IN THE MATTER OF OFFICER GREGORY DIGUGLIELMO AND NEW JERSEY…

             NOT FOR PUBLICATION WITHOUT THE
            APPROVAL OF THE APPELLATE DIVISION

                                 SUPERIOR COURT OF NEW JERSEY
                                 APPELLATE DIVISION
                                 DOCKET NO. A-3772-19T2

IN THE MATTER OF
OFFICER GREGORY                     APPROVED FOR PUBLICATION
DIGUGLIELMO AND                            October 15, 2020
NEW JERSEY INSTITUTE                    APPELLATE DIVISION
OF TECHNOLOGY.
_______________________

         Argued September 29, 2020 – Decided October 15, 2020

         Before Judges      Sabatino,   Gooden      Brown     and
         DeAlmeida.

         On appeal from an interlocutory order of the New
         Jersey Public Employment Relations Commission,
         P.E.R.C. No. 2020-004.

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

      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

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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.




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      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,


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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").



1
   We take judicial notice of NJIT's description of its police force set forth in
this published report, pursuant to N.J.R.E. 201 and 202.
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                                         5
      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


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                                        6
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


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                                       7
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

fact-finding proceeding has yet occurred.


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                                          8
      Officer DiGuglielmo was issued a Notice of Termination for his conduct

that allegedly occurred during a pursuit of a juvenile bicyclist on August 26,

2019. According to NJIT, DiGuglielmo was engaged in a hot pursuit after the

juvenile was suspected of "Title 39" (i.e., motor vehicle and traffic) violations.

DiGuglielmo was training a probationary officer on the night of the chase.

      NJIT contends that DiGuglielmo instructed the trainee to "drive against

traffic on a one-way street, cross an intersection from an unlawful direction,"

and also "failed to ensure [the police vehicle’s] overhead warning lights were

activated."

      DiGuglielmo confirmed at his internal affairs interview that he had yelled

profanity at the fleeing youth, which apparently can be heard on a video

recording taken by an unidentified observer. The officer tackled the juvenile

and restrained him, using mechanical restraints. The juvenile required medical

attention as a result of this allegedly unauthorized use of force.

      The Investigation and Charges

      NJIT suspended Officer DiGuglielmo with pay on August 27, 2019 and

notified him that he was the subject of an internal affairs investigation for his

alleged misconduct.




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                                        9
      NJIT referred the matter to the Essex County Prosecutor’s Office to

determine if criminal charges arising from the alleged use of excessive force

should be issued against Officer DiGuglielmo.               In October 2019, the

Prosecutor's Office advised NJIT that "there [was] insufficient credible evidence

to warrant a criminal prosecution" of the matter.           The Prosecutor did not

conclude, however, that there was "insufficient evidence to sustain

administrative charges."

      On November 15, 2019, Officer DiGuglielmo was served with a

Disposition Letter and Notice of Disciplinary Action, which notified him that

NJIT's internal investigation had sustained eleven charges against him for

violating seven Department Rules and Regulations. Thereafter, on December

20, 2019, NJIT served upon the officer a letter formally notifying him that he

was being terminated for cause.

      PERC's Appointment of a Special Arbitrator

      On January 8, 2020, Officer DiGuglielmo and his counsel filed with PERC

a challenge to his termination and a request for special disciplinary arbitration

under N.J.S.A. 40A:14-209 and -210. NJIT objected to that request, contending

that the officer is not legally eligible for the arbitration.




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                                         10
      After considering the competing legal positions of the parties, PERC

concluded that it has jurisdiction over the officer's termination, and that he is

indeed eligible to participate in the special disciplinary program.          The

Commission's Director of Conciliation and Arbitration issued a written decision

on April 16, 2020, explaining the basis for that decision. Relying on previous

administrative decisions it had issued on the subject and the text of PERC's

regulations, the Director found that NJIT is a "law enforcement agency" within

the meaning of N.J.S.A. 40A:14-200 and that Officer DiGuglielmo is a "law

enforcement officer" employed by such an agency.

      The Director rejected NJIT's procedural argument that the officer had

waived any entitlement to special disciplinary arbitration in bypassing t he

disciplinary procedures contained in the CNA between NJIT and his labor union,

the Fraternal Order of Police Lodge 93 ("FOP"). The Director reasoned that the

statutory procedures concerning special disciplinary arbitration make that

process "available to all law enforcement officers with narrow exceptions,

regardless of whether they have a [labor union] representative." The Director

noted in this regard that "N.J.S.A. 40A:14-210 only requires that an officer file

for arbitration with PERC within 20 days of receiving notice of his termination."

