IN THE MATTER OF JOHN CARTER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1566-04T2

IN THE MATTER OF JOHN CARTER.

________________________________

JOHN CARTER,

Petitioner-Appellant,

v.

TOWNSHIP OF BORDENTOWN,

Respondent-Respondent.

_________________________________

 

Argued January 23, 2006 - Decided May 8, 2006

Before Judges Cuff, Holston, Jr. and Gilroy.

On appeal from a final decision of the Merit System Board, Department of Personnel, Docket Numbers 2002-3861 and 2002-4732; OAL Docket Numbers CSV 4351-02 and 6098-02.

Mark W. Catanzaro, argued the cause for appellant.

Gregory J. Sullivan argued the cause for respondent, Township of Bordentown (Hartsough, Kenny & Chase; attorneys; Mr. Sullivan, of counsel and on the brief).

Nancy Kaplen, Acting Attorney General, attorney for respondent New Jersey Merit System Board (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

This is a police disciplinary case. Appellant, John Carter, appeals the August 17, 2004 final decision of the Merit System Board (Board), which accepted and adopted the findings of fact of the Administrative Law Judge (ALJ) in his June 23, 2004 initial decision, and modified the ALJ's conclusions only as pertained to the appropriate punishments for the charged offenses.

Appellant was a uniformed police officer with the Bordentown Township Police Department (Department) since 1991. In 1998 appellant became physically ill, experiencing chronic fatigue and stomach discomfort, which escalated into fevers, diarrhea and weight loss in January 2000. In the spring of 2000, he was diagnosed with Lyme's disease. Once diagnosed, he began an intravenous treatment regimen with antibiotics pursuant to his doctor's orders.

Appellant was charged with, and now appeals, disciplinary charges stemming from four separate incidents. He received Preliminary Notices of Disciplinary Action (Notice) dated September 26, 2000, March 2, 2001, and November 7, 2001, charging him with violations of both the Bordentown Township Police Department Rules and Regulations (BTPD Rules) and N.J.A.C. 4A:2-2.3. He was charged with one count of being absent without leave (AWOL), two counts of violating "place of confinement" policies, based on the Department's rules, and one count of sleeping on duty. The ALJ found appellant guilty of all four disciplinary charges. After review, the Board affirmed the ALJ's finding of guilty and imposed the following penalties: a ten-day suspension for the AWOL matter, a thirty-day suspension for the "place of confinement" violations, and removal for the sleeping on duty matter.

The appeal of the first two matters was docketed under CSV-04351-02, and the appeal of the latter two matters was docketed under CSV-06098-02. Both matters were consolidated for a plenary hearing before an ALJ, which was conducted April 26-27, 2004.

We address the following points raised by appellant: (1) The findings of fact and credibility determinations as made by the ALJ and adopted by the Board were not supported by sufficient credible evidence; (2) The Board erred in failing to dismiss the sleeping on duty charges pursuant to N.J.S.A. 40A:14-147; and (3) The removal of the appellant from his position of employment as a patrolman was excessive and not consistent with the dictates of West New York v. Bock, 38 N.J. 500 (1962).

I.

In reviewing decisions of administrative agencies the judicial "function is to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't, Township of W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the person challenging the administrative action. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); Barone v. Dep't of Human Servs., Div. of Med. Asst., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).

Additionally, "[i]t is settled that '[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). "Absent arbitrary, unreasonable or capricious action, the agency's determination must be affirmed." Id. at 56 (citing R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999)). If a reviewing court concludes that a decision of the [Board] is arbitrary, the court may either finally determine the matter by fixing the appropriate penalty or remand it to the administrative agency for re-determination. See West New York v. Bock, 38 N.J. 500, 520, 527-528 (1962).

We are satisfied that the Board's affirmance of the ALJ's findings and modification of penalties in the "AWOL" matter and of the "place of confinement" matter was supported by credible evidence in the record and did not constitute arbitrary, capricious or unreasonable action.

