FREDDIE MITCHELL VS. BOROUGH OF ROSELAND(L-4726-13, ESSEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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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