(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued February 2, 1998 -- Decided June 1, 1998
STEIN, J., writing for a majority of the Court.
The question addressed in this appeal is whether a police officer can be awarded attorney's fees by
the Merit System Board (the Board) for representation in a disciplinary proceeding under the general
authority of a statute applicable to all public employees, even if such an award is not authorized under a
provision applicable to police officers only.
In June 1993, Middletown filed disciplinary charges against Oches, then a Lieutenant in the
Township Police Department. Middletown alleged that Oches improperly tape recorded his promotion
interview in violation of Middletown's General Order #80-2, which regulates the use of electronic
surveillance equipment by police officers while in the performance of their duties. Oches was demoted to
the position of Sergeant. He appealed to the Board and a hearing was held before an Administrative Law
Judge (ALJ).
The ALJ concluded that General Order #80-2 was not applicable, since at the time of the interview,
Oches was not performing his official duties. The Board thereafter adopted the ALJ's decision, dismissed
the charges against Oches, reinstated him to the position of Lieutenant, and awarded him counsel fees.
Middletown appealed. The Appellate Division affirmed the Board's dismissal of the charges against
Oches, but reversed the award of counsel fees. It held that N.J.S.A. 11A:2-22, the statute under which Oches
had been awarded attorney's fees, was in conflict with N.J.S.A. 40A:14-155, which specifically addresses the
award of fees to a police officer in disciplinary matters. The Appellate Division interpreted the latter
provision to preclude the award of attorney's fees and, since it was the more specific of the two statutes,
determined that it controlled.
The Supreme Court granted the petitions for certification filed by Oches and the Board. It denied
Middletown's petition challenging the Board's dismissal of the charges against Oches.
HELD: The statute that specifically addresses the award of counsel fees in disciplinary proceedings for police
officers, N.J.S.A. 40A:14-155, does not preclude the Board from exercising its statutory powers under
N.J.S.A. 11A:2-22 to allow reimbursement for attorney's fees under circumstances that are not inconsistent
with the legislative purpose of N.J.S.A. 40A:14-155. Since this is such a case, the Board's award of fees to
Oches must be sustained.
1. When considering statutory provisions that relate to the same or similar subject matter, every attempt is
made to interpret them harmoniously. It is clear that N.J.S.A. 40A:14-155 does not authorize counsel fees to
Oches, since that provision authorizes fees only to officers charged with infractions arising out of the lawful
exercise of police powers in furtherance of their official duties. (Pp. 5-8)
2. The inquiry, however, does not end there. The statutes are not necessarily in conflict. There is no indication that the Legislature intended N.J.S.A. 40A:14-155 to deny reimbursement of fees to officers who prevail on disciplinary charges arising out of allegations of relatively benign off-duty conduct that does not constitute a perversion of official duties. Oches was not acting in the performance of his official duties when he taped his promotion hearing. The Board's award of counsel fees to Oches therefore does not undermine
the legislative objective reflected in N.J.S.A. 40A:14-155. There is no conflict between the statutes on these
facts. The Board's award of fees to Oches was authorized under N.J.S.A. 11A:2-22. (Pp. 8-15)
The judgment of the Appellate Division is REVERSED.
JUSTICE GARIBALDI filed a separate dissenting opinion. She is of the view that N.J.S.A. 40A:14-155 is intended to strictly circumscribe the instances in which a police officer could be reimbursed for the
costs of defense and is therefore in conflict with N.J.S.A. 11A:2-22. Given this conflict, the more specific
statute, N.J.S.A. 40A:14-155, must prevail, and Oches should be denied counsel fees.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, O'HERN, and COLEMAN join in
JUSTICE STEIN's opinion. JUSTICE GARIBALDI has filed a separate, dissenting opinion, in which
JUSTICE POLLOCK joins.
SUPREME COURT OF NEW JERSEY
A-86/
87 September Term 1997
ROBERT OCHES,
Appellant-Appellant,
v.
TOWNSHIP OF MIDDLETOWN POLICE
DEPARTMENT,
Respondent-Respondent,
and
MERIT SYSTEM BOARD,
Appellant.
Argued February 2, 1998 -- Decided June 1, 1998
On certification to the Superior Court,
Appellate Division.
June K. Forrest, Senior Deputy Attorney
General, argued the cause for appellant Merit
System Board (Peter Verniero, Attorney
General of New Jersey, attorney; Mary C.
Jacobson, Assistant Attorney General, of
counsel).
Steven A. Varano argued the cause for
appellant Robert Oches.
Bernard M. Reilly argued the cause for
respondent (Dowd & Reilly, attorneys).
Paul L. Kleinbaum submitted a brief on behalf
of amicus curiae, New Jersey State
Policemen's Benevolent Association (Zazzali,
Zazzali, Fagella & Nowak, attorneys).
The opinion of the Court was delivered by
Stein, J.
This appeal requires us to determine whether a provision of
the Civil Service Act, and an implementing regulation,
authorizing the award of counsel fees to a police officer
exonerated in a disciplinary proceeding involving conduct not in
furtherance of his official duties, can be reconciled with a
provision in the statutes regulating municipal police forces that
does not authorize such a counsel fee award.
Respondent Middletown Township, a civil service
municipality, filed disciplinary charges against petitioner
Robert Oches, a police officer in Middletown Township. In the
course of those proceedings, an Administrative Law Judge (ALJ)
and the Merit System Board (Board) exonerated Oches on the ground
that the departmental regulation he allegedly violated was
inapplicable because the conduct on which the charges were based
did not constitute action in furtherance of his official duties.
