Irvington Township Police Officer Terminated

Posted on January 5, 2010 by Donald Barbati

 

On December 24, 2009, the Appellate Division decided In the Matter of Eugene I. Otto, Police Department, Township of Irvington, Docket No.: A-1112-08T3. In the case, Eugene Otto appealed from a final decision of the Civil Service Commission finding that his removal as a member of the Irvington Police Department was justified and dismissing his appeal.

On February 1, 2006, Otto was served with fifteen separate disciplinary charges for violating various provisions of the Irvington Police Manual. Various offenses were alleged, including withholding information, failing to perform his duties, insubordination, using derogatory terms, and being untruthful. Following a departmental hearing, all the charges were sustained, and Otto was removed from the force. 

Otto appealed to the Merit System Board, now known as the Civil Service Commission, and a hearing was held before an administrative law judge who sustained the following charges: one count of conduct unbecoming a public employee, two counts of being untruthful, and one count of using derogatory terms. The administrative law judge also concluded that there was insufficient evidence to sustain the remaining charges and they were dismissed. He also concluded that the charge of using derogatory language was not of sufficient import to warrant significant discipline, but the remaining charges constituted “mutinous and disruptive behavior” that, in light of Otto’s disciplinary hearing, warranted his dismissal from the force. The Civil Service Commission agreed.  This appeal followed.

On appeal, Otto contended that the charges against him should have been dismissed as untimely, that certain evidence was insufficient to support the charges against him, and that the punishment of dismissal was arbitrary and capricious. The Appellate Division found: (1) the disciplinary charges were timely filed within 45 days of the prosecutor’s office advising the township that it had determined that Otto’s statements were not truthful; (2) Otto’s actions constituted conduct unbecoming a public employee; (3) Otto’s charges that that department chief had deliberately shirked his responsibilities and acted out of improper racial motivations was not protected speech and therefore was not speech for which he could not be disciplined; and (4) the sanction of removal was not unduly severe give Otto’s disciplinary record and the gravity of the offenses.  As such, the Court affirmed the Civil Service Commission’s decision.

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Trial Court Authority to Impose Discipline Different From Municipality Upheld

Posted on April 7, 2009 by Frank Crivelli

On March 31, 2008, the Superior Court of New Jersey, Appellate Division, decided the case Detective Sergeant Dean Ackermann v. Borough of Glen Rock and Glen Rock Police Department, Docket Number A-2947-07T2. In the case, the parties appealed and cross-appealed from an order entered by the trial court.

Plaintiff has been a member of the Glen Rock Police Department for more than twenty years. He holds the rank of sergeant and the title of detective. Defendants are the Borough of Glen Rock and its police department. On October 3, 2006, Steven D. Cherry, Chief of the Department, served Plaintiff with a disciplinary notice, charging him with acting contrary to good order and discipline and violating Glen Rock’s “No Tolerance Policy” with respect to wrongdoing in the workplace. The notice contained no recommendation with respect to discipline.

Three days later, Chief Cherry served an amended notice of disciplinary action which set forth nine charges. In the amended notice, Chief Cherry recommended that Plaintiff be suspended for three days without pay and be required to attend an approved course in sensitivity training. The charges were based upon complaints by Anna Maria Mattina, the Borough’s first female police officer. She alleged certain conduct by Plaintiff toward her was unwanted and harassing.

Plaintiff denied any wrongdoing, would not accept the proposed discipline, and requested a hearing. The hearing officer sustained the charges, but rejected the recommendation as to discipline. He recommended Plaintiff be suspended without pay for ten days as well as attend an approved course in sensitivity training. The report was submitted to the mayor and council, which accepted his findings but rejected the recommendation for discipline. The council passed a resolution suspending Plaintiff without pay for sixty days, demoting him to police officer and requiring completion of a course in sensitivity training before returning to active duty. 

In response, Plaintiff filed a three-count complaint in lieu of prerogative writ, contending that the evidence presented did not support the findings that were made, the procedure utilized did not conform to the Attorney General’s Internal Affairs policies and procedures that the Borough adopted, and that the increase in penalty was retaliatory.

The trial court, hearing the matter as a trial de novo, concluded that only two of the violations had been proven and that the penalty imposed by the Borough was excessive. The Court directed Plaintiff be suspended for two concurrent periods of thirty days without pay and complete a course in sensitivity training. This appeal ensued.

On appeal, the Appellate Division held that, when hearing a police disciplinary matter de novo, a trial court has the authority to impose a sanction other than that imposed by the municipality. In this case, the Court found no error in directing that Plaintiff not be demoted and instead imposing a suspension and directing attendance at sensitivity training. Moreover, the Court found that although Defendants violated the Attorney General’s guidelines for conducting a disciplinary hearing, the trial court correctly found that the errors did not prejudice the Plaintiff.

         

 

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