Sabia v. City of Elizabeth

In Sabia v. City of Elizabeth, 132 N.J. Super. 6, 331 A.2d 620 (App.Div.1974), certif. denied, 67 N.J. 97, 335 A.2d 50 (1975), the City deferred the filing of departmental disciplinary charges pending review by the Prosecutor of Union County. In Sabia, the alleged unlawful entry and theft took place on June 27, 1970. The police department conducted an immediate investigation which was all but completed in late August or early September, 1970. The matter was then referred for action by the City police officials to the Prosecutor of Union County and pending "disciplinary proceedings quite properly were deferred." Id. at 13, 331 A.2d 620. The record reflects that the matter rested without action by the Prosecutor for approximately fourteen months, until December 7, 1971, when the Prosecutor wrote the police chief as follows: Thank you for bringing this matter to our attention by your letter of November 29, 1971. In view of the fact situation I concur with your recommendation for departmental disciplinary proceedings in this matter. Criminal complaints do not seem in order unless a stronger case could be demonstrated but the situation is upsetting and should be permanently rectified insofar as these officers may be concerned, assuming the facts to be as indicated. Id. at 14, 331 A.2d 620. In Sabia, the departmental charges were filed on May 3, 1972. The court held that the mere delay in the filing of charges, without more, was insufficient to justify the conclusion that there had been an intrusion into the due process rights of the employee. Importantly, the court held that "where the conduct of a public employee which forms the basis of disciplinary charges may also constitute a violation of the criminal law, however, the absence of a conviction, whether by reason of nonprosecution or even acquittal, bars neither prosecution nor finding of guilt for misconduct in office in the disciplinary proceedings." Id. at 12, 331 A.2d 620.