NOT FOR PUBLICATION WITHOUT THE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-3422-19
POLICE SERGEANT
CHRISTOPHER BUTCHYK,
Plaintiff-Appellant,
v.
BOROUGH OF CALDWELL and
BOROUGH OF CALDWELL
POLICE DEPARTMENT,
Defendants-Respondents.
_____________________________
Argued July 6, 2021 – Decided December 7, 2021
Before Judges Messano and Smith.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-0246-20.
Lori A. Dvorak argued the cause for appellant (Dvorak
& Associates, LLC, attorneys; Jeffrey S. Ziegelheim, of
counsel and on the briefs).
Ryan S. Carey argued the cause for respondents
(Apruzzese, McDermott, Mastro & Murphy, PC,
attorneys; Ryan S. Carey, of counsel and on the brief;
Boris Shapiro, on the brief).
The opinion of the court was delivered by
SMITH, J.A.D.
I.
Plaintiff Christopher Butchyk was a veteran sergeant employed by the
police department in the Borough of Caldwell, a non-civil service municipality.
On May 11, 2019, plaintiff sent three improper text messages to a group text
chat whose members included other Caldwell police officers, including a captain
and officers from internal affairs. After the incident, plaintiff turned himself in
to internal affairs. Five days later, the Caldwell police chief transferred the
matter to the Livingston Police Department internal affairs unit for
investigation.1 Plaintiff was suspended with pay pending further investigation
on May 16, 2019.
On July 18, 2019, defendants served plaintiff with a preliminary notice of
disciplinary action charging him with multiple workplace violations. 2 After a
1
The transfer was required because the members of the Caldwell Police
Department internal affairs unit were recipients of the inappropriate texts and
therefore conflicted out of further investigative responsibilities.
2
The record shows plaintiff was charged with violation of N.J.S.A. 40A:14-
147, including but not limited to: conduct unbecoming a superior officer, neglect
of duty, and failure to perform duties. Plaintiff was also charged with multiple
violations of Caldwell police department rules, regulations, policies, and
procedures.
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disciplinary hearing, the hearing officer made findings and recommended
termination on November 20, 2019. 3
On Monday, November 25, 2019, the Borough of Caldwell posted public
notice of an "emergency special meeting" to be held November 27, 2019. The
public notice specifically listed the sole agenda item as the "Employment Status
of Sergeant Butchyk." Notice of the meeting was posted on a Borough Hall
bulletin board, on the main page of Caldwell's municipal website, and in three
local newspapers. Defendants sent separate emails about the November 27
meeting directly to plaintiff and his attorney, informing them that plaintiff's
employment status would be on the agenda. 4 Defendants also called plaintiff to
inform him that they were attempting to personally serve him. Finally, a
Caldwell police detective personally served plaintiff with the meeting notice on
November 26.
3
The record shows that the hearing officer found "overwhelming evidence" that
plaintiff engaged in several acts which violated Caldwell police department
"rules, regulations, policies and/or procedures," including, but not limited to:
plaintiff making remarks and taking actions "that could be perceived as
discriminatory against females and minorities, . . . mocking and ridiculing [a
subordinate officer]'s heritage and culture," and making offensive comments
toward a female subordinate officer.
4
Rice v. Union Cnty. Reg'l High Sch. Bd. of Educ., 155 N.J. Super. 64, 73
(App. Div. 1977).
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3
At the November 27 public meeting, defendants voted to terminate
plaintiff. Defendants served plaintiff with a Final Notice of Disciplinary Action
confirming termination on December 4, 2019. Plaintiff filed a complaint in lieu
of prerogative writ naming defendants on January 10, 2020. Shortly thereafter,
defendants moved to dismiss the complaint, and the trial court treated the motion
for dismissal as a motion under Rule 4:6-2(e). The trial court found plaintiff's
right to seek review of defendants' disciplinary conviction action was governed
by N.J.S.A. 40A: 14-150, which requires an employee of a non-civil service
municipality to seek Superior Court review of an adverse employment action
within ten days of receiving written notice of that action. The trial court next
found plaintiff's January 10 complaint out of time under the statute, having been
filed more than ten days after plaintiff received notice of his termination. The
trial court additionally found plaintiff's November 26 letter to defendants was
not timely notice of his intent to seek review, since plaintiff was terminated after
the letter was sent. The trial court then granted defendants' motion to dismiss
explaining its reasons in a written opinion dated March 13, 2020.
