IN RE: THE DISCIPLINARY ACTION OF POLICE OFFICER THOMAS WHITE.  -------------------------------- (2011)

Former Montclair Police Officer Thomas White appeals from a September 4, 2009, final judgment of the Law Division on remand denying White's request for back pay for the time he was suspended from the Montclair Police Department.   He was suspended on April 14, 2004, and on April 6, 2005, the hearing officer found White guilty of all charges leveled against him and White's employment was terminated.   He appealed to the Law Division, which affirmed the termination on July 20, 2007, but only based on one of multiple violations.   White appealed, and we affirmed.  In re White (White I ), No. A-0028-07 (App.Div. Nov. 3, 2008) (slip op. at 14-27), certif. denied, 199 N.J. 131 (2009) (White II ).   However, we remanded one issue--whether White had raised the issue of entitlement to back pay while on suspension during the proceedings before the hearing officer or the Law Division, id. at 27-28, because it was not entirely clear whether the issue had been raised previously in a brief or letter to the Hearing Officer or judge that was not included in the parties' appendices.   If it had been so raised, we found that the holding of Herzog v. Township of Fairfield, 349 N.J.Super. 602, 608 (App.Div.2002), would have been violated since “White's conduct was not ‘equivalent to the most serious crimes involving moral turpitude or dishonesty.’ ”  Id. at 28.   On remand, the Law Division was to determine whether “this issue was raised below, and if so, for entry of a judgment for back pay from the date of suspension to the date of the Hearing Officer's determination, April 6, 2005.”  Ibid. The Supreme Court denied White's Petition for Certification on April 2, 2009.   White II, supra, 199 N.J. 131.   The Law Division judge to whom the matter was assigned ultimately determined that White had not raised the issue in the prior proceedings and denied his request for back pay on September 4, 2009.   This appeal followed, and we now affirm.

The facts relevant to White's suspension were amply discussed in our previous opinion, and we incorporate those facts here.  White I, supra, slip op. at 2-10.   We need only discuss the evidence presented at the remand hearing.

The remand judge permitted the parties to supplement the record to demonstrate whether White claimed an entitlement to back pay during his period of suspension without pay prior to his first appeal to us.   White, however, relied on the record that was before us at the time of his appeal, implicitly conceding that he had no proof that he had previously raised the issue.   The Township of Montclair (the Township) submitted letters to the court emphasizing its position that White had not previously raised “the back pay issue.”

The parties submitted briefs and presented oral argument to the judge on August 14, 2009.   Counsel for White argued that the issue on remand was whether White's conduct “was equivalent to the most serious of crimes ․ involving moral turpitude,” or “[w]hether or not he argued that he did not commit a crime of moral turpitude.”   Counsel also asserted that White's “entitlement to back pay was both explicit[ly] and implicitly raised.”   Moreover, counsel asserted that White had raised this issue “throughout the proceedings” by contending that “his conduct was innocent behavior, that at worst it was a de minimus violation[,] ․ and that he did not violate any rules or regulations.”

Township counsel framed the issue on remand more narrowly and defined it as “whether or not the back pay issue was brought in the record below and if it was then there should be a judgment for back pay.”   Further, counsel for the Township argued that no written document or statement on the record addressed the issue of whether White's suspension should be with pay.

The judge stated, “There's nothing before me that the issue was raised below any differently outside the record that was presented to the Appellate Division.”   He concluded:

I can't find any evidence that's presented to me that suggests that this issue, and I interpret this issue to mean the issue of the entitlement to pay ․ during the period of suspension, whether it[']s suspension with pay or without pay, there is no reference to that issue in any papers in this [c]ourt.   I believe it's implicit but if it were implicit then the Appellate Division didn't have to send it back.   And the only sense that I can make is the Appellate Division is suggesting that people should make motions like they did in Herzog if they want to preserve it.

In this appeal, White contends that he was entitled to back pay because the Township suspended him improperly;  he consistently asserted that his conduct was not serious throughout the proceedings before the hearing officer and the Law Division;  policy considerations dictate an award of back pay as a matter of law;  the Township mischaracterized the issue to be decided on remand;  and he is due at least $66,637.46 in back pay.   The Township asserts that White is not entitled to back pay because, unlike Herzog, he did not file a motion for back pay;  N.J.S.A. 40A:14-149.3 precludes an award of back pay;  and White's arguments exceed the scope of our remand.

When reviewing the findings of a Law Division judge, “the court's ‘function on appeal is not to make new factual findings but simply to decide whether there was adequate evidence before the ․ [c]ourt to justify its finding.’ ”  In re Phillips, 117 N.J. 567, 579 (1990) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).   As a result, “unless the appellate tribunal finds that the decision below was ‘arbitrary, capricious or unreasonable’ or ‘[un]supported by substantial credible evidence in the record as a whole,’ the de novo findings should not be disturbed.”  Ibid. (quoting Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980);  Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).   White has not produced any letter or brief submitted to the hearing officer or the first judge in which he raised a Herzog issue and specifically demanded an award of back pay to the date of the hearing.   Thus, we have no basis for disturbing the remand judge's determination that the issue was not raised prior to White's first appeal.

According to the Supreme Court, “[i]t is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available.”  Nieder v. Royal Indem.   Ins. Co., 62 N.J. 229, 234 (1973) (citation omitted).   An exception may be made for issues that are “jurisdictional in nature or substantially implicate the public interest.”   N.J. Div. of Youth & Family Servs. v. M.C., 201 N.J. 328, 339 (2010) (citing Cnty. of Essex v. First Union Nat'l Bank, 186 N.J. 46, 51 (2006)).   Neither exception to the Nieder rule was present during the first appeal, nor is either present now.

Had we not had some slight uncertainty respecting whether the issue of an entitlement to back pay had been raised prior to the appeal that was simply not reflected in the record on appeal, we would not have remanded for a determination of that fact issue.   We would have refused to consider the issue of back pay under Nieder, as we do now that the issue has been decided.

Affirmed.

PER CURIAM