POLICE OFFICER TROY C. OGLESBY v. TOWNSHIP OF CHERRY HILL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4683-04T34683-04T3

POLICE OFFICER TROY C. OGLESBY,

Plaintiff-Appellant,

vs.

TOWNSHIP OF CHERRY HILL,

Defendant-Respondent.

__________________________________

 

Argued: May 1, 2006 - Decided May 23, 2006

Before Judges Cuff, Lintner and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4982-04.

F. Michael Daily, Jr., argued the cause for appellant.

John T. Kelley argued the cause for respondent (Kelley, Wardell and Craig, attorneys; Mr. Kelley, on the brief).

PER CURIAM

This appeal concerns the termination of a police officer in a non-civil service town. Plaintiff Troy Oglesby was removed from his position for misconduct involving a female shoplifting suspect. He contends that procedural irregularities in the proceedings before the hearing officer and in the Law Division require reversal. We disagree and affirm.

Plaintiff does not dispute that he arrested a twenty-year-old woman for shoplifting. Following her release, he appeared at her residence and invited her to accompany him as he conducted a further unauthorized investigation of the shoplifting incident. During the course of their meeting, plaintiff made sexual advances to the woman, which she rejected.

Plaintiff was charged with disreputable conduct by vouching for a shoplifting suspect; furthering an investigation without permission or knowledge of his supervisor; failing to conform to work standards by disregarding officer safety while furthering an investigation; failing to conform to work standards by leaving a recently released suspect in his car where his weapon was accessible to the suspect; disreputable conduct by picking up a recently released suspect, taking her to his place of business and making sexual advances to the suspect; and failing to answer investigative questions truthfully. A hearing on these charges was conducted by a hearing officer who was a municipal court judge. He sustained all charges but the charge of leaving the suspect alone in his car and the charge of not answering investigative questions truthfully. The municipal court judge recommended termination.

The Chief of Police accepted the findings of fact and adopted the recommended sanction. Plaintiff filed a timely action in lieu of prerogative writs to obtain de novo review of his discharge in accordance with N.J.S.A. 48:14-150. In re Phillips, 117 N.J. 567 (1990). Judge Orlando held that the use of a municipal court judge as the hearing officer was improper. Supreme Court Advisory Committee on Extrajudicial Activities Opinion 16-04. Therefore, he vacated the disposition and remanded for submission to another hearing officer.

The newly appointed hearing officer, John P. Jehl, reviewed the transcripts of the prior hearing and sustained four of the charges. He found that Oglesby did not vouch for the arrested shoplifter nor did he leave the woman alone in his car. He found, however, that Oglesby did seek out the woman following her arrest, that he took her for a ride in his personal auto, that he attempted to have sexual contact with her, that he conducted an unauthorized investigation with a suspect and her boyfriend, and that he failed to answer investigative questions truthfully. Thus, the hearing officer sustained the charges of failing to answer investigative questions truthfully, failing to conform to work standards, performing an unauthorized investigation, and engaging in disreputable conduct. He concluded that the conduct was "entirely unacceptable for a police officer" and recommended termination.

On de novo review, Judge Orlando sustained three charges. He found that the Township did not carry its burden of proof that Oglesby's performance was unsatisfactory within the terms of Regulation 2-48.17(c). He found that the regulation was inapplicable to the facts as charged. On the other hand, he found that the Township had sustained its burden of proof with reference to the charges that Oglesby failed to answer investigative questions truthfully, attempted to contact a suspect while in the company of one of the arrested parties, and made sexual advances to a recently released prisoner. Based on those findings, he ratified Oglesby's termination as a police officer.

On appeal, Oglesby argues that the proceedings were fatally flawed because he had been acquitted of the charge of failing to answer investigative questions truthfully by the initial hearing officer. He also contends that the submission of the matter to the second hearing officer on the record adduced at the initial hearing denied him due process of law. We disagree.

We cannot ignore that Oglesby, through his attorney, was involved in fashioning the remedy on remand. He agreed that it would be unnecessary to try the matter anew. See Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 503 (1996) (holding that the rule of invited error will bar a party from citing as error on appeal the remedy sought and obtained at trial). Judge Orlando also allowed Oglesby to supplement the record in any manner he deemed desirable before the newly appointed hearing officer. At this stage, Oglesby cannot complain that he did not take advantage of the opportunity to supplement the record. Oglesby was required to receive written notice of the charges, disclosure of the evidence in support of the charges, and an opportunity to be heard and to present testimonial and documentary evidence. Morrissey v. Brewer, 408 U.S. 471, 488-89, 92 S. Ct. 2593, 2604, 33 L. Ed. 2d 484, 498-99 (1972); Nicoletta v. N. Jersey Dist. Water Supply Comm., 77 N.J. 145, 162-63 (1978). He received all of the process he was due. Oglesby was afforded a hearing at which his employer bore the burden of proof. The employer presented testimonial and documentary evidence; Oglesby confronted the witnesses and testified on his own behalf. Oglesby was afforded a second opportunity to present additional evidence before the second hearing officer. Finally, he received a de novo review of the record and Oglesby presented additional evidence before Judge Orlando.

Assuming we considered prior counsel's suggestion concerning the course of the remand proceedings as misguided, which we do not, it is of no consequence. Oglesby does not contest the central facts of the evening following the arrest and release of the shoplifting suspect. The central issue was whether his conduct warranted the ultimate sanction of termination.

We also reject the notion that the second hearing officer was barred from considering the charges that the initial hearing officer specifically found that the employer had not sustained its burden of proof. Judge Orlando found that the initial hearing was tainted by the appointment of an ineligible hearing officer. Having set aside the initial proceeding, the entire matter was before the newly appointed hearing officer.

We, therefore, affirm the April 1, 2005 Final Judgment.

 

(continued)

(continued)

6

A-4683-04T3

May 23, 2006