*1 APPELLANT-APPELLANT, OCHES, TOWNSHIP OF ROBERT DEPARTMENT, RESPONDENT-RE- MIDDLETOWN POLICE BOARD, SPONDENT, APPELLANT. SYSTEM AND MERIT February 1998. Argued 1998 Decided June *2 Forrest, General, Attorney argued Deputy K. June Senior (Peter Vemiero, Attorney appellant System Board cause for Merit Jacobson, Jersey, attorney; Mary Assistant of New C. General counsel). General, Attorney *3 Varano, argued appellant A. cause for Robert Oches.
Steven (Dowd respondent Reilly, argued Bernard the cause for & M. Reilly, attorneys). Kleinbaum, L. a brief on behalf of amicus
Paul submitted curiae, Jersey State Policemen’s Benevolent Association New Nowak, (Zazzali, Zazzali, Fagella attorneys). & STEIN, J. provision a of the appeal requires
This us to determine whether Act, implementing regulation, authorizing the Civil Service and an disciplin- in fees to a officer exonerated a award counsel ary proceeding involving conduct not in furtherance of his official duties, provision regulat- in statutes can be reconciled with a not authorize such a counsel ing municipal forces does fee award. Township, municipality,
Respondent a civil service Middletown Oches, petitioner disciplinary charges against Robert filed proceed Township. In the course of those officer Middletown (ALJ) System Judge and the Merit ings, an Administrative Law (Board) depart ground on the that the Board exonerated Oches inapplicable regulation allegedly violated was because mental he charges were did not constitute the conduct on which the based in furtherance of his official duties. The were action and, llA:2-22 and eventually pursuant to N.J.S.A dismissed 4A:2-2.12, the Board awarded counsel fees Oches. N.J.A.C. provides officer is a N.J.S.A. 40A:14r-155 that whenever legal proceeding arising out of and any action or defendant police powers directly to the lawful exercise of in the related duties, proceedings if are his or her and official furtherance officer, the officer shall be dismissed or determined favor llA:2-22, expenses. reimbursed for defense Pursuant to N.J.S.A. benefits, seniority, pay, is authorized to back the Board award attorney employee provided by rule. The reasonable fees to an 4A:2-2.12, regulation, provides: “The Merit relevant N.J.A.C. System partial Board shall award or full reasonable counsel fees employee prevailed substantially where an has on all or all primary issues.” Appellate Division reversed the Board’s award of counsel
fees, holding that rather than N.J.S.A. llA:2-22, applied, determining two statutes because the statute, 14-155, specific were in conflict the more N.J.S.A 40A: must control. Because had not acted in furtherance of his Oches official the court concluded that he was not entitled to granted reimbursement under N.J.S.A 40A:14-155. This Court petitions for certification Oches and the Board. 151 N.J. petition We denied Middletown’s for certifi *4 concerning disciplinary charges cation whether Oches’s arose out performance of official his duties. 151 N.J.
I disciplinary charges against In June Middletown filed Oches, Township then a Police Lieutenant in the Middletown Department. alleged improperly Police Middletown that Oches tape promotion recorded his interview in violation of Middletown’s 80-2, regulates police # in the General Order officers use equipment performance surveillance while in the electronic departmental hearing their waived a duties. Oches was position Sergeant.” appealed of “Police demoted Oches hearing Board and a held before an ALJ. demotion was hearing testimony, tape that After the ALJ concluded because recording participating in an incident occurred while Oches was potential promotion, concerning interview Oches had not been giving performing his official duties when the conduct rise to the charges against him occurred. The ALJ determined that Oches disciplined should have been because General Order #80-2 specifically regulates police only conduct adopted findings official duties. The Board thereafter the ALJ’s law, charges against fact and conclusions dismissed the Oches, Lieutenant, position reinstated him to the and awarded him counsel fees. appealed. Appellate
Middletown Division affirmed the ground Board’s dismissal of the on the that Oches was not occurred, performing alleged official duties when the misconduct that but reversed the award of counsel fees. The court held conflict, N.J.S.A. 40A:14-155 and N.J.S.A. llA:2-22 were in specifically of coun- because the former addressed award disciplinary it sel fees officer matters was the more specific governed. Concluding of the two statutes and therefore performing taped was not Oches official duties when he interview, the court determined that he was not entitled to counsel pursuant fees to N.J.S.A. 40A:14-155.
