Dolan v. City of East Orange

• Court: New Jersey Superior Court – Appellate Division
• Writing for the Court: EICHEN
• Citation: 670 A.2d 587,287 N.J.Super. 136
• Parties: Donald DOLAN, An Individual and Engineering Supervisory Personnel Association, Inc. of East Orange, A Non-Profit Corporation of the State of New Jersey, Plaintiffs-Respondents, v. CITY OF EAST ORANGE, A Body Corporate and Politic of the State of New Jersey and Leroy J. Jones, City Administrator, Defendants-Appellants.
• Decision Date: 30 January 1996

Page 136

287 N.J.Super. 136 670 A.2d 587 Donald DOLAN, An Individual and Engineering Supervisory
Personnel Association, Inc. of East Orange, A
Non-Profit Corporation of the State of
New Jersey, Plaintiffs-Respondents,
v.
CITY OF EAST ORANGE, A Body Corporate and Politic of the
State of New Jersey and Leroy J. Jones, City
Administrator, Defendants-Appellants. Superior Court of New Jersey,
Appellate Division. Submitted Nov. 6, 1995.
Decided Jan. 30, 1996.

[670 A.2d 588]

Page 139

Brown, Lofton, Childress & Wolfe, Newark, for appellants (Rashidah N. Hasan, on the brief).

Selikoff & Cohen, P.A., Mt. Laurel, for respondents (Joel Selikoff, of counsel, and on the brief; Keith Waldman, also on the brief).

Before Judges PETRELLA, PAUL G. LEVY and EICHEN.

The opinion of the court was delivered by

EICHEN, J.A.D.

Following a disciplinary hearing, Donald Dolan, a provisional, at-will employee, was terminated from his employment with the recreation department of the City of East Orange (the City) as greens superintendent at the municipal golf course. Dolan was charged with "conduct unbecoming an employee" in violation of certain unspecified rules and regulations arising from a physical altercation with a subordinate employee, Fred Caldwell. Dolan's labor union representative, the Engineering Supervisory Personnel Association, Inc. (ESPA), presented Dolan's case before a municipal hearing officer. Based entirely upon a letter allegedly submitted by Caldwell to the City which charged Dolan with instigating the fight, the hearing officer recommended that Dolan be removed. The letter consisted of a typed, [670 A.2d 589] unsworn, unsigned statement of questionable origin, purporting to be Caldwell's statement, which presented a contradictory version of the event. The City accepted the hearing officer's discharge recommendation and terminated Dolan as greens supervisor.

Page 140

After the City rejected Dolan's request for a rehearing, Dolan and the ESPA (plaintiffs) filed a complaint against the City and the City Administrator, Leroy J. Jones (defendants). The complaint alleged that Dolan's state and federal constitutional due process rights, as well as his civil rights under 42 U.S.C. § 1983, had been violated because he was terminated from employment without a hearing conducted by an unbiased hearing officer, and because he was denied his right to confront and cross-examine Caldwell. The complaint sought declaratory and injunctive relief, back pay and benefits, attorneys fees and costs.

The Law Division judge granted summary judgment in favor of plaintiffs, directing the City to reinstate Dolan pending a new hearing. We granted leave to appeal and now affirm the summary judgment ordering a new hearing. However, we reverse and dismiss the § 1983 claim because, although Dolan was denied administrative due process as a matter of fundamental fairness, he did not suffer a constitutional deprivation which would support such a claim.

The facts are uncomplicated and derive from the hearing officer's written decision because the hearing was not transcribed. There were no witnesses to the alleged altercation between Dolan and Caldwell. The only witnesses who testified at the hearing were Dolan and another employee who, although not present at the altercation, saw Dolan afterward and corroborated his injuries. Caldwell did not appear at the hearing; ¹ nonetheless, the hearing officer permitted the City to introduce the letter purportedly submitted by Caldwell reporting that Dolan had instigated the fight. Dolan testified that Caldwell had assaulted him and denied provoking Caldwell. Based solely upon this evidence, the municipal hearing officer observed that the matter was essentially "one person's word against another," and ruled against Dolan.

Page 141

On Dolan's motion for summary judgment, plaintiffs asserted that the City did not disclose the letter until the hearing and that the City offered no explanation as to the circumstances under which the letter was written. Plaintiffs also contended the City's reliance on the letter, without affording plaintiffs the opportunity to confront and cross-examine Caldwell, denied Dolan his constitutional right to procedural due process of law. The City responded that the Law Division lacked subject matter jurisdiction, arguing that review of the hearing officer's decision is in the Appellate Division, not the Law Division.

On the return date of the motion, the judge rejected the City's argument and granted summary judgment to plaintiffs, noting that "this is not an appeal from an administrative agency." The judge also concluded that Dolan "didn't get a hearing," finding there was no "substantive basis" for the agency's determination that Dolan had "incit[ed] the altercation" and concluded Dolan had been denied his constitutional right to due process of law. The judge ordered Dolan reinstated to his job as greens superintendent pending a new hearing before a different hearing officer and directed that the record be transcribed. The judge did not determine whether Dolan is entitled to an award of back pay, benefits or attorneys fees under 42 U.S.C. § 1983, retaining jurisdiction to consider the merits of these claims. Subsequently, the judge issued a letter opinion and entered an order directing the City to "provide ... Dolan with the opportunity to confront and cross-examine ... Caldwell unless there is good cause for his non-production."

On appeal, defendants again assert that the trial court lacked subject matter jurisdiction because proper jurisdiction lies directly with the Appellate Division. Alternatively, the City contends that summary judgment should not have been granted because a factual dispute exists as to whether the City had [670 A.2d 590] good cause for not producing Caldwell at the hearing. We find these contentions clearly without merit, see R. 2:11-3(e)(1)(E).

Page 142

Dolan was not entitled to a direct appeal to this court from the City's decision to remove him. The City of East Orange is a municipality. Rule 2:2-3(a) provides that "appeals may be taken to the Appellate Division as of right ... to review final decisions or actions of any state administrative agency or officer." (emphasis added) Judicial review of decisions of agencies which are not state agencies is by a civil action "In Lieu of Prerogative Writs" brought in the Law Division of the Superior Court, under R. 4:69-1. See Walsh Trucking Co. v. Hackensack Meadowlands District Constr. Bd. of Appeals, 240 N.J.Super. 525, 526, 573 A.2d 951 (App.Div.1990). Likewise, judicial review of the actions of a municipality where there is no administrative appeal procedure is in the Law Division by an action in lieu of prerogative...