TOWNSHIP OF HARDYSTON - v. JOSEPH ISAACSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-4180-12T3

TOWNSHIP OF HARDYSTON,

Petitioner-Appellant,

v.

JOSEPH ISAACSON,

Respondent-Respondent.

____________________________

IN THE MATTER OF

JOSEPH ISAACSON AND

TOWNSHIP OF HARDYSTON

____________________________

July 9, 2014

Before Judges Fuentes, Simonelli and Fasciale.

On appeal from the New Jersey Public Employment Relations Commission, Docket No. 2013-018, and from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-0640-12.

Christopher J. Capone argued the cause for appellant Township of Hardyston in A-3435-12 (Ogletree, Deakins, Nash, Smoak & Stewart, P.C., attorneys; Mr. Capone and Mark Diana, on the briefs).

Eric L. Harrison argued the cause for appellant Township of Hardyston in A-4180-12 (Methfessel & Werbel, attorneys; Mr. Harrison, of counsel and on the briefs; Jennifer M. Herrmann, on the briefs).

Jeffrey D. Catrambone argued the cause for respondent Joseph Isaacson (Sciarra & Catrambone, L.L.C., attorneys; Mr. Catrambone, of counsel and on the briefs).

Martin R. Pachman, General Counsel, argued the cause for respondent The New Jersey Public Employment Relations Commission ( Mr. Pachman, attorney; David N. Gambert, Deputy General Counsel, on the statement in lieu of brief).

Gregory Mueller, First Assistant Prosecutor, argued the cause for amicus curiae Sussex County Prosecutor's Office in A-4180-12 (David J. Weaver, Sussex County Prosecutor, attorney; Mr. Mueller, of counsel and on the brief; Shaina Brenner, Assistant Prosecutor, on the brief).

PER CURIAM

These back-to-back matters involve disciplinary charges brought by the Township of Hardyston (Township), a non-civil service municipality, against a police officer, Joseph Isaacson.1 Following Isaacson's termination, he filed a request with the Public Employment Relations Commission (PERC) for special disciplinary arbitration and appointment of a special disciplinary arbitrator (arbitrator) pursuant to N.J.S.A. 40A:14-150, -209 and -210, and N.J.A.C. 19:12-6.1. The Township objected on jurisdictional grounds. PERC declined to determine the jurisdictional issue and appointed an arbitrator. The Township appeals from that decision and from the arbitrator's February 18, 2013 decision denying the Township's motion to dismiss for lack of jurisdiction. The Township also appeals from the April 17, 2013 Law Division order, which denied its motion to vacate the arbitrator's decision, affirmed the decision, and permitted Isaacson to file an application for attorney's fees.

Because we conclude that PERC must decide the threshold jurisdictional issue, we reverse the appointment of the arbitrator and the arbitrator's decision and remand to PERC for further proceedings. We reverse the award of attorney's fees, and dismiss without prejudice the Township's appeal from the denial of its motion to vacate the arbitrator's decision and the affirmance of that decision.

We derive the following facts from the record. On the morning of May 16, 2012, Isaacson was on duty when he stopped at a store on Route 23 in the Borough of Franklin (Franklin). Isaacson went into the store and left his patrol car running and locked. After leaving the store, he proceeded onto Route 23 south, where he saw a vehicle with a cracked windshield also turning onto the roadway. He followed the vehicle and entered the license plate number into the mobile data terminal in his patrol vehicle. After discovering that the vehicle's owner, later identified as the driver, had an outstanding warrant and suspended license, Isaacson stopped the vehicle in the parking lot of a restaurant located in Franklin, which was less than one-tenth of a mile from the Hardyston border. Despite knowing he was in Franklin, Isaacson informed the dispatcher that his location was "23 on the mountain," referring to a location in Hardyston. Isaacson requested backup from the Franklin police, but no Franklin officer arrived.

Isaacson issued the driver two summonses, on which he placed Hardyston municipal codes and marked the word "rural" in the location box. He signed the certifications on each summons. He also collected bail from the driver for an outstanding warrant, completed a bail recognizance form, and submitted the form and the summonses to the Township's police department at the end of his shift.

