June 1, 2012
SGT. GARY EMENECKER, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
CITY OF CAMDEN AND CAMDEN POLICE CHIEF JOHN SCOTT THOMPSON, DEFENDANTS-RESPONDENTS/ CROSS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-766-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 7, 2012
Before Judges Parrillo and Grall.
Plaintiff Sergeant Gary Emenecker appeals from a September 16, 2010 order of the Law Division denying his application for counsel fees incurred in litigation contesting a disciplinary action taken against him by defendants City of Camden and Camden Police Chief John Thompson. Defendants cross-appeal from the July 29, 2010 judgment finding the Law Division had jurisdiction to hear plaintiff's complaint in lieu of prerogative writs challenging the City's action. We affirm.
The charges that are the subject of the police disciplinary matter underlying this appeal stem from an incident on April 8, 2009, when a subordinate police officer on duty was found asleep in a chair directly behind, and three to five feet from plaintiff, who was the senior officer stationed at the Central Complaint Bureau at the time. On that same date, an investigative report was prepared summarizing the statements of witnesses and recommending a written reprimand of plaintiff.
The matter was then turned over to Captain Albert Handy for review. After consultation with another officer, it was determined that plaintiff would be disciplined at the command (Handy's) level for a minor infraction by way of an oral reprimand. This decision was memorialized in a memorandum by Handy dated May 8, 2009, stating "[t]his letter has been prepared for the purpose of documenting the oral reprimand that has been administered to you for the . . . violation, which occurred on April 8, 2009."
Despite the oral reprimand, on June 2, 2009, the City of Camden Police Department sent plaintiff a Preliminary Notice of Disciplinary Action, charging him with Failure to Properly Supervise Subordinates; or to Prefer Disciplinary Charges; or to Take Other Appropriate Disciplinary Action in violation of Chapter 8, Rule 8.1.33 of the City of Camden Rules and Regulations. After receipt of the notice, plaintiff requested a departmental hearing and when one was scheduled on December 9, 2009, plaintiff moved to dismiss because he had already been disciplined for these charges, as evidenced by the May 8, 2009 memo. Plaintiff's motion was denied.
On December 23, 2009, a final notice of discipline was sent to plaintiff by Camden Police Chief John Scott Thompson, sustaining the charges and issuing a fine of $1,814.00, equal to five days pay. Pursuant to written procedures of the City of Camden Police Department, plaintiff appealed to the City Business Administrator, who summarily denied the appeal.
Thereafter, on February 9, 2010, plaintiff filed a complaint in lieu of prerogative writs in the Law Division, pursuant to Rule 4:69. In the first of four counts, plaintiff alleged that the Chief of Police "has directed, and acquiesced in the behavior of the Internal Affairs Department in failing to follow the mandates of the AG Guidelines" by "failing to conduct [an] investigation and issuing discipline without the required investigation by directing and signing charges against . . . Plaintiff where either no investigation or an inadequate and/or incomplete investigation into the charges has been done." Plaintiff demanded judgment with an order "(a) for writs of mandamus and certiorari ordering . . . Defendants . . . to rescind the discipline imposed upon Plaintiff and remove the discipline from his permanent record; (b) reinstating any/all benefits which should have been paid and accrued to Plaintiff since the Final Notice of Discipline was issued; (c) declaring invalid any conditions imposed by defendants which violate and/or are contrary to the laws of the State of New Jersey and the AG Guidelines; (d) an order enjoining Defendants . . . from imposing discipline without full and complete compliance with the Attorney General Guidelines; (e) for . . . counsel fees and costs; [and] (f) for other such relief as this court deems equitable and just."
Plaintiff then moved to proceed summarily and defendants cross-moved to dismiss for want of jurisdiction. The trial judge denied both applications. As to the latter, the judge found that review was permitted under Romanowski v. Twp. of Brick, 185 N.J. Super. 197 (Law Div. 1982), aff'd, 192 N.J. Super. 79 (App. Div. 1983), and Cermele v. Twp. of Lawrence, 260 N.J. Super. 45 (App. Div. 1992).
