August 6, 2009
RAYMOND D'AMBROSIO, PLAINTIFF-RESPONDENT,
NORTH HUDSON REGIONAL FIRE AND RESCUE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2430-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: April 29, 2009
Before Judges Cuff and Baxter.
Plaintiff Raymond D'Ambrosio is a firefighter employed by defendant North Hudson Regional Fire and Rescue (North Hudson).
In March 2008, two years after responding to a fire in North Bergen and providing a report about the incident, plaintiff was charged with two disciplinary offenses, one of which related directly to that report. He responded by filing an action in lieu of prerogative writs to dismiss the charges as untimely. Defendant appeals from the order dismissing the charges and awarding attorneys' fees to plaintiff. We affirm in part and reverse in part.
North Hudson provides fire services to several northern Hudson County municipalities: North Bergen, West New York, Union City, Weehawken and Guttenberg. Plaintiff is a firefighter employed by North Hudson; on March 22, 2006, plaintiff was designated Acting Captain and in that capacity responded to a fire at 3807 Bergen Turnpike, North Bergen.
All acting company officers dispatched to a fire or rescue scene are required to complete an "After Action Report," which is used to assess the company's performance and address areas in need of improvement.
Following the March 22, 2006 North Bergen fire incident, plaintiff submitted the required After Action Report. The form completed by plaintiff states that when he arrived at the scene, he observed "Fire Blowing out Front of Building." In the section of the form that directs the officer completing the form to "Explain Actions in Detail," plaintiff wrote, "Obtained own water supply stretched 2 1/2 to side entrance Assisted advancing 1 1/2 line into Building."
On April 3, 2006, plaintiff submitted a Correspondence Report on the subject of Steve Winters, another firefighter at the scene of the March 22 fire. In this report, plaintiff states, "I saw Steve bring in 1 3/4 line into the front of the building."
Winters, the subject of the April 3, 2006 report, claimed that he sustained burns to his cheek and ear in the March 22, 2006 fire and filed a compensation claim for the injury. Plaintiff's April 3 statement was provided in response to an inquiry from defendant's insurance provider about the use of protective gear by Winters at the scene of the March 22 fire.
Winters was terminated on unrelated disciplinary charges. He appealed to the Merit System Board of the Department of Personnel and the matter was transferred to the Office of Administrative Law (OAL) as a contested matter. During a January 11, 2008 OAL hearing, Winters introduced a two-page certification submitted by plaintiff. This document contained substantially more information than provided in the March 22, 2006 After Action Report or the April 3, 2006 Correspondence Report filed by plaintiff.
The August 10, 2006 certification signed by plaintiff and submitted by Winters at his OAL hearing states that
5. Upon reaching the gated entrance of the [North Bergen] building, I noticed Captain Shawn Miick, Captain Mike Caliente, Firefighter Steven Winters, and one other firefighter just inside the gate, which led to the walkway to the main entrance of the home.
6. I was ordered by Captain Miick, who had already advanced a 1-3/4 inch hose line to drop my 2 1/2 inch hose line and help advance his 1-3/4 inch hose line into the building for an interior fire attack. Captain Miick, Firefighter Steven Winters, Firefighter Jim Maher, and myself made our way to the entrance door. While Captain Miick and Captain Caliente remained outside, Firefighters Steven Winters, Jim Maher and myself advanced the 1-3/4 inch hose line into the building for an interior fire attack. It was my understanding that the purpose of our 1-3/4 inch hose line was to attack the fire from the interior. As the Officer of Engine Company 5, I was not contacted by any Incident Commander or any other officer in an effort to coordinate a fire attack or to coordinate hose line operations. I carried out the orders of Captain Miick, who was in charge of the attack line.
7. The conditions in the building consisted of heavy fire and smoke in a room off to the right of the hallway area we were entering. Upon receiving orders from Captain Miick to move ahead with the fire attack, we immediately advanced the 1-3/4 inch hose line. With Firefighter Winters on the tip of the 1-3/4 inch hose line, and myself positioned second, the two of us advanced into the hallway area approximately six feet into the building. Firefighter Maher was just outside the entrance door. While in the building, smoke was very heavy and I could barely see Firefighter Winters on the tip, who was directly in front of me. I cannot say whether or not Firefighter Winters was wearing his hood. Heavy fire also appeared in the room off to our right. Water was never established in the hose line. While in the building and waiting for water, I experienced a great amount of heat. I was forced to hit the floor in an effort to temporarily avoid the heat. While positioned in the building and awaiting water in the hose line, I never heard Captain Caliente issue any orders for Firefighter Steven Winters, who was in front of me controlling the nozzle, to exit the building. Shortly after I hit the floor due to the sudden blast of heat, we were ordered out of the building by Captain Miick due to an inability to obtain water in the hose line. We all exited the building. Though we exited the building together, I heard no comments made by Captain Caliente to Firefighter Steven Winters regarding any concerns he had.
