SERGEANT MELVIN WEBB v. NEW JERSEY TRANSIT CORPORATION NEW JERSEY TRANSIT POLICE DEPARTMENT (2011)

Plaintiff Melvin Webb, a sergeant in the New Jersey Transit Police Department (NJTPD) appeals from a March 20, 2009 order of the Law Division (a) denying his application for injunctive relief and (b) granting the cross-motion of NJTPD and New Jersey Transit Corporation to dismiss Webb's complaint with prejudice.¹  The injunctive relief sought by plaintiff included a declaration that disciplinary charges filed against Webb on November 19 and 20, 2007 are null and void and without effect.   Webb also requested an injunction to restrain and enjoin NJTPD from acting on the disciplinary charges.   Webb contends that the disciplinary charges were not filed within the time prescribed by N.J.S.A. 27:25-15.1c, which provides that such charges must be “filed no later than the 45th day after the date on which the person filing the complaint obtained sufficient information to file the matter upon which the complaint is based.”

In denying Webb's application and in granting NJTPD's cross-motion, Judge Paul J. Vichness ruled that (a) there was no jurisdiction in the Law Division to consider the asserted action in lieu of prerogative writs because it was brought against a state agency as opposed to a municipality;  (b) there had been no exhaustion of administrative remedies pursuant to the parties' collective bargaining agreement;  (c) there were factual disputes as to when the person with authority to file the disciplinary complaint, Chief of Police of NJTPD, obtained sufficient information to file charges;  and (d) the disputed factual issues should be addressed by an Administrative Law Judge (ALJ) of the Office of Administrative Law (OAL) during the course of its hearing on the contested charges.   We agree with the reasoning of Judge Vichness, and substantially for the reasons he expressed, we affirm.   We direct, however, that the order dismissing the complaint be modified to reflect that the dismissal is without prejudice.

Significantly, Webb is a member of the Fraternal Order of Police Lodge # 37 (FOP), and the relationship of the parties is, therefore, subject to the terms of a collective bargaining agreement.²  Two articles in the collective bargaining agreement specifically address disciplinary appeals.   Section A of Article XIX, entitled “Grievance Procedure” limits the basis for discipline, specifying that “[superior officers] shall not be disciplined or dismissed from service without just cause.”   Section B of Article XIX mandates that “[a]ny disagreement, dispute or grievance (including discipline) which shall arise between the parties with respect to the interpretation or application of the terms of this Agreement shall be adjusted” by steps leading to final and binding arbitration.³

In addition, Article XLII, entitled “Discipline”, applies solely to disciplinary disputes involving NJTPD police officers.   Section 1 reiterates that a NJTPD police officer may not be suspended, removed, fired or reduced in rank, except for just cause.   Section 2 essentially tracks N.J.S.A. 27:25-15.1c, in that it provides a complaint charging a violation of the internal rules and regulations of the NJTPD must be “filed no later than the 45th day after the date on which the person filing the complaint obtained sufficient information to file the matter upon which the complaint is based.”   Section 3 sets forth the procedural rights and limitations that apply when a NJTPD police officer is charged with a disciplinary violation.   For example, Section 3(a) prescribes a timetable for a hearing and Section 3(b) provides that NJTPD police officers who are charged “have the right to be represented by Counsel at no cost to NJ T[PD].” Section 3(c) states:  “Such transit police officer may waive the right to a hearing and may appeal the disposition (hearing may be held in absentia) directly to any available authority specified by law or regulation, or follow any other procedure recognized by a contract, as permitted by law.”

Section 4 provides “A transit police officer who has been tried and convicted upon any disciplinary charge or charges may obtain a review thereof by the Superior Court.”   That section does not specify in which division of the Superior Court the review is to be obtained.

Two separate sets of disciplinary charges were filed against Webb on November 19 and 20, 2007.   Webb contends that both sets of charges were filed well beyond the “45-day rule” set forth in the collective bargaining agreement and in N.J.S.A. 27:25-15.1c. The statute, more fully provides that:

A person shall not be removed from employment or a position as a police officer of the [NJTPD] pursuant to section 2 of P.L.1989, c. 291 (C.27:25-15.1), or suspended, fined or reduced in rank for a violation of the internal rules and regulations established for the conduct of employees of the [NJTPD], unless a complaint charging a violation of those rules and regulations is filed no later than the 45th day after the date on which the person filing the complaint obtained sufficient information to file the matter upon which the complaint is based.   A failure to comply with this section shall require a dismissal of the complaint.

The statute provides further that:

The 45-day time limit shall not apply if an investigation of a police officer for a violation of the internal rules and regulations of the [NJTPD] is included directly or indirectly within a concurrent investigation of that officer for a violation of the criminal laws of this State;  the 45-day limit shall begin on the day after the disposition of the criminal investigation.