The charges were eventually dismissed and, pursuant to N.J.S.A.
11A:2-22 and N.J.A.C. 4A:2-2.12, the Board awarded counsel fees
to Oches.
N.J.S.A. 40A:14-155 provides that whenever a police officer
is a defendant in any action or legal proceeding arising out of
and directly related to the lawful exercise of police powers in
the furtherance of his or her official duties, and if the
proceedings are dismissed or determined in favor of the officer,
the officer shall be reimbursed for defense expenses. Pursuant
to N.J.S.A. 11A:2-22, the Board is authorized to award back pay,
benefits, seniority, and reasonable attorney fees to an employee
as provided by rule. The relevant regulation, N.J.A.C. 4A:2-2.12, provides: "The Merit System Board shall award partial or
full reasonable counsel fees where an employee has prevailed on
all or substantially all of the primary issues."
The Appellate Division reversed the Board's award of counsel
fees, holding that N.J.S.A. 40A:14-155, rather than N.J.S.A.
11A:2-22, applied, and determining that because the two statutes
were in conflict the more specific statute, N.J.S.A. 40A:14-155,
must control. Because Oches had not acted in furtherance of his
official duties, the court concluded that he was not entitled to
reimbursement under N.J.S.A. 40A:14-155. This Court granted
petitions for certification by Oches and the Board.
151 N.J. 75
(1997). We denied Middletown's petition for certification
concerning whether Oches's disciplinary charges arose out of the
performance of his official duties.
151 N.J. 75 (1997).
In June 1993, Middletown filed disciplinary charges against Oches, then a Police Lieutenant in the Middletown Township Police Department. Middletown alleged that Oches improperly tape recorded his promotion interview in violation of Middletown's General Order #80-2, which regulates police officers in the use of electronic surveillance equipment while in the performance of
their duties. Oches waived a departmental hearing and was
demoted to the position of "Police Sergeant." Oches appealed his
demotion to the Board and a hearing was held before an ALJ.
After hearing testimony, the ALJ concluded that because the tape
recording incident occurred while Oches was participating in an
interview concerning a potential promotion, Oches had not been
performing his official duties when the conduct giving rise to
the charges against him occurred. The ALJ determined that Oches
should not have been disciplined because General Order #80-2
specifically regulates police conduct only in the performance of
official duties. The Board thereafter adopted the ALJ's findings
of fact and conclusions of law, dismissed the charges against
Oches, reinstated him to the position of Lieutenant, and awarded
him counsel fees.
Middletown appealed. The Appellate Division affirmed the
Board's dismissal of the charges on the ground that Oches was not
performing official duties when the alleged misconduct occurred,
but reversed the award of counsel fees. The court held that
N.J.S.A. 40A:14-155 and N.J.S.A. 11A:2-22 were in conflict, and
that because the former specifically addressed the award of
counsel fees in police officer disciplinary matters it was the
more specific of the two statutes and therefore governed.
Concluding that Oches was not performing official duties when he
taped the interview, the court determined that he was not
entitled to counsel fees pursuant to N.J.S.A. 40A:14-155.
N.J.S.A. 40A:14-155, which provides for the reimbursement of counsel fees to police officers who successfully defend themselves in proceedings arising out of conduct in furtherance of their official duties, states:
Whenever a member or officer of a municipal
police department or force is a defendant in
any action or legal proceeding arising out of
and directly related to the lawful exercise of
police powers in the furtherance of his official duties, the governing body of the municipality
shall provide said member or officer with
necessary means for the defense of such action
or proceeding, but not for his defense in a disciplinary proceeding instituted against him
by the municipality or in criminal proceeding instituted as a result of a complaint on behalf
of the municipality. If any such disciplinary
or criminal proceeding instituted by or on
complaint of the municipality shall be dismissed
or finally determined in favor of the member or officer, he shall be reimbursed for the expense
of his defense.
We interpreted an earlier version of the same statute in
Moya v. City of New Brunswick, 90 N.J. 491 (1982). In its previous form, N.J.S.A. 40A:14-155 required reimbursement of
counsel fees when an officer was a defendant in any action
"arising out of or incidental to the performance of his duties,"
rather than "arising out of and directly related to the lawful
exercise of police powers in the furtherance of his official
duties," as required by the present statute. See id. at 495. We
held in Moya that although the police officer was off-duty during
the alleged burglary of which he was acquitted, the charges were
brought because of his status as a police officer. Id. at 498.
We therefore concluded that Moya was entitled to reimbursement of
counsel fees. Id. at 510-11.
After Moya, in 1985, the Legislature amended N.J.S.A.
40A:14-155 to replace the phrase "arising out of or incidental to
the performance of his duties" with the words "arising out of and
directly related to the lawful exercise of police powers in the
furtherance of his official duties" as the type of conduct for
which an exonerated police officer would be entitled to
reimbursement. L. 1985, c. 457, § 1. The legislative history
verifies the Legislature's intent to limit the type of charges
for which reimbursement would be provided under N.J.S.A. 40A:14-155. The statement accompanying the amendment provided:
The purpose of this bill is to clarify
the legislative intent with regard to the scope
of the law requiring municipalities to pay for
the defense of municipal police officers and
to eliminate the impact of the recent opinion
of the New Jersey Supreme Court in Moya v. New
Brunswick,
90 N.J. 491 (1982), which expands the
legislative coverage well beyond a literal
reading of this statute as existing at the time
of its decision.