Suspecting that Isaacson had lied about the location of the stop, the police department began an internal affairs investigation. Because the matter indicated the possibility of a criminal act, the Chief of Police notified the Prosecutor's Office and apparently requested guidance on whether to interview Isaacson. The Prosecutor's Office responded, "[i]f you reach a point where you believe that there is a strong possibility of criminality, you should stop your investigation and contact us before [Miranda2] is given. We will proceed with anything that may be criminal." Isaacson was interviewed and no criminal charges were filed against him.

After completion of the internal affairs investigation, the Township suspended Isaacson with pay and charged him with violating departmental rules and standard operating procedures by: (1) leaving his patrol vehicle running while unoccupied; (2) operating the mobile data terminal on his patrol vehicle while driving; (3) serving a warrant on a person in Franklin without requesting back-up from Franklin; (4) lying and/or making a misrepresentation while on a motor vehicle stop and in connection with an internal affairs investigation; and (5) intentionally falsifying documents relating to a motor vehicle stop and arrest in Franklin. The Township sought Isaacson's termination. After a hearing officer sustained the charges, Isaacson was terminated. He then filed a request with PERC for special disciplinary arbitration and the appointment of an arbitrator pursuant to N.J.S.A. 40A:14-150, -209, and -210, and N.J.A.C. 19:12-6.1.

N.J.S.A. 40A:14-150 permits police officers in a non-civil service municipality who were convicted of disciplinary charges and terminated to seek arbitration in lieu of Superior Court review. The statute provides as follows, in pertinent part:

Any member or officer of a police department or force in a municipality wherein [N.J.S.A. 11A:1-1 to 12-3] is not in operation, who has been tried and convicted upon any charge or charges, may obtain a review thereof by the Superior Court; provided, however, that in the case of an officer who is appealing removal from his office, employment or position for a complaint or charges, other than a complaint or charges relating to a criminal offense, the officer may, in lieu of serving a written notice seeking a review of that removal by the court, submit his appeal to arbitration pursuant to [N.J.S.A. 40A:14-209].

[N.J.S.A. 40A:14-150.]

N.J.S.A. 40A:14-209 permits police officers who were suspended without pay pending resolution of disciplinary charges where termination is sought to seek arbitration in lieu of Superior Court review. The statute provides as follows, in pertinent part:

When a law enforcement officer . . . employed by a law enforcement agency . . . that is not subject to the provisions of [N.J.S.A. 11A:1-1 to 12-3] is suspended from performing his official duties without pay for a complaint or charges, other than (1) a complaint or charges relating to the subject matter of a pending criminal investigation, inquiry, complaint, or charge whether pre-indictment or post indictment, or (2) when the complaint or charges allege conduct that also would constitute a violation of the criminal laws of this State or any other jurisdiction, and the law enforcement agency . . . seeks to terminate that officer's . . . employment for the conduct that was the basis for the officer's . . . suspension without pay, the officer, as an alternative to the judicial review authorized under [N.J.S.A.] 40A:14-150 . . . may submit an appeal of his suspension and termination to [PERC] for arbitration conducted in accordance with the provisions of [N.J.S.A. 40A:14-210].

[N.J.S.A. 40A:14-209a.]

N.J.S.A. 40A:14-210 permits terminated police officers to seek arbitration in lieu of Superior Court review. The statute provides as follows, in pertinent part:

In lieu of serving a written notice to the Superior Court under the provisions of [N.J.S.A.] 40A:14-150 . . . seeking review of the termination of his employment for a complaint or charges, other than a complaint or charges relating to a criminal offense, as prescribed in [N.J.S.A. 40A:14-209a], an officer . . . may submit his appeal to arbitration as hereinafter provided.

[N.J.S.A. 40A:14-210.]

N.J.A.C. 19:12-6.1 governs the procedures for special disciplinary arbitration, and provides as follows, in pertinent part:

These procedures are intended to implement the provisions of [N.J.S.A. 40A:14-200 to -212], which allow law enforcement officers . . . employed by a law enforcement agency or department that is not subject to the provisions of [N.J.S.A. 11A:1-1 to 12-3], who are terminated based on a complaint or charges issued for disciplinary reasons not involving any alleged violation of criminallaw, to have the option of having their terminations reviewed by means of binding arbitration. Review through binding arbitration is an alternative to review through a proceeding in the Superior Court of New Jersey pursuant to . . . [N.J.S.A.]40A:14-150 pertaining to law enforcement personnel.

Arbitration pursuant to these procedures is available only in cases where termination is imposed based on a complaint or charges. These procedures are not applicable to review of terminations relating to a pending criminal investigation, inquiry, complaint or charge, whether implemented before or after criminal charges have been filed or when the disciplinary complaint or charge alleges conduct that would also constitute a violation of the criminal laws of the State or any other jurisdiction.

[N.J.A.C. 19:12-6.1(a) and (b).]

The Township objected to Isaacson's requests on jurisdictional grounds. The Township argued the matter was not arbitrable under N.J.S.A. 40A:14-150 or -210 because Isaacson's disciplinary charges related to the criminal offenses of false swearing, N.J.S.A. 2C:28-2a, and unsworn falsification to authorities, N.J.S.A. 2C:28-3. The Township also argued the matter was not arbitrable under N.J.S.A. 40A:14-209 because Isaacson was suspended with pay pending resolution of the disciplinary charges and the charges alleged conduct that also would constitute a violation of the criminal laws.

PERC appointed the arbitrator without determining the jurisdictional issue. The Township then filed a petition for a scope of negotiations determination, again raising the jurisdictional issue. PERC declined to consider the petition, concluding that the special disciplinary arbitration rules and regulations (special arbitration rules), N.J.A.C. 19:12-6.1 to -6.8, did not permit an appeal to PERC from the appointment of an arbitrator.

The Township subsequently filed a motion with the arbitrator to dismiss for lack of jurisdiction. In a February 18, 2013 decision, the arbitrator did not resolve the jurisdictional issue and dismissed the motion. In a second February 18, 2013 decision, the arbitrator sustained the first two charges against Isaacson, but not the remaining charges. The arbitrator found the Township did not establish that Isaacson lied or intentionally made a misrepresentation about the motor vehicle stop. The arbitrator dismissed the remaining charges, rescinded Isaacson's termination, imposed a ten-day suspension without pay, and ordered his reinstatement with back pay and all rights and benefits.

Isaacson sought to enforce the arbitrator's determination in the Superior Court, and the Township sought to vacate it. The Law Division judge affirmed the arbitrator's decision and permitted Isaacson to file an application for attorney's fees and costs. The judge subsequently awarded Isaacson $86,692.50 for attorney's fees and $10,749.38 for costs.

I.

In this appeal, PERC argues it lacks authority to determine the jurisdictional issue because N.J.S.A. 40A:14-2113 limits its powers to promulgating rules and regulations regarding the special disciplinary arbitration process, appointing a special disciplinary arbitration panel, and assisting in the selection of an arbitrator. PERC also argues that the special arbitration rules do not permit an appeal and/or reconsideration of its decision to appoint an arbitrator. We reject these arguments.

Administrative agencies are given broad authority to carry out their mandates. In re Application of Virgo's, Inc., 355 N.J. Super. 590, 595 (App. Div. 2002). "'The authority possessed by an administrative agency consists of the powers expressly granted which in turn are attended by those incidental powers which are reasonably necessary or appropriate to effectuate the specific delegation.'" Ibid. (quoting N.J. Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 562 (1978)). "Moreover, 'the grant of authority to an administrative agency is to be liberally construed in order to enable the agency to accomplish its statutory responsibilities and . . . courts should readily imply such incidental powers as are necessary to effectuate fully the legislative intent.'" Id. at 595-96 (quoting N.J. Guild, supra, 75 N.J. at 562). "'[T]he absence of an express statutory authorization in the enabling legislation will [therefore] not preclude administrative agency action where, by reasonable implication, that action can be said to promote or advance the policies and findings that served as the driving force for the enactment of the legislation.'" Id. at 596 (alterations in original) (quoting N.J. State League of Municipalities v. Dep't of Cmty. Affairs, 158 N.J. 211, 223 (1999)).

