On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1436-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Kennedy
Robert Randolph (Randolph) appeals an order of the trial court dismissing his complaint with prejudice. For reasons which follow, we vacate the trial court's order and remand with instructions to dismiss the complaint without prejudice.
Randolph is employed as an Assistant District Parole Supervisor by the New Jersey Juvenile Justice Commission (JJC), a state agency "in, and not of" the Department of Law and Public Safety, N.J.S.A. 52:17B-170(a), subject to the Civil Service Act, N.J.S.A. 11A:1-1 to 12-6. As a result of several investigations, Randolph received four major disciplinary charges between June 11, 2009 and September 16, 2009. The substance of each of the disciplinary charges is not germane to our disposition, but we note that the charges were serious and three of them specified removal from employment as the proposed penalty. Each notice was signed by Felix Mickens, deputy executive director of the JJC.
Randolph filed a "notice of appeal" upon receipt of each disciplinary notice and sought a departmental hearing on the charges pursuant to N.J.A.C. 4A:2-2.5(c). He subsequently engaged counsel, obtained discovery and his counsel embarked on a series of "negotiations" with JJC representatives in an effort to resolve the charges without a hearing. The record reveals generally that several departmental hearing dates were adjourned during this period.
Randolph's counsel claimed that as of April 2010, he had negotiated a "settlement" of all the disciplinary charges with a JJC representative authorized to approve such a settlement. Gayle Mazuco, an assistant deputy attorney general and director of the Office of Legal Affairs and Employee Relations, asserted, however, that she had specifically disapproved of any proposed settlement and instructed the JJC representative to so advise Randolph's counsel. It is undisputed that counsel was advised that the settlement was disapproved and by letter dated May 12, 2010, Randolph was told that the departmental hearing on the charges had been scheduled for July 7, 2010.
Believing that a settlement had been reached with the JJC and that the "disapproval" was simply an unenforceable rejection of a binding agreement, Randolph's counsel filed a summary action in the Law Division against the JJC seeking to enforce the alleged settlement. The JJC, represented by the Office of the Attorney General, postponed the departmental hearing at the request of Randolph's counsel and thereafter filed a motion to dismiss the complaint.
On September 29, 2010, the trial judge, apparently employing a summary judgment standard, found there was no enforceable settlement agreement and on the same date issued an order dismissing the verified complaint with prejudice. Randolph thereafter filed this appeal.
At oral argument, we were advised that Randolph is in the process of challenging the disciplinary charges on the administrative level. Counsel for Randolph stated that departmental hearings have been held and the parties are now before the Office of Administrative Law on the substance of the charges.
It is clear that Randolph having detoured from the administrative process by filing a summary action in the Law Division, not only has failed to exhaust his administrative remedies but also has inappropriately invoked jurisdiction in the Law ...