TROY CHENIER VS. THE TOWNSHIP OF MEDFORD(L-1561-15, BURLINGTON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3814-15T1

TROY CHENIER,

Plaintiff-Appellant,

v.

THE TOWNSHIP OF MEDFORD and
RICHARD J. MEDER, CHIEF OF
POLICE,

Defendants-Respondents.
___________________________________

Submitted May 3, 2017 – Decided June 29, 2017

Before Judges Accurso and Lisa.

On appeal from Superior Court of New Jersey,
Law Division, Burlington County, Docket No.
L-1561-15.

Law Offices of David J. Khawam, LLC, attorneys
for appellant (F. Michael Daily, Jr., on the
briefs).

Capehart & Scatchard, P.A., attorneys for
respondent (Carmen Saginario, Jr., on the
brief).

PER CURIAM
 Plaintiff, Troy Chenier, a Medford Township police officer,

appeals the April 29, 2016 final order issued by Judge Ronald E.

Bookbinder denying his motion for summary judgment and dismissing

his complaint with prejudice. Plaintiff had risen to the rank of

sergeant, but, as a result of a reduction in force for reasons of

economy, in April 2012 he was demoted, along with other officers,

and placed on a special employment list for restoration to his

previous rank whenever a vacancy should occur pursuant to N.J.S.A.

40A:14-143. However, when such a vacancy occurred more than three

years later in June 2015, plaintiff was informed by defendant,

Richard J. Meder, the Chief of Police, that he could participate

in the promotional process, but he would not be granted automatic

reinstatement to his former rank of sergeant because he had been

twice disciplined for violation of departmental regulations during

the intervening period.

Defendants relied on another statutory provision pertaining

to police promotions, which required that consideration be given

to the merit of the service of an officer proposed for promotion.

N.J.S.A. 40A:14-129. Defendants argued that in light of the

intervening events since plaintiff's reduction in rank due to

economic reasons, the poor merit of his service should serve to

disentitle him to the right of automatic reinstatement.

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 Judge Bookbinder agreed with defendants. He concluded that,

because both statutes pertained to the same subject matter of

police officer promotions, they must be read together in an effort

to give meaning and effect to both of them. He rejected

plaintiff's argument that N.J.S.A. 40A:14-143 should take

precedence over N.J.S.A. 40A:14-129.

The judge further rejected plaintiff's claim that he was

denied due process because he relinquished his right to hearings

in the disciplinary proceedings, accepted findings of violations

and agreed to the sanctions imposed without notice from the

Township that the adverse outcome could result in a denial of

automatic reinstatement rights. Judge Bookbinder found from the

undisputed facts in the motion record that defendant was

represented by counsel in both disciplinary proceedings and was

expressly informed that an adverse result in those proceedings

could jeopardize his right to automatic reinstatement to the rank

of sergeant when a vacancy occurred.

On appeal, plaintiff repeats before us the same substantive

and due process arguments. In reviewing a summary judgment

disposition, we exercise de novo review. Prudential Prop. & Cas.

Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif.

denied, 154 N.J. 608 (1998). The parties do not submit that any

material facts are in dispute, and agree the issue before the

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court is a matter of law, namely one of statutory construction.

Accordingly, our role is to review the summary judgment motion

record and decide it anew, owing no deference to the trial court's

interpretation of the legal issue as applied to the undisputed

facts. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366,

378 (1995).

We have reviewed the record and the controlling legal

principles. We agree with Judge Bookbinder's analysis and

conclusion and affirm substantially for the reasons he expressed

in his comprehensive written opinion of April 19, 2016.

When plaintiff was reduced in rank for economy reasons, he

was designated to the assignment of corporal. The Township

ordinance establishing the police department does not list

"corporal" as an official rank. However, plaintiff's assignment

to the position of corporal vested him with supervisory duties,

thus distinguishing him from patrol officers.

The first disciplinary action occurred during the hiatus

between plaintiff's reduction in rank and the occurrence of a

sergeant vacancy. The charges covered a period of time from

February 1 through September 24, 2012, part of which was prior to

the reduction in rank and the remaining part subsequent to it. On

December 28, 2012, while represented by counsel, plaintiff

accepted and agreed to the findings in the disciplinary charges

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for violating the department's standards of conduct and accepted

a two-day suspension and a probationary period of nine months to

be served in his position as corporal.

