Nicoletta v. North Jersey Dist. Water Supply Commission

• Decision Date: 06 July 1978
• Citation: 77 N.J. 145,390 A.2d 90
• Parties: Nicholas NICOLETTA, Plaintiff-Appellant, v. NORTH JERSEY DISTRICT WATER SUPPLY COMMISSION of the State of New Jersey et al., Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 145

77 N.J. 145

390 A.2d 90

Nicholas NICOLETTA, Plaintiff-Appellant, v. NORTH JERSEY DISTRICT WATER SUPPLY COMMISSION of the State

of New Jersey et al., Defendant-Respondent.

Supreme Court of New Jersey.

Argued Nov. 14, 1977.

Decided July 6, 1978.

Michael A. Casale, Nutley, for plaintiff-appellant (Bianchi & Colasanti, Nutley, attorneys; Michael A. Casale, Nutley, of counsel and on the brief)

[390 A.2d 92] Andrew M. Marchese, West Orange, for defendant-respondent (George J. Minish, West Orange, attorney).

The opinion of the court was delivered by

HUGHES, C. J.

We certified this case in order to examine an unpublished Appellate Division holding adverse to the plaintiff-appellant, hereafter "Sergeant Nicoletta" or "Nicoletta." He had been discharged from his employment as a sergeant on the "Wanaque Reservoir Police Force." He challenged the validity of that termination in an action commenced in the Chancery Division. There he alleged that he had been discharged without fair notice and hearing of the charges against him, in violation of his constitutional right to due process. ¹ By way of remedy he sought reinstatement to his position, the award of back pay for the period elapsed since his assertedly unlawful discharge, and such other relief as the court might deem "just and proper."

After hearing on return of an order to show cause, the Chancery Division judge decided that the issue belonged, by The Appellate Division first remanded the matter to such employer, the defendant-respondent North Jersey District Water Supply Commission (hereafter "Commission"), ² to amplify the record by furnishing transcripts of "hearings" and basic findings of fact associated with the discharge of Sergeant Nicoletta. That being done, and the appeal having been argued, the Appellate Division decided that the findings of the Commission "amply support(ed) the result reached, Viz., the termination of * * * employment" and that it saw "no sound reason or justification for disturbing that result." This in deference to the appellate restraint recommended in State v. Johnson, 42 N.J. 146, 162, 199 A.2d 809 (1964).

rule, in the Appellate Division. R. 2:2-3(a)(2). He transferred it thereto for it to review the final decision and action of Nicoletta's employer as a state administrative agency.

It is not suggested by the record here that Sergeant Nicoletta was an employee ousted from a fixed term or was other than an employee at will, unprotected by any statutory tenure, contractual commitment or collective negotiation agreement. Nor did he enjoy Civil Service tenure or other protection. See note 2, Supra. In such circumstances, under the common law, the employer, even though a public employer, has the right to discharge such employee with or without cause. English v. College of Medicine and Dentistry, 73 N.J. 20, 23, 372 A.2d 295 (1977). Sergeant Nicoletta nevertheless While the factual and procedural background is somewhat tangled, with some facts in dispute, it is clear enough, in any aspect, to project sufficient ground for our decision. It was apparent that a violent physical altercation had taken place at police headquarters between Sergeant Nicoletta and a fellow officer, Patrolman Russomanno. Nicoletta minimized his participation throughout, but Russomanno and several other fellow policemen onlookers pictured Nicoletta as the aggressor in three separate physical attacks on Russomanno, from which Nicoletta had to be restrained with force and with some difficulty. Shortly after the headquarters fight, Sergeant Nicoletta received a telegram advising him that he was suspended indefinitely without pay from his position. A few days later he received a letter inviting him to attend a meeting with the Commission to "confer on complaints that (he) did not follow requests of Chief George Destito (of the Wanaque Reservoir Police Force)." He attended this meeting on April 10, 1974, with counsel, as did Russomanno with his counsel, and met with some but not all of the Commission members, as well as the Commission counsel.

insists that the incidents of his dismissal and the very statute empowering it were such as to violate his constitutional rights and entitle him to the relief sought, a contention essentially ignored in the Appellate Division disposition.