In the Moya decision, [sic] the Supreme
Court, while acknowledging that the charges
involved did not arise from the performance
of the officer's duty, held that the officer,
charged with conduct as a common burglar,
directly opposite to that which he is [sic]
hired to perform, and while not on duty was
nevertheless entitled to reimbursement for legal
expenses incurred in successfully defending
himself against those charges, which were not
initiated by or on behalf of the municipality.
[Statement to Senate Bill No. 1684, L. 1985,
c. 457 (May 14, 1985).]
Another statement to the same bill provided:
Senate Bill No. 1684 would amend
[N.J.S.A.] 40A:14-155 to clarify the scope of
a municipality's obligation to provide for the
defense, or reimburse the expense of defense,
of members or officers of the municipal police
department or force who are defendants in any
action or legal proceeding. A number of
decisions by the courts of this State have
expanded the obligation imposed by the literal
terms of this section to reach, not only charges
of improper performance of police duties, but
also charges arising from acts outside the scope
of police duties, but occurring in the course of
the performance of those duties, and charges
arising solely from the person's status as a
police officer. The bill would eliminate the
coverage of this section for charges arising from
acts outside the scope of police duties, but
occurring in the course of the performance of
those duties, and for "status charges."
[Senate County and Municipal Government
Committee, Statement to Senate Bill No. 1684,
L. 1985, c. 457 (June 18, 1984).]
Courts have reviewed the legislative history of the amendment and agreed that the Legislature intended N.J.S.A. 40A:14-155 to authorize counsel fees only to police officers charged with infractions arising out of the lawful exercise of police powers in furtherance of their official duties. See Gordon v. Borough of Middlesex, 268 N.J. Super. 177, 182-83
(App. Div. 1993); Sparkman v. City of Atlantic City,
237 N.J.
Super. 623, 628-29 (App. Div.), certif. denied,
121 N.J. 660
(1990). The plain language of N.J.S.A. 40A:14-155 makes clear
that counsel fees are not available where the "acts of the
officer, even though occurring at a time when the officer was
coincidentally performing official duties, were not occasioned by
mere careless or overzealous performance of those duties, but
rather by an ulterior illegal goal of the officer which actually
constituted a perversion of his job." Bruno v. City of Atlantic
City,
239 N.J. Super. 469, 473 (App. Div.), certif. denied,
122 N.J. 165 (1990). However, concerning officers exonerated of
charges arising out of the lawful exercise of police powers in
the furtherance of official duties, N.J.S.A. 40A:14-155 by its
terms guarantees reimbursement of counsel fees.
The ALJ found, and the Appellate Division agreed, that Oches
was not acting in the performance of his official duties at the
time of the alleged conduct that gave rise to the disciplinary
proceedings. The issue is not before us and we do not question
that conclusion. Moreover, we acknowledge that N.J.S.A. 40A:14-155 does not authorize an award of counsel fees to Oches.
Although Oches was exonerated, the charges did not arise out of
the lawful exercise of police powers in the furtherance of
official duties as the statute requires.
That conclusion, however, does not end our inquiry. We next
look to N.J.S.A. 11A:2-22, which Oches and the Board contend
authorizes the Board to award reasonable counsel fees as provided
by rule irrespective of whether charges arise out of official
duties. N.J.A.C. 4A:2-2.12, promulgated pursuant to the Civil
Service Act, provides that the Board shall award fees where an
employee has prevailed on substantially all of the primary
issues. Those provisions specifically apply to disciplinary
appeals to the Board by all civil service employees under the
authority of the Civil Service Act. Because Oches is an employee
in a civil service municipality and he prevailed on substantially
all of the issues in his disciplinary action, the plain language
of the statute and implementing regulation indicate that the
Board has the authority to grant him counsel fee reimbursement.
We also note that pursuant to N.J.S.A. 34:13A-5.3, public
employers and non-civil service employees may negotiate written
policies setting forth disciplinary review procedures.
Therefore, a collective bargaining agreement between a non-civil
service municipality and its police officers also could provide
for reimbursement of counsel fees for officers who have
disciplinary charges dismissed or resolved in their favor.
Middletown argues that because an award of counsel fees to
Oches is not authorized under N.J.S.A. 40A:14-155, as amended in
1985, it is unlikely that the Legislature intended N.J.S.A.
11A:2-22, enacted in 1986, to authorize counsel fee reimbursement
not specifically provided for by N.J.S.A. 40A:14-155. Middletown
contends that the statutes conflict, and that because N.J.S.A.
40A:14-155 is the more specific statute it therefore controls.
See New Jersey Transit Corp. v. Borough of Somerville,
139 N.J. 582, 591 (1995).
In our view, however, the statutes are not necessarily in
conflict. N.J.S.A. 40A:14-155 does not purport to encompass the
entire universe of police disciplinary proceedings. Rather, we
understand N.J.S.A. 40A:14-155 to constitute a guarantee of
counsel fee reimbursement when disciplinary or criminal charges,
arising out of the lawful exercise of police powers in
furtherance of official duties, are dismissed or resolved in
favor of an officer. The statute does not forbid the awarding of
fees by other statutes or in other contexts, and we infer that
the statute does not purport to address a variety of
circumstances in which an award of counsel fees to a police
officer exonerated in a disciplinary proceeding would not offend
the legislative objective that led to the 1985 amendment of
N.J.S.A. 40A:14-155. Although N.J.S.A. 40A:14-155 itself does
not provide for reimbursement when charges do not arise out of
the lawful exercise of police powers, that statute does not
preclude the Board from exercising its statutory authority to
allow reimbursement under other circumstances that are not
inconsistent with the legislative purpose underlying N.J.S.A.
40A:14-155.
