ROBERT SMITH VS. CITY OF BRIDGETON (L-0182-16, CUMBERLAND COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1453-16T3
ROBERT SMITH,
Plaintiff-Appellant,
v.
CITY OF BRIDGETON,
Defendant-Respondent,
and
BRIDGETON POLICE DEPARTMENT;
MARK OTT, Former Bridgeton Chief of
Police; MICHAEL A. GAIMARI, SR.,
Current Bridgeton Chief of Police; DALE
GOODREAU, City of Bridgeton Business
Administrator; ALBERT KELLY, Mayor
of City of Bridgeton; JACK SURRENCY,
Bridgeton City Council President; WILLIAM
D. SPENCE, Bridgeton City Councilman;
GLADYS LUGARDO-HEMPLE, Bridgeton
City Councilwoman; MICHAEL E.
ZAPOLSKI, SR., Bridgeton City Councilman;
and J. CURTIS EDWARD,
Bridgeton City Councilman,
Defendants.
_______________________________________
Submitted November 9, 2018 – Decided November 28, 2018
Before Judges Simonelli and DeAlmeida.
On appeal from Superior Court of New Jersey, Law
Division, Cumberland County, Docket No. L-0182-16.
Christian A. Pemberton, attorney for appellant.
Blaney & Karavan, PC, attorneys for respondent (Frank
Guaracini, III, on the brief).
PER CURIAM
In this prerogative writs matter, plaintiff Robert Smith sought
reinstatement to his position as a police officer with the City of Bridgeton Police
Department (BPD) following his acquittal of a criminal charge. Plaintiff appeals
from the August 15, 2016 Law Division order, which denied his motion for
summary judgment, granted defendant City of Bridgeton's (City)1 cross-motion
for summary judgment, and dismissed plaintiff's complaint. We affirm.
I.
We begin with a review of the pertinent authority. A police officer may
not be suspended, removed, fined or reduced in rank "except for just cause . . .
and then only upon a written complaint." N.J.S.A. 40A:14-147. A complaint
1
The City is a civil service municipality subject to the Civil Service Act,
N.J.S.A. 11A:1-1 to 12-6.
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charging a police officer with violating internal rules and regulations must be
filed no later than forty-five days "after the date on which the person filing the
complaint obtained sufficient information to file the matter upon which the
complaint is based." Ibid. The forty-five day time limit does 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." Ibid. In that instance, the forty-five day time limit "shall begin on
the day after the disposition of the criminal investigation." Ibid. Failure to
comply with the forty-five day time limit mandates dismissal of the complaint.
Ibid. A disciplinary hearing must be held "not less than [ten] nor more than
[thirty] days from date of service of the complaint." Ibid.
If a police officer has been suspended pending a hearing, the hearing must
be held within thirty days from the date of service of the complaint. N.J.S.A.
40A:14-149. Failure to hold a hearing within that time period mandates
dismissal of the charges and return of the officer to duty. Ibid. The purpose of
the statute is to afford the officer a full and fair hearing within a reasonable time.
Ressel v. Costello, 79 N.J. Super. 149, 153 (App. Div. 1963). "The . . . officer
may waive the right to a hearing and may appeal the charges directly to any
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available authority specified by law or regulation, or follow any other procedure
recognized by a contract, as permitted by law." N.J.S.A. 40A:14-147.
The corresponding regulation provides that "[a]n employee must be
served with a Preliminary Notice of Disciplinary Action [(PNDA)] setting forth
the charges and statement of facts supporting the charges (specifications), and
afforded the opportunity for a hearing prior to imposition of major discipline[.]"
N.J.A.C. 4A:2-2.5(a). The regulation also provides:
The employee may request a departmental hearing
within five days of receipt of the [PNDA]. If no
request is made within this time or such additional
time as agreed to by the appointing authority or as
provided in a negotiated agreement, the
departmental hearing may be considered to have
been waived and the appointing authority may issue
a Final Notice of Disciplinary Action.
A departmental hearing, if requested, shall be held
within 30 days of the [PNDA] unless waived by the
employee or a later date as agreed to by the parties.
See N.J.A.C. 4A:2-2.13 for hearings regarding
removal appeals by certain law enforcement officers
and firefighters.
[N.J.A.C. 4A:2-2.5(c) and (d).]
N.J.A.C. 4A:2-2.13(b), provides, in pertinent part:
If the law enforcement officer . . . requests a
departmental hearing regarding his or her removal in
accordance with N.J.A.C. 4A:2-2.5, the appointing
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authority shall conduct a hearing within [thirty] days of
the removal's effective date, unless:
1. The officer . . . agrees to waive his or her right to
the hearing; or
2. The officer . . . and the appointing authority agree to
an adjournment of the hearing to a later date.
