CITY OF ELIZABETH et al. v. SERGEANT JOHN GUSLAVAGE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2423-05T32423-05T3

CITY OF ELIZABETH and ELIZABETH

POLICE DEPARTMENT,

Plaintiffs-Appellants,

v.

SERGEANT JOHN GUSLAVAGE,

Defendant-Respondent.

___________________________________

 

Submitted November 13, 2006 - Decided November 29, 2006

Before Judges Lintner and C.L. Miniman.

On appeal from the Superior Court of

New Jersey, Law Division, Union County,

L-3306-04.

William R. Holzapfel, City Attorney, attorney for appellants (Raymond T. Bolanowski, First Assistant City Attorney, on the brief).

Thomas G. Roth, attorney for respondent.

PER CURIAM

Plaintiffs, City of Elizabeth (the City) and Elizabeth Police Department (the Department), appeal from a judgment entered by Judge Barisonek, requiring them to pay attorney fees, costs, and prejudgment interest incurred by defendant, John Guslavage, a Sergeant in the Department, in successfully defending against departmental charges brought against him in 1994. We affirm.

In 1994, defendant was assigned to the Narcotics Division as a supervisor. The Division was involved in ongoing investigations of two bars, Cervantes Lounge and Omar's Place, concerning drug trafficking. At the time, defendant was the recipient of information from N.M., a confidential informant, that certain officers of the police department were complicit in illegal drug activities. After defendant was rebuffed when he informed his superiors about this information, he contacted the U.S. Attorney's Office, which agreed to undertake an investigation. In October 1994, after learning that defendant contacted federal authorities, the Department brought disciplinary charges against him for violating a direct order not to go to the U.S. Attorney's Office, along with various other claims of dereliction of duties, including improper performance, disobedience of orders, and disrespect to superiors and others.

In April 1997, while the 1994 charges were pending before a hearing officer, the Department filed a second set of charges against defendant, claiming that he attempted to have N.M. testify falsely concerning six separately listed facts. The hearings for the 1994 and 1997 charges were consolidated by consent of the parties. Hearings spanned the next five years and a decision was eventually rendered on January 4, 2002. The hearing officer found defendant not guilty of all the specifications in the 1994 charges. He found defendant guilty of only one of the six specifications in the 1997 charges, and ordered defendant be suspended for five days.

Defendant sought reimbursement of counsel fees and costs for defending the 1994 charges, under the collective bargaining agreement between the City and the Superior Officer's Association and N.J.S.A. 40A:14-155. The parties agreed that the hearing officer should decide the issue and that the collective bargaining agreement and the statute governed the dispute. In April 2002, the hearing officer decided that defendant was entitled to reimbursement of the expenses incurred in defending against the 1994 charges. In October, he entered an order requiring plaintiffs to pay defendant $88,321.78.

Plaintiffs appealed the award to the State Department of Personnel, Merit System Board. However, the Merit System Board refused to hear the appeal, concluding that plaintiffs, as the appointing authority of the hearing officer, had no right to appeal the decision of their own designated representative. Plaintiffs filed a verified complaint, action in lieu of prerogative writs, under R. 4:69-1, seeking reversal of the hearing officer's decision. Plaintiffs also filed a notice of appeal of the Merit System Board's determination. Judge Beglin stayed the Law Division action pending determination of the appeal before us. On August 24, 2004, we affirmed the Merit System Board's determination, declining jurisdiction and directing that the matter be entertained by the Law Division as a declaratory judgment action. See R. 4:42-3.

On July 20, 2005, Judge Barisonek determined that although there was a correlation between the 1994 and 1997 charges, they were nevertheless "separate and distinct" because they did not originate at the same time. He also found that the consent to consolidation of the proceedings on the charges did not, for disposition purposes, render them the same charges. He concluded that, under N.J.S.A. 40A:14-155, defendant was entitled to counsel fees and costs. Noting that there was no dispute over counsel's hourly rate, Judge Barisonek ordered defendant's counsel to submit billing records allocated to the 1994 charges during the time the 1997 charges were pending. On November 30, 2005, Judge Barisonek determined that defendant was entitled to $82,307.22 for counsel fees and costs and $5870.93 for prejudgment interest. In awarding prejudgment interest, the judge found that defendant's counsel had not been paid for his services for an "inordinate amount of time" and that the City, although a public entity, benefited from the use of that money during that time.

On appeal, plaintiffs assert that the agreement to consolidate the 1994 and 1997 charges established that they grew out of a "singular relationship" because the 1997 charges arise out of and are connected with the 1994 charges. Plaintiffs argue that the cases were "so intertwined" that "extracting . . . which testimony and evidence related to a particular charge" and allocation of attorney's fees would be "impossible." Plaintiffs maintain that because the full set of charges was not dismissed, defendant is not entitled to counsel fees and costs under N.J.S.A. 40A:14-155 and the collective bargaining agreement. Finally, plaintiffs contend that the judge misapplied the law because "each and every charge" was not dismissed.

We find no error in the proceedings and affirm for the reasons given by Judge Barisonek in his comprehensive opinions rendered from the bench on July 20 and November 30, 2005. The judge's determination is based on findings of fact adequately supported by the evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). The points raised by plaintiffs on appeal are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E).

Affirmed.

 

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A-2423-05T3

November 29, 2006