Palumbo v. Township of Old Bridge

In Palumbo v. Township of Old Bridge, 243 N.J. Super. 142, 149-50, 578 A.2d 1234 (App.Div.1990)the Township took no action concerning allegations of possible violations of police department rules and regulations, and possibly ordinances pending an investigation by the prosecutor's office. In fact, the alleged wrongdoing took place on July 5, 1988 and the Township attorney did not meet with any representatives from the prosecutor's office until May 2, 1989. On May 2, 1988 the Township Attorney met with an Assistant Prosecutor concerning the status of the Palumbo investigation. At that time, the Township Attorney was advised that the Prosecutor's office would not proceed further. Nevertheless, on June 7, 1989 the Township Attorney wrote a letter to Middlesex County Prosecutor Rockoff requesting written confirmation because of the time limitation set forth in N.J.S.A. 40A:14-147. It is undisputed that Prosecutor Rockoff's letter response dated June 8, 1989 was essentially non-responsive as a confirmation. Rather, it stated: Please be advised that the department will await the outcome of any action that the Township of Old Bridge deems appropriate under its local Ordinances, Rules and Regulations to examine the involvement of Police Chief Jerry Palumbo and others . . . .If the Township intends to hold hearing or investigate the activities of the aforementioned individuals and others to determine whether any violation of local laws have occurred, please retain all transcripts and provide this department with prior notice of all hearings so that we may determine whether our presence as observers is required. Id. at 145, 578 A.2d 1234. The disciplinary charges were filed and served on July 17, 1989. In Palumbo the court addressed whether or not the disciplinary charges had been timely filed. The court held that "in light of the somewhat ambivalent nature of the prosecutor's response of June 8, 1989, we are unable to discern whether there had been a 'final disposition' of the referred allegations regarding possible criminal charges." Id. at 149, 578 A.2d 1234. Therefore, the court remanded the matter to determine if such final disposition had occurred within the meaning of N.J.S.A. 40A:14-147 to invoke the statute's time limitations, and if so, on what date. The court held the remand should include a determination as to whether any criminal investigation is or is not pending, and if not, when any investigation terminated. Importantly, the court held "if such a criminal investigation were pending it is hard to envision how the disciplinary proceedings could proceed since the subject of such an investigation would most likely decline to testify and invoke Fifth Amendment constitutional rights . . . ." Ibid. The Court noted the futility of proceeding with administrative charges while a criminal investigation is pending: Indeed, if such a criminal investigation were pending it is hard to envision how disciplinary proceedings could proceed since the subject of such an investigation would most likely decline to testify and invoke Fifth Amendment constitutional rights, citations omitted . . . and might even seek a stay of administrative proceedings pending disposition of any such criminal investigation. Id. at 149-50, 578 A.2d 1234.