                    NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION
 This opinion shall not "constitute precedent or be binding upon any court."
  Although it is posted on the internet, this opinion is binding only on the
    parties in the case and its use in other cases is limited. R. 1:36-3.




                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NOS. A-5250-14T3
                                                A-5328-14T3

CHRISTOPHER JAREMA,

     Plaintiff-Appellant,

v.

MIDDLESEX COUNTY, MIDDLESEX COUNTY
SHERIFF'S OFFICE, and MILDRED S.
SCOTT, MIDDLESEX COUNTY SHERIFF,

     Defendants-Respondents.
_____________________________________

THOMAS VARGA,

     Plaintiff-Appellant,

v.

MIDDLESEX COUNTY, MIDDLESEX COUNTY
SHERIFF'S OFFICE, and MILDRED S.
SCOTT, MIDDLESEX COUNTY SHERIFF,

     Defendants-Respondents.
______________________________________

           Argued November 1, 2017 – Decided August 16, 2018

           Before Judges Fuentes, Manahan and Suter.

           On appeal from Superior Court of New Jersey,
           Law Division, Somerset County, Docket Nos.
           L-1073-14 and L-1016-14.
          Michael J. Confusione argued the cause for
          appellant Christopher Jarema (in A-5250-14)
          (Hegge & Confusione, LLC, attorneys; Michael
          J. Confusione, of counsel and on the brief).

          Ronald A. Rosa argued the cause for appellant
          Thomas Varga (in A-5328-14) (Fuggi Law Firm,
          PC, attorneys; Ronald A. Rosa, on the brief).

          Arthur R. Thibault, Jr., argued the cause for
          respondents (Apruzzese, McDermott, Mastro &
          Murphy, PC, and Kelso & Bradshaw (in A-5250-
          14) and Dvorak & Associates, LLC (in A-5328-
          14) attorneys; Arthur R. Thibault, Jr., and
          Patrick J. Bradshaw on the brief (in A-5250-
          14); Arthur R. Thibault, Jr., and Marc Mory,
          on the brief (in A-5328-14)).

PER CURIAM

     After conducting a de novo review of the evidence presented,

Judge Thomas C. Miller upheld Middlesex County Sheriff Mildred S.

Scott's decision to terminate plaintiffs Christopher Jarema and

Thomas Varga from their position as Sheriff's Investigators under

N.J.S.A. 40A:9-117a.   Judge Miller held plaintiffs were at-will

employees who served at the pleasure of the Sheriff.      The judge

also found plaintiffs did not show their termination was arbitrary,

capricious or unreasonable so as to be invidiously discriminatory.

     Plaintiffs now appeal.     We affirm substantially for the

reasons expressed by Judge Miller.




                                2                           A-5250-14T3
                                       I

      In 2005, then Middlesex County Sheriff Joseph Spicuzzo hired

plaintiff Christopher Jarema as a Sheriff's Investigator.                    Three

years later, Spicuzzo hired plaintiff Thomas Varga to serve in

this same capacity.        On January 3, 2014, the Middlesex County

Sheriff's Office (MCSO) filed administrative charges against both

Varga and Jarema alleging that they, directly or through a third

party acting on their behalf, bribed Spicuzzo to secure their

positions.     After conducting hearings on the charges for both

Varga and Jarema, a Departmental Hearing Officer found sufficient

evidence to support the charges and recommended that both Varga

and Jarema be terminated.          Sheriff Scott accepted the Hearing

Officer's    recommendation      and   terminated        Varga's   and   Jarema's

employment as Sheriff's Investigators effective January 3, 2014,

on May 16, 2014, and June 11, 2014, respectively.

      On   June   30,    2014,   Varga1    filed    an    action   in     lieu    of

prerogative writs against defendants Middlesex County, the MCSO,

and Sheriff Scott.       On July 23, 2014, Jarema filed his own action

in lieu of prerogative writs naming the same parties as defendants.

Plaintiffs alleged that the decision to terminate their employment

was   arbitrary    and    capricious      because   the     Hearing      Officer's



1
    Varga filed an amended complaint on July 14, 2014.

                                       3                                   A-5250-14T3
decision was not based on credible, competent evidence. Plaintiffs

also sought compensatory damages for wrongful termination based

on common law retaliation contrary to a clear mandate of public

policy under Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58

(1980). Varga included a separate count based on the Conscientious

Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, and alleged

he was terminated in violation of the Attorney General Guidelines

for Internal Affairs Investigations.

