Discipline Regading Dissemination of Internal Affairs Documents Upheld

Posted on January 14, 2009 by Frank Crivelli

 

In Division of State Police v. In the Matter of Detective Sergeant First Class Daniel Flaherty, Docket No. A-0257-07T20257-07T2, the Appellate Division addressed the validity and ultimate imposition of disciplinary charges lodged against a Detective Sergeant of the New Jersey State Police. The appeal arose out of disciplinary charges filed by the New Jersey Division of State Police (“Division”) against Detective Sergeant First Class Daniel Flaherty, charging him with: (1) disseminating Division documents without proper authorization; (2) behaving in an official capacity to the personal discredit of a member of the State Police or to the Division; and (3) willfully disobeying a lawful verbal or written order.

The underlying facts of this case were not substantially in dispute. In 2001, Flaherty filed an age discrimination complaint with the New Jersey State Police Equal Employment Opportunity/Affirmative Action (“EEO/AA”) intake unit. He alleged that since 1995, the State Police had denied him numerous specialist positions because of his age. The EEO/AA assigned Lieutenant Patrick Reilly to investigate his claim. After two years, in which the allegations still had not been resolved, the EEO/AA replaced Reilly with DSFC Kevin Rowe.

On May 5, 2003, Flaherty filed a New Jersey State Police Reportable Incident Form alleging “culpable inefficiency” against Reilly. Pursuant to a Division policy regarding non-disclosure of confidential internal investigations, the Office of Professional Standards (“OPS”) denied his request to access the file regarding his complaint against Reilly.

The following month, the State Police administratively closed Flaherty’s complaint file against Reilly and transferred the matter to the Attorney General’s EEO/AA section. In a letter dated September 24, 2003, a Senior Deputy Attorney General informed Flaherty that his claim against Reilly could not be substantiated. 

Thereafter, on May 31, 2003, the Division assigned Flaherty to the OPS, which was then called the State Police Internal Affairs Investigation Bureau. Pursuant to Division of Internal Affairs policies and procedures, “[t]he nature and source of internal allegations, the progress of internal affairs investigations, and the resulting materials are confidential information. The contents of internal investigation case files shall be retained in the internal affairs unit and clearly marked as confidential.” Notwithstanding these provisions, internal investigation files can be released in certain enumerated circumstances.  As such, Flaherty executed a confidentiality agreement which provided the dissemination of all confidential information and/or documents.

In a letter dated February 20, 2004, the Department of Law and Public Safety found that Flaherty’s age discrimination claims could not be substantiated. In his appeal to the Department of Personnel, Flaherty questioned the manner in which the State Police and the Attorney General’s office investigated his

 

discrimination claims and his complaint against Reilly. Attached to the appeal were several documents from OPS internal investigation files relating to Reilly and several documents from the internal investigation file regarding his culpable inefficiency claim against Reilly. He also claimed that two other State troopers had filed reportable incident forms against Reilly, specifically citing to one of the internal investigation files.

The Department of Personnel acknowledged receipt of Flaherty’s appeal and forwarded a copy of same to the Attorney General’s office. In responding to the appeal, it became apparent Flaherty might have breached confidentiality by attaching Division documents from internal investigation files. Consequently, an investigation was commenced regarding Flaherty’s acquisition and dissemination of several of the documents referenced in and attached to his appeal. After the investigation, on August 25, 2005, the Division filed the above referenced disciplinary charges against Flaherty. 

The case was ultimately transferred to the Office of Administrative Law. The Administrative Law Judge (“ALJ”) assigned to the case granted a summary decision in favor of the State on charges one and three, dismissed charge two, and ordered Flaherty suspended from duty for five days without pay. After the State filed exceptions seeking to increase the penalty and Flaherty challenged the grant of summary decision as well as the penalty, the Superintendent of the State Police issued a final decision on August 1, 2007, upholding the summary decision on charges one and three, but increasing the suspension to ten days. This appeal ensued.

On appeal, Flaherty asserted: (1) genuine issues of material fact precluded summary decision; (2) the ALJ failed to consider relevant evidence; (3) the ALJ applied the incorrect burden of proof; (4) the Superintendent erred by adopting the Department of Personnel’s finding that his discrimination claims were “unsubstantiated”; (5) the Superintendent erred in asserting that he has “absolute discretion” to promulgate rules and regulations; (6) he was unfairly charged with two violations based on the same facts; and (7) the ten day suspension is disproportionately harsh.

The Appellate Division rejected all of Flaherty’s arguments and affirmed the Superintendant’s decision. According to the Court, the record sustained the ALJ’s grant of summary decision imposing disciplinary action on Flaherty for attaching the records from the Internal Affairs Unit of the State Police. The Court determined Flaherty knew the records he attached to and referenced in his appeal were confidential. Moreover, the Court noted Flaherty even executed a confidentiality agreement which specifically prohibited such dissemination. As such, the Court held the ten day suspension was not disproportionately harsh and sustained the findings of the ALJ and Superintendent.
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Non-Civil Service Municipality's Promotion Decision Overturned

Posted on November 18, 2008 by Frank Crivelli

 

On November 17, 2008, the New Jersey Supreme Court decided the case of Borough v. Glassboro v. Fraternal Order of Police Lodge No. 108,  A-75-07. In this case, the Court addressed the validity of an arbitrator’s award addressing the legality of a police officer promotion made by the Borough of Glassboro, a non-civil service municipality.