A civil service employee may be subject to discipline for a
wide range of activities, including, among other things:
incompetency, inability to perform duties, chronic or excessive
absenteeism or lateness, conviction of a crime, conduct
unbecoming a public employee, neglect of duty, and misuse of
public property. N.J.A.C. 4A:2-2.3. As illustrated by this
appeal, it is apparent that disciplinary charges may be filed
against a civil service employee (or a police officer in a civil
service municipality) for conduct that, because of its context,
necessarily does not arise out of and directly relate to the
lawful exercise of police powers in the furtherance of official
duties, but nevertheless is not a dereliction of duty. For
example, a charge of chronic or excessive absenteeism implies
that the conduct occurred while an employee was off duty. Such
disciplinary charges threaten serious consequences to civil
service employees. The types of discipline that may be imposed
on a civil service employee include removal, a disciplinary
demotion, a suspension, or a fine. N.J.A.C. 4A:2-2.2. That a
civil service employee facing removal, demotion, or comparable
discipline would seek professional representation in disciplinary
proceedings is clearly understandable.
We see no indication in the text or legislative history of
N.J.S.A. 40A:14-155 that the Legislature intended to deny
reimbursement of counsel fees to police officers who prevail on
disciplinary charges arising out of allegations of relatively
benign off-duty conduct such as absenteeism, tardiness, conduct
unbecoming a police officer, or other off-duty conduct that is
unrelated to the performance of official duties. Our dissenting
colleagues mistakenly characterize the type of off-duty conduct
for which counsel fee reimbursement may be permitted as conduct
involving “the failure of an officer to perform his duties under
such laws.” Post at (slip op. at 15). To the contrary,
when such disciplinary charges result in vindication of the
police officer because of a failure of proof or other
deficiencies in the evidence adduced by the public entity, the
police officer's exoneration may result in a determination by the
Board that the charges were meritless. In such instances, the
Board obviously offends no legislative or public policy in
exercising its discretion to award counsel fees. In such cases,
we perceive no conflict between N.J.S.A. 40A:14-155 and N.J.S.A.
11A:2-22.
We acknowledge that there will be factual situations in
which the statutes may conflict and that in those cases there
would be no entitlement to reimbursement. When a police officer,
rather than acting in furtherance of official duties, acts in
dereliction of his or her official duties, that officer would not
be entitled to reimbursement under N.J.S.A. 40A:14-155.
Similarly, that officer would not be entitled to reimbursement
under N.J.S.A. 11A:2-22 because in that instance awarding counsel
fees pursuant to N.J.S.A. 11A:2-22 would thwart the legislative
purpose underlying N.J.S.A. 40A:14-155.
This is not such a case. The courts below determined that
Oches was not acting in the performance of his official duties
when he taped his promotion hearing, and therefore was not in
violation of General Order #80-2, which specifically regulates
police conduct only in the performance of official duties. That
factual context, much like a case involving abuse of sick leave
or other off-duty conduct, does not involve conduct contrary to,
or a perversion of, a police officer's official duties and
therefore does not undermine the legislative objective reflected
in N.J.S.A. 40A:14-155.
For purposes of determining a police officer's entitlement
to counsel fee reimbursement pursuant to N.J.S.A. 40A:14-155,
that statute permits the award of counsel fees to a police
officer exonerated of disciplinary charges related to work done
in furtherance of official police duties. That statute, together
with its legislative history, should be understood to deny an
award of counsel fees to police officers exonerated of charges
arising from acts that occur in the course of performing official
duties but that do not constitute acts in furtherance of official
duties, or charges arising merely from a person's status as a
police officer. The plain legislative objective was to deny
counsel fee reimbursement for charges brought against police
officers based on allegedly unlawful or extraneous conduct that
occurred while the officer was on duty, and to deny counsel fee
reimbursement for charges arising solely from a person's status
as a police officer. See, e.g., Bruno, supra, 239 N.J. Super. at
473-74 (denying counsel fee reimbursement to on-duty officer who
allegedly took and distributed cocaine from impounded car and
concluding that Legislature intended to deny reimbursement where
acts charged, although directly related to official duties, could
not be viewed as related to lawful exercise of police powers and
in furtherance of official duties); Sparkman, supra, 237 N.J. Super. at 629 (denying counsel fee reimbursement to officer who allegedly failed to arrest persons using and possessing narcotics at a party attended by officer and concluding that charges stemmed solely from officer's status and did not arise from conduct for which Legislature intended reimbursement). There is no indication, however, that the distinction in the availability of counsel fee awards made in N.J.S.A. 40A:14-155 contemplates the denial of counsel fee reimbursement for police officers who are exonerated of disciplinary charges for benign, off-duty conduct that does not constitute a perversion of official duties. If possible we are obligated to reconcile and harmonize facially inconsistent statutes relating to the same subject matter. Loboda, supra, 40 N.J. at 435; City of Clifton v. Passaic Cty. Bd. of Taxation, 28 N.J. 411, 421 (1958). Consistent with that obligation, we read N.J.S.A. 11A:2-22 as a statute affecting all civil service employees, and with respect to police officers as supplementary to the right of reimbursement guaranteed by N.J.S.A. 40A:14-155 but not in all circumstances inconsistent with the legislative intent underlying N.J.S.A. 40A:14-155. We recognize the Board's authority to award reimbursement to police officers when to do so would not conflict with N.J.S.A. 40A:14-155. Although a counsel fee award to Oches is not specifically authorized pursuant to N.J.S.A. 40A:14-155, we sustain the Board's award of counsel fees to Oches pursuant to N.J.S.A. 11A:2-22 and N.J.A.C. 4A:2-2.12 . Needless to say, we
agree that although the conduct engaged in by Oches was not
specifically proscribed by General Order #80-2, that conduct
breeds distrust among the closely-knit members of a police
department. Middletown is free to amend its General Order to
clarify its ban on such conduct.
We reverse the judgment of the Appellate Division.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, O'HERN, and
COLEMAN join in JUSTICE STEIN's opinion. JUSTICE GARIBALDI has
filed a separate dissenting opinion, in which JUSTICE POLLOCK
joins.
SUPREME COURT OF NEW JERSEY
A-86/
87 September Term 1997
ROBERT OCHES,
Appellant-Appellant,
v.
TOWNSHIP OF MIDDLETOWN POLICE
DEPARTMENT,
Respondent-Respondent,
and
MERIT SYSTEM BOARD,
Appellant.
GARIBALDI, J., dissenting.
N.J.S.A. 40A:14-155 prohibits the reimbursement of counsel
fees from a municipality to a municipal police officer for those
actions that do not arise out of and are not "directly related to
the lawful exercise of police powers in the furtherance of his
official duties." The majority acknowledges that Robert Oches
was not acting in the performance of his official duties at the
time of his alleged disciplinary conduct and, therefore, that he
is not entitled to be reimbursed for his legal fees under
N.J.S.A. 40A:14-155. Despite the plain language of N.J.S.A.
40A:14-155, its legislative history, and case law, the majority
nevertheless holds that Oches can be reimbursed under N.J.S.A.
11A:2-22 and N.J.A.C. 4A:2-2.12, which together permit the award
of legal costs to any civil service employee who successfully
defends himself in a disciplinary action. The majority finds
that N.J.S.A. 40A:14-155 and N.J.S.A. 11A:2-22 can be read in
pari materia. I disagree. Because the Legislature intended to
strictly circumscribe the instances in which a police officer
could be reimbursed for the costs of his defense, the two
statutes are in conflict, and effect cannot be given to both.
Rather, as the more specific statute, N.J.S.A. 40A:14-155 must
prevail. Therefore, I would affirm the Appellate Division and
deny an award of counsel fees to Oches.
During the hearings on Oches's promotional appeals, it became known that Oches had surreptitiously recorded his interview for the second promotion with a tape-recorder he had
hidden in his pocket. As a result of Oches's taping incident,
the Township instituted disciplinary charges against him for
violating the police department's General Order #80-2. That
order, promulgated in 1980, forbids police officers from using
wiretap or other electronic surveillance equipment while in the
performance of their duties without the approval of the Police
Chief or the Monmouth County Prosecutor. After waiver of a
departmental hearing, Oches was found guilty of the charges and
was demoted to the position of Sergeant.
Oches appealed his demotion and an ALJ dismissed all charges
against him. The ALJ held that Oches was not performing any
police duties or functions while he was being interviewed for the
promotion and, thus, that he did not violate the Department's
General Order. The MSB, after affirming that dismissal of the
charges against Oches, ordered that Oches be reinstated to his
position as Lieutenant; granted him differential back pay,
benefits, and seniority for the period of his demotion; and
finally, awarded him counsel fees pursuant to N.J.S.A. 11A:2-22
and N.J.A.C. 4A:2-2.12. The Township appealed MSB's ruling.
The Appellate Division affirmed the Board's dismissal of the
disciplinary charges against Oches, but reversed the Board's
award of counsel fees. The Appellate Division concluded that
there was sufficient, credible evidence for the ALJ to have found
that Oches was not performing any of his official duties at the
time of the taping incident. Thus, Oches did not violate General
Order #80-2. On the counsel fee issue, however, the Appellate
Division held that N.J.S.A. 40A:14-155, which expressly applies
to police officers, conflicted with N.J.S.A. 11A:2-22, which
applies to all civil service employees, and that, as the more
specific of the two provisions, N.J.S.A. 40A:14-155 should
control. Because the court had already found that Oches was not
performing any police functions while he was being interviewed
for the promotion, the Appellate Division concluded that, under
N.J.S.A. 40A:14-155, Oches was not entitled to reimbursement for
any counsel fees. I agree and, therefore, dissent from the
majority's holding permitting the repayment of legal costs to
Oches.
tardiness, conduct unbecoming a police officer, or other off-duty
conduct that is unrelated to the performance of official duties."
Ante at ___ (slip op. at 11). The majority's interpretation of
N.J.S.A. 40A:14-155 defeats the legislative goal in enacting that
statute.
A review of the plain language and the legislative history of N.J.S.A. 40A:14-155 establishes that the Legislature did not intend municipalities to reimburse police officers for legal fees they incur for actions that do not arise out of the performance
of their official duties. N.J.S.A. 40A:14-155 explicitly
provides that, when a member or officer of a municipal police
department is a defendant in a disciplinary proceeding "arising
out of and directly related to the lawful exercise of police
powers in the furtherance of his official duties," and that
proceeding is dismissed or finally determined in the officer's
favor, the governing body shall reimburse him for the expense of
his defense. (emphasis added). By its terms, the language of
that statute sets forth a strict standard. For reimbursement to
be provided, N.J.S.A. 40A:14-155 mandates that an alleged
infraction directly pertain to the performance of police
functions; any other interpretation would render the language of
that statute superfluous or meaningless. Therefore, by its plain
and ordinary meaning, the language of the statute bars
reimbursement for the types of allegedly benign, off-duty conduct
that the majority would recompense.
