New Jersey Public Safety Employee Lawyer & Attorney : Arpaia & Crivelli Law Firm : Police, Firefighters, Workers Compensation, Discipline Representation : New Jersey

 

In the matter of O’Rourke v. City of Lambertville, Docket No. A-0481-07T3, the Defendants appeal the trial court’s decision: (1) reversing the Lambertville City Council’s decision removing Plaintiff, Michael O’Rourke, from his position as a police officer; (2) reinstating Plaintiff to his position; and (3) denying their motion for reconsideration. Defendant, Bruce Cocuzza, is the city’s civilian police director. Plaintiff, a sergeant first class, was the police department’s Terminal Agency Coordinator (“TAC”) for the National Crime Information Center (“NCIC”) system, which contains a wide array of law enforcement information. 

The city charged Plaintiff with conducting unauthorized and improper employee background investigations, in defiance of Cocuzza’s direct order, and engaging in conduct subversive to the good order and discipline of the department in doing so. At the disciplinary hearing, Cocuzza testified that he and Plaintiff were discussing the temporary transfer of an employee from city hall to the department when Plaintiff told him that the employee would have to submit to a background check or be fingerprinted for security purposes. Cocuzza said he told Plaintiff that no action should be taken until Cocuzza received written authorization from “somebody in authority” and spoke with the city attorney regarding same. Later, Cocuzza learned Plaintiff had performed background investigations of five civilian employees of the department, including Cocuzza, without authorization.

After the officer assigned who was assigned to the department’s internal affairs unit declined to investigate because of his long-term social relationship with Plaintiff, Cocuzza decided to conduct the investigation himself. In his report, Cocuzza wrote that Plaintiff had been insubordinate and that his actions constituted a serious breach of discipline and a flagrant abuse of authority. 

Plaintiff testified that he performed the checks under his authority as TAC officer, indicating that under the State’s security policy anyone with access to the NCIC system had to have a background check and fingerprints taken. He also stated that he understood Cocuzza to mean that he should not ask anyone for their fingerprints, which he did not do. He did concede that he did criminal checks on five employees, including Cocuzza.

 

The City Council found plaintiff guilty of insubordination and ordered his removal. Plaintiff then filed this action seeking a de novo review of the city’s action. He alleged that Cocuzza exceeded his authority by conducting the investigation and, in doing so, violated the department’s internal affairs procedures, the attorney general’s guidelines, N.J.S.A. 40A:14-181, and his right to due process. The trial judge found that regardless of whether plaintiff violated Cocuzza’s order or any other department rule, the investigation was not conducted in conformity with the rules and regulations adopted by the city and the attorney general’s guidelines and, as a result, Plaintiff’s due process rights were violated. The trial judge reinstated Plaintiff with back pay and awarded him attorneys’ fees and costs. This appeal followed.

The Appellate Division held that when a law enforcement agency adopts rules pursuant to N.J.S.A. 40A:14-181 to implement the attorney general’s guidelines, it has an obligation to comply with those rules. Since the department failed to do so and deficiencies tainted the entire disciplinary process, the city’s decision to remove Plaintiff cannot stand. The Court further noted that Cocuzza’s failure to comply with the city’s rules does not rise to the level of denying Plaintiff’s constitutional rights to due process, but the failure warrants affirmance of the trial court’s order reinstating Plaintiff.

The rules at issue were adopted pursuant to 40A:14-181, which requires every law enforcement agency in this state to adopt guidelines that are consistent with those promulgated by the attorney general. The guidelines require every law enforcement agency to establish an internal affairs unit to receive, investigate and resolve complaints of officer misconduct. They also detail the procedures to be followed in investigating such complaints, including that serious complaints must be investigated by an internal affairs investigator, who must conduct a thorough and objective investigation and submit an objective report.

In this case, the City Council adopted rules governing the operations of the city’s police department in accordance with the guidelines. When Cocuzza undertook the investigation himself, he failed to adhere to the city’s rules. Moreover, the city’s rules require that the investigation be undertaken in a fair and objective manner. Since the principle allegation was that Plaintiff acted in defiance of Cocuzza’s directives and Cocuzza was the focus of one of the background checks, he could not be expected to perform the kind of objective investigation required by the attorney general’s guidelines and the city’s rules. In addition, Cocuzza wrote a report that was not objective. It contained his “opinions, conclusions and personality” in violation of the rules. 

