Opinion
DOCKET NO. A-2950-13T3
04-22-2015
HARRISON TOWNSHIP FIRE DISTRICT, Plaintiff-Respondent/Cross-Appellant, v. WILLIAM S. BARNETT, Defendant-Appellant/Cross-Respondent.
Mark Cimino argued the cause for appellant/cross-respondent. Eric J. Riso argued the cause for respondent/cross-appellant (Platt & Riso, P.C., attorneys; Mr. Riso, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, Guadagno, and Leone. On appeal from the Superior Court of New Jersey, Chancery Division, Gloucester County, Docket No. C-29-13. Mark Cimino argued the cause for appellant/cross-respondent. Eric J. Riso argued the cause for respondent/cross-appellant (Platt & Riso, P.C., attorneys; Mr. Riso, on the brief). PER CURIAM
William S. Barnett was employed by the Harrison Township Fire District (HFD) as a paid part-time firefighter. On February 28, 2013, while off-duty, Barnett was leaving the parking lot of the Telford Inn when he hit a curb, causing him to lose control of his vehicle. He proceeded onto the grass in front of the Telford Inn before striking a utility pole. He attempted to continue onto Bridgeton Pike but the vehicle became disabled.
Police responded and determined that Barnett was under the influence of alcohol. He was arrested and charged with driving while intoxicated (DWI), N.J.S.A. 39:4-50. On May 2, 2013, Barnett pled guilty to DWI in municipal court and his driver's license was suspended for ninety days.
As a condition of employment, HFD requires its employees to hold a valid driver's license. A disciplinary hearing was scheduled for May 31, 2013, to determine what sanctions would be imposed as a result of Barnett's DWI conviction. One week before the hearing was scheduled, HFD filed an order to show cause seeking to stay the disciplinary hearing. HFD also sought declaratory relief determining that Barnett, as an "at will" employee, was not entitled to notice or a hearing with respect to any disciplinary action HFD might take against him.
The Law Division judge denied the motion for a stay, finding that the only harm HFD would suffer if the hearing went forward were monetary damages, and that HFD had failed to show that the law was settled or that there was a likelihood of success on the merits. The judge found that Barnett was entitled to procedural due process, because his employment
isn't employment subject to a term. . . . This is a position that Mr. Barnett took expecting that he would be continued in that employment, but for the fact that he was, perhaps, unwise in his conduct on a particular day, that job now appears to be in jeopardy.
[H]e then, at least, has that reasonable expectation of continued employment that now gives him an opportunity to be able to now speak to the discipline that gets imposed against him.
The disciplinary hearing went forward on May 31, 2013. At the hearing, Barnett conceded that he had pled guilty to DWI and his license was suspended for ninety days. Hearing Officer Todd J. Gelfand, Esquire, found that HFD has the "lawful authority and discretion to set forth and enforce job requirements for its personnel in a rational, non-discriminatory way . . . [and] has done so by imposing a requirement of valid driving privileges." Gelfand recommended that Barnett be suspended for however long his license was suspended (ninety days or longer) on the ground of an inability to perform his duties.
HFD had also filed a second charge against Barnett of conduct unbecoming a public officer. Gelfand found that HFD had failed to provide sufficient notice to Barnett of the additional disciplinary charge and recommended that Barnett be disciplined only on the basis of the "inability to perform duties" charge. He made no recommendation as to "misconduct or any other type of 'fault-based' charge or charges." The Board of Fire Commissioners of Harrison Township adopted Gelfand's recommendation by resolution on August 15, 2013.
HFD then charged Barnett again with conduct unbecoming, and sought his termination. Gelfand conducted a second disciplinary hearing on July 17, 2013. Relying on municipal firefighter statutes, N.J.S.A. 40A:14-19 and 14-28.1, Gelfand concluded that HFD was within its discretion to determine how seriously it wanted to punish Barnett for his off-duty misconduct. Gelfand recommended that Barnett's removal from HFD be sustained. The Board of Fire Commissioners adopted Gelfand's second recommendation on August 15, 2013.
At oral argument on this appeal, we learned that in 2013, Barnett filed a separate complaint in lieu of prerogative writs against HFD in the Chancery Division, under Docket No. C-38-13. We accordingly directed counsel to file revised appellate Case Information Statements (CIS), disclosing the nature and status of that separate and obviously related lawsuit. According to the CIS forms, Barnett seeks judicial review of the discipline imposed upon him pursuant to N.J.S.A. 40A:14-22, as well as damages under the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8 in the related action. The Chancery Division transferred that second lawsuit to the Law Division in an order dated September 30, 2013, reassigning the case a new docket number, L-1374-13. Counsel represented to us that L-1374-13 has been dormant in the trial court, pending the outcome of the present appeal. We use this occasion to remind counsel of the importance of disclosing all related pending proceedings to this court when they file their CIS forms. Had there not been oral argument in this appeal of the declaratory action, we would have been unaware of the pendency of the open related case in the Law Division.