II considering statutory provisions When that relate to the same matter, subject every or similar we make effort to those reconcile appear attempt interpret laws that in conflict and them be Clark, harmoniously. Township Loboda v. (1963); Singer,
193 A.2d97 see also 2B Norman J. Sutherland Statu (5th tory § ed.l992)(stating 51.02 at 122 that stat- Construction *5 conflict, subject, “although apparent utes on in are same construed reasonably harmony possible”). to be in if 40A:14r-155, N.J.S.A. provides which for the reimbursement of successfully police counsel officers who defend fees themselves proceedings arising in out of conduct in furtherance of their duties, official states: officer of a
Whenever a member or
or force is a
department
municipal police
legal proceeding arising
or
defendant
in
action
out of and
related to
any
directly
the lawful
of
in the
of his official
exercise
furtherance
the
powers
police
governing
shall
said member or officer with
body
municipality
provide
proceeding,
means for the defense of such action
but not
or
for his
necessary
proceeding
against
defense in a
him the
instituted
or in
disciplinary
municipality
proceeding
criminal
as a
on
instituted
result of a
behalf of the
complaint
municipali-
proceeding
If
such
or criminal
instituted
or on
ty.
any
disciplinaiy
complaint
the
shall be dismissed or
determined
favor of the member or
municipality
finally
he shall
for the
officer,
be reimbursed
of his defense.
expense
Moya
interpreted
We
an earlier version of
statute in
the same
Brunswick,
City
491,
New
2d
448 A. 999
In its
previous form,
40A:
required
14-155
reimbursement
any
counsel
officer
“arising
fees when an
was a defendant
action
duties,”
performance
out of or
to the
incidental
of his
rather than
“arising
directly
police
out of and
related to
lawful
the
exercise of
duties,”
powers in
required by
the furtherance
his official
id. at
present statute.
Moya
See
After amended 40A:14- replace phrase 155 to “arising out incidental “arising of his duties” with the words out of and directly powers related to lawful exercise of in the furtherance of type his official duties” as the conduct for which an exonerated officer would be entitled reimbursement. L. 457, § legislative history c. 1. The Legisla- verifies the type ture’s intent to limit the *6 provided
would be
under N.J.S.A. 40A:14-155. The statement
accompanying
provided:
the amendment
regard
The
of this bill is to
the
with
intent
purpose
clarify
scope
l-equiring
of the law
for the defense of
municipalities
pay
municipal police
officers and to eliminate the
of the recent
of the New
impact
opinion
Jersey
(1982),
in
[448
Court
v. New
which
the
well
a literal
of this statute
expands
beyond
existing
at the time
itsof
decision.
acknowledging
decision, [sic]
In the
the
Court, while
that the
Moya
Supreme
charges involved did not arise from the
of the officer’s
held that
performance
duty,
charged
burglar,
the officer,
with conduct as a common
to that
directly opposite
[sic]
which he is
hired to
and
not on
while
was nevertheless entitled
perform,
duty
legal
defending
to reimbursement for
incurred in
himself
expenses
successfully
against
charges,
those
not
were
initiated
or on behalf of the
by
municipality.
14, 1985).]
(May
[Statement
1681,
to Senate Bill No.
L.
c. 457
1985,
provided:
Another statement
to the same bill
Bill
[N.J.S.A]
Senate
No. 1684would amend
40A:14-155to
the
of a
clarify
scope
obligation to
for the
or reimburse the
of
municipality’s
defense,
provide
expense
defense, of members or officers of the
or force who
municipal police department
legal proceeding.
are defendants
action or
A number of decisions
any
by
obligation
courts of this
have
State
the literal terms of
expanded
imposed by
charges
this
reach,
section to
not
of
of
only
duties, but
improper performance
police
charges arising
occurring
also
from acts
duties,
outside the
of
but
scope
charges arising
duties,
course of the
of those
and
from the
performance
solely
coverage
status as a
officer. The bill would eliminate the
of this
person’s
charges arising
section for
from acts
duties,
outside
but
scope
occurring in the
course
of those
and for “status
duties,
performance
charges.”
[Senate
and
Government Committee, Statement to Senate Bill
County Municipal
(June 18,1984).]
No.
L.
c. 457
legislative history
Courts have reviewed the
of the amendment
agreed
that the
intended N.J.S.A. 40A:14-155 to
only
authorize
charged
counsel fees
officers
with infrac
arising
police powers
tions
out of the lawful exercise of
in further
Middlesex,
Borough
ance of their official duties. See
Gordon
177, 182-83,
N.J.Super.
