In re DiGuglielmo

• Decision Date: 15 October 2020
• Docket Number: DOCKET NO. A-3772-19T2
• Citation: 238 A.3d 1154,465 N.J.Super. 42
• Parties: In the MATTER OF Officer Gregory DIGUGLIELMO and New Jersey Institute of Technology.
• Court: New Jersey Superior Court — Appellate Division

465 N.J.Super. 42

238 A.3d 1154

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

DOCKET NO. A-3772-19T2

Superior Court of New Jersey, Appellate Division.

Argued September 29, 2020

Decided October 15, 2020

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

Amie E. Dicola argued the cause for respondent Officer Gregory DiGuglielmo (Fusco & Macaluso Partners, LLC, attorneys; Amie E. Dicola, of counsel and on the briefs).

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

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

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

Christopher J. Hamner, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Jane C. Schuster, Assistant Attorney General, of counsel; Achchana Ranasinghe, Deputy Attorney General, on the brief).

Before Judges Sabatino, Gooden Brown and DeAlmeida.

The opinion of the court was delivered by

SABATINO, P.J.A.D.

This case presents the unsettled legal question of whether a campus police officer who has been terminated by a State university or college because of alleged non-criminal misconduct may challenge his termination through what is known as "special disciplinary arbitration" administered by the Public Employment Relations Commission ("PERC" or "the Commission"), pursuant to N.J.S.A. 40A:14-209 and -210.

The officer's employer, the New Jersey Institute of Technology ("NJIT") contends he is not eligible for such special disciplinary arbitration under the pertinent statutes for several reasons. Principally, NJIT argues the officer is ineligible because he worked for an institution of higher education rather than a municipal police department. NJIT further contends such arbitration is not available because the officer has not been suspended without pay. In addition, NJIT argues the officer allegedly waived any rights he had to special disciplinary arbitration because he did not follow procedures in the collective negotiations agreement ("CNA") between NJIT and his labor union.

The Commission rejected NJIT's arguments. It held, consistent with its administrative rulings in other cases involving campus police officers and its regulations, that the officer was entitled to special arbitration as a matter of law. Among other things, the Commission determined that the NJIT police force is a "law enforcement agency" within the meaning of N.J.S.A. 40A:14-200, and that its officers who have been terminated for non-criminal conduct may elect under N.J.S.A. 40A:14-209 and -210 to have the Commission appoint a special arbitrator to conduct a hearing and evaluate whether the officer's discharge is justified. The Commission found that university police officers are not excluded from the special arbitration program because they work for an institution of higher education. The Commission rejected other arguments presented by NJIT, and this interlocutory appeal ensued.

For the reasons that follow, we affirm the Commission's determination that the NJIT police force is a "law enforcement agency" within the meaning of N.J.S.A. 40A:14-200. However, we conclude the NJIT officers are not eligible for special disciplinary arbitration because that option is restricted by N.J.S.A. 40A:14-150 to officers who work for municipal police departments in jurisdictions that are not part of the civil service system. In addition, even if that statutory restriction under N.J.S.A. 40A:14-150 did not pertain, the officer in this case is ineligible because he has not been suspended without pay, as required by N.J.S.A. 40A:14-209 and -210. That said, we reject NJIT's waiver argument because N.J.S.A. 40A:14-210(b) confers a statutory right upon eligible officers to file a special disciplinary arbitration request with the Commission, as was done here, within twenty days of receiving notice of their termination.

I.

A.

The NJIT Police Force

Before his discharge, co-respondent Gregory DiGuglielmo was a police officer employed by the NJIT Department of Public Safety. According to its 2019 Annual Campus Security Report ("Annual Report") posted on its website, as of 2019, the Department had eighty-two members, consisting of a Chief of Police, a Deputy Chief, three Lieutenants, ten Sergeants, twenty-four police officers, thirty-eight security officers, and administrative support staff. See N.J. Inst. Tech., Annual Campus Security Report and Annual Fire Safety Report (2019).¹ All of the NJIT police officers "have graduated from an accredited police academy and are certified as police officers by the New Jersey Police Training Commission." Id. at 4. "They possess full police powers including the power of arrest." Ibid.

