Termination of Middlesex County Sheriff's Officer Upheld

Posted on April 28, 2009 by Donald Barbati

On April 28, 2009, the Appellate Division decided In the Matter of Joan Ivan, Docket No.: A-1070-07T2.  Following a hearing conducted on April 15, 2003, appellant, Joan Ivan (“Ivan”), a Middlesex County Sheriff’s Officer, was suspended for thirty days as the result of disciplinary charges stemming from her alleged failure to truthfully report smoking by a fellow officer while in an official vehicle. In contrast, the officer committing the prohibited offense, after pleading guilty, was given a four-day suspension that could be served use of vacation days. Ivan appealed to the Merit System Board on May 16, 2003.

Thereafter, on August 22, 2003, Ivan was terminated when, in nine attempts over three days, she was unable to requalify for use of her service weapon. She appealed on September 12, 2003 and she filed an order to show cause on September 19, 2003, in which she contended that the Sheriff’s Department had violated her right to due process of law as the result of its failure to conduct a hearing prior to termination. The Department reinstated Ivan and served her with a preliminary notice of disciplinary action on September 29, 2003. Following a hearing on September 30, 2003, Ivan was served, on October 14, 2003, with a final notice of disciplinary action removing her from her position.

The two matters were referred to the Office of Administrative Law for a hearing, where they were consolidated for that purpose without objection. Following the hearing, at which testimony was given by numerous witnesses, the Administrative Law Judge (“ALJ”) recommended dismissal of the charge leading to Ivan’s suspension, but affirmance of the termination decision. No attorney’s fees were awarded. The Merit System Board adopted the ALJ’s decision, and this appeal followed. On appeal, Ivan challenged the Board’s failure to award counsel fees in connection with her appeal from the thirty day suspension, and she challenges the Board’s adoption of the ALJ’s findings with respect to her termination and the ALJ’s legal ruling with respect to the admissibility of expert testimony in connection with her termination.

The Appellate Division affirmed the Merit System Board’s determination in its entirety. Specifically, the Court rejected Ivan’s arguments that: (1) she was given insufficient opportunity to qualify with her weapon; (2) the ALJ should have admitted the testimony of her firearms qualification expert; and (3) she was entitled to counsel fees on her successful appeal from her suspension. After reviewing the decision of the ALJ and the Board in detail, the Court determined the Board’s action was supported by sufficient, credible evidence in the record as well as well-established statutory law and, therefore, was not arbitrary, capricious, and unreasonable.

 

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Termination of Police Officer Arising from Substance Abuse Upheld

Posted on April 15, 2009 by Donald Barbati

On April 15, 2009, the Appellate Division decided In the Matter of Cornelius Caruso, Docket No.: A-1612-07T1. In the case, Cornelius Caruso appealed his termination as police officer in the City of Orange Police Department.

Caruso became a police officer in 2000. In 2005, he began to experience serious problems related to his use of alcohol. He voluntarily entered a program at the Carrier Clinic in December 2005. When he did so, he failed to follow the Department’s requirement that he notify the communication supervisor and apply for a leave of absence. No charges were filed with respect to that omission.

Caruso left the Carrier Clinic in March 2006. He was found by the Department to be fit for duty and returned to work on April 1, 2006. Caruso was instructed to make periodic reports concerning his recovery, which instruction was confirmed in a letter from the City’s attorney to Caruso’s attorney. No such periodic reports were ever made.

The Department permits fifteen days of sick leave per year. The Department assessed Caruso for use of 2006 sick leave only during the period from January 1 to January 10, 2006. The period from January 11 to March 31, 2006, was charged as a combination of administrative and compensatory leave. After Caruso’s return to duty in April, he went out on sick leave from April 6 to April 18; May 10 to July 7; October 25 to November 4; and December 12 to the end of 2006. Consequently, by December 2006, Caruso had taken significantly more sick leave than was permitted by the Department.

On December 12, 2006, Caruso left work because of an eye infection. However, according to Caruso, his problem with alcohol use returned in December 2006. On December 22, 2006, Caruso left his home and traveled to Hazelden, a rehabilitation clinic located in Minnesota. He again failed to notify the communications supervisor, although others apparently notified one of his superiors who subsequently contacted Caruso and arranged for him to surrender his service weapon. Caruso also failed to complete the required form for a leave of absence.

As a result, on January 18, 2007, the City filed formal disciplinary charges against Caruso. The disciplinary charges were as follows: (1) performance of duty; (2) insubordination; (3) obedience to laws and rules; and (4) abuse of sick leave. 

Caruso left Hazelden and returned to New Jersey on January 19, 2007. He started intensive outpatient aftercare on January 23, 2007, which required his attendance at a program for four hours a day, four days per week, as well as attendance at Alcoholics Anonymous sessions.

 

On January 25, 2007, Caruso attended a meeting at the Department, at which time he was served with the notice of discipline and preliminarily suspended. On February 12, 2007, Caruso was terminated pursuant to a final notice of disciplinary action. 

Caruso appealed to the Merit System Board, which referred the matter to the Office of Administrative Law as a contested case. A hearing was held before an Administrative Law Judge (“ALJ”) in August 2007. The ALJ’s initial decision upheld Caruso’ removal, sustaining three of the four charges in the City’s notice of discipline. The Board adopted the ALJ’s decision and upheld the termination. This appeal ensued.

On appeal, Caruso argued the Board’s decision “was not based on credible evidence in the record and was not consistent with case law” and that the termination was an excessive penalty. The Appellate Division disagreed. The Court upheld the Board’s decision in its entirety, including Caruso’s termination. Specifically, the Court noted the City complied with certain requirements delineated in the case law and previous decisions when it permitted Caruso to take the leave of absence for the Carrier Clinic. In addition, the Court noted that there was no basis to overturn the City’s decision that termination was an appropriate penalty. 

