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Voci v. City of Atlantic City

December 19, 2007

SERGEANT GREGORY VOCI, PLAINTIFF-APPELLANT,
v.
CITY OF ATLANTIC CITY AND MICHAEL RUSSACK, JOINTLY, SEVERALLY, AND IN THE ALTERNATIVE, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-17028-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 5, 2007

Before Judges Cuff and Lisa.

Plaintiff, Sergeant Gregory Voci, a member of the Atlantic City Police Department, is the subject of ongoing disciplinary proceedings. He was charged with violation of departmental regulations prohibiting outside employment without authorization and being untruthful with respect to the investigation of the outside employment matter.

The charges were filed on January 6, 2004. Voci disputed the charges and requested a hearing. Atlantic City is a civil service municipality. A hearing officer was designated and the hearing process commenced. Voci was represented by counsel. Discovery was provided. Testimony was taken, and witnesses against Voci were subject to cross-examination. At some point in the process, Voci obtained new counsel, who presently represents him. Voci then requested additional discovery materials and sought to recall for further testimony defendant, Michael Russack, a sergeant in the Atlantic City Police Department and an internal affairs officer who participated in the investigation. Russack had previously testified and was subject to extensive cross-examination. Dissatisfied with the manner in which the hearing officer, the City and Russack responded to these requests, Voci filed this action.

In his complaint, Voci alleged that the disciplinary action lacked a factual basis and should be dismissed as a matter of law. He therefore sought dismissal of the charges. Voci further argued that defendants wrongfully withheld documentary evidence to which he was entitled, and the hearing officer committed an "outrageous shirking of [his] obligation to provide the plaintiff with due process" by refusing to compel the City to turn over the documents. According to Voci, that circumstance, together with the difficulties encountered in his efforts to have Russack recalled for further testimony, demonstrated that it would be futile to seek redress at the administrative level. Therefore, if the court did not dismiss the charges, he sought an order compelling the production of various records and physical evidence.

Voci also sought compensatory and punitive damages, together with interest, costs and attorney's fees, arguing that the sum of defendants' misconduct violated his rights under the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2.

Defendants moved to dismiss the complaint for failure to state a claim for which relief can be granted. See R. 4:6-2(e). After hearing oral argument, Judge Armstrong rendered an oral decision on January 12, 2007. She rejected Voci's claim that judicial intervention was warranted in "an ongoing administrative hearing before a hearing officer where the plaintiff has received notice of the charges and has been afforded the right to a hearing in which he is represented by counsel, may cross-examine witnesses and may present evidence." After reviewing the recognized exceptions to the general requirement to exhaust administrative remedies, the judge concluded that this case did not fit any of the exceptions. Remedies were available to Voci within the administrative process. No final determination at the initial hearing level had yet been rendered. And, Voci maintained the right to appeal within the administrative process and could ultimately seek judicial review from any final adverse administrative decision.

The judge concluded that the civil rights claim was "premature at best" and that the determination of that claim could not be properly resolved until further factual development within the administrative proceedings. She further concluded that final determination of the administrative charges, which may or may not be adverse to Voci, must be achieved before the civil rights claim can be properly evaluated.

Accordingly, the judge entered an order (1) dismissing with prejudice the request for an order for additional discovery or a plenary hearing to determine whether the administrative charges should be dismissed, and (2) dismissing without prejudice the civil rights claim.

On appeal, Voci argues:

I. THE TRIAL COURT ERRONEOUSLY DISMISSED THE PLAINTIFF'S APPLICATION TO COMPEL DISCOVERY AND A PLENARY HEARING.

II. THE TRIAL COURT ERRED IN GRANTING THE DEFENDANTS' MOTIONS TO DISMISS FOR FAILURE TO STATE A CAUSE OF ...


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