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 by nj.com, the State Police trooper who killed two teenage sisters in a 2006 Cape May County car crash should not collect more than two years of salary he lost while awaiting trial, an administrative judge recommended yesterday.

The trooper, Robert Higbee, was suspended without pay for 27 months and 12 days before being acquitted of vehicular homicide charges. Administrative Law Judge Bruce Gorman recommended an equivalent suspension, which would effectively prevent him from recouping back pay. However, he said Higbee did not need to be fired. 

“Nothing can be gained from terminating the professional life of a potentially valuable public servant,” Gorman wrote. “At the same time, due to the totality of the circumstances of this case, it would be wrong to allow (Higbee) to benefit from this tragedy by paying him public funds for work he did not perform. In light of all the circumstances, such a result would be shocking to a fundamental sense of fairness and contrary to the public interest.” He also wrote, “(Higbee) committed a fundamental breach of duty by failing to familiarize himself with the area he was patrolling.”

Gorman’s ruling goes to State Police Superintendent Rick Fuentes, whose decision can be appealed in state court. Fuentes’ decision is due in 45 days. Higbee’s lawyer said he will urge Fuentes to disregard the judge’s recommendation.

David Jones, president of the State Troopers Fraternal Association, said there’s no precedent for the lengthy suspension the judge recommended. He said it’s based on a flawed understanding of the case. “It’s inconsistent with the transcript, it’s inconsistent with the trial facts, it’s inconsistent with the exhaustive expert testimony,” he said.  

Higbee was on duty in his marked troop car when he ran a stop sign while chasing a speeder in Upper Township, Cape May County. His flashing lights and sirens were off because he was “closing the gap” with his target, which he asserts is correct police procedure.

While crossing the intersection, he slammed into a minivan driven by 17-year old Jacqueline Becker. Both Becker and her sister, Christina, 19, who was in the passenger seat, were killed. The following year Higbee was indicted for vehicular homicide, but a jury acquitted him in 2009. Last year, Fuentes fild disciplinary charges against Higbee, saying he had performed his duties in a “culpably inefficient manner” by running the stop sign.

Higbee, 38, is currently on duty in the Atlantic City Casino Investigations Unit.

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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.

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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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