POLICE SERGEANT CHRISTOPHER BUTCHYK v. BOROUGH OF CALDWELL

NOT FOR PUBLICATION WITHOUT THE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
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3422-19

POLICE SERGEANT
CHRISTOPHER BUTCHYK,

         Plaintiff-Appellant,

v.

BOROUGH OF CALDWELL and
BOROUGH OF CALDWELL
POLICE DEPARTMENT,

     Defendants-Respondents.
_____________________________

                   Argued July 6, 2021 – Decided December 7, 2021

                   Before Judges Messano and Smith.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Docket No. L-0246-20.

                   Lori A. Dvorak argued the cause for appellant (Dvorak
                   & Associates, LLC, attorneys; Jeffrey S. Ziegelheim, of
                   counsel and on the briefs).

                   Ryan S. Carey argued the cause for respondents
                   (Apruzzese, McDermott, Mastro & Murphy, PC,
                   attorneys; Ryan S. Carey, of counsel and on the brief;
                   Boris Shapiro, on the brief).
      The opinion of the court was delivered by

SMITH, J.A.D.

                                            I.

      Plaintiff Christopher Butchyk was a veteran sergeant employed by the

police department in the Borough of Caldwell, a non-civil service municipality.

On May 11, 2019, plaintiff sent three improper text messages to a group text

chat whose members included other Caldwell police officers, including a captain

and officers from internal affairs. After the incident, plaintiff turned himself in

to internal affairs. Five days later, the Caldwell police chief transferred the

matter to the Livingston Police Department internal affairs unit for

investigation.1 Plaintiff was suspended with pay pending further investigation

on May 16, 2019.

      On July 18, 2019, defendants served plaintiff with a preliminary notice of

disciplinary action charging him with multiple workplace violations.  2 After a

 1
   The transfer was required because the members of the Caldwell Police
Department internal affairs unit were recipients of the inappropriate texts and
therefore conflicted out of further investigative responsibilities.
2
   The record shows plaintiff was charged with violation of  N.J.S.A. 40A:14-
147, including but not limited to: conduct unbecoming a superior officer, neglect
of duty, and failure to perform duties. Plaintiff was also charged with multiple
violations of Caldwell police department rules, regulations, policies, and
procedures.
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disciplinary hearing, the hearing officer made findings and recommended

termination on November 20, 2019. 3

      On Monday, November 25, 2019, the Borough of Caldwell posted public

notice of an "emergency special meeting" to be held November 27, 2019. The

public notice specifically listed the sole agenda item as the "Employment Status

of Sergeant Butchyk." Notice of the meeting was posted on a Borough Hall

bulletin board, on the main page of Caldwell's municipal website, and in three

local newspapers. Defendants sent separate emails about the November 27

meeting directly to plaintiff and his attorney, informing them that plaintiff's

employment status would be on the agenda. 4 Defendants also called plaintiff to

inform him that they were attempting to personally serve him.         Finally, a

Caldwell police detective personally served plaintiff with the meeting notice on

November 26.



3
  The record shows that the hearing officer found "overwhelming evidence" that
plaintiff engaged in several acts which violated Caldwell police department
"rules, regulations, policies and/or procedures," including, but not limited to:
plaintiff making remarks and taking actions "that could be perceived as
discriminatory against females and minorities, . . . mocking and ridiculing [a
subordinate officer]'s heritage and culture," and making offensive comments
toward a female subordinate officer.
4
  Rice v. Union Cnty. Reg'l High Sch. Bd. of Educ.,  155 N.J. Super. 64, 73
(App. Div. 1977).
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      At the November 27 public meeting, defendants voted to terminate

plaintiff. Defendants served plaintiff with a Final Notice of Disciplinary Action

confirming termination on December 4, 2019. Plaintiff filed a complaint in lieu

of prerogative writ naming defendants on January 10, 2020. Shortly thereafter,

defendants moved to dismiss the complaint, and the trial court treated the motion

for dismissal as a motion under Rule 4:6-2(e). The trial court found plaintiff's

right to seek review of defendants' disciplinary conviction action was governed

by N.J.S.A. 40A: 14-150, which requires an employee of a non-civil service

municipality to seek Superior Court review of an adverse employment action

within ten days of receiving written notice of that action. The trial court next

found plaintiff's January 10 complaint out of time under the statute, having been

filed more than ten days after plaintiff received notice of his termination. The

trial court additionally found plaintiff's November 26 letter to defendants was

not timely notice of his intent to seek review, since plaintiff was terminated after

the letter was sent. The trial court then granted defendants' motion to dismiss

explaining its reasons in a written opinion dated March 13, 2020.

