DEBORAH UPCHURCH VS. CITY OF ORANGE TOWNSHIP Â (L-1145-15, ESSEX COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4921-14T3
DEBORAH UPCHURCH,
Plaintiff-Appellant,
v.
CITY OF ORANGE TOWNSHIP, HAKEEM
SIMS, and STATE OF NEW JERSEY,
Defendants-Respondents.
Submitted January 19, 2017 – Decided June 12, 2017
Before Judges Alvarez and Accurso.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Docket No.
L-1145-15.
Eldridge Hawkins, attorney for appellant.
David C. Stanziale, attorney for respondents
City of Orange Township and Hakeem Sims.
Christopher S. Porrino, Attorney General,
attorney for respondent State of New Jersey
(Melissa H. Raksa, Assistant Attorney General,
of counsel; Todd A. Wigder, Assistant Attorney
General, on the brief).
PER CURIAM
Plaintiff Deborah Upchurch appeals from the April 29, 2015
Law Division order dismissing her action in lieu of prerogative
writs against defendants City of Orange Township (City), Hakeem
Sims, and the State of New Jersey. She also appeals the May 29
denial of her application for reconsideration.
We affirm the Law Division judge's decision that the forty-
five-day time limit found in N.J.S.A. 40A:14-147 does not apply
to a written reprimand. The statute requires that "[a] complaint
charging a violation of the internal rules and regulations
established for the conduct of a law enforcement unit shall be
filed no later than the [forty-fifth] day after the date on which
the person filing the complaint obtained sufficient information
to file[.]" We do not agree with the judge, however, that the
Superior Officers Association Local 89 (SOA) contract, which
included Upchurch's terms of employment, offered her a means by
which to challenge the written reprimand. Nor do we agree that
Upchurch is entitled to challenge the reprimand under the due
process clause of either the federal or state constitutions. Thus
her complaint remains dismissed, as we affirm the judge's order
albeit for different reasons.
After an internal affairs investigation into Upchurch's
conduct, on January 8, 2015, the City issued a written reprimand
for insubordination. Upchurch had been earlier served a complaint
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notification on June 6, 2014, which the City ultimately dismissed
because it believed belated service violated the forty-five-day
rule. When she was served with the January 8, 2015 reprimand,
Upchurch, contending the statutory time limit applied to a written
reprimand as well, filed the complaint in lieu of prerogative
writs against defendants.
In the complaint, Upchurch alleged that the City and Sims,
the Orange Police Department Director, violated N.J.S.A.
40A:14-147's forty-five-day rule, that the City and State's
procedures for minor disciplinary action taken against municipal
employees were unconstitutional, challenged the factual basis for
the issuance of the reprimand, and further alleged that the
Legislature's differential treatment of State and municipal
employees, a byproduct of the statutory scheme, was
unconstitutional. Defendants responded to the service of the
complaint and order to show cause by filing a Rule 4:6-2 motion
to dismiss.
During oral argument on the return date of the order to show
cause hearing granted on her petition, see Rule 4:69-1, the City
argued that the January 1, 2008 contract with SOA controlled. In
the contract, Article XXII includes a grievance process for minor
discipline, to be followed by arbitration, if one of the parties
is dissatisfied with the outcome.
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The judge concluded that N.J.S.A. 40A:14-147 did not apply
to written reprimands because it was not a complaint. He also
concluded that "[t]he common sense reading of N.J.S.A. 11A:2-161
provides a basis for [Upchurch] to file an appeal . . . when you
look at that along with Article 21 [of the SOA Contract] and you
read them together she would have had an opportunity to appeal
[the reprimand]." He observed that Upchurch had focused her
argument on the notion that the applicability of N.J.S.A. 11A:2-
16 was limited to the terms "suspension or fine of five days or
less," rather than reading the statute in conjunction with the
contract.
At the oral argument in support of reconsideration, Upchurch
reiterated her position that the SOA contract did not create a
mechanism for appeal of a reprimand, and that N.J.S.A. 11A:2-16
only applied to appeals of suspensions or fines. The judge in
turn reiterated his decision that the statutory scheme, when read
in conjunction with the SOA contract, provided a means for Upchurch
to challenge the written reprimand.