268
(App.Div.1993); Spark
performing by official were occasioned mere careless performance duties, overzealous those but rather an ulterior illegal goal of actually the officer which perversion constituted a job.” City City, Bruno v. Atlantic denied, (App.Div.), A.2d 122 584A.2d 231 certif (1990). However, concerning officers exonerated aris ing out police powers of the lawful exercise of in the furtherance of N.J.S.A. 40A:14-155 official guarantees its terms reim bursement of counsel fees. found, Appellate
The ALJ agreed, Division that Oches acting was not of his official duties at the time *7 alleged of the gave conduct that disciplinary proceed- rise to the ings. The issue is not question before us and we do not that Moreover, conclusion. that N.J.S.A 40A:14-155 acknowledge we does not authorize an award of Although counsel fees to Oches. exonerated, Oches charges was did not arise out of the lawful police powers exercise of in the furtherance of official duties as the requires. statute conclusion, however,
That does not inquiry. end our We next look to llA:2-22, which Oches and the Board contend authorizes the Board to award provided reasonable counsel fees as by irrespective rule of whether arise out of official duties. 4A:2-2.12, promulgated N.J. A.C. pursuant Act, to the Civil Service provides that the Board shall award fees employee where an has prevailed on substantially all primary provi issues. Those specifically apply sions disciplinary appeals to by to the Board all employees civil service authority under the of the Civil Service Act. employee Because Oches is an in municipality a civil service prevailed and he substantially on all of in disciplin the issues ary action, plain language of the statute and implementing regulation indicate that the authority Board has the grant to him counsel fee reimbursement. pursuant We also note that N.J.S.A 34.T3A-5.3, public employers and non-civil service em ployees may negotiate policies written setting disciplinary forth procedures. Therefore, review bargaining agreement collective municipality between a non-civil service and its officers also provide could for reimbursement of counsel fees for officers who disciplinary charges have dismissed or resolved in their favor. argues Middletown that because an award of counsel fees Oches is not authorized under in amended 1985, unlikely it is intended N.J.S.A. 11A:2- enacted in to authorize counsel fee reimbursement not specifically provided N.J.S.A 40A:14-155. Middletown conflict, contends that the statutes and that because N.J.S.A specific 40A:14-155 is the more statute it therefore controls. See Jersey Corp. Somerville, New Borough Transit 139 661 A.2d778 view, however,
In our necessarily the statutes are not N.J.S.A 40A:14-155 does not conflict. purport encompass police disciplinary Rather, entire universe of proceedings. we understand N.J.S.A 40A:14-155 to constitute a guarantee of coun sel fee disciplinary reimbursement when charges, or criminal arising police powers out of the lawful exercise of furtherance official are dismissed or resolved favor of an officer. The statute awarding does forbid the of fees other statutes contexts, or in other purport we infer that the statute does not variety to address a of circumstances in an award of counsel fees to a disciplinary proceeding officer exonerated in a legislative objective would not offend the led to the 1985 *8 amendment of N.J.S.A N.J.S.A. 40A:14- Although 40A:14-155. provide 155 itself does not charges for reimbursement when do not police powers, arise out of the lawful exercise of that statute does preclude the Board from exercising statutory authority its to allow reimbursement under other circumstances that are not with legislative purpose inconsistent underlying 40A:14-155.
A employee may subject civil service discipline be to for a wide activities, range including, among things: incompetency, other inability duties, perform chronic or excessive absenteeism or lateness, crime, conviction of a unbecoming public conduct a property. duty, public
employee, neglect and misuse of by apparent this it appeal, 4A:2-2.3. illustrated is N.J.A.C. As disciplinary charges may against be filed a civil service (or police municipality) for a in a civil service employee officer context, that, out necessarily does not arise conduct because of its police powers in the directly lawful exercise of of and relate to the a but nevertheless is not dereliction furtherance of official duty. example, charge For of chronic or excessive absentee a employee was off implies that occurred an ism the conduct while consequences to duty. disciplinary charges threaten Such serious may employees. types discipline be service civil removal, disciplinary employee a civil include a imposed on service demotion, or a fine. N.J.A.C. 4A:2-2.2. suspension, That a civil a removal, demotion, employee facing comparable disci service or professional pro representation disciplinary in pline would seek clearly ceedings is understandable. of N.J.S.A history legislative no indication in the text or
We see deny that the intended 40A:14r-155 prevail disciplinary counsel fees to officers who on off-duty arising allegations relatively benign charges out of absenteeism, tardiness, unbecoming as conduct such conduct officer, off-duty conduct or other that is unrelated dissenting colleagues mistak official duties. Our off-duty enly type characterize for which counsel conduct permitted involving “the may fee reimbursement be conduct laws.” Post perform an officer his duties failure of under such contrary, disciplinary A. 2d at To the such 1004. when charges result vindication of the officer because of proof or failure of other deficiencies adduced evidence entity, in a public may officer’s exoneration result In Board that the meritless. determination were instances, obviously public such the Board offends no- its discretion exercising to award In such policy counsel fees. cases, no conflict between N.J.S.A. 40A:14-155 perceive we llA:2-22. *9 acknowledge
We that in there will be factual situations may in which the statutes conflict and that those cases there officer, police would be no entitlement to reimbursement. When a duties, in acting rather than furtherance of official acts in derelic duties, tion of his or her official that officer would not entitled be reimbursement under N.J.S.A. Similarly, to 40A:14r-155. that reimbursement under to officer would be entitled pursuant in awarding llA:2-22 because that instance counsel fees to N.J.S.A. llA:2-22 would thwart the legislative purpose underly ing 40A:14-155.