The second set of charges arose out of incidents that occurred

on August 2 and 3, 2013, during the intervening period. On those

dates, plaintiff was assigned to an outside employment detail at

a swimming meet. He was charged with conduct unbecoming an officer

for engaging in unprofessional and threatening conduct toward

spectators, volunteers, and others in attendance. Again

represented by counsel, he waived his right to a hearing and agreed

to accept an adverse adjudication and the recommended discipline

of nine days suspension (two of which would be held in abeyance

for one year), removal from his corporal assignment, reassignment

as a patrol officer, and mandatory anger management counseling.

In the course of those proceedings, plaintiff was informed that

an adverse determination would disentitle him to an automatic

right of reinstatement when a vacancy occurred in the rank of

sergeant.

N.J.S.A. 40A:14-143 provides that when an officer is demoted

for reasons of economy, that officer "shall be placed on a special

employment list, and in the case of subsequent promotions, a person

so demoted shall be reinstated to his [or her] original rank."

Plaintiff urges that the statutory language is clear and

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unambiguous, and it leads to an unmistakable result, namely an

automatic right to reinstatement.

N.J.S.A. 40A:14-129, applies to "a promotion of any member

or officer of the police department or force to a superior

position," and requires that "[d]ue consideration shall be given

to the member or officer so proposed for the promotion, to the

length and merit of his [or her] service." (Emphasis added).

Defendants argued that in circumstances in which the quality of

an officer's service merit is demonstrably diminished as a result

of his or her conduct during the period of demotion for economy

reasons, the provisions of this section must be applied.

Indeed, as a result of plaintiff's second disciplinary

action, in addition to a suspension, he was stripped of his

corporal assignment and ordered to undergo mandatory anger

management counseling. Further, because two days of his suspension

were held in abeyance for one year, he was, in essence, in a

probationary status for a year.

Defendants argued that in these circumstances, an automatic

reinstatement would be untenable and could lead to anomalous and

even absurd results. If the literal automatic reinstatement

language of N.J.S.A. 40A:14-143 were blindly followed, an officer

would have a blank check during the intervening period to perform

poorly and violate departmental regulations (as long as the

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performance was not so egregious as to result in termination) and

then be automatically reinstated to a higher rank.

The two statutory provisions implicated in this case are part

of subsection D of Chapter 14 of N.J.S.A. 40A. They were both

enacted as part of the same recodification of laws. L. 1971, c.

197, § 1, eff. July 1, 1971. The two provisions clearly pertain

to a common subject matter dealing with promotion of police

officers. As such, the provisions must be read together. Judge

Bookbinder recognized this in his written opinion, relying on a

decision of this court involving police officers:

When multiple statutory provisions
concern a single issue, "[r]elated parts of
an overall scheme can . . . provide relevant
context." Williams v. Borough of Clayton, 442
N.J. Super. 583, 595 (App. Div. 2015) (quoting
Beim v. Hulfish, 216 N.J. 484, 498 (2014)).
"Put another way, in interpreting the plain
terms of a statute, a court must 'read them
in context with related provisions so as to
give sense to the legislation as a whole.'"
Ibid. (quoting Beim, supra, 216 N.J. at 498).

We agree. In a recent decision, we have expressed this

principle thusly:

In construing statutes, courts should
give effect to each provision and they should
be "interpreted so they do not conflict." 1A
Norman J. Singer & J.D. Shambie Singer,
Sutherland Statutory Construction § 22:34 at
395-96 (7th ed. 2007). When, within a common
subject matter, some statutory provisions
pertain to one set of circumstances and some
to another, the judicial function is "to make

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 every effort to harmonize them, even if they
are in apparent conflict." Saint Peter's
Univ. Hosp. v. Lacy, 185 N.J. 1, 14 (2005)
(citations omitted). In these circumstances,
the statutes should be read in pari materia
and construed in a manner that, to the extent
possible, will give full effect to all of the
provisions. Walcott v. Allstate New Jersey
Ins. Co., 376 N.J. Super. 384, 391 (App. Div.
2005).

[Caltabiano v. Gill, 449 N.J. Super. 331, 341-
42 (App. Div.), certif. denied, ___ N.J. ___
(2017).]

Finally, we reject plaintiff's due process argument for the

same reasons it was rejected in the trial court. Plaintiff was

on notice during the course of the disciplinary proceedings that

an adverse determination would potentially negate his right to

automatic reinstatement to sergeant in the future. He was

represented by counsel in both proceedings. His waiver of a

hearing and acceptance of the disciplinary sanctions did not

violate his due process rights.

Affirmed.

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