The "AWOL" matter, for which the Board issued a ten-day suspension, involved the vacation time policy of the Department. The policy required officers to file their vacation requests by January 31 of the year in which their days off were requested. Requests filed prior to that date were granted on a seniority basis, while those filed after were granted on a first-come, first-served basis. In the summer of 2000, appellant requested vacation time in order to travel with his family to Florida, but another officer had already requested and received the same days off. Appellant was granted vacation time for August 23, but denied as to August 24, 28 and 29.

On August 22, 2000, appellant presented a note to his superiors at the Department from Dr. Anthony L. Leonetti of the Lyme Disease Treatment Center, which read in pertinent part:

This letter is in reference to our patient, John Carter. Mr. Carter is scheduled to complete 56 days of intravenous Doxycycline the 17th of August. We suggest that he remain out of work for 7-10 days post removal with the ability to return to full active duty after that point.

The Chief of Police, Daniel Kiernan (Chief), testified that appellant had just returned to active duty on August 18, 2000, with a doctor's note that authorized him to return to "full active duty" at that time. Appellant then worked twelve-hour shifts on August 18, 19 and 20, 2000. The Chief noted that when he received the August 22, 2000 note, he remembered having received a contrary note authorizing appellant to return to full active duty just a few days before.

Suspicious that the August 22, 2000 note from Dr. Leonetti was in fact a ruse for appellant to go on vacation to Florida, the Department called Dr. Leonetti's office to investigate. On August 31, 2000, a letter of correction was sent to the Department from Dr. Leonetti's office, indicating that the doctor had dictated the note on August 15, 2000, and his secretary placed the August 22, 2000 date on it. The August 31, 2000 letter also noted that the letter dated August 18, 2000 was actually written because appellant felt well enough to go back to work on that date.

According to the Chief's calculations, the seven to ten-day period of sick time excused by the note dictated on August 15, 2000, should it even be considered to be in effect, ran from August 17, 2000, and was over by appellant's denied vacation days of August 28 and 29, 2000. It was on those days that appellant was considered AWOL from work.

The ALJ framed the issue as whether defendant violated N.J.A.C. 4A:2-2.3(a)1, failure to perform duties, and N.J.A.C. 4A:2-2.3(a)7, neglect of duty. In addition, appellant was charged with violating BTPD Rules 3:2.3, absent without leave, and 4:9-4(b),(c) and (e), unauthorized absence.

Appellant argued that because he contacted the Department with his place of confinement on August 23 and 24, 2000, making clear that he was in Florida, he therefore was not AWOL on August 28 and 29, 2000. The ALJ disagreed and concluded that appellant was AWOL because the ambiguous doctor's note provided by appellant did not, in fact, cover his absence on August 28 and 29, 2000. To that extent, appellant had no permission or authorization not to report as scheduled on those days. Based on these unauthorized absences, the ALJ determined that the appellant "failed to perform and neglected his duties." The Board subsequently adopted the ALJ's findings.

The source of confusion in the "AWOL" matter was the doctor's note dated August 22, 2000, but actually dictated on August, 15, 2000. Appellant contends that the August 22, 2000 date should begin the seven to ten-day recovery period. Under the appellant's suggested reading, the recovery period would have extended beyond August 28 and 29, 2000. However, the ALJ determined that a more reasonable reading of the note indicated that the recovery period did not include August 28 and 29, 2000.

The ALJ concluded that, "[t]he only way in which [appellant's] absences from scheduled work on the 28th and 29th could be deemed excused would be if the 7-10 days was calculated from the 22nd. The text of the note does not support such a reading." The ALJ arrived at this conclusion after hearing testimony from Sergeant Michael Crawford, Lieutenant Nucera, the Chief, and appellant. The Board's decision to uphold the findings of the ALJ was neither arbitrary nor capricious, and was supported by ample credible evidence in the record.