This is not such a case. The courts below determined that acting performance Oches was not in the of his official duties when taped promotion hearing, he in and therefore was not violation 80-2, specifically regulates police of General Order # con- only in duct of official duties. That factual context, involving much like a ease of sick or off- abuse leave other conduct, to, duty contrary perversion does not involve conduct or a of, police officer’s official duties and therefore does not under- N.J.S.A. 40A:14-155. legislative objective mine the reflected purposes determining police For officer’s entitlement to N.J.S.A pursuant counsel fee reimbursement permits police statute the award of counsel fees to a officer disciplinary charges exonerated of to work related done further statute, together ance of official duties. That with its legislative history, deny should be understood an award charges arising from counsel fees officers exonerated of performing acts that occur in the course of official duties but that charges do not constitute acts furtherance of official or arising merely person’s from a status as a officer. The plain objective deny was to counsel fee reimbursement charges brought against police allegedly for on officers based unlawful extraneous conduct occurred while the officer was duty, deny on and to counsel fee See, e.g., solely person’s arising from a status as a officer. Bruno, 473-74, supra, (denying A.2d 1003 *10 on-duty allegedly
counsel fee reimbursement to officer who took impounded concluding and distributed cocaine from ear and that Legislature deny charged, intended to reimbursement where acts directly although related to official could not be viewed as police powers related to lawful exercise and furtherance of duties); Sparkman, supra, official at 568 A.2d (denying counsel fee to allegedly officer who persons using possessing party failed to arrest narcotics at a concluding attended solely officer and stemmed from officer’s status and did not arise from conduct for which reimbursement). indication, intended There is no however, that availability the distinction of counsel fee contemplates awards made in N.J.S.A. 40A:14-155 denial counsel fee reimbursement for officers who are exonerated disciplinary charges benign, for off-duty conduct that does not perversion constitute a of official duties. possible obligated
If we are to reconcile and harmonize facially relating subject inconsistent statutes to the same matter. Loboda, supra, 97; City 193 A.2d of Clifton Taxation, Cty. Passaic Bd. obligation, Consistent with that we read llA:2-22 N.J.S.A as a affecting employees, statute all civil service respect and with to supplementary officers right of reimbursement guaranteed by N.J.S.A. 40A:14-155 but not in all circumstances inconsistent with the underlying intent N.J.S .A recognize 40A:14-155. authority We the Board’s to award reim bursement to officers when to do so would not conflict with Although N.J.S.A. 40A:14-155. a counsel fee award to is Oches specifically pursuant authorized to N.J.S.A we sustain the Board’s pursuant award of counsel fees Oches llA:2-22 N.J.S.A say, N.J.A.C. 4A:2-2.12. Needless we agree although engaged the conduct Oches was not specifically proscribed by #80-2, General Order that conduct among closely-knit breeds distrust members of a de- partment. Middletown is free to amend its General Order to clarify its ban on such conduct. judgment
We reverse Appellate Division. GARIBALDI, J., dissenting. prohibits
N.J.S.A. 40A:14-155 the reimbursement of counsel fees from municipality municipal police to a officer those actions that do not arise out of and “directly are not related to the lawful police powers exercise of in the furtherance of his official *11 majority duties.” The acknowledges that Robert Oches was not in acting performance the of his official duties at the time of his and, alleged disciplinary therefore, conduct that he is not entitled legal be reimbursed for his fees under N.J.S.A 40A:14r-155. Despite plain language the of N.J.S.A its law, history, and case majority the nevertheless holds that Oches can be reimbursed under N.J.S.A. llA:2-22 and N.J.A.C. 4A:2- 2.12, together permit the legal any award of costs to civil employee service successfully who defends disciplin himself in a ary majority action. The finds that N.J.S.A. 40A:14-155 and N.J.S.A 1LA2-22 can pari be read in disagree. materia. I Because the strictly intended to circumscribe the instances in police which a officer could be reimbursed for the defense, costs of his conflict, the two statutes in are and effect given Rather, cannot be statute, both. specific as the more prevail. Therefore, N.J.S.A 40A:14-155 must I would affirm the Appellate deny Division and an award of counsel fees to Oches.
I. Oches, In Robert a Lieutenant department the Township (“Township”), Middletown a civil service munici- pality, sought promotion a position to the Captain. Oches was promotion denied that appealed that decision. In while appeal Oches’s first pending, was again sought he and was denied promotion another position more, Captain. Once Oches promotional contested his denial. Oches’s second suit was consoli- and, prior appeal dated with his after an initial decision an (“ALJ”) Judge a subsequent Administrative Law remand (“Board” “MSB”), System the Merit Board the ALJ sustained police department promotional and the MSB affirmed those deci- sions.