An employee may appeal a violation of N.J.A.C. 4A:2-2.5 to the Civil Service
Commission through a petition for interim relief pursuant to N.J.A.C. 4A:2-1.2.
N.J.A.C. 4A:2-2.5(e).
A police officer may be suspended without pay pending a hearing if a
grand jury returns an indictment against the officer. N.J.S.A. 40A:14-149.1; see
also N.J.A.C. 4A:2-2.5(a)(2) (providing that "[a]n employee may be suspended
immediately when the employee is formally charged with a crime of the first,
second or third degree, or a crime of the fourth degree on the job or directly
related to the job"). The suspension will continue "until the case against [the
officer] is disposed of at trial, until the complaint is dismissed or until the
prosecution is terminated." N.J.S.A. 40A:14-149.1. N.J.S.A. 40A:14-149.2
provides:
If a suspended police officer is found not guilty at trial,
the charges are dismissed or the prosecution is
terminated, said officer shall be reinstated to his
position and shall be entitled to recover all pay withheld
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during the period of suspension subject to any
disciplinary proceedings or administrative action.
We now turn to the facts of this case. On January 18, 2012, a fellow police
officer informed the BPD that plaintiff would be arriving at the police station to
sell him anabolic steroids. When plaintiff arrived, the BPD arrested him and
charged him with several indictable crimes involving the possession and
distribution of a controlled dangerous substance (CDS). The BPD notified
plaintiff that he was suspended immediately without pay pursuant to N.J.S.A.
40A:4-149.1.
On January 23, 2012, the City served a PNDA on plaintiff, charging him
with incompetency, inefficiency, or failure to perform duties, N.J.A.C. 4A:2-
2.3(a)(1); insubordination, N.J.A.C. 4A:2-2.3(a)(2); conduct unbecoming a
public employee, N.J.A.C. 4A:2-2.3(a)(6); neglect of duty, N.J.A.C. 4A:2-
2.3(a)(7); and other sufficient cause, N.J.A.C. 4A:2-2.3(a)(12). The charges
were issued under N.J.S.A. 40A:14-147 based on plaintiff's arrest and having
been charged with indictable crimes involving the sale of a CDS or its analog.
The PNDA notified plaintiff the City sought his removal and that if he wanted a
departmental hearing, he must notify the City within five days of receipt of the
PNDA.
A-1453-16T3
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Plaintiff and the City agreed to hold the departmental hearing in abeyance
pending adjudication of the criminal charges. In addition, plaintiff withdrew his
request for a Loudermill 2 hearing and advised the City he would make a
discovery request at the conclusion of the criminal matter. On January 27, 2012,
plaintiff's counsel requested an inventory of items taken from plaintiff when he
was arrested or confirmation that no inventory was conducted.
On November 6, 2013, a grand jury indicted plaintiff for third-degree
distribution of a CDS, N.J.S.A. 2C:35-5(b)(13). On January 28, 2016, a jury
found plaintiff not guilty of the charge. That same day, the Cumberland County
Prosecutor's Office notified the City that the criminal matter had concluded and
referred the case to the City for administrative action.
Thereafter, the BPD commenced a supplemental investigation in order to
bring its records current and determine whether to dismiss the disciplinary
charges. The City did not dismiss the charges because the supplemental
investigation revealed additional infractions plaintiff committed before and after
his suspension in 2012.
On March 8, 2016, plaintiff claimed his purported discovery request from
January 2012 had gone unanswered and asked the City to discontinue the
2
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985).
A-1453-16T3
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administrative proceeding and reinstate him. Plaintiff did not claim a violation
of the thirty-day requirement of N.J.S.A. 40A:14-149 as the reason for his
request. On March 11, 2016, plaintiff filed a complaint in lieu of prerogative
writs in the Superior Court.3
Within thirty days of plaintiff's request for reinstatement, on April 6,
2016, the City advised him it was willing to schedule a departmental hearing
and asked him to provide available dates if he wanted a hearing. Plaintiff did
not respond. Instead, on April 6, 2016, he filed an amended complaint, seeking
reinstatement with back pay and benefits; removal of any record of disciplinary
action from his personnel file; dismissal of all disciplinary charges and barring
future related disciplinary actions; and attorney's fees and costs.
Plaintiff also filed a motion for summary judgment, arguing, in part, that
N.J.S.A. 40A:14-149 required dismissal of the disciplinary charges because the
City failed to hold a hearing within thirty days of the acquittal. He also argued
that N.J.S.A. 40A:14-149.2 required his immediate reinstatement.
