Trial Court Authority to Impose Discipline Different From Municipality Upheld

Posted on April 7, 2009 by Frank Crivelli

On March 31, 2008, the Superior Court of New Jersey, Appellate Division, decided the case Detective Sergeant Dean Ackermann v. Borough of Glen Rock and Glen Rock Police Department, Docket Number A-2947-07T2. In the case, the parties appealed and cross-appealed from an order entered by the trial court.

Plaintiff has been a member of the Glen Rock Police Department for more than twenty years. He holds the rank of sergeant and the title of detective. Defendants are the Borough of Glen Rock and its police department. On October 3, 2006, Steven D. Cherry, Chief of the Department, served Plaintiff with a disciplinary notice, charging him with acting contrary to good order and discipline and violating Glen Rock’s “No Tolerance Policy” with respect to wrongdoing in the workplace. The notice contained no recommendation with respect to discipline.

Three days later, Chief Cherry served an amended notice of disciplinary action which set forth nine charges. In the amended notice, Chief Cherry recommended that Plaintiff be suspended for three days without pay and be required to attend an approved course in sensitivity training. The charges were based upon complaints by Anna Maria Mattina, the Borough’s first female police officer. She alleged certain conduct by Plaintiff toward her was unwanted and harassing.

Plaintiff denied any wrongdoing, would not accept the proposed discipline, and requested a hearing. The hearing officer sustained the charges, but rejected the recommendation as to discipline. He recommended Plaintiff be suspended without pay for ten days as well as attend an approved course in sensitivity training. The report was submitted to the mayor and council, which accepted his findings but rejected the recommendation for discipline. The council passed a resolution suspending Plaintiff without pay for sixty days, demoting him to police officer and requiring completion of a course in sensitivity training before returning to active duty. 

In response, Plaintiff filed a three-count complaint in lieu of prerogative writ, contending that the evidence presented did not support the findings that were made, the procedure utilized did not conform to the Attorney General’s Internal Affairs policies and procedures that the Borough adopted, and that the increase in penalty was retaliatory.

The trial court, hearing the matter as a trial de novo, concluded that only two of the violations had been proven and that the penalty imposed by the Borough was excessive. The Court directed Plaintiff be suspended for two concurrent periods of thirty days without pay and complete a course in sensitivity training. This appeal ensued.

On appeal, the Appellate Division held that, when hearing a police disciplinary matter de novo, a trial court has the authority to impose a sanction other than that imposed by the municipality. In this case, the Court found no error in directing that Plaintiff not be demoted and instead imposing a suspension and directing attendance at sensitivity training. Moreover, the Court found that although Defendants violated the Attorney General’s guidelines for conducting a disciplinary hearing, the trial court correctly found that the errors did not prejudice the Plaintiff.

         

 

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Potential for Reimbursement of Wages Received During Period of Suspension

Posted on March 27, 2009 by Frank Crivelli

On March 20, 2009, the United States District Court for the District of New Jersey decided the case of Wade v. Colaner. In the case, plaintiff, a Tinton Falls police officer, was pulled over by New Jersey State Troopers for speeding. Plaintiff was subsequently charged with careless driving, obstruction of administration of law, and resisting arrest. On account of this incident, he was suspended from his position of employment.

Ultimately, plaintiff brought this action alleging excessive force and deliberate indifference. Defendants counterclaimed against Plaintiff for reimbursement of the wages paid to Plaintiff during his suspension and moved for summary judgment as to Plaintiff’s other claims. The Court denied Defendants’ motion to dismiss Plaintiff’s excessive force claim, but dismissed Plaintiff’s deliberate indifference claim. Moreover, the Court granted the Tinton Falls Defendants’ motion for summary judgment finding that Plaintiff was not entitled to a pre-suspension hearing and also granted the motion for summary judgment for reimbursement of the wages paid to Plaintiff during his suspension.

This case shows that a public safety officer who is suspended from his or her employment and is continuing to receive their wages during the period of suspension potentially may have to reimburse their employer for the wages they have received. As a result, public safety officers should be conscious of this possibility in the event they are suspended from employment.

A similar type concept was the subject of previous posts to this blog regarding the 180 day bill recently signed into law. As you will recall, the bill, in essence, allows certain law enforcement officers and firefighters to regain pay status when appeals of termination are not resolved within 180 days. Under this bill, if an officer and/or firefighter has been receiving his/her base salary after expiration of the 180 day period and he/she ultimately loses their appeal, the officer and/or firefighter will be required to reimburse the employing agency of department all of the base salary received during the period of appeal. Certain rules of law such as these make it imperative for public safety officers to be informed regarding all the potential consequences in the event they are targeted for suspension and/or removal.   

 

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