Appellant's next disciplinary incidents, the "place of confinement" matters, occurred on December 22, 2000, and January 6, 2001. Appellant requested and received time off from the Department on both dates due to his medical condition. These charges asserted that appellant violated the Department's "sick-out" policy when he left his home, or "place of confinement," on both days without giving any advanced notice to the Department that he was doing so. The Department's "sick-out" policy required verification of a sick officer's location at a chosen "place of confinement" within six hours of the start of his scheduled shift, for emergency purposes.

Appellant had season tickets to the Trenton Titans ice hockey games. He attended a game with his son on the night of December 22, 2000, prior to the start of his scheduled shift. After the game, he went to his in-laws' home to wrap Christmas presents for his children. At approximately 9:30 p.m., appellant received a telephone call from his wife indicating that Sgt. Pippin had called the family home and a patrol car was parked a few houses away.

Appellant explained that due to his interpretation of an intra-departmental memorandum from the Chief to all officers dated February 2, 1999, he believed the confinement policy did not apply to his sick absence on the day of January 6, 2001. The memo revised a previously promulgated "sick call out SOP." Appellant testified that he understood this revision to mean that the verification of sick call outs would not apply to the first three days of sick time taken by an officer each calendar year. The memo stated:

I will be revising the sick call out SOP. The main revision will be the sick call out verification. Instead of verifying each and every sick call out, it will be the policy of this agency to commence verification after a member utilizes three or more sick days in a calendar year.

When referring to three sick days, this will mean three individual sick days, not consecutive. . . .

On January 6, 2001, appellant was sick due to the installation of a PIC line used in the administration of antibiotics associated with his Lyme's Disease. On this day, however, he also attended his son's wrestling match, thus not remaining at home at his "place of confinement." Appellant claims that he did not believe that he had to notify the Department upon leaving his home on that sick day as a result of the policy change indicated by the 1999 memorandum.

The ALJ determined that appellant clearly violated the Department's policy on December 22, 2000, and that such action was also a "neglect of duty" offense pursuant to N.J.A.C. 4A:2-2.3(a)7. Concomitantly, the ALJ determined that appellant had not abused his sick time and did not demonstrate excessive absenteeism. The ALJ's findings pertaining to both the December 22, 2000, and the January 6, 2001, matters included:

The policy in effect at the time required that officers keep the Department advised of their whereabouts if they were sick or injured. The issue here is not whether defendant was really "sick." It is assumed for the purposes of this discussion that he did not feel up to taking on his shift.

However, having taken off from work for legitimate reasons, he still had an obligation to comply with Departmental rules so that the Department could know where to reach him if they needed to. . . .

I find the violation of policy on December 22 is clearly proven.

. . . .

As for the January 6 event, the policy change in February 1999 simply states that each and every sick call will not be verified. . . . No reasonable person could believe that the language of the February 19, 1999 memo suggests that the need to advise the Department of a place of confinement is somehow no longer applicable for the first three absences. There is absolutely no suggestion that during these first three absences an officer is free to be wherever he chooses, without complying with the confinement policy. . . . In essence, the officer was placed on his honor as to his claim of illness and his location, but he was not exempted from the notice element of the policy.

We are satisfied that the Board's decision affirming the ALJ was based on ample, credible evidence in the record. It is undisputed that appellant failed to notify the Department when he left his place of confinement on both of the above-referenced dates. The only determination to be made was whether appellant's "defenses" for his noncompliance were adequate. Based on the BTPD rules and regulations, as well as appellant's admissions, the ALJ determined that appellant had violated N.J.A.C. 4A:2-2.3(a)7. Since there was ample evidence in the record to support the ALJ's determinations, the decision of the Board was not arbitrary, capricious, or unreasonable and thus is affirmed.

II.