The legislative history of N.J.S.A. 40A:14-155 and case law
support that conclusion. Before 1985, the language of N.J.S.A.
40A:14-155 differed from its current version. At that time, the
statute required an award of counsel fees where an officer
successfully defended himself in a disciplinary action "arising
out of or incidental to the performance of his duties." Moya v.
City of New Brunswick,
90 N.J. 491, 495 (1982) (emphasis added).
The language in that former version is clearly broader than that
contained in the present statute, thereby demonstrating the
Legislature's intent to limit the type of charges for which
counsel fee reimbursement may be provided.
In amending N.J.S.A. 40A:14-155, the Legislature
specifically rejected this Court's expansive approach to the
statute taken in Moya, supra,
90 N.J. 491, and Valerius v. City
of Newark,
84 N.J 591 (1980). In those cases, we reimbursed
police officers under the prior version of N.J.S.A. 40A:14-155
for counsel fees incurred in successfully defending themselves
against allegations of criminal misconduct and police corruption.
Moya, supra, 90 N.J. at 493-94; Valerius, supra, 84 N.J. at 593.
Because the officers were acquitted, and thus the charges against
them assumed to have been false, the Court concluded that the
charges were brought presumably because of their status as police
officers. Moya, supra, 90 N.J. at 498; Valerius, supra, 84 N.J.
at 596-97. To increase the morale of police departments and to
encourage the effective pursuit of police duties, we held in
Moya, supra, that officers should be awarded counsel fees
whenever they must respond to unfair charges brought solely
because of their identity. 90 N.J. at 500-501. Noting the
"unique vulnerability" of police officers to such charges by the
very nature of their occupation, id. at 501, the Court declared
that it would be “'the height of unfairness' . . . if a
colleague, put to great expense in defending a . . . misconduct
charge (such as that charged against Moya) were denied
reimbursement for counsel fees after being exonerated of the
charges." Id. at 505-06 (quoting Valerius, supra, 84 N.J. at
598).
In both Moya, supra, and Valerius, supra, we acknowledged
that our interpretation of N.J.S.A. 40A:14-155 transcended a
literal reading of the statute, but we justified that expansion
on grounds of policy and legislative intent. 90 N.J. at 500; 84
N.J. at 598. By amending N.J.S.A. 40A:14-155, however, the
Legislature expressed its clear disapproval of the Court's
inclusive approach. As observed by the majority, the statute's
sponsor stated:
The purpose of this bill is to clarify the
legislative intent with regard to the scope
of the law requiring municipalities to pay
for the defense of municipal police officers
and to eliminate the impact of the recent
opinion of the New Jersey Supreme Court in
Moya v. New Brunswick,
90 N.J 491 (1982),
which expands the legislative coverage well
beyond a literal reading of this statute as
existing at the time of its decision.
[Statement to Senate Bill No. 1684, L. 1985,
c. 457 (May 14, 1984).]
The Committee Statement also reads:
A number of decisions by the courts of this
State have expanded the obligation imposed by
the literal terms of this section .... The
bill would eliminate the coverage of this
section for charges arising from acts outside
the scope of police duties, but occurring in
the course of the performance of those
duties, and for “status charges.”
[Senate County and Municipal Government
Committee, Statement to Senate Bill No. 1684,
L. 1985, c. 457 (June 18, 1984).]
Just as the Legislature was dissatisfied with this Court's expansion of the literal terms of N.J.S.A. 40A:14-155 in Moya,
supra, and Valerius, supra, so too will the Legislature be
dissatisfied with the majority's extension of that statute in
today's opinion. The majority holds that the reimbursement of
costs incurred defending charges relating to off-duty conduct,
such as absenteeism, does not offend the legislative purpose of
the statute. Not only does that non-literal holding contradict
the express statements of the Legislature, but the few Appellate
Division cases interpreting the amendment to N.J.S.A. 40A:14-155
have all found it to mandate a much stricter standard.
In Sparkman v. City of Atlantic City, after reviewing the
pre-amendment cases and the legislative history of the amendment,
the Appellate Division concluded that under the new statute “it
is perfectly plain that a police officer is entitled to ...
reimbursement only where he is charged with an infraction arising
from the lawful exercise of police powers in the furtherance of
his official duties."
237 N.J. Super 623, 626-29, certif.
denied,
121 N.J 660 (1990). According to the court, "[a] police
officer is not entitled to counsel fees where the proceedings
arise as a result of his failure to perform his official duties.”
Id. at 629. Thus, the court held that the plaintiff was not
entitled to counsel fees where he was charged with official
misconduct and conspiracy to commit official misconduct for
attending a private party where illegal drugs were used and
failing to arrest the participants. Ibid.
In another case, the Appellate Division held that merely
being on duty at the time of a charged incident (officer's
alleged theft and use of illegal drugs and failure to arrest on
that basis) was not enough to entitle an officer to reimbursement
of counsel fees. Bruno v. City of Atlantic City,
239 N.J. Super. 469, 473-74, certif. denied,
122 N.J. 165 (1990). The court
believed that the Legislature intended to eliminate reimbursement
where the acts of the officer, even though occurring "at a time
when the officer was coincidentally performing official duties,
were not occasioned by mere careless or overzealous performance
of those duties, but rather by an ulterior illegal goal of the
officer which actually constituted a perversion of his job." Id.
at 473.
