Appellate Division Rules that Special Disciplinary Arbitration by the New Jersey Public Employee Relations Commission is not Available to Police Officers Employed by New Jersey Public Colleges

A while ago I wrote a blog detailing the disciplinary process and appeal rights of non-civil service police officers under New Jersey employment law.  The Appellate Division of the Superior Court of New Jersey recently issued an opinion clarifying who is and isn’t a law enforcement officer entitled to these rights.

New Jersey Civil Service confers extensive due process rights on public employees before a government employer may impose discipline, including appeal of discipline to the New Jersey Civil Service Commission.  However, non-civil service employees, including police officers, do not have those protections, however.

Therefore, to increase the protections and legal rights for non-civil service police officers, the Legislature adopted several laws,  the first of which provides:

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. The complaint shall be filed in the office of the body, officer or officers having charge of the department or force wherein the complaint is made and a copy shall be served upon the member or officer so charged, with notice of a designated hearing thereon by the proper authorities, which shall be not less than 10 nor more than 30 days from date of service of the complaint.

To give these non-civil service police officers due process and appeal rights to make these rights meaningful, the Legislature also passed a second  law which provides that:

Any member or officer of a police department or force in a municipality wherein Title 11A of the New Jersey Statutes is not in operation [ie., a non-civil service municipality], 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 [to the Public Employee Relations Commission]. 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.

Thus, a non-civil service officer may either appeal discipline to the Superior Court (in the Law Division), or request “special disciplinary arbitration” in the New Jersey Public Employee Relations Commission (known as “PERC”).  PERC had always interpreted this provision to include police officers at New Jersey’s public colleges.  This makes sense, since they have the same powers as municipal police officers.

Thus, when Officer Gregory Diguglielmo wanted to challenge discipline imposed by his employer, the New Jersey Institute of Technology in Newark (“NJIT”), he requested special disciplinary arbitration with PERC.  NJIT objected that PERC did not have jurisdiction because Diguglielmo was not a “municipal” police officer.  PERC rejected this argument and accepted jurisdiction.  NJIT then appealed to the Appellate Division.

The Appellate Division agreed with PERC that the NJIT police force was a “law enforcement agency,” and that its officers, including Diguglielmo, were “police officers.”

However, it rejected PERC’s conclusion that NJIT’s police officers were entitled by the statute to select special disciplinary arbitration with PERC.  The court held that NJIT’s police force was not a “municipal” law enforcement agency.  It explained:

our statutes define a “municipality” as a “ ‘city’, ‘town’, ‘township’, ‘village’, ‘borough’, and any municipality governed by a board of commissioners, or improvement commission.”  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.

Thus, Officer Diguglielmo was not entitled to special disciplinary arbitration with PERC.

The takeaway is that special interest arbitration is not available as a remedy to non-civil service police officers employed by New Jersey public colleges.  However, such officers who have been wrongfully disciplined may have other remedies, such as lawsuits for whistleblower retaliation, civil rights violations, or discrimination.

Our New Jersey employment attorneys represent private sector and government employees in disputes with their employers in all aspects of New Jersey employment law.  Call our New Jersey employment attorneys at (973) 890-0004 or fill out the contact form on this page.  We can help.