The parties returned to the Law Division on October 25, 2013, for argument on whether HFD was required to afford Barnett a hearing prior to imposing discipline. We have not been provided with a transcript for this hearing. As Barnett had already been provided with notice and a hearing at the time of oral argument, we are left to surmise that neither party raised the issue of mootness before the judge.
On January 30, 2014, the judge placed an extensive oral decision on the record comprising fifty pages of transcript. The judge supplemented the decision with a two-page written summary dated January 31, 2014.
The judge found that Barnett was entitled to notice and a hearing but was an at-will employee. The judge noted that although N.J.S.A. 40A:14-17 created a presumption of continued employment for municipal firefighters, there was no corresponding provision in the fire district statutes. As such, the judge found that the notice and hearing protections afforded by N.J.S.A. 40A:14-19 likewise applied only to municipal, but not fire district, employees.
The judge determined that N.J.S.A. 40A:14-28.1 explicitly mentions fire district employees to the extent that they may violate internal rules and regulations. As such, that provision "control[led] this case and obligated [HFD] to provide a timely complaint" notifying Barnett of the charges against him because Barnett was charged with violating HFD's internal rules and regulations. Implicit in that obligation was Barnett's "right to respond, which by other nomenclature, is 'a hearing.'" The judge was careful to clarify that no notice or hearing would be required to discipline an HFD employee charged with misconduct other than violating internal rules and regulations. Indeed, in its order of January 30, 2014, the court stated:
The court denies the request to declare a broader ruling as to "all employees" and as to "all charges" or "all forms of discipline" or other since that would involve facts and circumstances not before this court and which are therefore not justiciable, and further because the reasoning of the court would not extend necessarily to all employees, all charges or all forms of discipline/adverse employment action.
On appeal, Barnett raises the following points:
POINT I
"PAID OR PART PAID FIRE DEPARTMENT AND FORCE" INCLUDES THOSE DEPARTMENTS AND FORCES WHICH ARE UNDER DIRECT MUNICIPAL CONTROL AS WELL AS FIRE DISTRICTS.
A. FIRE DEPARTMENTS AND FORCES EXIST IN FIRE DISTRICTS.
B. THE LEGISLATURE UNDERSTANDS "FIRE DEPARTMENTS OR FORCES" ARE PART OF FIRE DISTRICTS.
C. MUNICIPALITIES EXERCISE DIRECT CONTROL OVER FIRE DISTRICTS AND INDIRECT CONTROL OF THE "FIRE DEPARTMENTS AND FORCES" CONTAINED THEREIN.
D. THIS COURT HAS PREVIOUSLY APPLIED THE STATUTORY EMPLOYMENT PROTECTIONS TO FIRE DEPARTMENTS AND FORCES IN A FIRE DISTRICT.
E. IDENTICAL LANGUAGE APPLYING TO DIRECT MUNICIPAL "FIRE DEPARTMENTS AND FORCES" AS WELL AS FIRE DISTRICT DEPARTMENTS DEMONSTRATES THIS LANGUAGE DOES NOT ABROGATE THE RIGHTS OF FIRE DISTRICT FIREFIGHTERS.
POINT II
BY ONLY GIVING EFFECT TO ONE PART OF A UNIFIED STATUTORY SCHEME, THE COURT BELOW CREATED AN INCONGRUOUS RESULT WHICH RESULTED IN AN EMPLOYEE WITH DUE PROCESS RIGHTS BEING CONSIDERED AT-WILL.
On its cross-appeal, HFD raises the following points:
POINT I
THE TRIAL COURT ERRED WHEN IT DENIED PLAINTIFF'S REQUEST FOR A STAY.
A. STANDARD OF REVIEW
B. A STAY OF THE DISCIPLINARY HEARING WAS NECESSARY IN ORDER TO PRESERVE THE STATUS QUO UNTIL SUCH
TIME AS THE TRIAL COURT RULED ON WHETHER A HEARING WAS REQUIRED.
POINT II
THE TRIAL COURT ERRED WHEN IT DETERMINED THAT DEFENDANT WAS ENTITLED TO A HEARING WITH RESPECT TO HIS 90-DAY SUSPENSION.
A. STANDARD OF REVIEW
B. AS AN AT-WILL EMPLOYEE, DEFENDANT HAS NO RIGHT TO A DISCIPLINARY HEARING.
HFD filed this action pursuant to the Declaratory Judgment Act, N.J.S.A. 2A:16-50 to -62 (DJA), seeking "judicial declaration regarding the rights and obligations of [HFD] when it comes to disciplining employees." N.J.S.A. 2A:16-53 permits a "person" whose "legal relations are affected by a statute" to "obtain a declaration of rights, status, or other legal relations thereunder." Specifically, HFD sought a declaration that N.J.S.A. 40A:14-19 and -28.1 did not apply to Barnett and that HFD was not required to provide Barnett with notice and a hearing before disciplining him.
