New Jersey Public Safety Officers Law Blog : New Jersey Public Safety Employee Lawyer & Attorney : Pellettieri, Rabstein & Altman Law Firm : Workers Compensation, Discipline Representation for Police & Firefighters : New Jersey

As reported in the Trentonian on February 9, 2010, legislation requiring public workers to assume a portion of their health benefits costs and providing relief to the State pension system has been introduced. The package of bills introduced follows vows by Democratic leaders in the State Senate to revisit pension reform recommendations made four years ago.

One bill requires state, local, and school district workers to contribute at least 1.5 percent of their salary toward their health care costs. Another caps at $15,000 the amount of unused sick time that can be cashed in at retirement. A third bill repeals the 9 percent pension benefit increase put in place in 2001 by changing the way pensions are calculated. The last bill in the package requires the State to make its annual payment to the pension system, not skip it or short it, as has been the custom in recent years.

Most of the proposals would affect new hires, not those already in the pension system. However, the measure requiring public workers to contribute toward their health care costs would take effect when their current contract expires. No figures were immediately available on the potential savings. 

The pension system is underfunded by about $34 billion and is in danger of becoming insolvent unless fixes are made. The proposals were first made in 2006 after the Legislature met in special session to come up with ways to lower New Jersey’s property taxes, which average $7,045 a household and are the highest in the country. Pension and health care costs are major drivers of property taxes. 

Former Governor Jon Corzine halted some of the legislative-driven reforms, arguing that they should be part of the collective bargaining process. The State’s Unions, which have long resisted pension reforms, supported Corzine’s position. 

Other highlights of the bills include: (1) limiting enrollment in the pension system to those considered full time; (2) enrollment in a defined contribution plan for part-timers; (3) calculating pension benefits based on the 5 highest years of salary, instead of the 3 highest years, for future public workers, and basing benefits on the 3 highest years, instead of the highest year, for future State Police employees; and (4) allowing pension benefits based on one job, not multiple positions.  

Please check this blog periodically to ascertain updates with regard to this proposed legislation. Were the bills ultimately passed, there is no doubt they would have a drastic effect on New Jersey Public Safety Officers.

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On January 27, 2010, the Appellate Division decided Gregory Russo v. Board of Trustees, Police and Firemen’s Retirement System, Docket No.: A-3706-08T2. In the case, Gregory Russo appealed from the March 10, 2009 final determination of the Board of Trustees of the Police and Firemen’s Retirement System (“Board”) denying his application for accidental disability benefits.

On November 29, 2001, during his first year as an officer for the Montclair Police Department, Russo was dispatched to the scene of a residential fire with three other officers. They entered the burning building, determined that there were four residents inside and escorted two children and an adult to safety from the first floor. They could hear a fourth person calling for help from the second floor and tried to reach him, but could not safely proceed upstairs because of the fire’s rapid advance. As they were attempting to rescue the fourth occupant, local fire department personnel entered the building and ordered the police officers to leave. The man on the second floor died as a result of the fire.

After being evacuated from the residence, Russo witnessed the fire department removing the fourth occupant’s body through a window and was verbally berated by the man’s family for not doing enough to rescue him. The officers were taken to the local emergency room to be treated for smoke inhalation and were released the following morning. As a result of this traumatic event, Russo was diagnosed with post-traumatic stress disorder.

The initial decision of an Administrative Law Judge (“ALJ”) who considered the matter, issued on November 6, 2008, found that Russo met the standard for receipt of accidental disability benefits. The ALJ found that Russo was eligible because he considered the reasonable person test to be “fully satisfied under the known facts of this case.” In contrast, the Board, although it adopted the ALJ’s factual findings, rejected the ALJ’s legal conclusions and denied Russo’s application. This appeal ensued.

The Appellate Division determined that it was constrained to agree with the Board in light of the substantial deference afforded to an administrative decision. According to the Court, none of the four officers who responded to the fire suffered any injuries beyond the smoke inhalation for which Russo was treated. Moreover, the Court noted that although the sight of the lifeless body of the fourth occupant of the burning building being removed was no doubt traumatic, police officers are trained to deal with injured and dead citizens under a multitude of horrific circumstances, including homicides, automobile accidents and natural disasters. Russo’s trauma was further compounded by being verbally berated by the surviving family members. However, the Court found that circumstance, in and of itself, does not constitute a traumatic event. Therefore, the Court agreed with the Board’s conclusion to deny Russo’s application for accidental disability retirement.

