EDWARD RUFF v. RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2549-16T3

EDWARD RUFF,

           Plaintiff-Appellant,

v.

RUTGERS, THE STATE
UNIVERSITY OF NEW JERSEY,
RUTGERS UNIVERSITY POLICE
DEPARTMENT, EXECUTIVE
DIRECTOR OF POLICE
SERVICES/CHIEF OF POLICE
KENNETH COP, individually and
in his official capacity, and
CAPTAIN MICHAEL REIN,
individually and in his official
capacity,

           Defendants-Respondents.


                    Argued September 26, 2018 – Decided December 12, 2018

                    Before Judges Alvarez and Nugent.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Middlesex County, Docket No. L-4740-16.
            Catherine M. Elston argued the cause for appellant (C.
            Elston & Associates, LLC, attorneys; Catherine M.
            Elston, of counsel and on the briefs; Cathlene Y.
            Banker, on the brief).

            James P. Lidon argued the cause for respondents
            (McElroy, Deutsch, Mulvaney & Carpenter, LLP,
            attorneys; James P. Lidon, of counsel and on the brief).

PER CURIAM

      Edward Ruff, a Rutgers University campus police officer, appeals from

the dismissal of his complaint against his employer, defendant Rutgers, The

State University (Rutgers) alleging a breach of the collective bargaining

agreement (CBA) entered into between the Fraternal Order of Police-Primary

Unit, Lodge 62 (FOP) and Rutgers. We affirm.

      On July 31, 2013, a final notice of disciplinary action (FNDA) suspended

Ruff for ten days for breach of departmental rules. He served the suspension

the following month. The Law Division judge dismissed Ruff's case because he

found no legal basis existed for his challenge to Rutgers' action or the related

Public Employment Relation Commission's (PERC) August 14, 2014 final

decision. Ruff asserted in the complaint that before major disciplinary action,

such as the suspension, could be taken against an employee, the employer was

required to engage in the binding arbitration described in the fourth and final

step in the grievance procedure outlined in the CBA. Ruff further claimed

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Rutgers' failure to adhere to the fourth step was a breach of contract, violation

of due process, and otherwise constituted a violation of the CBA.

      Earlier, Rutgers had filed a scope of negotiations petition and successfully

restrained binding arbitration.    In its August 14, 2014 decision, PERC

"determined the relevant statute[, N.J.S.A. 34:13A-5.3,] authorizing binding

arbitration of disputes involving major discipline—discipline which includes a

suspension of more than five days—'only applies to unionized employees of the

State of New Jersey.'" In the Matter of Rutgers, the State University, and FOP

Lodge 62, No. A-0455-14 (App. Div. Sept. 8, 2016) (slip op. at 3) (citation

omitted). In our decision with regard to the FOP's direct challenge to Rutgers'

position, we addressed the FOP's argument that pursuant to  N.J.S.A. 34:13A-

5.3, Ruff had a contractual right to arbitrate major discipline. We affirmed

PERC's decision, holding that the statute did not include campus police in its

purview and that therefore the FOP could not compel binding arbitration of

major disciplinary action. In the Matter of Rutgers, slip op. at 10-11.

      Dissatisfied with our decision, Ruff filed the within complaint. In our

view, however, the Law Division judge's dismissal of the complaint was

mandated, given our prior interpretation of the statutory scheme. This appeal is




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moot because the issues Ruff raised by way of complaint were resolved by our

decision regarding the statute.

      "A case is technically moot when the original issue presented has been

resolved, at least concerning the parties who initiated the litigation." Betancourt

v. Trinitas Hosp.,  415 N.J. Super. 301, 311 (App. Div. 2010) (citing DeVesa v.

Dorsey,  134 N.J. 420, 428 (1993) (Pollock, J., concurring)). An appellate court

"decline[s] to review legal questions" that are no longer an ongoing concern "out

of reluctance to render a decision in the abstract on such moot issues and a

related desire to conserve judicial resources."      Finkel v. Twp. Comm. of

Hopewell,  434 N.J. Super. 303, 315 (App. Div. 2013).

      All of the relief Ruff seeks stems from Rutgers' refusal to participate in

step four of the CBA grievance procedure—a decision we already affirmed. In

the Matter of Rutgers, slip op. at 11. In granting Rutgers relief, PERC relied on

Ridgefield Park Educ. Ass'n v. Ridgefield Park Bd. of Educ.,  78 N.J. 144 (1978).

In that case, our Supreme Court found that issues, such as major discipline,

should not be subject to binding arbitration as they are a necessary exercise of

an employer's inherent managerial responsibilities. Id. at 156. PERC also

interpreted the 2003 amendment of  N.J.S.A. 34:13A-5.3 as leaving intact the

prohibition against the submission of major disciplinary disputes involving


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police officers to binding arbitration. See State v. State Troopers Fraternal

Ass'n,  134 N.J. 393 (1993) (holding that a statute that stated that discipline was

a subject of negotiation did not apply to state police).

      We concluded that PERC's decision was not clearly arbitrary and

capricious, and therefore affirmed. In the Matter of Rutgers, slip op. at 11.

These issues have been previously disposed of with finality. The appeal is made

moot by our prior decision, as all of the allegations in the complaint involve an

attempt to enforce the fourth step of the grievance procedure, or obtain redress

for Rutgers' failure to participate. Casting the challenge in different language

does not change its inherent nature. No public interest is involved here which

is so great as to require us to revisit the issue. See Reilly v. AAA Mid-Atl. Ins.

Co. of N.J.,  194 N.J. 474, 484 (2008). The unenforceability of step four of the

grievance procedure outlined in the CBA has already been decided. Our judicial

power should not be exercised here; Ruff is simply not entitled to relief. See

Betancourt,  415 N.J. Super. at 311.

      Affirmed.




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