      Plaintiff makes the following arguments on appeal:




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POINT I

THE TRIAL JUDGE ERRED IN GRANTING
DEFENDANTS'     MOTION    TO    DISMISS
PLAINTIFF/APPELLANT'S COMPLAINT

     A. PLAINTIFF TIMELY FILED THE
     COMPLAINT PER R. 4:69- 6(a)

     B. PLAINTIFF GAVE TIMELY NOTICE
     WITHIN THE TEN-DAY TIME FRAME,
     PER  N.J.S.A. 40A:14-150.

     C. THE TRIAL COURT ERRED IN
     FAILING TO CONSIDER AND APPLY
     EQUITABLE RELIEF TO ALLOW THE
     FILING TO BE TIMELY.

POINT II

THE TRIAL JUDGE ERRED IN GRANTING
DEFENDANTS'      MOTION    TO    DISMISS
PLAINTIFF'S COMPLAINT AS THE OPEN PUBLIC
MEETINGS     ACT   WAS    VIOLATED   BY
DEFENDANTS

     A. DEFENDANTS VIOLATED THE
     OPEN PUBLIC MEETINGS ACT AS
     THERE WAS NO BASIS TO JUSTIFY
     AN EMERGENCY MEETING, NOR DO
     THE MINUTES REFLECT PROPER
     NOTICE WAS GIVEN. (Not Raised
     Below)

     B. THE TRIAL COURT ERRED IN
     FAILING TO RECOGNIZE THAT
     DEFENDANTS FAILED TO PROPERLY
     EFFECTUATE NOTICE UNDER RICE,

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                   THUS MAKING THE NOVEMBER 27,
                   2019 MEETING NULL AND VOID. (Not
                   Raised Below)


                                            II.

      Rule 4:6-2(e) motions to dismiss for failure to state a claim upon which

relief can be granted are reviewed de novo. Baskin v. P.C. Richard & Son, LLC,

 246 N.J. 157, 171 (2021) (citing Dimitrakopoulos v. Borrus, Goldin, Foley,

Vignuolo, Hyman & Stahl, P.C.,  237 N.J. 91, 108 (2019)).                "A reviewing

court must examine the legal sufficiency of the facts alleged on the face of the

complaint, giving the plaintiff the benefit of every reasonable inference of

fact." Ibid. (internal quotations and citations omitted). The complaint must

be searched thoroughly           "and             with liberality to ascertain whether

the fundament of    a    cause    of    action       may     be gleaned even     from

an obscure statement of claim, opportunity being given to amend if

necessary." Ibid. (quoting Printing Mart-Morristown v. Sharp Elecs. Corp.,  116 N.J. 739, 746 (1989)).    "Nonetheless, if the complaint states no claim that

supports relief, and discovery will not give rise to such a claim, the action

should be dismissed." Ibid. (quoting Dimitrakopoulos,  237 N.J. at 107).




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        As members or officers of a non-civil service municipality, Borough of

Caldwell police are governed by  N.J.S.A. 40A:14-150, which reads in pertinent

part:

             Any member or officer of a police department or force
             in a municipality wherein Title 11A of the New Jersey
             Statutes is not in operation, who has been tried and
             convicted upon any charge or charges, may obtain a
             review thereof by the Superior Court . . . [s]uch review
             shall be obtained by serving a written notice of an
             application therefor upon the officer or board whose
             action is to be reviewed within 10 days after written
             notice to the member or officer of the conviction. The
             officer or board shall transmit to the court a copy of the
             record of such conviction, and of the charge or charges
             for which the applicant was tried. The court shall hear
             the cause de novo on the record below and may either
             affirm, reverse or modify such conviction. If the
             applicant shall have been removed from his office,
             employment or position the court may direct that he be
             restored to such office, employment or position and to
             all his rights pertaining thereto, and [they] may make
             such other order or judgment as said court shall deem
             proper.

                                        III.