8. Though all those assigned to my company, including myself, w[ere] asked to submit a report on what I saw Firefighter Steven Winters doing on March 22, 2006, no one in the Department questioned me on what I had witnessed concerning injuries sustained by Firefighter Steven Winters nor was I ever interviewed regarding what I had witnessed or experienced while working with Firefighter Steven Winters at that fire.
The Executive Director of North Hudson attended the January 2008 OAL hearing. At that time he learned of plaintiff's August 2006 certification and noted its contents provided detail about the fire never previously disclosed and raised concerns that plaintiff may have neglected his duty by failing to provide a full account of the March 22 fire scene. Unsure whether plaintiff was actually the author of the certification and wishing to provide plaintiff with an opportunity to explain the discrepancy between the official reports and the certification, the Executive Director referred the matter to Robert Czech to conduct an investigation.
On February 12, 2008, one month after the OAL hearing, Czech interviewed plaintiff, Battalion Chief Daniel Giacumbo, Deputy Chief Eric Inauen, and Fire Chief Brion McEldowney. All, including plaintiff, agreed that plaintiff had neither sought nor received permission to provide the August 10, 2006 certification. On March 4, 2008, Czech issued his report. He concluded that plaintiff "did not but should have advised his supervisors that he was requested to provide information to a non-departmental person" and plaintiff "should not have communicated with and provided a written certification to a non-departmental person . . . without notifying his supervisors." Czech also identified the regulations and internal rules plaintiff violated.
On March 27, 2008, seventy-five days after North Hudson learned of the August 2006 certification, North Hudson filed disciplinary charges against plaintiff. Count One charged plaintiff with "Communicating Official [North Hudson] Business Without Authorization"; Count Two charged plaintiff with "Failure to Complete Full and Accurate Reports."
On May 7, 2008, plaintiff filed an action in lieu of prerogative writs in which he sought dismissal of the charges filed beyond the forty-five days prescribed by N.J.S.A. 40A:14-28.1. He also sought attorneys' fees and costs as authorized by N.J.S.A. 40A:14-28. By order dated June 20, 2008, the trial judge dismissed the disciplinary charges filed against plaintiff and awarded counsel fees and costs to him. In an order dated July 18, 2008, the judge awarded plaintiff attorneys' fees in the amount of $11,632.50 and costs of $230.
In his June 20, 2008 opinion, the judge held that the Law Division of Superior Court had jurisdiction of plaintiff's complaint because the interpretation and application of the "forty-five day rule" was a question of law. The judge further held that the application of the rule did not require development of a factual record, and defendant did not require an investigation prior to issuance of the disciplinary charges. Concluding that "[d]efendant possessed sufficient information to file the disciplinary charges against the Plaintiff on January 11, 2008," he held that the March 27, 2008 disciplinary charges were barred by the "forty-five day rule."
On appeal, defendant argues that the Department of Personnel had jurisdiction over the matter and plaintiff failed to exhaust his administrative remedies. Defendant further argues that it was entitled to conduct an investigation and that the charges were timely filed following the issuance of the investigatory report; and the forty-five day rule does not apply to disciplinary charges founded on internal rules and regulations. Finally, defendant argues that attorneys' fees and costs should not have been awarded because the disciplinary charges did not arise out of the performance of plaintiff's duties as a firefighter, and the hourly fee is excessive.
The threshold issue for our consideration is jurisdiction. As a civil service employee, plaintiff is protected in his employment by the Civil Service Act, N.J.S.A. 11A:1-1 to 12-6. When disciplinary charges are filed against such an employee, he is entitled to a hearing before the appointing authority, N.J.S.A. 11A:2-13, N.J.A.C. 4A:2-2.6; and a right to appeal any adverse decision to the Merit System Board, N.J.S.A. 11A-2-15; N.J.A.C. 4A:2-2.8.*fn1 Contested matters are referred to the Office of Administrative Law for a hearing. N.J.A.C. 1:1-3.2. Following issuance of an initial recommendation, the final decision is issued by the agency, N.J.A.C. 1:1-18.6, and any appeal from that decision is to this court, Rule 2:2-3(a)(2).
