Opinion
DOCKET NO. A-2085-12T2
03-11-2014
DAVID B. BURNS, Plaintiff-Appellant, v. BOROUGH OF GLASSBORO, Defendant-Respondent.
Thomas A. Cushane argued the cause for appellant (The Cushane Law Firm, LLC, attorneys; Mr. Cushane, on the brief). William F. Cook argued the cause for respondent (Brown & Connery, LLP, attorneys; Mr. Cook, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Hayden and Rothstadt.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-0893-12.
Thomas A. Cushane argued the cause for appellant (The Cushane Law Firm, LLC, attorneys; Mr. Cushane, on the brief).
William F. Cook argued the cause for respondent (Brown & Connery, LLP, attorneys; Mr. Cook, on the brief). PER CURIAM
Plaintiff, David Burns, appeals from the January 7, 2013 Law Division order dismissing his action in lieu of prerogative writs against defendant, the Borough of Glassboro (the Borough). The question before us is whether a police officer is entitled to notice and hearing prior to the issuance of a written reprimand. After a review of the facts and applicable legal principles, we answer this question in the negative and affirm the dismissal of plaintiff's case.
I.
The material facts are not in dispute. Plaintiff was a police officer in the Borough of Glassboro Police Department (the Department) working as the School Resource Officer (SRO) at Glassboro High School, an eighteen-month assignment. His term as SRO was coming to an end, which prompted him to write a mass email on September 9, 2011, requesting support from parents and students to keep the SRO assignment. Internal Affairs began an investigation of the incident and plaintiff cooperated fully.
On April 3, 2012, Chief of Police Alex J. Fanfarillo served Burns with a written reprimand. The reprimand stated that plaintiff had sent the email "encouraging students, parents, and faculty members to publicly lobby for an indefinite extension of [his] assignment as an SRO." The letter stated that plaintiff's actions showed "a lack of sound judgment and [were] inconsistent with the rules, regulations and the performance expectations of the Glassboro Police Department," which gave the Chief of Police "the authority and sole discretion to make assignments that effect[ed] the daily operations of the police department." A written reprimand remains in a police officer's file permanently.
The Borough's "Personnel Policies and Procedures Manual," which applies to police officers, has a procedure to appeal a written reprimand by presenting a written appeal to the officer's immediate supervisor within ten working days, then to the department head, and ultimately to the Borough Administer.
On April 3, 2012, plaintiff requested a hearing to appeal the reprimand. Three days later, plaintiff's attorney sent a letter to Fanfarillo, stating that his client was "not guilty" of the allegations in the written reprimand, requesting an administrative hearing pursuant to N.J.S.A. 40A:14-147, and making a discovery demand. On May 1, 2012, the Borough declined to grant plaintiff a hearing, stating that plaintiff was merely reprimanded concerning a job assignment, was not disciplined, did not receive disciplinary charges, and N.J.S.A. 40A:14-147 did not require a hearing.
Subsequently, plaintiff filed a verified complaint in lieu of prerogative writs pursuant to Rule 4:69-1. The complaint asserted that the Borough "prematurely imposed disciplinary penalties upon [p]laintiff in violation of [his] constitutional due process rights" and state law, which entitled "a police officer accused of any misconduct" to written notice, disclosure of evidence, and an opportunity to be heard prior to the imposition of any discipline. Plaintiff sought a declaration that the written reprimand was a form of final discipline; was null, void, and unlawful because no pre-disciplinary hearing was held; and had to be removed from his file immediately. Plaintiff also requested attorney fees and costs.
On June 26, 2012, the Borough sent plaintiff a letter, stating that, as an "accommodation," it would conduct the requested hearing if plaintiff would withdraw the complaint. Plaintiff rejected this offer.
On July 17, 2012, the Borough filed a motion to dismiss or, in the alternative, for summary judgment. The judge heard oral argument on plaintiff's complaint and the Borough's motion on August 17, 2012.
Plaintiff argued that a police officer was entitled to a hearing on all levels of discipline, beginning with a written reprimand, since it became a part of the officer's file and was utilized for future promotions or disciplinary actions. The Borough countered that, under N.J.S.A. 40A:14-147, a written reprimand did not trigger any prior notice and hearing requirements because it did not carry a penalty. Moreover, the Borough stated that "injecting an adversary process" into the issuance of a written reprimand would be costly and time-consuming and would defeat the purpose of this form of discipline.