To maintain a DJA action, there must be a justiciable controversy between adverse parties, and the plaintiff must have an interest in the suit. U.S. and N.J. Chambers of Commerce v. State, 89 N.J. 131, 140 (1982). The DJA "cannot be used to decide or declare [the] rights or status of parties upon a state of facts which are future, contingent or uncertain." Ibid. (quoting Lucky Calendar Co. v. Cohen, 20 N.J. 451, 454 (1956)).
Likewise, remedies provided under the DJA may "not be invoked in the absence of an actual controversy." Miller v. Twp. of Wayne, 154 N.J. Super. 247, 250 (Law Div. 1977). "[L]awmakers in passing the [DJA] did not intend that a court should enter into a speculative inquiry for the purpose of upholding or condemning statutory provisions, the effect of which, in concrete situations not yet developed, could not be definitely perceived." Donadio v. Cunningham, 58 N.J. 309, 325 (1971) (internal quotation marks omitted). "[R]elief by way of a declaratory judgment should be withheld when the request is in effect an attempt to have the court adjudicate in advance the validity of a possible defense in some expected future law suit." Ibid.
When this action was filed, an actual controversy existed as to whether HFD was required to provide Barnett with a hearing to discipline him. The decision of the Law Division to deny HFD's motion for a stay of Barnett's disciplinary hearing rendered this issue moot. Barnett now has been provided with two disciplinary hearings; first, prior to his ninety-day suspension on May 31, 2013, and then prior to his termination on July 17, 2013.
A case is moot when the issue which was the subject of the litigation has been resolved, at least as it relates to the original parties who were responsible for initiating the litigation. De Vesa v. Dorsey, 134 N.J. 420, 428 (1993). Generally, we will not entertain a case when the issue has become moot. Ibid. An exception to this rule is "matters . . . [which] are of substantial importance and are capable of repetition, yet evade review." Mistrick v. Div. of Med. Assist. & Health Servs., 154 N.J. 158, 165 (1998); see also Finkel v. Twp. Comm. of Twp. of Hopewell, 434 N.J. Super. 453, 459 (App. Div. 2013) (even though the election giving rise to the controversy was concluded, the interpretation of the election law was of "significant public importance").
Conceding the mootness of the issue now before us raised in this specific appeal, both parties urge that we should nevertheless decide this case because it presents issues of "significant public importance," which are capable of repetition yet evade review.
We note that the Law Division judge expressly limited his holding that Barnett was entitled to hearings on the two disciplinary matters to the facts of this case. The judge noted that his reasoning would not apply to other factual situations arising under the relevant statutes.
Both parties argue that N.J.S.A. 40A:14-28.1's express inclusion of fire districts, and absence of mention of fire districts in N.J.S.A. 40A:14-19 (Section 14-19), creates an issue that should be resolved. We note that there are widely disparate factual situations under which N.J.S.A. 40A:14-19 may be implicated. Krause v. Cherry Hill Fire Dist. 13, 969 F. Supp. 270, 282 (D.N.J. 1997) (Section 14-19 implicitly applicable to "fire district," but plaintiffs failed to allege facts showing its violation); Capua v. Plainfield, 643 F. Supp. 1507, 1521-22 (D.N.J. 1986) (Section 14-19 applicable to "municipal fire department," regardless of existing collective bargaining agreement); Horsnall v. Washington Twp. Div. of Fire, 405 N.J. Super. 304, 317 (App. Div. 2009) (Section 14-19 applicable to "fire division" employees of dissolved "fire district"); Oughton v. Bd. of Fire Comm'rs, Fire Dist. No. 1, Moorestown Twp., 168 N.J. Super. 434, 451 (Law Div. 1979) (Section 14-19 applicable to all "paid fire departments" in municipalities and fire districts, but not volunteer companies), reconsidered on remand, 178 N.J. Super. 633 (Law Div. 1980), aff'd, 178 N.J. Super. 565 (App. Div.), certif. denied, 87 N.J. 367 (1981).
Although the issue here is capable of repetition, we are satisfied that it has not in the past nor will it in the future be likely to evade review.
The separate litigation in L-1374-13 may proceed. The parties are free in that other case to raise any germane issues, including their mutual contention that the trial court's legal analysis of Barnett's employment status is vague or internally inconsistent. Since we are dismissing the present appeal as moot, nothing in this opinion prevents the trial court from revisiting or clarifying any of the legal determinations it has made to date.
Appeal dismissed as moot. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION