IN RE LT. JAY VAN DE BEEK

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3201-04T13201-04T1

A-3232-04T1

IN RE LT. JAY VAN DE BEEK.

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IN RE LT. JAY VAN DE BEEK.

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Submitted December 6, 2005 - Decided

Before Judges Collester and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-8270-03.

Arseneault, Fassett & Mariano, attorneys for appellant Lt. Jay van de Beek in A-3201-04T1 (Steven G. Sanders, of counsel and on the brief).

Schwartz, Simon, Edelstein, Celso & Kessler, attorneys for respondent Township of Livingston in A-3201-04T1 (Stephen J. Edelstein, of counsel; Denis G. Murphy and Peter J. Vazquez, Jr., on the brief).

Schwartz, Simon, Edelstein, Celso & Kessler, attorneys for appellant Township of Livingston in A-3232-04T1 (Stephen J. Edelstein, of counsel; Denis G. Murphy and Peter J. Vazquez, Jr., on the brief).

Arseneault, Fassett & Mariano, attorneys for respondent Lt. Jay van de Beek in A-3232-04T1 (Steven G. Sanders, of counsel and on the brief).

PER CURIAM

These appeals arise out of a disciplinary action against Lieutenant Jay van de Beek of the Township of Livingston Police Department. The hearing officer found that two substantive charges and one derivative charge were sustained and imposed a sanction of two days suspension without pay. After a de novo hearing pursuant to N.J.S.A. 40A:14-150, the Law Division judge found that one substantive charge and one derivative charge were sustained and, by final order of January 20, 2005, imposed a sanction of one day suspension with pay. The Township of Livingston (Township) and van de Beek have filed separate appeals from that order. We have calendared the appeals back-to-back and dispose of both of them in this opinion.

Van de Beek's appeal is docketed as A-3201-04T1. He presents the following arguments:

POINT I

THE ORDER SUSTAINING THE FINDING OF GUILT UNDER COUNTS ONE AND TWO SHOULD BE REVERSED AND THE CHARGES DISMISSED WITH PREJUDICE.

A. THE LAW DIVISION'S CONCLUSION THAT LT. VAN DE BEEK IS GUILTY UNDER COUNT TWO IS FATALLY INCONSISTENT WITH ITS HOLDING THAT LT. VAN DE BEEK'S CONDUCT DID NOT CONSTITUTE "HARASSMENT" UNDER COUNT FIVE.

B. THE RECORD FAILS TO CONTAIN THE SORT OF SUBSTANTIAL EVIDENCE NECESSARY TO SUSTAIN THE LAW DIVISION'S FINDING OF GUILT UNDER COUNT TWO.

C. DISCIPLINING LT. VAN DE BEEK FOR THE CONDUCT ATTRIBUTED TO HIM WOULD VIOLATE HIS DUE PROCESS RIGHTS UNDER THE FEDERAL AND STATE CONSTITUTIONS TO FAIR NOTICE.

POINT II

IN LIGHT OF THE UNDISPUTED FINDINGS REGARDING LT. VAN DE BEEK'S OUTSTANDING CHARACTER, AND IN LIGHT OF HIS VIRTUALLY UNBLEMISHED PERSONNEL RECORD, THE DISCIPLINE IMPOSED SHOULD BE REDUCED TO A WRITTEN REPRIMAND.

We reject these arguments and affirm on van de Beek's appeal.

The Township's appeal is docketed as A-3232-04T1. It presents the following arguments:

POINT I

THE DISCIPLINE IMPOSED BY THE HEARING OFFICER, A TWO-DAY SUSPENSION, WAS APPROPRIATE AND SHOULD NOT HAVE BEEN DISTURBED BY THE TRIAL COURT.

POINT II

A SUSPENSION WITH PAY IS NOT PERMITTED AS A FINAL DISCIPLINARY ACTION FOR A POLICE OFFICER.

We reject the argument in Point I. We agree with the argument in Point II and remand for re-imposition of sanction.

The incident giving rise to the charges occurred on May 13, 2002. It involved van de Beek, a seventeen-year veteran of the Livingston Police Department, and Officer John Maggiulli, a relatively new member of the Department. A prior incident involving these two individuals had occurred in February 2002. Maggiulli discovered that someone had written his name into the overtime book, which was utilized for the purpose of assigning side jobs to officers. He did not know who had written his name, and he reported the matter to the Internal Affairs Administration. After an investigation, it was determined that van de Beek had written Maggiulli's name. As a result of the incident, van de Beek received a reprimand, which would be removed from his file after six months.

