In re DiGuglielmo

• Decision Date: 28 November 2022
• Docket Number: A-33 September Term 2021,085064
• Citation: 252 N.J. 350,285 A.3d 305
• Parties: In the MATTER OF Officer Gregory DIGUGLIELMO and New Jersey Institute of Technology.
• Court: New Jersey Supreme Court

252 N.J. 350

285 A.3d 305

In the MATTER OF Officer Gregory DIGUGLIELMO and New Jersey Institute of Technology.

A-33 September Term 2021

085064

Supreme Court of New Jersey.

Argued September 28, 2022

Decided November 28, 2022

Joshua Forsman argued the cause for appellant Officer Gregory DiGuglielmo (Caruso Smith Picini, attorneys; Zinovia H. Stone and Amie E. DiCola, on the briefs).

Christine Lucarelli, General Counsel, argued the cause for respondent New Jersey Public Employment Relations Commission (Christine Lucarelli, General Counsel, attorney; Ramiro A. Perez, Deputy General Counsel, on the brief).

Leonard S. Spinelli, Newark, argued the cause for respondent New Jersey Institute of Technology (Genova Burns, attorneys; Leonard S. Spinelli and Jennifer P. Roselle, Newark, of counsel and on the briefs).

Matthew D. Areman argued the cause for amicus curiae New Jersey State Lodge of the Fraternal Order of Police (Markowitz & Richman, attorneys; Matthew D. Areman, on the brief).

Tim Sheehan, Special Assistant to the Solicitor General, argued the cause for amicus curiae Attorney General of New Jersey (Matthew J. Platkin, Acting Attorney General, attorney; Alec Schierenbeck, Deputy State Solicitor, and Achchana C. Ranasinghe, Deputy Attorney General, on the briefs).

James P. Lidon, Morristown, argued the cause for amicus curiae Rutgers, the State University of New Jersey (McElroy, Deutsch, Mulvaney & Carpenter, attorneys; James P. Lidon, of counsel and on the briefs).

JUSTICE PIERRE-LOUIS delivered the opinion of the Court.

In this appeal, which involves a matter of statutory interpretation, we must determine whether a particular form of arbitration is available to police officers at public colleges and universities when appealing a suspension or termination. New Jersey Institute of Technology (NJIT) Officer Gregory DiGuglielmo was first suspended with pay and then terminated from his position after an incident involving the pursuit of a juvenile on a bicycle. Upon being advised of his termination, Officer DiGuglielmo sought to challenge his termination with the New Jersey Public Employment Relations Commission (PERC) and requested special disciplinary arbitration pursuant to N.J.S.A. 40A:14-210. NJIT objected, claiming special disciplinary arbitration was only available to municipal police officers. PERC dismissed NJIT's objection and appointed an arbitrator to adjudicate Officer DiGuglielmo's challenge to his termination.

On appeal, the Appellate Division reversed PERC's determination that special disciplinary arbitration was available to Officer DiGuglielmo. In re DiGuglielmo, 465 N.J. Super. 42, 60, 238 A.3d 1154 (App. Div. 2020). The court agreed with NJIT that the forum was only available to non-civil service municipal officers. Ibid. The Appellate Division further held that even if Officer DiGuglielmo was eligible to challenge his termination via special disciplinary arbitration as a university police officer, Officer DiGuglielmo would not qualify because that form of arbitration is only available to officers who have been suspended without pay pursuant to N.J.S.A. 40A:14-209. Id. at 63, 238 A.3d 1154.

We granted Officer DiGuglielmo's petition for certification and now reverse and reinstate PERC's decision. We hold that a plain reading of the relevant statutes dictates that special disciplinary arbitration is not limited to municipal officers, so arbitration is available to public university police officers like Officer DiGuglielmo. We further hold that pursuant to N.J.S.A. 40A:14-210, an officer suspended with pay prior to termination is eligible to engage in special disciplinary arbitration.

I.

A.

We recount the following factual statements from the record but do not make any factual findings.

NJIT is a public university located in Newark. Gregory DiGuglielmo was a police officer and field training officer with the NJIT Department of Public Safety. On August 26, 2019, Officer DiGuglielmo, while riding in a police vehicle driven by a probationary officer under Officer DiGuglielmo's supervision, engaged in the pursuit of a juvenile bicyclist. Upon approaching the juvenile, Officer DiGuglielmo used physical force to restrain him. A third-party video depicting part of the encounter was posted on a social media platform and showed Officer DiGuglielmo speaking to the minor in a loud and aggressive tone.

The following day, NJIT informed Officer DiGuglielmo that he was the target of an internal affairs complaint and placed him on administrative leave with pay pending the outcome of an investigation. The Essex County Prosecutor's Office launched an inquiry into Officer DiGuglielmo's conduct but ultimately found there was insufficient evidence to support a criminal prosecution.