She added, "[t]he statute does not set forth any other requirements."


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                                      11
      Having determined that Officer DiGuglielmo had timely and properly

requested special disciplinary arbitration, the Commission in separate

correspondence appointed an arbitrator to adjudicate the matter.

      This Appeal and the Amici

      NJIT then applied to this court for leave to appeal the Commission's

exercise of jurisdiction and its appointment of an arbitrator. We granted that

application and stayed the arbitration. Co-respondents DiGuglielmo and PERC

have both opposed NJIT's appeal.

      We invited the Attorney General to participate in this matter as amicus

curiae, and have considered the limited arguments presented by his office on

certain legal issues before us. In addition, we granted permission for the FOP

to appear as an amicus on the side of the officer and NJIT, and for Rutgers

University to appear as an amicus on the side of NJIT.

      We have reviewed de novo the legal arguments of all parties and the amici.

Maeker v. Ross, 219 N.J. 565, 574-75 (2014). In considering those arguments,

we have accorded a degree of deference to the Commission, given its "broad

authority and wide discretion" in the "highly specialized area" of the relations

between an employer and employee in the public sector. In re Hunterdon Cnty.

Bd. of Chosen Freeholders, 116 N.J. 322, 328 (1989). We similarly have given


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                                      12
substantial regard to the legal position of the Attorney General, given his dual

roles as sole legal adviser to most agencies in State Government and also his

statewide responsibilities in matters touching upon law enforcement.           See

Quarto v. Adams, 395 N.J. Super. 502, 513 (App. Div. 2007).

      Several of the advocates have urged us to reach the issues of statutory

interpretation in this case even if we might be able to resolve it on procedural

grounds (such as waiver), because there are presently no published judicial

opinions on point for guidance.

                                        II.

      We begin our analysis with a discussion of the special disciplinary

arbitration process and related statutes.

                                        A.

      As a starting point, we recognize that most police officers in this State

cannot be terminated or disciplined without proof of "just cause." N.J.S.A.

40A:14-147.     The officer is entitled to written notice of the grounds for

termination or discipline as well as an opportunity to be heard at a hearing "by

the proper authorities." Ibid.

      In 1937, the Legislature enacted Revised Statute 40:47-10, a provision

designed to provide certain police officers who were found to have violated their


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                                       13
departments' rules and regulations with the right to obtain in the County Court

of Common Pleas the judicial review of those decisions. L. 1937, c. 84, § 1.

The right of judicial review under the 1937 statute was confined to officers who

were employed in "any police department in any municipality in this state not

operating under [the civil service laws]." Ibid. (emphasis added). Pursuant to

that statute, the court had the authority to affirm or reverse the departmental

findings and, if the latter, to order the officer restored to his position and to have

his losses compensated. Ibid.

      A year later in 1938, the Legislature extended this right of judicial review

to disciplined municipal firefighters employed in non-Civil Service localities.

R.S. 40:47-10, as amended by L. 1938, c. 298, § 1. In 1953, R.S. 40:47-10 was

revised again to substitute the County Court for the Court of Common Pleas. L.

1953, c. 37, § 168.

      Decades later in 1971, the Legislature repealed this statutory scheme in

Title 40 and recodified it under Title 40A as N.J.S.A. 40A:14-150 ("Section

150"). As part of this recodification, the Legislature essentially replicated the

key facets of the predecessor statute. L. 1971, c. 197, § 626. The provision was

amended again in 1981 in ways not important to our analysis. L. 1981, c. 75, §

6.


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                                        14
      As the statute evolved, these various amendments preserved the critical

ingredients that the independent judicial review process under the statute would

be "de novo" and that the court can supplement the record created at the local

level. See Ruroede v. Borough of Hasbrouck Heights, 214 N.J. 338, 344 (2013).

      The 2009 Amendments

      Significantly for the present case, in 2009 the Legislature adopted a

package of amendments that enhanced the rights of certain disciplined police

officers and firefighters. L. 2009, c. 16, §§ 1-16. As a component of that reform,

the Legislature created what is now termed "special disciplinary arbitration " as

an alternative process to the court-based review available under Section 150.

