On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-4057- 98.
Before Judges Baime, Newman and Axelrad.
The opinion of the court was delivered by: Axelrad, J.T.C. (temporarily assigned)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 9, 2001
Plaintiffs, William Hancock and John Warner, appeal from an order granting summary judgment and dismissing their complaint. Plaintiffs' complaint alleges that defendants, Borough of Oaklyn, Chief Ronald J. Frumento, Mayor Vincent Sciboni, and Lieutenant Christopher Ferrari, retaliated against them in violation of the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8.
On June 27, 1997, Hancock, a sergeant in the Oaklyn Police Department, came across a $600 payment voucher to Ferrari, a lieutenant in the department, for his work on a DWI patrol shift. Hancock believed that Ferrari did not perform the work because Ferrari was on special assignment with the Camden County Prosecutor's Office at the time. Hancock communicated this information to Warner, a patrolman in the Oaklyn Police Department. Plaintiffs reported their suspicions of Ferrari's potential criminal misconduct to Mayor Sciboni and then to Investigator Simonini of the State Attorney General's Office. As a result of plaintiffs' disclosure of two potentially questionable payment vouchers for Ferrari, in August l997 the Attorney General's Office seized records from the Oaklyn Police Department to further its investigation.*fn1
In early l998, both plaintiffs were the subject of an Oaklyn disciplinary hearing alleging violations of a number of police departmental policies. During the course of that disciplinary matter, plaintiffs were represented by Barbara M. Paul, Esquire. Sometime in April l998, prior to the commencement of the formal hearing, plaintiffs' attorneys in this action, Van Syoc Chartered, sent a letter to the Oaklyn municipal solicitor on behalf of the officers, claiming that the proceeding was in violation of CEPA, and requesting an adjournment of the hearing. Notwithstanding the letter, the disciplinary hearing commenced before John McFeeley, III, Esquire on April l0, 1998, was adjourned, and concluded on June 26, 1998. On July 6, 1998, Mr. McFeeley issued a written opinion wherein Warner and Hancock were found guilty of various departmental violations. These disciplinary actions which resulted in brief suspensions from work, were appealed, and on de novo review, the findings on all the disciplinary charges were sustained by the Law Division. On November 9, 1999, Judge Mariano entered the following order, which was not appealed:
(1) The disciplinary charge against Sgt. Hancock for violating G.O. 95-10-23(02), wherein he went to the Borough of Oaklyn Mayor Vincent Sciboni to discuss an ongoing investigation of the Oaklyn Police Department involving the alleged misuse of DWI funds by then Lt. Christopher Ferrari is SUSTAINED;
(2) The disciplinary charge against Sgt. Hancock for violating G.O. 95-10-23(02) ("Organizational Structure Chain of Command"), wherein he went to the Borough of Oaklyn Councilwoman Linda Hibbs to discuss an ongoing investigation of the Oaklyn Police Department involving the alleged misuse of DWI funds by Lt. Ferrari is SUSTAINED;
(3) The disciplinary charge against Ptl. Warner for violating G.O. 95-10-23(02) ("Organizational Structure Chain of Command"), wherein he went to Oaklyn Mayor Sciboni to discuss an ongoing investigation of the Oaklyn Police Department involving the alleged misuse of DWI funds by Lt. Ferrari is SUSTAINED;
(4) The disciplinary charge against Ptl. Warner for conducting private business at Fleetway Chrysler Plymouth on August 26, 1997, while on duty and failing to conduct himself in accordance with high ethical standards during said incident, in accordance with Oaklyn Police Department Rules and Regulations 5.6.3 and 4.1.6, respectively, are SUSTAINED;
(5) The disciplinary charge against Ptl. Warner for violating G.O. 95-10-23(02) ("Organizational Structure Chain of Command"), wherein he went to the Mayor Sciboni to discuss disciplinary action taken by then Chief Ronald Frumento involving the aforementioned Fleetway Chrysler Plymouth incident is SUSTAINED;
(6) The five (5) working days suspension without pay imposed against Sgt. Hancock for the aforementioned violations is SUSTAINED;
(7) The seven (7) working day suspension without pay imposed against Ptl. Warner for his violations of G.O. 95-10-23(02) is SUSTAINED;
(8) The eight (8) working day suspension without pay imposed against Ptl. Warner for his violation of Rules 5.6.3 and 4.1.6 is SUSTAINED.
The record also indicates that on December 17, 1999, counsel reached an agreement on disciplinary charges filed against Warner on September 24, 1998, whereby the charge of failing to timely complete records was sustained and the other charges were dismissed. Additionally, it was agreed by the parties and specifically acknowledged by Warner that the facts giving rise to these disciplinary charges filed against Warner and the dismissal of the charges would not be evidential in the CEPA action.
Plaintiffs filed a complaint on May 22, 1998, alleging that, in response to their "protected conduct in reporting potential criminal misconduct," they were subject to "a course of malicious retaliation in violation of CEPA" in the form of fraudulent disciplinary charges being brought against them by defendants, as well as being the victims of other disparate treatment by defendants, in particular, Police Chief Frumento. They claim that Frumento is a "close friend" of Ferrari's and when he learned of their role in "blowing the whistle" and precipitating the investigation, he began retaliating against them.
Hancock claims the following acts of retaliation:
(1) In August l997, Ferrari ordered Hancock not to discuss the Attorney General's investigation with anyone in the Oaklyn Police Department;
(2) Shortly after initiation of the investigation, Ferrari issued an order prohibiting Hancock from going to the midget football field to watch his team while on lunch break, while another officer who routinely ...