On appeal from the Superior Court of New Jersey, Essex County, Law Division, Docket No. L-5160-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Decided Before Judges R. B. Coleman and J. N. Harris.
Catherine M. Elston argued the cause for appellant (C. Elston & Associates, LLC, attorneys; Ms. Elston, on the brief). Richard W. Schleifer, Deputy Attorney General, argued the cause for respondents (Paula T. Dow, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mr. Schleifer, on the brief).
Plaintiff Melvin Webb, a sergeant in the New Jersey Transit Police Department (NJTPD) appeals from a March 20, 2009 order of the Law Division (a) denying his application for injunctive relief and (b) granting the cross-motion of NJTPD and New Jersey Transit Corporation to dismiss Webb's complaint with prejudice.*fn1
The injunctive relief sought by plaintiff included a declaration that disciplinary charges filed against Webb on November 19 and 20, 2007 are null and void and without effect. Webb also requested an injunction to restrain and enjoin NJTPD from acting on the disciplinary charges. Webb contends that the disciplinary charges were not filed within the time prescribed by N.J.S.A. 27:25-15.1c, which provides that such charges must be "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."
In denying Webb's application and in granting NJTPD's cross-motion, Judge Paul J. Vichness ruled that (a) there was no jurisdiction in the Law Division to consider the asserted action in lieu of prerogative writs because it was brought against a state agency as opposed to a municipality; (b) there had been no exhaustion of administrative remedies pursuant to the parties' collective bargaining agreement; (c) there were factual disputes as to when the person with authority to file the disciplinary complaint, Chief of Police of NJTPD, obtained sufficient information to file charges; and (d) the disputed factual issues should be addressed by an Administrative Law Judge (ALJ) of the Office of Administrative Law (OAL) during the course of its hearing on the contested charges. We agree with the reasoning of Judge Vichness, and substantially for the reasons he expressed, we affirm. We direct, however, that the order dismissing the complaint be modified to reflect that the dismissal is without prejudice.
Significantly, Webb is a member of the Fraternal Order of Police Lodge #37 (FOP), and the relationship of the parties is, therefore, subject to the terms of a collective bargaining agreement.*fn2 Two articles in the collective bargaining agreement specifically address disciplinary appeals. Section A of Article XIX, entitled "Grievance Procedure" limits the basis for discipline, specifying that "[superior officers] shall not be disciplined or dismissed from service without just cause." Section B of Article XIX mandates that "[a]ny disagreement, dispute or grievance (including discipline) which shall arise between the parties with respect to the interpretation or application of the terms of this Agreement shall be adjusted" by steps leading to final and binding arbitration.*fn3
In addition, Article XLII, entitled "Discipline", applies solely to disciplinary disputes involving NJTPD police officers. Section 1 reiterates that a NJTPD police officer may not be suspended, removed, fired or reduced in rank, except for just cause. Section 2 essentially tracks N.J.S.A. 27:25-15.1c, in that it provides a complaint charging a violation of the internal rules and regulations of the NJTPD must be "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." Section 3 sets forth the procedural rights and limitations that apply when a NJTPD police officer is charged with a disciplinary violation. For example, Section 3(a) prescribes a timetable for a hearing and Section 3(b) provides that NJTPD police officers who are charged "have the right to be represented by Counsel at no cost to NJ T[PD]." Section 3(c) states: "Such transit police officer may waive the right to a hearing and may appeal the disposition (hearing may be held in absentia) directly to any available authority specified by law or regulation, or follow any other procedure recognized by a contract, as permitted by law."
Section 4 provides "A transit police officer who has been tried and convicted upon any disciplinary charge or charges may obtain a review thereof by the Superior Court." That section does not specify in which division of the Superior Court the review is to be obtained.
Two separate sets of disciplinary charges were filed against Webb on November 19 and 20, 2007. Webb contends that both sets of charges were filed well beyond the "45-day rule" set forth in the collective bargaining agreement and in N.J.S.A. 27:25-15.1c. The statute, more fully provides that:
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 ...