In his January 7, 2013 written order dismissing plaintiff's complaint, the judge found the written reprimand to be a form of final "minor" discipline according to the Department's Rules and Regulations Manual. However, he denied plaintiff's request to declare the reprimand null, void, and unlawful for lack of prior notice and a hearing pursuant to N.J.S.A. 40A:14-147. The judge observed in his January 7, 2013 oral opinion that, given the frequent occurrence of written reprimands, the Legislature had ample opportunity to amend N.J.S.A. 40A:14-147 to include written reprimands, and it did not. The judge declined to "intrud[e] into the legislative domain" by "giving more than the law, as it's settled right now, would otherwise afford."
The Manual defines discipline as oral reprimand, written reprimand, written recommendation for other disciplinary action and emergency suspension. Only disciplinary actions other than oral or written reprimands are considered subject to prior written notice and a hearing.
In making this determination, the judge observed that the implementation of the new procedure urged by plaintiff would constitute a major interference with the operation of a police department. In addition, the judge declined plaintiff's request to require the reprimand be permanently removed from his file, but required that it not be reinstated until plaintiff decided, within twenty-five days, to either accept or reject the Borough's open offer for a hearing. This appeal followed.
The Borough had temporarily removed the written reprimand from plaintiff's file during the course of the proceedings.
II.
This action was dismissed in the Law Division on the basis of a Rule 4:6-2(e) motion to dismiss that was converted into a motion for summary judgment, Rule 4:46-2, by the submission of certifications and documents. When deciding a motion for summary judgment, the court must take all reasonable inferences in the light most favorable to the non-moving party and only grant the motion where "no genuine issue as to any material fact" exists and "the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). On review of the grant of summary judgment, we utilize "'the same standard [of review] that governs the trial court.'" Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012) (quoting Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010)).
In this matter, there are no material facts in dispute and the issue is purely an interpretation of the applicable law. Consequently, we owe no deference to the trial court's interpretation. Hand v. Phila. Ins. Co., 408 N.J. Super. 124, 134 (App. Div.), certif. denied, 200 N.J. 506 (2009). "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Plaintiff first argues that his complaint should not have been dismissed because the trial judge found the written reprimand to be "minor" discipline, which demonstrated that plaintiff had successfully stated a cause of action. Further, plaintiff contends that because a minor discipline triggers the requirement for a hearing under N.J.S.A. 40A:14-147 or under constitutional due process principles, the judge erred in dismissing the complaint. Plaintiff alleges that the due process owed to him was notice and a hearing prior to the issuance of the reprimand letter. We disagree.
A.
We first consider plaintiff's contention that he had a statutory right to prior notice and a hearing. In New Jersey, the discipline of police officers is governed by N.J.S.A. 40A:14-147, which states that an officer shall not be "suspended, removed, fined or reduced in rank from or in office, employment, or position . . . except for just cause . . . and then only upon a written complaint setting forth the charge or charges against . . . [the] officer." The complaint must be served upon the officer "with notice of a designated hearing . . . by the proper authorities," and the hearing must be scheduled not less than ten or more than thirty days from the date the complaint was served. Ibid.
"Well-known principles of statutory construction guide [our] analysis[.]" State v. Hudson, 209 N.J. 513, 529 (2012). "The overriding goal is to determine as best we can the intent of the Legislature, and to give effect to that intent." Ibid. To that end, the court must look to the plain language of the statute as the best indicator of the intent of the Legislature. Ibid. "If the plain language leads to a clear and unambiguous result, then our interpretive process is over." Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189, 195 (2007); see also N.J.S.A. 1:1-1 (A statute's "words and phrases shall be read and construed with their context, and shall . . . be given their generally accepted meaning, according to the approved usage of the language.").
In deciphering the plain meaning of a statute, courts utilize the statute's internal structure and conventional meanings of its phrases and words. Evans v. Atlantic City Bd. of Educ., 404 N.J. Super. 87, 91 (App. Div. 2008). The court may utilize the doctrine of "expressio unius est exclusio alterius," which suggests that when items are specifically listed, those excluded were excluded purposefully. Id. at 92. Where a list is illustrative, it should ordinarily be preceded by the following types of phrases: "such as," "including," "may include," "in any of the following ways," or "including but not limited to." Ibid.
Applying these principles, we conclude that the express language, conventional meaning, and construction of the statute do not support plaintiff's argument. Here, the statute clearly and unambiguously lists suspension, removal, fines, and reduction in rank as the four instances where a police officer must receive notice and a hearing prior to the imposition of the penalty. See N.J.S.A. 40A:14-147. The specific language, which is not preceded by any phraseology to indicate that the list is demonstrative, denotes an exclusive list. It follows that by identifying four types of discipline requiring the specified notice and hearing, the Legislature excluded any other types of discipline.
