On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3859-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Graves.
Plaintiff Daniel Creange, a Borough of Bogota police officer, was charged with committing several disciplinary infractions arising from a verbal exchange between himself and two civilians. The incident took place at the Borough's police headquarters. After a disciplinary hearing before a panel that included the then mayor of Bogota and several Borough council members, plaintiff was found guilty and ordered to serve an eight-week period of unpaid suspension as a sanction. Plaintiff appealed the disciplinary findings and sanctions in a complaint filed in the Law Division pursuant to N.J.S.A. 40A:14-150. The complaint also included a number of constitutional claims alleging bias and retaliation on the part of the panel members.
While the case was pending before the Law Division, the parties reached a partial settlement agreement. Under this agreement, the constitutional claims were bifurcated and tried before a jury; the disciplinary findings made by the initial hearing panel were vacated and remanded for adjudication before a neutral and presumably impartial hearing officer. A jury thereafter returned a verdict in plaintiff's favor, finding the mayor and several council members retaliated against plaintiff in the initial disciplinary proceeding.
At the second disciplinary hearing, conducted by a retired Superior Court judge, the hearing officer found plaintiff guilty of committing certain disciplinary infractions. By way of sanction, the hearing officer directed that plaintiff receive counseling and be verbally reprimanded. Plaintiff again appealed to the Law Division. This time, he argued that the jury verdict in his favor on the constitutional claims rendered the disciplinary charges against him a nullity on the grounds of res judicata and collateral estoppel. Plaintiff also raised a number of procedural deficiencies in the manner the hearing was conducted. The trial court rejected plaintiff's arguments, upheld the disciplinary conviction, and denied his application for attorneys' fees.
Plaintiff now appeals, raising the same legal arguments rejected by the Law Division. We affirm. Our legal analysis will be informed by the following facts, which we have derived from the record developed before the trial court.
On May 8, 2005, plaintiff was involved in a physical altercation with three individuals at a local bar called the 101 Pub. At the time, plaintiff was off-duty from his job as a Borough police officer. He had suffered torn ligaments in one of his ankles in an accident unrelated to his job as a police officer. He walked with the aide of crutches at the time of the incident. According to plaintiff's deposition testimony, he was attending a fundraiser with his wife and several other people when a man named Mark Rios "[b]umped into [his] body." Plaintiff "told [him] to be careful." In response, Rios was "very apologetic and offered to buy [plaintiff] a drink," which plaintiff declined.
At this point, Rios's brother Matthew Rios and his friend Dave Connolly approached plaintiff and made threatening remarks.*fn1
Shortly thereafter, Matthew Rios struck plaintiff in the back of the head in a manner plaintiff characterized as being "sucker punched," causing him to fall to the ground and sustain minor injuries.
Matthew Rios fled the scene; Mark Rios and Connolly were arrested and brought to the Bogota station house. Plaintiff arrived at the police station sometime thereafter. From the record before us, the parties dispute whether plaintiff went to the station voluntarily to file a complaint against his attackers, or was ordered to do so by a superior officer.*fn2
When plaintiff arrived at the station, he overheard Sergeant Lynch, "laughing and joking" with Mark Rios and Connolly, who were in a holding cell with the door "ajar." According to plaintiff, Rios and Connolly were both intoxicated. Plaintiff became "upset" and "angry" and "hobbled over to the cell door" and, addressing Rios and Connolly, "said something to the effect, 'Ha, ha, you think this is funny'" The two men in the cell then "replied something to the effect, 'Suck my dick. Who do you think you are?'" Plaintiff in turn responded: "Oh, this is funny. Oh. You're dead. You're fucking dead." Plaintiff testified that by this time he was also angry at Sergeant Lynch for the jovial manner he interacted with two men accused of assaulting a fellow officer.
At this point, Jay Fowler, another officer standing nearby, said to plaintiff: "Dan, just let it go. Let it go." Plaintiff responded to Fowler: "Let it go? You want to let it go? They just lumped me up at the pub, and you're not going to let me yell at them?" Also at some point plaintiff asked Rios and Connolly: "Which one of you tough guys sucker punched me?"
