BOROUGH OF STANHOPE v. JOSEPH DULIO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2889-05T22889-05T2

BOROUGH OF STANHOPE,

Plaintiff-Appellant,

v.

JOSEPH DULIO,

Defendant-Respondent.

______________________________________

 

Submitted January 18, 2007 - Decided April 13, 2007

Before Judges Lefelt, Parrillo and

Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County,

L-0670-04.

Apruzzese, McDermott, Mastro & Murphy, attorneys for appellant (Robert J. Merryman, of counsel and on the brief).

Alterman & Associates, attorneys for respondent (Daniel M. Replogle, III, on the brief).

PER CURIAM

This appeal arises out of an employment agreement executed between plaintiff, the Borough of Stanhope (Borough), and defendant, Joseph Dulio. Under the agreement Dulio agreed to resign from his position as a municipal police officer in the event he failed to meet all of the conditions for continued employment outlined in the agreement. Dulio failed to satisfy two of the conditions, clearance from the Borough's consulting psychologist and the Sussex County Prosecutor to resume his duties, but he refused to resign. The Borough filed a verified complaint seeking specific performance or declaratory judgment relief. Dulio filed a motion to dismiss for lack of subject matter jurisdiction and failure to exhaust administrative remedies. Judge William J. McGovern, III, in a well-reasoned written opinion, dismissed the complaint on jurisdictional grounds. We affirm.

Dulio commenced his career as a Borough police officer in 1995. On February 22, 2004, as a result of a domestic violence complaint filed against him, a temporary restraining order (TRO) was issued. The TRO prohibited Dulio from possessing any weapons, including firearms. As the ability to carry a duty weapon is a requirement for a police officer, Dulio was immediately suspended from duty and required to undergo a fitness-for-duty evaluation. On March 9, 2004, the Borough's consulting psychologist examined Dulio and determined that he was not fit for duty.

In April 2004, Dulio, assisted by counsel, entered into a written agreement with the Borough. Under its terms, the Borough agreed to forego instituting administrative removal proceedings for a period of six months, during which Dulio would be suspended from duty and receive psychological treatment. Dulio's restoration to full police duty status was contingent upon him meeting the conditions specifically outlined in Paragraph 9 of the agreement:

a. Full compliance with all of the terms of this agreement;

b. Full cooperation on the part of Dulio in attending and participating in psychotherapy;

c. Full clearance by Dulio's treating psychologist and the Borough's consulting psychologist that Dulio is fit to return to full and unrestricted duty;

d. Clearance by the Sussex County Prosecutor for Dulio to carry a firearm and to return to work as a police officer;

e. No incidents of off-duty misconduct on the part of Dulio requiring the intervention of the Stanhope Police Department or any other police department.

The agreement also called for Dulio to submit his letter of resignation by October 16, 2004, should he fail to meet any of the conditions imposed. Additionally, under Paragraph 17, Dulio agreed "that his failure to abide by the terms of this agreement will subject him to additional disciplinary action up to and including termination." (emphasis added).

Dulio commenced weekly sessions with his psychologist. At the conclusion of those sessions, his psychologist opined "within a reasonable degree of professional certainty, Officer Dulio is psychologically and emotionally fit to reassume the full, unrestricted duties of a police officer." On September 28, 2004, the Borough's consulting psychologist concluded otherwise:

If reports by the Department regarding Mr. Dulio's ongoing relationship with Ms. DiRenzo are substantiated, and/or if he in fact did make veiled threats to the Police Secretary regarding Mr. Zweigle, these would be considered further evidence of ongoing instability and dishonesty (in light of his fervent denial during this assessment). As a result, he would not be considered fit for duty.

If the predominance of the above reports about Mr. Dulio are determined to be unsubstantiated or false, he should still be required to engage in individual counseling (with marital counseling recommended, but not mandated) for an additional three months prior to his return to duty, under the same conditions previously recommended.

Based upon the consulting psychologist's recommendations and conclusions, the Sussex County Prosecutor did not clear Dulio to return to duty and the Borough Chief of Police requested that Dulio submit his resignation letter on or before October 21, 2004, with an effective date of October 17, 2004. Dulio did not submit the letter of resignation, nor did he resign.

On December 6, 2004, the Borough filed a complaint and order to show cause seeking specific performance of its contract, namely, that the court order Dulio to submit his letter of resignation. Alternatively, the Borough sought declaratory relief in the form of a judgment deeming Dulio's resignation effective as of November 23, 2004. The Borough also requested that the matter proceed in a summary manner pursuant to Rule 4:67-1(b). Dulio moved to dismiss the complaint for lack of subject matter jurisdiction and the Borough's failure to exhaust its administrative remedies. He argued that as a permanent civil service employee, he was vested with certain pre-termination hearing and appeal rights. See Melani v. County of Passaic, 345 N.J. Super. 579, 586 (App. Div. 2001) (noting that ordinarily permanent civil service employees can be discharged or demoted only for cause and have pre-termination appeal and hearing rights).

The judge implicitly rejected Dulio's jurisdictional argument by agreeing with the Borough's position that under In re T.P.D., 314 N.J. Super. 643 (Law Div. 1997), aff'd o.b., 314 N.J. Super. 535 (App. Div. 1998), a police officer may enter into a binding contract or agreement to resign or to terminate his or her employment relationship with a municipality. See also McBride v. Atlantic City, 146 N.J. Super. 498, 502-03 (Law Div. 1974) (acknowledging the ability of a police officer to enter into an agreement to resign, but placing the burden of proof to establish duress on the officer), aff'd, 72 N.J. 201 (1976). However, in his interpretation of the agreement, the judge found that the agreement "lacks any self-operating procedure or mechanism for Dulio's resignation, removal, or termination, if Dulio failed to satisfy all of the conditions of Par. 9, or if Dulio failed to submit his resignation, as in this case." In the absence of such language, the judge concluded that the court would "not now re-word or reform the parties' contract, to correct this flaw or oversight" and dismissed the complaint. The judge also concluded that based upon the submissions of the parties, the complaint "in the first instance, should not have been filed under Rule 4:67-1" because "the mater in controversy is not one capable of being 'completely disposed of in a summary manner.'" R. 4:67-1. The present appeal followed.

The Borough raises the following points for our consideration:

POINT I

THE TRIAL COURT ERRED IN CONCLUDING THAT THE SUPERIOR COURT HAS NO JURISDICTION TO ENFORCE A WRITTEN CONTRACT.

POINT II

THE PROCEEDING IN SUPERIOR COURT WAS NOT A DISCIPLINARY HEARING.

POINT III

THE COURT'S INTERPRETATION OF THE PARTIES' AGREEMENT IS CONTRARY TO THE APPLICABLE LAW.

POINT IV

PLAINTIFF IS ENTITLED TO AN ORDER FOR SPECIFIC PERFORMANCE.

As a reviewing court, we owe no special deference to the trial court's interpretation of the law and the legal consequences that flow from established facts. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); State v. Ernst & Young, L.L.P., 386 N.J. Super. 600, 617 (App. Div. 2006). We are, however, satisfied that Judge McGovern correctly concluded that under the terms of the agreement, in the event Dulio failed to satisfy the conditions for continued employment, departmental disciplinary action was the agreed upon course of action.

A court's goal in interpreting an agreement is to ascertain the intention of the parties as evidenced by the language used in the agreement. Borough of Princeton v. Bd. of Chosen Freeholders of Mercer, 333 N.J. Super. 310, 325 (App. Div. 2000), aff'd, 169 N.J. 135 (2001). The true intention of the parties is not gleaned from focusing upon an isolated phrase but by looking to the terms of the contract as a whole. Id. (citing Wheatly v. Sook Suh, 217 N.J. Super. 233, 239 (App. Div. 1987)). Additionally, "the conduct of the parties after execution of the contract is entitled to great weight in determining its meaning." Wheatly, supra, 217 N.J. Super. at 239 (citing Joseph Hilton & Assoc., Inc. v. Evans, 201 N.J. Super. 156, 171 (App. Div.), certif. denied, 101 N.J. 326 (1985)).

As the judge observed, Paragraph 17, which expressly permitted the Borough to institute disciplinary proceedings in the event Dulio failed to comply with the conditions set forth in the agreement, contained no waiver by Dulio of any rights afforded to him pursuant to N.J.S.A. 40A:14-147. The court noted that elsewhere in the agreement, specifically Paragraph 14, Dulio expressly waived his right to appeal the previously imposed three-day and two-day suspensions:

Dulio agrees to waive a hearing on the discipline imposed for both incidents and further agrees to waive any and all rights to challenge the discipline imposed in this matter with the Department of Personnel or through the Grievance/Arbitration Procedure set forth in the Collective Bargaining Agreement between the PBA and the Borough of Stanhope.

Because Paragraph 14 expressly waived Dulio's appeal rights and there was no comparable language contained in Paragraph 17, the judge was convinced that Dulio intended no such waiver if the Borough initiated additional disciplinary action:

The only hearing which Dulio agreed to waive in the Agreement, was as to other discipline which had been imposed as noted in paragraphs 12 and 13 of the Agreement, as to other matters. Had Dulio agreed to waive his right under N.J.S.A. 40A:14-147 to a disciplinary hearing based on his failure to comply with Pars. 9, and/or 11, or based on his failure to comply with other relevant paragraphs of the Agreement, and if the Agreement had contained appropriate provisions regarding termination or removal, the Court's decision in this matter might well be different.

We agree with Judge McGovern's conclusion that had the parties intended that Dulio waive his statutory rights to challenge further disciplinary action, language similar to that contained in Paragraph 14 would have been included in Paragraph 17. "[W]hen a statutory provision has defining import, its application must be negotiated away clearly and unmistakably." Camden Bd. of Educ. v. Alexander, 181 N.J. 187, 196 (2004) (citing Red Bank Reg'l Educ. Ass'n v. Red Bank Reg'l High Sch. Bd. of Educ., 78 N.J. 122 (1978)). Thus, "contractual language alleged to constitute a waiver will not be read expansively." Red Bank, supra, 78 N.J. at 140 (citing United Steelworkers v. Nat'l Labor Relations Bd., 536 F.2d 550, 555 (3d Cir. 1976)).

Once the Borough initiated disciplinary proceedings against Dulio, he exercised his right to the full panoply of statutory rights to which he is entitled as a police officer. See N.J.S.A. 40A:14-147. As Judge McGovern noted, there is no dispute that the Superior Court lacks original jurisdiction to hear police disciplinary matters. See Grubb v. Borough of Hightstown, 333 N.J. Super. 592, 598 (Law Div. 2000), aff'd, 353 N.J. Super. 333 (App. Div. 2002). See also Grasso v. Borough Council of Glassboro, 205 N.J. Super. 18, 27 (App. Div. 1985), certif. denied, 103 N.J. 453 (1986). The Borough may not usurp that process with an additional action to enforce the resignation provision of the agreement in the absence of language in the agreement that clearly and unmistakably permitted the Borough to do so. Alexander, supra, 181 N.J. at 196.

Affirmed.

 

The TRO was ultimately dismissed at the request of the alleged victim.

In addition to filing the instant complaint, the Borough instituted administrative disciplinary proceedings on November 16, 2004, by filing a Preliminary Notice of Disciplinary Action charging Dulio with the inability to perform his duties as a police officer due to the firearms restriction and the results of the psychological evaluation, as well as his "[f]ailure to comply with the employment agreement entered into 4/20/04" under N.J.A.C. 4A:2-2.3(a)(3) and (11), and proposed to remove Dulio from his position effective November 23, 2004. On January 28, 2005, a departmental hearing was held and a Final Notice of Discipline was issued terminating Dulio's employment effective April 4, 2005. Dulio filed an appeal with the Office of Administrative Law (OAL) on May 18, 2005. A hearing was subsequently held in April 2006 before an Administrative Law Judge, who summarily recommended affirming the "disciplinary action." Dulio filed an exception. The Borough filed its cross-exception. On September 7, 2006, the Merit System Board declined to adopt the recommendation and remanded the matter to the OAL for a full hearing where it remains pending.

(continued)

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A-2889-05T2

April 13, 2007