On appeal from the New Jersey Transit Police Department.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges J.N. Harris and Haas.
This case returns to us after remand proceedings directed by our previous opinion. Webb v. N.J. Transit Corp., No. A-4263-08 (App. Div. Feb. 23, 2011). On remand, the New Jersey Transit Police Department ("NJTPD") issued a supplemental disciplinary decision, which found that plaintiff Melvin Webb was properly charged with an internal rule violation within forty-five days of when the NJTPD obtained sufficient information to file a complaint. Webb appeals, claiming that the NJTPD erred. After reviewing the record in light of the contentions advanced on appeal, we affirm.
We begin by referencing the essential background facts as set forth in our earlier opinion. Webb is employed as a sergeant in the NJTPD. Id., slip op. at 1. On September 5, 2007, Webb answered a call to assist a fellow officer with a disorderly persons suspect who was acting aggressively towards officers. Id., slip op. at 7. The suspect was arrested and, as he was being processed, not only maintained his aggressive behavior, but also continuously spat at the officers. Ibid. This prompted the officers to place a medical mask on the suspect's face. Ibid. Each time, however, the suspect, though handcuffed, was able to remove the mask. Ibid. Eventually, Webb instructed the subordinate officers to cover the suspect's mouth with duct tape. Ibid. An investigation ensued and, on November 26, 2007, Webb was served with a charge that alleged "violation of Rules and Regulations 7.12, Unsatisfactory Performance." Id., slip op. at 8. After a hearing, the NJTPD found Webb guilty of this charge and imposed a penalty of a oneday suspension, which the NJTPD would credit from the balance of Webb's accrued compensation days.
In his prior appeal, Webb challenged the timeliness of this disciplinary action under N.J.S.A. 27:25-15.1c, which provides that a disciplinary charge 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." Ibid. At that time, however, he had not yet exhausted his administrative remedies. Id., slip op. at 12-13. Thus, we remanded the matter to the NJTPD for the issuance of a final decision on the question of whether the charge had been filed in compliance with the forty-five day rule. Id., slip op. at 15-16.
In its supplemental disciplinary decision, the NJTPD found that, four days after the September 5, 2007 incident, Webb's immediate supervisor, Captain Amberg, submitted an investigative report to his supervisor, Captain Edward Iandoli. Thereafter, Iandoli reviewed all of the relevant documents, watched a videotape of the incident, and interviewed Webb and the other officers involved. The interviews were completed on October 1, 2007. On October 24, 2007, Iandoli submitted a written report of his findings to the Chief of the NJTPD, Joseph Bober. Bober reviewed the report and, on November 20, 2007, he charged Webb with unsatisfactory performance. The charge was served upon Webb on November 26, 2007. Because the charge had been filed and served within forty-five days of Bober's receipt of Iandoli's October 24, 2007 report, the NJTPD found that it had complied with the forty-five day rule. This appeal followed.
On appeal, Webb's primary argument is that the charge should have been dismissed because "it violates the provisions of N.J.S.A. 27:25-15.1c as the charges preferred against [him] were filed outside the statute of limitations provided by statute." The statute provides that an NJTPD officer may not be suspended unless a complaint charging a violation of [NJTPD] 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. [N.J.S.A. 27:25-15.1c.]
Here, the incident where Webb ordered that a disorderly persons suspect's mouth be duct taped occurred on September 5, 2007. Because he never disputed what had occurred, and because he submitted a report on that date detailing his involvement, Webb asserts that the forty-five period began running on that date. Alternatively, Webb argues that the limitations period began, at the very latest, on September 9, 2007, when Iandoli received Amberg's report. Considering the specific language of the statute, however, we reject Webb's argument.
As our Supreme Court observed in reviewing an analogous statute that applied to charges involving State Troopers, "it 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) (quoting N.J.S.A. 53:1-33). Here, that person was Chief Bober. Bober did not obtain "sufficient information" to file the complaint until October 24, 2007, when he received the results of Iandoli's investigation. The complaint, filed by Bober on November 20, 2007, and served upon Webb on November 26, 2007, clearly met the statutory requirement.
Contrary to Webb's arguments, neither Amberg nor Iandoli were authorized to file a complaint charging him with a violation of the NJTPD's rules and regulations. Pursuant to the NJTPD's Internal Affairs Policy and Procedures, Amberg, as Webb's immediate supervisor, was not even authorized to investigate the incident because, as stated in the Policy and Procedures, "[i]t is often difficult for an immediate supervisor to objectively investigate a subordinate." Instead, the matter had to be referred to Iandoli, Amberg's supervisor, to conduct an investigation. The Policy and Procedures require that this investigation include interviews with "the complainant, all witnesses and the subject officer," together with a review of all "relevant reports and documents." The investigator, in this case Iandoli, is then required to "submit a report to the law enforcement executive or appropriate supervisor summarizing the matter and indicating the appropriate disposition." ...