At this meeting the initial subject of interrogation by Commission counsel of Nicoletta and Russomanno had to do with the fight between them. Their accounts differed widely in details unnecessary to discuss here. Nicoletta (as was Russomanno) was afforded full opportunity, with the guidance of counsel, to present his version of the altercation. The inquiry then broadened to other alleged misdeeds and activities of Nicoletta such as his previous improper use of firearms, his filing of a belated and allegedly false report in derogation of Russomanno (involving an unconnected incident) and questions concerning the references he had listed in his original employment application. Here again None of these subjects, however, including the fight, had been identified in the letter (notice) which had summoned Sergeant Nicoletta to the conference. The record bespeaks the broad scope of inquiry, at the initial conference and at a later "hearing," leading to the Commission's final action.

there was no restriction on Nicoletta's explanation, with advice of counsel, of his position on such matters.

The Commission's findings of fact were:

1. That on March 19, 1974 Sgt. Nicoletta without provocation initiated a violent altercation with Ptl. Russomanno in the presence of other members of the constabulary.

2. (T)hat Sgt. Nicoletta attempted to persuade Ptl. Saum not to report the assault upon Russomanno to higher authorities, in violation of his duties as a police officer.

3. That Sgt. Nicoletta deliberately withheld for two months a report of an alleged criminal episode, but entered a report attributing culpability to Ptl. Russomanno following the altercation, in an effort to discredit Russomanno without regard to his duties as a police officer.

4. That Sgt. Nicoletta engaged in conduct wholly inconsistent with his position and duties in the constabulary in that he had on several occasions engaged in repeated episodes of violent tempermental (Sic ) outbursts directed to other members of the force.

5. That Sgt. Nicoletta was incapable of maintaining discipline and morale among his subordinate officers due to his own behavior, including the abuse of brother officers.

The Resolution of May 9, 1974, dismissing Nicoletta read:

WHEREAS, the Commission has conducted extensive examination into the subject of the qualifications of Nicholas Nicoletta to meet the requirements for employment as a Patrolman on the Police force of the N.J.D.W.S.C., including an examination of his conduct as a police officer and re-examination of his pre-employment qualifications, extensive hearings with regard to various acts and conduct and it appearing that there has been good cause shown, it is

RESOLVED, that the employment of Nicholas Nicoletta be terminated as of March 27, 1974.

About a week after the first "hearing" some members of the Commission had another meeting ("hearing"), of which Sergeant Nicoletta was not specifically advised and which * * * We expect to ask each of the people that were present in the headquarters or wherever this incident occurred to come and make a statement with regard to these incidences (Sic ), as well as the incidents involving the shotgun thing. Is there anyone else that you think this Commission should ask to appear here in order to fully explore all of the facts?

he did not, of course, attend. However, he and counsel had been advised on April 10 that the Commission would be pursuing its investigation by interviewing other witnesses. He was invited by counsel for the Commission to suggest anyone else having knowledge of the facts, as follows:

No request was made by Nicoletta or his counsel to be present at such interrogation. At that meeting, which occurred on April 16, Chief Destito and six other police officers gave their version of circumstances associated with the fight, and expressed other views as to Nicoletta's stability as a police officer. Shortly thereafter the Commission adopted its Resolution terminating Sergeant Nicoletta's employment.

The Commission minutes of May 9, 1974, disclose a further invitation to counsel to Nicoletta (who appeared with him at this final Commission meeting on the subject) to add any "material which he felt would be useful to the consideration of (the) matter." At that final confrontation, a voluntary resignation of Nicoletta was offered and tentatively accepted by the Commission but was later, on the same day, withdrawn by Nicoletta. The Commission minutes disclose:

Counsel Teltser further informed (the Commission) that Mr. Hickey (Nicoletta's counsel) requested the Commission to accept the resignation of Mr. Nicoletta to save him the embarrassment of a judgment which could be adverse. Counsel Teltser responded that based on his understanding, he predicted the Commission would accept Mr. Nicoletta's resignation, and the Commission would not be inclined to penalize Mr. Nicoletta any more than would naturally occur by merely following the requirements of the Commission to follow normal procedure. * * *

Counsel Teltser stated after approval of the Commission for Mr. Nicoletta to present his letter of resignation, Mr. Hickey, in the

presence of Mr. Nicoletta, informed counsel Teltser they would prepare and return to the Commission within one hour a letter of resignation compatible with the Commission's discussion. Counsel Teltser received a phone call from Mr. Hickey within the hour informing that Mr. Nicoletta had changed his mind and would not submit his resignation nor appear again at the Commission.

I. WAS SERGEANT NICOLETTA ENTITLED TO A HEARING?

We shall pass various procedural and other questions involved below, in order to...