A two-day bench trial ensued, wherein Captain Handy confirmed that he handled the discipline of plaintiff in a memo dated May 8, 2009, though he did not send notification of the reprimand to Internal Affairs or the Chief of Police. Nor did the Lieutenant, who discussed plaintiff's file with the Chief, ever advise the Chief that Handy was going to take disciplinary action against plaintiff. According to a third witness - the then Commander of the Internal Affairs Division - the decision was to only reprimand plaintiff with a minor infraction at the command level and the Chief did not receive notice of this action because departmental policy and procedure required neither the Chief's approval nor notification of discipline for minor infractions.
Following close of evidence, in an order of August 4, 2010, memorializing his oral decision of July 29, 2010, the judge vacated the Final Notice of Discipline imposing the $1,814 fine, ordered the City of Camden to reimburse plaintiff that amount, and directed the oral reprimand be forwarded to Internal Affairs and be made "part of plaintiff's permanent record . . . ." First addressing the jurisdictional issue, the judge, citing Romanowski, supra, stated in his oral decision, that "[t]he defendant township [in Romanowski], like the City in this case, is subject to the Civil Service Act. . . . Accordingly, the court determined that under the umbrella of actions in lieu of prerogative writs they had a legal right to have their case reviewed . . . ."
Proceeding then to the merits, the court found that "the appropriate discipline . . . is an oral reprimand[,]" given that plaintiff was not the offending officer's direct supervisor; plaintiff was standing behind the offending officer, but was speaking with a suspect at the time the officer was found sleeping; and when last observed only moments before, plaintiff observed the officer to be "awake and alert." The judge further concluded that under departmental procedure, it is permissible for the commanding officer to issue an oral reprimand without the Chief's authority and approval and that "an officer once disciplined cannot be disciplined again for the same offense." And while Captain Handy failed to forward the May 8th memo documenting the oral discipline to Internal Affairs and the Chief, plaintiff should not be punished for this failure.
Following the court's August 4, 2010 order, plaintiff moved for counsel fees and costs under N.J.S.A. 40A:14-155. Defendants opposed the application and on September 16, 2010, the court denied the motion, reasoning:
A municipality's agreement not to further pursue disciplinary charges does not entitle the police officer to reimbursement for expenses incurred in connection with disciplinary proceedings.
Only exoneration of the officer will entitle him to reimbursement of legal expenses under the statute. The disposition in the police officer's favor means exculpation and not some lesser degree of success.
In this particular case, I determined that the appropriate level of discipline was an oral reprimand, not a five-day suspension.
The officer was not successful, completely successful. He was not completely exonerated of the charges against him. The fact that there may have been some preliminary discussions and negotiations between the officer's counsel and city counsel about the appropriate level of discipline is of no moment. The officer has to be completely exonerated. And that was one of the positions being advocated by counsel on behalf of Sergeant Emenecker.
That there was no evidence that he had violated any of the rules or regulations. That the other officer who was found to have been asleep on duty was not within his spared vision and that he should be completely exonerated from the charges. That was part and parcel of the hearing before me.
In essence, counsel was not only challenging the decision of Chief Thompson, but they were challenging the discipline imposed by Captain Handy as well. . . .
[T]he fact that they were saying we're willing to live with Captain Handy's discipline is of no -- they were challenging that as well in the hearing before me.
Plaintiff appeals, arguing that as a successful party, he was entitled to attorney's fees under N.J.S.A. 40A:14-155 and the collective bargaining agreement. Defendant cross appeals, challenging the Law Division's assertion of jurisdiction in the matter. We address the threshold question first.
Defendants argue that the Law Division has no jurisdiction over a minor police disciplinary matter involving a civil service employee in a civil service jurisdiction. We disagree.
Under N.J.S.A. 11A:2-16,
[i]f a State employee receives a suspension or fine of five days or less, the employee may request review by the Civil Service Commission under standards and procedures established by the Civil Service Commission or appeal pursuant to an alternate appeal procedure where provided by a negotiated contract provision. If an employee of a political subdivision receives a suspension or fine of five days or less, the employee may request review under standards and procedures established by the political subdivision or appeal pursuant to an alternate appeal procedure where provided by a negotiated contract provision.
Further, under applicable standards and procedures of the City of Camden Police Department, as set forth in Section III.
