NJIT Police Officer Can Use Special Arbitration to Appeal Termination

By:  Ty Hyderally, Esq., and Jennifer Vorih, Esq.

Gregory DiGuglielmo worked as a police officer for the New Jersey Institute of Technology (NJIT). On August 26, 2019, Officer DiGuglielmo pursued a suspect who was riding a bicycle, and then used physical force to restrain the suspect. As shown in a video posted to social media, Officer DiGuglielmo also spoke to the suspect, a minor, loudly and aggressively. He yelled threatening profanities at the juvenile, and did not provide medical aid after using physical force against the minor. Officer DiGuglielmo was suspended with pay while an internal affairs investigation was conducted. While the investigation found insufficient evidence to prosecute DiGuglielmo criminally, he was terminated on December 20, 2019.

Officer DiGuglielmo requested a Special Disciplinary Arbitration through PERC, New Jersey’s Public Employee Relations Commission. However, NJIT claimed that this type of arbitration was not available to DiGuglielmo, but was only for municipal police officers who worked for non-civil service jurisdictions.

PERC disagreed with NJIT, holding that DiGuglielmo could utilize Special Disciplinary Arbitration, and it appointed an arbitrator. NJIT then moved for leave to appeal PERC’s decision to the New Jersey Appellate Division. The New Jersey Appellate Division allowed the appeal and put the arbitration on hold.

The Appellate Division ultimately agreed with NJIT, and held that only municipal officers were entitled to Special Disciplinary Arbitration. The Appellate Division held that (1) N.J.S.A. 40A:14-150 only applies to municipal officers who are not subject to civil service, and that that exclusion is incorporated by reference into N.J.S.A. 40A:14-209; and (2) even if he could otherwise have gone through Special Disciplinary Arbitration, DiGuglielmo was not eligible, because he had been suspended with pay, and N.J.S.A. 40A:14-209 and -210 require that an officer be suspended without pay to use this forum.

Officer DiGuglielmo asked the Supreme Court of New Jersey to hear the case, and the Court agreed. DiGuglielmo challenged both of the Appellate Divisions determinations, that Special Disciplinary Arbitration is only available to municipal officers, and only to those who were suspended without pay. The Appellate Division had also held that NJIT police officers are law enforcement officers. While NJIT argued against this holding, the university had not raised this issue on appeal; nonetheless, the Supreme Court opined in a footnote that it found “no error” in the Appellate Division’s holding on this point.

The New Jersey Supreme Court agreed with Officer DiGuglielmo on the questions actually appealed, as well. After engaging in a painstaking review of the statutes in question, and reviewing each of the cross-references contained therein, the Supreme Court found that:

1. “A plain reading of Sections 209 and 210 does not indicate that the Legislature intended the references to Section 150 to limit special disciplinary arbitration to municipal officers.”

and,

2. “a plain reading of Section 210 does not indicate that the Legislature intended the suspension without pay language from Section 209 to be inserted into Section 210.”

Thus, the Court held that Officer DiGuglielmo is eligible to challenge his termination through Special Disciplinary Arbitration. The Supreme Court reversed the Appellate Division’s decision and reinstated PERC’s decision.

This decision is a win for New Jersey employees, because not every termination is valid. Officer DiGuglielmo and other officers similarly situated have the right to contest a termination through Special Disciplinary Arbitration. NJIT now must prove to an arbitrator that the termination was for “just case,” as required by N.J.S.A. 40A:14-147.