IN THE MATTER OF RUTGERS UNIVERSITY POLICE DEPARTMENT AND LESLIE JONES (PUBLIC EMPLOYMENT RELATIONS COMMISSION) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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 NO. A-2286-19T3
IN THE MATTER OF
RUTGERS UNIVERSITY
POLICE DEPARTMENT
and LESLIE JONES.
______________________
Argued January 11, 2021 – Decided February 5, 2021
Before Judges Sabatino, Gooden Brown, and
DeAlmeida.
On appeal from the New Jersey Public Employment
Relations Commission, PERC No. 2020-002.
Herbert I. Waldman argued the cause for appellant
Leslie Jones (Javerbaum Wurgaft Hicks Kahn
Wikstrom and Sinins, attorneys; Herbert I. Waldman,
on the briefs).
James P. Lidon argued the cause for respondent Rutgers
University Police Department (McElroy Deutsch
Mulvaney & Carpenter, LLP, attorneys; James P.
Lidon, of counsel and on the briefs).
John A. Boppert, Deputy General Counsel, argued the
cause for respondent New Jersey Public Employment
Relations Commission (Christine Lucarelli, General
Counsel, attorney; John A. Boppert, on the brief).
PER CURIAM
Appellant Leslie Jones was employed by Rutgers University as a campus
police officer. He was served with disciplinary charges by the university for
allegedly providing alcohol to a minor and inappropriately engaging in sexual
contact with a student-employee. The university sought Jones's discharge and,
in the meantime, placed him on administrative leave with pay. During that time,
the Essex County Prosecutor investigated the matter and declined to file criminal
charges against Jones. Jones denies that he engaged in criminal or otherwise
wrongful conduct and contests the university's attempts to terminate his
employment under civil law.
Jones sought to have his dispute with the university adjudicated in what
is known as "special disciplinary arbitration" administered by the New Jersey
Public Employment Relations Commission ("PERC"), pursuant to N.J.S.A.
40A:14-209 and -210.
In a written decision issued on January 2, 2020, PERC declined to appoint
an arbitrator, deeming Jones ineligible for the program because his conduct was
related to one or more criminal offenses. Jones sought reconsideration. PERC
denied his request in a second decision dated February 3, 2020, this time noting
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Jones was ineligible on the additional ground that he had not been suspended
without pay as required by statute.
Jones appeals PERC's rejection of his request for special arbitration.
Rutgers and PERC both oppose the appeal as respondents.
While this appeal was pending, we issued on October 15, 2020 a published
opinion in IMO Officer Gregory DiGuglielmo and N.J. Inst. of Tech., 465 N.J.
Super. 42 (App. Div. 2020), which likewise involved a request by a campus
police officer for special arbitration after being charged with disciplinary
violations by his public university employer.
We ruled in DiGuglielmo that the campus officer was ineligible for special
arbitration for several reasons. Among other things we held, as a matter of
statutory interpretation, that the patrolman was not entitled to special arbitration
because he was not a "municipal" officer within the ambit of N.J.S.A. 40A:14-
150, and thereby not qualified for the option of special arbitration under N.J.S.A.
40A:14-209 and -210. Id. at 60-62. We further held in DiGuglielmo that the
officer was also ineligible for the program because he had been suspended with
pay. Id. at 63.
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We need not determine here whether our opinion in DiGuglielmo should
be afforded "pipeline retroactivity" to pending cases.1 Regardless of whether
retroactivity is appropriate, Jones fails to persuade us that our reasoning in that
case was incorrect and that a different result should be reached here.
Jones is clearly not a municipal law enforcement officer and, for that
reason alone, is not qualified for special arbitration. Id. at 60-62. We
incorporate by reference here our detailed statutory analysis of that issue in
DiGuglielmo. Ibid. We are aware, as we were in DiGuglielmo, that PERC had
taken a contrary legal position in previous administrative rulings concerning
campus police officers. Even so, we remain of the view that the statutory
program does not extend to persons who are not employed by "a police
department or force in a municipality wherein Title 11A of the New Jersey
Statutes is not in operation." Id. at 60 (quoting N.J.S.A. 40A:14-150).
Second, we conclude that Jones is additionally ineligible for special
arbitration because he has not been "suspended from performing his official
duties without pay," as required by N.J.S.A. 40A:14-209. As we explained in
depth in DiGuglielmo, the legislative intent of the special arbitration program
1
Counsel at oral argument indicated to us that there may be very few, if any,
cases in the litigation pipeline involving these issues. We are aware that
DiGuglielmo has filed a petition for certification with the Supreme Court.
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was to provide a more expedient means of resolution for police officers who
have been deprived of salary or wages while disciplinary charges are pending.
Id. at 56 (first quoting Assembly Law and Public Safety Comm. Statement to
Assembly, A. 3481 (L. 2009, c. 16); and then quoting Governor's Message on
Signing (Mar. 5, 2009)). We find inconsequential for our present context that
Jones's status has been termed an "administrative leave" rather than a
"suspension." He is being paid and is thereby outside of the intended
beneficiaries of the program.
We reject Jones's argument that subsection (c) of N.J.S.A. 40A:14-209
alters the payment analysis. That provision is designed to deal with officers who
initially were suspended without pay but who then, due to protracted
proceedings by no fault of their own, have had the final determination of their
case delayed past 180 days. Under that scenario, the officer begins to collect
payment under the 180-day proviso of N.J.S.A. 40A:14-209(a). Subsection (c)
applies when an officer or his representative, "who is receiving full pay pending
a final determination in accordance with the provisions of subsection a. of this
section, requests and is granted . . . a postponement, adjournment or delay of a
hearing" so as to further delay the final determination of the case. N.J.S.A.
40A:14-209(c) (emphasis added). That subsection clearly does not pertain to
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Jones here, as he has never been suspended without pay and therefore did not
trigger the reinstatement of pay in accordance with the 180-day proviso of
subsection (a).
In light of our disposition, we need not reach other issues, including
whether Jones is ineligible on a third basis of engaging in conduct that is
"related" to criminal wrongdoing.
Affirmed.
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