The Notice dated November 7, 2001, resulted from allegations that appellant was sleeping on duty and charged him with the following violations: (1) Incompetency, inefficiency and failure to perform duties, pursuant to N.J.A.C. 4A:2-2.3(a)1; (2) Conduct unbecoming a public employee, pursuant to N.J.A.C. 4A:2-2.3(a)6; (3) Neglect of duty, pursuant to N.J.A.C. 4A:2-2.3(a)7; (4) Sleeping on duty, pursuant to BTPD Rule 3:2.1(a); (5) Failure to check in on radio, pursuant to BTPD Rule 2:6.11; and (6) Failure to adhere to general responsibilities of a police officer, pursuant to BTPD Rule 3:1.5(a) thru (e)(inclusive). The six charged specifications also contained in the November 7 Notice state:

(1) [Appellant] failed to perform his patrol duties due to the fact that he was observed sleeping on duty. The officer slept a total of two hours, [thirty] minutes on June 8, 2001, two hours and [twenty-four] minutes on June 9, 2001, and one hour and [fifty-nine] minutes on June 10, 2001, this totaling six hours and [fifty-three] minutes during the three shifts.

(2) On several different occasions, [appellant] was observed sleeping on duty for a substantial amount of time during his duty shift, instead of patrolling the township and making it safe.

(3) [Appellant] failed to adequately accomplish the police mission by not patrolling his patrol area. He also has failed to prevent breaches of the peace and offenses against property and persons. He has failed to be present for violations of the criminal law and motor vehicle law and failed to prevent any incidents from occurring due to sleeping a substantial portion of his duty shift. During the three shifts the officer slept a total of approximately seven hours.

(4) BTPD Rules and Regulations prohibits sleeping activity while on duty.

(5) BTPD Rules and Regulations - Radio failure to notify dispatcher via radio after [thirty] minutes.

(6) BTPD Rules and Regulations - General responsibilities of a patrol officer. He has failed to protect life and property, preserve the peace, prevent crime, detect and arrest violators, and enforce all federal, state, and local laws and ordinances.

Appellant filed an interlocutory appeal before the ALJ, moving to dismiss the "sleeping" charges against him due to the Department's failure to act in a timely fashion. Specifically, he contended that the Department violated N.J.S.A. 40A:14-147, commonly known as the "forty-five day rule," by failing to file the Preliminary Notice of Disciplinary Action within forty-five days of the date in which the Department obtained "sufficient evidence to support the complaint." N.J.S.A. 40A:14-147 states in pertinent part:

Except as otherwise provided by law, no permanent member or officer of the police department or force shall be removed from his office, employment or position for political reasons or for any cause other than incapacity, misconduct, or disobedience of rules and regulations established for the government of the police department and force, nor shall such member or officer be suspended, removed, fined or reduced in rank from or in office, employment, or position therein, except for just cause as hereinbefore provided and then only upon a written complaint setting forth the charge or charges against such member or officer. . . .

A complaint charging a violation of the internal rules and regulations established for the conduct of a law enforcement unit shall be filed no later than the 45th day after the date on which the person filing the complaint obtained sufficient information to file the matter upon which the complaint is based. . . .

A failure to comply with said provisions as to the service of the complaint and the time within which a complaint is to be filed shall require a dismissal of the complaint.

The ALJ agreed with appellant and dismissed the charges as time-barred. The ALJ, in granting appellant's motion, ordered

that the charges filed on November 7 charging violations of the Department's Rules and Regulations are dismissed. In addition, as the same allegations that support these charges are specified as the basis for the charges that are stated as violations of the Administrative Code, these charges are dismissed as well. If these latter charges are allowed to stand, the purpose of N.J.S.A. 40A:14-147 would be defeated.

Interlocutory review was requested by the Department, and a decision by the Board reversed the ALJ on December 19, 2003. In its reversal of the ALJ's interlocutory order, the Board concluded that:

[T]he plain language of N.J.S.A. 40A:14-147 indicates that it is to be applied only to violations of "internal rules and regulations." The statute does not apply to the charges dealing with Title 4A of the New Jersey Administrative Code. Accordingly, the ALJ's determination in this regard is reversed and the charges based on violations of the Administrative Code filed against the appellant are reinstated.