Compliance with this course serves three goals: claims are heard as a preliminary matter by a body with expertise in the subject matter, a factual record is created for meaningful appellate review, and the agency decision may obviate resort to the courts. City of Atlantic City v. Laezza, 80 N.J. 255, 265 (1979); Triano v. Div. of State Lottery, 306 N.J. Super. 114, 121 (App. Div. 1997).
Firefighters charged with a violation of internal rules and regulations have some additional protections. Not only must they receive notice of the charges, but they must also receive timely notice. N.J.S.A. 40A:14-28.1 provides that a firefighter must receive notice of disciplinary charges no later than the forty-fifth day after the date on which the person filing the complaint receives sufficient information to file the complaint. The statute provides:
A person shall not be removed from employment or a position as a paid member of a paid or part-paid fire department or force, whether that department or force be created, established and maintained by a municipality, fire district, regional entity, county, authority or the State, or suspended, fined or reduced in rank for a violation of the internal rules and regulations established for the conduct of employees of the department or force, unless a complaint charging a violation of those rules and regulations is 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. A failure to comply with this section shall require a dismissal of the complaint. The 45-day time limit shall not apply if an investigation by the fire department or force for a violation of the internal rules and regulations of the department or force is included directly or indirectly within a concurrent investigation of that member of the department or force for a violation of the criminal laws of this State; the 45-day limit shall begin on the day after the disposition of the criminal investigation. The 45-day requirement in this section for the filing of a complaint against a member of the department or force shall not apply to a filing of a complaint by a private individual.
The issue at the heart of this appeal is whether the complaint was filed in compliance with the forty-five-day rule and whether resolution of that issue requires the development of a factual record. Plaintiff urges that the facts required to resolve his contention that the complaint is untimely are undisputed; defendant argues that the need for an investigation and the analysis of the information derived from that investigation are not so plain to depart from the usual administrative adjudication process.
In discussing the forty-five-day provision in the statute governing disciplinary actions against State Troopers, a provision that contains language similar in all relevant respects to the statute governing firefighters, the Court recognized that the forty-five-day rule is intended to balance three competing considerations: "the need for a complete and thorough internal investigation, the need for deference to a related criminal investigation, and the interests of the particular trooper to be free of undue delay in being charged." Roberts v. Div. of State Police, 191 N.J. 516, 523 (2007). The forty-five-day rule of N.J.S.A. 40A:14-28.1 balances these same considerations for firefighters.
In Roberts, the Court also held that "it is not the happening of the event giving rise to discipline that starts the clock for purposes of evaluating timeliness, but the receipt of 'sufficient information' by the one who is authorized to file the charge that is significant." Id. at 524. Furthermore, receipt of the investigatory report by the person who has the authority to file a charge satisfies the statutory requirement of the receipt of sufficient information. Ibid.; Div. of State Police v. Maguire, 368 N.J. Super. 564, 570 (App. Div.), certif. denied, 181 N.J. 545 (2004).
In addition to addressing the issue of when the time commences to run to file disciplinary charges, Roberts also provides some insight to the jurisdictional question before us. Roberts had commenced his action in the Law Division and the matter was transferred to this court. Roberts, supra, 191 N.J. at 519 n.1. We rejected the State Police argument that the matter should be dismissed for failure to exhaust administrative remedies. Roberts v. Div. of State Police, 386 N.J. Super. 546, 550-51 (App. Div. 2006). In doing so, we noted that exhaustion of administrative remedies is not an absolute, particularly when the issue raised is strictly a legal question. Id. at 550. In Roberts, the legal issue was one of statutory interpretation. Ibid. The Supreme Court did not address the jurisdictional issue because the State Police had not filed a cross-petition. Roberts, supra, 191 N.J. at 519, n.2.
Here, the issue is not one of statutory interpretation but one of the application of the law to undisputed facts. Under these circumstances, resort to the established administrative adjudicative process does not further the purpose of the exhaustion rule because the facts are not in dispute and application of settled law to the facts does not require any particular agency expertise. Furthermore, resort to the administrative adjudicative process may, in fact, cause undue delay because this court conducts a de novo review of legal rulings. Grancagnoa v. Planning Bd. of Verona, 221 N.J. Super. 71, 75 n.5 (App. Div. 1987). We, therefore, conclude that plaintiff properly commenced this action in the Law Division.
The trial judge applied the law governing the forty-five-day rule to a set of undisputed facts. Plaintiff was the officer in charge of a detail that responded to a fire in North Bergen on March 22, 2006. He submitted the required After Action Report that day and a Correspondence Report on April 3, 2006, regarding the activities of firefighter Steven Winters at the scene of the March 22 North Bergen fire. On August 10, 2006, plaintiff prepared an eight paragraph, single-spaced, two-page certification at the request of Winters. Plaintiff's employer first learned of the existence of this certification when it was introduced during a January 11, 2008 OAL hearing concerning the injuries sustained by Winters during the March 22, 2006 fire.