The 2009 statutory revision was accomplished by revising Section 150 and also

by inserting new provisions in additional sections.

      The 2009 legislation includes a definitional section, which directly

impacts the present case, at N.J.S.A. 40A:14-200 ("Section 200"). Section 200

defines the operative terms "law enforcement agency" and "law enforcement

officers."

      The term "law enforcement officer" is defined in the statute as:

             [A]ny person who is employed as a permanent full-time
             member of any State, county, or municipal law
             enforcement agency, department, or division of those
             governments who is statutorily empowered to act for

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                                       15
            the detection, investigation, arrest, conviction,
            detention, or rehabilitation of persons violating the
            criminal laws of this State and statutorily required to
            successfully complete a training course approved by, or
            certified as being substantially equivalent to such an
            approved course, by the Police Training Commission
            ....

            [N.J.S.A. 40A:14-200 (emphasis added).]

      Further, N.J.S.A. 40A:14-200 defines a "law enforcement agency" as:

            [A]ny public agency, other than the Department of Law
            and Public Safety, but not including the Juvenile Justice
            Commission, any police force, department, or division
            within the State, or any county or municipality thereof,
            which is empowered by statute to act for the detection,
            investigation, arrest, conviction, detention, or
            rehabilitation of persons violating the criminal laws of
            this State.

            [Ibid. (emphasis added).]

      These defined terms are utilized in provisions adopted in 2009 that allow

eligible police officers and firefighters: (1) in Civil Service jurisdictions to

obtain review of their proposed termination before an Administrative Law Judge

in the Office of Administrative Law ("OAL") and thereafter the Civil Service

Commission ("CSC"), see N.J.S.A. 40A:14-201 to -208, and (2) in non-Civil

Service municipalities to obtain "special disciplinary arbitration" by an

arbitrator appointed by PERC. See N.J.S.A. 40A:14-209 ("Section 209") and -

210 ("Section 210").

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                                        16
      Special disciplinary arbitration is described in depth in Sections 209 and

210. Section 209 focuses particularly upon the officer's right to be paid wages

while he or she is awaiting the completion of the special arbitration process. In

this regard, subsection (a) of Section 209 reads as follows:

            a. When a law enforcement officer or firefighter
            employed by a law enforcement agency or department
            that is not subject to the provisions of Title 11A of the
            New Jersey Statutes is suspended from performing his
            official duties without pay for a complaint or charges,
            other than (1) a complaint or charges relating to the
            subject matter of a pending criminal investigation,
            inquiry, complaint, or charge whether pre-indictment or
            post indictment, or (2) when the complaint or charges
            allege conduct that also would constitute a violation of
            the criminal laws of this State or any other jurisdiction,
            and the law enforcement agency or department
            employing the officer or firefighter seeks to terminate
            that officer's or firefighter's employment for the
            conduct that was the basis for the officer's or
            firefighter's suspension without pay, the officer, as an
            alternative to the judicial review authorized under
            N.J.S.40A:14-150, and the firefighter, as an alternative
            to the judicial review authorized under N.J.S.40A:14-
            22, may submit an appeal of his suspension and
            termination to the Public Employment Relations
            Commission for arbitration conducted in accordance
            with the provisions of section 11 of P.L.2009, c. 16
            (C.40A:14-210). A final determination on the officer's
            or firefighter's suspension and termination shall be
            rendered by an arbitrator within 180 calendar days from
            the date the officer or firefighter is suspended without
            pay.



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                                       17
                    If a final determination is not rendered within
             those 180 days, as hereinafter calculated, the officer or
             firefighter shall, commencing on the 181st calendar
             day, begin again to receive the base salary he was being
             paid at the time of his suspension and shall continue to
             do so until the final determination on the officer's or
             firefighter's termination is rendered.

             [N.J.S.A. 40A:14-209(a) (emphasis added).]

Subsections (b) through (c) of Section 209 go on to address how to calculate the

180-day period, and the effect of any delays or adjournments. N.J.S.A. 40A:14-

209(b) and (c).

