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Peck v. City of Hoboken

July 21, 2008

JAMES PECK, PLAINTIFF-RESPONDENT,
v.
CITY OF HOBOKEN AND HOBOKEN POLICE DEPARTMENT, DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L-6041-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 27, 2008

Before Judges Wefing and R. B. Coleman.

The City of Hoboken and the Hoboken Police Department (collectively referred to as the City, except where otherwise indicated explicitly or by context) appeal from an April 13, 2007 order denying a stay and reconsideration of a March 7, 2007 order. The March 7, 2007 order was entered following arguments on the return of an order to show cause. As the City asserts, the order went beyond the issue of preliminary restraints and granted permanent relief without a further hearing. We, nevertheless, affirm the order from which this appeal was taken.

The dispute relates to the City's desire to alter the standard requirements for the promotional eligibility list for the rank of police lieutenant. The State Department of Personnel (DOP) notified the City that it would be included in the 2006 testing cycle for police lieutenant. However, the City, prior to announcing the examination, filed a request with the Division of Selection Services (the Division) to be excluded from the testing cycle. By its letter dated January 20, 2006, the City informed the DOP that the City anticipated no vacancies in the lieutenant position for over a year. In spite of that assertion, on May 3, 2006, the Director of the Division advised the City that its request to be excluded had been denied.

On June 1, 2006, the DOP made a promotional announcement with a closing date of August 31, 2006, which would allow those officers with one year of permanent service as a police sergeant to apply for the examination. Curiously, on June 21, 2006, the City requested that the promotional announcement be amended to expand the number of sergeants eligible to take the examination by allowing police sergeants who had completed their working test period to file for the examination.

In response to the request for amendment, the DOP indicated that it would only consider the City's application if the City could obtain consent to the abbreviated study period from those police sergeants who would become eligible for the examination if the City's request was granted. As requested by the DOP, the Police Chief asked these sergeants to sign waivers, and each sergeant did sign, whereupon the Division granted the City's request for the amendment.

Thereafter, the Division received an anonymous letter which alleged improper motives for the City's request. The letter claimed that the request was solely prompted by the Chief's desire to have his son become eligible to take the examination. The letter also stated that the Chief had previously been opposed to opening examinations to employees with less than one year of experience at their positions. The City then had each of the sergeants sign a second affidavit, again waiving their rights regarding the time for preparation for the promotional examination. Nevertheless, the Division rescinded the amended promotional announcement. In a letter to the City dated August 23, 2006, the Director of the Division explained:

While I appreciate that the anonymous letter does not carry the weight of one that is signed, and while I recognize that it may have been designed to be more disruptive than truthful, it nevertheless alleges a number of disturbing issues with respect to merit system principles. Consequently, I informed Mr. Korman and Chief La Bruno yesterday that the amendment to the Police Lieutenant (PM2537H) announcement has been rescinded in light of this anonymous letter.

Further, it is recommended that the City of Hoboken call for another Police Lieutenant announcement next year if it appears that it is in jeopardy of exhausting the Police Lieutenant list that results from the upcoming examination.

The City appealed the rescission, and on September 6, 2006, the Merit System Board issued a Final Administrative Action finding that the rescission was proper and consistent with N.J.A.C. 4A:4-2.6(g). Thereafter, the Hoboken Police Department initiated an internal investigation to uncover the author of the anonymous letter. On September 8, 2006, plaintiff met with individuals in the internal affairs division, and he admitted penning the letter.

On October 27, 2006, the department filed and served a preliminary notice of disciplinary action against plaintiff, citing a violation of N.J.A.C. 4A:2-2.3(a)(6) (Conduct Unbecoming a Public Employee). The City alleged that the information plaintiff provided under oath in an affidavit dated August 23, 2006 was false to the extent he had indicated he had signed the affidavit without having been threatened or coerced in any way. The City sought plaintiff's suspension for six days.*fn1 The matter was initially scheduled for a November hearing but was adjourned without a new date.

On December 13, 2006, before the disciplinary hearing was rescheduled, plaintiff filed a verified complaint in the Law Division, which contained most of the foregoing facts and which sought among other relief, to restrain and enjoin the City from acting on the disciplinary charges filed against plaintiff on October 27, 2006. Plaintiff's complaint presented three counts. The first count was based on an alleged violation of N.J.S.A. 4A:14-147, that is, the violation of the rule requiring the filing of disciplinary charges within forty-five days of obtaining sufficient information to file such charges. The second count asserted a violation of N.J.S.A. 11A:1-1, et seq. and N.J.A.C. 4A:1-1.1, et seq. for filing frivolous disciplinary charges in retaliation for plaintiff's reporting of governmental abuse and ...


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