The Board further stated that:

[T]he statute does not prohibit an appointing authority from doing a proper investigation into a matter to determine whether disciplinary charges are necessary and appropriate.

. . . .

However, this provision does not allow an appointing authority to unnecessarily delay the bringing of charges by not promptly attempting to obtain sufficient information to bring charges and promptly forwarding such information to the person responsible for filing the complaint. Under such circumstances, it would be appropriate to dismiss charges against a police officer based on the forty-five day rule.

. . . .

[T]he Board determines that September 24, 2001, the date the investigation report was completed, is the proper date to begin the [forty-five] day period. In this regard, the Board finds that the ALJ's determination that the preparation of the report is included within the [forty-five] day period is incorrect. Clearly, a reasonable passage of time must be afforded an investigator to complete the investigation process and issue a report detailing the findings.

. . . .

Therefore, since the November 7, 2001 issue date of the Preliminary Notice of Disciplinary Action falls within forty-five days of September 24, 2001, no violation of N.J.S.A. 40A:14-147 exists. Accordingly, the ALJ's determination is reversed and the charges relating to the department's rules and regulations are also reinstated.

We agree with the Board that N.J.S.A. 40A:14-147 is not applicable to the charges filed pursuant to Title 4A of the Administrative Code. We are convinced, however, that the charges filed pursuant to the BTPD Rules are time-barred by N.J.S.A. 40A:14-147, and the Board's determination to the contrary requires reversal. The "sleeping" charges were not brought within the forty-five day threshold because the "person filing the complaint" obtained sufficient information to bring such charges more than forty-five days before November 7, 2001, the day the charges were actually filed. In police disciplinary actions, the Chief is responsible for filing the Notice against an offending officer. We are satisfied that the Chief had sufficient evidence to file the Notice more than forty-five days before November 7, 2001, because the internal investigation conducted on June 8, 9, and 10, 2001, supplied the necessary basis to file the charges listed on the Notice.

In Aristizibal v. City of Atlantic City, 380 N.J. Super. 405 (Law Div. 2005), the Law Division stated that "what [was] problematic [was] the timing of the true commencement of the investigation on November 2, 2004, in essence, a period of seventy-two days from the date of the conduct complained of." Id. at 433. The Law Division concluded, "that barring extraordinary circumstances . . . the investigation should commence promptly after the occurrence of events which may warrant disciplinary action." Id. at 433-34. The court ultimately decided that there was no "justifiable basis" to delay the commencement of charges filed 120 days after the events occurred. Id. at 434.

In the Office of Administrative Law (OAL) decision McCormick v. Lawrence Township, OAL Docket No. CSV 6319- 00 Agency Docket No. 2000-4512 (September 21, 2001), the appellant was a patrolman appealing a ten-day suspension, stemming from an incident that occurred on December 2, 1999. Id. at *1, 4. "All of the charges against the appellant involved his duty performance. The allegations against the appellant are that he violated a general order and rules and regulations pertaining to knowledge, obedience, performance, neglect and inattention to duty responsibilities and failure to provide appropriate service." Id. at *6. Specifically, "the appellant left the scene where the missing person was reported to have disappeared without notifying and possibly obtaining the approval of his supervisor." Id. at *7. The ALJ determined, however, that:

the respondent has not complied with the requirements of N.J.S.A. 40A:14-147. As of December 3, 1999, Lt. Boyd knew that the appellant, along with several others, had not complied with General order No. 94-2. As of December 8, 1999, Cpt. Posluszny knew that the appellant, along with others, had not complied with this order. In my opinion, these superior officers did not need an internal affairs investigation to take action against subordinates who had failed to perform their duties properly. I therefore ORDER that the 10-day suspension of the appellant be DISMISSED.

[Id. at *7-8.]