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As reported in the Trentonian on September 22, 2009, federal oversight of the New Jersey State Police has come to an end. U.S. District Court Judge Mary L. Cooper has ended federal monitoring of the New Jersey State Police more than 10 years after the shooting of unarmed minority men during a highway traffic stop prompted intervention over racial profiling.

Judge Cooper signed the order dissolving a consent decree, following a joint motion filed in August by the State and U.S. Justice Department. The move followed Governor Jon Corzine’s bill signing in August that established an office within the State Attorney General’s office to oversee the State Police.

State Police agreed to federal oversight after troopers on the New Jersey Turnpike shot at a van containing four minority men during a 1998 traffic stop, wounding three of them. The agency has implemented major changes since then, including training and new supervisory policies to monitor road stops. In addition, trooper vehicles now contain dashboard cameras to videotape traffic stops. 

In a 2007 semiannual report, federal monitor Jim Ginger said that the State Police force is a different organization than when troopers fired on the van. Ginger and a second monitor tracked troopers’ stops of minority motorists for years, issuing reports every six months. The monitors found the State Police consistently in compliance for several years before the judge lifted the order. Corzine confirmed the finding with an independent review.

David Jones, President of the State Police Fraternal Association, commended the troopers but condemned the Attorney General’s office for not having policies and systems in place that would have allowed the State Police to identify and resolve isolated incidents of profiling. Specifically, Jones stated, “Former attorneys general for their own political expediency were willing to throw the state police under the bus…a decade later, we can look back at who the true professionals are and at those people who would sacrifice public safety for their own careers.”

To view the article in its entirety, please click on the following link.

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On July 31, 2009, the Appellate Division decided In the Matter of Eddie Gonzalez, Docket No.: A-0644-07T2. In the case, Eddie Gonzalez, a Newark Police Officer, appealed from a final decision of the Merit System Board (“Board”) adopting the findings of fact and conclusions of an Administrative Law Judge (“ALJ”), concluding that Gonzalez engaged in conduct unbecoming a public employee and violating certain Newark Police Department (“Department”) rules and regulations. The Board adopted the ALJ’s recommendation and imposed a six-month suspension.

In June 2003, Richard Diaz lived in Newark, and Gonzalez was his next-door neighbor. Diaz and Gonzalez were involved in a dispute, which resulted in Diaz filing a harassment claim against Gonzalez alleging that Gonzalez kissed Diaz’s minor daughter. On June 9, 2003, Newark Police Officer Philip Turzani was assigned as a dispatcher for the Department. Near the end of his 6:00 a.m. to 2:00 p.m. shift, he received a call from Gonzalez asking Turzani if he would like Gonzalez to bring him coffee. 

Gonzalez then arrived at the Newark Police and Fire Public Safety Communications Center (“Center”) at approximately 1:30 p.m., in plainclothes, and requested that Turzani run a license plate number through the Department’s computer system. Turzani asked Gonzalez if his purposes for running the plate were “legal,” and Gonzalez responded that his neighbor was trying to obtain a job and wanted to check his driving history. Turzani admitted to running the license plate, but could not recall the name of the individual connected with the search. Turzani stated that Gonzalez viewed the screen with the results on it.

Upon returning home from vacation on June 19, 2003, Diaz received twelve motor vehicle summonses in the mail. The summonses were allegedly issued by Officer Edward Sculthorpe of the Department on June 9, 2003 at approximately 2:00 p.m. Diaz challenged the summonses, claiming that he had not been stopped by a Newark police officer on that date. At the court hearing regarding the summonses, Officer Sculthorpe denied writing them and they were dismissed.

The summonses prompted a further investigation as on June 25, 2003, Diaz filed an Internal Affairs complaint with the Department against Gonzalez. In response to the complaint, Captain Robert Sbaraglio of the Department spoke with Sculthorpe, who confirmed that he had not written the summonses. Following the dismissal of the summonses, Sbaraglio conducted a preliminary investigation and identified the summons book that had been issued to Sculthorpe as the source of the summonses. Sbaraglio then had both Gonzalez and Sculthorpe submit administrative reports regarding the summonses. Both denied issuing the summonses.

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On July 28, 2009, the Appellate Division decided In the Matter of Donald Michelson, Department of Safety, City of Union. In the case, Donald Michelson sought review of the Final Administrative Action of the Merit System Board accepting and adopting the initial decision of the Office of Administrative Law (“OAL”). The Administrative Law Judge (“ALJ”) found that the City of Union had proven its charges of neglect of duty, other sufficient cause, and absence without leave against Michelson and concluded that the penalty of suspension without pay for six (6) work days was reasonable and consistent with progressive discipline.

On October 14, 2005, Michelson, a sergeant in the Union Police Department, was assigned to work in the communication center from 2330 hours to 0730 hours but did not report for duty. The Police Department schedule cycle requires officers to report for duty four days on and three days off per week for three weeks, then report for duty four days on and two days off for one week (called “the short week”). Before 0400 hours, Sergeant Botti, the Desk Officer Supervisor called Michelson to inquire about his absence. Apparently, Michelson mistakenly believed he was on the short week and not scheduled to work that day. He ultimately reported for duty at 0400 hours.

The Police Department charged Michelson with neglect of duty, absence without leave, and other sufficient cause. Due to his absence, which was undisputed, the ALJ determined: (1) the communication center was without supervision for approximately four and one-half hours; and (2) the desk sergeant put aside his regular duties to conduct an inquiry into Michelson’s absence. The ALJ also noted the police department operates as a paramilitary organization and prompt attendance is critical to the efficient operation of the department. The ALJ further found that the six-day suspension comported with the concept of progressive discipline. The ALJ, reasoning that Michelson had no intention to report for duty until Botti called him, rejected Michelson’s contention that he was merely tardy, not absence without leave.   

The ALJ, noting that superior officers such as Michelson must set an example for subordinate officers, also rejected Michelson’s claim that he was subjected to disparate treatment because no other officer had been suspended for arriving late. Additionally, the ALJ concluded that the record was insufficient to support a claim of disparate treatment as it did not contain the prior disciplinary records of the other employees, a factor bearing on the discipline to be imposed. Thus, no reasoned comparison could be made. Consequently, the ALJ affirmed Union’s determination that Michelson be suspended for six (6) days.

On review by the Board, it accepted and adopted the ALJ’s findings of fact and conclusions of law and found “that the action of the appointing authority in suspending [Michelson] was justified.” Accordingly, it affirmed the action and dismissed Michelson’s appeal. This appeal ensued.

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U.S District Court Judge Frieda L. Wolfson dismissed a lawsuit by a group of New Jersey State Troopers seeking to overturn the ban on allowing them to practice law while being employed by the State Police. The decision was filed on July 9, 2009.

“If the troopers were to prevail on this argument, state agencies would be precluded from holding their public employees, specifically attorneys, to a higher ethical standard than those imposed on private attorneys,” Judge Wolfson wrote in her decision. 

Two trooper unions, and twenty one (21) troopers working as lawyers, had argued the State was preventing troopers from pursuing another profession. The State said representing clients and enforcing the law presents an inherent conflict of interest, prohibited under a 2007 revision of the State’s ethics code.

Frederick J. Gordon, president of the Non-Commissioned Officers Association, said they hoped troopers already practicing law could be exempted. “We’re disappointed in the outcome,” he said. “I don’t know what our next step is.”

The unions argued that troopers’ legal work, such as drafting wills or helping with real estate closings, does not conflict with their criminal justice work. However, the State argued that even basic legal tasks could cause problems.”

“By way of example, if a trooper is retained to draft a will for a client, and happens to come across nefarious, possibly illegal, activity during his review of his client’s confidential personal records, the trooper would find himself in an unenviable position, obligated by his duties as an officer of the law to report the crime while simultaneously constrained by his oath as an attorney to protect his client’s confidences,” Judge Wolfson’s decision explained.

The debate centered on a 2007 change to the State’s ethics code. The previous version prohibited almost all attorneys in the department from practicing law outside their job. The revision extended that prohibition to state troopers.

David Wald, spokesman for Attorney General Anne Milgram, praised Judge Wolfson’s decision. “In rejecting the state troopers’ challenge to that rule, Judge Wolfson recognized the potential for conflicts between a private attorneys’ responsibilities to their clients and the department’s law enforcement responsibilities,” he said. “She concluded that the prohibition on the private practice of law by state troopers was an appropriate means to preserve the public trust.”

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On July 7, 2009, the New Jersey Supreme Court decided State v. Anthony Bogan, Docket No.: A-7-08. In the case, the Court considered whether, during an investigation into an alleged sexual assault, a police officer’s warrantless entry into an apartment was justified under the community caretaking exception to the warrant requirement.

In 2004, a receptionist at Passaic Mill Work noticed a young girl outside on the sidewalk crying hysterically. The receptionist invited the girl inside. The girl’s name was Kathleen and she was fourteen years old. Kathleen stated that a person who was supposed to drive her to school had molested her. The police were called and Kathleen informed the officers that she had been offered a ride by a male family friend, later identified as Defendant Anthony Bogan. Instead of taking her to school, Bogan drove Kathleen to an apartment in Clifton, where he lured her into a second-floor apartment and molested her. Kathleen gave a description of Bogan that included his race, age, height, and clothing, and told the officers that while she was inside the apartment a young boy named Wally was there.

Accompanied by Kathleen, three officers proceeded to the apartment. On their arrival, they found parked in front a gray Audi, which Kathleen identified as the car driven by Bogan. The officers rang the bell to the second-floor apartment. They heard an adult-sounding male voice yell from inside the apartment, “Who is it?” The officers identified themselves as police. Wally, who was approximately twelve years old, answered the door in his pajamas. The officers followed Wally up the stairs toward the apartment, asking him if he was home alone. Wally’s response that no one was home was inconsistent with the adult male voice that had responded when they rang the doorbell. At the top of the stairs, with Wally inside the apartment and the officers on the landing outside the doorway, the conversation continued. When officers asked the whereabouts of Wally’s mother, he gave conflicting answers and seemed nervous. The officers thought that Wally might be in danger. When the telephone rang in the kitchen, which was located immediately inside the apartment, Wally picked up the receiver and told the officers that his father was on the phone. One of the officers asked Wally if he could speak with his parent, and Wally responded “certainly.” The officer walked a few steps into the apartment and was handed the receiver by Wally. While on the telephone, the officer was able to see into a bedroom where Bogan was lying on the bottom level of a bunk bed. Bogan fit the description given by Kathleen, and the officer motioned for the other officers to enter the apartment.

An officer read Bogan the Miranda warnings. Bogan identified himself as “Anthony Green.” Another officer, who was on the telephone with Wally’s mother, was told that Anthony Bogan was supposed to be caring for Wally. Upon further questioning, Defendant stated that Bogan was his “maiden name.” While communicating with headquarters, the officers learned that there were multiple arrest warrants for Anthony Bogan. 

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On June 11, 2009, the Appellate Division decided Michael Kappre v. Borough of Paulsboro, Docket No.: A-3573-07T3. In the case, the Paulsboro Police Chief filed misconduct charges against Michael Kappre, a former patrolman and sniper for the Paulsboro Police Department’s SWAT team. The Borough of Paulsboro sought Kappre’s termination. Kappre pleaded not guilty to the charges filed and a hearing was held before a hearing officer. Following administrative review, the hearing officer upheld the decision to terminate Kappre.

Kappre filed a complaint in lieu of prerogative writs, seeking a de novo review pursuant to N.J.S.A. 40A:14-150. Judge Farrell heard additional testimony from Kappre and Chief Thomas Sullivan of the Gloucester County Prosecutor’s Office and rendered factual findings and conclusions in a written opinion. The trial judge sustained three charges of insubordination and untruthfulness and one charge of incapacity to hold office. Accordingly, Judge Farrell concluded the charges warranted Kappre’s removal. This appeal ensued.

On appeal, Kappre argued the charges lodged against him should have been dismissed because the record does not support his conduct demonstrated insubordination. Moreover, Kappre asserted there was a lack of credible evidence in the record to suggest he committed misconduct and the trial judge erred in discounting the testimony of his expert.

After evaluating the record in light of the arguments raised by Kappre in conjunction with the applicable legal standards, the Appellate Division affirmed Judge Farrell’s determinations. The Court was satisfied from its review of the record that Judge Farrell’s findings of fact were supported by substantial credible evidence and the conclusions based thereon should not be disturbed. Specifically, the Court noted that deference to Judge Farrell’s findings, which include determinations of credibility, was particularly appropriate in this case since they were substantially influenced by his opportunity to hear and see the witnesses and to have the “feel” of the case, which the Appellate Division, as a reviewing court, cannot enjoy.

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On May 28, 2009, the Honorable Peter A. Buchsbaum, J.S.C. decided Mark Petersen v. Township of Raritan, Docket No. HNT-L-446-08. The complaint alleged contractual violations of the 1997-1999 collective bargaining agreement between the Township of Raritan and the Plaintiff.

Plaintiff was police officer who retired in 1999. The 1997-99 collective bargaining agreement included retiree health benefits at Article XXII. As of July 1, 2008, current employees and retirees would no longer be able to enroll in the Traditional Plan. Those who were already enrolled in that plan, such as Plaintiff, could switch to the POS plan without any cost to them. They could, however, choose to remain in the Traditional Plan, provided they agreed to pay the excess premium between these two plans from that point in time.

Count one of the complaint alleges a violation of Section 5 of the insurance clause of the collective bargaining agreement because, as of July 1, 2008, Plaintiff is paying a premium differential for the Traditional Plan in which he is enrolled, that is, the difference in premium costs between the Traditional Plan and the POS plan offered by the Township. Count two of the complaint alleges a violation of Section 5 of the insurance clause of the collective bargaining agreement because, as of July 1, 2008, Plaintiff’s co-pays for certain prescription drugs have increased. In response to the complaint, Defendant moved for summary judgment.

The trial court found the language of the collective bargaining agreement sufficiently complex to warrant further examination. Specifically, the court found ambiguity in the insurance clause as to whether the language “shall continue to receive all health and medical benefits provided by the employer for the remainder of his life” would reasonably lead Plaintiff to believe that he would receive health coverage equivalent to the Traditional Plan for the remainder of his life. Therefore, the court determined Defendant’s motion for summary judgment was premature and, thus, factual exploration of the issues in this matter is necessary.

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On May 19, 2009, the Appellate Division decided State of New Jersey v. Yusef Gethers, Docket No.: A-5323-06T4. By way of background, on March 24, 2005, a Union County grand jury returned an indictment charging Defendant, Yusef Gethers, with second-degree certain persons not to possess a weapon, N.J.S.A. 2C:39-7(b)(1). On the same date, a Union County grand jury returned an indictment charging Defendant with third-degree unlawful possession of a weapon, a handgun, N.J.S.A. 2C:39-5(b) (count one), and fourth-degree possession of a prohibited device, hollow point bullets, N.J.S.A. 2C:39-3(f). 

Following denial of his motion to suppress evidence, Defendant pled guilty to count one of the indictment, third-degree unlawful possession of a weapon. Pursuant to a plea bargain reached with the State, Defendant was sentence to five (5) years probation, conditioned upon 364 days of house arrest. The trial court dismissed the remaining charges under the indictments as well as an outstanding municipal court warrant. The trial court also imposed the appropriate fees and penalties. Thereafter, this appeal ensued when Defendant appealed the suppression ruling.

In this case, the Appellate Division determined the motion to suppress evidence obtained in a vehicular search, specifically, a gun found in a backpack not in plain view, was improperly denied by the trial judge. The Court found the State did not carry its burden of demonstrating a recognized exception to the warrant requirement where: (1) both occupants were outside the car and did not have access to the backpack; (2) there was no possibility they would leave the area; (3) the officers’ conduct did not indicate a belief the occupants were armed and dangerous; (4) there was no evidence of accomplices who might have come onto the scene or other persons who had access to the car destroying or disposing of the evidence or moving the car; (5) the car was parked in a residential driveway so there was no issue of traffic obstruction; (6) the ratio of officers to suspects was 4-to-2; and (7) the Defendant was in a wheelchair. Consequently, the Court reversed the trial judge’s ruling and remanded the case back to the trial court.

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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

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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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