E. 7 of General Order 2003-001: Minor Disciplinary Actions
f. Employees facing minor disciplinary action shall not be entitled to a hearing, however, may file a written appeal with the City Business Administrator. Any appeals of adverse minor disciplinary action must be in writing within 20 days of receiving the Notice of Minor Disciplinary Action. The City Business Administrator shall render the final administrative decision on all appeals concerning minor disciplinary action. In rendering such final administrative decision the Business Administrator may uphold, increase or decrease the penalty imposed.
g. Employees shall have no right to appeal to the New Jersey Department of Personnel Merit System Board, except that in cases where an employee's aggregate number of days suspended or fined in any calendar year is fifteen or more or where an employee receives more than three suspensions or fines of five or less days in a calendar year . . . .
As the above provisions make clear, the decision of the City Business Administrator in minor disciplinary matters is the final administrative action of the municipality and no further appeal to the Civil Service Commission is permitted. As such, under Rule 4:69, review de novo is had in the Law Division by way of an action in lieu of prerogative writs.
In Romanowski, supra, we adopted Judge Havey's determination that an employee is entitled to a trial de novo in the Law Division where the municipal penalty is five days or less, and there is thus no right to a de novo hearing by the Civil Service Commission. 192 N.J. Super. 79; accord Cermele, supra, 260 N.J. Super. at 48; Hall v. Mayor & Dir. of Pub. Safety of Pennsauken, 170 N.J. Super. 307, 309-10 n.1 (Law Div. 1979), rev'd on other grounds, 176 N.J. Super. 229 (App. Div. 1980). In Cermele, supra, we found the "right of review is constitutional, established by the N.J. Const. of 1947, art. VI, § 5, [§] 4, which gives such jurisdiction to the Superior Court, and by R[ule] 4:69-1 establishing venue in the Law Division." 260 N.J. Super. at 48. And in Romanowski, supra, we found that the inherent power of review by the Law Division permitted granting a hearing de novo for review of five-day and three-day suspensions of plaintiff police officers who were employed by a municipality subject to Civil Service Act. 192 N.J. Super. 79. We adopted the reasoning of the Law Division, which held:
[t]he power of this court to review the findings below is in the common law writ of certiorari, which is available to persons whose rights are invaded by acts of persons clothed with authority to act but who exercise such authority illegally. The power includes the appellate review of improper acts by municipal officers and boards. The action in lieu of prerogative writs (certiorari) was established pursuant to N.J. Const. [of] 1947, Art. VI, §
, [¶] 4, and implemented by R[ule] 4:69 which frames the inherent power to the Superior Court, Law Division, to provide "review, hearing and relief." The writ of certiorari is predominately a mode of review of errors of law which are apparent on the face of the record or proceeding made by a quasi-judicial tribunal. As such it is predominately an appellate form of relief.
The trial court's function is usually to review the record made below without supplemental testimony and if the record is inadequate, to remand for the purpose of establishing a proper record. But our courts have not hesitated to expand the use of the common law writ, which was one of limited utility, "serving merely to bring up a record of an inferior court or of certain of its officers. . . ." Modern decisions paved the way "for enlarging the scope of certiorari far beyond the mere review of the judicial action of inferior courts so as to reach official misconduct in many fields." [Romanowski, supra, 185 N.J. Super. at 203-04 (internal citations omitted).]
Here, plaintiff appealed the defendants' disciplinary measure of a fine in the amount of his pay for five days to the City Business Administrator, who summarily denied the appeal. It was from that final administrative action of the municipality that plaintiff pursued the matter in the Law Division, having no other administrative remedy to exhaust. As such, the Law Division properly exercised its jurisdiction over plaintiff's prerogative writs complaint.
Having properly exercised its jurisdiction over the matter, the court also correctly denied plaintiff's application for counsel fees.
"New Jersey generally follows the 'American Rule,' under which a prevailing party cannot recover attorney's fees from the loser." Mason v. City of Hoboken, 196 N.J. 51, 70 (2008); see also Rendine v. Pantzer, 141 N.J. 292, 322 (1995). "Fees may be awarded, however, when a statute, court rule, or contractual agreement provides for them." Mason, supra, 196 N.J. at 70. Under N.J.S.A. 40A:14-155 "[i]f any such disciplinary or criminal proceeding instituted by or on complaint of the municipality shall be dismissed or finally determined in favor of the member or officer, he shall be reimbursed for the expense of his defense."