      On August 27, 2014, defendants moved to dismiss plaintiffs'

complaints for failure to state a claim upon which relief could

be granted pursuant to Rule 4:6-2(e). The trial court consolidated

these two cases with two other pending cases, filed by former

Sheriff's Investigators, who were terminated based on the same

allegations of corruption involving bribes to Spicuzzo.

      Defendants argued that, as at-will employees, plaintiffs did

not have a property interest in their positions as Sheriff's

Investigators and consequently did not have a right to a de novo

review of Sheriff Scott's decision to terminate their employment.

Defendants also argued that plaintiffs were precluded from seeking

relief under Pierce as a matter of public policy, because they had

obtained their public positions through corruption and bribes.

The   same   public   policy   precluded   Varga's    claims   under     CEPA.

Finally,     defendants   argued   that    it   did   not   matter   whether

                                     4                                 A-5250-14T3
plaintiffs paid the bribes themselves.   Sound public policy cannot

countenance the procurement or retention of a public position

through bribery, even if the holder of the position was unaware

of the scheme.

       On October 24, 2014, the court granted defendants' motion

to dismiss in part and denied it in part.    The court first found

that as Sheriff's Investigators, plaintiffs were at-will employees

pursuant to N.J.S.A. 40A:9-117a, and served solely at the pleasure

of the Sheriff.   The judge provided the following explanation in

support of this ruling:

           In the present matter, akin to Golden[2] and
           Walsh[3], by the terms and conditions of
           [p]laintiff[s]    employment    as   Sheriff's
           Investigator[s] as defined by N.J.S.A. 40A:9-
           117a, "all sheriff's investigators shall serve
           at the pleasure of the sheriff . . .[.]" As
           such,     [p]laintiff[s]     [are]     at-will
           employee[s] who can be terminated for any
           reason.   Thus, to permit [p]laintiff[s] to
           challenge [their] termination as arbitrary,
           capricious or unreasonable and seek judicial
           review by a "full de novo review" would be to
           confer a property interest upon [p]laintiff[s]
           to which [they are not] entitled and [do] not
           have, and undermine the Legislative mandate
           in enacting N.J.S.A. 40A:9-117a.

           Consistent with the Supreme Court's holding
           in Golden, this [c]ourt's review is limited
           to a circumstance where the Sheriff's action

2
    Golden v. County of Union, 163 N.J. 420 (2000).
3
   Walsh v. State of New Jersey, 290 N.J. Super. 1 (App. Div.
1996).

                                 5                          A-5250-14T3
          is so arbitrary, capricious and unreasonable
          so as to be "invidiously discriminatory or
          contrary to some other law[.]" In effect, the
          standard of review for such matters is more
          narrow than just a determination of whether
          the action was arbitrary, capricious and
          unreasonable. On that basis, [p]laintiff[s]
          complaint[s] [have] generally plead a breach
          of   that   standard.      On   that    basis,
          [p]laintiff[s] complaint[s] state[] a cause of
          action.

          In a disciplinary appeal filed to challenge
          an official action such as this case before
          the [c]ourt, the only forum that exists for
          any remedy is with the [c]ourts.        If the
          [d]efendant's position were accepted (that is
          that   the   Sheriff   has    total,  complete
          discretion    to    terminate    because   the
          [p]laintiff[s] [are] [at-will] employee[s])
          so that the [c]ourt must simply affirm the
          hearing officer's findings without any inquiry
          or review, then there would be no check upon
          the authority or actions of the local agency
          – in this case the Sheriff. While the [c]ourt
          acknowledges that the Sheriff's discretion is
          wide, it is not absolute.

     Thus,    despite   recognizing        the   at-will     nature   of     their

employment,    the   motion   judge    declined    to    dismiss    plaintiffs'

complaints in their entirety. The judge viewed the Supreme Court's

holding in Golden to limit his review to "circumstances where the

Sheriff's action is so arbitrary and unreasonable so as to be

'invidiously   discriminatory'        or   contrary     to   some   other    law."

