On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-6041-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 29, 2009
Before Judges Baxter and Alvarez.
Defendants, the Hoboken Police Department and the City of Hoboken (the City), appeal from the grant of summary judgment to plaintiff James Peck in which the judge granted plaintiff's application for attorneys' fees and costs pursuant to N.J.S.A. 40A:14-155. That statute permits an award of attorneys' fees to a police officer who obtains a dismissal of disciplinary charges filed against him, but only when the disciplinary charges arise out of, and are directly related to, the lawful exercise of police powers in the furtherance of the officer's official duties. We reject the City's argument that plaintiff's motion for summary judgment should have been denied because there were genuine issues of material fact on the question of whether plaintiff's actions arose out of, and were directly related to his official duties. We likewise reject the City's claim that res judicata and collateral estoppel precluded the award. We affirm.
Plaintiff's request for attorneys' fees, which is the subject of this appeal, had its genesis in the City's effort to expand the pool of sergeants eligible to take a promotional examination to attain the rank of police lieutenant. We begin our discussion of the factual record there.
In light of the impending expiration of an eligibility list for the rank of lieutenant, the State Department of Personnel (DOP) notified the City that the City would be included in the 2006 testing cycle for that position. By letter of January 20, 2006 to DOP, the City requested that the promotional examination for police lieutenant be cancelled because the City's table of organization would be at a maximum level within the next fiscal quarter, and there were no anticipated vacancies for at least one year. Despite the City's request for an exemption, DOP notified the City on May 3, 2006 that its request for cancellation of the promotional examination had been denied. Consequently, a few weeks later, DOP issued a promotional announcement with a closing date of August 31, 2006, which permitted those officers with one-year of permanent service as a police sergeant to apply for that examination.
Despite its request six months earlier that it be excluded from the testing cycle, and its assertion that there would be no vacancies for over one year, the City requested on June 21, 2006 that the promotional announcement be amended to expand the number of sergeants eligible to take the examination. It is undisputed that the son of the Chief of Police would be eligible to sit for the promotional examination only if DOP were to grant the City's June 21, 2006 request to expand the eligibility criteria. DOP, however, was not aware of that fact at that time.
In response to the City's June 21, 2006 request, DOP notified the City it would only consider the request if the City could obtain written consent to the abbreviated study period from all police sergeants who were eligible for the examination (waiver affidavit).
To accomplish DOP's request, on August 17, 2006, the Chief directed all fourteen sergeants to respond to the police department's training room. The Chief told the assembled officers that "it's an all or nothing deal. If anyone objects to the waiver, then the DOP won't go for it." All sergeants present were asked by the Chief to sign the waiver affidavit that the Chief had prepared. All sergeants who were present did so, including plaintiff. Shortly thereafter, DOP granted the City's request and issued an amended promotional announcement.
Days after DOP issued the expanded promotional announcement, DOP received an anonymous letter alleging that improper motives led to the City's request to expand the eligibility for the promotional examination. The author claimed that Christopher LaBruno, the Chief's son, was the reason for the City's request for a larger applicant pool as he would not otherwise be eligible to take the test. The anonymous author also alleged that the Chief had previously been opposed to opening the examination to employees with less than one year of experience, but suddenly reversed his position only to benefit his son. The writer also asserted that anyone who refused to sign the affidavit would "fac[e] the wrath" of the Chief.
DOP notified the City that in light of the "disturbing" allegations contained in the anonymous letter, it would not consent to an expansion of the criteria for eligibility to take the promotional exam unless each of the fourteen sergeants signed a second affidavit, again waiving their right to object to the abbreviated time for preparation for the promotional examination.
In response to DOP's request for a second set of written waivers, the City assembled all fourteen officers on August 23, 2006, and again presented them with affidavits waiving their right to object to the shortening of the study period. All fourteen signed the affidavit, which included a statement that the signing was voluntary, and was not the result of any threats or coercion. This time, however, the Chief was not present; the affidavits were distributed by the PBA President, Sergeant Kenneth Ferrante, as well as Lieutenant Cruise.
Shortly thereafter, the City began an internal affairs investigation to uncover the author of the anonymous letter. On September 8, 2006, plaintiff met with individuals in the internal affairs division, and admitted writing the letter in question.
On October 27, 2006, the City served a preliminary notice of disciplinary action (PNDA) on plaintiff, charging a violation of N.J.A.C. 4A:2-2.3(a)(6) (conduct unbecoming a public employee). In the PNDA, the City alleged that the information plaintiff provided under oath in his August 23, 2006 affidavit was false, because he swore in the affidavit that ...