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Hatem Wahba v. Franklin Township

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 11, 2012

HATEM WAHBA, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
FRANKLIN TOWNSHIP, DEFENDANT-RESPONDENT/ CROSS-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-287-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 25, 2012

Before Judges Yannotti, Harris, and Hoffman.

This appeal and cross-appeal arise from Franklin Township's decision to discharge police officer Hatem Wahba following an administrative disciplinary hearing. The primary issue on appeal is whether the Law Division properly applied the forty- five-day limitation of actions provision of N.J.S.A. 40A:14-147. Specifically, Wahba challenges the trial court's finding that the municipality filed disciplinary charges against him within the forty-five-day statutory period following the disposition of an investigation by the Hunterdon County Prosecutor's Office (the Prosecutor). The Township's cross-appeal stems from the trial court's dismissal of certain other disciplinary charges against Wahba that were untimely filed.

We have considered the parties' arguments together with the applicable law, and we conclude that Judge Peter A. Buchsbaum's analysis and decision were correct. We affirm for substantially the reasons expressed in his September 6, 2011, comprehensive sixty-three-page written opinion. We add only the following brief comments.

Wahba was accused by the Township of (1) traffic ticket-fixing activities in April 2005, and (2) giving false statements to the Prosecutor's investigators in October 2008. Although the Township's Director of Public Safety (the Director) was aware of the ticket-fixing allegations against Wahba as early as 2005, he relied upon assurances from Wahba that he was not involved, and took no further action at that time. It was not until September 2008, when another police officer became interested in the events of 2005 and initiated an investigation, that the Prosecutor became involved. Over the next several months, the Prosecutor's investigators examined evidence and interviewed several witnesses. However, these inquiries failed to produce sufficient evidence of criminality and resulted in an administrative decision in March 2009 "to not authorize criminal charges and to refer the case back to Franklin Township Police Department for administrative charges." This decision was orally communicated to the Director, and was confirmed in an April 14, 2009 letter from the Director to the Prosecutor's chief of detectives.

In that letter, the Director noted the following: "I realize that you are still waiting for a piece of evidence[*fn1 ] to return from the State Police lab before you can officially close your investigation." Moreover, a June 12, 2009 e-mail from the chief of detectives to the Director concluded: "The case is not considered closed."

Finally, on July 2, 2009, the chief of detectives informed the Director that "a discovery package has been completed for you," and was available to be picked up for the sole purpose of an administrative investigation by the Township. A subsequent undated letter authored by the chief of detectives indicated that the "investigation was officially closed by [the Prosecutor] on July 2, 2009, at which time a complete discovery package was provided to [the Director]."

On August 14, 2009 the Township filed eleven disciplinary charges against Wahba. Four charges related to events alleged to have occurred in 2005, and the remaining seven charges alleged misconduct that occurred in 2008. A hearing officer found that the Township had satisfied its burden of proof on three 2005 charges and five 2008 charges. The Township adopted the hearing officer's findings and terminated Wahba's employment.

Wahba sought de novo review in the Law Division pursuant to N.J.S.A. 40A:14-150. After a non-testimonial trial, Judge Buchsbaum dismissed the remaining 2005 charges, finding that the Township (through its police department and Director) "had sufficient information to bring charges against . . . Wahba in 2005." The judge further found that "the life span of a [Prosecutor's] criminal investigation to be broad in scope, from beginning to end." Accordingly, he ruled that "the [Prosecutor's] investigation did not close until the [Prosecutor] received the computer back from the forensic analyst and allowed [the Township] to pick up its copy of the

[P]rosecutor's file." Calculating from July 2, 2009, Judge Buchsbaum found the Township's August 14, 2009 filing of the 2008 charges to be timely.*fn2 The appeal and cross-appeal followed, which both limit their challenges to the judge's interpretation and application of N.J.S.A. 40A:14-147's limitation of action provision.

The forty-five-day rule of N.J.S.A. 40A:14-147 offers "a simple and uncomplicated procedural mechanism for the handling of administrative charges against a police officer." Grubb v. Borough of Hightstown, 331 N.J. Super. 398, 405 (App. Div. 2000). In relevant part, the statute provides:

A complaint charging a violation of the internal rules and regulations established for the conduct of a law enforcement unit 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. The 45-day time limit shall not apply if an investigation of a law enforcement officer for a violation of the internal rules or regulations of the law enforcement unit is included directly or indirectly within a concurrent investigation of that officer for a violation of the criminal laws of this State. The 45-day limit shall begin on the day after the disposition of the criminal investigation.

[N.J.S.A. 40A:14-147.]

Accordingly, the 2008 charges must have been filed no later than forty-five days after the "disposition of the criminal investigation" by the Prosecutor. Grubb, supra, 331 N.J. Super. at 405. We are in accord with Judge Buchsbaum's "bright-line" reasoning for deciding when the forty-five days began. This rationale fosters the legislative goal of ease of administration of the statute and allows all interested parties to plan accordingly. Finding nothing in the record of this case to suggest pretext or other manipulation of the forty-five-day rule, we are unswayed by Wahba's arguments.

On the Township's cross-appeal, we discern no basis to depart from Judge Buchsbaum's finding that the Township had sufficient information in 2005 to bring departmental charges against him stemming from the alleged ticket-fixing. The judge's conclusion that "[a]ny other result would change the accrual time of N.J.S.A. 40A:14-147 from the time of 'sufficient information' to the time 'when the department feels motivated to investigate the issue'" is supported by law and the credible evidence in the record. See In re Phillips, 117 N.J. 567, 578 (1990).

Affirmed.


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