CHRISTOPHER JAREMA VS. MIDDLESEX COUNTY THOMAS VARGA VS. MIDDLESEX COUNTY (L-1073-14 AND L-1016-14, SOMERSET COUNTY AND STATEWIDE) (CONSOLIDATED) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-5250-14T3
A-5328-14T3
CHRISTOPHER JAREMA,
Plaintiff-Appellant,
v.
MIDDLESEX COUNTY, MIDDLESEX COUNTY
SHERIFF'S OFFICE, and MILDRED S.
SCOTT, MIDDLESEX COUNTY SHERIFF,
Defendants-Respondents.
_____________________________________
THOMAS VARGA,
Plaintiff-Appellant,
v.
MIDDLESEX COUNTY, MIDDLESEX COUNTY
SHERIFF'S OFFICE, and MILDRED S.
SCOTT, MIDDLESEX COUNTY SHERIFF,
Defendants-Respondents.
______________________________________
Argued November 1, 2017 – Decided August 16, 2018
Before Judges Fuentes, Manahan and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Somerset County, Docket Nos.
L-1073-14 and L-1016-14.
Michael J. Confusione argued the cause for
appellant Christopher Jarema (in A-5250-14)
(Hegge & Confusione, LLC, attorneys; Michael
J. Confusione, of counsel and on the brief).
Ronald A. Rosa argued the cause for appellant
Thomas Varga (in A-5328-14) (Fuggi Law Firm,
PC, attorneys; Ronald A. Rosa, on the brief).
Arthur R. Thibault, Jr., argued the cause for
respondents (Apruzzese, McDermott, Mastro &
Murphy, PC, and Kelso & Bradshaw (in A-5250-
14) and Dvorak & Associates, LLC (in A-5328-
14) attorneys; Arthur R. Thibault, Jr., and
Patrick J. Bradshaw on the brief (in A-5250-
14); Arthur R. Thibault, Jr., and Marc Mory,
on the brief (in A-5328-14)).
PER CURIAM
After conducting a de novo review of the evidence presented,
Judge Thomas C. Miller upheld Middlesex County Sheriff Mildred S.
Scott's decision to terminate plaintiffs Christopher Jarema and
Thomas Varga from their position as Sheriff's Investigators under
N.J.S.A. 40A:9-117a. Judge Miller held plaintiffs were at-will
employees who served at the pleasure of the Sheriff. The judge
also found plaintiffs did not show their termination was arbitrary,
capricious or unreasonable so as to be invidiously discriminatory.
Plaintiffs now appeal. We affirm substantially for the
reasons expressed by Judge Miller.
2 A-5250-14T3
I
In 2005, then Middlesex County Sheriff Joseph Spicuzzo hired
plaintiff Christopher Jarema as a Sheriff's Investigator. Three
years later, Spicuzzo hired plaintiff Thomas Varga to serve in
this same capacity. On January 3, 2014, the Middlesex County
Sheriff's Office (MCSO) filed administrative charges against both
Varga and Jarema alleging that they, directly or through a third
party acting on their behalf, bribed Spicuzzo to secure their
positions. After conducting hearings on the charges for both
Varga and Jarema, a Departmental Hearing Officer found sufficient
evidence to support the charges and recommended that both Varga
and Jarema be terminated. Sheriff Scott accepted the Hearing
Officer's recommendation and terminated Varga's and Jarema's
employment as Sheriff's Investigators effective January 3, 2014,
on May 16, 2014, and June 11, 2014, respectively.
On June 30, 2014, Varga1 filed an action in lieu of
prerogative writs against defendants Middlesex County, the MCSO,
and Sheriff Scott. On July 23, 2014, Jarema filed his own action
in lieu of prerogative writs naming the same parties as defendants.
Plaintiffs alleged that the decision to terminate their employment
was arbitrary and capricious because the Hearing Officer's
1
Varga filed an amended complaint on July 14, 2014.
