NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3772-19T2
IN THE MATTER OF OFFICER GREGORY APPROVED FOR PUBLICATION DIGUGLIELMO AND October 15, 2020 NEW JERSEY INSTITUTE APPELLATE DIVISION OF TECHNOLOGY. _______________________
Argued September 29, 2020 – Decided October 15, 2020
Before Judges Sabatino, Gooden Brown and DeAlmeida.
On appeal from an interlocutory order of the New Jersey Public Employment Relations Commission, P.E.R.C. No. 2020-004.
Leonard S. Spinelli argued the cause for appellant New Jersey Institute of Technology (Genova Burns, LLC, attorneys; Jennifer P. Roselle and Leonard S. Spinelli, of counsel and on the briefs).
Amie E. Dicola argued the cause for respondent Officer Gregory DiGuglielmo (Fusco & Macaluso Partners, LLC, attorneys; Amie E. Dicola, of counsel and on the briefs).
Ramiro A. Perez, Deputy General Counsel, argued the cause for respondent New Jersey Public Employment Relations Commission (Christine Lucarelli, General Counsel, attorney; Ramiro A. Perez, on the briefs). James P. Lidon argued the cause for amicus curiae Rutgers, the State University of New Jersey (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; James P. Lidon, of counsel and on the brief).
Matthew D. Areman argued the cause for amicus curiae New Jersey State Lodge of the Fraternal Order of Police (Markowitz and Richman, attorneys; Matthew D. Areman, on the brief).
Christopher J. Hamner, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Jane C. Schuster, Assistant Attorney General, of counsel; Achchana Ranasinghe, Deputy Attorney General, on the brief).
The opinion of the court was delivered by
SABATINO, P.J.A.D.
This case presents the unsettled legal question of whether a campus police
officer who has been terminated by a State university or college because of
alleged non-criminal misconduct may challenge his termination through what is
known as "special disciplinary arbitration" administered by the Public
Employment Relations Commission ("PERC" or "the Commission"), pursuant
to N.J.S.A. 40A:14-209 and -210.
The officer's employer, the New Jersey Institute of Technology ("NJIT")
contends he is not eligible for such special disciplinary arbitration under the
pertinent statutes for several reasons. Principally, NJIT argues the officer is
A-3772-19T2 2 ineligible because he worked for an institution of higher education rather than a
municipal police department. NJIT further contends such arbitration is not
available because the officer has not been suspended without pay. In addition,
NJIT argues the officer allegedly waived any rights he had to special
disciplinary arbitration because he did not follow procedures in the collective
negotiations agreement ("CNA") between NJIT and his labor union.
The Commission rejected NJIT's arguments. It held, consistent with its
administrative rulings in other cases involving campus police officers and its
regulations, that the officer was entitled to special arbitration as a matter of law.
Among other things, the Commission determined that the NJIT police force is a
"law enforcement agency" within the meaning of N.J.S.A. 40A:14-200, and that
its officers who have been terminated for non-criminal conduct may elect under
N.J.S.A. 40A:14-209 and -210 to have the Commission appoint a special
arbitrator to conduct a hearing and evaluate whether the officer's discharge is
justified. The Commission found that university police officers are not excluded
from the special arbitration program because they work for an institution of
higher education. The Commission rejected other arguments presented by NJIT,
and this interlocutory appeal ensued.
A-3772-19T2 3 For the reasons that follow, we affirm the Commission's determination
that the NJIT police force is a "law enforcement agency" within the meaning of
N.J.S.A. 40A:14-200. However, we conclude the NJIT officers are not eligible
for special disciplinary arbitration because that option is restricted by N.J.S.A.
40A:14-150 to officers who work for municipal police departments in
jurisdictions that are not part of the civil service system. In addition, even if
that statutory restriction under N.J.S.A. 40A:14-150 did not pertain, the officer
in this case is ineligible because he has not been suspended without pay , as
required by N.J.S.A. 40A:14-209 and -210. That said, we reject NJIT's waiver
argument because N.J.S.A. 40A:14-210(b) confers a statutory right upon
eligible officers to file a special disciplinary arbitration request with the
Commission, as was done here, within twenty days of receiving notice of their
termination.
I.
A.
The NJIT Police Force
Before his discharge, co-respondent Gregory DiGuglielmo was a police
officer employed by the NJIT Department of Public Safety. According to its
2019 Annual Campus Security Report ("Annual Report") posted on its website,
A-3772-19T2 4 as of 2019, the Department had eighty-two members, consisting of a Chief of
Police, a Deputy Chief, three Lieutenants, ten Sergeants, twenty-four police
officers, thirty-eight security officers, and administrative support staff. See N.J.
