NEW JERSEY COPS ■ AUGUST 2014
disciplinary charges where termination is sought, may seek arbitration in lieu of Superior Court review of the matter. See N.J.S.A.
40A:14-150; N.J.S.A. 40A:14-209; N.J.S.A. 40A:14-210. The township argued that arbitration was improper because N.J.A.C.
19:12-6.1 states that special disciplinary arbitration is not available when the termination was based upon conduct that also
constitutes a violation of the criminal laws of New Jersey. It
claimed that the disciplinary charges against the police officer
in this case were based in part on false swearing, which is also
a crime in New Jersey. It also claimed that the police officer was
suspended with pay, and that special disciplinary arbitration
only applies to police officers who are suspended without pay.
PERC argued that it lacked authority under the statutes to
decide whether it had the power to appoint an arbitrator and
send the matter to arbitration, and that its function was purely
ministerial. It also claimed that there is no right to appeal from
PERC’s appointment of an arbitrator. The Appellate Division
rejected those arguments, holding that PERC has broad authority to issue rules and regulations on the special arbitration
process. With that power comes the authority to decide whether
a given case is appropriate for appointment of an arbitrator.
Therefore, the court reversed the arbitrator’s decision and
remanded the case to PERC to decide whether the matter is arbitrable.
Finally, the Appellate Division also reversed the Law Division’s
award of attorney’s fees. The court held that, under N.J.S.A.
40A:14-155, officers must be acquitted of all charges to be eligible for an award of fees. Therefore, because he was not acquitted of all charges, the officer was not entitled to reimbursement
of attorney’s fees and costs.
While the Appellate Division’s decision is limited, it will have
some unfortunate and detrimental effects in cases in which it
applies. It will affect an officer who is terminated for charges that
may also constitute criminal conduct, even if no criminal
charges are ever filed. Now that PERC will have to make a
threshold determination on whether to appoint an arbitrator in
those cases in which the charges may also constitute criminal
conduct, the process will take much longer. It also creates a new
pitfall because arbitration is no longer automatic. It means an
officer will not get a hearing on his or her charges as quickly. It
will also increase the costs of litigating the cases for municipalities and for the LPP because attorneys now will have an additional hurdle if PERC has to decide the arbitrability question.
For municipalities, the court’s decision is an example of the
adage: “Be careful what you wish for.” If a municipality challenges PERC’s appointment of an arbitrator in the category of
cases that will be affected by this decision, it will take additional time that will eat into the 180 days in which a decision must
be issued. Officers will have to be reinstated on the payroll sooner when cases are not decided within 180 days because of the
additional time it will take to litigate the issue before PERC. The
180-day statute was intended to speed the process; the court’s
decision will only delay it further. PERC correctly determined
that its only authority under existing law was t