RICHARD SHANNON v. CITY OF PLEASANTVILLE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0504-04T10504-04T1

RICHARD SHANNON,

Plaintiff-Appellant,

v.

CITY OF PLEASANTVILLE,

Defendant-Respondent.

_______________________________

 

Submitted December 5, 2005 - Decided

Before Judges Rodr guez and Alley.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, L-2700-03.

Jacobs & Barbone, attorneys for appellant (Louis M. Barbone, on the brief).

Alfred R. Scerni, Jr., attorneys for respondent (Alfred R. Scerni, Jr., and Giovanna Lombardo, on the brief).

PER CURIAM

Richard Shannon appeals from an order dated August 13, 2004, of Assignment Judge Valerie H. Armstrong. The order implemented a decision set forth in her detailed written decision dated August 12, 2004, affirming the determination of the City of Pleasantville's Public Safety Committee to the effect that specified conduct by appellant constituted the basis for his termination from the City's Fire Department.

In her written decision, Judge Armstrong set forth as follows the procedural background:

Plaintiff, Richard Shannon (Shannon), was hired as a firefighter in the City of Pleasantville (the City) in 1988 and sworn into the position of firefighter in 1989. On October 23, 2000, Shannon was served with a Preliminary Notice of Disciplinary Action and Notice of Disciplinary Hearing alleging violations of various policies and regulations applicable to the Pleasantville Fire Department (Department). The Notice was filed one day after Shannon was arrested in the City of Atlantic City on drug charges. He was suspended without pay pursuant to Pleasantville Ordinance, Section 39-9.

Ultimately, Shannon was indicted pursuant to Indictment No. 00-11-2371A, charging him with a third degree offense, possession of a controlled dangerous substance in violation of N.J.S.A. 2C:35-10(a)(1). Shannon entered a "not guilty" plea in the Superior Court, Law Division, Criminal Part.

On April 29, 2003, the State dismissed the criminal indictment and filed an amended charge, alleging a disorderly persons offense for loitering for the purpose of illegally possessing a controlled substance in violation of N.J.S.A. 2C:33-2.1. On that same date, Shannon pled guilty to the disorderly persons offense and was sentenced to probation for one year by Criminal Part Presiding Judge Albert Garofolo.

On May 23, 2003, Shannon provided written notice to the City of the disposition in the Criminal Part and demanded a hearing within thirty days pursuant to N.J.S.A. 40A:14-19. On July 14, 2003, supplemental departmental charges were filed against Shannon to include the April 29, 2003 guilty plea.

A hearing on the disciplinary charges was held before the Public Safety Committee (Committee) of the Pleasantville City Council on August 6 and August 13, 2003. On the first day of the hearing, Shannon moved unsuccessfully to limit testimony to the "City's specific notice of him being guilty of a disorderly offense." (footnote omitted). Counsel for the City observed that it was not proceeding solely on the grounds that

Mr. Shannnon committed a criminal act. I want to draw your attention to the rest of the things: number one, conduct unbecoming an officer and employee of public service; number two, disorderly or immoral conduct; and number three, misconduct pursuant to N.J.S.A. 40A:14-19. So it's not just a matter that he did the act. It's the repercussions of that, and it's the effect upon the city.

On September 12, 2003, the Committee issued a Memorandum of Decision terminating Shannon from his employment.

On September 29, 2003, Shannon filed with the Superior Court a Complaint in Lieu of Prerogative Writs pursuant to N.J.S.A. 40A:14-22 et seq., seeking the following judgment against the City:

a. De novo hearing and trial on all charges administratively filed and determined in the City of Pleasantville Public Safety Committee;

b. Reinstatement to his office as a firefighter pursuant to N.J.S.A. 40A:14-19 and 14-22;

c. Full restoration of office, payment of all back pay, benefits and emoluments of office as well as an assessment of all counsel fees incurred in his defense;

d. Any and other relief the Court deems equitable and just.

On November 10, 2003, the City filed an Answer to the Complaint requesting that the court affirm the Committee's decision and dismiss Shannon's Complaint.

Thereafter, the court set a briefing schedule. The Superior Court de novo hearing was held on May 12, 2004.

On this appeal, appellant sets forth in his brief points contending that the judge "erred in affirming the penalty of termination and by failing to conduct a meaningful review of Detective Barber's testimony."

After reviewing the facts, Judge Armstrong made appropriate findings of fact and conclusions of law. Among other things, her opinion carefully reviewed Barber's testimony and it resolved issues as to the weight and credibility of the evidence and determined the following:

The court's conclusions regarding Shannon's credibility versus Barber's credibility, are entered in full recognition of the testimony offered by both Shannon's mother and his wife who testified that the pants tested were the pants Shannon was wearing on the evening of October 22, 2000. Further, the credibility finding is not based upon Judge Garofolo's credibility findings at the suppression hearing.

Having concluded that Shannon did, in fact, possess a rock of cocaine at the time of his arrest on October 22, 2000, there appears to be little question that termination is the appropriate sanction. This conclusion is the same even if Shannon did not possess the rock of cocaine but simply pled guilty to the disorderly persons offense of loitering with the intent to purchase an illegal substance.

Shannon appears to suggest that the City's policy of utilizing progressive discipline, when viewed against its zero tolerance policy with regard to public safety employees . . . charged with offenses (whether disorderly persons or criminal offense related to illegal substances), are inconsistent. However, these two policies do not inherently collide. The testimony of Borden and Bettis regarding the City's zero tolerance policy more than adequately explains the rational basis for the existence of such policy as it pertains to firemen who are entrusted with the responsibility to protect the life, health and safety of persons, in addition to protecting property. Further, firemen are entrusted to drive ambulances as well as fire trucks. The City and the public are entitled to have the confidence that their firemen are completely divorced from conduct related to illegal substances whether such conduct involves loitering with the intent to obtain; possession; use; distribution; or otherwise. Public confidence requires nothing less.

In view of the City's zero tolerance policy as it relates to public safety officers with regard to illegal substances, and in light of Shannon's guilty plea, the City was not required to consider his prior history with the fire department. This conclusion becomes even stronger when considering Shannon's possession of the rock cocaine.

The Judge thus concluded:

For all of the foregoing, the court's independent de novo review in this matter results in the same conclusion reached by the Public Safety Committee in its September 12, 2003 written decision. The Committee's conclusion set forth at pages 13-14 of that decision is affirmed in all respects.

 
We have carefully considered, in light of the record and the applicable law, each of the contentions submitted by appellant on this appeal. Because we are satisfied that the decisional rationale set forth by Judge Armstrong's thoughtful and extensive written opinion filed in support of the order appealed from is essentially correct, we affirm substantially for those reasons.

Affirmed.

(continued)

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A-0504-04T1

December 29, 2005