On appeal from a Final Decision of the State of New Jersey, Department of Law and Public Safety.
The opinion of the court was delivered by: Lefelt, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 25, 2005
Before Judges Kestin,*fn1 Lefelt and Seltzer.
In December 1999, State troopers engaged in a fifty-mile high speed automobile pursuit through several counties within the State with shots being fired during the pursuit. Trooper Steven DeBenedictis arrived on the scene as the suspects were being handcuffed. The Trooper lunged at one of the handcuffed suspects and dragged him along the ground until other troopers pulled DeBenedictis from the suspect. Over two years later, on July 8, 2002, the State Police served DeBenedictis with a reprimand and two-day suspension for the use of excessive force during the 1999 incident. DeBenedictis sought to grieve the reprimand pursuant to an existing collective bargaining agreement. About twenty months later, on March 29, 2004, a grievance hearing was conducted, and the two-day suspension was reduced to one day.
DeBenedictis appeals, arguing that the State Police "violated the provisions of [N.J.S.A. 53:1-33] regarding the issuance of a complaint [with notice of a designated hearing] within forty-five days [and the failure] to hold a disciplinary hearing between ten and thirty days after the 'complaint' was served." Because of these alleged statutory violations, the Trooper seeks dismissal with prejudice of the reprimand and oneday suspension.
We reject these arguments and have divided our explanation into the following two parts. The first addresses whether the reprimand notice was timely under N.J.S.A. 53:1-33, and the second whether the Trooper's grievance request waived the statutory right to a hearing under N.J.S.A. 53:1-33.
The pertinent statute, N.J.S.A. 53:1-33, governs discipline of State Troopers, and was approved in 2002. L. 2001, c. 380, § 1. Its purpose was to "provide to members of the State Police certain statutory protections presently enjoyed by local law enforcement officers." Assembly Law & Public Safety Committee Statement to S. 2353 (Dec. 13, 2001).
The statute mandates, in part, that "just cause" is required to suspend, remove, fine, or reduce in rank any "permanent officer or trooper of the New Jersey State Police," and "then only upon a written complaint setting forth the charge or charges against the officer or trooper." N.J.S.A. 53:1-33. The written complaint must be filed and "served upon the officer or trooper so charged," and contain "notice of a designated hearing thereon by the proper authorities." Ibid.
In this case, instead of serving the Trooper with a disciplinary complaint, the State Police filed and served a reprimand notice upon DeBenedictis. The reprimand notice imposed discipline, providing that the Trooper was "reprimanded and suspended for two (2) days for actions contrary to and in violation of Article IV, Section 3b of the Rules and Regulations of this Division." The reprimand notice continued by specifically drawing DeBenedictis's attention to the "violation of S.O.P. B22, 'use of Force and Reporting Requirements', III. Mechanics: B. Use of non-deadly force." In addition to thereafter quoting the S.O.P., explaining when troopers would be justified "in using non-deadly force," the notice further provided that "[a] copy . . . [would] be filed with [DeBenedictis's] record [and that] [a]ppeals from this action [would] be processed according to the existing applicable contractual agreement and S.O.P.'s."
The reprimand notice, used in this case, thus informed the trooper of the charges and the basis for the disciplinary action taken against him and referenced certain appeal rights. It is obvious that the trooper understood the appeal rights because he promptly initiated a grievance proceeding. In our view, the reprimand notice was tantamount to a complaint under the statute, which was sufficient to activate the time-frame protections contained within the statute.
Besides requiring a written complaint, N.J.S.A. 53:1-33 also sets forth a time limit for filing the complaint. The statute provides that complaints "charging a violation of the [State Police] internal rules and regulations . . . shall be filed no later than the 45th day after the date on which the person filing the complaint obtained sufficient information to file the matter upon which the complaint is based." Ibid. As we made clear in Division of State Police v. Maguire, 368 N.J. Super. 564, 570 (App. Div.), certif. denied, 181 N.J. 545 (2004), the forty-five day period for issuance of a complaint ...