However, the judge also stated that plaintiffs had not offered any

legal basis to support their request for a complete de novo hearing

equivalent to a new trial.      The motion judge ultimately applied a

                                       6                                   A-5250-14T3
level of review that requires the court to determine whether the

Sheriff's decision to terminate plaintiffs' employment was so

arbitrary, capricious or unreasonable so as to be invidiously

discriminatory.

      The judge dismissed plaintiffs' CEPA and Pierce claims with

prejudice and reserved decision on whether the Sheriff was bound

by the Attorney General Guidelines.             The judge also stated that

even if the Sheriff was bound by these Guidelines, he was still

required   to   determine   whether       the   violation   constituted    an

arbitrary and capricious act.4

      Thereafter, the trial court denied plaintiffs' motion to

supplement the record and to compel discovery               of the entire

Spicuzzo criminal investigation file.            The court restricted its

review to the record relied on by Sheriff Scott to terminate

plaintiffs' employment because the "purpose of the review is to

determine whether the local body, board, or hearing officer made

a decision that was based upon or supported by that record."            This

record is only supplemented when the party raises constitutional

issues in the complaint.       The court concluded that plaintiffs

request was overly broad and appeared to be a mere "fishing

expedition."    Moreover, even if the discovery of the file would



4
    Varga did not appeal this part of the trial court's decision.

                                      7                             A-5250-14T3
help plaintiffs prove other people should have also been charged

in the bribery scheme, it would not alter the case against them.

    On     February   20,   2015,   plaintiffs    filed   a   motion   for

reconsideration of the October 24, 2014 decision establishing the

standard of review.    In denying the motion, the judge explained:

           The [p]laintiffs' position, if adopted, would
           undermine the very "[at-will]" nature of their
           employment.    In the absence of invidious
           discrimination, the Sheriff is permitted to
           terminate "[at-will]" employees like the
           [p]laintiffs at her pleasure. In other words,
           she could terminate them for "any reason or
           no reason." In a sense, the Sheriff's real
           reason may be arbitrary, capricious or
           unreasonable. As long as her reason is not
           based   upon    "invidious"    discrimination,
           however, the Sheriff has the authority to make
           that decision and her decision should survive
           challenge.

    The court also denied Varga's motion seeking reconsideration

of the order dismissing his CEPA claim.          Judge Miller found the

following facts from the record developed before the Hearing

Officer.

                                    II

                 The Case Against Varga and Jarema

    Spicuzzo hired Varga as a Sheriff's Investigator in November

2008.   On October 28, 2010, the State Police interviewed Varga in

connection with its investigation of then Sheriff Spicuzzo.            The

State Police investigation focused on a "jobs-for-cash scheme"


                                    8                             A-5250-14T3
which appeared to determine hiring practices in the Sheriff's

Office.    Varga admitted to State Police investigators that he paid

Spicuzzo    $25,000     in   cash   for       his    position   as     a    Sheriff's

Investigator.    On May 13, 2011, Varga testified before the Grand

Jury empaneled to investigate allegations of corruption in the

Sheriff's Office.       Varga fully cooperated with the investigation.

The Grand Jury transcript reflects that Varga admitted to paying

Spicuzzo the money but claimed that the money was "also for

training."

     On October 11, 2013, Mercer County Assignment Judge Mary C.

Jacobson entered an Order releasing the Grand Jury materials and

the State's investigatory files of the Spicuzzo matter to the

MCSO; this included Varga's testimony before the Grand Jury.                          On

November 20, 2013, MCSO Undersheriff Kevin Harris was assigned to

investigate "whether or not investigators paid former Sheriff

Spicuzzo for employment . . . as Middlesex County Sheriff's Office

Investigator."     Relying on Grand Jury records provided by the

Attorney    General's    Office,    Harris          concluded   that       Varga   gave

Spicuzzo $25,000 as a bribe to obtain his position as a Sheriff's

Investigator.     On January 3, 2014, Sheriff Scott suspended Varga




                                          9                                    A-5250-14T3
"indefinitely without pay" and charged him with bribery.5               The

Notice of Suspension Pending Termination also apprised Varga of

his right to "a departmental hearing to contest the charges . . .

and termination . . . ."