3 A-5250-14T3
decision was not based on credible, competent evidence. Plaintiffs
also sought compensatory damages for wrongful termination based
on common law retaliation contrary to a clear mandate of public
policy under Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58
(1980). Varga included a separate count based on the Conscientious
Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, and alleged
he was terminated in violation of the Attorney General Guidelines
for Internal Affairs Investigations.
On August 27, 2014, defendants moved to dismiss plaintiffs'
complaints for failure to state a claim upon which relief could
be granted pursuant to Rule 4:6-2(e). The trial court consolidated
these two cases with two other pending cases, filed by former
Sheriff's Investigators, who were terminated based on the same
allegations of corruption involving bribes to Spicuzzo.
Defendants argued that, as at-will employees, plaintiffs did
not have a property interest in their positions as Sheriff's
Investigators and consequently did not have a right to a de novo
review of Sheriff Scott's decision to terminate their employment.
Defendants also argued that plaintiffs were precluded from seeking
relief under Pierce as a matter of public policy, because they had
obtained their public positions through corruption and bribes.
The same public policy precluded Varga's claims under CEPA.
Finally, defendants argued that it did not matter whether
4 A-5250-14T3
plaintiffs paid the bribes themselves. Sound public policy cannot
countenance the procurement or retention of a public position
through bribery, even if the holder of the position was unaware
of the scheme.
On October 24, 2014, the court granted defendants' motion
to dismiss in part and denied it in part. The court first found
that as Sheriff's Investigators, plaintiffs were at-will employees
pursuant to N.J.S.A. 40A:9-117a, and served solely at the pleasure
of the Sheriff. The judge provided the following explanation in
support of this ruling:
In the present matter, akin to Golden[2] and
Walsh[3], by the terms and conditions of
[p]laintiff[s] employment as Sheriff's
Investigator[s] as defined by N.J.S.A. 40A:9-
117a, "all sheriff's investigators shall serve
at the pleasure of the sheriff . . .[.]" As
such, [p]laintiff[s] [are] at-will
employee[s] who can be terminated for any
reason. Thus, to permit [p]laintiff[s] to
challenge [their] termination as arbitrary,
capricious or unreasonable and seek judicial
review by a "full de novo review" would be to
confer a property interest upon [p]laintiff[s]
to which [they are not] entitled and [do] not
have, and undermine the Legislative mandate
in enacting N.J.S.A. 40A:9-117a.
Consistent with the Supreme Court's holding
in Golden, this [c]ourt's review is limited
to a circumstance where the Sheriff's action
2
Golden v. County of Union, 163 N.J. 420 (2000).
3
Walsh v. State of New Jersey, 290 N.J. Super. 1 (App. Div.
1996).
5 A-5250-14T3
is so arbitrary, capricious and unreasonable
so as to be "invidiously discriminatory or
contrary to some other law[.]" In effect, the
standard of review for such matters is more
narrow than just a determination of whether
the action was arbitrary, capricious and
unreasonable. On that basis, [p]laintiff[s]
complaint[s] [have] generally plead a breach
of that standard. On that basis,
[p]laintiff[s] complaint[s] state[] a cause of
action.
In a disciplinary appeal filed to challenge
an official action such as this case before
the [c]ourt, the only forum that exists for
any remedy is with the [c]ourts. If the
[d]efendant's position were accepted (that is
that the Sheriff has total, complete
discretion to terminate because the
[p]laintiff[s] [are] [at-will] employee[s])
so that the [c]ourt must simply affirm the
hearing officer's findings without any inquiry
or review, then there would be no check upon
the authority or actions of the local agency
– in this case the Sheriff. While the [c]ourt
acknowledges that the Sheriff's discretion is
wide, it is not absolute.
Thus, despite recognizing the at-will nature of their
employment, the motion judge declined to dismiss plaintiffs'
complaints in their entirety. The judge viewed the Supreme Court's
holding in Golden to limit his review to "circumstances where the
Sheriff's action is so arbitrary and unreasonable so as to be
'invidiously discriminatory' or contrary to some other law."