On May 13, 2002, van de Beek and Maggiulli had their first interaction since the earlier incident. While on duty in the stationhouse, van de Beek asked Maggiulli if he wanted to work overtime on a particular assignment. They looked at the overtime book, and, for that assignment, Maggiulli's name was second. The first name was illegible and had been crossed out. Maggiulli indicated a desire to work the assignment, but noted that his name was second on the list, to which van de Beek responded that the first name was crossed out because it was illegible.

According to Maggiulli, van de Beek then asked whether Maggiulli was "going to tell on them like you told on me." After van de Beek repeated the comment, Maggiulli said that what had happened between the two of them in February was "totally different from someone just crossing their name out in a book." Maggiulli described what happened next this way:

He said, well, this is the first time I had a chance to talk to you since the initial incident has come to a close. I want to let you know the first chance I get, I am going to write you up. To which I replied, okay, but understand I am not going to give you any opportunity.

He started getting upset and told me, I don't know verbatim from the conversation, but in essence, I will find something or I will be able to come up with something to write you up.

Maggiulli described van de Beek's manner as "definitely aggravated, flushed face, visibly upset." Maggiulli understood van de Beek's comments to constitute a threat.

Two other officers were present and witnessed the exchange. Although they did not recall the exact words spoken, they generally corroborated the rendition given by Maggiulli. Officer Ronald Barbella described van de Beek's manner as speaking in a raised voice and angry manner. Officer Thomas Smith, when asked to describe van de Beek's manner of speaking, said, "He seemed angry."

Van de Beek described the confrontation in similar terms. He added, however, that during the interaction he told Maggiulli that in the earlier incident Maggiulli should have come to him first before reporting the incident, so they could have informally worked out any misunderstanding. Maggiulli said he did not know who had written his name into the overtime book and, further, he did not have to come to van de Beek first. According to van de Beek: "With that remark I said to him, well, then I don't have to go to you first when I have a problem. . . . He said to me he doesn't do things wrong, or something to that effect. I said, good, you have nothing to worry about then." Van de Beek admitted that as the conversation progressed, he got "firmer" in his demeanor, that he was "sarcastic," and that "the conversation took a bad turn." He said he did not mean for his comments to constitute a threat to Maggiulli.

Five charges were brought against van de Beek. Two of them were not ultimately sustained and we will not discuss those. The other three charges alleged violations of the following rules and policies of the Department: Count one, a derivative charge, cites a portion of the Rules and Regulations requiring members to obey all rules, policies and procedures and directives of the Department. Count two pertains to conduct toward other officers and states: "Members and employees shall treat superior officers, subordinates and associates with respect. They shall be courteous and civil at all times in their relationships with one another." Count five pertained to a standard operating procedure dealing with harassment and stated: "Each employee of this Department is responsible for assisting in the prevention of harassment through the following act: 1. Refraining from participation in, or encouragement of, actions that could be perceived as harassment."

The specification of charges sought a sanction of two days suspension without pay, a requirement that van de Beek attend a leadership training program, and one year probation.

A hearing was conducted by Township Manager Charles J. Tahaney. Maggiulli, Barbella, Smith, van de Beek and two other witnesses testified. Tahaney issued a written decision, concluding that counts one, two and five were sustained by the evidence. He found that "whether intentional or not Lt. [v]an de Beek clearly presented a threatening atmosphere to an inexperienced officer and that Officer Maggiulli could assume that Lt. [v]an de Beek was forewarning him that he would be penalized for any infractions in the future." Tahaney took into consideration van de Beek's "virtually unblemished personnel record, after 17 years of service," and the good character testimony presented at the hearing. He imposed a two-day suspension without pay, but did not require leadership training or one year probation.

Van de Beek sought a de novo hearing before the Law Division pursuant to N.J.S.A. 40A:14-150. The parties did not supplement the record with any further testimony. The Township supplemented the record by submitting, by way of a certification by the Chief of Police, the complete Rules and Regulations of the Department. After hearing oral argument, the judge issued a written decision on January 20, 2005. The judge found that the confrontation was initiated by van de Beek while on duty and in the presence of others. Based upon van de Beek's demeanor, she found that count two was sustained because van de Beek "failed to treat a subordinate with respect." Because of that violation, the derivative violation in count one was also sustained. However, the judge found that van de Beek's statements and intention did not constitute a threat to prosecute false charges against Maggiulli, but constituted a warning that if he did something wrong he would be charged. The judge found that this was a legitimate purpose, "and although it may be perceived as a warning, it is not harassment." The judge imposed a one-day suspension with pay.