North Hudson retained Czech to investigate the submission of the August 2006 certification by plaintiff. He interviewed plaintiff and three superior officers on February 12, 2008. He reported that no superior officer had seen the August 2006 certification prior to its admission at the January 2008 administrative hearing. Plaintiff admitted he never informed his superiors of the certification or the request to prepare it.
In his March 4, 2008 report, Czech identified four rules and regulations that governed the preparation and dissemination of documents containing information about departmental matters.
Czech also compared the After Action Report and the Correspondence Report with the August 2006 certification and noted that certification contained significantly more information than the contemporaneous reports plaintiff filed after the fire. Czech, therefore, concluded
(1) that F[ire]F[ighter] Raymond D'Ambrosio did not but should have advised his superiors that he was requested to provide information to a non-departmental person regarding official [North Hudson] operations and business and (2) that F[ire]F[ighter] D'Ambrosio should not have communicated with and provided a written certification to a non-department person regarding official [North Hudson] operations and business without notifying his supervisors, both in violation of [North Hudson] Rules & Regulations, a General Order and Department of Personnel Rules and Regulations.
Thereafter, on March 27, 2008, defendant filed a two count preliminary notice of disciplinary action against plaintiff. In Count One he was charged with communicating official business without authorization. In Count Two, plaintiff was charged with failure to complete full and accurate reports. The latter charge pertains to the March 22, 2006 and April 3, 2006 reports filed by plaintiff about the March 22 North Bergen fire.
N.J.S.A. 40A:14-28.1 required defendant to file the disciplinary charges within forty-five days of receipt of sufficient information by the person with the authority to file the charges and receipt of the investigatory report satisfies the statutory requirement of receipt of sufficient information. Here, of course, the trial judge held that defendant had all the information it required to decide whether it should discipline plaintiff within days of the January 12, 2008 OAL hearing, an investigation was unnecessary, and the March 27, 2008 notice of disciplinary action was too late. We are in partial agreement with this analysis and outcome.
Count Two of the March 27, 2008 charge pertains to the March 22, 2006 After Action Report and the April 6, 2006 Correspondence Report. Plaintiff is charged with failure to complete full and accurate reports. As soon as defendant learned of the August 2006 certification, it should have been apparent to plaintiff's superiors that plaintiff provided such limited information in his initial reports that he may have failed to provide a full and accurate official report of the North Bergen fire. Plaintiff used fifteen words to "explain his actions in detail" in the March 22, 2006 After Action Report. Plaintiff used thirteen words in the April 3, 2006 Correspondence Report. A simple comparison of these documents with the August 2006 certification provided all the information a superior officer required to initiate a disciplinary charge against plaintiff for failure to file full and accurate reports.
Moreover, defendant cannot take refuge in Czech's March 4, 2008 Report. This report is limited solely to the circumstances surrounding the request to and submission by plaintiff of the August 2006 certification. The rules and regulations identified by Czech concern only the rules governing dissemination of official information and recommend charges only concerning plaintiff's admitted knowledge of the rules and his failure to observe the rules governing dissemination of official information outside of the department.
Accordingly, Count Two of the March 27, 2008 disciplinary charge is untimely because this charge was filed well beyond the forty-five days allowed by N.J.S.A. 40A:14-28.1. Count Two was properly dismissed as time barred.
We reach a contrary decision on Count One. We should and do hesitate to interfere with the decision of the Executive Director that he required an investigation of the circumstances surrounding the request for and submission of the August 2006 certification, plaintiff's knowledge of the rules governing dissemination of official information, and whether the relevant superior officers had knowledge of the existence of the document and its submission to third parties. We hesitate to second guess the decision to involve a third party who could and did interview persons privately. It is entirely possible that information would have been discovered through this method that may have revealed that one or more superior officers knew of the certification. Of course, Czech documented that was not the case but the result of the investigation does not undermine the decision to involve a third party.
Under these circumstances, we hold that Count One of the March 27, 2008 charge is timely. The forty-five days for filing charges commenced as early as March 4. Count One, filed twenty-three days later, is timely.
Due to this disposition, we also remand the issue of an award of attorneys' fees for reconsideration. The trial judge should have the opportunity to determine in the first instance whether the award is appropriate in light of this disposition.
Affirmed in part, reversed in part, remanded for reconsideration of attorneys' fees.