During hearings promotional appeals, on Oches’s it became surreptitiously known that Oches had recorded his interview for promotion tape-recorder the second with a he had hidden in his incident, pocket. taping Township As result Oehes’s disciplinary charges against instituted him violating order, department’s # promulgated General Order 80-2. That using wiretap forbids officers from or other electronic equipment surveillance while of their duties approval without County of the Police Chief or the Monmouth departmental Prosecutor. hearing, After waiver Oches was guilty charges found position and was demoted to the Sergeant. appealed
Oches his demotion an and ALJ dismissed all against him. The performing any ALJ held that Oches was not being duties or functions while he was interviewed for the and, thus, promotion Department’s that he did not violate the MSB, General affirming Order. The after that dismissal of the *12 Oches, charges against ordered that Oches be reinstated to his Lieutenant; position granted him pay, differential back bene- fits, seniority period demotion; and for the of finally, his and pursuant him to N.J.S.A. llA:2-22 and awarded counsel fees N.J.A.C. 4A:2-2.12. Township appealed ruling. The MSB’s Appellate The Division affirmed the Board’s dismissal of the Oches, disciplinary charges against but reversed the Board’s Appellate award of counsel fees. The Division concluded that sufficient, there was for credible evidence the ALJ to have found performing that not any Oches was of his official duties at the time Thus, taping incident. Oches did not violate General Order issue, however, # 80-2. the Appellate On counsel fee the Division 14-155, N.J.S.A. held that 40A: expressly applies which officers, llA:2-22, with conflicted applies to all civil that, employees, specific service as the more the two provisions, N.J.S.A. 40A:14-155 should control. Because the court already had found that performing any police Oches was not functions while being promotion, he was for interviewed Appellate that, Division concluded under N.J.S.A Oches was not any entitled to reimbursement counsel I fees. and, therefore, agree majority’s dissent from holding permit ting repayment legal costs Oches.
II. majority that, properly The concludes because Oches was not acting performance in the of his official duties at the time his alleged conduct, N.J.S.A. 40A:14-155 disciplinary not does autho expenses. rize the majority his defense maintains, however, that can Oches still be awarded counsel fees under llA:2-22 because to confer such an award case would not violate the intent behind N.J.S.A majority’s 40A:14-155. interpretation legisla Under intent, N.J.S.A tive guarantee 40A:14-155 a constitutes attor ney’s situations, performance duty prohibit fees not but does legal costs under N.J.S.A llA:2-22 to civil service refund policemen prevail who in disciplinary “relatively actions based on absenteeism, benign, off-duty tardiness, conduct such as conduct unbecoming police officer, off-duty or other conduct is unrelated Ante of official duties.” majority’s interpretation A.2d at 997. The of N.J.S.A. 40A:14-155 legislative goal enacting defeats that statute.
A. interpreted Statutes are to according ordinary be to their Maglaki, general Merin v. meaning. 126 N.J. 599 A.2d regard, In that a court should construe a statute any part so as to language inoperative, render of its meaningless, Schmnan, In re superfluous. 114 *13 16 Jersey Dep’t Law
(1989); Jersey v. Soc’y New New Medical of of 18, 26-27, At the Safety, & Pub. 120 N.J. interpreted light of time, however, be statute must also a same Merin, 126 supra, history purpose. and legislative its 434-35, purpose, that a court must A.2d To 599 1256. determine is a of which legislative [that statute] scheme the “entire consider Inc., McCoy, part,” Henkels & Kimmelman v. (1987), including objectives legislation, the of the the A.2d any matter, setting, and subject the contextual
nature N.M., public re expressions policy. of In (App.Div.1967). A.2d history of language legislative and the plain of A review the in- Legislature did not that the 40A:14-155 establishes N.J.S.A. legal they municipalities to reimburse officers fees tend out of of their actions that do arise the incur for that, explicitly provides when 40A:14-155 official duties. N.J.S.A police department is a defen- municipal or of a member officer directly “arising and disciplinary proceeding out dant in a powers in the exercise related furtherance lawful finally duties,” or proceeding is dismissed his official body favor, governing reim- officer’s the shall determined defense, added). By (emphasis expense him for burse terms, of that sets forth a strict standard. language its statute provided, to be N.J.S.A. 40A:14-155 mandates For reimbursement performance of alleged directly pertain to the that an infraction functions; render lan- any interpretation other would Therefore, by superfluous meaningless. or guage of that statute ordinary meaning, language its of the statute bars plain and off-duty types allegedly benign, conduct for the majority recompense. that the would history law 40A:14r-155 case language support Before conclusion. time, At that from its current version. 40A:14-155 differed required award of counsel fees where an officer success- statute an “arising out fully disciplinary himself action defended
17
to
Moya
City
incidental
the
his duties.”
v.
of
of
Brunswick,
495,
(1982)
New
N.J.
491,
A.2d
(emphasis
90
448
999
added).
language
clearly
The
in that former version is
broader
present statute,
than that
thereby
contained
the
demonstrating
Legislature’s
the
type
intent
to limit
of charges
the
for which
may
provided.
counsel fee reimbursement
be
amending
In
N.J.S.A
Legislature specifically
the
rejected
expansive
this
approach
Court’s
to the statute taken in
Moya, supra,
491,
90 N.J.
999,
City
Valerius
448 A.2d
and
of
Newark,
591,
N.J.
cases,
84
423
A.2d 988
In those
we
police
reimbursed
N.J.S.A
prior
officers under
the
version
40A:14-155 for counsel fees incurred in successfully defending
against allegations
themselves
police
criminal
and
misconduct
Moya, supra,
corruption.