Van de Beek seeks reversal of the violations under counts one and two on three grounds. First, he argues the finding is inherently inconsistent, because if his conduct did not constitute harassment it is not possible that he failed to treat a subordinate officer with respect and in a courteous and civil manner. There is no merit to this argument. Both parties agree that harassment was the broader and more serious charge. The Township's theory on the harassment charge was that van de Beek set a course of retaliatory harassment against Maggiulli because of the earlier incident and that he intended to write him up on any possible infraction that might be detected, however minor, including incidents that normally would not be written up. Although the hearing officer found that charge to be established, the Law Division judge did not. However, the fact that van de Beek did not embark on a course of retaliatory conduct, does not preclude a finding that his demeanor and conduct towards Maggiulli in the confrontation was disrespectful, discourteous and uncivil.

Van de Beek's second argument for reversal is that the evidence was insufficient to establish the violation. He contends he did nothing more than speak in a "raised voice," which is insufficient to constitute a violation. However, the record contains much more than merely a raised voice.

Our standard of review of the findings of a Law Division judge in a police disciplinary matter is very limited. Unless the findings were arbitrary, capricious or unreasonable or unsupported by substantial credible evidence in the record as a whole, we will not disturb the findings. In re Phillips, 117 N.J. 567, 579 (1990). We are satisfied from our careful review of the record that the judge's findings are well supported by the record, and we will not disturb them. Thus, we reject van de Beek's first two arguments for reversal.

Van de Beek's third argument for reversal is that his due process rights were violated because the section of the Rules and Regulations forming the basis of count two are unconstitutionally vague. Van de Beek never raised this argument in oral or written submissions to the hearing officer or the Law Division. The issue does not pertain to the jurisdiction of the trial court, nor does it concern a matter of substantial public interest, and we will not consider it when raised for the first time on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Van de Beek's final argument on his appeal is that if we affirm the violation, his punishment should be reduced to a written reprimand. We consider this argument in conjunction with those presented by the Township on its appeal.

The Township first argues on its appeal that the two-day suspension imposed by the hearing officer was the appropriate punishment and should have been re-imposed by the trial judge. First, we observe that the trial judge's findings of fact as well as imposition of sanction are de novo. The judge properly discharged her function by making independent findings of fact and assessing what she deemed to be an appropriate sanction. Secondly, we note that it is entirely logical and appropriate that the sanction imposed for only the lower level offense of treating a subordinate disrespectfully should carry a less severe sanction than violation of that section as well as the more serious charge of harassment. We therefore reject the Township's initial argument.

The Township next argues that the final sanction imposed by the Law Division, one day suspension without pay, was not an authorized final disposition. The Township finds support for this proposition by pointing to the New Jersey Attorney General Guidelines for police disciplinary matters, issued pursuant to N.J.S.A. 40A:14-181, which do not authorize suspensions with pay. The Township further points out that although N.J.S.A. 40A:14-149.1 authorizes suspensions with pay as an interim measure while charges are pending, there is no statutory authorization for suspension with pay as a final disciplinary sanction. Further in this regard, N.J.S.A. 40A:14-149.3 requires reimbursement to the municipality for wages received during a period of suspension if the officer is ultimately found guilty of the charges for which he or she was suspended with pay. Finally, the Township argues that the Rules and Regulations of the Livingston Police Department do not list suspension with pay as an authorized final disposition. The Township urges that we exercise original jurisdiction and change the sanction to a suspension without pay.

Van de Beek does not dispute that suspension with pay is not an authorized final disposition. He urges that we exercise original jurisdiction and modify the sanction to a written reprimand. He argues that a written reprimand is, at least in a general sense, the functional equivalent of a one-day suspension with pay, and this final resolution would comport with the judge's intended result. Alternatively, van de Beek urges a remand for re-imposition of sanction so the parties can make arguments as to which is the appropriate sanction and so the judge can give an appropriate statement of reasons. We agree that this is the appropriate alternative.

The portion of the Law Division's order of January 20, 2005 finding van de Beek in violation of the provisions in counts one and two of the disciplinary charges is affirmed. The portion of the order imposing a one-day suspension with pay is reversed and remanded for re-imposition of a sanction in accordance with this opinion.

Affirmed in part; reversed and remanded in part.


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A-3201-04T1


January 9, 2006