On appeal from the Department of Law and Public Safety, Division of State Police, Agency No. 2009-0027.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 25, 2012
Before Judges Cuff and Waugh.
In this appeal, we review a final decision of the Superintendent of the State Police imposing a 120-day suspension on appellant Detective Sergeant Christine Shallcross. She argues that N.J.S.A. 53:1-33 bars the imposition of discipline for events that occurred in November 2005 and were subject to an equal employment opportunity (EEO) investigation within the Division of State Police in 2006.
Having thoroughly examined the record in this matter and the briefs submitted by both parties, we hold that the decision of the Superintendent to discipline appellant and the terms of the discipline are supported by sufficient credible evidence in the record as a whole. R. 2:11-3(e)(1)(D). We add the following brief comments regarding appellant's contention that N.J.S.A. 53:1-33 bars this disciplinary action.
N.J.S.A. 53:1-33 provides in relevant part:
A complaint charging a violation of the internal rules and regulations established for the conduct of the State Police shall 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 . . . .*fn1 N.J.S.A. 53:1-10 charges the Superintendent to "make all the rules and regulations for the discipline and control of the state police." The State Police Rules and Regulations further provide "that the Superintendent is to be apprised of any regulatory violations and may order investigations . . . , issue 'written reprimand[s]' or '[o]rder that charges be prepared against [a State trooper] and that a disciplinary hearing be held.'" Div. of State Police v. Maguire, 368 N.J. Super. 564, 570 (App. Div.) (alterations in original) (quoting N.J. State Police Rules & Regulations, art. I, §§ 1-2, art. II § 3), certif. denied, 181 N.J. 545 (2004). As the designated authority on disciplinary matters within the Division, the Superintendent "has authority to bring discipline charges against State troopers." Ibid.
The Superintendent is the only "person filing the complaint" within N.J.S.A. 53:1-33, and, thus, is the only person who can trigger the forty-five day rule. "[O]nly the Superintendent can file a [disciplinary] charge . . . ." Roberts v. Div. of State Police, 191 N.J. 516, 524 (2007); see also DeBenedictis v. Div. of State Police, 381 N.J. Super. 233, 237 (App. Div. 2005) (holding that "the forty-five day period for issuance of a complaint against a trooper runs from the date the Superintendent of the Division of State Police acquires sufficient information to file and serve the complaint").
The statute does not define "sufficient information," but case law provides some guidance regarding the circumstances that trigger the forty-five day rule. In Maguire, charges were filed by the Division of State Police against a state trooper over one hundred days after the occurrence of the underlying incident. 368 N.J. Super. at 570. We held that the forty-five day rule "began to run in this matter . . . when the Superintendent received the investigative report." Ibid. In Roberts, the Court also found that the Superintendent's receipt of the investigative report satisfied the requirement of "sufficient information" for purposes of the forty-five day rule. 191 N.J. at 524.
Here, the Superintendent acknowledges that an EEO investigation occurred regarding several incidents that took place over a few days in November 2005. The record also demonstrates that the investigation did not recommend any disciplinary action against appellant. The matter was never presented to the Superintendent. However, in January 2009, a member of the State Police filed a complaint against appellant. An investigation commenced and an investigation report was submitted to the Superintendent. Only then did the Superintendent learn of the charges. The Superintendent authorized the filing of disciplinary charges the day after the investigation report was submitted to him. Appellant received the disciplinary charge on December 31, 2009. The Superintendent filed the charges well within the forty-five day period required by N.J.S.A. 53:1-33.
Implicit in appellant's argument is the contention that N.J.S.A. 53:1-33 bars reopening of disciplinary cases no matter the good faith of the person seeking redress or the quality of the newly presented evidence of wrong-doing. We cannot accept such a cramped interpretation of the statute.