      The next provision, Section 210, details the procedures to be followed

within the special disciplinary arbitration process. That provision states , in

pertinent part:

             a. In lieu of serving a written notice to the Superior
             Court under the provisions of N.J.S.40A:14-150 or
             N.J.S.40A:14-22, as appropriate, seeking review of the
             termination of his employment for a complaint or
             charges, other than a complaint or charges relating to a
             criminal offense, as prescribed in subsection a. of
             section 10 of P.L.2009, c. 16 (C.40A:14-209), an
             officer or firefighter may submit his appeal to
             arbitration as hereinafter provided.

             b. Within 20 days of receiving notice of termination,
             the officer or firefighter shall submit his appeal for
             arbitration to the Public Employment Relations
             Commission. The appeal shall be filed in a manner and
             form prescribed by the commission.


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                                       18
                   Upon receipt of such an appeal, the commission
             shall forthwith notify the employing agency or
             department of the appeal.

             [N.J.S.A. 40A:14-20(a) and (b) (emphasis added).]

      Subsections (c) through (h) of Section 210 spell out other facets of the

special disciplinary arbitration once that process has been elected by an eligible

law enforcement officer. In particular, subsections (c) and (d) address how the

special arbitrator is chosen. Ibid. Subsection (e) authorizes the arbitrator to

administer oaths, require the attendance of witnesses and the production of

documents, and issue subpoenas. Ibid. Subsection (f) requires the arbitrator to

issue a decision within ninety days. Ibid. Subsection (g) instructs that if the

arbitrator rules in favor of the officer, he or she must be reinstated with full pay;

conversely, if the arbitrator rules for the employer, the officer must reimburse

the employer for any pay the officer received during the pendency of the matter

pursuant to Section 209. Ibid. Lastly, subsection (h) addresses payment issues

in instances in which the arbitrator's decision is appealed. Ibid.

      The legislative history of these 2009 provisions reflects a strong policy

concern about suspended officers who are unpaid while awaiting a disposition

of the disciplinary charges. As the Committee Statement of the Assembly Law




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                                        19
and Public Safety Committee, concerning the bill that became law, A. 3481,

noted:

                   As amended and reported by the committee,
             Assembly Bill No. 3481 entitled certain law
             enforcement officers and paid firefighters who are
             appealing terminations for noncriminal complaints or
             charges to again begin receiving their base salary if a
             final determination on their appeal is not rendered
             within 180 days.

                    Starting on the 181st [day] following their
             suspension without pay, law enforcement officers or
             firefighters would begin again to receive the base salary
             that they were being paid prior to their termination and
             to continue to receive that salary until a final
             determination on their appeal is rendered. If the law
             enforcement officer or firefighter prevails in the appeal,
             the salary moneys that have been withheld are to be
             paid to that law enforcement officer or firefighter.

             [Assembly Law and Public Safety Comm. Statement to
             Assembly, A. 3481 (L. 2009, c. 16) (emphasis added).]

      In the same vein, the Governor's Message on Signing of the 2009

legislation stated, "[t]his bill provides a fair safeguard to law enforcement, . . .

a safeguard that is appropriate in light of their unique contribut[ions] to the state

by risking themselves to protect others." Governor's Message on Signing (Mar.

5, 2009). The Governor added:

             We know that the fact-finding and deliberative process
             can take many months; and that this places a very heavy
             burden on people, who then must cope with extreme

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                                        20
            financial hardship caused by a protracted suspension of
            salary at a difficult and emotional time when their
            careers are, essentially, in limbo.

            [Ibid.]

      PERC's Regulations

      Pursuant to N.J.S.A. 40A:14-211, PERC promulgated regulations,

N.J.A.C. 19:12-6.1 to -6.8, to administer the special disciplinary arbitration

process. In particular, N.J.A.C. 19:12-6.4(a) provides that "[a]n appeal of a

disciplinary termination of a non-civil service firefighter or law enforcement

officer shall be initiated by filing a written request with the Director of

Arbitration for the appointment of an arbitrator from the Commission’s Special

Disciplinary Arbitration Panel."   (Emphasis added). The regulations do not

define the term "law enforcement officer" and presumably apply the statutory

definition in Section 200. See N.J.A.C. 19:12-6.1(a).

      Tracking Section 210, PERC regulations specify that the special

disciplinary arbitrator "may administer oaths and require the attendance of

witnesses and the production of such documents as the arbitrator may deem

material to a just determination of the appeal, and for such purpose may issue

subpoenas." N.J.A.C. 19:12-6.6(a). Further, "[t]he arbitrator shall have the

power to resolve any discovery issues," and "communicate with the parties to


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                                     21
arrange for a mutually satisfactory date, time and place for a hearing, which

shall be conducted within 60 days after the arbitrator is appointed." N.J.A.C.

