On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7393-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and J. N. Harris.
Plaintiff Maryelyn Conway, a police sergeant for defendant New Jersey Transit Police Department (NJTPD), a division of the New Jersey Transit Corporation, appeals from a March 11, 2009 order denying her motion for reconsideration of a September 15, 2008 order denying plaintiff's motion to dismiss disciplinary charges filed by NJTPD against plaintiff.*fn1 We affirm.
On February 22, 2007, a civilian complaint was lodged by Dominque Lewandowski relating to his arrest on February 4, 2007, by NJTPD Patrol Officer Jonathan Giles (Giles). Conway, one of Giles' supervisors, was present during Lewandowski's arrest. Giles secured Lewandowski's personal property after the arrest, and the Lewandowski complaint accused Giles of false arrest and theft of property.
On February 23, 2007, Maureen Scianimanico, Senior Investigator in NJTPD's Office of Professional Standards, Internal Affairs Division (IAD or Internal Affairs), and NJTPD Detective Valido were assigned to investigate Lewandowski's allegations. That same date, Scianimanico and Valido conducted an inventory search and checked "[t]he items in the bag" against Lewandowksi's "Inmate Personal Property Receipt." Several items were found to be missing, including clothes, cash, business cards, a wallet and I.D. card.
Prior to the complaint by Lewandowski, a February 15, 2007 complaint had been filed against Giles by Joseph Garito. Garito also alleged that personal property, taken during his arrest by Giles and other NJTPD officers, was missing at the time he attempted to retrieve it. As a result of these two civilian complaints, on February 23, 2007, the NJTPD Office of Professional Standards contacted the Hudson County Prosecutor's Office (Prosecutor) and thereafter forwarded to the Prosecutor copies of the IAD files for investigation and action.
On April 2, 2007, the Prosecutor forwarded a letter to the IAD indicating that following a review of the Lewandowski matter, that matter was being referred back to Internal Affairs, and no further action would be taken by the Prosecutor. Since the Prosecutor was still investigating the allegations by Garito, IAD determined that it would hold its administrative investigation of the Lewandowski matter in abeyance until an overall review of the investigation of Officer Giles was completed.
On February 11, 2008, Internal Affairs received notification that the Prosecutor was declining to pursue criminal charges against Giles for the Garito matter. As a result of having received that notification, Scianimanico resumed the administrative investigation of both the Lewandowski and the Garito complaints. Thereafter, on March 4, 2008, Giles was interviewed by Internal Affairs, and the next day, Conway was advised that she was a principal subject in an Internal Affairs investigation. An interview of Conway was scheduled for March 10, 2008.
Based partially on the information garnered from the interviews, Scianimanico concluded in an investigative report dated March 11, 2008, that Giles had failed to properly handle Lewandowski's property after his arrest. Since Conway was the supervising officer that shift and was responsible for checking Lewandowski's property, Scianimanico recommended in the investigative submission that charges be brought against Conway, as well in relation to the Lewandowski incident. On March 18, 2008, the investigative report was forwarded to Police Chief Joseph Bober. On March 24, 2008, NJTPD filed disciplinary charges against Conway and Giles asserting as to each a violation of Patrol Guide Rules and Regulations, Section 7.12, Unsatisfactory Performance, and assessing as to Conway, minor discipline of a letter of reprimand and up to five days suspension.*fn2
Thereafter, on May 8, 2008, Giles and Conway filed a verified complaint in lieu of prerogative writs in the Law Division, seeking (a) a declaration that the disciplinary charges are null and void and without effect; (b) direction that defendants are to remove all documentation of the charges from the personnel files of Giles and Conway; (c) a preliminary and permanent injunction enjoining defendants from enforcing the disciplinary procedures in violation of statute, regulation, and federal and state constitutions; and (d) award of fees, costs, reasonable attorneys' fees and other relief. The complaint asserted that the disciplinary charges were not timely because they were filed outside the forty-five day period prescribed by N.J.S.A. 27:25-15.1c.
On June 6, 2008, the Law Division entered an order to show cause with interim restraints, temporarily restraining defendants from acting on the charges against Giles and Conway pending the return date of the order to show cause. On July 14, 2008, defendants filed a verified answer with affirmative defenses and motion to dismiss the complaint.
On August 22, 2008, the parties appeared for oral arguments on the order to show cause before Judge Thomas M. McCormack. On September 15, 2008, the court entered an order dismissing the disciplinary charges against Giles as null and void for having been filed outside of the forty-five day time limit specified in N.J.S.A. 27:25-15.1c. The court held that since the Lewandowski complaint was filed on February 22, 2007, and the investigation was initiated on February 23, 2007, after the Prosecutor authored the Giles declination letter relating to ...