In re Gauthier

• Court: New Jersey Superior Court — Appellate Division
• Writing for the Court: ALVAREZ, P.J.A.D.
• Citation: In re Gauthier, 461 N.J.Super. 507, 222 A.3d 707 (N.J. Super. App. Div. 2019)
• Decision Date: 27 November 2019
• Docket Number: DOCKET NO. A-4015-17T4
• Parties: In the MATTER OF Clifton GAUTHIER, Rockaway Township.

461 N.J.Super. 507

222 A.3d 707

In the MATTER OF Clifton GAUTHIER, Rockaway Township.

DOCKET NO. A-4015-17T4

Superior Court of New Jersey, Appellate Division.

Submitted October 3, 2019

Decided November 27, 2019

Caruso Smith Picini PC, attorneys for appellant Clifton Gauthier (Timothy Richard Smith, Fairfield, of counsel; Sara B. Liebman, Elizabeth, on the briefs).

Laddey Clark & Ryan, LLP, attorneys for respondent Rockaway Township (Thomas N. Ryan, Sparta, and Jessica A. Jansyn, on the brief).

Gurbir S. Grewal, Attorney General, attorney for respondent Civil Service Commission (Donna Sue Arons, Trenton, Assistant Attorney General, of counsel; Steven Michael Gleeson, Deputy Attorney General, on the statement in lieu of brief).

Before Judges Alvarez, Nugent and DeAlmeida.

The opinion of the court was delivered by

ALVAREZ, P.J.A.D.

The Civil Service Commission (Commission), in an April 2, 2018 final agency decision, denied Clifton Gauthier, a Rockaway Township police officer, back pay for the years he was suspended while criminal charges were pending against him. After indictment, Gauthier successfully completed the pretrial intervention program (PTI), N.J.S.A. 2C:43-12 to -22. He was thereafter reinstated, and the Township paid his wages from the PTI completion date on January 27, 2017, to the date of reinstatement on March 8, 2017. We affirm the Commission's decision.

Gauthier was suspended January 14, 2014, when his employer instituted disciplinary proceedings against him. According to the Morris County Prosecutor, the conduct that triggered the suspension and subsequent indictment¹ was Gauthier's attempts at "interfer[ing] with the prosecution of a family member, who was being prosecuted for driving while intoxicated ...."

The Commission interpreted N.J.A.C. 4A:2-2.10(b) "in conjunction with" N.J.S.A. 40A:14-149.2 to mean that a police officer is only entitled to back pay when he or she obtains a favorable disposition of criminal charges. The Commission's analysis was premised on the common law principle that a public employee should not be compensated for time he or she did not work. Furthermore, since N.J.S.A. 40A:14-149.2 "was a statute that altered a common law rule, it was to be strictly construed." Additionally, the Commission relied on the fact PTI is not statutorily defined as a favorable termination of criminal charges. In other contexts, PTI has not been treated as a favorable disposition, unlike dismissals, acquittals, or the termination of prosecution.

Now on appeal, Gauthier contends in a single point:

THE CIVIL SERVICE COMMISSION IMPROPERLY IGNORED THE PLAIN LANGUAGE OF THE STATUTE AND THUS ERRED IN DENYING MR. GAUTHIER'S REQUEST FOR BACK PAY FOR THE TIME PERIOD FROM THE DATE OF HIS SUSPENSION WITHOUT PAY [TO] THE DATE THE INDICTMENT WAS DISMISSED.

We are not bound by the Commission's interpretation of the statute, as the question is purely a legal issue. See Zimmerman v. Sussex Cty. Educ. Servs. Comm'n, 237 N.J. 465, 475, 206 A.3d 365 (2019) (citing Ardan v. Bd. of Review, 231 N.J. 589, 604, 177 A.3d 768 (2018) ).

I.

It is well-established that at common law, a "public officer who renders no service is not entitled to prevail in an action seeking compensation." De Marco v. Bd. of Chosen Freeholders of Bergen Cty., 21 N.J. 136, 143, 121 A.2d 396 (1956). A public officer's right to a salary is dependent on the performance of the duties of the office. Id. at 141, 121 A.2d 396. The term "public officer" includes police. In De Marco, the Court assumed that regardless of the common law principle, "the Legislature could in clear and direct terms constitutionally allow compensation to all law enforcement officers (state, county and municipal) who are suspended pending trial on an indictment for misconduct in office and are later acquitted or otherwise vindicated." Id. at 143, 121 A.2d 396. N.J.S.A. 40A:14-149.2 is such a departure from the common law rule. See Kelty v. State, Dep't of Law & Pub. Safety, Div. of State Police, 321 N.J. Super. 84, 91, 728 A.2d 273 (App. Div. 1999). It reads:

If a suspended police officer is found not guilty at trial, the charges are dismissed or the prosecution is terminated, said officer shall be reinstated to his position and shall be entitled to recover all pay withheld during the period of suspension subject to any disciplinary proceedings or administrative action.

[ N.J.S.A. 40A:14-149.2.]

When a statute "impose[s] a duty or ... establish[es] a right which was not recognized by the common law [it] will be strictly interpreted to avoid such change." Fivehouse v. Passaic Valley Water Comm'n, 127 N.J. Super. 451, 456, 317 A.2d 755 (App. Div. 1974) (emphasis added) (citing Carlo v. Okonite-Callender Cable Co., 3 N.J. 253, 265, 69 A.2d 734 (1949) ). N.J.S.A. 40A:14-149.2 appears to track De Marco's prescient comment that the Legislature "could" abandon the common law rule and award back pay to a public official when that official is acquitted or "otherwise vindicated." 21 N.J. at 143, 121 A.2d 396.

Gauthier urges us to interpret N.J.S.A. 40A:14-149.2 expansively, even though it changed the common law principle of "no work, no pay" and preceded the PTI statute by years. In other words, at the time the statute was enacted, PTI did not exist and therefore could not have been included within the statute's scope. If the Legislature wanted to include PTI as vindication enabling an officer to collect back pay, it could have readily amended the statute. We will not construe the law more broadly than indicated by its plain language. And the plain language at the time the law was enacted in 1973 did not include PTI, a diversionary program adopted in 1990.

II.

In support of his position, Gauthier also relies on N.J.A.C. 4A:2-2.10(c)(1) :

Where an employee, other than a municipal police officer, has been suspended based on a pending criminal complaint or indictment, following disposition of the charges the employee shall receive back pay, benefits and seniority if the employee is found not guilty at trial, the complaint or indictment is dismissed, or the prosecution is terminated.

1. Such items shall not be awarded when the complaint or indictment is disposed of through Conditional Discharge, N.J.S.A. 2C:36A-1, or Pre-Trial Intervention (PTI), N.J.S.A. 2C:43-12.

By weaving together the language from the Administrative Code section and N.J.S.A. 40A:14-149.2, Gauthier claims PTI is not a barrier to collection of his back pay.

Section 4A:2-2.10, however, was adopted in direct response to our decision in DelRossi v. Department of Human Services, 256 N.J. Super. 286, 606 A.2d 1128 (App. Div. 1992). See 24 N.J.R. 2491 (July 20, 1992). In DelRossi, a police officer employed with the Department of Human Services was suspended without pay after he was charged with criminal offenses. 256 N.J. Super. at 288, 606 A.2d 1128. He enrolled in PTI and, after successfully completing the program, the indictment was dismissed and he was reinstated. Ibid. Before the Merit System Board (the Board), DelRossi successfully contended that he was entitled to back pay from the time of his suspension. Ibid.

We held that when a state employee's criminal charges resolve by way of PTI, it is up to the Board to "determine whether back pay is appropriate and, if so, the conditions under which it will be awarded." Id. at 293, 606 A.2d 1128. Nonetheless, we also held that the authority to make such determinations "must be expressed in a properly adopted rule." Id. at 294, 606 A.2d 1128. Since no such rule existed at the time DelRossi pursued his claim, we reversed the Board's award of back pay. Ibid.

"Accordingly, the Board propose[d] an amendment [to Section 4A:2-2.10 ] providing for back pay in cases of suspension pending criminal charges where the employee is acquitted after trial, the charges are dismissed or the prosecution is terminated. Back pay would not be awarded where the charges are disposed of through pretrial intervention (PTI) or conditional discharge." 24 N.J.R. 2491 (July 20, 1992). The Board noted that the amendment would also provide "that back pay for municipal police officers in these situations is determined in accordance with N.J.S.A. 40A:14-149.1 et seq." Ibid.

In fact, the regulation cited by Gauthier explicitly states in a different subsection that "[w]here a municipal police officer has been suspended based on a pending criminal complaint or indictment, following disposition of the charges, the officer shall receive back pay, benefits, and seniority pursuant to N.J.S.A. 40A:14-149.1 et seq." N.J.A.C. 4A:2-2.10(b). Thus, subsection (c) does not apply to Gauthier because he is a municipal police officer. We look instead to subsection (b) and N.J.S.A. 40A:14-149.2 for guidance, as the Board and the Legislature intended. Gauthier's reliance on N.J.A.C. 4A:2-2.10(c) is misplaced.

III.

Gauthier also contends that the Commission erred in relying upon an unpublished decision, Grill v. City of Newark Police Department, No. A-6224-98 (App. Div. Jan. 30, 2001), in concluding that a favorable disposition of criminal charges was necessary in order for a municipal police officer to be entitled to back pay. The Commission did rely on the Grill analysis, but expressly acknowledged the case was not binding precedent: "rule [1:36-3] does not preclude the [Commission] from considering the persuasiveness of the [ ] reasoning...."

Gauthier contends the Commission's reliance on Grill is fatally flawed because the Grill panel anchored its decision on incorrect interpretations of Cressinger v. Board of Education of City of Newark, 256 N.J. Super. 155, 606 A.2d 849 (App. Div. 1992), and Thomas v. New Jersey Institute of Technology, 178 N.J. Super. 60, 427 A.2d 1142 (Law Div. 1981). Gauthier argues that since Cressinger was a supervisor of custodians who successfully completed PTI, and Thomas was a private citizen seeking damages under a theory of malicious prosecution after having been charged with embezzlement and completed...