Appellate Division Affirms Police Officer's Removal for Misconduct

Posted on June 3, 2010 by Donald Barbati

On June 3, 2010, the Appellate Division decided In the Matter of Torres Mayfield, Docket No.: A-2969-08T1. In the case, Torres Mayfield appealed from the final decision of the Civil Service Commission (“Commission”) terminating him as an Atlantic City police officer for misconduct.

Mayfield was charged with violations of Atlantic City Police Department Rules and Regulations relating to a domestic dispute involving J.M., who is deaf. In the early morning hours on April 1, 2006, J.M. sought help from police complaining that she was assaulted by her boyfriend, Mayfield. She was bruised and beaten by Mayfield because he thought she was communicating on the computer with an old boyfriend. Mayfield punched her in the face and threatened to hang himself if she left him. That night J.M. was distraught, upset and scared. She was treated in the hospital and photographed.

J.M. eventually dismissed her municipal court charges against Mayfield. She refused to testify at the administrative hearing because Mayfield is the father of her child and they resided together. She was arrested and forced to appear at the administrative hearing. At the hearing, she was defiant and appeared distraught, upset and scared.

During the investigation, Mayfield said that on the night in question he was with Rodney Jamal Armstrong and Ali Cottrell. Mayfield told the investigating detective that when they arrived at his house, J.M. said she was hit by a boot thrown by Mayfield’s son. Armstrong testified he was at a club with Cottrell, but not Mayfield. Armstrong said Mayfield called him telling him and Cottrell about the boot.

The Administrative Law Judge disbelieved the testimony from J.M. that she was struck by a boot. The injuries were not consistent with being struck by a boot, and it was clear to the ALJ that J.M. did not want to contribute to the case against Mayfield. The ALJ found that Mayfield was untruthful by attempting to create an alibi and blame his son. As such, the ALJ found Mayfield assaulted J.M. and was untruthful in his response to the investigation. The Commission adopted the findings of fact made by the ALJ and found the termination of Mayfield as a police officer was justified. This appeal ensued.

On appeal, Mayfield contended the administrative decision was not based on legally competent evidence and that, even if the record supports a finding of guilt, his termination was not in accordance with the principles of progressive discipline.  The Appellate Division rejected his arguments and affirmed his termination. Specifically, the Court found that Mayfield failed to demonstrate that the ALJ’s decision was arbitrary, capricious or unreasonable. Moreover, the Court agreed with the ALJ that Mayfield’s offenses in this case were severe enough to warrant his removal despite lack of a substantial prior disciplinary history.

Tags: , , , , , , ,

Termination of Internal Affairs Officer Who Disclosed Pending Investigation Affirmed

Posted on June 2, 2010 by Donald Barbati

On June 1, 2010, the Appellate Division decided In the Matter of Michael Sottilare, Department of Corrections Hudson County, Docket No.: A-4761-08T3. In the case, Michael Sottilare appealed from a Civil Service Commission (“Commission”) decision affirming the Hudson County Division of Personnel’s termination of his employment with the county’s Department of Corrections.

Sottilare, after more than ten years as a corrections officer, received four preliminary notices of disciplinary action arising from events commencing on November 30, 2005 and continuing through December 23, 2005. The final incident resulted in his termination.

While on leave due to an on-the-job injury, Sottilare was videotaped working at a construction site in contravention of Hudson County’s policy requiring persons on leave to remain at home unless they are receiving medical care or purchasing medication. A disciplinary charge of malingering issued as a result. Shortly thereafter, on December 23, 2005, Sottilare made a telephone call to the New Jersey Policemen’s Benevolent Association Local 109 office in order to obtain legal representation for the hearing scheduled on the malingering charge and to request a postponement. Officer Shaara Marie Green, then the Vice President of PBA Local 109, answered the phone call.

When Green testified before the Office of Administrative Law, she said she told Sottilare that the union could not provide him with legal representation because the Internal Affairs Unit (“IAU”) officers were no longer members. Sottilare had been assigned to IAU since 1995 or 1996. Green also told Sottialre to obtain his own attorney, and gave him the name of the person that his attorney should contact in order to request the postponement.