The Legislature enacted N.J.S.A. 40A:14-150 to provide for de novo review of police officer disciplinary action in non-civil service municipalities. Grasso v. Borough Council of Glassboro, 205 N.J. Super. 18, 27 (App. Div. 1985), certif. denied, 103 N.J. 453 (1986). The Legislature authorized PERC to promulgate and implement procedures to effectuate the purposes of N.J.S.A. 40A:14-209 and -210. N.J.S.A. 40A:14-211. While N.J.S.A. 40A:14-211 does not expressly authorize PERC to determine the jurisdictional issue, the statute expressly grants PERC broad power to promulgate rules and regulations that "include, but [are] not . . . limited to" practices and procedures regarding the special arbitration process. Ibid. Accordingly, PERC's power to determine the jurisdictional issue can be seen as an incidental power that is reasonably necessary or appropriate to effectuate the special disciplinary arbitration laws. PERC, therefore, must determine whether the matter is arbitrable under either N.J.S.A. 40A:14-209 or -210.

II.

We next address the award of attorney's fees.4 N.J.S.A. 40A:14-155 provides as follows:

Whenever a member or officer of a municipal police department or force is a defendant in any action or legal proceeding arising out of and directly related to the lawful exercise of police powers in the furtherance of his official duties, the governing body of the municipality shall provide said member or officer with necessary means for the defense of such action or proceeding, but not for his defense in a disciplinary proceeding instituted against him by the municipality or in [a] criminal proceeding instituted as a result of a complaint on behalf of the municipality. If any such disciplinary or criminal proceeding instituted by or on complaint of the municipality shall be dismissed or finally determined in favor of the member or officer, he shall be reimbursed for the expense of his defense.

[N.J.S.A. 40A:14-155 (emphasis added).]

To be entitled to reimbursement of attorney's fees under the statute for a disciplinary matter, the police officer must be acquitted of all charges. Twp. of Waterford v. Babli, 158 N.J. Super. 569, 572 (Cty. Ct. 1978), aff'd o.b., 168 N.J. Super. 18 (App. Div. 1979). A police officer is not entitled to a proportionate share of his or her attorney's fees based on the percentage of the charges of which he or she was acquitted. Johnstone v. Town of Kearny, 332 N.J. Super. 606, 608 (App. Div.) (citing Waterford, supra, 158 N.J. Super. at 573), certif. denied, 165 N.J. 605 (2000). As long as the police officer is convicted on one or more disciplinary charges, he or she is not entitled to reimbursement under N.J.S.A. 40A:14-155. See ibid. Because Isaacson was not acquitted of all disciplinary charges, he is not entitled to reimbursement of his attorney's fees and costs.

PERC's appointment of the arbitrator and the arbitrator's decision are reversed and the matter is remanded to PERC for further proceedings consistent with this opinion. The award of attorney's fees and costs is reversed, and the Township's appeal from the denial of its motion to vacate the arbitrator's decision and the affirmance of that decision is dismissed without prejudice. We do not retain jurisdiction.

1 We consolidate these matters for the purposes of this opinion only.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3 N.J.S.A. 40A:14-211b provides as follows, in pertinent part:

[PERC] shall promulgate rules and regulations to effectuate the purposes of [N.J.S.A. 40A:14-209 and N.J.S.A. 40A:14-210]. These rules and regulations shall include, but not be limited to practices and procedures governing matters such as discovery, motions and the conduct of hearings and shall be designed to ensure that all disciplinary cases subject to the provisions of [N.J.S.A. 40A:14-200 to -212] are brought to resolution expeditiously.

[N.J.S.A. 40A:12-211b (emphasis added).]

4 The issue is properly before us pursuant to the Township's appeal from that part of the April 17, 2013 order, which permitted Isaacson to file an application for attorney's fees.