        Plaintiff argues that his petition for review under N.J.S.A. 14-150 is

timely, advancing three separate theories to support his position. We disagree,

finding that the statute controls the time within which an employee subject to

this provision may seek review by the Superior Court. First, plaintiff relies on

Rule 4:69-6(a) to suggest he had forty-five days to file his complaint in Superior

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Court after receiving written notice of his termination. The relevant portion of

the rule reads as follows:    "(a) General Limitation.     No action in lieu of

prerogative writs shall be commenced later than 45 days after the accrual of the

right to the review, hearing or relief claimed . . . ." R. 4:69-6(a). We reject

plaintiff's attempt to substitute Rule 4:69-6(a)'s forty-five-day deadline for the

legislature's ten-day deadline in N.J.S.A. 14-150, which specifically addresses

non-civil service police officers who seek review of personnel actions against

them. We concur with the trial court, who found that had the Legislature

intended to do so, it would have incorporated the forty-five-day deadline into

the statute.

      Plaintiff next argues that his November 27 letter protesting Caldwell's

Rice notice given in advance of the special meeting which took place that same

day satisfied the statutory requirements of N.J.S.A. 14-150. Plaintiff's reliance

on Borough of Stone Harbor v. Wildwood Loc. 59, Policemen's Benevolent

Ass'n,  178 N.J. Super. 1 (App. Div. 1980), is misplaced. In Stone Harbor, we

held that the record showed defendant employer was on notice of plaintiff's

intent to seek review after plaintiff received written notice of termination but

before the expiration of the ten-day statutory deadline. Id. at 8. This case is

distinguishable, as the record shows the entirety of plaintiff's November 27


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objection letter went to the adequacy of his notice for the special meeting.

Plaintiff's letter contains no reference to preservation of his statutory right of

review under  N.J.S.A. 40A:14-150. In any event, plaintiff did not receive

written notice of his termination as a police officer until December 4, when those

rights would have accrued. There is nothing in the record to show that plaintiff

placed defendants on notice of his intent to seek review after his December 4

termination, but before the expiration of the statutory deadline. We find no merit

in this argument.

        Plaintiff also argues that equitable principles call for the relaxation of the

 N.J.S.A. 40A:14-150 ten-day timeframe for seeking review of his termination,

citing to various court rules. 5 We reject this argument, as the legislature's ten-

day statutory deadline is jurisdictional in nature. See Mesghali v. Bayside State

Prison,  334 N.J. Super. 617, 621-23 (App. Div. 2000) (holding that the Civil

Service Commission could not accept an employee's appeal of a major

disciplinary action outside of the twenty-day statutory time limit).

        Finally, plaintiff makes a series of Open Public Meetings Act (OPMA)6

and Rice arguments, challenging the legality of the November 27 meeting.


 5 Rules 1:3-4, 2:4-4, and 4:69-6(c).
 6 N.J.S.A. 10:4-6 to -21.
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                                           9
Plaintiff raises his OPMA and Rice arguments for the first time before us, as he

did not assert these claims in his complaint in lieu of prerogative writ before the

trial court. We review both arguments under the plain error standard. Twp. of

Manalapan v. Gentile,  242 N.J. 295, 304-05 (2020).

      Plaintiff contends any public action taken on November 27 is defective

because of technical deficiencies in the November 27 public meeting minutes,

as well as Caldwell's omission of the November 27 meeting date from a

published list of 2019 public meetings.       We find the record is more than

sufficient to conclude defendants substantially complied with OPMA. To the

extent that there was any technical non-compliance by defendants, we find no

error below "clearly capable of producing an unjust result." See R. 2:10-2.

      Plaintiff further contends that his Rice notice for the November 27

meeting was inadequate. We find the record replete with evidence of plaintiff's

knowledge that he was the subject of disciplinary action. He was present on

November 20 when the hearing officer rendered the decision recommending

termination. Defendants emailed both plaintiff and his attorney notice of the

November 27 meeting. A Caldwell detective personally served plaintiff the

meeting notice at his home. To the extent that there was any defect in the Rice

notice, and we make no such finding, we discern no unjust result on this record.


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Any remaining arguments not addressed here lack sufficient merit to warrant

discussion in a written opinion, R. 2:11-3(e)(1)(E).

      Affirmed.




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