arbitration process. In the latter decision, the court also reversed a trial court opinion that reduced the termination to a 10-day suspension and an award of attorney fees.
The special disciplinary arbitration process is available to officers who are suspended without pay pending termination. If this procedure were not available, officers would generally have available appeals to the NJ Civil Service Commission or to Superior Court. Arbitration is generally more favorable than either. However, there are some exceptions to the special disciplinary arbitration process. It is not available to an officer who is suspended with pay. It is not available to an officer appealing his or her discharge for a complaint or charges that relate to“ the subject matter of a pending criminal investigation, inquiry, complaint, or charge whether pre-indictment or post-indictment... or... when the complaint or charges allege conduct that also would constitute a violation of the criminal laws of this State or any other jurisdiction....”
The decisions are lengthy decisions and have fairly complicated procedural histories, including remands, and are too long to summarize in this article. The essential facts are that an on-duty Hardyston officer stopped a vehicle he had been following after discovering the driver had an outstanding warrant and suspended license. However, the stop took place in the neighboring municipality. According to the court, the officer falsely informed his dispatcher that he had made the stop at a location in Hardyston and lied on two occasions. He also issued two summonses on which he allegedly falsely certified that the driver unlawfully operated his motor vehicle in Hardyston, and also filed a police report that falsely stated the location of the stop.
He was eventually suspended with pay and charged with violating several department rules and regulations and SOPs, including lying, making false misrepresentations and intentionally falsifying documents. After a departmental hearing, he was terminated.
The officer then filed a request with PERC for special disciplinary arbitration. The township objected, claiming that PERC did not have jurisdiction. PERC did not resolve the jurisdictional question, but appointed an arbitrator. Following an arbitration hearing, the arbitrator rescinded the officer’ s termination, imposed a 10-day suspension and required the township to immediately reinstate the officer with full back-pay and benefits.
The township appealed the arbitration award. A trial judge affirmed the arbitration award and denied the township’ s motion to vacate the award. The judge entered an order requiring immediate reinstatement with back-pay and benefits and for attorney fees.
The township appealed. The Appellate Division reversed the appointment of the arbitrator and the arbitration award, and remanded the matter to PERC to determine whether the matter could be submitted to the special disciplinary arbitration process. The Appellate Division also reversed the award of attorney fees. On remand, PERC determined, not surprisingly, that the officer was not eligible for arbitration and denied his request. The Appellate Division affirmed PERC’ s decision.
The court held that because the officer was suspended with pay, he was not entitled to utilize the special disciplinary arbitration process. Additionally, the court noted that because the charges related to a criminal offense and would also constitute a violation of the criminal laws, he fell within the statutory exception and could not apply for the special disciplinary arbitration. According to the court, the filing of formal criminal charges, a criminal conviction or even the citation to criminal statutes was not necessary to fall within the exception, and stated that“[ n ] otice to the officer specifying the factual basis
for the alleged criminal conduct is sufficient.”
The other decision involved the appeal of the decision by the trial court which conducted a hearing under the statute that was available to the officer. The trial court upheld the township’ s decision to terminate the officer. However, the trial judge reversed the township’ s decision to terminate the officer and imposed a 10-day suspension and ordered his reinstatement.
The Appellate Division reversed this decision and upheld the township’ s decision to terminate the officer. According to the court, a law enforcement officer is held to a higher standard of personal integrity and dependability. Both the hearing officer and the trial judge concluded the officer lied numerous times, violated rules and regulations and SOPs and willingly and knowingly falsified public documents. According to the Appellate Division, the officer’ s conduct was egregious and his dishonesty was significant and potentially criminal, and upheld the decision to terminate him.
The significance of these decisions is that an officer who is suspended without pay based upon conduct that could be considered a crime, even though he or she is not charged with a crime, may not appeal his or her termination through the special disciplinary arbitration process. The officer may be limited to an appeal to Superior Court or to the Civil Service Commission. As noted above, these are generally less favorable forums than arbitration with a neutral arbitrator. Officers who may be in this situation facing suspension without pay for conduct, which may also involve criminal conduct, or who are charged with lying or falsifying documents or committing other acts of alleged dishonesty, should consult with their LPP attorneys to discuss the best available forum to challenge the charges. All LPP attorneys should be familiar with these decisions to advise officers about the best way to proceed under all of the circumstances. d www. njcopsmagazine. com ■ MARCH 2017 11