493-94,
90 N.J. at
999;
A.2d
448
Valerius, supra,
593,
84 N.J. at
The Committee Statement also reads: obligation
A number of decisions the courts of this State have by the expanded section____ the literal terms of this The bill would eliminate the imposed by coverage charges arising of this section for from acts outside the scope occurring but in the duties, course the of those and for duties, performance charges.” “status [Senate and Government Statement to Bill County Municipal Committee, Senate (June 18, 1984).] 168b, No. B. c. 457 1985, Legislature Just as the was expan- dissatisfied with this Court’s Moya, supra, terms of N.J.S.A. 40A:14-155 in sion of the literal Valerius, supra, Legislature and too will so the be dissatisfied majority’s today’s opinion. with the extension of that statute majority The holds that the reimbursement of costs incurred defending charges conduct, relating off-duty to such as absentee- ism, legislative purpose does not offend the of the statute. Not only that holding express does non-literal contradict the state- Legislature, ments of Appellate but the few Division cases amendment N.J.S.A. 40A:14-155 have all found interpreting the to it to mandate a much stricter standard. Sparkman City City, Atlantic
In reviewing pre- after amendment, legislative history amendment cases and the Appellate Division concluded that under the new “it statute is perfectly plain that a officer is entitled to ... reimburse- only ment where charged he is with an arising infraction from the police powers lawful exercise in the furtherance of his official denied, 623, 626-29, 917, duties.” 237 568 A.2d certif.
19 (1990). court, According A.2d 346 “[a] police officer is not proceedings entitled counsel fees where the perform arise as a of his result failure official Id. duties.” Thus, 917. plaintiff 568 A.2d the court held that was not charged entitled to counsel fees he was where with official miscon conspiracy duct attending to commit official misconduct for private party illegal drugs where failing were used and to arrest participants. Ibid. case,
In Appellate another that merely being Division held (officer’s duty charged on at the time of a alleged incident theft basis) illegal drugs use of on and failure to arrest not was enough to entitle an officer fees. counsel City 473-74, City, N.J.Super. 469, Bruno v. Atlantic denied, A.2d A.2d 231 certif.
court believed intended to reim eliminate officer, though occurring bursement where the acts of the even “at coincidentally a time when the officer performing was official duties, were occasioned mere careless or overzealous of those goal but rather an ulterior illegal *16 job.” of which actually perversion the officer constituted a of his 473, Id. at 571 A.2d 1003. Monroe, Similarly, Township N.J.Super. in Gabbianelli v. 271 544, 546, denied, (App.Div.), A.2d 1377 638 137 645 certif. (1994),
A.2d the attorney’s 136 court denied fees police to a in prevailed disciplinary officer who a action instituted township his as a result of that officer’s confrontation an with prosecutor acting assistant capacity while in his as a officer. Observing that the conduct officer’s did not arise from lawful the police powers functions, exercise of in furtherance of his official “legislative goal the court stated that the to the 1986 amendment deny was to a means for the defense of action or an reimburse- ment ‘perversion’ when the officer’s infraction or criminal act is a of, of, 546, 549, in rather than his furtherance duties.” Id. at Bruno, (citing N.J.Super. A.2d supra, at 571 A.2d 1003). Middlesex,
Finally,
Borough
in Gordon v.
the court reversed
summary judgment
grant
plaintiff
charged
a
where the
was
computer system
with unauthorized access to the
at the
department
obtaining
personal
and with
data for his
use. 268
177, 183, 186,
N.J.Super.
(App.Div.1993).
Some
cases also demonstrate that N.J.S.A
strictly
40A:14-155
to
was intended
be
construed. The court
Borough of Glassboro,
example,
found that where
Kauffman
plaintiff allegedly
storage
stole an aluminum
shed from the
shopping
patrol,
assigned
center he was
he
was
entitled
because,
attorney’s
though
duty,
fees
even
he was on
he
as a
acted
burglar, something
“common
colorably
which was not even
related
273, 275, 277,
of his duties.” 181
denied,
(App.Div.1981),
453 A.2d
certif.
change
statute,
Even
language
before the
in the
court
that “it
contemplates
declared
is our view that the statute
charge
criminal
suggests
which at least
exercise
powers
in the furtherance of official duties.”
Id.
437 A.2d
Similarly,
particularly
hand,
appropriate
334.
to the case at
Borough Highlands
the court in
v. Davis held that the intent of
Legislature in passing
the earlier version of N.J.S.A 40A:14-
protect
155 was to
officer when
conduct in
office was
*17
questioned,
give protection
but not to
for
challenging
actions
appointment
217,
promotion.
N.J.Super.
officer’s
124
(Law
Div.1973);
Bellezza,
21 123, 126, 129, N.J.Super. 159 (App.Div.1978)(finding that, injuries against where action instituted officer with back to physical capability perform determine to continue to there in provide was no intent former statute reimbursement expenses).