Inst. Tech., Annual Campus Security Report and Annual Fire Safety Report
(2019).1 All of the NJIT police officers "have graduated from an accredited
police academy and are certified as police officers by the New Jersey Police
Training Commission." Id. at 4. "They possess full police powers including the
power of arrest." Ibid.
Pursuant to their statutory authority, NJIT police officers "have complete
police authority to apprehend and arrest anyone involved in illegal acts on -
campus and in reasonably contiguous areas surrounding the campus." Id. at 5;
see also N.J.S.A. 18A:6-4.5 (declaring that every police officer appointed by an
institution of higher education in this State "shall possess all the powers of
policemen and constables in criminal cases and offenses against the law
anywhere in the State of New Jersey, pursuant to any limitations as may be
imposed by the governing body of the institution which appointed and
commissioned the person").
1 We take judicial notice of NJIT's description of its police force set forth in this published report, pursuant to N.J.R.E. 201 and 202. A-3772-19T2 5 As declared in NJIT's Annual Report, their officers "provide[] police
protection to the campus and adjacent streets 24 hours a day/365 days a year."
Id. at 4. The Department undertakes this mission "through the around-the-clock
efforts of dedicated law enforcement professionals who create a highly visible
police and public safety presence" in collaboration with "key stakeholders
throughout the university." Ibid. The NJIT police officers "work closely with
local, state, and federal police agencies and have direct communication with the
Newark Police, Rutgers University-Newark Police, Essex County College
Police, and the NJ Transit Police Departments." Id. at 5.
Officer DiGuglielmo was hired internally by NJIT to serve as a campus
police officer. Since at least 1970, "any institution of higher education,
academy, school or other institution of learning [in New Jersey] may appoint
such persons as the governing body may designate to act as policemen [police
officers] for the institution." N.J.S.A. 18A:6-4.2. Generally, the police chief of
the municipality in which the educational institution is located must investigate
and approve the background and suitability of applicants for campus police
officer positions. N.J.S.A. 18A:6-4.3. However, Title 18A provides an
exception to that external review process by the local police chief, specifying
that "a college or university with an established police agency may conduct the
A-3772-19T2 6 complete investigation of an applicant's criminal history, character, competency,
integrity and fitness." N.J.S.A. 18A:6-4.3a (emphasis added). As represented
by its counsel at oral argument, NJIT has taken advantage of that alternative
hiring process and used it to hire Officer DiGuglielmo. Ibid.
NJIT's Powers and Governmental Functions
NJIT has been created by the Legislature as a "public research university."
N.J.S.A. 18A:64E-13. The university encompasses numerous units, including
the Newark College of Engineering, the New Jersey School of Architecture, the
College of Science and Liberal Arts, the School of Industrial Management, and
various extension and cooperative education programs. Ibid.
As will soon become pertinent to our analysis, NJIT has been legislatively
declared to be a "body corporate and politic." N.J.S.A. 18A:64E-14. The
powers conferred upon NJIT by its enabling statute are "deemed to be public
and essential governmental functions necessary for the welfare of the State and
the people of New Jersey." Ibid. (emphasis added).
NJIT is headed by a Board of Trustees, which oversees the "conduct,
control, management and administration of the university." N.J.S.A. 18A:64E -
18. The Board's wide powers include the authority to "appoint, remove,
promote, and transfer" the employees of NJIT, prescribe qualifications for their
A-3772-19T2 7 positions, and determine their salaries and compensation. N.J.S.A. 18A:64E-
18(h). The Board is also authorized to enter into collective bargaining
agreements. Ibid. Subject to dispute resolution proceedings called for under
CNAs or as provided by university policy, "and further subject to and limited
by any law to the contrary," the NJIT Board has "final authority to determine
controversies and disputes concerning tenure, personnel matters and other issues
involving the university arising under Title 18A." N.J.S.A. 18A:64E-18(i)
(emphasis added).
In sum, the NJIT Board has broad powers over its educational functions
and workforce, but those powers are "subject to and limited by" any laws that
may curtail or override that authority. Ibid. Such overarching laws manifestly
include — as will become apparent in our analysis, infra — statutes that govern
or regulate how police officers employed by various governmental bodies may
be hired, trained, disciplined, or terminated.
The Underlying Factual Context
The underlying factual contentions that led to this jurisdictional dispute
have little bearing upon the pure legal issues that confront us. We briefly
summarize those factual contentions, recognizing that no arbitration or other
fact-finding proceeding has yet occurred.
A-3772-19T2 8 Officer DiGuglielmo was issued a Notice of Termination for his conduct
that allegedly occurred during a pursuit of a juvenile bicyclist on August 26,
2019. According to NJIT, DiGuglielmo was engaged in a hot pursuit after the
juvenile was suspected of "Title 39" (i.e., motor vehicle and traffic) violations.
DiGuglielmo was training a probationary officer on the night of the chase.
NJIT contends that DiGuglielmo instructed the trainee to "drive against
traffic on a one-way street, cross an intersection from an unlawful direction,"
and also "failed to ensure [the police vehicle’s] overhead warning lights were
activated."
DiGuglielmo confirmed at his internal affairs interview that he had yelled
profanity at the fleeing youth, which apparently can be heard on a video
recording taken by an unidentified observer. The officer tackled the juvenile
and restrained him, using mechanical restraints. The juvenile required medical
attention as a result of this allegedly unauthorized use of force.
The Investigation and Charges
NJIT suspended Officer DiGuglielmo with pay on August 27, 2019 and
notified him that he was the subject of an internal affairs investigation for his
alleged misconduct.
A-3772-19T2 9 NJIT referred the matter to the Essex County Prosecutor’s Office to
determine if criminal charges arising from the alleged use of excessive force
should be issued against Officer DiGuglielmo. In October 2019, the
Prosecutor's Office advised NJIT that "there [was] insufficient credible evidence
to warrant a criminal prosecution" of the matter. The Prosecutor did not
conclude, however, that there was "insufficient evidence to sustain
administrative charges."
On November 15, 2019, Officer DiGuglielmo was served with a
Disposition Letter and Notice of Disciplinary Action, which notified him that
NJIT's internal investigation had sustained eleven charges against him for
violating seven Department Rules and Regulations. Thereafter, on December
20, 2019, NJIT served upon the officer a letter formally notifying him that he
was being terminated for cause.
PERC's Appointment of a Special Arbitrator
On January 8, 2020, Officer DiGuglielmo and his counsel filed with PERC
a challenge to his termination and a request for special disciplinary arbitration
under N.J.S.A. 40A:14-209 and -210. NJIT objected to that request, contending
that the officer is not legally eligible for the arbitration.
A-3772-19T2 10 After considering the competing legal positions of the parties, PERC
concluded that it has jurisdiction over the officer's termination, and that he is
indeed eligible to participate in the special disciplinary program. The
Commission's Director of Conciliation and Arbitration issued a written decision
on April 16, 2020, explaining the basis for that decision. Relying on previous
administrative decisions it had issued on the subject and the text of PERC's
regulations, the Director found that NJIT is a "law enforcement agency" within
the meaning of N.J.S.A. 40A:14-200 and that Officer DiGuglielmo is a "law
enforcement officer" employed by such an agency.
The Director rejected NJIT's procedural argument that the officer had
waived any entitlement to special disciplinary arbitration in bypassing t he
disciplinary procedures contained in the CNA between NJIT and his labor union,
the Fraternal Order of Police Lodge 93 ("FOP"). The Director reasoned that the
statutory procedures concerning special disciplinary arbitration make that
process "available to all law enforcement officers with narrow exceptions,
regardless of whether they have a [labor union] representative." The Director
noted in this regard that "N.J.S.A. 40A:14-210 only requires that an officer file
for arbitration with PERC within 20 days of receiving notice of his termination."
She added, "[t]he statute does not set forth any other requirements."
A-3772-19T2 11 Having determined that Officer DiGuglielmo had timely and properly
requested special disciplinary arbitration, the Commission in separate
correspondence appointed an arbitrator to adjudicate the matter.
This Appeal and the Amici
NJIT then applied to this court for leave to appeal the Commission's
exercise of jurisdiction and its appointment of an arbitrator. We granted that
application and stayed the arbitration. Co-respondents DiGuglielmo and PERC
have both opposed NJIT's appeal.
We invited the Attorney General to participate in this matter as amicus
curiae, and have considered the limited arguments presented by his office on
certain legal issues before us. In addition, we granted permission for the FOP
to appear as an amicus on the side of the officer and NJIT, and for Rutgers
University to appear as an amicus on the side of NJIT.
We have reviewed de novo the legal arguments of all parties and the amici.
Maeker v. Ross, 219 N.J. 565, 574-75 (2014). In considering those arguments,
we have accorded a degree of deference to the Commission, given its "broad
authority and wide discretion" in the "highly specialized area" of the relations
between an employer and employee in the public sector. In re Hunterdon Cnty.