19:12-6.6 (b) and (c).

      Additionally, subsection (d) of N.J.A.C. 19:12-6.6 provides that

"[h]earings shall be de novo proceedings and shall not be limited to review of

any prior proceedings or hearings held in order to impose discipline in

accordance with . . . N.J.S.A. 40A:14-147." The arbitrator "shall render an

opinion and final determination within 90 days of his or her appointment . . . ."

N.J.A.C. 19:12-6.7(a).

      We now consider the legal and jurisdictional arguments presented to us

with these various statutes and regulations in mind.

                                       B.

      NJIT argues it is not obligated to participate in PERC's special

disciplinary arbitration process for several reasons. As a general theme, NJIT,

joined in this regard by amicus Rutgers, contends that New Jersey universities

and other public institutions of higher education are autonomous entities created

under Title 18A and their police forces should not be regarded as "law

enforcement agencies" subject to the provisions of Title 40A. We disagree, and

affirm PERC's sound interpretation of this pivotal term.


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                                      22
      The definition in Section 200 of a "law enforcement agency," which we

have quoted above, encompasses two broad concepts. First, the definition

includes "any public agency, other than the Department of Law and Public

Safety, but not including the Juvenile Justice Commission." Ibid. (emphasis

added). Second, the definition also encompasses "any police force, department

or division within the State, or any county or municipality thereof."         Ibid.

(emphasis added). Further, such a "public agency" or "police force" must be

"empowered by statute to act for the detection, investigation, arrest, conviction,

detention, or rehabilitation of persons violating the criminal laws of this State."

Ibid. (emphasis added). The NJIT police unit satisfies these definitions.

      NJIT's Department of Public Safety is clearly a public agency. As we

have already noted, NJIT is a public institution, a "body corporate and politic"

created by the Legislature. N.J.S.A. 18A:64E-14. The university's activities are

"deemed to be public and essential governmental functions." Ibid. (emphasis

added).

      Moreover, NJIT enjoys the immunities and defenses of a "public entity"

under the Tort Claims Act. See Bonitsis v. New Jersey Inst. of Tech., 363 N.J.

Super. 505 (App. Div. 2003), certif. granted, judgment rev'd, 180 N.J. 450

(2004); see also N.J.S.A. 59:1-3 (defining a "public entity" under the Tort


                                                                          A-3772-19T2
                                       23
Claims Act to include "any . . . public agency, and any other . . . public body in

the State."). It would subvert legislative consistency to treat NJIT as a public

body or agency for other parts of State law, but to not likewise treat it as a public

body or public agency under N.J.S.A. 40A:14-200.

      In addition, NJIT's police officers clearly work for a "police force."

Indeed, their hiring by the Department was accomplished through NJIT's express

hiring authority under N.J.S.A. 18A:6-4.3a as "a college or university with an

established police agency." As described on its website, NJIT has a large and

well-established police force, and it has grown to a department consisting of

over eighty employees that include two dozen police officers. Having taken

advantage of the hiring prerogatives of "an established police agency" that

bypass a local police chief's statutory hiring approval, NJIT cannot fairly avoid

being considered a "law enforcement agency." The two concepts are logically

synonymous.

      Third, there is no doubt that NJIT's police officers are empowered by

statute -- i.e., Title 18A -- to engage in the "detection, investigation, arrest,

conviction, detention, or rehabilitation of persons violating the criminal laws of

this State." N.J.S.A. 40A:14-200. The university's own website touts these

traditional police powers. Annual Report at 4-5; see also N.J.S.A. 18A:6-4.5


                                                                            A-3772-19T2
                                        24
(confirming university police officers "shall possess all the powers of policemen

. . . pursuant to any limitations as may be imposed by the governing body of the

institution which appointed and commissioned the person") (emphasis added).

Here, the public body that appointed and commissioned Officer DiGuglielmo

and his fellow officers was NJIT, not the Newark municipal police department.