Further evidence the amendment was intended Legislature change initiate a provision substantive in the municipal police counsel for fees are the texts of other counsel fee statutes, spe reimbursement each of contain language less cific and than stringent in the current N.J.S.A 40A:14-155 and county police more like that in its former version. Firemen and officers, example, for are to if they prevail be reimbursed disciplinary proceedings “arising of or perfor out incidental to the duties,” 40A:14-117, mance of [their] N.J.S.A persons employed jurisdiction any under the board of provided education defending are to be costs themselves any civil arising actions “for act or omission out of and office,” course of such the duties N.J.S.A statutes, 18A:16-6. That those other fee counsel which also cover personnel may employees, who be civil incorporate service more fee flexible counsel reimbursement criteria than 40A:14- N.J.S.A suggests Legislature municipal intended to treat differently. officers authority amply Legislature The above demonstrates that the intended the current version of 40A:14-155 to constitute Moya, expanded strict reimbursement supra, standard. had N.J.S.A providing 40A:14-155 reimbursement for status charges. at In amending A.2d 999. the statute however, Moya, supra, and overruling intended to just do than brought more eliminate reimbursement for infractions solely Gordon, identity. supra, because one’s See 268 N.J.Su (“Even per. at A. 632 2d 1276 where the are activities more charges, than legal mere ‘status’ entitlement Bruno, automatic.”); fees is not supra, that, (finding just A.2d against because defendant *18 offenses, cannot be classified mere as “status” it “does not neces- mandated”). sarily follow ... that reimbursement is therefore As show, Legislature deny the cases intended to counsel fees for any charges personal personal gain, based on conduct or perversion conduct that constitutes a or dereliction of one’s duties police Indeed, as a officer. legislative history the statute and its interpretation call for a statutory language. literal
B. Contrary majority opinion, therefore, I believe that the provide intended to reimbursement for counsel fees only charged where an arising officer is with an infraction out of directly related to the powers, exercise official such using during as excessive Moya, supra, force a lawful arrest. See 2, 503, 499 n. 448 A.2d (finding using excessive during force performance arrest is clearest and most common situation). duty Trenton, In City Van Horn v. (1979), pre-amendment case, we observed that “the Legislature :.. obviously attempting was to minimize the intru having sion of pay [the concern over legal expenses] their own momentary into the decisions which continually officers are required to legislative make.” That purpose only makes sense when counsel fees are awarded in duty situations. result, As a N.J.S.A. 40A:14-155 simple was not meant to abe guarantee of duty reimbursement in official situations nor was it give meant to grant courts carte blanche to fees in other contexts Rather, under other statutes. intent of the statute type was to restrict situations which reimbursement provided. could be
Allegedly
conduct,”
“benign, off-duty
such as absenteeism or
tardiness, does not arise out of nor specifically relate to an
police powers
officer’s lawful exercise of
in the furtherance of his
official duties. Ante at
C. approach, disciplinary charges with that against Consistent did not directly pertain Oches exercise of lawful Rather, powers in the they furtherance his official duties. were charges personal private that conduct related Oches’s for his purposes fact, In own the context his interview. Oches’s surreptitious recording superior actually of his was officers perversion duties, namely orderly of his maintenance of the department hierarchy. majority agrees Even the that qualify conduct does not for Oches’s reimbursement under Therefore, by reimbursing N.J.S.A. 40A:14-155. him under an statute, majority purpose other offends the behind is to N.J.S.A. which eliminate reimbursement precisely type of conduct.
III.
prohibit
of coun
an award
40A:14-155 would
Because
llA:2-22,
Oches,
with N.J.S.A.
that statute conflicts
sel fees
terms,
in this case.
which,
permit such an award
would
its
(“Act”),
llA:2-22,
Act
part of the Civil Service
which is
all civil service
fees for
payment of counsel
provides for the
pay,
may
back
“The board
award
statute states:
employees. That
attorney
employee
an
benefits,
fees to
seniority and reasonable
4A:2-2.12(a),
N.J.A.C.
llA:2-22.
provided
rule.” N.J.S.A.
Act, provides that
Merit
“[t]he
pursuant
promulgated
counsel fees
partial or full reasonable
award
System Board shall
substantially
all
prevailed on all or
employee
an
has
where
disciplinary action.
issues” in a
primary
llA:2-22,
permits an
language in N.J.S.A.
The broad
police officer exonerated
to a civil service
award of counsel fees
out
arise
charges, regardless of whether
disciplinary
interpreta-
the strict
clashes with
of his
*20
Legislature
given N.J.S.A 40A:14-155.
has
tion that
40A:14-155 show that
history and intent behind
legal
municipal
award of
costs
meant to restrict the
statute was
benign, off-
allegedly
for
Granting counsel fees
police officers.
Act offends
authority of the Civil Service
duty conduct under the
Accordingly,
14-155.
