JAMES PECK v. CITY OF HOBOKEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1203-08T11203-08T1

JAMES PECK,

Plaintiff-Respondent,

v.

CITY OF HOBOKEN and

HOBOKEN POLICE DEPARTMENT,

Defendants-Appellants.

________________________________________________________________

 

Argued September 29, 2009 - Decided

Before Judges Baxter and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-6041-06.

Sean D. Dias argued the cause for appellants (Scarinci Hollenbeck, attorneys; Mr. Dias, of counsel; Gina L. Anton, on the brief).

Catherine M. Elston argued the cause for respondent (C. Elston & Associates, LLC, attorneys; Ms. Elston, on the brief).

PER CURIAM

Defendants, the Hoboken Police Department and the City of Hoboken (the City), appeal from the grant of summary judgment to plaintiff James Peck in which the judge granted plaintiff's application for attorneys' fees and costs pursuant to N.J.S.A. 40A:14-155. That statute permits an award of attorneys' fees to a police officer who obtains a dismissal of disciplinary charges filed against him, but only when the disciplinary charges arise out of, and are directly related to, the lawful exercise of police powers in the furtherance of the officer's official duties. We reject the City's argument that plaintiff's motion for summary judgment should have been denied because there were genuine issues of material fact on the question of whether plaintiff's actions arose out of, and were directly related to his official duties. We likewise reject the City's claim that res judicata and collateral estoppel precluded the award. We affirm.

I.

Plaintiff's request for attorneys' fees, which is the subject of this appeal, had its genesis in the City's effort to expand the pool of sergeants eligible to take a promotional examination to attain the rank of police lieutenant. We begin our discussion of the factual record there.

In light of the impending expiration of an eligibility list for the rank of lieutenant, the State Department of Personnel (DOP) notified the City that the City would be included in the 2006 testing cycle for that position. By letter of January 20, 2006 to DOP, the City requested that the promotional examination for police lieutenant be cancelled because the City's table of organization would be at a maximum level within the next fiscal quarter, and there were no anticipated vacancies for at least one year. Despite the City's request for an exemption, DOP notified the City on May 3, 2006 that its request for cancellation of the promotional examination had been denied. Consequently, a few weeks later, DOP issued a promotional announcement with a closing date of August 31, 2006, which permitted those officers with one-year of permanent service as a police sergeant to apply for that examination.

Despite its request six months earlier that it be excluded from the testing cycle, and its assertion that there would be no vacancies for over one year, the City requested on June 21, 2006 that the promotional announcement be amended to expand the number of sergeants eligible to take the examination. It is undisputed that the son of the Chief of Police would be eligible to sit for the promotional examination only if DOP were to grant the City's June 21, 2006 request to expand the eligibility criteria. DOP, however, was not aware of that fact at that time.

In response to the City's June 21, 2006 request, DOP notified the City it would only consider the request if the City could obtain written consent to the abbreviated study period from all police sergeants who were eligible for the examination (waiver affidavit).

To accomplish DOP's request, on August 17, 2006, the Chief directed all fourteen sergeants to respond to the police department's training room. The Chief told the assembled officers that "it's an all or nothing deal. If anyone objects to the waiver, then the DOP won't go for it." All sergeants present were asked by the Chief to sign the waiver affidavit that the Chief had prepared. All sergeants who were present did so, including plaintiff. Shortly thereafter, DOP granted the City's request and issued an amended promotional announcement.

Days after DOP issued the expanded promotional announcement, DOP received an anonymous letter alleging that improper motives led to the City's request to expand the eligibility for the promotional examination. The author claimed that Christopher LaBruno, the Chief's son, was the reason for the City's request for a larger applicant pool as he would not otherwise be eligible to take the test. The anonymous author also alleged that the Chief had previously been opposed to opening the examination to employees with less than one year of experience, but suddenly reversed his position only to benefit his son. The writer also asserted that anyone who refused to sign the affidavit would "fac[e] the wrath" of the Chief.

DOP notified the City that in light of the "disturbing" allegations contained in the anonymous letter, it would not consent to an expansion of the criteria for eligibility to take the promotional exam unless each of the fourteen sergeants signed a second affidavit, again waiving their right to object to the abbreviated time for preparation for the promotional examination.

In response to DOP's request for a second set of written waivers, the City assembled all fourteen officers on August 23, 2006, and again presented them with affidavits waiving their right to object to the shortening of the study period. All fourteen signed the affidavit, which included a statement that the signing was voluntary, and was not the result of any threats or coercion. This time, however, the Chief was not present; the affidavits were distributed by the PBA President, Sergeant Kenneth Ferrante, as well as Lieutenant Cruise.