At the April 26, 2004 hearing before the ALJ, the Chief testified that he first heard complaints of appellant allegedly sleeping on the job in 2000. This coincides with the July 18, 2000 incident in which a citizen complained that when he called the police dispatcher, he received an untimely response and seemed to have awoken the dispatcher both of the times he called that night. A written letter of warning dated July 31, 2000, was given to appellant by the Chief, but the Chief noted that he had no proof at that time that appellant had been sleeping on duty.

On June 7, 2001, Sgt. Pippin notified Lt. Nucera that there were renewed allegations by fellow officers that appellant was again sleeping on the job. In turn, Lt. Nucera went to the Chief. The Chief told Lt. Nucera, a supervisor of the Internal Affairs Bureau, to "do what you have to do[,]" to investigate the allegations.

The internal investigation of the "sleeping" matter took place on the nights of June 8, 9 and 10, 2001. Lieutenant Nucera, Detective Schmidt, Sgt. Norman Hand and Detective Pesce were assigned to the surveillance. They reported to the Chief that they witnessed appellant's patrol car parked on the southbound side of Route 130 with the headlights off. The officers testified that they were armed with night vision binoculars and made several "drive-bys" in order to see whether appellant was sleeping in his car. They also agreed with the filed report that they saw appellant sleeping in the driver's seat of his patrol car: "his eyes were closed; he was slouched back with his head to the side."

The Chief admitted that after the June 8, 9 and 10 surveillance nights, Lt. Nucera reported to him that appellant had been observed sleeping on duty. The Chief contended, however, that this report was only an informal briefing and not a formal report.

On September 5, 2001, Detective Schmidt conducted a brief interview with appellant, Detective Pesce, and Ptl. Foster regarding the "sleeping" charges against appellant. No further internal investigation activity was conducted after September 5, 2001.

The Chief testified that he relied on the formal report by Detective Schmidt to file the Notice, and contends that the November 7, 2001 Notice was filed in a timely manner. However, the date on the first page of Detective Schmidt's formal report was dated September 10, 2001. The last page of the report, bearing Schmidt's signature, was dated September 24, 2001. If the September 10, 2001 date is used as the date that the Chief had "sufficient information" to file the Notice, the charges were untimely.

Appellant notes that the September 24, 2001 "completion date" was, conveniently for the department, just within the forty-five day window for filing the November 7, 2001 Notice. The Chief, however, contended that he waited for the final internal investigatory report by Schmidt, which he received sometime in October, before he made his final determination to file the Notice against appellant.

Appellant contends that the nature of the charges brought against him were simple and straight-forward: either he was sleeping on duty or he was not. He further asserts that the interviews conducted on September 5, 2001 were nothing more than a stalling tactic to ensure that the department would be in compliance with N.J.S.A. 40A:14-147.

We are satisfied that after the internal investigating officers allegedly observed appellant sleeping in his patrol vehicle on the nights of June 8, 9 and 10, 2001, that there was sufficient evidence to charge appellant with each of the charges that were ultimately filed against him.

The three pages comprising the relatively simplistic Notice dated November 7, 2001, cited charges based on nothing more than the observations of internal investigators on June 8, 9 and 10, 2001. There was an inordinate amount of time between the conclusion of the officers' observations on June 10, 2001, and the filing of the three-page Notice on November 7, 2001, especially if the Chief was as concerned about officer and public safety as his testimony indicated. According to Detective Schmidt's final report, appellant was actually served with an internal affairs investigation notification on June 22, 2001. Appellant was allegedly observed on three other occasions during the summer of 2001, however those observations did not result in any additional charges.

We are convinced, therefore, that the BTPD charges stemming from the "sleeping" incident are time-barred and should have been dismissed due to the Department's failure to comply with the forty-five day requirement contained in N.J.S.A. 40A:14-147. The Chief possessed sufficient evidence to bring forth the charges long before he filed the Notice on November 7, 2001. To allow such delay in departmental disciplinary proceedings would be contrary to the clear intent of N.J.S.A. 40A:14-147. Appellant's adjudication on the BTPD rules are therefore reversed.

