Watson v. City of East Orange

815 A.2d 956, 175 N.J. 442, 2003 N.J. LEXIS 170

• Court: Supreme Court of New Jersey
• Decided: February 24, 2003
• Status: Published

Opinions

PER CURIAM.

We affirm the judgment below, substantially for the reasons expressed in the opinion of the Appellate Division, reported at 358 N.J.Super. 1, 816 A.2d 1052 (2001). We add only these brief comments to amplify that opinion.

While under the influence of alcohol, Patrolman Horace Watson (petitioner) fired his service revolver in the direction of a residence on the campus of then-existing Upsala College. Investigators found nine spent shell casings traceable to petitioner’s gun. Fortunately, no one was injured.

Rather than discharge petitioner, the City of East Orange (respondent) showed leniency by deciding to suspend him with conditions. With the assistance of counsel, petitioner negotiated the terms of his suspension, which the parties then memorialized in a so-called “last chance” agreement (LCA). Consistent with that agreement, respondent suspended petitioner for ninety working days, beginning January 5,1997, and concluding May 20,1997. The LCA reflects unambiguously that respondent had agreed that petitioner could return to work only when he completed a mutually acceptable program for alcohol recovery. Petitioner did not begin attending such a program until May 5, 1997, just fifteen days before his suspension was scheduled to end. Following a departmental hearing held after the suspension period had expired, respondent discharged petitioner.

Petitioner appealed to the Merit System Board (Board), which in turn transmitted the matter as a contested case to an administrative law judge (ALJ). The ALJ upheld the discharge, finding that petitioner had not complied with his supervisor’s previous directive to inform the department by January 10, 1997, of the specific recovery program that he had selected. Implicit in that finding is that petitioner was obligated to identify and choose a program by that date, an obligation he did not fulfill. Although petitioner did enroll in a program late in the suspension period, the ALJ found that he did not complete it “within the period of suspension or within a reasonable time from the date of enrollment.” To date, petitioner has provided no evidence that he has completed the required program.

The Board adopted the ALJ’s findings that petitioner had violated the LCA and that dismissal was the appropriate discipline. The Appellate Division affirmed. We agree with the Appellate Division that under the limited standard of review applicable in this setting, see Close v. Kordulak Bros., 44 N.J. 589, 599, 210 A.2d 753 (1965), we have no basis to overturn the Board’s determination.

Contrary to the dissent’s suggestion, our disposition does not require us to re-write the parties’ agreement. The LCA attaches three conditions to petitioner’s suspension in lieu of discharge. Condition A is that petitioner “will enroll in a program for alcohol recovery.” A subset of that condition is that “[t]he program selected will be mutually acceptable to [respondent] and to [petitioner].” Conditions B and C respectively are that petitioner “will satisfactorily complete the program” and that “[Hollowing his release from the program, [petitioner] will be counseled by a licensed substance abuse counselor.” Qualifying all of the foregoing is this critical language, not emphasized by the dissent: “[Respondent] will determine in its sole discretion, when conditions A through C above have been met.” (Emphasis added).

Respondent obviously was not satisfied with the slowness by which petitioner identified and enrolled in a suitable program, his failure to keep respondent abreast of his progress, and his failure to complete the program itself. Given the dangerousness of petitioners initial conduct, respondent acted in the public interest by requiring petitioner to comply with both the letter and spirit of the LCA. Under those circumstances, we are persuaded that the LCA grants respondent the discretion to deem petitioner in breach of the agreement, justifying his dismissal.

Even if we were to assume that the LCA does not afford respondent that degree of discretion, our disposition would be the same. That petitioner was expected to enroll in and complete a recovery program in a timely fashion is clear from the LCA’s text and its surrounding circumstances. As found by the ALJ and as accepted by the Board, petitioner simply did not perform as contemplated by the parties, warranting his discharge. A contrary conclusion likely would chill employers from entering into last chance agreements to the detriment of future employees. See Golson-El v. Runyon, 812 F.Supp. 558, 561 (E.D.Pa.) (construing last chance agreements in favor of employers because to do otherwise would “discourage their use by making their terms meaningless”), aff'd, 8 F.3d 811 (3d Cir.1993).

The judgment of the Appellate Division is affirmed.