In the Matter of Clifton Gauthier, Rockaway Tp., ___ N.J. Super. ___ (App. Div. 2019). Clifton Gauthier, a Rockaway Township police officer, was suspended in January 2014, and later indicted, for allegedly “interfer[ing] with the prosecution of a family member, who was being prosecuted for driving while intoxicated.” He was diverted to the Pretrial Intervention Program (“PTI”), which he successfully completed in January 2017. He was reinstated in March 2017.
Gauthier sought back pay for the years of his suspension. The final decision of the Civil Service Commission denied his request. He appealed, but today the Appellate Division affirmed in an opinion by Judge Alvarez that applied de novo review, since the interpretation of a statute and a regulation was the focus of the appeal.
The statute was N.J.S.A. 40A:14-149.2, which states: “If a suspended police officer is found not guilty at trial, the charges are dismissed or the prosecution is terminated, said officer shall be reinstated to his position and shall be entitled to recover all pay withheld during the period of suspension subject to any disciplinary proceedings or administrative action.” Judge Alvarez observed that this provision was in derogation of the common law rule that a public officer, including a police officer, who does not render services, cannot prevail in an action seeking compensation. Thus, it had to be construed strictly to avoid a change in the common law.
Gauthier argued that PTI was a favorable disposition that, if the statute were construed broadly, would qualify him for back pay. Judge Alvarez did not agree. First, as already noted, the statute was not be construed broadly. Second, PTI , which came into being in 1990, was not in existence when the statute was adopted in 1973. Thus, the Legislature could not have contemplated PTI as a favorable disposition in 1973, and it never amended the statute in 1990 or thereafter to add PTI to that category. The statutory plain language thus defeated Gauthier’s claim.
Gauthier also contended, however, that a regulation that expressly applied to “an employee, other than a municipal police officer” salvaged his position. That did not avail. Judge Alvarez pointed to a different subsection of that regulation, which explicitly included municipal police officers. The section cited by Gauthier thus did not apply to him.
The remainder of the court’s opinion addressed Gauthier’s assertion that PTI is a “favorable disposition” for purposes of the statute. Judge Alvarez cited cases to the contrary, and noted that other diversionary programs have not been considered to be favorable dispositions. A termination of charges is favorable only if it is “dispositive as to the accused’s innocence of the crime for which he was charged.” That means “exculpation and not some lesser degree of success.” PTI was diversionary, not exculpatory.
Judge Alvarez well summarized her opinion in its final paragraph:
When the legislators enacted N.J.S.A. 40A:14-149.2, they were willing to step outside the common law rule for those vindicated from the taint of an alleged criminal act. Those who are acquitted, against whom charges are dismissed, or against whom a prosecution is terminated can receive back pay. Only those who receive favorable dispositions enjoy that benefit. That list does not include PTI.”