We are equally convinced that the evidence supports the ALJ's finding, as adopted by the Board, that appellant was guilty of the administrative code violations charged in the November 7, 2001 disciplinary notice. The ALJ held,

I FIND that Officer Carter did sleep in his patrol car on June 8, 9, and 10, 2001 as charged. While it would be impossible to be certain whether he was actually asleep for each minute of the time he was observed to be in his stationary vehicle, the testimony of Nucera, Schmidt, Pesce and Hand was abundantly sufficient to establish by a preponderance of the credible evidence that Carter was asleep for extended periods of time. I FIND that they acted in a professionally competent manner to confirm their general impressions by approached near to the car and observations with night vision equipment. As sleeping on duty . . . is clearly not proper conduct for a police officer assigned to and actually out on the highways and streets for patrol, I CONCLUDE that Officer Carter acted in a manner that constituted misconduct for a public employee, neglect of duty and inefficiency.

III.

Appellant next argues, and we agree, that according to the mandate of Bock, supra, and the theory of progressive punishment contained therein, the punishment of removal for the "sleeping" charges was too severe and should be reevaluated. In light of our reversal of the three BTPD rule charges as time-barred, the adjudication with respect to the "sleeping" matter is limited to the three administrative code charges.

On re-direct examination, the Chief was asked why he sought removal of defendant based on the "sleeping" charges. He replied:

Because of the egregiousness of the offense. The seriousness of not responding to back up an officer who is in a fight call at Denny's. Somebody could have been seriously hurt. When a sergeant's got to call and say where's 37, which is his badge number, and again, the public safety issue. You know, you work all day, you're home at night sleeping with your family, you want police officers supposed to be protecting you sleeping on duty when they're getting paid to patrol? I think it's a very very serious offense and I took note of it and I filed a complaint accordingly.

This statement by the Chief, however, is contradicted by his testimony that appellant continued to work as a township police officer for three years following the reporting of the "sleeping" incident, despite the Chief's purported concern for both officer and public safety. In addition, during that time, defendant actually served as a shift supervisor as well.

It is undisputed that police officers are generally held to a higher standard of conduct than other citizens due to their role within the community. In Township of Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965), certif. denied, 47 N.J. 80 (1966), this court stated:

It must be recognized that a police officer is a special kind of public employee. His primary duty is to enforce and uphold the law. . . . He represents law and order to the citizenry and must present an image of personal integrity and dependability in order to have the respect of the public . . . .

[Id. at 566.]

We are convinced, however, that even when evaluated in light of this higher standard of officer conduct, the sanction of removal, when taking into account appellant's prior meager disciplinary record and medical history, is excessive. We therefore remand to the Board for re-determination of an appropriate punishment short of removal.

In Bock, our Supreme Court held that using an employee's "past record" in a disciplinary proceeding "cannot, of course, be utilized to prove a present charge which is not one of habitual misconduct. However, it may be resorted to for guidance in determining the appropriate penalty for the current specific offense." Bock, supra, 38 N.J. at 523. The Court continued,

But what is the meaning and scope of "past record" or "record of service"? We are unable to locate any judicial consideration of the matter. The state service act contains no definition to guide us by analogy. Perhaps "record of service" as used therein has primary reference to the employee's service ratings maintained by his superiors and open to his inspection. . . . We believe that, besides such ratings, if available, the terms should be held to encompass an employee's reasonably recent history of promotions, commendations and the like on the one hand and, on the other, formally adjudicated disciplinary actions as well as instances of misconduct informally adjudicated, so to speak, by having been previously called to the attention of and admitted by the employee.

[Id. at 523-24.]

