On appeal from the Public Employment Relations Commission, AR-2002-180.
Before Judges King, Lisa and Kimmelman.
The opinion of the court was delivered by: King, P.J.A.D
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This case presents a conflict between the policy of arbitration finality and the policy of deciding public safety disciplinary matters on the merits. We conclude that the public policy clearly expressed by In re Charles Frey, 160 N.J. Super. 140 (App. Div. 1978) (Frey), interpreting N.J.S.A. 40A:14-147 controls. A slight and excusable delay in a hearing date beyond the contractual deadline should not result in dismissal of the charges where otherwise deserved discipline was imposed.
The Gloucester County Sheriff's Department appeals from a PERC arbitration award dismissing disciplinary charges and three-day suspensions against two sheriff's officers. The arbitrator dismissed the charges on the technicality that the hearing was not held within 30 days as required by the Collective Bargaining Agreement (CBA).
When the two sergeants in the Sheriff's Department came to work on January 25, 2001 the lieutenant advised them he was changing their schedules. The sergeants raised their voices, conducted themselves in an insubordinate manner, and threatened to go home"sick" if the lieutenant changed their schedules. The schedules were changed and, as threatened, the sergeants went home rather than work the rest of the day.
The sergeants were served with notice of a minor disciplinary charge on January 29 with a recommended three-day suspension. They immediately requested a hearing, which was scheduled for February 8. On that scheduled date, however, the lieutenant was unavailable because of oral surgery. Martin Abramson, Esquire, the hearing officer and County Counsel, rescheduled the hearing to March 14, more than 30 days after the filing of the disciplinary charges, because he was on vacation during the next several weeks. The officers objected to the postponement. The hearing was eventually held on March 14, 45 days after the charges were filed. Three-day suspensions were imposed.
The officers demanded arbitration which was assigned to PERC in accordance with the CBA. Article XX(B) of the CBA requires that a disciplinary hearing"shall be conducted within thirty (30) days after service of charge." (emphasis added). The PERC arbitrator interpreted the collective bargaining provision narrowly, as allegedly mandated by past practices within the Gloucester County Sheriff's Department. She concluded the charges had to be dismissed because the hearing was not held within the 30-day period. The arbitrator made her interpretation in spite of case law interpreting a similar statutory provision, N.J.S.A. 40A:14-147, with more flexibility, allowing for reasonable postponements in the discretion of the hearing officer. See Frey, 160 N.J. Super. at 143-44.
On this appeal, the Gloucester County Sheriff's Office (the Sheriff) argues the arbitrator's ruling contravened applicable law and inferentially sound public policy. The Sheriff relies upon Frey. There, an officer was served with charges on March 17, 1977. A hearing was scheduled for April 4, 1977. Because the hearing officer and a complaining witness were unavailable, the hearing was rescheduled for May 11, 1977.
We ruled that the wording of N.J.S.A. 40A:14-147 is"clear and explicit and therefore we are not permitted to indulge in any interpretation other than that called for by the express words set forth." Frey, 160 N.J. Super. at 142. We stated:
While the statute calls for a hearing to be held"not less than 15 nor more than 30 days from the date of service of the complaint," it does not require the dismissal of the complaint for noncompliance. Nothing in the statute compels such a conclusion. It is only upon a failure to comply with the provisions of N.J.S.A. 40A:14-147"as to the service of the complaint" that a dismissal of the charges is mandated by the statute.
The Legislature did not intend by the time limits set forth in N.J.S.A. 40A:14-147 to create technical impediments to the resolution of serious charges of professional misconduct affecting the welfare and safety of the community. The notice requirements furnish assurance to a charged officer that the hearing will be had within a reasonable time; they do not ...