I.

A chronology of the events and circumstances leading to the charges against Webb may be briefly summarized as follows:

A.

On March 15, 2007, the Professional Standards and Special Investigation Unit of the NJTPD (Internal Affairs) received an anonymous letter alleging, among other things, that Webb had sexual intercourse with a mentally ill woman, S.S., while on NJTPD property.   Senior Investigator in Internal Affairs, Maureen Scianimanico, interviewed the woman identified in the letter, as well as other possible witnesses.   On May 16, 2007, Scianimanico forwarded information concerning the woman's arrest (on an unrelated matter) and Webb's possible interference with that arrest to the Camden County Prosecutor's Office (Prosecutor) for its review.

In a letter dated June 27, 2007, the Prosecutor advised that it was declining to pursue criminal charges against Webb. Accordingly, NJTPD continued its departmental investigation, and in an October 30, 2007 report to Chief Joseph Bober, Scianimanico concluded that although the allegations contained in the anonymous letter had not been substantiated, other allegations and instances of conduct unbecoming an officer were substantiated against Webb. Based on that report, on November 17, 2007, Bober approved the issuance of disciplinary charges against Webb. These charges, dated November 19 2007, were served upon Webb alleging violation of “Rules and Regulations 7.1 Conduct Unbecoming an Officer.”

B.

In an unrelated matter, Webb answered a call on September 3, 2007, to assist a fellow officer with a disorderly persons suspect who was acting aggressively towards officers.   The suspect was arrested, and as he was being processed, the suspect not only maintained his aggressive demeanor, he also continuously spat at the officers.   This prompted the officers to place a medical mask on the suspect's face.   Each time, however, the suspect, though handcuffed, was able to remove the mask.   Eventually, Webb instructed the subordinate officers to cover the suspect's mouth with duct tape.   A description of this incident was included in a report dated September 5, 2007.   Thereafter, an investigation ensued that included, among other things, an October 1, 2007 interview of Webb. Eventually, Chief Bober approved the issuance of charges against Webb that were dated November 20, 2007.   On November 26, 2007, Webb was served with the charge that alleged “violation of Rules and Regulations 7.12, Unsatisfactory Performance.”

II.

Webb argues that there was bureaucratic delay on the part of NJTPD in conducting the investigation into both sets of charges and in charging him upon receipt of “sufficient information.”   On that premise, Webb filed his application in the Law Division, on August 18, 2008, seeking an order to show cause with interim restraints (1) to restrain and enjoin defendants from acting on the disciplinary charges filed against him;  (2) to declare the charges against Webb null and void and without effect;  (3) to direct the removal of all related documentation regarding the charges from Webb's personnel file;  and (4) to award Webb the cost of suit and reasonable attorney fees.   The application also included a verified complaint in lieu of prerogative writs with temporary restraints.⁴  On October 8, 2008, NJTPD cross-moved to dismiss the complaint, and on March 20, 2009, after hearing oral arguments, Judge Vichness entered the order from which this appeal is taken denying Webb's application.   The judge stated:

the Order to Show Cause is denied.   You don't belong here.   There's a fact question as to whether or not it [the filing of the charge] was done within time.   Did they do it diligently in getting to the Chief, did they drag their-that's a fact question and you know, I assume there's going to be discovery done on it that hasn't been done yet.   That's what the Office of Administrative Law can set up.

And I-so I don't find there's irreparable harm.   I find that to come here would be a violation of the Collective Bargaining Agreement.   So wrong place at the wrong time.   So I'm going to dismiss this complaint.

The court's order memorializing that ruling was entered the same day, and Webb filed his notice of appeal on May 6, 2009.

The briefs of the parties disclose that a departmental hearing was commenced.   Appellant's brief indicates Webb moved in the departmental hearing to dismiss the charges pursuant to the forty-five day rule, but that there has been no ruling on the motion.   The brief of NJTPD indicates in a footnote that the departmental hearing in this matter was conducted on May 6 and June 20, 2009, that it has concluded, and that a decision was pending.   At oral argument, the parties indicated they still await a decision.   It is obvious, therefore, that the parties are aware of the obligation to pursue the grievance procedure, and they are in fact pursuing that course even as they pursue the presumed litigation alternative.

Webb argues that we should apply a de novo standard of review and reverse the Law Division's ruling that denied his application for preliminary and summary relief.   We do not reach the standard of our review because we agree with Judge Vichness's determination that plaintiff's complaint did not belong in the Law Division.   The matter was not properly before the Law Division, because a state agency was involved and because factual disputes abound that should be presented first in arbitration proceedings or in departmental or administrative hearings.

