On September 8, 2009, the Appellate Division decided In the Matter of Sergeant Maryelyn Conway, Docket No.: A-6162-07T3. In the case, Sergeant Maryelyn Conway appeals from an administrative determination of the New Jersey Transit Police Department suspending her for a period of four days for two related minor disciplinary infractions.
On the night of December 13, 2004, a car crashed onto an embankment above the New Jersey Transit train tracks in Waldwick. The vehicle was in a precarious position, with only a small tree preventing it from falling onto the tracks. Due to the danger that the vehicle might fall, train traffic in both directions was stopped.
Conway, a sergeant with the New Jersey Transit Police Department, was the supervising officer on duty at the time of these events. She did not go to the scene of the accident, but rather New Jersey Transit Police Officer Victor Migliorino was sent there. He reported to her that the Waldwick fire department, police, and emergency medical personnel were present, and that Waldwick personnel had taken charge of the scene. He did not believe Conway’s presence at the scene was necessary. She later deployed two other officers to the scene, contending that she did so in order that one of the officers could acquire more experience. She received periodic reports of the status of the scene from the officers present. She acknowledged in one radio transmission that it would have been easier if she were present. The New Jersey Transit police officers present did not play an active role in attending to the accident scene since Waldwick personnel were in charge. About an hour and one half after Conway was advised of the incident, the car was removed, and normal train traffic resumed.
Disciplinary charges were filed against Conway on January 10, 2005, due to her failure to go to the accident scene. She was charged with violating a General Order, which requires a police sergeant, as part of her duties and responsibilities, to “direct[ ] and participate[ ] in activities at the scene of emergencies.” Conway was also charged with “unsatisfactory performance” due to her failure to respond to the scene herself.
The internal disciplinary hearing was conducted on May 20, 2008. In a lengthy written opinion, the hearing officer found the charges to be substantiated. In the final agency decision dated July 1, 2008, New Jersey Transit Police Chief Jospeh C. Bober found Conway guilty of both charges and imposed a two-day suspension for each charge, for a total suspension of four days. This appeal ensued.
On appeal, Conway raises due process and fundamental fairness issues, maintaining that the three-year delay between the filing of the charges and the hearing violated her constitutional rights. In addition, she asserts that in conducting the investigation in this matter, New Jersey Transit violated the internal affairs guidelines promulgated by the New Jersey Attorney General’s Office. Conway also contends that New Jersey Transit has failed to meet its burden of proof with respect to the charges.
The Appellate Division noted that the record contained substantial credible evidence supporting New Jersey Transit’s finding that Conway committed the two infractions. Further, the Court found no merit in Conway’s contention that her due process rights or principles of fundamental fairness were violated because of the delay between the filing of the charges against her and the date for the hearing. Nor did the Court find that principles of laches barred the prosecution due to this gap in time. As such, the Court affirmed the final agency determination and upheld the four day suspension.