The case illustrates the importance of a New Jersey public safety officer being cognizant of the policies and procedures of his/her department in the event a leave of absence is necessitated by substance abuse.  In the event the requisite policies and procedures are not adhered to, missing time from employment could lead to the imposition of disciplinary charges and possible termination from employment.

 
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Potential for Reimbursement of Wages Received During Period of Suspension

Posted on March 27, 2009 by Frank Crivelli

On March 20, 2009, the United States District Court for the District of New Jersey decided the case of Wade v. Colaner. In the case, plaintiff, a Tinton Falls police officer, was pulled over by New Jersey State Troopers for speeding. Plaintiff was subsequently charged with careless driving, obstruction of administration of law, and resisting arrest. On account of this incident, he was suspended from his position of employment.

Ultimately, plaintiff brought this action alleging excessive force and deliberate indifference. Defendants counterclaimed against Plaintiff for reimbursement of the wages paid to Plaintiff during his suspension and moved for summary judgment as to Plaintiff’s other claims. The Court denied Defendants’ motion to dismiss Plaintiff’s excessive force claim, but dismissed Plaintiff’s deliberate indifference claim. Moreover, the Court granted the Tinton Falls Defendants’ motion for summary judgment finding that Plaintiff was not entitled to a pre-suspension hearing and also granted the motion for summary judgment for reimbursement of the wages paid to Plaintiff during his suspension.

This case shows that a public safety officer who is suspended from his or her employment and is continuing to receive their wages during the period of suspension potentially may have to reimburse their employer for the wages they have received. As a result, public safety officers should be conscious of this possibility in the event they are suspended from employment.

A similar type concept was the subject of previous posts to this blog regarding the 180 day bill recently signed into law. As you will recall, the bill, in essence, allows certain law enforcement officers and firefighters to regain pay status when appeals of termination are not resolved within 180 days. Under this bill, if an officer and/or firefighter has been receiving his/her base salary after expiration of the 180 day period and he/she ultimately loses their appeal, the officer and/or firefighter will be required to reimburse the employing agency of department all of the base salary received during the period of appeal. Certain rules of law such as these make it imperative for public safety officers to be informed regarding all the potential consequences in the event they are targeted for suspension and/or removal.   

 

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Officer's Resignation Not Attributed to Duress, Upheld

Posted on January 21, 2009 by Frank Crivelli

 

In In the Matter of Thomas F. Fricano, Borough of Freehold, Docket No.: A-2280-07T3, the Appellate Division addressed Appellant Thomas Fricano’s appeal from final decisions of the Merit System Board (“Board”), dated September 27, 2007 and December 7, 2007, upholding his resignation in good standing from the Borough of Freehold Police Department.

By way of background, Fricano received a regular appointment as a police officer in Freehold on April 3, 2006. The appointment was subject to the successful completion of a one-year probationary working test period, commencing after completion of a police training course. On February 2, 2007, Fricano, in a written letter, resigned to pursue other opportunities in law enforcement. The appointing authority accepted the resignation, which was made effective February 22, 2007. 

The circumstances surrounding Fricano’s resignation are in dispute and at the core of the appeal. According to Fricano, on February 2, 2007, after having served ten months of his one-year probationary working term, he was summoned to the office of the Police Chief. Allegedly, the Chief ordered Fricano “to resign or be terminated immediately.” Denied his request for legal representation or to have a PBA representative present, Fricano drafted and submitted a letter of resignation under duress and coercion. Thereafter, on February 16, 2007, Fricano’s counsel wrote to the Chief requesting that he be able to rescind the resignation. The Borough attorney advised Fricano that he would not be reinstated, instead stating that “they could have fired him instead.” Subsequently, on March 13, 2007, Fricano was issued a preliminary notice of disciplinary action, charging him with numerous violations. On March 22, 2007, the appointing authority withdrew the charges and, thereafter, on March 28, 2007, issued Fricano a letter indicating that he did not satisfactorily complete his working test period and that he was being terminated effective April 3, 2007.

The Borough offers a different version. When called to his office, the Chief advised Fricano that his performance during the working test period had not been satisfactory, and, therefore, offered him the option to resign effective February 22 or face termination for failure to satisfactorily complete his working test period. This offer was made so that Fricano could avoid any stigma which might attach to an involuntary termination. Fricano decided to resign and submitted a resignation letter the same day. In the letter, Fricano explain that he resigned to pursue “a different choice in the Law Enforcement Career.” Although he did not work after February 2, he was paid through February 22, and his resignation was recorded effective February 22, 2007. After being subsequently informed of Fricano’s intention to challenge his resignation, the police department issued the preliminary notice of disciplinary action on March 13, 2007. On March 22, 2007, the police department withdrew the charges and, instead, as a cautionary measure, issued a letter to

 

Fricano informing him that he had not successfully completed his working test period. 

Thereafter, Fricano filed an administrative appeal challenging his resignation. In a September 27, 2007 decision, the Board upheld the resignation, finding insufficient evidence that Fricano’s resignation was the product of duress or coercion. This appeal followed.

The Appellate Division affirmed the Board’s finding that Fricano voluntarily resigned his position. The Court determined there was sufficient credible evidence that Fricano was told he would be terminated because he had not satisfactorily performed during his working test period. Moreover, the Court found that Fricano voluntarily chose to accept the offered opportunity to resign to avoid any stigma attached to termination. According to the Court, Fricano’s deliberate choice of available alternatives cannot, under the circumstances of this case, be ascribed to duress.
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