As we have recognized, “[c]hallenges to municipal action are generally brought by actions in lieu of prerogative writs.”  Hawthorne PBA Local 200 v. Hawthorne, 400 N.J.Super. 51, 55 (App.Div.2008) (citing Rule 4:69-1 to -7;  Pressler, Current N.J. Court Rules, comment 1 on Rule 4:69-1 (2008));  Dolan v. City of E. Orange, 287 N.J.Super. 136, 142 (App.Div.1996).   On the other hand, judicial review of final decisions or action of any state administrative agency or officer is by appeal to this court.  Id. at 142;  see R. 2:2-3(a)(2).

Cases upon which Webb relies in his appellate brief to support the propriety of his action in lieu of prerogative writs in the Law Division involving municipalities are readily distinguishable.   See, e.g., O'Rourke v. Lambertville, 405 N.J.Super.   8 (App.Div.2008);  Aristizibal v. City of Atlantic City, 380 N.J.Super.   405 (Law Div.2005);  Grill v. City of Newark, 311 N.J.Super.   149 (Law Div.1997).   Those cases concern municipalities or municipal agencies.   New Jersey Transit Corporation and NJTPD are not municipalities or municipal agencies.   New Jersey Transit is rather a state agency and NJTPD is a division of New Jersey Transit.   Consequently, their actions are not appropriately subject to challenge in the Law Division pursuant to an action in lieu of prerogative writs under Rule 4:69.   Judicial review of their actions is pursuant to Rule 2:2-3(a)(2), which provides for appeals as of right to the Appellate Division “to review final decisions or actions of any state administrative agency or officer ․ except that review pursuant to this subparagraph shall not be maintainable so long as there is available a right of review before any administrative agency or officer, unless the interest of justice requires otherwise.”

We recognize that Webb argues the interest of justice requires his claim that NJTPD failed to satisfy the forty-five day rule be considered by the court.   We are unpersuaded, as was Judge Vichness, that such an injustice exists.   What is evident is that there exist factual disputes as to when Chief Bober obtained sufficient information to file the charges, and that Webb is obliged to exhaust his contractual and administrative remedies.

“Exhaustion of all administrative relief is ordinarily required before an appeal may be taken to the Appellate Division.”   Pressler & Verniero, Current N.J. Court Rules, comment 3.5 on R. 2:2-3(a)(2) (2011);  Garrow v. Elizabeth Gen. Hosp. & Dispensary, 79 N.J. 549, 558-59 (1979) (citing Central R.R. Co. v. Neeld, 26 N.J. 172, 178, cert. denied, 357 U.S. 928, 78 S.Ct. 1373, 2 L. Ed.2d 1371 (1958)).   Further, Rule 2:2-3(a)(2) expressly declares the general rule that, so long as there is still a right of review within the administrative agency, a decision of an administrative agency is not appealable as of right to the Appellate Division.   The appellant must exhaust all administrative remedies first, although that requirement can be waived in the interest of justice.  R. 2:2-3(a).

We acknowledge the exhaustion rule, itself, does not amount to a rigid jurisdictional command;  rather, its application is discretionary.  Sanchez v. Dep't of Human Servs., 314 N.J.Super. 11, 32 (App.Div.1998).   There are several exceptions which, if applicable, obviate the convenience and override the interest of justice in having to exhaust administrative remedies.

Generally, the exhaustion rule will not be applied:  (1) when only a question of law exists;  (2) when administrative remedies would be futile;  (3) when irreparable harm would result;  (4) when jurisdiction of the agency is doubtful;  or (5) when an overriding public interest calls for a prompt judicial decision.

[Triano v. Div. of State Lottery, 306 N.J.Super. 114, 121-22 (App.Div.1997).]

Here, Webb submits that his case should receive judicial review because the issue involves the application of a statute to undisputed facts which are not within the special expertise of the agency and that the trial court erred by requiring him to first exhaust administrative remedies.   We disagree with the characterization of the facts as undisputed, and we concur with the Law Division's decision.

In support of his position on appeal, Webb cites to Roberts v. Div. of State Police, 191 N.J. 516 (2007).   In Roberts, the Supreme Court ruled that the exhaustion of administrative remedies rule did not apply to the challenge by State Police Officer Roberts of disciplinary charges to this court.  Id. at 520 n.2. In a footnote, the Court noted that Roberts first filed a complaint in the Law Division and that matter was transferred to this court.  Id. at 519 n.1. The Court also noted in a second footnote that “the State Police moved to dismiss the matter on the ground that Roberts had failed to exhaust his administrative remedies.”  Id. at 520 n.2. The State Police argued that, in light of the fact that Roberts had not challenged the disciplinary action through the requisite administrative channels, there was no final agency decision that the Appellate Division could review.  Ibid. We rejected that assertion, since the issue there presented was a question of law, exhaustion doctrine did not apply.  Id. at 520 n.2 (citing Roberts v. Div. of State Police, 386 N.J.Super. 546, 550-51 (App.Div.2006)).   We further rejected the State Police argument in that case was that the invocation of the exhaustion of administrative remedies rule “would serve no useful purpose.”  Roberts, supra, 386 N.J.Super. at 550.   We reasoned:

