LPP CASE STUDY
45-day rule victory clouded by
decision to hold officer guilty
The Superior Court of Monmouth County
recently dismissed eight separate but related
charges against an Ocean Township police
officer based on the township’s failure to comply
with the “45-Day Rule.” The Rule, encompassed
by N.J.S.A. 40:A14-17 provides in pertinent part:
A complaint charging a violation of the internal rules and regulations established for the conJIM
duct of a law enforcement unit shall be filed no
METS
later than the 45th day after the date on which the
person filing this complaint obtained sufficient
information to file the matter upon which the complaint is based.
A failure to comply with said provisions as to the service of the
complaint, and the time within which a complaint is to be filed,
shall require a dismissal of the complaint.
The rationale behind the 45-Day Rule is to protect police
officers from an appointing authority unduly and prejudicially
delaying the imposition of disciplinary action. Aristizibal v. City of
Atlantic City, 380 N.J. Super. 405, 426 (Law Div. 2005) citing The
Matter of Joseph McCormick, 2001 WL 34609057 (N.J.Adm.). The
Attorney General guidelines on internal affairs policy and procedure notes, “It is important that there is no delay between the conclusion of the investigation by the assigned investigator, and the
decision to file charges by the person who has that responsibility.”
Further, “Barring extraordinary circumstances,” the appointing
authority’s investigation should commence promptly after the
occurrence of events which may warrant disciplinary action.”
Aristizibal, 380 N.J. Super. at 427.
In Sciallo v. Ocean Township, a senior officer and PBA State Delegate was brought up on charges in connection with a tattoo he
procured on his forearm allegedly in violation of the township’s
long-standing tattoo policy. After acquiring the tattoo, the officer
approached his squad commander and expressed his concern
when he became aware of the tattoo policy in January 2012. Four
of the officer’s supervisors also were aware of the tattoo as early as
October 2011. Even the chief of police testified at trial that he was
aware of the existence of the tattoo prior to May 7, 2012. However,
the township failed to bring charges until Aug. 16, 2012.
The court found it “bewildering” as to why no report was generated and the chief was not advised of the potential infraction at
that time it was first brought to the attention of the officer’s supervisor. The court further found it troubling that, “over a number of
months, a number of members of the chain of command possessed more than sufficient information to commence some form
of inquiry months and months prior to the filing of disciplinary
charges.”
Even once the investigative process commenced in May 2012,
it took several months for the township to file charges against the
officer, although the township’s investigation consisted of a brief,
15-minute interview with the charged officer and a subsequent
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one and a one-quarter-page report. Accordingly, the court held
that given the township’s multiple failures in investigating and
filing the charges, “Any reasonable interpretation and application
of the 45-Day Rule could lead to no other conclusion other than
both the purpose and intent of the rule has been frustrated in this
case.”
However, despite dismissing the charges of violation of the
township’s Departmental Rules and Regulations, from which the
case stems, the court found the officer’s procurement of the tattoo
to constitute “conduct unbecoming” – the “catch-all” infraction
and a violation of “implicit standards of good behavior,” both of
which are not covered by the 45-Day Rule. Although forcefully
argued that absent a rule violation, getting a tattoo could not substantiate these charges, the court cited the officer’s status as a PBA
delegate and seasoned officer as the basis for upholding the
charge. The court observed:
In this Court’s view, it is simply implausible that someone who
has undertaken representative responsibility as a delegate for the
PBA, and had distinguished himself in that role, had