1
"If an employee of a political subdivision receives a suspension
or fine of 5 days or less, the employee may request review under
standards and procedures established by the political subdivision
or appeal pursuant to an alternate appeal procedure where provided
by a negotiated contract provision." N.J.S.A. 11A:2-16.
4 A-4921-14T3
I.
Because in rendering his decision the judge considered
materials outside the four corners of the complaint, such as the
contract, the Rule 4:6-2 motion for dismissal for failure to state
a claim is treated as if a summary judgment motion. See R. 4:6-2
("If, on a motion to dismiss based on [failure to state a claim],
matters outside the pleading are presented to and not excluded by
the court, the motion shall be treated as one for summary
judgment and disposed of as provided by R. 4:46[.]").
"We review the grant of summary judgment using the
same standard as the motion judge." Mangual v. Berezinsky, 428
N.J. Super. 299, 306 (App. Div. 2012) (citing Prudential Prop. &
Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.),
certif. denied, 154 N.J. 608 (1998)). Under this standard, the
court must "consider whether the competent evidential materials
presented, when viewed in the light most favorable to the non-
moving party, are sufficient to permit a rational factfinder to
resolve the alleged disputed issue in favor of the non-moving
party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1996).
There are no facts in dispute. The issues relate solely to
questions of law. On questions of law, our review is plenary.
5 A-4921-14T3
D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013) (citation
omitted).
II.
Upchurch claims that a written reprimand can only issue within
forty-five days of the event, pursuant to N.J.S.A. 40A:14-147. We
begin our discussion with the language found in the statute:
Except as otherwise provided by law, no
permanent member or officer of the police
department or force shall be removed from his
office, employment or position for political
reasons or for any cause other than
incapacity, misconduct, or disobedience of
rules and regulations established for the
government of the police department and force,
nor shall such member or officer be suspended,
removed, fined or reduced in rank from or in
office, employment, or position therein,
except for just cause as hereinbefore provided
and then only upon a written complaint setting
forth the charge or charges against such
member or officer . . . .
A complaint charging a violation of the
internal rules and regulations established for
the conduct of a law enforcement unit shall
be filed no later than the [forty-fifth] day
after the date on which the person filing the
complaint obtained sufficient information to
file the matter upon which the complaint is
based.
[(Emphasis added).]
Furthermore, "failure to comply with said provisions as to the
service of the [written] complaint and the time within which a
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complaint is to be filed shall require a dismissal of the
complaint." N.J.S.A. 40A:14-147.
"The starting point of all statutory interpretation must be
the language used in the enactment." Vitale v. Schering-Plough
Corp., 447 N.J. Super. 98, 115 (App. Div. 2016) (quoting N.J. Div.
of Child Prot. & Permanency v. Y.N., 220 N.J. 165, 178 (2014)).
"If the statutory language is clear and unambiguous, and reveals
the Legislature's intent, [the court] need look no further." Ibid.
(quoting Farmers Mut. Fire Ins. Co. of Salem v. N.J. Prop.-Liab.
Ins. Guar. Ass'n, 215 N.J. 522, 536 (2013)).
The key statutory language in this case requires the contested
discipline to fall within the category of a "suspen[sion],
remov[al], fine[] or reduc[tion] in rank from or in office,
employment, or position therein . . . ." N.J.S.A. 40A:14-147.
The language is straightforward and clear, lacking any ambiguity
requiring us to do other than read it literally.
Upchurch only received a written reprimand, therefore she
does not fall within the purview of the statute. She was not
removed from her position, nor was she suspended, fined, or reduced
in rank. The statutory forty-five-day time frame simply does not
apply.
7 A-4921-14T3
III.
Upchurch also contends that her due process and equal
protection rights have been abrogated because the Legislature has
addressed the rights and safeguards necessary for State employees
faced with minor discipline, but those rules and regulations do
not apply to municipal employees. "[T]he Due Process Clause
provides that certain substantive rights – life, liberty, and
property – cannot be deprived except pursuant to constitutionally
adequate procedures." Cleveland Bd. of Educ. v. Loudermill, 470
U.S. 532, 541, 105 S. Ct. 1487, 1493, 84 L. Ed. 2d 494, 503 (1985).