In 2004, the Borough of Glassboro Police Department (“Borough”) announced an opening for the position of lieutenant. Three candidates applied, including Sergeants Peter Amico and William Highley. As a non-civil service municipality, the Borough is not subject to the statutory requirements of a comprehensive promotional procedure. Rather, state law only requires that due consideration is given to the officer proposed for promotion and to the length and merit of the officer’s service, with preference being given to seniority in service.

The Borough implemented a three stage promotional procedure. The scores from Phase I and II were aggregated for a total possible score of 100%. Phase I consisted of an interview with the Borough Chief of Police and was worth 20%. Phase II involved an oral and written exam and was worth 80%. Phase IIA, the written portion, was a multiple-choice test designed by the International Association of Police Chiefs. Phase IIB, the oral component, consisted of interviews with a panel of four independent police chiefs. Following Phase I and II, the cumulative final scores were as follows: Sergeant Amico, 93.8, and Sergeant Highley, 92.4.

In Phase III, each applicant was interviewed by the Borough Public Safety Committee, which included Borough Council members, the Borough Administrator, and the Chief of Police. Candidates were advised that they would be asked questions “concerning their department’s SOPs Rules and Regulations, in addition to questions concerning the Boro Personnel Policy & Procedures and Boro Ordinances.” The purpose of Phase III was to test leadership intangibles that are necessary for the position and evade formal testing. After the completion of Phase III, Highley, ranked second in the Phase I and II testing, was awarded the promotion.

Amico learned in subsequent conversations with the Chief of Police and the Borough Administrator that his move out of the Borough had a possible negative effect on the promotional decision. The Fraternal Order of Police, Local 108 (“FOP”) filed a grievance on Amico’s behalf, thereby claiming: (1) that the use of Phase III as more than a “confirmatory interview” altered the terms and conditions of employment in violation of the collective bargaining agreement between the Borough and FOP; and (2) the Borough violated N.J.S.A. 40A:14-122.6 by making residency a factor in its promotional decision.

 

The matter was ultimately submitted to arbitration after the grievance was unable to be resolved. The arbitrator concluded that Amico was improperly deprived of the promotion contrary to statute and that he should be promoted with full back pay. In making his ruling, the arbitrator noted that Amico, whose education and seniority were greater than Highley’s, was 1.4 points ahead of Highley after Phases I and II, but then fell behind following the Phase III interview. The arbitrator also pointed out that there was nothing in the record to positively determine what elements in that interview caused Amico to fall behind Highley. The arbitrator further surmised from the testimony that Amico had recently moved away from the Borough and that a non-civil service municipality can only use residency in a tiebreaker on the promotional test, which was not the case here.

Thereafter, the Borough filed a complaint in the Superior Court, wherein the arbitrator’s award was stayed pending the outcome of the case. In the complaint, the Borough alleged: (1) that it had placed substantial evidence in the record noting what occurred during the Phase III interview; and (2) the arbitrator disregarded the testimony of the Borough Administrator, the Police Chief, and all the Phase III documentation referenced during the arbitration. Attached to the complaint were two pages of questions asked of each candidate in Phase III, as well as the Chief’s corresponding notes concerning each candidate’s answers.

The trial judge denied the Borough’s motion to vacate the arbitrator’s award or to hold a plenary hearing. In so holding, the judge noted that so long as the arbitrator’s determination is reasonably debatable it should not be disturbed. Accordingly, the judge affirmed the arbitrator’s award, but granted the Borough’s motion for a stay pending appeal. 

The Appellate Division affirmed on appeal, essentially because it agreed with the arbitrator and the trial judge that the record was bare regarding the Borough’s reasoning for elevating Highley over Amico, thereby rendering the promotion of Highley arbitrary and capricious. The Borough appealed and the Supreme Court granted certification.

The Supreme Court held the arbitrator properly determined that the record did not adequately support the elevation of Highley over Amico. However, the Court did indicate it was beyond the arbitrator’s power to fashion a remedy that promoted Amico. Therefore, the judgment of Appellate Division was affirmed and reversed in part and the case was remanded for proceedings consistent with its holding.

In support, the Court noted that an arbitrator must uphold a non-civil service municipality’s promotion decision unless the decision was clearly arbitrary, capricious, or unreasonable, since judicial review of an arbitrator’s decision is limited and the decision should not be set aside easily. The New Jersey Arbitration Act permits courts to vacate an arbitration award in only limited defined circumstances. In addition, a court may vacate an arbitration award that is contrary to existing law or public policy as embodied in legislative enactments, administrative regulations, or legal precedents.

After reviewing the record in this case, the Court agreed with the arbitrator’s decision. The Court noted that the arbitrator’s conclusion that the record shows no reasoning by the Borough for elevating Highley is unassailable. The Court further noted this case stands for the unremarkable proposition that, should a grievant make the type of showing that Amico made here, and should the municipality not provide even the simplest explanation on the record for some kind of rational reason for its decision, the decision cannot stand. 

The Court also indicated that the Legislature, through statue, clearly established residence as a tie-breaker in non-civil service municipalities. However, in this case, there was no tie after the first two phases, simply out, Amico was ahead of Highley. Moreover, the Court also noted that if the record was inadequate regarding how Highley passed Amico during Phase III, it was equally deficient in respect of Amico’s leadership skills and how, upon testing, he lost his lead. Therefore, it was beyond the arbitrator’s power to fashion a remedy that promoted Amico and, thus, the matter must be remanded to the Borough to conduct a new Phase III proceeding.
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STATE TROOPER'S CLAIM FOR ATTORNEYS' FEES DENIED

Posted on November 6, 2008 by Frank Crivelli

 

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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State Trooper Discipline Overturned

Posted on October 31, 2008 by Frank Crivelli

 

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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