Prior to disposition of the motion, on April 14, 2016, the City served two
separate PNDAs on plaintiff, charging him with numerous infractions unrelated
3
Plaintiff did not submit a copy of the complaint on appeal.
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to the first PNDA.4 The City suspended plaintiff without pay and notified him
it was seeking his removal. Plaintiff served a lengthy discovery request on the
City regarding the new disciplinary charges, and confirmed that any
administrative action associated with the 2012 disciplinary charge would be
stayed until after the court ruled on the summary judgment motion.
The City opposed plaintiff's motion and filed a cross-motion for summary
judgment. The City argued, in part, that the prerogative writs complaint must
be dismissed pursuant to Rule 4:69-5 for plaintiff's failure to exhaust his
administrative remedies. The motion judge agreed, holding the case could not
remain in the Superior Court because the City is a civil service municipality and
plaintiff did not exhaust his administrative remedies.
II.
As a threshold matter, we address the City's argument that Rule 4:69-5
mandated dismissal of the complaint because plaintiff did not exhaust his
administrative remedies. Plaintiff did not respond to this argument.
Administrative remedies must be exhausted before the court can
adjudicate an action in lieu of prerogative writs. Theodore v. Dover Bd. of
Educ., 183 N.J. Super. 407, 412 (App. Div. 1982). "Requiring exhaustion of
4
The new PNDAs are not subject to this appeal.
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administrative remedies before seeking judicial relief is a tenet of administrative
law and established by court rule." Borough of Seaside Park v. Comm'r of N.J.
Dept. of Educ., 432 N.J. Super. 167, 202 (App. Div. 2013). "The exhaustion
requirement serves three primary goals: (1) it ensures that claims are initially
heard by the body with expertise in the area; (2) it produces a full factual record
facilitating meaningful appellate review; and (3) it conserves judicial resources
because the agency decision may satisfy the parties." Id. at 203.
The exhaustion requirement is not jurisdictional or absolute. Griepenburg
v. Twp. of Ocean, 220 N.J. 239, 261 (2015). "Exceptions are made when the
administrative remedies would be futile, when irreparable harm would result,
when jurisdiction of the agency is doubtful, or when an overriding public interest
calls for a prompt judicial decision. Ibid. (quoting N.J. Civil Serv. Ass'n v.
State, 88 N.J. 605, 613 (1982)); see also Pressler v. Verniero, Current N.J. Court
Rules, cmt. 6 on R. 4:69-5 (2019). In considering whether "the interests of
justice dictate the extraordinary course of by-passing the administrative
remedies made available by the Legislature," the court must consider the
"relative delay and expense, the necessity for taking evidence and making
factual determinations thereon, the nature of the agency and the extent of
judgment, discretion, and expertise involved[.]" Nero v. Bd. of Chosen
A-1453-16T3
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Freeholders of Camden Cnty., 144 N.J. Super 313, 321 (App. Div. 1976)
(quoting Roadway Express v. Kingsley, 37 N.J. 136, 141 (1962)). Plaintiff has
not shown that any exception to the exhaustion requirement applies, and nothing
in the record suggests otherwise.
The Civil Service Commission (Commission) has primary jurisdiction
over this matter. Plaintiff could assert the City's alleged statutory and regulatory
violations as defenses at a disciplinary hearing and thereafter in a timely-filed
appeal to the Commission. Plaintiff's allegations that the City failed to timely
hold a hearing and reinstate him following his acquittal clearly and logically
implicate civil service concepts, and N.J.A.C. 4A:2-2.5 and N.J.A.C. 4A:2-2.13
are civil service regulations. The Legislature has vested the Commission with
jurisdiction over such civil service issues. See N.J.S.A. 11A:2-1 (creating the
Commission); N.J.S.A. 11A:2-6 (empowering the Commission to, among other
things, render final administrative decisions on matters concerning the removal
of classified employees); see also Glynn v. Park Tower Apartments, Inc., 213
N.J. Super. 357, 363 (App. Div. 1986) (recognizing that "a case over which an
agency has jurisdiction which has been filed with a court ordinarily shouldbe
transferred to the agency" under R. 1:13-4(a)). Accordingly, the judge properly
A-1453-16T3
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granted summary judgment to the City and dismissed the complaint for
plaintiff's failure to exhaust his administrative remedies.
Having reached this conclusion, we need not address plaintiff's arguments
that the judge erred in failing to dismiss the 2012 disciplinary charges and
reinstate him; the judge erred in finding the City acted reasonably in pursuing
the 2012 disciplinary charges; and plaintiff is entitled to reimbursement of the
legal expenses incurred in defending the criminal charge.
Affirmed.
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