Our Supreme Court has stated:
the equal protection of the laws means that no
person or class of persons shall be denied
the protection of the laws enjoyed by other
persons or classes of persons in their lives,
liberty and property, and in the pursuit of
happiness, both as respects privileges
conferred and burdens imposed.
[Peper v. Princeton Univ. Bd. of Trs., 77 N.J.
55, 79 (1978) (quoting Wash. Nat'l Ins. Co.
v. Bd. of Review of N.J. Unemployment Comp.
Comm'm, 1 N.J. 545, 553 (1949)).]
We agree with Upchurch that State employees have procedural
safeguards found in the Civil Service Act, N.J.S.A. 11A:1-1
to -12-6, and its implementing regulations, N.J.A.C. 4A:1-1.1 to
-10-3.2, not extended to municipal employees. In the Law Division
8 A-4921-14T3
judge's opinion, plaintiff has equivalent recourse in N.J.S.A.
11A:2-16. That statute states:
If a State employee receives a suspension or
fine of five days or less, the employee may
request review by the Civil Service Commission
under standards and procedures established by
the Civil Service Commission or appeal
pursuant to an alternate appeal procedure
where provided by a negotiated contract
provision. If an employee of a political
subdivision receives a suspension or fine of
five days or less, the employee may request
review under standards and procedures
established by the political subdivision or
appeal pursuant to an alternate appeal
procedure where provided by a negotiated
contract provision.
[(Emphasis added).]
The corresponding regulation, N.J.A.C. 4A:2-3.1(d), enacted
by the Civil Service Commission, provides that "[the] subchapter
shall not apply to local service, where an appointing authority
may establish procedures for processing minor discipline and
grievances." The regulations define minor discipline as "a formal
written reprimand or a suspension or fine of five working days or
less." N.J.A.C. 4A:2-3.1(a). Thus, the Commission authorized
municipalities to establish their own procedures for processing
minor discipline and grievances. This category includes the
written reprimand served on Upchurch.
Article XXII of the SOA, titled "discharge or suspension,"
provides:
9 A-4921-14T3
No employee shall be suspended, disciplined
or discharged without just cause. . . .
The arbitration provisions contained in
Article XXII of this Agreement shall be
available for appeal for suspensions of five
(5) days or less, and Civil Service procedures
shall be available for appeal of suspensions
of more than five (5) days.
[(Emphasis added).]
The section prohibits any suspension, discipline or discharge
"without just cause." The arbitration clause, however, does not
encompass "discipline[.]" It only applies to "suspensions of five
[] days or less," which does not include written reprimands.
Upchurch's due process rights would be violated if she had
no procedural protection from disciplinary action. But "due
process is flexible and calls for such procedural protections as
the particular situation demands." N.J. Div. of Youth & Family
Servs. v. R.D., 207 N.J. 88, 119 (2011) (quoting Morrissey v.
Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484,
494 (1972)). Different safeguards are required for different
disciplinary actions. A written reprimand is different from a
suspension of five days or less. The demands of due process "will
be a function of what reason and justice require under the
circumstances." In re Freshwater Wetlands Statewide Gen. Permits,
185 N.J. 452, 466-67 (2006).
10 A-4921-14T3
For example, in Cermele v. Township of Lawrence, 260 N.J.
Super. 45 (App. Div. 1992), the plaintiff filed a complaint in
lieu of prerogative writs after he was suspended for three days
without pay, arguing that there was no internal review procedure
available to him. Id. at 46. The trial court dismissed the
complaint for, among other reasons, the suspension being "such a
minor matter." Ibid. We reversed. "There was no contractual
review procedure or alternative appeal established by ordinance
for plaintiff's conduct . . . . whether the penalty was as minor
as one day's suspension, or as major as dismissal, plaintiff had
certain due process rights." Ibid. A formal hearing is not
required, as long as the plaintiff has the opportunity to present
his position. Ibid. Since the municipality provided no grievance
procedure for this form of minor discipline, the appropriate course
of action was to bring a complaint in lieu of prerogative writs
in the Law Division. Id. at 48.
