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Daniel Creange, Police Officer v. Borough of Bogota

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 18, 2013

DANIEL CREANGE, POLICE OFFICER, BOROUGH OF BOGOTA, PLAINTIFF-APPELLANT,
v.
BOROUGH OF BOGOTA, DEFENDANT-RESPONDENT, AND MAYOR STEVEN LONEGAN, COUNCIL MEMBERS MELISSA SCHNIPP, PATRICIA KEARNS, JOSEPH NOTO AND FORMER COUNCILWOMAN GLORIA DODGE-SCALZO, BOGOTA POLICE DEPARTMENT, AND CHIEF OF POLICE FRANK GURNARI, DEFENDANTS.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3859-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 5, 2011

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.

I

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, and several other officers as defendants. The Borough represented plaintiff in that action.*fn4

Rejecting plaintiff's arguments against bifurcation, on May 11, 2007, the Law Division bifurcated Counts One, Two, and Three*fn5 from the remainder of the claims in plaintiff's second amended complaint. On January 7, 2008, the parties agreed to a partial settlement through which Count One and Count Two of the second amended complaint were declared moot and dismissed with prejudice. The consent order memorializing this settlement agreement provided that the matter was to be remanded for a new disciplinary proceeding. Consequently, the findings made by the original disciplinary panel and the penalties imposed (eight-week suspension without pay and fitness for duty examination) were vacated and rescinded. The order further stated, in relevant part, as follows:

ORDERED that the intent of this settlement and Order is to return the matter to the point wherein charges were preferred against Officer Creange pursuant to a Notice of Disciplinary Charges on or about June 17, 2005 but prior to any disciplinary hearing pursuant to said charges; and it is further

ORDERED that because the matter is being remanded for a new hearing, Count

Three of the Second Amended Complaint alleging a "Violation of the New Jersey State Constitution, Article 1, Paragraph One, Violation of Due Process and Fundamental Fairness" is presently hereby deemed moot by virtue of the remand insofar as the allegations relate to the prior hearing; and it is further

ORDERED to the extent there will be a new hearing plaintiff reserves all rights pursuant to the New Jersey State Constitution, Article 1, Paragraph One, Violation of Due Process and Fundamental Fairness in reference to the said new hearing, and Count Three is, therefore, dismissed without prejudice; and it is further

ORDERED that there has been no determination on the merits in favor or against any of the parties regarding any of the allegations contained in Counts One, Two or Three of the Second Amended Complaint and no res judicata effect shall attach to the dismissals pursuant to this Order; and it is further

ORDERED that all parties are deemed to have specifically reserved any procedural or substantive issues they may have in regards to the underlying Internal Affairs Investigation during any subsequent hearing of the disciplinary charges . . . .

II

The second disciplinary hearing commenced on September 18, 2008, before a retired Superior Court judge acting as the sole hearing officer, and continued for four more non-sequential days. The hearing officer ultimately found plaintiff guilty of all six charges proffered against him, and imposed a penalty of departmental counseling and an oral reprimand. On April 16, 2009, the Borough passed a resolution adopting the hearing officer's findings and the sanctions he recommended. Plaintiff thereafter appealed to the Law Division in a complaint in lieu of prerogative writs, naming the Borough as the sole defendant.

Contemporaneous to the second disciplinary hearing, plaintiff pursued his statutory and constitutional claims against defendants before the Law Division and a jury. On July 10, 2009, the jury in that case returned the following verdict:

1. Do you find that Plaintiff, Daniel Creange, has proven by a preponderance of the evidence that Defendant, Borough of Bogota and/or Defendants, former Mayor Steven Lonegan, former Councilwoman Melissa Schnipp, former Councilwoman Gloria Dodge-Scalzo, former Councilwoman Patricia Kearns, former Councilmember Joseph Noto and/or Chief of Police Frank Gurnari had retaliated against Plaintiff by subjecting him to a disciplinary process and by disciplining him in violation of Plaintiff's right to Free Association?