Green also testified that after she told Sottialre that PBA Local 109 could not provide him with counsel, Sottilare informed her that she was under investigation by IAU. Sottialre explained to Green that surveillance was being initiated because she was reportedly living with an ex-inmate in violation of departmental policy. 

Green immediately telephoned Ricardo Alves, Sottilare’s supervisor at IAU, to report the conversation. When Alves testified, he confirmed that he received a call from Green about the complaint that had been filed against her and that Sottilare had told her that she was the subject of an IAU investigation. Deputy Warden David Krusznis confirmed that Green was being investigated and said that disclosure of the existence of a pending IAU investigation is a violation of departmental policies and procedures, as well as of guidelines promulgated by the Office of the Attorney General.

After considering all the available testimony, which included testimony by Sottilare refuting Green’s version of events, the Administrative Law Judge (“ALJ”) found Green to be more believable, persuasive, and more credible than Sottilare. Based on this testimony, the ALJ found Sottilare disclosed a pending investigation. Since this was a serious violation of his job responsibilities, the ALJ concluded that removal was the appropriate penalty for his conduct. After the Commission affirmed the ALJ’s determination, this appeal ensued.

On appeal, Sottilare argued that even if Green’s testimony is credited and he breached the applicable confidentiality rules, termination was too severe a penalty. The Appellate Division rejected this argument and affirmed the Commission’s decision to remove him. According to the Court, Sottilare’s breach of confidentiality displays a fundamental lack of trustworthiness, thereby warranting his removal. As indicated by the Court, termination is warranted whenever the employee’s conduct is unbecoming to the employee’s condition or renders the employee unsuitable for continuation in the position. Consequently, the Court determined that Sottialre’s conduct made him unsuitable to continue in his employment as an IAU officer.
Tags: , , , , , ,

Termination of Corrections Officer Sustained

Posted on December 23, 2009 by Donald Barbati

 

On December 21, 2009, the Appellate Division decidedIn the Matter of Edwin Garcia, Department of Corrections Hudson County, Docket No.: A-1404-08T3. In the case, Edwin Garcia appeals from the final administrative action of the Civil Service Commission, terminating his employment as a corrections officer with the Hudson County Department of Corrections.

At issue were two disciplinary matters. In the first, the County maintained that Garcia failed to include in a report the fact that another officer had lunged at a handcuffed inmate and grabbed the inmate’s shirt. As a result, the County charged Garcia with insubordination, conduct unbecoming a public employee, neglect of duty, and other sufficient cause. In the second disciplinary matter, the County asserted that, while involved in an incident with an inmate, Garcia used excessive force despite being ordered numerous times to cease. For this incident, Garcia was charged with conduct unbecoming a public employee, neglect of duty, and other sufficient cause. The County sought to terminate Garcia’s employment.

The County held a hearing on the disciplinary charges on March 2, and April 4, 2007, wherein the hearing officer sustained the charges. A final notice of disciplinary action terminating Garcia’s employment was issued on June 7, 2007. Garcia appealed the decision to the Civil Service Commission and a hearing was held before an Administrative Law Judge.

The ALJ sustained both charges, finding, with respect to the first incident, that “Garcia submitted a report omitting the use of excessive force on an inmate” and, with respect to the second incident, that “Garcia used excessive force to subdue inmate E.B. by striking him, although ordered to desist by superior officers.” In the Initial Decision, the ALJ concluded that Garcia had committed conduct unbecoming a public employee, neglect of duty, and insubordination. In light of Garcia’s prior record and the nature of these offenses, the ALJ imposed the sanction of removal. The Commission, in its independent evaluation of the record, concluded that the removal was justified. This appeal ensued.

 On appeal, Garcia argued the findings of the Commission were not justified and the sanction of removal was arbitrary and capricious. The Appellate Division affirmed Garcia’s termination. Specifically, the Court found that there was substantial credible evidence supporting the findings of the ALJ and the conclusions reached by the Commission. The Court also determined the sanction of termination for the infractions is not unreasonable or disproportionate in light of the offenses, particularly when viewed in conjunction with Garcia’s prior disciplinary record.     