Plaintiff makes the following arguments on appeal:
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POINT I
THE TRIAL JUDGE ERRED IN GRANTING
DEFENDANTS' MOTION TO DISMISS
PLAINTIFF/APPELLANT'S COMPLAINT
A. PLAINTIFF TIMELY FILED THE
COMPLAINT PER R. 4:69- 6(a)
B. PLAINTIFF GAVE TIMELY NOTICE
WITHIN THE TEN-DAY TIME FRAME,
PER N.J.S.A. 40A:14-150.
C. THE TRIAL COURT ERRED IN
FAILING TO CONSIDER AND APPLY
EQUITABLE RELIEF TO ALLOW THE
FILING TO BE TIMELY.
POINT II
THE TRIAL JUDGE ERRED IN GRANTING
DEFENDANTS' MOTION TO DISMISS
PLAINTIFF'S COMPLAINT AS THE OPEN PUBLIC
MEETINGS ACT WAS VIOLATED BY
DEFENDANTS
A. DEFENDANTS VIOLATED THE
OPEN PUBLIC MEETINGS ACT AS
THERE WAS NO BASIS TO JUSTIFY
AN EMERGENCY MEETING, NOR DO
THE MINUTES REFLECT PROPER
NOTICE WAS GIVEN. (Not Raised
Below)
B. THE TRIAL COURT ERRED IN
FAILING TO RECOGNIZE THAT
DEFENDANTS FAILED TO PROPERLY
EFFECTUATE NOTICE UNDER RICE,
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THUS MAKING THE NOVEMBER 27,
2019 MEETING NULL AND VOID. (Not
Raised Below)
II.
Rule 4:6-2(e) motions to dismiss for failure to state a claim upon which
relief can be granted are reviewed de novo. Baskin v. P.C. Richard & Son, LLC,
246 N.J. 157, 171 (2021) (citing Dimitrakopoulos v. Borrus, Goldin, Foley,
Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 108 (2019)). "A reviewing
court must examine the legal sufficiency of the facts alleged on the face of the
complaint, giving the plaintiff the benefit of every reasonable inference of
fact." Ibid. (internal quotations and citations omitted). The complaint must
be searched thoroughly "and with liberality to ascertain whether
the fundament of a cause of action may be gleaned even from
an obscure statement of claim, opportunity being given to amend if
necessary." Ibid. (quoting Printing Mart-Morristown v. Sharp Elecs. Corp., 116
N.J. 739, 746 (1989)). "Nonetheless, if the complaint states no claim that
supports relief, and discovery will not give rise to such a claim, the action
should be dismissed." Ibid. (quoting Dimitrakopoulos, 237 N.J. at 107).
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6
As members or officers of a non-civil service municipality, Borough of
Caldwell police are governed by N.J.S.A. 40A:14-150, which reads in pertinent
part:
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, who has been tried and
convicted upon any charge or charges, may obtain a
review thereof by the Superior Court . . . [s]uch 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 [they] may make
such other order or judgment as said court shall deem
proper.
III.