a. Borough of Bogota Yes ___ No _X_ Vote: 5-1

b. Former Mayor Steven Lonegan Yes _X_ No ___ Vote: 6-0

c. Former Councilwoman Melissa Schnipp Yes _X_ No ___ Vote: 6-0

d. Former Councilwoman Gloria Dodge-Scalzo Yes _X_ No ___ Vote:6-0

e. Former Councilwoman Patricia Kearns Yes _X_ No ___ Vote: 6-0

f. Former Councilman Joseph Noto Yes ___ No _X_ Vote: 6-0

g. Chief Frank Gurnari Yes ___ No _X_ Vote: 6-0

2. Do you find that Plaintiff, Daniel Creange, has proven by a preponderance of the evidence that Defendant, Borough of Bogota and/or Defendants, former Mayor Steven Lonegan, former Councilwoman Melissa Schnipp, former Councilwoman Gloria Dodge-Scalzo, former Councilwoman Patricia Kearns, former Councilmember Joseph Noto and/or Chief of Police Frank Gurnari had retaliated against Plaintiff by subjecting him to a disciplinary process and by disciplining him in violation of Plaintiff's right to Free Speech?

a. Borough of Bogota Yes ___ No _X_ Vote: 5-1

b. Former Mayor Steven Lonegan Yes _X_ No ___ Vote: 6-0

c. Former Councilwoman Melissa Schnipp Yes _X_ No ___ Vote: 6-0

d. Former Councilwoman Gloria Dodge-Scalzo Yes ___ No _X_ Vote:6-0

e. Former Councilwoman Patricia Kearns Yes ___ No _X_ Vote: 6-0

f. Former Councilman Joseph Noto Yes ___ No _X_ Vote: 6-0

g. Chief Frank Gurnari Yes ___ No _X_ Vote: 6-0

3. What sum of money will fairly and reasonably compensate Plaintiff Daniel Creange for the damages he sustained as a proximate result of the violation of his right to Free Association and/or his right to Free Speech? $15,000 Vote: 6-0 Following receipt of this jury verdict, plaintiff moved for summary judgment, seeking the dismissal of the disciplinary charges and asking for an award of attorneys' fees and costs. Plaintiff argued that the jury verdict entitled him to "a complete dismissal of the charges, with prejudice, as a matter of law, pursuant to the doctrines of res judicata and offensive collateral estoppel." According to plaintiff, dismissal of the disciplinary charges was required because the adjudicative process employed by the retired Superior Court judge acting as the hearing officer violated his right to due process and fundamental fairness.

The trial court denied plaintiff's motion for summary judgment and for an award of attorneys' fees and costs. The motion judge stated his reasons in a written statement, which we now quote at length:

Based upon the submissions of the parties and the governing standard for summary judgment, the Court hereby finds that Summary Judgment is denied. The Court determines that the doctrines of collateral estoppel and res judicata do not apply here because the Court finds that the issue litigated in the jury trial was not the same as that heard in the disciplinary hearing.

Additionally, the Court finds that Plaintiff is not entitled to dismissal of the charges in accordance with O'Rourke v. Lambertville, 405 N.J. Super. 8 (App. Div. 2008), cert. denied, 198 N.J. 311 (2009), because there are questions of fact as to whether the alleged deviations and deficiencies in the internal investigation that was conducted unfairly prejudiced Plaintiff.

Viewing all legitimate inferences in favor of the Defendants as the non-moving party, the Court finds that there are material issues of fact with regard to whether Plaintiff's right to due process has been violated. The Court notes that Plaintiff was afforded two disciplinary hearings and was at all times represented by Counsel. However, the Court cannot reconcile how the wrongful acts found to have been committed by the members of the hearing panel do not affect the disciplinary charges imposed on Plaintiff by them. Thus, there are questions of fact as to whether Plaintiff did get a full and fair hearing.

As to the attorneys' fees, the Court finds that Defendant has raised issues of material fact as to whether Plaintiff is entitled to attorneys' fees. Fact issues exist as to whether Plaintiff was an on-duty officer "in furtherance of his official duties" thus warranting attorneys' fees pursuant to N.J.S.A. 40A:14-155. The Court also finds that a fact determination must be made as to whether fairness and equity require the award of attorneys fees in this matter.