However, the judge also stated that plaintiffs had not offered any
legal basis to support their request for a complete de novo hearing
equivalent to a new trial. The motion judge ultimately applied a
6 A-5250-14T3
level of review that requires the court to determine whether the
Sheriff's decision to terminate plaintiffs' employment was so
arbitrary, capricious or unreasonable so as to be invidiously
discriminatory.
The judge dismissed plaintiffs' CEPA and Pierce claims with
prejudice and reserved decision on whether the Sheriff was bound
by the Attorney General Guidelines. The judge also stated that
even if the Sheriff was bound by these Guidelines, he was still
required to determine whether the violation constituted an
arbitrary and capricious act.4
Thereafter, the trial court denied plaintiffs' motion to
supplement the record and to compel discovery of the entire
Spicuzzo criminal investigation file. The court restricted its
review to the record relied on by Sheriff Scott to terminate
plaintiffs' employment because the "purpose of the review is to
determine whether the local body, board, or hearing officer made
a decision that was based upon or supported by that record." This
record is only supplemented when the party raises constitutional
issues in the complaint. The court concluded that plaintiffs
request was overly broad and appeared to be a mere "fishing
expedition." Moreover, even if the discovery of the file would
4
Varga did not appeal this part of the trial court's decision.
7 A-5250-14T3
help plaintiffs prove other people should have also been charged
in the bribery scheme, it would not alter the case against them.
On February 20, 2015, plaintiffs filed a motion for
reconsideration of the October 24, 2014 decision establishing the
standard of review. In denying the motion, the judge explained:
The [p]laintiffs' position, if adopted, would
undermine the very "[at-will]" nature of their
employment. In the absence of invidious
discrimination, the Sheriff is permitted to
terminate "[at-will]" employees like the
[p]laintiffs at her pleasure. In other words,
she could terminate them for "any reason or
no reason." In a sense, the Sheriff's real
reason may be arbitrary, capricious or
unreasonable. As long as her reason is not
based upon "invidious" discrimination,
however, the Sheriff has the authority to make
that decision and her decision should survive
challenge.
The court also denied Varga's motion seeking reconsideration
of the order dismissing his CEPA claim. Judge Miller found the
following facts from the record developed before the Hearing
Officer.
II
The Case Against Varga and Jarema
Spicuzzo hired Varga as a Sheriff's Investigator in November
2008. On October 28, 2010, the State Police interviewed Varga in
connection with its investigation of then Sheriff Spicuzzo. The
State Police investigation focused on a "jobs-for-cash scheme"
8 A-5250-14T3
which appeared to determine hiring practices in the Sheriff's
Office. Varga admitted to State Police investigators that he paid
Spicuzzo $25,000 in cash for his position as a Sheriff's
Investigator. On May 13, 2011, Varga testified before the Grand
Jury empaneled to investigate allegations of corruption in the
Sheriff's Office. Varga fully cooperated with the investigation.
The Grand Jury transcript reflects that Varga admitted to paying
Spicuzzo the money but claimed that the money was "also for
training."
On October 11, 2013, Mercer County Assignment Judge Mary C.
Jacobson entered an Order releasing the Grand Jury materials and
the State's investigatory files of the Spicuzzo matter to the
MCSO; this included Varga's testimony before the Grand Jury. On
November 20, 2013, MCSO Undersheriff Kevin Harris was assigned to
investigate "whether or not investigators paid former Sheriff
Spicuzzo for employment . . . as Middlesex County Sheriff's Office
Investigator." Relying on Grand Jury records provided by the
Attorney General's Office, Harris concluded that Varga gave
Spicuzzo $25,000 as a bribe to obtain his position as a Sheriff's
Investigator. On January 3, 2014, Sheriff Scott suspended Varga
9 A-5250-14T3
"indefinitely without pay" and charged him with bribery.5 The
Notice of Suspension Pending Termination also apprised Varga of
his right to "a departmental hearing to contest the charges . . .
and termination . . . ."