Pursuant to their statutory authority, NJIT police officers "have complete police authority to apprehend and arrest anyone involved in illegal acts on-campus and in reasonably contiguous areas surrounding the campus." Id. at 5; see also N.J.S.A. 18A:6-4.5 (declaring that every police officer appointed by an institution of higher education in this State "shall possess all the powers of policemen and constables in criminal cases and offenses against the law anywhere in the State of New Jersey, pursuant to any limitations as may be imposed by the governing body of the institution which appointed and commissioned the person").

As declared in NJIT's Annual Report, their officers "provide[ ] police protection to the campus and adjacent streets 24 hours a day/365 days a year." Id. at 4. The Department undertakes this mission "through the around-the-clock efforts of dedicated law enforcement professionals who create a highly visible police and public safety presence" in collaboration with "key stakeholders throughout the university." Ibid. The NJIT police officers "work closely with local, state, and federal police agencies and have direct communication with the Newark Police, Rutgers University-Newark Police, Essex County College Police, and the NJ Transit Police Departments." Id. at 5.

Officer DiGuglielmo was hired internally by NJIT to serve as a campus police officer. Since at least 1970, "any institution of higher education, academy, school or other institution of learning [in New Jersey] may appoint such persons as the governing body may designate to act as policemen [police officers] for the institution." N.J.S.A. 18A:6-4.2. Generally, the police chief of the municipality in which the educational institution is located must investigate and approve the background and suitability of applicants for campus police officer positions. N.J.S.A. 18A:6-4.3. However, Title 18A provides an exception to that external review process by the local police chief, specifying that "a college or university with an established police agency may conduct the complete investigation of an applicant's criminal history, character, competency, integrity and fitness." N.J.S.A. 18A:6-4.3a (emphasis added). As represented by its counsel at oral argument, NJIT has taken advantage of that alternative hiring process and used it to hire Officer DiGuglielmo. Ibid.

NJIT's Powers and Governmental Functions

NJIT has been created by the Legislature as a "public research university." N.J.S.A. 18A:64E-13. The university encompasses numerous units, including the Newark College of Engineering, the New Jersey School of Architecture, the College of Science and Liberal Arts, the School of Industrial Management, and various extension and cooperative education programs. Ibid.

As will soon become pertinent to our analysis, NJIT has been legislatively declared to be a "body corporate and politic." N.J.S.A. 18A:64E-14. The powers conferred upon NJIT by its enabling statute are "deemed to be public and essential governmental functions necessary for the welfare of the State and the people of New Jersey." Ibid. (emphasis added).

NJIT is headed by a Board of Trustees, which oversees the "conduct, control, management and administration of the university." N.J.S.A. 18A:64E-18. The Board's wide powers include the authority to "appoint, remove, promote, and transfer" the employees of NJIT, prescribe qualifications for their positions, and determine their salaries and compensation. N.J.S.A. 18A:64E-18(h). The Board is also authorized to enter into collective bargaining agreements. Ibid. Subject to dispute resolution proceedings called for under CNAs or as provided by university policy, "and further subject to and limited by any law to the contrary," the NJIT Board has "final authority to determine controversies and disputes concerning tenure, personnel matters and other issues involving the university arising under Title 18A." N.J.S.A. 18A:64E-18(i) (emphasis added).

In sum, the NJIT Board has broad powers over its educational functions and workforce, but those powers are "subject to and limited by" any laws that may curtail or override that authority. Ibid. Such overarching laws manifestly include — as will become apparent in our analysis, infra — statutes that govern or regulate how police officers employed by various governmental bodies may be hired, trained, disciplined, or terminated.

The Underlying Factual Context

The underlying factual contentions that led to this jurisdictional dispute have little bearing upon the pure legal issues that confront us. We briefly summarize those factual contentions, recognizing that no arbitration or other...