February 23, 2011
SERGEANT MARYELYN CONWAY, PLAINTIFF-APPELLANT, AND PATROL OFFICER JONATHAN GILES, PLAINTIFF,
NEW JERSEY TRANSIT CORPORATION AND NEW JERSEY TRANSIT POLICE DEPARTMENT, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 15, 2010
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 Lewandowski, on April 2, 2007, NJTPD had sufficient information to lodge charges against him within forty-five days of the declination letter.
By contrast, the Law Division judge denied Conway's application to dismiss the disciplinary charges against her. Instead, the court vacated the previously placed temporary restraints because NJTPD did not obtain sufficient information of Conway's involvement in the incident until the March 4, 2008 interview of Giles that implicated Conway's involvement.
On September 22, 2008, Conway filed a motion for reconsideration with regard to the disciplinary charges pending against her. On October 24, 2008, the parties appeared for argument on the application for reconsideration and in an order filed March 11, 2009, Judge McCormack denied Conway's motion. This appeal ensued.*fn3
The decision on whether to deny a motion for reconsideration is addressed to the judge's discretion. Fusco v. Newark Bd. of Educ., 349 N.J. Super. 455, 462 (App. Div. 2002); Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 77 (App. Div. 1997). If a judge makes a discretionary decision, but acts under a misconception of the applicable law, the appellate court need not give the usual deference. State v. Steele, 92 N.J. Super. 498, 507 (App. Div. 1966). The court instead must adjudicate the controversy in the light of the applicable law in order that a manifest denial of justice be avoided. Ibid.; Kavanaugh v. Quigley, 63 N.J. Super. 153, 158 (App. Div. 1960). In any case, "[a] trial court's interpretation of the law and the consequences that flow from established fact are not entitled to any special deference." Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
In dismissing Conway's complaint, the trial court stated that defendants "did not have sufficient information to file against Conway until the March 4, 2008 interview and they did file within 45 days of that date. So I don't believe there's a basis in law for the Court to dismiss the charges, the minor disciplinary charges against Sergeant Conway." At the hearing on the motion for reconsideration, Conway argued that once the Lewandowski declination letter was sent out to Giles by the Prosecutor, the NJTPD had sufficient information to lodge a disciplinary charge against Giles and Conway within forty-five days. The trial judge accepted that argument as to Giles, but denied it as to Conway. Because NJTPD has not appealed the disposition as to Giles, we do not address the propriety of that aspect of the Law Division's order. See, e.g., State v. Elkwisni, 190 N.J. 169, 175 (2007) (refusing to consider an issue as to which the State did not cross appeal). Significantly, N.J.S.A. 27:25-15.1c, which governs the time period within which the NJTPD must file disciplinary charges, provides:
A person shall not be removed from employment or a position as a police officer of the [NJTPD] pursuant to section 2 of P.L.1989, c. 291 (C.27:25-15.1), or suspended, fined or reduced in rank for a violation of the internal rules and regulations established for the conduct of employees of the [NJTPD], 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 statute provides further that:
The 45-day time limit shall not apply if an investigation of a police officer for a violation of the internal rules and regulations of the [NJTPD] is included directly or indirectly within a concurrent investigation of that officer 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 police officer of the [NJTPD] shall not apply to a filing of a complaint by a private individual. [emphasis added.]
"[I]t 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." Roberts v. Div. of State Police, 191 N.J. 516, 524 (2007) (citing N.J.S.A. 53:1-33).
In Aristizibal v. City of Atlantic City, 380 N.J. Super. 405 (Law Div. 2005), the Law Division examined the case law regarding disciplinary charges against municipal police officers. The court found several principles, pertinent here, regarding the intent of the forty-five day rule. Id. at 427-28.
(1) The 45-day period runs from the date upon which the person responsible for the filing of the disciplinary complaint receives sufficient information upon which to base a complaint.
(2) The statute contemplates that an investigation may be necessary before a decision can be made as to whether a basis exists to initiate disciplinary charges. However, extensive bureaucratic delay in conducting investigations and bringing disciplinary charges is unacceptable.
(3) The 45-day rule applies to the filing of a disciplinary complaint, rather than the date of the service of the complaint upon the police officer.
(4) The intent of the statute is to protect law enforcement officers from an appointing authority unduly and prejudicially delaying the imposition of disciplinary action.
(5) The 45-day time limit does not apply if an investigation of a police officer for violation of the internal rules or regulations is included directly or indirectly with a concurrent investigation of the officer for a violation of the criminal laws. In such event, the 45-day time limit will commence on the day after the disposition of the criminal investigation. [Ibid. (emphasis omitted).]