Our function is not "to rewrite a plainly-written enactment of the Legislature []or presume that the Legislature intended something other than that expressed by way of the plain language." Borough of Glassboro v. Fraternal Order of Police, Lodge No. 108, 197 N.J. 1, 11 (2008) (internal quotation marks and citations omitted). Further, courts may not "read into a statute words that were not placed there by the Legislature." State v. Smith, 197 N.J. 325, 332 (2009). Had the Legislature wanted to include written reprimands as a form of discipline prompting notice and a hearing, it undoubtedly would have listed them. Consequently, the Legislature's failure to include a written reprimand in the list of disciplines covered by N.J.S.A. 40A:14-147 leads to the manifest conclusion that the Legislature did not intend that the statute include a written reprimand. We decline to inscribe the term "written reprimand" into the statute.
See Lee v. First Union Nat'l Bank, 199 N.J. 251, 259-61 (2009) (holding that securities did not fall within the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -106, where the Legislature amended the statute, but did not include securities in the definition of merchandise); Lourdes Med. Ctr. of Burlington Cnty. v. Bd. of Review, 197 N.J. 339, 366 (2009) (holding that had the Legislature intended a certain standard "it undoubtedly would have said so," declining to interfere with the Legislature's policy choices, and stating that "[i]f the Legislature wishe[d] to enact a different standard . . . , it [was] free to do so"); Vort v. Hollander, 257 N.J. Super. 56, 62 (App. Div.) (holding that attorney regulation was not covered under the CFA because "[h]ad the Legislature intended" such regulation "it surely would have stated [so] with specificity"), certif. denied, 130 N.J. 599 (1992).
B.
"[T]he Due Process Clause provides that certain substantive rights -- life, liberty, and property -- cannot be deprived except pursuant to constitutionally adequate procedures." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S. Ct. 1487, 1493, 84 L. Ed. 2d 494, 503 (1985). In order to trigger procedural due process rights, a property interest must take the form of "a 'legitimate claim of entitlement.'" Nicoletta v. N. Jersey Dist. Water Supply Comm'n, 77 N.J. 145, 154-55 (1978) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548, 561 (1972)).
"[O]nce it is determined that the Due Process Clause applies, 'the question remains what process is due.'" Loudermill, supra, 470 U.S. at 541, 105 S. Ct. at 1493, 84 L. Ed. 2d at 503 (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484, 494 (1972)). We are mindful that "'due process is flexible and calls for such procedural protections as the particular situation demands.'" N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 119 (2011) (quoting Morrissey, supra, 408 U.S. at 481, 92 S. Ct. at 2600, 33 L. Ed. 2d at 494). "'Simply put, not all situations calling for procedural safeguards call for the same kind of procedure.'" Jamgochian v. N.J. State Parole Bd., 196 N.J. 222, 240 (2008) (quoting State ex rel. D.G.W., 70 N.J. 488, 502 (1976)).
Indeed, "a trial-type hearing" is not always required to satisfy due process. In re Xanadu Project at the Meadowlands Complex, 415 N.J. Super. 179, 200 (App. Div.), certif. denied, 205 N.J. 96 (2010). Rather, the demands of due process "will be a function of what reason and justice require under the circumstances." In re Freshwater Wetlands Statewide Gen. Permits, 185 N.J. 452, 466-67 (2006).
The question of whether the imposition of a written reprimand of a police officer requires prior notice and a hearing has not been directly considered by our courts. In Romanowski v. Twp. of Brick, we expanded judicial review of suspensions of police officers, but did not include written reprimands. 185 N.J. Super. 197, 203-04 (Law Div. 1982), aff'd o.b., 192 N.J. Super. 79 (App. Div. 1983). In Cermele v. Twp. of Lawrence, we stated that "whether the penalty [on a municipal employee] was as minor as one day's suspension, or as major as dismissal, [the employee] had certain due process rights." 260 N.J. Super. 45, 47 (App. Div. 1992). In Fraternal Order of Police Lodge No. 1 Camden v. City of Camden Police Dept., the trial judge held that prior to the imposition of minor forms of discipline, due process protection, including notice and a hearing, must be afforded to police officers. 368 N.J. Super. 56, 64-65 (Law Div. 2003). For purposes of the court's decision, the parties stipulated that "oral reprimands, performance notices and written reprimands" were not considered minor discipline. Id. at 58 n.1. Hence, plaintiff's reliance on these cases is misplaced. While they extended due process protections to "minor" forms of discipline, those minor forms did not include written reprimands.