Tags: , , , , , , , , , ,

Termination of Corrections Officer Reversed

Posted on July 17, 2009 by Donald Barbati

 

On July 16, 2009, the Appellate Division decided In the Matter of Michael Brown, Monmouth County, Docket No.: A-5157-07T3. In the case, Michael Brown appealed from a final decision of the Merit System Board (“Board”) upholding the termination of his employment as a Monmouth County Corrections Officer after finding that he tested positive for marijuana.

Brown was employed by Monmouth County as a corrections officer for approximately fifteen to seventeen years. According to Captain Thomas J. Philburn, Personnel Captain at the correctional facility, Brown was “a very low-keyed, soft-spoken individual” who did his job and had no prior disciplinary problems other than some minor “attendance-related issues.”

The County uses National Safety Compliance (“NSC”), a safety services and compliance company certified by the Substance Abuse and Mental Health Administration, to perform random drug tests on its employees in accordance with the County’s substance abuse policy. NSC, in turn, employs Lab One, located in Kansas, to perform the actual laboratory tests on the samples.

On July 13, 2004, Brown was randomly selected for a drug test pursuant to the County’s policy. When the test was reported as positive for marijuana use, the matter was heard internally and Brown was found to have violated the County’s substance abuse policy. After a final notice of disciplinary action was served on Brown on August 24, 2004, the matter was transferred to the Office of Administrative Law (“OAL”) as a contested case.

A hearing was held before the OAL on December 7, 2005 and two witnesses testified on behalf of the County, Captain Philburn and Ronald Raslowsy, President of NSC. Neither of the witnesses had any personal knowledge of the procedures used for the testing, nor could they establish a chain of custody from the time the sample was taken to the time it was purportedly tested at the laboratory in Kansas.

Radomsky testified that he “believed” that the Attorney General guidelines for testing a law enforcement officer were followed, but had no personal knowledge as to whether they actually were. He did know, however, that the proper interview form was not used. He had no knowledge of who was present when Brown was tested, who witnessed the test, whether the sample was properly labeled, packaged and shipped, or who participated in the shipping of the sample. Nevertheless, the Administrative Law Judge (“ALJ”) rendered an initial decision on October 20, 2006 sustaining the charges and ordering Brown’s removal.

 

The Board remanded the matter to the OAL because the proofs submitted by the County were so illegible and incomplete that it could not make a determination on Brown’s appeal. The Board directed the County to call additional witnesses to authenticate the validity of the documents or provide additional testimony. A second hearing was held via telephone on May 9, 2007, but no additional witnesses and no additional documents were submitted into evidence, although the County did provide more legible copies of the same documents previously submitted.

After the remand hearing, the ALJ found that the documentation submitted established a “reasonable probability that the integrity of the sample had been maintained, and of the validity of the laboratory analyses that appellant’s sample tested positive for marijuana.” However, no one could verify that the test was conducted in accordance with the Attorney General guidelines or that the sample was properly collected, properly labeled, properly shipped and properly tested. Nevertheless, after the Board reviewed the ALJ’s remand decision, it agreed with his findings and recommendation. This appeal ensued.

On appeal, Brown argued that: (1) the Board’s final decision was arbitrary and capricious; (2) the case was entirely based upon hearsay evidence; (3) the documents were entirely hearsay and unreliable on their fact; (4) the Board erred in remanding the matter to the OAL; (5) the chain of custody for the sample was never established; (6) the Attorney General’s drug testing guidelines were not followed; (7) the County’s own drug testing guidelines were not followed; and (8) the County violated his constitutional right to privacy.

The Appellate Division disagreed with the ALJ’s finding after remand that the documents presented by the County satisfied New Jersey Rule of Evidence 803(c)(6). The Court noted that the County’s entire case was based upon incompetent, inadmissible evidence. Even under the relaxed evidentiary standard of an administrative hearing, the testimony and the documentary evidence were so substantially lacking in reliability that they could not support the case against Brown. As a result, the Court determined the Board’s decision was not supported by sufficient, credible evidence in the record. Therefore, the Court reversed and vacated the Board’s final decision.
Tags: , , , , , , , , , ,

Termination of Municipal Patrolman Upheld

Posted on June 16, 2009 by Donald Barbati

 

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.

Tags: , , , , , , , , ,