      Finally, as the Attorney General points out, there are sensible policy

reasons for treating campus police officers as being subject to the policies on

use of force and other "law enforcement" activities that are overseen statewide

by the Attorney General. 2     In fact, N.J.S.A. 40A:14-181 mandates such

adherence and expressly treats campus police departments as "law enforcement

agencies" in its language: "Every law enforcement agency, including a police



2
  In the Attorney General's amicus brief, counsel explained the following in a
footnote:

            [T]he Attorney General's law-enforcement directives
            have been long-considered binding on campus police
            forces. See, e.g., Attorney General Law Enforcement
            Directive 2000-4, "Revision To August 14, 1995,
            Directive Implementing Procedures For The Seizure Of
            Weapons From All State Law Enforcement Officers
            Involved In Domestic Violence Incidents" (Sept. 1,
            2000) (issued with letter from Attorney General, dated
            Sept. 19, 2000, specifically including campus police as
            state law-enforcement officers for purpose of
            Directive).
                                                                        A-3772-19T2
                                      25
department of an institution of higher education . . . , shall adopt and implement

guidelines which shall be consistent with the guidelines governing the 'Internal

Affairs Policy and Procedures' of the Police Management Manual. . . ."

(Emphasis added).

      In sum, a plain reading and application of the statutory language, as well

as common sense, demonstrate that Officer DiGuglielmo is a "law enforcement

officer" who was employed by a "law enforcement agency" within the

definitional ambit of N.J.S.A. 40A:14-200.

                                            C.

      Despite our conclusion that Officer DiGuglielmo is employed by a "law

enforcement agency," the statutory analysis does not end there. We must now

consider whether the cross-references within both Sections 209 and 210 to

Section 150 (i.e., N.J.S.A. 40A:14-150) affect his eligibility for special

disciplinary arbitration. We conclude that Section 150 precludes him, as a non -

municipal police officer, from availing himself of the special disciplinary

arbitration process.

      Section 150, was amended as part of the 2009 legislation to insert an

express reference to special disciplinary arbitration:

            Any member or officer of a police department or force
            in a municipality wherein Title 11A of the New Jersey

                                                                         A-3772-19T2
                                       26
            Statutes is not in operation, who has been tried and
            convicted upon any charge or charges, may obtain a
            review thereof by the Superior Court; provided,
            however, that in the case of an officer who is appealing
            removal from his office, employment or position for a
            complaint or charges, other than a complaint or charges
            relating to a criminal offense, the officer may, in lieu of
            serving a written notice seeking a review of that
            removal by the court, submit his appeal to arbitration
            pursuant to section 10 of P.L.2009, c. 16 (C. 40A:14-
            209). Such review shall be obtained by serving a written
            notice of an application therefor upon the officer or
            board whose action is to be reviewed within 10 days
            after written notice to the member or officer of the
            conviction. The officer or board shall transmit to the
            court a copy of the record of such conviction, and of the
            charge or charges for which the applicant was tried. The
            court shall hear the cause de novo on the record below
            and may either affirm, reverse or modify such
            conviction. If the applicant shall have been removed
            from his office, employment or position the court may
            direct that he be restored to such office, employment or
            position and to all his rights pertaining thereto, and may
            make such other order or judgment as said court shall
            deem proper.

            [Ibid. (emphasis added).]

      Section 209, which establishes special disciplinary arbitration, refers to

that process "as an alternative to the judicial review authorized under

N.J.S.40A:14-150."     N.J.S.A. 40A:14-209(a).         Similarly, its companion

provision Section 210, which delineates the special arbitration process, begins

with the phrase: "In lieu of a serving of written notice to the Superior Court


                                                                          A-3772-19T2
                                        27
under the provisions of N.J.S.A. 40A:14-150 . . . [the following procedures

apply]." N.J.S.40A:14-210(a). These provisions clearly work in tandem to

incorporate, by reference, the terms and limitations of Section 150.

       Plainly, Section 150 is limited to officers "of a police department or force

in a municipality wherein Title 11A of the New Jersey Statute [civil service] is

not in operation . . . [.]" N.J.S.A. 40A:14-150 (emphasis added). The statutory

definition of a "municipality" stems back to 1917, when the Legislature enacted

L. 1917, c. 152. In current form, our statutes define a "municipality" as a "'city',

'town', 'township', 'village', 'borough', and any municipality governed by a board