Based upon this, the Court indicated that the deficiencies in the investigative process were not trivial and not cured by the evidentiary hearing provided by the City Council. Cocuzza’s lack of objectivity in the investigation undermined the fairness of the entire proceeding and required reversal of the decision to remove him.

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In the matter of Gary Stolinski v. State of New Jersey, Division of State Police, A-2412-07T3, the Appellate Division considered whether Gary Stolinski, a New Jersey State Trooper, was entitled to an award of counsel fees pursuant to N.J.S.A. 53:1-30, as a result of having to defend against an indictment charging official misconduct, credit card fraud, and identity theft.

On July 15, 2005, Stolinski was indicted and charged with official misconduct, credit card fraud, and identity theft based on the allegation that he used a State Police computer to make online credit card applications through the use of false information and by assuming the identity of others. Subsequent to being indicted, Stolinski was suspended from the force without pay.   

The indictment was ultimately dismissed on December 15, 2005. Thereafter, Stolinski was reinstated and reimbursed for the pay withheld during his suspension. Stolinski then demanded reimbursement for the counsel fees he expended in defending against the indictment. In response, the Attorney General’s office advised that the request for the payment of legal fees incurred in seeking back pay would be honored. However, the Division rejected the remaining aspects of Stolinski’s request and asserted there was no statutory basis for the reimbursement of attorney fees associated with: (1) the defense of criminal charges; (2) responding to the administrative disciplinary charge; or (3) seeking the expungement of his criminal record. This appeal ensued.

The Appellate Division concluded that the Division’s final agency decision was neither arbitrary, capricious, nor unreasonable because it was based upon a correct understanding of N.J.S.A. 53:1-30 and an accurate application of its terms to the allegations contained in the indictment. N.J.S.A. 53:1-30 provides that a law enforcement officer is entitled to be reimbursed only for those fees incurred “in an action or legal proceeding arising out of or directly related to the lawful exercise of police powers in the furtherance of official duties.”   

The Court determined N.J.S.A. 53:1-30 did not provide support for Stolinski’s claim because the allegations of the indictment were not directly related to his lawful exercise of police powers in the furtherance of official duties. In this case, Stolinski was alleged to have used a State Police computer to make false credit card application. Regardless of whether the allegations could or could not be substantiated, it is clear Stolinski was not charged with conduct that was in furtherance of his official duties on that occasion. As a result, the Court affirmed the Division’s determination.       

         

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In the case of In the Matter of Mark Moncho, Mark Moncho, a Sergeant First Class, appealed a final decision of the Division of State Police finding him in violation of Article VI, Section 2a of the Division’s regulations (performance of duties) and imposing a ten day suspension.

Moncho was assigned to the State Police Construction Inspection Unit. The Construction Unit is a component of the Traffic Bureau and operates as a partnership between the New Jersey State Police and the New Jersey Department of Transportation. In this capacity, Moncho was responsible for overseeing five sergeants who, in turn, supervised subordinate troopers. His responsibilities included: (1) reviewing the patrol charts and weekly reports of the sergeants and the subordinates; (2) time-keeping; and (3) day-to-day supervision of the Construction Unit.

Ultimately, the Division of State Police charged Moncho with violating a series of rules and regulations involving billing and overtime. Moncho pled not guilty to the charges and, on June 28, 2004, the Division transmitted the matter to the Office of Administrative Law. After conducting numerous hearing, the Administrative Law Judge (“ALJ”) concluded: (1) Moncho violated none of the specifications underlying disciplinary charges; and (2) nevertheless, Moncho was guilty of the performance of duties disciplinary charge based solely upon the amount of overtime he had earned. On August 2, 2007, the Division of State Police issued a final decision upholding the ALJ’s decision in its entirety. This appeal ensued.

On appeal, Moncho argued that when the ALJ found that the Division had not met its burden of proof as to the specifications in the charges, the ALJ dismissed all bases of liability of which Moncho had notice. Moreover, Moncho argued the Division’s decision to discipline him absent a showing that he engaged in fraud, misleading conduct, or the violation of a policy is arbitrary and capricious.

 

In its decision, the Appellate Division agreed with Moncho’s contentions. The Court concluded that the record did not support the Division’s decision and this was further compelled by the ALJ’s incongruous findings. In effect, the ALJ created a new basis on which to justify disciplinary action after hearing and rejecting the official charges and specifications lodged against Moncho. The Court further noted that at no time was Moncho ever notified that the accrual of overtime, in and of itself, could subject him to disciplinary action. Accordingly, the Court determined the final decision of the Division to be arbitrary, capricious, and unreasonable and thereby vacated the penalty imposed. 