As such, the Court denies Plaintiff's motion for summary judgment and finds that this matter, having issues of material fact, should be decided as an action in lieu of prerogative writs.

Plaintiff's appeal of the hearing officer's rulings and recommended sanctions was thereafter tried to completion in a one-day bench trial before the Law Division. The court upheld the hearing officer's finding of guilt on the six disciplinary charges proffered against plaintiff and denied plaintiff's application for counsel fees and costs pursuant to N.J.S.A. 40A:14-155. The court's judgment was supported by a memorandum of opinion in which the court found, in relevant part, as follows:

The Court recognizes the strong public policy in favor of settlements and finds that the parties entered into the agreement [to dismiss Counts One and Two with prejudice and remand for a new disciplinary hearing] fully aware of the terms and consequences. The jury's decision that the retaliatory acts had been taken against Plaintiff in his disciplinary hearing are of no moment given the fact that Plaintiff willingly settled Counts 1 to 3 of his Complaint concerning the disciplinary process by agreeing to a re-hearing. The settlement agreement, entered into prior to the jury trial, essentially nullified any issues Plaintiff may have had with the initial disciplinary process. While Plaintiff asserts that the jury finding that Plaintiff had been retaliated against in the disciplinary hearings warrants the dismissal of the charges, the Court disagrees.

Because the Court does not find that the jury verdict demands an automatic dismissal of the disciplinary charges, the Court is tasked with conducting a de novo review of Plaintiff's conviction of the six charges for which he was found guilty in the disciplinary re-hearing. Plaintiff asserts that based on O'Rourke, supra, [405 N.J. Super. 8,] the Bogota Police Department's failure to conduct a complete and thorough investigation resulted in Plaintiff's disciplinary process being tainted, thus requiring the charges being dismissed. Plaintiff contends that there is no question that the internal investigation was conducted unfairly as both the investigator and the Chief of Police made admissions as to deviations and deficiencies in the internal investigation. It is curious to this Court why, if Plaintiff felt so strongly about the flawed investigation that led up to the disciplinary hearing, Plaintiff settled the first three Counts of his Complaint and agreed to a re-hearing. Plaintiff argues that had a proper investigation been conducted, Plaintiff may not have been charged at all or that the penalty of a verbal reprimand would have sufficed. However, this Court finds that Plaintiff waived that argument when he settled Counts 1 to 3 of his Complaint and allowed himself to be subject to a re-hearing on the disciplinary charges via the settlement agreement.

Because Plaintiff agreed to the re-hearing, this Court is tasked with determining whether Plaintiff is guilty of any of the six charges filed against him based on the record below. It is hard to dispute that Plaintiff used inappropriate language towards the individuals who assaulted him and inappropriately reacted to their taunts. While this Court is sympathetic to Plaintiff's position as a victim of the assault, this Court also recognizes that as a police officer, Plaintiff is held to a higher standard of conduct and such a reaction was not becoming of a person in his position. The Court finds that the record is clear as to Plaintiff's conduct and affirms the Hearing Officer's finding that Plaintiff is guilty of all six charges.

III

Plaintiff now appeals from this judgment, raising the same arguments the trial court rejected when it denied his motion for summary judgment. Specifically, plaintiff argues that the trial court erred in upholding the determinations of the second disciplinary hearing because the doctrines of offensive collateral estoppel and res judicata should have been applied following the jury's verdict on counts four through eleven of the second amended complaint. According to plaintiff, the jury's verdict "speaks to the very disciplinary charges here," as a result, "it would be unjust and unfair for defendant to now claim that although the disciplinary charges and process as to the very charges in issue here were determined by a jury to be unlawful, those charges may, nevertheless, be utilized to impose discipline upon Plaintiff." Finally, plaintiff argues that, "[b]ut for the bifurcation order, all litigation as to the subject charges would have been concluded" in one proceeding (and, presumably, plaintiff argues would have been decided in his favor), and the Borough should therefore not "get a second bite of the apple . . . at Plaintiff's cost and expense."