But this matter differs from Cermele. Upchurch was not
entitled to formal due process before or after the issuance of the
reprimand, even though the SOA contract required "just cause"
whenever any disciplinary action is imposed. A reprimand is not
a suspension, with the attendant loss of pay and advancement
potential because of the loss of a day of service. A reprimand
is nothing more than a warning advising an employee of conduct
11 A-4921-14T3
with which the employer is dissatisfied. That is not the
equivalent of a compensable loss. It has no certain consequence
to the employee, at the time of the issuance, or in the future.
Other jurisdictions are in accord with this conclusion.2
See Stanton v. City of W. Sacramento, 226 Cal. App. 3d 1438 (Ct.
App. 1991) (declining to extend certain procedural due process to
written reprimands since "[d]emotion, suspension and dismissal all
involve depriving the public employee of pay or benefits; a written
reprimand results in no such loss to the employee."); Bogdanovic
v. Swatara Twp., 23 Pa. D & C.3d 115, 121-22 (Ct. Com. Pl.
1982) (holding that the reprimand letter was not an adjudication
requiring due process protections because no direct action
resulted and future effects were too speculative and did not
implicate protected rights); In re Hoffman, 652 N.Y.S.2d 346, 348
(App. Div. 1997) (explaining that if a letter of reprimand is
"nothing more than a critical admonition," then it does not have
the requisite formalities to trigger a hearing requirement).
The argument that a written reprimand may prevent an officer
from getting promoted is too speculative to be equivalent to a
2
As previously noted, we have expanded judicial review of the
suspension of a police officer, not including written reprimands.
See Cermele v. Twp. of Lawrence, 260 N.J. Super. 45, 47 (App. Div.
1992); Romanowski v. Twp. of Brick, 185 N.J. Super. 197, 203-04
(Law Div. 1982), aff’d o.b., 192 N.J. Super. 79, 480 (App. Div.
1983).
12 A-4921-14T3
suspension, reduction in rank, reduction in pay, or the termination
of employment. It is simply notice to an employee of an issue
which the employer perceives to be a problem. It gives the
employee the opportunity to alter his or her behavior before it
is too late.
Moreover, the Orange Police Department Policies and
Procedures Internal Affairs does provide, under the "Investigation
and Adjudication of Minor Complaints," that the "supervisor
investigating the complaint shall interview the complainant, all
witnesses and the subject officer." (emphasis added). Presumably,
such steps are undertaken to establish just cause. An officer can
also request a hearing upon charges being brought. At the
officer's request, "the Director will set the date for the hearing
within a reasonable time and arrange for the hearing on the
charges." Thus, it appears the City does provide an opportunity
to be heard and a parallel procedure for minor discipline to that
available to State employees. The statutory scheme, assuming the
argument is tenable, does provide State and municipal employees
the same recourse. But this procedure does not include a written
reprimand because it does not fall into the category of "minor
complaints." A written reprimand has no immediate or ascertainable
future impact on an employee. Therefore, Upchurch's due process
claim fails.
13 A-4921-14T3
Upchurch also alleges that her privacy or property rights
were affected by the issuance of the reprimand. That point is so
lacking in merit as to not warrant discussion in a written opinion.
R. 2:11-3(e)(1)(E).
IV.
Upchurch also maintains the trial court abused its discretion
in denying her motion for reconsideration. "Reconsideration is a
matter within the sound discretion of the [c]ourt, to be exercised
in the interest of justice." Cummings v. Bahr, 295 N.J. Super.
374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J.
Super. 392, 401 (Ch. Div. 1990)). We review the trial court's
denial of such a motion for abuse of discretion. Id. at 389.
As stated in Rule 4:49-2, motions for reconsideration should
be granted when the prior decision overlooked evidence, law, or
was otherwise plainly incorrect. Id. at 384. Upchurch's motion
was nothing more than a reargument of her original application,
thus no abuse of discretion occurred in the judge's denial.
V.
While we do not agree with the judge's reading of the relevant
SOA language as including written reprimands, we nonetheless
affirm the dismissal of Upchurch's action in lieu of prerogative
writs. Written reprimands simply do not require the procedural
safeguards afforded to discharges, suspensions, and fines. Thus,
14 A-4921-14T3
while the municipality does not appear to have a formal process
for dealing with written reprimands, it was not required to develop
one more than what was available under the internal affairs
policies and procedures.
Affirmed.
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