THOMAS NEARY v. BOROUGH OF RIDGEFIELD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4266-03T24266-03T2

THOMAS NEARY,

Plaintiff-Appellant,

v.

BOROUGH OF RIDGEFIELD,

Defendant-Respondent.

_______________________________

 

Argued: December 13, 2005 - Decided January 26, 2006

Before Judges Kestin, Lefelt and Hoens.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Bergen County, L-7-04.

Robert L. Hennessey argued the cause for appellant.

Thomas B. Hanrahan argued the cause for respondent (Thomas B. Hanrahan & Associates, attorneys; Mr. Hanrahan, of counsel and, with David J. Pack, on the brief).

PER CURIAM

Plaintiff, Thomas Neary, appeals from the trial court's "order affirming disciplinary convictions and removal from [his] employment" as a police officer, entered on February 27, 2004. Defendant employer, the Borough of Ridgefield, is a non-civil service municipality. Judge Doyne articulated the reasons for the order in a written opinion rendered on February 18, 2004.

Nine employee disciplinary charges had been filed against Neary. As summarized by Judge Doyne, the charges "includ[ed], but [were] not limited to, a violation of the Borough code concerning good moral character, conduct unbecoming a police officer, conduct subversive of the good order and discipline of the police department, breach of the discipline of the police department, violation of implicit standards of good behavior[,] and theft of services."

A departmental hearing had been held over fifteen non-consecutive days. The hearing officer, a retired judge of the Superior Court, made his findings and reported his conclusions in a written decision. He found that the employer, defendant Borough of Ridgefield, had failed to carry its burden of proving the charges relating to police department personnel records and theft of services pertaining to the use of gasoline for private vehicles; but he found the remaining charges to have been proved. The hearing officer concluded that just cause existed for Neary's discharge from employment as a police officer. The Borough Council adopted the findings and conclusions and terminated Neary's employment.

Pursuant to N.J.S.A. 40A:14-150, Neary sought a timely review of the Borough Council's action in the Law Division. We held in a prior appeal, under docket no. A-3450-01, that the trial court had dismissed that matter in error. Our remand resulted in the instant proceeding before Judge Doyne, "de novo on the record below." Ibid.; see Cosme v. East Newark Twp. Comm., 304 N.J. Super. 191, 201-03 (App. Div. 1997), certif. denied, 156 N.J. 381 (1998).

After reviewing the record, Judge Doyne found, generally, "that the proofs against Neary are . . . overwhelming and that his removal from the police department is . . . clearly warranted[.]" The judge reviewed, in detail, as "emblematic of the totality of Neary's performance," the allegations relating "to Neary's submission of overtime and return time requests and reporting to duty in the year 1999 and the charges that flow therefrom." He found, inter alia, that "[t]he evidence submitted conclusively demonstrates that Neary submitted blatantly false and misleading [overtime] and [return time] requests for work either never performed or for work performed at a much shorter time than that which had been requested."

Judge Doyne rejected, as illogical and against public policy, Neary's argument that the Borough's failure to adopt the guidelines mandated by N.J.S.A. 40A:14-181 invalidated the disciplinary proceedings and warranted a dismissal of all the charges. In so ruling, Judge Doyne noted the Borough's concession that failure to comply with the statute invalidates charges based upon a police department's rules and regulations, but he accepted the Borough's argument that "charges premised upon the 'implicit standard of good behavior' required of a police officer" were unaffected.

Applying the "implicit standard of good behavior" paradigm, see In re Phillips, 117 N.J. 567, 576 (1990); City of Asbury Park v. Department of Civil Serv., 17 N.J. 419, 429 (1955); In re Tuch, 159 N.J. Super. 219, 224 (App. Div. 1978); Township of Moorestown v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965), certif. denied, 47 N.J. 80 (1966); In re Emmons, 63 N.J. Super. 136, 140 (App. Div. 1960), Judge Doyne upheld the charges upon which Neary's dismissal from employment had been based. He also held that the quality of the derelictions mandated discharge as the only appropriate sanction. See Cosme, supra, 304 N.J. Super. at 203-07.

On appeal, Neary argues that the trial court's findings and conclusions were not based on credible and substantial evidence. We reject that contention. There was ample evidence before the court to sustain the findings. See Phillips, supra, 117 N.J. at 575 (holding that the standard of proof is "by a preponderance of the evidence"). Accordingly, we are obliged to uphold the result. See id. at 579.

Neary, on appeal, also renews the argument advanced before the trial court that the Borough's failure to adopt the Attorney General's guidelines for internal affairs, as mandated by N.J.S.A. 40A:14-181, warranted dismissal of all the charges. We substantially agree with Judge Doyne's reasons for rejecting that argument.

 
Finally, Neary argues that he was prejudiced by the introduction of evidence regarding two instances of alleged misbehavior that went beyond the scope of the specific charges made. Setting aside those two instances of asserted misconduct, there was ample basis in the record for the findings made and the conclusions reached. We note that Judge Doyne, in evaluating the evidence, made no reference to either of those specific instances and agreed with the hearing officer that the Borough had not met its burden of proving theft of services. Nevertheless, Judge Doyne upheld the other charges as sufficient to warrant dismissal, a conclusion with which we are also in substantial agreement.

Affirmed.

(continued)

(continued)

5

A-4266-03T2

January 26, 2006