Division action for those monies.
Both parties appealed. The Ocean County Prosecutor was
granted amicus status and argued that the officer should not be
reinstated due to his inability to reliably report information and
because the state might otherwise be required in any future
case involving the officer to turn over reams of documents
related to the officer’s purported psychological issues. The
appeals court ultimately rejected these claims.
The court’s decision on the timeliness issue is significant. In
a non-civil service jurisdiction, a party has 10 days in which to
file an appeal. In this case, the officer filed his complaint
approximately three weeks following the end of the 10-day period from the issuance of the discipline. The court rejected the
township’s motion to dismiss the complaint, even though the
officer’s complaint was filed after the end of the 10-day period
because, under the circumstances of this case, a “just accommodation” was necessary, and the “equities” did not justify dismissal of the complaint.
In particular, the officer had advised the township of his
intent to appeal on July 12, 2012. The court concluded that
strictly construing the statute to prevent the appeal would “not
advance the statute’s legislative purpose to protect police officers from arbitrary and unreasonable decision of the municipality” and would inflict unnecessary harm to the officer
without advancing any legitimate legislative objective. The
court also noted that the township was not prejudiced by the
“brief delay.”
With respect to the reversal of the officer’s termination, the
court upheld the trial court’s determination that the officer was
a credible witness. The court further upheld the trial court’s
rejection of the expert opinions of Dr. Guller and Dr. Gallina
and rejected the township’s appeal of that issue. The court
found that Dr. Guller changed his opinion several times and did
not sufficiently explain discrepancies in his changed opinions.
only a 10-day window in which to file a complaint. All LPP
attorneys should be aware of this statute. Although the court in
this case rejected the township’s motion to dismiss the complaint on timeliness grounds, officers and attorneys should be
very careful to comply with the statute to avoid having to
address the issue and risk a dismissal of any appeal of disciplinary charges in a non-civil service jurisdiction.
Second, the decision also is confirmation of problems
officers have experienced with psychological evaluations performed by Dr. Guller. The NJ State PBA has been active in
addressing issues with Dr. Guller’s evaluations in other jurisdictions. Finally, the issue of the denial of the officer’s request for
back pay and attorney fees is an issue which comes up on a regular basis. In non-civil service jurisdictions, it is important for
officers to submit claims for back pay pursuant to the statute
cited above in order to be eligible for back pay in appropriate
circumstances. In civil service jurisdictions, the issue of back
pay and other benefits is governed by administrative rule,
N.J.A.C. 4A:2-2.10. With respect to attorney fees, the court’s
decision is consistent with other decisions which,
unfortunately, require a complete exoneration before attorney
fees can be awarded. This is also similar to the rule in civil service jurisdictions, N.J.S.A. 4A:2-2.12, which permits an award of
fees in major discipline appeals only when an officer “prevails”
on all or substantially all of the primary issues.
PBA Locals and officers, particularly in non-civil service jurisdictions, should be aware of the issues in this case in the event
appeals are necessary. PBA Locals should contact their Local
attorneys or the State PBA, and members should discuss these
issues with their LPP attorneys, if any questions arise in other
cases. d
The court further noted that none of the tests conducted by
Dr. Guller indicated any disorder and that all tests were within
normal range. It was only after Internal Affairs sent Dr. Guller a
list of 10 examples of the officer’s alleged untruthfulness that
Dr. Guller more emphatically concluded that the officer pre 6V