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Grubb v. Borough of Highstown

July 19, 2002

BRYAN GRUBB, PLAINTIFF-APPELLANT,
v.
BOROUGH OF HIGHTSTOWN, DEFENDANT-RESPONDENT.
IN THE MATTER OF BRYAN GRUBB



Before Judges Skillman, Carchman and Wells. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-4544-99, whose opinion is reported at The opinion of the court was delivered by: Carchman, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 21, 2002

Plaintiff Bryan Grubb is a former police officer who was convicted of possession of steroids and official misconduct, and then forfeited his position pursuant to statute. See N.J.S.A. 2C:51-2. After his conviction was reversed on appeal, see State v. Grubb, 319 N.J. Super. 407 (App. Div. 1999), certif. denied, 161 N.J. 333 (1999), defendant Borough of Hightstown (Borough) initiated disciplinary proceedings, followed by a hearing, which resulted in plaintiff's being terminated "permanently" from his job. The Law Division affirmed. Plaintiff now appeals from that determination as well as certain interlocutory rulings decided against him.

Although plaintiff raises a number of issues on appeal, his core arguments are that: 1) the Borough had no jurisdiction to discipline and terminate him because it had never reinstated him as an employee after forfeiture; 2) the Borough was precluded from proceeding based solely on evidence that had been gathered during the criminal investigation; 3) the charges were untimely and filed in violation of his procedural rights; 4) the hearing officer and the trial court made incorrect evidentiary rulings; and 5) the evidence forming the basis of his removal was insufficient because it was not credible.

We reject plaintiff's arguments and affirm. We conclude that although the Borough did not formally enact a resolution reinstating plaintiff, the procedural posture of the case, including the language of the termination resolution and plaintiff's pursuit of reinstatement, provided a sufficient basis for the Borough to bring disciplinary charges against plaintiff. We further conclude that the charges were timely filed and were established by competent and credible evidence.

Most of the facts relevant to the underlying criminal charges forming the basis of the disciplinary proceedings are set forth in our prior opinion in Grubb, supra, 319 N.J. Super. at 411-14, which we incorporate. We supplement those facts with the substantial procedural history relevant to consideration of the issues on this appeal.

Plaintiff served as a municipal police officer in the Borough since 1989. The Borough is not a civil service jurisdiction. On March 28, 1995, he was arrested after an investigation conducted by the Edison Police Department and the Narcotics Task Force of the Middlesex County Prosecutor's Office. According to Kevin Hopkins, the Borough's police chief, the Borough had no previous knowledge that the investigation was being conducted and Hopkins learned of the arrest that same day when he received a copy of the charges from the prosecutor's office.

On March 29, 1995, plaintiff was provided with a written "NOTICE OF SUSPENSION." The notice informed plaintiff that he had been charged "with the crimes of Possession and Possession with intent to distribute anabolic steroids in the Township of North Brunswick," and "[t]herefore, in accordance with N.J.S.A. 40A:14-149.1, the Police Department Rules and Regulation 7:3-3, and Section 6-5A(7) of the Hightstown Borough Personnel Policy," plaintiff was suspended without pay until the charges "are disposed of at trial, or otherwise terminated."

Plaintiff was indicted on October 10, 1995, for various charges related to the sale of steroids and other drugs. Following plaintiff's conviction and sentencing and pursuant to the State's application, the trial judge ordered plaintiff to forfeit his position as a police officer in the Borough and disqualified him from holding any state employment or office of public trust. See N.J.S.A. 2C:51-2.

On July 7, 1997, the Borough passed Resolution 213-97, in which it recognized that plaintiff had been suspended without pay and further acknowledged the forfeiture of his office pursuant to N.J.S.A. 2C:51-2. The resolution directed the Borough administrator and the police chief to take all necessary administrative actions in order to assure that the Court-ordered forfeiture of office is duly recorded in the Borough's personnel records and that said records indicate that Mr.

Grubb's employment relationship with the Borough [be] terminated upon his conviction on May 9, 1997, in accordance with N.J.S.A. 2C:51-2(b)(2).

Significantly, the resolution also stated that the authorized actions "in no way constitute a waiver of the Borough's rights to institute departmental charges against Mr. Grubb, in accordance with the provisions of N.J.S.A. 40A:14- 147, in the event of a successful appeal of the criminal conviction." Between the date of his suspension and the date of his termination, plaintiff was never served with any notice of disciplinary action and no departmental charges were filed. On May 29, 1997, Hopkins drew up a list of charges "just for [his] own edification," but never served them on plaintiff.

On March 19, 1999, we reversed plaintiff's conviction and entered a judgment of acquittal. See Grubb, supra, 319 N.J. Super. at 410. On July 8, 1999, the Supreme Court denied the State's petition for certification. See State v. Grubb, 161 N.J. 333 (1999). Plaintiff pursued his reinstatement. On August 17, 1999, plaintiff's attorney wrote to Hopkins: In light of Mr. Grubb's complete vindication he is entitled to return to his position at the Hightstown Police Department. Would you kindly advise when he should report for duty? Is there anything to be completed prior to Mr.