         

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In the case of In the Matter of Carpenito, Sergeant Vincent Capenito appealed a final agency decision dismissing him from the Division of State Police. The Appellate Division sustained Carpenito’s dismissal and rejected his contention that the policy of progressive discipline required a less severe sanction.

On March 24, 2006, Carpenito was charged with five disciplinary infractions of the rules and regulations of the Division of State Police. The case was eventually transferred to the Office of Administrative Law as contested matter. A seven day hearing was conducted by an administrative law judge (“ALJ”), who issued an initial decision finding Carpenito guilty of the charges against him and recommending his termination of employment. Thereafter, Colonel Joseph Fuentes, Superintendent of the State Police, adopted the findings of the ALJ and dismissed Carpenito from the Division. This appeal followed.

On appeal, Carpenito argued: (1) there was insufficient evidence to support the findings that he engaged in conduct that warranted discipline; and (2) the sanction of dismissal was inconsistent with the general policy of progressive discipline. The Court, in rejecting Carpenito’s arguments, found that the Superintendent’s determination that Carpenito left his post while on duty and lied to investigators was based on Carpenito’s own admissions and, therefore, Carpenito’s contention that he was denied his right to cross-examine his wife because of her invocation of her Fifth Amendment right was of no consequence. 

Moreover, the Court found the Superintendent was entirely justified in terminating Carpenito’s employment due to the seriousness of the misconduct. The Court held that the Superintendent properly: (1) recognized that some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished record and; (2) considered Carpenito’s prior disciplinary history and numerous occasions of alleged domestic disputes. As a result, the Court determined the application of progressive discipline was not appropriate in light of Carpenito’s egregious conduct.

This case illustrates an instance of where a general policy of progressive discipline will not be adhered to by a public employer. Should a disciplinary infraction be very serious in nature, a policy of progressive discipline can and will be abandoned so as to ensure a proper disciplinary response. This outcome should be noted by all public safety officers who intend to rely upon their employer’s policy of progressive discipline when contesting a disciplinary action. The seriousness of the misconduct, along with prior disciplinary history, may be used to circumvent a policy of progressive discipline and, therefore, may impose more serious consequences upon an officer than originally anticipated.  

         

         

 

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In State v. Thompson, A-2279-07T4, the Appellate Division held that a violation of the Conflicts of Interest Law and a code of conduct adopted pursuant thereto is not a sufficient basis for criminal prosecution for official misconduct.

In the case, the State appealed from an order dismissing 36 counts of a 42 count indictment. Thirty two counts charged six Treasury employees and two employees of OSI Collection Services, Inc., a vendor selected by the State, after competitive bidding, to collect tax deficiencies and delinquencies, with official misconduct. Four counts charged two of the State employees and the OSI employees with engaging in a pattern of official misconduct.

Twenty eight of the counts can be grouped into fourteen pairs. One count in each pair charged the State employee(s) and an OSI employee, as an accomplice, with the receipt of a benefit, including meals, entertainment, spa treatments and golf outings. The other count charged failure to report the receipt of the benefit to the appropriate ethics authority. In large part, the State relied on the Department’s Code of Ethics as the source of the duty allegedly breached.

Four counts also charged official misconduct when State employees failed to recuse themselves from the process involving an allegation of improper billing by OSI, the extension of OSI’s contract, selecting the committee that evaluated the bids, determined the winning bidder, and setting conditions on the bid that presumably gave OSI a competitive advantage in violation of N.J.S.A. 2C:30-2a.

The Appellate Division, in affirming the dismissal of the receiving and failure to report counts, held that reliance on a violation of the Conflicts of Interest Law alone does not set forth a basis to impose criminal sanctions under the official misconduct statute as the imposition of criminal sanctions does not follow from a simple conflict of interest. There must be some additional allegation of wrongdoing. 

Considering the case law regarding official misconduct, the Court concluded that the imposition of criminal sanctions does not follow from a simple conflict of interest. Culpability is not based on the receipt of a gift in the absence of some additional allegation of wrongdoing. The Conflicts of Interest Law does not set forth a basis for criminal liability under the official misconduct statute. Although it sets forth the ethical obligations of State employment, its terms are not self-executing and do not proscribe any conduct. 