Shortly thereafter, the City began an internal affairs investigation to uncover the author of the anonymous letter. On September 8, 2006, plaintiff met with individuals in the internal affairs division, and admitted writing the letter in question.

On October 27, 2006, the City served a preliminary notice of disciplinary action (PNDA) on plaintiff, charging a violation of N.J.A.C. 4A:2-2.3(a)(6) (conduct unbecoming a public employee). In the PNDA, the City alleged that the information plaintiff provided under oath in his August 23, 2006 affidavit was false, because he swore in the affidavit that he had not been threatened or coerced. The City sought plaintiff's suspension for six days.

On December 13, 2006, before the disciplinary hearing was scheduled, plaintiff filed a verified complaint in lieu of prerogative writs seeking to enjoin the City from proceeding with the disciplinary charges. In his complaint, plaintiff sought, among other things, an award of costs and attorneys' fees. On March 7, 2007, Judge Tolentino issued an order dismissing, with prejudice, the disciplinary charges the City had instituted against plaintiff. The judge's March 7, 2007 order neither granted nor denied plaintiff's request for attorneys' fees, and was instead silent on that subject.

Judge Tolentino's dismissal of the disciplinary charges was based upon her conclusion that the filing of the disciplinary charges was the result of "retaliation against this plaintiff, for speaking out against the procedures that would promote preferential treatment for the police chief's son. This retaliatory action . . . violates the aspect of acting in good faith that the law requires." Plaintiff never appealed from the denial of his request for attorneys' fees. On April 13, 2007, Judge Tolentino denied the City's motion for reconsideration. In the City's appeal to this court, we affirmed Judge Tolentino's denial of the City's motion for reconsideration of the attorneys' fee award to plaintiff.

In so doing, we observed that Judge Tolentino properly proceeded with a summary disposition of plaintiff's complaint in lieu of prerogative writs because the City was "on notice of plaintiff's contention that the disciplinary charge was retaliatory and null and void." We reasoned:

[The PNDA] was filed in retaliation for abuses reported by plaintiff and the related affidavit was signed out of fear that the refusal to sign it would likely cost him his job. There was no basis for the court to find any materially disputed facts . . . . Defendants do not identify any disputed fact that would warrant a plenary hearing.

. . . .

Nothing in the record . . . demonstrated that the trial court wrongfully exercised its discretion by denying defendants' motion for reconsideration. Plaintiff sought to maintain his employment with the Hoboken Police Department without being subject to discipline he viewed as pretextual and frivolous. He sought no monetary damages. Defendants were not prejudiced by the trial court's reasoning or by its result.

[Peck v. City of Hoboken, No. A-4590-06 (App. Div. July 21, 2008) (slip op. at 10-12).]

Following our affirmance of the dismissal of the PNDA, plaintiff filed a motion for attorneys' fees and costs pursuant to N.J.S.A. 40A:14-155. After oral argument, Judge Tolentino held that plaintiff's motion for attorneys' fees was not barred by either res judicata or collateral estoppel, and that such an award satisfied the requirements of N.J.S.A. 40A:14-155. By order of September 17, 2008, the judge ordered the City to pay plaintiff $58,637 in attorneys' fees and costs for plaintiff's successful defense of the disciplinary charges.

The judge found that the requirements of N.J.S.A. 40A:14-155 were satisfied, reasoning "that the [p]laintiff was in the performance of his official duties [at the time he signed the August 23, 2006 affidavit] because he was directed by the Chief of Police to execute that [a]ffidavit. That was in accordance with his duties as a police officer following the rules of his supervisor. So that certainly was within the performance of his duties . . . ."

On appeal, the City maintains that the award of attorneys' fees pursuant to N.J.S.A. 40A:14-155 was error because the existence of genuine issues of material fact required the judge to deny plaintiff's motion. The City argues:

The City's position is that Sergeant Peck was not acting in furtherance of his official duties. Sergeant Peck asserts that he was acting within the scope of his duties. This disagreement creates a genuine issue with regard to a fact material to the determination of whether or not [p]laintiff is entitled to an award of attorneys' fees.

. . . .

Similarly, Judge Tolentino ruled that because [p]laintiff was following an "order" from his Chief, he was acting in furtherance of his official duties. However, even [p]laintiff, in his brief supporting his [s]ummary [j]udgment motion, referred to the Chief's instruction as a "request," rather than "order." And although it is certainly part of [p]laintiff's duties as a police officer to follow orders from his Chief, . . . summary judgment precluded a more detailed analysis of whether [p]laintiff's specific actions were in furtherance of his duty as an officer or whether they were a pretext for some ulterior motive, such as the advancement of his own career goals. . . . For example, [p]laintiff now claims that he was ordered by Chief LaBruno to sign the affidavit, but in fact, the Chief was not even present for the August 23, 2006 signing.

For these reasons, the City argues that the grant of summary judgment "was premature, if not entirely improper, and . . . the judgment should be reversed."

The City also argues that no interpretation of the facts would warrant a conclusion that plaintiff's signing of the August 23, 2006 affidavit arose out of, and was directly related to, the lawful exercise of his police powers in furtherance of his official duties, as required by the statute. Finally the City argues that an attorneys' fee award is barred by res judicata and collateral estoppel.

II.

In reviewing a trial court's grant of summary judgment, this court applies the same standard. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). The trial court's legal conclusions are subject to de novo review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

A court should grant summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). An issue of fact is considered genuine "only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." Ibid.

In other words, the trial court must determine whether the evidence presented, "when viewed in the light most favorable to the non-moving party," is "sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Where "there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue [is] insufficient to constitute a 'genuine' issue of material fact for purposes of Rule 4:46-2." Ibid.

The statute at issue, N.J.S.A. 40A:14-155, provides, in relevant part, that police officers who successfully defend themselves "in any action or legal proceeding arising out of and directly related to the lawful exercise of police powers in the furtherance of . . . official duties," shall be entitled to be "reimbursed for the expense of his defense." At appellate oral argument, the City acknowledged that if Judge Tolentino was correct when she determined that the Chief "ordered" plaintiff to sign the affidavit on August 23, 2006, then plaintiff would be entitled to an award of attorneys' fees under that statute. The City maintains, however, that Judge Tolentino's conclusion in that regard was incorrect, especially in light of the genuine issues of material fact that surrounded the signing of the second waiver affidavit on August 23, 2006.

In support of its argument that the conduct of plaintiff prompting the disciplinary proceedings did not "aris[e] out of" and was not "directly related to [plaintiff's] lawful exercise of police powers in the furtherance of his official duties," as required by N.J.S.A. 40A:14-155, the City relies on Oches v. Township of Middletown Police Department, 155 N.J. 1, 8 (1998). There the Court upheld an administrative law judge's (ALJ) finding that the plaintiff was not acting in the performance of his official duties at the time of the conduct that gave rise to the disciplinary proceedings. In Oches, the plaintiff tape recorded his promotional interview in violation of Middletown's General Order #80-2, which regulates police officers in the use of electronic surveillance equipment while in the performance of their official duties. Id. at 4-5. The Court affirmed the ALJ's conclusion that because the tape recording incident "occurred while [the plaintiff] was participating in an interview concerning a potential promotion," he "had not been performing his official duties when the conduct giving rise to the charges against him occurred." Id. at 5.

Arguing that plaintiff's conduct here, like the plaintiff in Oches, arose in connection with an effort to secure a promotion, the City argues that we should determine, as the Court did there, that plaintiff was not in the course of performing his official duties when he signed the affidavit in question on August 23, 2006. The City reads Oches too broadly. Although the motivation of the Oches plaintiff is not specified in the Court's decision, it is evident that at the time the plaintiff surreptiously tape recorded his own promotional interview, he did so for purely private and personal reasons to enhance his own prospects of advancement. No doubt, such reasoning underlies the Court's conclusion that the plaintiff had not been performing his official duties when the conduct giving rise to the charges against him occurred.

Here, in contrast, as we discuss below, the record demonstrates that when plaintiff signed the affidavit on August 23, 2006, he did so as part of a Department-wide effort to persuade DOP to reconsider its earlier decision and permit the City to amend the promotional announcement to expand the number of sergeants eligible to take the examination. Thus, any benefit that may have inured to plaintiff from having the opportunity to take the promotional examination pales in comparison to the larger and more significant purpose for which the August 23, 2006 round of affidavits was sought, namely, to permit the City to expand the total number of superior officers in its ranks by making the promotional examination available. Viewed in this light, it is abundantly clear that plaintiff's conduct furthered departmental interests, arose out of, and was directly related to, the lawful exercise of his police powers in the furtherance of his official duties. Unquestionably, that was not the case in Oches. Therefore, Oches is distinguishable and the City's reliance on it is misplaced.

We turn next to the City's claim that because there were genuine issues of material fact concerning the circumstances under which plaintiff signed the August 23, 2006 affidavit, the grant of summary judgment was premature and should be reversed. Judge Tolentino concluded that because the Chief had "ordered" plaintiff and the other thirteen sergeants to sign the affidavit on August 23, 2006, and because plaintiff prevailed when he obtained the dismissal of the PNDA relating to such signing, plaintiff was entitled to an award of attorneys' fees. Implicit in the judge's reasoning is a conclusion that complying with a direct order from the Chief constitutes per se lawful exercise of police powers in the furtherance of plaintiff's official responsibilities.

Thus, we turn our attention to whether there was a genuine issue of material fact, Brill, supra, 142 N.J. at 530, on the question of whether the Chief ordered plaintiff to sign the affidavit on the day in question. In undertaking that analysis, we recognize that disputed issues "of an insubstantial nature," or those that are merely "'gauzy,'" Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75 (1954), cannot overcome a motion for summary judgment.

In evaluating Judge Tolentino's conclusion, we accept plaintiff's argument that the events of August 23, 2006 cannot be viewed in isolation, but must instead be evaluated in light of the totality of the circumstances. There is no doubt, and the City does not dispute, that the first round of affidavits, which were signed on August 17, 2006, were signed at the direction of the Chief. The Chief ordered all fourteen sergeants to report to the meeting room where he presented them with the affidavits and instructed them that it was "an all or nothing deal," meaning that unless each and every one of them executed the affidavit, the promotional exam could not be given. Under those circumstances, there could be no serious dispute that the Chief ordered plaintiff and the others to sign the affidavit on August 17, 2006.

Six days later, on August 23, 2006, the Chief was not the one who directed all of the sergeants to report to the meeting room where they were again presented with affidavits. Instead, Ferrante and Cruise presented the affidavits. In effect, the City asks us to ignore the compulsion that existed surrounding the signing of the August 17, 2006 affidavits, or instead assume that any coercion that may have existed that day entirely dissipated, and to conclude that each of the sergeants present in the room six days later had a realistic opportunity to decline to sign the affidavits that were presented.

In light of plaintiff's knowledge that the Chief had ordered the signing of the August 17, 2006 affidavit and that the Chief had taken a personal interest in obtaining DOP's approval for the expansion of the list of those eligible to take the promotional examination, the City's position defies credulity. There can be no genuine dispute of material fact that the compulsion exerted by the Chief in connection with the signing of the August 17, 2006 affidavits carried over with equal force and equal intensity to the signing of the affidavits on August 23, 2006. No reasonable factfinder could find otherwise.

Viewed in this light, any conclusion that there was a genuine issue of material fact concerning the circumstances on August 23, 2006 constitutes the "gauzy" and "insubstantial" opposition that judges are expected to reject. The City's contention that genuine issues of material fact existed is meritless. We concur in Judge Tolentino's conclusion that the Chief ordered plaintiff to sign the affidavit on August 23, 2006. We affirm the resulting conclusion that plaintiff was entitled to attorneys' fees under N.J.S.A. 40A:14-155.

III.

The City also argues that plaintiff's entitlement to attorneys' fees is barred by the entire controversy and res judicata doctrines. The City argues that because plaintiff's verified complaint sought an award of costs and counsel fees, when the court dismissed the PNDA as retaliatory but did not at the same time award plaintiff any attorneys' fees, the court rejected his fee request. Therefore, the City argues, plaintiff is barred now from re-litigating the same issue upon which he obtained an adverse result earlier. We disagree.

As is evident from the face of the March 7, 2007 order, the judge did not reject plaintiff's request for attorneys' fees. Instead, she seems to have inadvertently neglected to address the issue. We do not view the omission of any reference to attorneys' fees as tantamount to the denial of such fees. Thus, we reject the City's res judicata contentions.

The entire controversy doctrine requires the joinder of "'virtually all causes, claims, and defenses relating to a controversy between the parties engaged in litigation.'" Oltremare v. ESR Custom Rugs, Inc., 330 N.J. Super. 310, 314-15 (App. Div. 2000) (quoting Cogdell v. Hosp. Ctr., 116 N.J. 7, 16 (1989)). Accordingly, "[n]on-joinder of claims required to be joined by the entire controversy doctrine shall result in the preclusion of the omitted claims to the extent required by the entire controversy doctrine . . . ." R. 4:30A.

However, it is clear that "the entire controversy doctrine does not apply to claims that are unaccrued at the time of the underlying litigation[.]" Olds v. Donnelly, 150 N.J. 424, 435 (1997). Here, plaintiff's entitlement to attorneys' fees under N.J.S.A. 40A:14-155 did not accrue until after we affirmed the dismissal of the disciplinary charge against him. Thus, plaintiff's right to attorneys' fees was "unaccrued," ibid., at the time he was first before Judge Tolentino. We thus reject the City's entire controversy claim.

 
Affirmed.

As we have already discussed, the City agrees that if the Chief ordered plaintiff to sign the August 23, 2006 affidavits, the requirements of N.J.S.A. 40A:14-155 would be satisfied.

(continued)

(continued)

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A-1203-08T1

October 16, 2009