The Board's penalty decision in a police disciplinary matter factually similar to this case is instructive on the principle of progressive discipline. In In re McGarvey, OAL Dkt. No. CSV4360-97 (1998), after citing to Bock, the Board suspended the police sergeant for sixty days rather than terminating his employment. In McGarvey, Sergeant McGarvey was "charged with incompetency, inefficiency or failure to perform duties, conduct unbecoming a public employee, neglect of duty and falsifying police reports." Id. at *1. Learning first from a civilian that McGarvey may be sleeping on duty, the Moorestown police chief ordered an internal investigation consisting of surveillance of McGarvey on eight separate occasions. Id. at *2. McGarvey was witnessed pulling his patrol vehicle up to his mother's house while on duty, leaving the vehicle and entering the house, where he would remain for periods ranging from one hour and forty minutes to five hours and fourteen minutes. Id. at *2-3. During the times McGarvey was witnessed entering his mother's house, the police dispatcher directed at least nine calls to McGarvey and his subordinates. Id. at *3. "Of these nine calls, the appellant personally responded to only three." Ibid.

McGarvey argued that in his twelve years as a Moorestown police officer, he had only been the subject of disciplinary action once. Id. at *9. The Board upheld the police sergeant's sixty day suspension and demotion to police officer, stating:

in addition to its consideration of the seriousness of the underlying incident in determining the proper penalty, the Board also utilizes, where appropriate, the concept of progressive discipline. However, it is well established that where the underlying conduct is of such an egregious nature, the imposition of penalty up to and including removal is appropriate, regardless of an individual's disciplinary history. In this case, it is clear that the appellant was not appropriately conducting himself as a Police Sergeant in the observed occasions. It is noted that the appellant was the supervisor of several officers and was responsible for presenting an example of how a police officer carries him or herself and providing effective leadership to his subordinates. It is clear that through his actions, the appellant has not fulfilled these duties. Furthermore, the evidence shows that the appellant willfully attempted to deceive his superiors concerning his activities and location during his work shifts.

[Id. at *9-10 (citation omitted).]

Considering the final disposition of McGarvey, in light of the similar allegations and charges in this case, and keeping in mind that McGarvey was not merely a patrol officer, but a sergeant responsible for subordinate officers, we are convinced that appellant's punishment was too harsh to be considered progressive in nature. Appellant's disciplinary history had been virtually without incident until he became afflicted with Lyme's disease in 1998.

In the opinions of the ALJ and the Board, both note the "place of confinement" and "AWOL" matters as part of appellant's prior disciplinary record. Although these matters took place at different times, they were all adjudicated at the same time by the ALJ and the Board. We find this scenario analogous to the criminal model in that when a "person commits two relevant offenses at different times and then is convicted simultaneously of both," none of the convictions count as prior convictions for sentencing purposes. Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:44-4 (2006). See also, State v. Anderson, 186 N.J. Super. 174, 175 (App. Div. 1982), aff'd o.b. 93 N.J. 14 (1983). Therefore, according to the principle of progressive discipline, the "sleeping" charges against appellant must be considered the first major disciplinary infraction against him. As such, a punishment short of removal is warranted in order to fulfill the purpose of progressive discipline, which is to warn that another infraction may lead to removal.

We affirm the decisions of the Board affirming the ALJ's finding that appellant was guilty of the charges in the "AWOL" and "place of confinement" matters, and in the discipline imposed on appellant in those matters. Those decisions are supported by ample credible evidence in the record. However, we find that the adjudication of the BTPD rule charges against appellant are time-barred pursuant to N.J.S.A. 40A:14-147, and they are therefore reversed. The administrative code violations from the "sleeping" incident are affirmed as supported by the record. We find, however, that removal of appellant from the Department, based on the sleeping on duty charges does not conform with the progressive punishment principle, particularly in light of appellant's meager disciplinary history and his medical condition. We therefore remand to the Board for imposition of discipline short of removal.

Affirmed in part, reversed and remanded in part.

 

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(continued)

29

A-1566-04T2

May 8, 2006