RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-5752-14T2
FREDDIE MITCHELL,
Plaintiff-Appellant,
v.
BOROUGH OF ROSELAND,
Defendant-Respondent.
__________________________________
Argued May 2, 2017 – Decided August 8, 2017
Before Judges Koblitz, Rothstadt and Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-4726-
13.
Alfred V. Gellene argued the cause for
appellant.
R. Scott Fahrney argued the cause for
respondent (Kaufman, Semeraro & Liebman, LLP,
attorneys; Mr. Fahrney and Mark J. Semeraro,
on the brief).
Robert J. Merryman argued the cause for
respondent on counterclaim (Law Offices of
Apruzzese, McDermott, Mastro, & Murphy,
attorneys; Mr. Merryman, on the brief).
PER CURIAM
Plaintiff Freddie Mitchell, a former officer with defendant
Borough of Roseland's police department, filed a "complaint in
lieu of prerogative writ[s], pursuant to Rule 4:69-1," challenging
his termination from the department for cause, as recommended by
a hearing officer, on the basis that it was "illegal, capricious
and unreasonable, as well as unsupported by all of the evidence
adduced during the administrative hearing." He appeals from the
Law Division's July 8, 2015 final order dismissing his complaint
and entering judgment in favor of defendant for salary paid while
plaintiff was suspended. On appeal, plaintiff argues the trial
court applied the wrong standard of review and incorrectly assessed
certain evidence of plaintiff's alleged misconduct that led to his
termination.
Defendant concedes that the court misstated the applicable
standard of review, but it argues that the court's application of
the correct standard may be inferred from the court's overall
assessment of the evidence contained in the record of plaintiff's
disciplinary hearing. Defendant also refutes plaintiff's
additional arguments, contending that the court correctly
determined plaintiff's termination was warranted.
The salient facts are not in dispute and are summarized as
follows. Defendant's police department issued charges of
misconduct against plaintiff arising from his involvement in a
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marital dispute, and relating to his failure to obey the
department's order to submit weekly reports and other measures to
remediate plaintiff's alleged issues. A hearing was held before
a hearing officer – a retired Superior Court judge – who ultimately
issued an opinion recommending that defendant discharge plaintiff.
Defendant's municipal council adopted the recommendation and
plaintiff filed his complaint with the Law Division. Defendant
filed an answer and counterclaim in which it sought recovery of
amounts paid to plaintiff while he was suspended.
On June 26, 2015, the trial court considered the record of
the proceedings before the hearing officer and the arguments of
counsel before issuing an oral decision affirming defendant's
termination of plaintiff and awarding defendant the sums it paid
to plaintiff while he was suspended. In its decision, the court
first recited the history of the charges made against plaintiff
and his disciplinary hearing, before stating what it believed was
the applicable standard for the court's review. According to the
court, its review was limited to determining whether defendant's
actions and the hearing officer's determination were "arbitrary,
capricious or unreasonable." The court addressed plaintiff's
legal arguments and rejected each of them before it affirmed the
hearing officer's determination and defendant's decision to
terminate plaintiff.
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On July 8, 2015, the court entered its final judgment. This
appeal followed.
We conclude from our review that the trial court, confronted
with an action in lieu of prerogative writs, incorrectly applied
the "arbitrary, capricious or unreasonable" standard typically
applicable to challenged government actions, instead of the de
novo review standard applicable to claims of wrongful termination
by "municipal employees, not protected by Civil Service." In re
Disciplinary Procedures of Phillips, 117 N.J. 567, 578 (1990).
See also N.J.S.A. 40A:14-150. We disagree with defendant's
contention that the trial court's application of the correct
standard can be gleaned from its findings. Even though plaintiff
filed an action that was technically inappropriate to his claim,
he was still entitled to the court reviewing his matter "anew,
afresh [and] for a second time," as contemplated by the applicable
standard, without any consideration as to whether his claim was
previously appropriately decided. In re Disciplinary Procedures
of Phillips, supra, 117 N.J. at 578 (alteration in original)
(quoting Romanowski v. Brick Twp., 185 N.J. Super. 197, 204 (Law
Div. 1982), aff'd o.b., 192 N.J. Super. 79 (App. Div. 1983)). See
also Ruroede v. Borough of Hasbrouck Heights, 214 N.J. 338, 356-
57 (2013).
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The judgement is vacated, and the matter is remanded for
further proceeding consistent with our opinion. We do not retain
jurisdiction.
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