In response, the Borough emphasizes that "[t]he focus of the jury case was the alleged actions by certain hearing panel members related to the initial disciplinary hearing," and that "there was never an issue before the jury vis-a-vis [the] actions of [the hearing officer] related to the new hearing." Defendant argues that the two issues are not identical, and therefore cannot have a collateral estoppel effect upon the jury's verdict. On the question of bifurcation, defendant argues that "[t]he initial hearing and discipline was set aside at the request of the plaintiff who agreed to be subjected to a new hearing on remand." Defendant thus notes that "[p]laintiff could have opted to proceed in January 2008, and allow [the Law Division] to decide the case on the merits," but instead "opted to dismiss his complaint and request a remand for a new hearing."

A review of the legal principles at issue favors defendant's position. "Collateral estoppel, like the related doctrine of res judicata, has the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation." Parkland Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S. Ct. 645, 649, 58 L. Ed. 2d 552, 559 (1979) (footnote omitted). Res judicata, or claim preclusion, bars the relitigation of claims "that were or could have been raised in a prior action." N.M. v. J.G., 255 N.J. Super. 423, 431 (App. Div. 1992) (citing Allen v. McCurry, 449 U.S. 90, 94, 101 S. Ct. 411, 414, 66 L. Ed. 2d 308, 313 (1980)).

In order to successfully apply the doctrine of res judicata, a litigant must demonstrate "(1) a final judgment by a court of competent jurisdiction, (2) identity of issues, (3) identity of parties, and (4) identity of the cause of action." Brookshire Equities, LLC v. Montaquiza, 346 N.J. Super. 310, 319 (App. Div.) (citing Selective Ins. Co. v. McAllister, 327 N.J. Super. 168, 172, (App. Div. 2000)), cert. denied, 172 N.J. 179 (2002). "Res judicata will apply if a party in the second action is in privity with a party in the first action." Ibid. (citing Olds v. Donnelly, 291 N.J. Super. 222, 232 (App. Div.), aff'd, 146 N.J. 565 (1996)).

Our Supreme Court has recognized that "the test for the 'identity of a cause of action for claim preclusion is not simple.'" First Union Nat'l Bank v. Penn Salem Marina, Inc., 190 N.J. 342, 352-53 (2007) (quoting Culver v. Ins. Co. of N. Am., 115 N.J. 451, 461 (1989)). A reviewing court must evaluate

(1) whether the acts complained of and the demand for relief are the same (that is, whether the wrong for which redress is sought is the same in both actions); (2) whether the theory of recovery is the same;

(3) whether the witnesses and documents necessary at trial are the same (that is, whether the same evidence necessary to maintain the second action would have been sufficient to support the first); and (4)

whether the material facts alleged are the same. [Ibid. (quoting Culver, supra, 115 N.J. at 461-62).]

Collateral estoppel, or issue preclusion, encompasses a broader set of cases than res judicata; this doctrine "bars relitigation of issues in suits that arise from different causes of action," McAllister, supra, 327 N.J. Super. at 172, if they have been "fairly litigated and determined," id. at 352. Collateral estoppel will thwart relitigation of an issue when (1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding. [Ibid. (quoting Hennessey v. Winslow Twp., 183 N.J. 593, 599 (2005)).]

To determine whether the issue asserted is sufficiently similar to preclude litigation, a reviewing court engages in a similar analysis to that required for res judicata, considering "whether there is substantial overlap of evidence or argument in the second proceeding; whether the evidence involves application of the same rule of law; whether discovery in the first proceeding could have encompassed discovery in the second; and whether the claims asserted in the two actions are closely related." Id. at 353.