Bd. of Chosen Freeholders, 116 N.J. 322, 328 (1989). We similarly have given
A-3772-19T2 12 substantial regard to the legal position of the Attorney General, given his dual
roles as sole legal adviser to most agencies in State Government and also his
statewide responsibilities in matters touching upon law enforcement. See
Quarto v. Adams, 395 N.J. Super. 502, 513 (App. Div. 2007).
Several of the advocates have urged us to reach the issues of statutory
interpretation in this case even if we might be able to resolve it on procedural
grounds (such as waiver), because there are presently no published judicial
opinions on point for guidance.
II.
We begin our analysis with a discussion of the special disciplinary
arbitration process and related statutes.
As a starting point, we recognize that most police officers in this State
cannot be terminated or disciplined without proof of "just cause." N.J.S.A.
40A:14-147. The officer is entitled to written notice of the grounds for
termination or discipline as well as an opportunity to be heard at a hearing "by
the proper authorities." Ibid.
In 1937, the Legislature enacted Revised Statute 40:47-10, a provision
designed to provide certain police officers who were found to have violated their
A-3772-19T2 13 departments' rules and regulations with the right to obtain in the County Court
of Common Pleas the judicial review of those decisions. L. 1937, c. 84, § 1.
The right of judicial review under the 1937 statute was confined to officers who
were employed in "any police department in any municipality in this state not
operating under [the civil service laws]." Ibid. (emphasis added). Pursuant to
that statute, the court had the authority to affirm or reverse the departmental
findings and, if the latter, to order the officer restored to his position and to have
his losses compensated. Ibid.
A year later in 1938, the Legislature extended this right of judicial review
to disciplined municipal firefighters employed in non-Civil Service localities.
R.S. 40:47-10, as amended by L. 1938, c. 298, § 1. In 1953, R.S. 40:47-10 was
revised again to substitute the County Court for the Court of Common Pleas. L.
1953, c. 37, § 168.
Decades later in 1971, the Legislature repealed this statutory scheme in
Title 40 and recodified it under Title 40A as N.J.S.A. 40A:14-150 ("Section
150"). As part of this recodification, the Legislature essentially replicated the
key facets of the predecessor statute. L. 1971, c. 197, § 626. The provision was
amended again in 1981 in ways not important to our analysis. L. 1981, c. 75, §
6.
A-3772-19T2 14 As the statute evolved, these various amendments preserved the critical
ingredients that the independent judicial review process under the statute would
be "de novo" and that the court can supplement the record created at the local
level. See Ruroede v. Borough of Hasbrouck Heights, 214 N.J. 338, 344 (2013).
The 2009 Amendments
Significantly for the present case, in 2009 the Legislature adopted a
package of amendments that enhanced the rights of certain disciplined police
officers and firefighters. L. 2009, c. 16, §§ 1-16. As a component of that reform,
the Legislature created what is now termed "special disciplinary arbitration " as
an alternative process to the court-based review available under Section 150.
The 2009 statutory revision was accomplished by revising Section 150 and also
by inserting new provisions in additional sections.
The 2009 legislation includes a definitional section, which directly
impacts the present case, at N.J.S.A. 40A:14-200 ("Section 200"). Section 200
defines the operative terms "law enforcement agency" and "law enforcement
officers."
The term "law enforcement officer" is defined in the statute as:
[A]ny person who is employed as a permanent full-time member of any State, county, or municipal law enforcement agency, department, or division of those governments who is statutorily empowered to act for
A-3772-19T2 15 the detection, investigation, arrest, conviction, detention, or rehabilitation of persons violating the criminal laws of this State and statutorily required to successfully complete a training course approved by, or certified as being substantially equivalent to such an approved course, by the Police Training Commission ....
[N.J.S.A. 40A:14-200 (emphasis added).]
Further, N.J.S.A. 40A:14-200 defines a "law enforcement agency" as:
[A]ny public agency, other than the Department of Law and Public Safety, but not including the Juvenile Justice Commission, any police force, department, or division within the State, or any county or municipality thereof, which is empowered by statute to act for the detection, investigation, arrest, conviction, detention, or rehabilitation of persons violating the criminal laws of this State.
[Ibid. (emphasis added).]
These defined terms are utilized in provisions adopted in 2009 that allow
eligible police officers and firefighters: (1) in Civil Service jurisdictions to
obtain review of their proposed termination before an Administrative Law Judge
in the Office of Administrative Law ("OAL") and thereafter the Civil Service
Commission ("CSC"), see N.J.S.A. 40A:14-201 to -208, and (2) in non-Civil
Service municipalities to obtain "special disciplinary arbitration" by an
arbitrator appointed by PERC. See N.J.S.A. 40A:14-209 ("Section 209") and -
210 ("Section 210").
A-3772-19T2 16 Special disciplinary arbitration is described in depth in Sections 209 and
210. Section 209 focuses particularly upon the officer's right to be paid wages
while he or she is awaiting the completion of the special arbitration process. In
this regard, subsection (a) of Section 209 reads as follows:
a. When a law enforcement officer or firefighter employed by a law enforcement agency or department that is not subject to the provisions of Title 11A of the New Jersey Statutes is suspended from performing his official duties without pay for a complaint or charges, other than (1) a complaint or charges relating to the subject matter of a pending criminal investigation, inquiry, complaint, or charge whether pre-indictment or post indictment, or (2) when the complaint or charges allege conduct that also would constitute a violation of the criminal laws of this State or any other jurisdiction, and the law enforcement agency or department employing the officer or firefighter seeks to terminate that officer's or firefighter's employment for the conduct that was the basis for the officer's or firefighter's suspension without pay, the officer, as an alternative to the judicial review authorized under N.J.S.40A:14-150, and the firefighter, as an alternative to the judicial review authorized under N.J.S.40A:14- 22, may submit an appeal of his suspension and termination to the Public Employment Relations Commission for arbitration conducted in accordance with the provisions of section 11 of P.L.2009, c. 16 (C.40A:14-210). A final determination on the officer's or firefighter's suspension and termination shall be rendered by an arbitrator within 180 calendar days from the date the officer or firefighter is suspended without pay.
A-3772-19T2 17 If a final determination is not rendered within those 180 days, as hereinafter calculated, the officer or firefighter shall, commencing on the 181st calendar day, begin again to receive the base salary he was being paid at the time of his suspension and shall continue to do so until the final determination on the officer's or firefighter's termination is rendered.
[N.J.S.A. 40A:14-209(a) (emphasis added).]
Subsections (b) through (c) of Section 209 go on to address how to calculate the
180-day period, and the effect of any delays or adjournments. N.J.S.A. 40A:14-
209(b) and (c).
The next provision, Section 210, details the procedures to be followed
within the special disciplinary arbitration process. That provision states , in
pertinent part:
a. In lieu of serving a written notice to the Superior Court under the provisions of N.J.S.40A:14-150 or N.J.S.40A:14-22, as appropriate, seeking review of the termination of his employment for a complaint or charges, other than a complaint or charges relating to a criminal offense, as prescribed in subsection a. of section 10 of P.L.2009, c. 16 (C.40A:14-209), an officer or firefighter may submit his appeal to arbitration as hereinafter provided.
b. Within 20 days of receiving notice of termination, the officer or firefighter shall submit his appeal for arbitration to the Public Employment Relations Commission. The appeal shall be filed in a manner and form prescribed by the commission.
A-3772-19T2 18 Upon receipt of such an appeal, the commission shall forthwith notify the employing agency or department of the appeal.
[N.J.S.A. 40A:14-20(a) and (b) (emphasis added).]
Subsections (c) through (h) of Section 210 spell out other facets of the
special disciplinary arbitration once that process has been elected by an eligible
law enforcement officer. In particular, subsections (c) and (d) address how the
special arbitrator is chosen. Ibid. Subsection (e) authorizes the arbitrator to
administer oaths, require the attendance of witnesses and the production of
documents, and issue subpoenas. Ibid. Subsection (f) requires the arbitrator to
issue a decision within ninety days. Ibid. Subsection (g) instructs that if the
arbitrator rules in favor of the officer, he or she must be reinstated with full pay;
conversely, if the arbitrator rules for the employer, the officer must reimburse
the employer for any pay the officer received during the pendency of the matter
pursuant to Section 209. Ibid. Lastly, subsection (h) addresses payment issues
in instances in which the arbitrator's decision is appealed. Ibid.
The legislative history of these 2009 provisions reflects a strong policy
concern about suspended officers who are unpaid while awaiting a disposition
of the disciplinary charges. As the Committee Statement of the Assembly Law
A-3772-19T2 19 and Public Safety Committee, concerning the bill that became law, A. 3481,
noted:
As amended and reported by the committee, Assembly Bill No. 3481 entitled certain law enforcement officers and paid firefighters who are appealing terminations for noncriminal complaints or charges to again begin receiving their base salary if a final determination on their appeal is not rendered within 180 days.
Starting on the 181st [day] following their suspension without pay, law enforcement officers or firefighters would begin again to receive the base salary that they were being paid prior to their termination and to continue to receive that salary until a final determination on their appeal is rendered. If the law enforcement officer or firefighter prevails in the appeal, the salary moneys that have been withheld are to be paid to that law enforcement officer or firefighter.
[Assembly Law and Public Safety Comm. Statement to Assembly, A. 3481 (L. 2009, c. 16) (emphasis added).]
In the same vein, the Governor's Message on Signing of the 2009
legislation stated, "[t]his bill provides a fair safeguard to law enforcement, . . .
a safeguard that is appropriate in light of their unique contribut[ions] to the state
by risking themselves to protect others." Governor's Message on Signing (Mar.
5, 2009). The Governor added:
We know that the fact-finding and deliberative process can take many months; and that this places a very heavy burden on people, who then must cope with extreme
A-3772-19T2 20 financial hardship caused by a protracted suspension of salary at a difficult and emotional time when their careers are, essentially, in limbo.
[Ibid.]
PERC's Regulations
Pursuant to N.J.S.A. 40A:14-211, PERC promulgated regulations,
N.J.A.C. 19:12-6.1 to -6.8, to administer the special disciplinary arbitration
process. In particular, N.J.A.C. 19:12-6.4(a) provides that "[a]n appeal of a
disciplinary termination of a non-civil service firefighter or law enforcement
officer shall be initiated by filing a written request with the Director of
Arbitration for the appointment of an arbitrator from the Commission’s Special
Disciplinary Arbitration Panel." (Emphasis added). The regulations do not
define the term "law enforcement officer" and presumably apply the statutory
definition in Section 200. See N.J.A.C. 19:12-6.1(a).
Tracking Section 210, PERC regulations specify that the special
disciplinary arbitrator "may administer oaths and require the attendance of
witnesses and the production of such documents as the arbitrator may deem
material to a just determination of the appeal, and for such purpose may issue
subpoenas." N.J.A.C. 19:12-6.6(a). Further, "[t]he arbitrator shall have the
power to resolve any discovery issues," and "communicate with the parties to
A-3772-19T2 21 arrange for a mutually satisfactory date, time and place for a hearing, which
shall be conducted within 60 days after the arbitrator is appointed." N.J.A.C.
19:12-6.6 (b) and (c).
Additionally, subsection (d) of N.J.A.C. 19:12-6.6 provides that
"[h]earings shall be de novo proceedings and shall not be limited to review of
any prior proceedings or hearings held in order to impose discipline in
accordance with . . . N.J.S.A. 40A:14-147." The arbitrator "shall render an
opinion and final determination within 90 days of his or her appointment . . . ."
N.J.A.C. 19:12-6.7(a).
We now consider the legal and jurisdictional arguments presented to us
with these various statutes and regulations in mind.
B.
NJIT argues it is not obligated to participate in PERC's special
disciplinary arbitration process for several reasons. As a general theme, NJIT,
joined in this regard by amicus Rutgers, contends that New Jersey universities
and other public institutions of higher education are autonomous entities created
under Title 18A and their police forces should not be regarded as "law
enforcement agencies" subject to the provisions of Title 40A. We disagree, and
affirm PERC's sound interpretation of this pivotal term.
A-3772-19T2 22 The definition in Section 200 of a "law enforcement agency," which we
have quoted above, encompasses two broad concepts. First, the definition
includes "any public agency, other than the Department of Law and Public
Safety, but not including the Juvenile Justice Commission." Ibid. (emphasis
added). Second, the definition also encompasses "any police force, department
or division within the State, or any county or municipality thereof." Ibid.
(emphasis added). Further, such a "public agency" or "police force" must be
"empowered by statute to act for the detection, investigation, arrest, conviction,
detention, or rehabilitation of persons violating the criminal laws of this State."
Ibid. (emphasis added). The NJIT police unit satisfies these definitions.
NJIT's Department of Public Safety is clearly a public agency. As we
have already noted, NJIT is a public institution, a "body corporate and politic"
created by the Legislature. N.J.S.A. 18A:64E-14. The university's activities are
"deemed to be public and essential governmental functions." Ibid. (emphasis
added).
Moreover, NJIT enjoys the immunities and defenses of a "public entity"
under the Tort Claims Act. See Bonitsis v. New Jersey Inst. of Tech., 363 N.J.
Super. 505 (App. Div. 2003), certif. granted, judgment rev'd, 180 N.J. 450
(2004); see also N.J.S.A. 59:1-3 (defining a "public entity" under the Tort
A-3772-19T2 23 Claims Act to include "any . . . public agency, and any other . . . public body in
the State."). It would subvert legislative consistency to treat NJIT as a public
body or agency for other parts of State law, but to not likewise treat it as a public
body or public agency under N.J.S.A. 40A:14-200.
In addition, NJIT's police officers clearly work for a "police force."
Indeed, their hiring by the Department was accomplished through NJIT's express
hiring authority under N.J.S.A. 18A:6-4.3a as "a college or university with an
established police agency." As described on its website, NJIT has a large and
well-established police force, and it has grown to a department consisting of
over eighty employees that include two dozen police officers. Having taken
advantage of the hiring prerogatives of "an established police agency" that
bypass a local police chief's statutory hiring approval, NJIT cannot fairly avoid
being considered a "law enforcement agency." The two concepts are logically
synonymous.
Third, there is no doubt that NJIT's police officers are empowered by
statute -- i.e., Title 18A -- to engage in the "detection, investigation, arrest,
conviction, detention, or rehabilitation of persons violating the criminal laws of
this State." N.J.S.A. 40A:14-200. The university's own website touts these
traditional police powers. Annual Report at 4-5; see also N.J.S.A. 18A:6-4.5
A-3772-19T2 24 (confirming university police officers "shall possess all the powers of policemen
. . . pursuant to any limitations as may be imposed by the governing body of the
institution which appointed and commissioned the person") (emphasis added).
Here, the public body that appointed and commissioned Officer DiGuglielmo
and his fellow officers was NJIT, not the Newark municipal police department.
Finally, as the Attorney General points out, there are sensible policy
reasons for treating campus police officers as being subject to the policies on
use of force and other "law enforcement" activities that are overseen statewide
by the Attorney General. 2 In fact, N.J.S.A. 40A:14-181 mandates such
adherence and expressly treats campus police departments as "law enforcement
agencies" in its language: "Every law enforcement agency, including a police
2 In the Attorney General's amicus brief, counsel explained the following in a footnote:
[T]he Attorney General's law-enforcement directives have been long-considered binding on campus police forces. See, e.g., Attorney General Law Enforcement Directive 2000-4, "Revision To August 14, 1995, Directive Implementing Procedures For The Seizure Of Weapons From All State Law Enforcement Officers Involved In Domestic Violence Incidents" (Sept. 1, 2000) (issued with letter from Attorney General, dated Sept. 19, 2000, specifically including campus police as state law-enforcement officers for purpose of Directive). A-3772-19T2 25 department of an institution of higher education . . . , shall adopt and implement
guidelines which shall be consistent with the guidelines governing the 'Internal
Affairs Policy and Procedures' of the Police Management Manual. . . ."
In sum, a plain reading and application of the statutory language, as well
as common sense, demonstrate that Officer DiGuglielmo is a "law enforcement
officer" who was employed by a "law enforcement agency" within the
definitional ambit of N.J.S.A. 40A:14-200.
C.
Despite our conclusion that Officer DiGuglielmo is employed by a "law
enforcement agency," the statutory analysis does not end there. We must now
consider whether the cross-references within both Sections 209 and 210 to
Section 150 (i.e., N.J.S.A. 40A:14-150) affect his eligibility for special
disciplinary arbitration. We conclude that Section 150 precludes him, as a non -
municipal police officer, from availing himself of the special disciplinary
arbitration process.
Section 150, was amended as part of the 2009 legislation to insert an
express reference to special disciplinary arbitration:
Any member or officer of a police department or force in a municipality wherein Title 11A of the New Jersey
A-3772-19T2 26 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; provided, however, that in the case of an officer who is appealing removal from his office, employment or position for a complaint or charges, other than a complaint or charges relating to a criminal offense, the officer may, in lieu of serving a written notice seeking a review of that removal by the court, submit his appeal to arbitration pursuant to section 10 of P.L.2009, c. 16 (C. 40A:14- 209). Such 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 may make such other order or judgment as said court shall deem proper.
Section 209, which establishes special disciplinary arbitration, refers to
that process "as an alternative to the judicial review authorized under
N.J.S.40A:14-150." N.J.S.A. 40A:14-209(a). Similarly, its companion
provision Section 210, which delineates the special arbitration process, begins
with the phrase: "In lieu of a serving of written notice to the Superior Court
A-3772-19T2 27 under the provisions of N.J.S.A. 40A:14-150 . . . [the following procedures
apply]." N.J.S.40A:14-210(a). These provisions clearly work in tandem to
incorporate, by reference, the terms and limitations of Section 150.