In this case, Conway was the supervising officer on duty at the time of the Lewandowski incident in February 2007. Conway was not considered a principal in the investigation until after defendants' interview of Giles on March 4, 2008. Although over a year after the actual incident, sufficient information did not exist until the nature and extent of Conway's involvement was determined at the March 4 interview of Giles. At this point, the investigator was able to conclude that Conway failed in her supervisory duties and that assessment was thereafter communicated to Chief Bober.
The statute is not designed to require an appointing authority "to prospectively bring ultimately valid, but unripe, disciplinary charges within 45 days of an incident without properly investigating the matter to ensure that sufficient information to bring such charges is obtained." Id. at 450 n.2 (emphasis omitted). We are satisfied that the statute itself tolls the filing of the disciplinary charge until it is ripe for review.
As to Giles, the judge reasoned that once the Prosecutor authored the declination letter dismissing the criminal investigation as it related to Lewandowski, the time limit started to run, because "[t]he statute that controls here states that the 45 day limit shall begin on the day after the disposition of the criminal investigation . . . . I do not believe that the fact that there was a separate complaint*fn4 charging an incident that occurred . . . on a date six months prior to the [Lewandowski] complaint" would toll the statute. The trial court found that defendants had an obligation at that time to bring the charges against Giles within forty-five days of the declination letter.
Unlike Giles, the record supports the motion judge's view that sufficient information for disciplinary charges as to Conway was not available until Giles was interviewed on March 4, 2008. Scianimanico learned the extent of Conway's involvement with Lewandowski from the Giles interview, including that: (1) Conway assisted Giles with the reports and paperwork while processing Lewandowski's arrest; (2) Conway assisted Giles with the gathering of Lewandowski's property and with the inventory; and (3) Conway provided "a watchful eye" over Giles during the process of securing the property. The day after Scianimanico learned of this information, IAD advised Conway that she was a principal subject in an IAD investigation, and she was scheduled for an interview on March 10, 2008. The following day after Conway's interview, Scianimanico concluded the investigation and forwarded the results in a written report to Chief Bober. The investigator took the position that Giles failed to properly handle Lewandowski's property after his arrest. Based on the fact that Conway was the supervising officer on that shift and was responsible for checking Lewandowski's property, the investigator had then presented sufficient information for the Chief to determine that Conway failed to properly handle the property and perform her supervisory duties. By March 24, 2008, only twenty days after the Giles' interview, the disciplinary charges were filed against Conway.
Contrary to Conway's argument, the investigator did not egregiously delay the continuation of the administrative investigation for eleven months. Scianimanico expressly reasoned in the investigative report that she did not interview Conway and Giles until March 2008 because of the ongoing criminal investigation regarding Giles' arrest of Garito, which she considered to be sufficiently related to justify the further postponement of Giles' interview. On April 10, 2007, when defendants received the declination letter regarding the Lewandowski complaint, nothing was mentioned concerning the Garito matter and, indeed, the Prosecutor did not decline to criminally prosecute Giles in the Garito matter until February 11, 2008. Scianimanico certified that "[a]s a result of their declining to prosecute the matter, [she] actively resumed the administrative investigation of both the Lewandowski case and the Garito case." Nevertheless, the delay in conducting the interview of Giles and Conway was a function of the Prosecutor's issuance of its declination letter of Garito.
Moreover, Lewandowski's allegations were not directed at Conway and did not relate to any administrative or supervisory misconduct. It merely described theft on the part of Giles and did not clearly implicate Conway. The interview of Giles was, therefore, necessary to a full understanding of Conway's involvement in the Lewandowski matter. The forty-five day statute of limitations did not start upon receipt of the April 2, 2007 notification from the Prosecutor that no action would be taken on the citizen complaint against Giles.
Finally, Conway argues that the tolling of the forty-five day rule under Roberts, based on the pendency of concurrent criminal investigations, does not apply here because Conway "was not subject to criminal charges, [and] she was facing only disciplinary infractions." For the reasons stated above, we find this argument without merit. Conway was not facing disciplinary charges until after Giles was interviewed. It was then that her role in the processing of Lewandowski could be adequately evaluated. We are not convinced that the NJTPD charges are time-barred or that such charges should have been dismissed due to NJTPD's failure to comply with the forty-five day time limit.
Any remaining arguments raised by Conway lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).