Following NJIT's internal investigation, Officer DiGuglielmo received a Notice of Disciplinary Action for eleven offenses. The investigation concluded that Officer DiGuglielmo "did not utilize proper communication, body camera operations, dash camera operation, pursuit procedures and most importantly restraint" during the encounter. The investigation found that Officer DiGuglielmo recklessly endangered innocent persons by permitting the probationary officer to drive against traffic and unlawfully cross an intersection without activating the vehicle's warning lights. Video footage also revealed that Officer DiGuglielmo yelled threatening profanities at the juvenile bicyclist, and the report indicated that he failed to provide medical aid following his use of physical force.

Based on these findings, NJIT terminated Officer DiGuglielmo on December 20, 2019.

B.

In January 2020, Officer DiGuglielmo filed a challenge to his termination with PERC, requesting "special disciplinary arbitration" pursuant to N.J.S.A. 40A:14-210. NJIT objected to Officer DiGuglielmo's request, claiming that he was not eligible for special disciplinary arbitration. The university primarily argued that N.J.S.A. 40A:14-210 does not apply to NJIT police officers because the statute provides that appeal forum only to municipal police in non-civil service jurisdictions.

Over NJIT's objection, PERC held that Officer DiGuglielmo was eligible for special disciplinary arbitration pursuant to N.J.S.A. 40A:14-210 based on PERC precedent, which had made the same finding regarding NJIT officers. PERC found that university police officers were not excluded from special disciplinary arbitration and rejected NJIT's contention that Officer DiGuglielmo waived his right to challenge his termination by not following the procedure outlined in his union's collective negotiations agreement. PERC then appointed an arbitrator.

C.

The Appellate Division granted NJIT's motion for leave to appeal PERC's decision. The Appellate Division stayed the arbitration.

The Appellate Division was persuaded by NJIT's argument and held that the pertinent statutes limited special disciplinary arbitration to municipal officers. DiGuglielmo, 465 N.J. Super. at 46, 238 A.3d 1154. The court first affirmed PERC's finding that NJIT's Department of Public Safety is a "law enforcement agency" within the meaning of N.J.S.A. 40A:14-200. Id. at 60, 238 A.3d 1154. The Appellate Division then held that campus police officers were not eligible for special disciplinary arbitration because N.J.S.A. 40A:14-209 and -210 incorporate by reference the terms and limitations found in N.J.S.A. 40A:14-150 which only applies to municipal officers not subject to civil service. Id. at 61, 238 A.3d 1154. Furthermore, even if special disciplinary arbitration was available to campus police officers, the Appellate Division held that Officer DiGuglielmo was nevertheless ineligible because he was not suspended without pay, which the court found was required by N.J.S.A. 40A:14-209 and -210. Id. at 63, 238 A.3d 1154.¹

Officer DiGuglielmo filed a petition for certification challenging both the Appellate Division's determination that N.J.S.A. 40A:14-150 limits special disciplinary arbitration to non-civil service municipal police and its finding that he would nevertheless be ineligible for that form of arbitration because he was not suspended without pay. We granted Officer DiGuglielmo's petition for certification. 249 N.J. 94 (2021). We also granted the applications of PERC, the Fraternal Order of Police, the Attorney General, and Rutgers, the State University of New Jersey, to participate as amici curiae.

II.

A.

Officer DiGuglielmo argues that the Appellate Division's narrow reading of N.J.S.A. 40A:14-150 distorts the broader statutory scheme of N.J.S.A. 40A:14-200 to -216, which he asserts was intended to give all law enforcement officers the same rights afforded to officers employed by civil service jurisdictions. Officer DiGuglielmo relies on the "all-encompassing" definitions of "law enforcement agency" and "law enforcement officer" in N.J.S.A. 40A:14-200 to support his argument that the Legislature did not intend for special disciplinary arbitration to be limited to municipal officers.

Officer DiGuglielmo further argues that the Appellate Division misread N.J.S.A. 40A:14-209 and -210 when finding that suspension without pay is a prerequisite for special disciplinary arbitration. He insists N.J.S.A. 40A:14-210, upon which he requested special disciplinary arbitration, is a separate and distinct statute from N.J.S.A. 40A:14-209, which requires a suspension without pay.

Amici curiae PERC and the Fraternal Order of Police support Officer DiGuglielmo's position. PERC argues that its determination that Officer DiGuglielmo is eligible for special disciplinary arbitration should be afforded deference. PERC asserts that the definitions under N.J.S.A. 40A:14-200 demonstrate the Legislature's intent to enable non-municipal officers to pursue special disciplinary arbitration. PERC further argues that its determination that Officer DiGuglielmo was eligible for special disciplinary arbitration relied on N.J.S.A. 40A:14-210, which permits terminated, as opposed to suspended,...