Relevant to the matter before us, collateral estoppel may be applied both defensively -- where a plaintiff is estopped from asserting a claim that the plaintiff had previously litigated and lost against another defendant -- and offensively -- where a plaintiff seeks to estop a defendant from relitigating an issue that was previously litigated and lost against another plaintiff. Parklane Hosiery, supra, 439 U.S. at 329, 99 S. Ct. at 650, 58 L. Ed. 2d at 561. The United States Supreme Court, in Parklane Hosiery, noted offensive collateral estoppel "gives a plaintiff a strong incentive to join all potential defendants in the first action if possible," and thus promotes judicial economy. Id. at 329-30, 99 S. Ct. at 651, 58 L. Ed. 2d at 561. However, the Court in Parklane Hosiery also noted as follows:

Since a plaintiff will be able to rely on a previous judgment against a defendant but will not be bound by that judgment if the defendant wins, the plaintiff has every incentive to adopt a "wait and see" attitude, in the hope that the first action by another plaintiff will result in a favorable judgment. [Id. at 330, 99 S. Ct. at 651, 58 L. Ed. 2d at 561.]

As such, the Court held that trial courts should be granted "broad discretion" in deciding when offensive collateral estoppel should be applied. Id. at 331, 99 S. Ct. at 651, 58 L. Ed. 2d at 562. "The general rule should be that in cases where a plaintiff could easily have joined in the earlier action or where . . . the application of offensive estoppel would be unfair to a defendant, a trial judge should not allow the use of offensive collateral estoppel." Ibid.

In the instant matter, we agree with the trial court that the doctrines of res judicata and collateral estoppel are not applicable to support the summary dismissal of the findings of guilt and penalties imposed following the second disciplinary hearing. As set forth on the verdict form, the jury was called upon to decide whether the various named defendants, including the Borough, retaliated against plaintiff "by subjecting him to a disciplinary process and by disciplining him" in violation of his right to free speech and free association.

In contrast, in filing his statutory appeal following the second disciplinary hearing, plaintiff argued that the charges against him were invalid pursuant to the New Jersey Attorney General Guidelines on Internal Affairs, that the delays in the hearing process constituted a violation of procedural due process under N.J.S.A. 40A:14-147, and that the findings of guilt made by the second disciplinary proceeding were unsupported by the facts pursuant to N.J.S.A. 40A:14-150.

In this light, it cannot be said that "the wrong for which redress is sought is the same in both actions" so as to support the application of res judicata, because the jury verdict spoke only to the wrongs arising from the retaliatory motives of the various named defendants in the initial disciplinary process, while the trial de novo addressed potential errors arising from the second disciplinary hearing. Similarly, it cannot be said that "the issue to be precluded is identical to the issue decided in the prior proceeding" so as to support the application of offensive collateral estoppel, because the jury at no time considered plaintiff's factual guilt or innocence pursuant to the disciplinary charges brought against him. See Penn Salem Marina, supra, 190 N.J. at 352.

The second disciplinary hearing took place before a presumably impartial hearing officer whose integrity, objectivity, and independence have not been contested by plaintiff. To the extent that the jury found that the initial disciplinary process was tainted by the retaliatory motives or actions of the mayor or various council members,*fn6 any wrongs that flowed from these actions would have no bearing on the second set of proceedings conducted independently and pursuant to the settlement agreement entered into by plaintiff. It is further noted that the jury separately compensated plaintiff for these wrongs by virtue of the award of $15,000 entered as part of their verdict.

Finally, we must emphasize that plaintiff elected to enter into the settlement agreement with the named defendants to remand the matter for a second disciplinary hearing. As noted by the trial court in its statement of reasons supporting its decision following the trial de novo, plaintiff could have chosen to contest the validity of the findings of guilt and penalties imposed by the initial disciplinary panel by continuing to pursue Counts One through Three of the second amended complaint following the bifurcation. Had he elected to follow such a course, the doctrines of res judicata and collateral estoppel may have had some bearing or application to the questions raised in this appeal.

Here, however, plaintiff agreed to vacate the initial disciplinary hearing and its findings and subject himself to a second disciplinary hearing before a neutral hearing officer -- a proceeding which once again resulted in a finding of guilt, though the sanctions imposed were significantly less severe than the ones recommended by the first hearing panel.

For all of these reasons, and fully cognizant of the trial court's "broad discretion" in applying the doctrine of offensive collateral estoppel, Parklane Hosiery, supra, at 331, 99 S. Ct. at 651, 58 L. Ed. 2d at 562, we affirm the trial court's judgment. The remaining arguments raised by plaintiff lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.


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