Other jurisdictions have addressed whether a pre-disciplinary hearing is required prior to the issuance of a written reprimand. California and Pennsylvania, both declined to extend pre-disciplinary safeguards to written reprimands. See Stanton v. City of W. Sacramento, 277 Cal. Rptr. 478, 480 (Ct. App. 1991) (finding no due process violation where officer was afforded appeal to police chief after being issued written reprimand regarding discharge of his weapon); Bogdanovic v. Swatara Twp., 23 Pa. D & C.3d 115, 121-22 (C.P. Dauphin Cty. 1982) (finding that reprimand letters are not adjudications requiring due process protections because no direct action results and future effects were too speculative and did not implicate protected rights). In New York, if a letter of reprimand is "nothing more than a critical admonition," then it does not have the requisite formalities to trigger a hearing requirement. In re Hoffman, 652 N.Y.S.2d 346, 348 (App. Div. 1997); see also In re Civil Serv. Emps. Ass'n, Inc., 611 N.Y.S.2d 895, 896 (App. Div. 1994).
Here, plaintiff must demonstrate a legitimate claim of sufficient entitlement to warrant the amount of due process he demands. Certainly, if plaintiff was suspended, removed, demoted, or fined, he would have a claim. See N.J.S.A. 40A:14-147; Nicoletta, supra, 77 N.J. at 154-55; Cermele, supra, 260 N.J. Super. at 47. However, the issuance of a written reprimand does not directly and immediately result in deprivation of any property or liberty interest. Plaintiff was not punished in any way; he was merely being warned regarding his behavior concerning a job assignment and instructed to act differently in the future. While a written reprimand could have some future effect on promotions, discipline, or future employment, that speculative effect is too attenuated to rise to a legitimate claim of significant entitlement warranting prior notice and a hearing. See In Re: Allegations of Physical Abuse at Blackacre Acad., 304 N.J. Super. 168, 185 (App. Div. 1997) (noting that conjecture about possible future harm is too speculative to invoke the protection of the due process clause and obtain a hearing).
As plaintiff has retired since instituting this action, the Borough claims his action is moot, but since a written reprimand could potentially affect future employment, we decline to dismiss the action as moot. See N.J. Div. of Youth & Family Servs. v. J.C., 423 N.J. Super. 259, 263 (App. Div. 2011) (holding appeal not moot if adverse consequences linger).
Plaintiff also suggests that he had a liberty interest in maintaining his reputation, and the issuance of the written reprimand without prior notice and a hearing deprived him of his liberty interest without due process. We find no merit in this argument. Plaintiff received an internal reprimand, which was to be kept in his file, not disseminated to any outside entity or person, or published by the Department in any manner. Plaintiff has merely indulged in speculation rather than provide specific facts showing that the written reprimand resulted in damage to his reputation. Such speculation does not demonstrate an immediate deprivation of a property or liberty interest mandating a due process notice and hearing. See In re an Allegation of Physical Abuse Concerning L.R., 321 N.J. Super. 444 (App. Div. 1999) (no liberty interest harmed where dissemination very limited).
Importantly, due process is not rigid. See Kelly v. Sterr, 62 N.J. 105, 107, cert. denied, 414 U.S. 822, 94 S. Ct. 822, 38 L. Ed. 2d 55 (1973). When no legislative direction exists, as is the case here, administrative agencies can mold the procedures utilized. Ibid. Indeed, on minor matters, all that may be required is some opportunity for the employee to present his or her position. Cermele, supra, 260 N.J. Super. at 47. Thus, even if plaintiff had demonstrated a protectable due process interest, he had an opportunity to present his position through the Borough's appeals process for written reprimands.
In sum, plaintiff was not entitled to notice and a hearing under N.J.S.A. 40A:14-147, and he failed to assert any legitimate claim entitling him to a due process right to prior notice and a hearing before receiving a written reprimand.
As this appeal solely concerns the right to advanced notice and hearing for a written reprimand, we have not been presented with and do not reach the issue of what due process recourse a police officer may have after the imposition of that discipline and the exhaustion of any municipal appeal process. Cf. Cermele, supra, 260 N.J. Super. at 48.
--------
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION