ELWOOD FAUNCE v. CITY OF ATLANTIC CITY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2587-09T2

A-2588-09T2

A-2589-09T2

ELWOOD FAUNCE,

Plaintiff-Respondent,

v.

CITY OF ATLANTIC CITY,

Defendant-Appellant.

_________________________________

KEVIN MUNN,

Plaintiff-Respondent,

v.

CITY OF ATLANTIC CITY,

Defendant-Appellant.

__________________________________

ANDREW LUBACZEWSKI,

Plaintiff-Respondent,

v.

CITY OF ATLANTIC CITY,

Defendant-Appellant.

__________________________________

Argued March 29, 2011 Decided June 23, 2011

Before Judges Wefing, Koblitz and Hayden.

On appeal from Superior Court of New Jersey,

Law Division, Atlantic County, Docket Nos.

L-3944-09, L-3839-09, and L-3892-09.

Steven S. Glickman argued the cause for

appellant (Ruderman & Glickman, P.C., attorneys;

Mr. Glickman, of counsel and on the briefs).

Michelle J. Douglass argued the cause for

respondent Elwood Faunce (The Douglass Law

Firm, L.L.C., attorneys; Ms. Douglass, on

the joint brief).

Michael J. Mackler argued the cause for

respondent Kevin Munn (Goldenberg, Mackler,

Sayegh, Mintz, attorneys; Mr. Mackler, on the

joint brief).

D. William Subin argued the cause for respondent

Andrew Lubaczewski (Mr. Subin, on the joint brief).

PER CURIAM

Defendant City of Atlantic City appeals from orders entered by the trial court dismissing with prejudice disciplinary charges the City had filed against plaintiffs Kevin Munn, Andrew Lubaczewski, and Elwood Faunce. We have consolidated the appeals because they arise out of a common factual background and present the same legal issues. After reviewing the record in light of the contentions advanced on appeal, we affirm the trial court's orders.

Munn, Lubaczewski, and Faunce are all firemen with the Atlantic City Fire Department. Munn and Faunce are captains, Lubaczewski a watch commander; all are assigned to Fire Station No. 2 in Atlantic City. On September 15, 2009, the City filed a Preliminary Notice of Disciplinary Action against all three, based upon an incident that allegedly occurred in May 2009. The Notices charged the three with incompetency, inefficiency or failure to perform their duties; conduct unbecoming a public employee; neglect of duty; and other sufficient cause. In November, the City filed amended Notices; while the charges remained the same, the amended specifications were amplified and changed the date of the alleged incident. The specifications against Munn and Faunce were identical. Each amended specification provided in pertinent part:

Fire Captain [name] was assigned to Fire Station No. 2 . . . . Captain [name] failed to have control of his company by allowing subordinates, over whom he had command, to violate Atlantic City Fire Department Rules and Regulations . . . because he failed to monitor the activities of his subordinates.

. . . Captain [name] allowed Atlantic City

Fire Department property to be misused by a subordinate and a female visitor . . . . Captain [name] had a duty to strictly conform to Atlantic City Fire Department Rules and Regulations but failed to do so by allowing four (4) female visitors into Fire Station No. 2 or by allowing the four (4) female visitors to Fire Station No. 2 to remain in the fire station after 10:00 p.m.

The amended specification with respect to Lubaczewski provided in pertinent part:

. . . As part of his duties as Watch Commander . . . Lubaczewski was responsible for, among other things: (1) logging all visitors to the Fire Station in and out of the watch log; (2) the security of Fire Station No. 2; (3) not permitting visitors after 10:00 p.m.; and (4) ensuring that all activities within Fire Station No. 2 were appropriate and within the bounds established by the Departmental Rules and Regulations.

[He] fail[ed] to properly perform his duties [and he] allowed, permitted and/or condoned inappropriate conduct within Fire Station No. 2 . . . [He] failed to log four (4) female visitors into the Watch Log [and he] failed to ensure the security of Fire Station No. 2 by allowing the four (4) female visitors to remain in the fire station after 10:00 p.m. . . . [and he] was in the company of the four (4) female visitors . . . .

The incident that led to the filing of these charges had been the subject of certain newspaper reports. Upon those reports being published, the Atlantic County Prosecutor's Office undertook an investigation and on September 9, 2009, declined to file any criminal charges against these three individuals. The City filed the initial disciplinary charges six days later, on September 15, 2009.

After these initial charges were filed, the Chief of the department served orders upon these three firemen, directing each to appear for an interview with respect to the May incident. In response, the attorneys for the three men sought discovery from the City. The City, however, refused to supply any discovery until the interviews were completed, and each of the three signed a confidentiality agreement.

In response to the City's position, each filed a complaint seeking to enjoin the City from compelling him to submit to an investigatory interview prior to a departmental hearing and compelling the City to produce discovery, including statements, with respect to the alleged incident. The complaints noted that the City is a civil service jurisdiction and that disciplinary proceedings against employees are governed by the civil service statute. In particular, the complaints noted that the City, complying with its obligation to provide a departmental hearing within thirty days of disciplinary charges having been filed, had scheduled such a hearing for October 15, 2009. N.J.A.C. 4A:2-2.5(d). The complaints further noted that the City could not compel these firemen to testify at those disciplinary hearings. N.J.A.C. 4A:2-2.6(c). Accordingly, they urged that the City could not compel them to participate in a pre-hearing interview. The City responded by agreeing that it could not use information it obtained in these interviews in connection with the pending disciplinary charges but asserted that it could use information it developed in these interviews to support additional charges, if warranted.

The trial court thereafter issued a written opinion in the course of which it rejected the City's position that it would not be permitted to use information from the interviews to support the present charges but could use that information as a basis for new charges. It described this position as "not only impractical, but virtually impossible." It noted that requiring plaintiffs to submit to pre-hearing interviews after charges had been filed against them would "defeat[] the entire purpose and protection afforded to all Civil Service employees pursuant to the second sentence of N.J.A.C. 4A:2-2.6(c)." Further, it described the City's position of insisting on post-charge interviews while refusing to provide any discovery as "unacceptable and blatantly unfair." The trial court entered an order directing the City to provide all discovery to plaintiffs within ten days and restrained the City from interviewing them prior to the departmental hearings. This order was entered on October 27, 2009, and noted that the departmental hearing was to be conducted within forty days. Defendant's request for a stay was denied and its attempt to obtain emergent interlocutory relief from this court was also unsuccessful. A new order was entered on November 6, extending the discovery deadline until November 9.

The City did not supply discovery in accordance with the court's order of November 6. In addition, it filed the amended charges that we noted earlier in this opinion. Based upon the City's failure to provide the ordered discovery, plaintiffs filed motions in aid of litigants' rights. And, based upon the City issuing amended charges, plaintiffs filed motions seeking to dismiss the charges as having been filed beyond the forty-five day deadline contained in N.J.S.A. 40A:14-28.1. The trial court heard extensive oral argument in connection with these motions and several days later gave its oral opinion. It noted that the questions presented were purely legal questions and thus within the jurisdiction of the court. Indeed, one of the motions sought enforcement of the court's own earlier order. It reviewed the history of the matter, the City's failure to comply with the court's clear order, and the resultant prejudice to plaintiffs. It thus entered orders dismissing the charges against plaintiffs with prejudice.

On appeal, the City argues that the trial court's orders should be reversed because the trial court did not have jurisdiction, plaintiffs had failed to exhaust their administrative remedies and the trial court's orders did not accord a proper respect to administrative procedures. It also argues that the trial court incorrectly interpreted the forty-five day deadline for filing disciplinary charges against members of the fire department.

We reject these arguments and affirm the orders entered by the trial court essentially for the reasons stated by Judge Valerie Armstrong in her comprehensive oral decision of December 23, 2009.

Affirmed.