The statute under which plaintiff claims entitlement to counsel fees requires that the disciplinary proceeding instituted by the municipality be dismissed or finally determined in favor of the police officer. As noted by the trial judge, neither of these predicates have been satisfied here.
In Marjarum v. Twp. of Hamilton, 336 N.J. Super. 85 (App. Div. 2000), a police officer was charged with violating the municipal police code after getting into a heated confrontation at a neighborhood crime watch meeting. Id. at 89. He was given a six day suspension, which he did not serve, as he retired. Ibid. After appealing the sanction, he was found guilty but the matter was ordered expunged. Id. at 92. We denied his request for counsel fees, stating that "an expungement is not the equivalent of an acquittal of criminal charges . . . [and] that a municipality's agreement not to further pursue disciplinary charges does not entitle the police officer to reimbursement for expenses incurred in connection with a disciplinary hearing." Id. at 94 (internal citations omitted).
Similarly here, the judge's August 4, 2010 order clearly directed that "discipline of an oral reprimand is imposed" and "shall be forwarded to Internal Affairs and made a part of [plaintiff's] permanent record . . . ." In other words, plaintiff was neither vindicated nor absolved of the disciplinary charges for which he was found guilty. Nor were the disciplinary proceedings against him dismissed or finally and completely resolved in his favor, as the statute requires as a prerequisite for reimbursement of fees and costs. N.J.S.A. 40A:14-155.
Rather, the penalty imposed by defendants was vacated and the original sanction of an oral reprimand was reinstated and, for the first time, made part of plaintiff's permanent employment record. If only on account of the latter, plaintiff cannot claim final and total vindication. And while he contends he never appealed the oral reprimand or the underlying guilty determination, the judge, who presided over plaintiff's prerogative writs action, found otherwise, and for good reason. Plaintiff's prerogative writs complaint alleged facts challenging not only his culpability but the administrative procedures (or lack thereof) employed in reaching the guilty determination. And in his certification in support of his motion in the Law Division to proceed summarily, plaintiff claimed:
[t]he Camden City Police Department has failed to follow the requirements of the Attorney General Guidelines in conducting a full and complete investigation. As the testimony at the hearing revealed that: (1) Emenecker was actively working at his station when the incident occurred; (2) McCray was observed by Babnew alert and awake only 20 seconds prior to the Inspector walking in; (3) Sgt. Emenecker's back was to officer McCray when McCray was observed sleeping; (4) No testimony from anyone revealed that Emenecker observed McCray asleep and failed to take action.
As these documents make clear, plaintiff was challenging not only the fine assessed against him but the very reason for the discipline as well. Inasmuch as the adjudication of guilt was not disturbed and only the sanction reduced, plaintiff has not satisfied the statutory prerequisites to an award of counsel fees and costs.
For the very same reason, plaintiff is not entitled to attorney's fees under the collective bargaining agreement (CBA) governing members of the Camden Organization of Police Superiors, of which he is a member. Under Article XX, Section 19 of the CBA "[t]he City will reimburse the bargaining unit for all fees and costs associated with the successful appeal of disciplinary actions." Although not raised below and therefore not cognizable on appeal, N.J. Div. of Youth & Family Serv. v. M.C. III, 201 N.J. 328, 339 (2010), we nevertheless consider plaintiff's argument based on the CBA, and reject it because, as already noted, plaintiff did not prosecute a successful appeal. While "a collective bargaining agreement between a non-civil service municipality and its police officers also could provide for reimbursement of counsel fees for officers who have disciplinary charges dismissed or resolved in their favor[,]" Oches v. Twp. of Middletown Police Dep't, 155 N.J. 1, 8-9 (1998), the charges here were neither dismissed nor resolved in plaintiff's favor, but rather affirmed and memorialized as part of his permanent record. Having established neither a statutory nor contractual right to counsel fees, the trial judge properly denied plaintiff's application for same.
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