According to plaintiff, Rios replied: "It was neither one of us. It was my brother." Plaintiff then responded: "Oh, it was your brother. Tell him I'm going to kick his ass."
As plaintiff left the area near the holding cells, Sergeant Lynch approached him and asked: "What's your problem?" Plaintiff responded: "What's my problem? What's my problem? I just got my ass kicked up at the pub, and you're in here laughing with them . . . That's my problem . . . Instead of laughing, you should have been in there lumping them up." Plaintiff said he was approximately "[e]ight to ten feet" away from the holding cell at the time he yelled these angry statements at Lynch.
On June 17, 2005, the Bogota Police Department issued a formal notice of disciplinary charges against plaintiff, alleging six infractions arising from the verbal exchanges in the police station: (1) conduct unbecoming an officer; (2) treatment of prisoners; (3) conduct toward the public; (4) rules of conduct; (5) public contacts; and (6) obedience to laws and regulations. Plaintiff pleaded not guilty to the charges and requested a disciplinary hearing.
As we stated earlier, these charges were originally prosecuted before a panel consisting of the then mayor and five members of the Borough Council. The mayor and three council members were affiliated with the Republican Party; the other two were Democrats. Plaintiff, an active member of the local Democratic Party, filed a complaint in the Superior Court alleging that his party affiliation, together with his activities on behalf of the police union and several past instances of what plaintiff characterized as "whistle-blowing" (or open criticism of the Bogota Police Department's practices and policies), made it impossible for him to receive a fair and impartial hearing before a panel, as then constituted.
Although not entirely clear as to the reasons, plaintiff conceded that his action in the Superior Court was subsequently "rendered moot" when the two council members he had challenged "voluntarily stepped down" from the hearing panel. The then mayor of Bogota remained as a member of the panel, however. As then constituted, the disciplinary panel held a hearing on March 9, 2006, following which plaintiff was found guilty on five of the six disciplinary charges proffered against him.
A penalty hearing then took place on April 6, 2006, and, on May 4, 2006, the panel imposed upon plaintiff an eight-week unpaid suspension and ordered him to submit to a "full fitness for duty examination, including an anger management assessment component." On June 23, 2006, the trial court granted plaintiff's application for a preliminary injunction, restraining defendants from enforcing the portion of the penalty requiring the fitness for duty examination and anger management counseling until further order of the court. The court, however, denied plaintiff's request to enjoin the imposition of the eight-week suspension.
On June 30, 2006, plaintiff filed an amended*fn3 verified complaint in lieu of prerogative writs against the Borough, the mayor, the council members who served on the disciplinary committee, the Bogota Police Department, and the Chief of Police, alleging that further politically-motivated incidents between himself and the members of the hearing panel had occurred during the pendency of the disciplinary hearing. Plaintiff's complaint was framed as an appeal pursuant to N.J.S.A. 40A:14-150, seeking to overturn the findings and penalty imposed by the disciplinary panel.
Plaintiff also alleged that three of the panel members violated several ethical laws and ordinances by "request[ing] political favors of Plaintiff" during the time that "the disciplinary proceedings were pending." Plaintiff also challenged the entire disciplinary process as a violation of his rights to due process and fundamental fairness.
Plaintiff filed a second amended complaint on March 13, 2007, adding eight additional causes of action: (Count Four) a claim under the Conscientious Employee Protection Act; (Count Five) harassment and retaliation pursuant to 42 U.S.C. § 1983; (Count Six) deprivation of property rights without due process pursuant to 42 U.S.C. § 1983; (Count Seven) violation of 42 U.S.C. § 1985(3); (Count Eight) violation of plaintiff's First Amendment right to free speech; (Count Nine) harassment and discrimination/impermissible medical inquiries pursuant to the New Jersey Law Against Discrimination; (Count Ten) invasion of privacy pursuant to the Fourteenth Amendment and the New Jersey Constitution; and (Count Eleven) intentional infliction of emotional distress.
On May 3, 2007, Mark Rios, Matthew Rios, and Connolly filed their own complaint in the United States District Court of New Jersey, alleging numerous causes of action, including assault and battery, false arrest, false imprisonment, negligence, violation of civil rights, and official misconduct. They named plaintiff, the Borough, the Bogota Police Department, ...