Plainly, Section 150 is limited to officers "of a police department or force
in a municipality wherein Title 11A of the New Jersey Statute [civil service] is
not in operation . . . [.]" N.J.S.A. 40A:14-150 (emphasis added). The statutory
definition of a "municipality" stems back to 1917, when the Legislature enacted
L. 1917, c. 152. In current form, our statutes define a "municipality" as a "'city',
'town', 'township', 'village', 'borough', and any municipality governed by a board
of commissioners, or improvement commission." N.J.S.A. 40:42-1. NJIT is
none of these things. By any stretch of the imagination NJIT simply isn't a
"municipality." Consequently, special disciplinary arbitration is unavailable to
its officers.3
3 We are aware that our court's opinion in Bergen Cnty. Law Enf't Grp. v. Bergen Cnty. Board of Chosen Freeholders, 191 N.J. Super. 319, 326 (App. Div. 1983), could be read to suggest that a county sheriff's officer might qualify as a municipal police officer under N.J.S.A. 40A:14-150. We decline to follow that interpretation here. For one thing, that opinion was deemed "highly questionable" on other grounds in State v. State Troopers Fraternal Ass'n, 134 N.J. 393, 412-13 (1993). In addition, there is no analytical reason to treat university police officers as municipal police officers, and no legislative history or statutory text supports that notion. A-3772-19T2 28 Our conclusion on this point is not undermined by the portion of N.J.S.A.
40A:14-200 that excludes the Department of Law and Public Safety from the
definition of a "law enforcement agency," but then carves out of that exclusion
the Juvenile Justice Commission ("JJC"). Clearly, the Department of Law and
Public Safety is a State, not municipal, body. See N.J.S.A. 52:17B-1. The JJC,
which is within that Department, likewise is not a municipality. See N.J.S.A.
52:17B-170. Yet it is not superfluous for the definition within Section 200 to
address these State entities. That is because, despite the inapplicability of
Sections 209 and 210 to non-municipal agencies, other portions of the 2009 act,
i.e. Sections 201 through 208, do pertain to non-municipal entities that are
within the Civil Service system. Those provisions in Sections 201 through 208
address an eligible officer's hearing rights in the OAL and further review by the
CSC of the Administrative Law Judge's decision.
Consequently, the exclusion of all but the JJC within the Department of
Law and Public Safety from Section 200 accomplished a separate purpose, one
not in play here, to exclude the officers in Civil Service titles within that
Department (except for JJC officers), such as certain members of the State
Police, from the OAL proceedings and CSC review set forth in Sections 201
through 208. The exclusion was not superfluous. See, e.g., N.J.S.A. 53:1-5
A-3772-19T2 29 through -7, and -11.7 (recognizing that some State Police officers are in the
"classified" (i.e., Civil Service) system).
Hence, because Officer DiGuglielmo was not employed by a municipal
law enforcement agency, Section 150 bars his eligibility for special disciplinary
arbitration. Nothing in the statute's text or legislative history shows otherwise. 4
D.
We need not comment much about the remaining issues but do so briefly
for the sake of completeness.
First, even if, for the sake of discussion, Officer DiGuglielmo could be
categorically eligible for special disciplinary arbitration despite his status as a
non-municipal officer, the fact that he has been suspended with pay precludes
him from availing himself of that hypothetical option. We do not read Section
210 to nullify the eligibility requirement of suspension-without-pay repeatedly
stated within Section 209.
4 In light of our ruling, we recommend that PERC consider revising its regulations concerning special disciplinary arbitration, particularly N.J.A.C. 19:12-6.4, to incorporate this omitted limitation. Additionally, the unpublished administrative decisions of PERC that suggested to the contrary, which were never upheld in published case law, are repudiated, to the extent that they conflict with our opinion. A-3772-19T2 30 Second, we reject the argument of NJIT and the Attorney General that
Officer DiGuglielmo waived any right to special disciplinary arbitration because
he bypassed the grievance steps set forth in the CNA. An eligible officer has a
statutory right to invoke special internal arbitration "[w]ithin [twenty] days" of
receiving a notice of termination. N.J.S.A. 40A:14-210(b). As PERC correctly
found, the CNA's grievance procedures cannot override this statutory
entitlement. See N.J.S.A. 34:13A-5.3. Consequently, we need not reach Officer
DiGuglielmo's claim that the procedures within the CNA violate principles of
due process.
Any other issues presented, to the extent we have not mentioned them, do
not warrant comment. R. 2:11-3(e)(1)(E).
III.
For the foregoing reasons, we reverse PERC's decision and vacate its order
to appoint a special disciplinary arbitrator. Beyond that determination, we
express no views about the respective rights of the parties concerning the
officer's proposed termination, including whether or not the filing deadlines
within the CNA should now be equitably tolled because of a mistaken premise
that the officer was eligible for special disciplinary arbitration.
A-3772-19T2 31 Affirmed in part, reversed in part. We do not retain jurisdiction.
A-3772-19T2 32