On January 3, 2014, Sheriff Scott sent Jarema a Notice of
Suspension Pending Termination charging him with bribery, and
immediately suspended him from his position as a Sheriff's
Investigator without pay. Sheriff Scott provided the following
basis for Jarema's suspension:
The factual basis for the charges is that you
engaged in unlawful activity by paying, or by
having had paid on your behalf, a sum of money
to . . . Spicuzzo, through an intermediary,
namely Mr. Adam Tietchen to influence . . .
Spicuzzo . . . to give you a job as an
Investigator in the [MCSO], which payment was
an unlawful bribe, and that you wrongfully
proceeded to accept the offer of such
employment . . . .
Sheriff Scott also apprised Jarema of his right to contest these
charges at a departmental hearing.
On June 12, 2015, Judge Miller conducted a trial de novo
based on the record developed before the Hearing Officer, and
dismissed plaintiffs' complaints. Judge Miller memorialized his
5
Sheriff Scott charged Varga and Jarema with "bribery" as a
disciplinary infraction to establish grounds for termination of
employment. However, "Bribery in Official and Political Matters"
is also a second-degree criminal offense under N.J.S.A. 2C:27-2.
10 A-5250-14T3
findings and explained the legal basis of his ruling in a
comprehensive letter-opinion which we incorporate by reference
here. Judge Miller accepted the Hearing Officer's findings that
both Varga and Jarema obtained their positions as Sheriff's
Investigators by bribing Spicuzzo. With respect to Jarema, Judge
Miller found it was irrelevant that the bribe was paid through an
intermediary. In short, there was overwhelming evidence to support
Sheriff Scott's decision to terminate the employment of both Varga
and Jarema.
Judge Miller also rejected plaintiffs' argument that Sheriff
Scott violated the "45 day rule" of the Attorney General Internal
Affairs Guidelines by failing to file charges against them within
forty-five days of learning of a possible basis for discipline.
Judge Miller found that Undersheriff Harris needed to have the
complete file of the investigation and the Attorney General's
record before the forty-five day period could begin. Harris did
not receive this information until the end of November 2013.
Sheriff Scott filed the charges against plaintiffs on January 3,
2014, well within the forty-five-day timeframe. Plaintiffs'
remaining arguments were dispatched by Judge Miller as legally
inconsequential in light of the overwhelming, uncontested evidence
of wrongdoing by plaintiffs. Judge Miller upheld the determination
11 A-5250-14T3
of the Hearing Officer and dismissed plaintiffs' complaints with
prejudice.
III
On appeal, plaintiffs argue Judge Miller erred: (1) when he
found that the administrative charges were filed within forty-five
days in compliance with the Attorney General's Internal Affairs
Investigation Guidelines; and (2) in denying their motion to compel
discovery of the entire Spicuzzo file. In addition, Jarema argues
the judge erred in dismissing his common law retaliation claim
based on Pierce and in failing to consider the collective
bargaining agreement and any rights that may be afforded to him
under it.
In the Law Division, a judge reviews a local agency's decision
to determine whether it is arbitrary, capricious or unreasonable.
The party challenging the decision has the burden to prove the
action was not valid. Cell S. of N.J. v. Zoning Bd. of Adjustment,
172 N.J. 75, 81-82 (2002). When the Law Division employs the
proper standard, our review is limited to determining whether that
standard was properly applied. ERG Container Servs., Inc. v. Bd.
of Chosen Freeholders, 352 N.J. Super. 166, 173-74 (App. Div.
2002); R. 4:69-7. We likewise defer to the municipality's broad
discretion and reverse only if the municipal action was arbitrary,
capricious or unreasonable. Cell S. of N.J., 172 N.J. at 81.
12 A-5250-14T3
With these principles in mind, we affirm substantially for
the reasons expressed by Judge Miller in his well-reasoned and
comprehensive letter-opinions dated June 12, 2015.
Affirmed.
13 A-5250-14T3