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Peck v. City of Hoboken


July 21, 2008


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

Per curiam.


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 mismanagement. The third count claimed a violation of the New Jersey State Constitution, Art. 1, Par. 1 for the filing of the disciplinary charges amounting to a violation of due process and fundamental fairness.

The City opposed the order to show cause by arguing that unbecoming conduct is not an internal rule or regulation and that the forty-five day time limit does not apply to civil service charges issued pursuant to N.J.A.C. 4A:2-2.3. The City also asserted that plaintiff's claim of retaliation was a defense that could only be asserted at the disciplinary department hearing before the DOP. On December 19, 2006, the Law Division declined to issue an order to show cause with temporary restraints, but it set a date for consideration of preliminary relief sought by plaintiff.

The court heard argument on the order to show cause on March 2, 2007. At the hearing's conclusion, the court ruled: that there [were] clear facts that I could find that show retaliation against this plaintiff, for speaking out against the procedures that would promote preferential treatment for the police chief's son. This retaliatory action that I find here, violates the aspect of acting in good faith that the law requires.

And I do agree with the counsel for the plaintiff, that the plaintiff would suffer irreparable harm to his reputation, that this act was arbitrary and capricious and certainly, as I say, was in violation of the constitution and of the law.

And so I say therefore, that I am going to grant the relief that's requested by the plaintiff here, which is the dismissal, not under the 45-day rule, but because of the retaliation[,] actions of retaliation that I've cited. I say that, because of the bad faith here, the charges should be dismissed. And, I'm signing the order to that effect.

The court issued the memorializing order on March 7, 2007.

Defendants then filed a motion for reconsideration. At the April 13, 2007 hearing on the motion for reconsideration, defense counsel contended that defendants were not on notice of the fact that permanent relief was to be considered on that return date. Counsel further asserted defendants' position that the imposition of permanent restraints was premature in light of the fact that the matter had been set forth to proceed consistent with the rules under Rule 4:69.l. Emphasizing that the defendants were on notice solely on the issue of determining preliminary restraints, counsel suggested a hearing was in order:

And I think the defendants should be afforded the opportunity to proceed with this matter under the rules for a hearing and for discovery, should the Court grant it, and ultimately a trial, which would afford the defendants the opportunity to put on the very witnesses in the preliminary notice for disciplinary action, Captain Fitzsimmons, who is going to clearly testify that this has nothing to do with the DOP anonymous letter, this has to do with something that happened a month and a half later, which is basically falsifying an affidavit.

Plaintiff's counsel pointed out that further discovery was not necessary and that the essential facts were not contested. During the argument, counsel remarked:

At this point, I really don't know what much more discovery there could be. All the facts are laid out. As I said, they're uncontested. And, you know, what happened happened. There's no change in that. So there's really no going -- going beyond that.

[W]e feel that the charges, as they were predicated on bad faith and retaliation, the direct result was the duress that my -- my client was under, having signed this. Your Honor was well within the means to dismiss the charges on the facts presented.

In announcing its ruling, the court relied on D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990), (indicating that motions for reconsideration are granted only in a narrow corridor of cases). Speaking to the heart of defendants' arguments, the court observed:

The defense was on notice of the plaintiff's claims all along. And in reviewing all of this, I agree with the plaintiff that the defense failed to respond with respect to those aspects of the complaint.

[T]he B section was left in the order, declaring the disciplinary charges of October 27, 2006 to be null and void and without effect. And also, C, directing the defendants to remove any and all documentation regarding the charges.

This Court did have the hearing and did hear plaintiff's arguments and the defendants' arguments, and the Court did make the ruling. I know the defendants are here saying well, we did not have an opportunity to defend with respect to the retaliatory claims of the plaintiff. I know that the plaintiff had been seeking discovery for some time. The defense was certainly in possession of all of the discovery because it was the defense action here that initiated the entire controversy that's before the Court.

I -- as I said in the beginning, the defense failed to respond to all of the allegations of the plaintiff, with respect to it. And this Court did rule on the question, after having reviewed everything, of whether the disciplinary charges should be null and void. And the Court stands by the ruling that I made with respect to that aspect of the case.

And I find that the Court did not fail to appreciate the significance of the evidence that was submitted to me. And I also find that I did not base my decision on any incorrect or irrational basis. And, therefore, the motion to reconsider is denied.

On this appeal, defendants raise the same arguments that were raised on the motion for reconsideration, namely:


After a careful consideration of the record below and the applicable case law, we affirm.

First, it is well settled that a party may choose to proceed summarily when filing a verified complaint accompanied by an order to show cause. See R. 4:67-1; R. 4:67-2; see, e.g., Knowlton Riverside Estates, Inc. v. The Planning Bd. of the Twp. of Knowlton, 347 N.J. Super. 362, 366 (App. Div. 2002). A court evaluating a summary proceeding can often render a final result without conducting a plenary hearing or trial. See generally Nat'l Transfer, Inc. v. Dep't of Envtl. Prot., 347 N.J. Super. 401, 411 (App. Div. 2002) (commenting that if a party were to re-file in the Law Division after an administrative disposition, the opposing party could receive a less extensive hearing than it had received in the administrative courts).

The court properly proceeded with a summary disposition of the complaint inasmuch as defendants were on notice of plaintiff's contention that the disciplinary charge was retaliatory and null and void. It was filed in retaliation for abuses reported by plaintiff and the related affidavit was signed out of fear that the refusal to sign it would likely cost him his job. There was no basis for the court to find any materially disputed facts. Defendants were well aware of plaintiff's contentions articulated in his verified complaint, and there was no dispute as to any material issue of fact. Defendants do not identify any disputed fact that would warrant a plenary hearing. See Elmora Hebrew Ctr., Inc., v. Fishman, 215 N.J. Super. 589, 596 (App. Div. 1987) (finding the need for a plenary hearing when material facts are in dispute).

Finally, a decision on whether to deny a motion for reconsideration is addressed to the judge's discretion. Fusco v. Newark Bd. of Ed., 349 N.J. Super. 455, 462 (App. Div. 2002); Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 77 (App. Div. 1997); Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996). As the motion judge acknowledged:

Reconsideration should be utilized only for those cases which fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative competent evidence . . . . [Cummings, supra, 295 N.J. Super. at 384 (quoting D'Atria, supra, 242 N.J. Super. at 401).]

Had the trial court previously ignored significant evidence, it could have corrected its ruling on the motion for reconsideration. Nothing in the record, however, demonstrated that the trial court wrongfully exercised its discretion by denying defendants' motion for reconsideration. Plaintiff sought to maintain his employment with the Hoboken Police Department without being subject to discipline he viewed as pretextual and frivolous. He sought no monetary damages. Defendants were not prejudiced by the trial court's reasoning or by its result.


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