of commissioners, or improvement commission." N.J.S.A. 40:42-1. NJIT is

none of these things. By any stretch of the imagination NJIT simply isn't a

"municipality." Consequently, special disciplinary arbitration is unavailable to

its officers.3




3
   We are aware that our court's opinion in Bergen Cnty. Law Enf't Grp. v.
Bergen Cnty. Board of Chosen Freeholders, 191 N.J. Super. 319, 326 (App. Div.
1983), could be read to suggest that a county sheriff's officer might qualify as a
municipal police officer under N.J.S.A. 40A:14-150. We decline to follow that
interpretation here.     For one thing, that opinion was deemed "highly
questionable" on other grounds in State v. State Troopers Fraternal Ass'n, 134
N.J. 393, 412-13 (1993). In addition, there is no analytical reason to treat
university police officers as municipal police officers, and no legislative history
or statutory text supports that notion.
                                                                           A-3772-19T2
                                        28
      Our conclusion on this point is not undermined by the portion of N.J.S.A.

40A:14-200 that excludes the Department of Law and Public Safety from the

definition of a "law enforcement agency," but then carves out of that exclusion

the Juvenile Justice Commission ("JJC"). Clearly, the Department of Law and

Public Safety is a State, not municipal, body. See N.J.S.A. 52:17B-1. The JJC,

which is within that Department, likewise is not a municipality. See N.J.S.A.

52:17B-170. Yet it is not superfluous for the definition within Section 200 to

address these State entities. That is because, despite the inapplicability of

Sections 209 and 210 to non-municipal agencies, other portions of the 2009 act,

i.e. Sections 201 through 208, do pertain to non-municipal entities that are

within the Civil Service system. Those provisions in Sections 201 through 208

address an eligible officer's hearing rights in the OAL and further review by the

CSC of the Administrative Law Judge's decision.

      Consequently, the exclusion of all but the JJC within the Department of

Law and Public Safety from Section 200 accomplished a separate purpose, one

not in play here, to exclude the officers in Civil Service titles within that

Department (except for JJC officers), such as certain members of the State

Police, from the OAL proceedings and CSC review set forth in Sections 201

through 208. The exclusion was not superfluous. See, e.g., N.J.S.A. 53:1-5


                                                                         A-3772-19T2
                                      29
through -7, and -11.7 (recognizing that some State Police officers are in the

"classified" (i.e., Civil Service) system).

      Hence, because Officer DiGuglielmo was not employed by a municipal

law enforcement agency, Section 150 bars his eligibility for special disciplinary

arbitration. Nothing in the statute's text or legislative history shows otherwise. 4

                                         D.

      We need not comment much about the remaining issues but do so briefly

for the sake of completeness.

      First, even if, for the sake of discussion, Officer DiGuglielmo could be

categorically eligible for special disciplinary arbitration despite his status as a

non-municipal officer, the fact that he has been suspended with pay precludes

him from availing himself of that hypothetical option. We do not read Section

210 to nullify the eligibility requirement of suspension-without-pay repeatedly

stated within Section 209.




4
   In light of our ruling, we recommend that PERC consider revising its
regulations concerning special disciplinary arbitration, particularly N.J.A.C.
19:12-6.4, to incorporate this omitted limitation. Additionally, the unpublished
administrative decisions of PERC that suggested to the contrary, which were
never upheld in published case law, are repudiated, to the extent that they
conflict with our opinion.
                                                                           A-3772-19T2
                                        30
      Second, we reject the argument of NJIT and the Attorney General that

Officer DiGuglielmo waived any right to special disciplinary arbitration because

he bypassed the grievance steps set forth in the CNA. An eligible officer has a

statutory right to invoke special internal arbitration "[w]ithin [twenty] days" of

receiving a notice of termination. N.J.S.A. 40A:14-210(b). As PERC correctly

found, the CNA's grievance procedures cannot override this statutory

entitlement. See N.J.S.A. 34:13A-5.3. Consequently, we need not reach Officer

DiGuglielmo's claim that the procedures within the CNA violate principles of

due process.

      Any other issues presented, to the extent we have not mentioned them, do

not warrant comment. R. 2:11-3(e)(1)(E).

                                             III.

      For the foregoing reasons, we reverse PERC's decision and vacate its order

to appoint a special disciplinary arbitrator. Beyond that determination, we

express no views about the respective rights of the parties concerning the

officer's proposed termination, including whether or not the filing deadlines

within the CNA should now be equitably tolled because of a mistaken premise

that the officer was eligible for special disciplinary arbitration.




                                                                         A-3772-19T2
                                        31
Affirmed in part, reversed in part. We do not retain jurisdiction.




                                                                     A-3772-19T2
                                32
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