MARK SOLINSKI v. TOWNSHIP OF MANALAPAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1297-09T21297-09T2

MARK SOLINSKI,

Plaintiff-Appellant,

v.

TOWNSHIP OF MANALAPAN; TARA

LOVRICH, in her capacity as

the Township Administrator;

and W. DAVID RICHARDSON, in

his capacity as the Township's

Health Officer,

Defendants-Respondents.

________________________________

 

Argued June 9, 2010 - Decided

Before Judges Sabatino and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-0373-09.

Stephen B. Hunter argued the cause for appellant (Detzky & Hunter, LLC, attorneys; Mr. Hunter, of counsel and on the brief).

Roger J. McLaughlin argued the cause for respondents (McLaughlin, Gelson, D'Apolito & Stauffer, LLC, attorneys; Mr. McLaughlin, of counsel; Richard J. Shaklee, on the brief).

PER CURIAM

Plaintiff Mark Solinski appeals the Law Division's dismissal of his action in lieu of prerogative writs, in which he challenged his termination as the animal control officer of defendant Manalapan Township appointed under N.J.S.A. 4:19-15.16b.

Plaintiff, an at-will employee, was not protected by civil service rules or represented by a labor union. At the time of his discharge, plaintiff had been employed by the Township for more than twenty-three years. He was about a year short of eligibility for a twenty-five-year pension benefit with medical coverage.

The Township discharged plaintiff after an internal departmental hearing at which he was represented by counsel. As a result of that hearing, it was determined that plaintiff had violated several policies and work rules. In particular, the Township found that plaintiff had improperly used a municipal vehicle for several days for his personal use; had transported personal gasoline containers on the vehicle despite having been told not to do so; and had violated written instructions from his supervisor concerning interactions with citizens about the spaying or neutering of feral cats.

Prior to his discharge, the Township had disciplined plaintiff on other occasions for his work performance and improper conduct. Initially, the Township suspended plaintiff a single day in October 2007. Subsequently, the Township suspended plaintiff for three weeks for another infraction.

The departmental hearing that ultimately resulted in plaintiff's discharge was conducted pursuant to disciplinary procedures for non-civil service employees which the Township had adopted by ordinance. The Township admittedly deviated from those procedures by suspending plaintiff without pay pending his departmental hearing for more than ten days without formal approval of the Township Committee. The Township rectified this oversight by providing plaintiff with backpay for the period of his unauthorized pre-hearing suspension. The Township also strayed from its written procedures by neglecting to serve written charges upon plaintiff before his hearing. Nevertheless, the Township argued, and the Law Division agreed, that plaintiff was not materially prejudiced at his hearing by the absence of such written charges, given the lengthy prior history of reprimands and admonitions about plaintiff's work performance.

In his complaint in lieu of prerogative writs, plaintiff alleged that the Township had acted arbitrarily and capriciously in discharging him, and had deprived him of due process and other procedural protections. Plaintiff further asserted that the Township had abused his status as an at-will employee, and that its asserted reasons for disciplining him were pretextual.

In a comprehensive forty-eight page decision, Assignment Judge Lawson rejected plaintiff's claims of wrongful discharge in their entirety. This appeal followed.

Plaintiff argues to us that he was deprived of due process by the Township; that legal authorities governing the discipline of police officers should be analogously applied to him as an animal control officer; and that his termination was arbitrary, capricious, and unreasonable.

It is undisputed that, when a public employee such as plaintiff is "unprotected by Civil Service or by any statutory tenure, contractual commitment or collective negotiations . . . the employer, even though a public employer, has the right to discharge such employee with or without cause." Grexa v. State, Dep't of Human Servs., 168 N.J. Super. 202, 207 (App. Div. 1978) (citing Nicoletta v. N. Jersey Dist. Water Supply Comm'n of N.J., 77 N.J. 145, 150 (1978)). Moreover, a municipality's decision on a personnel matter is presumptively valid and generally should not be disturbed by the courts unless it is proven to be arbitrary and capricious. Bryant v. City of Atlantic City, 309 N.J. Super. 596, 610 (App. Div. 1998).

In light of these standards, we affirm the Law Division's dismissal of plaintiff's lawsuit, essentially for the cogent reasons detailed in Judge Lawson's written decision dated October 5, 2009.

Although we are mindful of plaintiff's lengthy service for the Township and the adverse pension consequences of his discharge, we concur with Judge Lawson that the Township had ample reasons to justify removing him from his at-will position. That is particularly so, given the series of written reprimands, supervisory directives, and lesser disciplinary sanctions that preceded the ultimate discharge. Plaintiff's transgressions in continuing to deviate from the clear policies of his employer were adequately proven and, at least if considered cumulatively if not in isolation, warranted the ultimate sanction of dismissal that was imposed.

We also agree with Judge Lawson's conclusion that the Township, in spite of the noted procedural glitches, "afforded [p]laintiff a hearing that indeed comported with principles of basic or fundamental fairness."

 
The balance of plaintiff's arguments lack sufficient merit to warrant discussion in this written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

(continued)

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A-1297-09T2

July 6, 2010