Similarly, in Gabbianelli v. Township of Monroe,
271 N.J.Super 544, 546 (App. Div.), certif. denied,
137 N.J 307
(1994), the court denied reimbursement of attorney's fees to a
police officer who prevailed in a disciplinary action instituted
by his township as a result of that officer's confrontation with
an assistant prosecutor while acting in his capacity as a police
officer. Observing that the officer's conduct did not arise from
the lawful exercise of police powers in furtherance of his
official functions, the court stated that the "legislative goal
to the 1986 amendment was to deny a means for the defense of an
action or reimbursement when the officer's infraction or criminal
act is a 'perversion' of, rather than in furtherance of, his
duties." Id. at 546, 549 (citing Bruno, supra, 239 N.J. Super.
at 473).
Finally, in Gordon v. Borough of Middlesex, the court
reversed a grant of summary judgment where the plaintiff was
charged with unauthorized access to the computer system at the
police department and with obtaining data for his personal use.
268 N.J. Super 177, 183, 186 (App. Div. 1993). Because the
officer was on duty at the time, and because it was within his
duty as desk sergeant both to obtain the names of people who came
into the department and to use the department's computer, the
court found that a factual issue existed as to whether, in using
the computer to discover the names of two witnesses who arrived
that night, Gordon was “acting to carry out that duty or was
merely using the duty as a pretext for the surreptitious purpose
of obtaining information to aid his fellow patrolman.” Id. at
181, 183. The court noted that if his effort "was to obtain
information for his own personal use, he may not recover." Id.
at 186.
Some pre-amendment cases also demonstrate that N.J.S.A.
40A:14-155 was intended to be strictly construed. The court in
Kauffman v. Borough of Glassboro, for example, found that where
the plaintiff allegedly stole an aluminum storage shed from the
shopping center he was assigned to patrol, he was not entitled to
attorney's fees because, even though he was on duty, he acted as
a “common burglar, something which was not even colorably related
to the performance of his duties.”
181 N.J. Super 273, 275, 277
(App. Div. 1981), certif. denied,
91 N.J 523 (1982). Even
before the change in language in the statute, the court declared
that "it is our view that the statute contemplates a criminal
charge which at least suggests the exercise of police powers in
the furtherance of official duties." Id. at 277. Similarly, and
particularly appropriate to the case at hand, the court in
Borough of Highlands v. Davis held that the intent of the
Legislature in passing the earlier version of N.J.S.A. 40A:14-155
was to protect a police officer when his conduct in office was
questioned, but not to give protection for actions challenging a
police officer's appointment or promotion.
124 N.J. Super 217,
227 (Law Div. 1973); see also Newark v. Belleza,
159 N.J. Super. 123, 126, 129 (App. Div. 1978) (finding that, where action
instituted against officer with back injuries to determine
physical capability to continue to perform duties, there was no
intent in former statute to provide reimbursement of expenses).
Further evidence that the amendment was intended by the
Legislature to initiate a substantive change in the provision of
counsel fees for municipal police are the texts of other counsel
fee reimbursement statutes, each of which contain language less
specific and stringent than in the current N.J.S.A. 40A:14-155
and more like that in its former version. Firemen and county
police officers, for example, are to be reimbursed if they
prevail in disciplinary proceedings "arising out of or incidental
to the performance of [their] duties," N.J.S.A. 40A:14-28,
N.J.S.A. 40A:14-117, and persons employed under the jurisdiction
of any board of education are to be provided the costs of
defending themselves in civil actions "for any act or omission
arising out of and in the course of the performance of the duties
of such office," N.J.S.A. 18A:16-6. That those other counsel fee
statutes, which also cover personnel who may be civil service
employees, incorporate more flexible counsel fee reimbursement
criteria than N.J.S.A. 40A:14-155 suggests that the Legislature
intended to treat municipal police officers differently.
The above authority amply demonstrates that the Legislature
intended the current version of N.J.S.A. 40A:14-155 to constitute
a strict reimbursement standard. Moya, supra, had expanded
N.J.S.A. 40A:14-155 by providing reimbursement for status
charges. 90 N.J. at 500. In amending the statute and overruling
Moya, supra, however, the Legislature intended to do more than
just eliminate reimbursement for infractions brought solely
because of one's identity. See Gordon, supra, 268 N.J. Super. at
184 ("Even where the activities are more than mere 'status'
charges, entitlement to reimbursement for legal fees is not
automatic."); Bruno, supra, 239 N.J. Super. at 473 (finding that,
just because charges against defendant cannot be classified as
mere "status" offenses, it "does not necessarily follow ... that
reimbursement is therefore mandated"). As the cases show, the
Legislature intended to deny counsel fees for any charges based
on personal conduct or personal gain, or conduct that constitutes
a perversion or dereliction of one's duties as a police officer.
Indeed, the statute and its legislative history call for a
literal interpretation of the statutory language.
Allegedly "benign, off-duty conduct," such as absenteeism or tardiness, does not arise out of nor specifically relate to an officer's lawful exercise of police powers in the furtherance of his official duties. Ante at ___ (slip op. at 14). For that reason alone, awarding counsel fees for such benign, off-duty
conduct would offend the statute's purposes. Moreover, in
contrast to what the majority suggests, I believe that such
conduct constitutes a dereliction of one's duties as a police
officer and is exactly the type of situation for which
reimbursement is prohibited. A police officer's duties have been
described as "'enforcement of the penal laws, including
prevention of violations and the detection and arrest of
offenders,'" the "prevent[ion of] crime and preserv[ation of] the
peace," and the "'administration of public duties.'" Querques v.
