening, one of plaintiff's colleagues, Chris Lalevee, was instrumental in instigating a third party to call in a false alarm. The record supports the finding that plaintiff participated in a preliminary discussion about the call and then joined the other perpetrators at or near the area of the telephone. Although plaintiff denied that he was in the bar at the time of the call, the hearing officer made a factual determination that plaintiff "was most likely present in the bar when the call was made." The incident resulted in criminal charges against Lalevee and another firefighter, and ultimately, in disciplinary charges against plaintiff.
The issue on appeal focuses upon the nature and quality of those charges and specifications. Plaintiff was served with a Notice of Disciplinary Action. It includes detailed specifications as to the incident and sets forth as Charges violations of Articles I and VI(A),(B),(C) and (J) of the Rules and Regulations of the Springfield Fire Department (a copy of the charges and specifications is attached as Appendix A). After considering the witness testimony and exhibits presented, the hearing officer concluded:
Based on the above as well as the preponderance of the evidence and testimony as presented I find that Joseph Pepe did have knowledge of the false alarm call which was initiated and carried through by Firefighters Lalevee and Voorhees. I further find that Joseph Pepe did not attempt to restrain or report the incident. However, I find that Joseph Pepe did not instigate the incident and was more an accomplice by knowledge and association but because of his relationship to the other firefighters involved did not report the incident.
Therefore I find that Firefighter Joseph Pepe violated Article I.5 of the Rules and Regulations of the Springfield Fire Dept., and Article VI.A for his failure to put the needs of the Department ahead of his personal relationships, Article VI.B.1 for his failure to notify the appropriate supervisors of his knowledge with respect to the false alarm call and Article VI.C.1., 2., 7., 11., 12. because of his failures to properly notify the appropriate authorities.
As such Joseph Pepe's conduct was not consistent with that required by the Department.
The hearing officer recommended a penalty of three months suspension rather than dismissal.
On appeal to the Law Division and motion for summary judgment, plaintiff asserted that he was disciplined for offenses for which he was not charged. He claimed that he was never advised of being charged with failure to restrain or report a violation. The Law Division judge agreed, and concluded that plaintiff was found guilty of charges not included in the specifications and "not given a chance to defend against those particular charges." The judge then set aside the suspension, ordered back pay, and stayed the decision pending this appeal.
"Plain notice" is the standard to be applied when considering the adequacy of disciplinary charges filed against public employees. "It is elementary that an employee cannot legally be tried or found guilty on charges of which he has not been given plain notice by the appointing authority." Town of West New York v. Bock, 38 N.J. 500, 522 (1962). See also Borough of Ho-ho-kus v. Menduno, 91 N.J. Super. 482, 485 (App. Div. 1966) (noting that a public employer can only find an employee guilty of offenses specifically mentioned in the charges). These principles emanate from the concept of affording due process and fairness to proceedings which impact so significantly on an employee. See, e.g., Hammond v. Monmouth County Sheriff's Dep't, 317 N.J. Super. 199, 206 (App. Div. 1999) (noting that an appointing authority's broadening of local-level charges on subsequent appeal would "surcharge the right to appeal with a cost which violates any decent sense of due process or fair play"); In re Caldwell v. Dep't of Corrections, 230 N.J. Super. 592, 615-17 (App. Div.), certif. denied, 127 N.J. 555 (1991) (noting the "'essential requirements of due process . . . are notice and an opportunity to respond'" before any significant deprivation of an employee's constitutionally protected property interest in his employment) (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545-46, 105 S. Ct. 1487, 1495, 84 L. Ed. 2d 494, 506 (1985)).
Our review of the record leads us to conclude that plaintiff had full notice of the charges and specifications, and that the ultimate conclusion reached by the hearing officer fell well within the four corners of those charges and specifications. We observe that plaintiff's specific involvement in the incident was the crux not only of the disciplinary prosecution, but of plaintiff's defense as well. In agreeing with plaintiff that he was not a principal participant in the false alarm scheme, the hearing officer nevertheless concluded that plaintiff's actions were akin to an accomplice, as he knew of the incident and took no action in that regard.
We agree with the hearing officer's conclusion that plaintiff was in violation of the charges, and we reject plaintiff's view that the disciplinary determination was beyond their scope. The hearing officer found that plaintiff was present at the scene, overheard the conversation about the false alarm, and took no action. Plaintiff's defense was that he knew nothing about the false alarm and was not present when the call was made. To suggest that the failure to establish that he actively participated in the call precludes a finding that he knew of the call and took no action is too myopic a view of the charges and specifications and the underlying requirement of notice.
Plaintiff's knowledge of the event was necessarily the underpinning of any charge against him. It was the seminal fact that had to be established, whether plaintiff was an active participant or simply an accomplice. That is the fact which plaintiff challenged in defense to the charges and which the hearing officer decided against him. Once plaintiff's knowledge was established, the duties incumbent upon any firefighter as clearly set forth in the Code of Ethics and the Notice charges applied.
We need not dwell upon whether the ultimate charges were "lesser included." In our view, the obligation of reporting such a clear violation of the law is so basic and primary to a firefighter's duties that plaintiff's argument of lack of notice rings hollow. Any citizen using common sense, let alone a firefighter, would recognize that false alarms place citizens and firefighters at significant personal risk by deploying scarce public resources to respond to charades when those resources may be needed elsewhere for real emergencies. The obligation of fair notice to plaintiff was unquestionably met in this case, and the judge erred by dismissing the charges.
The charges against plaintiff must now be tested on the merits at a de novo hearing. N.J.S.A. 40A:14-22. Accordingly, we remand the matter ...