N.J.S.A 40A:
legislative purposes behind
the facts of this ease.
cannot be reconciled under
the two statutes
conflict,
that,
statutes
the more
has held
“when two
This Court
Corp. Borough
Som-
Jersey Transit
specific controls.” New
(1995).
case,
582, 591,
erville,
In that
N.J.S.A. 40A:14-155 also
if the MSB can
policemen
award counsel fees to civil service
under N.J.S.A
llA:2-22, regardless
of the
restrictions N.J.S.A.
it
would
superfluous
render those restrictions
meaningless
for a
large percentage
policemen
the statute was intended to
Schuman,
supra,
602;
cover. See In re
Moreover, amended, N.J.S.A 40A:14-155 was January effective 15, 1986, to authority attorney’s limit the to award fees to disci plined police preclude definitively officers and to such awards charges arising scope from acts outside the duties. P.L. later, c. 457. N.J.S.A. llA:2-22 was enacted a few months 25,1986. September effective P.L. c. 112. To conclude that adopt strong would such a limiting policemen’s law counsel fee awards in late adopt and then a liberal formula tion for jurisdictions only officers civil service a few later, months makes no sense. Police officers in a civil service where, municipality, according majority, may the MSB grant llA:2-22, counsel fees under N.J.S.A should not be treated any differently from municipal officers in a non-civil service *21 ity who would not be entitled to reimbursement under 40A:14-155.1 argument 1At oral we were informed that of seventy-five percent municipal are not covered
police Civil Service Act. departments 26 police by civil my ruling officers covered recognize
I
that under
differently
civil service em
than other
would be treated
service
Nevertheless,
long
have
courts and the
ployees.
personnel
police
unique
officers are
from other
recognized that
and,
employees.
differently than those
accordingly, are treated
Ass’n,
See,
Troopers
134 N.J.
e.g.,
Fraternal
State
State
(1993)
mandating
395, 417-18,
(holding that
A.2d
statute
634
478
disciplinary determi
negotiation
procedures
of
to review
collective
“negotiatiability of
apply
troopers
to state
because
nations did not
infringe unacceptably on one of the most
procedures would
such
Superintendent
managerial prerogatives
[of
of the
State
important
Police]”);
Irvington,
N.J.Super.
Irvington PBA v. Town
170
of
539, 545-46,
“judicial[
(App.Div.1979)(taking
notice
]
27 subject special legislative regard treatment with to matters of etc.”). tenure, discipline, Legislature reiterate that when the amended
We N.J.S.A. provide a 40A:14-155 to stricter standard for the reimbursement officers, municipal police of counsel for fees it did not amend the firemen, officers, relating municipal county police statutes employees, leaving board of education them with a less strict 40A:14-117; 18A:16-6; standard. N.J.S.A. N.J.S.A N.J.S.A. Educ., 40A:14-28; 416, 430, Bower v. Board 149 N.J. 694 A.2d Legislature 543 also an enacted entire scheme of officers, legislation govern municipal police treatment of respects scheme that differs various from the treatment to be public employees. afforded other N.J.S.A. 40A:14-118 to -173. Therefore, although provides equal the Civil Service Act for the llA:l-2, employees, treatment of all civil service it seems Legislature intended officers at times to be an exception to that rule.
Furthermore, Legislature because the is assumed to be aware enactments, existing passes subsequent laws when it if the Legislature inapplicable intended to render N.J.S.A. 40A:14-155 employees, to civil service it would have stated so when it subse quently provision, implied repealers amended the civil service Township Bergen County are disfavored. See Mahwah v. Bd. Taxation, denied, 268, 279-81, 486 A.2d cert. (1985); U.S. L. S.Ct. Ed.2d 696 State v. (1981) (“In Dalglish, 86 N.J. A.2d 74 the absence contrary, impute clear manifestation to the not we shall law.”). Moreover, change an intention to established they only applicable other sections of Title 40A state that are not; where the Civil Service laws are the absence of such a provision gov 40A:14-155 indicates that that statute N.J.S.A might applica erns even Act where Civil Service otherwise be 40A:14-129; ble. See N.J.S.A. 40A:14-130.
Finally, general agency principles provide that administrative
statute,
any
they
cannot
actions
alter the terms of
nor can
violate
Soc’y, supra,
legislative policies. Medical
IV. plain language, legislative history, As established its its law, specific pronouncement relevant case 40A:14-155 is a disciplined police that a officer is not entitled to reimbursement of attorney’s discipline alleged fees if the arose from an infraction police powers outside of the lawful exercise of in furtherance of his Certainly, official duties. that is case here. Because Oches performing any taped was not official duties or functions when he interview, promotional he is not entitled under N.J.S.A. 40A:14-155. majority’s conclusion that Oches nevertheless could receive
counsel llA:2-22 goal fees under N.J.S.A. violates the warp behind N.J.S.A. 40A:14-155. The Court should not a clear policy adopted by Legislature. statute nor advance Such statute, major reinterpretation of that results a sub- broadening scope, stantial Legislature. its must be made Appellate deny I would affirm the Division decision and the award legal fees to Oches. J., POLLOCK, joins in this dissent. HANDLER,
For reversal —Chief Justice PORITZ Justices O’HERN, STEIN and COLEMAN —5.
For POLLOCK and GARIBALDI —2. affirmance —Justices