Documents submitted on Roberts' behalf demonstrate that the State Police have declined to address the implementation of the [statute] administratively at contractual proceedings held to review grievance appeals of written reprimands, and have instead “defer[red] to the judicial forums” such statutory interpretation issues.   In this circumstance, we find a remand to permit further administrative consideration of this issue would be fruitless.   Where administrative “remedies are futile, illusory or vain, elemental considerations of justice will dictate that the courts reject their invocation as a barrier to judicial relief” against allegedly arbitrary or illegal action.

[Id. at 551 (emphasis added) (citing Naylor v. Harkins, 11 N.J. 435, 444 (1953)).]

In this case, the record does not indicate that the defendants have “deferred to the judicial forums” or that NJTPD has refused to address the matter administratively.  Ibid. Moreover, we perceive no injustice in requiring the parties to exhaust available remedies.

The briefs of the parties disclose that the departmental hearing has commenced.   Appellant's brief indicates Webb moved in the departmental hearing to dismiss the charges pursuant to the forty-five day rule, but that it had not received a ruling on its motion.   The brief of NJTPD specifies in a footnote that the departmental hearing in this matter was conducted on May 6 and June 20, 2009, that the hearing has concluded, and that a decision was pending.   At oral argument, the parties indicated they still await a decision.

The facts of this case do not suggest that exhaustion of administrative remedies would be fruitless or futile.   The agency has not rendered a final decision.   It may decide the forty-five day rule has been violated and dismiss the charges, thereby obviating the need for judicial review.   If it decides otherwise, Webb may then appeal the final agency decision.   The appeal is, however, at this time unfounded and premature.

The remaining arguments raised by Webb, which we have not specifically addressed, lack sufficient merit to warrant discussion in a written opinion.   R. 2:11-3(e)(1)(E).

Affirmed, as modified.

FOOTNOTES

FN1. Plaintiff's verified complaint names as defendants NJTPD and New Jersey Transit Corporation.   As New Jersey Transit Corporation is a state agency of which NJTPD is a division, unless it is otherwise indicated or dictated by context, we treat NJTPD and New Jersey Transit Corporation interchangeably, as one entity..  FN1. Plaintiff's verified complaint names as defendants NJTPD and New Jersey Transit Corporation.   As New Jersey Transit Corporation is a state agency of which NJTPD is a division, unless it is otherwise indicated or dictated by context, we treat NJTPD and New Jersey Transit Corporation interchangeably, as one entity.

FN2. Lodge # 37 is the exclusive representative for all superior officers below the rank of captain of New Jersey Transit.  N.J.S.A. 34:13A-3(e)..  FN2. Lodge # 37 is the exclusive representative for all superior officers below the rank of captain of New Jersey Transit.  N.J.S.A. 34:13A-3(e).

FN3. “The general rule is that an employee seeking to bring a contract grievance ‘must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress.’   Exceptions to this general rule exist where the union has breached its duty of fair representation, where the grievance procedures have been repudiated, where resort to the grievance and arbitration provisions would be futile, and where the parties to the collective bargaining agreement have expressly agreed that arbitration was not the exclusive remedy[.]”  Thompson v. Joseph Cory Warehouses, 215 N.J.Super. 217, 220 (App.Div.1987) (internal citations omitted)..  FN3. “The general rule is that an employee seeking to bring a contract grievance ‘must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress.’   Exceptions to this general rule exist where the union has breached its duty of fair representation, where the grievance procedures have been repudiated, where resort to the grievance and arbitration provisions would be futile, and where the parties to the collective bargaining agreement have expressly agreed that arbitration was not the exclusive remedy[.]”  Thompson v. Joseph Cory Warehouses, 215 N.J.Super. 217, 220 (App.Div.1987) (internal citations omitted).

FN4. The filing stamp on the copy of the verified complaint in the appendix of the appellant bears the date May 19, 2008, and the certifications of counsel are dated May 16, 2008.   We do not understand the disparities in the filing date and the dates on the documents, but this does not affect or hamper our consideration of this appeal..  FN4. The filing stamp on the copy of the verified complaint in the appendix of the appellant bears the date May 19, 2008, and the certifications of counsel are dated May 16, 2008.   We do not understand the disparities in the filing date and the dates on the documents, but this does not affect or hamper our consideration of this appeal.

PER CURIAM