The Court also noted that the Conflicts of Interest Law and Code of Ethics apply to all employees in the Department, providing general and generic rules. However, official misconduct requires an alleged failure to perform a duty specifically required of the defendant’s office. Moreover, the Conflicts of Interest Law does not provide sufficient notice that the unreasonable appearance of impropriety may lead to a defendant’s conviction of a crime.

         

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In the case Reilly v. City of Atlantic City, 06-2591, the United States Court of Appeals for the Third Circuit held that a police officer’s testimony in a police corruption case is protected speech and his superiors are not entitled to qualified immunity regarding his retaliation claim. 

Appellee, Robert Reilly, a former Atlantic City police officer, filed suit against Robert Flipping, the Director of Public Safety, and Arthur Snellbaker, the Chief of Police, claiming that they retaliated against him for his participation, including trial testimony, in an investigation into police corruption a decade earlier. The alleged retaliation involved defendants formally recommending Reilly be demoted and suspended for 90 days, despite, after an extensive investigation, an independent hearing officer’s recommendation that Reilly serve a four day suspension for violating police department regulations.

Reilly accepted Flipping’s offer that he retire instead of being disciplined. Thereafter, Reilly filed this action alleging defendants’ actions violated his First Amendment free speech rights and Fourteenth Amendment right to procedural due process. The District Court denied defendants’ motion for summary judgment on the procedural due process claim, thereby declining to grant them qualified immunity. The Court also denied their motion for summary judgment on the First Amendment retaliation claim. This appeal followed.

The Third Circuit indicated that determining whether a public official is entitled to qualified immunity involves a two-step analysis. First, the court must decide whether a constitutional right would have been violated on the facts alleged and, if so, whether the right was clearly established. If the answer to the latter is “yes,” the defendant is not entitled to qualified immunity.

In analyzing whether Reilly had the claimed First Amendment right, the Third Circuit cited Garcetti v. Ceballos, 547 U.S. 410 (2006), which distinguished between employee speech and citizen speech and held that the First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities. Defendants argued under Garcetti they are entitled to qualified immunity on Reilly’s First Amendment claim because his testimony was made pursuant to his official duties and, thus, not protected by the First Amendment. 

In rejecting this argument, the Third Circuit noted: (1) every citizen owes the duty of giving testimony to aid in the enforcement of the law; (2) the overwhelming weight of authority concludes that an employee’s truthful testimony is protected by the First Amendment; and (3) there is a need to protect the integrity of the judicial process. Therefore, the Court concluded that the fact that Reilly’s official duties provided the impetus to appear in court is immaterial to his independent obligation as a citizen to testify truthfully. Reilly’s testimony constituted citizen speech and his claim is not foreclosed by the “official duties” doctrine announced in Garcetti and, as a result, defendants are not entitled to qualified immunity. 

This case has significance for any public safety officer who is called to testimony in a matter related to his official duties. Public safety officers, as with other citizens, have an obligation to testify truthfully in a court proceeding not only to preserve the integrity of the judicial process, but to ensure just enforcement the law. More importantly, however, this case illustrates that an officer’s superiors who retaliate against him/her will not be entitled to qualified immunity in a subsequent civil suit.      

         

         

 

         

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The Superior Court of New Jersey, Law Division, Passaic Vicinage, (DeLuccia, J.S.C.) recently interpreted a collective bargaining agreement (CBA) pertaining to discipline in the case of Whitaker v. Passaic County Sheriff's Department, 33-3-139.  In this case the Plaintiff appealed her right to challenge minor disciplinary charges which were previously dismissed for alleged failure to exhaust administrative remedies under the CBA. 

Instead of proceeding with the grievance procedure as outlined under the CBA, Whittaker opted to challenge the minor discipline at a disciplinary hearing.  After the disciplinary hearing was decided, Whittaker next attempted to appeal the decision through the grievance procedure as outlined in the CBA.  Whittaker was denied the right to grieve the charges by her employer stating that she was precluded from doing so due to the fact that she had chosen to challenge the charges at a hearing and is thus not entitled to pursue the case by way of grievance. 

The Superior Court of New Jersey, Law Division, took the liberty to interpret the CBA and held that a reasonable interpretation of the agreement would permit an employee charged with a minor disciplinary infraction to proceed first to an administrative hearing to challenge the charges and then, if adverse action is taken by the employer, to demand arbitration of the dispute under the CBA. 