     On January 3, 2014, Sheriff Scott sent Jarema a Notice of

Suspension Pending Termination charging him with bribery, and

immediately   suspended   him   from   his   position   as   a   Sheriff's

Investigator without pay. Sheriff Scott provided the following

basis for Jarema's suspension:

          The factual basis for the charges is that you
          engaged in unlawful activity by paying, or by
          having had paid on your behalf, a sum of money
          to . . . Spicuzzo, through an intermediary,
          namely Mr. Adam Tietchen to influence . . .
          Spicuzzo . . . to give you a job as an
          Investigator in the [MCSO], which payment was
          an unlawful bribe, and that you wrongfully
          proceeded to accept the offer of such
          employment . . . .

Sheriff Scott also apprised Jarema of his right to contest these

charges at a departmental hearing.

     On June 12, 2015, Judge Miller conducted a trial de novo

based on the record developed before the Hearing Officer, and

dismissed plaintiffs' complaints.       Judge Miller memorialized his


5
   Sheriff Scott charged Varga and Jarema with "bribery" as a
disciplinary infraction to establish grounds for termination of
employment. However, "Bribery in Official and Political Matters"
is also a second-degree criminal offense under N.J.S.A. 2C:27-2.


                                  10                               A-5250-14T3
findings    and   explained    the   legal   basis   of   his   ruling    in    a

comprehensive letter-opinion which we incorporate by reference

here.    Judge Miller accepted the Hearing Officer's findings that

both    Varga   and   Jarema   obtained   their   positions     as    Sheriff's

Investigators by bribing Spicuzzo.           With respect to Jarema, Judge

Miller found it was irrelevant that the bribe was paid through an

intermediary. In short, there was overwhelming evidence to support

Sheriff Scott's decision to terminate the employment of both Varga

and Jarema.

       Judge Miller also rejected plaintiffs' argument that Sheriff

Scott violated the "45 day rule" of the Attorney General Internal

Affairs Guidelines by failing to file charges against them within

forty-five days of learning of a possible basis for discipline.

Judge Miller found that Undersheriff Harris needed to have the

complete file of the investigation and the Attorney General's

record before the forty-five day period could begin.                 Harris did

not receive this information until the end of November 2013.

Sheriff Scott filed the charges against plaintiffs on January 3,

2014,   well    within   the   forty-five-day     timeframe.     Plaintiffs'

remaining arguments were dispatched by Judge Miller as legally

inconsequential in light of the overwhelming, uncontested evidence

of wrongdoing by plaintiffs. Judge Miller upheld the determination



                                     11                                 A-5250-14T3
of the Hearing Officer and dismissed plaintiffs' complaints with

prejudice.

                                     III

     On appeal, plaintiffs argue Judge Miller erred: (1) when he

found that the administrative charges were filed within forty-five

days in compliance with the Attorney General's Internal Affairs

Investigation Guidelines; and (2) in denying their motion to compel

discovery of the entire Spicuzzo file.           In addition, Jarema argues

the judge erred in dismissing his common law retaliation claim

based   on   Pierce   and    in   failing   to   consider   the   collective

bargaining agreement and any rights that may be afforded to him

under it.

     In the Law Division, a judge reviews a local agency's decision

to determine whether it is arbitrary, capricious or unreasonable.

The party challenging the decision has the burden to prove the

action was not valid.       Cell S. of N.J. v. Zoning Bd. of Adjustment,

172 N.J. 75, 81-82 (2002).          When the Law Division employs the

proper standard, our review is limited to determining whether that

standard was properly applied. ERG Container Servs., Inc. v. Bd.

of Chosen Freeholders, 352 N.J. Super. 166, 173-74 (App. Div.

2002); R. 4:69-7.     We likewise defer to the municipality's broad

discretion and reverse only if the municipal action was arbitrary,

capricious or unreasonable.        Cell S. of N.J., 172 N.J. at 81.

                                     12                              A-5250-14T3
    With these principles in mind, we affirm substantially for

the reasons expressed by Judge Miller in his well-reasoned and

comprehensive letter-opinions dated June 12, 2015.

    Affirmed.




                              13                       A-5250-14T3
