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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...