City of Jersey City,
192 N.J. Super. 316, 324-25 (Law Div. 1983)
(citations omitted) (denying reimbursement of attorney's fees for
police officer who was criminally indicted and later acquitted of
charges arising out of his conduct as PBA president), aff'd,
198 N.J. Super. 566 (App. Div.), certif. denied,
101 N.J. 242 (1985).
The various actions cited by the majority as "benign, off-duty
conduct" do not involve the enforcement of the penal laws, but
rather the failure of an officer to perform his duties under such
laws. Based on the history and construction of N.J.S.A. 40A:14-155, and contrary to the majority opinion, reimbursement for
charges brought for allegedly benign, off-duty conduct violates
the legislative purpose of the statute.
Consistent with that approach, the disciplinary charges against Oches did not directly pertain to the lawful exercise of police powers in the furtherance of his official duties. Rather,
they were personal charges that related to Oches's private
conduct for his own purposes in the context of his interview. In
fact, Oches's surreptitious recording of his superior officers
was actually a perversion of his duties, namely the orderly
maintenance of the police department hierarchy. Even the
majority agrees that Oches's conduct does not qualify for
reimbursement under N.J.S.A. 40A:14-155. Therefore, by
reimbursing him under another statute, the majority offends the
legislative purpose behind N.J.S.A. 40A:14-155, which is to
eliminate reimbursement for precisely that type of conduct.
The broad language in N.J.S.A. 11A:2-22, which permits an
award of counsel fees to a civil service police officer
exonerated of disciplinary charges, regardless of whether the
charges arise out of the performance of his duties, clashes with
the strict interpretation that the Legislature has given N.J.S.A.
40A:14-155. The history and intent behind N.J.S.A. 40A:14-155
show that that statute was meant to restrict the award of legal
costs to municipal police officers. Granting counsel fees for
allegedly benign, off-duty conduct under the authority of the
Civil Service Act offends the legislative purposes behind
N.J.S.A. 40A:14-155. Accordingly, the two statutes cannot be
reconciled under the facts of this case.
This Court has held that, "when two statutes conflict, the
more specific controls." New Jersey Transit Corp. v. Borough of
Somerville,
139 N.J 582, 591 (1995). In that case, the Court
found that the more detailed statute governing appeals of
property tax assessments governed over the more general statute
regarding extended limitations periods for all civil actions
commenced by the State because the latter statute did not
"specifically delineate which State actions are governed by the
statute and which are not. Rather, that statute applies
generally to all State claims not expressly controlled by other
statutory limitations periods." Ibid.; see also Township of
Hopewell v. Gruchowski,
29 N.J. Super 605, 609 (Law Div. 1954)
("[W]here the Legislature has provided for a subject specifically
in an act, this specific treatment will not ordinarily be deemed
to have been contradicted or altered by a general act."). In
this case, the strict, narrow requirements of N.J.S.A. 40A:14-155
are more specific than the general reimbursement criteria of
N.J.S.A. 11A:2-22 and N.J.A.C. 4A:2-2.12. On that fact alone, I
find that N.J.S.A. 40A:14-155 should control.
N.J.S.A. 40A:14-155 also prevails because, if the MSB can
award counsel fees to civil service policemen under N.J.S.A.
11A:2-22, regardless of the restrictions in N.J.S.A. 40A:14-155,
it would render those restrictions superfluous and meaningless
for a large percentage of the policemen the statute was intended
to cover. See In re Schuman, supra, 114 N.J. at 26; Medical
Soc'y, supra, 120 N.J. at 26-27. Such an absurd construction is
meant to be avoided. See State v. Provenzano,
34 N.J. 318, 322
(1961).
Moreover, N.J.S.A. 40A:14-155 was amended, effective January
15, 1986, to limit the authority to award attorney's fees to
disciplined police officers and to preclude such awards
definitively for charges arising from acts outside the scope of
police duties. P.L. 1985, c. 457. N.J.S.A. 11A:2-22 was enacted
a few months later, effective September 25, 1986. P.L. 1986, c.
112. To conclude that the Legislature would adopt such a strong
law limiting policemen's counsel fee awards in late 1985, and
then adopt a liberal formulation for police officers in civil
service jurisdictions only a few months later, makes no sense.
Police officers in a civil service municipality, where, according
to the majority, the MSB may grant counsel fees under N.J.S.A.
11A:2-22, should not be treated any differently from police
officers in a non-civil service municipality who would not be
entitled to reimbursement under N.J.S.A. 40A:14-155.See footnote 1
I recognize that under my ruling police officers covered by
civil service would be treated differently than other civil
service employees. Nevertheless, the courts and the Legislature
have long recognized that police officers are unique from other
personnel and, accordingly, are treated differently than those
employees. See, e.g., State v. State Troopers Fraternal Ass'n,
134 N.J. 393, 395, 417-18 (1993) (holding that statute mandating
collective negotiation of procedures to review disciplinary
determinations did not apply to state troopers because
"negotiatiability of such procedures would infringe unacceptably
on one of the most important managerial prerogatives of the
Superintendent [of State Police]"); Irvington PBA v. Town of
Irvington,
170 N.J. Super. 539, 545-46 (App. Div. 1979) (taking
"judicial[ ] notice that the role of the police in every
community has always been of extreme importance to our social
well-being" and noting that in "obscure area of what constitutes
a managerial prerogative, the importance of managing a police
department cannot be equated with the need of a board of
education to unilaterally fix the working hours of its
secretaries"), certif. denied,
82 N.J. 296 (1980); Borough of
Atlantic Highlands v. Atlantic Highlands PBA,
192 N.J. Super. 71,
75-76 (App. Div. 1983) (noting "special position of policemen" and finding work schedule of police non-negotiable because such negotiation "would be an intrusion on the exercise