This is an interesting case in that it appears to give a Public Safety Officer "two bites at the apple" when challenging minor disciplinary charges.  Furthermore, we normally do not see Superior Court Judges stepping into disputes between public employers and employees especially when it comes to the interpretation of a CBA.  Interpretation of agreements is traditionally left to the Public Employment Relations Commission (PERC) and the Appellate Division.  I think what we should take away from this case is that there is always more than one reasonable interpretation of a collective bargaining agreement, and Public Safety Officers should not be afraid or hesitate in certain circumstances to challenge their employers in the Superior Court of New Jersey, Law Division.

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In an unpublished opinion, the Appellate Division, Superior Court of New Jersey upheld the decision of the Merit System Board, New Jersey Department of Personnel, that the appellant's failure to file his appeal of the Final Notice of Disciplinary Action within twenty (20) days from the issuance of the Final Notice of Disciplinary Action barred him from appealing said charges on any level. 

In the Matter of Santiago, New Jersey Department of Corrections, 25-2-1072, App. Div., the Appellant was employed by the New Jersey Department of Corrections as a Senior Corrections Officer.  The Appellant waived his Departmental or Agency Hearing pertaining to the Preliminary Notice of Disciplinary Action that charged him with conduct unbecoming a public employee.  His attorney requested the issuance of a Final Notice of Disciplinary Action subsequent to the waiver however the Appellant claimed that he never received said final notice despite the contentions of the New Jersey Department of Corrections that the same was issued.  Appellant waited five (5) months prior to pursuing the appeal and the Merit System Board refused to accept the appeal and transmit the case to the New Jersey Office of Administrative Law for a De Novo hearing.

The Appellate Division affirmed the decision of the Merit System Board stating that the Appellant's delay of five (5) months in issuing his appeal was well beyond the allotted twenty (20) day period and his removal from employment was upheld.

The bottom line is that it is the employee's responsibility to ensure that his or her appeal of any major disciplinary action is perfected within 20 days of the issuance of the Final Notice of disciplinary Action.  Excuses such as the one offered by Santiago where five (5 ) months lapse before an appeal is filed will not be accepted nor recognized by the Courts.

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In the world of Public Employee Discipline as it pertains to New Jersey municipal police officers, we often turn to N.J.S.A. 40A:14-147, or more commonly referred to as the “45 day rule", in ensuring that municipalities act within a reasonable time frame in bringing disciplinary charges against public safety officers. The New Jersey Attorney General’s Guidelines provide that pursuant to N.J.S.A. 40A:14-147, disciplinary charges alleging a violation of the agency’s rules and regulations must be filed within 45 days of the date the person filing the charge obtained sufficient information to file the charge. Specifically, N.J.S.A. 40A:14-147 states that, a “Complaint charging a violation of the internal rules and regulations… shall be filed no later than the 45^th day after the date on which person filing the complaint obtained sufficient information to file the matter upon which the complaint is based.”

Many municipalities, police departments, and collective bargaining units have interpreted N.J.S.A. 40A:14-147 as being applicable to all disciplinary charges and alleged misconduct whether the same violated internal rules, regulations, or procedures or in the alternative fell under misconduct as defined under Title 4A of the New Jersey Administrative Code, or 2C criminal misconduct. However, the world of police discipline as we used to understanding it no longer exists. The Appellate division has clarified N.J.S.A. 40A:14-147.

In the case of McElwee v. Borough of Fieldsboro, A-1230-06T3, the New Jersey Superior Court, Appellate Division opined that N.J.S.A. 40A:14-147’s time limit for bringing disciplinary charges against an employee does not apply when the charges are based on misconduct grounded in title 4A of the New Jersey Administrative Code, nor 2C of the New Jersey Criminal Code. Thus, municipalities may take their time in charging alleged misconduct and do not have to adhere to the “45 day” rule so long as the alleged misconduct is grounded in title 4A of the New Jersey Administrative Code or 2C of the New Jersey Criminal Code.

It appears that the only way collective bargaining units can now broaden the scope of N.J.S.A. 40A:14-147 is to include a contractual clause in collective bargaining agreements that places time restraints on “all disciplinary charges”. The bottom line is that the protection New Jersey municipal police officers once enjoyed under N.J.S.A. 40A:14-147 is not as broadly defined as it used to be. 

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