Plaintiff argues that his petition for review under N.J.S.A. 14-150 is
timely, advancing three separate theories to support his position. We disagree,
finding that the statute controls the time within which an employee subject to
this provision may seek review by the Superior Court. First, plaintiff relies on
Rule 4:69-6(a) to suggest he had forty-five days to file his complaint in Superior
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7
Court after receiving written notice of his termination. The relevant portion of
the rule reads as follows: "(a) General Limitation. No action in lieu of
prerogative writs shall be commenced later than 45 days after the accrual of the
right to the review, hearing or relief claimed . . . ." R. 4:69-6(a). We reject
plaintiff's attempt to substitute Rule 4:69-6(a)'s forty-five-day deadline for the
legislature's ten-day deadline in N.J.S.A. 14-150, which specifically addresses
non-civil service police officers who seek review of personnel actions against
them. We concur with the trial court, who found that had the Legislature
intended to do so, it would have incorporated the forty-five-day deadline into
the statute.
Plaintiff next argues that his November 27 letter protesting Caldwell's
Rice notice given in advance of the special meeting which took place that same
day satisfied the statutory requirements of N.J.S.A. 14-150. Plaintiff's reliance
on Borough of Stone Harbor v. Wildwood Loc. 59, Policemen's Benevolent
Ass'n, 178 N.J. Super. 1 (App. Div. 1980), is misplaced. In Stone Harbor, we
held that the record showed defendant employer was on notice of plaintiff's
intent to seek review after plaintiff received written notice of termination but
before the expiration of the ten-day statutory deadline. Id. at 8. This case is
distinguishable, as the record shows the entirety of plaintiff's November 27
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objection letter went to the adequacy of his notice for the special meeting.
Plaintiff's letter contains no reference to preservation of his statutory right of
review under N.J.S.A. 40A:14-150. In any event, plaintiff did not receive
written notice of his termination as a police officer until December 4, when those
rights would have accrued. There is nothing in the record to show that plaintiff
placed defendants on notice of his intent to seek review after his December 4
termination, but before the expiration of the statutory deadline. We find no merit
in this argument.
Plaintiff also argues that equitable principles call for the relaxation of the
N.J.S.A. 40A:14-150 ten-day timeframe for seeking review of his termination,
citing to various court rules. 5 We reject this argument, as the legislature's ten-
day statutory deadline is jurisdictional in nature. See Mesghali v. Bayside State
Prison, 334 N.J. Super. 617, 621-23 (App. Div. 2000) (holding that the Civil
Service Commission could not accept an employee's appeal of a major
disciplinary action outside of the twenty-day statutory time limit).
Finally, plaintiff makes a series of Open Public Meetings Act (OPMA)6
and Rice arguments, challenging the legality of the November 27 meeting.
5
Rules 1:3-4, 2:4-4, and 4:69-6(c).
6
N.J.S.A. 10:4-6 to -21.
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Plaintiff raises his OPMA and Rice arguments for the first time before us, as he
did not assert these claims in his complaint in lieu of prerogative writ before the
trial court. We review both arguments under the plain error standard. Twp. of
Manalapan v. Gentile, 242 N.J. 295, 304-05 (2020).
Plaintiff contends any public action taken on November 27 is defective
because of technical deficiencies in the November 27 public meeting minutes,
as well as Caldwell's omission of the November 27 meeting date from a
published list of 2019 public meetings. We find the record is more than
sufficient to conclude defendants substantially complied with OPMA. To the
extent that there was any technical non-compliance by defendants, we find no
error below "clearly capable of producing an unjust result." See R. 2:10-2.
Plaintiff further contends that his Rice notice for the November 27
meeting was inadequate. We find the record replete with evidence of plaintiff's
knowledge that he was the subject of disciplinary action. He was present on
November 20 when the hearing officer rendered the decision recommending
termination. Defendants emailed both plaintiff and his attorney notice of the
November 27 meeting. A Caldwell detective personally served plaintiff the
meeting notice at his home. To the extent that there was any defect in the Rice
notice, and we make no such finding, we discern no unjust result on this record.
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Any remaining arguments not addressed here lack sufficient merit to warrant
discussion in a written opinion, R. 2:11-3(e)(1)(E).
Affirmed.
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