Grubb's return to the Department?

On August 19, 1999, the Borough's attorney responded by enclosing six notices of formal charges that had been prepared and filed that day by Hopkins and delivered to plaintiff's home. As to plaintiff's reinstatement request, Hopkins stated that "[i]n view of the pending disciplinary charges, and other issues involved with the requested reinstatement," he would review the request.

The "NOTICE OF FORMAL CHARGES" identified plaintiff as a Patrolman. The charges of which plaintiff was ultimately found guilty were:

[1] 8:1.13; Associating, fraternizing or business transactions at any time, or in any manner whatsoever, with known criminals or persons engaged in unlawful activities;

[2] 8:1.6K; Conduct unbecoming an employee in the public service. [3] 3:1.29; Withholding information concerning criminal activity. SPECIFICATION: Specifically, during an approximate two year period ending March 28, 1995, did meet with a person or person known to engage in unlawful activities, and did, sell, purchase and/or exchange with those persons anabolic steroids and prescription medications.

Finally, the notice advised plaintiff: "YOU ARE HEREBY SUSPENDED PENDING DETERMINATION OF THE HEARING" and that "[u]nless you satisfactorily explain or defend the above charge(s), you will be subject to the penalty or penalties checked below." The penalties included suspension for a specific number of days, demotion, fine, removal, resignation not in good standing, or other disciplinary action. The box for "REMOVAL" was checked as the penalty.

The Borough communicated with the Division of Criminal Justice regarding plaintiff's return and was advised on August 23, 1999, that "[t]he reinstatement to active duty of a police officer" was not the same as an initial appointment. Since plaintiff had been absent from active duty for a substantial period of time, the Division recommended that the Borough require that plaintiff complete the police training course before resumption of duty.

On August 26, 1999, the Borough's attorney wrote to plaintiff's attorney regarding plaintiff's request for reinstatement:

The Borough recognizes that the applicable statutes do provide for reinstatement "subject to any disciplinary proceedings or administrative action." Therefore, in view of the severity of the charges which have been filed against Mr. Grubb, and the significant issues raised by [the Division of Criminal Justice], the Chief has determined that reinstatement must be held in abeyance until such time as the disciplinary charges are resolved. If the disciplinary charges are ultimately resolved in Mr. Grubb's favor, reinstatement would be implemented, upon agreement by the Borough and Mr. Grubb concerning timing, training, back pay and related issues, or as judicially ordered. In addition, Mr. Grubb would have to undergo the usual background check and physical and psychological testing which would be required of any new officer or officer returning to duty after a four year absence.

Therefore, it would be inappropriate and premature to allow Mr. Grubb to report for duty at this time . . . .

Plaintiff then moved before the Borough Council, not for immediate reinstatement, but to dismiss the charges on the basis that they were not filed within the forty-five day period mandated by N.J.S.A. 40A:14-147. On September 21 and 22, 1999, hearings solely on the motion to dismiss for untimeliness were held before the mayor and council members. At the hearings, Hopkins stated that at no time did the Hightstown Police Department conduct any internal affairs or other investigation of the matter, and that he had never directed it do so. He agreed that he first learned of plaintiff's arrest on March 28, 1995, and that, at that time, his department was not conducting any investigation of plaintiff; that, prior to plaintiff's conviction, he had never requested any information regarding the prosecutor's investigation and never saw the indictment; that he had no access to the prosecutor's files; that he spoke to the prosecutor only twice regarding the matter; and that he had conducted no review of the evidence until August 19, 1999. He agreed that the factual bases for those charges were substantially the same as the charges he later brought on August 19, 1999, and when he prepared the charges on that date, he relied on copies of the investigative reports, witness statements and the trial transcripts in the possession of the Borough attorney.

The motion was denied, and plaintiff filed a complaint in lieu of prerogative writs in the Law Division challenging that decision. Judge Feinberg upheld the filing of the charges as timely and dismissed the complaint. See Grubb v. Borough of Hightstown, 331 N.J. Super. 398, 415 (Law Div. 2000). The judge found that the "policy inherent" in the statute was "to prevent an internal investigation and a criminal investigation from proceeding at the same time . . . ." Id. at 406-07. She rejected plaintiff's argument that the forty-five day exception applied only when the department initiates a formal active "concurrent" investigation as "neither reasonable nor beneficial to the interests of the officer." Id. at 410. To require a department to file disciplinary charges and proceed with hearings prior to disposition of the criminal charges would be "contrary to the rights afforded to other citizens" and deprive the department of the complete record and appellate rulings developed during the criminal proceedings. Id. at 412.

Plaintiff also asserted that the department failed to comply with its own regulations that required charges to be filed "within a reasonable time after which the existence of the alleged or suspected misconduct is made known, or should have been made known, to the department of Police." Id. at 412-13. The judge found that the definition of "reasonable" in the regulations must be construed in conjunction with ...


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